M/S. SAMIRA HABITATS INDIA LTD, Mumbai V. ACIT CENT. CIR-35(NOW DCIT CC-6(2) , MUMBAI

MA 304/MUM/2023

AI Insights

The case involves M/s Samira Habitats India Ltd., which sought a rectification of an earlier Tribunal order concerning the assessment year 2006-07. The original Tribunal order mistakenly referred to the addition of 10% of the 'sales' instead of 'unrecorded sales'. The assessee argued that this was an oversight and requested the correction to reflect the addition should be 10% of the unrecorded sales, which was supported by evidence of unrecorded expenses related to the on-money received for the Nagaon project. The Tribunal acknowledged the error and rectified the order accordingly.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123688 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-08-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 18-05-2023
• Assessment Year: 2006-2007
• Appeal Filed On: 17-04-2023
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Document seized; Documents seized
• Section: 153A; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “H” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND MS. KAVITHA RAJAGOPAL (JUDICIAL MEMBER) M.A. No. 304/MUM/2023 (Arising out of ITA No. 529/MUM/2022) Assessment Year: 2006-07 M/s Samira Habitats India Ltd., G-8, Shrikant Chambers, Chembur, Mumbai-400071. Vs. Assistant Commissioner of Income-tax, Central Circle- 35, [Now DCIT, CC-6(2)] Room No. 104, Aayakar Bhavan, Mumbai-400020. PAN No. AABCS 1677 F Appellant Respondent Assessee by : Mr. Gaurav Kabra Revenue by : Mr. Sridhar G. Menon Date of Hearing : 19/05/2023 Date of pronouncement : 11/08/2023 ORDER PER OM PRAKASH KANT, AM By way of this Miscellaneous Application, the assessee is seeking recall/rectification of the order of Tribunal passed on 28.10.2022 in ITA No. 529/Mum/2022 for assessment year 2006- 07. 2. Before us, the Ld. Counsel of the assessee submitted that in para 10 of the order of the Tribunal an inadvertent error of noting “the sales” in place of “unrecorded sales”. Though in the paragraph 10, it has been clearly mentioned that percentage was to applied over the unrecorded sales but d “unrecorded” mistake submissions of the assessee are reproduced as under: “2. The fact of the case is the during the year under consideration the Ld. Assessing Officer has made the addition of Rs.30,58,864/ Nagaon project. The Ld. CIT(A) sustained the said addition against which assessee preferred an appeal before the Hon'ble ITAT. Before Your Honour's, the appellant took an alternate plea that Ld A should not have added the money specially when there are evidences of unrecorded expenses related to the said receipt of on prayed that the addition should be restricted to 10% of the on money quantified by the AO. This plea of the receipt o money has been discussed in detail and the relevant decision is given in para 10 on page no 16 of the ITAT order. The relevant extract is reproduced for your Honour's reference: "10. In the seized documents also reference of payment of 6, 00, 77, 175/ light of statements of the brokers and seized documents, it cannot be denied that on purchase of land by issue of addition of on section 153A for search period i.e AY 2007 has been restored back to the file of the Assessing Officer by the Tribunal wide order dated 19/0712022, therefore, in the facts and circumstances of the case, we feel it appropriate to restore the issue grounds raised by the assessee to the file of the Learned Assessing Officer for considering the claim of the assessee for making micend addition for undisclosed income for on after giving set for purchase of the land. assessee accordingly allowed for statistical purposes. 3. Your Honour's has considered the alternate plea of the appellant and also noted the evidence of expenses in above M/s Samira Habitats India Ltd. 10, it has been clearly mentioned that percentage was to applied over the unrecorded sales but due to omission of the word nrecorded” mistake has occurred in the order. The relevant submissions of the assessee are reproduced as under: 2. The fact of the case is the during the year under consideration the Ld. Assessing Officer has made the addition of Rs.30,58,864/- on account of alleged on-money in respect of Nagaon project. The Ld. CIT(A) sustained the said addition against which assessee preferred an appeal before the Hon'ble ITAT. Before Your Honour's, the appellant took an alternate plea that Ld A should not have added the gross amount of on money specially when there are evidences of unrecorded expenses related to the said receipt of on-money. The appellant prayed that the addition should be restricted to 10% of the on money quantified by the AO. This plea of the receipt o money has been discussed in detail and the relevant decision is given in para 10 on page no 16 of the ITAT order. The relevant extract is reproduced for your Honour's reference: "10. In the seized documents also reference of payment of 6, 00, 77, 175/- for purchase of the lands. Thus, in the light of statements of the brokers and seized documents, it cannot be denied that on-money was paid while purchase of land by the assessee. We find that identical issue of addition of on-money in assessments under section 153A for search period i.e AY 2007 has been restored back to the file of the Assessing Officer by the Tribunal wide order dated 19/0712022, therefore, in the facts and circumstances of the case, we feel it appropriate to restore the issue in dispute involving grounds raised by the assessee to the file of the Learned Assessing Officer for considering the claim of the assessee for making micend addition for undisclosed income for on-money at the rate of the 10% of the sales after giving set off of the expenses of on-money incurred for purchase of the land. The grounds of the appeal of the assessee accordingly allowed for statistical purposes. 3. Your Honour's has considered the alternate plea of the appellant and also noted the evidence of expenses in above M/s Samira Habitats India Ltd. 2 M.A No. 304/Mum/2023 10, it has been clearly mentioned that percentage was to applied ue to omission of the word as occurred in the order. The relevant submissions of the assessee are reproduced as under: 2. The fact of the case is the during the year under consideration the Ld. Assessing Officer has made the addition money in respect of Nagaon project. The Ld. CIT(A) sustained the said addition against which assessee preferred an appeal before the Hon'ble ITAT. Before Your Honour's, the appellant took an alternate gross amount of on- money specially when there are evidences of unrecorded money. The appellant prayed that the addition should be restricted to 10% of the on- money quantified by the AO. This plea of the receipt of on- money has been discussed in detail and the relevant decision is given in para 10 on page no 16 of the ITAT order. The relevant extract is reproduced for your Honour's reference: "10. In the seized documents also reference of payment for purchase of the lands. Thus, in the light of statements of the brokers and seized documents, money was paid while the assessee. We find that identical money in assessments under section 153A for search period i.e AY 2007-08 onward has been restored back to the file of the Assessing Officer by the Tribunal wide order dated 19/0712022, therefore, in the facts and circumstances of the case, we feel it in dispute involving grounds raised by the assessee to the file of the Learned Assessing Officer for considering the claim of the assessee for making micend addition for undisclosed money at the rate of the 10% of the sales money incurred The grounds of the appeal of the assessee accordingly allowed for statistical purposes. 〃 3. Your Honour's has considered the alternate plea of the appellant and also noted the evidence of expenses in above para which were incurred out of books from the said on However, while giving the decision Your Honours have inadvertently mentioned restricted at the rate of the 10% of the sales after giving set of the expenses of on instead of 10% of unrecorded sales i.e. on effect of the said order Ld AO pro restricted as 10% of the recorded sales, which was never the intention of the Hon'ble Bench. It appears that the above direction seems to be due to oversight due to which it was inadvertently mentioned the word 10% of sales instead of On-money/unrecorded sales. 4. It may also be noted that in the alternate plea, the appellant has not disputed the on was pleaded not to consider the entire on only the profit element embed evidences of expenses, which was duly considered by the Hon'ble Bench. Hence we humbly request your honour's to kindly rectify the said order U/s 254(2) of the Act, by amending the direction to restrict the addition to the ext money/unrecorded sales as quantified by the AO based on statement of the director. 3. We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. In para 10, the Tribunal has given th on unrecorded sales in last 3 rd line of para, “unrecorded sales”, it is mentioned as apparent mistake on of the appeal and same should be read as “10. In the seized documents of 6,00,77,175/ light of statements of the brokers and seized do it cannot be denied that on purchase of land by M/s Samira Habitats India Ltd. para which were incurred out of books from the said on However, while giving the decision Your Honours have inadvertently mentioned that the addition for on restricted at the rate of the 10% of the sales after giving set of the expenses of on-money incurred on purchase of land instead of 10% of unrecorded sales i.e. on-money. While giving effect of the said order Ld AO proposed the addition to be restricted as 10% of the recorded sales, which was never the intention of the Hon'ble Bench. It appears that the above direction seems to be due to oversight due to which it was inadvertently mentioned the word 10% of sales instead money/unrecorded sales. 4. It may also be noted that in the alternate plea, the appellant has not disputed the on-money quantified by the Ld AO and it was pleaded not to consider the entire on-money as income but only the profit element embedded therein after considering evidences of expenses, which was duly considered by the Hon'ble Bench. Hence we humbly request your honour's to kindly rectify the said order U/s 254(2) of the Act, by amending the direction to restrict the addition to the extent of 10% of on money/unrecorded sales as quantified by the AO based on statement of the director.” We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. In para 10, the Tribunal has given the finding for assessing 10% profit after setoff of unrecorded expenses of para, inadvertently instead of mentioning , it is mentioned as “sales”. apparent mistake on record, accordingly, we rectify the para No. 10 and same should be read as under: 10. In the seized documents also reference of payment 175/- for purchase of the lands. Thus, in the light of statements of the brokers and seized documents, it cannot be denied that on-money was paid while purchase of land by the assessee. We find that identical M/s Samira Habitats India Ltd. 3 M.A No. 304/Mum/2023 para which were incurred out of books from the said on-money. However, while giving the decision Your Honours have that the addition for on-money is restricted at the rate of the 10% of the sales after giving set-off money incurred on purchase of land money. While giving posed the addition to be restricted as 10% of the recorded sales, which was never the intention of the Hon'ble Bench. It appears that the above direction seems to be due to oversight due to which it was inadvertently mentioned the word 10% of sales instead of 10% 4. It may also be noted that in the alternate plea, the appellant money quantified by the Ld AO and it money as income but ded therein after considering evidences of expenses, which was duly considered by the Hon'ble Bench. Hence we humbly request your honour's to kindly rectify the said order U/s 254(2) of the Act, by amending ent of 10% of on- money/unrecorded sales as quantified by the AO based on We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. In para 10, e finding for assessing 10% profit element after setoff of unrecorded expenses. However, inadvertently instead of mentioning . This being an we rectify the para No. 10 also reference of payment for purchase of the lands. Thus, in the cuments, money was paid while the assessee. We find that identical issue of addition of on section 153A for search period i.e has been restored back to the file o by the Tribunal wide order dated 19/0712022, therefore, in the facts and circumstances of the case, we feel it appropriate to restore the issue in dispute involving grounds raised by the assessee to the file of the Learned Assessing Officer for considering the claim of the assessee for making micend addition for undisclosed income for on unrecorded sales on-money incurred for purchase of the land. of the appeal of the assessee accordingly allowed for statistical purposes. 4. In the result, the Miscellaneous Application of the assessee is allowed. Order pronounced in the open Court on Sd/ (KAVITHA RAJAGOPAL JUDICIAL MEMBER Mumbai; Dated: 11/08/2023 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// M/s Samira Habitats India Ltd. issue of addition of on-money in assessments under section 153A for search period i.e. AY 2007-08 onward has been restored back to the file of the Assessing Officer by the Tribunal wide order dated 19/0712022, therefore, in the facts and circumstances of the case, we feel it appropriate to restore the issue in dispute involving grounds raised by the assessee to the file of the Learned Officer for considering the claim of the assessee for making micend addition for undisclosed income for on-money at the rate of the 10% of the unrecorded sales after giving set off of the expenses of money incurred for purchase of the land. The grounds of the appeal of the assessee accordingly allowed for statistical purposes.” In the result, the Miscellaneous Application of the assessee is nounced in the open Court on 11/08/2023. Sd/- KAVITHA RAJAGOPAL) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai M/s Samira Habitats India Ltd. 4 M.A No. 304/Mum/2023 money in assessments under 08 onward f the Assessing Officer by the Tribunal wide order dated 19/0712022, therefore, in the facts and circumstances of the case, we feel it appropriate to restore the issue in dispute involving grounds raised by the assessee to the file of the Learned Officer for considering the claim of the assessee for making micend addition for undisclosed money at the rate of the 10% of the after giving set off of the expenses of The grounds of the appeal of the assessee accordingly allowed for In the result, the Miscellaneous Application of the assessee is /08/2023. Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER BY ORDER, (Assistant Registrar) ITAT, Mumbai