RAMNAGAR DEVELOPENT CORPORATION, MUMBAI V. ASST CIT CEN CIR 21, MUMBAI

ITA 7421/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3589 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 21-10-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 14-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SRIVASTAVACIT
• Keywords: Business income; Income from undisclosed sources; Loose papers; Document seized; Documents seized
• Section: 143(3); 153A; 132

Judgement Text

D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 76 /MUM/2012 ( / ASSESSMENT YEAR : 2007-08) ./ I.T.A. NO. 77 /MUM/2012 ( / ASSESSMENT YEAR : 2008-09) ./ I.T.A. NO. 7421 /MUM/2012 ( / ASSESSMENT YEAR : 2009-10) M/S RAMNAGAR DEVELOPMENT CORPORATION, 811, EMBASSY CENTRE, 8 TH FLOOR, NARIMAN POINT, MUMBAI 400021. / V. ASSTT. COMMISSIONER OF INCOME TAX CENT. CIRCLE 24 & 26, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400020. ./ PAN : AAAFR9320E ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY SHRI AJAY SINGH REVENUE BY : SHRI A.K. SRIVASTAVA,CIT DR / DATE OF HEARING : 24.05.2016 / DATE OF PRONOUNCEMENT : 22-08-2016 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THESE THREE APPEALS FILED BY THE ASSESSEE FIRM FOR THE ASSESSMENT YEARS 2007-08, 2008-09 AND 2009-10 ARE DIRECTED AGAINST T HREE SEPARATE ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-39 , MUMBAI (HEREINAFTER ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 2 CALLED THE CIT(A)) DATED 8 TH NOVEMBER, 2011, 8 TH NOVEMBER, 2011 AND 30 TH OCTOBER, 2012 RESPECTIVELY , THE APPELLATE PROCEEDI NGS BEFORE THE LEARNED CIT(A) ARISING FROM THE THREE SEPARATE ASSESSMENT O RDERS , FIRST DATED 22 ND DECEMBER, 2009 PASSED U/S 143(3) READ WITH SECTION 153A OF THE INCOME TAX ACT,1961 (HEREINAFTER CALLED THE ACT) FOR THE AS SESSMENT YEAR 2007-08 , AND THE REST TWO ASSESSMENT ORDERS DATED 22 ND DECEMBER 2009 AND 29 TH NOVEMBER, 2011 RESPECTIVELY PASSED BY THE LEARNED A SSESSING OFFICER (HEREINAFTER CALLED THE AO) BOTH U/S 143(3) OF TH E ACT. 2. FIRST, WE SHALL TAKE UP THE ASSESSEES APPEAL IN ITA NO. 76/MUM/2012 FOR THE ASSESSMENT YEAR 2007-08 WHEREIN THE FOLLOWI NG GROUNDS OF APPEAL ARE RAISED BY THE ASSESSEE IN THE MEMO OF APPEAL FILED WITH THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- 1. IN CONFIRMING AN ADDITION OF UNACCOUNTED INCOME BASED ON PRESUMPTIONS AND SURMISES AND WITHOUT APPRECIATING COR RECTLY THE FACTS OF THE CASE AND PRACTICAL REALITIES. 2. IN NOT APPRECIATING THAT NO ADDITION COULD BE MAD E BASED ON ROUGH WORKINGS FOUND AT THE PREMISES WHICH AT BEST RE PRESENTED PROVISIONAL FIGURES AND NOTHING MORE. 3. IN NOT APPRECIATING THE EXPLANATIONS GIVEN BY THE A PPELLANT OF VARIOUS REASONS WHY FLATS ARE SOLD AT DIFFERENT PRICE S AND OTHER SUBMISSIONS MADE BY THE APPELLANT. ALL THE GROUNDS ABOVE ARE WITHOUT PREJUDICE TO EACH OTH ER. 3. THE BRIEF FACTS IN THIS CASE ARE THAT THE ASSESS EE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION I.E. DEVELOPMENT OF PROPERTY AT MIRA ROAD, DIST, THANE. A SEARCH OPERATION WAS CON DUCTED BY REVENUE U/S 132 OF THE ACT ON 13 TH MARCH, 2008 AT THE RESIDENTIAL/BUSINESS PREMISES O F ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 3 BHARAT SHAH GROUP OF CASES. THE ASSESSEE WAS ALSO, INTER ALIA, COVERED IN THE AFORE-STATED SEARCH OPERATIONS CONDUCTED BY REVENUE U/S. 132(1) OF THE ACT. NOTICE U/S 153A OF THE ACT WAS ISSUED ON 25 TH NOVEMBER, 2008 BY THE AO ASKING THE ASSESSEE TO FILE THE RETURN OF INCOME. THE ASSESSEE FILED ITS RETURN OF INCOME U/S. 153A OF THE ACT ON 4 TH DECEMBER, 2008 DECLARING A TOTAL INCOME OF RS. 2,84,10,567/- WHICH WAS INCOME THE SA ME AS DECLARED IN THE ORIGINAL RETURN OF INCOME FILED U/S 139(1) OF THE A CT. THE ASSESSEE WAS ASKED BY THE AO TO EXPLAIN THE CONTENTS OF THE SEIZED MAT ERIAL MARKED AS PAGE NO. 18, ANNEXURE A-3 SEIZED FROM 811,EMBASSY CENTRE, NA RIMAN POINT,MUMBAI . IN REPLY, THE ASSESSEE SUBMITTED THE FOLLOWING EXPL ANATIONS BEFORE THE AO:- THE EXPLANTIONOF PAGE NO 18 (ROUGH WORKING) ALL THE HAND WRITTEN WORKINGS ON PAGE NO 18 AND BAC K OF 18 ARE PROVISIONAL ROUGH WORKINGS. HOWEVER, THE EXPLANATIO N OF THE SAME IS AS UNDER: 1. III - 176720 & 9715 IS SALEABLE AREA OF SHANTI G ARDENS SECTOR III PROJECT (RESIDENTIAL & COMMERCIAL RESPECTIVELY) . 1201 & 1200 IS THE RESPECTIVE AVERAGE PRICE TAKEN FOR WORKING P URPOSE WHICH WORKS OUT AS THE WRITTEN FIGURES OF RS 21,22,40,720 / - AND RS 1,16,58,000/- AND THE TOTAL AS RS 22,38,98,720/- ME NTIONED ON THE SAID PAGE. WHEREAS THE ACTUAL SALES IS RS 21,85 ,88,280 WHICH IS DULY RECORDED IN THE BOOKS OF ACCOUNTS AND IN TH E BALANCE SHEET FOR THE YEAR ENDED 31.3.2007, FEW FIATS WERE SOLD ON DISCOUNT HENCE THE VARIATION APPEARS. IV - 155260 & 10205 IS SALEABLE AREA OF SHANTI GARD ENS SECTOR IV PROJECT (RESIDENTIAL & COMMERCIAL RESPECTIVELY). 13 50 & 1300 IS RESPECTIVE AVERAGE PRICE TAKEN FOR WORKING PURPOSE WHICH WORKS OUT AS WRITTEN 20,96,01,000 & 1,32,66,500 AND THE T OTAL AS RS 22,28,67,500 MENTIONED ON THE SAID PAGE, WHEREAS TH E ACTUAL ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 4 SALE IS RS 21,20,89,625, WHICH IS DULY RECORDED IN THE BOOKS OF ACCOUNTS AND IN THE BALANCE SHEET FOR THE YEAR ENDE D 31.3.2007 FEW FIATS SOLD ON DISCOUNT HENCE THE VARIATION APPE ARS. 2. 1 THE THIRD HAND WRITTEN FIGURE IS RS 10,07,41,5 00 WHICH IS DERIVED FROM THE BACK SIDE OF PAGE 18, THE FIGURE 1 8330 & 181320 IS SALEABLE COMMERCIAL AND RESIDENTIAL AREA OF SHAN TI DHAM PROJECT 550 & 500 IS RESPECTIVE AVERAGE PRICE TAKEN FOR WORKING PURPOSE WHICH WORKS OUT AS MENTIONED ON THE SAID PA GE AS SALES REALIZATION RS.10,07,41,500, WHEREAS THE ACTUAL SAL ES IS RS 9,17,40,754/- WHICH IS DULY RECORDED IN THE BOOKS O F ACCOUNT AND THE BALANCE SHEET FOR THE YEAR ENDED 31.3.2007. THE SALES FIGURE OF RS 10,07,41,500 INCLUDES THE SALES FIGURES OF BU ILDING NO A2/3 WHICH TILL DATE IS UNDER CONSTRUCTION (I.E. 70% OF THE WORK IS COMPLETED). THE SALEABLE AREA OF THE SAID BUILDING IS 39,900 SQ. FT. THE SALE BOOKED AS ON 31.3.2007 IS RS 9,17,40,754/ - WHICH DOES NOT INCLUDE THE SALE VALUE OF BUILDING NO. A2/3, HE NCE THE VARIATION APPEARS. 4. ONE WIP S/D HAND WRITTEN FIGURE IS 16,43,77,664/ - WHICH IS THE CLOSING WORK IN PROGRESS FIGURE AS ON 31.3.2 005 WHICH IS DULY ACCOUNTED IN THE BOOKS OF ACCOUNTS OF THE FIRM . 5. ONE TOTAL WIP S/G HAND WRITTEN FIGURE IS 40,04,2 5,610 WHICH IS THE TOTAL OF CONSTRUCTION EXPENSES AND ADM INISTRATIVE EXPENSES INCURRED UP TO 31.3.2007 OF SHANTI GARDEN PROJECT. WHEREAS THE ACTUAL EXPENSES BOOKED AS ON 31.3.2007 IN THE BOOKS OF ACCOUNTS OF THE FIRM IS RS 40,04,57,874/-. 6. THE HAND WRITTEN FIGURE OF RS. 48,30,86,776 IS T HE TOTAL OF WIP S/D, RS. 16,43,77,664 & WIP S/G RS. 31,87,09,11 2'. THE ASSESSEE WAS CONFRONTED BY THE A.O. THAT IF IN PAGE NO. 18 WORK-IN- PROGRESS FIGURES STATED ARE MATCHING WITH ACTUAL FI GURES IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE, THEN WHY NOT A S PER SECTION 132(4A) OF THE ACT, SALES FIGURES SHOULD ALSO BE CONSIDERED AS ACTUAL SALES AND SHOULD BE ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 5 TREATED AS REVENUE FOR THE RELEVANT PERIOD. THE ASS ESSEE SUBMITTED THE FOLLOWING REPLY:- WHEN WIP FIGURES AND EXPENSES TALLIES WHY NOT SA LES: THE FIGURES MENTIONED ON PAGE NO 18 ARE ONLY ROUGH WORKING FIGURES. AN AVERAGE SALE PRICE OF RS 1201 FOR FLATS AND RS 1200 FOR SHOPS US TAKEN AND MULTIPLIED BY THE RESPECTIVE SALEABLE AREA TO ARRIVE AT A FIGURE TO PRESENT BEFORE THE MANAGEM ENT TO GIVE AN ESTIMATE OF THE PROFIT WHICH WOULD HAVE BEEN EARN H AD ALL FLATS/ SHOPS BEING SOLD AT A STANDARD PRICE. HOWEVER THE A CTUAL SALE FIGURES DIFFERENT OBVIOUSLY BECAUSE ALL FLATS AND S HOPS CANNOT BE SOLD AT A FIXED PRICE. THERE ARE VARIATIONS IN THE SALE PRICES PRIMARILY ON ACCOUNT OF DISCOUNTS GIVEN TO BUYERS A ND DUE TO THE SALES HAPPENING AT DIFFERENT PERIODS OF TIME DURING THE PENDENCY OF THE PROJECT. IN PARTICULAR THE REASONS FOR SALES BEING DIFFERENT FROM THE SALES AT A FIXED PRICE ARE : A. BUSINESS DECISION TAKEN FROM TIME TO TIME DEPEND ING ON THE COMPETITION, VOLATILITY IN THE MARKET, NEED OF FUNDS BY THE COMPANY ETC. B. OUR EAGERNESS TO HAVE SOME CONFIRMED BOOKING AT THE INITIAL STAGES OF THE PROJECT SINCE SHANTY GARDEN P ROJECT STARTED AFTER SUBSTANTIAL GAP OF TIME FROM THE EARLIER PHAS E. C. DISCOUNTS GIVEN TO SOME GROUP BUYERS WHO BESIDES BUYING IN GROUP ALSO ASSURED US OF FURTHER SUBSTANTIAL SAL ES BY GIVING HEALTHY REFERENCES, SOME OF WHICH SUBSEQUENTLY MATE RIALIZED INTO SALES. IT WAS SUBMITTED BY THE ASSESSEE THAT NO CONCLUSION CAN BE DRAWN FROM THIS ROUGH SHEET AS IT WAS MERELY AN ARITHMETIC WORKING DONE FOR EVALUATION OF MANAGEMENT DECISIONS AND SALES CLEARLY DO NOT REPRE SENT ACTUAL SALES. ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 6 THE A.O. REJECTED THE CONTENTIONS OF THE ASSESSEE I N VIEW OF PROVISIONS OF SECTION 132(4A) OF THE ACT. THE A.O. OBSERVED THAT IN VIEW OF PROVISIONS OF SECTION 132(4A) OF THE ACT THE LOOSE PAPERS AND INC RIMINATING MATERIAL FOUND IN THE POSSESSION OF THE ASSESSEE BELONGS TO THE AS SESSEE AND THE CONTENTS THEREOF WERE TRUE AND THAT THE SAME HAVE BEEN WRITT EN/ HANDLED BY THE PERSON WHO WERE IN-CHARGE OF THE CONDUCT OF BUSINES S. BY MERELY DENYING THAT THE PAPERS HAVE NOT BEEN WRITTEN IN THEIR HAND WRITING , THAT THEY DO NOT KNOW ABOUT THE CONTENTS OF THE SAME OR FILING AFFID AVITS FROM THE BUYERS DENYING CASH PAYMENTS IS NOT SUFFICIENT. FURTHER, A SSESSEE IS ALSO INVOLVED IN RECEIVING CASH I.E. OUT OF BOOK MONEY, ON THE BASIS OF WHICH DISCLOSURE OF RS. 1.25 CRORES HAD ALSO BEEN MADE BY ASSESSEE. FURTHER FROM THE ANALYSIS OF PAGE NO. 14 OF LOOSE PAPER FILE CONTAINING PAGES 1 TO 24 SEIZED DURING SEARCH OPERATIONS, IT IS EVIDENT THAT ASSESSEE WAS INVOLVE D IN ACCEPTING CASH I.E. OUT OF BOOKS RECEIPTS. THUS, ON THE BASIS OF ABOVE, THE FOLLOWING ADDITIONS WERE MADE BY THE AO BY COMMENTING AS UNDER:- REGARDING SALES OF SHANTI GARDENS SEC. III PROJECT , THERE IS DIFFERENCE OF 53,10,440 RS (22,38,98,720 21,85,88 ,280) AS ON 31.3.2007 I.E. FOR AY 2007-08, IN ACTUAL SALES BOOK ED TILL 31.3.2007 AND FIGURE WRITTEN ON LOOSE PAPER. HOWEVE R WIP FIGURES ARE MATCHING WITH BOOKS OF ACCOUNTS. ACCORDINGLY RS . 53,10,440 HAS BEEN ADDED BACK TO THE INCOME OF THE ASSESSEE A S OUT OF BOOK RECEIPTS. REGARDING SALES OF SHANTI GARDENS SEC IV PROJECT, T HERE IS DIFFERENCE OF RS. 1,07,77,875 RS (22,28,67,500-21,2 0,89,625) AS ON 31.3.2007, I.E. FOR AY 2007-08, IN ACTUAL SALES BOOKED TILL 31.3.2007 AND FIGURE WRITTEN ON LOOSE PAPER. HOWEVE R WIP FIGURES ARE MATCHING WITH BOOKS OF ACCOUNTS. ACCORDINGLY RS . 1,07,77,875 HAS BEEN ADDED BACK TO THE INCOME OF TH E ASSESSEE AS OUT OF BOOK RECEIPTS. ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 7 REGARDING SALES OF SHANTI DHAM PROJECT, THERE IS DI FFERENCE OF 90,00,746 RS. (100741500-91740754) AS ON 31.3.2007 FOR A.Y. 2007-08 IN ACTUAL SALES BOOKED TILL 31.3.2007 AND F IGURE WRITTEN ON LOOSE PAPER. THIS FIGURE ON BACK SIDE OF PAGE 1 8 WAS AGAIN REPRODUCED ON FRONT SIDE OF PAGE 18. ACCORDINGLY, A SSESSEE'S CONTENTION IN THIS REGARD CAN'T BE ACCEPTED AND RS. 90,00,746 HAS BEEN ADDED BACK TO THE INCOME OF THE ASSESSEE AS OU T OF BOOK RECEIPTS. (ADDITION RS. 2,50,89,061). THUS, TOTAL ADDITION OF RS. 2,50,89,061/- WAS MADE TO THE INCOME OF THE ASSESSEE BY THE AO VIDE ASSESSMENT ORDER DATED 22 ND DECEMBER, 2009 PASSED U/S 143(3) R.W.S. 153A OF THE ACT. 4.AGGRIEVED BY THE ASSESSMENT ORDER DATED 22.12.200 9 PASSED BY THE A.O. U/S. 143(3) R.W.S. 153A OF THE ACT , THE ASSESSEE F ILED ITS FIRST APPEAL BEFORE THE LD. CIT(A). 5. BEFORE THE LD. CIT(A) , THE ASSESSEE REITERATED THE SAME SUBMISSIONS AS WERE MADE BEFORE THE A.O. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. THE ASSESSEE FURTHER SUBMITTED THAT SEIZED PAGE NO. 18 AND BACK OF PAGE 18 IN ANNEXURE A-3 WAS A HANDWRITTEN PROVISIONAL WORKING OF THE PROFIT WHICH WOULD HAVE BEEN EARNED ON VARIOUS PROJECTS HAD ALL THE UNITS THEREIN BEEN SOLD AT A PARTICULAR PREDETERMINED PRICE. THE ASSES SEE CONTENDED THAT IT WAS EXPLAINED BEFORE THE A.O. DURING THE COURSE OF ASSE SSMENT PROCEEDINGS U/S 153A READ WITH SECTION 143(3) OF THE ACT, THAT THE FLATS WERE SELDOM SOLD AT THE SAME PRICE IN A PROJECT AND THAT THE SALE PRICE OF AN INDIVIDUAL FLAT COULD DIFFER FROM ANOTHER BECAUSE THEY WERE SOLD AT A DIF FERENT POINTS OF TIME AND BASED ON BUSINESS DECISIONS SUCH AS COMPETITION, NE ED OF FUNDS, VOLATILITY, DISCOUNTS TO BE GIVEN . HENCE, THE ASSESSEE SUBMITT ED THAT NO CONCLUSION ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 8 COULD BE DRAWN BASED ON A HANDWRITTEN SHEET WHICH W AS AT BEST PROVISIONAL WORKING. THE ASSESSEE SUBMITTED THAT THE AO ERRED I N COMPARING SALES SHOWN IN THIS ROUGH LOOSE SHEET WITH THE SALES RECORDED I N THE BOOKS OF ACCOUNTS AND THEN ASSUMING THAT THE BALANCE REPRESENTED THE UNAC COUNTED SALES OF THE ASSESSEE WHICH IS NOT RECORDED IN THE BOOKS OF ACCO UNTS AND THUS ADDING THE SAME AS UNDISCLOSED INCOME OF THE ASSESSEE. WITHOUT PREJUDICE IT WAS SUBMITTED BY THE ASSESSEE THAT MANY OF THE FLATS SO LD WERE NOT AT ALL SOLD IN THE RELEVANT PREVIOUS YEAR AND THE AO IS NOT JUSTIF IED IN TAXING THE ENTIRE AMOUNT IN THE IMPUGNED ASSESSMENT YEAR. THUS, THE A SSESSEE PRAYED BEFORE THE LEARNED CIT(A) TO DELETE THE ADDITION OF RS.2,5 0,89,061/- MADE BY THE AO VIDE ASSESSMENT ORDER DATED 22-12-2009 PASSED U/S 1 43(3) R.W.S. 153A OF THE ACT. THE LEARNED CIT(A) FORWARDED THE SUBMISSIONS OF THE ASSESSEE ALONG WITH THE ENCLOSURES TO THE AO FOR REMAND PROCEEDINGS. REMAND REPORT WAS CALLED FROM A.O. WHEREBY THE A.O. SUBMITTED HIS REPORT AS UNDER :- 2.DURING THE COURSE OF REMAND PROCEEDINGS , SHRI R S PANDEY , ADVOCATE FROM M/S RAJENDRA & CO. , ALONG WITH SHRI SHEKHAR TALEKAR, MANAGER (ACCOUNTS) ATTENDED FROM TIME TO TIME AND F URNISHED THE WORKING OF CLOSING STOCK. 3. SHANTI GARDEN, SECTOR III 3.1 . AS PER THE SEIZED MATERIAL, THE SALE PRICE WA S ESTIMATED OF THE SALEABLE AREA OF THE SAID PROJECT AS FOLLOWS: ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 9 PARTICULARS AREA & RATE PER SQ. FT. AMOUNT (RS. SALEABLE ARE OF RESIDENTIAL SPACE 176720 X 1201 21,22,40,720/- SALEABLE AREA OF COMMERCIAL SPACE 9715 X 1200 1,16,58,000/- TOTAL SALES ESTIMATED 22,38,98,720/ - 3.2 OUT OF THE ABOVE, DURING THE COURSE OF REMAND P ROCEEDINGS, IT IS STATED BY THE ASSESSEE THAT FOLLOWING RESIDENTIAL S PACE AND COMMERCIAL SPACE WERE NOT SOLD IN THE ACCOUNTING YEAR RELEVANT TO THE A. Y. 2007-08 AND THE SAME WERE SHOWN AS INVENTORY. HOWEVER, SUBS EQUENTLY, THE SAME WERE SOLD OUT IN LATER YEARS FOR WHICH THE ASS ESSEE HAS FURNISHED RELEVANT DOCUMENTS. PARTICULARS AREA & RATE PER SQ. FT. AMOUNT (RS. SALEABLE AREA OF RESIDENTIAL SPACE 2085 X 1201 25,04,085/- SALEABLE AREA OF COMMERCIAL SPACE 295 X 1200 3,54,000/- TOTAL VALUE OF AREA NOT SOLD DURING THE A.Y. 2007-08 28,58,085/- 4. SHANTI GARDEN. SECTOR IV 4.1 AS PER THE SEIZED MATERIAL, THE SALE PRICE WAS ESTIMATED OF THE SALEABLE AREA OF THE SAID PROJECT AS FOLLOWS: PARTICULARS AREA & RATE PER SQ. FT. AMOUNT (RS. SALEABLE AREA OF RESIDENTIAL SPACE 155260 X 1350 20,96,01,000/- SALEABLE AREA OF COMMERCIAL SPACE 16205 X 1300 1,32,66,500/- ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 10 TOTAL VALUE OF AREA NOT SOLD DURING THE A.Y. 2007 - 08. 22,28,67,500/- 4.2 OUT OF THE ABOVE, DURING THE COURSE OF REMAND P ROCEEDINGS, IT IS STATED BY THE ASSESSEE THAT FOLLOWING RESIDENTIAL S PACE AND COMMERCIAL SPACE WERE NOT SOLD IN THE ACCOUNTING YEAR RELEVANT TO THE A. Y. 2007-08 AND THE SAME WERE SHOWN AS INVENTORY. HOWEVER, SUBS EQUENTLY, THE SAME WERE SOLD OUT IN LATER YEARS FOR WHICH THE ASS ESSEE HAS FURNISHED RELEVANT DOCUMENTS. PARTICULARS AREA & RATE PER SQ. FT. AMOUNT (RS. SALEABLE AREA OF RESIDENTIAL SPACE 2865 X 1350 38,67,750/- SALEABLE AREA OF COMMERCIAL SPACE 685 X 1300 8,90,500/- TOTAL VALUE OF AREA NOT SOLD DURING THE A.Y. 2007-08. 47,58,250/- 5. SHANTI DHAM, SECTOR -1 5.1 AS PER THE ASEESSEE SEIZED MATERIAL, THE SALE P RICE WAS ESTIMATED OF THE SALEABLE AREA OF THE SAID PROJECT AS FOLLOWS: PARTICULARS AREA & RATE PER SQ. FT. AMOUNT (RS. SALEABLE AREA OF RESIDENTIAL SPACE 181320 X 500 9,06,60,000/- SALEABLE AREA OF COMMERCIAL SPACE 18330 X 550 1,00,81,500/- TOTAL VALUE OF AREA NOT SOLD DURING THE A.Y. 2007-08. 10,07,41,500/- ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 11 FURTHER, IT WAS STATED BY THE ASSESSEE THAT FOLLOWI NG RESIDENTIAL AND COMMERCIAL AREAS NOT SOLD TILL DATE AS OBSERVED FRO M THE BALANCE SHEET FOR THE YEAR ENDED ON 31 ST MARCH 2010:- PARTICULARS AREA IN SQ. FT. AREA X RATE PER SQ. FT. AMOUNT (RS) RESIDENTIAL SPACE IN BLDG. A-2 AND A-3 (16,320 SQ. FT. EACH) 32,640 32,640 X 500 1,63,20,000 COMMERCIAL SPACE IN BLDG. A-2 3690 3690 X 550 20,29,500 TOTAL VALUE OF AREA NOT SOLD DURING THE A.Y.2007- 08 1,83,49,500 THE LD. CIT(A) CONSIDERED THE SUBMISSIONS OF THE AS SESSEE, REMAND REPORT AND THE ASSESSMENT ORDER OF THE A.O. AND OBSERVED THAT THERE ARE SEIZED MATERIAL AVAILABLE TO PROVE THAT THE ASSESSEE HAS COLLECTED FROM THE FLAT PURCHASERS OVER AND ABOVE THE SALE PRICE SHOWN IN THE SALE DOC UMENTS. THE ASSESSEE HAS ALSO DISCLOSED RS.1.25 CRORES AS AN UNDISCLOSED INC OME ON IT'S OWN IN THE STATEMENT RECORDED DURING THE COURSE OF SEARCH PROC EEDINGS AS ON MONEY RECEIVED FOR THE PERIOD FROM 01-04-2007 TO THE DATE OF SEARCH ON 13-03-2008. THUS THE ASSESSEES CONTENTION THAT IT HAS NOT RECE IVED ANY ON-MONEY FROM THE SALE OF FLATS WAS REJECTED BY THE LEARNED CIT(A ). IT WAS ALSO OBSERVED BY THE LEARNED CIT(A) THAT CERTAIN FLATS AND COMMERCIAL AR EAS IN THESE PROJECTS WERE NOT SOLD UP-TO THE END OF THE ACCOUNTING YEAR RELEV ANT TO THIS ASSESSMENT YEAR AND IT WAS KEPT AS AN INVENTORY. HOWEVER THE A.O. H AS APPLIED THE SAME RATE FOR THESE SPACES ALSO AND ARRIVED AT THE UNDISCLOSE D INCOME WHICH IS NOT CORRECT AND THE LD. CIT(A) HELD THAT THE INVENTORY STOCK HAS TO BE VALUED AT COST PRICE OR MARKET PRICE, WHICHEVER IS LOWER AND THE ADDITION MADE TO THAT ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 12 EXTENT WAS ORDERED TO BE DELETED BY THE LEARNED CIT (A). THUS, IT WAS HELD BY THE LEARNED CIT(A) THAT THERE IS NO JUSTIFICATION I N ARRIVING AT THE UNDISCLOSED INCOME BY TAKING THE SAME SALE PRICE FOR INVENTORY STOCK WHICH WAS NOT SOLD TILL THE END OF THE ACCOUNTING YEAR AND HENCE THE L D. CIT(A) DIRECTED THE A.O. TO EXCLUDE THE ON-MONEY DETERMINED FOR THESE UNSO LD BUILT UP AREAS FROM THE UNACCOUNTED INCOME DETERMINED BY THE A.O. THE LD. C IT(A) ACCORDINGLY PARTLY ALLOWED THE APPEAL OF THE ASSESSEE VIDE APPELLATE O RDER DATED 08-11-2011. 6. AGGRIEVED BY THE APPELLATE ORDER DATED 08-11-201 1 OF THE LD. CIT(A) , THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WERE SEARCH OPERATIONS CARRIED ON BY THE REVENUE ON 13 TH MARCH, 2008 IN THE CASE OF BHARAT SHAH GROUP AND THE ASSESSEE WAS ALSO COVERED IN THE SAID SEARCH OPERATIONS. THE LD. COUNSEL FOR THE ASSESSEE SUBMIT TED THAT ASSESSEE IS A BUILDER AND THE ASSESSEE IS BUILDING A PROJECT IN M EERA ROAD, THANE WHICH IS AN UNDER DEVELOPED AREA. . IT WAS SUBMITTED THAT DU RING THE COURSE OF SEARCH OPERATIONS CARRIED OUT BY THE REVENUE U/S 132(1) OF THE ACT, APART FROM OTHER SEIZURES, ONE LOOSE PAPER WAS FOUND AND SEIZED WHIC H IS MARKED AS PAGE NO. 18 (HAVING FRONT AND BACK MARKED 18 AND 18A) OF ANN EXURE A-3 FROM 811, EMBASSY CENTRE, NARIMAN POINT, MUMBAI WHICH IS PLAC ED IN PAPER BOOK PAGE 22 -23 FILED WITH THE TRIBUNAL. IT WAS SUBMITTED B Y LEARNED COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAS ALSO MADE DISCLOSURE OF RS. 1.25 CRORES FOR THE ASSESSMENT YEAR 2008-09 VIDE STATEMENT RECORDED DUR ING THE COURSE OF SEARCH OPERATIONS ON 14-03-2008 OF THE PARTNER OF T HE ASSESSEE MR. MUKESH D. CHOWDHARY (PLACED IN PAPER BOOK/PAGE 1-6) ON ACC OUNT OF CASH ON MONEY RECEIVED BY THE ASSESSEE FROM 01-04-2007 TO THE DATE OF SEARCH, ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 13 WHICH WAS DULY OFFERED FOR TAXATION IN THE RETURN O F INCOME FILED WITH THE REVENUE BY THE ASSESSEE FOR THE ASSESSMENT YEAR 200 8-09 , WHILE THE REVENUE IS EXTRAPOLATING AND MAKING ADDITION DURING THE IMP UGNED ASSESSMENT YEAR 2007-08 WITHOUT ANY EVIDENCE ON RECORD. THE ASSESS EE SUBMITTED THAT THE A.O. ERRED AND RELIED ON THE LOOSE PAPERS FOUND AND SEIZED FROM THE POSSESSION OF THE ASSESSEE WHICH CONTAINED ROUGH NO TINGS AND THE CONTENTS WERE CONSIDERED AS TRUE. THE LD. COUNSEL DREW OUR ATTENTION TO THE SEIZED MATERIAL PAGE 18/18A ANNEXURE A-3 WHICH IS PLACED A T PAPER BOOK PAGE 22- 23 AND SUBMITTED THAT THE BASIC FLAT SALE RATES WER E APPLIED TO THE TOTAL AREA TO ARRIVE AT THE TOTAL SALE PROJECTION OF THE ENTIR E PROJECT. THIS IS PREPARED FOR MANAGEMENT PURPOSES FOR ADVANCE TAX PURPOSES AND IS NOT AND CANNOT BE A BASIS FOR MAKING AN ADDITION OF UNDISCLOSED INCOME AS WAS DONE BY THE REVENUE. IT IS SUBMITTED THAT THE A.O. HAS MADE TH E ADDITION OF RS. 2,50,89,061/- , WHILE THE LD. CIT(A) HAS GIVEN PART RELIEF TO THE ASSESSEE WHEREBY THE AO WAS DIRECTED BY LEARNED CIT(A) TO EL IMINATE ON-MONEY ELEMENT ON THE UNSOLD STOCKS AND THE SAID UNSOLD IN VENTORY BE VALUED AT COST OR MARKET PRICE WHICH EVER IS LOWER. THE LD. COUNSE L ALSO DREW OUR ATTENTION TO THE ASSESSMENT ORDER AND ORDER OF THE LD. CIT(A) . IT WAS SUBMITTED THAT NO FURTHER ENQUIRY WAS MADE BY THE A.O. FROM THE BUYER S. THE A.O. HAS APPLIED SECTION 132(4A) OF THE ACT AND HELD THAT THERE IS A PRESUMPTION THAT THE CONTENTS OF THE SEIZED DOCUMENTS ARE TRUE. ASSESSM ENT HAS BEEN MADE ON THE BASIS OF SEIZED MATERIAL WHICH ARE NOTHING BUT ROUGH CALCULATIONS. THE LD. COUNSEL SUBMITTED THAT THE ASSESSEE HAS ALREADY SUR RENDERED AN AMOUNT OF RS. 1.25 CRORES VOLUNTARILY FOR THE ASSESSMENT YEAR 2008-09 ON ACCOUNT OF CASH ON MONEY RECEIVED FROM SALE OF UNITS IN THE PROJECTS FROM 01-4-2007 TO THE DATE OF SEARCH VIDE STATEMENT OF PARTNER OF THE ASSESSEE MR MUKESH D CHOWDHARY RECORDED ON 14-03-2008 . THE SAID STATEME NT IS NOT RETRACTED BY ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 14 THE ASSESSEE OR THE SAID PARTNER OF THE ASSESSEE RA THER THE STATEMENT IS HONORED BY DECLARING THE SAID SURRENDERED AMOUNT IN RETURN OF INCOME FILED WITH THE REVENUE AND DUE TAXES BEING PAID TO THE RE VENUE. IT IS SUBMITTED THAT THE ASSESSEE IS NOT DISOWNING THE SAID SEIZED DOCUMENT BEING PAGE 18 AND BACK OF PAGE 18 (PLACED AT PAGE 22-23/PAPER BOO K) BY THE REVENUE DURING THE SEARCH OPERATIONS. THE LD. COUNSEL SUBMI TTED THAT THE ASSESSEE WAS CONFRONTED BY THE REVENUE DURING THE COURSE OF RECORDING OF THE STATEMENT WHEREBY THE ASSESSEE EXPLAINED AS ANSWER TO THE QUESTION NO. 10 THAT THE DOCUMENTS WERE PREPARED BY THE ACCOUNTANT FOR THE PURPOSE OF ADVANCE TAX. THUS THE LD. COUNSEL FURTHER SUBMITTE D THAT IN REPLY TO QUESTION NO. 27 IT WAS SUBMITTED BY MR. MUKESH D CHOWDHARY, THE PARTNER OF THE ASSESSEE THAT DUE TO PRICE RISE IN BUILDING CONSTRU CTION , THE ASSESSEE WAS ABLE TO COLLECT CASH MONEY OF 20% OVER AND ABOVE TH E SALE PRICE REALIZED BY THE ASSESSEE IN FINANCIAL YEAR STARTING FROM 1ST A PRIL, 2007 ONWARDS AMOUNTING TO RS.1.25 CRORES UPTO THE DATE OF SEARCH WHICH IS NOT RECORDED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND THE ASSES SEE SURRENDERED AS AN ADDITIONAL INCOME AN AMOUNT OF RS. 1.25 CRORES DURI NG THE FINANCIAL YEAR 2007-08 WITH THE REQUEST THAT NO PENALTY/PROSECUTIO N ACTION SHOULD BE TAKEN AGAINST THE ASSESSEE. THE LD. COUNSEL SUBMITTED TH AT NO ADDITIONS CAN BE MADE BASED ON PRESUMPTION AND SURMISES AS WAS DONE BY THE REVENUE. WITHOUT PREJUDICE, THE LD. COUNSEL SUBMITTED THAT T HE A.O. HAS INCLUDED THE ENTIRE SALE PROCEEDS BEING RECEIVED IN CASH, EVEN I F ADDITION IS TO BE MADE THEN IT WAS SUBMITTED THAT ONLY PROFIT COMPONENT C AN BE ADDED TO THE INCOME OF THE ASSESSEE AND ADDITIONS SHOULD BE RESTRICTED TO THE PROFIT MARGIN ON THE SAID UNDISCLOSED SALES. THE ASSESSEE HAS ALREADY O FFERED FOR TAXATION RS. 1.25 CRORES AS ON MONEY RECEIVED DURING THE ASSESSMENT YEAR 2008-09. IT WAS STATED THAT THE ASSESSEE HAS NOT RECEIVED ANY ON M ONEY DURING THE IMPUGNED ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 15 ASSESSMENT YEAR AND IN THE ABSENCE OF ANY EVIDENCE THAT ANY ON-MONEY WAS RECEIVED DURING THE IMPUGNED ASSESSMENT YEAR, NO AD DITION CAN BE SUSTAINED. THE LD. COUNSEL RELIED ON THE DECISION OF HONBLE B OMBAY HIGH COURT IN THE CASE OF M/S. JYOTI WIRE INDUSTRIES LTD. V. CIT IN I NCOME TAX REFERENCE NO. 38 OF 1997 DATED 25 TH SEPTEMBER, 2012, WHEREBY HONBLE BOMBAY HIGH COURT HAS UPHELD THE VIEW OF THE TRIBUNAL THAT MERELY BEC AUSE THE TAX-PAYER HAS RECEIVED ON MONEY DURING THE ASSESSMENT YEAR 1990 -91 , IT DOES NOT FOLLOW THAT THE TAX-PAYER HAS ALSO RECEIVED ON MONEY DUR ING THE ASSESSMENT YEAR 1989-90. 8. THE LD. CIT D.R. REFERRED TO THE SEIZED DOCUMENT S MARKED AS PAGE NO. 18 AND BACK OF PAGE 18 OF ANNEXURE A-3 WHICH IS PLA CED AT PAPER BOOK PAGE NO. 22-23. THE LD. CIT D.R. RELIED UPON THE ORDERS OF A.O. AND THE LD. CIT(A) AND SUBMITTED THAT IN THE SEIZED MATERIAL PAGE 14 O F LOOSE PAPER FILE CONTAINING PAGES 1 TO 24, THERE IS CLEAR-CUT ACCEP TANCE THAT ON MONEY HAS BEEN PAID IN THE CASE OF THE ASSESSEES PROJECT. T HE CONTENTS OF THE SAID SEIZED PAGE NO. 14 OF LOOSE PAPER FILE CONTAINING 1 -24 PAGES WHICH IS PART OF SEIZED MATERIAL ARE REPRODUCED BELOW:- MINUTES OF THE MEETING HELD ON 30/8/2005 AT 3 PM I N CHAMBERS AT TAJ MAHAL HOTEL BOMBAV BETWEEN BHARATBHAI & PAPA JI (D.G.C.). FOLLOWING POINTS WERE DISCUSSED & AGREED. 1. DISTRIBUTION OF CASH MONEY (RNDC) WILL BE AS FOLLOW : 50% WILL BE KEPT BY B.S. SHAH AGAINST INTEREST DUES. BA LANCE 50% WILL BE DISTRIBUTED IN THE RATIO OF 60% B.S & 4 0%D.G. GROUP. ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 16 2. PAPAJI POINTED OUT THAT THE SALE VALUES OF FLATS & SHOPS IN PHASE-I DIFFERS FROM THE ACTUAL TO WHAT IS SHOWN IN THE A/C GIVEN. B.S. AGREED THAT DIFFERENCE IS OBVIOUS FROM THE INSTANCES GIVEN BY PAPAJI AND IT SHOULD BE DISCUSSE D IN DETAIL WITH B.S./R.C. & CHOWDHARY GROUP. 3. PAPAJI POINTED OUT THAT THE RATE CHARGED FOR FR HAS A LARGE DIFFERENCE & B-S AGREED THAT HE WILL LOOK IN TO IT AFTER VERIFYING IT. 4. AGREED THAT DHIRUBHAI'S GROUP'S DEPOSIT IN RNDC SHO ULD BE RETURNED BACK AT THE EARLIEST. 5. PAPAJI POINTED OUT THAT N.D. HAD AGREED TO GIVE 10/ - P.S.F. ON 5,50,000 SQ. FT. FSI OF RNDC OVER & ABOVE THE PR ICE SETTLED . THIS WAS TO BE GIVEN IN THE FORM OF DIAMO ND BANGLES WORTH APPROX. RS.30 LACS FOR WHICH R/C & N. D. ALONG WITH PAPAJI WENT TO B.S.S OFFICE 2/3 TIMES T O GIVE MEASUREMENT. HOWEVER IT DID NOT WORK OUT AT THAT TI ME. THEREFORE AGAINST THAT MONEY ND OFFERED HIS OFFICE AS COLLATERAL SECURITY TILL SUCH TIME THIS COMMITMENT WAS HONOURED. SINCE NDS COMMITMENT TO XYZ HAVE BEEN CARRIED OUT IN 2003, 5 YEARS AFTER HIS DEATH. HIS COMMITMENT TO US SHOULD ALSO BE HONOURED. 6. SHIFTING OF THE OFFICE AT THE SITE (RNDC) WILL B E DONE AFTER THE COMMITMENTS OF ND IS FULFILLED WHICH R/C IS FULLY AWARE OF. 7. COPY OF THE FAX DATED 18.01.96 SHOWING THE CONSOLIDATED FIGURES HAS BEEN HANDED EVER TO BS IN THE ABOVE SAID MEETING. THE LD. CIT D.R. SUBMITTED THAT RULE OF EVIDENCE IS NOT STRICTLY APPLICABLE IN THE INCOME TAX PROCEEDINGS. THE A.O. CAN RELY ON T HE DOCUMENTS SEIZED ALONG ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 17 WITH SURROUNDING CIRCUMSTANCES TO COME TO THE CONCL USION THAT THERE WAS UNDISCLOSED INCOME KEEPING IN VIEW PREPONDERANCE OF HUMAN PROBABILITIES. THE LD. CIT DR SUBMITTED THAT THE LD. CIT(A) HAS CO NCLUDED THAT ON MONEY WAS RECEIVED BY THE ASSESSEE AND FOR THE NEXT YEAR THE ASSESSEE ITSELF SURRENDERED RS.1.25 CRORES BASED ON THE STATEMENT R ECORDED DURING COURSE OF SEARCH OPERATIONS WHEREBY IT WAS ADMITTED BY THE AS SESSEE THAT THE ON MONEY WAS RECEIVED BY THE ASSESSEE FROM 01-04-2007 TO THE DATE OF SEARCH. THE LD CIT DR REFERRED TO THE SEIZED MATERIAL PAGE 18 AND BACK OF PAGE 18 ANNEXURE A-3 WHICH IS PLACED AT PAPER BOOK PAGE 22- 23 , WHEREIN CLEARLY REFERENCE TO THE DATE 31/3/2007 IS MENTIONED TWICE AND REFERENCE TO THE PERIOD 01-04-2006 TO 31-03-2007 IS ALSO MENTIONED O NCE. THE SAID DOCUMENT WAS SEIZED DURING SEARCH AND CLEARLY PROJECT WISE D ETAILS ARE MENTIONED. THE ASSESSEE HAS NOT DISPUTED THAT THE FIGURES PERTAIN TO THE PROJECT UNDERTAKEN BY THE ASSESSEE. THE FIGURES ARE NOT ROUND FIGURES AND ODD FIGURES ARE MENTIONED IN THE SAID DOCUMENT , THUS, THESE ARE AC TUAL FIGURES AS HAD THESE BEEN PROJECTIONS, THEN ROUND FIGURES WOULD HAVE BEE N THERE WAS THE CONTENTION OF LEARNED CIT DR. THE LD. CIT(A) REMITT ED THE MATTER TO THE FILE OF A.O. FOR EXCLUSION OF CASH ON-MONEY ELEMENT FROM THE ADDITIONS MADE WITH RESPECT TO THE UNSOLD STOCK. THE ASSESSEE HAS COME OUT WITH THE SUBMISSION THAT ASSESSEE HAS GIVEN DISCOUNT ON SALES. THE ASS ESSEE HAS TO PRODUCE COGENT MATERIAL THAT IT IS ROUGH NOTING AND NOT FIN AL WHICH THE ASSESSEE FAILED TO PRODUCE EXCEPT TAKING THE PLEA THAT THESE ARE RO UGH NOTINGS. THE CASH ON MONEY RECEIVED BY THE ASSESSEE HAS TO BE BROUGHT T O TAX WHILE THE EXPENDITURE IS ALREADY BEING DEBITED IN THE BOOKS O F ACCOUNTS WAS THE CONTENTION OF LEARNED CIT DR. THE LEARNED CIT DR S UBMITTED THAT THERE IS AN EVIDENCE BY WAY OF SEIZED MATERIAL AND THE STATEMEN T RECORDED DURING COURSE OF SEARCH OPERATIONS AND THE ADDITIONS ARE NOT MAD E IN THE IMPUGNED ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 18 ASSESSMENT YEAR 2007-08 BASED MERELY ON EXTRAPOLATI NG THE STATEMENT OF THE ASSESSEE FOR THE SURRENDER MADE FOR THE ASSESSMENT YEAR 2008-09 . THE LD. CIT D.R. RELIED ON THE DECISION OF HONBLE BOMBAY H IGH COURT IN THE CASE OF SURENDRA M. KHANDHAR V. ACIT [2009] 224 CTR 409 (BO MBAY) AND SUBMITTED THAT THE ASSESSEE HAS ACCEPTED THAT CASH ON-MONEY HAS BEEN RECEIVED BY THE ASSESSEE. HE FURTHER RELIED ON THE DECISION OF HON BLE BOMBAY HIGH COURT IN THE CASE OF HARISH TEXTILE ENGINEERS LTD. V. DCIT, [2015] 63 TAXMANN.COM 66 (BOMBAY), IN THE CASE OF MAHABIR PRASAD RUNGTA V. C IT, [2014] 43 TAXMANN.COM 328 (JHARKHAND) AND ALSO THE DECISION O F THE ITAT JAIPUR BENCH IN THE CASE OF HARISHCHAND & BROTHERS V. ITO [1998] 64 ITD 331(JP) AND SUBMITTED THAT INCRIMINATING MATERIAL HAS BEEN FOUND DURING THE COURSE OF SEARCH OPERATIONS WHICH CLEARLY INDICATES THAT T HE ASSESSEE HAD CONCEALED ITS INCOME. THE LEARNED CIT DR SUBMITTED THAT THERE IS NO INFIRMITY IN THE ORDER OF THE LD CIT(A) AND THE SAME SHOULD BE CONFI RMED. 9. IN THE REJOINDER, THE LD. COUNSEL FOR THE ASSESS EE SUBMITTED THAT NO ENQUIRY HAS BEEN MADE BY THE A.O. WITH THE BUYERS A ND ALSO WITH ANY OTHER PERSONS. THE SUMMARY OF THE FLATS SOLD AND IN INVEN TORY WAS SUBMITTED IN THE PAPER BOOK PAGE 32-56. ON BEING ASKED BY THE BENCH, THE LD. AR SUBMITTED THAT THE PROJECT SHANTI GARDENS WAS STARTED IN 2005 AND THE PARTIES AS PER SEIZED MATERIAL PAGE 14 OF LOOSE PAPER FILE CONTAIN ING PAPER 1-24 ARE PARTNERS OF THE PROJECT I.E. MR. BHARAT S SHAH GROUP AND MR D G CHOUDHARY GROUP ARE PARTNERS IN THE CONSTRUCTION PROJECTS UNDERTAKE N BY THE ASSESSEE. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AL SO PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE CASE LAW S RELIED ON BY BOTH THE PARTIES. THE ASSESSEE IS A BUILDER ENGAGED IN THE C ONSTRUCTION ACTIVITY ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 19 DEVELOPING PROPERTY AT MIRA ROAD, DISTRICT THANE. T HE ASSESSEE IS A PARTNERSHIP FIRM WHEREIN BHARAT S SHAH GROUP AND D G CHOUDHARY GROUP ARE PARTNERS WHICH IS AN ADMITTED AND UNDISPUTED PO SITION BETWEEN RIVAL PARTIES. DURING THE COURSE OF SEARCH OPERATIONS U/ S 132(1) OF THE ACT CONDUCTED BY THE REVENUE ON 13-03-2008 , SEVERAL DO CUMENTS WERE FOUND AND SEIZED WHICH INCLUDED DOCUMENT WHICH IS MARKED AS PAGE NO. 18 AND BACK OF PAGE 18 OF ANNEXURE A-3 WHICH WAS ALSO FOUN D AND SEIZED BY REVENUE FROM 811, EMBASSY CENTRE, NARIMAN POINT, MUMBAI WHE REIN CERTAIN FIGURES WERE WRITTEN IN THE SAID SEIZED PAPER RELATED TO AL LEGED WORK-IN-PROGRESS(WIP) AND ALLEGED SALES RELATED TO THE PROJECT UNDERTAKEN BY THE ASSESSEE . THE SAID SEIZED MATERIAL IS PLACED IN PAPER BOOK PAGE 22-23 FILED WITH THE TRIBUNAL. THE ASSESSEE HAS OWNED UP THE SAID DOCUMENT AS BELO NGING TO IT WRITTEN BY ITS ACCOUNTANT WHICH IS AN ADMITTED AND UNDISPUTED POSITION BETWEEN THE RIVAL PARTIES , AND ONLY CONTENTS OF THE SAID SEIZE D DOCUMENT ARE DISPUTED BY THE ASSESSEE WHICH IS STATED TO BE ROUGH NOTINGS MA DE BY THE ACCOUNTANT OF THE ASSESSEE WHICH AS PER THE ASSESSEE CANNOT BE TH E BASIS FOR MAKING ADDITIONS AS WERE MADE BY THE REVENUE. THE ASSESSEE HAS ALSO ADMITTED THAT THE DOCUMENTS CONTAINED PARTICULARS OF THE WORK-IN- PROGRESS AND SALES FIGURES OF THE PROJECT UNDERTAKEN BY THE ASSESSEE A T MIRA ROAD, THANE BUT FIGURES PER-SE OF SALES RECORDED ARE DISPUTED BY TH E ASSESSEE AS WELL AS IT IS THE CONTENTIONS OF THE ASSESSEE THAT IT REPRESENT P ROJECTED / ROUGH SALE FIGURES AND NOT THE ACTUAL SALES FIGURE AS RECORDED IN BOOK S OF ACCOUNTS MAINTAINED BY THE ASSESSEE. THERE IS ALSO SEIZURE OF A DOCUMEN T MARKED AS PAGE 14 OF LOOSE PAPER FILE CONTAINING PAGES 1-24 WHICH IS A MINUTES OF MEETING HAVING TAKEN PLACE ON 30 TH AUGUST, 2005 AT TAJ MAHAL HOTEL, MUMBAI BETWEEN TH E TWO PARTNER GROUPS OF THE ASSESSEE FIRM NAMELY MR BHARAT S SHAH GROUP AND MR D G CHOWDHARY GROUP WHEREBY AN UNDERSTANDING HAS BEEN REACHED AS ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 20 WELL REITERATED BETWEEN THE AFORE-STATED BOTH THE P ARTNERS GROUP WITH RESPECT TO MODUS OPERANDI FOR COLLECTION AND CONSEQUENT DIS TRIBUTION OF CASH ON MONEY AMONGST BOTH THE PARTNER GROUPS ARISING FROM THE SALE OF FLATS IN THE PROJECTS UNDERTAKEN BY THE ASSESSEE WHICH ON ITS PE RUSAL LEAVE NO IOTA OF DOUBT THAT ASSESSEE FIRM HAS INDULGED IN COLLECTING CASH ON-MONEY FROM SALE OF FLATS IN THIS PROJECT AT MIRA ROAD, THANE IF REA D IN CONJUNCTION WITH THE SEIZED MATERIAL A-3 PAGE 18 AND BACK OF PAGE 18 , A ND ALSO READ ALONG WITH THE STATEMENT RECORDED DURING SEARCH OPERATIONS OF PARTNER OF THE ASSESSEE MR. MUKESH D CHOWDHARY ON 14-03-2008 WHEREBY THE AS SESSEE FIRM SURRENDERED RS.1.25 CRORES BY ADMITTING OF HAVING RECEIVED CASH ON-MONEY ON SALE OF FLATS IN THE SAID PROJECT FROM THE PERIO D 01-04-2007 TILL THE DATE OF SEARCH. AS PER SEIZED MATERIAL MARKED PAGE 18 AND BACK SIDE OF PAGE 18/ANNEXURE A-3 WHICH IS A SEIZED DOCUMENT STATED T O BE WRITTEN BY THE ACCOUNTANT OF THE ASSESSEE PREPARED WITH REFERENCE TO THE DATE 31 ST MARCH, 2007 AS THE SAID DATE DULY FIND MENTIONED TWICE IN THE SAID SEIZED DOCUMENT WHILE PERIOD 01-04-2006 TO 31-03-2007 FIND MENTIONE D ONCE IN THE SAID SEIZED DOCUMENT PAGE 18 AND BACK SIDE OF PAGE 18/AN NEXURE A-3, THERE ARE FIGURES OF WIP WHICH ARE ALSO MENTIONED IN THE SAID SEIZED DOCUMENT WHICH FIGURES ARE TALLYING WITH THE BOOKS OF ACCOUNTS MAI NTAINED BY THE ASSESSEE. APART FROM THE ABOVE, THERE IS ALSO MENTION OF THE WORD SALES REALISATION AND SALES AGAINST WHICH CERTAIN FIGURES ARE MENTIONED IN THE SAID SEIZED DOCUMENT PAGE 18 AND BACK OF 18 OF ANNEXURE A-3 WHI CH THE REVENUE IS RIGHTLY CONTENDING THAT IT REPRESENTS THE SALE OF T HE ASSESSEE AS IN OUR CONSIDERED VIEW , THE WORD SALES REALISATION CAN ONLY MEAN SALES AGAINST WHICH PAYMENTS STOOD REALIZED , THUS NO PRUDENT PER SON WILL WRITE PROJECTED SALES AS SALES REALISATION.THE USE OF THE WORD S ALES REALISATION CAN ONLY BE INTERPRETED AS SALES AGAINST WHICH MONEY STOOD REAL IZED. SIMILARLY MENTION OF ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 21 THE WORD SALES ALSO MEANS THAT SALES STOOD CONCLU DED BY THE DATE OF PREPARATION OF THE DOCUMENT WITH REFERENCE TO THE D ATE I.E. 31-03-2007 FOR THE PERIOD TO WHICH IT PERTAINS AS MENTIONED IN THE SEI ZED DOCUMENT. THE FIGURES AGAINST SALES REALISATION OR SALES WHICH ARE AP PEARING ALONGSIDE FIGURES OF WORK-IN-PROGRESS WHICH FIGURE OF WORK-IN-PROGRESS I N THE SEIZED MATERIAL FOUND ARE THE SAME FIGURES AS ARE RECORDED IN THE B OOKS OF ACCOUNTS WHICH LEAVES US WITH NO IOTA OF DOUBT THAT FIGURES AGAINS T THE WORD SALES OR SALES REALISATION ARE ACTUAL FIGURES OF SALES CONCLUDED BY THE ASSESSEE. THE PRESUMPTION U/S 132(4A) OF THE ACT SHALL APPLY , TH E DOCUMENTS HAVING BEEN FOUND FROM THE POSSESSION OF THE ASSESSSEE SHALL BE DEEMED TO BELONG TO THE ASSESSEE WHICH IN THE INSTANT CASE IS NOT DENIED BY THE ASSESSEE AND THE CONTENT OF THE DOCUMENT SHALL BE CONSIDERED TRUE AN D CORRECT , THUS, NOW IT IS FOR THE ASSESSEE TO REBUT THE SAME. MERELY BY SAYIN G THAT THESE ARE ROUGH NOTINGS IS NOT SUFFICIENT . ON PERUSAL OF THE DOCUM ENT , IT IS OBSERVED THAT THE ASSESSEES ACCOUNTANT WHILE PREPARING THE SAID SEIZ ED DOCUMENT HAS MULTIPLIED THE SALES RATE TO THE AREA AVAILABLE FOR SALE OF DIFFERENT UNITS IN DIFFERENT PHASES OF THE PROJECT TO ARRIVE AT THE SA LE FIGURES INDIVIDUALLY PROJECT WISE AND THEN TO ARRIVE AT THE TOTAL CONSOLIDATED S ALES FIGURE OF THE ASSESSEE . THE FIGURES OF WIP FOUND MENTIONED IN THE SEIZED DO CUMENT ARE MATCHING WITH THE BOOKS OF ACCOUNTS OF THE ASSESSEE MAINTAIN ED IN REGULAR COURSE OF BUSIENSS AND HENCE ON THE SAME ANALOGY THE SALES SH OULD ALSO BE ACTUAL SALES KEEPING IN VIEW THE USE OF WORD SALES REALISATION AND SALES IN THE SAID SEIZED DOCUMENT. THE CONTENTION OF THE ASSESSEE THA T THE SAID DOCUMENT ALSO SHOWED INVENTORY WHICH IS NOT SOLD BY THE ASSESSEE INCLUDED IN THE SALE FIGURES , WE FIND THAT INVENTORY HELD BY THE ASSESS EE AS AT 31-03-2007 IN SHANTI GARDENS PROJECT IS INSIGNIFICANT WHILE THE MOST OF THE UNITS ALREADY GOT SOLD OUT BEFORE 31-3-2007 WHILE SHANTI DHAM PROJECT HAS UNSOLD INVENTORY OF ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 22 APPROX. 20%. OUR VIEW IS ALSO STRENGTHENED AS THE P ERIOD OF 2006-2008 WITNESSED PERIOD OF BOOM IN REAL ESTATE INDUSTRY I N INDIA WHEN THE REAL ESTATE INVENTORY WAS MOVING AT A VERY FAST PACE AND ALSO H AD SHOWN SHARP AND STEEP APPRECIATIONS OVER A SHORT PERIOD OF TIME . THE REA L ESTATE PROJECTS WERE SELLING AT THAT PERIOD OF TIME OF 2006-08 IN INDIA AT FAST PACE ON THE LAUNCH/PRE- LAUNCH STAGE ITSELF . THE STUPENDOUS RISE OF THE RE AL ESTATE IN THE PERIOD 2006- 08 CAN ALSO BE SEEN BY THE RE-SALE RATES MENTIONED IN THE SEIZED DOCUMENTS WHICH WAS CLARIFIED VIDE QUESTION NO. 7-9 IN THE ST ATEMENT RECORDED ON 14-3- 2008 OF MR MUKESH D CHOWDHARY , PARTNER OF THE ASSE SSEE(PLACED IN PB/PAGE 1-6) WHEREBY PER SEIZED MATERIAL OF FOLDER 3 PAGE 2 RESALE RATES PER SQUARE MENTIONED OF THE FLATS IN THE PROJECT SHANTI GARDEN ARE QUOTED AT AROUND RS. 2750 PER SQUARE FEET WHILE AGAINST THE SAME THE ASS ESSEE IS SELLING THE FLATS @ RS 2000 PER SQUARE FEET WAS THE REPLY OF THE SAID P ARTNER OF THE ASSESSEE IN REPLY TO THE SAID QUESTIONS. SIMILARLY THE OTHER DO CUMENTS SEIZED ALSO SHOWED RE-SALE PRICES RANGING FROM RS. 2750-3100 PER SQUAR E FEET FOR DIFFERENT FLATS IN SHANTI GARDEN PROJECT VIDE QUESTION NO 8 AND 9 AGAI NST WHICH THE REPLY OF THE PARTNER OF THE ASSESSEE IS THAT THESE PRICES ARE QU OTED TO CASUAL BUYERS AND NOT TO THE SERIOUS BUYERS, WHILE ON THE OTHER HAND THE ASSESSEE IS SHOWING REVENUE @ RS 1200-1350 PER SQUARE FEET IN THE SHANT I GARDEN PROJECT FOR DIFFERENT FLATS. THE AO HAS NOT PERSUED THESE SEIZE D DOCUMENTS (PAGE 2/FOLDER 3 I.E. ANNEXURE A-3) WHILE FRAMING THE IMP UGNED ASSESSMENT AND NO FURTHER ENQUIRY IS MADE BY THE AO AS BORNE OUT FROM THE RECORDS/MATERIAL BEFORE US WITH RESPECT TO THESE SEIZED DOCUMENTS RE FLECTING RE-SALE PRICES. THE ASSESSEE HAS ALSO IN REPLY DATED 26.10.2009 TO AO DURING THE ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2008-09 I.E. PR EVIOUS YEAR 2007-08 HAD STATED THAT THERE WAS REAL ESTATE BOOM IN THE REAL ESTATE BUSINESS DURING 2007-08 WHERE THE BUYERS WERE KEEN TO BUY PROPERTIE S AND WANTED TO ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 23 URGENTLY STRIKE DEALS WITH RESPECT TO FLATS OF THEI R CHOICE KEEPING IN VIEW THEIR PERCEPTION OF THE FLAT BEING A PRIME FLAT IN THE BU ILDING. MR MUKESH D CHOWDHARY HAS IN HIS STATEMENT DATED 14-03-2008 CON FIRMED ABOUT THE BOOM IN THE REAL ESTATE MARKET IN REPLY TO QUESTION NO 2 7.THE REAL ESTATE BOOM IN 2006-08 IS ALSO REFLECTED IN CRISIL RESEARCH REPORT -INDIAN REAL ESTATE OVERVIEW WHEREBY THE REAL ESTATE SECTOR PROGRESS HA S BEEN DEFINED AS UNDER:- PHASE I (2001-2005) WAS AN INITIAL GROWTH PHASE WI TH STABILISING RESIDENTIAL REAL ESTATE PRICES FOLLOWING THE GLOBAL RECOVERY POST THE DOT COM BUST AND 9/11 TERRORIST ATTACKS IN NEW YORK. A T THE SAME TIME, THERE WAS STEADY GROWTH IN INDIAN ECONOMIC ACTIVITY , NOTEWORTHY RECOVERY IN IT/ITES INDUSTRY, GROWING URBANISATION AND A RISING TREND TOWARDS NUCLEAR FAMILIES. PHASE II (2006-2008) WAS A HIGH GROWTH PHASE WHERE HIGH DEMAND FOR RESIDENTIAL REAL ESTATE LED TO DOUBLING OF HOUSING PRICES. DEMAND RAPIDLY INCREASED DUE TO INDIAS GROWING POPULATION, ACCENT UATED URBANISATION, RISING DISPOSABLE INCOMES, RAPIDLY GROWING MIDDLE C LASS AND YOUTH POPULATION, LOW INTEREST RATES, FISCAL INCENTIVES O N INTEREST AND PRINCIPAL PAYMENTS FOR HOUSING LOANS AND HEIGHTENED CUSTOMER EXPECTATIONS. PHASE III (2009-2010) WITNESSED SUBSTANTIAL SLOWDOW N AND PART RECOVERY IN DEMAND BECAUSE OF THE GLOBAL ECONOMIC DOWNTURN, WHICH LED TO A DECLINE IN AFFORDABILITY AND TIGHT LIQUIDITY. THE R ETREAT OF VARIOUS REAL ESTATE INVESTORS, ACCOMPANIED BY SLOWDOWN IN THE CA PITAL MARKETS, HAS RESULTED IN OVERSUPPLY AND FALLING PRICES. ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 24 THE REVENUE HAS BROUGHT TO TAX ONLY THE DIFFERENCE BETWEEN THE SALES FIGURE RECORDED IN THE SAID SEIZED DOCUMENT PAGE 18 AND BA CK OF PAGE 18 OF ANNEXURE A-3 AND THE BOOKS OF ACCOUNTS MAINTAINED B Y THE ASSESSEE AS UNDISCLOSED INCOME OF THE ASSESSEE. THE ABOVE DOCUM ENT PAGE 18 AND BACK OF PAGE 18 /ANNEXURE A-3 HAS TO BE READ TOGETHER WITH IN CONJUNCTION AND IN CONTEXT OF MINUTES OF MEETINGS HELD ON 30-08-2005 B ETWEEN THE PARTNER GROUP WHEREBY THEY HAVE ARRIVED AT AND REITERATED UNDERSTANDING AND MODUS OPERANDI TO GENERATE ON MONEY CASH FROM THIS PROJ ECT AND ALSO ARRIVED AT THE MANNER TO DISTRIBUTE THE SAME CASH ON MONEY AMONG ST THEMSELVES. THIS IS FURTHER CORROBORATED BY ADMISSION OF THE ASSESSEE P ARTNER MR MUKESH D CHOWDHARY VIDE STATEMENT RECORDED ON 14-03-2008 THA T CASH MONEY WAS GENERATED IN THESE PROJECTS AND THE ASSESSEE HAD RE CEIVED ON MONEY TO THE TUNE OF RS.1.25 CRORES FROM 01-04-2007 TO THE DATE OF SEARCH. IT IS AN ADMITTED AND UNDISPUTED POSITION BY THE ASSESSEE TH AT PROJECT SHANTI GARDEN (RELEVANT SECTOR III & IV IN THE INSTANT ASSESSMENT YEAR) WAS STARTED BY THE ASSESSEE IN THE YEAR 2005 AND COMPLETED IN 2007 AND THE SAME WAS STATED BY THE LEARNED COUNSEL FOR THE ASSESSEE BEFORE US. THE ALLEGED MEETING WHICH TOOK PLACE ON 30-08-2005 VIDE DOCUMENT NO 14 OF LOO SE PAPER CONTAINING PAGE 1-24 WHICH IS A MINUTES OF THE MEETING WHEREIN THE UNDERSTANDING TO GENERATE AND DISTRIBUTE CASH ON MONEY BETWEEN THE TWO PARTNER GROUPS WAS ALLEGEDLY ARRIVED AT AND REITERATED AS STATED IN TH E SAID SEIZED DOCUMENT WHILE IT IS OTHER MATTER THAT THE ASSESSEE HAS DENIED OF ANY SUCH MEETING. THE DOCUMENT WAS SEIZED FROM THE ASSESSEE AND THE PRESU MPTION U/S 132(4A) SHALL APPLY THAT THE DOCUMENT BELONGED TO THE ASSES SEE AND THE CONTENTS OF THE DOCUMENTS ARE TRUE AND CORRECT. IT IS FOR THE A SSESSEE TO REBUT THE SAME WHICH THE ASSESSEE HAS MERELY DENIED THE SAME WHILE THE DOCUMENTS SPEAKS LOUDLY THAT THE SAID MEETING IN-FACT TOOK PLACE ON 30-08-2005 AT TAJ MAHAL ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 25 HOTEL , BOMBAY BETWEEN THE TWO PARTNER GROUPS TO D ECIDE ABOUT THE MODUS OPERANDI TO GENERATE AND DISTRIBUTE CASH ON MONEY FROM THE PROJECTS UNDERTAKEN BY THE ASSESSEE AMONGST TWO PARTNER GROU P IN THE MANNER STIPULATED IN THE SAID SEIZED DOCUMENT . IT IS ADMI TTED BY THE ASSESSEE THAT TWO GROUPS MENTIONED IN THE SAID DOCUMENT ARE TO BE DECODED AS BHARAT S SHAH GROUP AND D. G CHOUDHARY GROUP WHO ARE IN FACT PARTNER GROUPS OF THE ASSESSEE. THE NAME OF THE ASSESSEE ALSO DID FIND ME NTION AS RNDC IN CODES WHICH IN-FACT STANDS FOR ABBREVIATED VERSION OF THE ASSESSEE NAME I.E. RAMNAGAR DEVELOPMENT CORPORATION . THE CASE LAW OF JYOTI WIRE INDUSTRIES LIMITED( SUPRA) RELIED UPON BY THE ASSESSEE IS CLEA RLY DISTINGUISHABLE AS IN THIS CASE THERE WAS NO EVIDENCE THAT THE TAX-PAYER HAS RECEIVED ANY ON-MONEY FOR THE ASSESSMENT YEAR 1989-90 WHILE THERE WAS AN ADMISSION BY THE TAX- PAYER THAT IT DID RECEIVED ON-MONEY FOR ASSESSMENT YEAR 1990-91, WHILE IN THE INSTANT CASE THERE IS A SEIZED DOCUMENT NO 14 OF LO OSE PAPER CONTAINING PAGES 1-24 , WHICH ARE MINUTES DATED 30-08-2005 WHEREBY T HE PARTNER GROUPS HELD MEETING TO DECIDE ABOUT THE MODUS OPERANDI TO GENER ATE AND THEREAFTER DISTRIBUTE CASH ON MONEY AMONGST THEMSELVES FROM THE PROJECTS UNDERTAKEN BY THE ASSESSEE IN THE MANNER STIPULATED IN THE SE IZED DOCUMENT CORROBORATED BY THE SEIZURE OF DOCUMENT NO 18/18A OF ANNEXURE A-3 WHICH REFLECTED THE MISMATCH BETWEEN SALES RECORDED IN TH E SEIZED DOCUMENT AND THE BOOKS OF ACCOUNT HAVING REFERENCE TO THE DATE 3 1-03-2007 WHICH IS FURTHER CORROBORATED BY THE STATEMENT DATED 14-03-2 008 OF PARTNER OF THE ASSESSEE MR MUKESH D CHOWDHARY WHEREIN THE SAID PARTNER OF THE ASSESSEE HAS ADMITTED TO HAVING ACTUALLY RECEIVED C ASH ON-MONEY FROM THE PROJECTS UNDERTAKEN BY THE ASSESSEE OF RS.1.25 CROR ES FROM 01-04-2007 TO THE DATE OF SEARCH . THE CONDUCT OF THE ASSESSEE THROUG H OUT STARTING WITH THE COMMENCEMENT OF THE PROJECT SHANTI GARDEN IN 2005 I S CONSISTENT TILL ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 26 RECORDING OF STATEMENT ON 14-03-2008 THAT THE ASSES SEE INDULGED IN COLLECTING CASH ON-MONEY FROM THE PROJECTS UNDERTAKEN BY THE ASSESSEE. THE ADMISSION OF THE ASSESSEE VIDE STATEMENT RECORDED ON 14-03-20 08 OF THE PARTNER OF THE ASSESSEE MR. MUKESH D CHOWDHARY WHICH STATEMENT OF THE PARTNER IS NOT RETRACTED TILL DATE THAT THE ASSESSEE COLLECTED RS. 1.25 CRORES AS CASH ON- MONEY DURING 01-04-2007 TILL THE DATE OF SEARCH H AS TO BE NECESSARILY READ WITH DOCUMENT NO 14 OF LOOSE PAGES 1-24 WHEREBY MIN UTES OF MEETING WERE RECORDED OF MEETING TAKING PLACE WAY BACK IN 30-08- 2005 WHEREBY BOTH THE PARTNER GROUPS REACHED AND REITERATED UNDERSTANDING TO COLLECT AND DISTRIBUTE CASH ON-MONEY FROM THESE PROJECTS UNDERTAKEN BY T HE ASSESSEE. THE ASSESSEE IN-FACT FILED RETURN OF INCOME FOR THE ASS ESSMENT YEAR 2008-09 AND OFFERED THIS SURRENDERED INCOME OF RS.1.25 CRORES F OR TAXATION. THE ASSESSEE HAS ALSO SOLD MAJORITY OF THE FLATS IN THE PREVIOUS YEAR 2006-07 WITH RESPECT TO SHANTI GARDEN PROJECT AND THE INSIGNIFICANT INVENTO RY IS LEFT UNSOLD AS ON 31- 03-2007. THIS PERIOD ALSO MATCHES WITH THE PERIOD O F BOOM IN INDIAN REAL ESTATE INDUSTRY WHICH IS ELABORATELY DISCUSSED ABOV E BY US. SECTION 132 OF THE ACT IS A CODE IN ITSELF. THE SECTION IS PLACED IN STATUTE WITH AN OBJECTIVE TO PREVENT EVASION OF TAXES AND TO UNEARTH UNDISCLOSED INCOME OR HIDDEN INCOME AND BRING THE SAME TO TAX AS PER THE SCHEME OF THE ACT. IT ALSO EMPOWERS REVENUE TO SEIZE MONEY, BULLION ETC WHICH REPRESENT ED THE UNDISCLOSED INCOME WHICH ARE RETAINED BY THE REVENUE TO BE APPROPRIATE D FOR REALIZATION OF DEMANDS RAISED UNDER THE PROVISIONS OF THE ACT PERS UANT TO THE ASSESSMENT FRAMED BY THE REVENUE IN CONSEQUENCE OF THE SEARCH. THERE WILL ALWAYS BE SOME ESTIMATION AND GUESS WORK WHILE COMPUTING THE UNDISCLOSED INCOME OF THE ASSESSEE AS THE SAME HAD BEEN KEPT HIDDEN BY TH E ASSESSEE FROM THE REVENUE WHICH IS WITHIN THE SPECIAL KNOWLEDGE OF TH E ASSESSSEE AND MAY NOT BE BROUGHT OUT COMPLETELY BEFORE THE AUTHORITIES , THUS, EXACT PRECISION CAN ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 27 NEVER BE REACHED IN ESTIMATING UNDISCLOSED INCOME, THE SAFE GUARD SHOULD BE TO ENSURE THAT GUESS WORK IN ESTIMATING UNDISCLOSED INCOME SHOULD NOT BE ARBITRARY. IN OUR CONSIDERED VIEW, THE LD. CIT(A) H AS TAKEN A CORRECT STAND CONFIRMING AND SUSTAINING THE ASSESSMENT ORDER PASS ED BY THE AO VIDE HIS APPELLATE ORDERS DATED 08-11-2011, AS ALSO WE AGREE WITH THE STAND TAKEN BY THE LEARNED CIT(A) IN HIS APPELLATE ORDER DATED 08- 11-2011 WHEREBY HE DIRECTED THE AO THAT AMOUNT OF CASH ON-MONEY WITH RESPECT TO ALL THE UNSOLD STOCKS AS AT 31-03-2007 HELD BY THE ASSESSEE WHICH THE AO ADDED IN THE UNDISCLOSED INCOME OF THE ASSESSEE HAVE TO BE ELIMI NATED FROM THE CHARGEABILITY TO TAX AND THE REST AMOUNT IS TO BE B ROUGHT TO TAX AS UNDISCLOSED INCOME OF THE ASSESSEE. WE FIND NO INF IRMITY IN THE ORDERS OF THE LD. CIT(A) WHEREBY LD CIT(A) HAS UPHELD THE ASSESSM ENT ORDERS OF THE AO BY CONFIRMING THAT THE CASH ON-MONEY WAS IN-FACT BEI NG RECEIVED BY THE ASSESSEE IN THE PREVIOUS YEAR RELEVANT TO THE IMPU GNED ASSESSMENT YEAR, HENCE, WE UPHOLD/SUSTAIN THE APPELLATE ORDER DATED 08-11-2011 PASSED BY THE LD. CIT(A) BY DISMISSING THE APPEAL OF THE ASSE SSEE. WE ORDER ACCORDINGLY. 11. IN THE RESULT APPEAL FILED BY THE ASSESSEE IN I TA NO 76/MUM/2012 FOR THE ASSESSMENT YEAR 2007-08 IS DISMISSED. ITA NO. 77/MUM/2012 FOR THE ASSESSMENT YEAR 2008-09 12. THE GROUNDS RAISED BY THE ASSESSEE FIRM IN THIS APPEAL FILED WITH THE TRIBUNAL READ AS UNDER:- THE COMMISSIONER OF INCOME TAX (APPEALS) MUMBAI HA S ERRED :- ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 28 1. IN CONFIRMING AN ADDITION ALTHOUGH NO PAPERS WE RE FOUND DURING THE SEARCH PROCEEDINGS TO JUSTIFY THE SAID ADDITION S MADE. 2. IN CONFIRMING AN ADDITION OF ON MONEY EARNED ON SALE OF FLATS ON A PURELY ESTIMATED BASIS WITHOUT ANY EVIDENCE BEING F OUND EITHER DURING THE SEARCH OR THEREAFTER TO JUSTIFY THE SAME. 3. IN NOT APPRECIATING THAT THE DISCLOSURE MADE BY THE APPELLANT COVERED WHATEVER INCOME HAD BEEN EARNED. 4. IN NOT ADEQUATELY APPRECIATING THAT THE PROJECT HAD ONLY COMMENCED IN THIS YEAR AND WAS ONLY COMPLETE TO THE EXTENT OF 25%. 5. IN MAKING AN ASSUMPTION THAT THE APPELLANT HAD E ARNED ON MONEY ON EVERY TRANSACTION OF SALE WITHOUT APPRECIA TING THE SUBMISSIONS MADE AND WITHOUT APPRECIATING THAT THER E WAS NO EVIDENCE WHICH WAS FOUND DURING THE SEARCH OR OTHERWISE TO J USTIFY THE SAME. ALL THE GROUNDS ABOVE ARE WITHOUT PREJUDICE TO EACH OTHER. 13. THE FACTS OF THE CASE ARE SIMILAR COMPARED TO I TA NO. 76/MUM/2012. SINCE THE ASSESSEE MADE DISCLOSURE OF RS. 1.25 CROR ES DURING SEARCH PROCEEDINGS ON 13-03-2008 , DURING THE COURSE OF AS SESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED BY THE AO TO PROVIDE THE BASIS O F DISCLOSURE OF RS. 1.25 CRORES AND AS TO WHY NOT CASH RECEIPTS SHOULD BE EX TRAPOLATED FOR SALES AFTER 1.4.2007 TILL THE DATE OF SEARCH AS THE PARTNERS AC CEPTED TO RECEIVE OUT OF BOOK MONEY FROM 1.4.2007 ONWARDS IN HIS STATEMENT DATED 14.3.2008 U/S 132(4) OF THE ACT AND DISCLOSED RS. 1.25 CRORES ON THIS ACCOU NT. THE EXTRACT OF THE STATEMENT READS AS UNDER:- Q.27 DO YOU WANT TO SAY ANYTHING? ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 29 ANS. I HAVE TO SAY ONLY THAT DUE TO THE PRICE RIS E IN BUILDING CONSTRUCTION BUSINESS I HAVE BEEN ABLE TO COLLECT CASH MONEY ROUGHLY 20% OVER AND ABOVE THE SALE PRICE REA LIZED BY US IN FINANCIAL YEAR STARTING FROM 1.4.2007 ONWARDS AM OUNTING TO RS. 1.25 CRORES APPROXIMATE UPTO THE DATE, WHICH IS NOT RECORDED IN MY BOOKS OF ACCOUNT OF M/S RAMNAGAR DEVELOPMENT CORPORATION. THE SAME IS HEREBY SURRENDERED AS ADDI TIONAL INCOME FOR THE CURRENT FINANCIAL YEAR WITH THE REQU EST THAT NO PENAL/PROSECUTION ACTION SHOULD BE TAKEN AGAINST US & I MAY BE ALLOWED THE IMMUNITY GRANTED UNDER SEC 132(4) OF TH E IT ACT, 1961.' IN RESPONSE VIDE LETTER DT 21.10.2009, ASSESSEE MAD E FOLLOWING SUBMISSION: 'QUERY NO.3 WHAT IS THE BASIS OF DISCLOSURE OF RS 1.25 CRORES? THE ABOVE DISCLOSURE WAS MADE TO BUY PEACE OF MIND AT THE END OF VERY EXHAUSTING AND EMOTIONALLY AND MENTALLY AN EXTREMELY TIRING SESSION LASTING ALMOST FOR 24 HOURS. IT WAS MADE ON THE BASIS OF THE PARTNERS ESTIMATE OF THE ADDITIONAL IN COME GENERATED WITHOUT HAVING THE ENERGY OR THE TIME OR BEING IN T HE FRAME OF MIND TO GO INTO ANY SORT OF DETAIL AT THAT OF TIME. WE DO SUBMIT THAT EARNING OF SUCH ADDITIONAL INCOME IS NOT A REG ULAR FEATURE OF THIS TRADE AND THE AMOUNT DISCLOSED MORE THAN ADEQU ATELY COVERED THE AMOUNTS WHICH THE PROMOTERS WERE AWARE OF HAVING RECEIVING DURING THE PROJECT.' FURTHER VIDE LETTER DATED 26.10.2009, ASSESSEE MADE FOLLOWING SUBMISSION:- PLEASE FIND ENCLOSED HEREWITH THE STATEMENT OF SAL ES DURING PERIOD 1.4.2007 TO 13.3.2008. WE HAVE TO STA TE THAT DUE TO THE BOOM IN THE REAL ESTATE BUSINESS DURING THE ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 30 ABOVE SAID PERIOD WE HAVE BEEN ABLE TO COLLECT FROM SOME PURCHASERS CASH, MONEY RANGING FROM 10 TO 20% ON AN D ABOVE THE SALE PRICE REALIZED ON SOME TRANSACTIONS DEPENDING UPON THE FOLLOWING FACTORS 1) BUYERS KEEN INTEREST TO BUY A PARTICULAR FLAT BE ING HIS /HER PREFERRED CHOICE DUE TO REASONS SUCH AS GARDEN / ROAD FACING, VIEW, CROSS VENTILATION, VASTU, ETC. 2) THE URGENT NEED OF THE BUYER TO STRIKE A DEAL 3) HIS/HER PERCEPTION OF THE FLAT BEING A PRIME FLA T IN THE BUILDING WE REITERATE THAT CASH MONEY AS MENTIONED ABOVE NOT EXCEEDING 20% HAS BEEN COLLECTED IN SOME TRANSACTION ONLY AND EARNING SUCH ADDITIONAL INCOME IS NOT OUR REGULAR PRACTICE. WE FURTHER STATE THAT THE DISCLOSURE OF RS. 1.25 CRORES MORE T HAN ADEQUATELY COVERED SUCH EARNINGS WHICH PROMOTERS WERE AWARE OF HAVING RECEIVED DURING THE PERIOD MENTIONED ABOVE'. THE ASSESSEES SUBMISSION WAS CONSIDERED BY THE A.O . BUT REJECTED AND IT WAS OBSERVED THAT THE ASSESSEE WAS INVOLVED IN ACCEPTIN G OUT OF BOOKS MONEY FROM 1.4.2007 ONWARDS RANGING FROM 10 TO 20%. FURTHER FR OM THE ANALYSIS OF PAGE NO. 14 OF LOOSE PAPER FILE CONTAINING PAGES 1 TO 24 , IT WAS EVIDENT THAT ASSESSEE WAS INVOLVED IN ACCEPTING CASH ON MONEY I.E. OUT OF BOOKS RECEIPTS. THE AO OBSERVED THAT ACCORDINGLY ON AN AVERAGE BASI S, AT THE RATE OF 20% EXTRAPOLATION COULD BE DONE ON THE TOTAL SALES OF R S. 18,70,90,000/- FOR THE PERIOD 1.4.2007 TO 13.3.2008(DATE OF SEARCH] WHICH COMES TO BE RS. 3,74,18,000/- AND OUT OF THIS, THE ASSESSEE HAD ALR EADY MADE DISCLOSURE OF RS. 1.25 CRORES , SO ONLY THE BALANCE OF RS. 2,49,1 8,000 WAS DIRECTED TO BE ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 31 ADDED TO THE INCOME OF THE ASSESSEE FOR THE ASSESSM ENT YEAR 2008-09 BY THE AO VIDE ASSESSMENT ORDER DATED 22-12-2009 PASSED U/ S 143(3) OF THE ACT. 14. AGGRIEVED BY THE ASSESSMENT ORDER DATED 22-12-2 009 PASSED BY THE A.O. U/S. 143(3) OF THE ACT, THE ASSESSEE FILED ITS FIR ST APPEAL BEFORE THE LD. CIT(A). 15. BEFORE THE LD. CIT(A), THE ASSESSEE SUBMITTED T HAT THE A.O. HAS MADE THE ADDITION WHICH WAS PURELY ON PRESUMPTION AND SU RMISES AND WITHOUT ANY SPECIFIC MATERIAL FOUND TO JUSTIFY THE SAME. THE AS SESSEE SUBMITTED THAT NO SUCH EVIDENCE HAS BEEN FOUND THAT THE CASH ON-MONE Y HAS BEEN COLLECTED ON EACH AND EVERY BOOKINGS, HENCE, THE A.O. WAS COMPLE TELY UNJUSTIFIED IN MAKING THE ADDITION DURING THE YEAR IN QUESTION. IT WAS SUBMITTED THAT THE A.O. HAD COMPLETELY IGNORED THE SUBMISSIONS MADE BY THE ASSESSEE WHEREIN IT WAS STATED CLEARLY THAT CASH ON-MONEY WAS RECEIVE D ONLY IN SOME CASES AND THAT TOO VARIED BETWEEN 10% TO 20% AND HENCE THERE WAS NO CASE FOR THE A.O. TO PRO RATE THAT STATEMENT INTO ASSUMPTION THAT ON MONEY OF 20% HAD BEEN RECEIVED IN RESPECT OF EVERY SINGLE BOOKING DONE BY THE ASSESSEE DURING THE YEAR IN QUESTION. THE ASSESSEE SUBMITTED THAT THE P ROJECT HAD ONLY STARTED DURING THE YEAR AND HAD BEEN SOLD ONLY TO THE EXTEN T OF LESS THAN 25% DURING THE YEAR IN QUESTION AND HENCE THE POSSIBILITY OF H UGE ON-MONEY BEING PAID BY BUYERS WAS REMOTE SINCE A HUGE NUMBER OF FLATS WERE STILL AVAILABLE FOR SALE AND THE CONSTRUCTION HAS NOT PROGRESSED AS TO BE NE AR COMPLETION. THE ASSESSEE SUBMITTED THAT FLATS HAD BEEN SOLD AT A ST ANDARD PRICE AND IN CERTAIN CASES WHERE CERTAIN ADDITIONAL BENEFITS WERE BEING GIVEN OR WHERE FLATS WERE BETTER LOCATED OR THE BUYER WANTED TO CLOSE IN A DE AL, THE ASSESSEE HAD BEEN ABLE TO RECOVER A PREMIUM AND IT WAS THESE PREMIUMS WHICH HAD BEEN OFFERED TO TAX. THUS THE ASSESSEE PRAYED THAT ADDITION SHOU LD NOT BE MADE MERELY ON ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 32 THE BASIS OF PRESUMPTIONS WHEN NO ADVERSE MATERIAL TO JUSTIFY THE ADDITION IS AVAILABLE. THUS , THE ASSESSEE SUBMITTED THAT THE C ASH COLLECTED TOWARDS BOOKINGS BE RESTRICTED TO THE FIGURE OF RS.1.25 CRO RES AS SURRENDERED/ DISCLOSED AND THE BALANCE ADDITION MADE BE DELETED. THE LD. CIT(A) REJECTED THE CONTENTIONS OF THE ASS ESSEE ON THE GROUND THAT THE ASSESSEE ADMITTED THAT CERTAIN ON MONEY WAS RECEI VED FROM THE BUYERS OF THE FLATS AND THE SEIZED MATERIAL HAS PROVED THAT THE A SSESSEE HAD RECEIVED ON MONEY ON SALE OF FLATS. MR. MUKESH D. CHOUDHRY HAS ALSO ADMITTED IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT THAT DUE T O BOOM IN THE REAL ESTATE MARKET, THE ASSESSEE COLLECTED 20% ON MONEY ON TH E SALE OF FLATS AND DISCLOSED RS.1.25 CRORE AS ADDITIONAL INCOME. THE A .O. WANTED TO APPLY 20% OF THE EXTRA MONEY ON THE SALE OF ALL FLATS BUT THE ASSESSEE TRIED TO EXPLAIN THAT THE ON MONEY RECEIVED WAS RANGING FROM 10% T O 20% AND THE ON MONEY WAS NOT RECEIVED ON ALL FLATS SALE. THE ASSESSEE HA S NOT RETRACTED THE STATEMENT MADE ON 14-03-2008 UP-TO 26-10-2009. THE ASSSESSEE VIDE REPLY DATED 26 TH OCTOBER, 2009 TRIED TO EXPLAIN THAT THE ON MONEY RECEIVED WAS RANGING FROM 10% TO 20% WHILE EARLIER THE ASSESSEE STATED THAT ON MONEY RECEIVED WAS 20%. THE LD. CIT(A) OBSERVED THAT NO E VIDENCE HAS BEEN SHOWN BY THE ASSESSEE TO PROVE THAT THE ON MONEY RECEIV ED WAS RS.1.25 CRORES OR IT WAS VARYING FROM 10% TO 20% , WHILE ON THE OTHER HA ND THE LEARNED CIT(A) OBSERVED THAT THE ASSESSEE HAS CATEGORICALLY STATED IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT THAT DUE TO BOOM IN THE REAL ESTATE MARKET, THE ASSESSEE COULD COLLECT 20% EXTRA MONEY. THE LD. CIT(A) ACCO RDINGLY UPHOLD THE ACTION OF THE A.O. THAT ON MONEY AT 20% ON THE SALE OF F LATS WAS RECEIVED BY THE ASSESSEE AS PER THE STATEMENT OF THE PARTNER OF THE ASSESSEE MR. MUKESH D CHOWDHARY RECORDED U/S 132(4) OF THE ACT ON 14-03-2 008AS THE ASSESSEE ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 33 FAILED TO PROVE THAT THE ON MONEY RECEIVED RANGED FROM 10-20% . THUS, THE LEARNED CIT(A) AFFIRMED THE ASSESSMENT ORDER DATED 22-12-2009 PASSED BY THE AO U/S 143(3) OF THE ACT VIDE HIS APPELLATE ORDER D ATED 08-11-2011. 16. AGGRIEVED BY THE APPELLATE ORDER DATED 08-11-20 11 OF THE LD. CIT(A), THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL. 17. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE BASIS OF THE ADDITION WAS STATEMENT DATED 14-03-2008 MADE BY THE PARTNER OF THE ASSESSEE MR. MUKESH D CHOWDHARY DURING THE COURSE O F SEARCH OPERATIONS WHEREBY THE PARTNER OF THE ASSESSEE SUBMITTED IN RE SPONSE TO QUESTION NO 27 THAT DUE TO PRICE RISE IN BUILDING CONSTRUCTION , A SSESSEE WAS ABLE TO COLLECT CASH ON MONEY ROUGHLY 20% OVER AND ABOVE SALE PRI CE FROM 1.4.2007 TILL THE DATE OF SEARCH AMOUNTING TO RS. 1.25 CRORES WHICH I S NOT RECORDED IN THE BOOKS OF ACCOUNT AND THE SAME WAS SURRENDERED BY TH E ASSESSEE. THE ASSESSEE HAS DULY FILED THE RETURN OF INCOME AND DI SCLOSED THE SAID AMOUNT OF RS.1.25 CRORES IN THE RETURN OF INCOME FILED WITH T HE REVENUE AND PAID THE DUE TAXES. THE A.O. HAS MADE THE ADDITION BASED UP ON EXTRAPOLATION OF 20% OF THE SALES WHILE NO FURTHER ENQUIRY IS MADE ARBI TRARY ADDITIONS HAVE BEEN MADE BASED ON SURMISES, CONJECTURES AND ASSUMPTIONS WHICH IS NOT PERMITTED. COMPLETE DETAILS HAVE BEEN SUBMITTED BY THE ASSESSEE BEFORE THE AUTHORITIES BELOW. THE LD. COUNSEL RELIED ON THE C BDT INSTRUCTION DATED 18 TH DECEMBER, 2014. THE LEARNED COUNSEL FOR THE ASSESS EE SUBMITTED THAT NO EXTRA ADDITION CAN BE MADE APART FROM SURRENDER OF RS.1.25 CRORES MADE BY THE ASSESSEE. THE LD. COUNSEL SUBMITTED THAT THE P ROJECT WAS COMPLETED IN MAY, 2009. THE ASSESSEE IS FOLLOWING PROJECT COMPL ETION METHOD OF ACCOUNTING HENCE ESTIMATE CANNOT BE MADE. OCCUPATI ON CERTIFICATE WAS ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 34 RECEIVED IN MAY, 2009. THE LD. COUNSEL RELIED ON T HE DECISION OF THE TRIBUNAL IN THE CASE OF GURUPRERNA ENTERPRISES V. ACIT, (201 1) 57 DTR (MUMBAI TRIB) 465 AND IN THE CASE OF JALARAM JAGRUTI DEVELOPERS P VT. LTD. V. DCIT IN ITA NO. 5121 TO 5123/MUM/08 FOR ASSESSMENT YEARS 2003-04 TO 2005-06 DATED 28 TH APRIL, 2009.IT WAS SUBMITTED THAT THE ABOVE DECISIO N IS AFFIRMED BY THE HONBLE BOMBAY HIGH COURT. THE ASSESSEE ALSO RELIED UPON DECISION OF JYOTI WIRE INDURSTIES(SUPRA). 18. THE LD. CIT D.R. RELIED UPON THE SEIZED MATERIA L MARKED AS PAGE 18 AND BACK OF PAGE 18 /ANNEXURE A-3 AND THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ONUS IS ON THE ASSESSEE TO PROVE THAT THE ON MONEY RECEIVED WAS VARYING FROM 10% TO 20% OF SALE AND NO T 20% OF THE SALES AS STATED IN THE STATEMENT RECORDED ON 14-03-2008. T HE LD. CIT D.R. FURTHER RELIED UPON THE PROVISIONS OF SECTION 132 (4) AND 1 32 (4A) OF THE ACT. THE LD CIT DR ALSO RELIED UPON THE SEIZED MATERIAL MARKED AS PAGE 14 OF FOLDER CONTAINING LOOSE PAGES 1-24 WHICH IS PLACED IN THE FILE. AS PER PAGE NO. 14, IT IS CLEARLY MENTIONED THAT MEETING TOOK PLACE BETWEE N THE TWO PARTNER GROUPS OF THE ASSESSEE ON 30-08-2005 AT TAJ MAHAL HOTEL, B OMBAY WHEREIN IT WAS DECIDED TO GENERATE AND DISTRIBUTE CASH ON MONEY FROM THE SALE OF FLATS OF SHANTI GARDEN. THE LD. D.R. SUBMITTED THAT THE VOL UNTARY STATEMENT WAS MADE BY THE PARTNER OF THE ASSESSEE MR MUKESH D CHO WDHARY ON 14-03-2008 WHICH HAS NOT BEEN RETRACTED BY THE ASSESSEE AND TH E RETURN OF INCOME HAS BEEN FILED WHEREIN RS1.25 CRORES WAS DECLARED AND O FFERED FOR TAXATION. HE DREW OUR ATTENTION TO THE QUESTION NO 7-11, 26 AND 27 OF STATEMENT DATED 14- 03-2008 OF SH MUKESH D CHOWDHARY AND SUBMITTED THAT THE ADDITIONS BE SUSTAINED. THE LD CIT DR SUBMITTED THAT THE SAID PA RTNER OF THE ASSESSEE MR. MUKESH D CHOWDHARY IN REPLY TO QUESTION NO 27 STATE D THAT ON MONEY ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 35 RECEIVED WAS 20% AND NOW ONUS IS ON THE ASSESSEE TO REBUT THAT THE STATEMENT WAS NOT CORRECT. INCOME TAX PROCEEDINGS A RE GOVERNED BY PREPONDERANCE OF HUMAN PROBABILITIES THE LD. CIT D .R. RELIED UPON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF SU MATI DAYAL V. CIT (1995) 80 TAXMAN 89(SC) . IT WAS SUBMITTED THAT KEEPING IN VIEW CONDUCT OF THE ASSESSEE AND ON THE TEST OF PREPONDERANCE OF HUMAN PROBABILITIES , THE ADDITIONS AS MADE BY THE AO AND AS CONFIRMED BY LEA RNED CIT(A) NEEDS TO BE CONFIRMED/SUSTAINED. IT WAS SUBMITTED THAT THE ARGU MENTS TAKEN BY THE ASSESSEE ARE AFTERTHOUGHT. THE LD. CIT DR SUBMITTED THAT IT IS THE DUTY OF THE ASSESSEE TO EXPLAIN THE SEIZED MATERIAL AND DOCUMEN T NO 14 OF LOOSE SEIZED FOLDER CONTAINING 1-24 PAGE CLEARLY STIPULATES THAT THE PARTNER GROUP OF THE ASSESSEE DULY ENTERED INTO AN UNDERSTANDING TO GENE RATE AND DISTRIBUTE AMONGST THEMSELVES CASH ON MONEY RECEIVED FROM T HE PROJECT. IT WAS SUBMITTED THAT THE DISCLOSURE WAS NOT SUO MOTU BUT BASED ON EVIDENCES FOUND DURING SEARCH AND THE STATEMENT OF THE ASSES SEE WAS VOLUNTARY AND CIRCULAR RELIED UPON BY THE ASSESSEE IS NOT HELP TO THE ASSESSEE. THE LD CIT DR RELIED UPON DECISION OF HONBLE BOMBAY HIGH COUR T IN THE CASE OF SURENDER M KHANDAR(SUPRA), DECISION OF HONBLE ANDH RA PRADESH HIGH COURT IN THE CASE OF GOPAL LAL BADHRUKA V. DCIT(2012) 27 TAXMAANN.COM 167(AP), AND DECISION OF HONBLE HIGH COURT OF ALLAHABAD IN THE CASE OF CIT V. LAL CHAND JAISWAL (2013) 40 TAXMANN.COM 372(ALL. HC). T HUS, IN NUTSHELL IT WAS SUBMITTED BY LEARNED CIT DR THAT THE SEARCH TOOK PL ACE IN THE INSTANT ASSESSMENT YEAR ON 13-03-2008 WHEREIN THE ASSESSEE SURRENDERED RS.1.25 CRORES DURING SEARCH OPERATIONS BUT FAILED TO EXPLA IN HOW THE FIGURE OF RS.1.25 CRORE WAS ARRIVED AT. THE ASSESSEE HAS DURING RECOR DING OF STATEMENT SUBMITTED THAT CASH ON MONEY IS 20% OF SALE PRICE OF FLAT. THE ADDITION OF ON ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 36 MONEY AS MADE BY LD. AO AND AS CONFIRMED BY LD. CI T(A)@ 20% OF SALES NEEDED TO BE CONFIRMED. 19. IN THE REJOINDER, THE LD. COUNSEL SUBMITTED THA T RS. 1.25 CRORES HAS BEEN SURRENDERED BY THE ASSESSEE WHICH HAS ALREADY BEEN OFFERED FOR TAXATION AND THERE IS NO DISPUTE AS TO THE SAME. IT WAS SUB MITTED THAT SURRENDER WAS MADE TO COVER DISCREPANCIES AND DEPARTMENT CANNOT B E ALLOWED TO IMPROVE ITS CASE.IT WAS SUBMITTED THAT REVENUE CAN DO EXTRAPOLA TION BUT NOT ON THE BASIS OF GUESS WORK. 20. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND AL SO PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE CASE LAWS CITED B Y BOTH THE PARTIES. THE ASSESSEE IS A BUILDER ENGAGED IN THE CONSTRUCTION A CTIVITY DEVELOPING PROPERTY AT MIRA ROAD, DISTRICT THANE. WE HAVE ELABORATELY D ISCUSSED IN ITA NO. 76/MUM/2012 FOR THE ASSESSMENT YEAR 2007-08 IN PREC EDING PARAS OF THIS ORDER THE ENTIRE FACTUAL BACKGROUND OF THE CASE. I N THE YEAR 2005 ON 30-08- 2005 THERE WAS A MEETING BETWEEN THE PARTNER GROUPS OF THE ASSESSEE WHERE THERE WAS A UNDERSTATING ARRIVED AT AND REITERATED DURING THE MEETING BETWEEN THE TWO PARTNER GROUPS FOR CASH GENERATION AND MANNER OF DISTRIBUTION OF CASH SO GENERATED AMONGST PARTNER G ROUPS WITH RESPECT TO THE PROJECT UNDERTAKEN BY THE ASSESSEE. VIDE PAGE NO. 18 AND BACK OF PAGE 18 OF ANNEXURE A-3, WE HAVE CONFIRMED THE ADDITION ON ACC OUNT OF CASH ON MONEY SO GENERATED IN THE ITA NO 76/MUM/2012 WITH RESPECT TO THE FLATS SOLD DURING THE PREVIOUS YEAR 2006-07 RELEVANT TO THE AS SESSMENT YEAR 2007-08 WHILE ON MONEY ON THE UNSOLD STOCK IN THE ASSESSM ENT YEAR 2007-08 WAS DIRECTED TO BE EXCLUDED AS THE SAME WAS NOT SOLD IN THE ASSESSMENT YEAR . THE FLATS SO SOLD IN THE ASSESSMENT YEAR 2008-09 AS REF LECTED PER SEIZED MATERIAL ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 37 PAGE 18 AND BACK PAGE OF 18 VIDE ANNEXURE A-3, THE ON MONEY COMPONENT SHALL BE BROUGHT TO TAX BASED UPON THE SALES EXECUT ED OF THE INVENTORY EXECUTED IN THE INSTANT ASSESSMENT YEAR WHICH WERE REFLECTED OF THE PROJECTS VIDE SEIZED ANNEXURE A-3/PAGE 18 AND BACK PAGE OF 1 8. THE PARTNER OF ASSESSEE HAS STATED IN THE STATEMENT RECORDED ON 14 -03-2008 THAT ON MONEY RECEIVED FROM 01-4-2007 TO THE DATE OF SEARCH WAS 2 0% OVER AND ABOVE SALE PRICE WHICH IN AGGREGATE AMOUNTED TO RS.1.25 CRORES FOR THE PERIOD 01-04- 2007 TO DATE OF SEARCH. THE A.O. HAS APPLIED 20 % EXTRAPOLATION ON THE TOTAL SALES WHICH LED TO ADDITION OF RS.3,74,18,000/-- IN CLUSIVE OF RS.1.25 CRORES SURRENDERED BY THE ASSESSEE. THE AO PER-SE CANNOT A PPLY PART OF THE SURRENDER BY PICKING AND CHOOSING THE FIGURE OF 20% OVER AND ABOVE CASH SALES IN ISOLATION TO THE FIGURE OF TOTAL SURRENDER OF RS.1.25 CRORES UNLESS COGENT REASONS ARE BROUGHT ON RECORDS. HOWEVER, SIN CE PART OF THE STOCK WAS SOLD DURING THE ASSESSMENT YEAR 2008-09 WHICH IS CA RRY FORWARD FROM THE ASSESSMENT YEAR 2007-08 WHEREBY WE CONFIRMED THE AD DITIONS IN ASSESSMENT YEAR 2007-08 BASED ON SOLD FLATS , NEEDED TO BE CON FIRMED IN THE INSTANT ASSESSMENT YEAR ON SAME BASIS ON THE INVENTORY SOLD IN THE PREVIOUS YEAR RELEVANT TO THE INSTANT ASSESSMENT YEAR 2008-09 BY RELYING ON THE SEIZED DOCUMENT PAGE 18 AND BACK OF PAGE 18/ANNEXURE A-3. WITH RESPECT TO THE OTHER STOCK OF FLAT IN OTHER SECTORS OF THE PROJECT SO SOLD DURING THE PREVIOUS YEAR RELEVANT TO THE INSTANT ASSESSMENT YEAR 2008-0 9, WE HAVE TO SEE IT IN CONTEXT OF THE CONDUCT OF THE ASSESSEE SINCE 2005 W HEN MEETING TOOK PLACE BETWEEN PARTNER GROUPS ON 30-08-2005 WHEREBY UNDERS TANDING WAS ARRIVED AT AS WELL REITERATED TO GENERATE CASH ON MONEY F ROM SALE OF FLATS IN THE PROJECT AND ALSO TO DISTRIBUTE THE SAME AMONGST PAR TNER GROUP WHICH IS REFLECTED IN SEIZED MATERIAL PAGE 14 OF LOOSE PAPER FOLDER CONTAINING PAGE 1- 24, FOLLOWED BY SEIZURE OF DOCUMENTS PAGE 18 AND BA CK OF PAGE 18 /ANNEXURE ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 38 A-3 AND THE STATEMENT OF PARTNER OF THE ASSESSEE DA TED 14-03-2008 WHEREBY HE ADMITTED HAVING RECEIVED CASH ON MONEY OF RS. 1.25 CRORES IN THE INSTANT ASSESSMENT YEAR. THIS ALSO NEED TO BE SEEN IN CONTE XT OF REAL ESTATE BOOM WHICH WAS PREVAILING IN INDIAN REAL ESTATE SECTOR I N 2006-2008 WHICH IS ELABORATELY DISCUSSED BY US IN ITA NO. 76/MUM/2012 FOR ASSESSMENT YEAR 2007-08 IN PRECEDING PARAS. THUS, WITH RESPECT TO THE SALES RECORDED DURING THE INSTANT ASSESSMENT YEAR EXCLUDING SALES WHICH W ERE OF THE UNSOLD INVENTORY OF THE LAST YEAR WHICH WE HAVE DIRECTED T O INCLUDE ON MONEY BASED ON PAGE 18 AND BACK OF PAGE 18/ANNEXURE A-3, THE AD DITIONS SHALL BE MADE ON SAME PROPORTION AS WERE MADE IN THE ASSESSMENT Y EAR 2007-08 IN THE RATIO OF SALE TO UNDISCLOSED INCOME BROUGHT TO TAX AS THE CONDUCT OF THE ASSESSEE IS CONTINUING AS BROUGHT ON RECORD SINCE 2005 MEETING TILL THE RECORDING OF STATEMENT ON 14-03-2008 AS SET OUT ABOVE WHEREBY CO NDUCT OF THE ASSESSEE BASED ON PREPONDERANCE OF HUMAN PROBABILITIES POINT S TO THE RECEIPT OF ON MONEY REGULARLY BY THE ASSESSEE DURING THE INSTANT ASSESSMENT YEAR BACKED WITH BOOMING REAL ESTATE SECTOR WHICH ITSELF IS ADM ITTED BY THE ASSESSEE AND QUANTIFICATION NEED TO BE DONE BASED ON THE EMPIRIC AL DATA OF THE IMMEDIATELY PRECEDING YEAR AS THE REAL ESTATE BOOM CONTINUED DU RING THIS INSTANT ASSESSMENT YEAR . KEEPING IN VIEW THAT THE ASSE SSEE HAS SURRENDERED RS. 1.25 CRORES DURING THE SEARCH PROCEEDINGS VIDE STAT EMENT DATED 14-03-2008, WHICHEVER FIGURE AS ARRIVED AT AS PER OUR ABOVE DIR ECTIONS OR SURRENDERED AMOUNT OF RS.1.25 CRORES WHICHEVER IS HIGHER OF THE TWO NEEDS TO BE ADDED AS UN-DISCLOSED INCOME AS IN OUR CONSIDERED VIEW THE E STIMATE OF THE UNDISCLOSED INCOME HAS TO BE MADE WHICH DEFINITELY NEED SOME GUESS WORK WHICH OF COURSE SHOULD NOT BE ARBITRARY WHILE ON TH E OTHER HAND THE DETAILS OF SURRENDER AMOUNT OF RS.1.25 CRORES IS WITHIN THE SP ECIAL KNOWLEDGE OF THE ASSESSEE WHICH DETAILS ARE NOT BROUGHT OUT BY THE A SSESSEE. THE REVENUE HAS ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 39 MADE ADDITION @ 20% ON EXTRAPOLATION WHICH IS ALSO NOT SUSTAINABLE IN THE INSTANT CASE BY READING IN ISOLATION IN DIVORCE TO THE TOTAL SURRENDER OF RS.1.25 CRORES AS THE ADDITION HAS BEEN MADE ON THE BASIS OF THE STATEMENT OF PARTNER DATED 14-03-2008 WHICH CATEGORICALLY STATED THAT THE SURRENDER WAS TO THE EXTENT OF RS.1.25 CRORES AND SECONDLY REVEN UE HAS NOT MADE ANY ENQUIRY TO BRING ON RECORD COGENT TANGIBLE INCRIMIN ATING MATERIAL TO PROVE THAT THE ASSESSEE RECEIVED 20% CASH ON ALL SALES WH ILE EMPIRICAL DATA OF PRECEDING YEAR WHICH LED TO THE FRAMING OF THE ASSE SSMENT ORDER OF THE PRECEDING YEAR AS CONFIRMED BY THE LEARNED CIT(A) W HICH ORDER OF THE LEARNED CIT(A) WE CONFIRMED DOES NOT SUGGEST THAT ADDITION TO THE TUNE OF 20% ON THE SALES VALUE WERE MADE BY THE REVENUE AS SUSTAINED B Y LEARNED CIT(A) IN IMMEDIATELY PRECEDING ASSESSMENT YEAR 2007-08. HENC E ADDITION ARE TO BE SUSTAINED IN THE MANNER LAID DOWN BY US IN OUR ABOV E DECISION. WE HAVE CONSIDERED THE CASE LAWS RELIED UPON BY BOTH THE PA RTIES WHILE ARRIVING AT THE CONCLUSIONS AS SET OUT ABOVE. WE ORDER ACCORDINGLY. ITA NO. 7421/MUM/2012 FOR THE ASSESSMENT YEAR 2009- 10. 21. IN THIS APPEAL FILED BEFORE THE TRIBUNAL , THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- THE COMMISSIONER OF INCOME TAX (APPEALS) - 39, MUM BAI HAS ERRED:- 1. IN CONFIRMING AN ADDITION OF UNACCOUNTED INCOME BASED ON PRESUMPTIONS AND SURMISES AND WITHOUT APPRECIATING CORRECTLY THE FACTS OF THE CASE AND PRACTICAL REALITIES. ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 40 2. IN NOT APPRECIATING THAT NO ADDITION COULD BE MA DE BASED ON ROUGH WORKINGS FOUND AT THE PREMISES WHICH AT BEST REPRESENTED PROVISIONAL FIGURES AND NOTHING MORE. 3. IN NOT APPRECIATING THE EXPLANATIONS GIVEN BY TH E APPELLANT OF VARIOUS REASONS WHY FLATS ARE SOLD AT DIFFERENT PRI CES AND OTHER SUBMISSIONS MADE BY THE APPELLANT. ALL THE GROUNDS ABOVE ARE WITHOUT PREJUDICE TO EACH OTHER. 22. THE ASSESSEE IS A BUILDER ENGAGED IN THE CONSTR UCTION ACTIVITY DEVELOPING PROPERTY AT MIRA ROAD, DISTRICT THANE. W E HAVE ELABORATELY DISCUSSED IN ITA NO. 76/MUM/2012 FOR THE ASSESSMENT YEAR 2007-08 IN PRECEDING PARAS OF THIS ORDER THE ENTIRE FACTUAL BACKGROUND OF THE CASE. IN THIS APPEAL, THE A.O. HAS MADE SIMILAR ADDITION BAS ED UPON THE SEIZED PAGE NO. 18 AND BACK OF PAGE 18 / ANNEXURE A-3 WHICH ADD ITIONS WERE PARTLY CONFIRMED BY THE LEARNED CIT(A) . WE HAVE SUSTAINED THE ORDER OF LEARNED CIT(A) IN THE ASSESSMENT YEAR 2007-08 IN THE MANNER LAID DOWN IN OUR DECISION IN ITA NO 76/MUM/2012 IN PRECEDING PARAS FOR ASSESSMENT YEAR 2007-08 THE ADDITIONS MADE BASED ON SEIZED MATERIAL PAGE 18 AND BACK OF THE PAGE 18/ANNEXURE A-3. THE ADDITION HAS BEEN MADE I N THIS YEAR BASED UPON THE SALE OF UNSOLD STOCK WHICH WAS CARRY FORWARD FR OM THE EARLIER YEARS BASED UPON THE SEIZED MATERIAL PAGE 18 AND BACK OF PAGE 1 8 OF ANNEXURE A-3 WHEREBY ADDITION OF RS. 1,18,500/- HAS BEEN MADE IN THE INSTANT ASSESSMENT YEAR. WE HAVE UPHELD THE VALIDITY OF THE ADDITIONS MADE BASED UPON THE SEIZED MATERIAL PAGE NO. 18 AND BACK OF PAGE 18 / A NNEXURE A-3 IN ITA NO.76/MUM/2012 FOR THE ASSESSMENT YEAR 2007-08. WE HAVE OBSERVED THAT THE SEARCH TOOK PLACE ON 13-03-2008 WHILE THE INSTA NT ASSESSMENT YEAR IS 2009-10 I.E. THE ASSESSMENT YEAR IS POST SEARCH ON 13-03-2008 . THE SEIZURES ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 41 WERE MADE ON 13-03-2008 AND STATEMENT WAS RECORDED ON 14-03-2008 WHICH ALL PERTAINED TO THE ACTIVITIES AND CONDUCT OF THE ASSESSEE PRIOR TO THE SEARCH ACTION ON 13-03-2008. THE ADDITIONS FOR THE INSTANT ASSESSMENT YEAR 2009-10 CANNOT BE MADE BASED ON THE CONDUCT OF THE ASSESSEE PRIOR TO THE SEARCH ON 13-03-2008 UNLESS COGENT TANGIBLE INCRIMINATING MAT ERIAL IS BROUGHT ON RECORD BY THE REVENUE TO PROVE THAT THE CONDUCT OF THE ASSESSEE CARRIED ON BY IT WAS THE SAME BY INDULGING IN THE ACTIVITY OF REC EIVING CASH ON MONEY EVEN POST SEARCH ON 13-03-2008. THE CONTENTION OF THE RE VENUE THAT THE SALES ARE RECORDED IN THE SAME SEIZED DOCUMENT PAGE 18 AND BA CK OF PAGE 18 OF ANNEXURE A 3 BASED ON WHICH ADDITIONS WERE MADE IN THE ASSESSMENT YEAR 2007-08 AND NOW THE ADDITIONS ARE MADE WITH RESPECT TO UNSOLD STOCK OF THE EARLIER YEARS FOUND RECORDED IN THE SAID SEIZED DOC UMENT A-3/PAGE 18 ALONG WITH BACK OF PAGE 18 WHICH HAS NOW BEEN SOLD IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2009-10 , MAY LOOK TEMPTING AT THE FIRST BLUSH BUT THE FACT OF THE MATTER IS THAT THIS PERIOD IS POST SEAR CH PERIOD WHEREBY PREVIOUS YEAR COMMENCED ON 01-04-2008 AND ENDED ON 31-03-200 9 AND THE SEARCH TOOK PLACE ON 13-03-2008 I.E. PRIOR TO COMMENCEMENT OF PREVIOUS YEAR , NO FRESH TANGIBLE INCRIMINATING MATERIAL IS BROUGHT ON RECORD BY THE REVENUE TO ENABLE US TO ARRIVE AT CONCLUSION THAT CONTUMACIOU S CONDUCT OF THE ASSESSEE WHICH EXISTED PRIOR TO DATE OF SEARCH ON 13-03-2008 EVEN CONTINUED AFTER THE DATE OF SEARCH ALSO TO SUSTAIN THE ADDITION AS MADE BY THE REVENUE , AS THE CONDUCT OF THE ASSESSEE PRIOR TO THE SEARCH WHICH I S REFLECTED IN THE SEIZED MATERIALS AND STATEMENTS RECORDED ON THE DATE OF SE ARCH CANNOT BE HELD TO BE ALSO CONTINUING IN THE POST SEARCH PERIOD UNLESS T HERE IS TANGIBLE AND CLINCHING INCRIMINATING EVIDENCE BROUGHT ON RECORD BY THE REVENUE TO PROVE CONTINUATION OF CONTUMACIOUS CONDUCT OF THE ASSESSE E EVEN DURING THE POST SEARCH PERIOD .HENCE BASED ON OUR ABOVE REASONING AND DISCUSSIONS, WE ITA 76/MUM/2012, ITA NO. 77/MUM/2012 & ITA NO. 7421/MUM/2012 42 ORDER DELETION OF THE ADDITION OF RS.1,18,500/-MADE BY THE AO AND AS SUSTAINED BY LEARNED CIT(A). THE APPEAL OF THE ASSE SSEE IS , THEREFORE, ALLOWED. WE ORDER ACCORDINGLY. 23. IN THE RESULT, THE APPEALS FILED BY THE ASSESSE E IN ITA N0. 76/MUM/2012 FOR THE ASSESSMENT YEAR 2007-08 IS DISM ISSED, WHILE APPEAL FILED BY THE ASSESSEE IN ITA NO 77/MUM/2012 FOR THE ASSESSMENT YEAR 2008- 09 IS PARTLY ALLOWED AND THE APPEAL OF THE ASSESSEE IN ITA NO. 7421/MUM/2012 FOR THE ASSESSMENT YEAR 2009-10 IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND AUGUST, 2016. # $% &' .. ( ) SD/- SD/- (SAKTIJIT DEY) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 22-08-2016 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI D BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI