Moon Buildtech Private Ltd., Delhi V. DCIT, New Delhi

ITA 3486/DEL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7245 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 07-09-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 09-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Search and seizure; Opportunity of being heard; Principle of natural justice
• Section: 142(1); 234B; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E, NEW DELHI BEFORE SHRI J. S. REDDY, ACCOUNTANT MEMBER AND SMT. BEENA A. PILLAI, JUDICIAL MEMBER I.T.A. NO.3486/DEL/2014 (ASSESSMENT YEAR 2011-12) MOON BUILDTECH PVT. LTD., VS. DCIT, CIRCLE 7, C-119, PREET VIHAR, NEW DELHI NEW DELHI GIR / PAN :AAECM3908Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANIL JAIN, CA RESPONDENT BY :SHRI RAJESH KUMAR, SR. DR DATE OF HEARING: 07.09.2016 DATE OF PRONOUNCEMENT: 09.09.2016 ORDER PER BEENA A. PILLAI, JM: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 12.05.2014 PASSED BY LD. CI T(A) I, NEW DELHI FOR THE ASSESSMENT YEAR 2011-12 ON THE FOLLOWING GROUNDS OF APPEAL: 1. THAT THE LD CIT APPEAL HAS FAILED TO APPRECIATE THAT THE IMPUGNED ASSESSMENT ORDER PASSED BY THE LD AO IS ILLEGAL, BAD IN LAW AND WITHOUT JURISDICTI ON. 2. THAT THE LD CIT APPEAL HAS FAILED TO APPRECIATE THAT IMPUGNED ASSESSMENT ORDER PASSED BY THE LEARNED ASSESSING OFFICER IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE AND HAS BEEN PASSED WITHOUT AFFORDI NG REASONABLE OPPORTUNITY OF BEING HEARD. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PROVISIONS OF LAW THE LD CIT APPEAL HAS ERR ED IN SUSTAINING AN ADDITION OF RS 1,95,0001- ON ACCOU NT OF ALLEGED UNDISCLOSED ASSURED RETURN AS PER MOU WITH M/S ULTRA HOME CONSTRUCTIONS PVT. LTD. 2 I.T.A.NO.3486/DEL/2014 4. THAT THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW IN CHARGING OF INTEREST U/S 234B OF THE IT ACT. 2. BRIEF FACTS OF THE CASE ARE AS UNDER: 2.1 A SEARCH AND SEIZURE WAS INITIATED U/S 132 OF T HE ACT IN AMRAPALI GROUP OF CASES. RETURN DECLARING INCOM E OF RS.2,50,496/- WAS FILED ON 09.09.2011. NOTICE U/S 143(2) AND 142(1) WITH QUESTIONNAIRE WAS ISSUED ON 28.01.2 013. THE LD. A.O. MADE ADDITION OF RS.22,50,000/- ON ACC OUNT OF UNDISCLOSED ASSURED RETURN OF THE ASSESSEE AS PE R MOU DATED 16.08.2009. 2.2 AGGRIEVED BY THE ORDER OF LD. A.O., ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) WHO OBSERVED AND HELD AS UNDER: 4.1 THE MATTER IN ISSUE WAS UNDER CONSIDERATION IN APPELLANT'S OWN CASE IN APPEAL NO. 297/13-14 WHEREIN I HAVE HELD IN THE ORDER DATED 26.1L.20 13 AS UNDER: '5.2 I HAVE CONSIDERED THE ASSESSMENT ORDER AND THE SUBMISSIONS MADE. THE MEANING OF ASSURED RETURN IS THAT ANY SHORTFALL IN THE RETURN ASSURED TO THE FINANCER IS TO BE MADE GOOD BY THE FINANCE. ANY AMOUNT RECEIVED OVER AND ABOVE THE ASSURED RETURN IS THE GAIN OR THE FINANCER. THE ARRANGEMENT OR ASSURED RETURN WAS A PRIVATE AGREEMENT BETWEEN THE APPELLANT AS INVESTOR AND THE BUILDER UHC. THE FINANCE AGREEMENT HAS NOT BEEN DENIED. THEREFORE, THE TERMS OF THE ARRANGEMENT CANNOT BE INDIVIDUALLY DENIED WITHOUT COGENT EVIDENCE. THERE IS NO SUCH EVIDENCE WITH THE APPELLANT. THE ASSURED RETURN IS PART OF MOUS, CONTENTS OR WHICH ARE NOT DENIED. THERE IS NO EVIDENCE TO THE CONTRARY. HOWEVER, THE APPELLANT HAS CLAIMED TO HAVE 3 I.T.A.NO.3486/DEL/2014 RECEIVED RETURN OF RS.34,20,000/- PERTAINING TO THE INVESTMENTS MADE WITH UHC RELATING TO THESE MOUS. THE RISK OF THE FINANCER BUILDER, AND CORRESPONDING GAIN OF ASSURED RETURN TO THE APPELLANT, WOULD ONLY BE OVER AND ABOVE THIS AMOUNT. THE TOTAL ASSURED RETURN AMOUNTED TO RS.45,67,500/- (I.E. RS.39,37,500/- PLUS RS.6,30,000/- AND THE DIFFERENCE OF RS.11,47,500/-, BEING AMOUNT IN EXCESS OF THE RETURN OF RS.34,20,000/- FROM THE INVESTMENT ALREADY DISCLOSED BY THE APPELLANT, SHALL BE BROUGHT TO TAX. I HOLD ACCORDINGLY. AMOUNT OF ADDITION CONFIRMED IS RS.11,47,500/- AND APPELLANT GETS RELIEF OF RS.34,20,000/-.' 4.2 FOLLOWING THE ABOVE DECISION, THE AMOUNT OF ASSURED RETURN IS HELD TO BE CHARGEABLE TO TAX. THE AMOUNT ADDED BY THE REVENUE IS RS.22,50,000/-, OR WHICH THE SUM OF RS.20,55,000/- HAS ALREADY BEEN DISCLOSED BY THE APPELLANT AS PROFIT ON SURRENDER O F THE FLATS. THUS, THE ADDITIONAL AMOUNT CHARGEABLE T O TAX WOULD BE RS.L,95,000/- (I.E. RS.22,50.000/- MIN US RS.20,55,000/-). I HOLD AND DIRECT THE AO ACCORDING LY. APPELLANT GETS RELIEF OF RS.20.55,000/-. 3. AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESS EE IS IN APPEAL BEFORE US NOW. 4. LD. A.R. SUBMITTED THAT THE ASSESSEE COMPANY HAS RECEIVED PROFIT ON SURRENDER OF FLATS OF RS.20,55,0 00/- WHICH IS NOTHING BUT SORT OF ASSURED RETURN ON THE INVESTMENT MADE. 5. LD. D.R. RELIED UPON THE ORDERS OF THE AUTHORITI ES BELOW. 6. WE HAVE PERUSED THE RECORDS PLACED BEFORE US AND ARGUMENTS ADVANCED BY BOTH THE SIDES. ON PERUSAL O F THE 4 I.T.A.NO.3486/DEL/2014 MOU DATED 16.08.2009 PLACED AT PAGES 1-8 OF THE PAP ER BOOK, IT APPEARS THAT ASSURED RETURN IS A PART OF M OU, WHICH IS NOT DENIED BY THE LD. A.R. THE LD. CIT(A) HAS RECORDED THAT THE AMOUNT DISCLOSED BY THE ASSESSEE AS PROFIT ON SURRENDER, WHICH HAS BEEN TAKEN INTO CONSIDERATION WHILE ARRIVING AT THE AMOUNT CHARGEAB LE TO TAX. WE DO NOT FIND ANY INFIRMITY IN THE FINDINGS OF LD. CIT(A) AND THE SAME IS UPHELD. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE STAN DS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09 TH SEP., 2016. SD./- SD./- (J. S. REDDY) (BEENA A. PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 09.09.2016 SP. COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY. BY ORDER (ITAT, NEW DELHI) 5 I.T.A.NO.3486/DEL/2014 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS 9/9/16 SR. PS/PS 6 KEPT FOR PRONOUNCEMENT 9/9 SR. PS/PS 7 FILE SENT TO BENCH CLERK 9/9 SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER