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Income Tax Appellate Tribunal, JABALPUR BENCH ‘DB’, JABALPUR
Before: Dr. B. R. R. KumarSh. Yogesh Kumar US
ORDER
Per Dr. B. R. R. Kumar, Accountant Member:
The present appeals have been filed by Revenue and cross objection filed by the assessee against the order of ld. CIT(A)- 1, Jabalpur dated 19.03.2018.
The Revenue has raised the following grounds of appeal in are as under:-
1. The CIT (A) has erred in Law and on fact in deleting the addition of Rs.3,00,00,370/-holding that addition cannot be made solely on the basis of statement recorded ignoring the fact that the statement Co No. 09/JAB/2018 Chetanaya Promoter & Developers was based on the evidence found during the survey, in the circumstances where:- (i) The undisclosed income was admitted without any threat or inducement based on the evidence found during the survey u/s 133A, the addition is valid. View finds support from the decision of the Supreme Court in the case of Dewan Bahadur Seth Das Mohta vs. UOI and Ors (261TR 722), Madhya Pradesh High Court in the case of Ishwain Mewalal Vs CIT (169 ITR 587) relying the case of Narayan Bhagwantrao Gosavi Balajiwale vs Gopal Vinayak Gosavi, AIR 1960 SC 100, Bombay High Court in the case of Sri Ramesh Chandra and Co. Vs. CIT (1987)(168 ITR 375) and decision of Hon'ble Kerala High Court in the case of Kunhambu & Sons Vs. CIT(1996) 219 ITR 235 (Ker). (ii) the disclosure cannot be retracted after a gap of 1 year & 10 months, the view finds support from the decision of Honourable ITAT "A" Bench, Banglore in the case of carpenters Classic (EXIM) Vs. DCIT reported in 108 TTJ 760 & Honourable ITAT "B" Bench, Ahemdabad in the case of DCIT Vs. Bogilal Mulchand Kondoi reported in 96 ITD 344. (iii) The assessee by admitting undisclosed income during the survey u/s 133A, induced the Income Tax authorities for not carrying any further enquiry. In such circumstances, ratio of decision in the ITAT "F" Bench, Mumbai in the case of ACIT Vs. Expresso Investment reported in 008 SOT 0287 is clearly applicable.
2. The CIT(A) has erred in law and on fact in deleting the addition of Rs. 8,95,000/-without considering the facts that it was admitted by the partner of firm that there is no cash balance in books of account on the date of survey and admitted as undisclosed income in the statement recorded during the course of survey.
3. The CIT(A) has erred in law and on fact in deleting the addition of Rs. 10,00,000/- on presumption and when the assessee could not furnish detailed and credible evidences during the course of assessment.
4. The CIT(A) has erred in law and on fact in deleting the addition of Rs.46,70,734/- on the ground no transfer has taken place at the time of transfer of assets to retiring partner by the assessee firm ignoring the provisions of section 43CA.
The assessee has raised the following grounds of appeal in CO No. 09/JAB/2018 are as under:-
1. Considering the fact that the jurisdictional notice under section 143(2) was issued by the Id ITO Ward 2(2) Jabalpur on 26.07.2016 and on that date the ITO Ward 2(2) Jabalpur has no jurisdiction over the case of the assessee hence the Id CIT(A) should have held that no valid notice under section143(2) was Co No. 09/JAB/2018 Chetanaya Promoter & Developers served on the assessee within the period prescribed by that section and accordingly the assessment order dated 29.12.2017 is bad in law.
2. On the facts and in the circumstances of the case the ld CIT(A) erred in holding that provision of section 292BB is applicable to the case of the assessee and accordingly holding tha t even though the ld AO who had issued jurisdiction notice under section 143(2) did not have jurisdiction over the case of the assessee but due to non taking of objection before the ld AO, the assessment order is valid.
3. Considering the fact that the expense of Rs. 3,00,00,370/- recorded in dairy found during the survey, is duly recorded in books of accounts of the assessee hence the Id CIT(A) was fully justified in deleting the addition of Rs. 3,00,00,370/ -.
4. In view of hon'ble Madhya Pradesh High Court decision in the case of CIT v Digamber Kumar Jain (HUF) 2012 83 CCH 236 and hon'ble Madras High Court in the case of CIT v Khader Khan Son [2008] 300 ITR 157 (affirmed by hon'ble Supreme court in 352 ITR 480) the ld CIT(A) Was fully justified in holdin g that the addition of Rs. 3,00,00,370/-cannot be made solely on the basis of statement recorded during the survey and deleting the addition of Rs. 3,00,00,370/-.
5. Considering the fact that the Id AO has accepted books of accounts and cash of Rs. 8,95,000/- was part of cash available with the assessee as per books of accounts hence the ld CIT(A) was fully justified in deleting the addition of cash of Rs. 8,95,000/ - made on account of cash found during the survey, solely on the basis of statement recorded during the survey.
6. On the facts and in the circumstances of the case the ld CIT(A) was not justified in holding that the assessee has made unexplained investment of Rs. 6 lacs in its office furniture, fixture etc and confirming the addition made by the ld AO to that extent.
7. In view of hon'ble Supreme Court decision in the case of Malabar Fishries Company v CIT 1969| 120 ITR 49, CIT v Dewa Cine Corporation [1968] 68 ITR 240, and CIT v Bakelal Vaidya [1971] 79 ITR 594 and hon'ble Madhya Pradesh High Court decision in the case of CIT v Moped and Machines 2006] 281 ITR 52 and hon ble ITAT Jabalpur Bench decision in the case of ACIT v Thermoflics India [1997] 60 ITD 554 the ld CIT(A) was fully justified in holding that the provision of section 43CA is not applicable on transfer of stock in trade to retiring partner and deleting the addition of Rs. 46,70,733/ - made by the ld AO.
A Survey operation was conducted in this case on 18.10.2014. During the course of survey operation under section 133A of the IT Act 1961 in the instant year, books were examined, stocks were valued with coordination of the assessee
Co No. 09/JAB/2018 Chetanaya Promoter & Developers and some discrepancies were noticed. Statement recorded during survey proceedings dated 18.10.2014 and bifurcation of the surrender amount is as follows:- S.No Question no Particulars Amount 1 8 Undisclosed cash Rs.895000/- found 2 7 Undisclosed Rs.3,00,00,370/- expenses 3 9 Undisclosed Rs. 16,00,000/- investment Total Rs.3,24,95,370/-
During proceedings a diary was received from the premises of the assessee, which was marked by the department as LPI-1, wherein the following details are mentioned: Page Mode of Expenses Amount 2 Stamp Vendor 45,00,000/- 6 Over Head Tank Payment 1,05,00,000/- 7 Over Head Tank Payment 28,00,370/- 10 Road construction payment 30,00,000/- 12 Payment for drainage construction 17,00,000/- 13 Boundary wall payment 75,00,000/- Total 3,00,00,370/- Surrender in survey-Expenses: 6. Being confronted to the assessee while recording statement on 18.10.2014, during survey proceedings one of the partner Sh. Adarsh Agrawal has surrendered the amount which was not entered in his books by then and therefore surrendered amounting Rs.3,00,00,370/- as undisclosed income apart from regular income. The AO held that the assessee had not taken consideration of its words as stated during recording his statement. The AO held that, the question arises that if the assessee had made all the payments as mentioned in LPI-1, by incorporating in its books of account and after deduction of TDS, why the assessee had made the statement during the survey operation that all the expenditure as LPI-1 had not been Co No. 09/JAB/2018 Chetanaya Promoter & Developers taken in its books of account and made surrender. The AO held that it proves that the payments to these contractors, surrendered during the course of survey is entirely different than those of recorded in the books of accounts and payments made through cheques. Assessee has surrendered only those portion of payments which were made otherwise than cheques. The AO held that the assessee failed to explain the nature of work carried out by these contractors and the justification of these payments and mere payment through cheques and deducting TDS are not sufficient evidence to prove the genuineness of the actual work done by these contractors and does not justify the payments claimed to have made. Hence the amount of Rs. 3,00,00,370/- was added to the income of assessee.
Aggrieved the assessee field before the ld. CIT(A) who deleted the addition after verification of the fact of payment to the contractors.
The Revenue filed appeal on this issue before the Tribunal.
Heard the arguments of both the parties and perused the material available on record. We have perused the paper book page no. 32 to 60 consisting of payments made on account of boundary wall contractor labour contractor Anupam Gumasta Nitesh Kanojiya, Road work contract given to Manmoh an Singh Khanna, payments made to Sunil Kr. Jain, an account of Stamp Charges. We have also gone through the details chronicled by the ld. CIT(A) which are as under:-
Co No. 09/JAB/2018 Chetanaya Promoter & Developers The diary entries are duly recorded in books of accounts on the following date mentioned against the entry:- Date of entry Particulars Amount Cash book on Supporting in dairy Which entry voucher on is recorded page 04/04/2014 Over head 2000000/- 04/04/2014 39 tank 05/06/2014 Over head 1800000/- 05/06/2014 40 tank 18/07/2014 Over head 1700000/- 18/07/2014 41 tank 30/07/2014 Over head 2500000/- 30/07/2014 42 tank 07/08/2014 Over head 1000000/- 07/08/2014 43 tank 28/08/2014 Over head 1500000/- 28/08/2014 44 tank 11/09/2014 Over head 1500000/- 11/09/2014 45 tank 01/10/2014 Over head 1300370/- 01/10/2014 46 tank 11/05/2014 Road Work 500000/- 11/05/2014 47 18/05/2014 Road Work 600000/- 18/05/2014 48 27/05/2014 Road Work 800000/- 27/05/2014 49 04/06/2014 Road Work 500000/- 04/06/2014 50 09/06/2014 Road Work 600000/- 09/06/2014 51 10/04/2014 Nali Nirman 200000/- 10/04/2014 52 21/04/2014 Nali Nirman 300000/- 21/04/2014 53 29/04/2014 Nali Nirman 500000/- 29/04/2014 54 08/05/2014 Nali Nirman 700000/- 08/05/2014 55 11/04/2014 Boundary Wall 2000000//- 11/04/2014 56 21/04/2014 Boundary Wall 1500000/- 21/04/2014 57 01/05/2014 Boundary Wall 1500000/- 01/05/2014 58 11/05/2014 Boundary Wall 1000000/- 11/05/2014 59 18/05/2014 Boundary Wall 1500000/- 18/05/2014 60 13/05/2014 Stamp Vendor 1000000/- 13/05/2014 60A 18/06/2014 Stamp Vendor 1500000/- 18/06/2014 60B 17/07/2014 Stamp Vendor 500000/- 17/07/2014 60C 05/08/2014 Stamp Vendor 1000000/- 05/08/2014 60D 29/08/2014 Stamp Vendor 50000/- 29/08/2014 60E (Copy of ledger account and supporting voucher is enclosed on page no 32 to 60E of this reply).
Co No. 09/JAB/2018 Chetanaya Promoter & Developers 10. The assessee has made most of the above payments through banking channel. This fact can be verified from books of accounts brought for verification.
During the course of survey the assessee has surrendered Rs. 3,00,00,370/- on account of the above entries in the diary (LPI- 1). During the assessment proceeding the AO has checked the entries in diary from the books of accounts and has not found any discrepancy in the submission of the assessee. Further most of the payment are made through banking channel and the payment made to the stamp vendor is recovered from the customer.
The AO on conjecture and surmises has held that the entry recorded in diary (LPI -1) are different from those recorded in books of accounts.
During the appellate proceeding the assessee has filed the copy of ledger accounts of expenses in which the expense recorded in dairy are duly recorded. The assessee has also filed copy of bill of the expenses recorded in diary and books of accounts during the assessment proceeding as well as in appellate proceeding. The AO has not pointed out any specific defect in the supporting bills and vouchers filed by the assessee. The AO has observed that the agreement with the contractors was not produced. There is substantial force in the contention of the ld AR that as a matter of practice the work to the contractor are allotted by verbal agreement because the contractors are generally illiterate or less educated hence the contractor are reluctant to sign the agreement. It is not in dispute that the assessee has deducted and deposited TDS on the payment recorded in diary, whenever the provision of TDS is applicable. This fact is not in dispute. Further most of the payment in respect of entries recorded in diary has been made through banking channel and the payment made to stamp vendor is recovered from the customer also.
Co No. 09/JAB/2018 Chetanaya Promoter & Developers 11. Further, we find that the ld. CIT(A) has relied on the following judgments:-
CIT Vs Digamber Kumar Jain (HUF) (2012) 83 CCH 0236 the honble MP High Court has held that no addition can be made solely on the basis of statement recorded during the survey. The relevant portion from the headnote is reproduced here in after :-
"Survey Evidentiary value of Survey statement u/s 133A- Survey u/s 133A was conducted in premises of assessee - HUF, and certain documents were impounded Statement of Karta was recorded in which he admitted that there were certain discrepancies in impounded documents and surrendered income for taxation-Addition was made by AO on basis of a statement recorded during survey u/s 133A- CIT(A) had deleted addition-ITAT had confirmed order passed by CIT(A) Held, statement recorded under s. 133A had no evidentiary value Additions could not be made merely on the basis of statement u/s 133A-Presence of some corroborating evidence against undisclosed income of assessee was essential before making additi on-Addition was wrongly made by AO— Revenue's appeal dismissed"
(iv) In the case of CIT V s Khader Khan Son (2008) 300 ITR 0157 the hon'ble Madras High Court Income from undisclosed sources-Addition-Addition on the basis of statement recorded during survey under s. 133A- Sec. 133A does not empower any IT authority to examine any person on oath, hence, any such statement has no evidentiary value and any admission made during such statement cannot, by itself, be made the basis for addition-This view is clearly supported by CBDT circular dt. 10th March, 2003-No substantial question of law arises
This decision of the hon'ble Madras High Court has been confirmed by the hon'ble Supreme Court in the case of CIT V s Khader Khan Son (2013) 352 ITR 0480.
Co No. 09/JAB/2018 Chetanaya Promoter & Developers
We find that the assessee has clearly proved that all the expenses have been duly incurred, paid and accounted. The TDS returns have been duly filed. The AO has made the addition merely on the basis of statement recorded during the survey on 18.10.2014 and the AO has not brought any other evidence to dispute the claim of the assessee and to counter the factum of payment. In view of the above cited decision of and Hon'ble MP High Court & Hon'ble Apex Court, no addition can be made in this case. The order of the ld. CIT(A) is affirmed on this ground.
In the result, the appeal of the Revenue on this ground is dismissed.
Cash found during the survey-Rs. 8,95,000/-:
During the survey the assessee has surrendered Rs. 8,95,000/-being the cash found at the premises which the AO added as undisclosed income. The ld. CIT(A) deleted the addition on the grounds that the during the assessment proceeding the assessee has produced books of accounts including cash book before the AO and assessee informed the AO that cash of Rs. 8,95,000/- found during the survey was part of cash balance as on the date of survey. In the assessment proceeding the AO has accepted books of accounts but has not accepted the explanation of the assessee, the AO has not found any discrepancy in the cash book, hence the ld. CIT(A) held that the AO was not justified in treating cash of Rs. 8,95,000/- which was part of the cash available with the assessee as on the date of survey. Since the facts are very
Co No. 09/JAB/2018 Chetanaya Promoter & Developers clear in the cash found forms the part of the cash balance, we decline to interfere with the order of the ld. CIT(A).
In the result, the appeal of the Revenue on this ground is dismissed.
Addition of Rs. 10,00,000/-:
During the survey the assessee has surrendered Rs. 16,00,000/- on account of expenditure incurred on establishment of new office which the AO treated as undisclosed income in the assessment proceedings. During the survey not a single bill or voucher or loose paper or any other evidence was found which suggest that the assessee has invested Rs. 16,00,000/- in its office.
Before the ld. CIT(A), it was argued by the assesee that the assessee has not made any investment in office during the financial year relevant to assessment year 2015-16, hence on the solely on the basis of surrender made during the survey, the addition of Rs. 16,00,000/- cannot be made to the income. The ld. CIT(A) held that it is fact on record that the assessee shifted to new office and no new investments have been shown on account of furniture & fixture. Even if it is assumed that the old furniture has been shifted, certain amount on installation of new furniture cannot be ruled out. Hence, the ld. CIT(A) confirmed an addition of Rs. 6,00,000/- and deleted the addition of Rs. 10,00,000/-.
18 Aggrieved the assessee as well as the Revenue are in before us.
Co No. 09/JAB/2018 Chetanaya Promoter & Developers
Heard the arguments of both the parties and perused the material available on record.
There was no evidence available with the Revenue except the statement of surrender hence, we hold that the ld. CIT(A) has rightly confirmed the addition of Rs. 6,00,000/-. Ergo, the addition of the ld.CIT(A) is hereby affirmed.
In the result, on this ground, appeal of the Revenue as well as appeal of the assessee is hereby dismissed.
Batwaranama-Section 43CA:
During the year one of the partner Shri Sachin Upadhyay retired on 01.04.2014 and the deed of retirement was executed on 5 April 2014. Further a Batawaranama was also executed on 05.09.2014, which was registered and intimation in this regard was also published in MP Gazette notification dated 30.10.2015. The intimation was also submitted to registrar firm and society Jabalpur. As per this Batwaranama the total capital of Shri Sachin Upadhyay stood on 31.03.2014, worth Rs. 10,99,81,266 was transferred over by the assessee firm. It was found by the AO, that total capital transferred was in the shape of immovable assets i.e. the stock of the land of the assessee firm. Hence the AO held that provisions of section 43CA of the I.T. Act are attracted on this issue. The AO found that as per the registered deed of batwaranama, the market value of the said properties was Rs. 11,46,52,000/- whereas as the value of the same shown in the books at Rs. 10,99,81,266.47, hence,
Co No. 09/JAB/2018 Chetanaya Promoter & Developers the difference amount of Rs. 46,70,733.53 (Rs. 11,46,52,000 - Rs. 10,99,81,266.47) was added to the income of the assessee.
Aggrieved, the assessee filed appeal before the ld. CIT(A) who deleted addition made by the AO.
Aggrieved, the Revenue filed appeal before the ITAT.
Heard the arguments of both the parties and perused the material available on record.
Provisions of Section 43CA reads as under:- 43CA. (1) Where the consideration received or accruing as a result of the transfer by an assessee of an asset (other than a capital asset), being land or building or both, is less than the value adopted or assessed or assessable by any authority of a State Government for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall, for the purposes of computing profits and gains from transfer of such asset, be deemed to be the full value of the consideration received or accruing as a result of such transfer: Provided that where the value adopted or assessed or assessable by the authority for the purpose of payment of stamp duty does not exceed one hundred and ten per cent of the consideration received or accruing as a result of the transfer, the consideration so received or accruing as a result of the transfer shall, for the purposes of computing profits and gains from transfer of such asset, be deemed to be the full value of the consideration: 61[Provided further that in case of transfer of an asset, being a residential unit, the provisions of this proviso shall have the effect as if for the words "one hundred and ten per cent", the words "one hundred and twenty per cent" had been substituted, if the following conditions are satisfied, namely:— (i) the transfer of such residential unit takes place during the period beginning from the 12th day of November, 2020 and ending on the 30th day of June, 2021; (ii) such transfer is by way of first time allotment of the residential unit to any person; and (iii) the consideration received or accruing as a result of such transfer does not exceed two crore rupees.] (2) The provisions of sub-section (2) and sub-section (3) of section 50C shall, so far as may be, apply in relation to determination of the value adopted or assessed or assessable under sub-section (1).
Co No. 09/JAB/2018 Chetanaya Promoter & Developers (3) Where the date of agreement fixing the value of consideration for transfer of the asset and the date of registration of such transfer of asset are not the same, the value referred to in sub-section (1) may be taken as the value assessable by any authority of a State Government for the purpose of payment of stamp duty in respect of such transfer on the date of the agreement. (4) The provisions of sub-section (3) shall apply only in a case where the amount of consideration or a part thereof has been received by way of an account payee cheque or an account payee bank draft or by use of electronic clearing system through a bank account or through such other electronic mode as may be prescribed62 on or before the date of agreement for transfer of the asset. 63[Explanation.—For the purposes of this section, "residential unit" means an independent housing unit with separate facilities for living, cooking and sanitary requirement, distinctly separated from other residential units within the building, which is directly accessible from an outer door or through an interior door in a shared hallway and not by walking through the living space of another household.]
The core issue dealt section 43CA pertains to “transfer” on an asset. We have perused the judicial pronouncements as to what constitute transfer of an asset of a partnership firm to the partner.
Malabar Fisheries Co v CIT [1979] 120 ITR 49 (Supreme Court) - held that a partnership firm is not a legal entity in the eyes of law and all partner of the firm have a joint or common interest in the assets of firm. For this reason it cannot be said that upon retirement of a partner or on dissolution of the firm any transfer take place.
CIT v Dewas Cine Corporation 1968] 68 ITR 240 (Supreme Court)- held that on dissolution of the partnership, each theatre must be deemed to be returned to the original owner, in satisfaction partially or wholly of his claim to a share in the residue of the assets after discharging the debts and other obligations. But thereby the theatres were not in law sold by the partnership to the individual partners in consideration of their respective shares in the residue. The expression "sale" and "sold" are not defined in the IT Act : those expression are used in s. 10(2) (vii) in their ordinary meaning. "Sale", according to its ordinary meaning, is a transfer of property for a price, and Co No. 09/JAB/2018 Chetanaya Promoter & Developers adjustment of the rights of the partners in a dissolved firm is not a transfer, nor it is for price. …….. A partner may, it is true, in an action for dissolution insist that the assets of the partnership be realized by sale of its assets, but where in satisfaction of the claim of the partner to his share in the value of the residue determined on the footing of an actual or notional sale property is allotted, the property so allotted to him cannot be deemed in law to be sold to him."
CIT v BankeyLalVaidya [ 1971] 79 ITR 594 (Supreme Court)-held that, one partner taking over the assets, including goodwill, machinery, furniture, medicines, library and copyright, etc., as a majority of these assets were incapable of physical division-The other partner was paid his share of the value in money-This is recognized method of making up the accounts of a dissolved firm- Payment of the amount agreed to be paid to the assessee under the arrangement of his share was not in consequence of any sale, exchange or transfer of assets giving rise to capital gains"
CIT v Moped and Machines [2006] 281 ITR 52 (HC-MP) held that, no transfer of assets take place on distribution of assets between the partners at the time of dissolution of the firm.
In view of the above discussed legal position it is hereby by held that no transfer has taken place at the time of transfer of assets to retiring partner by the assessee firm and accordingly, the provision of section 43CA is not applicable on such distribution of assets. For this reason, we hold that the ld. CIT(A) has rightly deleted the addition of Rs. 46,70,733/ - made by the AO
In the result, appeal of the Revenue on this ground is dismissed.
Co No. 09/JAB/2018 Chetanaya Promoter & Developers
In the result, the appeal of the Revenue as well as cross objection of the assessee stands dismissed.
Order Pronounced in the Open Court on 23/11/2023.