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Facts
A search action uncovered evidence of "on-money" receipts from real estate sales. The assessee offered a portion of these receipts as income, claiming estimated expenses. The Assessing Officer disallowed the expenses and taxed the entire gross receipts, while the CIT(A) estimated net profit at 26%.
Held
The Tribunal held that only the profit element embedded in 'on-money' receipts should be taxed, not the entire gross amount. It further noted that the AO incorrectly disregarded the assessee's claimed expenses and evidence thereof. The CIT(A)'s estimation of 26% was also found to be unsubstantiated.
Key Issues
Whether the entire 'on-money' receipts should be taxed or only the profit element, and whether expenses claimed against such receipts are admissible.
Sections Cited
132, 132(4), 37(1), 69C, 158BC, 44AD
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Income Tax Appellate Tribunal, MUMBAI BENCH ‘G’, MUMBAI
Before: SHRI AMARJIT SINGH, HON’BLE & SHRI RAJ KUMAR CHAUHAN, HON’BLE
method of recognizing the revenue in the books of account. Neither the AO nor the CIT(A) has carried out any exercise to determine the net profit and total turnover on the basis of material on record for arriving at a reasonable profit embedded in the unaccounted transaction of on-money found in the case of the assessee. Since the assessee has not offered any income for the A.Y. 2018-19 and 2019-20 and they have offered only income on the proportionate completion of the project from the A.Y. 2020-21 to 2022-23 as referred above in this order and average net profit percentage offered is 18.33% (13% + 29% + 13%).
The assessee has offered average net income from construction business in the audited books of accounts for the period A.Y. 2018-19 to 2022-23 at 18.33%. The action of the AO to treat the whole on money receipt of Rs. 13,65,13,712/- as part of net profit would result in abnormal net profit as about 70% on the sale amount of Rs. 32,97,59,363/- after adding the on money result of Rs. 13,65,13,712/- to the net profit of Rs. 9,33,89,589/- already declared as per the books of account. We further noticed infirmities in the consolidated income computed by the ld. CIT(A). Since the assessee was following the project completion method but for the A.Y. 2020-21 no sale/revenue was mentioned against the net incme / net profit of Rs. 1,31,95,081/- which was shown for the A.Y. 2020-21 for the purpose of arriving consolidated income of all the years at the average net profit of 26% because the ld. CIT(A) at page no 20 of the order has considered the net profit for the A.Y. 2020-21 @ 13%. Therefore, we consider that the profit embedded in the on-money transaction is reasonable to estimate @ 22%. Therefore, we estimate the net profit @ 22% of accounted receipt of Rs. 3,79,07,014/- instead of 26% estimated by the ld. CIT(A). Accordingly, the appeal of the assessee is partly allowed and appeal filed by the Revenue is dismissed.
(A.Y. 2020-21) (Assessee Appeal)
Since on similar issue and identical fact vide we have partly allowed the appeal of the assessee by estimating the net profit @ 22% on unaccounted business receipt. Therefore, applying the findings of the same mutatis mutandis the net income of the assessee from unaccounted business is also estimated @ 22%. Therefore, the appeal of the assessee is partly allowed. (A.Y. 2021-22) (Assessee Appeal) 11. Since on similar issue and identical fact vide we have partly allowed the appeal of the assessee by estimating the net profit @ 22% on unaccounted business receipt. Therefore, applying the findings of the same mutatis mutandis the net income of the assessee from unaccounted business is also estimated @ 22%. Therefore, the appeal of the assessee is partly allowed. (A.Y. 2021-22) (Revenue Appeal) 12. Since this appeal of the Revenue is based on identical issue on similar fact to the for A.Y. 2019-20 as adjudicated (supra) in this order by which the appeal of the Revenue is dismissed applying the findings of the same mutatis mutandis this appeal of the Revenue is also dismissed.
In the result, all the appeals filed by the assessee are partly allowed and all the appeals filed by the Revenue are dismissed.