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आदेश/Order
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the assessee against the order dated 20.09.2012 of the Commissioner of Income Tax (Appeals)-1, Ludhiana [hereinafter referred to as ‘CIT (A)’]
The brief facts of the case are that the assessee company is involved in the real estate business. A search action u/s 132 of the Income Tax Act, 1961 (in short 'the Act') was carried out at the premises of one Shri R.M.Singla in Ludhiana on 7.5.2008, who was having
ITA No. 1228-Chd-2012- M/s Motia Construction Ltd, Zirakpur 2 business relation with the then Director of the Company Shri Pawan
Bansal. During search action, cash worth Rs. 62,75,000/- was found at
his premises. Apart from that, certain incriminating documents
evidencing unaccounted transactions of Assessee Company in respect of
difference in construction / sale of flats were also found. The statement
of Shri R.M. Singla was recorded during the search action and in his
statement recorded on 7.5.2008, he stated that out of the cash found at
his premises, Rs. 40 lacs belonged to the assessee company. Summons
were also issued u/s 131 of the Act to Shri Pawan Bansal, the then
director of the assessee company, whose statement was also recorded on
10.5.2008, wherein, he confirmed that cash of Rs. 40 lacs found at the
premises of Shri R.M. Singla belonged to the assessee company. When
confronted with other documents found, Shri Pawan Bansal, surrendered
a sum of Rs. 150 lacs as additional income of the company which
included cash of Rs. 40 lacs owned up by Shri Pawan Bansal on behalf
of the assessee company. Therefore, total surrender by Shri Pawan
Bansal, on behalf of the assessee was at Rs. 150 lacs i.e. Rs. 40 lacs
found cash with Shri R.M. Singla plus Rs. 110 lacs on account of
unexplained transactions relating to the construction and sale of flats.
Thereafter, a search action was carried out at the premises of the
assessee company also on 25.2.2009 during which the assessee
company again surrendered the additional sum of Rs. 85 lacs on account
of difference in sale and construction of flats. Thereafter, the assessee
ITA No. 1228-Chd-2012- M/s Motia Construction Ltd, Zirakpur 3 company filed return of income for the assessment year under
consideration and disclosed the surrendered amount at Rs. 1.95 crores
instead of total surrender of Rs. 2.35 crores. The assessee company did
not add amount of Rs. 40 lacs which was found at the premises of Shri
R.M. Singha but owned by the assessee company through its director.
The assessee company further claimed deduction u/s 80IB in respect of
the surrendered income of Rs. 1.95 crores reflected in the Profit & Loss
account.
On being asked to explain by the Assessing Officer in this respect,
the assessee explained that the cash given to Shri R.M. Singla was out
of the cash available in the books of the company. That the assessee
never changed its stand that the cash of Rs. 40 lacs was given to Shri
R.M.Singla by the assessee company, however, the same was
inadvertently surrendered as unaccounted, whereas, the same was duly
accounted for in the account books of the company. In respect of the
claim of deduction u/s 80IB of the Act, it was submitted that the
surrendered income represented the business income of the assessee.
That since the assessee was involved in housing development business
and the said income was derived from business of developing housing
project, hence, the assessee was entitled to claim deduction u/s 80IB(1)
of the Act on the said surrendered income. The Assessing Officer,
however, did not agree with the aforesaid contention raised by the
ITA No. 1228-Chd-2012- M/s Motia Construction Ltd, Zirakpur 4 assessee. The Assessing Officer observed that the director of the
assessee in his statement had admitted that the aforesaid amount for Rs.
40 lacs found from the premises of Shri R.M. Singla, was unaccounted
income of the assessee company. Further, in respect of claim of
deduction u/s 80IB, the Assessing Officer rejected the contention of
the assessee on the ground that unless the assessee establishes a clear
link between unaccounted income and its housing project, the same
would not be eligible for deduction u/s 80IB of the Act.
Being aggrieved by the above order of the Assessing Officer, the
assessee preferred appeal before the CIT(A), however, the CIT(A)
dismissed the appeal of the assessee by upholding the findings of the
Assessing Officer. The assessee, thus, has come in appeal before us,
with the following grounds of appeal:-
a) That the Ld. CIT (A) is not justified in confirming addition of Rs. 40 Lacs under the facts & circumstances of the case.
b) That the Ld. CIT (A) is not justified in not accepting the book results in which entries of such cash of Rs. 40 lacss was duly recorded.
c) Without prejudice to above, (i) The appellant disputes the quantum of addition.
(ii) That the Ld. CIT (A) is not justified in not allowing the deduction u/s. 80-IB (10) on addition of Rs. 40 Lacs being eligible for deduction.
ITA No. 1228-Chd-2012- M/s Motia Construction Ltd, Zirakpur 5 2. a) That the Ld. CIT (A) is not justified in confirming the disallowance of deduction u/s. 80-IB (10) on the surrendered amount of Rs. 195 Lacs.
b) That the Id. CIT (A) is not justified in not treating the surrendered amount of Rs. 195 Lacs as income from Housing Project being eligible for deduction u/s. 80-IB (1) .
c) Without prejudice to above, the appellant disputes the quantum of deduction u/s. 80-IB (10).
That the appellant craves leave for any addition, deletion or amendment in the grounds of appeal on or before the disposal of the same.
We have heard the rival contentions of the Ld. Authorized
Representatives of both the parties and have gone through the record.
Ground No.1: 6. Vide this ground, the assessee has contested the
addition of Rs. 40 lacs which was found in cash from the premises of
one Shri R.M. Singla and further owned up by the assessee company
through its director. The Ld. Counsel for the assessee in this respect
has invited our attention to page 10 of the paper book which is copy of
the reply filed to the Assessing Officer during the assessment
proceedings. In para 2 of the said reply, it has been stated that after
search, the assessee company reconciled the amount of cash found with
Shri R.M. Singla and noted that the said amount was duly recorded as
an ‘imprest’ given to Shri Pawan Bansal, the then Managing Director of
the company in the books of account of the company and the surrender
ITA No. 1228-Chd-2012- M/s Motia Construction Ltd, Zirakpur 6 of Rs. 40 lacs was wrongly made as the same was duly verifiable and
explainable. The Ld. counsel in this respect has submitted that the said
amount of Rs. 40 lacs was further given by Shri Pawan Bansal to Shri
R.M. Singhla for purchase of the property. That there was no
discrepancy between the statements of Shri R.M.Singla and Shri Pawan
Bansal recorded during the course of search and investigation
proceedings. During the course of search of proceedings on 7.5.2008,
Shri R.M. Singla stated that cash of Rs. 40 lacs belonged to the assessee
company which was given to him by Shri Pawan Bansal. When Shri
Pawan Bansal was confronted, he duly admitted that he had paid Rs. 40
lacs to Shri R.M. Singla, on behalf the company. However, Shri Pawan
Bansal surrendered the said amount as ‘unexplained income’ but later on
when the accounts were reconciled, it was found that the said amount of
cash was duly recorded in the books of account of the company and
shown to be paid to Shri Pawan Bansal and had never been used for
other purposes. However, the same has not been received back till date
as the same was seized by the Department. It, has therefore, been
submitted that only because during the statement of Shri Pawan Bansal,
he inadvertently under the wrong impression without consulting the
accounts had offered the said amount addition income of the assessee,
however, the source of the said amount had been duly explained by the
assessee company from its books of account / cash book.
ITA No. 1228-Chd-2012- M/s Motia Construction Ltd, Zirakpur 7 7. The Ld. DR on the other hand, has submitted that there is no
allegation that the statement of Shri Pawan Bansal recorded in the
course of post survey action / proceedings was recorded under any
threat or coercion. That he himself had surrendered the said amount as
‘unaccounted income’ of the company. He therefore, has relied upon the
findings of the lower authorities.
We have heard the rival contentions and gone through the record
In this case, there is no discrepancy or contradiction in the statement of
Shri R.M. Singla and Shri Pawan Bansal, the then Managing Director of
the company. Shri R.M.Singla during the search action stated that
amount for Rs. 40 lacs belonged to the assessee company which was
promptly confirmed by Shri Pawan Bansal that the said amount belonged
to the assessee company. However, when the accounts of the company
were consulted, it was found that the said amount of cash was duly
recorded as an ‘imprest’ given to Shri Pawan Bansal which was further
handed over by Shri Pawan Bansal to Shri R.M.Singla. Search action
later on was also conducted at the premises of the assessee company
and no other cash was found during the course of search action. There
is no evidence that the cash amount of Rs. 40 lacs given as an ‘imprest’
to Shri Pawan Bansal has been used for some other purposes. Shri
Pawan Bansal on the date of search, during the search action at the
premises of Shri R.M.Singla promptly admitted that the cash of Rs. 40
ITA No. 1228-Chd-2012- M/s Motia Construction Ltd, Zirakpur 8 lacs has been given by him to Shri R.M. Singla on behalf of the assessee
company. All the facts relating to the aforesaid cash of Rs. 40 lacs have
been duly explained and further the explanation given by the assessee in
this respect inspires confidence as neither there is any difference in
respect of the amount in question nor in respect of the source of the
same. The books of account of the assessee are dully audited by the
auditor and no defect has been found in the same by the Revenue
authorities.
In view of this, the assessee rightly did not offer the said amount
of Rs. 40 lacs as its additional income. The addition made / confirmed
by the lower authorities in respect of the aforesaid amount, therefore, is
not sustainable in the eyes of law and the same is accordingly ordered to
be deleted.
Ground No.2: In this ground, the assessee has agitated the
action of the lower authorities in not allowing deduction u/s 80IB (10)
of the Act in respect of the surrendered amount of Rs. 195 lacs . It is
undisputed fact that the surrendered amount of Rs. 195 lacs was not on
account of any cash or other valuable article or thing found at the
premises of the assessee company, rather, the said surrendered was
made on account of certain documents found showing unaccounted
construction / sales of flats. It has also not been disputed that the
assessee has been constructing a housing project which was eligible for
ITA No. 1228-Chd-2012- M/s Motia Construction Ltd, Zirakpur 9 deduction u/s 80IB of the Act. The documents found during search
action clearly revealed that the same related to the business activity /
business profits of the assessee company. There is no evidence to link
the aforesaid surrender with any other income from any other source of
the assessee, as the nature of the income / surrender is duly revealed
from the documents found and seized during the search action. The Ld.
counsel for the assessee has also invited our attention to the page 6 of
the paper book, which is a letter of surrender, wherein, it has been
clearly stated that Rs. 85 lacs have been surrendered to cover up
discrepancy found during the course of search including the difference
in sale of flats / construction.
The facts on the file itself speaks that the aforesaid surrender was
out of the unexplained profits of the assessee company from its housing
projects. There is no allegation that the said income is belonging to any
other project or activity of the assessee. The discrepancy, if any, found
was in respect of the accounts of the housing project of the assessee
because of which the aforesaid surrender was made. Hence, the said
income can safely be said to be belonged to the housing project business
of the assessee. Having held so, the assessee is accordingly eligible
to claim exemption u/s 80IB of the Act on the said income. We,
therefore, do not find any justification on the part of the lower
authorities for denying deduction of the assessee in respect of the
aforesaid income. The impugned order of the CIT(A) on this issue is set
ITA No. 1228-Chd-2012- M/s Motia Construction Ltd, Zirakpur 10 aside and the Assessing Officer is accordingly directed to allow deduction u/s 80IB of the Act to the assessee on the aforesaid amount of
Rs. 195 lacs.
Ground No.3 : Ground No.3 is general in nature and does not require any specific adjudication. In view of our discussion made above, the appeal of the assessee stands allowed. Order pronounced in the Open Court on 27.12.2019.
Sd/- Sd/- (अ�नपूणा� गु�ता / ANNAPURNA GUPTA) (संजय गग� / SANJAY GARG) लेखा सद�य/ Accountant Member �या�यक सद�य/ Judicial Member Dated : 27.12.2019 “आर.के.”
आदेशक���त�ल�पअ�े�षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकरआयु�त/ CIT 4. आयकरआयु�त (अपील)/ The CIT(A) 5. �वभागीय��त�न�ध, आयकरअपील�यआ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड�फाईल/ Guard File
आदेशानुसार/ By order, सहायकपंजीकार/ Assistant Registrar