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Income Tax Appellate Tribunal, MUMBAI BENCH “H”, MUMBAI
Before: SHRI RAJESH KUMAR & SHRI RAVISH SOOD
Per Rajesh Kumar, Accountant Member:
The above titled cross appeals by the assessee and the Revenue have been preferred against the order dated 25.07.2019 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2010-11.
2 & 6043/M/2019 & ors. M/s. Silver Arch Builders Since the appeals relate to the same assessee and involve common issues, therefore, these have been decided together by this consolidated order for the sake of brevity. ITA No.6298/M/2019 (Revenue’s appeal) 2. The grounds are reproduced as under: “1. The Ld. CIT(A) failed to appreciate that the transactions recorded in the seized documents have not been explained by the assessee at the time of assessment proceedings.
The Ld. CIT(A) failed to appreciate that statements recorded from the persons associated with the group, mainly Mr. Haresh Mohanlal Mehta, one of the director stated that the assessee company has been indulged in accepting the cash payment @ 30% over & above the agreement value, which works out to be Rs.2,96,10,000/-.
The Ld. CIT(A) failed to appreciate that the statements recorded from the sales persons suggested receipt of cash by the assessee company over & above the agreement value.
The Ld. CIT(A) erred in admitting the additional evidences furnished by the assessee during the appellate proceedings as assessee failed to demonstrate the reasons &/circumstances which prevented it to furnish these evidences before the AO.
The Ld. CIT(A) ignored the findings of the AO in his remand report regarding the creditworthiness of the loanee & genuineness of the loan transactions and restricted the addition to the extent of Rs.5,00,000/-.”
(Assessee’S Appeal) 3. The grounds are reproduced as under: “1. On the facts and in the circumstances of the appellant's case and in law the Ld. CIT(A) erred in confirming the addition of Rs. 5,00,000/- out of the total addition of Rs. 60,00,000/- made by the AO by invoking the provisions of section 68 of the Act.
2. The appellant craves leave to add to, alter, amend and /or delete all or any of the foregoing grounds 3. The appellant prays before the Hon'ble Tribunal to delete the addition made by the AO to the extent confirmed by the Ld. CIT(A).”
4. The issue raised in ground nos.1 to 3 is against the deletion of addition of Rs.2,96,10,000/- by Ld. CIT(A) as made by the AO on account of on-money received @ 30% over and above the agreement value.
3 & 6043/M/2019 & ors. M/s. Silver Arch Builders 5. The facts in brief are that a Search and Seizure action u/s 132 of the Income Tax Act, 1961 was carried out on 26.05.2011 by the DDIT(Inv),Unit -III(3), Mumbai at the business premises of M/s Rohan Developers Pvt. Ltd. and other group companies / entities promoted by Shri Harresh N. Mehta and Late Shri Jitendra N. Mehta along with the residential premises of the Directors, Associates and employees of the companies, etc. All these entities are commonly hereinafter referred to as “Rohan Group”. The "Rohan Group", headed by the then Shri Jitendra Mehta and is mainly engaged in construction of residential / office premises and redevelopment of old & dilapidated buildings. Apart from M/s Rohan Developers Pvt. Ltd., other main concerns of the group are M/s Goodwill Properties Pvt. Ltd., M/s Silver Arch Builders & Promoters Pvt. Ltd., M/s. Satara Builders Pvt. Ltd. and M/s. Mindset Estate Pvt. Ltd. etc. The main person of the group particularly in the case of Rohan Developers as on the date of search was Late Shri Jitendra N. Mehta. During the course of search, the search team seized various documents including page no 114 of annexure A-1 found and seized from 112-122, Hira Bhavan, Raja Ram Mohan Roy Road. According to the Ld. AO the various of employees of the assessee including sales executive of the company had admitted during the course of statement recorded under section 132(4) of the Act that part of the sales price was taken by cheque and part in cash. During the course of search, the statement of Ms. Chaulla Joshi (Ex. Sales Executive), Shri Vijay Jasani (Office Assistant), Shri Paresh Panchlotiya (Office Assistant) and Shri Harresh Mehta (Director) were recorded wherein they admitted that part of the sales consideration of 4 & 6043/M/2019 & ors. M/s. Silver Arch Builders flats/office premises to the tune of 30% are being received by Rohan Group of companies in cash. The search team also recorded the statement of Late Shri Jitendra Mehta who in a statement recorded u/s 132(4) on 22.07.2011 rebutted the allegation of receiving of any on-money on sale of flats/office premises and also stated that no reliance can be placed on the statements of Ms. Chaulla Joshi (Ex. Sales Executive), Shri Vijay Jasani (Office Assistant), Shri Paresh Panchlotiya (Office Assistant) and Shri Harresh Mehta (Director) as none of these persons are connected with any sales related matter. During the course of assessment proceeding, the statements given during search were retracted by filing retraction affidavits of Shri Harresh Mehta, Ms. Chaulla Joshi, Shri Vijay Jasani and Shri Paresh Panchlotiya. The AO, however, without re-examining the persons /deponents viz; Shri Harresh Mehta, Ms. Chaulla Joshi, Shri Vijay Jasani and Shri Paresh Panchlotiya and by relying heavily on their original statements recorded u/s 132(4) of the Act and on the basis of Pg. No 114 of Annexure A-1, held that Rohan Group of companies received 30% on-money on sale of flats/office premises and accordingly, the AO has made addition in respect of alleged on-money @ 30% of reported sales in all the companies of the group. Likewise the AO issued show cause notice to the respondent-assessee as to why the addition on account of on money equal to 30% of reported sales should not be made which was replied by the assessee by submitting that the seized documents do not mention anything about on money on the projects undertaken by the assessee. However, the AO, rejecting the contention of the assessee and on the basis of statements recorded during search of various persons, added a
The Ld. CIT(A) deleted the addition as made by the AO on account of on money on the ground that neither the assessee’s name nor the name of the projects done by the assessee is on page No.140 of Annexure A-1 on the basis of which the addition was made by the AO. While deleting the addition Ld. CIT(A) relied on the decision of a sister concern in the case of Goodwill Properties Pvt. Ltd. in & 4026/M/2016 A.Y. 2008- 09 & 2009-10. Similarly, the Ld. CIT(A) relied on the decision of co-ordinate Bench of the Tribunal in assessee’s own case in ITA No.3162 & 3163/M/2016 A.Y. 2007-08 & 2008-09 which has been reproduced by the Ld. CIT(A) in para 19.21 of the appellate order. While deleting the addition Ld. CIT(A) also referred to the decision of other group concerns in ITA No.4030/M/2016, DCIT vs. M/s. Sitara Building Pvt. Ltd. A.Y. 2010-11, DCIT vs. Peccadally Estate Pvt. Ltd. for A.Y. 2011-12, DCIT vs. Mindset Estate Pvt. Ltd. A.Y. 2011-12.
After hearing the rival submissions of both the parties and perusing the material on record, we find that the issue is squarely covered by the decision of the co-ordinate Bench of the Tribunal in assessee’s own case and also in the case of other related group concerns, the operative part of the decision in & 3163/M/2016 (supra) is extracted as under: “5.We have perused the available material. We find that the FAA has given a categorical finding of fact that no incriminating material was found during the 6 & 6043/M/2019 & ors. M/s. Silver Arch Builders search and seizure operation that could justify the addition made by the AO. She has analysed the page number 114 that was seized by the authorised party carrying out the search proceedings. It is very clear that neither the name of the assessee nor the name of the project is appearing in the paper. The assessee had objected before the AO that the statements of the employees were not given to it. We do not know as to whether same were made available to the assessee or not. The statements of the employees, in search and seizure cases, can be used if they are supported by some kind of collaborative evidence. On a specific query by the bench to the DR about supporting evidence proving the receipt of alleged on money,she could not refer to any material. As the assessment for the AY. 2007-08 was not pending, so, without some incriminating material the AO should not have made the addition to the total income of the assessee.The FAA had taken notice of the order of the special bench and dismissal of the Departmental appeal by the Hon’ble Bombay High Court and had decided the issue.In our opinion, her order does not suffer from any legal or factual infirmity. So, confirming the same, we decide effective ground of appeal (GOA-1&2) against the AO.”
8. In the case of sister concern the co-ordinate Bench in A.Y. 2008-09 & ors. has decided the similar issue in the case of DCIT vs. M/s. Goodwill Properties Ltd. vide order dated 01.03.2019 in favour of the assessee by following the decision of the co-ordinate Bench passed in the case of present assessee as stated hereinabove. The operative part is as under: “15. We have also perused the order of the Coordinate Bench of ITAT, wherein the identical ground has already been decided by the Coordinate Bench of ITAT in the case of group concern in ITA No. 3126 & 3163/Mum/16 in the case of DCIT Vrs. Silver Arch Builders & Promoters. The operative portion of the order of Hon’ble ITAT contained in para no. 2 to 5, which is reproduced below:-
2.The brief facts of the case are that Rohan group of entities along with directors, family members and related parties were subject to search and seizure operations u/s. 132 of the Act on 26/05/2011,that the assessees was also associated with the said group. Subsequent to the search a notice u/s. 153A was issued to the assessee on 11/01/2013.It filed a return on 04/03/2013, declaring income at Rs. 36.65 lakhs. During the assessment proceedings, the AO found that the assessee had undertaken the construction of a commercial project Rameswaram.During the search proceedings statements of Haresh Mohanlal Mehta(HMM), one of the directors of the Rohan group,were recorded,who admitted that that 30% on money was accepted over and above the receipt value of the agreement and the same was not recorded in the regular books of accounts.The AO also took note of the statements of sales and marketing executive, accountant of the group and of the liason officer for the proposition that on 7 & 6043/M/2019 & ors. M/s. Silver Arch Builders money was collected on sale transactions and accordingly asked the assessee to explain as to why such addition should not be made in its hand.
The assessee filed its reply stating that none of the individuals, whose the statements were relied upon by the AO, was in any way authorised to close sales transactions,that the copies of the said statement had not been provided to the assessee,that HMM was director in the one of the concerns of Rohan group, that he was not concerned with the sales, that he was not looking after day-to-day activities of the assessee, that no salesperson or other staff of the company was reporting to HMM, that he independently owned a construction company, that there was no nexus between the project of the assessee and the independent project carried out by HMM, that the declaration made by HMM u/s. 132 (4) could not be taken to relates the projects of the assessee.
After considering the submission of the assessee and taking note of the cash and jewellery found at the office premises, the AO made an addition of Rs. 36.71 lakhs under the head on money received during the year under consideration.
3.Aggrieved by the order of the AO, the assessee preferred an appeal before the First Appellate Authority(FAA).Before her, the assessee challenged the validity of the order passed u/s. 153A of the Act and relied upon certain case laws.After considering the elaborate submissions of the assessee,the FAA held that original return u/s. 139 of the Act on 2/7/2007, that search was carried out in the case of Rohan group on 26/05/2011, that the time limit for issue of notice u/s. 143(2) for the year under consideration expired on 31/03/2008,that there was no proceedings pending in the case of the assessee,that it was not a case where assessment proceedings were pending and had abated.She referred to the case of All Cargo Global Logistics Ltd. of the special bench of the Tribunal and held that in cases where there had not been any abatement of assessment the assessment u/s. 153A of the Act would be made on the basis of incriminating material found in the course of search, that the order of the special bench of the Tribunal were challenged by the Department before the jurisdictional High Court, that the Hon’ble Bombay High Court had dismissed the appeal filed by the revenue and had upheld the order of the tribunal. She further observed that the case of the assessee for the year under consideration was not a pending or abated assessment, that in case of non-abated assessments addition had to based on incriminating material seized during the search, that the only document referred to in the impugned order was page 114 of annexure A-1 and the statements of HMM along with the statements of employees, that the perusal of the seized paper revealed that there was no mention of the assessee or the project undertaken by it on the said paper, that the above referred paper did not make any mention of the assessee, that the perusal of the statements of the employees reflected that no specific mention of receipt of on money, that the impugned assessment was not based on any incriminating material pertaining to the assessee
8 & 6043/M/2019 & ors. M/s. Silver Arch Builders seized during the search, that the addition made on account of on money was not emanating from the material found and seized during the search action. Finally, she deleted the addition made by the AO.
4.During the course of hearing before us, the Departmental Representative stated that the employees of the assessee had accepted the fact that on money at the rate of 30% of the registered value was accepted by the company.As stated earlier, none appeared on behalf of the assessee.
5.We have perused the available material. We find that the FAA has given a categorical finding of fact that no incriminating material was found during the search and seizure operation that could justify the addition made by the AO. She has analysed the page number 114 that was seized by the authorised party carrying out the search proceedings. It is very clear that neither the name of the assessee nor the name of the project is appearing in the paper. The assessee had objected before the AO that the statements of the employees were not given to it. We do not know as to whether same were made available to the assessee or not. The statements of the employees, in search and seizure cases, can be used if they are supported by some kind of collaborative evidence. On a specific query by the bench to the DR about supporting evidence proving the receipt of alleged on money,she could not refer to any material. As the assessment for the AY. 2007-08 was not pending, so, without some incriminating material the AO should not have made the addition to the total income of the assessee.The FAA had taken notice of the order of the special bench and dismissal of the Departmental appeal by the Hon’ble Bombay High Court and had decided the issue.In our opinion, her order does not suffer from any legal or factual infirmity. So, confirming the same, we decide effective ground of appeal (GOA-1&2) against the AO.
16. After having gone through the facts of the present case and also perusing the orders of the Coordinate Bench of ITAT in the case of group concern with regard to the same search, we are also of the view that the statements of the employees, in search and seizure cases, can be used only if they are supported by some kind of collaborative evidence. However, Ld. DR could not point out the evidence proving the receipt of alleged on money. As the assessment for the AY. 2008-09 was not pending, so, without some incriminating material, the AO should not have made the addition to the total income of the assessee. That the order of Ld. CIT(A) does not suffer from any legal or factual infirmity. Moreover, taking into consideration, the decision of the Coordinate Bench of ITAT in the case of group concern and also in order to maintain judicial consistency, we apply the same findings in the present case which are applicable mutatis mutandis. Resultantly this ground raised by the revenue stands dismissed.”
9. Since the facts of the instant case before us are similar to one as decided by the co-ordinate Benches of the Tribunal in 9 & 6043/M/2019 & ors. M/s. Silver Arch Builders assessee’s own case in A.Y. 2008-09 as well as in the related companies as stated hereinabove, we, therefore respectfully following the same dismiss the ground Nos.1 to 3 of Revenues’ appeal.
10. The issue raised in ground Nos.4 & 5 is against the deletion of Rs.55,00,000/- by Ld. CIT(A) as made by the AO under section 68 in respect of unsecured loans of Rs.55,00,000/-. The assessee has also challenged the part sustaining of addition by Ld. CIT(A) to the extent of Rs.5,00,000/- in its cross appeal.
The facts in brief are that during the course of assessment proceedings the AO called upon the assessee to furnish the loan confirmations from 8 parties from whom the assessee has raised loans during the year besides other evidences to prove the identity , creditworthiness of the lenders and genuineness of the transactions the details whereof are as under: Sr. Name Amount 1. Mahendra Nagindas Shah 10,00,000/- 2. Manilal N. Haria 10,00,000/- 3. Nagindas Devidas Shah 6,00,000/- 4. Panny Traders 5,00,000/- 5. R. Shrenik Kumar & Co. 10,00,000/- 6. R. Mahavir Plastic Industries 5,00,000/- 7. Sushma Vimal Shah 9,00,000/- 8. V.J. Shah & Co. 5,00,000/- Total 60,00,000/-
The AO added the same to the income of the assessee under section 68 as unexplained cash credit on the ground that assessee has failed to prove the identity, genuineness and creditworthiness of the lenders.
10 & 6043/M/2019 & ors. M/s. Silver Arch Builders 13. In the appellate proceedings, the assessee has furnished additional evidences before the Ld. CIT(A) comprising loan confirmations, ITRs, bank statements, balance sheets of the lenders in order to prove the identity, genuineness of the transactions and creditworthiness of the lenders. In respect of which 7 parties from whom the loans aggregating to Rs.55,00,000/- were raised during the year, the Ld. CIT(A) admitted the additional evidences and called for a remand report from the AO on such additional evidences. The AO filed the remand report with Ld. CIT(A) and thus Ld. CIT(A) deleted the addition to the tune of Rs.55,00,000/- in respect of the 7 parties whereas the addition of Rs.5,00,000/- qua the loan raised from V.J. Shah & Co. was confirmed as the assessee did not file any documents in respect of said party.
After hearing the rival contentions of both the parties and perusing the material on record, we find that in this case though the assessee has not filed any evidence before the AO, however, all these evidences comprising names and addresses, loan confirmations, ITRs, bank account of the lenders, bank account of the assessee were filed substantiating all the three ingredients in respect of 7 parties out of 8 parties. The Ld. CIT(A) called for a remand report and by taking into account the observations/report of the AO deleted the addition to the extent of Rs.55,00,000/-. The Ld. CIT(A) confirmed the addition of Rs.5,00,000/- in the hands of assessee in respect of loan taken from V.J. Shah & Co. We find that the assessee has filed before us the similar evidences in respect of V.J. Shah & Co. comprising, loan confirmations, ITRs, bank statements of the 11 & 6043/M/2019 & ors. M/s. Silver Arch Builders lenders, bank account of the assessee which were also filed before the lower authorities. Thus we find that the amount of loans taken by the assessee is sufficiently proved. Under these circumstances, we are inclined to uphold the order of Ld. CIT(A) in respect of 7 parties wherein the Ld. CIT(A) deleted the addition of Rs.55,00,000/-. However, we are not in agreement with the findings of Ld. CIT(A) on the loan taken from V.J. Shah & Co after examining all the evidences which were also filed before the Ld. CIT(A) and consequently we set aside the order of Ld. CIT(A) so far as the part confirmation of Rs.5,00,000/- in respect of whom the necessary evidences were filed before us also. Therefore, appeal of the Revenue is dismissed whereas the appeal of the assessee is allowed. ITA No.6299/M/2019 (Revenue’s Appeal) & ITA No.6043/M/2019 (Assessee’s Appeal)
The issue raised in ground No.1 to 3 is against the deletion as on money of Rs.2,25,00,000/- by Ld. CIT(A) which has been added by the AO on account of on money received by the assessee on sale of flat/commercial places @ 30% of total reported sale. The issue is covered by our decision in ground No.1 to 3 in A.Y. 2010-11 wherein a similar issue has been decided against the Revenue by dismissing ground No.1 to 3 in the appeal. Accordingly, following our decision in ITA No.6298/M/2019 A.Y. 2010-11 the ground No.1 to 3 on this appeal are dismissed.
The issue raised in ground No.4 by the Revenue is against the deletion of protective addition of Rs.1,77,82,408/- by Ld. CIT(A) as made by the AO in the hands of the assessee on the 12 & 6043/M/2019 & ors. M/s. Silver Arch Builders ground that substantive addition made by the AO in the hands of Shri Jitendra Mehta have now been confirmed by the Ld. CIT(A) without appreciating the fact that Shri Jitendra Mehta has challenged the decision of Ld. CIT(A) before the Tribunal.
The facts in brief are that during the course of search proceedings, statements of various persons were recorded and various loose papers and documents were found and seized. Further, search action was also carried out at the residential premises of Mr. Samir Shah (Finance broker of the appellant group). The search team during the course of search found several loose papers from the residential premises of Mr. Samir Shah wherein papers relating to interest working in respect of loans taken by the appellant was found and seized. The details of cash interest paid is as under: Sr. Name of the Party Amount No. 1 Rohan Developers Pvt. Ltd. 122,236,512 2 Goodwill Properties Pvt. Ltd. 4,866,667 3 Silver Arch Builders & Promoters 17,782,408 4 Om Shanti Developers 3,889,083 5 Esque Finmark Pvt. Ltd. 2,237,583 6 Harresh Mehta 21,023,428 Total 172,035,681
During the course of search in the statement recorded under section 132(4) on 27.05.2011 late Shri Jitendra Mehta had offered undisclosed interest income as stated above Rs.17,20,35,681/- on account of cash interest, however, in the return filed under section 153A the late Shri Jitendra Mehta did not offer the said undisclosed income to tax. Consequently, on the basis of the said seized papers the AO held that the assessee has paid interest in cash in respect of loans appearing in the 13 & 6043/M/2019 & ors. M/s. Silver Arch Builders books of account, over and above the interest already debited in the books of accounts. Thus, on the basis of these seized material, the AO made substantive addition in the case of Late Jitendra Mehta (Legal Heir, Rohan Mehta) of Rs.17,20,35,681/- and protective addition of various amounts as stated above aggregating to Rs.17,20,35,681/- in the hands of various parties which are also mentioned in the above table. The cash interest attributable to the respondent-assessee was Rs.1,77,82,408/- and protective addition was also made in the case of respondent- assessee accordingly.
In the appellate proceedings, the CIT(A) has confirmed the substantive addition made in the case of Rohan Mehta and thus, he deleted the protective addition made in the case of appellant. The CIT(A) has discussed this issue in its appellate order in paras 36 to 39.21 page nos. 154 to 179 and has given his findings on para 39.26 page no. 172 of order.
After hearing the rival contentions of both the parties and perusing the material on record, we find that in this case a statement under section 132(4) was recorded on 27.05.2011 of Shri Jitendra Mehta who offered the income to the tune of Rs.17,20,35,621/- on account of cash interest. Out of the said amount of Rs.1,77,82,408/- was relating to the present respondent assessee as stated above in the detailed breakup of total cash interest paid of Rs. 17,20,35,621/-. The AO observed that respondent-assessee has availed loan at differential rate of interest and accordingly treated the differential rate which was not accounted for in the books of accounts as unexplained expenditure under section 69C of the Act and added the same to 14 & 6043/M/2019 & ors. M/s. Silver Arch Builders the income of the assessee on a protective basis. The Ld. CIT(A) deleted the addition on the ground that substantive addition made in the hands of Shri Jitendra Mehta (legal heir Rohan Mehta had already confirmed vide order dated 29.03.2019 and thus deleted the protective addition made in the hands of the assessee. After having perused the order of Ld. CIT(A) and also various decisions relied upon as discussed in para No.39.5 to 39.20, we are of the view that the protective addition has rightly been deleted by the Ld. CIT(A) in the hands of respondent- assessee and accordingly we are inclined to dismiss the ground No.4 raised by the Revenue by upholding the order of Ld. CIT(A).
The issue raised in ground No.5 is against the deletion of addition of Rs.12,000/- as added by the AO towards unexplained interest expenditure under section 69C of the Act by ignoring the fact that in the statement recorded on oath Mr. Anuj Shah admitted to have received interest of Rs.12,000/- from the assessee.
The facts in brief are that the AO noted that assessee has accepted cash loans from various persons including Mr. Anuj Shah who has admitted in his statement that he has given a cash loan of Rs.6,00,000/- to the assessee in A.Y. 2010-11. The said amount was not shown in the books of accounts of the assessee while Mr. Anuj Shah has also admitted that he has provided cash loan to the assessee and received cash interest of Rs.12,000/-. The AO accordingly issued show cause notice to the assessee as to why Rs.12,000/- should not be added to the income of the assessee under section 69C of the Act which was duly replied by the assessee. The AO, however, not accepting
In the appellate proceedings, the Ld. CIT(A) deleted the addition by observing and holding as under: “43.0 I have considered the facts of the case, submissions of the Appellant Company, the observations of the AO contained in the assessment order and the other materials on record on this issue.
43.1 The addition is made on account of cash interest paid on a loan of Rs. 6 lakhs. The Appellant had denied taking of the said cash loan. The department has not been able to provide any evidence to prove that such loan was actually taken except a statement of one Shri Anuj Shah, the broker. An addition has been made of Rs. 12,000/- on account of interest on such loan. In his statement, Shri Anuj Shah had stated that the amount was a commission for arranging the loan. Thus the addition on account of cash interest in itself is wrong. There's no such cash interest paid/ received/ accepted by any party. Even if it is accepted that the commission was received by Shri Anuj Shah, there is no evidence or a statement that the amount was received from the Assessee. Thus, no corroborative evidence has been brought on record by the AO to substantiate the statement relied upon. Hence, the addition had been made by the AO on mere conjectures and surmises. 43.2 In the absence of any evidence or statement regarding payment of cash interest, the addition made cannot be sustained. In view of the above facts and circumstances, the Ground No. 9 of the present appeal is allowed.”
After hearing both the parties and perusing the material on record, we find that Ld. CIT(A) has deleted the addition on the ground that assessee has denied having taken any cash loan. The Ld. CIT(A) also noted that the AO has not brought any evidences on record to prove that such loan was actually taken except the statement of Mr. Anuj Shah a broker. Finally, the Ld. CIT(A) deleted the addition on the ground that no corroborative evidences were brought on record. Having considered the contentions of both the sides and the order of Ld. CIT(A), we are of the considered view that Ld. CIT(A) has rightly deleted the addition on the ground that there were no corroborative evidences except the statement of Mr. Anuj Shah. Accordingly,
The issue raised in ground No.1 in the assessee’s appeal is similar to one as decided by us in A.Y. 2010-11, therefore our finding in ITA No.6042/M/2019 A.Y. 2010-11 would, mutatis mutandis, apply to this appeal as well. Accordingly, we direct the AO to delete the addition of Rs.40,00,000/- as the assessee has filed all the necessary evidences to prove the identity, creditworthiness of the lenders and genuineness of the transactions. Accordingly, assessee’s appeal is allowed. ITA No.6300/M/2019 (Revenue’s Appeal) 25. The issue raised in the Revenue’s appeal in ground Nos.1 to 3 in respect of on money on sale of flats is identical to one as decided by us in ITA No.6298/M/2019 A.Y. 2010-11, therefore, our decision in ITA No.6298/M/2019 A.Y. 2010-11 would, mutatis mutandis, apply to this appeal as well. Accordingly, ground Nos.1 to 3 raised by the Revenue are dismissed.
The issue raised in ground No.4 is against the deletion of addition by Ld. CIT(A) as made by the AO on account of disallowance of telephone and conveyance expenses.
The facts in brief are that the assessee has incurred Rs.60,300/- under the head “Conveyance charges”. The AO was of the opinion that the personal element in these expenses can not be ruled out and accordingly the AO disallowed @ 20% of the conveyance expenses which worked out to Rs.12,060/- and added the same to the income of the assessee. Similarly, in 17 & 6043/M/2019 & ors. M/s. Silver Arch Builders respect of telephone expenses the assessee incurred Rs.70,680/- and the AO disallowed 30% of the expenditure towards personal element which worked out to Rs.21,204/- and added the same to the income of the assessee.
In the appellate proceedings, the Ld. CIT(A) deleted the addition on the ground that AO has failed to establish that said expenditure was not incurred wholly and exclusively for the purpose of business. The Ld. CIT(A) observed that the assessment order does not state any show cause notice or communication to the respondent-assessee asking to reproduce the relevant evidences in support of the expenses. Thus the Ld. CIT(A) observed that the disallowance made by the AO lacked any incriminating material and purely based on conjunctures and surmises and adhocism which is not permissible under the Act. Thereafter, the Ld. CIT(A) following decision of Tribunal in para 56.27 of the appellate order and also 56.3 held that adhoc disallowance can not be sustained. The Ld. CIT(A) also followed the decision of the co-ordinate Bench in assessee’s sister concern case DCIT vs. M/s. Goodwill Properties Pvt. Ltd. A.Y. 2008-09 & ors dated 01.03.2019 and thus allowed the appeal of the assessee.
After hearing both the parties and perusing the material on record, we find that in this case the addition has been made without pointing any defect or deficiency in the bills, vouchers and books of accounts of the assessee or bringing on record any concrete evidence that some part of the expenditure related to the personal affairs of the director. Having examined all the facts before us we find that the Ld. CIT(A) has correctly held that 18 & 6043/M/2019 & ors. M/s. Silver Arch Builders the disallowance is just based on the presumptions, surmises and conjunctures and rightly deleted the disallowance. Accordingly, we dismiss the ground No.4 by upholding the order of the Ld. CIT(A).
The issue raised in ground Nos.5 & 6 is against the deletion of addition of Rs.74,00,000/- by Ld. CIT(A) by admitting additional evidences as made by the AO under section 68 on account of unexplained cash credit.
The facts in brief are that during the course of assessment proceedings, the AO noted that assessee has taken unsecured loans from 8 parties as detailed in para 10.1 of the assessment order. The AO observed that assessee could not prove the identity, creditworthiness of the lenders and genuineness of the transactions and accordingly added the same to the income of the assessee under section 68 as unexplained cash credit.
In the appellate proceedings the assessee filed some additional evidences before the Ld. CIT(A) and Ld. CIT(A) referred the same to the AO for his remand report. Thereafter, after taking into consideration the remand report and the additional evidences, the Ld. CIT(A) deleted the addition by observing that assessee has proved the identity, creditworthiness of the lenders and genuineness of the transactions. While allowing the appeal of the respondent-assessee, the Ld. CIT(A) also followed his own order in A.Y. 2010-11 & 2011-12.
After hearing both the parties and perusing the material on record, we find that the issues raised in the ground Nos.5 & 6 by 19 & 6043/M/2019 & ors. M/s. Silver Arch Builders the Revenue are identical to ones as decided by us in ground No.5 in ITA No.6298/M/2019 A.Y. 2010-11. Accordingly, our decision on ground No.5 & 6 in ITA No.6298/M/2019 A.Y. 2010- 11 would, mutatis mutandis, apply to the ground Nos.5 & 6 as well. Accordingly, ground Nos.5 & 6 of the Revenue are dismissed.
The issue raised in ground No.7 is against the order of Ld. CIT(A) deleting the addition of Rs.2,42,62,583/- by Ld. CIT(A) as made by the AO on account of unexplained interest expenditure under section 69C of the Act.
The issue raised in ground No.7 is identical to one as decided by us in ground No.4 in A.Y. 2011-12. Therefore, our decision on ground No.4 in ITA No.6299/M/2019 A.Y. 2011-12 would, mutatis mutandis, apply to the ground No.7 of this appeal as well. Accordingly, ground No.7 is dismissed by upholding the order of Ld. CIT(A) on this issue. ITA No.6301/M/2019 (Revenue’s appeal) 36. The issue raised in ground Nos.1 to 3 in respect of on money on sale of flats is identical to one as decided by us in ground Nos.1 to 3 in ITA No.6298/M/2019 A.Y. 2010-11. Therefore, our decision on ground Nos.1 to 3 in ITA No.6298/M/2019 A.Y. 2010-11 would, mutatis mutandis, apply to the ground Nos.1 to 3 of this appeal as well. Accordingly, ground Nos.1 to 3 are dismissed.
The issue raised in ground No.4 is identical to ground No.4 in A.Y. 2011-12. Therefore, our decision
20 & 6043/M/2019 & ors. M/s. Silver Arch Builders on ground No.4 in ITA No.6299/M/2019 A.Y. 2011-12, would, mutatis mutandis, apply to these grounds as well. Accordingly, ground No.4 is dismissed by upholding the order of Ld. CIT(A).
Ground No.5 is against the order of Ld. CIT(A) deleting the addition of Rs.24,66,760/- as made by the AO on account of non reconciliation of AIR.
The facts in brief are that as per AIR information the assessee has undisclosed TDS of Rs.2,46,676/- on the total receipt of Rs.24,66,760/- . Accordingly, the AO issued notice under section 142(1) dated 26.06.2015 calling upon the assessee to furnish the details of AIR information and reconciliation of the same. Finally, the AO added the same to the income of the assessee, when the assessee failed to offer any plausible explanation.
Ld. CIT(A) allowed the appeal of the assessee by observing and holding as under: “20.0 I have considered the facts of the case, submissions of the Appellant Company, the observations of the AO contained in the assessment order and the other materials on record on this issue.
20.1 It is mentioned in the assessment order that the Appellant Company has not disclosed receipts amounting to Rs. 24,66,760/-. As per the AO, the Appellant Company did not furnish any plausible explanation; therefore, the amount was added as undisclosed income.
20.2 A perusal of the copies of the ledger accounts furnished by the Appellant Company reveals that the amount of Rs. 24,66,760/- has been duly reflected in the books of account. I have noted that the ledger account of interest received reflects an amount of Rs.24,66,760/- on account of interest received from M/s Roxina Real Estate Pvt. Ltd.. Further, TDS on interest u/s.194A of the Act amounting to Rs. 2,46,676/- has also been deducted on the said interest income. The said amount of interest income was reduced from interest paid on various loans. Hence, the net interest paid after reducing the interest received has been debited to the P&L A/c. The amount debited as expenditure on account of interest paid was 21 & 6043/M/2019 & ors. M/s. Silver Arch Builders Rs.1,02,67,957/-. Thus, on account of netting of the interest received and paid, the interest received amounting to Rs.24,66,760/- was not directly visible in the return of income of the Appellant Company. 20.3 In view of the above mentioned facts and circumstances, the AO is directed to delete the addition made on account of non-reconciliation of AIR information. Accordingly, the Ground No. 4 of the present appeal is allowed.”
After hearing both the parties and perusing the material on record, we find that the assessee has filed reconciliation before the Ld. CIT(A) and based on the said reconciliation the Ld. CIT(A) deleted the addition made by the AO. The Ld. CIT(A) recorded a finding of fact that the amount of Rs.24,66,760/- has been duly accounted in the books of accounts of the assessee and this amount represented the interest received from Roxina Real Estate Pvt. Ltd. and TDS on interest under section 194A has been deducted of Rs.2,46,676/- on the said interest. The Ld. CIT(A) also noted that the said interest income has been reduced from the interest paid to various parties and therefore net interest was shown on the debit side of the P & L account. It was also noted by Ld. CIT(A) that a net interest of Rs.1,02,67,957/- was debited in P & L account. Accordingly, we do not find any infirmity in the order of Ld. CIT(A) and same is accordingly upheld by dismissing the ground No.5 of the Revenue’s appeal. (Revenue’s appeal) 42. The issue raised in ground Nos.1 to 3 in respect of on money on sale of flats is identical to one as decided by us in ground Nos.1 to 3 in ITA No.6298/M/2019 A.Y. 2010-11. Therefore, our decision on ground Nos.1 to 3 in ITA No.6298/M/2019 A.Y. 2010-11 would, mutatis mutandis, apply
The issue raised in ground No.4 is identical to one as 43. decided by us in ground No.4 in A.Y. 2011-12. Therefore, our decision on ground No.4 in ITA No.6299/M/2019 A.Y. 2011-12 would, mutatis mutandis, apply to the ground No.4 of this appeal as well. Accordingly, ground No.4 is dismissed by upholding the order of Ld. CIT(A) on this issue.
Accordingly, this appeal of the Revenue is dismissed.
In the result, the appeals of the assessee are allowed and that of the Revenue are dismissed.