IN THE HIGH COURT OF DELHI AT NEW DELHI
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ITA 612/2011
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ITA 668/2011
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ITA 669/2011
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ARUN KUMAR SINHA ..... Appellant
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Through: Ms. Anju Jain, Adv.
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versus
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CIT ..... Respondent
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Through: Mr. Deepak Chopra with Mr.
Harpreet S. Ajmani, Advocates.
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CORAM:
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HON'BLE MR. JUSTICE SANJIV KHANNA
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HON'BLE MR. JUSTICE R.V.EASWAR
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O R D E R
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11.04.2012
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We have heard counsel for the appellant in these appeals on the
issue/ contention that the order passed by the Tribunal is perverse.
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2. Two factual findings recorded in the impugned common order passed
by the Income Tax Appellate Tribunal (?Tribunal?, for short) dated
10.09.2010 are challenged. These are examined below.
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3. Firstly, it is stated that loose sheets pertaining to billing and
payments received from M/s. Sunglow Builders Pvt. Ltd. has wrongly been
taken as ` 29,00,000/- on the basis of a proposal and estimate, instead
of ` 15,30,000/-. It is further submitted that at best the total payment
for the work undertaken should have been taken as ` 22,00,000/- in view
of the receipt which was found during the course of search. Secondly, it
is submitted that the Tribunal has erred in making addition of `
1,50,000/- on account of monthly retainership of ` 25,000/- allegedly
received from M/s. Sunglow Builders Pvt. Ltd. It is submitted that this
monthly retainership has been brought to tax on the gross amount without
reducing any expense.
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4. In the present case the search and seizure under Section 132 of the
Income Tax Act, 1961 (?Act?, for short) was carried out at the premises
of the appellant-assessee on 18.11.2005. Thereafter, proceedings under
Section 153A were initiated for issue of notice for the assessment years
2004-05, 2005-06 and 2006-07. At the time of search certain loose sheets
were found. Loose sheets disclosed various bills had been raised by the
appellant-assessee for the work done for M/s. Sunglow Builders Pvt. Ltd.
The first loose sheet was a bill which indicated the different work
performed along with the area/quantum and the charges for the same.
Another loose sheet was bill for payment of work at Mangalam in Module
Nos.8, 9 and 7. The third loose sheet was a receipt of payment of `
22,00,000/- in Mangalam Module No.8, 9 and 7. There was another loose
sheet dated 11.10.2005 in which total payment of ` 15,30,000/- stands
recorded. There are also payments thereafter upto 17.11.2005. We may
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note here that the entire amount mentioned in the loose sheets was treated as undisclosed income of the appellant-assessee, as it was not
recorded in the books. The total amount mentioned in the loose sheets
added up and gross profit rate of 8% has treated as undisclosed income
earned by the appellant-assessee. The Assessing Officer had applied
gross profit rate of 15% but was reduced to 8% by the CIT (Appeals).
This has been upheld by the Tribunal. Having considered the contention,
we hold that it is a pure finding of fact and reasoning of the Tribunal,
which are as under, cannot be treated as perverse:-
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?45. We have carefully consider13d (sic.) the rival submissions in
the light of the material placed before us. Even till today the assessee
has not submitted any evidence to substantiate his contention that the
contents of page Nos.53, 54 and 56 were relating to the same transaction.
It has categorically been recorded in the order of Ld. CIT (A) that the
assessee has failed to produce any documentary evidence to substantiate
such contention. It is not the case of the assessee that he has bad
relation with the firm M/s Sunglow Builders Pvt. Ltd. If it is so, then
the assessee could have got confirmation from them that all these three
documents relate to one transaction only and the amount which was
initially quoted at Rs.29 lac was reduced to Rs.15,30,000/- in further
negotiation. In the absence of any such evidence, we are unable to
interfere in the findings recorded by CIT (A). So as it relates to other
additions also, we are of the opinion that there is no correlation
established by the assessee of these entries with the entries disclosed
in the return. Therefore, the request of the assessee that set off of
these entries should be given against the disclosed receipts cannot be
accepted and it has rightly been rejected by the CIT (A). There is no
material with us to interfere with the findings recorded by the CIT (A).
We decline to interfere and this ground is dismissed. ?
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5. With regard to second contention, we note that another loose sheet
was found at the time of search. The loose sheet indicated payment made
on different dates and for different amounts under separate heads. `
25,000/- was paid every month with description monthly. The Assessing
Officer, the CIT (Appeals) and Tribunal have concurrently held that `
25,000/- was a monthly payment, received by the appellant-assessee. The
fact that the payments were ?monthly? was specifically mentioned in the
lose sheet. It was open to the appellant-assessee to show and establish
that he was incurring some expenses and, therefore, this payment was
towards reimbursement. No such evidence was led to establish the claim.
No substantial question of law arises.
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6. At this stage learned counsel for the appellant has raised another
contention and submits that the Tribunal has erred by upholding addition
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of ` 1,50,000/- on account of unexplained investment. It is submitted that the appellant-assessee has more than 20 years of experience and,
therefore, there was no justification in upholding addition of `
1,50,000/- towards investment. The Tribunal after considering various
aspects including the income declared by the appellant-assessee for the
assessment year 2001-02, 2002-03 and 2003-04, has upheld to the said
addition. The details of taxable income as per returns was as under: -
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?Sr. No. Asstt. Year Income declared
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(a) 2000-01 Rs.57,200
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(b) 2001-02 Rs.1,07,000
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(c) 2002-03 Rs.45,332
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(d) 2003-04 Rs.48,667?
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7. The Tribunal observed that the CIT (Appeals) was right in deleting
addition to the extent of ` 1,00,000/- out of `2,50,000/-. Thus addition
of ` 1,50,000/- was sustained. The findings are reasonable and factual.
The said finding are not perverse. The appeals are dismissed
accordingly.
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SANJIV KHANNA, J
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R.V.EASWAR, J
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APRIL 11, 2012
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hs
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$ 14
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