Shanta Sriram Constructions Private Limited, Hyderabad V. Dy.CIT, Central Circle-2, Hyderabad

ITA 331/HYD/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74695 (ITAT-HYDERABAD)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 18-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P SOMASEKHAR REDDY
• Assessee Lawyers: S RAMA RAO
• Keywords: Business income; Depreciation
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA.NO.330 & 331/HYD/2013 ASSESSMENT YEARS 2009-2010 & 2010-2011 M/S. SHANTA SRIRAM CONSTRUCTIONS P. LTD. HYDERABAD PAN AADCS4180M VS. DCIT, CENTRAL CIRCLE 2 HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : MR. S. RAMA RAO FOR REVENUE : MR. P. SOMASEKHAR REDDY DATE OF HEARING : 29.01.2014 DATE OF PRONOUNCEMENT : 07.03.2014 ORDER PER B. RAMAKOTAIAH, A.M. THESE APPEALS BY ASSESSEE ARE AGAINST THE COMMON ORDER OF THE CIT(A)-I, HYDERABAD DATED 11.01 .2013, CONSEQUENT TO THE ORDERS PASSED UNDER SECTION 143(3 ) READ WITH SECTION 153A FOR THE ASSESSMENT YEARS 2009-201 0 AND 2010-2011. EVEN THOUGH ISSUES ARE ARISING OUT OF SE ARCH PROCEEDINGS, THE GROUNDS RAISED IN RESPECTIVE ASSES SMENT YEARS ARE ENTIRELY DIFFERENT. WE HAVE HEARD LD. COU NSEL AND THE LD. D.R. AND PERUSED THE PAPER BOOKS PLACED ON RECO RD IN RESPECTIVE ASSESSMENT YEARS. WE ALSO SOUGHT CLARIFI CATION ABOUT VARIOUS WORKINGS AND AFTER CONSIDERING THE SA ME THE ORDER IS PASSED. 2 ITA.NO.330 & 331/HYD/2013 M/S. SHANTA SRIRAM CONSTRUCTIONS P. LTD. HYDERABAD ITA.NO.330/HYD/2013 A.Y. 2009-2010 : 2. THE ASSESSEE HAS FILED ITS ORIGINAL RETURN OF I NCOME FOR A.Y. 2009-2010 ON 29.09.2009 DECLARING INCOME O F RS.3,13,64,528/-. CONSEQUENT TO THE SEARCH IN THE R ESIDENTIAL PREMISES OF THE DIRECTOR AND SURVEY PROCEEDINGS AT THE OFFICE PREMISES OF THE ASSESSEE PROCEEDINGS UNDER SECTION 153A WERE INITIATED. IN THE RE-ASSESSMENT PROCEEDINGS, THE A. O. AMONGST VARIOUS OTHER ISSUES MADE AN ADDITION OF RS.91,26,0 00/- ON ACCOUNT OF UNACCOUNTED CASH PAYMENT MADE IN THE A.Y . 2009- 2010 CONSEQUENT TO SEIZURE OF DULY SIGNED AND STAMP ED CASH RECEIPT DATED 27.11.2008. THE ASSESSEE ENTERED INT O AN AGREEMENT FOR DEVELOPMENT OF PROPERTY WITH ONE MR. M. SUVEER REDDY AND MR. B.L. SHANKAR LAL YADAV WHO WERE CONSI DERED TO BE CONFIRMING PARTIES OF THEIR LAND OF AC.40.00 OWN ED BY 20 PARTIES IN LOTHUKUNTA VILLAGE, MALKAJGIRI MANDAL, SECUNDERABAD. THE SAID LAND WAS PURCHASED BY THE OW NERS IN THE YEAR 1955. SUBSEQUENTLY, THE LAND OWNERS HAD EN TERED INTO AN AGREEMENT OF SALE WITH MR. M. SUVEER REDDY AND M R. B.L. SHANKAR LAL YADAV. THE ASSESSEE COMPANY ENTERED INT O A DEVELOPMENT AGREEMENT WITH THE SAID PARTIES UNDER W HICH 57% OF THE SHARE OF THE DEVELOPED AREA WAS TO GO TO THE DEVELOPERS (ASSESSEE-COMPANY) AND 43% OF THE SHARE WILL GO TO THE CONSENTING PARTIES VIZ., MR. M. SUVEER REDDY AND MR . B.L. SHANKAR LAL YADAV. IN THE COURSE OF SEARCH PROCEEDI NGS, CASH RECEIPT OF DATED 27.11.2008 ACKNOWLEDGING RECEIPT O F RS.91,26,000/- AND DULY SIGNED BY MR. M. SUVEER RED DY AND MR. B.L. SHANKAR LAL YADAV WAS FOUND. AFTER OBTAINI NG THE STATEMENTS FROM THE DIRECTORS OF THE COMPANY AND FR OM THE SIGNATORIES, THE A.O. MADE THE ADDITION OF THE ABOV E AMOUNT OF RS.91,26,000/-. IN THE COURSE OF POST SEARCH ENQUIR IES, MR. 3 ITA.NO.330 & 331/HYD/2013 M/S. SHANTA SRIRAM CONSTRUCTIONS P. LTD. HYDERABAD MADDI NARSAIAH, MANAGING DIRECTOR OF THE COMPANY IN HIS SWORN STATEMENT DATED 06.10.2010 STATED THAT HE HAD TAKEN THE ABOVE ADVANCE CASH RECEIPT AND NO CASH WAS PAID TO THEM. HE STATED THAT THE ABOVE MENTIONED CASH RECEIPT WAS PREPARED TO ARRANGE FUNDS BUT DID NOT MATERIALIZE. THE STATE MENTS RECORDED FROM BOTH MR. M. SUVEER REDDY AND MR. B.L. SHANKAR LAL YADAV ALSO REVEALS THAT THEY ALSO STATED THAT N O CASH WAS PAID TO THEM AND THEY HAVE RECEIVED ONLY AN AMOUNT OF RS. 50 LAKHS AND RS. 1.7 LAKHS RESPECTIVELY THROUGH CHEQUE S AS THEY ACTED AS MIDDLEMEN. HOWEVER, THE A.O. CONCLUDED THA T THE STATEMENTS OF THESE PERSONS COULD NOT BE RELIED UPO N AS THE CASH RECEIPT WITH REVENUE STAMPS CLEARLY SHOWS THAT THE PAYMENTS WERE MADE. SINCE THE SOURCES OF THE ABOVE AMOUNT WAS NOT EXPLAINED, THE A.O. TREATED THE AMOUNT OF R S. 91,26,000/- AS UNDISCLOSED INCOME OF THE ASSESSEE C OMPANY. 3, IN THE COURSE OF APPEAL PROCEEDINGS BEFORE LD.CIT(A), IT WAS SUBMITTED BY THE ASSESSEE THAT THE ASSESSEE COMPANY HAD ENTERED INTO A DEVELOPMENT AGREEMENT WITH 20 PARTIES, WHO WERE THE LAND OWNERS OF 40 ACRES OF LA ND IN LOTHUKUNTA VILLAGE, MALKAJGIRI MANDAL. THE SAID LAN D HAD BEEN PURCHASED BY THOSE OWNERS IN THE YEAR 1955. SUBSEQUENTLY, THE SAID LAND OWNERS HAD ENTERED INTO AN AGREEMENT OF SALE WITH M. SUVEER REDDY AND B.L. SHANKARLAL YADAV. IN VIEW OF THE NUMBER OF CLAIMANT S OF TITLE FOR THE SAID PROPERTY, INCLUDING THEIR LEGAL HEIRS, DISPUTES AROSE BETWEEN THE ORIGINAL LAND OWNERS AND MR. B.L. SHANKARLAL YADAV AND SUVEER REDDY, RESULTING I N AN UNENDING LITIGATION. EVEN SUBSEQUENTLY, THE AGREEME NT HOLDERS OF THE LAND MR. B.L. SHANKARLAL YADAV AND M . SUVEER REDDY AND THE 20 ORIGINAL LAND OWNERS CAME T O A 4 ITA.NO.330 & 331/HYD/2013 M/S. SHANTA SRIRAM CONSTRUCTIONS P. LTD. HYDERABAD COMPROMISE AND OFFERED THE SAID 40 ACRES OF LAND FO R DEVELOPMENT, ALONG WITH POSSESSION, TO THE ASSESSEE COMPANY AND 4 PARTIES, UNDER WHICH, 57% SHARE OF TH E DEVELOPED AREA WAS TO GO TO THE DEVELOPERS AND 43% TO THE CONSENTING PARTIES I.E. MR. B.L. SHANKARLAL YAD AV AND MR. M. SUVEER REDDY. THE AUTHORISED REPRESENTATIVE SUBMITTED THAT THE AGREEMENT HOLDERS OF THE LAND, M R. YADAV AND MR. REDDY, WHO WERE THE MAIN BENEFICIARIE S, OFFERED TO MEDIATE AND STRIKE A DEAL WITH THE 20 LAND OWNERS TO ENSURE SMOOTH POSSESSION TO THE DEVELOPER S. IN ORDER TO OBTAIN CONSENT OF THE 20 ORIGINAL LAND OWN ERS TO BECOME A PARTY TO THE DEVELOPMENT AGREEMENT, AS A MATTER OF ABUNDANT CAUTION, IT WAS AGREED THAT PAYM ENTS SHALL BE MADE TO THE SATISFACTION OF THE LAND OWNER S IN ACCORDANCE WITH THE TERMS OF SETTLEMENT AS DECIDED BY THE CONSENTING PARTIES WITH THE LAND OWNERS. ACCORDINGL Y, IT WAS AGREED TO PAY RS.4 CRORES TO THE CONSENTING PAR TIES AT THE TIME OF REGISTRATION OF THE DEVELOPMENT AGREEME NT AND THE BALANCE OF RS.1 CRORE WAS TO BE PAID AT THE TIM E OF OBTAINING SANCTION FROM THE CONCERNED AUTHORITIES F OR DEVELOPMENT BEFORE WHICH THE OCCUPANTS OF THE LAND WERE TO GIVE VACANT POSSESSION. IT WAS SUBMITTED THAT TH E DEVELOPERS, I.E. THE ASSESSEE AND 4 OTHERS, DULY PA ID THE PART AMOUNT OF RS.3,62,00,000/- AS AGAINST THE AGRE ED AMOUNT OF RS.4 CRORES AND THE BALANCE AMOUNT OF RS. 1.38 CRORES WAS DEFERRED, AS IN THE COURSE OF SURVEY OF LAND, IT WAS REALIZED THAT A PORTION WAS BEING CLAIMED BY TH E RAILWAY AUTHORITIES AND REVENUE AUTHORITIES AS IT I NCLUDED GOVERNMENT LAND ALSO. SINCE SUCH CLAIMS HAD NOT BEE N ANTICIPATED, THE ENTIRE DEAL WAS STUCK FOR ALMOST 2 YEARS. 5 ITA.NO.330 & 331/HYD/2013 M/S. SHANTA SRIRAM CONSTRUCTIONS P. LTD. HYDERABAD SUBSEQUENTLY, AFTER RESOLUTION OF THE DISPUTES, THE CONSENTING PARTIES STARTED RENEGOTIATION WITH LAND OWNERS FOR A LOWER AMOUNT AND MADE AN ARRANGEMENT THAT A FURTHER AMOUNT OF RS.91,26,000/- ONLY WOULD BE PAID IN CASH, AS AGAINST RS.138 LAKHS. HE SUBMITTED THAT AF TER CONVINCING THE LANDOWNERS, THE CONSENTING PARTIES APPROACHED THE ASSESSEE AND THE ASSESSEE AND ANOTHE R 4 PARTIES INITIALLY AGREED FOR THE SAME. AS A RESULT OF SUCH INITIAL CONSENT, THE CONSENTING PARTIES APPROACHED THE ASSESSEE OFFICE WITH A 'CASH RECEIPT' DULY SIGNED B Y THEM IN THE PRESENCE OF LAND OWNERS, TO GAIN THE CONFIDE NCE OF THE LAND OWNERS AND THE DEVELOPERS. HOWEVER, AFTER SUBSEQUENT DISCUSSIONS, THE DEVELOPERS DECIDED THAT NO CASH PAYMENTS SHOULD BE MADE AS THE ENTIRE LAND WAS UNDER DISPUTE AND THEREFORE ONLY CHEQUE PAYMENTS SHOULD BE MADE. THE AUTHORISED REPRESENTATIVE SUBMITTED THAT DESPITE VARIOUS MEETINGS IN THIS REG ARD, THE DEAL DID NOT MATERIALIZE BUT THE 'CASH RECEIPT' WAS INADVERTENTLY LEFT WITH THE ASSESSEE COMPANY, NOR T HE DEVELOPERS MADE ANY SPECIFIC EFFORT TO RETURN THE S AME TO THE CONSENTING PARTIES AS THE SAME COULD HAVE BEEN USED TO THEIR ADVANTAGE, IF NECESSARY, AT A LATER STAGE. ACCORDINGLY, THE SAME WAS RETAINED AT THE ASSESSEE S OFFICE ONLY. IT WAS SUBMITTED THAT THE ASSESSEE DID NOT MAKE ANY FURTHER PAYMENTS TO EITHER THE CONSENTING PARTIES OR THE LAND OWNERS AND THAT THE DISPUTE IS STILL PENDING FOR RESOLUTION. 4. THE LEARNED CIT(A) AFTER CONSIDERING THE SUBMISSIONS HOWEVER REJECTED THE ASSESSEES CONTENT IONS BY STATING AS UNDER : 6 ITA.NO.330 & 331/HYD/2013 M/S. SHANTA SRIRAM CONSTRUCTIONS P. LTD. HYDERABAD 09.0 I HAVE GONE THROUGH THE FACTS OF THE CASE AND THE SUBMISSIONS OF THE APPELLANT. IT IS AN UNDISPUTED FACT THAT WHAT WAS FOUND WAS A 'CASH RECEIPT', DULY DATED 27-11-2008 AND DULY SIGNED ON STAMP PAPER. SHRI SUVEER REDDY AND SHRI SHANKAR LAL YADAV HAD, THEREBY, ACKNOWLEDGED HAVING RECEIVED RS.91,26,000/- IN CASH. IT IS ALSO A FACT THAT THE SAID RECEIPT WAS FOUND FROM THE PREMISES OF THE APPELLAN T COMPANY. IT WAS, HOWEVER CLAIMED BY SHRI M. NARSAIA H THAT IT WAS ONLY AN ADVANCE CASH RECEIPT, WHEREAS N O CASH WAS ACTUALLY PAID TO THEM. HE HAS ALSO STATED THAT THE SAID RECEIPT WAS PREPARED TO ARRANGE FUNDS AND SHRI SUVEER REDDY AND SHRI SHANKAR LAL YADAV, BEING THE CONSENTING PARTIES FOR THE DEAL, HAD APPROACHED THE APPELLANT'S OFFICE WITH THE SAME AFT ER SIGNING THE SAME IN THE PRESENCE OF LAND OWNERS ONL Y WITH A VIEW TO GAIN THE CONFIDENCE OF LAND OWNERS A ND THE DEVELOPERS. IT IS ALSO CLAIMED THAT AFTER SUBSE QUENT DISCUSSIONS, THEY DECIDED NOT TO MAKE ANY CASH PAYMENTS IN VIEW OF THE DISPUTES INVOLVED, HOWEVER, THAT THE SAID 'CASH RECEIPT' WAS INADVERTENTLY LEFT WITH THE APPELLANT COMPANY. 09.1 ON GOING THROUGH THE EXPLANATION OF THE APPELLANT, HOWEVER, IT CAN BE CLEARLY SEEN THAT THE SAME IS DEVOID OF ANY MERIT. THOUGH THE APPELLANT HAS MA DE AN EFFORT TO DENY THE PAYMENT OF CASH OF RS.91,26,000/- TO THE RECIPIENTS, IT IS CLEAR THAT THE VERY DENIAL IS AGAINST HUMAN PROBABILITIES. IT CANNOT BE LOGICALLY ACCEPTED THAT ANY PRUDENT PERSON WILL GIV E A PROPER RECEIPT ON A STAMP PAPER WITHOUT ACTUALLY RECEIVING THE AMOUNT MENTIONED THEREIN, MOREOVER, EXCEPT FOR SUCH DENIAL OF PAYMENT, THE APPELLANT HA S NOT BEEN ABLE TO DISCHARGE THE PRIMARY DUTY OF SHOW ING THAT NO SUCH TRANSACTION HAD ACTUALLY TAKEN PLACE A ND THAT THE 'CASH RECEIPT' WAS NOT GIVEN IN TOKEN OF COMPLETION OF TRANSACTION OF PAYMENT OF CASH. ON TH E OTHER HAND, THE SEIZED CASH RECEIPT DULY SHOWED THA T THERE WAS A TRANSACTION OF PAYMENT OF CASH OF RS.91,26,000/-. EVEN THE APPELLANT, WHILE CLAIMING THAT THE SAID SIGNED RECEIPT WAS INADVERTENTLY LEFT AT I TS OFFICE, HAS STATED THAT THE DEVELOPERS DID NOT MAKE ANY SPECIFIC EFFORT TO RETURN THE SAME TO THE CONSE NTING PARTIES, AS IT COULD HAVE BEEN USED TO THEIR ADVANT AGE. THIS ITSELF SHOWS THAT THE APPELLANT WAS VERY MUCH 7 ITA.NO.330 & 331/HYD/2013 M/S. SHANTA SRIRAM CONSTRUCTIONS P. LTD. HYDERABAD AWARE OF THE EVIDENTIARY VALUE OF THE SAID DOCUMENT , WHICH IS NOW BEING CLAIMED AS NOT ACTED UPON. SINCE THE EXPLANATION OF THE APPELLANT IS A MERE AVERMENT , DEVOID OF ANY EVIDENTIARY SUPPORT, THE ADDITION OF RS.91,26,000/- AS UNDISCLOSED INCOME OF THE APPELLANT, UTILIZED FOR MAKING UNACCOUNTED CASH PAYMENT TO THE PARTIES MENTIONED IN THE RECEIPT, IS UPHELD. THE GROUNDS RAISED IN THIS REGARD ARE THEREFORE DECIDED AGAINST THE APPELLANT. 5. BEFORE US, LEARNED COUNSEL REITERATED THE SUBMISSIONS MADE BEFORE THE LEARNED CIT(A) AND ALSO EXPLAINED THE FACTS. HE ALSO PLACED ON RECORD THE ACCOUNT COP IES IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE COMPANY WITH REFE RENCE TO VARIOUS PAYMENTS. IT WAS SUBMITTED THAT THE DISPUTE S ARE STILL PENDING AND NOTHING WAS RESOLVED AND THERE IS NO DE VELOPMENT ACTIVITY. IT WAS FURTHER SUBMITTED THAT WHEN THE PR OPERTY WAS IN DISPUTE, HOW CAN THERE BE CASH PAYMENTS AND SINC E THE ISSUE WAS NOT RESOLVED, NO AMOUNT WAS PAID. IT IS O NLY AN ADVANCE RECEIPT SUBMITTED TO BY THE TWO PARTIES TO THE ASSESSEE COMPANY AND A.O. SHOULD NOT HAVE MADE ANY ADDITION ON THE BASIS OF THIS ADVANCE RECEIPT, AS BOTH THE PARTIES DENIED THE SAME. THE DEPARTMENT ALSO ENQUIRED FROM MR. B.L. SH ANKAR LAL YADAV WHO DENIED RECEIPT OF MONEY AND HIS STATE MENT ADMITTING AMOUNT WHICH WAS PAID TO HIM OF RS.107 LA KHS WAS ACCEPTED. IN THE ABSENCE OF ANY OTHER EVIDENCE, NO COGNIZANCE CAN BE TAKEN OF THE CASH RECEIPT FOUND DURING THE S URVEY IN ASSESSEES PREMISES. 6. THE LEARNED D.R. HOWEVER, COUNTERED THE ARGUMENTS TO SUBMIT THAT CLEAR EVIDENCE OF HAVING P AID THE AMOUNT IN CASH WAS FOUND AND THE AMOUNT WAS NOT ROU ND- SUM AMOUNT BUT CLEAR AMOUNT OF RS.91,26,000/-. IT I S NOT DENIED THAT ASSESSEE WAS NEGOTIATING AT THAT POINT OF TIME AND 8 ITA.NO.330 & 331/HYD/2013 M/S. SHANTA SRIRAM CONSTRUCTIONS P. LTD. HYDERABAD IT WAS ALSO NOT DENIED THAT THE ULTIMATE SETTLEMENT FOR THE ABOVE AMOUNT AS CAN BE SEEN FROM THE ORDER OF THE C IT(A). THE DENIAL BY BOTH THE PARTIES IS SELF-SERVING AND THER E WAS NO PLAUSIBLE EXPLANATION FOR PROVIDING THE RECEIPT. TH ERE IS NOTHING FOR AVAILING ANY FINANCES NOR NEED FOR ANY GAINING CONFIDENCE WHEN THE PARTIES HAVE ALREADY ENTERED I NTO DEVELOPMENT AGREEMENT. THE EXPLANATION GIVEN BY THE ASSESSEE IS NOT ONLY SKETCHY BUT ALSO UNBELIEVABLE. SINCE TH E TRANSACTION PERTAIN TO THE DEVELOPMENT OF A PROPERTY AND THERE IS AN AGREEMENT TO PAY THE AMOUNTS, THE PAYMENT OF RECEIP T HAS TO BE ACCEPTED AS GENUINE. IF THE RECEIPT IS ONLY AN A DVANCE RECEIPT, WHY THE SAME WAS KEPT WITH THE ASSESSEE UN LESS IT IS AN EVIDENCE GENUINELY OBTAINED FOR PAYMENT OF AMOUN T. THE ARGUMENT OF ASSESSEE IS NOT POSSIBLE ON HUMAN PROBA BILITIES AND THE AMOUNT WAS CERTAINLY PAID BY THE ASSESSEE T OWARDS THE TRANSACTION OF ACQUIRING THE PROPERTY. 7. LEARNED A.R. IN REPLY SUBMITTED THAT MOST OF PAYMENTS WERE MADE BY CHEQUES AND THERE WERE NO FUR THER PAYMENTS AND CERTAINLY WHEN THE TRANSACTION WAS IN DISPUTE, NO PERSON WOULD PAY ANY CASH. IT WAS FURTHER SUBMIT TED THAT WITH A SPONTANEOUS REPLY GIVEN BY THE MANAGING DIRE CTOR OF THE COMPANY VIDE QUESTION NO.10 AT THE TIME OF SEARCH A ND FURTHER A DENIAL BY THE OTHER PARTY INDICATES THAT NO PAYME NT HAS BEEN MADE. IT WAS FURTHER SUBMITTED THAT COMPANY HAS DIS CLOSED INCOMES CONSEQUENT UPON THE SEARCH AND SINCE NO PAY MENT WAS MADE, THIS TRANSACTION WAS NOT ACCEPTED BY THE ASSESSEE COMPANY. ON A QUERY BY THE BENCH, IT WAS INFORMED T HAT THE AGREEMENT DOES NOT MENTION ABOUT THE PAYMENTS MADE BY CHEQUES BUT ALL THE PAYMENTS WERE MADE BY CHEQUES O NLY WHICH ARE REFUNDABLE DEPOSITS. 9 ITA.NO.330 & 331/HYD/2013 M/S. SHANTA SRIRAM CONSTRUCTIONS P. LTD. HYDERABAD 8. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE EVIDENCE PLACED ON RECORD. AS FAR AS TH E TRANSACTION OF ACQUIRING AC.40.00 FOR DEVELOPMENT I S CONCERNED, THE ASSESSEE DID ENTER INTO AN AGREEMENT WITH THE FIRST PARTY COMPRISING OF 20 OWNERS AND CONSENTING PARTIES CONSISTING OF MR. M. SUVEER REDDY AND MR. B.L. SHAN KAR LAL YADAV, IN FAVOUR OF ASSESSEE (HAVING 55% SHARE ) AN D OTHERS MR. KISHORE KUMAR TULLA (20%), MR. ASHWANTH KUMAR T ULLA (15%), M/S. PVSM ENTERPRISES( 5%) AND MR. M. AVINAS H REDDY (5%). THESE PARTIES PAID VARIOUS AMOUNTS TO THE FIR ST AND SECOND PARTIES. MR. B.L. SHANKAR LAL YADAV ACKNOWLE DGES RECEIPT OF RS.107 LAKHS, MR. M. SUVEER REDDY RECEIV ES RS. 50 LAKHS, WHEREAS THE BALANCE AMOUNT OF RS.2,05,00,000 /- WAS PAID TO OWNERS AS PER THE STATEMENT PLACED ON RECOR D AT PAGES 73 AND 74 OF THE PAPER BOOK. THE TOTAL AMOUNT THUS PAID WAS RS.3,62,00,000/- AS AGAINST RS.5,00,00,000/- TO BE PAID TO THE FIRST PARTY AND CONSENTING PARTY STATED TO BE AS D EPOSITS. WE ARE NOT CONCERNED WITH THE TERMS OF THE DEVELOPMENT AGREEMENT, WHICH ARE LITTLE CONFUSING ABOUT THE RES PECTIVE SHARES AND REFUND OF MONIES ON DEVOLOPEMENT, BUT TH E FACT IS THAT THE AGREEMENT WAS ENTERED WAY BACK ON 16 TH OCTOBER, 2006. THE CASH RECEIPT WAS DATED 27.11.2008. THIS C ASH RECEIPT WAS ISSUED BY MR. M. SUVEER REDDY AND MR. B .L. SHANKAR LAL YADAV ON A WHITE PAPER WITH REVENUE STA MPS AFFIXED AND WAS DATED 27.11.2008. IT WAS ADMITTED B EFORE THE CIT(A) THAT DUE TO DELAY IN RESOLVING THE ISSUES, T HERE WERE NEGOTIATIONS WITH THE OWNERS AND INSTEAD OF PAYING BALANCE AMOUNT OF RS.1,38,00,000/-, THE ASSESSEE SETTLED FO R AN AMOUNT OF RS.91,26,000/-. THUS, THERE IS AN ARRANGE MENT TO SETTLE THE MATTERS, WHETHER IT WAS PAID IN CASH OR CHEQUE IS THE 10 ITA.NO.330 & 331/HYD/2013 M/S. SHANTA SRIRAM CONSTRUCTIONS P. LTD. HYDERABAD DISPUTE. THE ACKNOWLEDGMENT CLEARLY INDICATES THAT THE AMOUNT WAS RECEIVED BY BOTH THE PARTIES VIZ., MR. M . SUVEER REDDY AND MR. B.L. SHANKAR LAL YADAV ON 27.11.2008. IT CANNOT BE CONSIDERED AS ADVANCE RECEIPT AS THERE IS NO NECESSITY FOR PROVIDING ADVANCE RECEIPT TO THE ASSE SSEE COMPANY, UNLESS THE AMOUNT WAS PAID TO THE OWNERS T HROUGH CONSENTING PARTIES. THERE IS NO NEED FOR GIVING ANY ADVANCE RECEIPT AS OWNERS HAVE ALREADY RECEIVED SUBSTANTIAL AMOUNT AS DEPOSIT/ CONSIDERATION. AS SEEN FROM THE FINANCIAL STATEMENTS PLACED ON RECORD, ASSESSEE IS NOT IN NEED FOR OBTA INING OR ARRANGING FOR FUNDS AS THE ASSESSEE IS HAVING SUFFI CIENT CASH FLOW DURING THE YEAR. THEREFORE, THE EXPLANATION GI VEN THAT IT WAS ADVANCE RECEIPT CANNOT BE ACCEPTED AT FACE VALU E. WITH REFERENCE TO THE STATEMENTS GIVEN FROM BOTH THE PAR TIES, THOSE STATEMENTS ARE CONSIDERED BY AO/CIT(A) AS SELF-SER VING. AS SEEN FROM THE STATEMENT OF MONEY PAID TO THE PARTIE S PLACED AT PAGES 73 AND 74 OF THE PAPER BOOK, VARIOUS PAYMENTS HAVE BEEN MADE BY CHEQUES FROM VARIOUS ACCOUNTS. AS PER THAT STATEMENT, ASSESSEE COMPANY M/S. SHANTA SRIRAM CONSTRUCTIONS PVT. LTD. PAID RS. 12,00,000/-, MR. K ISHORE KUMAR TULLA PAID RS. 2,00,00,000/-, MR. ASHWANTH KU MAR TULLA PAID TO MR. B.L. SHANKAR LAL YADAV RS. 50,00, 000/-, MR. M. AVINASH REDDY PAID TO MR. M. SUVEER REDDY RS. 50,00,000/- AND M/S. PVSM ENTERPRISES PAID TO MR. B .L. SHANKAR LAL YADAV RS. 50,00,000/-. THEREFORE, OUT O F RS.3,62,00,000/- PAID, ASSESSEE CONTRIBUTION INITIA LLY WAS ONLY RS.12,00,000/- BUT HAS GOT 55% SHARE IN THE CONSTRU CTED AREA OUT OF THE DEVOLOPERS SHARE. ALL OTHER PAYMENTS, EX CEPT BY ASSESSEE ARE PAID IN THE MONTH OF OCTOBER, 2006 ON VARIOUS DATES, STARTING FROM THE AGREEMENT DATE 16.10.2006. THE 11 ITA.NO.330 & 331/HYD/2013 M/S. SHANTA SRIRAM CONSTRUCTIONS P. LTD. HYDERABAD ASSESSEES PAYMENTS WERE DATED 11.12.2008 OF RS.7,0 0,000/- TO MR. B.L. SHANKAR LAL YADAV AND ON 09.01.2007 AN AMOUNT OF RS.5,00,000/- TO ONE M. AMUL YADAV, TOTALING TO RS.12,00,000/-. SINCE, THERE WAS A PAYMENT OF RS.7, 00,000/- ON 11.12.2008, IN AND AROUND THAT TIME, THIS RECEIP T GIVEN I.E., ON 27.11.2008 CAN BE ACCEPTED AS PART OF PAYMENT CO NSEQUENT TO NEGOTIATIONS. THEREFORE, IT HAS TO BE CONSIDERED THAT THERE WAS INDEED A CASH PAYMENT BY THE ASSESSEE COMPANY. TILL 2008 THERE WERE NO PAYMENTS ACTUALLY MADE FROM THE ACCOUNTS OF THE ASSESSEE COMPANY. HOWEVER, THE ENTRIES SHOWN IN THE BOOKS ARE BY WAY OF JOURNAL ENTRIES DATED 16.10.200 6 TO THE CREDIT OF MR. B.L. SHANKAR LAL YADAV OF RS.5,00,00, 000/-. SURPRISINGLY, ONLY RS.2,00,00,000/- PAID ON 16.10.2 006 WAS INITIALLY DEBITED AND FURTHER PAYMENT TOWARDS LAND COST WAS SHOWN ON 22.11.2006 AT RS.16,66,500/- AND A FURTHER PAYMENT OF RS.50,00,000/- WAS SHOWN ON 31.03.2007. THUS BY WAY OF JOURNAL ENTRIES ONLY RS.2,66,00,500/- WER E SHOWN TO HAVE PAID WITH AN OUTSTANDING AMOUNT OF RS.2,33,33, 500/-AT THE END OF THAT YEAR. OUT OF THIS FURTHER DEBIT OF RS.7,00,000/- ON 11.12.2008 PAID TO MR. B.L. SHANKAR LAL YADAV W AS REFLECTED. THERE WAS NO CORRESPONDING ENTRY WITH RE FERENCE TO RS.5,00,000/- PAID ON 02.01.2007. THUS, AS PER THE BOOKS OF THE ASSESSEE COMPANY, THE CLOSING BALANCE AS ON 31. 03.2009 WAS AT RS.2,26,33,500/- WHICH AS PER THE ACCOUNT CO PIES PLACED ON RECORD CONTINUES TILL 21.01.2014. THUS, T HERE IS A VARIATION IN THE AMOUNTS STATED TO HAVE BEEN PAID A ND AMOUNTS STATED TO HAVE BEEN REFLECTED IN THE BOOKS OF ACCOUNTS. CONSIDERING THAT ACTUAL OUTFLOW OF THE MO NEY BY WAY OF CHEQUE WAS ONLY RS.7,00,000/-( PLUS RS 5,00,000 PAID TO AMUL YADAV,BUT NOT REFLECTED IN ACCOUNTS) FROM THE ACCOUNTS 12 ITA.NO.330 & 331/HYD/2013 M/S. SHANTA SRIRAM CONSTRUCTIONS P. LTD. HYDERABAD OF THE ASSESSEE COMPANY. THEREFORE, THERE CAN BE A POSSIBLE PAYMENT OF RS.91,26,000/- BY THE ASSESSEE TO THE OWNERS/CONSENTING PARTIES, IN VIEW OF THE SETTLEMEN T BEING NEGOTIATED AT THAT POINT OF TIME. CONSIDERING THE T OTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE OPINION THAT THE DENIAL BY BOTH THE PARTIES, CONSEQUENT TO IMPOU NDING OF THE CASH RECEIPT FROM THE ASSESSEES PREMISES WAS O NLY SELF- SERVING. 9. IT IS A BUSINESS PRACTICE OF PAYING AMOUNTS IN CASH IN REAL ESTATE TRANSACTIONS AND EVIDENCING THEM IS GENERALLY NOT POSSIBLE, UNLESS THERE ARE RECEIPTS GIVEN BY THE PA RTIES AFFIRMING THE RECEIPT OF CASH. WHEN PARTIES HAVE FI NALLY NEGOTIATED AND CONCLUDED THE TRANSACTION, THE CORRE SPONDING CASH RECEIPTS ARE GENERALLY DESTROYED SO THAT THERE IS NO TRACE OF EVIDENCE UNLESS, THE PARTIES ARE STILL CONTINUIN G THE DISPUTES AND THERE WILL EXPECTATION OF LITIGATION SO VARIOUS PAYMENTS ARE GENERALLY PRESERVED. MORE SO WHEN CASH WAS PAID OUT SIDE BOOKS OF ACCOUNTS. AS SEEN FROM THIS TRANSACTION, E VEN THOUGH A DEVELOPMENT AGREEMENT WAS ENTERED IN OCTOBER, 200 6, THE TRANSACTION WAS NOT CONCLUDED AND THE OWNERS WHO WE RE SUPPOSED TO GET DEVELOPED AREA TOWARDS THEIR SHARE COULD HAVE ASKED FOR AS A COMPENSATION OR FOR FURTHER PAYMENT IN VIEW OF THE ENHANCED VALUES IN THE MARKET. WHATEVER MAY BE THE REASON, THE AGREEMENT ENTERED INDICATE THAT IF THER E IS A DELAY OF THE TRANSACTION, DEVELOPERS HAVE TO PAY RENT AT RS.4/- PER SQ. FEET TO THE OWNERS, VIDE CLAUSE NO.12(A) OF THE AGREEMENT. AS ADMITTED BY THE ASSESSEE, THERE COULD BE RE-NEGO TIATIONS AND AS PART OF THAT ASSESSEE COULD HAVE PAID THE AM OUNTS. SINCE ASSESSEE ADMITS THAT THERE WAS RE- NEGOTIATIONS/SETTLEMENT AT THAT POINT OF TIME, IT H AS TO BE 13 ITA.NO.330 & 331/HYD/2013 M/S. SHANTA SRIRAM CONSTRUCTIONS P. LTD. HYDERABAD CONSIDERED THAT ASSESSEE INDEED PAID THE AMOUNT TO THE OWNERS/CONSENTING PARTIES AT THAT POINT OF TIME AND DENIAL SUBSEQUENTLY WAS CERTAINLY A SELF-SERVING ONE. NOT ONLY THAT EVEN STATEMENT OF MR. B.L. SHANKAR LAL YADAV, EVEN THOUGH DENIES RECEIVING THE CASH, ADMITS THAT HE DREW CAS H OF RS. 50,00,000/- FROM HIS BANK ACCOUNT AND PAID TO THE O WNERS OUT OF RS.1,07,00,000/- SUPPOSED TO HAVE RECEIVED BY HI M AS DEPOSIT. THE DETAILS OF PAYMENTS HE COULD NOT CONFI RM. THEREFORE, PAYING AMOUNT TO THE OWNERS BY WAY OF CA SH EVEN WHEN IT IS ONLY A DEVELOPMENT AGREEMENT WAS NOT RUL ED OUT. CONSIDERING THE FACTS OF THE CASE AND AS RARELY EVI DENCED, A CASH RECEIPT WAS FOUND IN THE COURSE OF PROCEEDINGS IN THE ASSESSEES PREMISES, WE ARE OF THE OPINION THAT ASS ESSEE COULD HAVE PAID THE AMOUNT OUT OF ITS UNACCOUNTED SOURCES AND THE RECEIPT HAS TO BE BELIEVED AS GENUINE PAYMENT OF MO NEY. IN VIEW OF THIS, WE CONFIRM THE ORDER OF THE CIT(A) AN D REJECT THE ASSESSEES GROUNDS. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMI SSED. ITA.NO.331/HYD/2013 A.Y. 2010-2011 : 11. THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE CIT(A) CONFIRMING THE ADDITION OF RS.22,78,665/- MA DE BY THE A.O. ON THE ALLEGED GROUND OF LOW PROFITABILITY. IN THE COURSE OF SEARCH, THE ASSESSEE ADMITTED RS.70,00,000/- AS UND ISCLOSED INCOME APART FROM AN AMOUNT OF RS.1,45,74,785/- ON WHICH NO ADVANCE TAX HAS BEEN PAID AS ON THE DATE OF SEARCH. THEREFORE, THE TOTAL AMOUNT WHICH WOULD HAVE BEEN DISCLOSED WA S ARRIVED AT BY THE A.O. AT RS.2,15,74,785/-. THE ASSESSEE HA S SHOWN LOSS IN RESPECT OF INFRA PROJECTS AND ON CHIPPENDAL E PROJECT. ON BEING ENQUIRED, THE ASSESSEE SUBMITTED THAT ASSESSE E HAD 14 ITA.NO.330 & 331/HYD/2013 M/S. SHANTA SRIRAM CONSTRUCTIONS P. LTD. HYDERABAD MADE A BID LESS THAN 5% TO SSR TO HAVE EXPOSURE IN INFRA FIELD AND DUE TO MISMANAGEMENT OF THEIR ASSOCIATE, THE AS SESSEE SUFFERED HUGE LOSSES AND FURTHER THE PROJECT HAD GO T INTO LITIGATION. THE MANAGING DIRECTOR FURTHER STATED TH AT ASSESSEE COMPANY WAS ADMITTING AN AMOUNT OF RS.70,00,000/- A GAINST SET OFF OF LOSSES IN FINANCIAL YEAR 2009-2010 AND A PART FROM THE PROFIT OF RS.1,45,00,000/-, TOTAL AMOUNT WAS ADMITT ED. HOWEVER, ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS.1,92,96,120/-. THEREFORE, THE SHORTFALL OF RS .22,78,665/- WAS ADDED TO THE RETURNED INCOME BY THE A.O. 12. IN THE COURSE OF APPEAL PROCEEDINGS BEFORE THE CIT(A), THE LEARNED A.R. SUBMITTED THAT BREAK-UP OF THE REVENUES FROM VARIOUS PROJECTS AND PROFITS AND RECO NCILED AMOUNTS MAINLY TO SUBMIT THAT SHORTFALL HAS ARISEN BECAUSE OF STATUTORY DEDUCTION IN HOUSE PROPERTY INCOME. LEARN ED CIT(A), HOWEVER, DID NOT AGREE WITH THE ASSESSEES CONTENTI ONS AND DISMISSED THE SAME BY STATING AS UNDER : 12.0 I HAVE GONE THROUGH THE FACTS OF THE CASE AND THE SUBMISSIONS OF THE APPELLANT. FROM THE DISCUSSION ABOVE, IT IS CLEAR THAT IN ORDER TO ADDR ESS THE ISSUE OF LOW PROFITABILITY, THE APPELLANT HAD VOLUN TARILY ADMITTED ADDITIONAL INCOME OF RS.70 LAKHS IRRESPECT IVE OF SET OFF OF ANY LOSS IN FUTURE YEARS FOR THE FINA NCIAL YEAR 2009-10. SUCH ADDITIONAL INCOME WAS ADMITTED A S UNDISCLOSED INCOME FROM INFRASTRUCTURE PROJECTS. IN THE SUBSEQUENT PROCEEDINGS, HOWEVER, IT IS CLAIMED THAT THE SAME WAS NOT OFFERED TO TAX AS THE ARBITRATION PROCEEDINGS DID NOT GET CONCLUDED AS EXPECTED. IT H AS BEEN SUBSEQUENTLY CLAIMED THAT ADMISSION OF HIGHER OF INCOME WAS BASED ON THE ASSUMPTION OF THE APPELLANT THAT IT WOULD RECEIVE COMPENSATION IN THE COURSE OF ARBITRATION. HOWEVER, IT CANNOT BE DENIED THAT BY N OT ADHERING TO THE DISCLOSURE OF ADDITIONAL INCOME OF RS.70 LAKHS FROM INFRASTRUCTURE PROJECTS, THE APPELLANT I NDEED RETRACTED FROM ITS ADMISSION MADE IN THE STATEMENT 15 ITA.NO.330 & 331/HYD/2013 M/S. SHANTA SRIRAM CONSTRUCTIONS P. LTD. HYDERABAD DATED 6-7-2010. IT IS CLEAR THAT HE HAD NOT EVER ST ATED EARLIER THAT SUCH INCOME WAS DISCLOSED IN VIEW OF T HE ARBITRATION COMPENSATION LIKELY TO BE RECEIVED, WHI CH OTHERWISE ALSO WOULD HAVE BEEN TAXABLE ON RECEIPT A S A REGULAR ITEM OF INCOME. THE ADMISSION OF RS. 70 LAK HS ON THE OTHER HAND HAD BEEN MADE AS ADDITIONAL INCOM E, OVER AND ABOVE THE REGULAR INCOME/LOSSES, AND THEREFORE, THE SOURCE FOR THE SAME WAS WITHIN THE PRIVATE KNOWLEDGE OF SHRI NARSAIAH AND THE APPELLAN T. SINCE THE APPELLANT ADMITTED INCOME IN THE RETURN A T A LESSER FIGURE, NO INFIRMITY CAN BE FOUND IN THE ADD ITION OF RS.22,78,665/-. THE GROUND RAISED IN THIS REGARD IS THEREFORE DECIDED AGAINST THE APPELLANT. 13. BEFORE US, LD. COUNSEL REFERRED TO THE STATEME NT OF INCOME AND ADMISSION OF RS.70,00,000/- AND RECONCIL ED THE AMOUNTS AS TO HOW THE A.O. HAS ARRIVED AT THE SHORT FALL. THE RECONCILIATION FILED BY THE ASSESSEE IS AS UNDER : THE ASSESSING OFFICER ARRIVED AT THE ADDITION OF RS.22,78,665/- CONSIDERING THE FOLLOWING: TO BE ADMITTED RS. 2,15,74,785 ADMITTED RS. 1,92,96,120 ADOPTED BY THE ADMITTED BY THE ASSESSING OFFICER ASSESSEE -------------------------- ---------------------- -- OTHER INCOME RS.1,54,65,736 (**)RS.96,6 0,273 INTEREST ON FDRS RS. 14,60,282 4 7,31.258 NET INCOME FROM THEATRE RS. 26,08,278 26,07,51 4 BUSINESS LOSS AFTER INTEREST AND DEPRECIATION - (-) RS. 49,61,510 (+) 22,97,077 ADDITION OFFERED RS. 70,00,000 ---- --------------------------- ----------------- ----- TOTAL RS.2,15,72,786 RS.1,92,96,122 ============================ (**) THE DIFFERENCE IN INCOME FROM HOUSE PROPERTY IS BECAUSE OF CLAIM OF DEDUCTION OF MUNICIPAL TAX OF RS.16,37, 346/- AND 16 ITA.NO.330 & 331/HYD/2013 M/S. SHANTA SRIRAM CONSTRUCTIONS P. LTD. HYDERABAD STATUTORY CLAIM U/S 24 OF RS.41,40,117/- FROM THE G ROSS INCOME OF RS.1,54,37,736/-. IT CAN BE SEEN THAT THE BUSINESS INCOME IS INCREASE D TO RS.22,97,077/- FROM LOSS OF RS.49,61,510/-. 14. THE LEARNED D.R. HOWEVER, REITERATED THE ORDER S OF THE A.O. AND CIT(A). 15. WE HAVE CONSIDERED AND EXAMINED THE ISSUE. AS SEEN FROM THE COMPUTATION OF INCOME FILED BY THE AS SESSEE THERE WAS NO DENIAL OF RENTAL INCOME BEING SHOWN AT A GROSS OF RS.1,54,37,736/- WHEREAS THE NET INCOME FROM HOUSE PROPERTY AFTER CLAIMING STATUTORY DEDUCTION WERE SHOWN AT RS.96,60,273/-. THE A.O. ADMITTED THE LATER FIGURE WHILE ARRIVING AT THE INCOME DECLARED BY THE ASSESSEE WHE REAS, ACCORDING TO THE ASSESSEE, THE GROSS INCOME FROM TH E RENTAL OF THE PROPERTY WAS TO BE TAKEN AT RS.1,54,65,736/-, A S PER THE STATEMENT RECORDED IN THE COURSE OF SEARCH. SINCE T HE DIFFERENCE AROSE DUE TO PAYMENT OF MUNICIPAL TAX AN D STATUTORY CLAIM, WE ARE OF THE OPINION THAT THE BASIS FOR MAK ING THE ADDITION BY THE A.O. ITSELF WAS WRONG. THERE IS NO OTHER ISSUE TO BE CONSIDERED AS THE ASSESSEE HAS SHOWN THE PROF ITS AND LOSS FROM VARIOUS PROJECTS AND ALSO ADMITTED AN AMO UNT OF RS.70,00,000/- IN THE COURSE OF SEARCH. JUST BECAUS E THERE IS A SHORTFALL IN DECLARING THE INCOME AFTER CLAIMING ST ATUTORY DEDUCTIONS, THE SAME CANNOT BE CONSIDERED AS SHORTF ALL IN DECLARATION OF THE INCOME WHEN A.O. DID NOT FIND AN Y OTHER SHORTFALL OR MISTAKES IN THE ACCOUNTS MAINTAINED BY THE ASSESSEE. THEREFORE, THE CONTENTIONS OF THE ASSESSE E ARE ACCEPTED AND ADDITION MADE BY THE A.O. AT RS.22,78, 665/- STANDS DELETED. ACCORDINGLY, GROUND NO.2 OF THE ASS ESSEE ON THIS ISSUE IS ACCORDINGLY ALLOWED. 17 ITA.NO.330 & 331/HYD/2013 M/S. SHANTA SRIRAM CONSTRUCTIONS P. LTD. HYDERABAD 16. GROUND NO.3 PERTAINS TO AN AMOUNT CLAIMED TOWARDS TDS PAID WHICH WAS NOT PRESSED IN THE COURS E OF ARGUMENTS. ACCORDINGLY, GROUND NO.3 IS TREATED AS W ITHDRAWN. 17. IN THE RESULT, ASSESSEES APPEAL IS CONSIDERED AS ALLOWED. 18. TO SUM-UP, ITA.NO.330/HYD/2013 OF THE ASSESSEE IS DISMISSED AND ITA.NO.331/HYD/2013 OF THE ASSESSE E IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07.03.201 4. SD/- SD/- (SAKTIJIT DEY) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACOUNTANT MEMBER HYDERABAD, DATED 07 TH MARCH, 2014 VBP/- COPY TO : 1. SHANTA SRIRAM CONSTRUCTIONS PVT. LTD. HYDERABAD C/O. SRI S. RAMA RAO, ADVOCATE, FLAT NO.102, SHRIYAS E LEGANCE, H.NO.3-6-643, STREET NO.9, HIMAYATNAGAR, HYDERA BAD 500 029. 2. DCIT, CENTRAL CIRCLE-2, HYDERABAD 3. CIT(A) - I , HYDERABAD 4. CIT, (CENTRAL), HYDERABAD 5. D.R. ITAT, A BENCH, HYDERABAD.