ACIT, New Delhi V. M/s Samiah International Builders Pvt. Ltd., New Delhi

ITA 5459/DEL/2012

• Counselvise Citation: 545920114 RSA 2012
• Duration Of Justice: 1 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 11-08-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 26-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SH. JOGINDER SINGH, JM AND SH. T. S. KAPOOR, AM ITA NO. 5459/DEL/2012 : ASS TT. YEAR : 2007-08 ACIT, CIRCLE 7(1) NEW DELHI VS M/S SAMIAH INTERNATIONAL BUILDERS P. LTD., B-98, PLOT NO. 22, ABDUL FAZAL APARTMENT, VASUNDRA ENCLAVE, NEW DELHI-96 (APPELLANT) (RESPONDENT) PAN NO. AAHCS5326F ASSESSEE BY : SH. ANIL JAIN & RISHAB JAIN, ADV. REVENUE BY : SH. RAKESH KUMAR, SR. DR DATE OF HEARING : 11.8.2014 DATE OF PRONOUNCEMENT : 13.8.2014 ORDER PER JOGINDER SINGH, JM: THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATE D 30.7.2012 OF THE LD. FIRST APPELLATE AUTHORITY, NEW DELHI. 2. THE FIRST GROUND RAISED BY THE REVENUE PERTAINS TO DELETING THE ADDITION OF RS. 19,28,684/- ON ACCOUNT OF CASH RECE IVED FROM IDENTIFIED PARTIES FOR BOOKING/SALE OF LAND. THE CRUX OF ARGUM ENT ADVANCED BY SHRI RAKESH KUMAR, LD. SENIOR DR IS IN SUPPORT TO THE AD DITION MADE BY THE LD. ASSESSING OFFICER BY FURTHER CONTENDING THAT THE AS SESSEE DID NOT SUBMIT THE DETAIL OF RECEIPT OF CASH FROM IDENTIFIED PARTI ES. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE SHRI ANIL JAIN ALONG W ITH SHRI RISHAB JAIN DEFENDED THE CONCLUSION DRAWN BY THE LD. CIT(A). IT WAS SUBMITTED THAT ITA NO. 5459/DEL/2012 SAMIAH INTERNATIONAL BUILDER S P. LTD. 2 NECESSARY DETAILS WERE SUBMITTED AND THE TRANSACTIO N OF MONEY WAS WITH IDENTIFIED PERSONS. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. BEFORE COMING TO ANY CONCLUSIO N WE ARE REPRODUCING HERE UNDER THE RELEVANT PORTION AND THE CONCLUSION DRAWN IN THE IMPUGNED ORDER: 3.5 I HAVE ONCE AGAIN GONE THROUGH THESE DOCUMENTS IN THE PRESENCE OF THE LD. A.O AND THE AR. IT WAS FOUND TH AT IN REALITY, ALL THESE THREE AMOUNTS OF RS. 3,50,000/-, RS. 6,12 ,684/- AND RS. 9,66,000/- REPRESENT PAYMENT MADE TO THE ABOVE NAME D PERSONS TOWARDS THE PURCHASE OF LAND AT HAPUR SCHEME. NOT O NLY THESE PAYMENTS HAVE BEEN DULY RECORDED IN THE BOOKS OF TH E ASSESSEE, EVEN THE SALE DEEDS IN FAVOUR OF THE ASSESSEE COMPA NY EXECUTED BY SUCH PERSONS ARE AVAILABLE ON RECORD. HENCE THERE I S NO DOUBT THAT THESE AMOUNTS ARE PAYMENTS MADE TOWARDS PURC HASE OF LAND AND ARE FOUND RECORDED IN REGULAR BOOKS OF ACC OUNTS. THUS THE MAIN PLANK OF THE ASSESSING OFFICER THAT THESE AMOUNTS REPRESENT CASH RECEIPTS HAS BEEN FOUND TO BE ABSO LUTELY WITHOUT ANY BASIS. ACCORDINGLY, THE ADDITION OF RS. 19,28,6 84/- MADE ON ACCOUNT OF UNEXPLAINED CASH RECEIPTS, HAS NO LEGS TO STAND AND IS DELETED. GROUND NO. 2 IS ALLOWED. 4. WE NOTE THAT IN THE PRESENCE OF THE ASSESSEE AS WELL AS THE LD. ASSESSING OFFICER THE LD. CIT(A) EXAMINED THE RECOR D AND FOUND THAT THE ENTRIES APPEARING IN THE NAMES OF SHRI ABRAR AHMED, SAAGIR AHMED AND MUGAHID SAHID WERE ALSO MADE AVAILABLE BEFORE THE A SSESSING OFFICER ON 6.3.2009 AND 17.12.2009. THE IMPUGNED AMOUNTS REPRE SENT THE PAYMENT MADE TO THESE PERSONS TOWARDS PURCHASE OF LAND AND DULY RECORDED IN THE BOOKS OF THE ASSESSEE. IN VIEW OF THESE FACTS WE FI ND NO INFIRMITY IN THE ITA NO. 5459/DEL/2012 SAMIAH INTERNATIONAL BUILDER S P. LTD. 3 CONCLUSION DRAWN BY THE LD. CIT(A), MORE SPECIFICAL LY WHEN THE FACTUAL FINDING RECORDED BY THE LD. CIT(A) HAS NOT BEEN CON TROVERTED BY THE REVENUE WITH HELP OF ANY POSITIVE MATERIAL. ON THIS GROUND WE ARE WITH THE CONCLUSION OF THE LD. CIT(A). THIS GROUND OF THE RE VENUE IS HAVING NO MERIT, CONSEQUENTLY, DISMISSED. 5. NEXT GROUND PERTAINS TO DELETING THE ADDITION OF RS. 22,00,000/- MADE ON ACCOUNT OF RECEIPT OF CASH ON DIFFERENT DATES. T HE CRUX OF ARGUMENT ON BEHALF OF THE REVENUE IS IN SUPPORT TO THE ADDITION WHEREAS THE LD. COUNSEL FOR THE ASSESSEE DEFENDED THE CONCLUSION DRAWN BY T HE LD. CIT(A). BEFORE COMING TO ANY CONCLUSION WE ARE REPRODUCING HERE UN DER: 4.10 ONE OF THE KNOWN PRINCIPLES OF INCOME TAX IS THE MUCH REVERED CONCEPT OF REAL INCOME. SINCE INCOME IS WHAT REMAINS AFTER MEETING OUT THE EXPENDITURE, THE SA ME PRINCIPLE WOULD APPLY WHEN EVIDENCES OF BOTH UNRECORDED RECEI PTS AS WELL AS EXPENDITURE ARE FOUND DURING THE COURSE OF SEARC H OR SURVEY. THE CASH FLOW STATEMENT, ON WHICH THE APPELLANT HAS RELIED, WAS SUBMITTED BEFORE THE A.O ALSO. IN THE SAID STATEMEN T, THERE IS A COMPLETE RECORD OF UNACCOUNTED RECEIPTS OF RS. 1,75 ,60,980/- AND UNACCOUNTED PAYMENTS OF RS. 47,00,000/-. THE PERIOD OF UNACCOUNTED PAYMENTS FALL DURING THE SAME PERIOD WHEN THE UNACCOUNTED RECEIPTS HAVE COME TO THE COFFERS OF THE ASSESSEE. THESE UNACCOUNTED PAYMENTS INCLUDE THE IMPUGNED PAY MENT OF RS. 23.50 LACS MADE TO M/S S. M. FINANCIAL & MANAGE MENT SERVICES. THEREFORE, ONE CAN NOT IGNORE SUCH UNACCO UNTED PAYMENTS WHILE COMPUTING THE REAL INCOME. BE THAT A S IT MAY, THE APPELLANT HAS BEEN EXTRA CAUTIOUS. WHILE OFFERING A DDITIONAL INCOME, HE HAS NOT CLAIMED SET OFF OF THIS UNACCOUN TED EXPENSES BUT, AS A MATTER OF ABUNDANT CAUTION, HAS GONE TO S URRENDER THE ENTIRE UNACCOUNTED RECEIPTS OF RS. 1,75,60,980/-. I N ADDITION, HE HAS ALSO COMPUTED SOME PROFIT ELEMENT ON THESE UNAC COUNTED ITA NO. 5459/DEL/2012 SAMIAH INTERNATIONAL BUILDER S P. LTD. 4 RECEIPTS TO THE EXTENT OF RS. 64,94,020/-, THEREBY MAKING SURRENDER OF RS. 2,40,55,000/-. 4.11 IN THIS FACTUAL BACKGROUND, THE A.OS ACTION I N SEPARATELY MAKING ADDITION OF UNACCOUNTED PAYMENTS MADE TO M/S S. M. FINANCIAL & MANAGEMENT SERVICES CANNOT BE SUSTAINED AS IT WOULD AMOUNT TO IGNORING THE OBVIOUS REALITIES OF T HE CASE AND PUNISHING THE ASSESSEE TWICE OVER. HENCE, THE GROUN D NO. 3 DESERVES TO BE ALLOWED. ACCORDINGLY, THE A.O IS DIR ECTED TO DELETE THE ADDITION OF RS. 22 LACS MADE ON THE BASIS OF EN TRIES CONTAINED IN ANNEXURE A-1/33. 6. ON GOING THROUGH THE MATERIAL AVAILABLE ON RECOR D AND THE ASSERTION MADE BY THE LD. RESPECTIVE COUNSEL, WE NO TE THAT THE LD. CIT(A) HAS EXAMINED THE RECORD AND THE FACTS IN A R EQUIRED MANNER MR. SUJOY MUKHERJEE IN THE PROPRIETOR OF M/S S. M. FINA NCIAL & MANAGEMENT SERVICES. THE LD. CIT(A) HAS DULY EXAMIN ED THE AGREEMENT MADE BETWEEN SAMIAH INTERNATIONAL BUILDE RS PVT. LTD. AND M/S S. M. FINANCIAL & MANAGEMENT SERVICES. PART OF THE COMMISSION WAS PAID IN CASH AND BY CHEQUE. THE DOCUMENT MARKED A-1/33, THE CASH AMOUNT, WAS CLAIMED TO BE RECEIVED TOWARDS FEES/COM MISSION FOR BOOKINGS MADE BY M/S S. M. FINANCIAL & MANAGEMENT S ERVICES FROM THE ASSESSEE AND THE DETAILS OF 22 LACS ARE AVAILAB LE AT PAGES 12 ONWARDS OF THE IMPUGNED ORDER. THE DOCUMENTS A-1/33 AND A-1 8/27 MENTION AND ABOUT PAYMENT OF COMMISSION MADE IN CASH AND TD S HAS BEEN DULY DEDUCTED THERE FROM. IT WAS BROUGHT TO OUR NOTICE B Y THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE MADE THE SURRENDER A T THE TIME OF SURVEY AND OFFERED FOR TAXATION. THE SURRENDERED WAS MADE ON ACCOUNT OF UNACCOUNTED CASH RECEIVED AS WELL AS PROFIT ON THE SAME. OUR ATTENTION ITA NO. 5459/DEL/2012 SAMIAH INTERNATIONAL BUILDER S P. LTD. 5 WAS INVITED TO THE CASH FLOW CHART WHICH WAS ALSO E XAMINED BY THE LD. CIT(A). THE CLAIM OF THE ASSESSEE IS THAT THE SURRE NDERED AMOUNT INCLUDES ENTIRE UNACCOUNTED CASH RECEIPTS OF RS. 1, 75,60,980/- AND ALSO ESTIMATED PROFIT OF RS. 64,94,020/- AND THUS, TOTAL SURRENDERED AMOUNT IS RS. 2,40,55,000/-. THE TOTALITY OF FACTS ARE CLEARL Y INDICATIVE THAT THE LD. A.O WAS RIGHTLY DIRECTED TO DELETE THE ADDITION OF RS. 22 LACS MADE ON THE BASIS OF ENTRIES CONTAINED IN ANNEXURE A-1/33 T HUS, WE FIND NO INFIRMITY IN THE CONCLUSION DRAWN BY THE LD. CIT(A) . 7. SO FAR AS THE LAST GROUND DELETING THE ADDITION OF RS. 15,26,527/- MADE ON ACCOUNT OF PROPORTIONATE PROFIT EARNED BY T HE ASSESSEE ON THE UNACCOUNTED BUSINESS RECEIPT IS CONCERNED, WE HAVE AFFIRMED THE STAND OF THE LD. CIT(A) ON AFOREMENTIONED TWO GROUNDS DEL ETING THE ADDITIONS OF RS. 19,28,684/- AND RS. 22 LACS. THE PRESENT GRO UND IS CONSEQUENTIAL IN NATURE AS THE ASSESSEE HAS ALREADY OFFERED TO TA X THE PROFIT ARISING OUT OF UNACCOUNTED RECEIPT OF RS. 1,75,60,980/-. THIS G ROUND IS ALSO DISMISSED. 8. FINALLY APPEAL OF THE REVENUE IS HAVING NO MERIT , CONSEQUENTLY, DISMISSED. 9. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 13.8.2014. SD/- SD/- (T. S. KAPOOR) (J OGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13/8/2014 *SUBODH* ITA NO. 5459/DEL/2012 SAMIAH INTERNATIONAL BUILDER S P. LTD. 6 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR DATE INITIAL 1. DRAFT DICTATED ON 11.8.2014 PS 2. DRAFT PLACED BEFORE AUTHOR 12.8.2014 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.