(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) Revenue is in appeal against judgment of the Tribunal dated 15.1.2010 raising following questions for our consideration:
A Whether on the facts and in the circumstances of the case and in law the Appellate Tribunal erred in deleting the addition made on account of on-money receipts, ignoring that Shri Kaushik K. Shah, the main person in charge of booking/sale of flats, shops and office premises has voluntarily confessed the rate per square feet charged by the assessee for flats/shops etc. and the bifurcation of cheque payment and cash payment as on-money in his statement recorded u/s.132(4) of the I.T. Act?
B Whether on the facts and in the circumstances of the case and in law the Appellate Tribunal erred in deleting the addition made on account of on-money receipts accepting the plea of the assessee that the addition was made solely on the basis of a statement recorded u/s.132(4) of the Act without having any corroborative evidence where Shri Jaiprakash Aswani, the main director of the assessee company had admitted to have earned unaccounted income by way of on-money receipts from the sister concerns engaged in the similar kind of business, during the course of search and seizure operation at his residence and business premises?
C. Whether on the facts and in the circumstances of the case and in law the Appellate Tribunal erred in deleting the addition made on account of on-money receipts, accepting the plea of the assessee that statement recorded u/s.132(4) of the Act was retracted by the assessee ignoring that the retraction of statement was made on 06.07.2004 after considerable period and as an afterthought?"
We have perused the documents on record with the assistance of learned counsel for the Revenue. Issue pertains to additions for on-money transaction by the Assessing Officer in the booking of flats by the assessee. CIT(Appeals) however, referring to the evidence on record, deleted the additions. Revenue carried the issue in appeal. In appeal, Tribunal confirmed the view of CIT(Appeals) primary holding that there is no documentary evidence to prove that assessee had taken any on-money while selling shops and flats. Tribunal held and observed as under:
"7. We have heard both the parties. We have also perused the records available before us and also gone through the orders of authorities below. Looking into the facts and circumstances of the case, we find that the addition is made only on the basis of confession of Shri Kaushikbhai Shah. The said confession was retracted by filing of an affidavit dated 6.7.2004. We have gone through the affidavit, we find that Mr. Kaushikbhai Shah is not in any way related person with the assessee. The learned DR also did not filed any evidence to show that the Shri Kaushikbhai Shah is a relative of the assessee, neither the DR proved beyond doubt that Shri Kaushikbhai Shah is an employee of the assessee. There is no evidence on record that the assessee has received on money. We find from the record that the revenue has not taken any statement of the responsible person from the assessee company at the time of search of during the course of assessment proceedings. The learned DR also could not bring any material contrary to the findings of the CIT(A) . Therefore, in absence of any documentary evidence to prove that the assessee has taken any on-money while selling shops/flats, we appreciate the findings of the learned CIT(A) in deleting the addition and hence our interference is not required."
We are of the opinion that entire issue is in realm of appreciation of evidence and factual in nature. Two authorities having concurrently held that there was no evidence to establish on-money transactions, we do not find any question of law arising. Tax Appeal is dismissed.
(Akil Kureshi,J.) (Ms.
Sonia Gokani,J.) (raghu) Top