RAJESH CONSTRUCTION (BOMBAY), MUMBAI V. ACIT-12(3), Mumbai

ITA 1640/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8305 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 14-03-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D G
• Keywords: Loose papers; Cost of acquisition
• Section: 143(1); 131

Judgement Text

P A G E | 1 ITA NO. 1640/MUM/2018 AY. 2006 - 07 RAJESH CONSTRUCTION (BOMBAY) VS. ACIT - 12(3) IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO.1640 /MUM/2018 (ASSESSMENT YEAR: 2006 - 07 ) RAJESH CONSTRUCTION (BOMBAY) 301, GUNDECHA CHAMBERS, N.M. ROAD, FORT, MUMBAI 400 023 VS. ACIT 12(3) , R OOM . NO. 137, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400 020 PAN AAAFR6903R (APPELLANT) (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SHRI D.G. PANSARI, SR. D.R DATE OF HEARING: 27 .06.2019 DATE OF PRONOUNCEMENT: 2 8 .06.2019 O R D E R PER RAVISH SOOD, JM THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) - 28, MUMBAI, DATED 14.11.2017, WHICH IN TURN ARISES FROM THE ORDER PASSED BY THE A.O UNDER SEC.143(3) OF THE INCOME TAX ACT,1961 (FOR SHORT ACT), DATED 26.12.2008 FOR A.Y.2006 - 07. THE ASSESSEE HAS ASSAILED THE ORDER OF THE CIT(A) BY RAISING THE FOLLOWING GROUNDS OF APPEAL BEFORE US : 1]A) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN CONFIRMING THE ALLEGED ON MONEY RECEIVED BY THE APPELLANT ON THE SALE OF FOUR INDUSTRIAL GALAS TO M/S AMAR IMPEX OF RS.25,13,700/ - . B) THE CIT(A) FAILED TO APPRECIATED THAT THE ADDI TIONS WERE MERELY BASED ON STATEMENTS OF THIRD PERSONS. C) THE CTT(A) HAS CONFIRMED THE ADDITIONS ON THE BASIS OF SUMMATIONS AND CONJUNCTURES. P A G E | 2 ITA NO. 1640/MUM/2018 AY. 2006 - 07 RAJESH CONSTRUCTION (BOMBAY) VS. ACIT - 12(3) 2] ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN CONFIRMING IN THE ADDITION OF RS.4,77,770/ & RS.3,70,280/ - ON ACCOUNT OF ON MONEY RECEIVED ON SALE OF OTHER GALAS ON ESTIMATE BASIS WITHOUT EVIDENCE AND ONLY ON SUMMATIONS AND CONJUNCTURES. 3] THE APPELLANT CRAVES LEAVE TO ADD, AMEND AND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 2. BRIEFLY STATED, THE ASSESSEE FIRM WHICH IS ENGAGED IN THE BUSINESS OF A BUILDER AND DEVELOPER HAD E - FILED ITS RETURN OF INCOME FOR A.Y. 2006 - 07 ON 19.10.2006, DECLARING ITS TOTAL INCOME AT RS. 27,29,809/ - . THE RETURN OF INCOME FILED BY THE ASSESSEE WAS PROCESSED AS SUCH UNDER SEC. 143(1) OF THE ACT. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY ASSESSMENT UNDER SEC. 143(2). 3. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, IT WAS OBSERVED BY THE A.O THAT THE ASSESSEE HAD REPURCHASED 8 GALAS FROM DIFFERENT PARTIES AND THEREAFTER R ESOLD THE SAME ALONG WITH OTHER UNITS AS IT STOCK IN TRADE. ON A PERUSAL OF THE PURCHASE COST AND THE SALE PRICE OF THE GALAS, IT WAS NOTICE D BY THE A.O THAT THE SAME VARIED SUBSTANTIAL LY. I NF ORMATION WAS RECEIVED BY THE ASSESSEE FROM DDIT(INV.) , UNIT - II (2), MUMBAI , THAT SURVEY PROCEEDINGS WERE CONDUCTED IN THE CASE OF TWO CONCERN S VIZ. (I) M/S KAMAL ASSOCIATES; AND (II) M/S KHEMCHAND B. KOTHARI. AS PER THE AFORESAID INFORMATION, THE STATEMENT OF SHRI KAMLESH SAVLA, BROKER OF THE ASSESSEE FIRM, WHO HAD ASSISTED IN SALE OF THE GALAS OF THE ASSESSEE, AND THAT OF SHRI BARAT M. CHEDA, PARTNER IN M/S AMAR IMPEX , I.E THE FIRM WHICH HAD PURCHASED 4 INDUSTRIAL GALAS FROM THE ASSESSEE FIRM , WERE RECORDE D ON OATH UNDER SEC. 131 OF THE ACT. IN THEIR RESPECTIVE STATEMENT S , BOTH OF THE AFORESAID PARTIES HAD ADMITTED THAT ON - MONEY WAS PAID TO THE ASSESSEE IN THE AFORESAID TRANSACTIONS OF SALE OF GALAS. ON THE BASIS OF THE AFORESAID INFORMATION , THE A . O CALLED UPON THE ASSESSEE TO EXPLAIN AS TO WHY ADDITION IN RESPECT OF ON - MONEY RECEIVED BY IT ON SALE OF GALAS MAY NOT BE MADE ON THE BASIS OF THE STATEMENTS OF THE AFOREMENTIONED PERSONS. IN REPLY, THE ASSESSEE DECLINED OF HAVING P A G E | 3 ITA NO. 1640/MUM/2018 AY. 2006 - 07 RAJESH CONSTRUCTION (BOMBAY) VS. ACIT - 12(3) ACCEPTED ANY CASH CONSID ERATION TOWARDS SALE OF INDUSTRIAL GALAS AT JOGANI INDUSTRIAL ES TATE. IN ORDER TO IMPRESS UPON THE A.O AS REGARDS THE VERACITY ON ITS AFORESAID CLAIM, IT WAS SUBMITTED BY THE ASSESSEE THAT THE SALE CONSIDERATION RECEIVED BY IT ON THE SALE OF THE GALAS WAS WELL IN CONFORMITY WITH SALE PRICE OF SIMILAR PROPERTIES IN THE SAME LOCALIT Y, AND WAS ALSO IN PARITY WITH THE VALU E FIXED BY THE STAMP VALUATION AUTHORITY. IT WAS SUBMITTED BY THE ASSESSEE THAT THE STATEMENT S OF BOTH OF THE AFOREMENTIONED PARTIES WERE BAS ELESS. IN SUM AND SUBSTANCE, THE ASSESSEE TRIED TO DISTANCE ITSELF FROM THE STATEMENTS OF THE AFOREMENTIONED PERSONS, ON THE GROUND THAT THE SAME WERE ABSOLUTELY BASELESS. HOWEVER, THE A.O AFTER CONSIDERING THE AFORESAID EXPLANATION OF THE ASSESSEE WAS NOT PERSUADED TO ACCEPT THE SAME. THE A.O WAS OF THE VIEW THAT AS THE STATEMENTS OF THE ABOVEMENTIONED PERSONS WERE RECORDED UNDER OATH AND WERE BASED ON THE DOCUMENTS WHICH WERE IMPOUNDED FROM THE PREMISES OF MR. KAMLESH SAVLA, BROKER OF THE ASSESSEE FIRM, T HEREFORE, THE AUTHENTICITY OF THE SAME COULD NOT BE DOUBTED . I N FACT, THE A.O OBSERVED THAT AS MR. KAMLESH SAVLA HAD RENDERED HIS SERVICES AS A BROKER IN RESPECT OF THE TRANSACTIONS OF SALE OF THE SAID G ALAS , IN LIEU OF WHICH HE WOULD HAVE RECEIVED BROKERA GE, THEREFORE, IT COULD SAFELY BE INFERRED THAT HE WAS IN ABSOLUTE KNOWLEDGE OF THE TRANSACTIONS ENTERED INTO BY THE ASSESSEE FIRM. ALSO, IT WAS OBSERVED BY THE A.O , THAT THE STATEMENT OF THE AFORESAID PERSONS RECORDED UNDER SEC.131 OF THE ACT, BEING A STA TEMENT UNDER OATH WAS ADMISSIBLE AS EVIDENCE UNDER THE INDIAN EVIDENCE ACT. ON THE BASIS OF HIS AFORESAID DELIBERATIONS, THE A.O WAS OF THE VIEW THAT THE ONUS WAS CAST UPON THE ASSESSEE TO PROVE THAT THE STATEMENTS OF THE AFOREMENTIONED PERSONS WAS NOT M ADE VOLUNTARILY OR WAS RECORDED UNDER COERCION OR UNDUE INFLUENCE OR THAT IT WAS MADE UNDER MISTAKEN BELIEF OR WAS OBTAINED BY FRAUD OR BY MISREPRESENTATI ON . ACCORDINGLY , THE A.O WAS OF THE VIEW THAT A MERE P A G E | 4 ITA NO. 1640/MUM/2018 AY. 2006 - 07 RAJESH CONSTRUCTION (BOMBAY) VS. ACIT - 12(3) ALLEGATION ON THE PART OF THE ASSESSEE WOULD NOT SUFFICE TO DISLODGE THE AUTHENTICITY OF THE STATEMENTS OF THE AFOREMENTIONED PERSON. AS REGARDS THE STATEMENTS GIVEN BY SHRI BHARAT M. CHEDA, PARTNER IN M/S AMAR IMPEX , I.E THE FIRM WHICH HAD PURCHASED 4 GALAS FROM THE ASSESSEE FIRM , IT WAS OBSERVED BY THE A . O , THAT THE SAME FURTHER CORROBORATED THE FACT S STATED BY MR. KAMLESH SAVLA , THAT THE ASSESSEE HAD RECEIVED ON - MONEY ON THE SALE OF GALAS. APART THERE FROM, THE A . O OBSERVED , THAT THE STATEMENT OF THE BROKER VIZ. SHRI. KAMLESH SAVLA W A S RECORDED IN THE BACKDROP OF THE INCRIMINATING DOCUMENTS WHICH WERE IMPOUNDED FROM HIS PREMISES IN THE COURSE OF SURVEY PROCEEDINGS . IN SUM AND SUBSTANCE, THE A.O WAS OF THE VIEW THAT THE STATEMENTS OF THE AFOREMENTIONED PERSONS CLEARLY PROVED THAT THE ASSESSEE WAS IN RECE IPT OF ON - MONEY ON SALE OF GALAS. ACCORDINGLY, THE A.O GOING BY THE STATEMENT OF MR. KAMLESH SAVLA, THEREIN MADE AN ADDITION OF RS. 28,46,000/ - TOWARDS ON - MONEY RECEIVED BY THE ASSESSEE ON SALE OF 4 GALAS TO M/S AMAR IMPEX. AS REGARDS THE REMAINING 6 GALAS WHICH WERE SOLD THROUGH THE BROKER, THE A.O GOING BY THE STATEMENT OF THE BROKER THAT ON - MONEY TO THE EXTENT OF 10% WAS INVOLVED ON SALE OF GALAS , THUS , MADE AN ADDITION OF 10% OF THE TOTAL VALUE OF RS.47,77,700/ - IN RESPECT OF THE SAME, WHICH RESULTED TO AN ADDITION OF RS.4,77,770/ - IN THE HANDS OF THE ASSESSEE. FURTHER, THE A.O HOLDING A CONVICTION THAT THE ASSESSEE WAS IN THE HABIT OF TAKING PART OF THE SALE PROCEEDS IN CASH BY WAY OF ON - MONEY, THEREFORE, ADDED 10% OF THE SALE VALUE OF THE REMAINING 6 G ALAS I.E GALA NO. 208, 111, 216, 204 , 105 & 314 AND MADE AN ADDITION OF RS.3,70,280/ - I.E 10% OF TOTAL VALUE OF RS.37,02,800/ - IN THE HANDS OF THE ASSESSEE. ON THE BASIS OF THE AFORESAID OBSERVATIONS , THE A.O MADE A TOTAL ADDITION OF RS.36,94,050/ - IN THE HANDS OF THE ASSESSEE. 4. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). AS REGARDS THE ADDITION OF RS. 28,46,000/ - MADE BY THE A.O IN P A G E | 5 ITA NO. 1640/MUM/2018 AY. 2006 - 07 RAJESH CONSTRUCTION (BOMBAY) VS. ACIT - 12(3) RESPECT OF 4 GALAS WHICH WERE SOLD BY THE ASSESSEE TO M/S AMAR IMPEX, THE CIT(A) RESTRICTED THE ADDITION TO THE EXTENT OF RS.25,13,700/ - AS WAS ADMITTED BY SHRI BHARAT CHEDA , PARTNER IN M/S AMAR IMPEX IN HIS STATEMENT RECORDED UNDER SEC.131 OF THE ACT. AS REGARDS THE REMAINING ADDITIONS OF RS.3,70,280/ - AND RS.4,77,770/ - , THE SAME WERE UPHELD BY THE CIT(A). 5. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER PASSED BY THE CIT(A) HAS CARRIED THE MATTER IN APPEAL BEFORE US. WE FIND THAT THE ASSESSEE APPELLANT DESPITE HAVING BEEN PUT TO NOTICE AS REGARDS THE HEARING OF THE APPEAL H AS HOWEVER FAILED TO PUT UP AN APPEARANCE BEFORE US. ACCORDINGLY, BEING LEFT WITH NO OTHER ALTERNATIVE , WE ARE CONSTRAINED TO DISPOSE OFF THE APPEAL AFTER HEARING THE RESPONDENT REVENUE AND PERUSING THE ORDERS OF THE LOWER AUTHORITIES. AS IS DISCERNIBLE FROM THE ORDERS OF THE LOWER AUTHORITIES, WE FIND , THAT SHRI BHARAT M. CHEDA, PARTNER IN M/S AMAR IMPEX , I.E THE FIRM WHICH HAD PURCHASED 4 INDUSTRIAL GALAS FROM THE ASSESS E E FIRM, HAD IN HIS STATEMENT RECORDED O N OATH UNDER SEC. 131 OF THE ACT ON 21/22.02.2006 , HAD ACCEPTED THA T AN AMOUNT OF RS.25,13,700/ - WAS PAID IN CASH BY HIM TO THE BUILDER I.E THE ASSESSEE VIZ. M/S RAJESH CONSTRUCTION (BOMBAY) FOR THE PURCHASE OF GALA NO S . 304 &305 AND 306 & 307 AT JOGANI INDUSTRIAL COMPLEX, BUILDING NO. 9, 3 RD FLOOR, SION CHEMBUR ROAD, CHU NABHATTI, MUMBAI. A PERUSAL OF HIS STATEMENT REVEALS THAT HE HAD CATEGORICALLY ADMITTED OF HAVING PAID ON - MONEY IN CASH TO THE ASSESSEE FOR PURCHASE OF THE AFORESAID 4 GALAS. RELEVANT EXTRACT OF HIS STATEMENT RECORDED UNDER SEC.131, DATED 21/22.02.2006, RE AD AS UNDER: Q.4 WHETHER YOUR FIRM HAS RECENTLY PURCHASED ANY IMMOVABLE PROPERTIES? ANS.: YES. OUR FIRM HAS PURCHASED FEW INDUSTRIAL GALAS IN JOGANI INDUSTRIAL COMPLEX, BUILDING NO. 9, 3' FLOOR, FROM M/S. RA JESH CONSTRUCTION (BOMBAY), MUMB AI. THE GALA NOS. ARE 304, 305, 306, 307. Q.5 WHAT WAS THE DATE OF PURCHASE OF THESE GAINS? P A G E | 6 ITA NO. 1640/MUM/2018 AY. 2006 - 07 RAJESH CONSTRUCTION (BOMBAY) VS. ACIT - 12(3) ANS.: THE GALA I.7OS. 304 & 305 WERE PURCHASED VIDE AGREEMENT DT.24. 1.2006 AND THE GALA NOS. 306 & 307 WERE PURCHASED VIDE AGREEMENT DT.20.02.2006 Q .6 WHAT WAS THE PURCHASE VALUE OF THESE G ALAS? PLEASE GIVE DETAILS. ANS: GALA NO 304 IS HAVING CARPET AREA OF 400 SQ. FT . AND SUPPER BUILT UP AREA OF 654 SQ. FT . GALA NOS.305, 306 & 307 EACH IS HAVING CA/PET AREA OF 267 SQ. FT. AND SUPER BUILT UP AREA 0(460 SQ. FT. THE AGREEMENT VALUE OF EACH GALA IS RS. 1300 PER SQ .FT. FOR SUPER BUILT TIP THAT WORK OUT TO RS.8.50,200/ - FOR GALA NO.304 CUD RS.605000/ - EACH FOR GALA 110.305. 306 & 307. COPIES OF AGREEMENTS ARE FURNISHED TO YOU. Q. 7 WHETHER YOU HAVE PAID ANY , AMOUNT OVER AND ABOVE THE AGREEMENT VALUE? ANS.: WE HAD UNDERSTANDING WITH THE BUILDER THAT THE PRICE PER SQ.FT. WI/I HE RS.25251 PER SQ.FT. ON SUPER BUILT UP. OUT OF THIS SALE AGREEMENT WAS MADE FOR RS 1300 PER SQ.FT AND THE VALUE OF SAME WAS MADE BY WAY OF CHEQUE. THE BALANCE RATE OF RS. 1225 PER SQ. FT. ON SUPER BUILT UP OF TOTAL AREA OF 2052 SQ.FT. WAS PAID IN CASH. Q.8 WITH WHOM THE ABOVE DEAL WAS FINALIZED AND TO WHOM THE CASH WAS HANDED OVER AND WHAT WAS THE TOTAL AMOUNT OF CASH PAYMENT? ANS.: THE DEAL OF PURCHASE OF ABOVE GALAS WAS MADE WI TH BUILDER M /S. RAJESH CONSTRUCTION ( BOMBAY) IN PRESENCE OF SHRI KAML ESH S AVL A (REAL ESTATE AGENT). ON TWO DIFFERENT DATES, THE CASH AS DECIDED WAS HANDED OVER TO SHRI KAMLESH S AVLA . IN FIRST INSTANCE, THE CASH WAS GIVEN AT THE PREMISE OF THE BUILDER, IN SECOND INSTANCE. SHRI KAML ESH S AVL A COLLECTED CASH FROM HERE AND GIVEN IT TO THE BUILDER M/S RAJESH CONSTRUCTION (BOMBAY). IN OVER ALL, WE HAVE P AID CASH AMOUNTING TO RS.25,13, 700/ - TO THE BUILDER ON ACCOUNT OF PURCHASE OF FOUR INDUSTRIAL GALAS OVER AND ABOVE THE AGREEMENT VALUE. Q.9 WHAT WAS THE SOURCE OF THIS CASH PAYMENT AND H OW THE SAME IS REFLECTED IN YOUR , HOOKS OF ACCOUNTS. AN S.: AS WE WERE AWARE, THAT BUILDER ALWAYS ASKS FOR SOME PAYMENT IN CASH OVER AND ABOVE AGREEMENT VALUE, WE GENERATED THE ABOVE AMOUNT OF CASH BY BUSINESS ACTIVITIES WHICH ARE NOT ACCOUNTED FOR. THE CASH GENERATION WAS EXCLUSIVELY FOR THE PURPOSE OF PAYMENT OF ABOVE R S .2 5,13,700/ - ONLY. AS THE INCOME IS NOT REFLECTED IN THE HOOKS OF ONE FIRM, SO FAR, THE SAME WILL BE BROUGHT TO THE BOOKS. Q. 10 WHETHER ANY BROKERAGE WAS PAID TO ANY ESTATE AGENT, FOR THE ABOVE PROPERTY TRANSACTION? AN S.: WE HAVE PAID BROKERAGE AT THE RATE OF 2% OF AGREEMENT VALUE OF FIRST TWO GALAS V IZ. 304 & 305, BY CHEQUE TO SMT. LLA KAMLESH SAV LA. THE BROKERAGE WAS PAID BY CHEQUE NO.3790 72 DT.8.2.2006, AMOUNTING TO RS .30,456 / - . SO FAR WE HAVE NOT PAID ANY BROKERAGE ON PURCHASE OF GALA NO.306 & 307, AS THE SAME WAS FINALIZED YESTERDAY I.E. 20.02.2006 ONLY. FURTHER, SHRI KAMLESH SAVLA, BROKER OF THE ASSESSEE FIRM WHO HAD ASSISTED IN SELLING THE GALAS, HAD ALSO IN HIS STATEMENT RECORDED U/S 131, ON BEING CONFRONTED WITH CERTAIN LOOSE PAPERS THAT WERE IMPOUNDED DURING THE COURSE OF THE SURVEY PROCEEDINGS UNDER SEC.133A FROM HIS PREMISES VIZ. ANNEXURE A - 12 PAGE - 88 , HAD ADMITTED THAT CASH AMOUNTING TO RS.28,46,000/ - WAS PAID IN CASH BY P A G E | 7 ITA NO. 1640/MUM/2018 AY. 2006 - 07 RAJESH CONSTRUCTION (BOMBAY) VS. ACIT - 12(3) M/S AMAR IMPEX TO THE ASSESSEE ON PURCHASES OF 4 GALAS FROM THE LATTER. 6. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ISSUE BEFORE US , AND FIND , THAT THE OBSERVATIONS OF THE LOWER AUTHORITIES THAT THE ASSESSEE HAD RECEIVED ON - MONEY ON SALE OF GALAS IS DULY S UPPORTED BY THE DOCUMENTS IMPOUNDED DURING THE COURSE OF THE SURVEY PROCEEDINGS CONDUCTED IN THE CASE OF M/S KAMLESH SAVLA AND M/S KHEMCHAND B. KOTHARI & CO. APART THERE FROM, THE PAYMENT OF ON - MONEY HAD ALSO BEEN CORROBORATED BY THE PURCHASER OF 4 GALAS V IZ. SHRI BHARAT M. CHEDA, PARTNER IN M/S AMAR IMPEX IN HIS STATEMENT RECORDED ON OATH UNDER SEC.131 ON 21 /22 .02.2006. ALSO, AS OBSERVED BY US HEREINABOVE , THE BROKER SHRI KAMLESH SAVLA WHO HAD ASSISTED THE ASSESSEE IN SELLING THE AFORESAID GALAS, HAD ALSO ADMITTED THAT ON - MONEY OF ABOUT RS. 28,46,000/ - WAS PAID IN CASH TO THE ASSESSEE ON SALE OF 4 GALAS TO M/S AMAR IMPEX. WE FIND THAT THOUGH THE A.O GOING BY THE STATEMENT OF SHRI KAMLESH SAVLA HAD MADE AN ADDITION OF RS. 28,46,000/ - TOWARDS ON - MONEY RECEIVE D BY THE ASSESSEE ON SALE OF 4 GALAS TO M/S AMAR IMPEX , HOWEVER, THE CIT(A) HAD IN ALL FAIRNESS RESTRICTED THE SAME TO THE EXTENT OF RS. 25,13,700/ - I.E THE AMOUNT O F ON - MONEY THAT W AS ADMITTED BY THE AFORESAID PURCHASER OF THE GALAS VIZ. SHRI BHARAT M. CHEDA, PARTNER OF M/S AMAR IMPEX. IN OUR CONSIDERED VIEW, THE AFORESAID ADDITION TOWARDS RECEIPT OF ON - MONEY BY THE ASSESSEE ON SALE OF 4 GALAS TO M/S AMAR IMPEX IS B ACK ED BY THE INCRIMINATING MATERIAL THAT WAS IMPOUNDED DURING THE COURSE OF THE SURVEY PRO CEEDINGS , AND ALSO THE STATEMENT S OF THE BUYER AND THE BROKER WHICH WERE RECORDED ON OATH UNDER SEC. 131. AS THERE IS NEITHER ANY MATERIAL AVAILABLE ON RECORD, NOR ANYTHING HAS BEEN BROUGHT TO OUR NOTICE , WHICH COULD HAVE PERSUADE D US TO CONCLUDE THAT THE VIEW TAKEN BY THE LOWER AUTHORITIES IS EITHER FOUND TO BE PERVERSE OR INCORRECT, THEREFORE, WE ARE NOT INCLINED TO DISLODGE THE WELL P A G E | 8 ITA NO. 1640/MUM/2018 AY. 2006 - 07 RAJESH CONSTRUCTION (BOMBAY) VS. ACIT - 12(3) REASONED VIEW TAKEN BY THE CIT(A) IN CONTEXT OF THE ISSUE UNDER CONSIDERATION . O N A SIMILAR BASIS, WE FIND THAT THE ADDITIO N OF 10% OF THE SALE VALUE OF THE REMAINING 6 GALAS SOLD THROUGH THE BROKER ALSO DOES NOT SUFFER FROM ANY INFIRMITY. ACCORDINGLY, THE ADDITION OF RS.4,77,770/ - MADE IN THE HANDS OF THE ASSESSEE IS UPHELD BY US. HOWEVER, WE ARE UNABLE TO PERSUADE OURSELVES TO SUBSCRIBE TO THE VIEW TAKEN BY THE LOWER AUTHORITIES THAT AS THE ASSESSEE WAS FOUND TO BE IN THE HABIT OF TAKING A PART OF THE SALE PROCEEDS IN CASH IN ORDER TO EVADE PAYMENT OF TAX, THEREFORE, THE SALE OF THE REMAINING GALAS NO. 208, 111,216,204,105 & 3114 WOULD ALSO HAVE INVOLVED RECEIPT OF ON - MONEY OF 10% OF THE SALE VALUE AGGREGATING TO RS. 37,02,800/ - BY HIM . IN OUR CONSIDERED VIEW, A MERE ASSUMPTION OR DOUBT CANNOT JUSTIFY MAKING OF AN ADDITION IN THE HANDS OF AN ASSESSEE. AS THE AFORESAID ADDITION OF RS. 3,10,280/ - I.E 10% OF THE AGGREGATE SALE VALUE OF RS. 37,02,800/ - OF THE 6 GALAS HAD BEEN MADE BY THE A.O MERELY ON THE BASIS OF AN ASSUMPTION THAT THE ASSESSEE MAY HAVE RECEIVED ON - MONEY, THEREFORE, THE SAME CANNOT BE SUSTAINED AND IS LIABLE TO BE VACATED . A CCORDINGLY, THE ORDER OF THE CIT(A) IS MODIFIED IN TERMS OF OUR AFORESAID OBSERVATIONS. 7. THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PR ONOUNCED IN THE OPEN COURT ON 2 8 .06.2019 S D / - S D / - ( SHAMIM YAHYA ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 2 8 .06.2019 PS. ROHIT P A G E | 9 ITA NO. 1640/MUM/2018 AY. 2006 - 07 RAJESH CONSTRUCTION (BOMBAY) VS. ACIT - 12(3) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI