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03-06-2019, Nirmal Kumar Kedia, Section 153A, 52, 144, 115BBE, Tribunal Jaipur

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3 months 2 weeks ago #9658 by amit
Section - 153A, 52, 144, 115BBE, 69C, 69A, 69B, 132(4), 133A
Order Date - 03-06-2019
Favouring - Assessee
Court - Tribunal Jaipur
Appellant - Nirmal Kumar Kedia
Respondent - DCIT
Justice - RAMESH C SHARMA, AM & VIJAY PAL RAO, JM
Citation - 619Taxpundit74
Appeal No. - ITA Nos. 124 to 126/JP/2019
Asstt. Year - 2015-16 to 2017-18

Order

PER : R.C. SHARMA, A.M.

These are the cross appeals filed by the assessee and the Revenue against the separate orders of ld. CIT(A)-IV, Jaipur dated 31/12/2018 for the A.Ys. 2015-16 to 2017-18 in the matter of order passed U/s 143(3) read with Section 153A of the Income Tax Act, 1961 (in short, the Act).

2. In all these appeals, common issues are involved, therefore, for the sake of convenience and brevity all the appeals were heard together and now disposed off by passing this consolidated order.

3. Firstly we take assessee’s appeal being ITA No. 124/JP/2019 and Revenue’s Appeal being ITA No. 286/JP/2019 (A Y 2015-16).

Rival contentions have been heard and record perused. The facts in brief are that the assessee derived income from the business of Real Estate and the assessee is also a partner in the firm M/s Kedia Real Estate LLP., the assessee filed his original return of income on 11.1.2016 for the AY 2015-16 declaring total income at Rs. 98,16,820/-. The assessee belongs to Kedia & Yadav Group, Jaipur on whose premises, a search u/s 132 of the Act was carried out on19.11.2016. Various assets/ books of accounts and documents were found and seized as per annexure prepared during the course of search. Pursuant to this, AO issued a notice u/s 153A of the Act to the assessee, in compliance of which, the assessee e-filed his return of income on 21.4.2017 for the AY 2015-16 declaring total income at Rs.98,16,820/-. Finally, the AO completed the assessment u/s 143(3) r.w.s. 153A of the Act vide order dated 22.3.2018 at a total income of Rs. 4,70,12,970/- making various additions.

During the course of search and seizure operations u/s 132(1) of the Act and survey u/s 133A, statement were recorded by the Income Tax department at following premises

During the course of search/survey, statements of Shri Nirmal Kedia and Shri Nitin Kedia were recorded, time of commencement/ conclusion of statements were as under:-

Even after search, statement U/s 131 of the Act was recorded on 02/12/2016 in the hands of Shri Nirmal Kedia wherein he confirmed the surrender made in survey/search but at this stage also he could not give persons wise/year wise bifurcation of undisclosed income. The assessee made several requests to provide the copy of statement (as placed at APB 791 to 800). However, the assessee could get the copy of statement only on 19/01/2018 (Friday). The assessee and his brother Shri Nitin Kedia retracted from the admission of undisclosed income in the statements recorded during the course of survey/search by filing an affidavit before AO on 22/01/2018 Thereafter, the AO recorded the statement of assessee on 23/02/2018 on the retraction of admission made by the assessee and his brother.

3.1 In the order framed U/s 143(3) read with Section 153A of the Act, the A.O. made addition of Rs. 1,22,26,044/- on account of alleged unaccounted business income alleged to be earned on sales of plots in Kediaz Corridor computed on the basis of noting found on Page No. 13- 19 of AS-9 impounded u/s 133(6) from M/s Kedia Real Estate LLP, Shop No. 8-10, Ganesh Nagar 6-A, Nadi Ka Phatak, Murlipura, Sikar Road, Jaipur.

3.2 Addition of Rs. 1,74,91,981/- on account of alleged unaccounted business income alleged to be earned on sales of plots in Kediaz Corridor computed on the basis of noting found on Page No. 23-28 of AS-9 impounded u/s 133(6) from M/s Kedia Real Estate LLP, Shop No. 8-10, Ganesh Nagar 6-A, Nadi Ka Phatak, Murlipura, Sikar Road, Jaipur.

3.3 The A.O. also made addition of Rs. 74,06,624/- on account of alleged unaccounted business income alleged to be earned on sales of plot at Ganesh Vihar Vistar computed on the basis of noting found on Page 21-22 of Annexure-AS-9 impounded u/s 133(6) from M/s Kedia Real Estate LLP, Shop No. 8-10, Ganesh Nagar 6-A, Nadi Ka Phatak, Murlipura, Sikar Road, Jaipur.

3.4 Moreover, the addition of Rs. 71,500/- was made by the A.O. U/s 69C r.w.s 115BBE of the Act being a leged undisclosed expenses on the basis of Page No. 16 of annexure AS-1 found & impounded from Kedia House, Benar Road Ganesh Nagar, Near Nadi Ka Phatak, Jhotwara, Jaipur.

4. By the impugned order, the ld. CIT(A) deleted the addition of Rs. 1,14,46,666/- made on account of unaccounted business income, Rs 37,75,344/- made on account of GP rate on accounted business income from sale of plots. The ld CIT(A) also deleted the addition made by the A.O. of Rs. 31,81,606/- by treating the capital gains as income from business and also addition of Rs. 1,48,22,442/- on account of undisclosed receipts from sale of plots. An addition of Rs. 71,500/- made

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