Sri Gopi Krishna dalmia, The Nilgiris V. ACIT, Ooty

ITA 2077/CHNY/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96308 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 20-08-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 19-11-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR B NISCHAL
• Assessee Lawyers: S SRIDHAR
• Keywords: Unexplained investment
• Section: 143(3); 133A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B B ENCH, CHENNAI . , ' $ , % ' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ./ I.T.A.NO.2077/MDS/2012 ( / ASSESSMENT YEAR: 2009-10) MR. GOPI KRISHNA DALMIA, 1, SHEJI COMPLEX, GRAYS HILL ROAD, COONOOR, THE NILGIRIS. VS THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-I, OOTY. PAN: ADKPD4133A ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. S.SRIDHAR, ADVOCATE /RESPONDENT BY : DR.B.NISCHAL, JCIT /DATE OF HEARING : 20 TH AUGUST, 2015 /DATE OF PRONOUNCEMENT : 28 TH OCTOBER, 2015 / O R D E R PER CHALLA NAGENDRA PRASAD, JM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, COIM BATORE DATED 14.09.2012 FOR THE ASSESSMENT YEAR 2009-10. T HE ASSESSEE IS CHALLENGING THE ORDER OF THE COMMISSION ER OF INCOME TAX (APPEALS) IN SUSTAINING THE ADDITIONS OF ` 46,00,000/- AS UNEXPLAINED INVESTMENT AND ` 5,00,000/- RECEIVED AS ADVANCE WHILE COMPLETING THE ASSESSMENT BY THE ASSESSING OFFICER. 2. BRIEF FACTS ARE THAT THE ASSESSEE, AN INDIVIDUAL , FILED RETURN OF INCOME ON 31.07.2009 ADMITTING TOTAL INCO ME OF 2 ITA NO.2077/MDS/2012 ` 1,89,406/- AND NET AGRICULTURAL INCOME OF ` 9,19,430/-. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF TH E ACT ON 31.12.2011 AND WHILE COMPLETING THE ASSESSMENT, ASSESSING OFFICER ADDED ` 46,00,000/- AS UNEXPLAINED SOURCE OF INVESTMENTS IN RESPECT OF PROPERTIES PURCHASED B Y THE ASSESSEE IN JAIPUR AND DISALLOWED COST OF IMPROVEM ENT TO THE EXTENT OF ` 5,00,000/-. THERE WAS A SURVEY UNDER SECTION 133A OF THE ACT ON 16.10.2010 IN THE BUSINESS PREM ISES OF THE ASSESSEE AT COONOOR AND SIMULTANEOUSLY AT JAIPU R. VARIOUS DOCUMENTS RELATING TO MOVABLE AND IMMOVABLE PROPERTIES AND DRAFT PROPOSALS AND VARIOUS DOCUMENT S WERE IMPOUNDED. IT WAS ALSO NOTICED THAT ASSESSEE AND HI S WIFE BASANTHI DEVI AND M/S. TEA EXCHANGE BHARAT LTD. HAD PREPARED THREE SETS OF AUDITED FINANCIAL STATEMENT FOR THE FINANCIAL YEAR 2009-10. SWORN STATEMENTS WERE RECOR DED FROM THE ASSESSEE AND HIS WIFE AND FAMILY MEMBERS. THE ASSESSEE PURCHASED PROPERTY IN THE NAME OF EVERSHI NE TOWERS IN JAIPUR FROM A BUILDER NAMELY M/S. SANDUN E BUILDCON PVT. LTD.ON 21.07.2008. THE PROPERTY IS A COMMERCIAL BUILDING MEASURING 5822.50 SQ.FT NAMED A S HALL NO.B-2(B) ON LOWER GROUND FLOOR AND HALL NO.B-2(A) WITH 3 ITA NO.2077/MDS/2012 5822.50 SQ.FT. IN F BLOCK NEAR AMARAPALLI CIRCLE, J AIPUR. THE TOTAL INVESTMENTS IN THESE TWO PROPERTIES WERE ` 4,50,00,000/- I.E. ` 2.25 CRORES EACH. THE ASSESSING OFFICER NOTICED TH AT FROM THE IMPOUNDED DOCUMENTS INDEXED AS GKD-8 & 9 UNDER THE HEAD ACCOUNT OF G.K.DALMIA THE TOTAL AR EA OF 11,700 SQ.FT VALUED AT ` 5,623.93 PER SQ.FT AMOUNTING TO ` 6,58,00,000/- AND THIS PAYMENT IS DIVIDED INTO TWO PARTS NAMELY PAYMENT SCHEDULE A AND PAYMENT SCHEDULE B. U NDER PAYMENT SCHEDULE (A), THE TOTAL AMOUNT DUE WAS MENT IONED AS ` 4,50,00,000/- WHICH WAS THE AMOUNT APPEARING AS P ER REGISTERED SALE DEEDS. OUT OF ` 4,50,00,000/- IT WAS MENTIONED THAT ` 1,58,00,000/- WAS PAID AS PER LEDGER AND THE DUE PAYMENT WAS ` 2,92,00,000/-. IN THE PAYMENT SCHEDULE NO. (B), THE TOTAL PAYMENT DUE WAS ` 2,04,90,664 OF WHICH ` 46,00,000/- WAS PAID AS PER RECEIPTS. THE TOTAL DUE PAYMENT AS PER SCHEDULE (B) WAS ` 1,58,90,664.85. THE TOTAL AREA OF 11,645 SQ.FT WAS VALUED AT ` 3,864.32 PER SQ.FT. AMOUNTING TO ` 4,50,00,000/-FOR PAYMENT SCHEDULE (A), AND THE SAME AREA OF 11,645 SQ.FT. WAS VALUED AT ` 1759.61 PER SQ.FT AMOUNTING TO ` 2,04,90,664.85 AS PER PAYMENT SCHEDULE( B). IT WAS NOTICED THAT IN GKD (8) OUT O F GRAND TOTAL 4 ITA NO.2077/MDS/2012 OF ` 2,67,45,000/-, ` 1,58,00,000/- WAS MARKED AS TOTAL VISHAL MART (3) 1,58,00,000 AND THE REST OF TH E AMOUNT WAS PAID FOR THE PROPERTY OF MAYA DALMIA. EXPLANATI ON FOR PAYMENT SCHEDULE (B) IN PAGE NO.4 OF GKD(8) OUT OF ` 61,00,000/- PAID, ` 46,00,000/- WAS PAID BY G.K.DALMIA MENTIONED AS VISHAL ON VARIOUS DATES INDICATED A S RECEIPT NUMBER, CODE AGAINST THE AMOUNT PAID. THE ASSE SSING OFFICER CALLED FOR EXPLANATION OF THE ASSESSEE AS T O WHY THE AMOUNT OF ` 46,00,000/- MENTIONED IN GKD (8) SHALL NOT BE TAKEN AS UNEXPLAINED INVESTMENT. THE ASSESSEE BY LE TTER DATED 20.12.2011 FURNISHED THE EXPLANATION STATING THAT TOTAL PAYMENT SCHEDULE OF ` 4,50,00,000/- FOR BOOKING HALL NO.B(2)(A) AND B(2)(B) HAS BEEN REFLECTED. THE PAY MENT OF ` 46,00,000/- AS REFLECTED IN PAGE 3 OF GKD(8) WAS NOT EXPLAINED. IT WAS THE SUBMISSION OF THE AUTHORIZED REPRESENTATIVE THAT AS PER G.K.DALMIA IS CONCERNE D, HE HAD ORIGINALLY PLANNED TO BUY 11,645 SQ.FT. @ ` 5624/- PER SQ.FT IN GROUND FLOOR, LATER ON DUE TO COST INFLATION AND F INANCIAL PROBLEM, HE HAS SETTLED TO BUY THE LOWER GROUND FLO OR AT ` 3864/- PER SQ.FT, THAT IS WHY THERE IS A DIFFERENCE IN THE EXCEL SHEET PAGE 3 OF GKD(8). THE RATE DIFFERENCE IS ` 1760/- PER 5 ITA NO.2077/MDS/2012 SQ.FT ONY. HOWEVER, THE ASSESSING OFFICER CONCLUDE D THAT EXPLANATION OF THE ASSESSEE IS NOT CORRECT AND ` 46,00,000/- IS UNEXPLAINED INVESTMENT OF THE ASSESSEE OBSERVING AS UNDER:- THE ASSESSEE AR HAS SUBMITTED RECEIPT COPIES SL.NO. 847,857,858,863 AND 883 DATED 28.03.2008 FOR RS.20, 000 DATED 10.04.2008 FOR RS.1,000 DATED 13.04.2008 FOR RS.10,000/- DATED 20.03.2008 FOR RS.10,000/- AND DA TED 24.06.2008 FOR RS.10,000/- TOTALING TO RSA1,000 AS BUILDING MAINTENANCE CHARGES TO THE SOCIETY FUND. THE AR HAS MISTAKENLY TOOK THE CODE NUMBERS INSTEAD OF THE AMO UNT APPEARING IN PAGE NOA OF GKD (8), WHICH WAS SHOWN T O THE ASSESSEE DURING THE SCRUTINY ASSESSMENT AS IMPOUNDE D FROM THE ASSESSEE. AS PER THE PAYMENT SCHEDULE (B) MENTIONED IN PAGE NOA OF GKD (8) WAS RS.61,00,000/- . PAYMENT FOR SCHEDUL (B) DATE RECEIPT NO. CODE AMOUNT 28.032008 847 20000 2000000 10.042008 857 1000 100000 23042008 858 10000 1000000 13042008 863 10000 1000000 26.06.2008 BOM JCB 10000 1000000 28.06.2008 BOM JCB 10000 1000000 6100000 MAYADALMIA 1500000 VISHAL 4600000 THE AR HAS MISCONSTRUED THE FIGURES MENTIONED BELOW THE CODE FOR THE ACTUAL PAYMENT MENTIONED IN THE 'AMOUN T' COLUMN AND TRIED TO PREPARE THE RECEIPTS IN THE S1. NO. AS MENTIONED ABOVE FOR THE TOTAL OF 41,000. IT BECOME VERY CLEAR AND UNDERSTANDABLE THAT THE AR COULD NOT ABLE TO EX PLAIN THE PAYMENT OF ` 46,00,000 PAID AS PER RECEIPT IN THE PAYMENT SCHEDULE (B) AS MENTIONED IN THE PAGE 3 OF GKD (8). 6 ITA NO.2077/MDS/2012 THE ASSESSEE IN HIS REPLY VIDE LETTER DATED 27.12.2 011 TRIED TO EXPLAIN THE RATE DIFFERENCE OF RS.1760 FOR SQ.FT. WHICH WAS DUE TO THE INTENDED PURCHASE (GROUND FLOOR) AND THE ACTUAL PURCHASE (LOWER GROUND FLOOR) OF THE ABOVE S AID COMMERCIAL PROPERTY. THE PAGE 3 OF GKD (8) (PLEASE REFER TO THE ANNEXURE-R) IT IS CLEAR THAT THE TOTAL VALUE OF THE PROPERTY AS INTENDED FOR PURCHASE AND ACTUALLY PURCHASED WER E ONE AND THE SAME. THE ARS ARGUMENT IS NOT JUSTIFIED AND UNACCEPTABLE BECAUSE THE TOTAL AMOUNT OF ` 6,54,90 664.85 IS DIVIDED INTO TWO PARTS AS 'PAYMENT SCHEDULE (A) PAYMENT SCHEDULE (B)' EXACTLY DIVIDING INTO ` 4,50,00,000 AND RS.2,04,90,664.85/-. IN THE PAYMENT SCHEDULE B AS I NDICATED IN PAGE NO.3 GKD(8), ` 46,00,000/- IS MENTIONED AS 'PAID AS PER RECEIPT' , WHICH WAS ELABORATED IN PAGE NO.4 OF GKD(8) HENCE THE ARGUMENT OF THE AR THAT THESE ARE TWO DIFFERENT PROPOSALS ONE FOR LOWER GROUND FLOOR AND THE OTHER FOR THE GROUND FLOOR OF THE SAME PROPERTY IS NOT SA TISFACTORY AND APPRECIABLE. ALSO THE AR COULD NOT EXPLAIN THE SOURCE FOR ` 46 LAKHS PAID BY THE ASSESSEE AS MENTIONED IN THE IMPOUND DOCUMENTS INDEXED AS PAGE 3 GKD(8).THEREFOR E THE SAME IS ADDED TO THE TAXABLE INCOME OF THE ASSE SSEE. ON APPEAL, THE COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE ADDITION STATING THAT ASSESSEE COULD NOT EXPLAIN THE PAYMENT OF ` 46,00,000/- MADE TO THE BUILDER. THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT RECEIPTS PRODUCED BY THE ASSESSEE WITH THE CONTENTI ON THAT BUILDER HAS GIVEN RECEIPTS FOR PAYMENT ONLY TOWARDS MAINTENANCE CHARGES IS NOT CORRECT AND IT IS TOWA RDS PURCHASE OF PROPERTY ONLY. 7 ITA NO.2077/MDS/2012 3. COUNSEL FOR THE ASSESSEE REITERATING THE SUBMISS IONS MADE BEFORE THE LOWER AUTHORITIES SUBMITS THAT TH E EXCEL SHEET FOUND ON THE COMPUTER BASED ON WHICH THE ADD ITION WAS MADE IS ONLY A UNSIGNED PAPER AND IT CANNOT BE RELIED ON. HE FURTHER SUBMITS THAT EVEN THE BUILDER HAS G IVEN STATEMENT THAT NO EXTRA MONEY WAS RECEIVED AND THER EFORE THE ADDITION IS BASELESS. HE FURTHER SUBMITS THAT R ECEIPTS SHOW THAT PAYMENT WAS MADE FOR BUILDING MAINTENANCE AND NOT FOR PURCHASE OF PROPERTY HENCE HE PRAYS FOR DEL ETION OF ADDITION. COUNSEL FOR THE ASSESSEE RELIED ON THE DE CISION OF MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. DO LPHIN BUILDERS PVT.LTD. (356 ITR 420) IN SUPPORT OF HIS C ONTENTIONS. COUNSEL FOR THE ASSESSEE FURTHER PLACES RELIANCE ON THE DECISION OF THE TRIBUNAL IN THE CASE OF DR.P.RAJU V S. ACIT IN ITA NO.2058/MDS/2014 DATED 2.1.2015. 4. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORTS THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS). HE SUBMITS THAT EXCEL SHEET WAS FOUND IN THE COMPUTER OF THE ASSESSEE AND IT AMOUNTS TO BOOKS OF ACCOUNT. REFER RING TO THE PROVISIONS OF SECTION 2(12A) HE SUBMITS THAT B OOKS OF 8 ITA NO.2077/MDS/2012 ACCOUNT INCLUDES LEDGER, DAY BOOK, CASH BOOK, ACCOU NTS BOOK AND OTHER BOOKS WHETHER KEPT IN WRITTEN FORM OR AS PRINT OUT OF DATA STORED IN FLOPPY, DISC, TAPE OR ANY OTHER FOR M OF ELECTRO- MAGNETIC DATA STORAGE DEVICE. THEREFORE, HE SUBMITS THAT EXCEL SHEET FOUND IN THE COMPUTER OF THE ASSESSEE IS NOTHING BUT BOOKS OF ACCOUNT OF THE ASSESSEE BASED ON WHICH ADDITION WAS MADE AND IT CANNOT BE SAID THAT THE SA ID DOCUMENT CANNOT BE RELIED ON AS IT IS NOT BOOKS OF ACCOUNT. 5. HEARD BOTH THE PARTIES. PERUSED ORDERS OF THE AUTHORITIES BELOW AND THE DECISIONS RELIED ON. IN T HIS CASE, THE ASSESSING OFFICER MADE ADDITION OF ` 46,00,000/- AS UNEXPLAINED INVESTMENTS BASED ON THE IMPOUNDED DOCUMENTS INCLUDING EXCEL SHEET FOUND IN THE COMPU TER OF THE ASSESSEE . THE ASSESSEE COULD NOT PROPERLY EXPL AIN THE AMOUNT PAID TO BUILDER TO THE EXTENT OF ` 46,00,000/- AND THE REASONS ARE ALREADY EXTRACTED ABOVE. THE COMMISSION ER OF INCOME TAX (APPEALS) SUSTAINED THE ADDITION AFTER E XAMINING THE CONTENTIONS OF THE ASSESSEE AND WITH REFERENCE TO THE FINDINGS OF THE ASSESSING OFFICER OBSERVING AS UNDE R:- 5.2 I HAVE GONE THROUGH THE SUBMISSIONS MADE BY THE APPELLANT AND THE ORDER OF THE ASSESSING OFFICER. T HE ASSESSING OFFICER IN HIS ASSESSMENT ORDER HAS ELABO RATELY 9 ITA NO.2077/MDS/2012 DISCUSSED THE ISSUE OF UNEXPLAINED INVESTMENT. A SU RVEY U/S 133A WAS CONDUCTED ON 16.10.2010 IN THE BUSINES S PREMISES OF THE APPELLANT AT COONOOR AND SIMULTANEO USLY AT JAIPUR. DOCUMENTS RELATING TO MOVABLE AND IMMOVA BLE PROPERTIES WERE IMPOUNDED. IT WAS ALSO NOTICED THAT THE ASSESSEE AND HIS WIFE SMT.BASANTHI DEVI AND M/S TEA EXCHANGE BHARAT LIMITED HAD PREPARED 3 SETS OF AUDI TED FINANCIAL STATEMENT FOR THE FINANCIAL YEAR 2009-10. THE ASSESSEE HAD PURCHASED A PROPERTY IN THE NAME OF EVERSHINE TOWERS LNJAIPUR FROM A BUILDER NAMED M/S SAND DUNE BUILD CON.PVT. LIMITED ON 21 ST JULY 2008 WHICH WAS ALSO REPORTED IN AIR. THE PROPERTY IS A COMMERCIAL BUILDING MEASURING 5822.50 SQ.FT. NAMED AS HALL NO.B-2(B) ON LOWER GROUND FLOOR AND ANOTHER COMMERCIAL BUILDING 5822.50 SQ.FT. NAME BEARING HAL L NO.B-2(A) ON LOWER GROUND FLOOR (MEZZANNINE FLOOR). THE TOTAL INVESTMENT IN THESE TWO PROPERTIES WAS RS.4,50,00,000/- I.E., RS.2.25 CRORE EACH. THE PROP ERTY SALE DEED WAS SHOWING THAT THE SALE CONSIDERATION P AID BY THE ASSESSEE FOR PROPERTY AT B-2(B) WAS RS.2.25 CRO RES AND FOR B-2(A) ALSO PAID RS.2.25 CRORES. 5.3 FROM THE IMPOUNDED DOCUMENTS INDEXED AS GKD 8 AND 9, IT WAS MENTIONED UNDER THE HEADING OF 'ACCOU NT OF G.K.DALMIA', THE TOTAL AREA OF 11,700 SQ.FT. VALUED AT RS.5623.93 PER SQ.FT. TOTAL AMOUNTS TO RS.6,58,OO,O OO/-. IT IS NOTICED THAT THE PAYMENT OF THE ABOVE AMOUNT OF RS.6,58,OO,OOO WAS DIVIDED INTO TWO PAYMENT SCHEDUL E NO.A AND PAYMENT SCHEDULE NO.B. IN THE PAYMENT SCHEDULE NO.A, THE TOTAL PAYMENT DUE WAS MENTIONED AS RS.4,50,OO,OOO/- WHICH WAS THE AMOUNT APPEARING AS PER THE REGISTERED SALE DEEDS MENTIONED ABOVE. OUT OF. RS.4,50,OO,OOO, IT WAS MENTIONED THAT ` .1,58,OO,OOO AS PAID AS PER LEDGER AND THE DUE PAYMENT FOR SCHED ULE A WAS RS.2,92,OO,OOO. IN THE PAYMENT SCHEDULE B, THE TOTAL PAYMENT DUE WAS RS.2,04,90,664/- OF WHICH RS.46,OO,OOO WAS KNOWN AS 'PAID AS PER RECEIPTS'. T HE TOTAL DUE PAYMENT AS PER SCHEDULE B WAS RS.L,58,90, 664/- THE PAYMENT SCHEDULE FOR A WAS ELABORATED IN PAGE N O.2 OF GKD(8) AND THE PAYMENT SCHEDULE FOR B WAS ELABORATED IN PAGE NO.4 OF GKD(8). IN GKD(8) PAGE NO.2, OUT OF GRAND TOTAL OF RS.2,67,45,OOO/-, RS.L,58,OO,OOO MARKED AS - 'TOTAL VISHAL MART(3) - RS.1,58,OO,OOO' AND THE REST OF THE AMOUNT WAS PAID FOR THE PROPERTY OF SMT.MAYA DALMIA. IN PAGE NO.4 OF GKD(8), I.E., EXPLANATION FOR PAYMENT SCHEDULE B, O UT OF RS.61,OO,OOO/- PAID, RS.46,OO,OOO/- WAS PAID BY SHR I G.K.DALMIA MENTIONED AS 'VISHAL' IN VARIOUS DATES INDICATED AS 'RECEIPT NO'. 'CODE' AGAINST THE AMOUN T PAID. 10 ITA NO.2077/MDS/2012 5.4 ,THE AR WAS GIVEN A SHOW CAUSE ON 16.12.2011 WH Y THE AMOUNT OF RS.46,OO,OOO MENTIONED IN GKD(8) SHAL L NOT BE TAKEN AS UNEXPLAINED INVESTMENT. THE APPELLA NT SUBMITTED AN UNSIGNED LEDGER COPY OF BOOKING OF BASEMENT IN THE BOOKS OF M/S SAND DUNE BUILD CON.PVT.LIMITED. IN THAT, THE TOTAL PAYMENT SCHEDUL E RS.4,50,00,OOO/- HAS BEEN REFLECTED. THE EXPLANATIO N FOR THE PAYMENT OF RS.97,OO,OOOJ- AS REFLECTED IN PAGE NO.2 OF GKD(9) WAS ALSO EXPLAINED. THE PAYMENT OF RS.45,OO,000/- AS REFLECTED IN PAGE NO.3 OF GKD(8) WAS NOT EXPLAINED. THE ASSESSEE'S AR SUBMITTED RECEIPT COPIES OF S.NO.847, 857, 858, 863 AND 883 DATED 28.03.2008 FOR RS.20,000, 10.04.2008 FOR RS.10000, 13.04.2008 FOR RS.10000, 20.03.2008 FOR RS.10000 AND 24.06.2008 FORRS.10000 TOTALLING TO RS.41000 AS BUI LDING MAINTENANCE CHARGES TO THE SOCIETY FUND. THE ASSESSING OFFICER IN HIS ORDER STATED THAT THE AR H AS MISTAKENLY TAKEN THE CODE NUMBERS INSTEAD OF AMOUNT S APPEARING IN PAGE NO.4 OF GKD(8) WHICH WAS SHOWN TO THE ASSESSEE DURING THE COURSE OF SCRUTINY ASSESSME NT AS IMPOUNDED FROM THE ASSESSEE. AS SEEN FROM THE PAYME NT OF SCHEDULE B THE IMPOUNDED DOCUMENTS SHOW THE FOLLOWING:- PAYMENT FOR SCHEDULE (8) DATE RECEIPT NO. CODE AMOUNT 28.03.2008 847 20000 2000000 10.04.2008 857 1000 100000 23.04.2008 858 10000 1000000 13.04.2008 863 10000 1000000 26.06.2008 80M JC8 10000 1000000 28.06.2008 80M JC8 10000 1000000 6100000 MAYA DALMIA 1500000 VISHAL 4600000 THE PAYMENT SCHEDULE B PAGE 4 SHOWS THE DATE, RECEI PT NUMBER, CODE AND THE AMOUNT. THE TOTAL IMPOUNDED DOCUMENTS WITH REFERENCE TO GKD(8) SHOW THE PAYMENT SCHEDULE NO.B WITH REFERENCE TO THE ACCOUNT OF SMT. MAYA DALMIA AND ALSO ACCOUNT OF SHRI G.K.DALMIA. AT PAGE NO.3 OF GKD(8) ANNEXED TO THE ASSESSMENT ORDER, IT SHOWS THE TOTAL PAYMENT DUE AS RS.2,04,90,664/- OUT OF WHICH THE AMOUNT PAID AS PER RECEIPTS IS RS.46,OO,O OO/- .5.5 NOW AS YOU SEE FROM PAGE 4 OF GKD(8) WHICH IS REFLECTED ABOVE, THE DETAILS OF PAYMENT RS.46,OO,OO O/- ARE AVAILABLE. THE TOTAL PAYMENT IS FOR RS.61,OO,OO O/- 11 ITA NO.2077/MDS/2012 OUT OF WHICH RS.46,OO,OOO/- IS PAID TOWARDS VISHAL AND RS.15,OO,OOO/- FOR SMT.MAYA DALMIA. HERE VISHAL REFLECTS PROPERTY PURCHASED BY THE APPELLANT AND GI VEN ON LEASE TO VISHAL MART. AS SEEN FROM THE DETAILS, THE OTHER PAYMENTS REFLECTED IN GKD(8) ARE RECORDED IN THE BOOKS OF ACCOUNT. HOWEVER, THE APPELLANT CONVEN IENTLY COULD NOT EXPLAIN THE PAYMENT SCHEDULE B AT PAGE 4 OF GKD(8). THE LEARNED AR PRODUCED CASH RECEIPTS SERIA L NUMBERED AS 847,857,858,863 AND 883 FROM M/S SAND DUNE BUILD CON.PVT.LIMITED. AS YOU SEE FROM THESE RECEIPTS, RECEIPT NO.847 SHOWS THAT 'RECEIVED RS.20,OOO,/- FOR BUILDING MAINTENANCE' DATED 28.3.2 008 AND 29.3.2008 AS ADVANCE AGAINST BOOKING OF FLATS FROM SHRI G.K.DALMIA OFFICE NO.17 TO 20. RECE IPT NO.8S7 SHOWS ONLY RS.1000/- AS BUILDING MAINTENANCE AND AS ADVANCE AGAINST FLAT BOOKING FROM G.K.DALMIA AND NO OFFICE DETAILS ARE FURNISHED. SIMILARLY, IN RECE IPT NO.858, 863 AND 883, THE REFERENCE TO THE BUILDING FOR WHICH BUILDING MAINTENANCE IS PAID HAS NOT BEEN MENTIONED. IT IS ALSO SURPRISING TO NOTE THAT FOR R ECEIPT NO.847 DATED 28.3.2008, RS.20,OOO/- WAS COLLECTED AND FOR RECEIPT NO.857 FOR MONTH OF APRIL RS.L000/- WAS COLLECTED. THE APPELLANT'S AR SUBMITTED THESE RECEI PTS IN EXPLANATION TO THE PAYMENT SCHEDULE MENTIONED AT PA GE 4 OF GKD(8). TAKING ALL THE CIRCUMSTANTIAL EVIDENCE I NTO CONSIDERATION, THE IMPOUNDED DOCUMENTS MENTIONED AS GKD(8) SHOWS ABOUT THE PAYMENT SCHEDULE MADE BY THE APPELLANT AND HIS WIFE FOR ACQUIRING THE IMMOVABLE PROPERTY FROM THE BUILDER M/S SAND DUNE BUILD CON. PVT LIMITED. S.6 IT IS TO BE NOTED THAT AT PAGE NO.2 OF GKD(8}, THE PAYMENT SCHEDULE NO.B CLEARLY STATES 'PAID .AS PER RECEIPT'. THIS CLEARLY EVIDENCES THAT THE PAYMENT W AS FOR PROPERTY AREA OF 1164S SQ.FT. THE FIGURES MENTIONED AT PAGE NO.3 OF GKD(8) ARE CORROBORATED BY THE DETAILS GIVEN AT PAGE 4 OF GKD(8). WHEN EXAMINED, PAGE NO.4 CLEARLY SHOWS THE CODE AND AMOUNT SHOWING A DIFFERE NCE OF 2 ZEROS. FOR EXAMPLE, FOR RECEIPT NO.847, CODES SHOWS RS.20,OOO/- AND THE AMOUNT IS RS.20,OO,OOO/-; RECEIPT NO.857 SHOWS THE CODE AS RS.1000/- WHEREAS THE AMOUNT IS RS.1,OO,OOO/-. SIMILARLY, FOR RECEIPT NO. 858 AND 863, THE CODE IS RS.10,OOO/- AND THE AMOUNT MENTIONED IS RS.L0,00,000/-. EVEN DURING THE COURSE OF APPELLATE PROCEEDINGS, THE AR COULD NOT EXPLAIN THE DIFFERENCE AND HAS ONLY FILED THE R ECEIPTS FROM BUILDER SHOWING THEM AS BUILDING MAINTENANCE EXPENDITURE. AS SEEN FROM DETAILS, THE ASSESSEE HAS PURCHASED THE PROPERTY FROM M/S SAND DUNE BUILD 12 ITA NO.2077/MDS/2012 CON.PVT.LIMITED ON 21 ST JULY 2008. AS SEEN FROM THE RECEIPTS FURNISHED BY THE LEARNED AR THEY BELONG TO TO MARCH AND APRIL 2008 WHICH ARE BEFORE THE PURCHASE OF THE PROPERTY BY THE APPELLANT. IT IS NOT KNOWN HOW THE BUILDING MAINTENANCE CHARGES WERE PAID BY GKD WITHO UT ACQUIRING THE PROPERTY OR REGISTERING IN HIS NAME W HICH WAS ON 21.07.2008. THIS CLEARLY SHOWS THAT THE RECE IPTS FILED BY THE APPELLANT DO NOT HAVE ANY RELEVANCE AN D DO NOT SUPPORT PAGE NO.4 OF GKD(8) (IMPOUNDED DOCUMENT ). IT IS A CLEAR CASE OF PAYMENT OF RS.46,OO,OOO/- BY THE APPELLANT. HENCE, I CONFIRM THE ADDITION MADE BY TH E ASSESSING OFFICER. THIS GROUND OF APPEAL IS DISMISS ED. 6. THE COMMISSIONER OF INCOME TAX (APPEALS) ELABORA TELY DISCUSSED THE REASONS AS TO WHY THE ADDITION MADE T OWARDS UNEXPLAINED INVESTMENT HAS TO BE SUSTAINED REJECTIN G THE CONTENTIONS OF THE ASSESSEE. WE DO NOT FIND ANY INF IRMITY IN THE OBSERVATIONS OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN SUSTAINING THE ORDER OF THE ASSESSING OFFICER IN TREATING THE SUM OF ` 46,00,000/- AS UNEXPLAINED INVESTMENT AND WE ACCEPT THE VIEW TAKEN BY THE COMMISSIONER O F INCOME TAX (APPEALS) AND SUSTAIN THE ADDITION. WE F IND THAT THE CASE LAWS RELIED ON BY THE ASSESSEE ARE NOT APP LICABLE TO THE FACTS OF THE ASSESSEES CASE. THE GROUNDS RAISE D BY THE ASSESSEE ON THIS ISSUE ARE REJECTED. 7. THE NEXT GROUND OF APPEAL OF THE ASSESSEE IS WIT H REGARD TO ADDITION OF ` 5,00,000/- MADE BY THE ASSESSING 13 ITA NO.2077/MDS/2012 OFFICER. THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT REDUCED ` 5,00,000/- FROM THE COST OF THE PROPERTY FOR THE REASON THAT IN THE COURSE OF SURVEY, COPY O F THE SALE AGREEMENT DATED 23.05.2008 IN RESPECT OF THE PROPE RTY WAS IMPOUNDED. IT WAS FOUND THAT ONE MRS. ANUSHA R. MAH ESH AGREED TO BUY THE PROPERTY. SHE WAS SUMMONED AND AS KED TO EXPLAIN THE TRANSACTION WITH REFERENCE TO THE AG REEMENT MENTIONED. THE STATEMENT WAS RECORDED FROM MRS. ANU SHA MAHESH AND IT WAS FOUND THAT TRANSACTION OF PURCHAS E OF PROPERTY FROM THE ASSESSEE BY SMT. ANUSHA MAHESH WA S NOT EXECUTED AS THE BUILDING APPROVAL WAS NOT IN ORDER AS PROMISED BY THE ASSESSEE. IT WAS NOTICED THAT SMT. ANUSHA MAHESH PAID ` 5,00,000/- TOWARDS TOKEN ADVANCE TO THE ASSESSEE AND THIS AMOUNT WAS NOT RETURNED BY THE AS SESSEE. THUS, THE ASSESSING OFFICER REDUCED THE SAID AMOUN T OF ` 5,00,000/- FROM THE COST OF THE PROPERTY. ON APPEAL , THE COMMISSIONER OF INCOME TAX (APPEALS) SUSTAINED THE DISALLOWANCE AGAINST WHICH THE ASSESSEE IS IN APPEA L BEFORE US. 8. COUNSEL FOR THE ASSESSEE REITERATES THE SUBMISS IONS MADE BEFORE THE LOWER AUTHORITIES AND SUBMITS THAT 14 ITA NO.2077/MDS/2012 ` 5,00,000/- WAS SHOWN AS LIABILITY IN THE BOOKS OF V INAYAGA CHIT COMPANY AND IN ANY EVENT IT WAS SUBMITTED TH AT FOR THE ASSESSMENT YEAR 2011-12 THE ASSESSEE HAS ADMITTED T HE SAME AS INCOME FROM OTHER SOURCES AND THE ASSESSME NT WAS COMPLETED. 9. DEPARTMENTAL REPRESENTATIVE SUPPORTS THE ORDER O F THE COMMISSIONER OF INCOME TAX (APPEALS) IN SUSTAINING THE ADDITION. 10. HEARD BOTH SIDES. PERUSED ORDERS OF LOWER AUTHO RITIES. THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSME NT REDUCED ` 5,00,000/- FROM THE COST OF PROPERTY FOR THE REAS ON THAT ASSESSEE HAS RECEIVED TOKEN ADVANCE FOR SALE O F VERY SAME PROPERTY WHICH WAS NOT MATERIALIZED AND THE A MOUNT RECEIVED AS TOKEN AMOUNT WAS NOT RETURNED. IT WAS T HE CONTENTION OF THE ASSESSEE THAT THE SAID AMOUNT WAS SHOWN AS LIABILITY IN THE BOOKS OF VINAYAGA CHIT COMPANY. COUNSEL FOR THE ASSESSEE SUBMITS THAT FOR THE ASSESSMENT YE AR 2011- 12 THE SAID AMOUNT WAS OFFERED AS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES AND THE ASSESSMENT WAS AL SO COMPLETED ACCORDINGLY. ON HEARING BOTH THE PARTIES AND 15 ITA NO.2077/MDS/2012 TAKING THE FACTS AND CIRCUMSTANCES OF THE CASE INTO CONSIDERATION, WE ARE OF THE VIEW THAT THE SAID AM OUNT WAS TAXED IN THE ASSESSMENT YEAR 2011-12, THUS THE VERY SAME AMOUNT CANNOT BE TAXED AGAIN IN THE ASSESSMENT YEA R 2009- 10. AS IT WAS THE SUBMISSION OF THE ASSESSEE THAT I T WAS ALREADY TAXED IN THE ASSESSMENT YEAR 2011-12, WE DI RECT THE ASSESSING OFFICER TO VERIFY AS TO WHETHER THE SAID AMOUNT OF ` 5,00,000/- RECEIVED FROM MRS. ANUSHA MAHESH WAS TA XED IN THE ASSESSMENT YEAR 2011-12, IF IT IS TAXED IN THE ASSESSMENT YEAR 2011-12, ADDITION MADE IN THE ASSES SMENT YEAR UNDER CONSIDERATION BE DELETED. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH OCTOBER, 2015. SD/- SD/- ( # ) ( & (# ) ( CHANDRA POOJARI ) ( CHALLA NAG ENDRA PRASAD ) * / ACCOUNTANT MEMBER ( * / JUDICIAL MEMBER ( /CHENNAI, , /DATED 28 TH OCTOBER, 2015 SOMU ./ 0/ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. 1 () /CIT(A) 4. 1 /CIT 5. / 5 /DR 6. /GF .