NAVKAR REALTORS, MUMBAI v. ACIT - 19(3), MUMBAI

ITA 2686/MUM/2018 | 2011-2012
Pronouncement Date: 21-11-2019 | Result: Partly Allowed

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Appeal Details

RSA Number 268619914 RSA 2018
Assessee PAN MOUNT1002M
Bench Mumbai
Appeal Number ITA 2686/MUM/2018
Duration Of Justice 1 year(s) 6 month(s) 19 day(s)
Appellant NAVKAR REALTORS, MUMBAI
Respondent ACIT - 19(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 21-11-2019
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 21-11-2019
Last Hearing Date 29-07-2020
First Hearing Date 29-07-2020
Assessment Year 2011-2012
Appeal Filed On 02-05-2018
Judgment Text
1 M/S NAVKAR REALTORS ASSESSMENT YEARS: 2010-11 & 2011-12 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH MUMBAI BEFORE SHRI SAKTIJIT DEY JM AND SHRI MANOJ KUMAR AGGARWAL AM 1. . / I.T.A. NO.2683/MUM/2015 ( / ASSESSMENT YEAR:2010-11) & 2. . / I.T.A. NO.2686/MUM/2018 ( / ASSESSMENT YEAR:2011-12) M/S. NAVKAR REALTORS C-1/12 HARI OM APARTMENTS BEHIND M/S. VIJAY SALES S.V. ROAD BORIVALI (W) MUMBAI-400 092. / VS. D CIT - 19(3) PIRAMAL CHAMBER LALBAUG MUMBAI. !' ./ ./PAN/GIR NO. AAGFN-5226-P ( '$ /APPELLANT ) : ( %&'$ / RESPONDENT ) & 3. . / I.T.A. NO.7196/MUM/2016 ( / ASSESSMENT YEAR:2011-12) A CIT - 23(2) MATRU MANDIR ROOM NO.122 TARDEO MUMBAI-400 008. / VS. M/S. NAVKAR REALTORS C-1/12 HARI OM APARTMENTS BEHIND M/S. VIJAY SALES S.V. ROAD BORIVALI (W) MUMBAI-400 092. !' ./ ./PAN/GIR NO. AAGFN-5226-P ( '$ /APPELLANT ) : ( %&'$ / RESPONDENT ) '$ / APPELLANT BY : SHRI BHUPENDRA SHAH - LD. AR %&'$) / RESPONDENT BY : MS. KAVITA P. KAUSHIK - LD. DR /DATE OF HEARING : 25/09/2019 / DATE OF PRONOUNCEMENT : 21/11/2019 2 M/S NAVKAR REALTORS ASSESSMENT YEARS: 2010-11 & 2011-12 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER): - 1.1 AS EVIDENT FROM CAUSE-TITLES THE ASSESSEE IS U NDER APPEAL FOR ASSESSMENT YEARS (AY) 2010-11 & 2011-12 WHEREAS THE REVENUE IS UNDER APPEAL FOR AY 2011-12. THE ASSESSEES APPEAL FOR AY 2010-11 IS RECALLED MATTER SINCE THE APPEAL WAS ORIGINALLY DISPOSED-OFF EX-PARTE QUA THE ASSESSEE VIDE ORDER DATED 17/07/2018. HOWEVER THIS ORDER HAS SUBSEQUENTLY BEEN RECALLED UPON ASSESSEES APPLICA TION VIDE MA NO. 38/MUM/2019 ORDER DATED 07/06/2019. ACCORDINGLY TH E APPEAL HAS COME UP FOR FRESH HEARING BEFORE THIS BENCH. THE GROUNDS RAISED BY THE ASSESSEE IN AY 2010-11 RE ADS AS UNDER: - THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED IN SUSTAINING THE DISALLOWANCE MADE BY A.O. I.E. THE TOTAL EXPENSES O F RS.24 96 647/- CLAIMED AGAINST THE ADDITIONAL INCOME DISCLOSED BY THE APPELLANT IN THE REVISED RETURN ON INCOME. THE GROUNDS RAISED BY THE ASSESSEE IN AY 2011-12 RE ADS AS UNDER: - [AL GROUNDS OF APPEAL: 1) IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX(A) ERRED IN CONFIRMING THE ORDER U/S 143(3) EVEN THOUGH STATEMENT RECORDED U/S 133A HAS NO EVIDENTIARY VALUE. 2) IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX(A) ERRED IN CONFIRMING ADDITION OF RS .4 58 17 422/- IN RESPECT OF ALLEGED SALES CONSIDERATION. WITHOUT PREJUDICE TO THE ABOVE AND ALTERNATIVELY 3) IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX(A) ERRED IN CONFIRMING RS.4 58 17 422 /- OUT OF THE TOTAL ADDITION OF RS.5 58 17 422/- MADE BY THE AO BY STATING THAT RS. 1 00 00 000/- HAS BEEN ADDED ON PROTECTIVE BASIS SINCE THE APPELLANT HAS ALREADY DI SCLOSED THE SAME IN THE RETURN OF INCOME FOR AY 2010-11 WHICH HAS BEEN CONFIRMED BY H IM AND ALSO A SET OFF OF RS.1 00 00 000/- HAS BEEN GIVEN BY HIM AGAINST RS.5 58 17 422/-. 4) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE ASSESSING OFFICER ERRED IN LEVYING PENALTY U/S 271(L)(C) AND CHARGING INTEREST U/S 234A B & C. 3 M/S NAVKAR REALTORS ASSESSMENT YEARS: 2010-11 & 2011-12 5) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE COMMISSIONER OF INCOME TAX(A) ERRED IN CONFIRMING THE ABOVE ADDITIONS. [B] RELIEF PRAYED: 1) TO QUASH THE ASSESSMENT MADE U/S 143(3) PASSED O N THE BASIS OF STATEMENT U/S 133A. 2) TO DELETE THE ADDITION OF RS. 4 58 17 422/- IN R ESPECT OF SALES CONSIDERATION. 3) TO DELETE INTEREST CHARGED U/S 234 AND INITIATIO N OF PENALTY U/S 271(1) (C) [CL GENERAL-.- THE APPELLANT RESERVE RIGHTS TO ADD ALTER OR D ELETE ANY PORTION OF THIS APPEAL BEFORE ITS CONCLUSION THIS APPEAL IS FILED LATE FOR WHICH PETITION F OR CONDONATION OF DELAY IN ENCLOSED A DETAILED PAPER BOOK ALONG WITH CASE LAWS WIL L BE SUBMITTED AT THE TIME OF HEARING. THE GROUNDS RAISED BY THE REVENUE IN AY 2011-12 REA DS AS UNDER: - (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) ERRED IN DELETING THE PROTECTIVE ADDITION INCOME OF RS 1 CRO RE WHEN IN FACT THE A.Y 2010-2011 WHEREIN SUBSTANTIVE ADDITION WERE MADE HAS NOT YE T REACHED FINALITY AS THE ASSESSES IS CONTESTING THE SUBSTANTIVE ADDITION BEFORE HONB LE ITAT. (2) THE APPELLANT PRAYS THAT THE ORDER OF THE C.I.T (A)-33 MUMBAI ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE A.O BE RESTORED.' 2.1 FACTS FROM ASSESSMENT RECORDS FOR AY 2010-11 WO ULD REVEAL THAT THE ASSESSEE BEING RESIDENT FIRM STATED TO BE ENGAGED A S BUILDER WAS ASSESSED FOR YEAR UNDER CONSIDERATION U/S 143(3) ON 28/03/20 13 WHEREIN THE INCOME WAS DETERMINED AT RS.125.42 LACS AFTER CERTAIN ADDI TIONS AS AGAINST RETURNED INCOME OF RS.23.17 LACS FILED BY THE ASSES SEE ON 21/09/2010 WHICH WAS LATER ON REVISED TO RS.83.39 LACS ON 28/0 9/2011. THE REVISED RETURN WAS FILED SUBSEQUENT TO SURVEY OPERATIONS U/ S 133A BEING CARRIED OUT BY THE REVENUE AT ASSESSEES PREMISES ON 15/02/2011 . 2.2 DURING ASSESSMENT PROCEEDINGS IT TRANSPIRED TH AT THE ASSESSEE HAD DEVELOPED A PROJECT NAMELY BRIJ APARTMENT AT BORIVALI. DURING SURVEY OPERATIONS STATEMENT OF ONE OF THE PARTNERS NAMELY SHRI SATISH RAUT WAS RECORDED. IN REPLY TO QUESTION NO. 10 THE SAID PAR TNER ADMITTED THAT CASH 4 M/S NAVKAR REALTORS ASSESSMENT YEARS: 2010-11 & 2011-12 RECEIVED AGAINST SALE OF FLATS WAS NOT ACCOUNTED FO R IN THE BOOKS OF ACCOUNTS. THE CASH WAS STATED TO BE RECEIVED OVER A ND ABOVE THE AGREEMENT VALUE ENTERED INTO BY THE ASSESSEE WITH T HE PURCHASERS OF THE FLATS. ACCORDINGLY THE SAID PARTNER OFFERED AGGREG ATE CASH RECEIPTS OF RS.318.74 LACS AS ADDITIONAL INCOME FROM THE PROJEC T FOR AYS 2010-11 & 2011-12. THE SAID DISCLOSURE WAS STATED TO BE NET O F ALL EXPENDITURE INCLUDING SALARY TO PARTNERS OR ANY OTHER MISCELLAN EOUS EXPENDITURE. THE DISCLOSURE WAS STATED TO BE MADE AFTER CONSULTING A LL THE PARTNERS OF THE FIRM. THE RELEVANT EXTRACT OF THE STATEMENT RECORDE D DURING THE COURSE OF SURVEY OPERATIONS HAS ALREADY BEEN REPRODUCED IN TH E QUANTUM ASSESSMENT ORDER. SUBSEQUENT TO SURVEY OPERATIONS THE ASSESSEE REVISED ITS RETURN OF INCOME BY ENHANCING ORIGINAL RETURNED INCOME OF RS.23.17 LACS TO RS.83.39 LACS. IN OTHER WORDS THE INCOME WAS EN HANCED BY RS.60.22 LACS IN THE REVISED RETURN OF INCOME. 2.3 THE ASSESSEE SUBMITTED THAT IT HAS FILED REVISE D RETURN SO AS TO DISCLOSE ADDITIONAL INCOME OF RS.100 LACS FOR YEAR UNDER CONSIDERATION OUT OF TOTAL DISCLOSURE OF RS.318.74 LACS MADE DURING S URVEY OPERATIONS. THE LD. AO NOTICING THAT THE REVISED RETURNED INCOME S HOULD HAVE BEEN ENHANCED BY RS.100 LACS AS AGAINST RS.60.22 LACS AC TUALLY ENHANCED BY THE ASSESSEE IN THE REVISED RETURN OF INCOME SHOW- CAUSED THE ASSESSEE TO EXPLAIN THE SAME. THE ASSESSEE SUBMITTED THAT IT CL AIMED ADDITIONAL EXPENDITURE OF RS.24.96 LACS AS PER WIP METHOD AND THE EXPENDITURE WAS ALLOWABLE SINCE THE INCOME WAS TO BE ASSESSED ON NE T BASIS. HOWEVER REJECTING THE SAME THE LD. AO ADDED AN AMOUNT OF R S.39.78 LACS TO THE 5 M/S NAVKAR REALTORS ASSESSMENT YEARS: 2010-11 & 2011-12 INCOME OF THE ASSESSEE BEING DIFFERENTIAL OF RS.10 0 LACS AND ENHANCEMENT OF RS.60.22 LACS ALREADY OFFERED BY THE ASSESSEE IN THE REVISED RETURN OF INCOME. 3. THE LEARNED FIRST APPELLATE AUTHORITY CONFIRMED THE STATED ADDITION MADE BY LD. AO BY OBSERVING AS UNDER: - 13. I HAVE GONE THROUGH THE ASSESSMENT ORDER PASSED BY THE AO AS WELL THE ABOVE SUBMISSIONS MADE BY THE APPELLANT CAREFULLY. 14. AS CAN BE GATHERED FROM THE FACTS STATED IN THE ASSESSMENT ORDER THE APPELLANT WAS SUBJECTED TO SURVEY U/S.133A AT ITS BUSINESS PREMIS ES ON 15.02.2011. DURING THE COURSE OF SURVEY IN THE STATEMENT RECORDED THE PARTNER OF THE APPELLANT FIRM SHRI SATISH RAUT AT QUESTION NO. 10 OF THE STATEMENT HAD ADMITTED T HAT THE CASH AMOUNTS RECEIVED AGAINST SALE OF FLATS WERE NOT ACCOUNTED IN THE BOO KS OF ACCOUNTS AND HE FURTHER AGREED TO OFFER THE CASH RECEIPT OF RS. 3 18 74 808/- AS A DDITIONAL INCOME OF THE PROJECT FOR THE F.Y.2010-11 RELEVANT TO A.Y. 2011-12. THE INCOME DI SCLOSED WAS OVER AND ABOVE THE INCOME ALREADY OFFERED IN THE RETURNS FILED FOR A.Y .2008-09 TO 2010-11. 15. THE PARTNER OF THE APPELLANT FIRM FURTHER IN RE SPONSE TO QUESTION NO.14 OF THE STATEMENT STATED THAT THE ADDITIONAL INCOME DISCLO SED WAS NET OF ALL EXPENDITURE INCLUDING SALARY TO PARTNERS OR OTHER MISCELLANEOUS EXPENDITURE AND ALL THESE EXPENDITURES HAVE ALREADY BEEN ACCOUNTED FOR IN THE REGULAR BOOKS OF ACCOUNTS. 16. DURING THE COURSE OF SURVEY U/S 133A THE APPEL LANT FIRM HAD DECLARED THE ADDITIONAL INCOME OF RS.3 18 74 808/- AND OFFERED IT FOR TAXAT ION FOR THE PERIOD RELEVANT TO A.Y. 2011-12. BUT LATER ON DURING THE COURSE OF ASSESSME NT PROCEEDINGS THE APPELLANT FIRM REVISED THE RETURN OF INCOME FOR THE YEAR UNDER CON SIDERATION I.E. A.Y. 2010-11 AND OFFERED AN AMOUNT OF RS. 1 CRORE FOR TAXATION BY IN CLUDING THIS AMOUNT IN THE TOTAL INCOME AS DECLARED IN THE REVISED RETURN OF INCOME FILED. WHILE OFFERING THE ADDITIONAL INCOME OF RS. 1 CRORE FOR TAXATION IN THE REVISED R ETURN OF INCOME THE APPELLANT HAS ALSO CLAIMED EXPENSES TO THE EXTENT OF RS.24 96 650/- AS PER WIP METHOD AND THUS REDUCED THE ADDITIONAL INCOME OFFERED FOR TAXATION DURING T HE COURSE OF SURVEY. THE ABOVE ACTION OF THE APPELLANT FIRM NOW CLAIMING THE ADDITIONAL E XPENSES AGAINST THE ADDITIONAL INCOME DECLARED DURING THE SURVEY CANNOT BE ACCEPTED. 17.IT IS CLEAR FROM THE FACTS OUTLINED IN THE ASSES SMENT ORDER OF THE AO THAT THE ADDITIONAL INCOME OF RS.1 CRORE OFFERED FOR TAXATIO N FOR THE PERIOD UNDER CONSIDERATION WAS OVER AND ABOVE THE REGULAR INCOME AND SECONDLY NET OF ALL THE EXPENSES. THE PARTNER OF THE APPELLANT FIRM SHRI SATISH RAUT IN THE STATEMENT RECORDED DURING THE COURSE SURVEY HAD CATEGORICALLY ADMITTED IN THE ANS WER TO QUESTION NO. 14 THAT THE ADDITIONAL INCOME DISCLOSED WAS NET OF ALL EXPENDIT URE INCLUDING SALARY TO PARTNERS OR OTHER MISCELLANEOUS EXPENDITURE AND ALL THESE EXPEN DITURES HAVE ALREADY BEEN ACCOUNTED FOR IN THE REGULAR BOOKS OF ACCOUNTS. THE REFORE THERE IS NO QUESTION OF NOW CLAIMING ANY ADDITIONAL EXPENSES OF RS.24 96 650/- AGAINST THE ADDITIONAL INCOME OFFERED FOR TAXATION AS MENTIONED ABOVE THE PARTN ER OF THE FIRM HAS CATEGORICALLY STATED 6 M/S NAVKAR REALTORS ASSESSMENT YEARS: 2010-11 & 2011-12 IN THE STATEMENT RECORDED DURING THE COURSE OF SURV EY THAT THE ADDITIONAL INCOME DECLARED WAS NET OF ALL EXPENDITURE AND NOW CLAIMIN G THE EXPENDITURE ON THE ADDITIONAL INCOME IS JUST AN AFTERTHOUGHT TO REDUCE THE ALREAD Y ADMITTED TAX LIABILITY. SUCH TACTICS OF EVASION OF TAXES CANNOT BE ALLOWED TO THE APPELLANT . MOREOVER THE EXPENDITURE CLAIMED IS NOT SUPPORTED BY ANY CREDIBLE DOCUMENTARY EVIDEN CE AND THEREFORE THE SAME CANNOT BE ALLOWED. 18. IN VIEW OF THE FACTS AND CIRCUMSTANCES EXPLAINE D ABOVE I DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE AO DISALLOWING THE EXPENDITURE CLA IMED AND MAKING AN ADDITION OF RS.39 77 990/- TO THE INCOME OF THE APPELLANT FOR T HE PERIOD UNDER CONSIDERATION. THE ADDITION MADE IS CONFIRMED. THIS GROUND OF APPEAL O F THE APPELLANT IS ACCORDINGLY DISMISSED. AGGRIEVED THE ASSESSEE IS UNDER APPEAL BEFORE US. 4.1 IN AY 2011-12 THE ASSESSEE WAS SIMILARLY ASSES SED U/S 143(3) ON 05/03/2014 WHEREIN THE INCOME WAS DETERMINED AT RS. 634.14 LACS AFTER CERTAIN ADDITIONS AS AGAINST RETURNED INCOME OF RS. 45.96 LACS FILED BY THE ASSESSEE ON 30/09/2011 WHICH IS SUBSEQUENT TO THE D ATE OF SURVEY U/S 133A I.E. 15/02/2011. THE ASSESSMENT ORDER TAKES NO TE OF THE FACT THAT INCRIMINATING DOCUMENTS WERE FOUND DURING SURVEY OP ERATIONS INDICATING CASH RECEIPTS OVER AND ABOVE AGREEMENT VALUES REFLE CTED IN BOOKS OF ACCOUNTS AND THE SAME WAS IMPOUNDED. THE DISCLOSURE OF RS.318.74 LACS WAS SUPPORTED BY THE LOOSE PAPER WHICH WAS FOUND AN D IMPOUNDED DURING SURVEY. HOWEVER IN THIS AY THE ASSESSEE DID NOT I NCORPORATE THE BALANCE DISCLOSURE OF RS.218.74 LACS I.E. RS.318.74 LACS LESS RS.100 LACS ALREADY DECLARED IN AY 2010-11. ACCORDINGLY THE ASSESSEE W AS SHOW-CAUSED AND CONFRONTED WITH THE STATEMENT MADE BY THE AFORESAID PARTNER WHEREIN IT WAS ADMITTED THAT CASH RECEIVED AGAINST SALE OF FLATS W AS NOT ACCOUNTED FOR IN THE REGULAR BOOKS OF ACCOUNTS AND THE SAID CASH WAS OVER AND ABOVE THE AGREEMENT VALUE ENTERED INTO BETWEEN THE ASSESSEE A ND THE PURCHASERS. 7 M/S NAVKAR REALTORS ASSESSMENT YEARS: 2010-11 & 2011-12 4.2 THE ASSESSEE FAILED TO DEFEND THE SAME AND ALSO FAILED TO COMPLY WITH VARIOUS NOTICES U/S 142(1) CALLING FOR REQUISITE IN FORMATION. FINALLY A LETTER WAS SUBMITTED IN TAPAL ON 28/02/2014 STATING THAT THE DISCLOSED AMOUNT OF RS.318.74 LACS FORMED PART OF SALE CONSIDERATION RE FLECTED IN THE BOOKS OF ACCOUNTS AND THE INCOME WAS DECLARED AS PER RECKONE R VALUE AND THEREFORE THERE WOULD BE NO DECLARATION TO BE MADE OTHER THAN THAT MADE IN THE RETURN OF INCOME SUBMITTED BY THE ASSESSEE. IN OTHER WORDS THE ASSESSEE DEFENDED ITS RETURN OF INCOME. HOWEVER TH E ASSESSEE FAILED TO SUPPLY ANY INFORMATION AS TO THE TOTAL NUMBER OF FL ATS CONSTRUCTED BY IT AND SOLD ON YEAR TO YEAR BASIS AND ALSO FAILED TO SUBMI T THE DETAILS OF FLATS REMAINING UNSOLD AT THE END OF EACH YEAR. 4.3 AFTER DUE CONSIDERATION OF FACTUAL MATRIX LD.A O PROCEEDED TO MAKE ADDITIONS OF RS.588.17 LACS IN THE HANDS OF THE ASS ESSEE WHICH WERE CRYSTALIZED IN THE FOLLOWING MANNER: - THE FOLLOWING ISSUES EMERGE FROM THIS CASE. 4. ADDITIONAL EXPENDITURE CLAIMED BY ASSESSEE WHICH WAS NOT THERE IN BOOKS AT THE TIME OF SURVEY. AS PER THE PROFIT AND LOSS ACCOUNT OF THE ASSESSEE THERE WAS DIRECT EXPENSES OF RS.6 96 420/- AND INDIRECT EXPENSES OF RS.4 83 420/- AS PER PROFIT LO SS ACCOUNT PREPARED ON THE DATE OF SURVEY. THE ABOV E FIGURES WAS CERTIFIED DURING SURVEY BY THE MANAGEME NT (COPY OF PROFIT AND LOSS ACCOUNT IS MADE OUT OF ORDER AS ANNEXURE-Y) WHILE IN THE RETURN FILED FOR A.Y. 2011-12 THE ASSESSEE HAS CLAIMED DIRECT EXPENSES OF RS.1 63 11 847/- AND INDIRECT EXPENSES OF RS.24 19 134/- WHICH IS CONTRARY TO THE DETAILS FOUND DURING COURSE OF SURVEY. 5. AMOUNT RECEIVED SHOWN IN BOOKS AT THE TIM E OF SURVEY AND ITS COMPARISON WITH PAGE NO. 26 OF ANN.AL IMPOUNDED DURING SURVEY. FURTHER AS ON DATE OF SURVEY THE AMOUNT RECEIVED FR OM VARIOUS CUSTOMERS AS PER TRIAL BALANCE WAS AS UNDER (THE TRIAL BALANCE AS ON DATE OF SURVEY IS MA DE PART OF ORDER AS ANNEXURE-Z): FLAT NO. NAME AMOUNT 1002 MANSUKH SHAH 3377738 1003 VITHAL GHAG 1000000 8 M/S NAVKAR REALTORS ASSESSMENT YEARS: 2010-11 & 2011-12 203 CHETAN SHAH 15 00000 204 DAMJI CHARLA 1400 000 303 SUNIL APTE 2117600 402 KANNU SHARMA 619 000 403 CHETAN VORA 1900 000 501 KOTIAN 100 000 502 D. S. TONSE 1448581 601 RAJAN RIKAME 3238077 602 SUHAS PAWAR 3115000 603 RAJENDRA SHAH 3500 000 701 DEHIA 19 00 000 702 VORA 21 000 703 KRISHNA KADUR 1200000 802 SHRIKANT JAISWAL 550000 803 KEVIN TANK 1918012 901 KEJAL BHUBE 250000 902 SHUSHIL PATERE 800000 903 JIGNESH TANK 1918012 5.2 IF DETAILS APPEARING IN THE TRIAL BALANCE OF ASSESSEE IS COMPARED TO PAGE NO 26 OF THE ANNEXU RE AL IMPOUNDED DURING SURVEY IT CAN BE ASCERTAINED TH AT FIGURE SHOWN AGAINST FLAT NO. 903 IN TRIAL BALANCE AT RS.19 18 012 IS APPEARING AS 19.18 UNDER THE HEAD RECEIVED CHEQUES' ON PAGE 26 OF ANN.- AL IMPOUNDED DURING SURVEY. FURTHER FLAT NO. 901 S HOWS RS.2 50 000 WHICH IS SHOWN AS 2.5 IN COLUMN 'CHEQUE RECEIVED' ON PAGE NO 26 (TRIAL BALANCE IS M ADE PART OF ORDER AS ANNEXURE-Z) THIS MEANS THAT ALL FIGURES MENTIONED ON PAGE NO. 26 ARE REFLECTED IN LAKHS I.E. 19.18 STAND FOR 19 18 012/- AND 2.5 STANDS FOR 2 50 000/-. THERE WERE COLUMN FOR TOTAL AREA SALEABLE AREA AMOUNT AND CONSIDERATION ON PAGE NO 26 WHICH IS REPRODUCE BELOW: (ENCLOSED AS ANNEXURE-X TO ASSESSMENT ORDER) 9 M/S NAVKAR REALTORS ASSESSMENT YEARS: 2010-11 & 2011-12 FLAT NAME TOTAL AREA SALEABLE AREA AMT. CONSIDERATION AGREEMENT RCVD CASH RCVD CHEQUE AMT. REMAINING 101 MAWANI 640 0 0 0 0 0 0 102 CHATBAR 660 0 0 0 0 0 0 104 SANTOSH AJNARLEKAR 345 490 20 13.39 8 1 11 103 RAJUBAHI 500 710 5400 38.34 38.24 201 SHETTY 640 0 0 0 0 0 0 202 NAYAK 660 0 0 0 0 0 0 203 RAGHUPATHY/NAVKAR 1000 1420 7000 99.4 0 5 99.4 301 DESAI 640 0 0 0 0 0 0 302 NADKARNI 660 0 0 0 0 0 0 303 APTE 1000 482 5400 24 24 1 20.466 0.534 401 SHAH 640 0 0 0 0 0 0 402 DR. SATHE/ SHARMA 660 938 6300 59 35.4 23 30.19 5.81 403 NAVKAR 1420 1420 7000 99.4 99.4 501 KOTAIN 640 0 0 0 0 0 0 502 TONSE 830 270 12.56 15 12.65 -0.09 503 NAVKAR 830 1178 7000 82.46 82 46 601 RIKAME 640 908 60 32 26 30.38077 3.61923 602 PAWAR 660 938 43.15 32 11.15 30.15 1.85 603 USHA SHAH 1000 1420 5900 85.2 52 33 35 17.2 701 VEDHIA 685 972 58 26 37 19 2 702 VORA 660 938 3.5 3.3 0.21 0 703 KADUR 1000 482 5400 26.08 12 14.08 801 REFUSE 0 0 0 0 0 0 0 0 802 SHRIKANT JAISWAL 660 938 5400 50.65 26 16 5 29.65 802A SHRIKANT JAISWAL 182 255 5400 13.77 4 0.5 13.27 803 KEVIN NARAN TANK 1000 1420 5900 83.78 35.52 48 19.18012 16.59988 901 KEJAL BHUBE 921 370 10 10 2.5 7.5 902 SUSHIL PATERE 300 426 20 12.81 6.38 3 5.67 903 JIGNESH NARAN TANK 1000 1420 83.78 35.52 48 19.18012 1659988 1001 I H DESAI 640 908 0 0 1002 NAVKAR 660 938 7000 99.4 99.4 10 M/S NAVKAR REALTORS ASSESSMENT YEARS: 2010-11 & 2011-12 1003 GHAG 1000 1420 5400 19.44 19.44 1091.91 353.64 260.78 250.40701 585.73299 5.3 TOTAL SALE CONSIDERATION IS SHOWN AT 10.91 ON P AGE NO. 26 WHICH MEANS THAT TOTAL SALE CONSIDERATION OF ASSESSEE IS RS 10 91 91 000/- AS P ER PAGE NO. 26 OF ANNEXURE AL IMPOUNDED DURING THE COURSE OF SURVEY WHILE THE ASSESSEE HAS SHOWN SALE CONSIDERATION OF RS.5 33 73 578/- IN P&L A/C. FOR A.Y. 2011-12 AND THEREFORE CONSIDERATION OF RS. 5 58 17 422/- (10 91 91 000-5 33 73 578) BEING DIFFERENCE OF TWO FOUND IS NOT REFLECTED IN BOOKS O F ACCOUNTS OF ASSESSEE WHICH WAS DISCLOSED BY THE ASSESSEE PARTLY DURING SURVEY BY DISCLOSING AMOUNT OF RS.3 18 74 808/-. THERE WAS A COLUMN SHOWING REMAINING AMOUNT OF RS.5 85 73 299/- ON PAGE NO. 26 OF THE ANNEXURE AL WHICH WAS NEITHER CONSIDERED AT THE TIME OF SURVEY NOR IT WAS CONSIDE RED BY ASSESSEE WHILE FILING RETURN OF INCOME FOR A .Y. 2011-12. SINCE IN THE RETURN OF INCOME FOR A.Y. 201 1-12 THERE IS NO UNSOLD STOCK IT IS TO BE HELD THAT ENTIRE SALE WAS EXECUTED AND ENTIRE AMOUNT IS RECEI VED BY ASSESSEE BY THE YEAR END. THE ARGUMENTS FORWARDED BY ASSESSEE THAT CASH RECEIPTS ARE INCLUD ED IN TURNOVER IS THUS NOT FOUND ACCEPTABLE. 5.4 THEREFORE IN VIEW OF THE ABOVE IT IS CLEAR THA T AS PER PAGE NO. 26 OF LOOSE PAPER TOTAL CONSIDERA TION FOR SALE OF FLATS IN THE CASE OF THE ASSESSEE IS RS . 10 91 91 000/- WHILE ASSESSEE HAS SHOWN TOTAL CONSIDERATION OF RS. 5 33 73 578/- IN RETURN FILED FOR A.Y. 2011-12 AND THEREFORE THE TOTAL CONSIDERAT ION OUT OF BOOKS IS RS. 5 58 17 422/- WHICH IS REQUIRED TO BE ADDED. 5.5 AS PER COLUMN SHOWING RECEIVED CASH' THERE IS A TOTAL CASH RECEIPT OF RS. 2 60 78 000/- (260.78). IN ADDITION TO WHICH THERE IS ONE ANOTHER HEAD AMOUNT REMAINING WHICH SHOWS RS.5 85 73 299/- WHICH MEANS THAT RS.5 85 73 299/- WAS YET TO BE RECEIVED BY THE ASSESSEE. SINCE ASSESSEE HAS ACCOUNTED TURNOVER OF RS.5 33 73 578/- IN P&L A/C. OF A.Y. 20 11-12 AND TURNOVER UNDER THE COLUMN 'RECEIVED CHEQUE' AS SHOWN ON PAGE NO. 26 WAS RS.2 50 40 701/- IT IS TO BE BELIEVED THAT OUT OF 'AMOUNT REMAINING' SHOWN AT RS. 5 85 73 299/- AMOUNT OF RS. 2 83 32 87 7 (5 33 73 578-2 50 40 701) IS RECEIVED BY CHEQUE AND REMAINING AMOUNT OF RS.3 02 40 422 (5 85 73 299-2 83 32 877) IS RECEIVED IN CASH AND THEREFORE RS.5 63 18 422 (2 60 78 000+3 02 40 422) IS REQUIRED TO BE TREATED AS CONSIDERATION RECEIVED IN CASH WHICH IS OUT OF BOOKS AND THE SAME IS REQUI RED TO BE ADDED IN THE INCOME OF THE ASSESSEE. 6. DISCLOSURE MADE DURING THE SURVEY. WITHOUT PREJUDICE TO THE ABOVE IT IS ALSO FOUND THA T THE ASSESSEE HAS NOT OFFERED INCOME DISCLOSED DURING THE SURVEY OF RS. 3 18 74 808/- IN RETURN OF INCOME THOUGH THERE WAS NO RETRACTION ON THE PART OF THE ASSESSEE. THE ASSESSEE WITH AN INTENTION TO RED UCE TAX LIABILITY HAS SUBMITTED THAT CASH RECEIPT I S ALSO INCLUDED IN TURNOVER. HOWEVER IT IS OBSERVED THAT MISLEADING FACTS ARE SUBMITTED BY THE ASSESSEE . ON ONE HAND IT IS CLAIMED THAT CASH RECEIPTS ARE IN CLUDED IN TURNOVER AND ON OTHER HAND TO REDUCE TAX LIABILITY ASSESSEE HAS INCURRED EXPENSES WHICH WERE NOT THERE IN P&L A/C. PREPARED AT THE TIME OF SURVEY. AS DISCUSSED EARLIER THE EXPENSES ARE INFL ATED BY THE ASSESSEE TO OFFER LESS INCOME. FURTHER DURING SURVEY THE ASSESSEE HAD MADE DISCLOSURE OF N ET INCOME AFTER ALL EXPENSES (REFER STATEMENT). FURTHER IT IS PROVED BEYOND DOUBT IN EARLIER PARAS THAT CASH RECEIPTS ARE NOT ACCOUNTED IN BOOKS. QUESTION OF INCLUDING CASH RECEIPT IN TURNOVER AS C LAIMED BY ASSESSEE DOES NOT ARISE. PAGE NO. 26 SHOWS CLEAR PICTURES OF AFFAIRS OF ASSESSEE AND FIG URES QUOTED ON THIS PAGE GETS TALLIED WITH REGULAR BOOKS WHERE AMOUNT RECEIVED FROM CHEQUE IS DULY ACC OUNTED. THEREFORE THE CREDENTIALS OF PAGE NO. 26 CANNOT BE DENIED. WHEN AMOUNT RECEIVED IN CHEQUE GETS TALLIED WITH THIS PAGE THERE IS NO REASON FOR NOT BELIEVING FACTS OF AMOUNT RECEIVED IN CASH AND AMOUNT OF TOTAL CONSIDERATION SHOWN ON THIS PAGE. 6.2. THUS THE ASSESSEE HAS FAILED TO PROVE THAT TH E DISCLOSURE MADE IN SURVEY WAS NOT CORRECT AND HAS FAILED TO OFFER INCOME DISCLOSED IN SURVEY FOR TAXA TION PURPOSE IN RETURN. THE DISCLOSURE MADE WAS DUL Y SUPPORTED WITH EVIDENCES AND THEREFORE IT WAS HAVIN G BINDING NATURE. IN VIEW OF THE ABOVE WITHOUT PREJUDICE TO FINDING GIVEN IN EARLIER PARA OF THIS ORDER INCOME OF RS.3 18 74 808/- IS ADDED IN THE IN COME 11 M/S NAVKAR REALTORS ASSESSMENT YEARS: 2010-11 & 2011-12 OF THE ASSESSEE BEING UNACCOUNTED CASH RECEIPTS ON SALE OF FLAT WHICH WAS DISCLOSED DURING SURVEY. OUT OF THIS RS.1 00 00 000/- WHICH WAS OFFERED IN A .Y. 2010-11 IS TREATED AS PROTECTIVE ADDITION TILL IT IS CONFIRMED IN A.Y. 2010-11. 6.3 HOWEVER AS DISCUSSED IN EARLIER PARA TOTAL DIF FERENCE IN CONSIDERATION OF RS.5 58 17 422/- (10 91 91 000-5 33 73 578) IS ADDED IN THE INCOME O F THE ASSESSEE AS UNACCOUNTED INCOME WHICH INCLUDES DISCLOSURE OF RS. 3 18 74 808 MADE DURING THE SURVEY. (ADDITION RS. 5 88 17 422) THE ABOVE ADDITION WAS SUBSEQUENTLY REVISED TO RS.5 63.18 LACS U/S 154. 4.4 UPON FURTHER APPEAL LEARNED CIT(A) PROVIDED P ARTIAL RELIEF TO THE ASSESSEE BY OBSERVING AS UNDER: - 15. I HAVE CAREFULLY GONE THROUGH THE IMPUGNED ASSE SSMENT ORDER SUBMISSIONS FILED BY THE ID. AR OF THE APPELLANT AND THE MATERIAL AVAILABLE ON R ECORD. MY OBSERVATIONS ARE AS DISCUSSED IN THE FOLLOWING PARAGRAPHS. 16. IN THIS CASE A SURVEY U/S 133A OF THE I.T. ACT . HAS TAKEN PLACE AT THE PREMISES OF THE APPELLANT FIRM ON 15.02.2011. DURING THE COURSE OF SURVEY VARIOUS INCRIMINATING DOCUMENTS REFLECTING CASH RECEIPTS BY THE ASSESSEE WERE FOUND AND IMPOUNDED. FURTHER AT THE TIME OF SURVEY STATEMENT OF SHRI SATISH RAUT PARTNER OF T HE FIRM WAS RECORDED WHEREIN HE HAD ADMITTED THAT THE CASH AMOUNTS RECEIVED AGAINST SAL E OF FLATS WERE NOT ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS. HE HAS FURTHER AGREED TO OFFER T HE CASH RECEIPT OF RS.3 18 74 808/- AS ADDITIONAL INCOME OF THE PROJECT FOR THE F.Y.2010 -11 RELEVANT TO A.Y. 2011-12. THE INCOME DISCLOSED WAS OVER AND ABOVE THE INCOME ALREADY OFF ERED IN THE RETURNS FILED FOR A.Y.2008-09 TO 2010-11. IT IS ON RECORD THAT THE STATEMENT BY T HE PARTNER WITH RESPECT TO OWNERSHIP OF THE DOCUMENTS GENUINENESS OF THE CONTENT AND CORRECTNE SS OF THE FIGURES MENTIONED WERE NEVER DISPUTED. THE PARTNERS OF THE FIRM HAVE NEVER RETRA CTED THE DISCLOSURE MADE DURING THE SURVEY PROCEEDINGS. THESE FACTS ARE NEVER CONTESTED DURING THE APPELLATE PROCEEDINGS. 17. IN THE LIGHT OF THE ABOVE FACTS THE BASIS OF A DDITION MADE BY THE AO AND CLAIM OF THE AR OF THE APPELLANT NEED TO BE EXAMINED. THE AO HAS INITI ATED THE ASSESSMENT PROCEEDINGS AFTER OBSERVING THAT INCOME OF RS.45 96 590/- WAS ONLY SH OWN IN THE RETURN FILED BY THE ASSESSEE. HENCE HE CAME TO THE CONCLUSION THAT THE DISCLOSUR E WAS NOT ENTIRELY INCORPORATED IN THE RETURN OF INCOME. IN THIS REGARD THE FIRST ARGUMEN T OF THE AR THAT WHAT WAS DISCLOSED BY THE PARTNER WAS THE 'INCOME' AND NOT THE PROFIT ON SALE OF THE APARTMENTS IN THE PROJECT NAMED 'BRIJ APARTMENT' IN BORIVALI. HOWEVER I FIND NO MERIT IN THE ABOVE ARGUMENT OF THE AR. WHILE ACCEPTING THE UNACCOUNTED CASH RECEIPTS FROM THE PR OJECT MR. SATISH V. RAUT ONE OF THE PARTNERS OF THE APPELLANT FIRM DURING THE COURSE O F SURVEY U/S 133A ON 15/02/2011 ADMITTED THAT THE CASH RECEIPT OF RS. 3 18 74 808/- IS THE F IRM'S ADDITIONAL INCOME OF THE PROJECT FOR THE F.Y.2010-11 RELEVANT TO A.Y. 2011-12. THE INCOME DI SCLOSED WAS OVER AND ABOVE THE INCOME ALREADY OFFERED IN THE RETURNS FILED FOR A.Y.2008-0 9 TO 2010-11. THEREFORE IT IS CLEAR THAT THE DISCLOSURE WAS WITH RESPECT TO CASH RECEIPTS AND OF FERED AS UNDISCLOSED INCOME WHICH WAS TANTAMOUNT TO ACCEPTANCE OF UNEXPLAINED PROFIT FROM THE PROJECT. THIS IS FURTHER REINFORCED BY THE FACT THAT OUT OF THE DISCLOSED AMOUNT RS. 1 CR ORE WAS OFFERED FOR TAXATION DURING A.Y. 2010- 11 WHICH HAD BEEN ACCEPTED BY THE AO AND CONFIRMED BY THE LD. CIT(A) FOR THE RESPECTIVE YEAR. HENCE THE AFORESAID CLAIM-OF THE AR IS GOT D ISPROVED. 12 M/S NAVKAR REALTORS ASSESSMENT YEARS: 2010-11 & 2011-12 18. FROM THE ABOVE REFERRED SUBMISSION OF THE AR I T IS OBSERVED THAT THE APPELLANT HAS ALSO ADMITTED DURING THE APPELLATE PROCEEDINGS THAT DISC LOSURE OF RS.3 18 74 808/- WAS MADE DURING THE SURVEY BASED ON CASH RECEIPTS RECORDED O N THE LOOSE PAPER FILE INVENTORISED AND IMPOUNDED. THE CONTENT AND GENUINENESS OF THE IMPOU NDED PAPERS AND DOCUMENTS ARE NEVER BEEN IN DOUBT. IN THIS REGARD FROM ASSESSMENT ORDE R IT OBSERVED THAT THE AO HAS FOUND FROM THE IMPOUNDED MATERIAL THAT IF THE DETAILS APPEARIN G IN THE TRIAL BALANCE SUBMITTED DURING THE SURVEY PROCEEDINGS ARE COMPARED WITH IMPOUNDED PAGE NO. 26 OF ANN.AI IT IS APPARENT THAT THE FIGURES SHOWN AGAINST DIFFERENT FLATS IN THE TR IAL BALANCE PERFECTLY MATCHES WITH THAT SHOWN IN THE IMPOUNDED. IT IS EXEMPLIFIED WITH FIGURES OF FLAT NO.901 AND 902. ACCORDING TO THE AO ALL FIGURES MENTIONED ON PAGE NO. 26 ARE REFLECTED IN L AKHS I.E. 19.18 STAND FOR RS. 19 18 012/- AND 2.5 STANDS FOR RS. 2 50 000/-. PAGE NO. 26 ALSO REFLECTS COLUMN WISE TOTAL AREA SALEABLE AMOUNT AND CONSIDERATION WHICH IS REPRODUCED IN PAG E 11 OF THE ASSESSMENT ORDER. IN THE LIGHT OF THE ABOVE FINDINGS THERE IS NO MERIT IN THE CLA IM OF THE AR THAT THE SOLITARY MATCHING OF THE FIGURE IS JUST A COINCIDENCE. THERE ARE NO. OF FIGU RES WHICH HAVE MATCHED AND CANNOT BE TERMED MERELY AS A COINCIDENCE. AT THE TIME O F SURVEY PROCEEDINGS THESE ARE CORRELATED BY THE PARTNERS AND ACCEPTED AS SUCH. HENCE THE CL AIM MADE IN THIS REGARD IS REJECTED. 19. IN THE LIGHT OF ABOVE DISCUSSION IT IS OBSERVE D THAT THERE ARE FINDINGS OF THE AO THAT THE TOTAL SALE CONSIDERATION AS SHOWN IN PAGE NO.26 OF ANN. AL IMPOUNDED DURING THE COURSE OF SURVEY REPRESENTED BY 10.91 WOULD MEAN TOTAL SALE CONSIDERATION OF RS.10 91 91 000/- WHILE THE ASSESSEE HAS JUST SHOWN SALE CONSIDERATION OF R S. 5 33 73 578/- IN P & L A/C. FOR A.Y. 2011-12. HENCE I FIND MERIT IN THE FINDINGS OF THE AO THAT THE CONSIDERATION OF RS.5 58 17 422/- (RS.10 91 91 000 - RS.5 33 73 578/- ) BEING THE DIF FERENCE OF TWO AS UNDISCLOSED INCOME FOR THE PROJECT NOT FOUND REFLECTED IN THE REGULAR BOO KS OF ACCOUNTS OF ASSESSEE. THEREFORE THE ACTUAL UNDISCLOSED INCOME FROM THE PROJECT WOULD BE RS. 5 58 17 422/- INSTEAD OF THE DISCLOSING AMOUNT OF RS.3 18 74 808/-. THIS IS FURT HER SUPPORTED BY THE FACT THAT THERE WAS A COLUMN SHOWING REMAINING AMOUNT OF RS.5 85 73 299/- ON PAGE NO.29 OF ANN.AI WHICH WAS NEITHER CONSIDERED AT THE TIME OF SURVEY NOR BY THE ASSESSEE-WHILE FILING RETURN OF INCOME FOR A.Y. 2011-12. THE AFORESAID FACT HAS NOT BEEN DISPR OVED BY THE AR DURING APPELLATE PROCEEDINGS. SINCE IN THE RETURN OF INCOME FOR A.Y. 2011-12 THERE WAS NO UNSOLD STOCK THE AO HAS CORRECTLY CAME TO THE CONCLUSION THAT ENTIRE SA LE WAS EXECUTED AND ENTIRE AMOUNT WAS RECEIVED BY THE ASSESSEE BY THE YEAR END. ACCORDING LY THE ARGUMENT OF THE ASSESSEE THAT CASH RECEIPTS WERE INCLUDED IN THE TURNOVER WAS NOT ACCEPTED BY THE AO. THE AO HAS FURTHER ANALYSED THE VARIOUS ENTRIES MADE IN THE IMPOUNDED MATERIAL WITH THE TRIAL BALANCE PREPARED BY THE APPELLANT DURING SURVEY PROCEEDINGS AND CAME TO THE CONCLUSION THE ACTUAL UNDISCLOSED INCOME FROM THE PROJECT FOR THE YEAR UNDER CONSIDER ATION WILL BE RS.5 58 17 422/-. LOOKING TO THE OVERALL FACTS AND CIRCUMSTANCES OF THE ISSUE IN VOLVED AND AFTER CAREFULLY PERUSING THE STATEMENTS RECORDED DURING SURVEY PROCEEDINGS AND C ONTENT OF THE IMPOUNDED MATERIAL I DO NOT FIND ANY INFIRMITY IN THE CONCLUSION ARRIVED BY THE AO THAT THE UNDISCLOSED INCOME IN THIS CASE FROM THE PROJECT INVOLVED WOULD BE RS. 5 58 17 422/-. 20. IT IS FURTHER OBSERVED THAT OUT OF THE ABO VE AMOUNT RS.1 00 00 000/- HAS BEEN ADDED ON PROTECTIVE BASIS SINCE THE APPELLANT HAS ALREAD Y DISCLOSED THIS AMOUNT IN THE RETURN OF INCOME OF A.Y. 2010-11 WHICH HAS ALSO BEEN CONFIRM ED BY THE LD. CIT(A) FOR THE RELEVANT YEAR A SET OFF OF RS. 1 00 00 000/- IS GIVEN FROM THE UNDISCLOSED INCOME OF RS. 5 58 17 422/-. 13 M/S NAVKAR REALTORS ASSESSMENT YEARS: 2010-11 & 2011-12 CONSEQUENTLY ADDITION OF RS.4 58 17 422/- IS CONFI RMED. THUS GROUNDS OF APPEAL ARE PARTLY ALLOWED. AGGRIEVED THE ASSESSEE AS WELL AS REVENUE IS UNDER FURTHER APPEAL BEFORE US. 5. THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE ( AR) ADVANCED ARGUMENT TO SUBMIT THAT THE ADDITIONS WERE MADE SOL ELY ON THE BASIS OF STATEMENT GIVEN BY ONE OF THE PARTNERS OF THE ASSES SEE FIRM. THE STATEMENTS MADE DURING THE COURSE OF SURVEY U/S 133 A WOULD HOLD NO EVIDENTIARY VALUE AND THEREFORE IN THE ABSENCE OF ANY CORROBORATIVE MATERIAL FOUND DURING THE COURSE OF SURVEY OPERATIO NS THE ADDITIONS WOULD NOT BE SUSTAINABLE IN LAW. OUR ATTENTION HAS BEEN D RAWN TO THE FACT THAT STATEMENT WAS RECORDED U/S 133A UNDER OATH AGAINST THE MANDATE OF LAW AND NO COGNIZANCE OF THE SAME COULD BE TAKEN OF BY REVENUE AUTHORITIES. IT HAS ALSO BEEN SUBMITTED THAT THE PARTNER WHOSE STAT EMENT WAS RECORDED ALREADY EXPIRED ON 03/04/2016 AND THEREFORE NO RET RACTION COULD HAVE BEEN DONE BY THE SAID PARTNER. RELIANCE HAS BEEN PLACED INTER-ALIA ON THE DECISION OF HONBLE APEX COURT IN CIT V/S S.KHADER KHAN & SONS (25 TAXMANN.COM 413) MUMBAI TRIBUNAL IN DCIT V/S PREMSONS (ITA NO. 4698/MUM/2006 DATED 15/01/2009) HONBLE DELHI HIGH COURT IN PR.CIT V/S MEETA GUTGUTIA (ITA NOS. 306 TO 310 OF 2017 25/05/2 017) AGRA TRIBUNAL IN ACIT V/S MAYA TRADING CO. (34 TAXMANN.COM 144) AND HONBLE MADRAS HIGH COURT IN CIT V/S P.BALASUBRAMANIAN (33 TAXMANN.COM 130) FOR VARIOUS SUBMISSIONS. PER CONTRA LD. DR SUBMITT ED THAT ASSESSEE HONOURED ONLY PARTIAL DISCLOSURE AND MISERABLY FAIL ED TO SUBSTANTIATE ITS STAND DURING ASSESSMENT PROCEEDINGS. THE OBJECTIONS THAT THE STATEMENT 14 M/S NAVKAR REALTORS ASSESSMENT YEARS: 2010-11 & 2011-12 WAS RECORDED UNDER OATH WAS NEVER AGITATED BEFORE L OWER AUTHORITIES AT ANY TIME DURING PROCEEDINGS. 6. WE HAVE CAREFULLY HEARD RIVAL SUBMISSIONS PERUS ED RELEVANT MATERIAL ON RECORD INCLUDING DOCUMENTS PLACED IN THE PAPER-B OOK AND DELIBERATED ON JUDICIAL PRONOUNCEMENTS AS CITED BEFORE US. AFTER G OING THROUGH THE FACTS AS ENUMERATED IN THE PRECEDING PARAGRAPHS THE UNDISPU TED POSITION THAT EMERGES IS THAT THE ASSESSEE WAS SUBJECTED TO SURVE Y PROCEEDINGS ON 15/02/2011 WHEREIN CERTAIN INCRIMINATING DOCUMENTS INDICATING RECEIPT OF CASH ON SALE OF FLATS OVER AND ABOVE THE DECLARED / AGREEMENT VALUE WERE FOUND IMPOUNDED AND INVENTORIZED. THE STATEMENT ON OATH WAS RECORDED FROM ONE OF THE PARTNERS OF THE ASSESSEE FIRM WHERE IN THE PARTNER ADMITTED DISCLOSURE OF RS.318.74 LACS AGAINST SALE OF FLATS IN THE PROJECT. IT WAS CATEGORICALLY ADMITTED THAT AFORESAID CASH RECEIPT OF RS.318.74 LACS WAS NOT ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS AND THE SAME WAS OVER AND ABOVE THE AGREEMENT VALUES REFLECTED IN THE BOOKS O F ACCOUNTS AS WELL AS NET OF EXPENDITURE. THE SAID ADDITIONAL INCOME WAS DECLARED UNDER THE PROJECT FOR AYS 2010-11 & 2011-12. IT IS FURTHER NO TED THAT CASH AMOUNTING TO RS.15.06 LACS WAS ALSO FOUND AND INVENTORIZED DU RING SURVEY PROCEEDINGS. IT WAS ADMITTED THAT THE SAME REPRESEN TED CASH RECEIPTS AGAINST SALE OF FLATS AND WAS A PART OF THE DISCLOS URE OF RS.318.74 LACS ALREADY MADE BY THE ASSESSEE. KEEPING IN LINE WITH THE SAID STATEMENT THE ASSESSEE REVISED ITS RETURN OF INCOME FOR AY 2010-1 1 ENHANCING ITS INCOME BY RS.60.22 LACS AS AGAINST RS.100 LACS STATED TO B E DISCLOSED FOR THAT YEAR OUT OF TOTAL DISCLOSURE OF RS.318.74 LACS MADE DURING SURVEY 15 M/S NAVKAR REALTORS ASSESSMENT YEARS: 2010-11 & 2011-12 OPERATIONS. IT IS NOTEWORTHY THAT THIS STATEMENT WA S NEVER RETRACTED BY THE ASSESSEE EVEN UP-TO THE DATE OF DEATH OF THE STATEM ENT GIVING PARTNER WHICH EVENT TOOK PLACE ON 03/04/2016 I.E. MORE THAN 5 YEARS FROM THE DATE WHEN THE STATEMENT WAS GIVEN. IN FACT THE ASSESSEE PARTIALLY HONOURED THE SAID STATEMENT BY OFFERING THE ADDITIONAL INCOME FO R AY 2010-11 AND THEREFORE WE FIND NO SUBSTANCE IN THE ARGUMENT OF LD. AR THAT THE STATEMENT MADE BY THE ASSESSEE WOULD HAVE NO EVIDEN TIARY VALUE. THE STATEMENT WAS BACKED BY INCRIMINATING DOCUMENTS WHI CH WAS FURTHER CORROBORATED BY EXCESS CASH FOUND IN THE COURSE OF SURVEY OPERATIONS WHICH WAS CATEGORICALLY ADMITTED TO BY ONE OF THE P ARTNERS OF THE ASSESSEE FIRM. THEREFORE THE CASE LAWS BEING RELIED UPON BY LD. AR IN THIS REGARD IN OUR CONSIDERED OPINION WOULD NOT HELP THE CAUSE OF THE ASSESSEE AND WOULD NOT APPLY TO THE FACTUAL MATRIX OF THE CASE. WE ARE ALSO OF THE OPINION THAT THE COMPLETE ONUS TO NEGATE THE CONTENTS OF TH E STATEMENT WAS ON ASSESSEE AND WE FIND THAT NO MATERIAL WAS BROUGHT O N RECORD BY THE ASSESSEE TO CONTROVERT THE SAID STATEMENT. IN FACT THE STATEMENT WAS PARTIALLY HONORED BY OFFERING ADDITIONAL INCOME FOR AY 2010-11. THUS ARGUMENTS RAISED BY LD. AR WOULD NOT FIND FAVOR WIT H US. 7. THE LD. AR HAS ADVANCED ARGUMENT THAT NO EXCESS STOCK WAS FOUND DURING SURVEY OPERATIONS. HOWEVER WE FIND THAT ASS ESSEES INVENTORY WAS IN THE SHAPE OF FLATS IN THE PROJECTS AND THERE WOU LD BE NO OCCASION OF EXCESS STOCK AT ASSESSEES PREMISES AT THE TIME OF SURVEY OPERATIONS AND THEREFORE THE SAID PLEA WAS TO BE REJECTED. 16 M/S NAVKAR REALTORS ASSESSMENT YEARS: 2010-11 & 2011-12 8. THE LD. AR HAS ALSO ASSERTED THAT THE STATEMENT TAKEN UNDER OATH U/S 133A WOULD BE NULLITY SINCE THE REVENUE HAD NO AUTH ORITY TO RECORD THE STATEMENT UNDER OATH. HOWEVER IN OUR OPINION THE STATEMENT WAS TAKEN IN THE COURSE OF SURVEY OPERATIONS AND MERELY BECAUSE THE OATH WAS ADMINISTERED TO THE PARTNER BEFORE RECORDING STATEM ENT THE SAME WOULD NOT RENDER THE STATEMENT NULLITY. FOR ALL INTENT AND PU RPOSES IT WAS STATEMENT UNDER SURVEY OPERATIONS WHICH WAS BACKED BY INCRIMI NATING MATERIAL EXCESS CASH WAS FOUND AND ADMITTED. THE ASSESSEE PA RTIALLY HONOURED THE STATEMENT BY REVISING THE RETURN OF INCOME. THEREFO RE STATED FACTS WOULD NOT INSPIRE ANY CONFIDENCE IN US TO ACCEPT THE ARGU MENTS OF LD. AR. 9. AT THE SAME TIME WE FIND THAT THE PARTNER IN T HE STATEMENT MADE A DISCLOSURE ONLY TO THE EXTENT OF RS.318.74 LACS WH ICH WAS DULY TABULATED AT THE TIME OF SURVEY OPERATIONS AND THE SAME FORMS TH E BASIS OF MAKING ADDITIONS IN THE HANDS OF THE ASSESSEE. BESIDE THIS MATERIAL NO FURTHER EFFORTS HAVE BEEN MADE BY THE REVENUE TO CORROBORAT E THE STATEMENT OF THE PARTNER OR BRING ON RECORD ANY MATERIAL THAT THE DI SCLOSURE SHOULD HAVE BEEN MORE THAN RS.318.74 LACS. THEREFORE IN LINE W ITH THE STATEMENT THE TOTAL ADDITIONS WERE TO BE RESTRICTED TO RS.318.74 LACS FOR AYS 2010-11 & 2011-12. HENCE THE ADDITIONS MADE BY LD. AO IN AY 2010-11 STAND CONFIRMED. THE ADDITIONS MADE IN AY 2011-12 SHOULD BE FOR THE BALANCE AMOUNT OF RS.218.74 LACS I.E. RS.318.74 LACS LESS R S.100 LACS ASSESSED IN AY 2010-11. ACCORDINGLY THE ADDITION IN AY 2011 -12 STAND RESTRICTED TO RS.218.74 LACS. 17 M/S NAVKAR REALTORS ASSESSMENT YEARS: 2010-11 & 2011-12 10. RESULTANTLY ASSESSEES APPEAL FOR AY 2010-11 I TA NO. 2683/MUM/2015 AS WELL AS REVENUES APPEAL FOR AY 20 11-12 ITA NO. 7196/MUM/2016 STANDS DISMISSED WHEREAS ASSESSEES A PPEAL FOR AY 2011-12 ITA NO. 2686/MUM/2018 STANDS PARTLY ALLOWED TO THE EXTENT INDICATED IN THE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST NOVEMBER 2019 SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 21/11/2019 SR.PS:-JAISY VARGHESE - .- / COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. %&'$ / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. H I% J J / DR ITAT MUMBAI 6. I KLM / GUARD FILE / BY ORDER / (DY./ASSTT.REGISTRAR) / ITAT MUMBAI SR. NO. DETAILS DATE IN ITIALS DESIGNATION 1 DRAFT DICTATION SHEETS ARE ATTACHED DIRECTLY TYPE D ON COMPUTER / LAPTOP SR.PS/PS 2 DRAFT DICTATED ON NOT APPLICABLE/ SR.PS/PS 3 DRAFT PLACED BEFORE AUTHOR NOT APPLICABLE SR.PS/PS 4 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 5 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 6 APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 7 ORDER PRONOUNCEMENT ON SR.PS/PS 8 FILE SENT TO THE BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE AR 11 DATE OF DISPATCH OF ORDER