SAI ASHRAY DEVELOPERS PVT. LTD., MUMBAI V. DCIT CC-6(2), MUMBAI

ITA 2967/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3080 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2013-2014
• Appeal Filed On: 07-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRASHANT KUMAR GUPTA
• Keywords: Unexplained cash credit; Business income; Business expenditure; Loose papers; Corroborative evidences
• Section: 40A(3); 201; 13; 153C; 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENT AND SHRI S. RIFA UR RAHMAN, ACCOUNTANT MEMBER IT A NO. 2967 /MUM./2019 ( ASSESSMENT YEAR : 20 13 14 ) SAI ASHRAY DEVELOPERS PVT. LTD. A/201, RAJPIPLA OPP. STANDARD CHARTERED BANK SANTACRUZ (W), MUMBAI 400 054 PAN AAQCS4670P . APPELLANT V/S DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 6(2), MUMBAI . RESPONDENT ITA NO. 2891 /MUM./2019 ( ASSESSMENT YEAR : 2013 14 ) DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 6(2), MUMBAI . APPELLANT V/S SAI ASHRAY DEVELOPERS PVT. LTD. A/201, RAJPIPLA OPP. STANDARD CHARTERED BANK SANTACRUZ (W), MUMBAI 400 054 PAN AAQCS4670P . RESPONDENT ITA NO.2968/MUM./2019 ( ASSESSMENT YEAR : 2015 16 ) SAI ASHRAY DEVELOPERS PVT. LTD. A/201, RAJPIPLA OPP. STANDARD CHARTERED BANK SANTACRUZ (W), MUMBAI 400 054 PAN AAQCS4670P . APPELLANT V/S DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 6(2), MUMBAI . RESPONDENT 2 SAI ASHRAY DEVELOPERS PVT. LTD. ITA NO.28 92 /MUM./2019 ( ASSESSMENT YEAR : 2015 16 ) DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 6(2), MUMBAI . APPELLANT V/S SAI ASHRAY DEVELOPERS PVT. LTD. A/201, RAJPIPLA OPP. STANDARD CHARTERED BANK SANTACRUZ (W), MUMBAI 400 054 PAN AAQCS4670P . RESPONDENT ITA NO.2969/MUM./2019 ( ASSESSMENT YEAR : 2016 17 ) SAI ASHRAY DEVELOPERS PVT. LTD. A/201, RAJPIPLA OPP. STANDARD CHARTERED BANK SANTACRUZ (W), MUMBAI 400 054 PAN AAQCS4670P . APPELLANT V/S DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 6(2), MUMBAI . RESPONDENT ASSESSEE BY : SHRI VIJAY MEHTA REVENUE BY : SHRI PRASHANT KUMAR GUPTA DATE OF HEARING 2 9 . 0 4 .202 1 DATE OF ORDER 11.06.2021 O R D E R PER S. RIFAUR RAHMAN, A.M. THE AFORESAID CROSS APPEAL S FOR THE ASSESSMENT YEAR 2013 14 AND 2015 16 AND AN APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2016 17. ALL THESE APPEALS HAVE BEEN FILED BY EITHER PARTIES 3 SAI ASHRAY DEVELOPERS PVT. LTD. CHALLENGING SEPARATE ORDERS OF EVEN DATE 12 TH FEBRUARY 2019, PASSED BY THE LEARNED CIT(A) 54, MUM BAI. 2. THE BRIEF FACTS OF THE CASE ARE, THE ASSESSEE IS ENGAGED IN THE BUSINESS OF CONSTRUCTION. THE SE APPEALS FILED BEFORE US INVOLVES AROUND THE PROJECT UNDERTAKEN BY THE ASSESSEE CALLED PRASADAM AND THE ISSUE INVOLVED RELATING TO ON MONEY RECEIVED IN THE ABOVE SAID PROJECT AFTER A SEARCH OPERATION CONDUCTED UNDER SECTION 132 OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) WAS CONDUCTED IN THE AHUJA GROUP OF CASES ON 25 TH JUNE 2015 , AND INCRIMINATING DATA IN THE FORM OF LOOSE PAPERS AND DIGITAL FORM RELATING TO THE TAX EVASION WERE FOUND AND SEIZED. THE PREMISES OF SHRI SUNIL CHOWDHARY, DRIVER OF SHRI JAGDISH AHUJA (PROMOTER OF THE GROUP) W ERE ALSO SEARCHED AND PARALLEL BOOKS OF ACCO UNT OF THE AHUJA GROUP WERE FOUND IN HIS PREMISES. THE ANALYSIS OF THE DATA FOUND WAS CONFRONTED TO THE PROMOTER MR . JAGDISH AHUJA , WHO HAD ADMITTED TO RECEIVING ON MONEY IN VARIOUS PROJECTS UNDERTAKEN BY THE GROUP. ACCORDINGLY, NOTICE UNDER SECTION 153C O F THE ACT WAS ISSUED TO THE ASSESSEE ON THE BASIS OF THE DATA FOUND DURING THE SEARCH. MR . JAGDISH AHUJA, PROMOTER OF THE GROUP HAS CLEARLY ADMITTED TO RECEIVING ON MONEY WHICH WAS A PART OF THE PARALLEL BOOKS OF ACCOUNT MAINTAINED BY HIM. ON THE BASIS OF THE STATEMENT AND THE CORROBORATIVE EVIDENCES FOUND DURING THE SEARCH, THE ASSESSING OFFICER ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE 4 SAI ASHRAY DEVELOPERS PVT. LTD. PROPOSING TO MAKE AN ADDITION OF THE ON MONEY RECEIVED. THE ASSESSING OFFICER LISTED THE RECEIPT OF YEAR WISE ON MONEY R ECEIVED BY THE ASSESSEE COMPANY ARE LISTED BELOW: PROJECT NAME ASST. YEAR AMOUNT PRASADAM 2012 13 29,00,001 PRASADAM 2013 14 33,10,34,600 PRASADAM 2014 15 6,68,00,000 PRASADAM 2015 16 25,91,94,000 PRASADAM 2016 17 1,64,800 TOTAL: 66,00,93,401 3. IN RESPONSE TO THE SHOW CAUSE NOTICE, THE ASSESSEE REPLIED THAT THE PROJECT PRASADAM WAS AT A VERY INITIAL STAGE AND THERE IS HARDLY ANY CONSTRUCTION COST WHICH WAS INCURRED. SINCE IT WAS IN AN INITIAL STAGE, THERE IS NO QUESTION OF TAXING ANY INCOME. FU RTHER , IT WAS SUBMITTED WITHOUT PREJUDICE PLEA THAT IN THE EVENT OF TAXING THE CA S H SALES FOR THE MONEY RECEIVED DURING THIS ASSESSMENT YEAR AS AN ON MONEY, THE ENTIRE AMOUNT OF CASH SALES COULD NOT BE BROUGHT TO TAX , BUT ONLY THE NET INCOME THEREFROM. ALS O IT WAS SUBMITTED THAT IT SHOULD BE TAXED ONLY IN THE YEAR IN WHICH THE PROJECT IS COMPLETED OR WHEN THE SALE IS IN RESPECT OF THE SAID TRANSACTIONS ARE OFFERED TO TAX. THE ASSESSING OFFICER REJECTED THE SUBMISSIONS OF THE ASSESSEE AND ACCORDING TO THE AS SESSING OFFICER THE INCOME WHICH WAS PROPOSED TO BE TAXED WAS NOT SOMETHING WHICH WAS RECORDED IN THE BOOKS OF 5 SAI ASHRAY DEVELOPERS PVT. LTD. ACCOUNT OF THE ASSESSEE. THIS WOULD NOT HAVE OFFERED TO TAX, HAD THE SEARCH NOT TAKEN PLACE. FURTHER HE OBSERVED THAT THE ASSESSEE HAD NOT GIVEN THE DETAILS OF THE PERSON WHO HAD ACTUALLY PAID THE ON MONEY LIKE THE NAME, PAN, ADDRESS AND CONFIRMATION FROM THOSE PARTIES. ACCORDINGLY , THE ASSESSING OFFICER HELD THAT THE ON MONEY RECEIVED HAS TO BE TAXED UNDER SECTION 68 OF THE ACT. ACCORDINGLY, HE MA DE AN ADDITION BASED ON THE ABOVE CHART IN THE RESPECTIVE ASSESSMENT YEARS. AGGRIEVED WITH THE ABOVE ADDITIONS, ASSESSEE FILED APPEALS BEFORE THE FIRST APPELLATE AUTHORITY. BEFORE THE LEARNED CIT(A) , THE ASSESSEE FILED DETAILED SUBMISSIONS FOR OBJECTING FO R MAKING ADDITION OF TOTAL ON MONEY RECEIVED DURING THE ASSESSMENT YEAR AND MAKING A SUBMISSION THAT ONLY NET PROFIT SHOULD BE BROUGHT TO TAX ON TOTAL ON MONEY RECEIVED. FURTHER IT WAS SUBMITTED THAT ASSESSEE AND OTHER GROUP COMPANIES REPRESENTED BEFORE THE S ETTLEMENT C OMMISSION THE ISSUE OF DETERMINING THE PERCENTAGE OF PROFIT ON THE ON MONEY, WHICH WAS ACCEPTED BY SETTLEMENT C OMMISSION TO TAX THE PROFIT ELEMENT ON THE RECEIPT OF ON MONEY @ 12% AND ALSO MADE A PLEA THAT THE INCOME SHOULD BE TAXED IN THE Y EAR OF REALISATION OF THE PROFIT. 4. AFTER CONSIDERING THE DETAILED SUBMISSIONS OF THE ASSESSEE, THE LEARNED CIT(A) OBSERVED THAT IT IS ACCEPTED AND ADMITTED FACTS THAT ASSESSEE HAS RECEIVED ON MONEY IN THE PROJECTS UNDERTAKEN BY IT. HOWEVER , HE OBSERVED THAT THE ASSESSEE GROUP COMPANIES HAD ALSO 6 SAI ASHRAY DEVELOPERS PVT. LTD. OFFERED THE ON MONEY RECEIVED BEFORE SETTLEMENT COMMISSION WHERE FIVE ENTITIES OF THE GROUP MADE AN APPLICATION. HE OBSERVED THAT THIS ISSUE WAS PRESENT IN THREE CONCERNS OF THE AHUJA A GROUP WHICH AP PROACHED THE S ETTLEMENT C OMMISSION AND HAD OFFERED 12% OF THE ON MONEY AS INCOME AND THE SAME WAS ACCEPTED BY THE S ETTLEMENT C OMMISSION. HE OBSERVED THAT THE CONTENTION OF THE ASSESSEE THAT THE MONEY OF THE ENTIRE GROUP INCLUDING THAT OF THE ASSESSEE WAS O FFERED BEFORE THE S ETTLEMENT C OMMISSION, WHICH WAS EVIDENT FROM THE RECORD SUBMITTED. HOWEVER , HE REJECTED THE ABOVE CONTENTION AND OBSERVED THAT THE INCOME OF THE ASSESSEE WAS NEVER OFFERED BEFORE S ETTLEMENT C OMMISSION AND OBSERVED THAT THE INCOME HAS TO BE TAXED IN THE HANDS OF THE RIGHT PERSON AND NOT ANY OTHER PERSON. FURTHER , THE ASSESSEE SUBMITTED BEFORE THE LEARNED CIT(A) THAT THE OFFER @ 12% OF MONEY RECEIVED WAS ACCEPTED BY S ETTLEMENT C OMMISSION, THE SAME HAS TO BE APPLIED IN THE CASE OF THE ASSESSEE ALSO. THE LEARNED CIT(A) REJECTED THIS SUBMISSION ALSO AND OBSERVED THAT THE ACCEPTANCE OF SETTLEMENT C OMMISSION OF ON MONEY RECEIVED AS REASONABLE IS RELEVANT TO THE FACTS PERTAINING TO THE ASSESSEE BEFORE IT, THE SAME CANNOT BE BLINDLY APPLIED TO ALL OTHER CASES. HE ALSO OBSERVED THAT AT BEST THE DECISION OF THE S ETTLEMENT C OMMISSION CAN ONLY BE A GUIDING FACTOR AND CANNOT BE BINDING IN OTHER CASES. 7 SAI ASHRAY DEVELOPERS PVT. LTD. 5. FURTHER, THE ASSESSEE SUBMITTED BEFORE THE LEARNED CIT(A) THAT THE ON MONEY SHOULD BE TAXED IN THE YEAR OF COMPLETION OF THE PROJECT OR THE YEAR IN WHICH THE CORRESPONDING SALES ARE SHOWN. THE LEARNED CIT(A) OBSERVED THAT THE ASSESSEE HAD ADMITTED TO RECEIVING THE ON MONEY, NO FURTHER DETAILS A S TO THE FLAT NUMBERS FOR WHICH THE ON MONEY RECEIVED OR PARTIES WHO HAVE MADE THE PAYMENT IN SPITE OF A SPECIFIC QUERY IN THIS CASE BY THE ASSESSING OFFICER IT WAS NOT FURNISHED. HE OBSERVED THAT EVEN DURING APPELLATE PROCEEDINGS, THE ASSESSEE COULD NOT FURNISH ANY DETAILS REGARDING THIS AMOUNT AND THIS IS NOT FORMING THE PART OF THE REGULAR BOOKS OF ACCOUNTS NOR THE EXACT SOURCE IS PROVED BY THE ASSESSEE. FURTHER , HE OBSERVED THAT IF THE ASSESSEE TAKES INORDINATE TIME TO COMPLETE THE PROJECT OR ABANDONS THE PROJECT AND NEVER COMPLETES IT, THE MONEY RECEIVED DURING THE YEAR WILL NEVER BE BROUGHT TO TAX. THE LEARNED CIT(A) OBSERVED THAT ASSESSEE RELIED ON THE DECISION OF THE TRIBUNAL , AHMADABAD BENCH, IN M/S . DR C ONSTRUCTION V/S ITO , ITA NO.2735/A HD. /2010. THE LEARNED CIT(A) DISTINGUISH THE FACTS IN THE ABOVE CASE AND OBSERVED THAT IN THAT CASE ASSESSEE HAD DECLARED THE LIST OF THE BUY E RS FROM WHOM ON MONEY WAS RECEIVED. HE OBSERVED THAT IN THIS CASE THE ON MONEY RECEIVED COULD BE IDENTIFIED FROM THE NAME OF THE PROJECT AND THE ASSESSEE COULD NOT FURNISH THE COMPLETE DETAILS OF THE BUYERS OR CONFIRMATIONS FROM THEM BOTH AT THE ASSESSMENT AND APPELLATE STAGES. ACCORDINGLY, HE HELD THAT THE AMOUNT OF ON MONEY HAS TO BE TAXED IN 8 SAI ASHRAY DEVELOPERS PVT. LTD. THE YEAR OF RECEIPT WHICH IS THE RELEVANT ASSESSMENT YEAR WHICH IS UNDER CONSIDERATION. 6. FURTHER, IT IS SUBMITTED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) THAT THERE IS NO DISPUTE ABOUT THE FACT THAT THE INCOME BROUGHT TO TAX IS ON MONEY RECEIPT FROM SALE OF FLATS, THE DEPARTMENT ALSO HA D REFERRED TO THIS INCOME AS ON MONEY. THEREFORE, THE SAME HAS TO BE BROUGHT TO TAX AS BUSINESS RECEIPT AND NOT UNDER SECTION 68 OF THE ACT AS UNEXPLAINED CASH CREDIT. THE LEARNED CIT(A) OBSERVED THAT ASSESSING OFFICER ALSO REFER TO THIS INCOME AS ON MONEY /CASH SALES IN THE ASSESSMENT ORDER BUT HAS ULTIMATELY BROUGHT TO TAX AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT . H E REFERRED THE MATTER TO THE ASSESSING OFFICER VIDE LETTER DATED 2 ND JANUARY 2019 , DIRECTING HIM TO VERIFY THE SEIZED MATERIAL AND CONFIRM WHETHER THE CONTENTION OF THE ASSESSEE I .E., TREATMENT OF THIS INCOME AS ON MONEY AND , THEREFORE , AS BUSINESS RECEIPT IS CORRECT OR NOT. IN RESPONSE, THE ASSESSING OFFICER, VIDE HIS REPORT DATED 10 TH JANUARY 2019 , BY REFERENCE TO THE LIST OF PARTIES SUBMITTED BY THE ASSESSEE FROM WHOM ON MONEY IS RECEIVED AND SUBMITTED THAT THE PAN IS NOT MENTIONED IN SOME CASES AND NO LETTERS FROM THE SAID PERSON S WAS FILED CONFIRMING THAT THEY HAD GIVEN ON MONEY TO THE ASSESSEE. SINCE THE ASSESSEE HAD FAILED TO SATISFACTORILY EXPLAINED THE NATURE AND SOURCE OF CREDITS WITH EVIDENCES, THE ASSESSING OFFICER STATED THAT THE AMOUNTS WERE 9 SAI ASHRAY DEVELOPERS PVT. LTD. CORRECTLY ADDED UNDER SECTION 68 AND NOT AS BUSINESS RECEIPTS. THE LEARNED CIT(A) OB SERVED THAT THE ASSESSING OFFICER S REPORT IS COMPLETELY SILENT ON THE MAIN ISSUE I .E., THE STATUS OF THESE RECEIPTS AS PER THE SEIZED MATERIAL. HE OBSERVED THAT THERE IS NO MENTION OF THE SEIZED MATERIAL AND THE ASSESSING OFFICER S REPORT, ON THE OTHER HA ND, THE ASSESSEE WAS ALSO CONTENDING ALL ALONG THAT THE RECEIPTS ARE ON ACCOUNT OF ON MONEY AND IT WAS RECORDED AS SUCH IN THE PARALLEL BOOKS OF ACCOUNT. HE OBSERVED THAT IN SOME OF THE CASES OF THE GROUP, 12% OF THE SAME WAS OFFERED AS INCOME BEFORE THE S ETTLEMENT COMMISSION AND THE SAME WAS ACCEPTED. FROM THE FACTS AS EMERGING FROM THE MATERIAL ON RECORD AND THE ASSESSEES AVERMENTS, IT COULD BE CONCLUDED THAT THE ENTRIES MADE IN THE PARALLEL BOOKS OF ACCOUNT ARE REGARDING THE ON MONEY RECEIPTS BY THE ASS ESSEE. THE SOURCE IS EXPLAINED AS BEING CASH SALES FROM THE RESPECTIVE PROJECTS, THEREFORE, HE HELD THAT IT HAS TO BE TREATED AS BUSINESS RECEIPTS AND NOT CASH CREDIT UNDER SECTION 68 OF THE ACT. 7. THE LEARNED CIT(A) OBSERVED THAT NEXT ISSUE IS THE QUESTION OF THE PERCENTAGE OF MONEY WHICH HAS TO BE BROUGHT TO TAX. HE O BSERVED THAT IT IS THE ASSESSEES CONTENTION THAT THE ENTIRE ON MONEY CANNOT BE TAXED BECAUSE OF SUBSTANTIAL AMOUNT . I N FACT , THE ENTIRE AMOUNT WAS INCURRED AS EXPENDITURE. THE MATERIAL EVIDENCING THE RECEIPT OF ON MONEY OR THE PARALLEL BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE 10 SAI ASHRAY DEVELOPERS PVT. LTD. GROUP. THESE PARALLEL BOOKS OF ACCOUNTS ALSO HAVE A RECORD OF CASH EXPENSES. HE OBSERVED THAT THE N ET RESULT AS PER THESE PARALLEL BOOKS OF ACCOUNT IS A LOSS. ACCORDING TO THE LEARNED CIT(A), THE CASH EXPENSES IF EXCEEDING 20,000 , H AS TO BE DISALLOWED UNDER SECTION 40A(3) OF THE ACT , BUT THE DETAILS OF EXACT EXPENSES WAS NOT FURNISHED. HE OBSERVED THA T VARIOUS C OURTS HAVE HELD THAT IN A CASE OF RECEIPT OF ON MONEY, NOT THE ENTIRE ON MONEY CAN BE TAXED , BUT IT IS ONLY A PERCENTAGE OF PROFIT THAT CAN BE TAXED. HE CAME TO CONCLUSION BY RELYING ON THE DECISIONS OF HONBLE GUJARATA HIGH COURT IN THE CASE OF PANNA CORPORATION ITA NO. 323 AND 325 OF 2000 , HON'BLE JURISDICTIONAL HIGH COURT AND THE TRIBUNAL, T HE LEARNED CIT(A) HELD THAT IN VIEW OF THE ABOVE JUDGMENTS INCLUDING THAT OF THE BINDING JUDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT , IT IS HELD THAT THE ENDS OF JUSTICE WOULD BE MADE IF THE ADDITION ON ACCOUNT OF ON MONEY IS RESTRICTED TO 25% OF THE ON MONEY RECEIVED. ACCORDINGLY , HE PARTLY ALLOWED THE APPEAL FILED BY THE ASSESSEE. 8. AGGRIEVED WITH THE ABOVE ORDER, BOTH R EVENUE AS WELL AS ASSESSEE ARE IN APPEAL BEFORE US RAISING FOLLOWING GROUNDS OF APPEAL: GROUNDS RAISED BY THE ASSESSEE IN ITA NO.2967/MUM./2019 A.Y. 2013 - 14 1. THE LD. CI T(A) ERRED IN CONFIRMING THE ADDITION OF RS.4,46,24,219 / - BEING 25% OF ON MONEY OF RS.17 ,84,96,880/ - WITHOUT APPRECIATING THAT THE INCOME, IF ANY, QUANTIFIED ON THE AMOUNT OF ON MONEY OUG HT TO BE TAXED ONLY IN THE YEAR S IN WHICH PROJECT HAS COMPLETED CONSTRUCTION IN ACCORDANCE TO THE 11 SAI ASHRAY DEVELOPERS PVT. LTD. CONDITIONS PRESCRIBED AS PER THE REVISED GUIDANCE NOTE OF 2012 ISSUED BY LCAL AN D THUS, THE INCOME ESTIMATED @25% OF ON MONEY AND TAXED IN THE YEAR OF RECEIPT IS UNJUSTIFIED AND LIABLE TO BE DELETED. 2. THE LD. CLT(A) FAILED TO APPRECIATE THAT RELEVANT WORKING AS PER THE CONDITIONS PRESCRIBED IN THE REVISED GUIDANCE NOTE OF 2012 ISS UED BY ICAI WAS DULY FILED BEFORE THE LD. CLT(A) AND ACCORDING TO WHICH, THE INCOME, IF ANY, QUANTIFIED IN RESPECT OF ON MONEY COULD NOT BE TAXED IN THE RELEVANT YEAR AS THE CONDITIONS AND PARAMETERS PRESCRIBED IN REVISED GUIDANCE NOTE OF 2012 ISSUED BY IC AI FOR TAXING INCOME FROM PROJECT WERE NOT SATISFIED IN THE RELEVANT YEAR AND HENCE, WHATEVER INCOME QUANTIFIED FROM THE CONSTRUCTION PROJECT OUGHT TO BE TAXED IN ACCORDANCE WITH THE REVISED GUIDANCE NOTE OF2012 ISSUED BY LCAL AND THUS, THE INCOME ESTIMATE D FROM ON MONEY AND TAXED IN THE YEAR OF RECEIPT IS UNJUSTIFIED AND LIABLE TO BE DELETED. 3. WITHOUT PREJUDICE TO THE ABOVE, THE LD. CIT(A) HAS ERRED IN ESTIMATING THE INCOME @25% OF ON MONEY RECEIVED WITHOUT APPRECIATING THE FACT THAT AS PER PARALLEL BOOKS OF ACCOUNT, THE OVERALL GROUP HAD INCURRED HUGE LOSS AND INCOME FROM ON MONEY WAS ESTIMATED @12% IN OTHER GROUP ENTITIES BEFORE THE HON'BLE SETTLEMENT COMMISSION AND THE SAME WAS ACCEPTED @12% AND HENCE, THE INCOME FROM ON MONEY MAY BE ESTIMATED @ 12% AS AGAINST ESTIMATED @25% BY THE CIT(A) AND ACCORDINGLY, RELIEF MAY BE GIVEN TO THE APPELLANT. GROUNDS RAISED BY THE REVENUE IN ITA NO.2891/MUM./2019 A.Y. 2013 - 14 1. 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(AL ERRED IN HOLDING THAT THE CASH RECEIVED BY THE ASSESSEE WAS IN THE NATURE OF BUSINESS RECEIPT AND COULD NOT BE TREATED AS INCOME U / S.68 WHEN THE ASSESSEE DID NOT DISCHARGE ITS ONUS AND THE IDENTITY, GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE PARTIES HAVE REMAINED UNEXPLAINED ?' 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(AL ERRED IN RESTRICTING THE DISALLOWANCE @ 25% OF THE CASH RECEIVED WHEN NO EVIDENCE OF EXPENDITURE OF BALANCE 75% OF THE CASH WAS PRODUCED BY THE ASSESSEE AND THEREFORE GENUINENESS AND ALLOWABILITY OF THE SAME COULD NOT BE EXAMINED?' GROUNDS RAISED BY THE ASSESSEE IN ITA NO.29 68 /MUM./2019 A.Y. 201 5 - 1 6 12 SAI ASHRAY DEVELOPERS PVT. LTD. 1. THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.82,75, 000/ - BEING 25% OF ON MONEY OF RS.3,31,00,000 / - WITHOUT APPRECIATING THAT THE INCOME, IF ANY, QUANTIFIED ON THE AMOUNT OF ON MONEY OUGHT TO BE TAXED ONLY IN THE YEAR/S IN WHICH PROJECT HAS COMPLETED CONSTRUCTION IN ACCORDANCE TO THE CONDITIONS P RESCRIBED AS PER THE REVISED GUIDANCE NOTE OF 2012 ISSUED BY ICAI AND THUS, THE INCOME ESTIMATED @25% OF ON MONEY AND TAXED IN THE YEAR OF RECEIPT IS UNJUSTIFIED AND LIABLE TO BE DELETED. 2. THE LD. C I T(A) FAILED TO APPRECIATE THAT RELEVANT WORKING AS PER THE CONDITIONS PRESCRIBED IN THE REVISED GUI DANCE NOTE OF 2012 ISSUED BY I CA I WAS DULY FILED BEFORE THE LD. CLT(A) AND ACCORDING TO WHICH, THE INCOME, IF ANY, QUANTIFIED IN RESPECT OF ON MONEY COULD NOT BE TAXED IN THE RELEVANT YEAR AS THE CONDITIONS AND PARAMETERS PRESCRIBED IN REVISED GUIDANCE NOT E OF 2012 ISSUED BY I CA I FOR TAXING INCOME FROM PROJECT WERE NOT SATISFIED IN THE RELEVANT YEAR AND HENCE, WHATEVER INCOME QUANTIFIED FROM THE CONSTRUCTION PROJECT OUGHT TO BE TAXED IN ACCORDANCE WITH THE REVISED GUIDANCE NOTE OF 2012 ISSUED BY I CA I AND TH US, THE INCOME ESTIMATED FROM ON MONEY AND TAXED IN THE YEAR OF RECEIPT IS UNJUSTIFIED AND LIABLE TO BE DELETED. 3. WITHOUT PREJUDICE TO THE ABOVE, THE LD. CIT(A) HAS ERRED IN ESTIMATING THE INCOME @25% OF ON MONEY RECEIVED WITHOUT APPRECIATING THE FACT THAT AS PER PARALLEL BOOKS OF ACCOUNT, THE GROUP HAD INCURRED OVERALL HUGE LOSS AND INCOME FROM ON MONEY WAS ESTIMATED @12% I N OTHER GROUP ENTITIES BEFORE THE HON'BLE SETTLEMENT COMMISSION ~HE SAME WAS ACCEPTED @12% AND HENCE, THE INCOME FROM ON MONEY MAY BE ESTIMATED @12% AS AGAINST ESTIMATED @25% BY THE LD. CIT(A) AND ACCORDINGLY, RELIEF MAY BE GIVEN TO THE APPELLANT. ADDITION OF RS.L,07,703/ - AS INCOME FROM INFLATION OF EXPENSES 4. THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 1 ,07,703/ - BEING INCOME @25% OF INFLATION OF EXPENSES OF RS.4,30,810/ - WITHOUT APPRECIATING THAT THE AO HAS FAILED TO GIVE DETAILS OF BIFURCATION OF INFLATION OF EXPENSES AS PER SEIZED RECORDS AND CORRELATION OF THE SAME WITH THE EXPENSES CLAIMED IN THE PROFIT AND LOSS ACCOUNT AND HENCE, THE ADDITION CONFIRMED @25% OF INFLATI ON OF EXPENSES IS WITHOUT ANY JUSTIFICATION AND LIABLE TO BE DELETED. 5. WITHOUT PREJUDICE TO THE ABOVE AND WITHOUT ACCEPTING AND ADMITTING, THE LD. CIT(A) FAILED TO APPRECIATE THAT AS PER PARALLEL BOOKS OF ACCOUNT, THE GROUP HAD OVERALL INCURRED HUGE LO SS AND INCOME FROM INFLATION OF EXPENSE WAS TREATED AS PART OF UNACCOUNTED TURNOVER AND ESTIMATED INCOME THEREOF @12% IN 13 SAI ASHRAY DEVELOPERS PVT. LTD. OTHER GROUP ENTITIES BEFORE THE HON'BLE SETTLEMENT COMMISSION AND THE SETTLEMENT COMMISSION ACCEPTED THE SAME @12% AND HENCE, THE INCOM E FROM INFLATION OF EXPENSES MAY BE ESTIMATED @12% AS AGAINST ESTIMATED @25% BY THE LD. CIT(A) AND ACCORDINGLY, RELIEF MAY BE GIVEN TO THE APPELLANT . GROUNDS RAISED BY THE REVENUE IN ITA NO. 2892 /MUM./2019 A.Y. 201 5 - 1 6 1. 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN HOLDING THAT THE CASH RECEIVED BY THE ASSESSEE WAS IN THE NATURE OF BUSINESS RECEIPT AND COULD NOT BE TREATED AS INCOME U/ S.68 WHEN THE ASSESSEE DID NOT DISCHARGE - ITS ONUS AND THE IDENTITY, GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE PARTIES HAVE REMAINED UNEXPLAINED ?' 2. 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN RESTRICTING THE DISALLOWANCE @ 25% OF THE CASH RECEIVE D WHEN NO EVIDENCE OF EXPENDITURE OF BALANCE 75% OF THE CASH WAS PRODUCED BY THE ASSESSEE AND THEREFORE GENUINENESS AND ALLOWABILITY OF THE SAME COULD NOT BE EXAMINED?' 3. 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN RESTRICTING THE DISALLOWANCE @ 25% OF INFLATED EXPENSES WHEN NO EVIDENCE OF EXPENDITURE OF BALANCE 75% OF THE CASH WAS PRODUCED BY THE ASSESSEE AND THEREFORE GENUINENESS AND ALLOWABILITY OF THE SAME COULD NOT BE EXAMINED?' 4. 'WHETHER ON THE FACTS AND C IRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN HOLDING. THAT PROVISO TO SEC.115BBE CAME INTO EFFECT FROM 01.04.2017 T HEREFORE, BROUGHT FORWARD BUSINESS LOSS WAS ALLOWABLE WHEN THE WORDS 'OR SET OFF OF ANY LOSS' INSERTED IN SEC.115BBE BY THE FINANCE ACT, 2016 W.E.F. 01.04.2017 WERE CLARIFICATORY IN NATURE AS APPARENT FROM THE EXPLANATORY NOTES TO FINANCE BILL, 2016?' GROUNDS RAISED BY THE ASSESSEE IN ITA NO. 2969 /MUM./2019 A.Y. 201 6 - 17 1. THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 41,200/ - BEING 25% OF ON MONEY OF RS.1,64,800 / - WITHOUT APPRECIATING THAT THE INCOME, IF ANY, QUANTIFIED ON THE AMOUNT OF ON MONEY OUGHT TO BE TAXED ONLY IN THE YEAR/S IN WHICH PROJECT HAS COMPLETED CON STRUCTION IN ACCORDANCE TO THE CONDITIONS PRESCRIBED AS PER THE REVISED GUIDANCE NOTE OF 2012 ISSUED BY ICAI AND THUS, 14 SAI ASHRAY DEVELOPERS PVT. LTD. THE INCOME ESTIMATED @25% OF ON MONEY AND TAXED IN THE YEAR OF RECEIPT IS UNJUSTIFIED AND LIABLE TO BE DELETED. 2. THE LD. CIT(A) FAIL ED TO APPRECIATE THAT RELEVANT WORKING AS PER THE CONDITIONS PRESCRIBED IN THE REVISED GUIDANCE NOTE OF 2012 ISSUED BY ICAI WAS DULY FILED BEFORE THE LD. CIT(A) AND ACCORDING TO WHICH, THE INCOME, IF ANY, QUANTIFIED IN RESPECT OF ON MONEY COULD NOT BE TAXE D IN THE RELEVANT YEAR AS THE CONDITIONS AND PARAMETERS PRESCRIBED IN REVISED GUIDANCE NOTE OF 2012 ISSUED BY ICAI FOR TAXING INCOME FROM PROJECT WERE NOT SATISFIED IN THE RELEVANT YEAR AND HENCE, WHATEVER INCOME QUANTIFIED FROM THE CONSTRUCTION PROJECT O UGHT TO BE TAXED IN ACCORDANCE WITH THE REVISED GUIDANCE NOTE OF 2012 ISSUED BY ICAI AND THUS, THE INCOME ESTIMATED FROM ON MONEY AND TAXED IN THE YEAR OF RECEIPT IS UNJUSTIFIED AND LIABLE TO BE DELETED. 3. WITHOUT PREJUDICE TO THE ABOVE, THE LD. CIT(A) HAS ERRED IN ESTIMATING THE INCOME @25% OF ON MONEY RECEIVED WITHOUT APPRECIATING THE FACT THAT AS PER PARALLEL BOOKS OF ACCOUNT, THE OVERALL GROUP HAD INCURRED HUGE LOSS AND INCOME FROM ON MONEY WAS ESTIMATED @12% IN OTHER GROUP ENTITIES BEFORE THE HON'B LE SETTLEMENT COMMISSION AND THE SAME WAS ACCEPTED @12% AND HENCE, THE INCOME FROM ON - MONEY MAY BE ESTIMATED @ 12% AS AGAINST ESTIMATED @ 25% BY THE LD. CIT(A) AND ACCORDINGLY, RELIEF MAY BE GIVEN TO THE APPELLANT. 9. BEFORE US LEARNED COUNSEL FOR THE ASSE SSEE SUBMITTED THAT THE GROUND S NO.1 AND 2 , RAISED BY THE ASSESSEE ARE RELATING TO YEAR OF TAXABILITY OF ON MONEY AND HE BROUGHT TO OUR NOTICE THE FINDINGS OF THE LEARNED CIT(A) IN HIS ORDER AT P ARA 4.8 AND SUBMITTED THAT THIS ISSUE IS COVERED BY THE ORDER OF C O ORDINATE BENCH IN THE CASE OF TULIP LAND AND DEVELOPERS P. LTD. V/S DCIT , ITA NO.2980, 3727/MUM . /2019 , DATED 10 TH FEBRUARY 2021, IT IS A DECISION IN THE CASE OF THE SISTER CONCERN OF THE ASSESSEE WHEREIN IT WAS HELD THAT ON MONEY HAS TO BE TAXED AS PER THE METHOD OF ACCOUNTING FOLLOWED BY THE ASSESSEE. WITH REGARD TO GROUND NO.3 , THE ADDITION ON ACCOUNT OF 25% OF THE ON 15 SAI ASHRAY DEVELOPERS PVT. LTD. MONEY SUSTAINED BY THE LEARNED CIT(A) IN HIS ORDER . H E SUBMITTED THAT THIS ISSUE ALSO COVERED BY THE ORDERS OF THE C O ORDINATE B ENCH IN M/S . BHALCHANDRA TRADING P . LTD. V/S DCIT , ITA NO.2977 2978/MUM . /2019 , DATED 25 TH FEBRUARY 2021) WHEREIN IT WAS HELD THAT THE ADDITION HAS TO BE UPHELD @ 12% OF THE ON MONEY BASED ON THE ORDER PASSED BY THE S ETTLEMENT C OMMISSION IN THE CASE OF GROUP COMPANIES OF THE ASSESSEE. 10. WITH REGARD TO OTHER APPEALS OF THE ASSESSEE IN ASSESSMENT YEAR 2015 16 AND 2016 17, HE SUBMITTED THAT WITH REGARD TO GROUND S NO.1, 2 AND 3, THE ISSUES ARE COMMON TO THE ASSESSMENT YEAR 2013 - 14. WITH REGARD TO GROUND S NO.4 AND 5 RAISED BY THE ASSESSEE IN ASSESSMENT YEAR 2015 16, WHICH RELAT E TO THE ADDITION ON ACCOUNT OF INFLATION OF EXPENSES, HE SUBMITTED THAT THIS ISSUE ALSO COVERED BY THE ORDER OF THE COORDINATE BENCH IN THE CASE OF M/S . BHALCHANDRA TRADING P. L TD. (SUPRA) WH EREIN THE ADDITION WAS UPHELD @ 12% OF THE INFLATION OF EXPENSES FOLLOWING THE ORDER PASSED BY THE S ETTLEMENT C OMMISSION IN THE CASE OF GROUP CONCERNS OF THE ASSESSEE. 11. FURTHER, HE SUBMITTED WITH THE PERMISSION OF THE B ENCH THAT THE ISSUE IN THE DEPARTMENT APPEALS IN GROUND S NO. 1 AND 2 , ARE ALSO COVERED BY THE DECISION OF C O ORDINATE B ENCH IN TULIP LAND AND DEVELOPERS PVT. LTD. (SUPRA) WHEREIN THE ADDITION WAS UPHELD @ 12% OF ON MONEY FOLLOWING THE DECISION PASSED BY THE SETTLEMENT C OMMISSION 16 SAI ASHRAY DEVELOPERS PVT. LTD. IN THE CASE OF GROUP CONCERNS OF THE ASSESSEE. THE GROUND S RAISED BY THE R EVENUE ARE COMMON IN ASSESSMENT YEAR 2013 14 AND 2015 16 EXCEPT GROUND NO. 4 , IN ASSESSMENT YEAR 2015 16. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN CASE THE B ENCH DECIDE S THE ISSUE OF A DDITIONS UNDER SECTION 68 OF THE ACT AGAINST THE R EVENUE THEN THIS GROUND OF APPEAL WILL BECOMES ACADEMIC. 12. ON THE OTHER HAND , THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDERS PASSED BY THE LOWER AUTHORITIES AND AGREED THAT MOST OF THE GROUNDS ARE COVERED IN THE CASE OF TULIP LAND DEVELOPERS (SUPRA) AND BHALCHANDRA TRADING P. LTD. (SUPRA). HOWEVER, HE ARGUED THAT THE ISSUES IN THE APPEALS UNDER CONSIDERATION HA VE TO BE CONSIDERED INDEPENDENTLY. 13. CONSIDERED THE RIVAL SUBMISSIONS AND MATERIAL ON R ECORD. WE NOTED THAT IN THESE APPEALS THE ISSUE OF ON MONEY RECEIVED BY THE ASSESSEE IS PROVED BEYOND DOUBT FROM THE RECORDS FOUND DURING SEARCH PROCEEDINGS AND SUBSEQUENT ACCEPTANCE BY THE KEY PERSONAL OF THE AHUJA GROUP. THE ISSUE BEFORE US IS ONLY CONSI DERATION OF THE ABOVE SAID ON MONEY TO BE TAXED UNDER SECTION 68 OF THE ACT OR BASED ON THE FINDINGS OF THE LEARNED CIT(A) THAT RECEIPT OF ON MONEY HAS TO BE TAXED ONLY ON NET INCOME AND ESTIMATED NET INCOME @ 25% OF THE GROSS ON MONEY RECEIVED. WE NOTICE F ROM THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE ABOVE SAID ISSUES ARE ALREADY 17 SAI ASHRAY DEVELOPERS PVT. LTD. CONSIDERED BY THE C O ORDINATE B ENCH IN TULIP LAND AND DEVELOPERS (SUPRA) AND BHALCHANDRA TRADING P. LTD. (SUPRA) AND DECIDED THE ISSUE IN FAVOUR OF THE ASSES SEE IN THE APPEAL FILED BY THE ASSESSEE AND DISMISSED THE ISSUES RAISED BY THE R EVENUE. FOR THE SAKE OF CLARITY, IT IS REPRODUCED BELOW: BHALCHANDRA TRADING PVT. LTD. V/S DCIT ITA NO.2977 2978/MUM./2019 ORDER DATED 25.05.2021 7.1. WE HAVE HEARD LD. DR AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE LD. AO HAD PROCEEDED TO MAKE AN ADDITION U/S.68 OF THE ACT TOWARDS ON - MONEY RECEIVED BY THE ASSESSEE FOR SALE OF FLATS. IT WAS ALSO SUBMITTED BY THE ASSESSEE BEFORE THE LD. AO THAT THERE WERE CERTAIN UNACCOUNTED BUSINESS EXPENSES MADE BY THE ASSESSEE OUT OF THE ON - MONEY RECEIVED AND HENCE, ONLY PROFIT ELEMENT THEREON COULD BE ADDED AND NOT THE ENTIRE ON - MONEY RECEIPTS. WE FIND THAT THE LD. AO IGNORING THE ENTIRE CONTENTIONS OF THE ASSESSEE PROC EEDED TO TAX THE NET ON - MONEY RECEIVED OF RS.2,20,00,000/ - IN THE A.Y.2014 - 15 BY APPLYING THE PROVISIONS OF SECTION 68 AS UNEXPLAINED CASH CREDIT. THE LD. AO ALSO OBSERVED THAT ASSESSEE HAS NOT PROVIDED THE PARTY - WISE DETAILS OF ON - MONEY RECEIPT. THE DETAI LS OF ON - MONEY RECEIVED AND ON - MONEY REVERSAL FOR VARIOUS ASSESSMENT YEARS ARE TABULATED AS UNDER: - YEAR ON MONEY RECEIVED ON MONEY REVERSE NET ON MONEY 2009 - 10 5,70,67,250/ - 22,50,000/ - 5,48,17,250/ - 2010 - 11 2,52,54,500/ - 4,81,50,000/ - (2,28,95,500)/ - 2011 - 12 NIL 1,21,17,250/ - (1,21,17,250)/ - 2014 - 15 3,35,00,000/ - 1,15,00,000/ - 2,20,00,000/ - 2015 - 16 38,80,000/ - 65,00,000/ - (26,20,000)/ - TOTAL 11,97,01,750/ - 8,05,17,250/ - 3,91,84,500 7.2. WE FIND THAT THE ASSESSEES GROUP CONCERNS ALSO HAD OFFERED 12% OF ON - MONEY RECEIPTS AS ITS INCOME BEFORE THE HONBLE INCOME TAX SETTLEMENT COMMISSION. THE LD. CIT(A) CATEGORICALLY ADMITTED IN HIS ORDER THAT THE SAID RECEIPT REPRESENTS ON - MONEY RECEIV ED ON SALE OF FLATS FROM WHICH CERTAIN EXPENSES WERE ALSO INCURRED BY THE ASSESSEE AND HENCE, ONLY THE PROFIT ELEMENT THEREOF COULD BE BROUGHT TO TAX AND NOT THE ENTIRE ON - MONEY RECEIPTS. WE FIND THAT THE LD. CIT(A) ACCORDINGLY ESTIMATED THE 18 SAI ASHRAY DEVELOPERS PVT. LTD. PROFIT ELEMENT TO BE AT 25% AND RESTRICTED THE ADDITION TO RS.55 LAKHS AS AGAINST RS.2,20,00,000 MADE BY THE LD. AO. AGAINST THIS FINDING OF THE LD. CIT(A), THE REVENUE IS NOT IN APPEAL BEFORE US. 7.3. IT IS NOT IN DISPUTE THAT ASSESSEE HAD INDEED RECEIVED ON - MONEY FOR SALE OF FLATS TO THE TUNE OF RS.2,20,00,000/ - DURING THE YEAR UNDER CONSIDERATION. IT IS NOT IN DISPUTE THAT THE ASSESSEE HAD INCURRED CERTAIN BUSINESS EXPENSES OUT OF SUCH ON - MONEY WHICH ARE KEPT OUTSIDE THE BOOKS OF ACCOUNTS. HENCE, IT WILL BE JUST AND FAIR THAT ONLY THE PROFIT ELEMENT EMBEDDED ON ANY SUCH UNDISCLOSED TRANSACTION COULD BE BROUGHT TO TAX ON AN ESTIMATED BASIS. THE ASSESSEE HAD ALREADY PLEADED THAT ON - MONEY TRANSACTIONS WERE OFFERED BY THE ASSESSEES GROUP CONCERNS @12% OF ON - MONEY RECEIPT S BEFORE THE HONBLE INCOME TAX SETTLEMENT COMMISSION AND THE SAME HAS BEEN ACCEPTED BY THE SETTLEMENT COMMISSION. HENCE, THE DATA AND INFORMATION WAS INDEED AVAILABLE WITH THE LD. CIT(A) TO HAVE SOME RATIONAL BASIS TO MAKE PROFIT ESTIMATION IN THE HANDS O F THE ASSESSEE HEREIN BY FOLLOWING 12% THEREOF FROM THE ORDER OF HONBLE INCOME TAX SETTLEMENT COMMISSION. ACCORDINGLY, WE DIRECT THE LD. AO TO ADD ONLY 12% OF ON - MONEY RECEIPTS AS UNDISCLOSED INCOME OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. ACCORD INGLY, THE GROUND NO.1 & 2 RAISED BY THE ASSESSEE IS PARTLY ALLOWED. 14. W ITH REGARD TO GROUND S NO. 4 AND 5 , RAISED BY THE ASSESSEE IN ITS APPEAL IN ASSESSMENT YEAR 2015 16, THI S ISSUE ALSO CONSIDERED BY THE C O ORDINATE B ENCH IN BHALCHANDRA TRADING PVT. LTD. (SUPRA) IN FAVOUR OF THE ASSESSEE. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE IN ASSESSMENT YEAR 2013 14, 2015 16 AND 2016 17 ARE ALLOWED IN FAVOUR OF THE ASSESSEE. THEREFORE , THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. 15. WITH REGARD TO APPEALS FILE D BY THE R EVENUE, WE NOTICE THAT THE C O ORDINATE B ENCH CONSIDERED THE ISSUE IN THE CASE OF TULIP LAND DEVELOPERS P. LTD. (SUPRA) AND HELD AGAINST THE R EVENUE. THEREFORE , 19 SAI ASHRAY DEVELOPERS PVT. LTD. THE APPEAL S FILED BY THE REVENUE IN ASSESSMENT YEAR 20 13 14 AND 2015 16 ARE DISMISSED. 16. WITH REGARD TO GROUND NO . 3 , RAISED BY THE R EVENUE IN ASSESSMENT YEAR 2015 16, THIS ISSUE IS CONSEQUENTIAL TO THE GROUND NO.4 OF ASSESSEES APPEAL. SINCE WE ALREADY ADJUDICATED THE ISSUE IN F AVOUR OF THE ASSESSEE, ACCORDINGLY THESE GROUNDS OF APPEAL ALSO DISMISSED. 17. WITH REGARD TO GROUND NO.4 RAISED BY THE R EVENUE IN ASSESSMENT YEAR 2015 16 REGARDING APPLICATION OF PROVISIONS OF SECTION 115 BBE, WE NOTIC E THAT THE ISSUE RAISED BY THE R EVENUE IN GR OUND NO.1 IS ADJUDICATED AGAINST THE R EVENUE , THEREFORE , THE ISSUE RAISED IN THIS GROUND BECOMES ACADEMIC IN NATURE. THEREFORE, THIS GROUND ALSO RAISED BY THE R EVENUE IS DISMISSED. 18. IN THE NET RESULT, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED AND APPEA LS FILED BY THE R EVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.06.2021 SD/ - MAHAVIR SINGH VICE PRESIDENT SD/ - S. RIFAUR RAHMAN ACCOUNTANT MEMBER MUMB AI, DATED: 11.06.2021 20 SAI ASHRAY DEVELOPERS PVT. LTD. COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI