DCIT, Jaipur V. RENU AGARWAL, Jaipur

ITA 763/JPR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4864 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 29-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NASIR ALI
• Keywords: Revised return
• Section: 80IB; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES , JAIPUR JH HKKXPUN] YS[KK LNL; ,O JH DQY HKKJR] U;KF;D L NL; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHAR AT, JM VK;DJ VIHY LA-@ ITA NO. 763/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 THE DCIT CENTRAL CIRCLE- 3 JAIPUR CUKE VS. SMT. RENU AGARWAL 25, DAYAL NAGAR GOPALPURA BYEPASS, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AAOPA 6576 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY :SHRI NASIR ALI, CIT -DR FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI VIJAY GOYAL LQUOKBZ DH RKJH[K@ DATE OF HEARING : 15/12/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 20/12/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDER OF LD. CIT(A) -4, JAIPUR DATED 31.08.2015 FOR THE ASSESSMENT YEAR 201 1-12 RAISING THEREIN FOLLOWING GROUND OF APPEAL:- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS RIGHT IN DELETING THE PENAL TY OF RS. 1,06,80,000/- LEVIED BY THE AO U/S 271AAA OF THE I. T. ACT, 1961 WITHOUT APPRECIATING THE FACT THAT THE ASSESSE E WILLFULLY CONCEALED THE PARTICULARS OF INCOME AND DOCUMENTS FOUND DURING THE COURSE OF SEARCH DEMONSTRATE THE UNDISCL OSED INCOME USED FOR MAKING UNDISCLOSED INVESTMENT AND EXPENDITURE. ITA NO. 763/JP/2015 THE DCIT, CENTRAL CIRCLE- 3, JAIPUR VS. SMT. RENU AGARWAL, JAIPUR . 2 2.1 THE FACTS OF THE ISSUE AS EMERGES FROM THE ORDE R OF THE LD. CIT(A) IS AS UNDER:- 3.1.3 I HAVE DULY CONSIDERED ASSESSEES SUBMISSION AND CAREFULLY GONE THROUGH PENALTY ORDER PASSED BY THE AO. I HAVE ALSO PERUSED THE FACTS OF THE CASE. ON PERUSAL OF SUBMISSION MADE AND ASSESSM ENT ORDER PASSED BY THE AO, FOLLOWING THINGS HAVE BEEN NOTICED. (I) NO INCRIMINATING DOCUMENT WHATSOEVER INDICATING CAS H RECEIVED FROM GURU PRAGYAON ACCOUNT OF LAND TRANS ACTION. WHATEVER AMOUNT RECEIVED FROM GURU PRAGYA WAS FOUND RECORD ED IN THE BOOKS FOUND DURING THE COURSE OF SEARCH. ACCORDINGLY, THERE IS NO ALLEGATION OF RECEIPT OF ON MONEY BY THE ASSESSEE FOUND DURING THE SEARCH OP ERATION. COST OF LAND WAS DULY DISCLOSED IN THE REGULAR BOOKS OF ACCOUNTS FOU ND BY SEARCH PARTY. (II) CHEQUES AS CONSIDERATION RECEIVED FROM GURU PR AGYA SHOWN IN THE REGULAR BOOKS OF ACCOUNTS. (III) SEIZED DOCUMENT IDENTIFIED AS AS-1 PG 4 IS PL ACED AT PAGE 7 OF THE PAPER BOOK. NOTINGS/TRANSACTIONS RECORDED ARE T HEREIN WHICH IS MENTIONED AT PAGE 22 OF LD. CIT(A)S ORDER. THIS SEIZED DOCUMENT SHOWS TOTAL RECEIPT OF RS.6.01 CR. UPTO 15 TH SEP 2010. ASSESSEE HAS SUBMITTED A LEDGER ACCOUNT (PB P G 48-50) WHICH SHOWS RECEIPT OF RS.6.01 CR. UPTO 12/04/2010. ACCORDINGLY , THERE CANNOT BE UNDISCLOSED RECEIPTS. ON PLAIN READING OF THE AFORE MENTIONED DOCUMENT, IT IS ALSO SEEN THAT TRANSACTION PERTAINS TO JV WITH GURU PRAGYA. TOTAL CONSIDERATIONS ESTIMATED WAS RS.9.86 CR. (APPROXIMA TE) AGAINST WHICH THE ASSESSEE HAS SHOWN SALES ON PERCENTAGE COMPLETION M ETHOD OF RS.4,72,96,492/= IN AY 2011-12 AND RS.3,83,95,882/= IN AY 2012-13, TOTALLING TO RS.8,56,92,374/=. SINCE, THE SALE OF T HE PROJECT WAS NOT COMPLETED UPTO 31/03/2012, THEREFORE, THE ASSESSEE HAS ALSO N OT BOOKED ENTIRE COST OF THE LAND AGAINST THE PROJECT AND CLOSING STOCK OF THE L AND AMOUNTING TO RS.7,40,180/= SHOWN IN BALANCE SHEET AS ON 31/03/20 12. THIS FACT WAS ALSO DISCLOSED BEFORE THE AO VIDE LETTER(PARA D INTERNAL PAGE 4 OF THE LETTER) DT. 09/9/2013 (REFERENCE: PB PG 184-191). THIS INDICATE THAT THERE IS NO DOCUMENTARY EVIDENCE OF UNDISCLOSED INCOME FOUND DU RING THE SEARCH OPERATION AND TRANSACTIONS RECORDED IN THE SAID SEI ZED DOCUMENT IDENTIFIED AS AS-1 PG 4 ARE DULY MATCHING WITH THE REGULAR BOOKS OF ACCOUNT FOR THE YEAR. ITA NO. 763/JP/2015 THE DCIT, CENTRAL CIRCLE- 3, JAIPUR VS. SMT. RENU AGARWAL, JAIPUR . 3 THE ONLY DISPUTE IN THIS CASE IS OF ACCOUNTING TREA TMENT OF THE TRANSACTION OF THE JV VS SALE OF LAND. THE AO TREAT ED THE TRANSACTION AS SALE OF LAND WHEREAS THE ASSESSEE TREATED THE SAME AS DEVEL OPMENT AGREEMENT/JV. ASSESSEE TREATED THIS TRANSACTION AS A JV/DEVELOPME NT AGREEMENT ON THE BASIS OF REGISTERED DEVELOPMENT AGREEMENT WHICH WAS DULY ACCEPTED BY THE STAMP DUTY AUTHORITIES / JDA AND OTHER GOVT. DEPT. AOS O BSERVATION IS PURELY BASED ON CERTAIN TERMS AND CONDITIONS MENTIONED IN THE DEVELOPMENT AGREEMENT SUCH AS ADVANCE MONEY RECEIVED, RATE @ RS .1000/- PER SQ FT, FIXED TIME LIMIT FOR COMPLETION OF THE PROJECT, PROFIT SH AREABLE IN THE RATIO OF 21:79 WITH GURU PRAGYA ETC. IN THIS REGARD, AO HAS MERELY RAISED HIS DOUBT WITHOUT ANY BASIS OR DOCUMENTARY EVIDENCES FOUND RUING THE SEARCH OPERATION. IT IS PERTINENT TO MENTION HERE THAT AR HAS EXPLAINED ALL THE OBJECTIONS RAISED BY THE AO ON THE TERMS AND CONDITIONS MENTIONED IN THE DEVELOPMENT AGREEMENT VIDE LETTER DT. 9 TH SEP 2013 [PARA (E) INTERNAL PG 5 TO 7] (REF PB PG 184 TO 191). ON PERUSAL OF THE PENALTY ORDER, IT IS ALSO S EEN THAT AO HAS NOT CONTROVERTED ALL THESE FACTS. IT IS ALSO SEEN THAT ADVANCE MONEY RECEIVED WAS TOWARDS REFUNDABLE SECURITY AGAINST THE DEVELOPMENT AGREEMENT. IT IS A NORMAL PRACTICE ADOPTED BY ANY PRUDENT BUSINESS MAN TO PRO TECT HIS/HER INTEREST. IT IS ALSO A FACT THAT ASSESSEE HAS GIVEN POSSESSION TO G URU PRAGYA FOR CONSTRUCTION ONLY, NOT FOR SALE OF LAND AS IT IS. AR HAS ALSO SU BMITTED BEFORE THE AO AND APPELLATE PROCEEDING THAT EVEN THE SALE DEED WITH A LLOTEE/FLAT OWNER WILL BE JOINTLY EXECUTED BY THE DEVELOPER AND THE LAND OWNE R I.E., THE ASSESSEE. ALL THESE PROVE THE CONTENTION OF THE ASSESSEE WITH REG ARD TO JV / DEVELOPMENT AGREEMENT WITH GURU PRAGYA ARE BONAFIDE. (IV) IT IS ALSO A FACT THAT ISSUE OF 80 IB CLAIM IN CASE OF GURU PRAGYA IN AY 2010-11 HAS BEEN ALLOWED BY CIT(APPEALS)-1 JA IPUR VIDE ORDER DATED 24/02/2015 (ITA NO.25/13-14). (V) AO HAS REFERRED THE STATEMENT OF SH. ASHOK AGRA WAL AT PG 23 TO 24 IN THE IMPUGNED PENALTY ORDER. ON PLAIN READING OF THE SWORN STATEMENT RECORDED ON OATH OF SH. ASHOK AGRAWAL, IT IS SEEN THAT SH. ASHOK AGRAWAL HAS ADMITTED UNDISCLOSED SALE ON THE GROUND THAT THE AM OUNT RECEIVED FROM DEVELOPER HAS SHOWN ADVANCE IN BOOKS OF ACCOUNTS AN D SALE HAS NOT BEEN RECORDED IN THE BOOKS FOUND AT THE TIME OF SEARCH. IN THIS REGARD, AR EXPLAINED THAT THE ASSESSEE IS FOLLOWING PERCENTAGE COMPLETIO N METHOD, THEREFORE, SALE COULD BE RECRODED ONLY AT CLOSURE OF ACCOUNTING YEA R AFTER RECEIPT OF CERTIFICATE FROM THE DEVELOPER. ASSESSEE HAS SUBMIT TED COPIES OF CERTIFICATES OF SHARE IN SALE MADE IN HOUSING PROJECT ISSUED BY GUR U PRAGYA WHICH IS PLACED AT PB PG 95-96. THE CERTIFICATE FOR FY 2010-11 IS D ATED 24/9/2011, THEREFORE, THE ASSESSEE COULD NOT KNOW WHAT WILL BE SALE FIGUR E AS ON THE DATE OF SEARCH. WHETHER A PARTICULAR TRANSACTION IS DISCLOSED OR UN DISCLOSED THIS SHOULD BE ITA NO. 763/JP/2015 THE DCIT, CENTRAL CIRCLE- 3, JAIPUR VS. SMT. RENU AGARWAL, JAIPUR . 4 ANALYZED WITH REFERENCE TO DATE OF SEARCH. AS ON TH E DATE OF SEARCH, THE FACT IS THAT AMOUNT RECEIVED AGAINST SALE AS WELL AS COST W AS DULY RECORDED IN THE BOOKS FOUND BY THE SEARCH TEAM. THE ACCOUNTING TREA TMENT OF THE LAND AS JV WAS GIVEN AFTER THE SEARCH I.E. AT THE TIME OF FILI NG OF THE RETURN AND ON THE BASIS OF EXPERTS ADVICE (AUDITORS), THE SAID TRANS ACTIONS HAVE NOT BEEN TREATED AS SALE OF LAND AND AUDITORS HAVE NOT QUALIFIED THE TAX AUDIT REPORT. THEREFORE, ASSESSEE ACTED ON EXPERTS ADVICE AND GIVEN THE ACC OUNTING TREATMENT OF THE LAND ACCORDINGLY. (VI) AO HAS MENTIONED THAT ASSESSEE HAS NOT PREFERR ED ANY APPEAL AGAINST THE IMPUGNED ASSESSMENT ORDER WHICH CLEARLY SHOWS THAT ASSESSEE HAS ACCEPTED THE CONTENTION OF THE AO IN RESPECT OF THE ADDITIONS MADE. IN THIS REGARD, AR HAS MENTIONED THAT NOT FILING OF THE APP EAL CANNOT BE A GROUND FOR LEVY OF PENALTY, BY RELYING ON THE DECISION OF HON BLE JURISDICTIONAL HIGH COURT IN CASE OF JAWAHAR KALA (SUPRA). (VII) EVEN OTHERWISE ALSO, THE ASSESSEE IS COVERED BY SUB CLAUSE 2 OF SEC 271AAA OF THE ACT. IN THE STATEMENT RECORDED U/ S 132(4) OF THE ACT, ASSESSEE HAS ADMITTED THE INCOME AND STATED THE MAN NER IN WHICH INCOME DERIVED AND DECLARED THE SAME IN HER ROI FILED AFTE R SEARCH AND PAID TAXES THEREOF. IN VIEW OF FACTS AND CIRCUMSTANCES OF THE CASE AS M ENTIONED ABOVE, LEVY OF PENALTY OF RS.1,06,08,000/= U/S 271AAA OF T HE ACT CANNOT BE SUSTAINED, HENCE DELETED. 2.2 DURING THE COURSE OF HEARING, THE LD. DR RELIED ON THE ORDER OF THE AO. 2.3 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE SUPPORTED THE ORDER OF THE LD. CIT(A) AND FILED THE WRITTEN S UBMISSION WHICH HAS BEEN TAKEN INTO CONSIDERATION WHILE ADJUDICATING UP ON THE ISSUE IN QUESTION. 2.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. A SEARCH WAS CONDUCTED ON 22-0 9-2010 IN THE CASE OF ITA NO. 763/JP/2015 THE DCIT, CENTRAL CIRCLE- 3, JAIPUR VS. SMT. RENU AGARWAL, JAIPUR . 5 SHREE RAM GROUP, JAIPUR TO WHICH THE ASSESSEE BELON GS . THE ASSESSEE IS AN INDIVIDUAL AND SHE DERIVES INCOME FROM REAL ESTA TE BUSINESS, AND CAPITAL GAIN. THE ASSESSEE PURCHASED AGRICULTURAL L AND AND GOT IT CONVERTED INTO RESIDENTIAL AND COMMERCIAL PLOT AFTE R GETTING THE SAME APPROVED FROM JDA (I.E. JAIPUR DEVELOPMENT AUTHORIT Y). THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME AT RS . 7,11,74,000/-/- ON 27- 09-2011 U/S 139(1) (COPY AT PB PAGE 8-12). IN ORIGI NAL RETURN FILED U/S 139(1), SHE CLAIMED DEDUCTION OF RS. 4,58,25,167/- U/S 80IB(10) AGAINST THE JOINT VENTURE HOUSING PROJECT WITH GURU PRAGYA INFRASTRUCTURE PVT LTD. IN SUPPORT OF THIS CLAIM, THE ASSESSEE FILED CERTIF ICATE OF CA IN FORM NO 10CCB (COPY AT PB PAGE 36-42) . HOWEVER, WHEN IT CAME TO THE KNOWLEDGE OF THE ASSESSEE THAT THE CLAIM OF DEDUCTI ON U/S 80IB(10) WOULD ATTRACT THE PROLONGED LITIGATION WITH DEPARTMENT, S HE CHOOSE THE PATH OF PEACE AND IN ORDER TO AVOID THE LITIGATION, SHE WIT HDREW THE CLAIM OF DEDUCTION U/S 80IB BY FILING REVISED RETURN U/S 139 (5) OF INCOME TAX ACT WITHIN THE TIME ALLOWED BY THE LAW. THE REVISED RET URN OF INCOME WAS FILED ON 26-03-2013 DECLARING TOTAL INCOME AT RS. 1 1,69,99,170/- (COPY AT PB PAGE 43-47) AND DUE TAXES WERE PAID THEREON ALONG WITH THE REVISED RETURN. THE BASIC DISPUTE IS OVER A HOUSING PROJECT IN JOINT VENTURE WITH M/S GURU PRAGYA INFRASTRUCTURE PVT LTD. THE IS SUE IS WHETHER THE ITA NO. 763/JP/2015 THE DCIT, CENTRAL CIRCLE- 3, JAIPUR VS. SMT. RENU AGARWAL, JAIPUR . 6 TRANSACTION IS A JOINT VENTURE HOUSING PROJECT OR P URE SALE OF THE LAND IN THE HANDS OF ASSESSEE. DURING THE COURSE OF SEARCH A DOCUMENT PAGE 4 EXHIBIT 1 OF ANNEXURE AS-01 ( COPY AT PB PAGE 7) WAS FOUND WHICH IS AIDE MEMOIRE A ROUGH NOTING OF JOINT VENTURE TRANSACTION WITH M/S GURUPRAGYA REAL MART PVT LTD (NOW M/S GURU PRAGYA I NFRASTRUCTURE PVT LTD) (IN SHORT M/S GURUPRAGYA) SHOWING ESTIMATED AMOUNT OF CONSIDERATION OF RS. 9.86 CRORES OUT OF WHICH AN AM OUNT OF RS. 6.01 CRORE WAS RECEIVED TILL 15.09.2010 AND THE REMAINING AMOU NT OF RS. 3.85 CRORES WAS OUTSTANDING. IN THE REGULAR BOOKS OF ACCOUNT SE IZED BY THE DEPARTMENT, THE AMOUNT RECEIVED FROM M/S GURUPRAGYA WAS SHOWN AS ADVANCE RECEIVED ( COPY OF LEDGER A/C AT PB PAGE 48-50 ). IT IS UNDISPUTED FACT THAT THE ASSESSEE HAS NOT RECEIVED ANY UNACCOUNTED MONEY OR CASH FROM M/S GURUPRAGYA WHATEVER THE A MOUNT WAS PAID BY M/S GURUPRAGYA WAS FOUND RECORDED IN THE BOOKS O F ACCOUNT OF THE ASSESSEE WHICH WERE FOUND AS THE RESULT OF SEARCH. DURING THE COURSE OF SEARCH THE STATEMENT OF SHRI ASHOK AGARWAL DATED 12 .10.2010, (HUSBAND OF ASSESSEE) AND ASSESSEE WERE RECORDED U/S 132(4) (COPY AT PB PAGE 51- 61) . THE STATEMENT OF SHRI ASHOK AGARWAL, HUSBAND OF THE ASSESSEE ADMITTED THE INCOME FROM JOINT VENTURE TRANSACTION WITH GURUPRAGYA. IN HIS STATEMENT HE SAID THAT THE LAND WAS SOLD THROUG H JV TO M/S. GURU REAL ITA NO. 763/JP/2015 THE DCIT, CENTRAL CIRCLE- 3, JAIPUR VS. SMT. RENU AGARWAL, JAIPUR . 7 PRAGYA MART PVT. LTD. FOR TOTAL SALE CONSIDERATION OF RS.9.86 CRORE AND OUT OF WHICH RS.6.01 CRORE WAS RECEIVED AND THE REMAINI NG AMOUNT OF RS.3.85 CRORE WAS OUTSTANDING. SMT RENU AGARWAL ALSO SIGNED THIS STATEMENT. THE MANNER IN WHICH THE UNDISCLOSED INCOME DERIVED WAS ALSO EXPLAINED. THE ASSESSEE HAD SPELLED OUT IN DETAIL THE NATURE O F THE TRANSACTION. THE ASSESSEE HAD STATED THAT THE AMOUNT IS SHOWN AS ADV ANCE IN THE BOOKS OF ACCOUNT. THE SAID INCOME WAS FULLY RECORDED IN THE BOOKS OF ACCOUNT FOUND AT THE TIME OF SEARCH. THE ASSESSEE WAS ACTIN G ON THE BASIS OF TERMS OF DEVELOPMENT AGREEMENT (COPY AT PB PAGE 62-94) AND FOLLOWING THE PERCENTAGE COMPLETION METHOD FOR THIS PROJECT. THE SALE WAS RECORDED ON THE BASIS OF THE FIGURES OF SALES INTIMATED BY T HE DEVELOPER. THE DEVELOPER M/S GURUPRAGYA REAL MART PVT LTD (GURUPRA GYA INFRA LTD) INTIMATED THE ASSESSEES SHARE IN SALES I.E. 3,35,7 62 SQ FT AREA AMOUNTING TO RS. 4,72,96,492/- ON 31.03.2011 (CERTIFICATE OF GURU PRAGYA AT PB PAGE 95-96) , THEREFORE, CORRESPONDING JOURNAL ENTRY WAS PASSED AT THE END OF THE YEAR DEBITING THE A/C OF DEVELOPER AND CREDI TING THE ACCOUNT OF SALES GURU SHIKHAR A-G PROJECT. IN THE RETURN OF INCOME, THE ASSESSEE SHOWED PROFIT OF RS.4,58,25,167/- OF AY 20 11-12 AND PROFIT OF RS. 3,72,01,442/- OF AY 2012-13 FROM THIS TRANSACTI ON AND ALSO CLAIMED DEDUCTION U/S 80IB. THE ASSESSEE VIDE LETTER DATED 23.01.2013 (COPY AT ITA NO. 763/JP/2015 THE DCIT, CENTRAL CIRCLE- 3, JAIPUR VS. SMT. RENU AGARWAL, JAIPUR . 8 PB PAGE 119-125A) CLARIFIED THAT THE TRANSACTION HAS BEEN TREATED IN BOOKS AS UNDER:- (I) A.Y. 2011-12: ON THE BASIS OF PERCENTAGE COMPLE TION METHOD OF ACCOUNTING FOLLOWED FOR THE PURPOSE OF JOINT VENTURE, A SUM OF RS.4,72,96,492/- ON A/C OF SALE AND INTEREST OF RS.67,55,287/- WAS CREDITED. COST O F LAND WAS TAKEN AT RS.14,71,325/- AND THUS A PROFIT OF RS.4,58,25,167/- WAS DECLARED FROM JOINT VENTURE. (II) IN A.Y. 2012-13, THE SALE BOOKED AS PER PERCEN TAGE COMPLETION METHOD WAS RS.3,83,95,882/- AND AFTER CONSIDERING THE COST OF LAND OF RS.11,94,440/-, A P ROFIT OF RS.3,72,01,442/- WAS SHOWN. IN ORIGINAL RETURN FILED U/S 139(1) THE DEDUCTION U /S 80IB(10) WAS CLAIMED (COPY AT PB PAGE 8-12) , WHICH WAS WITHDRAWN BY FILING REVISED RETURN U/S 139 (5) OF INCOME TAX ACT (COPY AT PB PAGE 43-47) WITHIN THE STIPULATED TIME. THE DUE TAX TOGETHER WITH INTEREST IN RESPECT OF SUCH INCOME HAS BEEN PAID. IN THE ASSESSMENT PROCEEDING S THE AO HELD THAT THE TRANSACTION OF ASSESSEE WITH M/S GURUPRAGYA IS NOT OF JOINT VENTURE HOUSING PROJECT TRANSACTION BUT PURE SALE OF LAND AND ASSES SED THE PROFIT FROM LAND AT RS. 10,06,80,000/- OF AY 2011-12 (COPY OF ORDER AT PB PAGE 156-182) AS AGAINST THE PROFIT OF RS. 4,72,96,492/- AND RS. 3,83,95,882/- DECLARED BY THE ASSESSEE IN THE RETURNS FOR THE YEAR ENDED O N 31.03.2011 AND 31.03.2012 RESPECTIVELY. THE AO IN THE ASSESSMENT O RDER RELIED ON THE STATEMENT ON OATH OF SH. ASHOK AGARWAL (COPY AT PB PAGE 51-61) AND ITA NO. 763/JP/2015 THE DCIT, CENTRAL CIRCLE- 3, JAIPUR VS. SMT. RENU AGARWAL, JAIPUR . 9 ALSO REFERRING TO VARIOUS CLAUSES IN JOINT AGREEMEN T DATED 19.03.2008 (COPY AT PB PAGE 62-94) CONCLUDED THAT JOINT VENTURE AGREEMENT IS NOTHING BUT SALE OF LAND FOR A FIXED CONSIDERATION. TOTAL SALABLE AREA IS 5,21,361 SQ.FEET AND CONSIDERING THE SALE CONSIDERA TION OF RS.@210 PER SQ.FEET RELATABLE TO ASSESSEE, THE TOTAL CONSIDERAT ION IS RS.10,94,85,810/- COST OF LAND IS RS.26,65,765 AND THUS PROFIT ON SAL E OF LAND CAME TO RS.10,60,80,000. THE ASSESSEE HAS SHOWN PROFIT OF R S.4,58,25,167 OF AY 2011-12 AND PROFIT OF RS. 3,72,01,442/- OF AY 2012- 13 AND UNSOLD PORTION SHOWN AS STOCK . THE AO REJECTED THE SUBMI SSION OF THE ASSESSEE BECAUSE OF MAINLY FOLLOWING REASONS: - (A) CONSIDERATION FOR SALE OF LAND WAS STATED AT RS .9.86 CRORES WHILE UNDISCLOSED INCOME IS DETERMINED AT IS RS.10,60,80,000/-. (B) IN STATEMENT, IT IS STATED THAT LAND WAS SOLD W HILE IN RETURN, THE PROFIT SHOWN FROM SALE OF PROJECT THROU GH JOINT VENTURE. (C) UNDISCLOSED INCOME WAS NOT RECORDED IN THE BOOK S OF ACCOUNT FOUND DURING SEARCH. (D) THE ASSESSEE HAS NOT PAID TAX TOGETHER WITH INT EREST IN RESPECT OF UNDISCLOSED INCOME OF RS.10,60,80,000. (E) SINCE THE ASSESSEE HAS NOT FILED APPEAL AND HEN CE THE ISSUE IS NOT DEBATABLE. THE AO TREATED THE AMOUNT OF RS. 10,06,80,000/- AS UNDISCLOSED INCOME OF THE ASSESSEE AND INITIATED PENALTY PROCEEDINGS U /S 271AAA OF INCOME TAX ACT. THE ASSESSEE FILED DETAILED EXPLANATION OB JECTING THE LEVY OF PENALTY (COPY AT PB PAGE 184-191) WHICH WAS REJECTED BY THE AO IN ITA NO. 763/JP/2015 THE DCIT, CENTRAL CIRCLE- 3, JAIPUR VS. SMT. RENU AGARWAL, JAIPUR . 10 SUMMARY MANNER. THE AO LEVIED THE PENALTY OF RS.1, 06.08,000/- ON RS. 10,60,80,000/- U/S 271AAA TREATING THE AMOUNT OF RS .10,06,80,000/- AS UNDISCLOSED BY PASSING AN ORDER ON 30/09/2013. THE AO ALSO LEVIED PENALTY U/S 271(1)(C) OF INCOME TAX ACT ON RS. 4,58,25,167/ - BY PASSING AN SEPARATE ORDER ON ACCOUNT OF DEDUCTION CLAIMED UNDE R 80IB FOR THE JV PROJECT. THUS THE PENALTY ON AMOUNT OF RS.4,58,25,1 67/- WAS IMPOSED U/S 271AAA OF INCOME TAX ACT, 1961 AS WELL AS U/S 271(1 )(C) OF INCOME TAX ACT, 1961. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) WHO HAD DELETED THE PENALTY OF RS.1,06,80,000/- LEVIED BY T HE AO U/S 271AAA OF THE I.T. ACT, 1961. IT IS NOTED THAT THE LD. CIT(A) THAT THERE WAS NO INCRIMINATING DOCUMENTS AS TO CASH RECEIVED FROM GURU PRAGYA ON ACCOUNT OF LAND TRANSACTION AND THE AMOUNT SO RECEI VED DURING SEARCH WAS FOUND RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSES SEE. THE ONLY DISPUTE IN THIS CASE IS ACCOUNTING TREATMENT OF THE TRANSACTIO N OF THE JV VS SALE OF LAND WHEREAS THE ASSESSEE TREATED THE SAME AS DEVELOPMEN T AGREEMENT / JV. THE ASSESSEE TREATED THIS TRANSACTION AS A JV/ DEVELOPM ENT AGREEMENT ON THE BASIS OF REGISTERED DEVELOPMENT AGREEMENT WHICH WAS DULY ACCEPTED BY THE STAMP DUTY AUTHORITIES/ JDA AND OTHER GOVT. DEPTT. THE AO TREATED IT SALES OF THE LAND BY INTERPRETING THE CERTAIN CLAUS ES OF DEVELOPMENT AGREEMENT. DURING THE ASSESSMENT STAGE, NO SHOW CAU SE NOTICE WAS GIVEN ITA NO. 763/JP/2015 THE DCIT, CENTRAL CIRCLE- 3, JAIPUR VS. SMT. RENU AGARWAL, JAIPUR . 11 TO THE ASSESSEE. HOWEVER, AT THE PENALTY PROCEEDING STAGE, THE ASSESSEE SUBMITTED POINT TO POINT EXPLANATION OVER THE CLAUS ES OF THE DEVELOPMENT AGREEMENT WHICH HAD NOT BEEN CONTROVERTED BY THE AO IN PENALTY ORDER. THEREFORE, THE ASSESSEES TREATMENT AS TO LAND TRAN SACTION AS JOINT VENTURE / DEVELOPMENT AGREEMENT WAS BONA FIDE. THE DEVELOPMEN T AGREEMENT IS DATED 19-03-2008. THEREFORE, IT IS NOT UNDERSTANDAB LE ON WHAT BASIS IT CAN BE TREATED AS SALES FOR A.Y.2011-12. LOOKING INTO A LL THE FACTS AND CIRCUMSTANCES OF THE CASE, WE CONCUR WITH THE FINDI NGS OF THE LD. CIT(A) ON THE ISSUE IN QUESTION. THUS THE APPEAL FILED BY THE REVENUE IS DISMISSED. 3.0 IN THE RESULT, THE APPEAL OF THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 -12-2 016. SD/- SD/- DQY HKKJR HKKXPUN (KUL BHARAT) ( BHAGCHAND) U;KF;D LNL; / JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 20/12/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE DCIT,CENTRAL CIRCLE- 3 JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- SMT. RENU AGARWAL, JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 763/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR