Asst. CIT, Central Circle-1, Nashik V. M/s. Ganesh Builders, Nashik

ITA 834/PUN/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9551 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 21-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 10-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SANKET S BORA
• Keywords: Unexplained investment; Unexplained expenditure; Business income; Business expenditure; Income from undisclosed sources; Document seized; Question of law; Corroborative evidences; Documents seized
• Section: 40A(3); 143(3); 153A; 132; 10; 2; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI M.K.AGGARWAL, AM . / ITA NO S . 1543 TO 1549 /P U N/20 13 / ASSESSMENT YEAR S : 2004 - 05 TO 2010 - 11 THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 1, NASHIK. . / APPELLANT VS. M/S. GAJANAN BUILDERS, 6 VINAYAKA BUNGALOW, OM NAGAR COLONY, HIRAWADI ROAD, ADGAON NAKA, PANCHAVATI, NASHIK 422 005. PAN: AABFG2386G . / RESPONDENT . / ITA NO S . 834 TO 836 /P U N/20 13 / ASSESSMENT YEAR S : 2008 - 09 TO 2010 - 11 THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 1, NASHIK. . / APPELLANT VS. M/S. GANESH BUILDERS, 6 VINAYAKA, OM NAGAR COLONY, ADGAON NAKA,PANCHAVATI, NASHIK 422 003. PAN: AAHFG1908J . / RESPONDENT ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 2 . / ITA NO S . 839 & 840 /P U N/20 13 / ASSESSMENT YEAR S : 2009 - 10 & 2010 - 11 THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 1, NASHIK. . / APPELLANT VS. SHRI PRAMOD TULSIDAS SOMAIYA 6 VINAYAKA, OM NAGAR COLONY, ADGAON NAKA,PANCHAVATI, NASHIK 422 003. PAN: AMCPS2655R . / RESPONDENT / APPELLANT BY : SHRI SUHAS KULKARNI / RESPONDENT BY : S/SHRI SUHAS P. BORA & SANKET S BORA / DATE OF HEARING : 21 . 03 .201 7 / DATE OF PRONOUNCEMENT: 01 .0 5 .201 7 / ORDER PER SUSHMA CHOWLA, JM: OUT OF THIS BUNCH OF APPEALS RELATING TO THREE CONNECTED ASSESSEE, THE FIRST BUNCH OF APPEAL S FILED BY THE REVENUE IN THE CASE OF M/S. GAJANAN BUILDERS ARE AGAINST CONSOLIDATED ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - I, NASHIK DATED 16.05.2013 RELATING TO ASSESSMENT YEARS 2004 - 05 TO 2010 - 11 AGAINST THE RESPECTIVE ORDERS PASSED UNDER SECTION 143(3) R.W.S. 153C OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THE SECOND BUNCH OF APPEALS FILED BY ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 3 THE REVENUE IN THE CASE OF M/S. GANESH BUILDERS ARE AGAINST RESPECTIVE ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS) - I, NASHIK DATED 23.01.2013 RELA TING TO ASSESSMENT YEARS 2008 - 09 TO 2010 - 11 AGAINST RESPECTIVE ORDERS PASSED UNDER SECTION 143(3) R.W.S. 153C OF THE ACT. FURTHER, TWO APPEALS FILED BY THE REVENUE IN THE CASE OF SHRI PRAMOD TULSIDAS SOMAIYA ARE AGAINST RESPECTIVE ORDERS OF COMMISSIONER O F INCOME TAX (APPEALS) - I, NASHIK DATED 23.01.2013 RELATING TO ASSESSMENT YEARS 2009 - 10 & 2010 - 11 AGAINST SEPARATE ORDERS PASSED UNDER SECTION 143(3) R.W.S. 153A OF THE ACT. 2. THIS BUNCH OF APPEALS RELATING TO THE DIFFERENT ASSESSEE WERE HEARD TOGETHER AN D ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NOS.1543 TO 1549/PUN/2013, RELATING TO ASSESSMENT YEARS 2004 - 05 TO 2010 - 11 M/S. GAJANAN BUILDERS 3. FIRST, WE TAKE UP THE APPEALS IN THE CASE OF M/S. GAJANAN BUILDERS. R EFERENCE IS BEING MADE TO THE FACTS AND ISSUE RAISED IN ASSESSMENT YEAR 2004 - 05 TO ADJUDICATE THE ISSUE. 4 . THE REVENUE HAS RAISED COMMON ISSUES IN ALL THE YEARS UNDER APPEAL. THE ISSUE RAISED IN ASSESSMENT YEAR 2004 - 05 READS AS UNDER: 1 . WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) - I, NASHIK WAS JUSTIFIED IN HOLDING THAT UNACCOUNTED RECEIPTS ARE NOT TAXABLE BUT GROSS PROFIT @18% ON THESE RECEIPTS IS TAXABLE. 2 . WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) - I, NASHIK WAS JUSTIFIED IN HOLDING THAT GROSS PROFIT @18% ON UNACCOUNTED RECEIPTS IS TAXABLE WHEN IT IS PROVED THAT RECEIPTS ARE UNACCOUNTED, AS PER SEIZED MATERIAL AND SUBMISSION FILED BY THE ASSESSEE. ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 4 3 . THE APPELLANT PRAYS THE ORDER OF THE ASSESSING OFFICER MAY BE RESORTED. 4 . THE APPELLANT PRAYS TO ADDUCE SUCH FURTHER EVIDENCE TO SUBSTANTIATE HIS CASE. 5 . THE REVENUE HAS ALSO FILED ADDITIONAL GROUND OF APPEAL IN ASSESSMENT YEAR 2004 - 05 TO 2010 - 11 WHICH ARE IDENTICAL. THE ADDITIONAL GROUND OF APPEAL RAISED IN ASSESSMENT YEAR 2004 - 05 READS AS UNDER: 1 ) ON THE FACTS & CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) HAS ERRED IN ALLOWING THE ADDITION OF RS.62,410/ - U/S 40A(3) OF THE ACT WITHOUT APPRECIATING THE FACTS INVOLVED IN THE CAS E. 6 . FURTHER, THE REVENUE HAS RAISED THE FOLLOWING ADDITIONAL GROUNDS OF APPEAL IN ASSESSMENT YEAR 2007 - 08 WHICH READ AS UNDER : 3) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) - I, NASHIK WAS JUSTIFIED IN DELETING ADDITION OF UNACCOUNTED RECEIPT OF RS.8,91,000/ - , AS INCOME FROM UNDISCLOSED SOURCES, WHEN IT IS PROVED FROM THE SEIZED DOCUMENTS. 4) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) I, NASHIK WAS JUSTIFIED IN HOLDING THAT THE ENTRY 9000=00 IS RS.9,000 AND NOT AS RS.9,00,000 WHICH IS CONTRARY TO FACTS OF SEIZED DOCUMENTS. 5) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD.CIT(A) - I, NASHIK WAS JUSTIFIED IN DELETING THE ADDITION OF RS.5,60,000/ - , MADE BY THE ASSESSING OFFICER IN RESPECT OF UNDISCLOSED RECEIPTS COLLECTED FROM CUSTOMERS FOR PAYMENT OF MSEB AND ADOPTING METHOD OF APPLYING GROSS PROFITS @ 18% O N THIS RECEIPT AS A INCOME. 7 . THE REVENUE IN ASSESSMENT YEAR 2010 - 11 HAS ALSO RAISED ADDITION AL ISSUE BY WAY OF GROUND OF APPEAL NO.3 WHICH READS AS UNDER: 3) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) - I, NASHIK WAS JUSTIFIED IN DELETING THE ADDITION OF RS13,50,000 AS INCOME FROM UNDISCLOSED SOURCES. THE LD CIT(A) I, NASHIK HAS WRONGLY INTERPRETED THE ENTRY 1500=00 AS RS.1,50,000 AND NOT AS RS.15,00,000 WHICH IS CONTRARY TO THE FACTS AS PER SEIZED DOCUMENTS. ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 5 8 . BRIE FLY, IN THE FACTS OF THE CASE, SEARCH UNDER SECTION 132(1) OF THE ACT WAS CARRIED OUT IN THE CASE OF MR. PRAMOD SOMIYA AT PANCHAVATI, NASHIK ON 06.01.2010. DURING THE COURSE OF SEARCH, VARIOUS DOCUMENTS WERE FOUND AND SEIZED. STATEMENT OF SHRI PRAMOD SOMIYA WAS RECORDED UNDER SECTION 132(4) OF THE ACT AND ALSO STATEMENTS OF OTHER PERSONS WERE RECORDED DURING THE COURSE OF SEARCH. THE ASSESSEE FIRM M/S. GAJANAN BUILDERS WAS A GROUP CONCERN OF SHRI PRAMOD SOMIYA , WHO WAS ONE OF THE PARTNERS IN THE SAID FIRM. DURING THE COURSE OF SEARCH ASSESSMENT PROCEEDINGS IN THE CASE OF SHRI PRAMOD SOMIYA, THE ASSESSING OFFICER, NASHI K RECORDED SATISFACTION THAT CERTAIN BOOKS OF ACCOUNT, DOCUMENTS SEIZED FROM HIS PREMISES BELONG S TO M/S. GAJANAN BUILDERS I.E. THE ASSESSEE BEFORE US. AS PER SATISFACTION RECORDED, THE RELEVANT DOCUMENTS / PART THEREOF, BELONGING TO M/S. GAJANAN BUILDER S WERE ANNEXURE A - 1/1, ANNEXURE A - 1/6, ANNEXURE A - 1/7, ANNEXURE A - 1/10, ANNEXURE A - 1/11, ANNEXURE A - 4/1, ANNEXURE A - 4/2, ANNEXURE A - 4/3, ANNEXURE A - 4/4, ANNEXURE A - 4/5, ANNEXURE A - 4/6, ANNEXURE A - 4/7 ETC. THE ASSESSING OFFICER AT PAGE 2 OF THE ASSESSMENT ORDER HAS REFERRED TO THE DOCUMENTS WHICH WERE PART OF ANNEXURE A - 1/7 AND ANNEXURE A - 1/11. THE DIARIES WHICH WERE FOUND PERTAINING TO THE ASSESSEE HAD NOTINGS OF MONEY RECEIVED FROM THE ASSESSEES BUYERS. SHRI PRAMOD SOMIYA ADMITTED THAT THE TRANSACTIONS APPEARING IN THE DIARIES PERTAINED TO THE ASSESSEE AND HE ALSO AVERRED THAT THE AMOUNTS AGAINST WHICH C' WAS WRITTEN, WERE APPEARING IN THE REGULAR BOOKS OF ACCOUNT. THE OTHER AMOUNTS WHICH WERE RECEIVED IN CA SH FROM DIFFERENT CUSTOMERS NAMED THEREIN WERE NOT RECORDED. ON VERIFICATION, IT WAS FOUND THAT THE BUYERS NAMED IN THE DIARIES WERE THE BUYERS OF PROJECT CARRIED OUT BY THE ASSESSEE, HENCE THE DIARY PERTAIN ED AND BELONG ED TO THE ASSESSEE. ACCORDINGLY, T HE SAID ANNEXURE ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 6 WAS CONSIDERED IN FULL IN THE HANDS OF ASSESSEE. THE INFORMATION WAS PASSED ON TO THE ASSESSING OFFICER, WARD 1(2), NASHIK AND PROCEEDINGS WERE INITIATED UNDER SECTION 153C OF THE ACT IN THE CASE OF ASSESSEE AND NOTICE UNDER SECTION 153C R.W.S. 153A OF THE ACT WAS ISSUED. IN RESPONSE THERETO, THE ASSESSEE FILED THE RETURN OF INCOME ON 21.08.2012 DECLARING TOTAL INCOME OF RS.9,25,400/ - . DURING THE COURSE OF SEARCH, WHEN CONFRONTED WITH VARIOUS DOCUMENTS, SHRI PRAMOD SOMIYA, THE PARTNER OF ASSESSEE FIRM, IN HIS STATEMENT RECORDED UNDER SECTION 132(4) OF THE ACT ON 06.01.2010 HAD DISCLOSED SUM OF RS.65 LAKHS AS UNDISCLOSED I NCOME, OUT OF WHICH SUM OF RS.38 LAKHS WAS IN THE NATURE OF CASH PAYMENTS OF UNACCOUNTED NATURE BEING MADE TO SHRI KANH AIYALAL MANWANI (BASED ON SEIZED DOCUMENTS ANNEXURE A - 1/12, PAGE NO.3) AND RS.17,50,000/ - AS ON MONEY PAID IN CASH (BASED ON SEIZED DOCUMENTS ANNEXURE A2/4, PAGE NO.143,144) AND RS.9,50,000/ - BEING ON ACCOUNT OF CASH PAYMENT, OMISSIONS AND ERRORS IN THE BO OKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE M/S.GAJANAN BUILDERS. HOWEVER IN THE RETURN FOR ASSESSMENT YEAR 2010 - 11 FILED BY THE ASSESSEE THE SAID AMOUNT OF RS.65 LAKHS WA S NOT OFFERED TO TAX , DESPITE THE SAID AMOUNT HAVING BEEN ACCEPTED AS THE UNACCOUNTED INCOME OF M/S.GAJANAN BUILDERS IN THE STATEMENT RECORDED ON OATH UNDER SECTION 132(4) OF THE ACT OF THE PARTNER OF THE FIRM. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE DURING THE PERIOD ASSESSMENT YEARS 2004 - 05 TO 2010 - 11 HAD COMPLETED THE FOLLOWING P ROJECTS: - ( I ) MORESHWAR APARTMENT ( II ) SIDDHIVINAYAK TOWERS ( III ) LAMBODAR ( IV ) SHRI MUKTANGAN ( V ) GANESH ROW HOUSE ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 7 9 . THE ASSESSING OFFICER ON PERUSAL OF REGULAR PROFIT AND LOSS ACCOUNT, BALANCE SHEET FILED WITH THE RETURN OF INCOME AND ON PERUSAL OF DETAILS, NOTED THAT THE ASSESSEE WAS NEITHER FOLLOWING PROJECT COMPLETION METHOD NOR PERCENTAGE COMPLETION METHOD OF ACCOUNTING FOR RECOGNIZING THE PROFITS OF VARIOUS PROJECTS. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE WAS FOLLOWING MIXED SYSTEM OF ACCOUNTING AND WAS OFFERING PROFITS OF DIFFERENT PROJECTS IN COMMON PROFIT & LOSS ACCOUNT, WHERE THE PURCHASES, LABOUR, CONTRACT EXPENSES, ETC. WERE BEING SHOWN AS CO MMON EXPENSES FOR VARIOUS PROJECTS BEING CARRIED ON. THE ASSESSEE WAS NOT MAINTAINING PROJECT - WISE EXPENSES AND WAS CLAIMING THE EXPENSES UNDER COMMON HEADS OF EXPENSES LIKE LABOUR, MATERIAL, ETC. THE ASSESSING OFFICER ASKED THE ASSESSEE TO CLARIFY THE B ASIS AND METHOD OF RECORDING WORK - IN - PROGRESS UNDER VARIOUS PROJECTS. BUT NO SATISFACTORY REPLY WAS GIVEN BY THE ASSESSEE. THE ASSESSING OFFICER FURTHER NOTED THAT THE WORK - IN - PROGRESS BEING SHOWN IN THE REGULAR BOOKS OF ACCOUNT WAS AN ESTIMATED FIGURE A ND HENCE, THE ASSESSEE WAS ASKED TO EXPLAIN AS TO HOW THE PROFITS WERE BEING CORRECTLY REFLECTED IN ITS ACCOUNTS WHEN THE WORK - IN - PROGRESS WAS AN ESTIMATED FIGURE. FURTHERMORE, THE EXPENSES AND SOME OF THE SEIZED DOCUMENTS FOUND, HAD BEEN MAINTAINED PROJE CT - WISE, WHILE IT WAS NOT THE CASE IN THE REGULAR BOOKS OF ACCOUNT. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE EXPENSES SHOWN IN THE REGULAR BOOKS OF ACCOUNT DO NOT REFLECT CORRECT AND TRUE PICTURE OF THE AMOUNTS AND THE PROFITS. THE ASSESSEE CLAIMED THAT THERE WAS NO DIFFERENCE TO THE PROFITS AS A RESULT OF VALUATION OF WORK - IN - PROGRESS, SINCE PROFIT WAS BEING OFFERED FULLY, IN ANY CASE, AT THE END OF PROJECT . HOWEVER, THE ASSESSING OFFICER FOUND THE CONTENTION OF ASSESSEE TO BE NOT CORRECT AS NOT O NLY THE PROFIT OF A PARTICULAR PROJECT BY THIS METHODOLOGY WAS BEING SHIFTED FROM ONE YEAR TO ANOTHER BUT ALSO FROM ONE PROJECT TO ANOTHER. ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 8 THE ASSESSING OFFICER THUS, HELD THAT THE BOOKS OF ACCOUNT OF ASSESSEE DO NOT GIVE THE CORRECT PICTURE OF ACCOUNTS AND PROFITS OF THE ASSESSEE AND THEREFORE, WERE LIABLE TO BE REJECTED UNDER SECTION 145(3) OF THE ACT. 10. THE ASSESSING OFFICER THEREAFTER, MADE CERTAIN OBSERVATIONS IN RESPECT OF SEIZED MATERIAL AND THE UNACCOUNTED TRANSACTIONS RECORDED THEREIN AND THE UNACCOUNTED INCOME ARISING THEREFROM UNDER PARA 8 AT PAGES 4 TO 9 OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER CONSIDERED THE DIARY BEING ANNEXURE A - 1/7 AND NOTED THE DETAILS OF EXPENDITURE MADE UNDER VARIOUS HEADS / MATERIALS AND ALSO TABULATE D THE DETAILS OF EXPENSES IN CASH ABO VE RS.20,000/ - TOTALING RS.8,91,912/ - FOR ASSESSMENT YEAR 2005 - 06 AND RS. 1,17,837/ - FOR ASSESSMENT YEAR 2006 - 07. THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE SAID AMOUNT SHOULD NOT BE DISALLOWED UNDER SECTION 40A(3) OF THE ACT, THE EXPLANATION OF THE ASSESSEE WAS FOUND TO BE NOT CORRECT AS NO SUPPORTING EVIDENCE OF PAYMENTS LESS THAN RS.20,000/ - IN CASH WERE FILED. THE ASSESSING OFFICER NOTED THAT WITHIN THE ABOVE PAYMENTS, PAYMENT OF RS.62,410/ - PERTAINED TO ASSESS MENT YEAR 2004 - 05 AND THE SAME WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS DISALLOWANCE UNDER SECTION 40A(3) OF THE ACT. FURTHER, THE ASSESSING OFFICER NOTED THE CONTENTS OF DIARY A - 1/10 AND THE STATEMENT OF THE ASSESSEE WAS RECORDED TO EXPLAIN THE N OTINGS IN THE SAID DIARY. THE DIARY PERTAINS TO MORESHWAR APARTMENT SITE AND WAS MEANT FOR PAYMENT MADE TO LABOUR CONTRACT. THE ASSESSING OFFICER NOTED THAT THE PAYMENTS INCURRED WERE TO THE EXTENT OF RS.10.49 LAKHS WHICH ALSO INCLUDED THE PAYMENT OF RS. 5,75,501/ - IN ANNEXURE A - 1/7. THE ASSESSING OFFICER THEREAFTER, TABULATED YEAR - WISE DETAILS OF EXPENSES TOTALING RS. 12,64,357/ - . A FTER CONSIDERING THE SUBMISSIONS OF ASSESSEE IN THIS REGARD , T HE SAID AMOUNTS YEAR - WISE WERE ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 9 TREATED AS UNEXPLAINED EXPENDIT URE IN THE HANDS OF ASSESSEE AND ADDITION WAS MADE AS UNDER: - AY AMOUNT AY AMOUNT TOTAL 2004 - 05 5,001/ - 2006 - 07 3,41,500/ - 2005 - 06 1,17,999/ - 2007 - 08 2,24,357/ - 6,88,857/ - 1 1 . IN RESPECT OF ANNEXURE A - 1/11, THE ASSESSING OFFICER NOTED THAT THE SAID ANNEXURES REFLECTS NOTINGS ABOUT PAYMENTS RECEIVED FROM PERSONS. THE DIARY WAS IN A LEDGER FORMAT, WHERE NOTING OF MONEY RECEIVED FROM ASSESSEES BUYERS WERE RECORDED. WE HAVE ALREA DY REFERRED TO THE STATEMENT OF SHRI PRAMOD SOMIYA IN THIS REGARD IN THE PARAS HEREINABOVE, WHICH WAS REFERRED BY THE ASSESSING OFFICER, WHEREIN THE ASSESSEE HAD EXPLAINED THAT THE AMOUNTS AGAINST WHICH C WAS WRITTEN, WAS APPEARING IN THE BOOKS OF ACCOUNT AND OTHER AMOUNTS WERE RECEIVED IN CASH FROM THE CUSTOMERS. THE DIARY WAS RELATABLE TO THE ASSESSMENT YEARS 2004 - 05 TO 2010 - 11 AND THE ASSESSING OFFICER HAS TABULATED PARTY - WISE DETAILS AT PAGES 7 TO 9 OF THE ASSESSMENT ORDER. QUERIES WERE RAISED BY THE ASSESSING OFFICER AND THE DETAILS WERE FILED BY THE ASSESSEE AND THE SAID SEIZED DOCUMENT A1/11 WAS EXAMINED AND IT WAS FOUND THAT THE ENTRIES RECORDED IN THE SEIZED DOCUMENTS WERE ACTUALLY WRITTEN MAINLY WITH DOUBLE ZERO SUPP RESSION. THE TOTAL QUANTUM OF RECEIPTS SHOWN REFLECTED IN THE SAID SEIZED DOCUMENTS AS PER THE ASSESSEE IN HIS GRA ACCOUNT WAS RS.1,46,24,664/ - AND THE SAME WAS ACCEPTED AS UNACCOUNTED RECEIPTS OF THE ASSESSEE. THE ASSESSING OFFICER MADE YEAR - WISE BIFURC ATION OF THE RECEIPTS WHICH IS AS UNDER: - SR.NO YEAR ENDING A.Y. RECEIPTS AS PER DIARY A - 1/11 1. 31.03.2004 2004 2005 31,19,544/ - 2. 31.03.2005 2005 2006 8,79,003/ - 3. 31.03.2006 2006 2007 36,03,212/ - 4. 31.03.2007 2007 2008 60,80,355/ - ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 10 5. 31.03.2008 2008 2009 8,68,650/ - 6. 31.03.2009 2009 2010 53,900/ - 7. 31.03.2010 2010 2011 20,000/ - TOTAL 1,46,24,664/ - 1 2 . THE ASSESSING OFFICER NOTED THAT THERE WERE CERTAIN ENTRIES WHERE THE UNIFORM METHOD OF CODING WAS NOT BEING FOLLOWED . A S PER PAGE 68 SHELKE, IT WAS SEEN THAT ON 10.10.2006, THE ASSESSEE HAD RECORDED RECEIPT OF RS.9,000 = 00. THIS AMOUNT WAS CONSIDERED AS RS.9,000/ - IN FINANCIAL YEAR 2006 - 07. THE ASSESSEE WAS ASKED AS TO WHY THE SAME SHOULD NOT BE CONSIDERED AT RS.9 LAKHS . THE ASSESSEE EXPLAINED THAT IT WAS IN RESPECT OF EXTRA WORK AND THE AMOUNT WAS ONLY RS.9,000/ - . HOWEVER, THIS STATEMENT OF THE ASSESSEE WAS NOT ACCEPTED AS NO DOCUMENTARY EVIDENCE OF EXTRA WORK WAS FOUND. THEREFORE, SUM OF AMOUNT OF RECEIPT FOR ASSESS MENT YEAR 2007 - 08 WAS INCREASED BY AN AMOUNT OF RS.8,91,000/ - TO COMPLETE RS.9 LAKHS. THEREFORE, FOLLOWING AMOUNTS WERE ADDED IN THE HANDS OF ASSESSEE: - SR.NO YEAR ENDING A.Y. RECEIPTS AS PER DIARY A - 1/11 1. 31.03.2004 2004 2005 31,19,544/ - 2. 31.03.2005 2005 2006 8,79,003/ - 3. 31.03.2006 2006 2007 36,03,212/ - 4. 31.03.2007 2007 2008 69,71,355/ - 5. 31.03.2008 2008 2009 8,68,650/ - 6. 31.03.2009 2009 2010 53,900/ - 7. 31.03.2010 2010 2011 20,000/ - TOTAL 1,55,15,664/ - 1 3 . THE ASSESSEE HAD OFFERED PROFIT @ 18% ON THE GROSS RECEIPTS AND CLAIMED THAT IT WAS MORE THAN GP IN REGULAR PROFITS DISCLOSED IN THE REGULAR BOOKS OF ACCOUNT. THE ASSESSEE ALSO CLAIMED THAT THE GROSS RECEIPTS IN GRA ACCOUNTS WERE SUFFICIENT TO COVER EXPEN SES IN THE RELEVANT SEIZED DOCUMENTS. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE SAME. THE ASSESSEE ALSO RAISED SAME PLEA WITH RESPECT TO DISALLOWANCE UNDER SECTION 40A(3) OF THE ACT. ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 11 HOWEVER, THE PLEA OF ASSESSEE WAS NOT ACCEPTED ON ACCOUNT OF V ARIOUS DIS - SIMILARITIES IN THE GRA ACCOUNTS AND THE ASSESSEE HAVING NOT ADOPTED CONSISTENT METHOD FOR INTERPRETATION OF THE RECORDED ENTRIES. THE ASSESSEES CLAIM OF ADOPTING THE PROFIT @ 18% OF GROSS RECEIPTS WAS ALSO NOT ACCEPTED AND THE AMOUNTS IN ENTI RETY WERE ADDED IN THE HANDS OF ASSESSEE AND ALSO ADDITION WAS MADE ON ACCOUNT OF DISALLOWANCE UNDER SECTION 40A(3) OF THE ACT. FURTHER CERTAIN ADDITIONS WERE MADE ON ACCOUNT OF CERTAIN RECEIPTS AS INCOME FROM OTHER SOURCES. 1 4 . IN APPEAL, THE CIT(A) CONSIDERED THE BOOKS OF ACCOUNT PREPARED BY THE ASSESSEE ON THE BASIS OF SEIZED MATERIAL AND VARIOUS NOTINGS ABOUT THE UNDISCLOSED RECEIPTS AT RS. 1,90,33,760/ - FOR THE YEARS UNDER APPEAL. THE ASSESSEE HAD ALSO RECORDED SUBSTANTIAL EXPENDITURE IN ITS BOOKS OF ACCOUNT. THE CIT(A) OBSERVED THAT THE ASSESSING OFFICER HAD ACCEPTED THE WORKING OF UNDISCLOSED BUSINESS RECEIPTS TO THE EXTENT OF RS.1,60,89,060/ - . HOWEVER, FOR THE BALANCE UNDISCLOSED BUSINESS RECEIPTS OF RS. 29,44,770/ - IN THE YEARS APPEAL, THE ASS ESSING OFFICER HAD STATED THAT THERE WAS NO BASIS FOR THE SAID UNDISCLOSED BUSINESS RECEIPTS WORKED OUT BY THE ASSESSEE. FURTHER CONTENTION OF THE ASSESSEE BEFORE THE CIT(A) WAS THAT THE ASSESSING OFFICER HAD NOT CONSIDERED THE UNDISCLOSED EXPENDITURE MEN TIONED IN THE SEIZED MATERIAL. THE CLAIM OF THE ASSESSEE WAS THAT AS PER BOOKS OF ACCOUNT PREPARED AFTER THE SEARCH, SUBSTANTIAL EXPENDITURE HAD BEEN INCURRED OUT OF UNDISCLOSED BUSINESS RECEIPTS. THE ASSESSEE ACCEPTED THE FACT THAT THE ORIGINAL BOOKS OF ACCOUNT PREPARED BY IT COULD NOT BE REGARDED AS COMPLETE AND RELIABLE, HENCE, THE ADDITIONAL PROFIT OF THE ASSESSEES BUSINESS SHOULD BE ESTIMATED AT 18% OF UNDISCLOSED BUSINESS RECEIPTS. THE ASSESSEE ALSO CLAIMED THAT THE ADDITIONAL ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 12 INCOME WAS OFFERED O N THAT BASIS IN THE RESPECTIVE YEARS. THE ASSESSEE THEREAFTER FILED SUBMISSIONS IN RESPECT OF EACH OF THE QUERY RAISED BY THE ASSESSING OFFICER IN REJECTING THE BOOKS OF ACCOUNT AND ADOPTION OF NET PROFIT RATE WHILE ESTIMATING THE INCOME IN THE HANDS OF A SSESSEE. IT WAS FURTHER CLARIFIED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE BEFORE THE CIT(A) THAT EVEN IF THE BOOKS OF ACCOUNT WERE TO BE REJECTED UNDER SECTION 145(3) OF THE ACT, THEN ALSO THE ASSESSING OFFICER SHOULD HAVE ESTIMATED THE PROFITS OF THE ASSESSEE AT REASONABLE PERCENTAGE OF GROSS BUSINESS RECEIPTS AND NOT MADE THE ADDITION OF GROSS UNDISCLOSED RECEIPTS, WITHOUT CONSIDERING THE UNDISCLOSED EXPENDITURE RECORDED IN THE SEIZED DOCUMENTS ITSELF. THE ASSESSEE HAD OFFERED ADDITIONAL INCOME TO THE EXTENT OF RS.34,25,735/ - IN THE YEARS UNDER APPEAL. THE ASSES SEE FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAD TAXED ON - MONEY AS BUSINESS INCOME, WITHOUT ALLOWING ANY EXPENDITURE, WHICH WAS NOT CORRECT AND NOT JUSTIFIED. RELIANCE WAS PLACED ON SEVERAL DECISIONS IN THIS REGARD. THE CIT(A) OBSERVED AS UNDER: - 6. 3 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND RIVAL CONTENTIONS. ON PERUSAL OF THE SAME IT HAS BEEN NOTICED THAT, THE A.O. HAS MADE ADDITION OF THE ENTIRE UNDISCLOSED BUSINESS RECEIPTS FOUND NOTED IN THE SEIZED MATERIAL AMOUNTING TO RS.1,90,33,7 60/ - RELATED TO THE YEARS UNDER APPEAL. IT HAS ALSO BEEN NOTICED THAT THE A.O. HAS VERIFIED THE BOOKS OF ACCOUNTS PREPARED BY THE APPELLANT AFTER SEARCH ACTION AFTER CONSIDERING THE UNDISCLOSED BUSINESS RECEIPTS AND UNDISCLOSED BUSINESS EXPENDITURE. THE A. O. HAS HOWEVER, NOT ALLOWED ANY UNDISCLOSED EXPENDITURE FOUND I NOTED IN THE SEIZED MATERIAL, WHICH IS APPARENTLY INCORRECT AS IT IS SETTLED POSITION THAT THE NET UNDISCLOSED PROFIT IS TO BE TAXED AND NOT THE GROSS UNDISCLOSED RECEIPTS. THIS PROPOSITION O F LAW IS SUPPORTED BY THE DECISIONS OF HON'BLE ITAT, PUNE AND HON'BLE BOMBAY HIGH COURT (SUPRA). THE A.O. HAS ALSO HELD THAT 'THE SAID BOOKS OF ACCOUNTS PREPARED BY THE APPELLANT ARE NOT RELIABLE AND THE SAME ARE REJECTED BY HIM U/S. 145(3) OF THE ACT. TH EREAFTER THE A.O. SHOULD HAVE ESTIMATED THE PROFIT OF THE BUSINESS AT SOME RELIABLE PERCENTAGE OF THE BUSINESS RECEIPTS OF THE APPELLANT. IT HAS BEEN NOTICED THAT THE NET PROFIT OF THE BUSINESS OF BUILDERS AND DEVELOPERS IN RESPECT OF CONSTRUCTION ACTIVITY IS AROUND 6% TO 15%. THEREFORE IN MY VIEW THE APPELLANT HAS REASONABLY OFFERED TO TAX 18% PROFIT ON THE UNDISCLOSED BUSINESS RECEIPTS FOUND IN THE COURSE OF SEARCH ACTION. THE A.O. IS THEREFORE NOT JUSTIFIED IN MAKING ADDITION OF RS.1,90,33,760/ - ON ACC OUNT OF UNDISCLOSED BUSINESS RECEIPTS; AFTER ALLOWING SET - OFF FOR ADDITIONAL PROFIT OFFERED BY THE APPELLANT. THE A.O. IS THEREFORE DIRECTED TO ACCEPT THE ADDITIONAL PROFIT OFFERED TO TAX BY THE APPELLANT IN THE RETURNS OF INCOME FOR A . YRS. 2004 - 05 TO 201 0 - 11 AND ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 13 THE ADDITION MADE BY THE A.O. ON THIS ISSUE IS DELETED. GROUND NOS. 2 & 3 FOR A.Y. 2004 - 05, 2005 - 06 AND 2006 - 07, GROUND NOS. 2 & 4 FOR A.Y. 2007 - 08, GROUND NO. 2 FOR A.Y. 2008 - 09, GROUND NOS. 2 & 3 FOR A.Y. 2009 - 10 AND GROUND NO. 2 FOR A.Y. 2010 - 11 ARE ALLOWED. 1 5 . THE SECOND ISSUE WAS IN RESPECT OF UNDISCLOSED BUSINESS RECEIPTS ENHANCED AND ADDED TO THE EXTENT OF RS.8,91,000/ - IN ASSESSMENT YEAR 2007 - 08 AND RS.13,50,000/ - IN ASSESSMENT YEAR 2010 - 11. THE ADDITION OF RS.8,91,000/ - WAS MADE ON AC COUNT OF NARRATION IN THE SEIZED PAPERS AT RS.9,000/ - WHICH WAS TAKEN AS RS.9 LAKHS BY THE ASSESSING OFFICER. THE CIT(A) NOTED THAT RS.9,000/ - WAS RECEIVED AFTER TWO YEARS AND THREE MONTHS FROM THE DATE OF REGISTERED SALE AGREEMENT DATED 03.06.2004 AND HE LD THAT THE ALLEGED ON - MONEY COULD NOT HAVE BEEN RECEIVED AFTER SUCH A LONG PERIOD AFTER REGISTERING THE SALE AGREEMENT. HE ALSO OBSERVED THAT THE SALE RATE OF THE FLAT WOULD WORK OUT TO MORE THAN RS.1900 PER SQ.FT. AS AGAINST THE VALUE OF STAMP DUTY OF R S.590/ - PER SQ.FT. AND WAS ALSO MUCH MORE THAN THE SALE PRICE CONSIDERED BY THE ASSESSING OFFICER IN RESPECT OF OTHER FLATS IN THE SAME PROJECT . H ENCE, ADDITION OF RS.8,91,000/ - TOWARDS ON - MONEY RECEIPT WAS DELETED BY THE CIT(A). FURTHER, ADDITION MADE I N ASSESSMENT YEAR 2010 - 11 OF RS.13,50,000/ - WAS ON ACCOUNT OF NARRATION OF RS.15,000/ - ON 04.04.2009 IN THE SEIZED DOCUMENT. THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE OBSERVED THAT THE AMOUNT RECEIVED FROM NUTAN ON 04.04.2009 WAS MENTIONED AS RS.15000=00. HE FURTHER NOTED THAT IF SUM OF RS.15 LAKHS WAS CONSIDERED AS ON - MONEY AS ALLEGED BY THE ASSESSING OFFICER, THEN THE TOTAL CONSIDERATION WOULD BE RS. 55,46,750/ - FOR THE BUILT UP AREA OF 1725 SQ.FT. AND RATE PER SQ. FT. TO WORK OUT TO MORE THAN RS.3200/ - PER SQ.FT. AS AGAINST STAMP DUTY VALUATION OF RS.2,712/ - PER SQ.FT. ACCORDINGLY, THE ADDITION MADE OF RS.13,50,000/ - ON ACCOUNT OF ON - MONEY RECEIVED WAS ALSO DELETED. ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 14 1 6 . THE NEXT ISSUE CONSIDERED BY THE CIT(A) WAS THE ADDITION MADE UNDER SECTION 40A(3) OF THE ACT IN RESPECT OF UNDISCLOSED EXPENDITURE RELATING TO THE YEAR UNDER APPEAL. THE CIT(A) HELD THAT SINCE THE ADDITION WAS MADE @ 18% OF UNDISCLOSED BUSINESS RECEIPTS, IN THE HANDS OF ASSESSEE, I.E. ON ESTIMATE BASIS, NO SEPARATE ADDITION UNDER SECTION 40A(3) OF THE ACT WAS JUSTIFIED. RELIANCE WAS PLACED ON SEVERAL DECISIONS IN THIS REGARD AND THE ADDITION MADE BY THE ASSESSING OFFICER WAS THUS, DELETED. 1 7 . THE NEXT ADDITION MADE BY THE ASSESSING OFFICER WAS IN RESPECT OF UNDISCLOSED EXPENDITURE OF PAYMENT TO CONTRACTOR WHICH WAS RECORDED IN VARIOUS SEIZED DOCUMENTS I.E. RS.5,001/ - , RS.6,93,500/ - , RS.3,41,500/ - AND RS.2,24,357/ - IN ASSESSMENT YEARS 2004 - 05 TO 2007 - 08 RESPECTIVELY . THE CIT(A) HELD THAT WHERE THE ASSESSEE HAS SHOWN UNDISCLOSED BUSINESS RECEIPTS AT RS.1.90 CRORES, THE ABOVE MENTIONED UNDISCLOSED EXPENDITURE WAS MUCH LESS THAN THE UNDISCLOSED BUSINESS RECEIPTS FOUND IN SEARCH ACTION AND HENCE, NO ADDITION IS WARRANTED. HENCE, THE ADDITION MADE B Y THE ASSESSING OFFICER IN THE RESPECTIVE YEARS WAS DELETED. SIMILARLY, ADDITION MADE IN RESPECT OF ALLEGED UNDISCLOSED PAYMENT OF RS.17,50,000/ - INCURRED IN ASSESSMENT YEAR 2009 - 10 AT RS.14,50,000/ - AND ASSESSMENT YEAR 2010 - 11 AT RS.3,00,000/ - , WHICH WAS ADDED ON SUBSTANTIVE BASIS IN THE HANDS OF ASSESSEE AND ON PROTECTIVE BASIS IN THE CASE OF SHRI PRAMOD SOMIYA. THE CIT(A) OBSERVED THAT IN VIEW OF HIS FINDING GIVEN IN THE CASE OF SHRI PRAMOD SOMIYA THAT THE SAID PAYMENT OF RS.17,50,000/ - HAS BEEN MADE B Y SHRI HARISH GUJRATHI - HUF, THE SAID PAYMENT CANNOT BE TAXED AS UNEXPLAINED EXPENDITURE IN THE HANDS OF ASSESSEE. THE ADDITION OF RS.14,50,000/ - AND RS.3,00,000/ - IN ASSESSMENT YEARS 2009 - 10 AND ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 15 2010 - 11 WAS THEREFORE, DELETED . THE CIT(A) ALSO DELETED THE ADDITION MADE ON ACCOUNT OF PAYMENT TO MSEB OF RS.5,60,000/ - AND RS.2,75,000/ - IN ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 RESPECTIVELY. 1 8 . ANOTHER ADDITION MADE BY THE ASSESSING OFFICER WAS ON ACCOUNT OF INCOME OFFERED TOWARDS ERRORS AND OMISSIONS, IF ANY, IN STATEMENT RECORDED UNDER SECTION 132(4) OF THE ACT OF RS.9,50,000/ - IN ASSESSMENT YEAR 2010 - 11. THE ASSESSEE POINTED OUT THAT THE SAID ADDITION WAS NOT BASED ON ANY EVIDENCE OR MATERIAL AND HENCE, NOT WARRANTED. THE CIT(A) DELETED THE SAME AS THE ASSESSING OFFICER HAD MADE SPECIFIC ADDITIONS AFTER CONSIDERING THE ERRORS AND OMISSIONS AND IN RESPECT OF ADDITION OF RS.9,50,000/ - , NO SPECIFIC ERROR OR OMISSION WAS POINTED OUT BY THE ASSESSING OFFICER. 1 9 . ANOTHER ADDITION WHICH WAS MADE ON PROTECTIV E BASIS ON ACCOUNT OF PAYMENT TO ONE SHRI K.C. M ANWANI O F RS.25 LAKHS AND RS.13 LAKHS IN ASSESSMENT YEARS 2009 - 10 AND 2010 - 11 WAS DELETED BY THE CIT(A) AS THE SAID ADDITION WAS MADE IN THE HANDS OF M/S. GANESH BUILDERS, WHO HAD ACCEPTED THE ABOVE SAID PAYM ENTS AND HENCE, THE CIT(A) DELETED THE SAID ADDITION. 20 . THE REVENUE IS IN APPEAL AGAINST THE ORDER OF CIT(A) , WHEREIN THE FIRST ISSUE RAISED BY THE REVENUE IS AGAINST ESTIMATION OF INCOME IN THE HANDS OF ASSESSEE BY ADOPTING 18% AS GROSS RECEIPTS ON THE UNDISCLOSED RECEIPTS, AS TAXABLE IN THE HANDS OF ASSESSEE. THE REVENUE IS AGGRIEVED BY THE ORDER OF CIT(A) SI NCE THE SAID RECEIPTS WERE UNACCOUNTED AS PER THE SEIZED MATERIAL AND AS PER THE SUBMISSIONS MADE BY THE ASSESSEE. FURTHER, THE REVENUE HAS ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 16 RAISED THE ADDITIONAL GROUND OF APPEAL IN DELETING THE ADDITION MADE UNDER SECTION 40A(3) OF THE ACT. 2 1 . THE LE ARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE FILED THE TABULATED DETAILS OF VARIOUS ADDITIONS MADE IN THE HANDS OF ASSESSEE IN THE RESPECTIVE YEARS. IT WAS FURTHER POINTED OUT THAT THE FIRST ISSUE IN ALL THE APPEALS WAS IN RESPECT OF ASSESSABILITY OF UNACCOUNTED RECEIPTS BY ADOPTING THE NET PROFIT RATE OF 18%. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT THE ASSESSEE HAD OFFERED 18% ON THE SAID RECEIPTS IN THE RETURN OF INCOME BUT WAS OTHERWISE OFFERING 13% - 16% . IN RESP ECT OF ADDITIONAL GROUND OF APPEAL, THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE STATED THAT ALL THE FACTS WERE ON RECORD AND THE SAID ADDITIONAL GROUND OF APPEAL BE ADMITTED FOR ADJUDICATION. RELIANCE WAS PLACED ON THE ORDER OF THE ASSESSING OFFICER BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. 2 2 . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE REFERRED TO THE DOCUMENTS PLACED AT PAGE 145 OF THE PAPER BOOK AND SUBMITTED THAT THE GROSS TOTAL RECEIPTS OF RS.1.90 CRORES CAL CULATED FROM THE SEIZED DOCUMENTS IS ACCEPTED. HE FURTHER POINTED OUT THAT THE BASIC ISSUE WHICH ARISES IN THE PRESENT APPEAL IS WHERE THE SEIZED DOCUMENTS HAD RECORDED THE RECEIPTS AND EXPENDITURE, THEN THE DOCUMENTS SHOULD BE CONSIDERED IN TOTO. IN T HIS REGARD, RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY THE PUNE BENCH OF TRIBUNAL IN ITO VS. KARDA CONSTRUCTIONS PVT. LTD. IN ITA NO.971/PN/2011, RELATING TO ASSESSMENT YEAR 2009 - 10, ORDER DATED 31.07.2012, WHICH WAS APPROVED BY THE HONBLE BOMBAY HIGH COURT. HE FURTHER STATED THAT THE NAMES OF THE PARTIES I.E. THE FLAT BUYERS WERE AVAILABLE AND THE ADDITIONAL RECEIPTS WERE OFFERED IN THE ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 17 YEAR OF SALE I.E. ON THE COMPLETION AND REGISTRATION OF SALE DEED. HE POINTED OUT THAT IN VIEW THEREOF, THE INCOME IS TO BE ESTIMATED BY APPLYING THE NP RATE IN THE RESPECTIVE YEARS. HE FURTHER POINTED OUT THAT THE AGGREGATE CASH RECEIPTS TOTALED RS.1.90 CRORES AND THE CASH EXPENSES IN THE SAID SEIZED MATERIAL TOTALED TO RS.1.50 CRORES AND THE ASSESSEE HAD OFFERED NET PROFIT @ 18% ON THE SAID RECEIPTS. CONSEQUENTLY, THE EXPENSES ARE COVERED AND NO FURTHER ADDITION IS TO BE MADE ON THE BASIS OF NOTINGS IN THE SAID SEIZED DOCUMENTS. RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS: - I) DHANWARSHA BUILDERS AND DEVELOPERS PVT. LTD. REPORTED IN 102 ITD 375 II) GOLANI BROS REPORTED IN 75 ITD 1 (PUNE) 2 3 . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE STRESSED THAT THE ENTIRE RECEIPTS COULD NOT BE ADDED AS INCOME OF THE ASSESSEE FOR THE RELEVANT ASSESSMENT YEARS. FURTHER, HE REFERRED TO THE ADDITIONAL GROUND OF APPEAL AND POINTED OUT THAT SINCE ALL THE FACTS ARE AVAILABLE ON RECORD, THE SAME MAY BE AD MITTED AND ONCE THE INCOME HAS BEEN ESTIMATED IN THE HANDS OF ASSESSEE, NO FURTHER DISALLOWANCE COULD BE MADE UNDER SECTION 40A(3) OF THE ACT. HE ALSO REFERRED TO VARIOUS OTHER ADDITIONS MADE IN THE RESPECTIVE YEARS AND PLACED RELIANCE ON THE ORDER OF CIT(A) IN DELETING THE SAID ADDITION. HE POINTED OUT THAT IN ALL THE YEARS STARTING FROM ASSESSMENT YEARS 2004 - 05 TO 2 010 - 11, TWO ISSUES WHICH WERE RAISED ARE COMMON I.E. THE ESTIMATION OF INCOME BY APPLYING NP RATE AND THE ADDITIONAL GROUND OF APPEAL FILED BY THE REVENUE AGAINST THE DISALLOWANCE MADE UNDER SECTION 40A(3) OF THE ACT IN ASSESSMENT YEARS 2007 - 08 AND 2010 - 11 . THE ISSUE HAS BEEN RAISED IN RESPECT OF FURTHER ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF NOTINGS IN THE DOCUMENTS. ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 18 2 4 . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURTHER POINTED OUT THAT THE APPEALS IN THE CASE OF OTHER ASSESS EE M/S. GANESH BUILDERS WAS CONNECTED ASSESSEE AND THE ISSUE ARISING IN ASSESSMENT YEARS 2008 - 09 TO 2010 - 11 WERE IN RESPECT OF ESTIMATION OF INCOME FROM BUSINESS AND THE ADDITIONAL GROUND OF APPEAL IS AGAINST DELETION OF ADDITION MADE UNDER SECTION 40A(3) OF THE ACT. HE FURTHER POINTED OUT THAT IN ASSESSMENT YEARS 2009 - 10 AND 2010 - 11, FURTHER ADDITION WAS MADE TO THE EXTENT OF RS.25 LAKHS AND RS. 1 3 LAKHS AND WITHOUT GOING INTO MERITS OF THE ADDITION, HE STATED THAT THE BENEFIT OF ADDITION MADE IN ASSESSMEN T YEAR 2009 - 10 SHOULD BE ALLOWED AGAINST THE ADDITIONAL INCOME ASSESSED IN THE HANDS OF ASSESSEE. 2 5 . IN RESPECT OF APPEAL OF SHRI PRAMOD SOMIYA, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE PROTECTIVE ADDITION OF RS.25 LAKHS AND RS. 13 LAKHS WAS MADE IN ASSESSMENT YEARS 2009 - 10 AND 2010 - 11 WHICH HAS BEEN SUBSTANTIVELY MADE IN M/S. GANESH BUILDERS AND HENCE, THE ISSUE IS LINKED TO THE ISSUE RAISED IN M/S. GANESH BUILDERS. 2 6 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE RECORD. SEARCH ACTION UNDER SECTION 132(1) OF THE ACT WAS CARRIED OUT AT THE PREMISES OF SHRI PRAMOD SOMIYA ON 06.10.2010. DURING THE COURSE OF SEARCH, VARIOUS DIARIES AND DOCUMENTS WERE SEIZED. THE SAID DIARIES AND DOCUMENTS RELATED TO THE ASSESS EE FIRM AND CONTAINED ENTRIES OF UNDISCLOSED RECEIPTS AND VARIOUS EXPENDITURE, WHICH WERE NOT BOOKED IN THE REGULAR BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE. SHRI PRAMOD SOMIYA IN HIS STATEMENT RECORDED UNDER SECTION 132(4) OF THE ACT, IDENTIFIED THE D IARIES AND DOCUMENTS RELATING TO THE ASSESSEE ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 19 FIRM . SINCE HE WAS THE MAIN PARTNER, HE ADMITTED THAT CERTAIN ADDITIONAL INCOME NEEDS TO BE OFFERED IN THE HANDS OF ASSESSEE FIRM. THE BASIS OF THE ADDITIONAL INCOME WAS THE UNDISCLOSED BUSINESS RECEIPTS WHIC H RELATED TO THE CASH COM PONENT OF SALE CONSIDERATION OF THE FLATS SOLD BY THE ASSESSEE IN VARIOUS PROJECTS UNDERTAKEN BY IT DURING ASSESSMENT YEARS 2004 - 05 TO 2010 - 11. THE ASSESSEE AND THE ASSESSING OFFICER HAVE TABULATED YEAR - WISE CASH RECEIPTS TOTALING RS.1.90 CRORES WHICH ARE AS UNDER: - BIFURCATION OF CASH AS PER YEAR OF RECEIPT CASH RECEIVED IN A.Y. 2004 05 31,50,044/ - CASH RECEIVED IN A.Y. 2005 06 17,42,453/ - CASH RECEIVED IN A.Y. 2006 07 50,86,758/ - CASH RECEIVED IN A.Y. 2007 08 66,28,855/ - CASH RECEIVED IN A.Y. 2008 09 11,98,650/ - CASH RECEIVED IN A.Y. 2009 10 10,55,100/ - CASH RECEIVED IN A.Y. 2010 11 1,70,000/ - TOTAL CASH RECEIVED AS PER SALES CHART 1,90,31,860/ - 2 7 . THE ASSESSEE IN THE RETURN OF INCOME FILED IN RESPONSE TO THE NOTICE ISSUED UNDER SECTION 153C R.W.S. 153A OF THE ACT OFFERED ADDITIONAL INCOME ESTIMATED @ 18% OF THE GROSS RECEIPTS BEING THE NET PROFIT FOR THE RESPECTIVE YEARS. THE ASSESSEE HAD FURNISHED THE RETURN OF INCOME OFFERING ADDITIONAL INCO ME AS UNDER: - ASSESSMENT YEAR PROFIT ESTIMATED @ 18 % OF GROSS RECEIPTS (CLARIFIED ABOVE) OFFERED IN RETURNS FILED IN RESPONSE TO NOTICES U/S 153A/153C 2004 05 5,67,008/ - 2005 06 3,13,642/ - 2006 07 9,15,616/ - 2007 08 11,93,194/ - 2008 09 2,15,757/ - 2009 10 1,89, 918/ - 2010 11 30,600/ - TOTAL PROFIT OFFERED 34,25,735/ - ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 20 2 8 . HOWEVER, THE ASSESSING OFFICER WAS OF THE VIEW THAT THE TOTAL UNDISCLOSED RECEIPTS ARE TO BE ADDED IN THE HANDS OF ASSESSEE IN THE RESPECTIVE ASSESSMENT YEARS AND ACCORDINGLY, THE INCOME FROM BUSINESS WAS ASSESSED IN THE HANDS OF ASSESSEE VIDE ORDER PASSED UNDER SECTION 143(3) R.W.S. 153C OF THE ACT, WHICH IS AS UNDER: - ASSESSMENT YEAR INCOME RETURNED U/S 139(1) ADDL INCOME OFFERED TO TAX INCOME RETURNED IN RESPONSE TO NOTICES ISSUED ADDITIONS TO INCOME RETURNED U/S 139(1) INCOME ASSESSED 2004 05 358396/ - 5,67,008/ - 925400/ - 3217455/ - 3575847/ - 2005 06 239196/ - 3,13,642/ - 552838/ - 3753127/ - 3992323/ - 2006 07 291504/ - 9,15,616/ - 1207121/ - 5847595/ - 6136100/ - 2007 08 938836/ - 11,93,194/ - 2132030/ - 9216517/ - 10155353/ - 2008 09 1461315/ - 2,15,757/ - 1677073/ - 5130354/ - 6591670/ - 2009 10 428412/ - 1,89,918/ - 618329/ - 5127000/ - 5555411/ - 2010 - 11 NIL 30,600/ - 30600/ - 4103100/ - 4103100/ - TOTAL 34,25,735/ - 2 9 . FURTHER, ADDITIONS WERE MADE IN THE RESPECTIVE YEARS ON ACCOUNT OF UNDISCLOSED BUSINESS RECEIPTS, ENHANCEMENT, ADDITION UNDER SECTION 40A(3) OF THE ACT, UNDISCLOSED EXPENDITURE ON VARIOUS ACCOUNTS AND CERTAIN PROTECTIVE ADDITIONS AND THE YEAR - WISE DETAILS ARE AS UNDER: - PARTICULARS OF ADDITIONS A.Y 2004 - 05 A.Y 2005 - 06 A.Y 2006 - 07 A.Y 2007 - 08 A.Y 2008 - 09 A.Y 2009 - 10 A.Y 2010 - 11 1) UNDISPUTED UNDISCLOSED BUSINESS RECEIPTS 3150044/ - 1742453/ - 5086758/ - 6628855/ - 1198650/ - 1057000/ - 17000/ - 2) UNDISCLOSED BUSINESS RECEIPTS ENHANCED BY THE AO NIL NIL NIL 891000/ - NIL NIL 1350000/ - 3) ADDITION U/S 40 A(3) IN RESPECT OF UNDISCLOSED EXPENDITURE 62410/ - 1317174/ - 419337/ - 912305/ - 3645703/ - 120000/ - 33100/ - 4) UNDISCLOSED EXPENDITURE 5001/ - 693500/ - 341500/ - 224357/ - NIL NIL NIL ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 21 OF PAYMENT TO CONTRACTOR 5) UNDISCLOSED DONATION NIL NIL NIL NIL 110001/ - NIL NIL 6) ALLEGED UNDISCLOSED PAYMENT NIL NIL NIL NIL NIL 1450000/ - 300000/ - 7) UNDISCLOSED RECEIPTS COLLECTED FROM CUSTOMERS FOR PAYMENT TO MSEB NIL NIL NIL 560000/ - 275000/ - NIL NIL 8) INCOME OFFERED TOWARDS ERRORS AND OMMISSIONS IF ANY IN STATEMENT U/S 132 (4) NIL NIL NIL NIL NIL NIL NIL 9) PROTECTIVE ADDITION TOWARDS UNDISCLOSED PAYMENT TO MR.K C MANWANI NIL NIL NIL NIL NIL 2500000/ - 1300000/ - TOTAL 3217455/ - 3753127/ - 5847595/ - 9216517/ - 5310354/ - 5217000/ - 4103100/ - 30 . THE ASSESSING OFFICER THUS, WAS COMPLETED THE ASSESSMENT IN THE RESPECTIVE YEARS BY INCLUDING THE ENTIRE UNDISCLOSED BUSINESS RECEIPTS AS BUSINESS INCOME OF THE ASSESSEE AND HAD ALSO MADE THE DISALLOWANCE UNDER SECTION 40A(3) OF THE ACT. FURTHER ADDITIONS WERE MADE IN THE RESPECTIVE YEARS AS TABULATED ABOVE. THE CIT(A) HAS DELETED THE ABOVE SAID ADDITIONS IN THE HANDS OF ASSESSEE IN THE RESPECTIVE YEARS AND THE REVENUE IS NOT IN APPEAL AGAINST THE RELIEF GRANTED BY THE CIT(A) IN EACH OF THE YEAR , EXCEPT ESTIMATION OF GP RATE AND DISALLOWANCE UNDER SECTION 40A(3) OF THE ACT . THE UNDISPUTED FACT WHICH IS ADMITTED BY BOTH THE ASSESSEE AND THE REVENUE IS THE GROSS RECEIPTS WHICH ARE CALCULATED FROM THE ENTRIES IN THE SEIZED DOCUMENTS. THE ASSESSEE HAS ADMITTED TO THE CORRECTNESS OF THE ESTIMATE MADE BY THE ASSESSING OFFICER TOTALING RS.1.90 CRORES BEING THE UNDISCLOSED BUSINESS RECEIPTS WHICH ARE ADOPTED FOR THE YEARS UNDER CONSIDERATION. ANOTHER UNDISPUTED FACT IS THE ENTRIES IN THE SEIZED DOCUMENTS IN RESPECT OF VARIOUS EXPENDITURE INCURRED BY ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 22 THE ASSESSEE. THE ASSESSING OFFICER HAS ELABORATELY CONSIDERED THE ENTRIES MADE BY THE ASSESSEE IN REGULAR BOOKS OF ACCOUNT AND THEREAFTER HAS POINTED OUT THAT THE SAID BOOKS OF ACCOUNT ARE NOT RELIABLE AND MERITS TO BE REJECTED. WE HAVE ALREADY REFERRED TO THE OBSERVATIONS OF THE ASSESSING OFFICER IN RESPECT OF BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE AND IN VIE W OF THE DISCREPANCIES NOTED BY THE ASSESSING OFFICER, WE UPHOLD THE REJECTION OF BOOKS OF ACCOUNT UNDER SECTION 145(3) OF THE ACT. 3 1 . THE NEXT STEP IS THE ESTIMATION OF INCOME IN THE HANDS OF ASSESSEE ON ACCOUNT OF SUCH UNDISCLOSED BUSINESS RECEIPTS. T HE ASSESSEE IN THE WRITTEN SUBMISSIONS FILED HAS POINTED OUT THAT THE AGGREGATE CASH RECEIPTS IN THE GRA ACCOUNT IS RS.1,90,31,860/ - AND THE CASH EXPENSES IN THE SAME SEIZED MATERIAL TOTALED TO RS.1,54,23,795/ - . THE LEARNED AUTHORIZED REPRESENTATIVE FOR T HE ASSESSEE DURING THE COURSE OF HEARING HAD REFERRED TO THE DOCUMENTS PLACED AT PAGE 147 OF THE PAPER BOOK, WHEREIN IT WAS POINTED OUT THAT THE NAMES OF THE PARTIES / FLAT BUYERS WERE AVAILABLE IN RESPECT OF UNDISCLOSED BUSINESS RECEIPTS AND ALSO DETAILS OF VARIOUS EXPENDITURE INCURRED IN RELATION THERETO ARE ALSO AVAILABLE IN THE SEIZED MATERIAL. THE ASSESSING OFFICER HAS ALSO REFERRED TO VARIOUS DETAILS OF EXPENDITURE NOTED IN THE SEIZED MATERIAL AND IN ADDITION TO ESTIMATION OF INCOME IN THE HANDS OF A SSESSEE HAD DISALLOWED CERTAIN EXPENSES WHICH WERE INCURRED IN CASH ABOVE RS.20,000/ - AND HENCE, HAD VIOLATED THE PROVISIONS OF SECTION 40A(3) OF THE ACT. CERTAIN OTHER ADDITIONS WERE MADE IN THE RESPECTIVE YEARS ON ACCOUNT OF CERTAIN EXPENDITURE NOTED ON VARIOUS PAGES FOR WHICH, AS PER THE ASSESSING OFFICER, NO EXPLANATION WAS OFFERED BY THE ASSESSEE. THE COURTS HAVE TIME AND AGAIN HELD THAT A DOCUMENT WHICH IS SEIZED DURING THE COURSE OF S EARCH SHOULD BE READ AS A WHOLE. IN OTHER WORDS, ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 23 IN CASE ANY DIA RIES OR DOCUMENTS ARE FOUND DURING THE COURSE OF SEARCH , WHICH REFLECT UNDISCLOSED RECEIPTS AND ALSO REFLECT UNDISCLOSED EXPENDITURE, THEN THERE IS NO MERIT IN ADDING THE TOTAL OF THE UNDISCLOSED RECEIPTS AS ADDITIONAL INCOME IN THE HANDS OF ASSESSEE. CREDIT FOR THE UNDISCLOSED UNRECORDED EXPENDITURE IS TO BE SET OFF AGAINST THE UNDISCLOSED RECEIPTS WHICH ARE DISCOVERED ON ACCOUNT OF ENTRIES IN THE SEIZED MATERIAL. ACCORDINGLY, WE HOLD THAT THE BENEFIT OF UNDISCLOSED EXPENDITURE RECORDED IN THE BOOKS O F ACCOUNT MERITS TO BE ALLOWED WHEN UNDISCLOSED BUSINESS RECEIPTS ARE BEING ADDED IN THE HANDS OF ASSESSEE. THE ENTIRE UNDISCLOSED BUSINESS RECEIPTS ARE NOT THE INCOME OF ASSESSEE. 3 2 . THE NEXT QUESTION WHICH THUS, ARISES IS THE PERCENTAGE OF NET PROFIT TO BE APPLIED FOR COMPUTING THE BUSINESS INCOME IN THE HANDS OF ASSESSEE. THE ASSESSEE WAS OFFERING ABOUT 13% - 16% AS NET PROFIT IN THE RESPECTIVE YEARS AND ON THE UNDISCLOSED BUSINESS RECEIPTS HAS OFFERED NET PROFIT @ 18% WHICH WAS CALCULATED AS ADDITI ONAL INCOME, IN THE RESPECTIVE YEARS, BY THE ASSESSEE, WHILE FILING THE RETURN OF INCOME IN RESPONSE TO NOTICE ISSUED UNDER SECTION 153C R.W.S. 153A OF THE ACT. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS PLACED RELIANCE ON THE RATIO LAID D OWN BY THE PUNE BENCH OF TRIBUNAL IN ITO VS. KARDA CONSTRUCTIONS PVT. LTD. (SUPRA), WHEREIN THE ASSESSING OFFICER HAD TAXED THE TOTAL CASH CONSIDERATION REPRESENTING THE ADVANCE AMOUNT RECEIVED ON BOOKING OF FLATS, IN THE YEAR OF RECEIPT ITSELF, AS ADDITIO NAL INCOME IN THE HANDS OF ASSESSEE THEREIN. HOWEVER, THE TRIBUNAL HELD THAT WHERE THE COMPLETE DETAILS OF NAMES OF BUYERS ARE AVAILABLE ON RECORD AND WHERE THE UNRECORDED ENTRIES OF CASH RECEIPTS FOUND WERE IN RESPECT OF SALE OF FLATS AND WHERE THE ASSES SEE HAD ALREADY AGREED THAT IT WAS PART OF SALE CONSIDERATION, THEN THE SAID RECEIPTS ARE TO BE ADDED AS SALE CONSIDERATION IN THE YEAR OF SALE OF FLATS ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 24 AND THE PROFIT ON SALE OF FLATS AFTER CONSIDERING THE EXPENDITURE IS TO BE TAXED ACCORDINGLY. 3 3 . THE HONBLE BOMBAY HIGH COURT APPROVING THE ORDER OF THE PUNE BENCH OF TRIBUNAL IN ITO VS. KARDA CONSTRUCTIONS PVT. LTD. (SUPRA) VIDE JUDGMENT DATED 25.02.2013 CONSIDERED THE QUESTION OF LAW FRAMED, WHICH READS AS UNDER: - WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE TRIBUNAL WAS JUSTIFIED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER OF RS.71,67,000/ - BEING UNACCOUNTED CASH RECEIPTS FOUND DURING THE TIME OF SEARCH ACTION BY ACCEPTING THE EXPLANATION OF THE ASSESSEE THA T THE UNACCOUNTED CASH RECEIPTS OF RS.71,67,000/ - FOUND AT THE TIME OF SEARCH WERE BOOKING ADVANCES COLLECTED BY THE ASSESSEE FROM ITS CUSTOMERS AND WERE PART OF SALE CONSIDERATION DECLARED BY THE ASSESSEE AT THE TIME OF SALE OF FLATS AFTER THE DATE OF SEA RCH? 3 4 . THE HONBLE BOMBAY HIGH COURT HAS HELD AS UNDER: - 2) THE TRIBUNAL BY THE IMPUGNED ORDER UPHELD THE FINDING OF FACT RECORDED BY THE CIT(A) THAT RECEIPT OF RS.71,67,000/ - WAS PART OF THE SALE CONSIDERATION OF THE FLATS SOLD BY THE RESPONDENT ASSE SSEE AND THE SAME HAS TO BE TAXED IN THE YEAR IN WHICH THE ASSESSEE HAS RECORDED THE SALE OF FLATS. THE OBJECTION OF THE REVENUE IS THAT AMOUNT OF RS.71 ,68,000/ - FOUND IN CASH HAS TO BE TAXED IN THE YEAR IN WHICH CASH WAS RECEIVED BY THE RESPONDENT ASSESS EE AND NOT IN THE YEAR THE SALE OF THE FLATS TOOK PLACE. THE TRIBUNAL RECORDS A FACT THAT THERE IS NO DISPUTE THAT UNRECORDED ENTRIES OF CASH FOUND WITH THE RESPONDENT ASSESSEE WERE IN RESPECT OF SALE OF FLATS AND FORMING PART OF CONSIDERATION FOR SALE OF FLATS. FURTHER THE NAMES OF THE BUYERS OF THE FLATS AND THE CASH RECEIPTS FROM THE BUYERS WERE ALSO FOUND DURING THE COURSE OF THE SEARCH. IN THESE CIRCUMSTANCES, ON THE BASIS OF THE FINDING OF FACT THAT CASH RECEIPTS WERE UNDISPUTEDLY IN RESPECT OF SAL E OF FLATS AND THE SAME WERE OFFERED TO TAX IN THE YEAR IN WHICH FLATS WERE SOLD THAT THE APPEAL OF THE REVENUE BEFORE THE TRIBUNAL WAS DISMISSED. 3 5 . THE FACTS OF THE CASE BEFORE US ARE SIMILAR TO THE FACTS BEFORE THE HONBLE BOMBAY HIGH COURT AND FOLLO WING THE SAME PARITY OF REASONING, WE HOLD THAT THE UNACCOUNTED SALE CONSIDERATION RECEIVED BY THE ASSESSEE FROM THE RESPECTIVE BUYERS IS TO BE ADDED AS BUSINESS RECEIPTS OF THE AS SESSEE IN THE RESPECTIVE YEARS OF SALE, AGAINST WHICH CLAIM OF EXPENDITURE MERITS TO BE ALLOWED AND IN THE ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 25 ABSENCE OF COMPLETE DETAILS, NET PROFIT IS TO BE ESTIMATED IN ORDER TO BRING INTO THE TAX ADDITIONAL INCOME IN EACH OF THE YEAR. ACCORDINGLY, WE UPHOLD THE ORDER OF CIT(A) IN THIS REGARD. HOWEVER, THE NET PROFIT TO BE APPLIED FOR ESTIMATING THE BUSINESS INCOME SHOULD BE ADOPTED AT 20%, IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. ACCORDINGLY, WE HOLD SO. THE ASSESSING OFFICER IS DIRECTED TO COMPUTE THE ADDITIONAL INCOME IN THE HANDS OF ASSESSEE IN EACH OF THE YEAR BY APPLYING THE NET PROFIT @ 20% OF THE UNDISCLOSED BUSINESS RECEIPTS IN EACH OF THE YEAR. ACCORDINGLY, THE GROUND OF APPEAL NO.1 RAISED BY THE REVENUE AGAINST ESTIMATION OF INCOME IS DECIDED AS INDICATED ABOVE. 3 6 . THE NEXT ISSUE RAISED BY WAY OF ADDITIONAL GROUND OF APPEAL IN EACH OF THE YEAR IS AGAINST THE DISALLOWANCE MADE UNDER SECTION 40A(3) OF THE ACT. THE ADDITIONAL GROUND OF APPEAL RAISED BY THE REVENUE IN RESPECT OF DISALLOWANCE MADE UNDER SECTION 40A(3) OF THE ACT DOES NOT INVOLVE ANY INVESTIGATION OF FACTS, ALL THE FACTS ARE AVAILABLE ON RECORD. ACCORDINGLY, WE ADMIT THE SAME. ONCE THE INCOME HAS BEEN ESTIMATED IN THE HANDS OF ASSESSEE AND IN THE ABSENCE OF ANY PARTICULAR EXPENDITURE BEING ALLOWED IN THE HANDS O F ASSESSEE, NO FURTHER DISALLOWANCE CAN BE MADE UNDER SECTION 40A(3) OF THE ACT. ACCORDINGLY, THE ADDITIONAL GROUND OF APPEAL IS ALSO DISMISSED. 3 7 . NOW, COMING TO THE GROUNDS OF APPEAL NO.3 AND 4 RAISED BY THE REVENUE IN ASSESSMENT YEAR 2007 - 08 AND GROU ND OF APPEAL NO.3 RAISED IN ASSESSMENT YEAR 2010 - 11, WHEREIN THE ASSESSING OFFICER HAD MADE THE ADDITION ON ACCOUNT OF FURTHER UNDISCLOSED RECEIPTS. THE SEIZED DOCUMENTS FOUND FROM THE POSSESSION OF ASSESSEE NOTED THE ENTRIES IN CODED FORM , WHICH WAS APPL IED BY THE ASSESSEE AND THE ASSESSING OFFICER IN ORDER TO WORK OUT THE BUSINESS ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 26 RECEIPTS IN THE HANDS OF ASSESSEE TOTALED TO RS.1.90 CRORES. THE ASSESSING OFFICER APPLIED THE SAME CODED FORM IN RESPECT OF ENTRIES IN THE SEIZED DOCUMENTS RELATING TO ASSESS MENT YEARS 2007 - 08 AND 2010 - 11 AND MADE THE AFORESAID ADDITIONS OF RS.8,91,000/ - AND RS.13,50,000/ - . THE CIT(A) ALLOWED THE CLAIM OF ASSESSEE HOLDING THAT THE SAID RECEIPTS WERE NOT RELATABLE TO THE SALE OF FLATS BECAUSE OF TIME GAP. WE FIND NO MERIT IN THE OBSERVATIONS OF CIT(A) IN THIS REGARD SINCE THE ASSESSEE HAS FAILED TO FILE ANY EVIDENCE TO ESTABLISH ITS CASE. ACCORDINGLY, WE REVERSE THE ORDER OF CIT(A) AND UPH O LD THE ADDITION OF RS.8,91,000/ - IN ASSESSMENT YEAR 2007 - 08 AND RS.13,50,000/ - IN ASSES SMENT YEAR 2010 - 11 MADE ON ACCOUNT OF UNDISCLOSED BUSINESS RECEIPTS. 3 8 . THE REVENUE IS NOT IN APPEAL AGAINST OTHER RELIEF S GIVEN BY THE CIT(A). ACCORDINGLY, WE DO NOT ADJUDICATE THE ALLOWANCE OF THE SAID RECEIPTS. THE GROUNDS OF APPEAL NO.3 AND 4 RAISE D IN ASSESSMENT YEAR 2007 - 08 AND GROUND OF APPEAL NO.3 RAISED IN ASSESSMENT YEAR 2010 - 11 RAISED BY THE REVENUE ARE ALLOWED. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE THUS, PARTLY ALLOWED. ITA NOS.834 TO 836/PUN/2013, RELATING TO ASSESSMENT YEARS 2008 - 09 TO 2010 - 11 M/S. GANESH BUILDERS 3 9 . NOW, COMING TO THE APPEALS FILED BY THE REVENUE AGAINST SISTER CONCERN M/S. GANESH BUILDERS IN ITA NOS.834 TO 836/PUN/2013, WHEREIN THE DOCUMENTS WERE FOUND FROM THE POSSESSION OF SHRI PRAMOD SOMIYA DURING THE SAME SEARCH UNDER SECTION 132 OF THE ACT CARRIED OUT AT HIS PREMISES ON 06.10.2010. THE FACTS OF THE PRESENT SET OF APPEALS ARE IDENTICAL TO THE FACTS AS IN THE CASE OF M/S. GAJANAN BUILDERS. ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 27 40 . THE FIRST ISSUE WHICH ARISES IN ALL THE APPEALS IS AGAIN ST ESTIMATION OF PROFIT ON UNRECORDED RECEIPTS, WHICH WERE FOUND RECORDED IN THE SEIZED DOCUMENTS FOUND AS IN THE CASE OF M/S. GAJANAN BUILDERS, THERE IS NO DISPUTE AS TO THE CALCULATION OF GROSS RECEIPTS. HOWEVER, THE REVENUE IS AGGRIEVED BY THE ORDER OF CIT(A) IN ESTIMATING THE INCOME BY APPLYING GP RATE OF 18% AS AGAINST THE ADDITION OF GROSS RECEIPTS IN THE HANDS OF ASSESSEE MADE BY THE ASSESSING OFFICER. 4 1 . WE HAVE ALREADY ADJUDICATED THE SAID ISSUE IN THE PARAS HEREINABOVE AND THE FACTS AND THE ISS UE ARE IDENTICAL AND FOLLOWING THE SAME REASONING, WE HOLD THAT THE NET PROFIT RATE IS TO BE APPLIED TO THE UNDISCLOSED BUSINESS RECEIPTS, IN ORDER TO ESTIMATE THE ADDITIONAL INCOME IN THE HANDS OF ASSESSEE IN THE RESPECTIVE YEARS. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO ADOPT NP RATE OF 20% TO WORK OUT THE ADDITIONAL INCOME IN ASSESSMENT YEARS 2008 - 09 TO 2010 - 11. 4 2 . THE SECOND ISSUE RAISED IN ALL THE APPEALS IS AGAINST THE DELETION OF DISALLOWANCE MADE UNDER SECTION 40A(3) OF THE ACT. SINCE THE INCOME HAS BEEN ESTIMATED IN THE HANDS OF ASSESSEE, NO FURTHER DISALLOWANCE CAN BE MADE UNDER SECTION 40A(3) OF THE ACT. AC CORDINGLY, WE HOLD SO. 4 3 . NOW, COMING TO THE ADDITIONAL ISSUE WHICH IS RAISED IN ASSESSMENT YEAR 2009 - 10 AGAINST DELETION OF ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT OF RS.25 LAKHS AND IN ASSESSMENT YEAR 2010 - 11 OF RS.13 LAKHS. ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 28 4 4 . THE LIMITED PLEA WHICH WAS RAISED BY THE ASSESSEE WAS THAT THE SAID ADDITION BE SET OFF AGAINST ADDITIONAL INCOME ASSESSED IN THE HANDS OF ASSESSEE. WE FIND MERIT IN THE PLEA OF ASSESSEE IN THIS REGARD. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO GIVE THE BENEFI T OF ADDITIONAL INCOME ASSESSED IN ASSESSMENT YEARS 2008 - 09 AND 2009 - 10 AGAINST ADDITION OF RS.25 LAKHS AND THE BALANCE IS TO BE ASSESSED IN THE HANDS OF ASSESSEE. IN ASSESSMENT YEAR 2010 - 11, THE ADDITIONAL INCOME ON ACCOUNT OF BUSINESS RECEIPTS MAY BE ADJ USTED AGAINST ADDITION OF RS.13 LAKHS AS BEING THE AMOUNT AVAILABLE AND THE BALANCE BE ADDED IN THE HANDS OF ASSESSEE. ACCORDINGLY, THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE THUS, PARTLY ALLOWED. ITA NOS. 839 & 840 /PUN/2013, RELATING TO ASSESSMENT Y EARS 200 9 - 1 0 AND 2010 - 11 SHRI PRAMOD T. SOMAIYA 4 5 . FURTHER, THE REVENUE HAS ALSO FILED APPEALS AGAINST THE ORDER OF CIT(A) RELATING TO ASSESSMENT YEARS 2009 - 10 AND 2010 - 11 IN THE CASE OF SHRI PRAMOD T. SOMAIYA ON DELETION OF PROTECTIVE ADDITION MADE ON ACCOUNT OF UNDISCLOSED INVESTMENTS OF RS.25 LAKHS AND RS.13 LAKHS. WE HAVE ALREADY UPHELD THE ADDITION OF RS.25 LAKHS AND RS.13 LAKHS IN THE CASE OF M/S. GANESH BUILDERS ON SUBSTANTIVE BASIS. HOWEVER, CREDIT IS TO BE ALLOWED ON THE AVAILABILITY OF AMOUN T ON ACCOUNT OF ADDITIONAL BUSINESS RECEIPTS. ACCORDINGLY, NO FURTHER ADDITION IS TO BE MADE IN THE HANDS OF PRESENT ASSESSEE ON PROTECTIVE BASIS. ACCORDINGLY, WE UPHOLD THE ORDER OF CIT(A) IN DELETING THE SAME. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE THUS, DISMISSED. ITA NO. 1543 TO 1549/PUN/2013 ITA NOS.834 TO 836/PUN/2013 ITA NOS.839 & 840/PUN/2013 M/S.GAJANAN BUILDERS & ORS 29 4 6 . IN THE RESULT, APPEALS OF REVENUE IN ITA NOS.1543 TO 1549/PUN/2013 AND IN ITA NOS.834 TO 836/PUN/2013 ARE PARTLY ALLOWED AND APPEALS OF REVENUE IN ITA NOS.839 & 840/PUN/2013 ARE DISMISSED. ORDER P RONOUNCED ON THIS 1 ST DAY OF MAY , 201 7 . SD/ - SD/ - ( M.K.AGGARWAL) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 1 ST MAY , 201 7 . S S G G R R / / G G C C V V S S R R / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A ) - 1, NASHIK ; 4. / THE CIT I, NASHIK ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER, // TRUE COPY // / ASSISTANT REGISTRAR, , / ITAT, PUNE