CRP ASSOCIATES,GANDHINAGAR vs. THE ACIT, GANDHINAGAR CIRLE, GANDHINAGAR

Assessee has taken five grounds of appeal, but its grievance revolves around a single issue viz. the ld.CIT(A) has erred in confirming addition of Rs.45,50,000/-. Brief facts of the case are that the assessee has filed its return of income on 27.9.2010 declaring total income at Rs.61,57,330/-. The case of the assessee was selected for scrutiny assessment and notice under section 143(2) was issued and served upon the assessee. According

2 - to the AO, a survey under section 133A was conducted at the business premises of the assessee on 10.9.2009. During the course of survey, the assessee has disclosed a sum of Rs.80.00 lakhs as undisclosed income of the assessee. Out of the above disclosure, Rs.68,50,000/- was disclosed for the Asstt.Year 2010-11 in the hands of CRP Associates, and Rs.11,50,000/- was disclosed in the hands of Siddhraj Developers P.Ltd. for the Asstt.Year 2009-10. In the case of the assessee, out of Rs.68,50,000/- only Rs.23,00,000/- lakhs was disclosed and remaining amount was not disclosed. The ld.AO has reproduced reply to question no.13 and made an addition of Rs.45 lakhs to the income of the assessee. Appeal to the CIT(A) did not bring any relief to the assessee.

While impugning order of the Revenue authorities, the ld.counsel for the assessee raised multi-fold contentions. In the first fold of contentions, he submitted that if statement of Chaitanya Babubhai Patel of the assessee- company recorded during the course of survey under section 133A is being perused, then in reply to question no.10, he has disclosed that piece of paper which has been confronted to him, is only an estimate given to the buyers on certain set of projects of houses to be constructed. Similarly, the disclosure made in answer to question no.13, it was again specifically disclosed by him that these papers are just estimate for calculation purpose. They are not evidences to suggest that the assessee has received on-money. However, in order to avoid any type of litigation with the department, the assessee would disclose the amount of Rs.68,50,000/- towards unaccounted booking amount. Thus, on the strength of Hon’ble Supreme Court decision in the case of CIT Vs. S. Khader Khan Son, reported 210 taxman 248 (SC) which has upheld decision of Hon’ble Madras High Court reported in 300 ITR 157 (Mad.) he contended that statement recorded under section 133A is not admissible in evidence because authorized officer was not having jurisdiction to administer on oath to the deposer. It is just a corroborative evidence. There is no other evidence possessed by the Revenue except certain papers which were disclosed by the deponent that they were rough estimates. Department has not carried out further investigation, and thus on the basis of the statement no addition can be made in the hands of the assessee.

In the second fold of contentions, he submitted that at the most this on-money taken on the booking amount would partake purchase price paid by the ultimate buyer of the house. The profit element embedded in such sales of the assessee is to be taxed, and not on gross amount. For buttressing this proposition, he made reference to the following decisions: i) DCIT vs. Panna Corporation - Tax Appeal No.323 of 2000 (Guj) (Annexure "D"); ii) CIT vs. President Industries - 258 ITR 654 (Guj.); iii) CIT vs. Gurubachhan Singh J. Juneja - 302 ITR 63 (Guj); iv) CIT vs. Samir Synthetics Mill - 326 ITR 410 (Guj); v) Man Mohan Sadani vs. CIT - (2008) 304 ITR 52 (MP); CIT vs. Balchand Ajit Kumar - (2003) 263 ITR 610 (MP) vi)

In his next fold of contentions, he submitted that this amount would become part of the business income, and accordingly, partners are entitled for remuneration as well as interest against this amount. He pointed out that this aspect was pleaded before the ld.CIT(A) wherein the assessee has highlighted the following facts: Page no.5

For buttressing his contentions, with regard to the above, he relied upon the following decisions:

On the other hand, the ld.DR relied upon the order of the ld.CIT(A). He contended that the assessee itself has accepted the stand disclosed during the course of survey by partly admitting the income at Rs.23 lakhs. Therefore, now the assessee is precluded to take benefit of judgment of Hon’ble Supreme Court in the case of S. Khader Khan Son (supra).

We have duly considered rival submissions and gone through the record. No doubt a statement recorded during the course of survey under section 133A is only an information and not conclusive evidence on the basis of which addition can be made. But in the present case, this statement is to be appreciated keeping in mind that certain papers and diaries inventorised as Annexure-4, 5 and 6 were found and seized. The assessee itself did not dispute disclosure made by it during the course of survey, and honoured to the extent of Rs.23 lakhs. Therefore, on the strength of Hon’ble Supreme Court decision in the case of S. Khader Khan Son, the assessee cannot pleaded that for want of sufficiency of evidence about the acceptance of on-money by it, addition cannot be made. There is sufficient evidence which has been agreed by the assessee itself confirming partly in the return of income. Therefore, we do not find any merit in the first fold of contentions.

In the result, the appeal of the assessee is partly allowed. Pronounced in the Open Court on 13th February, 2020.