Income Tax Appellate Tribunal - Jaipur
Saj Properties Pvt. Ltd., Jaipur vs Ito, Jaipur on 26 July, 2018
vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj
IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
Jh fot; iky jko] U;kf;d lnL; ,oa Jh Hkkxpan] ys[kk lnL; ds le{k
BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM
vk;dj vihy la-@ITA No. 501/JP/2017
fu/kZkj.k o"kZ@Assessment Year : 2006-07
Income Tax Officer, cuke M/s Saj Properties Pvt. Ltd. (Now
Ward-4(5), Vs. RGA Crafts Pvt. Ltd.),
Jaipur. A-4, Shubham Tower, Shastri
Nagar, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAKCS 1529 B
vihykFkhZ@Appellant izR;FkhZ@Respondent
izR;k{[email protected]. No. 30/JP/2017
(Arising out of vk;dj vihy la-@ITA No. 501/JP/2017)
fu/kZkj.k o"kZ@Assessment Year 2006-07
M/s Saj Properties Pvt. Ltd. (Now cuke Income Tax Officer,
RGA Crafts Pvt. Ltd.), Vs. Ward-4(5),
A-4, Shubham Tower, Shastri Jaipur.
Nagar, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAKCS 1529 B
izR;k{ksid@Objector izR;FkhZ@Respondent
vk;dj vihy la-@ITA No. 502/JP/2017
fu/kZkj.k o"kZ@Assessment Year : 2010-11
Income Tax Officer, cuke M/s Saj Properties Pvt. Ltd. (Now
Ward-4(5), Vs. RGA Crafts Pvt. Ltd.),
Jaipur. A-4, Shubham Tower, Shastri
Nagar, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAKCS 1529 B
vihykFkhZ@Appellant izR;FkhZ@Respondent
2 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_
ITO Vs Saj Properties
izR;k{[email protected]. No. 31/JP/2017
(Arising out of vk;dj vihy la-@ITA No. 502/JP/2017)
fu/kZkj.k o"kZ@Assessment Year 2010-11
M/s Saj Properties Pvt. Ltd. (Now cuke Income Tax Officer,
RGA Crafts Pvt. Ltd.), Vs. Ward-4(5),
A-4, Shubham Tower, Shastri Jaipur.
Nagar, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAKCS 1529 B
izR;k{ksid@Objector izR;FkhZ@Respondent
jktLo dh vksj ls@ Revenue by : Shri Varinder Mehta (CIT-DR)
fu/kZkfjrh dh vksj ls@ Assessee by : Shri S.L. Jain &
Shri A.K. Gupta (Adv)
lquokbZ dh rkjh[k@ Date of Hearing : 20/07/2018
mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 26/07/2018
vkns'k@ ORDER
PER: BHAGCHAND, A.M. Both these appeals by the revenue and cross objections by assessee arise from the separate orders dated 06/03/2017 of Ld. CIT (A), Ajmer pertaining to the A.Y. 2006-07 and 2010-11. The grounds taken by the assessee and the revenue are reproduced as under:
Ground of revenue's appeal for A.Y. 2006-07"
"1. Whether in the facts and circumstances of the case and in law, the ld. CIT(A) was justified in deleting the addition of Rs. 3,16,28,456/- made by A.O. on account of unexplained investment U/s 69 while the additional evidences filed during appellate proceedings could not be verified."
Ground of assessee's C.O. for A.Y. 2006-07"
3 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties "1. Revenue's Appeal by Unauthorized Authority On the facts and circumstance the case u/s 253(2) Principal Commissioner & Commissioner may direct the AO to appeal to the Appellate Tribunal against the order of CIT(A) passed u/s 250 and Chief Commissioner is not competent to direct to file appeal to Appellate Tribunal.
2. Issue of Ex-party Assessment order That the learned CIT(A), Jaipur has grossly erred in law and facts in not deciding the issue of ex-party assessment order passed u/s 144 without considering all the details submitted for the acquisition of land.
3. Justified in Deleting Addition of Rs. 3,16,28,456/- made u/s 69 That the learned CIT(A), Jaipur was fully justified in deleting addition of Rs. 3,16,28,456/- in respect of land purchased during the year and the same is dully recorded in audited books of accounts and therefore section 69 is not applicable.
Ground of revenue's appeal for A.Y. 2010-11"
"1. Whether in the facts and circumstances of the case and in law, the ld. CIT(A) was justified in deleting the addition of Rs. 5,95,00,644/- made by A.O. on account of disallowance of interest and other charges while the affidavit filed by Shri Shravan Kumar Choudhary as an additional evidences filed during appellate proceedings could not be verified."
Ground of assessee's C.O. for A.Y. 2010-11"
"1. Issue of jurisdiction That the learned CIT(A), Jaipur has grossly erred in law and facts in not deciding the issue of jurisdiction of the AO independently and further erred in rejecting the issue in a summary manner and without mentioning reasons of rejection and without passing speaking order.
2. Issue of Service of Notice That the learned CIT(A), Jaipur has grossly erred in law and facts in not deciding the issue of service of notice issued u/s
4 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties 143(2) of the AO independently and further erred in rejecting the issue in a summary manner and without mentioning reasons of rejection and without passing speaking order.
3. Issue of Ex-party Assessment order That the learned CIT(A), Jaipur has grossly erred in law and facts in not deciding the issue of ex-party assessment order passed u/s 144 where the application for transfer of assessment records was pending independently and further erred in rejecting the issue in a summary manner and without mentioning reasons of rejection and without passing speaking order.
4. Justified in deleting addition of Rs. 5,95,00,644/-
That the learned CIT(A), Jaipur was fully justified in deleting addition of Rs. 5,95,00,644/- in respect of payment of interest and other charges to Shri Shravan Kumar Choudhary."
2. Ld. A.R. of the assessee took preliminary objection that Shri S.K. Chowdhary, who has authorized to file appeal is not an appropriate authority as per provisions of the Act. He was Chief Commissioner of Income Tax while appeal can be authorized by the Principal CIT/CIT as per provisions of the I.T. Act. On this observation, we have drawn his attention towards the provisions of Section 120(1) of the Act.
Explanation inserted by the Finance Act, 2006 w.e.f. 01/4/1988, which is read to this Section was as under:
"120(1) Explanation.--For the removal of doubts, it is hereby declared that any income-tax authority, being an authority higher in rank, may, if so directed by the Board, exercise the powers and perform the functions of the income-tax authority lower in rank and any such direction issued by the Board shall be deemed to be a direction issued under sub-section (1)."
5 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties Ld. DR has produced the copy of CBDT order dated 31/3/2017 and para 4 of this CBDT order read as under:
"4. On promotion the officers mentioned in para-3 above shall continue to hold the same charge, which they were holding before their promotion as additional charge till their further formal posting is decided."
Thus, the CBDT vide its order No. 46 of 2017 dated 31/3/2017 has given a direction that on promotion, the officers mentioned in para 3 shall continue to hold the same charge which they were holding before their promotion as additional charge till their further formal posting as decided. Thus, the preliminary objection regarding the validity of authorization is not sustainable.
3. ITA No. 501/JP/2017 & C.O. 30/JP/2017 A.Y. 2006-07 Briefly stated facts of the case are that in this case assessment was completed by the Assessing Officer U/s 143(3)/144 of the Act on 11/11/2008 at total income of Rs. 6,63,90,182/- by the ITO, Ward 7(2), New Delhi by making various additions in the first round. The ld. CIT(A) deleted the addition of Rs. 3,47,60,000/- U/s 68 of the Act and restricted the addition to Rs. 5,00,000/- as against addition of Rs.
3,16,28,456/- made by the A.O. U/s 69 of the Act in respect of land purchased. Thereafter both the parties moved before the ITAT, New 6 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties Delhi 'G' Bench and the Hon'ble Bench upheld the decision of ld. CIT(A) in deleting of addition of Rs. 3,47,60,000/- and set aside the issue of addition of Rs. 3,16,28,456/- U/s 69 of the Act to the file of the Assessing Officer. The Assessing Officer completed the assessment and again made addition of Rs. 3,16,28,456/- U/s 69 of the Act.
4. Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the ld. CIT(A), who had deleted the addition by holding as under:
"6.3 I have gone through the assessment order, statement of facts, grounds of appeal, written submission carefully, remand report and rejoinder. It is seen from the assessment order that in this case, original assessment was completed on 11.11.2008 by the ITO, Ward-4 New Delhi assessing total income at Rs. 6,63,90,182/-. While completing the assessment, the AO made an addition of Rs. 3,16,28,456/- u/s 69 in respect for the unexplained investment. Against the order of the AO, the assessee preferred appeal before the CIT(A), New Delhi. The CIT(A) vide deciding the appeal of the assessee vide his order no. 71/08-09 dated 13.11.2009, out of the total addition of Rs. 3,16,28,456/-, confirmed the addition of Rs. 5 lac and deleted the remaining addition of Rs. 3,11,28,456/-. Against the order of CIT(A), the revenue preferred appeal before the ITAT Delhi. The ITAT Delhi Bench "G", New Delhi vide its order dated 20.04.2012 (ITA No. 535/Del/2010 and C.O. No. 130/Del/2011) set-aside the issue of the addition of Rs. 3,16,28,456/- to the file of the AO with following observation:
7 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties "11.1. We find that Ld Commissioner of Income Tax (Appeals) has dealt this issue rather laconically and by nonspeaking order. Assessing Officer in the remand report has clearly doubted the investment shown in land amounting to Rs. 3,16,28,456/-. Copy of the remand report in this regard was not produced before us. Nor the Ld Commissioner of Income tax (Appeals) has dealt with the report fully in his appellate order. Under the circumstances, interest of justice will be served, if the matter is remitted to the file of the Assessing Officer to consider the issue afresh, after giving the assessee adequate opportunity of being heard. Accordingly, the issue stands remitted to the file of the Assessing Officer. Needless to add that the assessee should be given adequate opportunity of being heard."
The AO while completing the assessment u/s 144 r.w.s. 254 in pursuance of the order dated 20.4.12 of the ITAT 'B' Bench referred above, again made the addition of Rs. 3,16,28,456/- u/s 69.
6.4 It is seen from the Balance Sheet dated 31.03.2006 that the assessee had stock-in- hand of Rs. 4,93,13,456/-. The stock-in-hand as on 31.03.2005 was Rs. 1,76,85,000/-. Thus, there was addition of Rs. 3,16,28,456/- in the stock-in-hand during the previous year relevant to A.Y. 2006-07. The AO has treated the addition of Rs. 3,16,28,456/- to the stock-in-hand as unexplained investment u/s 69. I have gone through the provisions of section 69 carefully. The addition u/s 69 can be made in respect of the investment which are not recorded in the books of accounts maintained by the assessee. In the case under consideration, the asset of Rs. 3,16,28,456/- has been recorded by the assessee in the books of accounts which is reflected in the Balance Sheet dated 31.03.2006. Hence, I am of the considered view that no addition could have been made by the AO u/s 69 in respect of the addition of Rs. 3,16,28,456/- made by the assessee to the stock-in- hand during the previous year relevant to A.Y. 2006-07.
8 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties 6.5 The appellant has given the complete breakup of the addition of Rs.
3,16,28,456/- made to the stock-in-hand during the course of assessment proceedings or appellate proceedings F.Y. 2005-06 as under:
9 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties 6.6 As far as cost of land purchases of Rs. 2,31,25,000/- (Rs. 8,12,5000 + Rs. 1,50,00,000) and payment of stamp duty and transfer duty of Rs.
10 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties 19,35,000/- (Rs. 7,35,000 + Rs. 12,00,000) is concerned, the same is verifiable with the copies of relevant sale deeds filed by the appellant.
Regarding the other expenses of Rs. 40,98,009/-, the appellant has claimed that the expenses were paid to following 3 persons :
Balvinder Singh Rs. 6,99,000/- Vani Trading Co. Rs. 5,50,000/- Vinod Udyog Pvt. Ltd. Rs. 28,49,009/-
The appellant has filed copies of the bills issued by these three persons to the appellant in respect of the above expenses incurred by the appellant. From the copies of bills issued by Vinod Udyog Pvt. Ltd. and Vani Trading Co., it is seen that these concerns are registered for U.P. Sales-tax and Central Sales-tax. Their registration number are printed on the bills issued by them. Details of the material supplied (angles, channels, wire etc.) by these concerns is also clearly mentioned in the bills issued by these concerns. Therefore, genuineness of the expenses of Rs. 5,50,000/- and Rs. 28,49,009/- cannot be doubted. Hence, the claim of the assessee for the expenses of Rs. 33,99,009/- is held to be genuine and acceptable. However, the expenses of Rs. 6,99,000/-, payment of which is claimed to have been made to Shri Balvinder Singh cannot be accepted genuine, because it is seen from the bills issued by Shri Balvinder Singh that in the bill there is no registration number of Sales-tax and Central Sales-tax. The details of items supplied is also not clearly mentioned. Further on each bill, details of the material supplied or work done on various dates (upto 9 - 1 0 days) have been mentioned. Even the name of Balvinder Singh has been printed as Balvinder Singh Lamba but the word Tamba' have been crossed by putting four lines on this word. The appellant has also not stated exactly what was the material supplied or work done by Shri Balvinder Singh. Therefore, the claim of the appellant for the expenses of Rs. 6,99,000/- is held to be in genuine/ bogus. In the 11 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties result, the value of the stock of the appellant as on 31.03.2006 shall stand reduce by the amount of Rs. 6,99,000/- and the expenses debited in the profit and loss account shall also stand reduced by the amount of Rs. 6,99,000/-. Though this finding does not have any effect on the income of the appellant for the A.Y. 2006-07, but while computing the profit on the sale of the above referred land (stock), the cost of the land shall stand reduced by the amount of Rs. 6,99,000/-. As these pieces of land were sold by the appellant in the A.Y. 2010-11, therefore the profit declared by the appellant on sale of these pieces of land in the A.Y. 2010-11 shall stand increase by the sum of Rs. 6,99,000/-.
6.7 As far as the addition of 25,55,448/- is concerned, this is stated to be "advance for land". The appellant has not furnished any evidence showing purchase of any land against the amount of Rs. 25,55,448/-. The advances cannot form part of the stock-in-hand. Giving advance to any person does not affect the profit and loss account of the assessee. This transaction only effects the bank account (bank balance is reduced) and the loan & advance (the balance of the advances is increased). In other words balance of one asset (bank) is reduced and balance of other assets (advance) is increased by the amount of the advances given by the appellant. I am of the considered view that sum of Rs. 25,55,448/- should neither have been debited by the appellant to the profit and loss account nor to the stock- in-hand. The entry of the advance of Rs. 25,55,448/- should have been made by debiting the loan & advances account and crediting the bank account by the amount of the advance given by appellant. By debiting the amount of advances of Rs. 25,55,448/- in the profit and loss account and adding this amount in the stock- in-hand , the appellant has wrongly increased both the debit and credit side of the profit and loss account 12 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties by the same amount. However, the profit of the appellant of the A.Y. 2006-07 is not affected by the entry made by the appellant.
6.8 In view of the facts discussed above, it is held that in the A.Y. 2006-07, no addition u/s 69 was required to be made by the AO as there was no asset which was not recorded in the books of accounts of the appellant and sources of the assets appearing in the balance sheet in the asset side are reflected in the liability side of the balance sheet. In view of the order dated 20.04.2012 (ITA No. 535/Del/2010) of the ITAT 'G' Bench, New Delhi, in appellant own case in A.Y. 2006-07, all the liabilities appearing in Balance Sheet of the appellant, stand explained as the addition of Rs. 3,47,60,000/- made by the AO u/s 68 has also been deleted by the ITAT. Hence, the addition of Rs. 3,16,28,456/- made by the AO u/s 69 in the A.Y. 2006-07 is hereby deleted. However, the profit of the appellant in the A.Y. 2010- 11, when the above mentioned pieces of land were sold by the appellant, shall stand increased by the amount of Rs. 6,99,000/-. These grounds of appeal are decided accordingly."
5. The ld. DR has relied on the order of the Assessing Officer. On the contrary, the ld AR of the assessee has reiterated the submissions as made before the ld. CIT(A) and relied on the order of the same.
6. We have heard both the sides on this issue. We have also considered the various case laws relied upon and the factual aspects available on the record. The Assessing Officer made addition of Rs.
3,16,28,456/- U/s 69 of the Act as unexplained investment in the first round of litigation. The ld. CIT(A), New Delhi confirmed the addition of 13 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties Rs. 5.00 lacs out of Rs. 3,16,28,456/-. The assessee preferred appeal before the ITAT, Delhi 'G' Bench and the ITAT set aside the issue to the file of the Assessing Officer. In the second round of litigation, the Assessing Officer completed the assessment U/s 144 of the Act and made addition of Rs. 3,16,28,456/- U/s 69 of the Act. The assessee filed details before the ld. CIT(A). The ld. CIT(A) called remand report and rejoinder also. The stock in hand of Rs. 4,93,13,456/- as on 31/3/2006 and stock in hand of Rs. 1,76,85,000/- as on 31/3/2005 are duly reflected in the balance sheet of the assessee. There was an addition of Rs. 3,16,28,456/- in the stock in hand during the relevant previous year.
The Assessing Officer treated this as unexplained investment and made addition U/s 69 of the Act. The provisions of Section 69 of the Act read as under:
"69. Where in the financial year immediately preceding the assessment year the assessee has made investments which are not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of the investments or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the value of the investments may be deemed to be the income of the assessee of such financial year."
Thus, the addition U/s 69 of the Act can be made in respect of investment which are not recorded in the books of account maintained by the assessee. In this case, the assets of Rs. 3,16,28,456/- in the form of stock in hand has been duly recorded in the books of account of the 14 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties assessee and reflected in the balance sheet dated 31/3/2006. In view of these facts, we find that the ld. CIT(A) had rightly granted relief to the assessee and we sustain the order of the same on this issue and dismiss the appeal of the revenue.
7. In the assessee's C.O., ground No. 1 was not pressed, therefore, the same stands dismissed as not pressed.
8. Ground No. 2 of the C.O. is in support of the order of the ld.
CIT(A). We have sustained the order of ld. CIT(A), therefore, there is no need to adjudicate separately. Hence, C.O. of the assessee stands dismissed.
9. Now we take appeal No. 502/JP/2017 of the revenue and C.O. No. 31/JP/2017 of the assessee for the A.Y. 2010-11.
In the revenue's appeal the only issue involved is against deleting the addition of Rs. 5,95,00,644/- for the reason that the affidavit filed by Shri Shravan Kumar Choudhary as an additional evidences could not be verified.
10. The ld. CIT(A) has decided this issue by holding as under:
"6.3 I have gone through the assessment order, statement of facts, grounds of appeal, written submission, remand report and rejoinder carefully.
15 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties It is seen that sum of Rs. 5,95,00,644/- was paid by the appellant company to Shri Shrawan Kumar Choudhary as per the terms of order dated 16.12.2008 of the New Delhi High Court. The order dated 16.12.2008 (IA No. 15482/2008 (u/O-23 R-3 CPC) is reproduced hereunder for ready reference:
"IA No.15482/2008 (u/O-23 R-3 CPC) This is a joint application filed on behalf of the plaintiffs and the defendants under Order XXIII Rule 3 read with Section 151 CPC for recording of the terms of compromise. The application is signed by the plaintiffs as well as by the all the defendants and is supported by the affidavits of all the parties. The application is also signed by Shri Sandeep Mann, son of Shri Jai Bhagwan Mann, resident of 731, Village Khera Khurd, Delhi-110082 and is supported by his affidavit. The said Mr. Mann is identified by Mr. N.S. Dalai, Advocate, who is also representing the plaintiffs.
The terms of settlement are set not in paragraph 2(i) to (xxiii). The parties, who are present in Court, undertake to abide by the terms of the settlement. Their undertakings are taken on record and accepted by the Court. They shall be bound by the terms of the settlement as undertaken by them in Court today. The suit is accordingly decreed in terms of the compromise as prayed for by the parties. Let a decree-sheet be drawn up by the Registry accordingly, incorporating the terms of this application, which is marked Exhibit P-l.
The present application as well as CS(OS) 1148/2008 and IA Nos. 7209/2008 and 7840/2008 stand disposed of accordingly. "
The copy of the application referred by the High Court in its order has also been filed by the appellant. One of the terms of settlement as mentioned in the joint application (CS(OS) No. 1148 of 2008)) at para (x.) is as under:
"x. Defendant no. 2 shall be paid a total sum of Rs. 11,99,35,644/- (Rupees eleven crores ninety nine lacks thirty five thousand six hundred forty four only) by the company (loan amount, interest & for the services) as full and final settlement of the loan. Out of which Rs. 6,04,35,000/- for the loan amount and Rs. 5,95,00,644/- as interest and services rendered for purchase of the stock (Land) and development. The amount was calculated by all the parties. The whole amount which is decided to be paid to Mr. Sharwan Choudhary, shall be paid only after the sale of the stock (land). But if the amount received is less than the decided amount, in that case the amount shall be reduced to that extent. All the parties to the settlement have agreed on these terms & conditions. "
16 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties 6.4 Further, in respect of the amount of Rs. 5,95,00,644/- paid by the appellant company to Shri Shrawan Kumar Choudhary, the board of directors of the appellant company has passed a resolution on 05.09.2009, authorizing the payment of Rs. 5,95,00,644/- towards interest and services rendered by Shri Shrawan Kumar Choudhary for the purchase of stock (land) and development. Thus, from the order dated 16.12.2008 of the Delhi High Court and resolution dated 05.09.2009, it is clear that the liability to pay the amount of Rs. 5,95,00,644/- to Shri Shrawan Kumar Choudhary had crystallized in the F.Y. 2009-10 relevant to A.Y. 2010-11 as the stock (land) was sold in the previous year relevant to A.Y. 2010-11. Therefore, I am of the considered view that the payment of Rs. 5,95,00,644/- made to Shri Shrawan Kumar Choudhary was allowable as deduction only in the A.Y. 2010-11. As far as the genuineness of the claim of the appellant is concerned, Shri Shrawan Kumar Choudhary has filed the affidavit confirming the receipt of the sum of Rs. 5,95,00,644/- affirming as under:
"I Sharwan Choudhary S/0 Late Shri Madan Gopal Choudhary aged 57 R/o 82, Dhuleshwar garden, Jaipur holding PAN ABIPC7810K do hereby solemnly declare and affirm on oath as under:
That I have deposited a sum of Rs. 6,04,35,000/- for the development of business of M/s Saj properties Pvt. Ltd. from 2004 to 2009. Wherein am a director.
That the other directors have contributed minor funds to the company M/s Saj properties Pvt. Ltd.
That my duty in the company was very strict to the purchases of stock (land) under my supervision and I have to develop the same. Accordingly I had put my labour and time to upkeep the development of the properties (stock).
That due to dispute between the directors of the company a case was filed before the Hon'ble Delhi High Court bearing case no CS(OS) 1148/2008 and the same was ultimately resolved by compromise and decided by the Hon'ble High Court.
17 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties That it was agreed between the directors to compensate my services, devotion, time and arrangement of funds to up keep the properties (stock) a sum of Rs.
5,95,00,644/- to be paid, but the same will be paid out of the sale proceeds of the properties (stock) so sold. In case the amount received less than the deposit amount of Rs. 604,35,000/- and interest & other charges as referred herein above Rs. 5,95,00,644/-. In that case the interest and other charges shall be reduced accordingly.
That to upkeep my agreed amount I was bound to realize to get more price of the stock. I have tried to upkeep the properties i.e. why the properties were sold during the year for Rs. 23,22,26,000/- and accordingly I was entitled to receive the agreed amount.
That this amount of Rs. 6,04,35,000/- as deposit and agreed amount Rs. 5,95,00,644/- also confirmed by the Board of Directors in their meeting dated 05/09/2009 and accordingly I received the same on 29/10/2009.
That the said amount was paid only after deduction of TDS.
That I have filed my return of income including Rs. 5,95,00,644/- received from M/s Saj properties Pvt. Ltd. as income from other sources and full tax @ 30% plus charges thereon was deposited. "
6.5 Shri Shrawan Kumar Choudhary has declared the income of Rs.
5,95,00,644/- in the return of income filed by him and paid the tax at the maximum rate. The payment of Rs. 5,95,00,644/- towards interest and services rendered by Shri Shrawan Kumar Choudhary for the purchase of stock (land) and development has been made by the appellant only after the sale of the stock (land) as per the terms of the settlement approved by the Hon'ble high court of New Delhi. The amount received on sale of the stock (Rs. 23,22,26,000) is more than the amount paid to Shri Shrawan Kumar Choudhary. Tax has also been deducted at source on the payment made to Shri Shrawan Kumar Choudhary. In view of the facts discussed above, I am of the considered view that the liability to pay the sum of Rs.5,95,00,644/- as interest and services rendered by Shri Shrawan Kumar Choudhary for the purchase of stock (land) and development had crystallized only in the previous year relevant to A.Y. 2010-11 as per the terms of 18 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties settlement approved by the Hon'ble New Delhi High Court. Hence, the entire amount of Rs5,95,00,644/- paid by the appellant to Shri Shrawan Kumar Choudhary is held to be allowable as deduction for the purpose of computing the income of the appellant for the A.Y. 2010-11 and the addition of Rs. 5,99,00,644/- made by the AO is hereby deleted. Accordingly, this ground of appeal is allowed.
11. The ld. DR has relied on the order of the Assessing Officer. On the contrary, the ld AR of the assessee has reiterated the submissions as made before the ld. CIT(A) and relied on the order of the same.
12. After hearing both the sides on this issue, we are of the view that the ld. CIT(A) has granted relief in respect of this amount paid by the assessee to Shri Shravan Kumar Choudhary as per terms of order dated 16/12/2008 of Hon'ble Delhi High Court. The order dated 16/12/2008 has been reproduced in the order of the ld. CIT(A). This payment was made in compliance to one of the terms of settlement as mentioned in the joint application. Board of Directors of the company has also passed a resolution for authorization the payment of Rs. 5,95,00,644/-towards the interest and services rendered by Shri Shravan Kumar Choudhary for the purchase of stock (land) and development. It is also clear that the liability to pay the amount was crystallized during the financial year relevant to this assessment year. Keeping in view all these facts, we 19 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties sustain the order of the ld. CIT(A) on this issue and dismiss the revenue's appeal.
13. Ground No. 4 of the assessee's C.O. is in support of the order of the ld. CIT(A). Since we have confirmed the findings of the ld. CIT(A) while deciding the revenue's appeal, therefore, there is no need to adjudicate this ground of the C.O. of the assessee. Hence, this ground of C.O. is dismissed.
14. Ground No. 3 of the C.O. was not pressed at the time of hearing, therefore, the same stands dismissed as not pressed.
15. In the ground No. 5 of the C.O., the issue involved is confirming the addition of Rs. 6,99,000/- in respect of value of opening stock which has been taken at Rs. 3,46,11,009/- as against the value of Rs.
3,53,11,009/-. This ground of appeal was also not pressed at the time of hearing for the reason that findings on this issue got finalized during the assessment proceedings for A.Y. 2006-07, therefore, the same stands dismissed as not pressed.
16. Grounds No. 1 and 2 of the C.O. are regarding jurisdiction of the Assessing Officer and service of notice U/s 143(2) of the Act. Since we have dismissed the appeal of the revenue. Ground No. 4 was in support 20 ITA 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017_ ITO Vs Saj Properties of order of ld. CIT(A) where he granted relief and ground Nos. 3 and 5 were not pressed. Hence, there is no need to adjudicate these grounds, hence dismissed.
17. In the result, appeal of the revenue and the C.O. of the assessee for the A.Y. 2006-07 are dismissed. The appeal of the revenue and C.O. of the assessee for the A.Y. 2010-11 are dismissed.
Order pronounced in the open court on 26/07/2018.
Sd/- Sd/-
¼fot; iky jko½ ¼Hkkxpan½
(VIJAY PAL RAO) (BHAGCHAND)
U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member
Tk;iqj@Jaipur
fnukad@Dated:- 26th July, 2018
*Ranjan
vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- The ITO, Ward-4(5), Jaipur.
2. izR;FkhZ@ The Respondent- M/s Saj Properties Pvt. Ltd. (Now RGA Crafts Pvt. Ltd.), Jaipur.
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr¼vihy½@The CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (ITA No. 501 & 502/JP/2017 & C.O. 30 & 31/JP/2017) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar