M/s Subha and Prabha Builders Pvt. Ltd., Bangalore V. ITO, Bangalore

ITA 345/BANG/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9443 (ITAT-BANGALORE)
• Duration Of Justice: 4 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-06-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 09-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SWAPNA DAS JT
• Assessee Lawyers: K KIRAN KUMAR
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC A BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.345/BANG/2012 ASSESSMENT YEAR : 2003-04 M/S. SUBHA & PRABHA BUILDERS PVT. LTD., FLAT NO.203, R K HOYSALA RESIDENCY, 3 RD MAIN, 9 TH CROSS, HOYSALANAGAR, BANGALORE 560 016. PAN: AAICS 5023J VS. THE INCOME TAX OFFICER, WARD 12(2), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI K. KIRAN KUMAR, ADVOCATE RESPONDENT BY : SMT. SWAPNA DAS, JT. CIT(DR) DATE OF HEARING : 28.06.2016 DATE OF PRONOUNCEMENT : 26.08.2016 O R D E R THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(APPEALS) ON A SOLITARY GROUND THAT THE CIT(APPE ALS) HAS ERRED IN CONFIRMING THE ADDITION OF RS.4,18,000. 2. DURING THE COURSE OF HEARING, THE ASSESSEE HAS A LSO RAISED ADDITIONAL GROUND THAT SINCE THE BURDEN IS ON THE A O-RESPONDENT TO PROVE THAT RS.4,18,000 WAS RECEIVED BY THE ASSESSEE AND S INCE THE AO FAILED TO ESTABLISH/DEMONSTRATE THE ADDITION OF RS.4,18,000 A S INCOME OF THE ASSESSEE, THE ADDITION IS UNJUSTIFIED. THE ASSESS EE HAS ALREADY RAISED THIS ITA NO.345/BANG/2012 PAGE 2 OF 5 GROUND IN THE MAIN GROUNDS OF APPEAL AND THIS IS TH E SOLITARY ISSUE INVOLVED IN THIS APPEAL. THEREFORE, I FIND NO JUSTIFICATIO N TO ADMIT THE ADDITIONAL GROUND. I, HOWEVER, ADJUDICATE THIS CONTENTION OF THE ASSESSEE AS A PIECE OF ARGUMENT. 3. THE FACTS IN BRIEF BORNE OUT FROM THE RECORD ARE THAT THE ASSESSEE COMPANY IS A BUILDER ENGAGED IN THE CONSTRUCTION OF SALE OF APARTMENTS. THE ASSESSEE WAS SUBJECTED TO SURVEY ACTION U/S. 13 3A(1) OF THE ACT ON 20.9.2005 AND THEREAFTER THE CASE WAS SELECTED FOR SCRUTINY. THE ASSESSING OFFICER NOTED THAT DURING THE PREVIOUS YE AR UNDER CONSIDERATION, THE ASSESSEE COMPANY HAS SOLD CERTAIN FLATS IN PROJ ECT-14 AND CERTAIN RECEIPTS FROM THE SALE OF FLATS IN SUCH PROJECT HAV E BEEN OFFERED AS INCOME VIDE PROFIT & LOSS ACCOUNT ENCLOSED WITH THE RETURN OF INCOME FILED ON 28.11.2003. THE TOTAL QUANTUM OF RECEIPTS FROM PRO JECT-10 DURING THE RELEVANT ASSESSMENT YEAR 2003-04 IS RS.18,20,000. DURING THE COURSE OF SURVEY PROCEEDINGS AND SUBSEQUENTLY, STATEMENTS OF THE MANAGING DIRECTOR, SHRI T.D. RAMAKRISHNA WERE RECORDED ON OA TH ON VARIOUS DATES. CERTAIN BOOKS OF ACCOUNT AND DOCUMENTS WERE ALSO IM POUNDED FROM THE ASSESSEE COMPANY AT THE TIME OF SURVEY. THESE INCL UDE SALE AGREEMENTS AND CERTAIN RECEIPTS. ON EXAMINATION OF THE SAME, IT WAS NOTICED THAT THERE WERE DIFFERENCES BETWEEN THE AMOUNTS RECORDED IN TH E SALE AGREEMENTS ENTERED INTO WITH THE PROSPECTIVE BUYERS AND AMOUNT S RECORDED BY THE ASSESSEE IN ITS BOOKS. THE TABLE BELOW SHOWS SUCH AMOUNTS OF DIFFERENCE:- ITA NO.345/BANG/2012 PAGE 3 OF 5 SL. NO. NAME OF THE PURCHASER FLAT NO. AGREEMENT VALUE (IN RS.) ACCOUNTED VALUE (IN RS.) DIFFERENCE (IN RS.) 1. ELIZABETH 202 350000 265000 85000 2. B. SURESH 210 470000 362000 108000 3. USHA CHANDRAN 102 350000 280000 70000 4. V. RAMASWAMY 101 365000 285000 75000 5. KGK NAIR G2 325000 250000 75000 TOTAL 418000 4. DURING THE COURSE OF RECORDING OF STATEMENT ON O ATH, SHRI RAMAKRISHNA, M.D., HAS GIVEN EVASIVE REPLIES WITH R EGARD TO DIFFERENCE FOUND AS ABOVE. THE AO HAS RECORDED THE STATEMENT OF THE M.D. IN HIS ASSESSMENT ORDER. SINCE THE ASSESSEE COULD NOT EXP LAIN THE DIFFERENCE POINTED OUT BY THE AO, THE AO MADE THE ADDITION OF THE DIFFERENCE WORKED OUT AS UNDISCLOSED INCOME OF THE ASSESSEE. 5. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT( APPEALS) WITH THE CONTENTION THAT THE AO HAS NOT AFFORDED PROPERTY OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. THE CIT(APPEALS) RE-EXAMINED THE CLAIM OF THE ASSESSEE IN THE LIGHT OF ASSESSEES CONTENTION. HE CONFIRME D THE ADDITION ON THE GROUND THAT ASSESSEE COULD NOT EXPLAIN THE DIFFEREN CES FOUND IN THE AGREEMENTS AND THE BOOKS OF ACCOUNT. THE RELEVANT OBSERVATIONS OF THE CIT(APPEALS) IS ALSO EXTRACTED HEREUNDER:- HAVING CONSIDERED THE CASE CAREFULLY AND TAKING IN TO ACCOUNT THE FACT THAT THE AO STATES THAT APPELLANT HAS NOT MAIN TAINED BOOKS AND RELIES ON MEMORY AND ALSO IN VIEW OF THE INABI LITY TO CONFIRM THE TRANSACTIONS FROM THE BUYERS, I FIND THAT I HAV E NO REASON TO INTERFERE WITH THE FINDINGS OF THE AO SINCE THE BAS IC ONUS OF ITA NO.345/BANG/2012 PAGE 4 OF 5 PROVING THE CLAIM REMAINS UN-DISCHARGED BY THE APPE LLANT. I ACCORDINGLY DECIDE AGAINST THE APPELLANT AND DISMIS S THE GROUNDS OF APPEAL WITH THE OBSERVATION THAT THE RECORD SHOW S THAT SUFFICIENT OPPORTUNITY WAS GIVEN BOTH AT ASSESSMENT AND APPELLATE STAGES AND THAT ACTION U/S. 147 WAS TAKEN ON CORREC T GROUNDS BY THE AO FOLLOWING THE RECOVERY OF THE SALE AGREEMENT S AT THE TIME OF SURVEY ACTION. I ALSO FIND THAT THE GROUND HOLD ING THAT PRESUMPTION U/S. 132(4A) IS NOT AVAILABLE DOES NOT HOLD WATER SINCE THE APPELLANT HIMSELF HAS NOT BEEN ABLE TO SU BSTANTIATE HIS CLAIM BEFORE THE UNDERSIGNED INSPITE OF BEING GIVEN SUFFICIENT OPPORTUNITIES, AND THE AOS CONCLUSION IN THE CIRCU MSTANCES IS REASONABLE. 6. NOW THE ASSESSEE IS BEFORE THE TRIBUNAL, BUT DUR ING THE COURSE OF HEARING, HE COULD NOT FURNISH SATISFACTORY EXPLANAT ION WITH REGARD TO DIFFERENCES FOUND IN THE BOOKS OF ACCOUNT AND THE A GREEMENTS FOUND DURING THE COURSE OF SURVEY. SINCE THE ONUS IS UPON THE ASSESSEE TO EXPLAIN THE DIFFERENCES AND ONCE HE FAILED TO DO SO, THE ADDITI ON DESERVES TO BE SUSTAINED. I THEREFORE DO NOT FIND ANY INFIRMITY I N THE ORDER OF CIT(APPEALS), WHO HAS RIGHTLY CONFIRMED THE ADDITION. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. PRONOUNCED IN THE OPEN COURT ON THIS 26 TH DAY OF AUGUST, 2016. SD/- (SUNIL KUMAR YADAV ) JUDICIAL MEMBER BANGALORE, DATED, THE 26 TH AUGUST, 2016. /D S/ ITA NO.345/BANG/2012 PAGE 5 OF 5 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.