ACIT,CENTRAL CIRCLE-4, MUMBAI vs. MM/S EAGLE INFRA INDIA LIMITED, MUMBAI

PER BENCH

These appeals by the assessee and Revenue are directed against a common order dated 29/06/2022 passed by the learned commissioner of Income-tax(Appeals)- Pune [in short “the Ld.

M/s Eagle Infra India Ltd. 2 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

CIT(A)”] ] for for assessment assessment year(AY) 2014-15 15 to to AY AY 2018-19 2018 respectively. As identical issues are involved in these appeals, . As identical issues are involved in these appeals, . As identical issues are involved in these appeals, therefore same were heard together and disposed off by way of this therefore same were heard together and disposed of therefore same were heard together and disposed of consolidated order for convenience and avoid reputation of facts. consolidated order for convenience and avoid reputation of facts. consolidated order for convenience and avoid reputation of facts.

M/s Eagle Infra India Ltd. 3 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

the seized document documents noted breakup of cash of noted breakup of cash of ₹9,25,50,100/- received as under: Sr. No. F.Y. AY Amount in cash Amount in cash 1. 2013 2013-14 2014-15 1,02,76,600 1,02,76,600 2. 2014 2014-15 2015-16 3,67,73,600 3,67,73,600 3. 2015 2015-16 2016-17 1,57,62,900 1,57,62,900 4. 2016 2016-17 2017-18 2,97,37,000 2,97,37,000 Total Total 9,25,50,100 9,25,50,100

M/s Eagle Infra India Ltd. 4 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

4.1 The Assessing Officer has also refer The Assessing Officer has also referred to commission income red to commission income of Rs.4,30,18,727/- for assessment year 2016-17 admitted by the admitted by the director of the assessee company director of the assessee company, ‘Sh Udhavdas Rupchandani Rupchandani’ in his statement under section 132(4) of the A nt under section 132(4) of the Act, on the b on the basis of entries of subcontract entries of subcontract of electric work given to ‘M/s Dhanlaxmi M/s Dhanlaxmi electricals’ appearing appearing at page No. 1 to 26 of bundle No. page No. 1 to 26 of bundle No. 1(one) seized from his residence.

A.Y. 2014-15 2015-16 2016-17 2017-18 2018-19 2018 Total Cash 1,02,76,600 3,67,73,600 1,57,62,900 2,97,37,000 69,80,900 69,80,900 9,95,31,000 receipts (Eagle Pride) Unaccounted 4,30,18,727 4,30,18,727 commission Unexplained 1,12,818 32,588 52,245 31,84,805 33,82,456 investment (Netaji Plot) Unrecorded 30,550 30,550 cash receipts Unverified 7,30,000 7,25,000 21,56,800 21,56,800 36,11,800 Labour Expenses Unexplained 1,39,00,000 1,39,00,000 Investment in plot at Sinner Total 1,11,19,418 5,14,31,188 5,88,64,422 3,29,21,805 91,37,700 91,37,700 16,34,74,533 Additions 6. On further appeal, the Ld. CIT(A) considered the submissions further appeal, the Ld. CIT(A) considered the submissions further appeal, the Ld. CIT(A) considered the submissions of the assessee and allowed part relief to the assessee. The Ld. of the assessee and allowed part relief to the assessee. The Ld. of the assessee and allowed part relief to the assessee. The Ld. CIT(A) allowed rebate CIT(A) allowed rebate of 50 percentile for on-money as expenditure money as expenditure

M/s Eagle Infra India Ltd. 5 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

incurred and considered balance amount of 50 percentile as considered balance amount of 50 percentile as considered balance amount of 50 percentile as undisclosed income available in the hands of the assessee for undisclosed income available in the hands of the assessee for undisclosed income available in the hands of the assessee for relevant assessment years. Thereafter relevant assessment years. Thereafter, the Ld. CIT(A), given the the Ld. CIT(A), given the benefit of disclosure made in PMGKY scheme and IDS scheme and benefit of disclosure made in PMGKY scheme and IDS scheme and benefit of disclosure made in PMGKY scheme and IDS scheme and sustained the balanc sustained the balance amount of undisclosed income in the hands e amount of undisclosed income in the hands of the assessee. Aggrie of the assessee. Aggrieved, both the assessee and the Revenue are ved, both the assessee and the Revenue are before the Tribunal by way of raising various grounds. ribunal by way of raising various grounds. ribunal by way of raising various grounds.

6.1 In the grounds for various years, two issues are common. In the grounds for various years, two issues are common. In the grounds for various years, two issues are common. Firstly, the issue of estimat Firstly, the issue of estimating undisclosed income against the on disclosed income against the on- money received in cash and secondly benefit of undisclosed income money received in cash and secondly benefit of undisclosed income money received in cash and secondly benefit of undisclosed income declared under PMGKY Scheme, 2016 and IDS, 2016. Therefore, declared under PMGKY Scheme, 2016 and IDS, 2016. Therefor declared under PMGKY Scheme, 2016 and IDS, 2016. Therefor being common issues, firstly being common issues, firstly, we are adjudicating on tho , we are adjudicating on those two issues.

Undisclosed income Undisclosed income from on-money on booking/sale of money on booking/sale of shops

M/s Eagle Infra India Ltd. 6 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

under section 153A of the A under section 153A of the Act for AY 2014-15 to AY 2017 15 to AY 2017-18, the assessee did not declare any additional income on account of assessee did not declare any additional income on account of assessee did not declare any additional income on account of unaccounted cash in t counted cash in the form of on-money. Before the Assessing . Before the Assessing Officer, the assesse Officer, the assessee contended that cash was utiliz e contended that cash was utilized for construction of the said project. It was contended that profit on construction of the said project. It was contended that profit on construction of the said project. It was contended that profit on such cash receipt should be estimated at the rate of 8% of on- such cash receipt should be estimated at the rate of 8% such cash receipt should be estimated at the rate of 8% money, but the Assessing O , but the Assessing Officer rejected said contention. The fficer rejected said contention. The Assessing Officer also rejected c Assessing Officer also rejected contention for benefit of the on ontention for benefit of the on- money against declaration in PMGKY scheme and IDS. Before the money against declaration in PMGKY scheme and IDS. Before the money against declaration in PMGKY scheme and IDS. Before the Ld. CIT(A) the assessee made reference of specific seized documents Ld. CIT(A) the assessee made reference of specific seized documents Ld. CIT(A) the assessee made reference of specific seized documents wherein expenditure incu wherein expenditure incurred in cash was reflected. The assessee rred in cash was reflected. The assessee referred to page No. 7( 7(seven) of bundle No. 5(five), containing a table , containing a table pertaining to “Eagle Pride Eagle Pride Project” for financial year 2015 for financial year 2015-16 showing cash collection of showing cash collection of ₹1,57,62,900/- and cash expenses and cash expenses incurred of ₹1,57,62, 2,900/-. The assessee further submitted that . The assessee further submitted that same page also referr same page also referred expenses amounting to Rs.14,55, ed expenses amounting to Rs.14,55,000/- incurred by Mr Ghosh on account of incurred by Mr Ghosh on account of “Eagle Pride Eagle Pride” during the financial year 2013-14 and 2014 14 and 2014-15. The page No. 6( 6(six), 5(five) and 4(four) of the bundle ) of the bundle No. 5(five) show that expenses amounting to that expenses amounting to ₹2,53,73,488/- were incurred by were incurred by ‘Sh Sunil Hazari Sunil Hazari’ i.e supervisor related to “Eagle pride Eagle pride”. In this manner, the aforesaid pages of the aforesaid pages of bundle No. A-5, show , show total amount of ₹4,25,91,388/ 91,388/- as have been incurred for cash expenses related to the project “ penses related to the project “Eagle Pride”. The Eagle Pride”. The assessee relied on No. of decisions in support of its claim that assessee relied on No. of decisions in support of its claim that assessee relied on No. of decisions in support of its claim that benefit of cash expenditure incurred should be allowed against the benefit of cash expenditure incurred should be allowed against the benefit of cash expenditure incurred should be allowed against the

M/s Eagle Infra India Ltd. 7 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

on-money received by the assessee. The Ld. CIT(A) after money received by the assessee. The Ld. CIT(A) after analyzing money received by the assessee. The Ld. CIT(A) after the above decisions, , in principle admitted for allowing benefit of in principle admitted for allowing benefit of cash expenditure, but rejected the contention of the assessee for cash expenditure, but rejected the contention of the assessee for cash expenditure, but rejected the contention of the assessee for restricting the net profit on such on cting the net profit on such on-money at the rate of 8%. T money at the rate of 8%. The Ld. CIT(A) allowed benefit to the extent of 50% of the on money Ld. CIT(A) allowed benefit to the extent of 50% of the on mon Ld. CIT(A) allowed benefit to the extent of 50% of the on mon observing as under:

“17. The case laws relied upon by the appellant as well as case laws The case laws relied upon by the appellant as well as case laws The case laws relied upon by the appellant as well as case laws as discussed above suggest that various High Courts and the as discussed above suggest that various High Courts and the as discussed above suggest that various High Courts and the jurisdictional Tribunal have held that only the profit element embedded in jurisdictional Tribunal have held that only the profit element embedded in jurisdictional Tribunal have held that only the profit element embedded in the 'on money and not the the 'on money and not the entire receipts, as recorded in the seized entire receipts, as recorded in the seized documents can be assessed as undisclosed income. It has also been held documents can be assessed as undisclosed income. It has also been held documents can be assessed as undisclosed income. It has also been held that in a search assessment, where computation of unaccounted income that in a search assessment, where computation of unaccounted income that in a search assessment, where computation of unaccounted income is based on entries in seized documents, all the entries should be taken is based on entries in seized documents, all the entries should be taken is based on entries in seized documents, all the entries should be taken into account in its entirety. The A cannot at his convenience accept the into account in its entirety. The A cannot at his convenience accept the into account in its entirety. The A cannot at his convenience accept the entries related to receipts and ignore the entries which indicate expenses. entries related to receipts and ignore the entries which indicate expenses. entries related to receipts and ignore the entries which indicate expenses. Accordingly, both the receipts as well as expenses, as mentioned in the Accordingly, both the receipts as well as expenses, as mentioned in the Accordingly, both the receipts as well as expenses, as mentioned in the seized documents must be taken into seized documents must be taken into account, for determination of account, for determination of taxable income on undisclosed receipts. taxable income on undisclosed receipts. 18. In the present case, a perusal of page no. 7 of bundle no. 5 suggests 18. In the present case, a perusal of page no. 7 of bundle no. 5 suggests 18. In the present case, a perusal of page no. 7 of bundle no. 5 suggests that that this page contains a table. The first column of this table that that this page contains a table. The first column of this table that that this page contains a table. The first column of this table mentions the name "Eagle Pride" and agains mentions the name "Eagle Pride" and against this figure of 1576.29 is t this figure of 1576.29 is mentioned. This amount exactly matches with the amount of on mentioned. This amount exactly matches with the amount of on mentioned. This amount exactly matches with the amount of on-money cash (Rs. 1,57,62,900/ cash (Rs. 1,57,62,900/-) received by the appellant during the FY 2015 ) received by the appellant during the FY 2015-16 as taxed by the assessing officer. On the right as taxed by the assessing officer. On the right-hand side of this table, hand side of this table, various payment various payments are tabulated as under: Mr. Sameer Mr. Sameer- Labour 275 Mr. Sahil Mr. Sahil- Centring 155 Mr. Mukund Mr. Mukund- Transport 128 Mr. Mukund (Misc.) Mr. Mukund (Misc.) 0.9 Direct Exp. Direct Exp. - Pride 265.39 Purchase Purchase 752 Total 1576.29 The above details suggest that certain cash expenses on account of The above details suggest that certain cash expenses on account of The above details suggest that certain cash expenses on account of labour, centring, transport, purchase, etc., were made by the appellant , centring, transport, purchase, etc., were made by the appellant , centring, transport, purchase, etc., were made by the appellant company and the narrations made on the seized paper suggests that company and the narrations made on the seized paper suggests that company and the narrations made on the seized paper suggests that both receipt and expenses pertain to the project namely 'Eagle Pride'. both receipt and expenses pertain to the project namely 'Eagle Pride'. both receipt and expenses pertain to the project namely 'Eagle Pride'. 19. Similarly, the seized page no. 4 to 6 contain var 19. Similarly, the seized page no. 4 to 6 contain various payments ious payments amounting to Rs. 2,53,73,488/ amounting to Rs. 2,53,73,488/-. These entries contain date of the . These entries contain date of the payment, amount as well as nature of the payment which are mainly for payment, amount as well as nature of the payment which are mainly for payment, amount as well as nature of the payment which are mainly for Steel bar, Bricks, Timber, Steel Angels, Pipes, hardware, labour, structure Steel bar, Bricks, Timber, Steel Angels, Pipes, hardware, labour, structure Steel bar, Bricks, Timber, Steel Angels, Pipes, hardware, labour, structure

M/s Eagle Infra India Ltd. 8 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

steel, purchases, etc. At one steel, purchases, etc. At one place the name of Eagle. Pride is mentioned Pride is mentioned explicity.it... on 08/03/2014. Rs. 0.28,0001 explicity.it... on 08/03/2014. Rs. 0.28,0001- were spent as * labour were spent as * labour- Eagle Price' At some places, name of Eagle Pride is mentioned as EP. For Eagle Price' At some places, name of Eagle Pride is mentioned as EP. For Eagle Price' At some places, name of Eagle Pride is mentioned as EP. For example, on 31/12/2013 there is an entry 5,75,000 EP Exps (upto Dec example, on 31/12/2013 there is an entry 5,75,000 EP Exps (upto Dec example, on 31/12/2013 there is an entry 5,75,000 EP Exps (upto Dec- 2013)'. Similarly. on 28/02/2014 there is an entry 9,82,000 EP Similarly. on 28/02/2014 there is an entry 9,82,000 EP Similarly. on 28/02/2014 there is an entry 9,82,000 EP Purchase-Feb'. These Feb'. These narrations suggest that these expenses relate to the narrations suggest that these expenses relate to the project namely Eagle Pride as project namely Eagle Pride as claimed by the appellant. 20. The claim of the appellant is that as per the seized documen 20. The claim of the appellant is that as per the seized documen 20. The claim of the appellant is that as per the seized documents, an amount of Rs. 4,25,91,388/ amount of Rs. 4,25,91,388/- was incurred in cash for construction of was incurred in cash for construction of said project on which on said project on which on-money was received by the appellant. Although, money was received by the appellant. Although, the appellant is not able to appellant is not able to substantiate with corroborative documentary substantiate with corroborative documentary evidences that expenditure to this evidences that expenditure to this extent was actually incurred for the extent was actually incurred for the project namely 'Eagle Pride, however, as discussed above, the narration project namely 'Eagle Pride, however, as discussed above, the narration project namely 'Eagle Pride, however, as discussed above, the narration of entries on seized documents clearly suggests that substantial amount of entries on seized documents clearly suggests that substantial amount of entries on seized documents clearly suggests that substantial amount of cash expenses was incurred by the appellant for the project. In these of cash expenses was incurred by the appellant for the project. In these of cash expenses was incurred by the appellant for the project. In these circumstances, following the case laws discussed earlier, I am of the rcumstances, following the case laws discussed earlier, I am of the rcumstances, following the case laws discussed earlier, I am of the opinion thatwhile computing the unaccounted income, all the entries in opinion thatwhile computing the unaccounted income, all the entries in opinion thatwhile computing the unaccounted income, all the entries in the seized documents should be taken into account andthe A cannot at the seized documents should be taken into account andthe A cannot at the seized documents should be taken into account andthe A cannot at his convenience accept the entries, related to r his convenience accept the entries, related to receipts and ignore the eceipts and ignore the entries which indicate expenses. Accordingly, both the receipts as well as entries which indicate expenses. Accordingly, both the receipts as well as entries which indicate expenses. Accordingly, both the receipts as well as expenses, as mentioned in the seized documents must be taken into expenses, as mentioned in the seized documents must be taken into expenses, as mentioned in the seized documents must be taken into account, for determination of taxable income on undisclosed receipts. account, for determination of taxable income on undisclosed receipts. account, for determination of taxable income on undisclosed receipts. 21. From the decisions 21. From the decisions discussed above, it can also be seen that while discussed above, it can also be seen that while various Courts/Tribunalhave held that only profit element out of the 'on various Courts/Tribunalhave held that only profit element out of the 'on various Courts/Tribunalhave held that only profit element out of the 'on- money should be taxed, the estimation of that profit element would money should be taxed, the estimation of that profit element would money should be taxed, the estimation of that profit element would depend on the facts of the particular case. In the case of DCIT Vs. depend on the facts of the particular case. In the case of DCIT Vs. depend on the facts of the particular case. In the case of DCIT Vs. Panna Corporation (2012)/74 DTR (Guj) 89, where the assessee was engaged in Corporation (2012)/74 DTR (Guj) 89, where the assessee was engaged in Corporation (2012)/74 DTR (Guj) 89, where the assessee was engaged in the business of construction of flats and loose papers evidencing the business of construction of flats and loose papers evidencing the business of construction of flats and loose papers evidencing collection of unaccounted cash were found during course of search, the collection of unaccounted cash were found during course of search, the collection of unaccounted cash were found during course of search, the Gujarat High Court upheld determination of Gujarat High Court upheld determination of income at Rs.26 lacs out of income at Rs.26 lacs out of total undisclosed receipts of Rs.62 lacs (i.e.42%). In the decision of total undisclosed receipts of Rs.62 lacs (i.e.42%). In the decision of total undisclosed receipts of Rs.62 lacs (i.e.42%). In the decision of Sharda Real Estate mentioned earlier, the MP High Court upheld the Sharda Real Estate mentioned earlier, the MP High Court upheld the Sharda Real Estate mentioned earlier, the MP High Court upheld the determination of income @25% of unaceounted receipts. determination of income @25% of unaceounted receipts. 22. In the present case, the appell . In the present case, the appellant contends that the profit element out ant contends that the profit element out of the 'on-money' should be computed by applying the rate of 8%. money' should be computed by applying the rate of 8%. money' should be computed by applying the rate of 8%. However, no reasonable basis for adopting this figure of 8% has been However, no reasonable basis for adopting this figure of 8% has been However, no reasonable basis for adopting this figure of 8% has been given by the appellant. During the appellate proceedings, the AR of the given by the appellant. During the appellate proceedings, the AR of the given by the appellant. During the appellate proceedings, the AR of the appellant has argued that it is in the business of Civil appellant has argued that it is in the business of Civil Construction and Construction and accordingly it is reasonable to compute the net profit by applying the rate accordingly it is reasonable to compute the net profit by applying the rate accordingly it is reasonable to compute the net profit by applying the rate of 8% on such cash receipts. I have examined this contention of the of 8% on such cash receipts. I have examined this contention of the of 8% on such cash receipts. I have examined this contention of the appellant; however, the nature of the project 'Eagle Pride' is not similar to appellant; however, the nature of the project 'Eagle Pride' is not similar to appellant; however, the nature of the project 'Eagle Pride' is not similar to other Civil Const other Civil Construction project undertaken by the appellant assessee. ruction project undertaken by the appellant assessee. Accordingly, the rate of 8% As suggested by the appellant cannot be Accordingly, the rate of 8% As suggested by the appellant cannot be Accordingly, the rate of 8% As suggested by the appellant cannot be accepted. 23. In the present case, the total cash receipts as per the summary sheet 23. In the present case, the total cash receipts as per the summary sheet 23. In the present case, the total cash receipts as per the summary sheet seized during the search is Rs. 9,25,50,100/ seized during the search is Rs. 9,25,50,100/-. The appellant has claimed appellant has claimed that the seized documents contain a total cash expenditure on the project that the seized documents contain a total cash expenditure on the project that the seized documents contain a total cash expenditure on the project namely Eagle Pride to the extent of Rs. 4,25,91,388/ namely Eagle Pride to the extent of Rs. 4,25,91,388/-. In this manner, the . In this manner, the

M/s Eagle Infra India Ltd. 9 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

profit on cash transactions comes to Rs. 4,99,58,712/ profit on cash transactions comes to Rs. 4,99,58,712/- (9,25,50, 100 (9,25,50, 100 - 4,25,91,388). Thus, the net profit ratio on cash transactions, comes to Thus, the net profit ratio on cash transactions, comes to Thus, the net profit ratio on cash transactions, comes to 53.98%. This profit ratio can be used as an indicator for estimating the 53.98%. This profit ratio can be used as an indicator for estimating the 53.98%. This profit ratio can be used as an indicator for estimating the income embedded in the 'on income embedded in the 'on-money received by the appellant. money received by the appellant. Considering the facts of the case in entirety and the propositio Considering the facts of the case in entirety and the propositio Considering the facts of the case in entirety and the proposition laid down by various High Courts as discussed above, I am of the view that it down by various High Courts as discussed above, I am of the view that it down by various High Courts as discussed above, I am of the view that it will be fair to both assessee and revenue, if the profit embedded in the will be fair to both assessee and revenue, if the profit embedded in the will be fair to both assessee and revenue, if the profit embedded in the 'on-money is estimated @50%. money is estimated @50%. Accordingly, the Assessing Officer is Accordingly, the Assessing Officer is directed to take 50% of the 'On directed to take 50% of the 'On-money as the appellant's income for each y as the appellant's income for each year, rather than treating the entire amountas unaccounted income. year, rather than treating the entire amountas unaccounted income. year, rather than treating the entire amountas unaccounted income.” 7.1 Before us the learned counsel of the assessee us the learned counsel of the assessee us the learned counsel of the assessee relied on the submission made before the Ld. CIT(A) and also submitted that submission made before the Ld. CIT(A) and also submitted that submission made before the Ld. CIT(A) and also submitted that firstly, the amount of the amount of ₹9,25,50,100/- was the gross amount of on was the gross amount of on- money received from sale of shops/offices. The Assessing Officer money received from sale of shops/offices. The Assessing Officer money received from sale of shops/offices. The Assessing Officer assessed the entire gross amount as income despite the explanation assessed the entire gross amount as income despite the explanation assessed the entire gross amount as income despite the explanation that gross receipt can never be taxable income and only the net that gross receipt can never be taxable income and only the net that gross receipt can never be taxable income and only the net amount after deducti amount after deducting expenditure could be taxed. In support of ng expenditure could be taxed. In support of the contention, the learned counsel relied on following decisions: the contention, the learned counsel relied on following decisions the contention, the learned counsel relied on following decisions

i) Lalchand Gopaldas Vs CIT 48 ITR 324 (All) i) Lalchand Gopaldas Vs CIT 48 ITR 324 (All) ii) DCIT Vs Panna Corporation TA No. 323 & 325 of 2000 ii) DCIT Vs Panna Corporation TA No. 323 & 325 of 2000 ii) DCIT Vs Panna Corporation TA No. 323 & 325 of 2000 iii) CIT vs Gurubachan Singh Juneja iii) CIT vs Gurubachan Singh Juneja 302 ITR 63 (Guj) 302 ITR 63 (Guj) 7.2 Secondly, the learned , the learned Counsel referred to following decisions referred to following decisions in the cases of civil contractors/ of civil contractors/developers, wherein net profit rate has wherein net profit rate has been estimated:

i. CIT Vs. Sharada Real Estate (P) Ltd. 99 D'TR 100 (MP) CIT Vs. Sharada Real Estate (P) Ltd. 99 D'TR 100 (MP) CIT Vs. Sharada Real Estate (P) Ltd. 99 D'TR 100 (MP) Estimated addition is 25% of Estimated addition is 25% of the receipts the receipts ii. Bhalchandra Trading Pvt. Ltd. Vs. DCIT ITA No. 2977 & Bhalchandra Trading Pvt. Ltd. Vs. DCIT ITA No. 2977 & Bhalchandra Trading Pvt. Ltd. Vs. DCIT ITA No. 2977 & 2978/M /2019 2978/M /2019 -Estimated addition is 12% of the reccipts. Estimated addition is 12% of the reccipts. iii. ACIT Vs. Om Construction IT No. 6234/M/2012 Estimated ACIT Vs. Om Construction IT No. 6234/M/2012 Estimated ACIT Vs. Om Construction IT No. 6234/M/2012 Estimated addition is 12% addition is 12% iv. ACIT Vs. Shahkar Developers IT No. 6235/M /2012 ACIT Vs. Shahkar Developers IT No. 6235/M /2012 ACIT Vs. Shahkar Developers IT No. 6235/M /2012 - Estimated Estimated addition is 17%.

M/s Eagle Infra India Ltd. 10 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

v. ACIT Vs. Sri Sri Estates, Hyderabad. ITA No.2242 to ACIT Vs. Sri Sri Estates, Hyderabad. ITA No.2242 to ACIT Vs. Sri Sri Estates, Hyderabad. ITA No.2242 to 2245/Hyd/ 17. 2245/Hyd/ 17. - Estimated addition 12.5% Estimated addition 12.5% vi. Ekta Housing Pvt. Ltd. Vs. Dy.CIT, Central Circle Ekta Housing Pvt. Ltd. Vs. Dy.CIT, Central Circle Ekta Housing Pvt. Ltd. Vs. Dy.CIT, Central Circle-6(2), Mumbai. ITA No. 1732 to 1745/ Mum/2019. Estimated Mumbai. ITA No. 1732 to 1745/ Mum/2019. Estimated Mumbai. ITA No. 1732 to 1745/ Mum/2019. Estimated addition 15% addition 15% 7.3 Relying on the above decisions, the learned counsel submitted elying on the above decisions, the learned counsel submitted elying on the above decisions, the learned counsel submitted that though the Ld. CIT(A) has accepted that only net receipt could that though the Ld. CIT(A) has accepted that only net receipt could that though the Ld. CIT(A) has accepted that only net receipt could be taxed but estimated the expenditure at the rate of the 50% be taxed but estimated the expenditure at the rate of the 50% be taxed but estimated the expenditure at the rate of the 50% without assigning any proper reasons. The learned counsel without assigning any proper reasons. The learned counsel without assigning any proper reasons. The learned counsel submitted that under the provisions of ed that under the provisions of section 44AD and 44BBB of section 44AD and 44BBB of the Act the presumptive profit has been fixed at 8% and 10% ct the presumptive profit has been fixed at 8% and 10% ct the presumptive profit has been fixed at 8% and 10% respectively. It was submitted that assessee’s net profit had never respectively. It was submitted that assessee’s net profit had never respectively. It was submitted that assessee’s net profit had never been more than 8% been more than 8% in past assessment years. Therefore in view of s. Therefore in view of the decisions relied ecisions relied upon, the estimated taxable portion of one the estimated taxable portion of one money received should be restricted to should be restricted to not more than 25% not more than 25% of such receipts.

7.4 We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. The assessee dispute and perused the relevant material on record. T dispute and perused the relevant material on record. T contended that undisclosed income from contended that undisclosed income from on-money received on money received on booking/sale of shops shoul booking/sale of shops should be restricted to 25 % of on % of on-money as against total amount of on against total amount of on-money held as undisclosed income of undisclosed income of the assessee by the Assessing Officer. The Ld. CIT(A) has however the assessee by the Assessing Officer. The Ld. CIT(A) h the assessee by the Assessing Officer. The Ld. CIT(A) h allowed 50% of the on allowed 50% of the on-money received as expenditure incurred in money received as expenditure incurred in cash by the assessee for the project and sustained balance 50% of cash by the assessee for the project and sustained balance 50% of cash by the assessee for the project and sustained balance 50% of the on-money received as undisclosed income in the hands of the money received as undisclosed income in the hands of the money received as undisclosed income in the hands of the assessee. The assessee is aggrieved with the The assessee is aggrieved with the addition on sustained by

M/s Eagle Infra India Ltd. 11 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

the Ld. CIT(A), whereas the R , whereas the Revenue is aggrieved with the relief evenue is aggrieved with the relief allowed by Ld. CIT(A). We find that the Ld. CIT(A) agreed for allowed by Ld. CIT(A). We find that the Ld. CIT(A) agreed for allowed by Ld. CIT(A). We find that the Ld. CIT(A) agreed for allowing set off for the cash expenditure in view of the various allowing set off for the cash expenditure in view of the various allowing set off for the cash expenditure in view of the various decisions cited in the order. The same decisions s cited in the order. The same decisions have been cited have been cited before us. In all those decisions se decisions deduction for expenses incurred in deduction for expenses incurred in cash has been considered against the cash has been considered against the cash received as on cash received as on-money. We fully endorse the ratio of the decisions cited. We fully endorse the ratio of the decisions cited. It is undisputed It is undisputed that whenever documentary evidence of that whenever documentary evidence of incurring expenditure i incurring expenditure in cash along with receipt of on cash along with receipt of on-money in cash is found during the found during the course of the search or survey action, course of the search or survey action, then an assessee is eligible assessee is eligible for said deduction of expens for said deduction of expenses out of the receipt of the on es out of the receipt of the on-money for determination of profit eleme determination of profit element embedded in those receipt nt embedded in those receipts. Therefore, it is important to examine the documentary evidence it is important to examine the documentary evidence it is important to examine the documentary evidences, which could support the claim of the assessee for deduction of which could support the claim of the assessee for deduction of which could support the claim of the assessee for deduction of expenditure incurred in cash against on ure incurred in cash against on-money received on money received on booking/sale of shops. The Ld. CIT(A) i booking/sale of shops. The Ld. CIT(A) in paragraphs graphs 18 to 20 of the impugned order, which we have reproduced above, has referred to , which we have reproduced above, has referred to , which we have reproduced above, has referred to evidences of expenditure incurred in cash. We find that as regard to of expenditure incurred in cash. We find that as regard to of expenditure incurred in cash. We find that as regard to page No. 7(seven) of bundle No. of bundle No. 5(five) , referred in para 18, there is , referred in para 18, there is a mention of some nam mention of some names on left hand side, which the assessee has side, which the assessee has claimed to be his emplo to be his employees and some amount on right hand side without any unit of currency of currency. From this table it cannot be inferred . From this table it cannot be inferred that same was expenditure incurred in cash. that same was expenditure incurred in cash. The name of item The name of item purchased or refere purchased or reference of any bill or ‘challan’ etc is also not nce of any bill or ‘challan’ etc is also not mentioned. It also cannot be inferred whether the said amount was It also cannot be inferred whether the said amount was It also cannot be inferred whether the said amount was

M/s Eagle Infra India Ltd. 12 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

already entered or recorded in the regular books of accounts. already entered or recorded in the regular books of accounts. already entered or recorded in the regular books of accounts. Unless such verification, considering the said amount of ₹1576.29 Unless such verification, considering the said amount of Unless such verification, considering the said amount of as ₹1,57,62,900/- and and incurred in cash and then making the same making the same as basis by the ld CIT(A) for allowing 50% of the on asis by the ld CIT(A) for allowing 50% of the on- -money received as expenditure, is not justified. Further the Ld. CIT(A) in para 19 is not justified. Further the Ld. CIT(A) in para 19 is not justified. Further the Ld. CIT(A) in para 19 has referred to certain expenses amounting to has referred to certain expenses amounting to ₹2,53,73, 2,53,73,488/-. On perusal of the para 19 of the Ld. CIT(A), we find that there is a of the para 19 of the Ld. CIT(A), we find that there is a of the para 19 of the Ld. CIT(A), we find that there is a reference of expenditure in respect of the building material reference of expenditure in respect of the building material reference of expenditure in respect of the building material including steel bar, bricks, timber etc related to the project “Eagle including steel bar, bricks, timber etc related to the project “Eagle including steel bar, bricks, timber etc related to the project “Eagle Pride” but there is no mention of any bill no /date /amount , thus, there is no mention of any bill no /date /amount , thus, there is no mention of any bill no /date /amount , thus, it cannot be verified whether the expenditure mentioned in the it cannot be verified whether the expenditure mentioned in the it cannot be verified whether the expenditure mentioned in the seized documents are already recorded in the regular books of seized documents are already recorded in the regular books of seized documents are already recorded in the regular books of accounts. But for verification for verification of expenses, the onus is on the , the onus is on the assessee to produce entries recorded in books of accounts for assessee to produce entries recorded in books of accounts for assessee to produce entries recorded in books of accounts for purchase of building material on relevant dates and to substantiate ase of building material on relevant dates and to substantiate ase of building material on relevant dates and to substantiate that the purchase of the relevant material was not recorded in the purchase of the relevant material was not recorded in the purchase of the relevant material was not recorded in regular books of accounts. No such exercise has been carried out by regular books of accounts. No such exercise has been carried out by regular books of accounts. No such exercise has been carried out by assessee either before the AO or the assessee either before the AO or the Ld. CIT(A) and deduction Ld. CIT(A) and deduction of the 50% of the expenses has been allowed 50% of the expenses has been allowed by the ld CIT(A) by the ld CIT(A) without such verification, therefore same is not justified. It is not always therefore same is not justified. It is not always therefore same is not justified. It is not always necessary that cash expenditure necessary that cash expenditure shall be incurred out of the on shall be incurred out of the on- money received in cash. It is not like Newton’s law of gravity which money received in cash. It is not like Newton’s law of money received in cash. It is not like Newton’s law of will remain uniform across the globe. will remain uniform across the globe. The quantum of cash The quantum of cash expenditure depends on case to case and i expenditure depends on case to case and incurring of exp ncurring of expenditure in cash against the on in cash against the on-money received has to be substantiated by money received has to be substantiated by

M/s Eagle Infra India Ltd. 13 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

way of the documentary evidence way of the documentary evidence having clear mention having clear mention of bill no, date, amount etc. The The deduction can be allowed in respect of the deduction can be allowed in respect of the expenses recorded in such documentary evidence only. If during expenses recorded in such documentary evidence only. expenses recorded in such documentary evidence only. search only a lead only a lead paper indicating expenses incurred paper indicating expenses incurred is found, then onus is on the assessee then onus is on the assessee to provide complete details of to provide complete details of supplier/bill No./date/amount etc so that claim of the assessee of No./date/amount etc so that claim of the assessee of No./date/amount etc so that claim of the assessee of cash expenses incurred out of books can be subjected to cash expenses incurred out of books can be subjected to cash expenses incurred out of books can be subjected to verification. As no such exercise has been carried out by the verification. As no such exercise has been carried out by the verification. As no such exercise has been carried out by the assessee, in the circumstances, we set n the circumstances, we set aside the finding of the Ld. aside the finding of the Ld. CIT(A) for allowing 50% of the on T(A) for allowing 50% of the on-money receipt as incurred for money receipt as incurred for expenditure in cash.

Benefit of set off of disclosure made in PMGKY, Scheme 2016 Benefit of set off of disclosure made in PMGKY, Scheme 2016 Benefit of set off of disclosure made in PMGKY, Scheme 2016 and IDS, 2016

8.1 The facts qua the issue in dispute are that the assessee The facts qua the issue in dispute are that the assessee The facts qua the issue in dispute are that the assessee declared total undisclosed income of declared total undisclosed income of ₹ 1 crore in cash in cash under the IDS-2016 on 14/09/2016 having year 2016 on 14/09/2016 having year -wise details of AY 2012 wise details of AY 2012-13 amounting to ₹ 25 lakh, AY:2013 25 lakh, AY:2013-14 amounting to ₹25 lakh and AY: 25 lakh and AY: 2015-16 amounting to 16 amounting to ₹50 lakhs. The said declar . The said declaration has been accepted by the Income accepted by the Income-tax department on 23/10/2017 on tax department on 23/10/2017 on payment of due taxes amounting to payment of due taxes amounting to ₹ 45 lakh.

M/s Eagle Infra India Ltd. 14 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

8.2 The assessee further further made declaration under PMGKY on declaration under PMGKY on 30/03/2017 wherein undisclosed income of 30/03/2017 wherein undisclosed income of ₹ 7 crores was declared, which consisted of declared, which consisted of ₹1,06,500/-held in cash and amount held in cash and amount of ₹6,98,93,500/-held deposits in various bank accounts. These held deposits in various bank accounts. These held deposits in various bank accounts. These deposits were made in banks post the demonetization zation of currency notes of ₹ 500 and 500 and Rs. 1000/- by the Reserve Bank of India eserve Bank of India on 08/11/2016. The Ld. CIT(A) has noted that in financial year 2016- 08/11/2016. The Ld. CIT(A) has noted that in financial year 2016 08/11/2016. The Ld. CIT(A) has noted that in financial year 2016 17 corresponding to assessment year 2017 17 corresponding to assessment year 2017-18 , the assessee earned 18 , the assessee earned amount of ₹2,97,37, 2,97,37,000/-as cash towards on-money on sale of money on sale of office /shops and therefore , firstly, considered set off of office /shops and therefore considered set off of ₹2,97,37,000/- out of out of ₹ 7 crores against the undisclosed income against the undisclosed income sustained by the Ld. CIT(A) for assessment year 2017-18. sustained by the Ld. CIT(A) for assessment year 2017 sustained by the Ld. CIT(A) for assessment year 2017 Secondly, after reducing reducing the amount of ₹2,97,37, 2,97,37,000/-from the Rs. amount of ₹7,00,00, 7,00,00,000/-, , the the balance balance amount amount of of 4,02,63,000/-, has has has been been been set set set off off off against against against the the the amount amount amount of of of ₹4,30,18,727/- received as commission in cash in the financial year received as commission in cash in the financial year received as commission in cash in the financial year 2015-16 corresponding to assessment year 2016 16 corresponding to assessment year 2016-17. In this 16 corresponding to assessment year 2016 manner, the Ld. CIT(A) allowed set off the entire amount of nner, the Ld. CIT(A) allowed set off the entire amount of nner, the Ld. CIT(A) allowed set off the entire amount of undisclosed income declared under PMGKY. Regarding the undisclosed income declared under PMGKY. Regarding the undisclosed income declared under PMGKY. Regarding the undisclosed income of undisclosed income of ₹ 50 lakh declared under IDS under IDS in 2015-16, the Ld. CIT(A) allowed set of Ld. CIT(A) allowed set off of the same against the assessme the same against the assessment year 2015-16. The relevant fi The relevant finding of the Ld. CIT(A) is reproduced as nding of the Ld. CIT(A) is reproduced as under:

“34. I have considered the facts of the case and submissions made by 34. I have considered the facts of the case and submissions made by 34. I have considered the facts of the case and submissions made by the appellant. It is a fact that a declaration in Form the appellant. It is a fact that a declaration in Form-1 declaring an 1 declaring an undisclosed income of Rs. 7,00,00,000 undisclosed income of Rs. 7,00,00,000/- was made by the appellant was made by the appellant

M/s Eagle Infra India Ltd. 15 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

under PMGKY, 2016 on 30/03/2017. It is also not under dispute that as under PMGKY, 2016 on 30/03/2017. It is also not under dispute that as under PMGKY, 2016 on 30/03/2017. It is also not under dispute that as per the scheme, the appellant was not required to disclose the source of per the scheme, the appellant was not required to disclose the source of per the scheme, the appellant was not required to disclose the source of such undisclosed income declared under PMGKY, 2016. A perusal of such undisclosed income declared under PMGKY, 2016. A perusal of such undisclosed income declared under PMGKY, 2016. A perusal of Form-1 specified un 1 specified under PMGKY, 2016 suggests that nowhere the der PMGKY, 2016 suggests that nowhere the declarant is required to declare the assessment year to which such declarant is required to declare the assessment year to which such declarant is required to declare the assessment year to which such income pertains or source from where such undisclosed income was income pertains or source from where such undisclosed income was income pertains or source from where such undisclosed income was earned. It is also not in dispute that in the statement recorded u/s 132(4) earned. It is also not in dispute that in the statement recorded u/s 132(4) earned. It is also not in dispute that in the statement recorded u/s 132(4) on 25/01/2018, the director of the appellant company informed the 01/2018, the director of the appellant company informed the 01/2018, the director of the appellant company informed the authorized officer about the declaration made by the company under authorized officer about the declaration made by the company under authorized officer about the declaration made by the company under PMGKY. This was reiterated in another statement u/s 132(4) recorded on PMGKY. This was reiterated in another statement u/s 132(4) recorded on PMGKY. This was reiterated in another statement u/s 132(4) recorded on 05/03/2018. The same stand was maintained by the appellant 05/03/2018. The same stand was maintained by the appellant 05/03/2018. The same stand was maintained by the appellant company before the DDIT (Inv.) during the post search investigation as well as before the DDIT (Inv.) during the post search investigation as well as before the DDIT (Inv.) during the post search investigation as well as during the assessment proceedings. Since, the scheme itself did not during the assessment proceedings. Since, the scheme itself did not during the assessment proceedings. Since, the scheme itself did not require to disclose any nexus between the source and the income require to disclose any nexus between the source and the income require to disclose any nexus between the source and the income declared, in that situation, the observation declared, in that situation, the observations of the Assessing Officer that s of the Assessing Officer that the appellant has not been able to show any nexus between the the appellant has not been able to show any nexus between the the appellant has not been able to show any nexus between the undisclosed income detected during the search operation and the undisclosed income detected during the search operation and the undisclosed income detected during the search operation and the declaration under PMGKY, are not correct. The appellant has explained declaration under PMGKY, are not correct. The appellant has explained declaration under PMGKY, are not correct. The appellant has explained that it has earned undisclos that it has earned undisclosed income in form of cash which was ed income in form of cash which was deposited in the bank account during F.Y. 2016 deposited in the bank account during F.Y. 2016-17 and such undisclosed 17 and such undisclosed income of Rs. 7,00,00,000/ income of Rs. 7,00,00,000/- was disclosed in PMGKY Scheme. In such was disclosed in PMGKY Scheme. In such situation, not granting the benefit of this disclosure of Rs. 7,00,00,000/ situation, not granting the benefit of this disclosure of Rs. 7,00,00,000/ situation, not granting the benefit of this disclosure of Rs. 7,00,00,000/- against the undisclosed cash income detected during the search t the undisclosed cash income detected during the search t the undisclosed cash income detected during the search operation, shall amount to double taxation which is not permissible under operation, shall amount to double taxation which is not permissible under operation, shall amount to double taxation which is not permissible under law. Considering the totality of facts of the case, it is held that the Considering the totality of facts of the case, it is held that the Considering the totality of facts of the case, it is held that the appellant is eligible for benefit of setting off of u appellant is eligible for benefit of setting off of undisclosed cash income ndisclosed cash income detected during the search against the disclosure made under PMGKY detected during the search against the disclosure made under PMGKY detected during the search against the disclosure made under PMGKY Scheme. 35. The appellant has however worked out total undisclosed income for 35. The appellant has however worked out total undisclosed income for 35. The appellant has however worked out total undisclosed income for A.Y. 2014-15 to 2016 15 to 2016-17 at Rs. 5,04,23,285/- (reproduced at para (reproduced at para 25 of this order) on various additions made by the Assessing Officer, as per its this order) on various additions made by the Assessing Officer, as per its this order) on various additions made by the Assessing Officer, as per its own computation. In this connection, it may be stated that I do not agree own computation. In this connection, it may be stated that I do not agree own computation. In this connection, it may be stated that I do not agree with the manner of computation made by the appellant for the reasons with the manner of computation made by the appellant for the reasons with the manner of computation made by the appellant for the reasons discussed in detail in this ord discussed in detail in this order at places where the specific additions er at places where the specific additions made by the Assessing Officer are discussed. made by the Assessing Officer are discussed. Accordingly, the manner in Accordingly, the manner in which appellant has claimed the benefit of disclosure made under which appellant has claimed the benefit of disclosure made under which appellant has claimed the benefit of disclosure made under PMGKY Scheme against the additions made by the Assessing Officer, is PMGKY Scheme against the additions made by the Assessing Officer, is PMGKY Scheme against the additions made by the Assessing Officer, is rejected and the manner in which the set and the manner in which the set-off can be allowed is being off can be allowed is being discussed in subsequent paragraphs discussed in subsequent paragraphs 36. The disclosure in PMGKY Scheme was made by the appellant in FY 36. The disclosure in PMGKY Scheme was made by the appellant in FY 36. The disclosure in PMGKY Scheme was made by the appellant in FY 2016-17. As per PMGKY Scheme, a declarant was required to disclose As per PMGKY Scheme, a declarant was required to disclose As per PMGKY Scheme, a declarant was required to disclose the undisclosed income rep the undisclosed income represented in the form of deposits or cash resented in the form of deposits or cash available with the appellant. available with the appellant. Therefore, while working out the benefit Therefore, while working out the benefit regarding the setting off of cash receipts detected during the search regarding the setting off of cash receipts detected during the search regarding the setting off of cash receipts detected during the search operation with the disclosure made in PMGKY Scheme. 93:85 operation with the disclosure made in PMGKY Scheme. 93:85 operation with the disclosure made in PMGKY Scheme. 93:85 one has to work backwards starting from FY 2016 backwards starting from FY 2016-17. As discussed earlier in this 17. As discussed earlier in this order, during F.Y. 2016 during F.Y. 2016-17 corresponding to A.Y. 2017-18, the appellant 18, the appellant company has earned an amount of Rs. 2,97,37,000/ company has earned an amount of Rs. 2,97,37,000/- as cash towards as cash towards on-money on sale of offices/shops in the project name money on sale of offices/shops in the project namely Eagle Pride. It is ly Eagle Pride. It is also seen from the seized documents that no cash expenditure on this also seen from the seized documents that no cash expenditure on this also seen from the seized documents that no cash expenditure on this

M/s Eagle Infra India Ltd. 16 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

project was incurred by the company project was incurred by the company Year. Although, I have held that the Year. Although, I have held that the income embedded in the 'on income embedded in the 'on-money' is to be estimated @ 50% of the 'on money' is to be estimated @ 50% of the 'on- money but that is afte money but that is after considering the cash expenses recorded in the r considering the cash expenses recorded in the seized documents which were incurred during the period prior to F.Y. seized documents which were incurred during the period prior to F.Y. seized documents which were incurred during the period prior to F.Y. 2016-17. In such situation, whole of this cash receipt amounting to Rs. 17. In such situation, whole of this cash receipt amounting to Rs. 17. In such situation, whole of this cash receipt amounting to Rs. 2,97,37,000/-was available to the appellant for deposit in the PMGK was available to the appellant for deposit in the PMGKY was available to the appellant for deposit in the PMGK Scheme because as per PMGKY Scheme, a declarant was required to Scheme because as per PMGKY Scheme, a declarant was required to Scheme because as per PMGKY Scheme, a declarant was required to disclose the undisclosed income represented in the form of deposits or disclose the undisclosed income represented in the form of deposits or disclose the undisclosed income represented in the form of deposits or cash available with the appellant. Therefore, while granting the setting cash available with the appellant. Therefore, while granting the setting cash available with the appellant. Therefore, while granting the setting off benefit against the declaration under PMGK off benefit against the declaration under PMGKY, this cash receipt Y, this cash receipt amount on 'gross basis' is first required to be set off against the amount on 'gross basis' is first required to be set off against the amount on 'gross basis' is first required to be set off against the declaration of Rs. 7,00,00,000/ declaration of Rs. 7,00,00,000/- declared in PMGKY. Accordingly, the declared in PMGKY. Accordingly, the whole of cash receipts amounting to Rs. 2,97,37,000/ whole of cash receipts amounting to Rs. 2,97,37,000/- are eligible for are eligible for setting off against the dec setting off against the declaration made under PMGKY. 37. After reducing the amount of Rs. 2,97,37,000/ 37. After reducing the amount of Rs. 2,97,37,000/- from the amount of from the amount of Rs.7,00,00,000/ Rs.7,00,00,000/-, the balance amount comes to Rs. 4,02,63,000/ , the balance amount comes to Rs. 4,02,63,000/-which is available for setting off against the cash receipts for AY 2016 is available for setting off against the cash receipts for AY 2016 is available for setting off against the cash receipts for AY 2016-17 and preceding years. preceding years. As per the assessment order for A.Y. 2016 As per the assessment order for A.Y. 2016-17, during this year, the appellant earned an amount of Rs. 4,30,18,7271 this year, the appellant earned an amount of Rs. 4,30,18,7271 this year, the appellant earned an amount of Rs. 4,30,18,7271- as commission in cash. At the time of search operation, Shri Udhavdas commission in cash. At the time of search operation, Shri Udhavdas commission in cash. At the time of search operation, Shri Udhavdas Rupchandani admitted this cash income in the statement recorded us Rupchandani admitted this cash income in the statement recorded us Rupchandani admitted this cash income in the statement recorded us 132(4) of the Act, but mentioned tha ass income in the statement 2(4) of the Act, but mentioned tha ass income in the statement 2(4) of the Act, but mentioned tha ass income in the statement recorded us PMGKY was made. Till date, the appellant has not disputed recorded us PMGKY was made. Till date, the appellant has not disputed recorded us PMGKY was made. Till date, the appellant has not disputed the receipt of said cash income of Rs. 4,30,18,7271 the receipt of said cash income of Rs. 4,30,18,7271- and has requested and has requested the setting off of same against the declaration unde the setting off of same against the declaration under PMGKY. Since the r PMGKY. Since the amount available for setting off against the cash receipts for A.Y. 2016 amount available for setting off against the cash receipts for A.Y. 2016 amount available for setting off against the cash receipts for A.Y. 2016- 17 is only at Rs. 4,02,63,000/ 17 is only at Rs. 4,02,63,000/-, accordingly. the appellant can be , accordingly. the appellant can be allowed the benefit of setting off only upto the amount of Rs. allowed the benefit of setting off only upto the amount of Rs. allowed the benefit of setting off only upto the amount of Rs. 4,02,63,000/-. 38. Since, whole of 38. Since, whole of the amount disclosed under PMGKY, 2016 gets the amount disclosed under PMGKY, 2016 gets exhausted against the cash receipts for A.Y. 2016 exhausted against the cash receipts for A.Y. 2016-17 and 2017 17 and 2017-18, therefore, the appellant will not be eligible for any benefit of setting off of therefore, the appellant will not be eligible for any benefit of setting off of therefore, the appellant will not be eligible for any benefit of setting off of the cash receipts for A.Y. 2014 the cash receipts for A.Y. 2014-15 and 2015-16, against the decla 16, against the declaration made in PMGKY Scheme, as claimed by it. made in PMGKY Scheme, as claimed by it. 39. Regarding the declaration made under IDS 39. Regarding the declaration made under IDS-2016, the appellant has 2016, the appellant has claimed set off for Rs. 1,00,00,000/ claimed set off for Rs. 1,00,00,000/- as declared under IDS as declared under IDS-2016. A perusal of Form perusal of Form-1 filed under IDS-2016 2016 suggests suggests thatfollowing thatfollowing undisclosed income were declared by the appellant under IDS d income were declared by the appellant under IDS d income were declared by the appellant under IDS-2016: Sr. A.Y. to which the A.Y. to which the Amount of Nature of No. undisclosed income undisclosed income Undisclosed Income Undisclosed pertains pertains Income 2012 2012-13 25,00,000 Cash Cash 2013 2013-14 25,00,000 Cash 2015 2015-16 50,00,000 Total Total 1,00,00,000 Since undisclosed income of Rs. 25,00,000/ Since undisclosed income of Rs. 25,00,000/- each, were disclosed for each, were disclosed for A.Y. 2012-13 and 2013 13 and 2013-14 and the present appeals are for A.Y. 2014 14 and the present appeals are for A.Y. 2014-15

M/s Eagle Infra India Ltd. 17 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

onwards, therefore no set off benefit for declaration made under IDS onwards, therefore no set off benefit for declaration made under IDS onwards, therefore no set off benefit for declaration made under IDS- 2016 for A.Y. 2012 2016 for A.Y. 2012-13 and 2013-14 can be allowed to the appellant. As can be allowed to the appellant. As regards to the declaration for A.Y. 2015 regards to the declaration for A.Y. 2015-16, it is clear from the above 16, it is clear from the above declaration that the disclosure was made towards the cash income of declaration that the disclosure was made towards the cash income of declaration that the disclosure was made towards the cash income of Rs. 50,00,000/-. Since, the income detected during the search operation for . Since, the income detected during the search operation for . Since, the income detected during the search operation for which addition was made by the Assessing Officer was also of the h addition was made by the Assessing Officer was also of the h addition was made by the Assessing Officer was also of the nature of 'cash income', therefore, in my opinion the appellant should be nature of 'cash income', therefore, in my opinion the appellant should be nature of 'cash income', therefore, in my opinion the appellant should be given the benefit of this disclosure of Rs. 50,00,000/ given the benefit of this disclosure of Rs. 50,00,000/-, against the , against the addition made by the Assessing Officer, unless the s addition made by the Assessing Officer, unless the set off for same has et off for same has been claimed somewhere else. Accordingly, in order to avoid any double been claimed somewhere else. Accordingly, in order to avoid any double been claimed somewhere else. Accordingly, in order to avoid any double benefit the Assessing Officer is directed to verify that set off has not been benefit the Assessing Officer is directed to verify that set off has not been benefit the Assessing Officer is directed to verify that set off has not been allowed for this declared amount of Rs.50,00,000/ allowed for this declared amount of Rs.50,00,000/- against any other against any other income of the appe income of the appellant. In case, no set off benefit is availed on this IDS llant. In case, no set off benefit is availed on this IDS declaration elsewhere, the appellant will be allowed the benefit of set off declaration elsewhere, the appellant will be allowed the benefit of set off declaration elsewhere, the appellant will be allowed the benefit of set off against the addition made by the Assessing Officer to the extent of Rs. against the addition made by the Assessing Officer to the extent of Rs. against the addition made by the Assessing Officer to the extent of Rs. 50,00,000/- for A.Y. 2015 for A.Y. 2015-16. 40. Here it may be m 40. Here it may be mentioned that the appellant has stated before the entioned that the appellant has stated before the undersigned that it has not claimed any allowance or set off anywhere undersigned that it has not claimed any allowance or set off anywhere undersigned that it has not claimed any allowance or set off anywhere against the said disclosure of Rs. 7,00,00,000/ against the said disclosure of Rs. 7,00,00,000/- under PMGKY Scheme or under PMGKY Scheme or Rs. 50,00,000/ Rs. 50,00,000/- under IDS-2016 for A.Y. 2015-16. In case, at any 16. In case, at any stage it is found that the declaration made under PMGKY Scheme, 2016 or IDS it is found that the declaration made under PMGKY Scheme, 2016 or IDS it is found that the declaration made under PMGKY Scheme, 2016 or IDS- 2016 is invalid or the appellant or any other group entity has taken the 2016 is invalid or the appellant or any other group entity has taken the 2016 is invalid or the appellant or any other group entity has taken the telescoping/set telescoping/set-off benefit of these disclosures made under PMGKY off benefit of these disclosures made under PMGKY Scheme, 2016 or under IDS Scheme, 2016 or under IDS-2016 elsewhere, in that case, the appellant in that case, the appellant shall not be eligible for benefit of set shall not be eligible for benefit of set-off allowed vide this order. The off allowed vide this order. The Assessing Officer is directed accordingly. Assessing Officer is directed accordingly.” 8.3 We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. We find that dispute and perused the relevant material on record. We find that dispute and perused the relevant material on record. We find that Ld. CIT(A) has allowed set off of the amount already declared by the Ld. CIT(A) has allowed set off of the amount already declared by the Ld. CIT(A) has allowed set off of the amount already declared by the assessee assessee assessee under under under the the the relevant relevant relevant schemes schemes schemes announced announc announc by the Government of India. The assessee has offered undisclosed income ment of India. The assessee has offered undisclosed income ment of India. The assessee has offered undisclosed income in the form of the cash under the IDS and cash deposited in banks in the form of the cash under the IDS and cash deposited in banks in the form of the cash under the IDS and cash deposited in banks under the PMGKY scheme. All the cash deposited and declared has under the PMGKY scheme. All the cash deposited and declared has under the PMGKY scheme. All the cash deposited and declared has been verified by the Assessing Officer as well as by the Ld. CIT(A) as been verified by the Assessing Officer as well as by the Ld. CIT(A) been verified by the Assessing Officer as well as by the Ld. CIT(A) received from booking/sale of offices/shops in received from booking/sale of offices/shops in “Eagle Pride project Eagle Pride project” and thus assessee cannot be subjected to tax twice in respect of the and thus assessee cannot be subjected to tax twice in respect of the and thus assessee cannot be subjected to tax twice in respect of the same undisclosed income, once under the PMGKY and IDS and same undisclosed income, once under the PMGKY and IDS and same undisclosed income, once under the PMGKY and IDS and

M/s Eagle Infra India Ltd. 18 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

second under the provisions of section 15 second under the provisions of section 153A of the A 3A of the Act. The ld counsel has disputed only the factual observation by the ld CIT(A) counsel has disputed only the factual observation by the ld CIT(A) counsel has disputed only the factual observation by the ld CIT(A) that the project “Eagle Pride” was completed in previous year that the project “Eagle Pride” was completed in previous year that the project “Eagle Pride” was completed in previous year corresponding o AY 2017 corresponding o AY 2017-18, whereas according to the assessee 18, whereas according to the assessee said project was completed in FY 2017 said project was completed in FY 2017-18 corresponding to 18 corresponding to AY 2018-19. But, we find that entire on 19. But, we find that entire on-money shown has been shown money shown has been shown to have been received in the period prior to demonetization in old to have been received in the period prior to demonetization in old to have been received in the period prior to demonetization in old currency and thus any way assessee cannot be granted benefit for currency and thus any way assessee cannot be granted benefit for currency and thus any way assessee cannot be granted benefit for assessment years subsequent to the demonetization period. In our assessment years subsequent to the demonetization period. assessment years subsequent to the demonetization period. opinion, finding of the Ld. CIT(A) on the issue in dispute is justified finding of the Ld. CIT(A) on the issue in dispute is justified finding of the Ld. CIT(A) on the issue in dispute is justified and we do not find any error in the same. A not find any error in the same. Accordingly ccordingly, we uphold the finding of the Ld. CIT(A) on the issue in dispute. the finding of the Ld. CIT(A) on the issue in dispute. the finding of the Ld. CIT(A) on the issue in dispute.

9.1 The grounds of the appeal of the assessee for assessment year of the appeal of the assessee for assessment year of the appeal of the assessee for assessment year 2014-15 are reproduced as under: 15 are reproduced as under:

M/s Eagle Infra India Ltd. 19 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

9.3 We have heard rival submission on the additional ground. We We have heard rival submission on the additional ground. We We have heard rival submission on the additional ground. We find that the Assessing Officer has find that the Assessing Officer has referred to the seized document to the seized document while making addition. The ld Counsel contented that no cash or while making addition. The ld Counsel contented that while making addition. The ld Counsel contented that valuables were found duri valuables were found during search action except some ng search action except some loosepapers indicating on money received in cash in respect of the sales of indicating on money received in cash in respect of the sales of indicating on money received in cash in respect of the sales of shops/office in one of the project of the assessee. According to the shops/office in one of the project of the assessee. A shops/office in one of the project of the assessee. A learned counsel, since the cash on ince the cash on-money was already declared in ready declared in

M/s Eagle Infra India Ltd. 20 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

PMGKY and IDS schemes, schemes, therefore, on-money details found was money details found was not in the nature of incriminating material. not in the nature of incriminating material. The learned counsel The learned counsel in support of the contention that no addition could be sustained support of the contention that no addition could be sustained support of the contention that no addition could be sustained without based on any incriminating material rel without based on any incriminating material relied on the decision ied on the decision of the Hon’ble Bombay High Court in the case of Continental of the Hon’ble Bombay High Court in the case of of the Hon’ble Bombay High Court in the case of warehousing Corporation (nhava Sheva) Ltd 374 ITR 645 (Bom). warehousing Corporation (nhava Sheva) Ltd 374 ITR 645 (Bom). warehousing Corporation (nhava Sheva) Ltd 374 ITR 645 (Bom). We find that entries of on money received in cash in respect of sales We find that entries of on money received in cash in respect of sales We find that entries of on money received in cash in respect of sales of shops /office was not found to be entered of shops /office was not found to be entered in regular books of in regular books of accounts. In our opinion, when the entries for such cash on In our opinion, when the entries for such cash on In our opinion, when the entries for such cash on-money were not recorded in regular books of account, it was certainly in were not recorded in regular books of account, it was certainly in were not recorded in regular books of account, it was certainly in the nature of incriminating material. Further, in the books of the nature of incriminating material. Further, in the books of the nature of incriminating material. Further, in the books of account even the entries of the money d account even the entries of the money declared in PMGKY and IDS eclared in PMGKY and IDS scheme were also not not found to be recorded during the course of the during the course of the search proceeding. In such circumstances, the claim of the assessee . In such circumstances, the claim of the assessee . In such circumstances, the claim of the assessee that there was no incriminating material qua the addition made is that there was no incriminating material qua the addition made is that there was no incriminating material qua the addition made is without any basis, hence rejec without any basis, hence rejected. The ground No. 1 of the appeal is ted. The ground No. 1 of the appeal is accordingly dismissed. accordingly dismissed.

M/s Eagle Infra India Ltd. 21 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

M/s Eagle Infra India Ltd. 22 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

submitted that those expenses were submitted that those expenses were claimed in claimed in the books of accounts on the basis of self basis of self-made vouchers. During the course of . During the course of the statement record the statement recorded under section 132(4) of the A ed under section 132(4) of the Act the director of the assessee company however of the assessee company however submitted that those expenses submitted that those expenses were incurred out of cash receipt of on urred out of cash receipt of on-money. The Assessing money. The Assessing Officer in the assessment order rejected the contention of the assessment order rejected the contention of the assessment order rejected the contention of the assessee that those expens those expenses were incurred out of cash on es were incurred out of cash on-money. The Ld. CIT(A), on one side deleted the addition The Ld. CIT(A), on one side deleted the addition made under section made under section 69C of the Act on the ground that if the expenses are of ct on the ground that if the expenses are of ct on the ground that if the expenses are of unaccounted nature than same is presumed to be incurred than same is presumed to be incurred out of cash receipt from the “ cash receipt from the “Eagle Project” amounting to Eagle Project” amounting to ₹1,02,76,600/- shown for the assessment year under consideration. The Ld. CIT(A) shown for the assessment year under consideration. The Ld. CIT(A) shown for the assessment year under consideration. The Ld. CIT(A) accordingly directed the Assessing Officer to accordingly directed the Assessing Officer to give give benefit of telescoping and consider the cash on onsider the cash on-money received a money received as source of said expenditure. But on the other hand, the Ld. CIT(A) upheld the expenditure. But on the other hand, the Ld. CIT(A) upheld the expenditure. But on the other hand, the Ld. CIT(A) upheld the disallowance in terms of section 37 of the A in terms of section 37 of the Act observing as under: ct observing as under:

“56. As regards to the genuineness of the expenditure, it may be 56. As regards to the genuineness of the expenditure, it may be 56. As regards to the genuineness of the expenditure, it may be mentioned that the Director of the company has admitted that these that the Director of the company has admitted that these that the Director of the company has admitted that these expenses were booked in the books of accounts on the basis of self expenses were booked in the books of accounts on the basis of self expenses were booked in the books of accounts on the basis of self- made vouchers. It is a well settled law that any expenditure booked in made vouchers. It is a well settled law that any expenditure booked in made vouchers. It is a well settled law that any expenditure booked in the books of accounts cannot be allowed as deduction unless the books of accounts cannot be allowed as deduction unless the books of accounts cannot be allowed as deduction unless cogent reliable evidences are furnished. The appellant has failed to furnish reliable evidences are furnished. The appellant has failed to furnish reliable evidences are furnished. The appellant has failed to furnish any reliable evidence in support of these expenses. Accordingly, the any reliable evidence in support of these expenses. Accordingly, the any reliable evidence in support of these expenses. Accordingly, the deduction of Rs.7,30,000/ deduction of Rs.7,30,000/- as claimed by the appellant us 37 of the as claimed by the appellant us 37 of the Income Tax Act cannot be allowed. Therefor Income Tax Act cannot be allowed. Therefore, the addition of Rs. e, the addition of Rs. 7,30,000/- made by the Assessing Officer is upheld on the grounds made by the Assessing Officer is upheld on the grounds made by the Assessing Officer is upheld on the grounds that the assessee has failed to prove the genuineness of these that the assessee has failed to prove the genuineness of these that the assessee has failed to prove the genuineness of these expenses. The ground No. 2 raised by the appellant is disposed expenses. The ground No. 2 raised by the appellant is disposed expenses. The ground No. 2 raised by the appellant is disposed accordingly.” 14.1. We have heard rival s have heard rival submission of the parties on the issue in ubmission of the parties on the issue in dispute and perused the relevant material on record. It has been dispute and perused the relevant material on record. It has been dispute and perused the relevant material on record. It has been

M/s Eagle Infra India Ltd. 23 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

admitted on the part of the assessee that those expenses were admitted on the part of the assessee that those expenses were admitted on the part of the assessee that those expenses were booked in the books of accounts on the basis of the self-made booked in the books of accounts on the basis of the self booked in the books of accounts on the basis of the self vouchers. In such circumst vouchers. In such circumstances, onus is on the assessee to ances, onus is on the assessee to establish with supporting evidence establish with supporting evidences that said expenses were that said expenses were incurred wholly and exclusively for the purpose of the business. In incurred wholly and exclusively for the purpose of the business. In incurred wholly and exclusively for the purpose of the business. In view of the failure on the part of the assessee in doing so, we do not view of the failure on the part of the assessee in doing so, we do not view of the failure on the part of the assessee in doing so, we do not find any error in the o find any error in the order of the Ld. CIT(A) on the issue in dispute. rder of the Ld. CIT(A) on the issue in dispute. The ground No. 6 of the appeal of the assessee of the appeal of the assessee of the appeal of the assessee is accordingly dismissed.

“48. I have considered the facts of the case and submissions made by 48. I have considered the facts of the case and submissions made by 48. I have considered the facts of the case and submissions made by the appellant. The appellant is claiming that it had a joint venture with the appellant. The appellant is claiming that it had a joint venture with the appellant. The appellant is claiming that it had a joint venture with M/s Kestral Construction Co. with regard to this plot and the said M/s Kestral Construction Co. with regard to this plot and the said M/s Kestral Construction Co. with regard to this plot and the said payment of Rs. 1, 12,818/ payment of Rs. 1, 12,818/- was not made by it as the same relates to s the same relates to

M/s Eagle Infra India Ltd. 24 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

M/s Kestrel Construction Co. The appellant has also submitted that the M/s Kestrel Construction Co. The appellant has also submitted that the M/s Kestrel Construction Co. The appellant has also submitted that the said joint venture eventually did not work out. In this connection, it may said joint venture eventually did not work out. In this connection, it may said joint venture eventually did not work out. In this connection, it may be mentioned that the appellant company has not denied the fact of be mentioned that the appellant company has not denied the fact of be mentioned that the appellant company has not denied the fact of making of investments making of investments in plot at Netaji area of Ulhasnagar in its books of in plot at Netaji area of Ulhasnagar in its books of accounts. In fact, as per the copy of ledger account for the said plot in its accounts. In fact, as per the copy of ledger account for the said plot in its accounts. In fact, as per the copy of ledger account for the said plot in its books of accounts, as filed by the appellant for A.Y. 2017 books of accounts, as filed by the appellant for A.Y. 2017- books of accounts, as filed by the appellant for A.Y. 2017-18, it is seen that the opening balance of investment in the said that the opening balance of investment in the said that the opening balance of investment in the said plot as on 01/04/2016 was Rs. 6,78,60,000/ 01/04/2016 was Rs. 6,78,60,000/- and closing balance of investment and closing balance of investment as on 31/03/2017 was Rs. 7,73,98,972/ as on 31/03/2017 was Rs. 7,73,98,972/- therefore, the claim of the therefore, the claim of the appellant that it did not make any investment in the Netaji Plot, appellant that it did not make any investment in the Netaji Plot, appellant that it did not make any investment in the Netaji Plot, Ulhasnagar is not correct. On the other hand Ulhasnagar is not correct. On the other hand, no evidence in the form of , no evidence in the form of any agreement or confirmation has been filed by the appellant which any agreement or confirmation has been filed by the appellant which any agreement or confirmation has been filed by the appellant which could suggest that this investment of Rs.1.12,818/ could suggest that this investment of Rs.1.12,818/- was made by Ms was made by Ms Kestral construction co. and not by the appellant company. In view of Kestral construction co. and not by the appellant company. In view of Kestral construction co. and not by the appellant company. In view of this, the contention o this, the contention of the appellant that the payment of Rs. 1,12,818/ f the appellant that the payment of Rs. 1,12,818/- was not made by the appellant company cannot be accepted. The said was not made by the appellant company cannot be accepted. The said was not made by the appellant company cannot be accepted. The said paper was seized from the premises of the appellant and accordingly the paper was seized from the premises of the appellant and accordingly the paper was seized from the premises of the appellant and accordingly the onus of explaining the contents of same, lies on the appellant. No onus of explaining the contents of same, lies on the appellant. No onus of explaining the contents of same, lies on the appellant. Nowhere, on this seized paper, it is mentioned that the said cash payment was on this seized paper, it is mentioned that the said cash payment was on this seized paper, it is mentioned that the said cash payment was made by Kestral Construction Co. Accordingly, the presumption is that made by Kestral Construction Co. Accordingly, the presumption is that made by Kestral Construction Co. Accordingly, the presumption is that the said cash payment was made by the appellant company. Therefore, the said cash payment was made by the appellant company. Therefore, the said cash payment was made by the appellant company. Therefore, it is held that the payment of Rs. 1,12,81 it is held that the payment of Rs. 1,12,818/- is unexplained and is not is unexplained and is not recorded in the books of accounts of the appellant company. recorded in the books of accounts of the appellant company. recorded in the books of accounts of the appellant company. 49. However, it is a well settled legal position that where there are two 49. However, it is a well settled legal position that where there are two 49. However, it is a well settled legal position that where there are two separate additions, one on account of suppression of profit/cash receipts separate additions, one on account of suppression of profit/cash receipts separate additions, one on account of suppression of profit/cash receipts and another on acc and another on account of cash investment/cash expenditure, in that ount of cash investment/cash expenditure, in that case one has to be telescoped into the other, resulting only in one case one has to be telescoped into the other, resulting only in one case one has to be telescoped into the other, resulting only in one addition. Hon'ble Courts and Tribunals through various decisions have addition. Hon'ble Courts and Tribunals through various decisions have addition. Hon'ble Courts and Tribunals through various decisions have lay down a basic principle that the same income should not be taxed lay down a basic principle that the same income should not be taxed lay down a basic principle that the same income should not be taxed twice i.e. one at the time of generation and other at the time of twice i.e. one at the time of generation and other at the time of twice i.e. one at the time of generation and other at the time of application. Reliance in this regard is placed on following case laws: Reliance in this regard is placed on following case laws: Reliance in this regard is placed on following case laws: i. Kanitlal and Bros Vs. ACIT [1995]52 ITD 412 (Pune Kanitlal and Bros Vs. ACIT [1995]52 ITD 412 (Pune-Trib] Kanitlal and Bros Vs. ACIT [1995]52 ITD 412 (Pune In this case, it was held as below: In this case, it was held as below: 'It would be contrary to the canons of law to tax the same amount 'It would be contrary to the canons of law to tax the same amount 'It would be contrary to the canons of law to tax the same amount twice, i.e. as borrowings and as cost of assets. The borrowings twice, i.e. as borrowings and as cost of assets. The borrowings twice, i.e. as borrowings and as cost of assets. The borrowings were utilised to acquire the assets. were utilised to acquire the assets. Once the contention of the Once the contention of the assessee, that the amount as reflected in the 'seized paper' assessee, that the amount as reflected in the 'seized paper' assessee, that the amount as reflected in the 'seized paper' represented borrowings of the assessee, was accepted, it would epresented borrowings of the assessee, was accepted, it would epresented borrowings of the assessee, was accepted, it would be proper to presume that such amount was utilised for the be proper to presume that such amount was utilised for the be proper to presume that such amount was utilised for the acquisition of assets found at the time acquisition of assets found at the time of search. ii. CIT Vs. K.S.M. Guruswamy nadir & Sons [1984] 149 ITR CIT Vs. K.S.M. Guruswamy nadir & Sons [1984] 149 ITR CIT Vs. K.S.M. Guruswamy nadir & Sons [1984] 149 ITR 127 (Mad) 127 (Mad) In this case, it In this case, it was held by Hon'ble Madras High Court that when was held by Hon'ble Madras High Court that when there are two separate additions, one on account of suppression there are two separate additions, one on account of suppression there are two separate additions, one on account of suppression of profit and another on account of cash credit, it is open to the of profit and another on account of cash credit, it is open to the of profit and another on account of cash credit, it is open to the assessee to explain that the suppressed profit had been brought assessee to explain that the suppressed profit had been brought assessee to explain that the suppressed profit had been brought

M/s Eagle Infra India Ltd. 25 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

in cash credi in cash credits and one has to be telescoped into the other ts and one has to be telescoped into the other resulting only in one addition. It was therefore held that the resulting only in one addition. It was therefore held that the resulting only in one addition. It was therefore held that the Tribunal was right in its view in telescoping the additions made Tribunal was right in its view in telescoping the additions made Tribunal was right in its view in telescoping the additions made towards the cash credit. towards the cash credit. iii. CIT Vs. Jawanmal Jemaji Gandhi [19851 1551 ITR 353: CIT Vs. Jawanmal Jemaji Gandhi [19851 1551 ITR 353: CIT Vs. Jawanmal Jemaji Gandhi [19851 1551 ITR 353: 1984] 39 CTR 127: [1983] 1984] 39 CTR 127: [1983] 15 Taxman 487 (Bom 15 Taxman 487 (Bom-HC). The theory of telescoping could be applied in cases where The theory of telescoping could be applied in cases where The theory of telescoping could be applied in cases where additions additions additions in in in respect respect respect of of of unexplained unexplained unexplained money/unexplained money/unexplained money/unexplained investment are sought to be made in the hands of the assessee. investment are sought to be made in the hands of the assessee. investment are sought to be made in the hands of the assessee. For example, if there is an add For example, if there is an addition in respect of undisclosed ition in respect of undisclosed income or unexplained cash credits and also certain addition in income or unexplained cash credits and also certain addition in income or unexplained cash credits and also certain addition in respect of unexplained investment, then it can be pleaded by the respect of unexplained investment, then it can be pleaded by the respect of unexplained investment, then it can be pleaded by the assessee that the unexplained investment is sourced out of the assessee that the unexplained investment is sourced out of the assessee that the unexplained investment is sourced out of the income already taxed as unexplai income already taxed as unexplained cash credits. 50. In the present case, the appellant company had received cash in the 50. In the present case, the appellant company had received cash in the 50. In the present case, the appellant company had received cash in the form of 'on-money' from Eagle Pride Project amounting to Rs. money' from Eagle Pride Project amounting to Rs. money' from Eagle Pride Project amounting to Rs. 1,02,76,600/- during the year. during the year. The appellant has not disputed the receipt The appellant has not disputed the receipt of such 'on-money and has only money and has only disputed the quantum of income disputed the quantum of income embedded in such on embedded in such on-money. I have already upheld that the appellant money. I have already upheld that the appellant has received cash amounting to Rs. 1.02,76,600/ has received cash amounting to Rs. 1.02,76,600/- during the year under during the year under consideration and income on such on consideration and income on such on-money is to be computed @ 50% of money is to be computed @ 50% of such cash receipt such cash receipts. In this manner, the sufficient cash was available with s. In this manner, the sufficient cash was available with the appellant for making investment in Netaji Plot, Ulhasnagar to the the appellant for making investment in Netaji Plot, Ulhasnagar to the the appellant for making investment in Netaji Plot, Ulhasnagar to the extent of Rs. 1,12,818/ extent of Rs. 1,12,818/-. Thus, it is held that the telescoping benefit . Thus, it is held that the telescoping benefit regarding the investment of Rs. 1, 12,818/ regarding the investment of Rs. 1, 12,818/- should be gi should be given to the appellant. However, in order to avoid any double benefit, the AO is appellant. However, in order to avoid any double benefit, the AO is appellant. However, in order to avoid any double benefit, the AO is directed to ensure that telescoping has not been allowed for these cash directed to ensure that telescoping has not been allowed for these cash directed to ensure that telescoping has not been allowed for these cash receipts amounting to Rs. 1,02,76,600/ receipts amounting to Rs. 1,02,76,600/- against addition made in case of against addition made in case of any other group entity/person. I any other group entity/person. In case, no telescoping benefit is availed n case, no telescoping benefit is availed on these cash receiptselsewhere, the appellant will be allowed the benefit on these cash receiptselsewhere, the appellant will be allowed the benefit on these cash receiptselsewhere, the appellant will be allowed the benefit of telescoping against the addition of Rs. 1, 12,818/ of telescoping against the addition of Rs. 1, 12,818/-. The ground No. 3 . The ground No. 3 raised by the appellant is disposed in the manner as discussed abo raised by the appellant is disposed in the manner as discussed abo raised by the appellant is disposed in the manner as discussed above.” 15.1 We have heard rival submission of the parties on the issue in have heard rival submission of the parties on the issue in have heard rival submission of the parties on the issue in dispute. We find that Ld. CIT(A) has already allowed the benefit of dispute. We find that Ld. CIT(A) has already allowed the benefit of dispute. We find that Ld. CIT(A) has already allowed the benefit of the telescoping of the expenses against the the telescoping of the expenses against the availability of cash availability of cash received as on money for the year under consideration. This ground s on money for the year under consideration. This ground s on money for the year under consideration. This ground of the appeal therefore does not survive, and therefore accordingly of the appeal therefore does not survive, and therefore accordingly of the appeal therefore does not survive, and therefore accordingly dismissed as infructuous. dismissed as infructuous.

M/s Eagle Infra India Ltd. 26 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

M/s Eagle Infra India Ltd. 27 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

M/s Eagle Infra India Ltd. 28 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

M/s Eagle Infra India Ltd. 29 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

“61. The ground No. 2 raised by the appellant for A.Y. 2015 61. The ground No. 2 raised by the appellant for A.Y. 2015 61. The ground No. 2 raised by the appellant for A.Y. 2015-16 is similar to the ground no. 2 raised for A. Y. 2014 similar to the ground no. 2 raised for A. Y. 2014-15. The facts for A. 15. The facts for A. Y. 2015-16 are similar to the facts of A.Y. 16 are similar to the facts of A.Y. 2014-15. Accordingly, 15. Accordingly, following my decision for A.Y. 2014 following my decision for A.Y. 2014-15, it is held that no separate 15, it is held that no separate addition for Rs. 7.25,000/ addition for Rs. 7.25,000/- can be made u/s 69C of the Act as the can be made u/s 69C of the Act as the appellant has sufficient cash receipts during the year to coverup the appellant has sufficient cash receipts during the year to coverup the appellant has sufficient cash receipts during the year to coverup the said cash expenditure. However said cash expenditure. However, as held in the A.Y. 2014 , as held in the A.Y. 2014-15, since the appellant has booked the said cash expenditure under the head the appellant has booked the said cash expenditure under the head the appellant has booked the said cash expenditure under the head labour expenses' on the basis of self labour expenses' on the basis of self-made vouchers and failed to made vouchers and failed to substantiate the same by way of credible evidences, accordingly, no substantiate the same by way of credible evidences, accordingly, no substantiate the same by way of credible evidences, accordingly, no deduction for this deduction for this amount of Rs. 7,25,000/- can be allowed u/s 37 can be allowed u/s 37 of the Income Tax Act. Accordingly, the disallowance made by the of the Income Tax Act. Accordingly, the disallowance made by the of the Income Tax Act. Accordingly, the disallowance made by the Assessing Officer on the grounds that the assessee has failed to Assessing Officer on the grounds that the assessee has failed to Assessing Officer on the grounds that the assessee has failed to prove the genuineness of expenditure, is upheld. prove the genuineness of expenditure, is upheld.” 24.1. The identical issue has been adjudicated by us in assessment identical issue has been adjudicated by us in assessment identical issue has been adjudicated by us in assessment year 2014-15, therefore following our finding, the ground No. 15, therefore following our finding, the ground No. 15, therefore following our finding, the ground No. 6 of the appeal of the assessee is dismissed. the appeal of the assessee is dismissed.

“62. The ground No. 62. The ground No. 3 raised by the appellant is regarding the 3 raised by the appellant is regarding the unaccounted investment of Rs. 32,588/ unaccounted investment of Rs. 32,588/- in the Netaji Plot, in the Netaji Plot, Ulhasnagar. The said ground is similar to the ground no. 3 raised Ulhasnagar. The said ground is similar to the ground no. 3 raised Ulhasnagar. The said ground is similar to the ground no. 3 raised for A.Y. 2014 for A.Y. 2014-15. The facts for this issue for A.Y. 2015 15. The facts for this issue for A.Y. 2015-16 are similar to the facts for similar to the facts for A.Y. 2014-15. Accordingly, following my 15. Accordingly, following my decision for A.Y. decision for A.Y. 2014-15, it is held that the appellant has made a 15, it is held that the appellant has made a cash investment of Rs. 32,588/ cash investment of Rs. 32,588/- in Netaji Plot, Ulhasnagar during in Netaji Plot, Ulhasnagar during

M/s Eagle Infra India Ltd. 30 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

the year under consideration which is not recorded in the books of the year under consideration which is not recorded in the books of the year under consideration which is not recorded in the books of accounts. Howe accounts. However, as the appellant has received Rs. 3,67,73,600/ ver, as the appellant has received Rs. 3,67,73,600/- in cash as 'on in cash as 'on-money' from the project namely Eagle Pride, therefore, money' from the project namely Eagle Pride, therefore, it is held that the telescoping benefit regarding the investment of Rs. it is held that the telescoping benefit regarding the investment of Rs. it is held that the telescoping benefit regarding the investment of Rs. 32,588/- should be given to the appellant. The AO is however, should be given to the appellant. The AO is however, should be given to the appellant. The AO is however, directed to ensure that telescoping has not been allowed for these directed to ensure that telescoping has not been allowed for these directed to ensure that telescoping has not been allowed for these cash receipts amounting to Rs. 3,67,73,600/ cash receipts amounting to Rs. 3,67,73,600/- against addition against addition made in case of any other group entity/person, in order to avoid made in case of any other group entity/person, in order to avoid made in case of any other group entity/person, in order to avoid any double benefit. In case, no telescoping benefit is availe any double benefit. In case, no telescoping benefit is availe any double benefit. In case, no telescoping benefit is availed on these cash receipts elsewhere, the appellant will be allowed the these cash receipts elsewhere, the appellant will be allowed the these cash receipts elsewhere, the appellant will be allowed the benefit of telescoping against the addition of Rs. 32,588/ benefit of telescoping against the addition of Rs. 32,588/ benefit of telescoping against the addition of Rs. 32,588/-. The ground No. 3 raised by the appellant is disposed in the manner as ground No. 3 raised by the appellant is disposed in the manner as ground No. 3 raised by the appellant is disposed in the manner as discussed above. discussed above.” 25.1 The identical issue has been adj identical issue has been adjudicated by us in assessment udicated by us in assessment year 2014-15, therefore following our finding, the ground No. 7 of 15, therefore following our finding, the ground No. 7 of 15, therefore following our finding, the ground No. 7 of the appeal of the assessee is dismissed. the appeal of the assessee is dismissed. As far as ground No. four of as ground No. four of the appeal of the revenue is concerned, we find that Ld. CIT(A) in the appeal of the revenue is concerned, we find that Ld. CIT(A) the appeal of the revenue is concerned, we find that Ld. CIT(A) detailed finding held a nding held availability of the cash received as on money ash received as on money for benefit/setoff for investment in the said plot. In our opinion, the for benefit/setoff for investment in the said plot. In our opinion, the for benefit/setoff for investment in the said plot. In our opinion, the finding of the Ld. CIT(A) on the issue in dispute is justified. The finding of the Ld. CIT(A) on the issue in dispute is justified. The finding of the Ld. CIT(A) on the issue in dispute is justified. The ground No. 4 (four) of the appeal of the R No. 4 (four) of the appeal of the Revenue evenue is accordingly dismissed.

M/s Eagle Infra India Ltd. 31 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

assessee submitted that said payment was made on behalf of the assessee submitted that said payment was made on behalf of the assessee submitted that said payment was made on behalf of the assessee company, but due to some legal dispute the deal did not assessee company, but due to some legal dispute the deal did not assessee company, but due to some legal dispute the deal did not materialize and the said amount was returned back. The authorised and the said amount was returned back. The authorised and the said amount was returned back. The authorised percentage submitted that returned back of the s percentage submitted that returned back of the said amount was aid amount was also reflected in the seized seized documents. But in absence of any source . But in absence of any source of payment at first stage, the Assessing Officer held the investment of payment at first stage, the Assessing Officer held the investment of payment at first stage, the Assessing Officer held the investment as unexplained expenditure. Before the Ld. CIT(A), the assessee as unexplained expenditure. Before the Ld. CIT(A) as unexplained expenditure. Before the Ld. CIT(A) made an additional argument that expend made an additional argument that expenditure in dispute was in dispute was covered by the declaration made by the assessee under IDS-2016 covered by the declaration made by the assessee under IDS covered by the declaration made by the assessee under IDS and PMGKY-2016. The Ld. CIT(A) has rejected the arguments of the 2016. The Ld. CIT(A) has rejected the arguments of the 2016. The Ld. CIT(A) has rejected the arguments of the assessee and sustain assessee and sustained the addition observing as under: the addition observing as under:

“67. I have considered the facts of the case and th 67. I have considered the facts of the case and th 67. I have considered the facts of the case and the submission made by the appellant. The appellant has not disputed of making made by the appellant. The appellant has not disputed of making made by the appellant. The appellant has not disputed of making the payment of Rs. 1,39,00,000/ the payment of Rs. 1,39,00,000/- in cash during the year under in cash during the year under consideration. It is also not under dispute that the said investment consideration. It is also not under dispute that the said investment consideration. It is also not under dispute that the said investment in the plot situated at Sinner, Nashik was made in the plot situated at Sinner, Nashik was made by the appellant. by the appellant. The first argument of the appellant is that the said deal was later The first argument of the appellant is that the said deal was later The first argument of the appellant is that the said deal was later cancelled and the cash amount paid during the vear was received cancelled and the cash amount paid during the vear was received cancelled and the cash amount paid during the vear was received back during F.Y. 2016 back during F.Y. 2016-17 and therefore, no addition should be 17 and therefore, no addition should be made during the year under consideration. T made during the year under consideration. This contention of the his contention of the appellant is not valid because at the time of making payment, the appellant is not valid because at the time of making payment, the appellant is not valid because at the time of making payment, the appellant is required to explain the sources of such funds which appellant is required to explain the sources of such funds which appellant is required to explain the sources of such funds which were used to make the cash payment which has not been done bv were used to make the cash payment which has not been done bv were used to make the cash payment which has not been done bv the appellant. Thus, as far as A.Y. 2015 the appellant. Thus, as far as A.Y. 2015-16 is concerned, the 16 is concerned, the appellant admittedly made a cash investment of Rs. 1,39,00,000/ appellant admittedly made a cash investment of Rs. 1,39,00,000/ appellant admittedly made a cash investment of Rs. 1,39,00,000/- for purchase of plot for which no source has been explained. In such for purchase of plot for which no source has been explained. In such for purchase of plot for which no source has been explained. In such situation, whether the deal is cancelled in any subsequent situation, whether the deal is cancelled in any subsequent situation, whether the deal is cancelled in any subsequent assessment assessment year, year, is is immaterial immaterial because because the the unexplained investment made during the year has to be taxed at the time of investment made during the year has to be taxed at the time of investment made during the year has to be taxed at the time of making investment. Accordingly, the argument of the appellant that making investment. Accordingly, the argument of the appellant that making investment. Accordingly, the argument of the appellant that the cash was later received back from the seller in F.Y. 2016 the cash was later received back from the seller in F.Y. 2016 the cash was later received back from the seller in F.Y. 2016-17 does not have any force and is, therefore reject does not have any force and is, therefore rejected. 68. The second argument of the appellant is that it had declared an 68. The second argument of the appellant is that it had declared an 68. The second argument of the appellant is that it had declared an amount of Rs. 1,00,00,000/ amount of Rs. 1,00,00,000/- in IDS-2016 and Rs. 7,00,00,000/ 2016 and Rs. 7,00,00,000/- in PMGKY and the Assessing Officer has erred in not granting any PMGKY and the Assessing Officer has erred in not granting any PMGKY and the Assessing Officer has erred in not granting any

M/s Eagle Infra India Ltd. 32 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

benefit of such disclosure against the said addition of R benefit of such disclosure against the said addition of R benefit of such disclosure against the said addition of Rs. 1,39,00,000/ 1,39,00,000/-. In this connection, it may be mentioned that the . In this connection, it may be mentioned that the issue of benefit of setting off of disclosure made in PMGKY has been issue of benefit of setting off of disclosure made in PMGKY has been issue of benefit of setting off of disclosure made in PMGKY has been discussed earlier in this order wherein after discussing the facts of discussed earlier in this order wherein after discussing the facts of discussed earlier in this order wherein after discussing the facts of the case it has been held that no benefit of setti the case it has been held that no benefit of setting off against the ng off against the disclosure made under PMGKY shall be available for A.Y. disclosure made under PMGKY shall be available for A.Y. disclosure made under PMGKY shall be available for A.Y. 2014-15 and 2015-16. Accordingly, the said contention of the appellant is 16. Accordingly, the said contention of the appellant is 16. Accordingly, the said contention of the appellant is rejected. As regards to the disclosure made under IDS As regards to the disclosure made under IDS-2016, it may As regards to the disclosure made under IDS be mentioned that only Rs. 50.00.000/ be mentioned that only Rs. 50.00.000/- amount of income was mount of income was disclosed for A.Y. 2015 disclosed for A.Y. 2015-16 as discussed earlier in this order and the 16 as discussed earlier in this order and the appellant shall be eligible for benefit of this disclosure against the appellant shall be eligible for benefit of this disclosure against the appellant shall be eligible for benefit of this disclosure against the cash receipts during the year, as discussed separately in ground cash receipts during the year, as discussed separately in ground cash receipts during the year, as discussed separately in ground No. 5 raised by the appellant. No. 5 raised by the appellant. 69. Considering the above discussion and facts of the present case, 69. Considering the above discussion and facts of the present case, 69. Considering the above discussion and facts of the present case, it is held that the appellant has failed to explain the source of Rs. it is held that the appellant has failed to explain the source of Rs. it is held that the appellant has failed to explain the source of Rs. 1,39,00,000/ 1,39,00,000/- which were paid in cash on 01/06/2014 for which were paid in cash on 01/06/2014 for purchasing plot at Sinner, Nashik. Accordingly, the addition purchasing plot at Sinner, Nashik. Accordingly, the addition purchasing plot at Sinner, Nashik. Accordingly, the addition of Rs. 1,39,00,000/ 1,39,00,000/- made by the Assessing Officer is upheld. The ground made by the Assessing Officer is upheld. The ground No. 4 raised by the appellant is DISMISSED. No. 4 raised by the appellant is DISMISSED.” 26.1 We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. The assessee dispute and perused the relevant material on record. The assessee dispute and perused the relevant material on record. The assessee has admitted that payment of Rs.1,39,00, dmitted that payment of Rs.1,39,00,000/- was paid in cash as was paid in cash as on-money for purchase of the plot but the assessee contended that money for purchase of the plot but the assessee contended that money for purchase of the plot but the assessee contended that no addition should be made for that payment a hould be made for that payment as the deal was s the deal was cancelled and said payment was returned back. But the Ld. CIT(A) cancelled and said payment was returned back. But the Ld. CIT(A) cancelled and said payment was returned back. But the Ld. CIT(A) has held that the assessee was required to explain source of the held that the assessee was required to explain source of the held that the assessee was required to explain source of the investment at the time of the payment of investment at the time of the payment of ₹1,39,00,000/ 000/- as cash on money paid and it was not relevant for the purpose of the section 69 and it was not relevant for the purpose of the section 69 and it was not relevant for the purpose of the section 69 that same was received back to the assessee. The Ld. CIT(A) has that same was received back to the assessee. The Ld. CIT(A) that same was received back to the assessee. The Ld. CIT(A) also examined the availability of cash declared under IDS the availability of cash declared under IDS the availability of cash declared under IDS-2016 and PMGKY-2016, but in but in view of no availability of cash to explain the view of no availability of cash to explain the payment under consideration, payment under consideration, , he has rejected this contention of he has rejected this contention of the assessee also. In our opinion, there is the assessee also. In our opinion, there is no error no error in the order of

M/s Eagle Infra India Ltd. 33 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

the Ld. CIT(A) on the issue in dispute and accordingly, we uphold the Ld. CIT(A) on the issue in dispute and accordingly the Ld. CIT(A) on the issue in dispute and accordingly the same. The ground No. the same. The ground No. 8(eight) of the appeal of the assessee is of the appeal of the assessee is accordingly dismissed. accordingly dismissed.

M/s Eagle Infra India Ltd. 34 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

M/s Eagle Infra India Ltd. 35 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

as reflected in the documents seized during the course of the search s reflected in the documents seized during the course of the search s reflected in the documents seized during the course of the search action. In the course of the search action, the director of the action. In the course of the search action, the director of the action. In the course of the search action, the director of the assessee company ‘Sh Sh Udhavdas Rupchandani’ admitted receipt of admitted receipt of commission amounting to commission amounting to ₹4,30,18,727/-in cash and also stated in cash and also stated that said income was declared under PMGKY scheme. that said income was declared under PMGKY scheme. that said income was declared under PMGKY scheme.

30.1 As no income was declared in the return of income f As no income was declared in the return of income f As no income was declared in the return of income filed under section 153A of the A section 153A of the Act for the said commission inc for the said commission income, the Assessing Officer made addition in the assessment order passed. Assessing Officer made addition in the assessment order passed. Assessing Officer made addition in the assessment order passed. Before the Ld. CIT(A) the assessee submitted that addition of the Before the Ld. CIT(A) the assessee submitted that addition of the Before the Ld. CIT(A) the assessee submitted that addition of the gross commission by the Assessing Officer is not justified and profit gross commission by the Assessing Officer is not jus gross commission by the Assessing Officer is not jus element in said receipt should only be taxed on receipt should only be taxed on percentage basis. percentage basis. The Ld. CIT(A) however rejected the contention of the assessee. The The Ld. CIT(A) however rejected the contention of the assessee. The The Ld. CIT(A) however rejected the contention of the assessee. The relevant finding of the Ld. relevant finding of the Ld. CIT(A) is reproduced as under: CIT(A) is reproduced as under:

“78. I have considered the facts of the case and the submissions made 78. I have considered the facts of the case and the submissions made 78. I have considered the facts of the case and the submissions made by the appellant. The appellant has clai by the appellant. The appellant has claimed that the unaccounted med that the unaccounted commission receipts should not be taxed on gross basis and only the commission receipts should not be taxed on gross basis and only the commission receipts should not be taxed on gross basis and only the income element embedded in such receipts should be taxed. A perusal of income element embedded in such receipts should be taxed. A perusal of income element embedded in such receipts should be taxed. A perusal of the said ledger account suggests that the total credit entries appearing the said ledger account suggests that the total credit entries appearing the said ledger account suggests that the total credit entries appearing for the year are Rs for the year are Rs. 4.83.60.629/- and the show cause notice issued by and the show cause notice issued by the Assessing Officer was for this amount only. However, during the the Assessing Officer was for this amount only. However, during the the Assessing Officer was for this amount only. However, during the assessment proceedings, the appellant explained that out of this amount, assessment proceedings, the appellant explained that out of this amount, assessment proceedings, the appellant explained that out of this amount, there were certain amounts which were journal entries, reversal there were certain amounts which were journal entries, reversal there were certain amounts which were journal entries, reversal entries and certain interest entries which were never received. It was the claim and certain interest entries which were never received. It was the claim and certain interest entries which were never received. It was the claim of the appellant before the Assessing Officer that the net income earned of the appellant before the Assessing Officer that the net income earned of the appellant before the Assessing Officer that the net income earned as commission from Dhanlaxmi Electricals was Rs. 4,30,18,727/ as commission from Dhanlaxmi Electricals was Rs. 4,30,18,727/ as commission from Dhanlaxmi Electricals was Rs. 4,30,18,727/-. After verification, the said submissi verification, the said submission was accepted by the Assessing Officer. on was accepted by the Assessing Officer. 79.1 Before me, the appellant has now claimed that the said commission 79.1 Before me, the appellant has now claimed that the said commission 79.1 Before me, the appellant has now claimed that the said commission income should not be taxed on gross basis. However, the appellant has income should not be taxed on gross basis. However, the appellant has income should not be taxed on gross basis. However, the appellant has failed to explain as to what kind of expenses were incurred by it in failed to explain as to what kind of expenses were incurred by it in failed to explain as to what kind of expenses were incurred by it in earning such commission income. Nor the appellant has pointed out any ing such commission income. Nor the appellant has pointed out any ing such commission income. Nor the appellant has pointed out any seized document containing details of expenses incurred by it for earning seized document containing details of expenses incurred by it for earning seized document containing details of expenses incurred by it for earning this commission income. It may also be stated that the nature of this commission income. It may also be stated that the nature of this commission income. It may also be stated that the nature of commission income is such that not much expenditure commission income is such that not much expenditure is required to be is required to be incurred for earning this type of income. The appellant is trying to take incurred for earning this type of income. The appellant is trying to take incurred for earning this type of income. The appellant is trying to take

M/s Eagle Infra India Ltd. 36 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

shelter of judicial decisions without bringing out as to how these shelter of judicial decisions without bringing out as to how these shelter of judicial decisions without bringing out as to how these decisions are applicable to the facts of the present case. decisions are applicable to the facts of the present case. 79.2 It may also be mentioned that t 79.2 It may also be mentioned that the commission receipts in the he commission receipts in the present case cannot be equated with the 'on present case cannot be equated with the 'on-money' receipts from the money' receipts from the project namely 'Eagle Pride', firstly because the nature of receipts is project namely 'Eagle Pride', firstly because the nature of receipts is project namely 'Eagle Pride', firstly because the nature of receipts is entirely different and; secondly, because in the case of cash receipts from entirely different and; secondly, because in the case of cash receipts from entirely different and; secondly, because in the case of cash receipts from the Eagle Prideproject, documents containing details of cash expenses Prideproject, documents containing details of cash expenses Prideproject, documents containing details of cash expenses incurred by the appellant for development of the said project were seized. incurred by the appellant for development of the said project were seized. incurred by the appellant for development of the said project were seized. However, no such document has been brought to my notice with regard to However, no such document has been brought to my notice with regard to However, no such document has been brought to my notice with regard to the expenditure incurred for earning commission r the expenditure incurred for earning commission receipts.In the absence eceipts.In the absence of any details of expenditure incurred by the appellant or any evidence of any details of expenditure incurred by the appellant or any evidence of any details of expenditure incurred by the appellant or any evidence found recorded in the seized documents regarding the expenditure found recorded in the seized documents regarding the expenditure found recorded in the seized documents regarding the expenditure incurred by the appellant for earning such commission income, it cannot incurred by the appellant for earning such commission income, it cannot incurred by the appellant for earning such commission income, it cannot be presumed that the app be presumed that the appellant incurred expenditure for earning this ellant incurred expenditure for earning this commission income. commission income. 79.3 It is also important to mention that vide letter dated gth May, 2022 79.3 It is also important to mention that vide letter dated gth May, 2022 79.3 It is also important to mention that vide letter dated gth May, 2022 filed before me, the appellant itself has worked out the 'net undisclosed filed before me, the appellant itself has worked out the 'net undisclosed filed before me, the appellant itself has worked out the 'net undisclosed income on various additions made by the asse income on various additions made by the assessing officer for the years ssing officer for the years under appeal. Contents of this letter have been reproduced earlier in this under appeal. Contents of this letter have been reproduced earlier in this under appeal. Contents of this letter have been reproduced earlier in this order and in this letter, the appellant itself has worked out net income on order and in this letter, the appellant itself has worked out net income on order and in this letter, the appellant itself has worked out net income on this transaction at Rs. 4,30, 18,7271 this transaction at Rs. 4,30, 18,7271-. 79.4 Considering the totality of fact 79.4 Considering the totality of facts of the case and above discussion, s of the case and above discussion, the addition of Rs. 4,30,18,7271 the addition of Rs. 4,30,18,7271- made by the assessing officer is made by the assessing officer is upheld. The ground No. 2 raised by the appellant is DISMISSED upheld. The ground No. 2 raised by the appellant is DISMISSED upheld. The ground No. 2 raised by the appellant is DISMISSED.” 30.2 But the ld CIT(A) has allowed benefit for the declaration under the ld CIT(A) has allowed benefit for the declaration under the ld CIT(A) has allowed benefit for the declaration under PMGKY scheme, as poi PMGKY scheme, as pointed out in para 37 of the impugned order. 37 of the impugned order.

30.3 We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. Before us also dispute and perused the relevant material on record. Before us also dispute and perused the relevant material on record. Before us also no documentary evidence to support that any expenses were no documentary evidence to support that any expenses were no documentary evidence to support that any expenses were incurred in cash for earning the said commission income and incurred in cash for earning the said commission income and incurred in cash for earning the said commission income and therefore the assessee cannot be allowed claim of expenditure e the assessee cannot be allowed claim of expenditure e the assessee cannot be allowed claim of expenditure incurred on the basis of the decision cited by the assessee only and incurred on the basis of the decision cited by the assessee only and incurred on the basis of the decision cited by the assessee only and onus is on the assessee to demonstrate whether any expenditure onus is on the assessee to demonstrate whether any expenditure onus is on the assessee to demonstrate whether any expenditure was incurred in cash for earning such commission income. In was incurred in cash for earning such commission income. In was incurred in cash for earning such commission income. In absence of doing so, we do not find any error in the finding of the doing so, we do not find any error in the finding of the doing so, we do not find any error in the finding of the

M/s Eagle Infra India Ltd. 37 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

Ld. CIT(A) that entire commission income is liable to be treated as Ld. CIT(A) that entire commission income is liable to be treated as Ld. CIT(A) that entire commission income is liable to be treated as undisclosed income. However the Ld. CIT(A) has already allowed undisclosed income. However the Ld. CIT(A) has already allowed undisclosed income. However the Ld. CIT(A) has already allowed part amount of Rs.4, Rs.4,02,63,000/- as set off against against declaration under PMGKY available er PMGKY available as discussed in para 37 of the impugned as discussed in para 37 of the impugned order of the Ld. CIT(A). We do not find any error in the order of the order of the Ld. CIT(A). We do not find any error in the order of the order of the Ld. CIT(A). We do not find any error in the order of the Ld. CIT(A) on the issue in dispute and accordingly Ld. CIT(A) on the issue in dispute and accordingly, we , we uphold the same. The ground No. same. The ground No. 6(six) of the appeal of the assessee of the appeal of the assessee is adjudicated as above. adjudicated as above.

“81. The ground No. 4 raised by 81. The ground No. 4 raised by the appellant is regarding the addition of the appellant is regarding the addition of Rs. 30,550/- on account on unrecorded receipts on the basis of seized on account on unrecorded receipts on the basis of seized on account on unrecorded receipts on the basis of seized documents. During the appellate proceedings, vide letter dated documents. During the appellate proceedings, vide letter dated documents. During the appellate proceedings, vide letter dated 20/06/2022, the appellant has submitted that the amount involved in 20/06/2022, the appellant has submitted that the amount involved in 20/06/2022, the appellant has submitted that the amount involved in this ground is insignificant and hence this ground is not being pressed. is insignificant and hence this ground is not being pressed. is insignificant and hence this ground is not being pressed. Accordingly, ground No. 4 raised by the appellant is DISMISSED as not Accordingly, ground No. 4 raised by the appellant is DISMISSED as not Accordingly, ground No. 4 raised by the appellant is DISMISSED as not pressed.” 31.1 In view of a finding of the Ld. CIT(A) In view of a finding of the Ld. CIT(A), the ground No. the ground No. 8 of the appeal is dismissed as infructuous. appeal is dismissed as infructuous.

M/s Eagle Infra India Ltd. 38 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

M/s Eagle Infra India Ltd. 39 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

assessee has not been able to prove and substantiate cash assessee has not been able to prove and substantiate cash assessee has not been able to prove and substantiate cash expenses claimed to have been incurred for the project. expenses claimed to have been incurred for the project. expenses claimed to have been incurred for the project. 4. On the facts and in the circumstances of the case and in law, the On the facts and in the circumstances of the case and in law, the On the facts and in the circumstances of the case and in law, the Ld CIT(A) failed to appreciate that the Director of the com Ld CIT(A) failed to appreciate that the Director of the com Ld CIT(A) failed to appreciate that the Director of the company in the statement recorded u/s 132(4) of the Income Tax Act, 1961 the statement recorded u/s 132(4) of the Income Tax Act, 1961 the statement recorded u/s 132(4) of the Income Tax Act, 1961 admitted cash receipts as 'on money' from sale of project not admitted cash receipts as 'on money' from sale of project not admitted cash receipts as 'on money' from sale of project not accounted for in its regular books of accounts and offered the accounted for in its regular books of accounts and offered the accounted for in its regular books of accounts and offered the same for taxation without making any claim of cash expenses same for taxation without making any claim of cash expenses same for taxation without making any claim of cash expenses relating to the project. elating to the project. 5. On the facts and in the circumstances of the case and in law, the On the facts and in the circumstances of the case and in law, the On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in allowing set Ld. CIT(A) has erred in allowing set-off of declaration made under off of declaration made under PMGKY Scheme to the extent of Rs.2,97,37,000/ PMGKY Scheme to the extent of Rs.2,97,37,000/ PMGKY Scheme to the extent of Rs.2,97,37,000/- against undisclosed income in the form of 'on money' undisclosed income in the form of 'on money' received in cash received in cash without appreciating the fact that the assessee failed to submit without appreciating the fact that the assessee failed to submit without appreciating the fact that the assessee failed to submit cogent and reliable evidences to prove that said declaration under cogent and reliable evidences to prove that said declaration under cogent and reliable evidences to prove that said declaration under PMGKY PMGKY- scheme was from undisclosed income out of 'on money' scheme was from undisclosed income out of 'on money' receipts. receipts. 35. Since the issue in dispute in th the issue in dispute in the grounds raised by the e grounds raised by the assessee and the R and the Revenue are identical to grounds raised in evenue are identical to grounds raised in assessment years 2015 2015-16 and 2016-17 in their respective appeals, 17 in their respective appeals, , therefore following our finding in assessment therefore following our finding in assessment years years 2015-16 and 2016-17, the grounds raised by the 17, the grounds raised by the assessee and assessee and Revenue in appeals for assessment appeals for assessment year 2017-18 are decided mutatis 18 are decided mutatis mutandis.

M/s Eagle Infra India Ltd. 40 ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022. ITA Nos. 2212 to 2214 and 2397 to 2401/M/2022.

Order pronounced in the open Court on nounced in the open Court on 28/08/2023. /08/2023. Sd/ Sd/- Sd/- Sd/ (KAVITHA RAJAGOPAL KAVITHA RAJAGOPAL) (OM PRAKASH KANT) (OM PRAKASH KANT) JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 28/08/2023 Dragon Legal/Rahul Sharma, Sr. P.S. Sharma, Sr. P.S. Copy of the Order forwarded to Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, BY ORDER, //True Copy// (Assistant Registrar) (Assistant Registrar) ITAT, Mumbai ITAT, Mumbai