Accord Properties, Pune V. ACIT Cen Cir 1[2] Pune, Pune

ITA 741/PUN/2012

• Counselvise Citation: 74124514 RSA 2012
• Duration Of Justice: 2 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 12-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Assessee Lawyers: SUNIL PATHAK
• Keywords: Loose papers
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHE B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.741/PN/2012 (ASSESSMENT YEAR : 2008-09) ACCORD PROPERTIES, 504, CORPORATE PLAZA, SENAPATI BAPAT ROAD, PUNE 411 016. PAN : AAMFA2306H . APPELLANT VS. ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(2), PUNE. . RESPONDENT ASSESSEE BY : MR. SUNIL PATHAK & MR. SUHAS P. BORA DEPARTMENT BY : MR. A. K. MODI ORDER PER G. S. PANNU, AM THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED A GAINST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-CENTRAL, P UNE DATED 23.01.2012 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 30.1 2.2009 PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEAR 2008-09. 2. IN THIS APPEAL, ALTHOUGH THE ASSESSEE HAS RAISED MULTIPLE GROUNDS OF APPEAL BUT ESSENTIALLY THE SOLITARY DISPUTE RELATES TO AN ADDITION OF RS.7,13,46,450/- MADE BY THE ASSESSING OFFICER ON T HE GROUND THAT ASSESSEE HAS EARNED ON-MONEY ON SALE OF UNITS IN ITS PROJECT PRIDE PURPLE, WHICH WAS NOT DISCLOSED IN THE REGULAR ACCOUNT BOOKS. 3. IN BRIEF, THE FACTS RELEVANT TO UNDERSTAND THE C ONTROVERSY BEFORE US CAN BE SUMMARIZED AS FOLLOWS. THE APPELLANT IS A PARTN ERSHIP FIRM WHICH IS ITA NO.741/PN/2012 A.Y. 2008-09 ENGAGED IN THE BUSINESS OF BUILDING AND CONSTRUCTIO N. ON 12.01.2008 A SEARCH ACTION U/S 132(1) OF THE ACT WAS CARRIED OUT ON THE GROUP WHICH INCLUDED THE ASSESSEE FIRM. IN THE COURSE OF SEARC H, CERTAIN INCOME WAS DISCLOSED IN THE STATEMENTS MADE BY THE PARTNERS U/ S 132(4) OF THE ACT AND IN THE RETURN OF INCOME SUBSEQUENTLY FILED FOR THE ASS ESSMENT YEAR UNDER CONSIDERATION I.E. 2008-09 THE DISCLOSURE MADE DURI NG THE SEARCH WAS FOLLOWED-UP BY INCLUDING AN INCOME OF RS.3.40 CRORE S IN THE RETURN OF INCOME. THE RETURN OF INCOME WAS FILED DECLARING TOTAL INCO ME OF RS.2,87,61,981/- WHICH WAS SUBJECT TO SCRUTINY ASSESSMENT. IN THE A SSESSMENT FINALIZED ON 30.12.2009 THE ASSESSING OFFICER ESTIMATED THE TOTA L UNDISCLOSED INCOME AT RS.10,53,46,450/- AS AGAINST THE AMOUNT DISCLOSED B Y THE ASSESSEE OF RS.3.40 CRORES. THUS, THE DIFFERENCE OF RS.7,13,46 ,450/-, WHICH IS THE SUBJECT- MATTER OF CONTROVERSY BEFORE US, WAS ADDED TO THE T OTAL RETURN OF INCOME AS UNDISCLOSED INCOME. AS A RESULT, THE TOTAL INCOM E FOR THE ASSESSMENT YEAR 2008-09 HAS BEEN DETERMINED AT RS.10,01,08,430/-, A S AGAINST AN AMOUNT OF RS.2,87,61,981/- RETURNED BY THE ASSESSEE FIRM. 4. THE BROAD CONTOURS OF THE ADDITION IN QUESTION A RE AS FOLLOWS. THE ASSESSEE FIRM UNDERTOOK DEVELOPMENT AND CONSTRUCTIO N OF A COMMERCIAL PROJECT STYLED AS PRIDE PURPLE ACCORD (PPA) AT BA NER, PUNE. FOR THE YEAR UNDER CONSIDERATION, ASSESSEE FIRM DECLARED TOTAL S ALES IN THE SAID PROJECT AT RS.20,95,29,550/- THE DETAILS WHEREOF INCLUDING TH E UNITS SOLD HAVE BEEN TABULATED BY THE ASSESSING OFFICER IN PARA 6.2 OF T HE ASSESSMENT ORDER. THE SAID DETAILS CONTAIN THE NAME OF THE PURCHASER, UNI T NUMBER SOLD, DATE OF AGREEMENT, AREA OF THE UNIT SOLD AND TOTAL CONSIDER ATION. ON THAT BASIS THE ASSESSING OFFICER OBSERVED THAT THE AVERAGE SELLING PRICE SHOWN BY THE ASSESSEE FOR VARIOUS UNITS RANGED BETWEEN RS.2,000/ - TO RS.2,500/- PER SQ.FT. EXCEPT IN RESPECT OF A UNIT NO. G-2 WHICH WAS @ OF RS.5,333/- PER SQ.FT. . IN THE COURSE OF SEARCH, CERTAIN LOOSE PAPERS WERE FOU ND AND SEIZED AND ONE OF SUCH SEIZED PAPER, REFERRED TO AS PAGE 56 OF BUNDLE NO.2, INDICATED THAT ITA NO.741/PN/2012 A.Y. 2008-09 ASSESSEE HAD CHARGED ON-MONEY ON SALE OF UNIT TO A CUSTOMER, MRS. FATIMA MOIZ FAKRUDDIN & OTHERS. ON THE BASIS OF SUCH SEIZ ED PAPER, NOTINGS OF WHICH HAVE BEEN REPRODUCED IN PARA 7.1 OF THE ASSESSMENT ORDER, IT HAS BEEN INFERRED THAT THE TOTAL SELLING PRICE TO THE SAID C USTOMER WORKS OUT TO RS.4,076/- PER SQ.FT. . THE ASSESSING OFFICER COMPARED THIS RATE WITH TH E SALE CONSIDERATION RECORDED IN THE ACCOUNT BOOKS, AND NO TICED THAT THE SALE PRICE INDICATED IN THE SEIZED MATERIAL SHOWED RECEIPT OF ON-MONEY FROM THE CUSTOMER, WHICH WAS NOT DECLARED IN THE ACCOUNT BOO KS. APART FROM THE AFORESAID, THE ASSESSING OFFICER HAS REFERRED TO AN OTHER SEIZED LOOSE PAPER AT PAGE NO.25 OF BUNDLE NO.1, WHICH CONTAINED A NOTING OF CERTAIN CASH RECEIPTS AND CASH PAYMENTS MADE BY THE ASSESSEE FIRM, WHICH WERE NOT RECORDED IN THE ACCOUNT BOOKS. IN THE BACKGROUND OF THE AFORES AID MATERIAL, THE ASSESSING OFFICER CONCLUDED THAT ASSESSEE HAD SOLD ALL THE UN ITS IN THE PROJECT FOR A PRICE OF RS.4,000/- PER SQ.FT. AS AGAINST AVERAGE SELLING PRICE OF RS.2,300/- PER SQ.FT. RECORDED IN THE ACCOUNT BOOKS. THE AFORESAID PROPO SITION WAS FURTHER SUPPORTED BY THE ASSESSING OFFICER ON ACCOUNT OF FA CT THAT DURING THE COURSE OF SEARCH, ASSESSEE ITSELF HAD DECLARED ADDITIONAL INC OME OF RS.3.40 CRORES, WHICH AS PER THE ASSESSING OFFICER JUSTIFIED HIS PR EMISE THAT ASSESSEE HAD RECEIVED ON-MONEY ON SALE OF ALL UNITS IN THE PROJE CT. ACCORDINGLY, THE ASSESSING OFFICER APPLIED THE RATE OF RS.4,000/- PE R SQ.FT. TO THE SALE OF ALL OTHER UNITS MADE BY THE ASSESSEE AS PER THE DETAILS CONTAINED IN PARA 19 OF THE ASSESSMENT ORDER AND COMPUTED THE TOTAL ON-MONE Y RECEIVED ON SALE OF UNITS AT RS.10,53,46,450/-. AFTER TAKING INTO ACCO UNT THE AMOUNT OF RS.3.40 CRORES DECLARED BY THE ASSESSEE IN ITS RETURN OF IN COME, THE BALANCE OF RS.7,13,46,450/- WAS ADDED TO THE RETURNED INCOME. THE SAID ADDITION WAS CARRIED IN APPEAL BY THE ASSESSEE BEFORE THE CIT(A) . 5. IN APPEAL BEFORE THE CIT(A), ASSESSEE ASSAILED T HE ACTION OF THE ASSESSING OFFICER IN LAW AND ON FACTS. THE ASSESSE E CONTENDED THAT THERE WAS NO JUSTIFICATION TO INFER THAT ASSESSEE HAD SOL D THE UNITS IN THE PROJECT AT ITA NO.741/PN/2012 A.Y. 2008-09 RS.4,000/- PER SQ.FT. AS AGAINST THE RATES INDICATE D IN THE RESPECTIVE AGREEMENTS WHICH VARIED BETWEEN RS.2,000/- TO RS.2, 500/- PER SQ.FT. . AS PER THE ASSESSEE, THE SEIZED PAPER NO. 56 DID NOT INDIC ATE THAT ASSESSEE HAD SOLD THE UNIT TO MRS. FATIMA MOIZ FAKRUDDIN @ OF RS.4,00 0/- PER SQ.FT. AND THUS, THERE WAS NO REASON TO INFER THAT ASSESSEE HAS SOLD THE UNITS AT A PRICE OVER AND ABOVE THE STATED CONSIDERATION. IN THE ALTERNA TIVE, IT WAS SUBMITTED THAT EVEN IF IT WAS ACCEPTED THAT ASSESSEE HAD RECEIVED ON-MONEY ON SALE OF UNIT TO MRS. FATIMA MOIZ FAKRUDDIN & OTHERS, ASSESSEE HA D DECLARED ADDITIONAL INCOME OF RS.3.40 CRORES TO COVER SUCH DISCREPANCIE S, AND NO FURTHER ADDITION WAS WARRANTED. THE CIT(A) HAS SINCE UPHELD THE ACT ION OF THE ASSESSING OFFICER. FIRSTLY, AS PER THE CIT(A) THE SEIZED PAP ERS REFERRED TO BY THE ASSESSING OFFICER INDICATED THAT ASSESSEE HAD CHARG ED ON-MONEY ON SALE OF UNIT TO MRS. FATIMA MOIZ FAKRUDDIN & OTHERS. SECON DLY, HE HAS UPHELD THE ACTION OF THE ASSESSING OFFICER IN INFERRING THAT T HE ASSESSEE MUST HAVE CHARGED ON-MONEY ON SALE OF ALL THE UNITS, THOUGH T HE SEIZED PAPER NO. 56 OF BUNDLE NO.2 RELATED TO A SOLITARY SALE INSTANCE TO MRS. FATIMA MOIZ FAKRUDDIN & OTHERS, AND ACCORDINGLY THE IMPUGNED ADDITION WAS UPHELD. THE CIT(A) HAS RELIED THE JUDGEMENT OF THE HONBLE SUPREME COURT I N THE CASE OF COMMISSIONER OF SALES TAX VS. H.M. ESUFALI H. M. AB DULALI, (1973) 90 ITR 271 (SC) AND HELD THAT THE ASSESSING OFFICER WAS JUSTIF IED IN EXTRAPOLATING THE SALE PRICE IN RESPECT OF ALL THE UNITS SOLD ON THE BASIS OF THE EVIDENCE FOUND IN RELATION TO ONE OF THE UNITS. AGAINST THE AFORESAI D DECISION OF THE CIT(A), ASSESSEE IS IN FURTHER APPEAL BEFORE US. 6. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE HAS VEHEMENTLY ARGUED THAT THE ENTIRE ADDITION HAS BEEN MADE BY TH E ASSESSING OFFICER ON MERE CONJECTURES AND SURMISES. ACCORDING TO THE LE ARNED COUNSEL, THE SEIZED PAPER NO. 56 OF BUNDLE NO.2 HAS BEEN WRONGLY INTERP RETED BY THE ASSESSING OFFICER AND THE CIT(A) TO INFER THAT ASSESSEE HAD R ECEIVED ANY ON-MONEY ON SALE OF UNIT TO MRS. FATIMA MOIZ FAKRUDDIN & OTHERS . THE LEARNED COUNSEL ITA NO.741/PN/2012 A.Y. 2008-09 EXPLAINED THAT THE SAID CUSTOMER INITIALLY WANTED T O PURCHASE FULLY FURNISHED PREMISES AND THEREFORE THE RATE QUOTED WAS RS.4,000 /- PER SQ.FT., WHICH ACCORDING TO HIM EXPLAINS THE NOTINGS IN SEIZED PAP ER NO. 56 OF BUNDLE NO.2. IT IS SUBMITTED THAT THE NOTINGS IN THE SEIZED PAPE R ARE BASED ON THE SALE RATE OF RS.4,000/- PER SQ.FT., WHICH WAS IN RELATION TO A FURNISHED UNIT, WHICH WAS ULTIMATELY NOT BOUGHT BY THE SAID CUSTOMER, SUBSEQ UENTLY, THE CUSTOMER OPTED TO BUY AN UNFURNISHED BARE SHELL UNIT AND THEREFORE THE RATE FINALLY CHARGED WAS RS.2,300/- PER SQ.FT., WHICH IS AS PER THE AGREEMEN T EXECUTED WITH THE SAID CUSTOMER. AT THIS POINT, THE LEARNED COUNSEL ALSO REFERRED TO SEIZED PAPER NOS. 64-65 OF BUNDLE NO.2, COPIES OF WHICH HAVE BEEN PLA CED IN THE PAPER BOOK AT PAGES 9-10. THE SAID DOCUMENT IS THE OFFER LETTER GIVEN TO THE CUSTOMER, MRS. FATIMA MOIZ FAKRUDDIN & OTHERS WHICH CONTAINS VARIO US OPTIONS, NAMELY, BARE SHELL PREMISES, WARM SHELL PREMISES AND FULLY FURNI SHED PREMISES WITH RATES OF RS.2,300/- PER SQ.FT., RS.2,500/- PER SQ.FT. AND RS .4,100/- PER SQ.FT. RESPECTIVELY. IT WAS THUS CONTENDED THAT IF ONE IS TO CONSIDER THE NOTINGS MADE IN SEIZED PAPER NO. 56 WHICH CONTAINS CALCULATIONS ON THE BASIS OF THE RATE OF RS.4,000/- PER SQ.FT., IT WOULD SHOW THAT THE SAID RATE IS FOR A FULLY FURNISHED UNIT QUOTED BY ASSESSEE IN THE OFFER-LETTER (PLACED AT P AGES 9-10 OF THE PAPER BOOK) WHEREAS IN ACTUALITY THE SAID CUSTOMER HAS BE EN SOLD BARE SHELL PREMISES @ RS.2,300/- PER SQ.FT. . ACCORDING TO THE LEARNED COUNSEL, THE COPY OF THE OFFER-LETTER WAS ALSO SEIZED AT THE TIME OF SEARCH AND THE SAME HAS NOT AT ALL BEEN CONSIDERED BY THE ASSESSING OFFICER MER ELY BECAUSE ITS SUPPORTED THE STAND OF THE ASSESSEE THAT NO MONEY OVER AND AB OVE THE RATE OF RS.2,300/- PER SQ.FT. STATED IN THE AGREEMENT, HAS BEEN CHARGED FROM THE CUSTOMER, MRS. FATIMA MOIZ FAKRUDDIN & OTHERS. THE LEARNED COUNSEL ARGUED THAT IN TERMS OF SECTION 132(4A) OF THE ACT, SUCH P APERS ARE TO BE CONSIDERED AS TRUE AND GENUINE AS THEY WERE FOUND DURING THE C OURSE OF SEARCH. IN THIS MANNER, THE ASSESSEE HAS SOUGHT TO POINT OUT THAT W HAT HAS BEEN SOLD TO THE CUSTOMER WAS BARE SHELL PREMISES REFLECTING RATE OF RS.2,300/- PER SQ.FT. AND THEREFORE, THE RATE OF RS.4,000/- PER SQ.FT. FOUND NOTED IN THE SEIZED DOCUMENT ITA NO.741/PN/2012 A.Y. 2008-09 NO. 56 CANNOT BE TAKEN TO MEAN THAT THE SALE WAS MA DE @ 4,000/- PER SQ.FT. . FOR THE PROPOSITION THAT THE SEIZED MATERIAL HAS TO BE CONSIDERED IN ITS ENTIRETY, INCLUDING THOSE WHICH FAVOUR THE ASSESSEE, RELIANCE WAS PLACED ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS. INDEO AIRWAYS PVT. LTD., 349 ITR 85 (DEL). 7. APART THEREFROM THE LEARNED COUNSEL SUBMITTED TH AT AT NO STAGE ASSESSEE ADMITTED RECEIVING OF ON-MONEY FROM THE CU STOMER, MRS. FATIMA MOIZ FAKRUDDIN & OTHERS AND IN THIS CONTEXT, OUR AT TENTION HAS BEEN DRAWN TO THE STATEMENT OF SHRI ARVIND JAIN, PARTNER OF THE A SSESSEE FIRM RECORDED AT THE TIME OF SEARCH U/S 132(4) OF THE ACT, A COPY OF WHI CH HAS BEEN PLACED AT PAGES 22 TO 37 OF THE PAPER BOOK. IN RESPONSE TO QUESTIO N NO.8 PUT TO THE SAID PARTNER, IT WAS CATEGORICALLY DENIED THAT ANY ON-MO NEY WAS RECEIVED. THE LEARNED COUNSEL EXPLAINED THAT THE SAID QUESTION WA S PUT TO THE PARTNER IN THE CONTEXT OF THE SEIZED PAPER NO.56 OF BUNDLE NO.2 WH ICH HAS BEEN RELIED UPON BY THE ASSESSING OFFICER TO INFER RECEIPT OF ON-MON EY. GOING FURTHER IT HAS BEEN CONTENDED THAT ONLY WITH A VIEW TO AVOID LITIG ATION AND TO BUY PEACE OF MIND, THE PARTNER CONCERNED DISCLOSED ADDITIONAL IN COME FOR THE YEAR UNDER CONSIDERATION. ON THAT BASIS, IT IS SOUGHT TO BE M ADE OUT THAT ASSESSEE NEVER ADMITTED RECEIPT OF ON-MONEY ON SALE OF THE UNITS. AS REGARD THE LOOSE PAPER NO. 20 ALSO RELIED UPON BY THE ASSESSING OFFICER, I T WAS POINTED OUT THAT THE TOTAL AMOUNT OF CASH RECEIPTS NOTED IN THE SAID PAP ER WAS TO THE TUNE OF RS.40,00,000/-, AND THE SAME WAS TAKEN INTO CONSIDE RATION WHILE DECLARING THE ADDITIONAL INCOME OF RS.3.40 CRORES. ON THIS ASPEC T, THE LEARNED COUNSEL POINTED OUT THAT IF THE THEORY OF THE ASSESSING OFF ICER THAT ASSESSEE WAS CHARGING A HUGE RATE OF RS.4,000/- PER SQ.FT. WAS C ORRECT, THE SEIZED PAPER NO.20, COPY OF WHICH HAS BEEN PLACED IN THE PAPER B OOK AT PAGE 11, WOULD NOT HAVE REFLECTED RECEIPT ENTRIES IN SMALL DENOMIN ATIONS TOTALING TO RS.10,50,000/- AND RS.20,00,000/- ON DIFFERENT DATE S. IN ANY CASE, THE LEARNED COUNSEL SUBMITTED THAT THE LOOSE PAPER NO.2 0 WAS DULY EXPLAINED AND ITA NO.741/PN/2012 A.Y. 2008-09 IT REFLECTED RECEIPTS FROM CUSTOMERS FOR EXTRA WORK CARRIED OUT AS PER THEIR INSTRUCTIONS. 8. THE LEARNED COUNSEL ALSO POINTED OUT A CONTRADIC TION IN THE STAND OF THE ASSESSING OFFICER BY REFERRING TO SALE OF A UNIT NO .702 I.E. ITEM NO. 14 IN THE TABULATION IN PARA 6.2 OF THE ASSESSMENT ORDER. TH E SAID UNIT HAS BEEN SOLD TO ONE MRS. MANISHA SHRAVAN AGARWAL, WIFE OF A PART NER OF THE ASSESSEE FIRM AND THE RATE CHARGED IS RS.2,500/- PER SQ.FT. . ON THIS SALE, NO ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER ON ACCOUNT ON-MO NEY. THE LEARNED COUNSEL EXPLAINED THAT ASSESSEE FIRM WAS CONSTITUTE D BY TWO PROJECTS I.E. SHRI ARVIND JAIN FAMILY HAVING 50% SHARE AND THE BALANCE OF 50% WAS OWNED BY PRIDE GROUP. IF THE ASSESSEE WAS COLLECTING ON-MON EY ON SALE OF UNITS, THAN IN THAT THE EVENT ASSESSEE WOULD HAVE ALSO COLLECTED O N-MONEY ON SALE OF PREMISES TO MRS. MANISHA SHRAVAN AGARWAL SINCE THE OTHER PARTNER I.E. PRIDE GROUP, WHO WAS HAVING 50% IN THE ASSESSEE FIRM, WOU LD NOT HAVE ALLOWED THE FIRM TO CHARGE A LOWER PRICE FROM MRS. MANISHA SHRA VAN AGARWAL. HOWEVER, THERE IS NO EVIDENCE FOUND OF THE ASSESSEE HAVING C HARGED ANY ON-MONEY FROM MRS. MANISHA SHRAVAN AGARWAL AND THE ASSESSING OFFICER HAS ALSO NOT MADE ANY ADDITION ON THIS SCORE. THEREFORE, ACCORD ING TO THE LEARNED COUNSEL THE RATES SHOWN BY THE ASSESSEE IN THE RESPECTIVE S ALE AGREEMENTS WERE THE MARKET RATES AND THERE WAS NO JUSTIFICATION TO INFE R RECEIPT OF ON-MONEY ON SALES MADE. 9. THE LEARNED COUNSEL ALSO MADE AN ALTERNATIVE ARG UMENT WHICH IS TO THE EFFECT THAT EVEN IF IT HAS TO BE HELD THAT ASSESSEE HAD CHARGED ANY ON-MONEY ON SALE OF UNIT TO MRS. FATIMA MOIZ FAKRUDDIN, THE SAID ON-MONEY AMOUNTS TO RS.2.96 CRORES AND COUPLED WITH THE OTHER DISCREPAN CY OF RS.40,00,000/- ON THE BASIS OF LOOSE PAPER NO.20, THE TOTAL ADDITIONA L INCOME DECLARED BY THE ASSESSEE OF RS.3.40 CRORES WAS ENOUGH TO COVER-UP T HE SAID DISCREPANCIES. ON THIS ASPECT, IT IS CONTESTED THAT NO FURTHER ADD ITION WAS REQUIRED TO BE MADE ITA NO.741/PN/2012 A.Y. 2008-09 BY CONSIDERING THE SALE RATE OF RS.4,000/- PER SQ.F T. TO ALL THE OFFICE PREMISES SOLD AND THE RELIANCE PLACED BY THE CIT(A) ON THE J UDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF H.M. ESUFALI H. M. ABD ULALI (SUPRA) WAS SOUGHT TO BE ASSAILED. ACCORDING TO THE LEARNED COUNSEL, THE RATIO OF THE SAID DECISION IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. APART THEREFROM, THE RELIANCE PLACED BY THE CIT(A) ON THE JUDGEMENT OF THE HONBL E ANDHRA PRADESH HIGH COURT IN THE CASE OF RAJNIK AND CO. VS. ACIT, (2001 ) 251 ITR 561 (AP) WAS ALSO SOUGHT TO BE ASSAILED. ALTERNATIVELY, RELIANC E WAS PLACED ON THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF MR . ANIL BANSILAL LODHA VS. ACIT VIDE ITA NO.132/PN/2007 DATED 29.02.2012 FOR T HE PROPOSITION THAT IF AT ALL, ANY ADDITION IS TO BE SUSTAINED ON ACCOUNT OF RECEIPT OF ON-MONEY, ON SALE OF UNITS, WHAT IS LIABLE TO BE ADDED IS THE AMOUNT OF NET INCOME EARNED FROM SUCH ON-MONEY RECEIPTS AND NOT THE GROSS AMOUNT. 10. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REP RESENTATIVE APPEARING FOR THE REVENUE HAS VEHEMENTLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. ACCORDING TO THE LEARNED DEPARTMENTAL REPRESENTATIV E, THE NOTINGS IN THE LOOSE PAPER NO. 56 SEIZED AT THE TIME OF SEARCH AND WHICH HAS BEEN REPRODUCED BY THE ASSESSING OFFICER IN THE ASSESSME NT ORDER CLEARLY SHOW THAT ASSESSEE WAS IN RECEIPT OF ON-MONEY ON SALE OF UNIT , WHICH WAS NOT DISCLOSED IN THE REGULAR ACCOUNT BOOKS. FURTHER, WITH REGARD TO THE RATE OF RS.4,000/- ADOPTED IN ORDER TO ESTIMATE THE SALE OF ALL THE UN ITS, THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE JUDGEMENT OF THE HON BLE SUPREME COURT IN THE CASE OF H.M. ESUFALI H. M. ABDULALI (SUPRA) WHICH H AS ALSO BEEN RELIED UPON BY THE LOWER AUTHORITIES. THE LEARNED DEPARTMENTAL RE PRESENTATIVE ALSO SUBMITTED THAT THE REFERENCE PLACED BY THE LEARNED COUNSEL WITH RESPECT TO THE SEIZED PAPER NO.64-65, THE SAME ARE MERE QUOTATIONS GIVEN TO MRS. FATIMA MOIZ FAKRUDDIN, WHICH IS OF NO AVAIL BECAUSE THE NO TINGS OF THE SALE FOUND RECORDED ON SEIZED PAPER NO.56 JUSTIFIED THE INFERE NCE THAT ASSESSEE RECEIVED ON-MONEY ON SALE OF UNIT TO MRS. FATIMA MOIZ FAKRUD DIN. FURTHER, IT IS POINTED ITA NO.741/PN/2012 A.Y. 2008-09 OUT THAT THE DECLARATION OF ADDITIONAL INCOME ON AC COUNT OF ON-MONEY BY THE ASSESSEE ITSELF DENOTES THAT THE ASSESSEE RECEIVED ON-MONEY ON SALE OF ALL THE UNITS; AND, THEREFORE THE ADDITION HAS BEEN RIG HTLY MADE BY THE LOWER AUTHORITIES BY ESTIMATING ON-MONEY ON SALE OF THE E NTIRE PROJECT. IN SUM AND SUBSTANCE, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW IN SUPPORT OF THE C ASE OF THE REVENUE. 11. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. AS CAN BE MADE OUT FROM OUR DISCUSSION IN THE EARLIER PART OF THIS ORDER, THE PERTINENT DISPUTE IS WITH REGARD TO A SUM OF RS.7,13,46,450/- ADDED BY T HE ASSESSING OFFICER ON THE GROUND THAT ASSESSEE HAS RECEIVED ON-MONEY ON S ALE OF ALL THE UNITS IN ITS PROJECT PRIDE PURPLE ACCORD AT BANER, PUNE. NO DOU BT, THE ADDITION IS AN ESTIMATE, BUT THE CLAIM OF THE REVENUE IS THAT THE FACTUM OF ASSESSEE HAVING RECEIVED ON-MONEY ON SALE OF UNITS IS FOUNDED ON A DOCUMENT STYLED NO.56 OF BUNDLE NO.2, WHICH WAS SEIZED IN THE COURSE OF SEAR CH. AS PER THE REVENUE, THE SAID DOCUMENT EVIDENCED CHARGING OF ON-MONEY BY THE ASSESSEE ON SALE OF A UNIT TO MRS. FATIMA MOIZ FAKRUDDIN & OTHERS. AS PER THE REVENUE, THE SAID SEIZED DOCUMENT SHOWED THAT THE SALE CONSIDERA TION RECEIVED BY THE ASSESSEE WAS MORE THAT THE AMOUNT STATED IN THE SAL E AGREEMENT. IN THE COURSE OF SEARCH, THE SAID DOCUMENT WAS PUT TO THE PARTNER OF THE ASSESSEE AND IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT , THE PARTNER DEPOSED AS UNDER :- Q. 8 I AM SHOWING YOU ITEM NO.2 OF ANN.-A. PLEASE GO THROUGH THE SAME AND EXPLAIN. PLEASE KEEP IN MIND THAT THE PAG E NO.56 SUGGESTS ON- MONEY OF RS.2.96 CRORES IN THE TRANSACTION APPEARIN G IN THE PAPERS IN FILE RECEIVED BY YOU WHILE REPLYING TO THIS QUESTION? A. 8 I DO NOT AGREE WITH THE CONTENTS OF THE PAPER OF SR.NO.56. I DO NOT RECOGNIZE THE HANDWRITING OF THE PERSON. NO SU CH ON-MONEY HAS BEEN RECEIVED ON THE SALE OF THE PARTICULAR PROPERTY. HO WEVER, I DO NOT WANT TO ENTER INTO LITIGATION WITH THE DEPARTMENT AND I WANT TO F OCUS ON MY BUSINESS. THEREFORE, TO BY PEACE OF MIND, THE AMOUNT OF RS.3 CRORES WOULD BE OFFERED FOR TAXATION IN ADDITION TO BOOK INCOME FOR THE F.Y .2007-08. ITA NO.741/PN/2012 A.Y. 2008-09 12. THE AFORESAID DEPOSITION OF THE PARTNER SHOWS T HAT HE HAS NOT ONLY DENIED THE CONTENTS OF THE DOCUMENT BUT HAS ALSO NO T RECOGNIZED THE HANDWRITING OF THE NOTINGS MADE THEREIN. HOWEVER, THE PARTNER FURTHER DEPOSED THAT IN ORDER TO FOCUS ON HIS BUSINESS AND TO BUY PEACE OF MIND, HE OFFERED FOR TAXATION A SUM OF RS.3 CRORES IN ADDITI ON TO THE REGULAR INCOME AS PER ACCOUNT BOOKS FOR THE INSTANT ASSESSMENT YEAR. THE ASSESSEE DECLARED TOTAL ADDITIONAL INCOME OF RS.3.40 CRORES, WHICH IN CLUDED THE ABOVE RS.3.00 CRORES AND A SUM OF RS.40,00,000/- IN RELATION TO C ERTAIN NOTINGS FOUND ON ANOTHER SEIZED LOOSE PAPER NO.20. THE SAID AMOUNT HAS BEEN DECLARED BY THE ASSESSEE AS ADDITIONAL INCOME IN THE RETURN INCOME FILED FOR THE INSTANT ASSESSMENT YEAR. NOTABLY, THE DIFFERENCE BETWEEN T HE SALE CONSIDERATION FOUND NOTED IN THE SEIZED MATERIAL AND THAT RECORDE D IN THE SALE DEED AMOUNTED TO RS.2.96 CRORES. 13. QUITE CLEARLY, THE ON-MONEY RECEIPT REFLECTED I N THE SEIZED MATERIAL ON SALE OF UNIT TO MRS. FATIMA MOIZ FAKRUDDIN & OTHERS , HAS BEEN OFFERED FOR TAXATION BY THE ASSESSEE. THEREFORE, NOTHING MUCH CAN TURN BY ADJUDICATING AS TO WHETHER OR NOT THE NOTINGS ON THE SEIZED PAPE R NO.56 OF BUNDLE NO.2 REFLECT RECEIPT OF ON-MONEY FROM MRS. FATIMA MOIZ F AKRUDDIN. SO HOWEVER, THE DISPUTE STARTS FROM THE FACT THAT THE ASSESSING OFFICER HAS PRESUMED ON THE BASIS OF THE SAID SEIZED MATERIAL THAT ASSESSEE MUS T HAVE EARNED ON-MONEY ON SALE OF ALL THE UNITS SOLD IN THE PROJECT. FACT UALLY SPEAKING, THERE IS NO DISPUTE THAT OTHER THAN PAGE NO.56 OF BUNDLE NO.2 A ND TO SOME EXTENT LOOSE PAPER NO.20, THERE IS NO OTHER MATERIAL SEIZED OR F OUND IN THE COURSE OF SEARCH OR OTHERWISE, WHICH WOULD SHOW THAT ASSESSEE HAS RE CEIVED ON-MONEY ON SALE OF UNITS IN THE IMPUGNED PROJECT. THE ASSESSING OF FICER ADOPTED THE RATE OF RS.4,000/- PER SQ.FT., AS REFLECTED IN SEIZED PAPER NO.56, AND APPLIED IT TO SALES OF ALL THE UNITS AND COMPUTED THE IMPUGNED ADDITION . THE EXTRAPOLATION HAS SOUGHT TO BE JUSTIFIED ON THE BASIS OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF H.M. ESUFALI H. M. ABDULALI (S UPRA). ITA NO.741/PN/2012 A.Y. 2008-09 14. BEFORE PROCEEDING FURTHER WE MAY BRIEFLY REFER TO THE FACTS OF THE CASE BEFORE THE HONBLE SUPREME COURT. THE HONBLE SUPR EME COURT WAS DEALING WITH A BEST JUDGMENT ASSESSMENT MADE BY THE SALES T AX OFFICER WHEREIN IN THE FACE OF SALE OF 19 DAYS NOT ENTERED IN ACCOUNT BOOKS, THE S.T.O. ESTIMATED THE ESCAPED TURNOVER FOR THE ENTIRE YEAR. IN THE C ASE OF THE HONBLE SUPREME COURT, EVIDENCE WAS FOUND WHICH SHOWED THAT SALE OF 19 DAYS WAS NOT RECORDED IN THE REGULAR ACCOUNT BOOKS. THE EVIDENC E IN QUESTION WAS A BILL BOOK CONTAINING UNDISCLOSED SALES FOR 19 DAYS. THE HONBLE SUPREME COURT UPHELD THE ACTION OF THE SALES TAX OFFICER THAT THE FACTUM OF SUPPRESSED SALES FOR 19 DAYS COULD FORM THE BASIS FOR ESTIMATING ESC APED TURNOVER FOR THE ENTIRE YEAR. PERTINENTLY, IT IS TO BE APPRECIATED THAT IN THE CASE BEFORE THE HONBLE SUPREME COURT, ASSESSEE INITIALLY DISPUTED THAT BIL L BOOK CONTAINING UNDISCLOSED SALES DID NOT PERTAIN TO HIM AND IT WAS ONLY SUBSEQUENTLY HE ACCEPTED THAT THE BILL BOOK REFLECTED UNDISCLOSED S ALES PERTAINING TO HIM. THE HONBLE SUPREME COURT HAS NOTED THE ASPECT THAT ASS ESSEE CONCEDED SUBSEQUENTLY THAT THE BILL BOOK WAS HIS AND THE ENT RIES THEREIN RELATED TO HIS DEALINGS. UNDER THESE CIRCUMSTANCES, THE HONBLE S UPREME COURT HELD THAT IT WAS NOW PROVED AS WELL AS ADMITTED THAT HIS DEALIN GS OUTSIDE HIS ACCOUNTS. . THE HONBLE SUPREME COURT NOTED THAT IN SUCH A SI TUATION, IT WAS OPEN FOR THE SALES TAX OFFICER TO INFER THAT AS SESSEE HAD LARGE SCALE DEALINGS OUTSIDE HIS ACCOUNTS. THE RELEVANT DISCUS SION IN THE ORDER OF THE HONBLE SUPREME COURT IS AS UNDER :- NOW COMING TO THE FACTS OF THIS CASE, IT IS NECESS ARY TO REMEMBER THAT AT THE INITIAL STAGE, THE ASSESSEE DENIED THAT THE BILL BOOK SEIZED WAS HIS BILL BOOK AND THE ENTRIES THEREIN RELATED TO HIS DEALING S. HE ASSERTED THAT HE HAD NOTHING TO DO WITH THE BILL BOOK IN QUESTION AND TH E ENTRIES THEREIN DO NOT RELATE TO HIS DEALINGS. BUT, AT A LATER STAGE, HE CONCEDED THAT THAT BILL BOOK WAS HIS AND THE ENTRIES THEREIN RELATED TO HIS DEALINGS. IT IS NOW PROVED AS WELL AS ADMITTED THAT HIS DEALINGS OUTSIDE HIS ACCOUNTS DUR ING A PERIOD OF 19 DAYS WERE OF THE VALUE OF RS. 31,171.28. FROM THIS CIRCU MSTANCE, IT WAS OPEN TO THE SALES TAX OFFICER TO INFER THAT THE ASSESSEE HAD LA RGE SCALE DEALINGS OUTSIDE HIS ACCOUNTS. THE ASSESSEE HAS NEITHER PLEADED NOR ESTABLISHED ANY JUSTIFIABLE REASON FOR NOT ENTERING IN HIS ACCOUNTS THE DEALINGS NOTED IN THE BILL BOOK SEIZED. IT IS OBVIOUS THAT HE WAS MAINTAINING FALSE ACCOUNTS TO EVADE PAYMENT OF SALES TAX. IN SUCH A SITUATION, IT WAS N OT POSSIBLE FOR THE SALES TAX OFFICER TO FIND OUT PRECISELY THE TURNOVER SUPPRESS ED. HE COULD ONLY MAKE AN ESTIMATE OF THE SUPPRESSED TURNOVER ON THE BASIS OF THE MATERIAL BEFORE HIM. ITA NO.741/PN/2012 A.Y. 2008-09 SO LONG AS THE ESTIMATE MADE BY HIM IS NOT ARBITRAR Y AND HAS NEXUS WITH FACTS DISCOVERED, THE SAME CANNOT BE QUESTIONED. IN THE V ERY NATURE OF THINGS THE ESTIMATE MADE MAY BE AN OVERESTIMATE OR AN UNDER ES TIMATE. BUT, THAT IS NO GROUND FOR INTERFERING WITH HIS 'BEST JUDGMENT'. IT IS TRUE THAT THE BASIS ADOPTED BY THE OFFICER SHOULD BE RELEVANT TO THE ESTIMATE M ADE. THE HIGH COURT WAS WRONG IN ASSUMING THAT THE ASSESSING AUTHORITY MUST HAVE MATERIAL BEFORE IT TO PROVE THE EXACT TURNOVER SUPPRESSED. IF THAT IS TRU E, THERE IS NO QUESTION OF 'BEST JUDGMENT' ASSESSMENT. THE ASSESSEE CANNOT BE PERMITTED TO TAKE ADVANTAGE OF HIS OWN ILLEGAL ACTS. IT WAS HIS DUTY TO PLACE ALL FACTS TRUTHFULLY BEFORE THE ASSESSING AUTHORITY. IF HE FAILS TO DO H IS DUTY, HE CANNOT BE ALLOWED TO CALL UPON THE ASSESSING AUTHORITY TO PROVE CONCL USIVELY WHAT TURNOVER HE HAD SUPPRESSED. THAT FACT MUST BE WITHIN HIS PERSON AL KNOWLEDGE. HENCE, THE BURDEN OF PROVING THAT FACT IS ON HIM. NO CIRCUMSTA NCE HAS BEEN PLACED BEFORE THE ASSESSING AUTHORITY TO SHOW THAT THE ASSESSEE'S DEALINGS DURING SEPTEMBER 1, 1960, TO SEPTEMBER 19, 1960, OUTSIDE H IS ACCOUNTS WERE DUE TO SOME EXCEPTIONAL CIRCUMSTANCE OR THAT THEY WERE PRO PORTIONATELY MORE THAN HIS DEALINGS OUTSIDE HIS ACCOUNTS DURING THE REMAIN ING PERIODS. THE ASSESSING AUTHORITY COULD NOT HAVE BEEN IN POSSESSION OF ANY CORRECT MEASURE TO FIND OUT THE ESCAPED TURNOVER DURING THE PERIODS NOVEMBER 1, 1959, TO AUGUST 31, 1960, AND SEPTEMBER 20, 1960, TO OCTOBER 20, 1960. 15. THEREFORE, THE PROPOSITION UPHELD BY THE HONBL E SUPREME COURT CAN ONLY BE APPLIED IN CIRCUMSTANCE WHERE IT IS PROVED AS WELL AS ADMITTED BY THE ASSESSEE THAT THERE ARE DEALINGS OUTSIDE HIS ACCOUN TS. THE MOOT POINT IS AS TO WHETHER THE FACTS AND CIRCUMSTANCES IN THE PRESENT CASE JUSTIFY AN INFERENCE OF SUCH A CIRCUMSTANCE. WE WILL ADDRESS THIS WITH REF ERENCE TO THE FACTS OF THE INSTANT CASE A LITTLE LATER IN THE ORDER. 16. NOW, WITH RESPECT TO THE JUDGEMENT OF THE HONB LE ANDHRA PRADESH HIGH COURT IN THE CASE OF RAJNIK AND CO. (SUPRA) WH ICH HAS ALSO BEEN RELIED UPON BY THE LOWER AUTHORITIES TO JUSTIFY THE ESTIMA TION OF ON-MONEY IN ALL UNITS SOLD. IN THE SAID CASE ALSO THE SEIZED MATERIAL SH OWED SUPPRESSION FOR PART OF THE YEAR BUT THE ACTION OF THE ASSESSING OFFICER ES TIMATING SUPPRESSION FOR THE ENTIRE PERIOD WAS UPHELD. SO HOWEVER, FOLLOWING TH E DISCUSSION IN ORDER OF THE HONBLE HIGH COURT WOULD SHOW THAT WHEN THE SEIZED MATERIAL WAS PUT TO THE ASSESSEE AND EVIDENCE OF THE PARTNERS WAS RECORDED IT SHOWED THAT SIMILAR METHODOLOGY WAS ADOPTED BY THE ASSESSEE THROUGHOUT THE PERIOD UNDER CONSIDERATION. THE HONBLE HIGH COURT SPECIFICALLY REFERS TO THE FACT THAT THE EVIDENCE RECORDED FROM THE ASSESSEE AT THE TIME OF SEARCH AND ADMISSION OF ITA NO.741/PN/2012 A.Y. 2008-09 THE PARTNER JUSTIFIED THE INFERENCE ABOUT THE METHO DOLOGY OF SUPPRESSION OF INCOME. THE FOLLOWING DISCUSSION IS RELEVANT :- LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT TH ERE IS ABSOLUTELY NO MATERIAL EITHER FOR THE ASSESSING OFFICER OR FOR THE TRIBUNAL TO RESORT TO SUCH ESTIMATION AND THEREFORE THE ESTIMATION ARE PURELY BASED ON CONJECTURES AND HYPOTHESES AND THEREFORE UNSUSTAINABLE. WE ARE UNAB LE TO ACCEPT THE SAID CONTENTION OF LEARNED COUNSEL. LEARNED COUNSEL WAS NOT ABLE TO DISPUTE THE FINDINGS OF THE ASSESSING OFFICER AS WELL AS THE TR IBUNAL, WHERE SEIZED MATERIAL SHOWS THAT THERE WAS SUPPRESSION FOR A PER IOD OF 24 DAYS DURING THE ASSESSMENT YEAR 1996-97 AND 15 DAYS FOR 1997-98 AND ALSO THAT THE SUPPRESSIONS WERE ON A DAY-TO-DAY BASIS AND THE EVI DENCE RECORDED FROM THE PARTNERS SHOWS THAT THE SAME METHOD WAS ADOPTED THR OUGHOUT THE ASSESSMENT YEARS FOR THE ENTIRE BLOCK PERIOD. IN TH E LIGHT OF SUCH EVIDENCE RECOVERED FROM THE ASSESSEE AT THE TIME OF SEARCH, TOGETHER WITH THE ADMISSION OF THE PARTNER, THERE IS ABSOLUTELY NO JU STIFICATION FOR THE ASSESSEE TO CONTEND THAT THERE IS NO EVIDENCE ON RECORD. 17. THE AFORESAID JUDICIAL PRONOUNCEMENTS SUPPORT T HE PROPOSITION THAT IN A CASE WHERE SUPPRESSION OF INCOME IS ADMITTED AS A M ODUS OPERANDI OR A METHODOLOGY THAN THE INCOME FOR THE ENTIRE PERIOD C AN BE ESTIMATED EVEN IN THE ABSENCE OF ANY EVIDENCE FOUND SHOWING RECEIPT O F SUCH INCOME OVER THE ENTIRE PERIOD. ON THE BASIS OF THE AFORESAID PROPO SITION, THE REVENUE HAS SOUGHT TO JUSTIFY THE IMPUGNED ADDITION. HOWEVER, IN OUR OPINION, THE SINGULAR SEIZED DOCUMENT WHICH SHOWED RECEIPT OF ON-MONEY ON A SALE WAS IN RELATION TO A SOLITARY SALE OF A UNIT MADE TO MRS. FATIMA MO IZ FAKRUDDIN. IT IS ALSO CLEAR THAT WHEN SAID DOCUMENT WAS PUT TO THE ASSESSEES P ARTNER, HE DENIED THE CONTENTS BUT IN THE SAME BREATH OFFERED THE AMOUNT OF ON-MONEY REFLECTED THERE AS ADDITIONAL INCOME. SO HOWEVER, THE POINT TO BE NOTED IS THAT AT THAT STAGE THE PARTNER OF THE ASSESSEE DID NOT ADMIT TO ANY MODUS OPERANDI OF RECEIVING ON-MONEY ON SALE OF UNITS. IT IS ALSO NO TEWORTHY THAT THE REVENUE DID NOT PUT ANY SUCH QUESTION TO THE PARTNER DURING HIS DEPOSITION. THERE IS ALSO NO EVIDENCE OF ANY OTHER SALE HAVING BEEN MADE BY THE ASSESSEE OF AN AMOUNT IN EXCESS OF WHAT WAS FOUND RECORDED IN THE ACCOUNT BOOKS. THEREFORE, CONSIDERING THE ENTIRE FACTS AND CIRCUMS TANCES, WE DO NOT FIND THAT THE ASSESSEE HAS ADMITTED TO A MODUS OPERANDI OF RE CEIVING SALE CONSIDERATION OUTSIDE THE BOOKS OF ACCOUNT. IT IS ALSO EMERGING FROM RECORD THAT THE REVENUE HAS ALSO NOT LED ANY CREDIBLE AND COGENT MATERIAL OR ITA NO.741/PN/2012 A.Y. 2008-09 EVIDENCE TO DEMONSTRATE THAT ANY MODUS OPERANDI OF RECEIVING SALE CONSIDERATION OUTSIDE THE ACCOUNT BOOKS WAS BEING C ARRIED OUT BY THE ASSESSEE REGULARLY, EXCEPT IN RELATION TO ONE INSTA NCE OF SALE TO MRS. FATIMA MOIZ FAKRUDDIN. THEREFORE, UNDER THESE CIRCUMSTANC ES IT WOULD NOT BE JUSTIFIED FOR THE REVENUE TO EXTRAPOLATE RECEIPT OF ON-MONEY FOR THE SALE OF OTHER UNITS IN THE PROJECT AND ACCORDINGLY THERE IS NO JUSTIFICATION FOR THE ADDITION OF RS.7,13,46,450/- MADE ON THIS COUNT. T HE PROPOSITION SOUGHT TO BE ADVANCED ON THE BASIS OF THE JUDGEMENT OF THE HONB LE SUPREME COURT IN THE CASE OF H.M. ESUFALI H. M. ABDULALI (SUPRA) AND THA T OF THE HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF RAJNIK AND CO. (S UPRA) IS NOT ATTRACTED IN THE PRESENT CASE, SINCE THE FACTUAL POSITION IN THE INSTANT CASE IS DISTINGUISHABLE, AS WE HAVE FOUND ABOVE. 18. IN VIEW OF THE AFORESAID DISCUSSION, WE THEREFO RE SET-ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELE TE THE ADDITION OF RS.7,13,46,450/-. THUS, ASSESSEE SUCCEEDS ON THIS ISSUE. 19. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH APRIL, 2014. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G . S. PANNU) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE, DATED : 30 TH APRIL, 2014 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-CENTRAL, PUNE; 4) THE CIT-CENTRAL, PUNE; 5) THE DR, B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE