Income Tax Appellate Tribunal - Jaipur
Rajasthan Land Developers Pvt. Ltd., ... vs Ito, Jaipur on 7 February, 2018
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IN THE INCOME TAX APPELLATE TRIBUNAL,
JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM
vk;dj vihy la-@ITA No. 418/JP/2016
fu/kZkj.k o"kZ@Assessment Year: 2006-07
M/s. Rajasthan Land Developers Pvt Ltd. cuke The ITO
69/4, New Sanganer Road Vs. Ward- 2(2)
Jaipur Jaipur
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AACCR 5397 N
vihykFkhZ@Appellant izR;FkhZ@Respondent
vk;dj vihy la-@ITA No. 109/JP/2017
fu/kZkj.k o"kZ@Assessment Year: 2007-08
M/s. Rajasthan Land Developers Pvt Ltd. cuke The DCIT
69/4, New Sanganer Road Vs. Circle - 2
Jaipur Jaipur
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AACCR 5397 N
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@Assessee by: Shri A.K. Kanodia, CA
jktLo dh vksj ls@ Revenue by:Shri R.A. Verma, Addl. CIT - DR
lquokbZ dh rkjh[k@ Date of Hearing : 18/12/2017
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 7/02/2018
vkns'k@ ORDER
PER BHAGCHAND, AM
Both these appeals have been filed by the assessee against separate orders of the ld. CIT(A)-1, Jaipur dated 06-11-2015 and 30-12-2016 for ITA No.496/JP/2016 M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur the Assessment Years 2006-07 & 2007-08 raising therein following grounds of appeal.
ITA No.418/JP/2016 -A.Y. 2006-07
''1. On the facts and circumstances of the case, ld. CIT(A) was not justified while confirming the addition of Rs. 67.50 lacs made by AO under income by him without specify8ng the section and without verifying bank statement.
2. On the facts and circumstances of the case, the ld. CIT(A) erred in confirming the finding of AO based on the statement of Shri Nikhil Tripathi recorded u/s 131 which was not allowed to cross examination during the course of proceedings.
3. On the facts and circumstances of the case, the ld. CIT(A) was not justified in confirming the addition of Rs. 67.50 lacs without ensuing that payment through cash and bearer cheque has been made to M/s. Rajasthan Land Developrs Pvt. Ltd.
4. That the appellant craves leave to add to alter, amend, modify, substitute, delete and / or rescind all or any of the grounds of appeal on or before the final hearing, if necessary so arise. ITA No.109/JP/2017 - A.Y. 2007-08
''1. On the facts and circumstances of the case, the ld. CIT(A) was not justified while rejecting additional evidences u/s 46A which was considered without allowing opportunity of being heard by AO.
2. On the facts and circumstances of the case the ld. CIT(A) was not justified while confirming the order passed u/s 147/143(3) of the I.T. Act, 1961.
(3) On the facts and circumstances of the case the ld. CIT(A) was not justified while confirming addition of Rs. 3.26 crores u/s 68 as unexplained cash credit of I.T. Act, 1961.
(4) On the facts and circumstances of the case, the ld. CIT(A) was not justified while not allowing the opportunity of cross 2 ITA No.496/JP/2016 M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur examination of statement of director of purchase company recorded u/s
131.'' 2.1 First of all we take up the appeal of the assessee in ITA No. 418/JP/2016 for the Assessment Year 2006-07 for adjudication. Apropos Ground No. 1 to 4 of the assessee, the facts as emerges from the order of the ld. CIT(A) are as under:-
''3.1.2 Determination (Ground No. 1 ) (1) I have carefully perused the submission of the appellant and the material placed on record. The brief fats of the case are that an MOU was executed between the appellant and M/s. U Turn Housing P Ltd (UTHPL) on 22- 03-2006. As per the said MOU, the appellant agreed to sell 1,25,000 square yards of land to UTHPL which was being developed by the appellant at Sanganer, Jaipur at the rate of 1270/- per square yard. UTHPL has already paid a sum of Rs. 2.20 crores through cheque and Rs. 57,50,000/- in cash till the date of the said MOU i.e. till 22-03-2006. The balance amount was to be paid by UTHPL as per the following schedule.
(a) Rs. 5 crore till 10-04-2006.
(b) Rs. 4 crore till 10-05-2006.
© Rs. Balance Rs. 4.10 crore till 04-06-2006
i.e. 1,25,000 square yard of land was agreed to be sold and purchased for a total consideration of Rs. 15,87,50,000/-. It would be relevant to mention here that the appellant had neither taken any post dated cheques for the balance amount from UTHPL nor mentioned anything about the mode of its payment in the MOU. As per the said MOU, if UTHPL do 3 ITA No.496/JP/2016 M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur not make the payment in time, it had to pay additional amount at the rate of Rs. 200/- per square yard.
(ii) During assessment proceeding, it was claimed by the appellant that the above MOU dated 22-03-2006 was cancelled between the parties on 14-07-2007 as UTHPL could not make the entire payment by 04-06-2006 as specified in MOU dated 22-03-2006 and could pay only Rs. 4.16 crore through cheques. In the extended period, out of the total sale consideration of Rs. 15,87,50,000/-, UTHPL could pay only Rs. 5.69 crore till 14-07-2007. It may be mentioned that another MOU was claimed to be executed on 14-07-2007 between them wherein only marketing rights for 72000 square yard of residential land were assigned to UTHPL at the rate of Rs. 1270/- per square yard i.e. now the total consideration was Rs. 9,14,40,000/-. As mentioned earlier that in the MOU dated 22-03-2006, if UTHPL was unable to pay the agreed amount within the stipulated time, then it had to pay the additional amount of Rs. 200/- per square yard but this clause was not invoked by the appellant as is apparent from the cancellation agreement. In the cancellation agreement dated 14-07-2007, it was also stated that the UTHPL was to pay Rs. 57,50,000/-in cash within 15 days of MOU dated 22-03-2006 which was not paid by UTHPL and the appellant stated to receive cash of Rs. 57,50,000/- in the MOU dated 22-03-2006 only on the promise made by UTHPL.
(iii) During assessment proceeding, the AO made enquiries through the investigation wing at New Delhi where statement of Shri Nikhil Tripathi, Director of UTHPL was recorded on oath u/s 131 of the Act in which he confirmed the payment of cash of Rs. 57,50,000/- and Rs. 10 lacs through bearer cheque during the year under consideration and state that the MOU dated 14-07-2007 was not signed by him and a forged document. On the basis of the detailed discussion in the assessment order, the AO made an addition of Rs. 67,50,000/- on account of unrecorded sales. 4 ITA No.496/JP/2016
M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur
(iv) During appellate proceedings, the appellant repeated the submissions made before the AO and placed reliance on the charge sheet filed by the Police against UTHPL and its Directors emphasizing that the cancellation agreement dated 14-07-2007 was recovered in original by the Police from the possession of Shri Tripathi. A copy of the charge sheet was also filed. I have gone through the said charge sheet and noted that the facts as discussed above in this order has been mentioned in this regard and the AO did not mention anything about the genuineness or otherwise of the cancellation agreement dated 14-07-2007. Therefore, the said charge sheet is of no help to the appellant.
4.1 It is pertinent to mention here that apparently, the signatures of Shri Nikhil Tripathi and the MOU dated 22- 03-2006 and the so called cancellation agreement and MOU dated 14-07-2007 do not tally. This supports the claim of Shri Tripathi and the cancellation agreement dated 14-07- 2007 is forged one as it do not bear his signatures.
4.2 It would be relevant to mention here that as per the assessment order, UTHPL had shown advance to the appellant at Rs. 2.35 crore against Rs. 1.85 crore claimed to be received by the appellant during the year under consideration through cheques only. It would be appropriate to reproduce here the relevant extracts of the statement of Shri Nikhil Tripathi recorded on oath u/s 131 of the Act by the Investigation Wing at New Delhi, as stated in the assessment order, as under:-
Q. No.6: Please go through the copies of balance confirmation for the period 01-04-2005 to 31-03-2006 and 01-04-2006 to 31-03-2007 filed by RLDPL before its Assessing Officer. As per these documents, the balance shown by RLDPL as on 31-03-2006 against UTHPL is Rs. 1,80,00,000 (credit) and that on 31-03-2007 the same is shown at Rs. 5,69,00,000 (credit). Both these documents 5 ITA No.496/JP/2016 M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur bear your signature. However as per your books of accounts the balance shown is Rs. 2,45,00,000/- and 9,83,00,000/- respectively. Please explain the same?
Ans. M/s. RLDPL have not accounted for payment amounting to Rs. 5,00,000/- paid vide cheque no.093202 dated 20-02-2006, Rs. 50,00,000/- vide cheque 344402 dated 31-03-2006 and Rs. 10,00,000 vide bearer cheque no. 344404 dated 31-03-2006 in their books of accounts for F.Y. 2005-06. Subsequently, they have accounted for Rs. 50,00,000/- paid vide cheque no. 344402 dated 31-03-2006 in the next F.Y. However, they have not accounted for Rs. 5,00,000/- paid vide cheque no. 344404 dated 31-03-2006 even till date in their books. With respect to the balance as on 31-03-2007, it is stated that they have not accounted the payments entered in our books which was paid by way bearer cheques and cash as sated above.
Q.No.7: I am also showing a copy of document filed 'Detail of payments made to Rajasthan Land Developers Pvt. Ltd. Jaipur during the period w.e.f. 01-03- 2006 to 31-03-2007' which has been filed by your company before the ITO, Ward 2(2), Jaipur u/s 133(6) of the I.T. Act, 1961. Please state whether you accept that this document has been filed by your company and if so why it does not match with your books of accounts?
Ans: I confirm that the said document has been filed by UTHPL before the ITO,Ward 2(2), Jaipur u/s 133(6) of the I.T. Act, 1961. The total payment of Rs. 9.83 crore made to M/s. RLDPL matched with your books of accounts. However, the dates as per books of accounts and the said statement differs because UTHPL has accounted for the entre cash and part payment by bearer cheque paid to RLDPL in the F.Y. 2006-07. We again confirm the payment by cash/ bearer cheque during the F.Y. 2005-06 to RLDPL amounts to Rs. 67,50,000/- and during F.Y. 2006-07 the same amount to Rs. 3.42 crore against which Rs.10,00,000/-6 ITA No.496/JP/2016
M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur is accounted for in our books in the F.Y. 2005-06 and the balance 3.99 crores is accounted for in our books in the F.Y.2006-07.
(v) Thus, in the above referred statement of Shri Tripathi claimed to make cash payment of Rs. 67.50 lacs and Rs. 3.42 crores during the year F.Y. 2005-06 and 2006-07 respectively and the total payment of Rs. 9.83 crores was made by UTHPL to the appellant as is evident from its books of accounts. It is pertinent to mention here that as per the audited financial statement of UTHPL for the FY 2006-07 dated 06-06-2007, it had shown loans and balance to the appellant at Rs. 2.45 crores and Rs. 9.83 crores as on 31-03-
2006 and 31-03-2007 respectively. It was the contention of the appellant that in his statement Shri Tripathi was telling a lie but it failed to cite any reason for Shri Tripathi to make a false statement. Further, it was not able to state any reason why UTHPL would sown such huge payments in its financial statements which were not actually paid by it as claimed by the appellant and that too through cash payments. It is matter of common knowledge that in real estate transactions, at least 30 - 40% payments are made in cash. It is pertinent to mention here that vide earlier MOU dated 22- 03-2006, 1,25,000 square yards of land was sold by the appellant to UTHPL at the rate of Rs. 1270/- per square yard whereas as per the new MOU dated 14-07-2007, as claimed by the appellant, only marketing rights of 72000 square yards of residential land were assigned at the rate of 1270 per square yard to UTHPL by the appellant. These facts coupled with the facts available on record clearly establish that the appellant received a sum of Rs. 67.50 lacs during the year under consideration which was not recorded in its books of accounts. In the ground of appeal, it has been stated by the appellant that the AO has not mentioned the section under which the addition was made and he has not verified the bank statement. In this regard, it is stated that non- mentioning of section does not make the assessment bad. 7 ITA No.496/JP/2016
M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur Further, for cash transaction, there is no need for verification of the bank statements.
(vi) In view of the above discussion, it is held that the AO was justified in making an addition of Rs. 67.50 lacs. Further, as the powers of CIT(A) are co-terminus with that of the AO, it is held that the income is to be assessed as 'Income from other sources'.
3.2.2 Determination (Ground No.2)
(i) I have carefully perused the submissions of the appellant and the material placed on record. It could be seen from the assessment order that in para 3.9 on page 6, it was stated by the AO that :-
''the copy of statement of Shri Nikhil Tripathi recorded on 13-03-2014 was forwarded to assessee vide this office letter No. 2306 dated 14-03-2014 with a request to explain why the amount of Rs. 67,50,000/- should not be treated as income of the assessee company not recorded in the books of accounts.''
(ii) Therefore, the statement of Shri Nikhil Tripathi recorded on 13-03-2014 was brought to the notice of the appellant by the AO vide letter dated 13-03-2014. The appellant has not brought on record any material which may indicate that it required cross examination of Shri Tripathi. It is trite law that the information gathered behind the back of the appellant cannot be used unless confronted. In the instant case under consideration, the appellant was confronted wit the statement of Shri Tripathi but the appellant did not seek the cross examination of Shri Tripathi. Now, at the appellant stage, the appellant cannot be allowed to raise this ground which he had already waived at the assessment stage.
Therefore, this ground of appeal is rejected.
3.3.2 Determination - Ground No. 3 8 ITA No.496/JP/2016
M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur
(i) I have carefully perused the submissions of the appellant and material placed on record. This issue has already been dealt in Ground of appeal No. 1, hence this ground of appeal is rejected.
2.2 During the course of hearing, the ld.AR of the assessee filed the written as to the respective grounds raised in the appeal which has been taken into consideration. The ld.AR of the assessee concisely argued that the ld. CIT(A) has erred in confirming the addition of Rs. 67.50 lacs and the AO did not allow the assessee to cross examine the statement given by Shri Nikhil Tripathi during the course of proceedings. 2.3 On the other hand, the ld. DR supported the order of the lower authorities.
2.4 We have heard the rival contentions and perused the materials available on record. Brief facts of the case are that the assessee deals in business of sale, purchase, acquire, convert, develop, construct land & building including farm houses, villa residential flats, commercial complex etc. As per the information available with the department, the AO observed that the assessee company had entered into an agreement for sale of its land situated at Sanganer-Diggi Malpura Road in the revenue village of Panwalia, Manpur Tillawala, Jaisinghpura, Roopwas falling in Sanganer Tehsil of Jaipur district vide Memorandum of 9 ITA No.496/JP/2016 M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur Undertaking (MOU) dated 22-03-2006 with M/s. U-Turn Housing Pvt. Ltd. As per this MOU dated 22-03-2006, an amount of Rs. 2,20,00,000/- had been received through cheque and Rs. 57,50,000/- through cash upto date of agreement/MOU. However, as per the confirmation of accounts of M/s. Rajasthan Land Developers Pvt Ltd. filed by Shri Prabhu Lal Chopra before the Investigation Wing of the Department, gross receipt of only Rs. 1,80,00,000/- had been shown as under:-
S.N. Date Amount (Rs.)
1. 27-02-2006 35,00,000
2. 28-02-2006 35,00,000
3. 11-03-2006 50,00,000
4. 20-03-2006 60,00,000
1,80,00,000
The AO noted that apart from above, Rs. 5,00,000/- has been received from Shri Nikhil Tripathi, Director of M/s. U-Turn Housing Pvt. Ltd on 16-02-2006. Therefore, out of total receipts of Rs. 2,77,50,000/- (Rs. 2,20,00,000 plus Rs. 57,50,000/-), only Rs. 1,85,00,000/- (Rs. 1,80,00,000 plus 5,00,000) had been stated to be declared by the assessee and balance of Rs. 92,50,000 (Rs. 2,77,50,000 minus Rs. 1,85,00,000) had not been declared by the assessee. Therefore, the case of the assessee was reopened u/s 147 of the I.T. Act, 1961 and notice u/s 148 of the Act 10 ITA No.496/JP/2016 M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur was issued on 16-03-2013. It is noted that this case was examined by the Investigation Wing of the department and statement of Shri Ram Prasad Chopra, one of the director was recorded u/s 131 of the Act on 29-11- 2013. The Investigation wing as per the MOU observed that the assessee had received following payments from M/s. U-Turn Housing Pvt. Ltd upto the date (22-03-2006) of signing of MOU.
Rs.2,20,00,000 - through various chaques.
Rs. 57,50,000 - in cash The AO noted that the contention of the assessee was that in fact no cash of Rs. 57,50,000/ was received from U-Turn Housing Pvt Ltd. and it was only a promise to pay in future. As regards receipts of Rs. 2,20,00,000/- through cheques it was stated that Rs. 1,80,00,000/- were received from the company and Rs. 5.00 lacs were received through Director Shri Nikhil Tripathi. Thus the assessee company had received in total a sum of Rs. 1.85 crores from M/s. U-Turn Housing Pvt. Ltd. The AO further noted that the assessee company filed a copy of cancellation agreement of sale agreement dated 22-03-2006 made on 14-07-2007 in which it was stated that the amount of Rs. 57,50,000/- was never received and it was written on the basis of verbal assurance. The AO at para 3.4 has taken into 11 ITA No.496/JP/2016 M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur consideration the relevant portion of cancellation agreement. The AO noted that in order to verify the correctness of facts mentioned in various agreements, information u/s 133(6) was called from M/s. U-Turn Housing Pvt. Ltd and on examination of the copy of account of M/s. Rajasthan Land Developers Pvt Ltd. in their books, the following payment had been shown to be made during the year under consideration.
Date Cheque details Amount
22-02-2006 No. 093202 Rs. 5,00,000/-
25-02-2006 No. 093207 Rs. 35,00,000/-
25-02-2006 No. 093208 Rs. 35,00,000/-
25-02-2006 Cash Rs. 8,00,000/-
01-03-2006 Cash Rs. 25,00,000/-
05-03-2006 Cash Rs. 25,00,000/-
10-03-2006 No. 093211 Rs. 50,00,000/-
18-03-2006 No. 093216 Rs. 60,00,000/-
22-03-2006 Cash Rs. 25,00,000/-
31-03-2006 DD No 922731 Rs. 50,00,000/-
Thus the AO noted that M/s. U-Turn Housing Pvt. Ltd made total payments of Rs. 3,18,00,000/- as per details mentioned above. The copy of the account supplied by M/s. U-Turn Housing Pvt. Ltd was provided to the assessee company to explain the same which was replied by the ld.AR of the assessee vilde letter dated 11-02-2014. The copy of reply received from the assessee alongwith copies of confirmation were forwarded by 12 ITA No.496/JP/2016 M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur the AO vide his letter No. 2177 dated 11-02-2014 to M/s. U-Turn Housing Pvt. Ltd. It is also noted that in order to examine M/s. U-Turn Housing Pvt.Ltd., commission u/s 131(1)(d) of the I.T. Act, 1961 was issued by ADIT (Inv.), Special Cell, New Delhi vide office letter No. 2178 dated 13-02-2014. The report of ADIT (Inv.), New Delhi was received on 14-03-2014. Shri Nikhil Tripathi, Director M/s. U-Turn Housing Pvt. Ltd was examined on 13-03-2014 by ADIT (Inv.) and his statements were recorded in which he confirmed the cash payments of Rs. 4.09 crores in F.Y.2005-06 & 2006-07 to the assessee company, out of which an amount of Rs. 67,50,000/- (including Rs. 10,00,000/-paid through bearer cheque) was stated to be paid during the year under consideration. As regards the cancellation agreement dated 14-07-2007, it is noted at page 6 of the assessment order wherein Shri Nikhil Tripathi had denied in his statements to have signed any such document. Shri Tripathi in his statement at Answer to Question No. 4 denied that an Ikrarnama dated 14-07-2007 was executed by him on behalf of U-Turn Housing Pvt. Ltd (UTHPL) and his signatures are forged and this ikrarnama is completely forged document. Shri Tripathi confirmed the Answer to Question No. 5 that Rs. 57,50,000/- was paid in the year 2005- 13 ITA No.496/JP/2016 M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur 06 upto 22-03-206 in cash to M/s. Rajasthan Land Developers Pvt Ltd.. Thus the copy of the statement of Shri Nikhil Tripathi recorded on 13-03- 2014 was forwarded to the assessee by the AO vide letter No.2306 dated 14-03-2014 to with a request to explain why the amount of Rs. 67,50,000/- should not be treated as income of the assessee company which was not recorded in the books of accounts. In response thereto, the ld.AR of the assessee on 19-03-2014 replied, the contents of the same are narrated at page 6 & 7 of the assessment order. The submissions of the assessee have been taken into consideration by the AO but the same has not been found convincing by the AO with following observation.
''3.11.4 Therefore, the contention of the assessee that no cash of Rs. 57,50,000/- was received at the time of agreement is not found convincing at all because when no such cash was received by the assessee company why this clause was put in the MOU dated 22-03-2006.
3.11.5 In the submissions, assessee has relied upon the FIR filed at Delhi against Shri Nikhil Tripathi which has no relevancy with the issue in hand because the FIR was filed by the person who booked plot with M/s. UTHPL and not the assessee company and assessee was examined by the Delhi Police as witness. The Delhi Police has not given any finding on the receipt/ non-receipt of Rs. 57,50,000/- by the assessee company.
As regards the signing of copy of yearwise confirmation of accounts by M/s. TPHL, Shri Nikhil Tripathi was confronted by the AO who had 14 ITA No.496/JP/2016 M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur replied at page 8 and 9 of the assessment order. Thus the AO looking into the facts and circumstances of the case, the AO made the addition of Rs. 67.50 lacs in the hands of the assessee by observing as under:-
''3.12 Therefore, keeping in view the above facts, it is held that assessee company has not accounted for Rs. 67,50,000 (Rs. 57,50,000 plus Rs. 10,00,000) received from M/s. UTHPL in cash and through bearer cheque and same is treated as income of the assessee company not recorded in the books of account.'' In first appeal, the ld. CIT(A) has confirmed the action of the AO detailing all the facts and circumstances of the case. It is also noted that during the course of hearing the ld.AR of the assessee could not advance any contrary arguments confronting the orders of the lower authorities. It is further noted from the available records that the assessee had received a sum of Rs. 67.50 lacs during the year under consideration which was not recorded in the books of account of the assessee. It is also pertinent to mention that before the Investigation Wing at New Delhi, Shri Nikhil Tripathi, Director of UTHPL statement was recorded u/s 131 of the Act in which he confirmed the payment of cash of Rs.57.50 lacs and Rs. 10.00 lacs through bearer cheque during the year under consideration and stated that the MOU dated 14-07-2007 was not signed by him but it was a 15 ITA No.496/JP/2016 M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur forged document. In this situation, the AO noticed the unrecorded sales of Rs. 67.50 lacs and made the addition in the hands of the assessee . As regards non-mentioning of section by the AO as to the addition, the ld. CIT(A) has rightly gave observation as under:-
''(v)........It was the contention of the appellant that in his statement Shri Tripathi was telling a lie but it failed to cite any reason for Shri Tripathi to make a false statement. Further, it was not able to state any reason why UTHPL would show such huge payments in its financial statements which were not actually paid by it as claimed by the appellant and that too through cash payments. It is matter of common knowledge that in real estate transactions, at least 30 - 40% payments are made in cash. It is pertinent to mention here that vide earlier MOU dated 22-03-2006, 1,25,000 square yards of land was sold by the appellant to UTHPL at the rate of Rs. 1270/- per square yard whereas as per the new MOU dated 14-07-2007, as claimed by the appellant, only marketing rights of 72000 square yards of residential land were assigned at the rate of 1270 per square yard to UTHPL by the appellant. These facts coupled with the facts available on record clearly establish that the appellant received a sum of Rs. 67.50 lacs during the year under consideration which was not recorded in its books of accounts.In ground of appeal, it has been stated by the appellant that the AO has not mentioned the section under which the addition was made and he has not verified the bank statement. In this regard, it is stated that non-mentioning of section does not make the assessment bad. Further, for cash transaction, there is no need for verification of the bank statements.'' In view of the above deliberations, facts and circumstances of the case, we concur with the findings of the ld. CIT(A). Thus the appeal of the assessee for the 2006-07 is dismissed.16 ITA No.496/JP/2016
M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur 3.1 Now we take up the appeal of the assessee in ITA No. 109/JP/2017 for the Assessment Year 2007-08 for adjudication.
3.2 During the course of hearing, the ld.AR of the assessee vide application dated 25-01-2017 prayed to admit the additional evidence i.e. ADJ Court Order 20-11-2015 ( Room No. 10, Jaipur Mahanagar, Jaipur), the contents of application raising the additional evidences are as under:-
''ld. CIT(A) has confirmed the addition made by AO vide his order dated 6-11-2015. According to the order ld. CIT(A) confirmed the addition amounting to Rs. 67,50,000/- . The basis for rejection of appeal was based on the fact that agreement dated 22-03-2006 was valid and it was not cancelled. It is pertinent to note that agreement dated 22-03- 2006 and 14-07-2007 were pending before the Court of Upper District Magistrate Court No.19. As suit was not decided, therefore, it was incumbent on the part of the ld. CIT(A) to keep the proceedings in abeyance; the ld. CIT(A) instead determined the issue. As suit was decided on 20-11- 2015 i.e. 14 days after the order of the ld. CIT(A) in which honourable Magistrate has awarded the judgement in favour of the appellant. Therefore, statements depose by UTURN HOUSING PVT LTD. becomes null and void. As whole addition amounting to Rs. 67,50,000/- is based on these agreement. The very basis of addition becomes meaningless and against the principle of natural justice. It is important to state that these two agreements are interrelated and have material meaning on the issue of addition of Rs. 67,50,000/-. As ld. CIT(A) has urged in his order that chance of cross examination has been waived which is baseless and not based on the principle of natural justice. AO never offer the opportunity to cross examine the statement in the wake of 17 ITA No.496/JP/2016 M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur circumstances of the case. Appellant respectfully request your honour to admit these additional evidence in the interest of principle of natural justice. The copy of this application has already been served on the ld. DR.'' 3.3 On the other hand, the ld. DR opposed the additional evidence filed by the assessee praying that the same had been taken into consideration by the ld. CIT(A) in its judgement dated 30-12-2016 for the Assessment Year 2007-08.
3.4 We have heard the rival contentions and perused the materials available on record. We find that the ld. CIT(A) vide its judgement dated 30-12-2016 for the Assessment Year 2007-08 had taken into consideration the judgement dated 20-11-2015 of Hon'ble Upper District Judge, Room No. 19, Jaipur Mahanagar and rejected the contention of the assessee by observing as under (Page 20) of ld. CIT(A)'s order):-
''(v) Further vide above referred order, the Hon'ble ADJ has held as under:-
''Qyr% oknh dEiuh dk ;g okn fo:} izfroknhx.k ,di{kh; lO;; fMdzh dh vkns'k fn;k tkrk gS fd okfn dEiuh o izfroknh dEiuh ds e/; fu"ikfnr ,e-vks-;w fnukad 14-07-2007 ds rgr gh oknh dEiuh of.kZr 'krksZ o izkIr jkf'k ds vuqlkj gh izfroknh dEiuh dks Hkwfe miyC/k djokus dk nkf;Ro j[krh gSA ftlds QyLo:i ;g LFkkbZ fu"ks/kkKk iznku dh tkrh gSA fd izfroknhx.k dEiuh ,e-vks-;w fnukad 14-07-2007 esa of.kZr 'krksZ ds fo:} fdlh izdkj dh dksbZ dk;Zokgh ugh djsA 18 ITA No.496/JP/2016 M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur ''(vi) Thus it is evident from the above that the issue of genuineness or otherwise of the MOU dated 14-07-2007 was not before the Court of Hon'ble ADJ and the MOU dated 22-03-2006 was not placed before the Hon'ble Court, according to which balance payment of Rs. 13.10 crore was required to be paid to before 04-06-2006, out of the sale consideration of Rs. 15,87,50,000/-. Moreover, the above order was passed ex-parte in the absence of the respondents U Turn and Shri Nikhil Tripathi. Thus the contention of the A.R. is not correct and thus hereby rejected.
(vii) It may be mentioned that the appellant has failed to controvert the findings of the AO as stated in the assessment order and the remand report. Therefore, in view of the above discussion and looking to the totality of facts and circumstances of the case, it is held that the AO was justified in making addition of Rs. 3.26 crores u/s 68 of the Act and hence the same is hereby sustained.'' It is noted that filing of additional evidence by the ld.AR of the assessee has no relevance as the same has already been taken into consideration in the case of the assessee for the Assessment Year 2007-08. In this view of the matter and facts and circumstances of the case, we concur with the findings of the ld. CIT(A) for the Assessment Year 2007-08 and do not find merit in admitting the additional evidence filed by the assessee.
Hence, the additional evidence filed by the assessee for the Assessment Year 2007-08 is not admitted. Thus Ground No. 1 of the assessee is dismissed.
19 ITA No.496/JP/2016
M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur 3.5 As regards Ground No. 2, 3 and 4, we have heard the rival contentions and perused the materials available on record. It is not imperative to repeat the same facts as similar issue has been decided against the assessee in assessee's own case for the Assessment Year 2006-07. We further noted that in this case the ld. CIT(A) has rightly confirmed the action of the AO as the assessee could not advance any contrary material/ evidence as to the addition confirmed by the ld. CIT(A). In view of the similar facts and circumstances of the case as narrated in the case of the assessee for the Assessment Year 2006-07, the decision taken therein shall apply mutatis mutandis in assessee's case for the Assessment Year 2007-08. Thus the appeal of the assessee is dismissed.
4.0 In the result, the appeals filed by the assessee are dismissed.
Order pronounced in the open Court on 7-02-2018.
Sd/- Sd/- ¼ fot; iky jko ½ ¼HkkxpUn½ (Vijay Pal Rao) (Bhagchand) U;kf;d lnL; /Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 7 /02/ 2018 *Mishra
vkns'k dh izfrfyfi vxzfs "kr@Copy of the order forwarded to: 20 ITA No.496/JP/2016
M/s. Rajasthan Land Developers Pvt Ltd. vs ITO, Ward- 2(2), Jaipur
1. vihykFkhZ@The Appellant- M/s. Rajasthan Land Developers Pvt. Ltd. Jaipur
2. izR;FkhZ@ The Respondent-The ITO, Ward- 2(2), Jaipur /DCIT, Circle
- 2, Jaipur
3. vk;dj vk;qDr¼vihy½@ CIT(A).
4. vk;dj vk;qDr@ CIT,
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (ITA No. 418/JP/2016) vkns'kkuqlkj@ By order, lgk;d iathdkj@ Assistant. Registrar 21