TRIVENI CONSTRUCTIONS, MUMBAI V. ACIT CC 2, MUMBAI

ITA 3778/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8970 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 24-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A B KOLI; D G
• Keywords: Bogus purchase; Sale consideration of property below Jantri Value; Capital asset; Fair market value; Set aside
• Section: 43CA; 40A(3); 143(3); 50C; 133(6); 145

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI C.N. PRASAD (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 3778/MUM/2017 ASSESSMENT YEAR: 2010 - 11 M/S TRIVENI CONSTRUCTIONS, 001, GROUND FLOOR, BALAJI BUSINESS PARK, PLAT NO. 3 & 5, SURVEY NO. 785, MAROL, ANDHERI (EAST). VS. ACIT, CC - 2, THANE 6 TH FLOOR, ASHAR IT INCOME TAX OFFICE, WAGLE ESTATE, THANE WEST - 400604. CURRENT J URISDICTION - DCIT - 25(1), MUMBAI - C - 10, BANDRAKURLA COMPLEX, MUMBAI - 400051. PAN NO. AAFFT0913L APPELLANT RESPONDENT ITA NO. 4357/MUM/2017 ASSESSMENT YEAR: 201 0 - 1 1 DCIT - 25(1), MUMBAI, ROOM NO. 402, C - 10, BKC, BANDRA MUMBAI. VS. M/S TRIVENI CONSTRUCTIONS, 001, GROUND FLOOR, BALAJI BUSINESS PARK, PLAT NO. 3 & 5, SURVEY NO. 785, MAROL, ANDHERI (EAST). PAN NO. AAFFT0913L APPELLANT RESPONDENT ITA NO. 3779/MUM/2017 ASSESSMENT YEAR: 201 2 - 1 3 M/S TRIVENI CONSTRUCTIONS, 001, GROUND FLOOR, BALAJI BUSINESS PARK, PLAT NO. 3 & 5, SURVEY NO. 785, MAROL, ANDHERI (EAST). VS. DCIT, PANVEL CIRCLE, PANVEL 3 RD FLOOR, TRIFED TOWER, OPP. KHANDA COLONY, NEW PANVEL, 410206 CURRENT JURISDICTION - DCIT - 25(1), MUMBAI, C - 10, BANDRAKURLA COMPLEX, MUMBAI - 400051. PAN NO. AAFFT0913L M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 2 APPELLANT RESPONDENT ITA NO. 4457 / MUM/2017 ASSESSMENT YEAR: 2012 - 13 DCIT - 25(1), MUMBAI, ROOM NO. 402, C - 10, BKC, BANDRA MUMBAI. VS. M/S TRIVENI CONSTRUCTIONS, OFFICE NO. 01, GROUND FLOOR, BALAJI BUSINESS PARK, PLAT NO. 3 & 5, MITTAL INDL. ESTATE, MV ROAD, AK ROAD, ANDHERI (EAST) , MUMBAI . PAN NO. AAFFT0913L APPELLANT RESPONDENT ITA NO. 3783/MUM/2017 ASSESSMENT YEAR: 2012 - 13 M/S TRIVENI REALITIES, 001, GROUND FLOOR, BALAJI BUSINESS PARK, PLAT NO. 3 & 5, SURVEY NO. 785, MAROL, ANDHERI (EAST) - 400059. VS. DCIT, PANVEL CIRCLE, PANVEL 3 RD FLOOR, TRIFED TOWER, OPP. KHANDA COLONY, NEW PANVEL, 410206 CURRENT JURISDICTION - DCIT - 25(1), MUMBAI, C - 10, BANDRAKURLA COMPLEX, MUMBAI - 400051. PAN NO. AAFFT1575N APPELLANT RESPONDENT ITA NO. 4456/MUM/2017 ASSESSMENT YEAR: 2012 - 13 DCIT - 25(1), MUMBAI, ROOM NO. 402, C - 10, BKC, BANDRA (E), MUMBAI - 400051. VS. M/S TRIVENI REALTIES, OFFICE NO. 01, GROUND FLOOR, PLAT NO. 3 & 5, MITTAL INDL. ESTATE, M V ROAD, AK ROAD, ANDHERI (EAST), MUMBAI . PAN NO. AAFFT1575N APPELLANT RESPONDENT M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 3 ITA NO. 4912/MUM/2017 ASSESSMENT YEAR: 2012 - 13 M/S TRIVENI PROPERTIES, 001, GROUND FLOOR, BALAJI BUSINESS PARK, PLAT NO. 3 & 5, SURVEY NO. 785, MAROL, ANDHERI (EAST) - 400059. VS. DCIT, PANVEL CIRCLE, PANVEL 3 RD FLOOR, TRIFED TOWER, OPP. KHANDA COLONY NEW PANVEL - 410206. PAN NO. AAFFT2375N APPELLANT RESPONDENT ITA NO. 4942/MUM/2017 ASSESSMENT YEAR: 2012 - 13 DCIT - 25(1), MUMBAI, ROOM NO. 402, C - 10, BKC, BANDRA (E), MUMBAI - 400051. VS. M/S TRIVENI PROPERTIES, OFFICE NO. 01, GROUND FLOOR, PLAT NO. 3 & 5, MITTAL INDL. ESTATE, MV ROAD, AK ROAD, ANDHERI (EAST) - MUMBAI . PAN NO. AAFFT2375N APPELLANT RESPONDENT ITA NO. 3785/MUM/2017 ASSESSMENT YEAR: 2012 - 13 M/S TRIVENI SPACES, 001, GROUND FLOOR, BALAJI BUSINESS PARK, PLAT NO. 3 & 5, SURVEY NO. 785, MAROL, ANDHERI (EAST). VS. DCIT, PANVEL CIRCLE, PANVEL NOW LYING WITH ITO WD 2, TRIFFED TOWER, 2 ND FLOOR, SEC 17 KHANDA COLONY NEW PANVEL DIST. RAIGAD, NEW PANVEL. PAN NO. AAFFT2023D APPELLANT RESPONDENT ITA NO. 4453/MUM/2017 ASSESSMENT YEAR: 2012 - 13 DCIT - 25(1), MUMBAI, ROOM NO. 402, C - 10, BKC, BANDRA (E), MUMBAI - 400051. VS. M/S TRIVENI SPACES, OFFICE NO. 01, GROUND FLOOR, PLAT NO. 3 & 5, MITTAL INDL. ESTATE, M V ROAD, AK ROAD, ANDHERI (EAST), MUMBAI. M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 4 PAN NO. AAFFT2023D APPELLANT RESPONDENT ITA NO. 3781/MUM/2017 ASSESSMENT YEAR: 2012 - 13 M/S TRIVENI HOMES, 001, GROUND FLOOR, BALAJI BUSINESS PARK, PLAT NO. 3 & 5, SURVEY NO. 785, MAROL, ANDHERI (EAST). VS. DCIT, PANVEL CIRCLE, PANVEL 3 RD FLOOR, TRIFED TOWER, OPP. KHANDA COLONY, NEW PANVEL, 410206. PAN NO. AAFFT1576R APPELLANT RESPONDENT ITA NO. 4455/MUM/2017 ASSESSMENT YEAR: 2012 - 13 DCIT - 25(1), MUMBAI, ROOM NO. 402, C - 10, BKC, BANDRA MUMBAI. VS. M/S TRIVENI HOMES , OFFICE NO. 01, GROUND FLOOR, PLAT NO. 3 & 5, MITTAL INDL. ESTATE, M V ROAD, AK ROAD, ANDHERI (EAST), MUMBAI ). PAN NO. AAFFT1576R APPELLANT RESPONDENT ASSESSEE BY : MR.RUSHABH MEHTA , AR REVENUE BY : MR. A.B.KOLI & MR. D.G. PANSARI , SR. DRS LAST D ATE OF H EARING : 21 /0 6 /2019 DATE OF PRONOUNCEMENT: 27/06/2019 ORDER PER BENCH THE CAPTIONED CROSS APPEALS BY THE ASSESSEE AND THE REVENUE ARE DIRECTED AGAINST THE ORDER OF THE COMMISSI ONER OF INCOME TAX (APPEALS) - 1 , AURANGABAD [ IN SHORT CIT(A)] AND ARISE OUT OF THE ASS ESSMENT COMPLETED U/S 143(3) OF THE INCOME TAX ACT 1961 (THE M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 5 ACT). AS COMMON ISSUES ARE INVOLVED, WE ARE PROCEEDING TO DISPOSE THEM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 3778/MUM/2017 ASSESSMENT YEAR: 2010 - 11 (M/S TRIVENI CONSTRUCTIONS - ASSESSEES APPEAL) 2. THE GROUNDS OF AP PEAL FILED BY THE ASSESSEE READ AS UNDER: 1. THE LD. CIT(A) ERRED IN FACTS AND LAW IN DISALLOWING AND REDUCING A SUM OF RS.75,78,066/ - FROM THE CLOSING WIP IN RESPECT OF CERTAIN PURCHASES ALLEGED AS BOGUS BY THE ASSESSING OFFICER WITHOUT APPRECIATING THE EVIDENCES PLACED ON RECORD. 2. THE LD. CIT(A) AN D ASSESSING OFFICER ERRED IN FACTS AND LAW IN NOT APPRECIATING THAT THE APPELLANT HAD DULY DISCHARGED ITS ONUS OF ESTABLISHING THE GENUINENESS OF PURCHASES AND UTILIZATION THEREOF IN THE BUSINESS OF THE APPELLANT AND ACCORDINGLY NO DISALLOWANCE WAS WARRANT ED. 3. THE LD. CIT(A) AND ASSESSING OFFICER ERRED IN FACTS AND LAW IN RELYING UPON THE STATEMENT OF CERTAIN PERSONS WITHOUT APPRECIATING THE DEFECTS POINTED OUT THEREIN AND WITHOUT AFFORDING THE APPELLANT ANY OPPORTUNITY OF CROSS - EXAMINATION OF THESE PARTIES . 4. THE APPELLANT PRAYS THAT (A) WIP AS SHOWN IN RETURN OF INCOME BE RESTORED AND DISALLOWANCE OF RS.75,78,066/ - BE DELETED; (B) ANY OTHER RELIEF, AS MAY BE DEEMED FIT. 3. BRIEFLY STATED, THE FACTS ARE THAT THE ASSESSEE, A BUILDER AND DEVELOPER FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR (AY) 2010 - 11 ON 07.09.2010 DECLARING TOTAL INCOME OF RS. NIL AND SHOWING CARRIED FORWARD LOSS OF RS.17,95,674/ - . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER (AO) ISSUED NOTICE U/S 133(6) T O 25 M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 6 PARTIES TO VERIFY THE GENUINENESS OF PURCHASES. IN RESPONSE TO IT , ONE OF THE PART IES , NAMELY SHRI CHANDRAKANT JIVRAM DHERAI, PAN - AAEPD7085N, PROP. OF BHOOMI SALES CORPORATION ATTENDED BEFORE THE AO AND SUBMITTED IN WRITING THAT HE HAD NOT MADE ANY TR ANSACTION WITH M/S TRIVENI CONSTRUCTION (THE ASSESSEE), M/S TRIVENI HOMES, M/S TRIVENI REALITIES, TRIVENI DEVELOPERS AND MAX REALITIES PVT. LTD. FURTHER, THE AO FOUND THAT AS PER THE INVESTIGATION CONDUCTED BY THE SALES TAX DEPARTMENT, GOVERNMENT OF MAHA RASHTRA, THE SAID PARTIES WERE INVOLVED IN SUPPLYING BOGUS BILLS WITHOUT ANY PHYSICAL DELIVERY OF MATERIALS. THE ASSESSEE ALSO FAILED TO PRODUCE THE SAID PARTIES BEFORE THE AO FOR EXAMINATION AND ALSO COULD NOT FILE A COPY OF VAT RETURN AND OTHER RELEVAN T DETAILS. IN VIEW OF THE ABOVE FACTS, THE AO MADE AN ADDITION OF RS.8,96,98,723/ - IN RESPECT OF PURCHASES FROM THE SAID 25 PARTIES. 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE FILED A N APPEAL BEFORE THE LD. CIT(A). WE FIND THAT THE LD. CIT(A) REFE RRING TO THE JUDGMENT OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF SIMIT P. SHETH V. CIT 356 ITR 451, WHEREIN, THE ADDITION @ 12.5% OF THE BOGUS PURCHASES WAS UPHELD, OBSERVED THAT IN THE SAID CASE THE ITAT HAS WORKED OUT THE RATE OF 12.5% AS THE BOGU S PURCHASES HAD RESULTED IN SAVING OF 10% SALES TAX AND THE BENEFIT OF 2.5% INDUSTRY MARGIN. APPLYING THE SAID RATIONAL E TO THE PRESENT CASE, THE LD. CIT(A) OBSERVED THAT GP OF 6.5% ON HAWALA PURCHASES (INVOLVING VAT OF 4%) AND GP OF 15% ON HAWALA PURCHASE S (INVOLVING VAT OF 12.5%) WOULD SUFFICE THE M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 7 MATTER. OUT OF TOTAL HAWALA PURCHASES OF RS.8,96,98,723/ - , PURCHASES OF RS.6,91,38,145/ - INVOLVES VAT OF 4% AND GP @ 6.5% ON SUCH PURCHASES WORKS OUT TO RS. 44,93,980 AND PURCHASES OF RS.2,95,60,578/ - INVOLVES VA T OF 12.5% (M/S HITEN ENTERPRISES, M/S REALITY SALES (INDIA) PVT. LTD., M/S SAI ENTERPRISES, M/S STAI NLESS IMPEX PVT. LTD. AND M/S SU N ENTERPRISES) AND GP @ 15% ON SUCH PURCHASES WORKS OUT TO RS.30,84,086/ - . ACCORDINGLY, THE LD. CIT(A) HELD THAT THE WORK - I N - PROGRESS (WIP) IN THE CURRENT YEAR IS REDUCED BY AMOUNT OF RS.75,78,066/ - ON ACCOUNT OF INFLATION OF PURCHASES. THE LD. CIT(A) THUS DIRECTED THE AO TO DELETE THE ADDITION OF RS.8,96,98,723/ - MADE IN THE CURRENT YEAR. 5. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE SUBMITS THAT THE SALES TAX DEPARTMENT HAS MENTIONED THE ABOVE REFERRED PARTIES AS SUSPICIOUS DEALERS AND NOT BOGUS DEALERS WHICH IN ITSELF GOES TO SUGGEST THAT THE INVESTIGATION IS STILL ON AND THERE IS NO CLINCHING CONCLUSIVE EVIDENCE THEREOF EV EN BY THE SALES TAX DEPARTMENT. FURTHER, IT IS STATED BY HIM THAT THE ASSESSEE FILED DURING THE ASSESSMENT AND APPELLATE PROCEEDINGS EVIDENCE LIKE (I) COPY OF LEDGER OF THE DEALER FOR THE PERIOD 01.04.2009 TO 31.03.2010, (II) COPIES OF TAX INVOICES WHICH B EAR THE TIN OF THE DEALER, (III) COPIES OF DELIVERY CHALLAN, (IV) COPIES OF CONFIRMATION RECEIVED FROM THE SUPPLIERS, (V) COPIES OF BANK STATEMENT HIGHLIGHTING THE PAYMENT IN CHEQUE TO THE DEALER, (VI) COPY OF ARCHITECTS CERTIFICATE CERTIFYING CONSUMPTION OF MATERIALS, (VII) COPY OF QUANTITATIVE DETAILS OF MATERIALS PURCHASED. M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 8 THUS IT IS STATED THAT NO NEGATIVE OBSERVATION/FINDING IS BROUGHT ON RECORD IN RELATION TO THE SAID EVIDENCES. REFERRING TO THE DECISION IN CIT V. ORISSA CORPORATION P. LTD . (1986) 159 ITR 78 (SC) AND CIT V. NIKUNJ EXIMP ENTERPRISES (P.) LTD. (2015) 372 ITR 619 (BOM), IT IS ARGUED BY HIM THAT NON - SERVICE OF NOTICE U/S 133(6) COULD NOT BE VIEWED ADVERSELY AGAINST THE ASSESSEE. FURTHER, IT IS STATED BY HIM THAT THE AO HAS NOT PROVIDED AN OPPORTUNITY TO CROSS EXAMINE SHRI CHANDRAKANT DHERAI, ON WHOSE STATEMENT RELIANCE WAS PLACED BY THE AO. ALSO IT IS STATED BY HIM THAT THE SAID PARTY WAS A MVAT DEFAULTER AND ACCORDINGLY, TO AVOID THE CONSEQUENCES OF DEFAULT MAY HAVE GIVEN SUCH A STATEM ENT. AS PER THE LD. COUNSEL SECTION 48(5) OF THE MVAT ACT SHIFTS THE BURDEN OF PAYING MVAT TO THE PURCHASER OF GOODS ON THE SELLER GIVING SUCH A DEPOSITION OF ISSUING BOGUS BILLS. REGARDING DELIVERY OF GOODS, IT IS STATED THAT THE TRANSPORT DOCUMENTS WERE NOT AVAILABLE WITH THE ASSESSEE, AS THE TRANSPORTATION WAS USUALLY UNDERTAKEN BY THE SUPPLIER AND THE GOODS WERE DIRECTLY DELIVERED AT THE SITE OF CONSTRUCTION. THE LD. COUNSEL, WITHOUT PREJUDICE TO THE ABOVE SUBMITS THAT THE ADDITION, IF ANY SHOULD BE R ESTRICTED WITHIN THE RANGE OF 2% TO 3% OF THE ALLEGED BOGUS PURCHASES AS HELD IN THE CASE OF ASSESSEES GROUP CONCERN - 2% IN M/S TRIVENI HOMES IN ITA NO. 3780/MUM/2017 AND 4355/MUM/2017 AND 3% IN M/S TRIVENI REALITIES IN ITA NO. 3782/MUM/2017 AND 4356/MUM/2 017 BEING UNDER IDENTICAL FACTS AND THE SAME SHALL HAVE EFFECT OF RESTATING THE WIP TO THAT EXTENT AND NOT TO BE ADDED TO THE TOTAL INCOME FOR THE YEAR UNDER CONSIDERATION. M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 9 ON THE OTHER HAND, THE LD. DR SUBMITS THAT THE ORDER PASSED BY THE AO BE CONFIRMED . 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE REASONS FOR OUR DECISIONS ARE GIVEN BELOW. A SIMILAR ISSUE AROSE BEFORE THE HONBLE BOMBAY HIGH COURT IN PR. CIT V. M/S MOHOMMAD HAJI ADAM & CO . (ITA NO. 1004 OF 2016). IN THAT CASE, DURING THE COURSE OF SURVEY OPERATIONS IN THE CASE OF ENTITIES FROM WHOM THE ASSESSEE HAD CLAIMED TO HAVE MADE PURCHASES, THE DEPARTMENT COLLECTED INFORMATION SUGGESTING THAT SUCH PURCHASES WERE NOT GENUINE. THE AO NOTICED THAT THE ASS ESSEE HAD SHOWN PURCHASES OF FABRICS WORTH RS.29.41 LAKHS FROM THREE GROUP CONCERNS, NAMELY M/S MANOJ MILLS, M/S ASTHA SILK INDUSTRIES AND M/S SHRI RAM SALES AND SYNTHETICS. ON THE BASIS OF STATEMENT RECORDED DURING SUCH SURVEY OPERATIONS, THE AO CONCLUDED THAT THE SELLING PARTIES WERE ENGAGED ONLY IN SUPPLYING THE BOGUS BILLS, THAT THE GOODS IN QUESTION WERE NEVER SUPPLIED TO THE ASSESSEE, AND THEREFORE, THE PURCHASES WERE BOGUS. HE, THEREFORE, ADDED THE ENTIRE SUM IN THE HANDS OF THE ASSESSEE AS ITS ADDIT IONAL INCOME. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A), WHO ACCEPTED THE FACTUM OF PURCHASES BEING BOGUS. HOWEVER, HE COMPARED THE PURCHASES AND SALES STATEMENTS OF THE ASSESSEE AND OBSERVED THAT THE DEPARTMENT HAD ACCEPTED THE SALE, AND THEREFORE, THERE WAS NO REASON TO REJECT THE PURCHASES, BECAUSE WITHOUT PURCHASES THERE CANNOT BE SALES. HE, THEREFORE, HELD THAT UNDER THESE CIRCUMSTANCES THE AO WAS NOT CORRECT IN ADDING THE ENTIRE AMOUNT OF PURCHASES AS THE ASSESSEES INCOME. HE, THERE FORE, DELETED THE ADDITION REFRESHING IT TO M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 10 10% OF THE PURCHASE AMOUNT. HE ALSO DIRECTED THE AO TO MAKE ADDITION TO THE EXTENT OF DIFFERENCE BETWEEN THE GROSS PROFIT RATE AS PER THE BOOKS OF ACCOUNTS ON UNDISPUTED PURCHASES AND GROSS PROFIT ON SALES RELATI NG TO THE PURCHASES MADE FROM THE SAID THREE PARTIES. THE ASSESSEE CARRIED THE MATTER BEFORE THE TRIBUNAL. THE REVENUE ALSO CARRIED THE ISSUE BEFORE THE TRIBUNAL. THE TRIBUNAL ALLOWED THE APPEAL OF THE ASSESSEE PARTLY AND DISMISSED THAT OF THE REVENUE. THE TRIBUNAL NOTED THAT THE CIT(A) HAD NOT GIVEN ANY REASONS FOR RETAINING 10% OF THE PURCHASES BY WAY OF AD - HOC ADDITIONS. THE TRIBUNAL, THEREFORE, DELETED SUCH ADDITIONS, BUT RETAINED THE PORTION OF THE ORDER OF THE CIT(A) TO THAT EXTENT HE PERMITTED THE AO TO TAX THE ASSESSEE ON THE BASIS OF DIFFERENCE IN THE GP RATES. IN FURTHER APPEAL BEFORE THE HONBLE BOMBAY HIGH COURT, THE REVENUE REFERRED TO THE DECISION OF THE DIVISION BENCH OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF N.K. INDUSTRIES LTD. V. DCI T IN TAX APPEAL NO. 240 OF 2003 AND CONNECTED APPEALS DECIDED ON 20.06.2016 AND ALSO POINTED OUT THAT THE SLP AGAINST SUCH DECISION WAS DISMISSED BY THE HONBLE SUPREME COURT. THE HONBLE BOMBAY HIGH COURT HELD : 8. IN THE PRESENT CASE, AS NOTED ABOVE, T HE ASSESSEE WAS A TRADER OF FABRICS. THE A.O. FOUND THREE ENTITIES WHO WERE INDULGING IN BOGUS BILLING ACTIVITIES. A.O. FOUND THAT THE PURCHASES MADE BY THE ASSESSEE FROM THESE ENTITIES WERE BOGUS. THIS BEING A FINDING OF FACT, WE HAVE PROCEEDED ON SUCH BA SIS. DESPITE THIS, THE QUESTION ARISES WHETHER THE REVENUE IS CORRECT IN CONTENDING THAT THE ENTIRE PURCHASE AMOUNT SHOULD BE ADDED BY WAY OF ASSESSEE'S ADDITIONAL INCOME OR THE ASSESSEE IS CORRECT IN CONTENDING THAT SUCH LOGIC CANNOT BE APPLIED. THE FINDI NG OF THE CIT(A) AND THE TRIBUNAL WOULD SUGGEST THAT THE DEPARTMENT HAD NOT DISPUTED THE ASSESSEE'S SALES. THERE WAS NO DISCREPANCY BETWEEN THE PURCHASES SHOWN BY THE ASSESSEE AND M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 11 THE SALES DECLARED. THAT BEING THE POSITION, THE TRIBUNAL WAS CORRECT IN COM ING TO THE CONCLUSION THAT THE PURCHASES CANNOT BE REJECTED WITHOUT DISTURBING THE SALES IN CASE OF A TRADER. THE TRIBUNAL, THEREFORE, CORRECTLY RESTRICTED THE ADDITIONS LIMITED TO THE EXTENT OF BRINGING THE G.P. RATE ON PURCHASES AT THE SAME RATE OF OTHER GENUINE PURCHASES. THE DECISION OF THE GUJARAT HIGH COURT IN THE CASE OF N.K. INDUSTRIES (SUPRA) CANNOT BE APPLIED WITHOUT REFERENCE TO THE FACTS. IN FACT IN PARAGRAPH 8 OF THE SAME JUDGMENT THE COURT HELD AND OBSERVED AS UNDER - SO FAR AS THE QUESTION REGARDING ADDITION OF RS.3,70,78,125/ - AS GROSS PROFIT ON SALES OF RS.37.08 CRORES MADE BY THE ASSESSING OFFICER DESPITE THE FACT THAT THE SAID SALES HAD ADMITTEDLY BEEN RECORDED IN THE REGULAR BOOKS DURING FINANCIAL YEAR 1997 - 98 I S CONCERNED, WE ARE OF THE VIEW THAT THE ASSESSEE CANNOT BE PUNISHED SINCE SALE PRICE IS ACCEPTED BY THE REVENUE. THEREFORE, EVEN IF 6 % GROSS PROFIT IS TAKEN INTO ACCOUNT, THE CORRESPONDING COST PRICE IS REQUIRED TO BE DEDUCTED AND TAX CANNOT BE LEVIED ON THE SAME PRICE. WE HAVE TO REDUCE THE SELLING PRICE ACCORDINGLY AS A RESULT OF WHICH PROFIT COMES TO 5.66 %. THEREFORE, CONSIDERING 5.66 % OF RS.3,70,78,125/ - WHICH COMES TO RS.20,98,621.88 WE THINK IT FIT TO DIRECT THE REVENUE TO ADD RS.20,98,621.88 AS G ROSS PROFIT AND MAKE NECESSARY DEDUCTIONS ACCORDINGLY. ACCORDINGLY, THE SAID QUESTION IS ANSWERED PARTIALLY IN FAVOUR OF THE ASSESSEE AND PARTIALLY IN FAVOUR OF THE REVENUE. WE FIND THAT THE FACTS IN THE INSTANT CASE ARE SIMILAR TO THE ABOVE DECISION. FO LLOWING THE SAME, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT THE AO TO RESTRICT THE ADDITIONS LIMITED TO THE EXTENT OF BRINGING THE G.P. RATE ON DISPUTED PURCHASES AT THE SAME RATE OF OTHER GENUINE PURCHASES. M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 12 AS THE ABOVE MATTER IS RESTORED TO TH E AO, WE ARE NOT ADVERTING TO THE CASE - LAWS RELIED ON BY BOTH SIDES. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 4357/MUM/2017 ASSESSMENT YEAR: 2010 - 11 (M/S TRIVENI CONSTRUCTIONS - REVENUES APPEAL) 8. THE GROUNDS OF APPEAL FILED BY THE R EVENUE READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN RESTRICTING THE ADDITION OF RS.8,96,98,723/ - ON ACCOUNT OF BOGUS PURCHASES TO RS.75,78,066/ - . 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN IN LAW , THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THAT THE ADDITION WAS MADE ON THE BASIS OF INFORMATION RECEIVED FROM SALES TAX DEPARTMENT, MAHARASHTRA WITH REGARD TO BOGUS PURCHASES MADE BY THE ASSESSEE FROM DEALERS WITHOUT ACTUAL SUPPLY OF GOODS. 3. ON THE FAC TS AND IN THE CIRCUMSTANCES OF THE CASE AN IN LAW , THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THAT THE HAWALA DEALERS HAVE ADMITTED ON OATH BEFORE THE SALES TAX AUTHORITIES THAT THEY HAVE NOT SOLD ANY MATERIAL TO ANYBODY. 4. ON THE FACTS AND IN THE CIRCUMST ANCES OF THE CASE AN IN LAW , THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THAT THE ASSESSEE COULD NOT PROVE THE GENUINENESS AND CREDITWORTHINESS OF THE PURCHASE TRANSACTIONS DURING THE COURSE OF ASSESSMENT PROCEEDING. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN IN LAW , THE LD. CIT(A) HAS FAILED TO CONFORM TO THE RATIO LAID DOWN BY THE HONBLE APEX COURT IN THE CASE OF N.K. PROTEINS LTD. V. DCIT IN SLP (CIVIL) NO. 769/2017 DATED 16.01.2017. M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 13 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LA W THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THAT PURCHASES WERE MADE FROM SOME OTHER PARTIES WHICH WERE NOT RECORDED IN THE BOOKS OF ACCOUNTS AND ONLY ACCOMMODATION BILLS WERE OBTAINED FROM HAWALA PARTIES AND THERE BY ATTRACTING PROVISIONS OF SECTION 40 A(3). 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN IN LAW THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THAT APPLICABILITY OF PROVISIONS OF 40A(3) ATTRACTS 100% BOGUS PURCHASES TO BE HELD AS PROFIT. 8. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 9. IN THE AFOREMENTIONED APPEAL, IT IS THE CONTENTION OF THE R EVENUE THAT THE ADDITION OF RS.8,96,98,723/ - MADE BY THE AO BE RESTORED. AS MENTIONED EARLIER IN ITA NO. 3778/M/2017, WE HAVE RESTORED THE MATTER TO THE FILE OF THE AO. FACTS BEING IDENTICAL, S IMILARLY THE APPEAL FILED BY THE R EVENUE IN ITA NO. 4357/M/2017 IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 3779/MUM/2017 ASSESSMENT YEAR: 2012 - 13 (M/S TRIVENI CONSTRUCTIONS - ASSESSEES APPEAL) & ITA NO. 4457MUM/2017 ASSESSMENT YEAR: 2012 - 13 (M/S TRIVENI CONSTRUCTIONS - REVENUES APPEAL) 10. THE 1 ST GROUND OF THE ASSESSEE IN ITA NO. 3779/MUM/2017 OF THE ASSESSEE AND THE 1 ST , 2 ND , 3 RD AND 4 TH GROUND OF APPEAL OF THE R EVENUE ARE INTER RELAT ED. THEREFORE, THESE ARE DISCUSSED TOGETHER BELOW. M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 14 1 1 . THE 1 ST GROUND OF APPEAL IN ITA NO. 3779/MUM/2017 1. (A) THE LD. CIT(A) ERRED IN FACTS AND LAW IN UPHOLDING THE ADDITION TO THE TUNE OF RS.84,85,259/ - ON ACCOUNT OF DIFFERENCE IN RATE PER SQ. FT. CHARGED TO VARIOUS CUSTOMERS VIS - - VIS THE MARKET RATES PER SQ. FT. ON THE DATE OF BOOK ING BY THESE CUSTOMERS. (B) THE LD. CIT(A) ERRED IN FACTS AND LAW IN SUSTAINING THE ADDITION ON ACCOUNT OF RATE DIFFERENCE WITHOUT APPRECIATING THE EXPLANATIONS PLACED ON RECORD AND THAT NO EVIDENCE OF ANY ON - MONEY RECEIPT BY THE APPELLANT WAS BROUGHT ON RECORD BY THE ASSESSING O FFICER. (C) THE LD. CIT(A) ERRED IN FACTS AND LAW IN APPLYING THE AMENDED PROVISIONS OF SEC. 50C BY FINANCE ACT, 2016 RETROSPECTIVELY WITHOUT EVEN APPRECIATING THAT THE FLATS/SHOPS SOLD BY THE ASSESSEE WERE HELD AS STOCK IN TRADE AND NOT AS CAPITAL ASSETS . (D) THE LD. CIT(A) ERRED IN LAW AND FACTS IN MAKING THE ADDITION BASED ON DIFFERENCE IN LAW AND FACTS IN MAKING THE ADDITION BASED ON DIFFERENCE IN AGREEMENT VALUE AND STAMP DUTY VALUE WITHOUT APPRECIATING THAT THE ENABLING SECTION OF SUCH NOTIONAL TAXA TION BEING SECTION 43CA WAS NOT APPLICABLE FOR THE YEAR UNDER CONSIDERATION. 12. THE 1 ST , 2 ND , 3 RD AND 4 TH GROUND OF APPEAL IN ITA NO. 4457/MUM/2017 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN RESTRICTING THE ADDITION OF RS.8,76,70,801/ - ON ACCOUNT OF DIFFERENCE IN RATE PER SQUARE FEET CHARGED TO CUS TOMERS FOR PURCHASE OF PROPERTY TO RS.84,85,259/ - . 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN ACCEPTING THE CONTE NTION OF THE ASSESSEE THAT THE DIFFERENCE IN SALE PRICE WAS DUE TO TRANSACTIONS IN UNFINISHED PROPERTY OR LOCATION ETC. WITHOUT ANY EVIDENCE TO SUBSTANTIATE THE SAME WHEREAS M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 15 THE AO IN THE ASSESSMENT ORDER HAD CLEARLY BROUGHT OUT EVIDENCES TO PROVE THAT NO UNFINISHED FLATS WERE SOLD. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THAT THE AO HAD MADE ENQUIRES WHICH ESTABLISHED THAT NO PROPERTY PURCHASERS HAD ADMITTED TO PURCHASING UNFINISHED PROPER TIES AND NO AGREEMENT/CONTRACTS WERE PRODUCED BY THE ASSESSEE WHICH POINTED TO SALE OF UNFINISHED PROPERTIES. 1 3 . THE ASSESSEE IS AN ENTITY BELONGING TO THE TRIVENI GROUP OF BUILDER AND HAS DEVELOPED A PROJECT NAMELY BHOOMI TOWERS AT KAMOTHE. THE SALEABLE AREA OF THE PROJECT IS 1,57,513 SQ. FT. THE SAID PROJECT COMMENCED ON 24.06.2008 AND WAS COMPLETED ON 19.07.2011. ON PERUSAL OF THE FLAT/SHOP WISE DETAILS OF SALE, THE AO FOUND THAT THERE WERE ABNORMAL DIFFERENCES IN SELLING RATES OF FLAT/SHOPS IN MANY CA SES. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE SUBMITTED BEFORE THE AO THAT ONE OF THE REASONS FOR RATE VARIATION WAS ON ACCOUNT OF SALE OF UNFURNISHED FLATS TO FEW AND EXTRA - FURNISHED FLATS TO SOME OF THE CUSTOMERS. THE AO, IN ORDER TO VER IFY THIS ASPECT DEPUTED AN INSPECTOR OF INCOME TAX TO CONDUCT INQUIRIES WITH THE BUYERS OF FLATS AND A LETTER DATED 23.05.2015 WAS ISSUED TO THOSE BUYERS TO WHOM, THE ASSESSEE CLAIMED TO HAVE SOLD LESS/EXTRA - FURNISHED FLATS. AFTER INQUIRIES WITH THOSE FLAT BUYERS, THE INSPECTOR REPORTED THAT IN SOME CASES THERE IS CHANGE OF OWNERSHIP AND HENCE INQUIRES COULD NOT BE DONE BY HIM, WHEREAS SOME OF THE BUYERS TOLD THE INSPECTOR THAT THE Y PURCHASED NORMAL FLAT ONLY AND FURTHER CLARIFIED THAT NO EXTRA WORK LIKE TI LING, PAINTING, KITCHEN PLATFORM ETC. WERE CARRIED OUT BY THEM AFTER BUYING THE FLAT. THE AO VIDE LETTER DATED 2 3 .03.2015 ASKED THE ASSESSEE TO BE M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 16 PRESENT FOR SPOT VERIFICATION ON 27.03.2015 OF ALL SUCH FLATS. IN RESPONSE TO IT, THE AR OF THE ASSESSEE ALONG WITH THE PARTNER ATTENDED THE HEARING BEFORE THE AO ON 27.03.2015 AND SUBMITTED COPIES OF CERTAIN AGREEMENTS. THE ASSESSEE SUBMITTED BEFORE THE AO THAT THERE WAS NO INTENTION ABOUT UNFURNISHED OR EXTRA - FURNISHED FLATS BEING SOLD TO THE BUYERS. THE AO NOTED THAT THE ASSESSEE HAD NOT VOLUNTEERED TO ACCOMPANY THE INSPECTOR FOR SPOT VERIFICATION. THE AO HELD THAT AS THE ASSESSEE HAD SOLD SOME FLATS AT ABNORMALLY LOWER PRICE THAN EVEN THE PRICE ON THE DATE OF PROJECT LAUNCHING , IT CLEARLY INDICATES THAT TH E ASSESSEE HAD RECEIVED CASH AGAINST SALES. THE AO THUS CONCLUDED THAT ON - MONEY IN THE FORM OF CASH WERE RECEIVED BY THE ASSESSEE AGAINST THE SALE OF FLATS/SHOPS. ACCORDINGLY, IN ORDER TO WORK OUT THE ADDITION ON ACCOUNT OF RATE DIFFERENCE, THE AO TABULATE D A CHART DATE WISE CHRONOLOGICALLY AS INDICATED AT PARA 4.2 (PAGE 11 - 14) OF THE ASSESSMENT ORDER AND APPLIED THE MAXIMUM RATE ON NEARBY DATES. AS PER THIS METHOD, THE AO WORKED OUT AN AMOUNT OF RS.10,31,42,122/ - AND FURTHER GAVE AN ALLOWANCE OF 15% TO THE ASSESSEE FOR LIKELY MARKET CONDITIONS AND ALL POSSIBLE CONTENTIONS OF THE ASSESSEE. ACCORDINGLY, THE AO MADE AN ADDITION OF RS.8,76,70,801/ - [RS.10,31,42,122/ - MINUS 15% OF RS.10,31,42,122/ - ]. 1 4 . IN APPEAL, THE LD. CIT(A) AGREED WITH THE CONTENTIONS OF THE ASSESSEE THAT IN REAL ESTATE BUSINESS, CUSTOMERS HAVE SUBJECT PERCEPTIONS, DIFFERENT NEEDS, VAASTU BELIEFS, SCENIC ATTACHMENTS, FLOOR - WISE REQUIREMENTS, BARGAINING/NEGOTIATION POWERS ETC. WHICH HAVE TO BE ACCORDED DUE COGNIZANCE IN ORDER TO MEET THE DE MAND - SUPPLY FACTORS AND ALSO THE WORKING CAPITAL NEEDS OF THE BUSINESS AND TIMELY SALE OF FLATS/SHOPS. M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 17 IN THE INSTANT CASE, THE LD. CIT(A) HAS OBSERVED THAT SINCE THE DATE OF BOOKING APPROXIMATED THE DATE OF AGREEMENT IN ALMOST ALL THE CASES, THEREFORE, T HE STAMP DUTY RATE ON THE DATE OF AGREEMENT BE CONSIDERED AS A PRAGMATIC RATE PER SQ. FT. ON THE DATE OF BOOKING. THE TOTAL DIFFERENCE ON THIS BASIS WORKS OUT TO RS.84,85,250/ - AS PER THE FOLLOWING DETAILS: SR. NO. FLAT/SHOP NO. AGREEMENT VALUE AV STAMP DUTY VALUE SDV EXCESS OF SDV OVER AV 1. FLAT A - 604 RS.18,01,300/ - RS.20,27,424/ - RS.2,26,124/ - 2. FLAT A - 1201 RS.22,80,000/ - RS.28,73,000/ - RS.5,93,000/ - 3. FLAT A - 801 RS.22,00,000/ - RS.29,30,560/ - RS.7,30,560/ - 4. FLAT B - 301 28,64,750/ - RS.39,39,000/ - RS.10,74,250/ - 5. FLAT B - 304 RS.20,87,300/ - RS.31,93,000/ - RS.11,05,700/ - 6. FLAT B - 604 RS.33,41,875/ - RS.33,61,000/ - RS.19,125/ - 7. FLAT A - 1301 RS.37,50,000/ - RS.40,55,000/ - RS.3,05,000/ - 8. FLAT B - 1302 RS.54,41,125/ - RS.54,41,500/ - RS.375/ - 9. FLAT B - 1401 RS.35,00,000/ - RS.54,52,500/ - RS.19,52,500/ - 10. FLAT A - 1403 RS.44,97,375/ - RS.45,23,000/ - RS.25,625/ - 11. FLAT A - 1002 RS.34,50,000/ - RS.48,76,000/ - RS.14,26,000/ - 12. FLAT A - 102 RS.40,00,000/ - RS.50,27,000/ - RS.10,27,000/ - TOTAL RS.84,85,259/ - THE TOTAL DIFFERENCE BETWEEN STAMP DUTY VALUATION ON THE DATE OF BOOKING AND THE AGREEMENT VALUE WORKED OUT TO RS.84,85,259/ - , WHICH WAS ACCORDINGLY CONFIRMED TO THAT EXTENT. THROUGH THE COUNSEL, THE ASSESSEE REQUESTED THAT IN VIEW OF THE SETTLED LEGAL POS ITION AS LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF C.V. GAUTAM V. UOI 199 ITR 530, 15% DIFFERENCE IN THE VALUATION AND ACTUAL CONSIDERATION WAS ACCEPTABLE AND EVEN ALLOWANCE TO THE EXTENT OF 15% HAD ALSO BEEN ALLOWED BY THE AO. HOWEVER, THE LD. CIT(A) WAS NOT CONVINCED WITH THE M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 18 ABOVE EXPLANATION OF THE ASSESSEE AS IN THE INSTANT CASE, THE MATTER RELATES TO SALE BELOW THE STAMP DUTY VALUATION OR MARKET VALUE AND IT IS NOT THE REFERENCE TO THE PURCHASE/INVESTMENT WHERE SUCH TOLERANCE BAND HAS BEEN PRESSED. FURTHER, THE LD. CIT(A) MADE IT CLEAR THAT SUCH A DIFFERENCE, CANNOT, BY ANY STRETCH OF IMAGINATION BE LABELED AS ON - MONEY OR UNDISCLOSED RECEIPTS. 1 5 . BEFORE US, THE LD. COUNSEL OF THE ASSESSEE SUBMITS THAT THE AO HAS MADE A WILD GUESS WORK IN ESTIMATING THE ON - MONEY RECEIPTS BY THE ASSESSEE, MERELY ON THE BASIS OF DIFFERENCE IN RATES OFFERED TO VARIOUS CUSTOMERS. RELYING ON THE FOLLOWING DECISIONS, IT IS SUBMITTED BY HIM THAT ADDITION CANNOT BE MADE OF ON - MONEY RECEIVED FROM SALE OF FLATS B Y APPLYING THE AVERAGE RATE OF ALL THE FLATS SOLD IN THE PROJECT WITHOUT THERE BEING ANY EVIDENCE UNEARTHED. 1. NEELKAMAL REALTORS & ERECTORS INDIA (P.) LTD. V. DCIT (38 TAXMANN.COM 195) (MUM); 2. M/S RUNWAL PROJECTS PVT. LTD. V. DCIT (2018 - TIOL - 1169 - ITAT - MUM); 3. ACIT V. SHRI RUSTOM SOLI SETHNA (ITA NO. 5086/MUM/2014); 4. M/S SHAH REALTORS V. ACIT (MUM ITAT ITA NO. 2656/MUM/2016) AND 5. ACIT V. K.S. CONSTRUCTIONS (ITA NO. 7660/MUM/2014). IN THIS CASE, THE LD. CIT(A), RELYING ON THE DECISION OF THE ITAT, AHMEDABAD IN THE CASE OF DHARAMSHIBHAI SOMANI V. ACIT (ITA NO. 1237/AHD/2013) HAS HELD THAT THE PROVISIONS OF SECTION 50C IS RETROSPECTIVE AND HENCE, AFFIRMED THE ADDITION TO THE EXTENT THE AGREEMENT VALUE IS BELOW THE STAMP DUTY VALUE OR MARKET VALUE. IN THIS REGA RD, THE LD. COUNSEL SUBMITS THAT THE PROVISIONS OF SECTION 50C ARE M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 19 ONLY IN RELATION TO TRANSFER OF CAPITAL ASSETS; WHEREAS THE ASSESSEE - FIRM IS A BUILDER AND DEVELOPER AND THEREFORE, THE CONCERNED FLATS/SHOPS SOLD ARE NOT CAPITAL ASSET BUT STOCK - IN - TRADE. THEREFORE, IT IS STATED BY HIM THAT THE PROVISIONS OF SECTION 50C DO NOT APPLY. FURTHER, IT IS ARGUED BY HIM THAT THE PROVISIONS OF SECTION 43CA DEALING WITH STOCK - IN - TRADE HAS COME ON THE STATUTE SINCE AY 2014 - 15 AND NOT EARLIER TO WHICH THE PRESENT APPEA L RELATES TO I.E. AY 2012 - 13. HENCE, IT IS STATED THAT EVEN SECTION 43CA DOES NOT APPLY. THE LD. COUNSEL FURTHER SUBMITS THAT IN FACT, EVEN IN FEBRUARY 2009, SEARCH HAD TAKEN PLACE IN THE ASSESSEES PREMISES, WHEN THE PROJECT HAD ALREADY COMMENCED ON 24. 06.2008; NO EVIDENCE OF ON - MONEY WAS FOUND DESPITE THE BOOKING ADVANCES WERE RECEIVED AT THAT RELEVANT POINT OF TIME. ALSO IT IS MENTIONED THAT EVEN THE AUDITED BOOKS OF ACCOUNT ARE NOT REJECTED BY THE AO U/S 145 OF THE ACT. THUS IT IS STATED BY HIM THAT HAVING REGARD TO THE FACT THAT THE PROVISIONS OF SECTION 43CA AND 50C DO NOT APPLY AND THE AFORESAID JUDICIAL PRONOUNCEMENTS CLEARLY HOLDING THAT IT IS THE ONUS OF THE AO TO PROVE THAT THE AMOUNT OF SALE CONSIDERATION IS UNDERSTATED, IN THE PRESENT CASE, IN ABSENCE OF ANY EVIDENCE AT ALL, NO ADDITION CAN BE SUSTAINED. RELIANCE IS ALSO PLACED BY HIM ON THE DECISION IN CIT V. GEORGE HENDERSON & CO. 66 ITR 622 (SC) AND K.P. VARGHESE V. ITO 131 ITR 597 (SC). FINALLY, THE LD. COUNSEL SUBMITS THAT IN THE PRESE NT CASE, THE ADDITIONS MADE ARE ON SURMISES AND CONJECTURES WITHOUT ANY CORROBORATIVE/COGENT EVIDENCE AT ALL. HOWEVER, IT IS SUBMITTED BY HIM M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 20 THAT IN ORDER TO BUY PEACE OF MIND AND AVOID PROTRACTED LITIGATION, THE MARKET VALUE OR THE STAMP DUTY VALUE MAY B E CONSIDERED AS THE BENCH MARK WITH AN ALLOWANCE OF TOLERANCE BAND/VARIATION TO THE EXTENT OF 15% OF SUCH MARKET VALUE. IN THIS REGARD, RELIANCE IS PLACED BY HIM ON THE DECISION IN C.B. GAUTAM (SUPRA). IT IS STATED BY HIM THAT THE LD. CIT(A) HAS SUMMARILY REJECTED THIS PROPOSITION STATING THAT THE SAID DECISION PERTAINS TO PURCHASE TRANSACTION AND NOT SALE CONSIDERATION. THE SAME IS DISAGREED BY THE LD. COUNSEL BECAUSE THE PRICE AT WHICH A PART ICULAR STOCK IS PURCHASED WOULD BE THE SAME AS THE PRICE AT WHICH IT IS SOLD AND HENCE THERE CANNOT BE ANY TWO DIFFERENT PRICE FOR SALE AND CORRESPONDING PURCHASE TRANSACTION. IT IS FURTHER STATED BY HIM THAT THIS RATIO OF THE ABOVE DECISION BY THE HONBLE SUPREME COURT HAS BEEN FOLLOWED IN THE CONTEXT OF SECTION 50C, ACCEPTING THE TOLERANCE/VARIATION IN THE RANGE OF ABOUT 10% AS MAY BE SEEN IN THE FOLLOWING CASES : 1. KRISHNA ENTERPRISES V. ACIT (MUM ITAT) 2. M/S JOHN FOWLER INDIA P. LTD. V. DCIT (MUM. ITAT) 3. S ITABAIKHETAN V. ITO (JAIPUR ITAT) 4. LGW LIMITED V. ITO (KOLKATA ITAT) - ITA NO. 267/KOL/2013 5. ACIT V. S SUVARNAREKHA (HYD ITAT) - ITA NO. 743/HYD/2009 FINALLY, THE LD. COUNSEL SUBMITS THAT EVEN THE AO HAS GRANTED ALLOWANCE OF 15% OF THE TOTAL ADDITION MADE AND SIMILARLY, THE SAME PERCENTAGE OF ALLOWANCE SHOULD ALSO HAVE BEEN PROVIDED ON THE ADDITION SUSTAINED BY THE LD. CIT(A). SUCH A DIFFERENCE, IT IS STATED CANNOT BY ANY STRETCH OF IMAGINATION BE LABELED AS ON - MONEY OR UNDISCLOSED RECEIPTS. M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 21 ALSO, THE LD. COUNSEL SUBMITS THAT THE FACTS, IN THE FOLLOWING GROUP CONCERN CASES ARE IDENTICAL AND HENCE THE AFORESAID SUBMISSIONS/ARGUMENTS ON ISSUE OF ADDITION ON ACCOUNT OF RATE DIFFERENCE WOULD PREVAIL FOR THE FOLLOWING AS WELL : 1. TRIVENI REALTIES (ITA NOS. 3783 & 4456/MUM/2017); 2. TRIVENI HOMES (ITA NOS. 3781 & 4455/MUM/2017); 3. TRIVENI SPACES (ITA NOS. 3785 & 4453/MUM/2017) AND 4. TRIVENI PROPERTIES (ITA NO. 4912 & 4942/MUM/2017). 16. ON THE OTHER HAND, THE LD. DR SUBMITS THAT TO HAVE A CLEAR PICTURE OF RATE DIFFERENCE IN SALE OF FLATS/SHOPS, THE DETAILS OF SALES WERE ARRANGED DATE WISE CHRONOLOGICALLY BY THE AO . FROM THIS EXERCISE, THE AO NOTICED THAT FLAT NO. A - 803 ADMEASURING 1185 SQ. FT. HAD BEEN SOLD BY THE ASSESSEE ON 20.02.2012 @ RS.4,472/ - PER SQ. FT. SUBSEQUENT LY, ON 22.02.2012, THE ASSESSEE HAD SOLD FLAT NO. A - 1002 ADMEASURING 1520 SQ. FT. @ RS.2,270/ - PER SQ. FT. I.E AFTER TWO DAYS FROM THE DATE OF SALE @ RS.4472/ - THUS IT IS EXPLAINED THAT THE AO RIGHTLY CAME TO A FINDING THAT THE CONTENTION OF THE ASSESSEE - FIRM THAT INCOMPLETE FLATS HAD BEEN SOLD APPEARED TO BE INCORRECT. AS PER THE AO, IF THE FLATS WERE INCOMPLETE, MUNICIPAL AUTHORITIES WOULD NOT HAVE ISSUED OCCUPANCY CERTIFICATE. THE PROJECT WAS COMPLETED ON 19.07.2011. ON THE BASIS OF COST OF CONSTRUCTION TILL THE DATE OF ASSESSMENT, THE ASSESSEE HAD VALUED THE CLOSING STOCK @ RS.3002/ - PER SQ. FT. HOWEVER, ON 24.07.2011, THE ASSESSEE HAD SOLD FLAT NO. B - 202 @ RS.4073/ - PER SQ. FT. UNDER THESE CIRCUMSTANCES, THE AO OBSERVED AS TO HOW THE ASSESSEE - FIRM COUL D SELL FLAT NO. B - 604 @ RS.2820/ - PER SQ. FT. ON 31.07.2011 AND FLAT NO. A - 1301 @ RS.2560/ - SQ. FT. ON 17.08.2011 AT LESSER RATE THAN THE COST . THE AO M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 22 ACCORDINGLY WORKED OUT RATE DIFFERENCE OF RS.1 0 ,31,42,122/ - WHICH WAS HELD TO BE UNDISCLOSED RECEIPTS OF THE ASSESSEE - FIRM. THE LD. DR SUBMITS THAT THE ABOVE RATE DIFFERENCE WAS WORKED OUT BY THE AO ON THE BASIS OF RELEVANT FACTORS SUCH AS SUPPRESSION OF INCOME BY VARYING SELLING RATES OF FLATS IN KAMO THE AREA, VERY LOW INCOME SHOWN BY THE ASSESSEE, THE ASSESSEES JUSTIFICATION FOR RATE VARIATION ETC. HOWEVER, THE AO ALLOWED RELIEF TO THE EXTENT OF 15% FOR LIKELY MARKET CONDITIONS AND CONSIDERING OTHER EXIGENCIES. THUS THE AO MADE A NET ADDITION OF RS.8 ,76,70,801/ - TO THE INCOME OF THE ASSESSEE - FIRM. THE LD. DR THUS CONCLUDES THAT THE ABOVE ADDITION MADE BY THE AO BEING REASONABLE AND BASED ON FACTS AND CIRCUMSTANCES OF THE CASE BE RESTORED. 17. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVA NT MATERIALS ON RECORD. THE REASONS FOR OUR DECISION ARE GIVEN BELOW. IN THE INSTANT CASE, THE AO HAS PROCEEDED TO MAKE AN ADDITION OF RS.8,76,70,801/ - ALLEGEDLY ON ACCOUNT OF ON - MONEY RECEIPTS WITHOUT BRINING ANY COGENT EVIDENCE/MATERIAL ON RECORD. THERE IS NO EVIDENCE WHATSOEVER WITH THE AO TO DEMONSTRATE THAT THE ASSESSEE - FIRM RECEIVED THE DIFFERENTIAL AMOUNT OF RS.8,76,70,801/ - IN CASH FROM THE BUYERS OF FLATS/SHOPS. THE AO NOTICED THAT FLATS/SHOPS WERE SOLD TO DIFFERENT CUSTOMERS AT VARYING RATES. THE ASSESSEE EXPLAINED TO THE AO THAT IT HAD INVITED BOOKING OF THE FLATS FROM FEBRUARY 2007 ONWARDS AND DUE TO RECESSION IN THE REAL ESTATE MARKET IN THE FINANCIAL YEAR 2008 - 09 AND 2009 - 10, ATTRACTIVE AND COMPETITIVE RATES WERE OFFERED TO VARIOUS CUSTOMERS. THE AVERAGE SELLING PRICE WAS AT RS.3,284/ - PER SQ. FT.; HOWEVER, THE MARGINAL DIFFERENCE IN THE RATE PER SQ. FT. FOR CERTAIN FLATS M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 23 WAS DUE TO VARIOUS FACTORS SUCH AS DISCOUNTS GIVEN TO ELITE CUSTOMERS, BETTER NEGOTIATIONS CARRIED OUT BY KNOWN CUSTOMERS, B ARGAINING POWER OF THE CUSTOMERS, SCENIC VIEW OF THE FLAT OR ITS LOCATION, RECESSION IN REAL ESTATE MARKET, SPECIFIC DEMAND OF THE CUSTOMERS, INSTANT REQUIREMENT OF FUNDS PROMPTING THE ASSESSEE TO SELL FLATS AT LOWER RATES ETC. THE ASSESSEE - FIRM HAD STARTE D INVITING BOOKING AT THE END OF FEBRUARY 2007 BUT IT COULD NOT SELL MANY FLATS INITIALLY FOR TWO TO THREE YEARS I.E. UPTO FINANCIAL YEAR 2009 - 10. ALSO IN FY 2008 - 09, THE ASSESSEE WAS FACING ACUTE SHORTAGE OF FUNDS. ACCORDINGLY, CONSIDERING THE OVERALL SIT UATION, ONLY THREE FLATS COULD BE SOLD IN THE FY 2008 - 09. THEREFORE, THE ASSESSEE - FIRM HIKED THE RATES FROM RS.2500/ - PER SQ. FT. TO RS.3000/ - PER SQ. FT. IN THE FY 2009 - 10, IN ORDER TO COVER THE LOSSES AGAINST THE SALE OF FLATS IN EARLIER YEARS. THE ASSES SEE - FIRM GRADUALLY INCREASE D THE RATE TO RS.3,500/ - PER SQ. FT. IN THE FY 2010 - 11 BY PROVIDING BET TER AMENITIES IN THE FLATS SOLD. IT IS FOUND THAT THE ASSESSEE FIRM COULD SELL 33 FLATS OUT OF PROPOSED 101 FLATS IN THE FY 2009 - 10, THOUGH IT HAD COMPLETED 5 1% OF THE PROJECT. ACCORDINGLY, FLEXIBLE PLANS WERE BROUGHT IN PLACE TO BOOST THE SALES IN FY 2010 - 11 AND INCREASE THE LIQUIDITY POSITION OF THE ASSESSEE - FIRM. 17.1 IN THE CASE OF NEELKAMAL REALTORS AND ERECTORS INDIA (P.) LTD. (SUPRA), IT IS HELD THAT W HERE ASSESSEE WAS ENGAGED IN BUSINESS OF SELLING OF FLATS AFTER CONSTRUCTION AND IT OFFERED AN EXPLANATION FOR CHARGING LOWER PRICE IN RESPECT OF SOME FLATS SOLD BY IT AND THE ASSESSING OFFICER, WITHOUT CONTROVERTING SUCH EXPLANATION MADE ADDITION TO INCOM E OF ASSESSEE BY APPLYING RATE OF ANOTHER FLAT SOLD BY IT, ASSESSING OFFICER WAS NOT JUSTIFIED IN HIS ACTION. M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 24 IN M/S RUNWAL PROJECTS PVT. LTD . (SUPRA), IT IS HELD THAT ADDITION MADE OF ON - MONEY RECEIVED FROM SALE OF FLATS CANNOT BE QUANTIFIED BY APPLYING AVERAGE RATE FOR ALL FLATS SOLD IN THE PROJECT WITHOUT THERE BEING ANY EVIDENCE UNEARTHED DURING SEARCH OPERATIONS. SIMILAR IS THE RATIO LAID DOWN IN SHRI RUSTAM SOLI SETHNA (SUPRA), M/S SHAH REALTORS (SUPRA) AND K.S. CONSTRUCTIONS (SUPRA). 17.2 IN KRISHNA ENTERPRISE (SUPRA), FOLLOWING THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF SUGANTHARAVINDRAN 353 ITR 488, IT IS HELD THAT SINCE TRANSFER WAS MADE PRIOR TO THE AMENDMENT OF SECTION 50C W.E.F. 01.10.2009, THE PROVISIONS OF SECTION 50C WOU LD NOT BE APPLICABLE. IN M/S JOHN FOWLER (INDIA) PVT. LTD . (SUPRA), SINCE THE VALUE OF SALE CONSIDERATION REPORTED BY THE ASSESSEE WAS LESS THAN THE VALUE AS PER THE STAMP DUTY AUTHORITY, THE DIFFERENCE BETWEEN THE TWO AMOUNTING TO RS.33,48,684/ - WAS PRO POSED TO BE ADDED BACK TO THE INCOME OF THE ASSESSEE. IN THE ABOVE CASE, AS THE DIFFERENCE BETWEEN THE VALUATION ADOPTED BY THE STAMP VALUATION AUTHORITY AND THE ONE DECLARED BY THE ASSESSEE WAS LESS THAN 10%, THEREFORE, THE TRIBUNAL DIRECTED THE AO TO ADO PT THE VALUE AS DECLARED BY THE ASSESSEE. IN SMT. SITA BAI KHETAN (SUPRA), IT IS HELD THAT THE FAIR MARKET VALUE OF THE PROPERTY IS TO BE ADOPTED ON THE BASIS OF COMPARABLE SALE INSTANCES. 17.3 WE FIND THAT SECTION 50C OF THE ACT IS APPLICABLE IF THE FO LLOWING CONDITIONS ARE SATISFIED: M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 25 (1) THERE IS A TRANSFER OF LAND OR BUILDING OR BOTH. THE ASSET MAY BE LONG - TERM CAPITAL ASSET OR SHORT - TERM CAPITAL ASSET. IT MAY BE DEPRECIABLE OR NON - DEPRECIABLE ASSET. (2) THE SALE CONSIDERATION IS LESS THAN VALUE ADOPTED BY ANY AUTHORITY OF A STATE GOVERNMENT FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER . IF THE ABOVE CONDITIONS ARE SATISFIED, THE VALUE ADOPTED BY THE STAMP DUTY AUTHORITY SHALL BE TAKEN AS FULL VALUE OF CONSIDERATION FOR TH E PURPOSE OF COMPUTATION OF CAPITAL GAINS. IN THE CASE OF INDERLOK HOTELS (P.) LTD. V. ITO (2009) 32 SOT 419 (MUM) AND CIT V. THIRUVENGADAM INVESTMENTS (P.) LTD . (2010) 320 ITR 345 (MAD), IT IS HELD THAT SECTION 50C IS NOT APPLICABLE FOR CALCULATING BUSI NESS INCOME U/S 28. THUS SECTION 50C IS APPLICABLE IF A CAPITAL ASSET (BEING LAND OR BUILDING OR BOTH) IS TRANSFERRED FOR A CONSIDERATION WHICH IS LESSER THAN STAMP DUTY VALUE. IN SUCH CASE, VALUE ASSESSED (OR ASSESSABLE) BY STAMP DUTY AUTHORITY SHALL BE TAKEN AS FULL VALUE OF CONSIDERATION FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN. THE FINANCE ACT, 2018 HAS INSERTED SECTION 43CA W.E.F. ASSESSMENT YEAR 2014 - 15. IT PROVIDES THAT WHERE THE CONSIDERATION FOR THE TRANSFER OF AN ASSET (OTHER THAN CAPITAL ASSET), BEING LAND OR BUILDING OR BOTH, IS LESS THAN STAMP DUTY VALUE, THE VALUE SO ADOPTED (OR ASSESSED OR ASSESSABLE) SHALL BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION FOR THE PURPOSE OF COMPUTING INCOME UNDER THE HEAD PROFITS AND GAINS OF BUSIN ESS OR PROFESSION. M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 26 IN THE INSTANT CASE, THE ASSESSEE IS A DEVELOPER AND BUILDER ENGAGED IN CONSTRUCTION AND DEVELOPING COMMERCIAL AND RESIDENTIAL COMPLEXES INCLUDING MALLS. SECTION 43CA IS APPLICABLE TO THE CASE OF A DEVELOPER OR BUILDER AND THUS APPLICA BLE TO THE INSTANT CASE. WE ARE CONCERNED HEREWITH AY 2012 - 13. AS MENTIONED EARLIER SECTION 43CA IS EFFECTIVE FROM AY 2014 - 15 AND THUS NOT APPLICABLE TO THE IMPUGNED ASSESSMENT YEAR. 18. IN VIEW OF THE ABOVE FACTS AND POSITION OF LAW, WE DELETE THE ADDITI ON OF RS.84,85,259/ - MADE BY THE LD. CIT(A). CONSEQUENTLY, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED AND THE APPEAL FILED BY THE R EVENUE IS DISMISSED. 19. FACTS BEING IDENTICAL, OUR ABOVE DECISION S APPL Y M UTATIS MUTANDIS TO OTHER APPEALS. IT IS RELEVANT TO MENTION HERE THE SIMILAR GROUNDS OF APPEAL OF THE ASSESSEE AND R EVENUE IN THE ABOVE GROUP OF CASES. THE 1 ST , 2 ND , 3 RD AND 4 TH GROUND OF APPEAL BY THE ASSESSEE IN M/S TRIVENI CONSTRUCTIONS FOR AY 2010 - 11 IS SIMILAR TO THE 2 ND GROUND OF APPEAL B Y THE ASSESSEE IN M/S TRIVENI REALTIES FOR AY 2012 - 13; 2 ND GROUND OF APPEAL BY THE ASSESSEE IN M/S TRIVENI SPACES FOR AY 2012 - 13; 2 ND GROUND OF APPEAL BY THE ASSESSEE IN M/S TRIVENI HOMES FOR AY 2012 - 13. THE 1 ST GROUND OF APPEAL BY THE ASSESSEE IN IN M/S TRIVENI CONSTRUCTIONS FOR AY 2012 - 13 IS SIMILAR TO THE 1 ST GROUND OF APPEAL BY THE ASSESSEE IN M/S TRIVENI REALTIES FOR AY 2012 - 13; THE 1 ST GROUND OF M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 27 APPEAL BY THE ASSESSEE IN M/S TRIVENI SPACES FOR AY 2012 - 13; THE 1 ST GROUND OF APPEAL BY THE ASSESSEE IN M/ S TRIVENI HOMES FOR AY 2012 - 13; THE 1 ST GROUND OF APPEAL BY THE ASSESSEE IN M/S TRIVENI PROPERTIES FOR AY 2012 - 13. THE GROUNDS OF APPEAL FILED BY THE R EVENUE IN THE CASE OF M/S TRIVENI CONSTRUCTIONS FOR AY 2012 - 13 ARE SIMILAR TO THE GROUNDS OF APPEAL B Y THE R EVENUE IN THE CASE OF M/S TRIVENI REALTIES FOR AY 2012 - 13; THE GROUNDS OF APPEAL BY THE R EVENUE IN THE CASE OF M/S TRIVENI SPACES FOR AY 2012 - 13; THE GROUND S OF APPEAL BY THE R EVENUE IN M/S TRIVENI HOMES FOR AY 2012 - 13 ; THE GROUNDS OF APPEAL BY THE R EVENUE IN M/S TRIVENI PROPERTIES FOR AY 2012 - 13. 2 0 . TO SUM UP: THE APPEAL FILED BY THE ASSESSEE FOR M/S TRIVENI CONSTRUCTIONS FOR AY 2010 - 11 IS ALLOWED FOR STATISTICAL PURPOSES. SIMI LARLY, THE APPEAL FILED BY THE R EVENUE IN THE CASE OF M/S TRIVEN I CONSTRUCTIONS FOR AY 2010 - 11 IS ALLOWED FOR STATISTICAL PURPOSES. THE APPEAL FILED BY THE ASSESSEE FOR M/S TRIVENI CONSTRUCTIONS FOR AY 2012 - 13 IS PARTLY ALLOWED (THE 1 ST GROUND OF APPEAL IS ALLOWED WHEREAS THE 2 ND GROUND OF APPEAL IS ALLOWED FOR STATIST ICAL PURP OSES). THE APPEAL FILED BY THE R EVENUE IN THE CASE OF M/S TRIVENI CONSTRUCTIONS FOR AY 2012 - 13 IS DISMISSED. THE APPEAL FILED BY THE ASSESSEE FOR M/S TRIVENI REALTIES FOR AY 2012 - 13 IS PARTLY ALLOWED (THE 1 ST GROUND OF APPEAL IS ALLOWED WHEREAS T HE 2 ND GROUND OF APPEAL IS ALLOWED FOR STATISTICAL PURPOSES). THE APPEAL FILED BY THE R EVENUE IN THE CASE OF M/S TRIVENI REALTIES FOR AY 2012 - 13 IS DISMISSED. M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 28 THE APPEAL FILED BY THE ASSESSEE FOR M/S TRIVENI SPACES FOR AY 2012 - 13 IS PARTLY ALLOWED (THE 1 ST GROUND OF APPEAL IS ALLOWED WHEREAS THE 2 ND GROUND OF APPEAL IS ALLOWED FOR STATISTICAL PURPOSES ) . THE APPEAL FILED BY THE R EVENUE IN THE CASE OF M/S TRIVENI SPACES FOR AY 2012 - 13 IS DISMISSED. THE APPEAL FILED BY THE ASSESSEE FOR M/S TRIVENI HOMES FOR AY 2012 - 13 IS PARTLY ALLOWED (THE 1 ST GROUND OF APPEAL IS ALLOWED WHEREAS THE 2 ND GROUND OF APPEAL IS ALLOWED FOR STATISTICAL PURPOSES). THE APPEAL FILED BY THE R EVENUE IN THE CASE OF M/S TRIVENI HOMES FOR AY 2012 - 13 IS DISMISSED. THE APPEAL FILED BY THE ASSESSEE FOR M/S TRIVENI PROPERTIES FOR AY 2012 - 13 IS ALLOWED. THE APPEAL FI LED BY THE R EVENUE IN THE CASE OF M/S TRIVENI PROPERTIES FOR AY 2012 - 13 IS DISMISSED. TO SUMMARIZE: 1. ITA NO. 3778/MUM/2017 ASSESSMENT YEAR: 2010 - 11 ALLOWED FOR STATISTICAL PURPOSES 2. ITA NO. 4357/MUM/2017 ASSESSMENT YEAR: 2010 - 11 ALLOWED FOR STATISTICAL PURPOSES 3. ITA NO. 3779/MUM/2017 ASSESSMENT YEAR: 2012 - 13 PARTLY ALLOWED 4. ITA NO. 4457/MUM/2017 ASSESSMENT YEAR: 2012 - 13 DISMISSED 5. ITA NO. 3783/MUM/2017 ASSESSMENT YEAR: 2012 - 13 PARTLY ALLOWED 6. ITA NO. 4456/MUM/2017 ASSESSMENT YEAR: 2012 - 13 DISMISSED 7. ITA NO. 4912/MUM/2017 ASSESSMENT YEAR: 2012 - 13 ALLOWED M/S TRIVENI CONSTRUCTIONS &ORS ITA NOS. 3778/MUM/2017, 4357/MUM/2017 AND ORS 29 8. ITA NO. 4942/MUM/2017 ASSESSMENT YEAR: 2012 - 13 DISMISSED 9. ITA NO. 3785/MUM/2017 ASSESSMENT YEAR: 2012 - 13 PARTLY ALLOWED 10. ITA NO. 4453/MUM/2017 ASSESSMENT YEAR: 2012 - 13 DISMISSED 11. ITA NO. 3781/MUM/2017 ASSESSMENT YEAR: 2012 - 13 PARTLY ALLOWED 12. ITA NO. 4455/MUM/2017 ASSESSMENT YEAR: 2012 - 13 DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON 27/06/2019. SD/ - SD/ - ( C.N. PRASAD ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 27/06/2019 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (SR. PRIVATE SECRETARY) ITAT, MUMBAI