THE ACIT CEN CIR-9, MUMBAI V. M/S. R.R. CHATURVEDI & ORS., MUMBAI

ITA 4735/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1567 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2010
• Appeal Filed By: Department
• Bench Allotted: D
• Next Hearing Date: 14-05-2010
• Assessment Year: 1999-2000
• Appeal Filed On: 17-07-2008
• Court: TRIBUNAL
• Keywords: Retraction

Judgement Text

M/S. R.R. CHATURVEDI & ORS. 8 (B) AS A BUILDER, THE ASSESSEE HAS TO YIELD TO THE DEMA NDS OF THE OLD OCCUPANTS WHO WERE IN THE BETTER BARGAINING POSITION. IT WAS HIGHLIGHTED THAT BUT FOR CONSENT O F 70% OF THE OCCUPANTS THE ASSESSEE COULD NOT PROCEED WITH CONSTRUCTION AND THEREFORE HAD TO ACCEPT WHATEVER W AS THE DEMAND OF THE OLD OCCUPANTS. IN SUCH A SITUATION IT IS HIGHLY IMPROBABLE THAT THE OLD OCCUPANTS WOULD PAY ON- MONEY TO THE ASSESSEE. (C) THE ASSESSEE NEVER RECEIVED ANY CONSIDERATION OVER AND ABOVE WHAT IS DISCLOSED IN THE REGISTERED AGREEMENT BETWEEN THE ASSESSEE AND THE OLD OCCUPANTS. (D) THERE WAS NO EVIDENCE BEFORE THE ASSESSING OFFICER TO COME TO ANY CONCLUSION THAT THERE WAS RECEIPT OF ANY ON- MONEY. THE ACTION OF THE ASSESSING OFFICER WOULD BE PURELY ON SURMISES AND SUSPICION ONLY. (E) THE OLD OCCUPANTS HAVE FILED AFFIDAVITS BEFORE THE ASSESSING OFFICER AFFIRMING THAT THEY DID NOT PAY CONSIDERATI ON OVER AND ABOVE WHAT HAS BEEN DISCLOSED IN THE REGISTERED AGREEMENTS. (F) STATEMENT OF THE ASSESSEES MANAGER MR. SURESH KOLH ATKAR DOES NOT MAKE ANY REFERENCE TO THE FLATS GIVEN TO O LD OCCUPANTS. IN ANY EVENT THAT STATEMENT WAS RETRACTE D IN THE COURSE OF ASSESSMENT PROCEEDINGS AND THEREFORE CANNOT BE RELIED UPON BY THE ASSESSING OFFICER WITHOUT SHO WING THAT THE RETRACTION IS NOT VALID OR THAT THE STATEM ENT ORIGINALLY MADE WAS TRUE. 10. THE ASSESSING OFFICER DID NOT AGREE WITH THE SU BMISSIONS MADE ON BEHALF OF THE ASSESSEE AND MADE AN ADDITION OF RS. 6,77,882/- AS ON MONEY RECEIVED BY THE ASSESSEE IN A.Y. 1999-2000 AND MADE ADDITION OF THE SAID SUM. SIMILAR ADDITION S WERE MADE IN A.Y. 2000-01 TO 2005-06. THE DETAILS OF COMPUTATION IN ALL THE ASSESSMENT YEARS ARE ANNEXED AS ANNEXURE 1 TO 7 OF THIS ORDER. 11. ON APPEAL BY THE ASSESSEE, LEARNED CIT(A) DELET ED THE ADDITION MADE BY THE ASSESSING OFFICER ACCEPTING THE PLEA OF THE ASSESSEE WHICH ARE IDENTICAL TO THE ONE SET OUT ABOVE. AGGRI EVED BY THE ORDER OF THE LEARNED CIT(A), THE REVENUE HAS RAISED GROUND N O. 1 IN ALL THE APPEALS. THE GROUND OF APPEAL IN A.Y. 1999-2000 REA DS AS FOLLOWS :- 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, LEARNED CIT(A) ERRED IN :-