Karan Developers, Pune V. Deputy Commissioner of Income tax, Pune

ITA 529/PUN/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7317 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 06-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: IS DIRECTED AGAINS T PASSED

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE VIRTUAL COURT BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO. 529/PUN/2017 / ASSESSMENT YEAR : 2009-10 KARAN DEVELOPERS, SHOP NO.4, SAI VAISHNAVI DHAM, OPP. SEVA VIKAS BANK (WAGHERE BRANCH), PUNE 411 017 PAN : AAGFK8290A VS. DCIT, CIRCLE-8, PUNE APPELLANT RESPONDENT / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A)-6, PUNE ON 23-08-2016 IN RELATION TO THE ASSESSMENT YEAR 2009-10. 2. THIS APPEAL WAS FIRST TAKEN UP FOR HEARING ON 11-07-20 19. SINCE NONE APPEARED ON BEHALF OF THE ASSESSEE, THE CAS E WAS ADJOURNED FOR 06-09-2019. ON THAT DATE ALSO, THERE WAS NO APPEARANCE FROM THE SIDE OF THE ASSESSEE. THEREAFTER, THE CASE WAS ADJOURNED FROM TIME TO TIME BUT THE ASSESSEE CONTINUED TO RE MAIN ASSESSEE BY NONE REVENUE BY SMT. USHA GAIKWAD DATE OF HEARING 01-09-2020 DATE OF PRONOUNCEMENT 03-09-2020 ITA NO.529/PUN/2017 KARAN DEVELOPERS 2 ABSENT. ON 6.8.2020, THE CASE WAS FINALLY FIXED FOR TODAY . AGAIN, NEITHER THERE IS ANY ONE PRESENT TO REPRESENT TO ASSESSEE N OR ANY ADJOURNMENT APPLICATION HAS BEEN FILED. IN THESE CIRCUMSTANCE S, WE ARE LEFT WITH NO ALTERNATIVE BUT TO DISPOSE OFF THE APPEAL EX PARTE QUA THE ASSESSEE ON MERITS. 3. FIRST GROUND RAISED IN THIS APPEAL IS IN TWO PARTS, VIZ, AGA INST THE CONFIRMATION OF ADDITIONS OF RS.3.00 LAKH AND RS.1.00 LA KH. 4. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAS BEEN WORKING AS A PROMOTER AND BUILDER. A SURVEY ACTION U/S.13 3A OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED THE ACT) WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE ON 1 3-03-2009 IN WHICH THE ASSESSEE ADMITTED TO DISCLOSE OF RS.1.3 CRORE FOR THE YEAR UNDER CONSIDERATION. A RETURN WAS FILED DECLARING TOTAL INCOME AT RS.1.71 CRORE. DURING THE COURSE OF ASSESSME NT PROCEEDINGS U/S.143(3) R.W.147 OF THE ACT, THE ASSESSING OFFICER (AO) OBSERVED THAT CERTAIN INCRIMINATING DOCUMENTS, WHICH WER E IMPOUNDED U/S.133A OF THE ACT, RECORDED CERTAIN UNACCOU NTED RECEIPTS BY THE ASSESSEE. THE GROUND IN QUESTION EMANATES FROM THE FLAT BOOKING REGISTER OF `SAI VAISHNAVIDHAM PROJECT IMPOUNDED AS PER BUNDLE NO.16 OF ANNEXURE A. SUCH A REGISTER ITA NO.529/PUN/2017 KARAN DEVELOPERS 3 RECORDED CASH RECEIPT OF RS.1.00 LAKH AND RS.3.00 LAKH FROM JITENDRA C. BAVASKAR AS AGAINST SALE OF SHOP NO.4. THE A SSESSEE WAS CONFRONTED WITH THIS DOCUMENT AND REQUIRED TO EXPLAIN THE SAME. THE ASSESSEE TENDERED AN EXPLANATION THAT TEMPORAR Y RECEIPTS WERE ISSUED TO THE PROSPECTIVE BUYER FOR ACCOMMO DATING HIM TO OBTAIN A BANK LOAN. THE ASSESSEE MADE OUT A CASE THAT IT HAD SHOWN RECEIPT OF RS.1.00 LAKH WHICH WAS RECEIVED, BUT RS. 3.00 LAKH WHICH WAS NOT RECEIVED, WAS NOT SHOWN. THE CUSTOMER GAVE CONFIRMATION OF THE AMOUNT PAID, WHICH DID NOT INCLUDE RS.3.0 0 LAKH. THE AO DID NOT ACCEPT THE CONTENTION ON THE GROUND TH AT NOTINGS IN THE IMPOUNDED DOCUMENTS WERE WRITTEN IN THE HANDWRITING OF ONE OF THE PARTNERS OF THE ASSESSEE FIRM. SINCE THE AMOUNT OF RS.4.00 LAKH WAS NOT INCORPORATED IN THE ASSESSE ES BOOKS OF ACCOUNT, THE AO MADE ADDITION OF RS.4.00 LAKH U/S .69A OF THE ACT. THE LD. CIT(A) AFFIRMED THE SAME. 5. HAVING HEARD THE LD. DR AND GONE THROUGH THE RELEVANT MATERIAL ON RECORD, IT IS OBSERVED THAT A SUM OF RS.3.00 LA KH FOUND TO HAVE BEEN RECEIVED IN CASH ON 18-04-2008 TRACED ITS OR IGIN FROM REGISTER NO.16 PAGE NO.43, WHICH WAS IMPOUNDED DURING TH E COURSE OF SURVEY. THOUGH THE ASSESSEE CONTENDED THAT TH ERE WAS NO ITA NO.529/PUN/2017 KARAN DEVELOPERS 4 ACTUAL RECEIPT OF RS.3.00 LAKH BUT ONLY AN ACCOMMODATION TO TH E PROSPECTIVE BUYER, THE FACT REMAINS THAT THIS AMOUNT WAS FOU ND TO BE RECORDED IN THE REGISTER MAINTAINED BY THE ASSESSEE. IN CASE IT WAS ONLY AN ACCOMMODATION, THERE WAS NO NEED TO RECORD S UCH AN AMOUNT IN THE UNDISCLOSED REGISTER MAINTAINED BY IT. THE FACT THAT RS.3.00 LAKH WAS RECEIVED BY THE ASSESSEE IN CASH AGAINS T SALE OF SHOP NO.4, AMPLY GOES TO PROVE THAT THIS AMOUNT WAS RECEIV ED AS A PART OF SALE CONSIDERATION WHICH THE ASSESSEE DID NOT DISCLOS E. WE, THEREFORE, APPROVE THE IMPUGNED ORDER TO THIS EXTENT. 6. AS REGARDS THE SECOND PART OF THE GROUND ABOUT THE RE MAINING AMOUNT OF RS.1.00 LAKH RECEIVED ON 17-06-2008 FROM JITEN DRA C BVASKAR, THE ASSESSEE SUBMITTED THAT IT WAS RECEIVED TOWARDS MSEB AND SOCIETY CHARGES AND SHOWN UNDER THE HEAD MISCELLANEOUS INCOME. IT IS FOUND THAT THERE IS NO RECEIPT N UMBER ISSUED AGAINST THE RECEIPT OF RS.1.00 LAKH IN CASH. IF IT H AD BEEN THE SAME AMOUNT AS RECORDED AS MISCELLANEOUS INCOME IN THE ASSESSEES BOOKS OF ACCOUNT, THERE WOULD HAVE BEEN SOM E RECEIPT NUMBER AND THE TRANSACTION FINDING ITS PLACE IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. THERE IS NO EVIDENCE TO SHOW TH AT THE MISCELLANEOUS INCOME SHOWN BY THE ASSESSEE IS, IN FACT, THIS RECEIPT ITA NO.529/PUN/2017 KARAN DEVELOPERS 5 OF RS.1.00 LAKH WHICH WAS RECORDED ON REGISTER NO.16 PA GE NO.43. WE, THEREFORE, APPROVE THE VIEW TAKEN BY THE LD . CIT(A) ON THIS ISSUE. 7. THE ONLY OTHER GROUND, AGAIN IN TWO PARTS, IS AGAINST THE CONFIRMATION OF ADDITIONS OF RS.65,000/- AND RS.37,000/-. 8. THE FACTS APROPOS THIS GROUND ARE THAT, ON PERUSAL OF FLAT BOOKING REGISTER OF `SAI PARK, KALEWADI IMPOUNDED U/S.133 A AS PER REGISTER NO.26 OF ANNEXURE A, IT WAS OBSERVED BY TH E AO THAT AGAINST SALE OF FLAT NO.2, THE ASSESSEE RECEIVED FROM A PUR CHASER, NAMELY, ABA WAMAN MAHALE SUMS OF RS.37,000/- ON 04-0 7-2008 AND A FURTHER SUM OF RS.65,000/- ON 03-07-2008 IN CA SH. THE ASSESSEE WAS CALLED UPON TO EXPLAIN WHY THESE AMOUNTS WER E NOT RECORDED IN THE BOOKS OF ACCOUNT. THE ASSESSEE SUBMITTE D THAT TOTAL AMOUNT AS PER THE AGREEMENT WITH THIS PERSON WAS RS.12,67 ,500/- BUT THE ASSESSEE HAD SHOWN ACTUAL RECEIPT OF RS.13,32,500 /-, WHICH INDICATED THAT IT CREDITED EXTRA SALES OF RS.65,000/- AND IT WAS THE SAME AMOUNT WHICH WAS RECORDED ON REGISTER NO.26 PAGE N O.42. AS REGARDS RS.37.000/- THE ASSESSEE STATED THAT THIS WAS N OT A PART OF SALE. THE AO MADE ADDITION OF RS.1,02,000/-, WHICH C AME TO BE AFFIRMED IN THE FIRST APPEAL. ITA NO.529/PUN/2017 KARAN DEVELOPERS 6 9. HAVING HEARD THE LD. DR AND GONE THROUGH THE RELEVANT MATERIAL ON RECORD, IT IS OBSERVED FROM THE ASSESSEES SUB MISSIONS MADE BEFORE THE AO THAT THE TOTAL AMOUNT AS PER AGREEMENT W ITH ABA WAMAN MAHALE AGAINST SALE OF FLAT NO.2 WAS RS.12,67,50 0/-. AS AGAINST THAT, THE ASSESSEE HAD SHOWN RECEIPT OF RS.13, 32,500/-, WHICH DEMONSTRATED THAT A SUM OF RS.65,000/- WAS RECOR DED AS EXTRA SALES. IN SUCH A SITUATION, THERE CANNOT BE ADDITION OF RS.65,000/- RECORDED IN REGISTER NO.26 PAGE NO.42 AGAINS T SALE OF FLAT NO.2 TO ABA WAMAN MAHALE. WE, THEREFORE, ORDER TO D ELETE THE ADDITION OF RS.65,000/-, BEING THE FIRST PART OF THE GROU ND. 10. AS REGARDS RS.37,000/-, THE ASSESSEE COULD NOT FUR NISH ANY EXPLANATION. THE IMPUGNED ORDER IS UPHELD TO THIS EXTENT. 11. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03 RD SEPTEMBER, 2020. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER VIC E PRESIDENT PUNE; DATED : 03 RD SEPTEMBER, 2020 ITA NO.529/PUN/2017 KARAN DEVELOPERS 7 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-6, PUNE 4. 5. THE PR. CIT-5. PUNE , , / DR A, ITAT, PUNE 6. / GUARD FILE / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 01-09-2020 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 01-09-2020 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *