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4.2 Consequently, in the ld.CIT(A) after due consideration of all the issues involved, passed the impugned order afresh, again deleting the addition made against which the Revenue is before us. The facts in brief are that the assessee is a builder and developer. It filed return of income declaring total income of Nil. Later the AO completed the assessment u/s 143(3)/ 144 r.w.s. 145 of the Act by assessing total income at Rs. 2,73,62,240/-.During the year under consideration, the assessee completed project "Balaji Avenue" at Kamothe Navi Mumbai. The project was started in year 2008. During the course of assessment proceedings for the earlier A.Y 2011-12, the AO found that the project "Balaji Avenue" at Kamothe Navi Mumbai was completed to the extent of 95.83% as on 31.03.2011. The profit from the project was calculated at Page |5 A.Y. 2011-12 Varsha Enterprises Rs. 58,97,073/- in A.Y 2011-12 by the AO as against nil income offered by assessee firm for the year. This addition stands deleted and is not the ground before us. Rather, the ground before us relates to the addition of Rs.2.41,26,879/- in respect of 11 flats/shops on the basis of price variation comparing sale value of flat, area in sq ft. date of booking and rate per sq ft. Reference has also been taken from website of www.magicbricks.com for making the addition. As per the assessment order, the assessee submitted the details in respect of 11 flats/shops which formed the basis of addition as unaccounted sale and along with Index no. II in respect of all 11 flats/shops registered in year under consideration. On perusal of details, it was observed by him that flat/shop no. 403,905,1202 were registered at price higher than the stamp duty valuation Further, the flat/shop No 103,302,303, 406,802, 803, 902,1304 were booked in earlier date in which the stamp duty valuation was less than agreement value. The assessee furnished reasons in details in the cases where the shops/flats were sold at lesser price than market valuation. The ld.AO rejected the books of account u/s 145 of the Act and worked out unaccounted sales at Rs 2,41,26,879/- ,making reference to the rates as per the portal Magicbricks.com, which was added to the income.

"12. We have heard the rival submissions, perused the orders of the authorities below. In this case the Assessing Officer noticed from the information submitted by the assessee, as well as from the information obtained by him from the website www.magicbricks.com that there is a huge variation in sale prices of the flats constructed by the assessee within the wing and also within the floor of the residential project constructed by assessee. The Assessing Officer after making his own analysis and relying on the data furnished in the website concluded that there is a huge variation in sale prices. On a query by the Assessing Officer that there is a huge variation of sale prices of different flats, the assessee submitted that it had always tried to sell at the maximum prices that it can be able to get and its transactions are at arm's length and assessee has accounted what it had received from the buyers. Assessee requested the Assessing Officer to specify the transactions where there is a price variation at almost 100% within the gap of its sale, so that assessee could submit its reply. It was also contended that unless there is evidence and receiving cash other than the actual sale price, addition cannot be made on a guess work. It was also contended that the website www.magicbricks.com cannot be relied at all as the data shown in the website is not authentic and without any basis. The assessee also contended that the Books of Accounts of the assessee cannot be rejected under provisions of section 145(3) of the Act and should not be attracted to the assessee as it had disclosed correct sale prices and sale proceeds and not a paisa received by it over and above what is disclosed in its Books of Accounts. It was contended that transactions are at the market value prevailing at the material at that point of time, and on opinion basis, on mere guess work, recording market prices is not adequate material in the absence of evidence to the fact that the actually assessee received more than consideration that of record in its Books of Accounts. The submissions of the assessee were ignored by the Assessing Officer and he proceeded to reject the Books of Accounts based on his own analysis and also relying on the data in the website www.magicbricks.com.
P a g e | 12 A.Y. 2011-12 Varsha Enterprises
13. We find that the Assessing Officer did not ask for variation in sale prices with regard to any particular flat though the assessee requested that the explanation can be furnished once it is known in respect to a particular flat the information is to be submitted. The Assessing Officer made general statement that there is a variation in sale prices in sale of flats. The information relied on by the Assessing Officer in the website www.magicbricks.com also cannot be an authentic information which can be used against the assessee as the disclaimer of the website makes very clear that the data in the website is not actual transaction based and the website does not give any guarantee and it should be verified independently. When the website itself makes it clear that the data fed is not on the basis of actual transactions and should be verified independently, we are unable to understand how the Assessing Officer placed reliance on this data. We are also at loss to understand why the Assessing Officer has not made any efforts to issue notices to the purchasers and find out from them whether any on-money was paid and what is the actual sale consideration paid in these transactions. No such enquiries have been made by the Assessing Officer. The conclusions arrived at in the Assessment Order that there is huge difference in sale price is merely on a guess work. We also find from the information furnished before us and also the finding of the Ld.CIT(A) that many of the flats sold were in "Shell condition" and only few flats were sold after completion of the flat with amenities and in which case, it is bound to be a variation in sale prices. The Assessing Officer rejected the Books of Accounts of the assessee on a mere guess work and surmises without any cogent material to show that there is real variation in sale prices. We also find that the conclusions drawn by the Assessing Officer in the Assessment Order were never put to the assessee for its rebuttal.