DE vs. HARDA DEVELOPERS P.LTD,MUMBAI

Aforesaid appeals are by the assessee are directed against the separate orders of the learned Commissioner (Appeals)–22, Mumbai, pertaining to assessment years 2004–05, 2005–06 and 2009–10.

The grounds raised by the assessee in the appeals are identical except variation in figures. Hence, for the sake of convenience, we extract the grounds raised by for the assessment year 2004–05 as under:–

Grounds no.4 being general in nature, does not require any specific adjudication.

At the outset, learned Authorised Representative submitted on the instructions of his client, he does not want to press ground no.1. Consequently, ground no.1 is dismissed as “not pressed”.

In grounds no.2 and 3, assessee has challenged the addition under section 69A of the Act.

Brief facts are, the assessee a company filed its return of income for the assessment year 2004–05 on 1st November 2004, declaring total income of ` 11,56,790. On the basis of survey conducted on the assessee on 30th June 2008, wherein certain incriminating material was impounded revealing acceptance of on–money on sale of flat for the assessment year 2004–05 and 2005–06, the Assessing Officer re– opened the assessment under section 147 of the Act for both the assessment years by issuing notice under section 148 of the Act. In the course of assessment proceedings, the Assessing Officer as per the information available on record, found that the assessee during the relevant previous year had received an amount of ` 3,20,175 from the flat allottees which was not offered to tax. He, therefore, called upon the assessee to explain why it should not be treated as unexplained

The learned Commissioner (Appeals), while upholding the addition under section 69A of the impugned assessment year, however, observed that as far as the alternative arguments of the assessee is concerned the assessee has to take a separate ground in assessment year 2009–10.

Learned Authorised Representative submitted before us that in the assessment year 2009–10 has offered the entire on–money received by the assessee from flat allottees in the additional income declared of ` 75 lakh which also included the amount of ` 3,20,175 for the assessment year 2004–05 and ` 5,54,000 for the assessment year 2005–06. He, therefore, submitted, if the additions under section 69A of the said amounts are upheld in the impugned assessment years, identical relief should be granted to the assessee in the assessment year 2009–10 by reducing the amounts from the income declared.

Learned Departmental Representative submitted, the Assessing Officer may be directed to verify the issue factually and if it is found that the additions made under section 69A in assessment year 2004– 05 and 2005–06 has already been included in the income offered by 6 M/s. Devsharda Developers Pvt. Ltd.

We have considered the submissions of the parties and perused the material available on record. The limited grievance of the assessee is, the additions made under section 69A of ` 3,20,175 and ` 5,54,000 in the assessment year 2004–05 and 2005–06 respectively have already been included by the assessee in the income offered of ` 75 lakh in assessment year 2009–10. It is the contention of the assessee, if the additions are upheld in assessment year 2004–05 and 2005–06, consequential relief may be granted to the assessee by reducing these two amounts from the income offered for assessment year 2009–10. After considering the submissions of the assessee, we find merit in the same on the principle that the same income cannot be taxed twice. In the course of hearing, the assessee has brought to our notice certain documentary evidence to demonstrate that the amount considered for addition under section 69A for the assessment year 2004–05 and 2005–06, were already included by the assessee in the income offered of ` 75 lakh for the assessment year 2009–10. Considering such submissions of the assessee, while we uphold the additions made under section 69A for the assessment year 2004–05 and 2005–06, as far as the assessment year 2009–10 is concerned, we set aside the 7 M/s. Devsharda Developers Pvt. Ltd.

In view of our aforesaid decision, the appeal for assessment year 2009–10 being ITA no.7286/Mum./2012 also stands disposed off.

In the result, ITA no.7286/Mum./2012 is allowed for statistical purpose; ITA no.7284/Mum./2012 & 7285/Mum./2012 are dismissed. Order pronounced in the open Court on 13.05.2016