S.J.DEVELOPERS & HOUSING PVT. LTD.,BHUBANESWAR vs. ACIT, CORPORATE CIRCLE-1(2), BHUBANESWAR

per square feet. Rather, the documents found during the course of

survey have more precedence with more evidential value. The assessee

has admitted the undisclosed on this account as apparent as apparent

and offered to file the revised return disclosing such income. In view of

above, the Assessing Officer added the balance income of Rs.25,04,095/-

(Rs.4,71,532 – Rs.69,67,437/-) to the total income of the assessee.

expenses of Rs.36,27,893/- claimed in the profit and loss account. The

assessee filed supporting evidences in share of vouchers and registers.

The Assessing Officer observed that the vouchers produced are self made

and not fully verifiable and cash payments were made in most of the

case. In view of above, the Assessing Officer disallowed 10% of total

expenses of Rs.36,27,893/- and added Rs.3,62,790/- to the income of the

assessee.

submission, it was stated as under:

i) The statement given during the survey was a provisional and not the final. ii) The director of the assessee company was not aware of the accounts and made the statement out of pressure. iii) The commission was not declared as income as Asiana Homes Pvt Ltd., did not confirm the amount. However, statement was made to furnish detailed calculation on 23.11.2012 after consultation with Asiana Homes Pvt Ltd.

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iv) The AO has not found any mistake or non-disclosure of income by the assessee. v) Although during the survey, it was submitted to file the revised return, but later on it was not found that commission income should be increased and, therefore, the original income filed was correct. vi) Several judicial pronouncements on this issue was referred by the assessee. 7. The CIT(A) confirmed the action of the Assessing by observing as

under:

“2,2 I have considered the matter and perused the materials on record. It is a fact that in the course of survey proceeding, a sheet of paper was found in the business premises of the assessee wherein the amount of commission due to the assessee from the joint developer M/s. Asiana Homes (P).Ltd. was calculated at Rs.94,71,532/- as on 26.12.2011. Based on this calculation, the assessee, in the course of survey admitted that the commission due from M/s. Asiana Homes (P) Ltd. which had not been disclosed as income in the return already filed would be disclosed after checking up of the facts and figures and a revised return would be filed. Accordingly, a revised return was filed after the survey but the amount of commission shown in that return stood at Rs.69,67,437/- only. In the course of assessment proceeding, the assessee filed a calculation sheet before the AO and claimed that the calculation of commission at Rs.94,71,532/- in the sheet of paper found at the time of survey was not correct and the correct calculation would be Rs.69,67,437/-, However, no satisfactory evidence was filed before the AO in support of the calculation of commission at Rs.69,67,437/-. In the course of appeal hearing, the same calculation sheet has been filed and it is contended that the calculation has been made correctly. However, in absence of any supporting evidence, the calculation so made cannot be accepted as correct and authentic. No confirmation from the joint developer M/s. Asiana Homes (P) Ltd. has been filed either before the AO or before the undersigned to show that the commission due to the assessee for the previous year 2011-12 is actually Rs.69,67,437/-. In view of this, the action of the AO to consider the amount of commission at Rs.94,71,532/- cannot be questioned. Hence, the addition of Rs.25,04,095/-on account of commission is confirmed.”

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conducted by the revenue on 20.11.2012, a statement was found

regarding the provision for commission income computed at Rs.94,71,532

as on 26.12.2011. It was stated that it is a provision and not a final one.

This statement was given by the Director of the assessee, who is fully

unware f the accounts to disclose such higher commission under pressure.

However, the Director promised to furnish the detailed calculation on

23.11.2012 after consultation with Asiana Homes Pvt. Ltd. Ld A.R.

submitted that the assessee had admitted increased commission income

but at the time of filing revised return based on the survey does not finds

that the commission income should be increased and the amount of

commission income filed at the time of original was correct. Ld A.R. relied

on the decision of Mumbai Benches of the Tribunal in the case o DCIT s.

Samta Marine Kakinada, 18 SOT 135 (Mum), wherein, it was held that in

the absence of any material on record that the expenditure was false, no

addition could be made merely on the basis of disclosure made during

survey. He also stated that same view has been taken by the Delhi

Benches of the Tribunal in the case of ACIT vs Smt. Usha Rani

Talla,(2010) 6 ITR (Trib) 37(el). Ld A.R. also relied on the decision of

Hon’ble Madras High Court in the case of CIT vs. S.Khader Khan Son

(2008) 300 ITR 157 (Mad), wherein, it was held that statement taken

during the survey u/s.133A has no evidentiary value as section 133A does

not empower the Assessing Officer to administer oath and take a sworn

6 ITA No . 417/CT K/ 2016 Asse ssment Year : 20 12- 13

statement. He, therefore, prayed that since the Director of the assessee

company had stated to file the revised return with enhanced income on

commission but later on it was found that there was no enhanced

commission income, therefore, it was stated that no enhanced

commission should be shown.

authorities and materials available on record. In the instant case, during

the course of survey operation, a sheet of paper was found in the

business premises of the assessee wherein the amount of commission due

to the assessee from the joint developer M/s. Asiana Homes (P).Ltd. was

calculated at Rs.94,71,532/- as on 26.12.2011. Based on this calculation,

the Director of the assessee, in the course of survey admitted that the

commission due from M/s. Asiana Homes (P) Ltd. which had not been

disclosed as income in the return already filed would be disclosed after

checking up of the facts and figures and a revised return would be filed. It

is the contention of ld A.R. that the Director of the assessee company

was not aware of the financial transactions of the assessee but under

duress stated that if there is any enhanced commission income, a revised

return would be filed after the survey. But later on when it was found

there was no enhanced commission income, in the revised return it was

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stated that the amount of commission shown in that return stood at

Rs.69,67,437/- only. In the course of assessment proceeding, the

assessee filed a calculation sheet before the AO and claimed that the

calculation of commission at Rs.94,71,532/- in the sheet of paper found

at the time of survey was not correct and the correct calculation would be

Rs.69,67,437/-. We find that the CIT(A) in his order has stated that no

confirmation from the joint developer M/s. Asiana Homes (P) Ltd. has

been filed either before the AO or before him to show that the commission

due to the assessee for the previous year 2011-12 is actually

Rs.69,67,437/-. We also find force in the submission of ld A.R. of the

assessee based on judicial decisions that statement taken during survey

u/s.133A has no evidentiary value as section 133A does not empower the

Assessing Officer to administer oath. We find that if the assessee has

adhered to his first disclosed amount of Rs.69,67,437/-, it was the duty of

the department to call M/s. Asiana Homes (P) Ltd., to confirm the

commission. In view of above, in order to render substantial justice to

the assessee, we set aside the order of the CIT(A) and remit the matter

back to the file of the Assessing Officer to confirm from the joint

developer M/s. Asiana Homes (P) Ltd. regarding actual commission

payment and pass a fresh assessment order as per law after affording

reasonable opportunity of hearing to the assessee.

Assessing Officer, the other ground regarding disallowance of expenses

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paid of Rs.1,81,395/- is also restored to the file of the Assessing Officer

for fresh adjudication.

purposes.

Order pronounced on 28 /02/2018. SD/- SD/- (N.S Saini) (Pavan Kumar Gadale) ACCOUNTANT MEMBER JUDICIALMEMBER Cuttack; Dated 28 /02/2018 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : SJ Developers & Housing Pvt Ltd., Plot No.A/103, Miknik Mall, Rajdhani Gas Building Opp. ISCON Tmple, Bhubaneswar 2. The Respondent. ACIT, Corporate Circle 1(2), Bhubaneswar 3. The CIT(A)-1, Bhubaneswar BY ORDER, 4. Pr.CIT-1, Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. SR.PRIVATE SECRETARY //True Copy// ITAT, Cuttack