NAVKAR REALTORS,MUMBAI vs. ACIT - 19(3), MUMBAI

M/s Navkar Realtors Assessment Years: 2010-11 & 2011-12 5) In the facts and circumstances of the case and in law, the Commissioner of Income Tax(A) erred in confirming the above additions. [B] Relief Prayed: 1) To quash the assessment made u/s 143(3) passed on the basis of statement u/s 133A. 2) To delete the addition of Rs. 4,58,17,422/- in respect of sales consideration. 3) To delete interest charged u/s 234 and initiation of penalty u/s 271(1) (c), [Cl General-.- • The appellant reserve rights to add alter or delete any portion of this appeal before its conclusion, • This appeal is filed late for which petition for condonation of delay in enclosed, • A Detailed paper book along with case laws will be submitted at the time of hearing.” The grounds raised by the revenue in AY 2011-12 reads as under: - (1) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the protective addition income of Rs 1 crore when in fact the A.Y 2010-2011, wherein substantive addition were made , has not yet reached finality as the assesses is contesting the substantive addition before Hon’ble ITAT. (2) The Appellant prays that the order of the C.I.T (A)-33, Mumbai on the above ground be set aside and that of the A.O be restored."

2.1 Facts from assessment records for AY 2010-11 would reveal that the assessee being resident firm stated to be engaged as builder was assessed for year under consideration u/s 143(3) on 28/03/2013 wherein the income was determined at Rs.125.42 Lacs after certain additions as against returned income of Rs.23.17 Lacs filed by the assessee on 21/09/2010 which was later on revised to Rs.83.39 Lacs on 28/09/2011. The revised return was filed subsequent to survey operations u/s 133A being carried out by the revenue at assessee’s premises on 15/02/2011. 2.2 During assessment proceedings, it transpired that the assessee had developed a project namely Brij Apartment at Borivali. During survey operations, statement of one of the partners namely Shri Satish Raut was recorded. In reply to question No. 10, the said partner admitted that cash M/s Navkar Realtors Assessment Years: 2010-11 & 2011-12 received against sale of flats was not accounted for in the books of accounts. The cash was stated to be received over and above the agreement value entered into by the assessee with the purchasers of the flats. Accordingly, the said partner offered aggregate cash receipts of Rs.318.74 Lacs as additional income from the project for AYs 2010-11 & 2011-12. The said disclosure was stated to be net of all expenditure including salary to partners or any other miscellaneous expenditure. The disclosure was stated to be made after consulting all the partners of the firm. The relevant extract of the statement recorded during the course of survey operations has already been reproduced in the quantum assessment order. Subsequent to survey operations, the assessee revised its return of income by enhancing original returned income of Rs.23.17 Lacs to Rs.83.39 Lacs. In other words, the income was enhanced by Rs.60.22 Lacs in the revised return of income. 2.3 The assessee submitted that it has filed revised return so as to disclose additional income of Rs.100 Lacs for year under consideration out of total disclosure of Rs.318.74 Lacs made during survey operations. The Ld. AO, noticing that the revised returned income should have been enhanced by Rs.100 Lacs as against Rs.60.22 Lacs actually enhanced by the assessee in the revised return of income, show-caused the assessee to explain the same. The assessee submitted that it claimed additional expenditure of Rs.24.96 Lacs as per WIP method and the expenditure was allowable since the income was to be assessed on net basis. However, rejecting the same, the Ld. AO added an amount of Rs.39.78 Lacs to the M/s Navkar Realtors Assessment Years: 2010-11 & 2011-12 income of the assessee, being differential of Rs.100 Lacs and enhancement of Rs.60.22 Lacs already offered by the assessee in the revised return of income.

16. During the course of survey u/s 133A, the appellant firm had declared the additional income of Rs.3,18,74,808/- and offered it for taxation for the period relevant to A.Y. 2011-12. But later on during the course of assessment proceedings, the appellant firm revised the return of income for the year under consideration i.e. A.Y. 2010-11 and offered an amount of Rs. 1 crore for taxation by including this amount in the total income as declared in the revised return of income filed. While offering the additional income of Rs. 1 crore for taxation in the revised return of income, the appellant has also claimed expenses to the extent of Rs.24,96,650/- as per WIP method and thus reduced the additional income offered for taxation during the course of survey. The above action of the appellant firm now claiming the additional expenses against the additional income declared during the survey cannot be accepted. 17.It is clear from the facts outlined in the assessment order of the AO that the additional income of Rs.1 crore offered for taxation for the period under consideration was over and above the regular income and secondly net of all the expenses. The partner of the appellant firm Shri Satish Raut, in the statement recorded during the course survey had categorically admitted in the answer to question no. 14 that the additional income disclosed was net of all expenditure including salary to partners or other miscellaneous expenditure and all these expenditures have already been accounted for in the regular books of accounts. Therefore, there is no question of now claiming any additional expenses of Rs.24,96,650/- against the additional income offered for taxation, As mentioned above, the partner of the firm has categorically stated M/s Navkar Realtors Assessment Years: 2010-11 & 2011-12 in the statement recorded during the course of survey that the additional income declared was net of all expenditure and now claiming the expenditure on the additional income is just an afterthought to reduce the already admitted tax liability. Such tactics of evasion of taxes cannot be allowed to the appellant. Moreover the expenditure claimed is not supported by any credible documentary evidence and therefore the same cannot be allowed.

18. In view of the facts and circumstances explained above, I do not find any infirmity in the order of the AO disallowing the expenditure claimed and making an addition of Rs.39,77,990/- to the income of the appellant for the period under consideration. The addition made is confirmed. This ground of appeal of the appellant is accordingly dismissed.

Aggrieved, the assessee is under appeal before us. 4.1 In AY 2011-12, the assessee was similarly assessed u/s 143(3) on 05/03/2014 wherein the income was determined at Rs.634.14 Lacs after certain additions as against returned income of Rs.45.96 Lacs filed by the assessee on 30/09/2011 which is subsequent to the date of survey u/s 133A i.e. 15/02/2011. The assessment order takes note of the fact that incriminating documents were found during survey operations indicating cash receipts over and above agreement values reflected in books of accounts and the same was impounded. The disclosure of Rs.318.74 Lacs was supported by the loose paper which was found and impounded during survey. However, in this AY, the assessee did not incorporate the balance disclosure of Rs.218.74 Lacs i.e. Rs.318.74 Lacs Less Rs.100 Lacs already declared in AY 2010-11. Accordingly, the assessee was show-caused and confronted with the statement made by the aforesaid partner wherein it was admitted that cash received against sale of flats was not accounted for in the regular books of accounts and the said cash was over and above the agreement value entered into between the assessee and the purchasers.

M/s Navkar Realtors Assessment Years: 2010-11 & 2011-12 4.2 The assessee failed to defend the same and also failed to comply with various notices u/s 142(1) calling for requisite information. Finally, a letter was submitted in Tapal on 28/02/2014 stating that the disclosed amount of Rs.318.74 Lacs formed part of sale consideration reflected in the books of accounts and the income was declared as per reckoner value and therefore, there would be no declaration to be made other than that made in the return of income submitted by the assessee. In other words, the assessee defended its return of income. However, the assessee failed to supply any information as to the total number of flats constructed by it and sold on year to year basis and also failed to submit the details of flats remaining unsold at the end of each year. 4.3 After due consideration of factual matrix, Ld.AO proceeded to make additions of Rs.588.17 Lacs in the hands of the assessee which were crystalized in the following manner: - The following issues emerge from this case.

M/s Navkar Realtors Assessment Years: 2010-11 & 2011-12 Flat Name Total Saleable Amt. Consideration Agreement Rcvd Rcvd Cheque Amt. Area Area Cash Remaining 101 Mawani 640 0 0 0 0 0 0 102 Chatbar 660 0 0 0 0 0 0 104 Santosh Ajnarlekar 345 490 20 13.39 8 1 11 103 Rajubahi 500 710 5400 38.34 38.24 201 Shetty 640 0 0 0 0 0 0 202 Nayak 660 0 0 0 0 0 0 203 Raghupathy/Navkar 1000 1420 7000 99.4 0 5 99.4 301 Desai 640 0 0 0 0 0 0 302 Nadkarni 660 0 0 0 0 0 0 303 Apte 1000 482 5400 24 24 1 20.466 0.534 401 Shah 640 0 0 0 0 0 0 402 Dr. Sathe/ Sharma 660 938 6300 59 35.4 23 30.19 5.81 403 Navkar 1420 1420 7000 99.4 99.4 501 Kotain 640 0 0 0 0 0 0 502 Tonse 830 270 12.56 15 12.65 -0.09 503 Navkar 830 1178 7000 82.46 82,46 601 Rikame 640 908 60 32 26 30.38077 3.61923 602 Pawar 660 938 43.15 32 11.15 30.15 1.85 603 Usha Shah 1000 1420 5900 85.2 52 33 35 17.2 701 Vedhia 685 972 58 26 37 19 2 702 Vora 660 938 3.5 3.3 0.21 0 703 Kadur 1000 482 5400 26.08 12 14.08 801 Refuse 0 0 0 0 0 0 0 0 802 Shrikant Jaiswal 660 938 5400 50.65 26 16 5 29.65 802a Shrikant Jaiswal 182 255 5400 13.77 4 0.5 13.27 803 Kevin Naran Tank 1000 1420 5900 83.78 35.52 48 19.18012 16.59988 901 Kejal Bhube 921 370 10 10 2.5 7.5 902 Sushil Patere 300 426 20 12.81 6.38 3 5.67 903 Jignesh Naran Tank 1000 1420 83.78 35.52 48 19.18012 1659988 1001 I H Desai 640 908 0 0 1002 Navkar 660 938 7000 99.4 99.4 M/s Navkar Realtors Assessment Years: 2010-11 & 2011-12 1003 Ghag 1000 1420 5400 19.44 19.44 1091.91 353.64 260.78 250.40701 585.73299 5.3 Total sale consideration is shown at 10.91 on page No. 26 which means that total sale consideration of assessee is Rs 10,91,91,000/- as per page No. 26 of Annexure Al impounded during the course of survey, while the assessee has shown sale consideration of Rs.5,33,73,578/- in P&L A/c. for A.Y. 2011-12 and therefore consideration of Rs.5,58,17,422/- (10,91,91,000-5,33,73,578) being difference of two found is not reflected in books of accounts of assessee which was disclosed by the assessee partly during survey by disclosing amount of Rs.3,18,74,808/-. There was a column showing remaining amount of Rs.5,85,73,299/- on Page No. 26 of the Annexure Al, which was neither considered at the time of survey nor it was considered by assessee while filing return of income for A.Y. 2011-12. Since in the return of income for A.Y. 2011-12 there is no unsold stock it is to be held that entire sale was executed and entire amount is received by assessee by the year end. The arguments forwarded by assessee that cash receipts are included in turnover is thus not found acceptable. 5.4 Therefore in view of the above, it is clear that as per Page No. 26 of loose paper total consideration for sale of flats in the case of the assessee is Rs. 10,91,91,000/- while assessee has shown total consideration of Rs. 5,33,73,578/- in return filed for A.Y. 2011-12 and therefore the total consideration out of books is Rs. 5,58,17,422/- which is required to be added. 5.5 As per column showing received cash' there is a total cash receipt of Rs. 2,60,78,000/- (260.78). In addition to which there is one another head amount remaining which shows Rs.5,85,73,299/- which means that Rs.5,85,73,299/- was yet to be received by the assessee. Since assessee has accounted turnover of Rs.5,33,73,578/- in P&L A/c. of A.Y. 2011-12 and turnover under the column 'received cheque' as shown on page No. 26 was Rs.2,50,40,701/- it is to be believed that out of 'amount remaining' shown at Rs. 5,85,73,299/- amount of Rs. 2,83,32,877 (5,33,73,578-2,50,40,701) is received by cheque and remaining amount of Rs.3,02,40,422 (5,85,73,299-2,83,32,877) is received in cash and therefore Rs.5,63,18,422 (2,60,78,000+3,02,40,422) is required to be treated as consideration received in cash which is out of books and the same is required to be added in the income of the assessee.

The above addition was subsequently revised to Rs.563.18 Lacs u/s 154. 4.4 Upon further appeal, learned CIT(A) provided partial relief to the assessee by observing as under: - 15. I have carefully gone through the impugned assessment order, submissions filed by the Id. AR of the appellant and the material available on record. My observations are as discussed in the following paragraphs.

M/s Navkar Realtors Assessment Years: 2010-11 & 2011-12

M/s Navkar Realtors Assessment Years: 2010-11 & 2011-12 Consequently, addition of Rs.4,58,17,422/- is confirmed. Thus grounds of appeal are partly allowed. Aggrieved, the assessee as well as revenue is under further appeal before us.

5. The Ld. Authorized Representative for Assessee (AR) advanced argument to submit that the additions were made solely on the basis of statement given by one of the partners of the assessee firm. The statements made during the course of survey u/s 133A would hold no evidentiary value and therefore, in the absence of any corroborative material found during the course of survey operations, the additions would not be sustainable in law. Our attention has been drawn to the fact that statement was recorded u/s 133A under oath against the mandate of law and no cognizance of the same could be taken of by revenue authorities. It has also been submitted that the partner whose statement was recorded already expired on 03/04/2016 and therefore, no retraction could have been done by the said partner. Reliance has been placed, inter-alia, on the decision of Hon’ble Apex Court in CIT V/s S.Khader Khan & Sons (25 Taxmann.com 413), Mumbai Tribunal in DCIT V/s Premsons (ITA No. 4698/Mum/2006 dated 15/01/2009), Hon’ble Delhi High Court in Pr.CIT V/s Meeta Gutgutia (ITA Nos. 306 to 310 of 2017 25/05/2017), Agra Tribunal in ACIT V/s Maya Trading Co. (34 Taxmann.com 144) and Hon’ble Madras High Court in CIT V/s P.Balasubramanian (33 Taxmann.com 130) for various submissions. Per Contra, Ld. DR submitted that assessee honoured only partial disclosure and miserably failed to substantiate its stand during assessment proceedings. The objections that the statement M/s Navkar Realtors Assessment Years: 2010-11 & 2011-12 was recorded under oath was never agitated before lower authorities at any time during proceedings.

6. We have carefully heard rival submissions, perused relevant material on record including documents placed in the paper-book and deliberated on judicial pronouncements as cited before us. After going through the facts as enumerated in the preceding paragraphs, the undisputed position that emerges is that the assessee was subjected to survey proceedings on 15/02/2011 wherein certain incriminating documents indicating receipt of cash on sale of flats over and above the declared / agreement value were found, impounded and inventorized. The statement on oath was recorded from one of the partners of the assessee firm wherein the partner admitted disclosure of Rs.318.74 Lacs against sale of flats in the project. It was categorically admitted that aforesaid cash receipt of Rs.318.74 Lacs was not accounted for in the books of accounts and the same was over and above the agreement values reflected in the books of accounts as well as net of expenditure. The said additional income was declared under the project for AYs 2010-11 & 2011-12. It is further noted that cash amounting to Rs.15.06 Lacs was also found and inventorized during survey proceedings. It was admitted that the same represented cash receipts against sale of flats and was a part of the disclosure of Rs.318.74 Lacs already made by the assessee. Keeping in line with the said statement, the assessee revised its return of income for AY 2010-11 enhancing its income by Rs.60.22 Lacs as against Rs.100 Lacs stated to be disclosed for that year out of total disclosure of Rs.318.74 Lacs made during survey M/s Navkar Realtors Assessment Years: 2010-11 & 2011-12 operations. It is noteworthy that this statement was never retracted by the assessee even up-to the date of death of the statement giving partner which event took place on 03/04/2016 i.e. more than 5 years from the date when the statement was given. In fact, the assessee partially honoured the said statement by offering the additional income for AY 2010-11 and therefore, we find no substance in the argument of Ld. AR that the statement made by the assessee would have no evidentiary value. The statement was backed by incriminating documents which was further corroborated by excess cash found in the course of survey operations which was categorically admitted to by one of the partners of the assessee firm. Therefore, the case laws being relied upon by Ld. AR, in this regard, in our considered opinion, would not help the cause of the assessee and would not apply to the factual matrix of the case. We are also of the opinion that the complete onus to negate the contents of the statement was on assessee and we find that no material was brought on record by the assessee to controvert the said statement. In fact, the statement was partially honored by offering additional income for AY 2010-11. Thus, arguments raised by Ld. AR would not find favor with us.

M/s Navkar Realtors Assessment Years: 2010-11 & 2011-12 8. The Ld. AR has also asserted that the statement taken under oath u/s 133A would be nullity since the revenue had no authority to record the statement under oath. However, in our opinion, the statement was taken in the course of survey operations and merely because the oath was administered to the partner before recording statement, the same would not render the statement nullity. For all intent and purposes, it was statement under survey operations which was backed by incriminating material, excess cash was found and admitted. The assessee partially honoured the statement by revising the return of income. Therefore, stated facts would not inspire any confidence in us to accept the arguments of Ld. AR.