POOSARLA SUBHASH,VISAKHAPATNAM vs. ACIT, VISAKHAPATNAM

आदेश /O R D E R

PER D.S. SUNDER SINGH, Accountant Member:

These appeals are filed by the assessee against the order of the Commissioner of Income Tax (Appeals) [CIT(A)]-2, Guntur dated 22.06.2017 for the Assessment Years (A.Ys.)2007-08, 2010-11 to 2012-13 and by the revenue for the A.Ys.2007-08 to 2012-13. Since the grounds raised and the issues involved in these appeals are common the appeals are clubbed, heard together and disposed off in common order for the sake of convenience as under.

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business. Therefore, the Assessing Officer (AO) reopened the assessments u/s 147 and issued the notice u/s 148 which were served on the assessee. Subsequently, notices u/s 143(2) and 142(1) were issued and the assessments were completed u/s 143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter called as ‘Act’) for the A.Y. 2007-08 to 2012-13 on total income as under : Return of Assessed A.Y. income filed Income (in Rs.) (in Rs.) 2007-08 1,68,531 4,38,16,100 2008-09 1,50,048 3,78,47,370 2009-10 2,25,880 4,82,10,079 2010-11 7,75,530 4,04,60,410 2011-12 15,99,084 3,07,56,629 2012-13 15,51,226 82,46,920

2.1 During the course of survey, incriminating material in the form of books of accounts, documents/diaries, loose papers, lap top and CPU was found in the business premises of the assessee which was impounded u/s 131 of the Act on 10.02.2011. The AO verified the material available in the business premises of the assessee during the course of survey and found that material contain the information for 13 real estate projects and the assessee has admitted the income only from the following projects during the period under consideration.

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(i) Sagar Square (ii) Durgalamma Dwellings (iii) KNR Plaza. (iv) Nagamalli Enclave

The books of accounts, loose sheets and documents found evidencing the development and construction of 8 other projects and the assessee did not admit the income from the under mentioned projects (other projects). The material was found relating to the following projects during the survey which was denied by the assessee: (i) Gokul Grandeur (Sita Residency, Near Gokul Theatre) (ii) China Waltair (iii) Chinnamvari street (iv) Madhura Nagar-1 (Aparna Apartments) (v) Pedawaltair (Gayatri Residency) (vi) PrakashraoPeta (Vishnu Apartment) (vii) Soldier Peta (viii) Madhura Nagar-2 (Madhura Meadows)

2.2. The AO found from the incriminating material that the assessee has maintained the books of accounts and other details relating to the above projects in the names of landmarks situated near the construction site like Chinawaltair, Pedawaltair, Durgalamma Dwellings, Sagar Square (CMR), Veterinary Hospital and Madhuranagar etc. From the impounded material, the AO observed that the assessee has carried out 12 projects, however, in the statement recorded u/s 131, accepted the construction in the following projects:

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(i) Nagamalli Enclave (ii) Sagar Square (iii) Durgalamma Dwellings (iv) KNR Plaza (v) For Madhuranagar 2D project, the assessee stated that he is associated with it and purchased the land (vi) In respect of Madhurawada constructions, he stated that the project is yet to be commenced. In respect of the remaining 7 other projects, the assessee denied having carried out any construction activity and submitted that those 7 projects were not related to him and they were carried out by other persons. In reply to Q.No.38 of the statement recorded u/s 131 on 10.02.2011, the assessee gave a reply stating that the accounts of the projects mentioned in the laptop were prepared by his wife, Mrs Deepika for the purpose of bank loans. The data was taken from the respective site promoters and was designed for two partnership firms by editing and adding figures in lieu of attracting bank authorities for obtaining the loans. Several debt equity ratios were taken as advices from several auditors namely Shri E.S.R.C.Murthy and others. In a nut shell, the assessee contended that the projects were not relating to the assessee and the assessee’s wife has collected the data for the purpose of bank loans. However, the laptop impounded vide A/PS/106 contain the day to day accounts regarding purchase of land, various other expenses relating to construction, details of receipts from customers, payments made to various

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government agencies for obtaining plan approvals etc. and the details of investments in each project. The AO verified the payments and receipts, project-wise as per the seized material and arrived at the receipts and payments project wise as per the material found in survey, marked as annexure A/PS/4 for Madhura Meadows, page No. 13 to 14, A/PS/8 in respect of Madhura Nagar, Aparna Apartments, A/PS/57 in respect of Pedawaltair Project (Gayatri Residency), A/PS/30 in respect of Gokul Grandeur (Sita Residency) etc. As per the working of the AO, the total unaccounted receipts and unaccounted payments, project wise and year wise are as under 2007-08 Payments Sl. Receipts Name of the Project Interest Misc Owner Others No. Rs. Rs. Rs. Rs. Rs. 1 ChinnamVari Street 93000 83061 146385 62000 125098 2 China Waltair 76197 410362 3 CMR/Sagar Square 242437 1500000 1133205 4 Durgalamma Dwellings 25387 1800000 515255 Madhura Nagar 2D/ Madhura Meadows 5 10259750 253479 Madhura Nagar -1 6 (MN-1) 11388790 9771750 7 Pedawaltair Construction 1473814 11009000 301945 8 Soldier Peta 135903 255739 9 PrakashraoPeta 35251 216050 Total 11481790 2300540 146385 34402500 3211133

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2008-09 Payments Sl. Receipts No. Name of the Project Interest Misc Owner Others Rs. Rs. Rs. Rs. Rs. 1 ChinnamVari Street 1007440 364217 419511 29250 2088631 2 China Waltair 3538525 370280 2855738 3 CMR/Sagar Square 4283000 844239 630928 2120000 4 Durgalamma Dwellings 742535 306000 999883 Madhura Nagar 2D/ Madhura Meadows 5 5359900 100000 776217 Madhura Nagar -1 6 (MN-1) 4408900 7 Pedawaltair Construction 5327000 2438941 2526885 8 Soldier Peta 514882 349589 Veterinary Hospital 9 (KNR Plaza) 802294 3630000 165801 10 PrakashraoPeta 50000 474067 3945535 Total 23974765 6551455 1050439 6185250 13708279

2009-10 Sl. Payments Receipts No. Name of the Project Interest Misc Owner Others Rs. Rs. Rs. Rs. Rs. 1 ChinnamVari Street 4395620 405933 239509 11250 1297174 2 China Waltair 4795500 140584 1841129 3 CMR/Sagar Square 3352000 583729 2920663 396000 4 Durgalamma Dwellings 4200000 1116576 902250 1105116 Madhura Nagar 2D/ Madhura Meadows 5 5233335 814954 5259625 Madhura Nagar -1 6 (MN-1) 118500 7 Pedawaltair Construction 1674500 2797087 2675534 8 Soldier Peta 6494050 227397 4295655 9 PrakashraoPeta 8735000 449523 980000 1120885 Veterinary Hospital 10 (KNR Plaza) 1096696 981118 Gokul Grandeur (Sita Residency) Deepika 11 94441 532500 78900 Total 38998505 7726920 3160172 282200 18665106

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2010-11 Payments Sl. Receipts No. Name of the Project Interest Misc Owner Others Rs. Rs. Rs. Rs. Rs. 1 CMR/Sagar Square 7035992 376044 42000 3488598 2 Durgalamma Dwellings 6614500 792763 7252026 Madhura Nagar 2D/ Madhura Meadows 3 8581400 1155070 2539905 4 Pedawaltair Construction 17928000 2685390 900000 2873778 5 PrakashraoPeta 1900000 101200 Veterinary Hospital 6 (KNR Plaza) 4548011 1439935 3085369 Gokul Grandeur (Sita Residency) Deepika 7 680000 1644000 3289227 Total 47287903 6449202 0 2586000 22630103

2011-12 Sl. Payments No. Name of the Project Receipts Interest Owner Others Rs. Rs. MiscRs. Rs. Rs. 1 CMR/Sagar Square 1291787 13500 270941 2 Durgalamma Dwellings 8549898 190980 383730 Madhura Nagar 2D/ Madhura Meadows 3 3209333 76052 4 Pedawaltair Construction 9739962 Veterinary Hospital 5 (KNR Plaza) 11072757 653205 2305076 Gokul Grandeur (Sita Residency) Deepika 6 9089550 983999 5231080 Total 42953287 1917736 654671 0 7536156

2.3. The AO proposed to estimate the income on gross receipts and to make the addition of unaccounted payments separately and given an opportunity to the assessee to explain as to why the income should not be estimated on the unaccounted receipts and why the expenditure should not

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be added u/s 69C of the Act as the same was found to be unrecorded. Since there was no proper explanation from the assessee, the AO estimated the income @12% on unaccounted receipts, (i.e. receipts found as per the impounded material minus the receipts admitted by the assessee) and made the addition of unaccounted payments separately. Accordingly, the AO made the addition of income from real estate business on unaccounted receipts and the unexplained expenditure for the A.Y. 2007-08 to 2011-12 as under : Estimation of income Unexplained Unaccounted A.Y. on unaccounted expenditure receipts (in Rs.) receipts@12% (in Rs.) (in Rs.) 2007-08 1,14,81,790 10,37,014 4,00,60,558 2008-09 2,39,74,765 25,01,899 2,74,95,423 2009-10 3,89,98,505 42,42,005 3,23,74,198 2010-11 4,72,87,903 40,93,178 3,16,65,305 2011-12 4,29,53,287 32,79,781 1,01,08,563 2.4. The AO also made separate additions on account of un secured loans accepted during the impugned assessment years for non furnishing of confirmation letters, defective confirmation letters, insufficient credit worthiness etc., for the assessment years from 2007-08 to 2012-13 as under :

A.Y. Amount (Rs.) 2007-08 25.5 lakhs 2008-09 77 lakhs

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A.Y. Amount (Rs.) 2009-10 82.3 lakhs 2010-11 21.5 lakhs 2011-12 112.45 lakhs 2012-13 17 lakhs 2.5 Aggrieved by the order of the assessing officer the assessee went on appeal before the Ld.CIT(A) and the Ld.CIT(A) allowed the appeal of the assessee partly. Against the order of the Ld.CIT(A), both the revenue and the assessee filed cross appeals.

3.0. The common issues in revenue appeals for all the assessment years are (i) Estimation of income on undisclosed gross receipts (ii) Addition on account of unexplained expenditure/payments and (iii) Unsecured loans. 4.0. Estimation of income on undisclosed gross receipts. This issue is involved for the A.Ys 2007-08 to 2011-12. The AO found undisclosed gross receipts during the course of survey which was worked out project wise and the assessment year wise in the preceding paragraph No.2. Though the assessee denied having under taken 7 projects referred to above, basing on the material found during the survey, the AO held that all the projects were belonged to the assessee and accounted the receipts partly in the books of accounts. Even in the case of projects owned by the assessee, it was found

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that the assessee had accounted the receipts partly (i.e. Nagamalli Enclave, Sagar Square, Durgalamma Dwellings, KNR Plaza,). The AO quantified the unaccounted receipts from all the projects duly reducing the admitted receipts in the returns of income and estimated the income on the net unaccounted receipts @12% of the gross receipts and the same was brought to tax as unaccounted income in the real estate business.

4.1 On appeal, the Ld.CIT(A) observed that all 13 projects (one yet to take off) were not carried out by the assessee and they were carried out by various other / persons. The Ld.CIT(A) verified the statements recorded from the assessee on 14.02.2011, wherein, the assessee in question No.40 furnished the details of projects undertaken by himself and various other persons as under: "Q. 40. Please furnish project wise details of the above projects ? I furnish herewith the project wise details as under: Chinnamvari street (00023) 1- Apr- 2005 to 31-March-2010 1. This is situated in one town are, sivalayam Street, vsp- developed by PLakshmi, w/o P. V.Satyararayana residing at D. No 43-19-1, T. S. N Colony, Vsp - 16, P. Lakshmi is sister of N. Nookaraju who was my father's friend. Chinnawaltair (00027) 1- Apr- 2006 to 31-Mardi-2010 2. This project is situated at nearby DurgaMahalakshmi arch, Chinnawaltair, Visakhapatnam developed by A.MangaRaju, D.No.12-43-2, Gowsya Street, Indira Colony, Gajuwaka, Visakhapatnam. He was working under my father from 2000- 2005 and has been associated with us till date. 3. CMR OppD(10005) 1-Apr-2006 to 31-March-2011

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This project was done by me. It is near PrakasaRaopeta, adjacent to hotel Vijayabhanu Visakhapatnam. Landlord name is V.Vidyasagar, 12-11-1, Sagar square apartments, Prakasakao pets, Vsp. 4. Durgalamma Dwellings (00004) 1-Apr- 2006 to 31-March-2011 This project was done by me. It is situated near Poorna Market, RRMR Road, Vsp. The Owner / Landlord name is ShriP.VenkataRamana, 51-8-40/29/3, Nakkavanipalem, Seetamrnadhara, Visakhapatnam - 13 5. Gokul grandeur (10001) 1-Apr-2008 to 31-March-2011 This project was done by my wife Smt.K.Deepika under development basis with land owner D.Sita Devi, residing at Nerella Koneru, 1stfloor of SVS High School, Allipuram, Vsp. 6. K.Deepika (00012) 1- Apr- 2009 to 31-March-2010 This is not a project 7. Madhuranagar2D (10000) 1-Apr- 2006 to 31-March-2011 This project name is Madhura Meadows I am associated as landowner of the site. I have purchased this site from S Suryakumari in the year 2006. 8. Madhurawda Construction A/c (00054) 1-Apr- 2007 to 31-March-2011 This project is yet to start of which I have invested in obtaining plan situated in Bakkavanipalem, Madhurawada, Visakhapatnam, The site owners are M.B.Venkat Rao and others. 9. Mn-1 A/c (10003) 1-Apr- 2006 to 31-March-2007 This project was taken up by B. Siva Prasad who used to work until 2005, since then he was associated with us. His status is contractor residing at 22-69-29, Vasanta Rao street, Vsp-1. 10. M.S.P (10002) 1- Apr- 2008 to 31-March-2010 M.Madhusudhan Prabhu, who is the contractor of Madhura Meadows, residing at 9-19-37, CBM Compound, Visakhapatnam, 11. Pedawaltair construction (00052) 1- Apr- 2006 to 31-March-2011 The project was taken up by contractor K.Ramya Lavanya Devi, wife of K. Venugopal who were our family friends, residing at flat G-5, Gr. Floor, Rockdale Residency, Rock Dale layout, Vsp. 12. Prakasa Rao peta (00009) 1- Apr- 2006 to 31-March-2010 This project was taken up by P.Satish / who used to work under my father until

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2006. Since then he was associated with us. His residence address is MVP Colony, Plot na218, Sector -5f Vsp-17 13. P.Subhash (00013) 1-Apr- 2009 to 31-March-2010 This is not a project. 14. P.Subhash (from 1-April 2009) (10004)1-Apr-2009 to 31-March-2010 This is not a project. 15. P.Subhash (from 1- April 2010) (10006) 1- Apr 2010 to 31-March-2011 This is not a project. 16. Sharat A/c. (10008) 1-Apr-2007 to 31-Mar-2011 Sharat is a proposed investor in one of the partnership firm which we thought of incorporating. He is resident of Tenali, his father is a friend of my father. His contact address in Visakhapatnam is T. Chandrasekhar, F-I, First Floor, Balaji Residency, Balayyasastri Layout, Vsp Mob-9948699918. Another address is GK1I Prasad, Naval Base Employee, Indian Naval Canteen Service, Vsp, Mob- 9949827216. 17. Soldierpeta (00015) 1- Apr-2006 to 31 -Mar-2009 This project is situated in One town area, it was done by contractor P. Chitti Varahala Raju, Brother-in-law of N. Nookaraju, who is friend of my father. He is resident of Dondaparthy Bazar, Vsp. His contract address is N. Nookaraju, C-I, 2ndFloor, Sager Square, Beside Adjacent to Hotel VijjayaBhanu, Prakashrao Peta, Vsp. 18. Veternary Hospital (00053) 1-Apr-2007 to 31-Mar-2011 This project is taken up by me on development basis. The land owners name is kandula nagaraju, residing at D. No. 33-4-28/2, Allipuram, Vsp-4." 4.2. The Ld.CIT(A) observed from statement and submissions of the assessee that the details of 13 projects were found during the course of survey and the projects undertaken by the assessee and others are as under: S.No. Name of the Project Owner 1. Chinnamvari Street P.Laxmi 2. ChinnaWaltair A.MangaRaju 3. CMR/Sagar Square Assessee 4. Durgalamma Dwellings Assessee

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4.3. The Ld.CIT(A) also observed that the AO, subsequent to the survey u/s 133A conducted the enquiries and recorded the statements from the developers / contractors who stated to have taken up the projects. The observations of the Ld.CIT(A) from the post survey enquiries are as under:

“The assessee could rebut the basic presumption cast on him as per section 292C. The assessee either during survey or post survey never accepted that the other 7 projects belonged to him. The post survey enquiries carried by the AO by summoning different individuals like Mr.B.Siva Prasad - Madhuranagar/MN-1 project andSmtK.RamyaLavanya Devi - Peddawaltair project, only supported the claim of the assessee. The post survey scrutiny proceedings in the cases of different individuals (whose receipts have been considered by the AO as belonging to the assessee) by different AOs, show that the department is treating those projects as belonging to those individuals but not to the assessee.”

4.4. The Ld.CIT(A) after verifying the statements recorded from the assessee and the post survey enquiries, given a finding that out of 13 projects found in the impounded material, six projects were developed by

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the assessee and seven other projects were carried out by other persons and the assessee had discharged the burden placed on him u/s 292C of the Act. Accordingly confirmed the estimation of income to the extent of 8% of the unaccounted receipts of own projects and deleted the remaining addition. In respect of 7 other projects, the Ld.CIT(A) held that the other projects were carried out by the persons mentioned in table referred to in para No.4.2 and the returns of income were filed by the developers. The post search enquiries also revealed that the projects in fact were carried out by the other persons as per the details given in the statement, hence held that the unexplained expenditure or the estimation of income is not taxable in the hands of the assessee, since the burden placed on the assessee was effectively discharged.

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6.1. From the above, it is observed that the six projects were carried out by the assessee and the remaining 7 projects were stated to have been

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carried out by others. The AO conducted post survey enquiries and recorded statement from B.Siva Prasad on 18.02.2011 and K.Lavanya Devi on 14.02.2011. Both of them have agreed in the enquiries conducted by the AO that they have carried out construction activity in respect of Madhuranagar by B.Siva Prasad and Pedawaltair by K.Lavanya Devi. In the remaining projects, there was no indication of having recorded the statements. However, the Ld.CIT(A) basing on the information of returns of income filed by the respective developers held that the other projects were not carried out by the assessee and carried out by other persons. i.e. P.Chitti Varahala Raju in the case of Soldierpet project, P.Satish in the case of Prakasa Rao Peta Project, B.Siva Prasad and B.Uma Devi in the case of Madhuranagar project, K.Ramya Lavanya Devi in the case of Pedda Waltair Project, A.Manga Raju in the case of Chinna Waltair Project, Smt.Deepika Karpurapu in the case of Gokul Grandeur / Sita Residency project, P.Lakshmi in the case of Chinnam Vari Veedhi Project. The Ld.CIT(A) mainly relied on the income tax returns filed by the respective developers before survey or subsequent to survey, MoU reached by the developer with the landlord and the statement recorded from B.Siva Prasad and Lavanya and held that the assessee has discharged the presumption cast on him u/s 292C of the Act. Accordingly directed the AO to delete the additions

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representing estimation of unaccounted income on unaccounted receipts and unexplained expenditure made in respect of the other projects stated to have been taken up by others.

6.2. We have gone through the assessment orders and orders of the lower authorities and observed that the Ld.CIT(A) heavily placed reliance on the post survey enquiries conducted by the department and the statement recorded from B.Siva Prasad. Though Sri Siva Prasad has accepted that he had carried out the Madhuranagar project known as Subadra Enclave, he has not maintained the books of accounts and books of accounts were not available with him. However, as per the material found during the course of survey, the AO has given a finding that the details of the expenditure incurred on various sites and the payments made to the various parties was available in the impounded material. The assessee in the statements recorded stated that the data was collected from site promoters and tabulated in the laptop. Thus the deposition made by the assessee is contradictory and inconsistent with the facts stated by B.Siva Prasad in his statement. In response to question No.16 and 17 Sri B.Siva Prasad could not explain the entries recorded in the impounded material and stated that he did not know the entries in the impounded material

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found during the survey. For ready reference, we extract relevant part of the statement of Sri Siva Prasad which is available in the Ld.CIT(A) order in page No.28 question No.16 and 17, which reads as under : “Q.16. I am showing you Ashwani Deluxe Register marked as A/PS/8, in pages serially numbered 353, impounded during the course of survey u/si 33A conducted in the case of Shri Poosarla Subhash on 10-022011, please go through the entries made in and explain the contents in the book? Ans. I have completed the project Madhura Nagar-1 by me only, but I do not know about the entries made in Page-5 serially numbered 353, impounded during the course of survey u/s.133A conducted in the case of Shri Poosarla Subhash on 10-022011. Q.17. lam showing you Ashwani Deluxe Register marked as A/Ps/8, in page-4 serially numbered 353, impounded during the course of survey u/s. 133A conducted in the case of Shri Poosarla Subhash on 10-02-2011, please go through the entries made in and explain the contents in the book? Ans:I have completed the project Madhuranagar-1by me only, but I do not know about the entries made in page-5 serially numbered 353 above.” 6.3. Similarly, during the post survey enquiries, the AO recorded the statement from Smt.K.Ramya Lavanya Devi who claimed to have completed the work in respect of Pedda Waltair project. She has admitted that she has no experience in construction activity and she has not maintained books of accounts for the project. She also admitted that the entries made in the impounded material were not known to her. For ready reference, we extract relevant part of the order of the statement of K.Ramya Lavanya Devi which was reproduced in the CIT(A) order in page No.29 from Q.No.9 to 15 which reads as under :

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6.4. From the replies of B.Siva Prasad and K.Ramya Lavanya Devi, they have categorically denied having knowledge of entries found during the course of survey in the impounded material. Whereas the assessee stated that the entries were made by his wife as per the information supplied by the promoters of the site. Submission made by the assessee during the course of survey and the replies given by the other promoters are apparently contradicting and inconsistent and does not match with each other. No other material was placed by the assessee to disprove that material found during the course of survey was untrue and not related to him. As per the provisions of section 292C, presumption is available to the department to believe that money, bullion, jewellery, documents, books of accounts found during the course of survey are belonging to the person surveyed or searched by the department and the contents are true. Mere filing of return of income by the others on estimation basis does not discharge the burden placed in section 292C of the Act. The explanation of the assessee that the accounts of the projects maintained in the laptop were prepared by his wife, Mrs Deepika for the purpose of bank loans and the data was collected appears neither convincing nor supported by any documents. It is the obligation of the assessee to substantiate his submissions with evidences with the entries made in the books of accounts

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of the respective promoters, the bank accounts, registered sale deeds etc. When the entries made in the books of accounts found during the course of survey could not be explained by the other person it cannot be held that the burden placed u/s 292C is discharged by the assessee. For ready reference, we extract hereunder section 292C of the Act which reads as under :

Presumption as to assets, books of accounts etc. 292C. (1) Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any person in the course of a search under section 132 or survey under section 133A, it may, in any proceeding under this Act, be presumed— (i) that such books of account, other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person; (ii) that the contents of such books of account and other documents are true; and (iii) that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person's handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested.

6.5. The assessee has denied having carried out the works in other 7 projects. Having found the books of accounts, documents, material, loose sheets, diaries etc. with the complete details of payments made to various parties, investments made in properties and the expenditure incurred in the premises of the assessee, it is burden on the assessee to prove that the entries in the books of accounts, documents, loose sheets, etc. found during the course of survey are in fact does not belong to him but belonged to the other parties with relevant evidences. In this case, the assessee has neither

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discharged the burden nor disproved the fact that the entries made in the books of accounts of 13 projects was not carried out by the assessee. Therefore, in the interest of justice, we are of the view that the issue needs to be remitted back to the file of the AO for making fresh enquiries and to afford an opportunity to the assessee to prove that the entire 13 projects were not carried by him and only six projects were carried out by the assessee. Accordingly, we remit the issue of quantification of gross unaccounted receipts to the file of the AO for redoing the same afresh on merits. The appeal of the revenue on estimation of income on 13 projects is allowed for statistical purpose.

6.6. The other issue is addition made u/s 69C on account of the unaccounted payments. The Ld.CIT(A) deleted the addition relating to unaccounted payments in respect of 7 projects carried out by others since the assessee disowned the projects. In case of 6 projects carried out by the assessee (own projects), the Ld.CIT(A) has made cash flow /funds flow statement and found no deficit cash to meet the expenses accordingly deleted the addition. In the preceding paragraphs we have held that the issue regarding the 13 projects required to be reexamined, since the assessee has not discharged the burden placed on him u/s 292C of the Act.

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With regard to the 6 projects owned by the assessee, the Ld.CIT(A) compiled the cash flow statement and held that the sources were available to make the payments. In the instant case it is observed that the assessee is not maintaining the books of accounts, hence, issue requires further examination by the AO. Therefore, the issue regarding unaccounted payments also remitted back to the file of the AO to examine the real developer of 13 projects and to consider the entire issue and decide the issue afresh on merits. Accordingly, the Revenue’s appeal on unaccounted payments made u/s 69C is allowed for statistical purpose.

6.7. The next issue is estimation of income on the projects admitted by the assessee and the other projects. The AO observed that there was difference in the receipts admitted by the assessee in the return of income and the receipts found as per the seized material, the AO estimated the income @12% on unaccounted receipts and made separate addition for unrecorded expenditure. The material available with the AO consists of undisclosed receipts as well as the unrecorded payments. It is not correct to disregard the material available in respect of payments and receipts and make separate addition on account of undisclosed receipts and unrecorded expenditure. Even the receipts and the payments are unaccounted the AO has to compute the income with matching receipt and the payment.

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Therefore the AO is directed to examine the receipts and expenditure and

compute the income relating to unaccounted receipts.

6.8. Accordingly, the entire issue of estimation of income on undisclosed

receipts and unaccounted payments u/s 69C, is set aside and the issue is

remitted back to the file of the AO for denovo consideration. The assessee

is free to take up all the contentions raised in the appeal before the AO. The

AO is directed to afford reasonable opportunity to the assessee before

completing the assessment.

the additions of unsecured loans for the assessment years from 2007-08 to

2012-13 as under:

Total Loan amount in Assessment Years in Rs. Sl. Name of the Loan amount No. Creditors 2007-08 2008-09 2009-10 2010-11 2011-12 2012-13 taken 1 Sri B Raghu 600000 0 0 0 0 0 600000 2 Sri K Parthasarathi 900000 0 0 0 0 0 900000 3 Smt M Anuradha 150000 0 0 0 0 0 150000 4 Sri K Harikrishna 800000 0 0 300000 100000 200000 1400000 5 Sri B.G.V. Narasinga 100000 0 0 0 0 0 100000 Rao 6 N. Lakshmi 0 850000 0 0 0 0 850000 7 D. VenkataRao 0 1150000 600000 0 0 0 1750000 8 K. VeerabhdraRao 0 700000 0 0 0 0 700000 9 Reddy Ramu, NRI 0 5000000 0 0 0 0 5000000 10 SmtVaralakshmi 0 0 1000000 0 0 0 1000000 11 Sri V Nagamani 0 0 1500000 0 0 0 1500000 Sri R. Laxaman 12 Murthy 0 0 500000 0 0 0 500000 13 Smt. K Harika 0 0 250000 0 0 0 250000

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Total Loan amount in Assessment Years in Rs. Sl. Name of the Loan amount No. Creditors 2007-08 2008-09 2009-10 2010-11 2011-12 2012-13 taken 14 Smt K S Deepika 0 0 100000 0 4920000 0 5020000 15 Sri BVR Murthy 0 0 200000 0 0 0 200000 16 PandariVeeraju 0 0 300000 200000 0 0 500000 17 KKVT Ramakrishna 0 0 100000 0 0 0 100000 18 K Vijayalakshmi 0 0 1250000 0 0 0 1250000 19 N Satyanarayana 0 0 2000000 0 0 0 2000000 20 MBL Prasad 0 0 300000 200000 300000 200000 1000000 21 K Bhavani 0 0 130000 0 125000 200000 455000 22 K Rajesh 0 0 0 150000 2800000 500000 3450000 23 K Bindu Mohan 0 0 0 300000 0 0 300000 24 K Nirmala 0 0 0 1000000 0 0 1000000 25 D VenkataRamu 0 0 0 0 1000000 0 1000000 26 K Indira Kumari 0 0 0 0 1800000 400000 2200000 27 Mucharla Kumar 0 0 0 0 200000 0 200000 28 M Kishore Kumar 0 0 0 0 0 200000 200000 Total 2550000 7700000 8230000 2150000 11245000 1700000

7.1. During the appeal proceedings, the assessee filed additional evidence

which was admitted by the Ld.CIT(A) and called for the remand report

from the AO. During the remand proceedings, the AO verified the

information, recorded statements from the loan creditors and submitted

the remand report. On receipt of the remand report, the Ld.CIT(A) has

called for the objections from the assessee and after having considered the

objections, the remand report and the statements recorded u/s 131 of the

Act, the Ld.CIT(A) deleted all the additions made by the AO except in the

case of Shri K.Harikrishna.

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7.2. Aggrieved by the orders of the Ld.CIT(A), the department has filed appeal challenging the deletion of additions made by the Ld.CIT(A). The revenue has filed the appeal challenging the order of the Ld.CIT(A) for the A.Y 2007-08 to 2009-10 and 2011-12 to 2012-13. From the grounds of appeal filed by the Revenue we observe some lapses which are brought on record as under. For the A.Y. 2009-10, the department raised the following ground for the deleting addition of cash credits as under : 8. The Ld.CIT(A) ought to have appreciated that the creditors to the extent of Rs.62.80 lakhs (out of total addition of Rs.82.30 lakhs) failed to explain the source of the amount advanced to the assessee satisfactorily and therefore the same were rightly treated as unexplained creditors u/s 68 of the I.T.Act by the Assessing Officer. 7.3 For the A.Y 2010-11, the department did not make appeal against the deletion of addition on account of unexplained cash credits, even though in couple of cases, the same cash credits were continued against which the department preferred appeal for the earlier assessment years.

7.4 For the A.Y. 2011-12, the department raised the following grounds against the deletion of cash credits. 9. The Ld.CIT(A) erred in deleting the addition made by the Assessing Officer on account of unexplained unsecured loan creditors barring one loan creditor of Rs.1,00,000/- in the name of Sri K.Hari Krishna with an observation that the creditors confirmed the loans and explained the sources of the amount advanced to the assessee and all the three ingredients of genuine credits are satisfied.

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creditors in whose case, the deletion of addition are not acceptable by the

department. The same is the case with the A.Y. 2012-13. We expect

minimum care by the AO as well as the supervising authorities while filing

the appeal. With the above observations we adjudicate the issue of the

addition relating to unsecured loan creditors as under.

7.5 During the appeal proceedings, the assessee filed additional evidence

before the Ld.CIT(A) which was admitted by the CIT(A) and called for the

remand report. In the remand report the following unsecured creditors

have accepted and confirmed the loan transactions and the source of which

was accepted by the AO.

Loan amount in Assessment Years in Rs. Sl. Name of the Loan No. Creditors 2007-08 2008-2009 2009-10 2010-11 2011-12 2012-13 1 Sri B.G.V. NarasingaRao 100000 0 0 0 0 0 2 K. VeerabhdraRao 0 700000 0 0 0 0 3 Smt Varalakshmi 0 0 1000000 0 0 0 4 Smt. K Harika 0 0 250000 0 0 0 5 PandariVeeraju 0 0 300000 200000 0 0 6 KKVT Ramakrishna 0 0 100000 0 0 0 7 K Rajesh 0 0 0 150000 2800000 500000 8 K Nirmala 0 0 0 1000000 0 0 Total 100000 700000 1650000 1350000 2800000 500000

7.6. The Ld.CIT(A) deleted the addition on the basis of the remand report

submitted by the AO. Since there is no dispute with regard to source and

the AO has accepted the transaction as genuine there is no case for filing

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appeal. During the appeal hearing the Ld.DR could not place any material to

controvert the finding given by the Ld.CIT(A). Hence the department’s

appeal in the case of above creditors for the impugned assessment years

are dismissed.

7.7 In the following cases, at the remand stage the AO has conducted the

enquiries and the creditors have accepted the transaction and explained

the source.

Loan amount in Assessment Years in Rs. Sl. Name of the No. Loan Creditors 2007-08 2008-2009 2009-10 2010-11 2011-12 2012-13 Sri K 1 Parthasarathi 900000 0 0 0 0 0 Smt M 2 Anuradha 150000 0 0 0 0 0 3 D. VenkataRao 0 1150000 600000 0 0 0 4 Sri V Nagamani 0 0 1500000 0 0 0 5 Smt K S Deepika 0 0 100000 0 4920000 0 6 Sri BVR Murthy 0 0 200000 0 0 0 7 K Vijayalakshmi 0 0 1250000 0 0 0 8 K Rajesh 0 0 0 150000 2800000 500000 9 K Bindu Mohan 0 0 0 300000 0 0 10 D VenkataRamu 0 0 0 0 1000000 0 11 K Indira Kumari 0 0 0 0 1800000 400000 Mucharla 12 Kumar 0 0 0 0 200000 0 Total 1050000 1150000 3650000 450000 10720000 900000 7.8 As per the remand report and the observation of the Ld.CIT(A) most

of them are assessed to income tax which was not disputed by the AO. The

loans were given by cheque and interest also was paid by cheque. The

Ld.CIT(A) has deleted the addition since the creditors have confirmed the

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transactions assessed to income tax, the payment was made by cheque and

interest was also received by cheque. Therefore, we are of the view that the

assessee discharged his burden and shifted to the department. The AO

could not shift the onus on the assessee. During the appeal hearing the

department could not place any material to controvert the finding given by

the Ld.CIT(A). Therefore, we do not see any reason to interfere with the

order of the Ld.CIT(A), accordingly we uphold the order of the Ld.CIT(A)

and dismiss the appeals of the revenue in the case of the said unsecured

creditors for the impugned assessment years.

7.9 In the following creditors, there was ambiguity with regard to the

name, the source and mismatch in the names and sources of funds

Sl. Loan amount in Assessment Years in Rs. No Name of the Loan . Creditors 2007-08 2008-09 2009-10 2010-11 2011-12 2012-13 1 Sri B Raghu 600000 0 0 0 0 0 2 N. Lakshmi 0 850000 0 0 0 0 3 Reddy Ramu, NRI 0 5000000 0 0 0 0 Sri R. Laxaman 4 Murthy 0 0 500000 0 0 0 5 N Satyanarayana 0 0 2000000 0 0 0 6 MBL Prasad 0 0 300000 200000 300000 200000 7 K Bhavani 0 0 130000 0 125000 200000 8 M Kishore Kumar 0 0 0 0 0 200000 Total 0 5850000 2930000 200000 425000 600000

MVL Prasad is wrongly named as MBL Prasad

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33 I.T.A. Nos.472-475/Viz/2017 and 481-486/Viz/2017 Sri Pusarla Subash, Visakhapatnam

order of the AO, there is no proper explanation for the source. The assessee did not establish the source with matching dates of investment. Hence, this case needs to be examined in detail. 8.3. R.Lakshmana Murthy. In this case, the creditor has retired in 2001- 02 and received the retirement benefits in the same financial year and claimed the same as source for the loans advanced to the assessee without proper cash flow. The AO required to examine the receipt of retirement benefits and its application with funds flow. The creditor required to match the source with the date of withdrawal and explain the same. The Ld.CIT(A) also opined that the source of deposit of cash needs to be properly examined in detail. 8.4. N.Satyanarayana. In the assessment order, the name was mentioned as N.Satyanarayana. The confirmation letter was given by Sri M.B.Venkata Rao. Therefore, the issue needs verification with regard to identity of the creditor, genuineness of the loan, sources of N.Satyanarayana or M.B.Venkata Rao both with the assessee as well as the creditor. 8.5. M.V.L.Prasad. There is mismatch in the name in the assessment order,the name was mentioned as M.B.L.Prasad, whereas in the appeal order the name was mentioned as M.V.L.Prasad. Therefore, the correct name of the creditor required to be established and credit worthiness of

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the creditor, source and genuineness required to be examined with reference to correct name. 8.6. Smt. K.Bhavani. Smt. K.Bhavani has advanced a sum of Rs.1,30,000/- in the A.Y. 2009-10 and Rs.1,25,000 in the A.Y. 2011-12. In both the cases, the creditor has explained the source as receipt of rent. In the first instance, the AO rejected the credit for mismatch of signature in the remand report. In the second instance for the A.Y. 2011-12, the AO rejected the claim for want of proof of source. The creditor is not assessed to tax and there is no evidence for receipt of rental income and the rental income is very meagre which is not even sufficient to meet the household expenditure. Therefore, the case needs to be re examined to establish the identity and proper source. 8.7. M.Kishore Kumar. In this case, there was immediate cash deposit of Rs. 2 lakhs on preceding day and on 12.03.2012, Rs.2 lakhs was given as loan to the assessee. The creditor is not an income tax assessee and not filing returns. During the previous year relevant to the impugned assessment year, his salary income was only Rs.11,000/- and thus there is no evidence of cash accumulation. Therefore, the AO required to examine the source in this case with accumulation of savings for advancing the amounts to the assessee.

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8.8. In all the above cases, identity, genuineness and credit worthiness of the creditors required to be verified with correct proofs. Therefore, in our considered opinion the issue needs to be remitted back to the file of the AO for further consideration. Therefore, we remit the matter back to the file of the AO to examine the sources, identity, credit worthiness and genuineness and decide the issue afresh on merits. Both the revenue as well as the assessee’s AR agreed for remitting the matter back to the file of the AO in above cases of creditors. Accordingly, the appeals of the revenue in the case of above creditors for all the assessment years are allowed for statistical purposes.

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31.10.2008 in the name of Dr.P.Visweswara Rao, father of the assessee. When this fact was confronted with the assessee, the assessee has taken different stand and tried to explain that he has taken unsecured loans from various other parties as shown in the books of accounts and the balance sheet. Since the assessee has given inconsistent replies and did not furnish the correct source for investment in the house property, the AO made the addition of Rs.31,38,000/-.

9.1. On appeal before the CIT(A), the CIT(A) observed that the amounts were paid from the books of accounts and surplus business receipts which is inclusive of the loan granted by ING Vysya Bank in favour of Dr.P.Visweswara Rao, father of the assessee. Therefore, the Ld.CIT(A) held that no addition is called for on this ground.

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evidence that the loan granted to Dr.P.Viswesrara Rao was utilized for purchase of house. The Ld.AR also could not place the sanction advise of bank loan to examine the purpose for which the loan was granted and its end utilization. Therefore, we are unable to accept the contention of the assessee that the said loan was utilized for acquiring the house property. Hence, we hold that the sources remained unexplained, accordingly, we set aside the order of the Ld.CIT(A) and confirm the addition made by the AO. Assessee’s appeals: 11. The common issue involved in assesee’s appeals for the A.Ys.2007-08, 2010-11, 2011-12 and 2012-13 is the unsecured loan accepted from Shri K.Harikishna. The assessee accepted the unsecured loans from Shri K.Harikrishna as follows:

Sl. No. Name of the Loan Creditors 2007-08 2010-11 2011-12 2012-13 4 Sri K Harikrishna 800000 300000 100000 200000

11.1. For the A.Y. 2007-08, the AO considered the loan of Rs.8 lakhs instead of Rs.4 lakhs and accordingly made the addition of Rs.8.00 lakhs. Assessee explained that there was a mistake in quantum of loan advanced by the creditor in the A.Y. 2007-08 and the correct amount was Rs.4.00 lakhs but not Rs.8.00 Lakhs. Hence, the assessee filed additional evidence which was admitted by the Ld.CIT(A) and called for the remand report. The AO in

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remand report dated 21.04.2014 accepted that the loan given by Sri K.Harikrishna for the A.Y.2007-08 was Rs.4 lakhs but not Rs.8 lakhs. The Ld.CIT(A) confirmed the addition of Rs.4 lakhs and held that there is no source to the creditor. The remaining amount of Rs.4 lakhs was deleted by the Ld.CIT(A).

11.2. The department filed appeal for deletion of addition of Rs.4 lakhs and the assessee filed cross appeal challenging the order of the Ld.CIT(A).

11.3. As discussed above, the actual amount advanced by Sri K.Harikrishna was Rs. 4 lakhs, but not Rs.8 lakhs which the AO has accepted in the remand report. Therefore, there is no justification for making addition of Rs.8.00 lakhs and the CIT(A) has rightly restricted the same to Rs.4 lakhs. Hence, we dismiss the appeal of the Revenue on this issue.

11.4. The assessee filed appeal before this Tribunal in its appeal No. 472/Viz/2017 against the order of the Ld.CIT(A). During the appeal hearing, the Ld.AR did not bring any fresh evidence to support the source of Rs.4 lakhs. Though assessee stated that he was having salary income, interest income and assessed to tax, the assessee could not furnish any evidence to support the sources for advances given to the assessee. As per the confirmation letter from Sri K.Harikrishna has given loan of Rs. 4 lakhs

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in the A.Y. 2007-08, Rs. 3 lakhs in the A.Y.2010-11, Rs.1 lakh in the A.Y. 2011-12 and Rs.2 lakhs in the A.Y. 2012-13. For a query from the Bench, the Ld.AR could not furnish any evidence with regard to his source of income and accumulation of savings to substantiate the advances given by the creditor to the assessee. In the absence of satisfactory explanation of the source, we are unable to accept the contention of the assessee that the loans are genuine. The assessee failed to provide satisfactory evidence to support the credit worthiness and genuineness of the loans, therefore, the addition made by the AO for the A.Y. 2007-08, 2010-11, 2011-12, 2012-13 in respect of unsecured loans accepted from Sri K.Harikrishna amounting to Rs.4 lakhs, Rs.3 lakhs, Rs.1 lakh, Rs.2 lakhs respectively are confirmed and the orders of the Ld.CIT(A) are sustained. The appeals of both the assessee and the revenue are dismissed.

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loan was not sanctioned to the assessee and sanctioned to Dr.P.Visweswara Rao, father of the assessee. The house property was owned jointly by the assessee with his wife K.Deepika and the property was sold by them during the year 2012. Since, there was no evidence to establish that the loan was utilized by the assessee for the purpose of construction of house or for acquiring the house, the AO disallowed the interest claim made by the assessee, thus rejected the claim of set off of loss under the head income from property. On appeal, the Ld.CIT(A) confirmed the addition in the A.Ys 2010-11 to 2012-13, Hence the appeal.

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2010-11,2011-12 and 2012-13 on set off of house property loss are dismissed. In the result, the appeals of the revenue are partly allowed and the appeals of the assessee are dismissed.

Order pronounced in the open court on 25th January, 2019.

Sd/- Sd/- (िी.दुगाा राि) (धड.एस. सुन्दर धसंह) (V. DURGA RAO) (D.S. SUNDER SINGH) न्याधयकसदस्य/JUDICIAL MEMBERलेखासदस्य/ACCOUNTANT MEMBER नवशधखधपटणम /Visakhapatnam नििधंक /Dated :25.01.2019 L.Rama, SPS आिेश की प्रनतनलनप अग्रेनर्त/Copy of the order forwarded to:- 1. निर्धाऩरती / The Assessee –Pusarla Subhash, Prop.Sagar Durga Developers Door No.15-13-6, Krishnanagar, Maharanipeta, Visakhapatnam 2. रधजस्व / The Revenue–(i) Addl.CIT, Range-, Visakhapatnam (ii)Asst.CIT Circle-1(1), Visakhapatnam (iii) Income Tax Officer, Ward-1(4), Visakhapatnam 3. The Pr.Commissioner of Income Tax-1,Visakhapatnam 4. The Commissioner of Income Tax-(Appeals)-2, Guntur 5. नवभधगीय प्रनतनिनर्, आयकर अपीलीय अनर्करण, नवशधखधपटणम /DR, ITAT,Visakhapatnam 6. गधर्ाफ़धईल / Guard file

आिेशधिुसधर / BY ORDER // True Copy //

Sr. Private Secretary ITAT, VISAKHAPATNAM