Shri Anuj Murarilal Agrawal, Surat V. The Dy.CIT.,Cent.Circle-2, Surat

ITA 2779/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1045 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 14-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 09-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: RASESH SHAH
• Keywords: Business income; Income from undisclosed sources; Loose papers; Cost of acquisition; Valuation report
• Section: 143(3); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE SHRI S. S. GODARA, JM, & SHRI MANISH BORAD , AM. ITA NO.2779/AHD/2011 ASST. YEAR: 2008-09 SHRI ANUJ MURARILAL AGRAWAL, 102, PLATINUM APARTMENT, BRIJWASI ESTATE, NEAR, GATEWAY HOTEL, PARLE POINT, SURAT. VS. DCIT, CEN. CIRCLE-2, SURAT. APPELLANT RESPONDENT PAN ADMPA 2197H AND ITA NO.55/AHD/2012 ASST. YEAR: 2008-09 DCIT, CEN. CIRCLE-2, SURAT. VS. SHRI ANUJ MURARILAL AGRAWAL, 102, PLATINUM APARTMENT, BRIJWASI ESTATE, NEAR, GATEWAY HOTEL, PARLE POINT, SURAT. APPELLANT RESPONDENT ASSESSEE BY SHRI RASESH SHAH, AR REVENUE BY SHRI PRASOON KABRA, SR.DR DATE OF HEARING: 14/7/2016 DATE OF PRONOUNCEMENT: 27/7/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . THESE TWO CROSS APPEALS FOR ASST. YEAR 2008-09 ARE DIRECTED AGAINST THE ORDER OF LD. CIT(A)-II, AHMEDABAD, DATE D 19/10/2011 IN ITA NOS.2779 A-11 & 55-A-12 ASST. YEAR 2008-09 2 APPEAL NO.CIT(A)-II/CC-2,/166/2010-11, PASSED AGAIN ST ORDER U/S 143(3) OF THE IT ACT, 1961 (IN SHORT THE ACT) FRAME D ON 27/12/2010 BY ACIT, CC-2, SURAT. 2. FIRST WE TAKE UP ASSESSEES APPEAL IN ITA NO.277 9/AHD/2011 WHEREIN FOLLOWING GROUND HAS BEEN RAISED :- COST OF IMPROVEMENT OF RS.8,23,600/- DISALLOWED BY HONORABLE CIT(A) WHILE CALCULATING SHORT TERM CAPITAL GAIN ON THE GROUND THAT THE SAME IS NON-GENUINE. 3. AT THE OUTSET LD. AR FOR THE ASSESSEE REQUESTED FOR NOT PRESSING THE GROUND. HENCE THE GROUND RAISED BY THE ASSESSEE IS DISMISSED AS NOT PRESSED. ACCORDINGLY, THE APPEAL FILED BY THE A SSESSEE IS DISMISSED. 4. NOW WE TAKE UP REVENUES APPEAL IN ITA NO.55/AHD /2012 WHEREIN FOLLOWING GROUNDS OF APPEAL HAVE BEEN RAISE D :- 1) THE ID-CIT(A) HAS ERRED IN LAW AND ON FACTS IN D IRECTING THE ASSASSINS OFFICER TO TAX THE SHORT TERM CAPITAL GAI N OF RS.26,30,000/- IN THE HANDS OF APPELLANT AND REMAINING UNACCOUNTED RECEIPT OF RS..1,00,56,900/- IN THE HANDS OF THE COMPANY I.E. BRIJWASI DEVELOPERS PVT. LTD. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O, 3) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE C IT (A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 5. GROUND NOS.2 & 3 OF THIS APPEAL ARE OF GENERAL N ATURE, HENCE THEY NEED NO ADJUDICATION. ITA NOS.2779 A-11 & 55-A-12 ASST. YEAR 2008-09 3 6. IN GROUND NO.1 THE GRIEVANCE OF REVENUE IS AGAIN ST THE ORDER OF LD. CIT(A) IN DIRECTING THE ASSESSING OFFICER TO TA X THE SHORT TERM CAPITAL GAIN OF RS.26,30,000/- IN THE HANDS OF ASSE SSEE AND REMAINING UNACCOUNTED RECEIPT OF RS.1,00,56,900/- I N THE HANDS OF THE COMPANY I.E. BRIJWASI DEVELOPERS P. LTD. 7. BRIEFLY STATED FACTS OF THE CASE ARE THAT ASSESS EE IS AN INDIVIDUAL, DECLARED TOTAL INCOME AT RS.2,41,410/- IN THE RETURN OF INCOME FILED ON 21/11/2008 SHOWING INCOME FROM SALA RY, BEING DIRECTOR OF M/S BRIJWASI DEVELOPERS PVT. LTD., SHOR T TERM CAPITAL GAINS BESIDES INTERESTS. THE CASE WAS SELECTED FOR SCRUTI NY AND NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 8/5/2009 AND DULY S ERVED ON 11/5/2009. DURING THE COURSE OF ASSESSMENT PROCEEDI NGS, ON EXAMINATION OF SHORT TERM CAPITAL GAIN IT WAS OBSER VED THAT ASSESSEE HAS SHOWN SHORT TERM CAPITAL GAIN OF RS.1,68,400/- AFTER CLAIMING DEDUCTION OF COST OF ACQUISITION AT RS.15,38,000/- AND COST OF IMPROVEMENT AT RS.8,23,600/- AGAINST SALE CONSIDERA TION OF RS.25,30,000/- FROM SALE OF FLAT NO.A-103, SOLITAIR E APARTMENTS. FURTHER ON THE BASIS OF INFORMATION INCLUDING INCRI MINATING DOCUMENTS FOUND DURING THE COURSE OF SURVEY U/S 133A CONDUCTE D ON 6/1/2010 IN THE CASE OF BRIJWASI DEVELOPERS PVT. LTD. DOCUMENTS RELATING TO THE IMPUGNED FLAT A-103 WERE ALSO CAME TO THE NOTICE OF LD. ASSESSING OFFICER AS PER WHICH THE ACTUAL AMOUNT OF SALE CONS IDERATION OF THE FLAT WAS AT RS.1,26,86,900/- AS AGAINST RS.25,30,00 0/- SHOWN BY ASSESSEE. AS SUCH IT WAS REVEALED THAT ASSESSEE HAS CHARGED ON ITA NOS.2779 A-11 & 55-A-12 ASST. YEAR 2008-09 4 MONEY OF RS.1,01,56,900/- IN CASH WHICH WAS RECEIV ED IN A SPAN OF THREE F.YS. AS BELOW :- FY 2007-08 RS.1,00,000/- FY 2008-09 RS.77,66,900/- FY 2009-10 RS.22,09,000/- -------------------------- TOTAL RS.1,01,56,900/- --------------------------- THIS INFORMATION WAS TAKEN BY LD. ASSESSING OFFICER FROM PAGE NO.11 OF THE DAIRY IN THE PREMISES OF BRIJWASI DEVELOPERS PVT. LTD. DURING THE COURSE OF SURVEY PROCEEDINGS U/S 133A OF THE ACT. F URTHER LD. ASSESSING OFFICER WAS NOT SATISFIED WITH THE DOCUME NTARY EVIDENCES FILED IN SUPPORT OF COST OF IMPROVEMENT OF RS.8,23, 600/- CLAIMED BY THE ASSESSEE AS THE SAME WERE SUPPORTED BY SELF-MAD E VOUCHERS. ACCORDINGLY AN ADDITION OF RS.1,09,80,500/- ON ON MONEY AND DISALLOWANCE OF CLAIM OF IMPROVEMENT OF RS.8,23,600 /- WAS MADE AND INCOME WAS ASSESSED AT RS.1,12,71,911/-. 8. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE LD. CI T(A) WHEREIN DISALLOWANCE OF RS.8,23,600/- WAS SUSTAINED, ADDITI ON OF RS.1,00,000/- TOWARDS ON MONEY RECEIVED DURING FY 2007-08 IN THE HANDS OF ASSESSEE WAS CONFIRMED AND REMAINING AMOUN T OF RS.1,00,56,900/- WAS DELETED ON THE BASIS OF DECLAR ATION FILED BY BRIJWASI DEVELOPERS PVT. LTD. WHICH HAS OWNED THE ON MONEY RECEIVED IN RELATION TO THE IMPUGNED FLAT WHICH WAS INCLUDED IN THE NET UNACCOUNTED INCOME SURRENDERED AT RS.15 CRORES COVE RING ALL THE IMPOUNDED PAPERS. ITA NOS.2779 A-11 & 55-A-12 ASST. YEAR 2008-09 5 9. AGGRIEVED, REVENUE IS NOW IN APPEAL BEFORE THE T RIBUNAL. 10. LD. DR SUPPORTED THE ORDER OF ASSESSING OFFICER . 11. ON THE OTHER HAND, LD. AR SUBMITTED THAT THE O N MONEY RECEIVED ON THE FLAT DURING FY 2008-09 AND FY 2009 -10 AT RS.1,00,56,900/- HAS ALREADY BEEN OFFERED TO TAX BY BRIJWASI DEVELOPERS PVT. LTD. VIDE DECLARATION FILED DURING THE COURSE OF SURVEY CONDUCTED ON 6.1.2010 AND, THEREFORE, LD. CIT(A) HA S RIGHTLY DELETED THE ADDITION. 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE ONLY ISSUE RAISED BY THE REVENUE IS AGAINST THE ORDER OF LD. CIT(A) DELETING THE ADDITION OF RS.1,00,56,9 00/- RELATING TO ON MONEY RECEIVED ON SALE OF FLAT. WE FIND THAT THERE IS NO DISPUTE TO THE FACT THAT THE FLAT SITUATED AT A-103, SOLITAIRE APA RTMENT WAS SOLD BY ASSESSEE AND ACTUAL AMOUNT OF SALE CONSIDERATION OF THE FLAT WAS RS.1,26,86,900/- OUT OF WHICH ASSESSEE RECEIVED RS. 25,30,000/- BY CHEQUE AND OUT OF THE REMAINING AMOUNT OF RS.1,01,5 6,900/- WHICH WAS RECEIVED IN CASH BY ASSESSEE AT RS.1,00,000/- I N FY 2007-08 AND THE REMAINING CASH AMOUNT OF RS.1,00,56,900/- W AS RECEIVED BY BRIJWASI DEVELOPERS PVT. LTD. IN FY 2008-09 & FY 20 09-10 IN WHICH ASSESSEE IS A DIRECTOR. IT IS PERTINENT TO NOTE THA T M/S BRIJWASI DEVELOPERS PVT. LTD. HAS CARRIED OUT DEVELOPMENT OF VARIOUS RESIDENTIAL PROJECTS. SURVEY WAS CONDUCTED ON 6.1.2 010 U/S 133A OF THE ACT ON BRIJWASI GROUP, SURAT. DURING THE COURSE OF SURVEY SEVERAL ITA NOS.2779 A-11 & 55-A-12 ASST. YEAR 2008-09 6 INCRIMINATING DOCUMENTS INCLUDING DAIRY RELATING TO BUSINESS WERE IMPOUNDED. THESE DOCUMENTS PRIMARILY HAVE RECORDED UNACCOUNTED AND UNDISCLOSED ACCOUNT OF BUSINESS. DURING THE COU RSE OF CONFRONTATION WITH THESE DOCUMENTS MR. MURARILAL AG RAWAL DISCLOSED THE INCOME OF RS.15 CRORES IN THE CASE OF BRIJWASI DEVELOPERS PVT. LTD. WHICH INTER ALIA INCLUDED ON MONEY OF RS.1,01, 56,900/- RECEIVED FROM SALE OF IMPUGNED FLAT. WE FIND THAT LD. CIT(A) HAS DELETED THE IMPUGNED ADDITION BY ELABORATELY DISCUSSING THE ISS UE AS UNDER :- 4. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CAS E, THE ORDER OF THE A.O. AND THE SUBMISSIONS OF THE APPELLANT. IN THE PRESENT CA SE, THE APPELLANT IS A DIRECTOR OF BRIJWASI DEVELOPERS PVT. LTD. FROM THE BANK SANC TION LETTER DATED 11/05/2006 IN THE NAME OF THE COMPANY, BRIJWASI DEVELOPERS PVT . LTD. IT IS EXPLICIT THAT THE COMPANY WAS REQUIRED TO GIVE A COLLATERAL SECURITY IN THE FORM OF IMMOVABLE PROPERTY OF AROUND RS. 50 LACS TO THE BANK FOR AVAI LING THE TERM LOAN OF RS. 403.65 LACS AND FOR WHICH THE COMPANY EXECUTED A RE GISTERED SALES AGREEMENT ON 16-06-2006 IN RESPECT OF ONE OF ITS FLAT NO. A-1 03, SOLITAIRE APARTMENT, IN THE FAVOUR OF ITS DIRECTOR, BEING THE APPELLANT. THE BA NK OBTAINED A VALUATION REPORT OF RS. 46 LACS FROM AN INDEPENDENT APPROVED VALUER IN RESPECT OF THE SAID FLAT ON 23-06-2006 WHEREIN THE PHOTOGRAPHS OF THE FLAT AS A LSO THE BUILDING ARE ATTACHED, WHICH CLEARLY SHOWS THAT THE FLAT AS ALSO THE BUILD ING WERE UNDER CONSTRUCTION AND WERE NOT IN A POSITION TO BE OCCUPIED. FURTHER, THE VALUER HAS ALSO CLEARLY STATED IN THE VALUATION REPORT THAT THE PROPERTY IS UNDER CONSTRUCTION AND ONLY MASONRY WORK HAS BEEN COMPLETED SO FAR AND THE WORK OF PLAS TERING, FLOORING, PLUMBING, ELECTRIFICATION, DOORS AND WINDOWS ETC. ARE PENDING ON THE DATE OF INSPECTION AND ACCORDINGLY, HE HAS TAKEN ONLY 50% OF THE MARKET VA LUE AS ITS VALUATION. THUS, FROM THE BANK SANCTION LETTER, THE VALUATION REPORT AND THE PHOTOGRAPHS OF THE PROPERTY FORMING PART THEREOF IT IS EVIDENCED THAT WHEN THE APPELLANT EXECUTED THE PURCHASE DEED OF THE SAID FLAT WITH THE COMPANY, BR IJWASI DEVELOPERS PVT. LTD., THE SAID FLAT WAS UNDER CONSTRUCTION AND WAS NOT IN A POSITION WHEREBY THE APPELLANT COULD HAVE TAKEN THE POSSESSION THEREOF O R OCCUPIED IT. THUS; IT IS ITA NOS.2779 A-11 & 55-A-12 ASST. YEAR 2008-09 7 CLEARLY ESTABLISHED THAT THE SALE DEED WAS EXECUTED BY THE COMPANY IN FAVOUR OF THE APPELLANT DIRECTOR FOR THE SOLE PURPOSE OF FURN ISHING COLLATERAL SECURITY TO THE BANK AND IT WAS NOT WITH THE PURPOSE OF SELLING THE FLAT TO THE APPELLANT. THUS, VIDE THE REGISTERED SALES AGREEMENT ONLY TITLE-RIGH TS WERE CREATED IN THE NAME OF THE APPELLANT, HOWEVER, THE POSSESSION OF THE FLAT REMAINED WITH THE COMPANY AND ITS CONSTRUCTION WAS IN PROGRESS BY THE COMPANY . FURTHER, IT IS NOT DISPUTED THAT THE SUBJECT LOOSE PAPER INVENTORISED AS PAGE 6 OF ANNEXURE BI-19 WHEREIN THE ACTUAL SALES CONSIDERATI ON OF THE FLAT IS MENTIONED HAS BEEN IMPOUNDED FROM THE PREMISES OF THE COMPANY AND THE SAID IMPOUNDED PAPER HAS BEEN OWNED-UP BY THE COMPANY, BRIJWASI DE VELOPERS PVT. LTD. AS BELONGING TO IT, NOT ONLY ON THE DATE OF SURVEY ITS ELF BUT EVEN SUBSEQUENTLY AND THEREFORE, THE SAME CANNOT BE TREATED AS BELONGING TO THE APPELLANT. IN THE SAID CIRCUMSTANCES, AN ANALYSIS OF THE IMPOU NDED PAPER WOULD HAVE TO BE DONE TO ARRIVE AT A CONCLUSION AS TO WHAT AMOUNT OF ON-MONEY AS STATED IN THE IMPOUNDED PAPER HAS BEEN RECEIVED BY THE APPELLANT AND WHAT AMOUNT HAS BEEN RECEIVED BY THE COMPANY, BRIJWASI DEVELOPERS PVT. L TD. FIRST OF ALL, IT IS AN UNDISPUTED FACT THAT THE COM PANY, BRIJWASI DEVELOPERS PVT. LTD. IS MAINTAINING THE RECORD OF THE TOTAL SALES C ONSIDERATION OF RS. 1,26,86,900/- ALONG WITH THE DETAIL OF ITS DATE WISE RECEIPT FROM THE ACTUAL BUYER VIZ. SMT BHAVNA MUKESH KALANI WHICH CLEARLY ESTABLISHES THAT IT IS THE COMPANY WHICH HAS RECEIVED THE AMOUNT FROM SMT. BHAVNA MUKESH KALANI SINCE IF THAT HAD NOT BEEN THE CASE, THE COMPANY WOULD NOT HAVE MENTIONED THE NAME OF SRNT. BHAVNA MUKESH KALANI ON THE IMPOUNDED PAPER BUT WOULD HAVE MENTIONED ONLY THE NAME OF THE APPELLANT FROM WHOM IT WOULD HAVE RECEI VED THE MONEY. SECONDLY, THE SAID IMPOUNDED PAPER MENTIONS THE NAM E OF THE APPELLANT AS ALSO THE NAME OF THE ACTUAL BUYER SMT. BHAVNA MUKESH KAL ANI HOWEVER, THE SUFFIX (P) HAS BEEN MENTIONED ONLY AGAINST THE NAME OF THE APP ELLANT WHICH CLEARLY INDICATES THAT THE APPELLANT RECEIVED HIS PART OF T HE CONSIDERATION FROM SMT. ITA NOS.2779 A-11 & 55-A-12 ASST. YEAR 2008-09 8 BHAVNA MUKESH KALANI IN PAKKA I.E. BY CHEQUE IN REG ULAR BOOKS. THIS IS FURTHER EVIDENCED FROM THE DATE-WISE DETAIL OF PAYMENTS OF RS. 1,26,86,900/-, MADE BY SMT. BHAVNA MUKESH KALANU WHEREBY THE SUFFIX (P) HA S BEEN MENTIONED ONLY AGAINST THE PAYMENTS OF RS. 2,50,000/-, RS. 2,80,00 0/- AND RS. 20,00,000/- TOTALING TO RS. 25,30,000/- WHICH HAVE BEEN RECEIVE D BY THE APPELLANT AND IS CLEARLY REFLECTED IN HIS REGULAR BOOKS AND THUS, TH E BALANCE PAYMENT OF RS. 1,01,56,900/- IS OUTSIDE THE BOOKS. THIRDLY, THE LOOSE PAPER SHOWING THE RECEIPT OF RS. 1,01,56,900/- OUTSIDE THE BOOKS HAS BEEN IMPOUNDED FROM THE PREMISES OF THE COMPANY AND HAS BEEN OWNED-UP BY THE COMPANY AS BELONGING TO IT. FOURTHLY, IT IS ESTABLISHED THAT THE FLAT WAS UNDER CONSTRUCTION AT THE TIME WHEN THE TITLE RIGHTS WERE CREATED IN THE FAVOUR OF THE APPE LLANT AND THE POSSESSION THEREOF WAS NEVER WITH THE APPELLANT BUT WAS ALWAYS WITH TH E COMPANY AND THUS, IT IS THE COMPANY WHICH HAS DEALT WITH THE SALE OF THE SAID F LAT WHEREIN THE APPELLANT IS ONLY A CONFIRMING PARTY FOR TRANSFER OF THE TITLE RIGHTS. LASTLY, IT IS SEEN THAT OUT OF THE ENTIRE ON-MONEY PAYMENT OF RS. 1,01,56,900/- RECEIVED FROM THE ACTUAL BUYER, AN AMOUNT OF RS. 1, 00,000/- HAS BEEN RECEIVED OUTSIDE THE REGULAR BOOKS UPTO 31-03-2008 AND THE B ALANCE OF RS. 1,00,56,900/- HAS BEEN RECEIVED AFTER 31-03-2008 I.E. AFTER THE DATE OF EXECUTION OF SALE DEED BY THE APPELLANT IN THE FAVOUR OF ACTUAL BUYER. THIS FACT ALSO PROVES THAT ONLY THE PAYMENT OF RS. 1,00,000/- RECEIVED IN CASH UPTO THE DATE OF EX ECUTION OF SALE DEED I.E. 31-03- 2008 COULD BE SAID TO BE BELONGING TO THE APPELLANT AND THE BALANCE PAYMENTS OF RS. 1,00,56,900/- UNDOUBTEDLY BELONGS TO THE COMPANY BR IJWASI DEVELOPERS PVT. LTD. SINCE IT HAS BEEN PAID TO IT AFTER EXECUTION OF SAL ES DEED BY THE APPELLANT FOR COMPLETING THE CONSTRUCTION / INTERIOR WORK AND FOR TAKING POSSESSION OF THE FLAT FROM IT. ACCORDINGLY, FROM THE AFORESAID FACTS AND DOCUMENTA RY EVIDENCE, I HOLD THAT THE APPELLANT WAS HOLDING ONLY THE TITLE-RIGHTS OF THE FLAT A-103, SOLITAIRE APARTMENT CREATED BY THE COMPANY BRIJWASI DEVELOPERS PVT. LTD . FOR THE PURPOSE OF AVAILING THE ITA NOS.2779 A-11 & 55-A-12 ASST. YEAR 2008-09 9 BANK LOAN HOWEVER, AFTER CREATING THE TITLE-RIGHTS, THE FLAT REMAINED WITH THE COMPANY AND THE CONSTRUCTION WORK CONTINUED BY THE COMPANY. THE FLAT WAS THEN U!TIMATELY*SOLD BY THE COMPANY AND THE POSSESSION T HEREOF WAS ALSO HANDED OVER BY THE'COMPANY TO THE ACTUAL BUYER SMT. BHAVNA MUKESH KALANI AS IS EVIDENT FROM THE LOOSE PAPER IMPOUNDED FROM THE OFFICE OF THE COMPAN Y. FURTHER, AT THE TIME OF SALE ON 31-03-2008, THE APP ELLANT ONLY TRANSFERRED HIS TITLE- RIGHTS WHEREAS THE COMPANY AGREED TO COMPLETE THE C ONSTRUCTION / INTERIOR WORK OF THE FLAT AND HAND OVER THE POSSESSION TO THE ACTUAL BUYER. ACCORDINGLY, THE CONSIDERATION UPTO THE DATE OF SAL E I.E. 31-03-2008 BELONGED TO THE APPELLANT FOR TRANSFERRING THE TITLE-RIGHTS AND THE CONSIDERATION THEREAFTER FROM APRIL'2008 TILL SEPTEMBER 2009 BELONGED TO THE COMP ANY FOR COMPLETING THE CONSTRUCTION AND HANDING OVER THE POSSESSION. HENCE, OUT OF THE SALES CONSIDERATION OF RS. 1,26,8 6,900/- AS NOTED DOWN ON THE IMPOUNDED PAPER, CONSIDERATION OF RS. 26,30,000/- R ECEIVED UPTO THE DATE OF SALES AGREEMENT I.E. 31-03-2008 BEING RS. 25,30,000/- REC EIVED BY CHEQUES AND RS. 1,00,000/- RECEIVED IN CASH BELONGS TO THE APPELLAN T. THE AMOUNT OF RS. 25,30000/- RECEIVED IN CHEQUE IS REFLECTED IN THE REGULAR BOOK S OF THE APPELLANT WHEREAS THE AMOUNT OF RS. 1,00,000/- RECEIVED IN CASH ON 06-03- 2008 IS NOT REFLECTED IN THE REGULAR BOOKS OF THE APPELLANT AND HENCE, AN ADDITI ON OF RS. 1,00,000/- IS REQUIRED TO BE MADE IN THE HANDS OF THE APPELLANT IN RESPECT OF SALES CONSIDERATION OF FLAT NO.; A- 103, SOLITAIRE APARTMENT. AS REGARDS, THE BALANCE P AYMENT OF RS. 1;,00,56,900/- (RS. 1,26,86,900 - RS. 26,30,000) RECEIVED IN CASH AFTER 31-03-2008, I HOLD THAT THE SAME IS THE UNACCOUNTED RECEIPTS OF THE COMPANY, BRIJWAS I DEVELOPERS PVT. LTD. AND THE SAME NEEDS TO BE TAXED IN THE HANDS OF THE COMPANY IN THE RESPECTIVE YEAR AS PER THE ACCOUNTING METHOD ADOPTED BY THE COMPANY. NOW AS REGARDS, THE COST OF IMPROVEMENT OF RS. 8,23 ,600/- CLAIMED BY THE APPELLANT, IT IS APPARENT THAT THE SAME IS NON-GENUINE SINCE T HE APPELLANT NEVER OBTAINED THE POSSESSION OF THE SAID FLAT AND HENCE, THERE IS NO QUESTION OF INCURRING ANY COST OF IMPROVEMENT THEREIN. THE SAID EXPENSES HAVE BEEN CL AIMED BY THE APPELLANT ONLY TO ITA NOS.2779 A-11 & 55-A-12 ASST. YEAR 2008-09 10 LOWER DOWN ITS SHORT TERM CAPITAL GAIN AND FOR WHIC H ONLY SELF MADE VOUCHERS WERE PRODUCED BEFORE THE AO AND THE ENTIRE PAYMENT THERE OF HAVE ALSO BEEN MADE IN CASH, ACCORDINGLY, I HOLD THAT THE APPELLANT IS NOT ENTITLED TO CLAIM ANY COST OF IMPROVEMENT IN RESPECT OF THE SAID FLAT. THEREFORE, THE SHORT TERM CAPITAL GAIN IN RESPECT OF SALE OF FLAT IN THE HANDS OF THE APPELLA NT WOULD WORK OUT AS FOLLOWS. CONSIDERATION OF FLAT AS SHOWN BY THE APPELLANT 25 ,30,000 ADDITION AS PER PAGE 6 OF ANNEXURE B1-19 1,00,000 26,30,000 LESS : COST OF ACQUISITION 15,38,000 COST OF IMPROVEMENT NIL SHORT TERM CAPITAL GAINS 10,9 2,000 THE ASSESSING OFFICER IS DIRECTED TO TAX THE ABOVE SHORT TERM CAPITAL GAIN IN THE HANDS OF APPELLANT AND REMAINING UNACCOUNTED RECEIP T IS TO BE CONSIDERED IN THE HANDS OF THE COMPANY WHO ACTUALLY RECEIVED THE AMOU NT. IN THE RESULT, THE APPEAL OF THE APPELLANT IS PARTL Y ALLOWED. 13. WE, THEREFORE, ARE OF THE VIEW THAT THE DISCLOS URE OF RS.15 CRORES INCLUDED THE ON MONEY OF RS.1,01,56,900/- MADE TO BRIJWASI DEVELOPERS PVT. LTD. RELATING TO THE FLAT AT A-103, SATAIRE APARTMENT WHICH IS EVIDENT FROM THE CERTIFICATE GIVEN BY THE COMPANY, BRIJWASI DEVELOPERS PVT. LTD. THERE IS NO DISPUTE TO THIS FA CT THAT THE IMPUGNED AMOUNT OF RS.1,00,56,900/- HAS ALREADY BEE N OFFERED TO TAX BY BRIJWASI DEVELOPERS PVT. LTD. AS THE SAME WERE F OUND IN THE LOOSE PAPERS IMPOUNDED AND AS SUCH THE TOTAL SALE CONSIDE RATION OF RS.1,26,86,900/- HAS BEEN OFFERED TO TAX BY ASSESSE E AT RS.26,30,000/- AND BRIJWASI DEVELOPERS PVT. LTD. AT RS.1,00,56,900/-, LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION. WE FIN D NO REASON TO CALL FOR ANY INTERFERENCE IN THE ORDER OF LD. CIT(A) AND WE UPHOLD THE SAME. ACCORDINGLY, THIS GROUND OF REVENUE IS DISMIS SED. ITA NOS.2779 A-11 & 55-A-12 ASST. YEAR 2008-09 11 14. IN THE RESULT, BOTH THE APPEALS FILED BY THE AS SESSEE AND THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JULY, 2016 SD/- SD/- (S. S. GODARA) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 27/7/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 26 /07/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 27/07/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 27/7/2016 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: