ACIT 25(2), MUMBAI V. SAMEER CONSTRUCTION, MUMBAI

ITA 5252/MUM/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8035 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 22-01-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 11-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Loose papers; Retraction
• Section: 133A

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E B ENCH, MUMBAI , ! '# $ $ $ $ , % && , , '# ' BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUICIAL MEMBER ./ I.T.A. NO.5252/MUM/2011 ( ( ( ( ( / ASSESSMENT YEAR :2006-07 THE ACIT-25(2), PRATYAKSHKAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA(E), MUMBAI-400 051 / VS. M/S. SAMEER CONSTRUCTION, E-1, 1 ST FLOOR, GORAGANDHI APTT., S.V. ROAD, BORIVALI(W), MUMBAI-400 092 #) ! ./ %* ./ PAN/GIR NO. : AAGFS 8810A ( )+ / APPELLANT ) .. ( ,-)+ / RESPONDENT ) )+ . / APPELLANT BY: SHRI PANKAJ KUMAR ,-)+ / . / RESPONDENT BY: SHRI VIPUL B. JOSHI SHRI ABHISHEK TILAK / 01! / DATE OF HEARING :05.08.2014 23( / 01! / DATE OF PRONOUNCEMENT :08.08.2014 '4 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST T HE ORDER OF THE LD. CIT(A)-35, MUMBAI DT. 11.5.2011 PERTAINING TO A .Y.2006-07. 2. THE SOLE GRIEVANCE OF THE REVENUE IS THAT THE LD . CIT(A) ERRED IN DELETING THE ADDITION OF RS. 98,22,730/- MADE BY TH E AO OUT OF TOTAL ADDITION OF RS. 1,09,15,000/-. ITA NO. 5252/M/2011 2 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A BUILDER AND DEVELOPER. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED ON 30.10.2006. THE RETURNED INCOME WAS AT RS . 4,40,63,921/-. WHILE SCRUTINIZING THE RETURN OF INCOME, DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTIC ED THAT THE ASSESSEE HAS DECLARED INCOME OF RS. 3,90,85,000/- WHEREAS TH E ASSESSEE HAD SURRENDERED RS. 5 CRORES DURING THE COURSE OF THE S URVEY PROCEEDINGS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE. THE ASSESSEE WAS ASKED TO EXPLAIN THE SHORTFALL OF RS. 1,09,15,000/- . THE ASSESSEE POINTED OUT THAT AT THE TIME OF SURVEY AN ADHOC SURRENDER O F RS. 5 CRORES WAS MADE WITHOUT GOING INTO THE INCRIMINATING MATERIAL FOUND AT THE TIME OF SURVEY. THE AO DID NOT ACCEPT THIS CONTENTION OF THE ASSESS EE. THE AO WAS OF THE FIRM BELIEF THAT SINCE THE ASSESSEE ITSELF HAS OFFERED RS. 5 CRORES OVER AND ABOVE THE NORMAL PROFIT EARNED FROM ITS PROJECT , THE ASSESSEE SHOULD HAVE HONOURED THE AMOUNT OFFERED. THE AO PROCEEDED BY MAKING AN ADDITION OF RS. 1,09,15,000/-. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) AND REITERATED ITS CLAIM THAT THE OFFER WAS ON ADHOC BA SIS AND AFTER GOING THROUGH THE LOOSE PAPERS FOUND AT THE TIME OF SURV EY, THE EXACT AMOUNT WAS WORKED OUT AT RS. 3,90,85,000/-. AFTER CONSIDE RING THE FACTS AND THE SUBMISSIONS MADE BY THE ASSESSEE, THE LD. CIT(A) CA LLED FOR REMAND REPORT FROM THE AO. THE AO IN HIS REMAND REPORT ST ATED THAT THE ASSESSEE ITSELF HAS ACCEPTED THAT IT HAS BEEN RECEIVING CASH OVER AND ABOVE THE SALE PROCEEDS OF THE FLAT SHOWN IN THE BOOKS OF ACCOUNT. THE CASH WAS RECEIVED OVER A PERIOD OF 3 TO 4 YEARS AND THEREFOR E IT HAS OFFERED RS. 5 CRORES, NOW THE ASSESSEE IS RETRACTING FROM ITS STA TEMENT. COPY OF THE REMAND REPORT WAS GIVEN TO THE ASSESSEE. ON THE BA SIS OF THE REMAND REPORT, THE ASSESSEE AGREED FOR AN ADDITION OF RS. 10,92,370/-. ITA NO. 5252/M/2011 3 4.1. AFTER CONSIDERING THE FACTS AND THE REMAND REP ORT, THE LD. CIT(A) WAS CONVINCED THAT AS PER THE IMPOUNDED MATERIAL, T HE ASSESSEE HAS RECEIVED AN AMOUNT OF RS. 3,90,85,000/-. DRAWING S UPPORT FROM THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CA SE OF CIT VS S. KHADERKHAN SON 300 ITR 157 WHICH WAS SUBSEQUENTLY CONFIRMED BY THE HONBLE SUPREME COURT IN 254 CTR 228, THE LD. CIT( A) CONFIRMED THE ADDITION OF RS. 10,92,370/- AS ACCEPTED BY THE ASSE SSEE. THE ADDITION MADE BY THE AO WAS REDUCED BY RS. 98,22,730/-. 5. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US. 6. THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY SUP PORTED THE ASSESSMENT ORDER AND STATED THAT THE RETRACTION BY THE ASSESSEE IS NOTHING BUT AFTER THOUGHT. THE ASSESSEE VOLUNTARILY OFFERE D RS. 5 CRORES DURING THE COURSE OF SURVEY AND THEREFORE THE SAME AMOUNT SHOU LD HAVE BEEN OFFERED FOR TAXATION. 7. PER CONTRA, THE LD. COUNSEL FOR THE ASSESSEE REI TERATED WHAT HAS BEEN SUBMITTED BEFORE THE LOWER AUTHORITIES. THE LD . COUNSEL STRONGLY SUPPORTED HIS SUBMISSION BY THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF CIT VS S. KHADERKHAN SON (SUPRA). 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CAR EFULLY PERUSED THE ORDERS OF THE LOWER AUTHORITIES. ADMITTEDLY, T HERE WAS A SURRENDER OF RS. 5 CRORES DURING THE COURSE OF THE SURVEY PROCEE DINGS. IT IS ALSO A FACT THAT THE SURRENDER WAS MADE ON ADHOC BASIS. THE ST ATEMENT OBTAINED U/S. 133A WOULD NOT AUTOMATICALLY BIND UPON THE ASSESSEE . WE FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL THAT THE OFFER SH OULD BE CONSIDERED IN THE LIGHT OF THE ENTRIES IN THE LOOSE PAPERS. WE F IND THAT THE LD. CIT(A) HAS GIVEN A FINDING THAT THE LOOSE PAPERS CONTAINED CASH RECEIPT OF RS. ITA NO. 5252/M/2011 4 3,90,85,000/- WHICH HAS BEEN OFFERED BY THE ASSESS EE. THE HONBLE SUPREME COURT IN THE CASE OF S. KHADERKHAN SON (SUP RA) HAS HELD THAT SEC. 133A DOES NOT EMPOWER ANY ITO TO EXAMINE ANY P ERSON ON OATH. THEREFORE WHATEVER STATEMENT IS RECORDED U/S. 133A IS NOT GIVEN ANY EVIDENTIARY VALUE. THE ADDITIONAL INCOME OFFERED B Y THE ASSESSEE WAS BASED UPON THE ENTRIES IN THE LOOSE PAPERS AT THE T IME OF SURVEY. THEREFORE, THE LD. CIT(A) WAS RIGHT IN DELETING THE ADDITION, NO INTERFERENCE IS CALLED FOR. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH AUGUST, 2014 '4 / 3( ! 5 6'7 8.8.2014 3 / & SD/- SD/- (SANJAY GARG ) (N.K. BILLAIYA) '# / JUDICIAL MEMBER ! '# / ACCOUNTANT MEMBER MUMBAI; 6' DATED : 8 TH AUGUST,2014 . . ./ RJ , SR. PS