Pr. Commissioner Of Income Tax, Jaipur-Ii, Jaipur v. Shri Vibhishek Pal Singh, B

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 44/2018 Pr. Commissioner Of Income Tax, Jaipur-Ii, Jaipur. ----Appellant Versus Shri Vibhishek Pal Singh, B-68, Yash Path, Tilak Nagar, Jaipur ----Respondent D.B. Income Tax Appeal No. 45/2018 Pr. Commissioner Of Income Tax, Jaipur-Ii, Jaipur. ----Appellant Versus Shri Vibhishek Pal Singh, B-68, Yash Path, Tilak Nagar, Jaipur ----Respondent For Appellant(s) : For Respondent(s): Mr. Prateek Kedawat for Mr. R.B. Mathur HON'BLE MR. JUSTICE K.S.JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS 02/04/2018 Judgment By way of these appeals, the appellant has challenged thejudgment and order of the Tribunal whereby the Tribunal hasallowed the appeal of the assessee and dismissed the appeals ofthe department. Counsel for the appellant has framed the followingsubstantial questions of law:- In DBITA No. 44/2018 i) Whether in the facts and circumstances of thecase, the ITAT was justified in deleting theadditions of Rs. 24825300/- made by the Assessing Officer on account of undisclosed cashreceipt which was based upon documents seizedduring the course of search. ii) Whether in the facts and circumstances of thecase, the ITAT was justified in deleting theaddition of Rs. 24825300/- made by the AO onaccount of undisclosed cash receipt which wasbased on documents seized during the course ofsearch. Such documents contained specific detailssuch as ate of sale, cash consideration and thecheque consideration, area, total amount, nameof persons etc. which clearly indicate thattransaction are composite and cash amountreceived on account of on money. iii) Whether in the facts and circumstances of thecase, the ITAT was justified in holding that cashreceipt sown in loose papers represent the receiptfrom finishing job work and only net profit shouldbe taxed without appreciating the fact thatassessee failed to furnish any supporting evidencethat he is indulging in business of furnishing jobwork.” In DBITA No. 45/2018 i) Whether in the facts and circumstances of thecase, the ITAT was justified in cancelling thepenalty amounting to Rs. 2382530/- imposed byAssessing Officer u/s 271AAA of the Act.” While considering the matter, the Tribunal has observed asunder:- “8.5. We have heard the rival contentions andperused the materials available on record. In thiscase, it is noted the AO made the addition ofRs.2,48,25,300/- on account of seized materialfound during the course of search which has beenreduced by the ld. CIT(A) by Rs.10.00 lacs andbalance was sustained. It is noted from theseized documents available at paper book pages51 to 56 that on these papers, certain details likeflat no, amount received through cheques,amount received in cash, the name of thepersons from whom the amount is received etc.are mentioned. On these papers available atAnnexure A-2/19 and Annexure A-6/20-24, thestatement of the assessee u/s 132(4) wererecorded. In statement dated 28.01.2009, inreply to question no. 14 (PB 41), the assesseewith reference to Annexure A-2/19 explained thatthe cash receipt mentioned on this paper may beout of books and if after verification of accounts,these receipts are not found recorded in books, the same would be offered for tax. Thereafter, instatement dated 11.02.09, in reply to Q.No.6 (PB44), he stated that the cash amount mentionedon this paper is not recorded in the books. Someperson give him the extra amount for carryingout the furnishing and finishing work. Thisamount has no link with the business of the firmsand on such amount he agreed to pay the tax byapplying the profit ratio. Again in Q. No. 19 (PB47-48) with reference to Annexure A-6/20-24,assessee stated that the cash amount mentionedon these papers is towards the furnishing of theflats which has nothing to do with the business ofthe firm and this amount has been received forcarrying out the extra work on which he wouldpay the tax considering the percentage of profit.It is also noted that the assessee has declaredthe furnishing income in the return of income forassessment year 2005-06 to 2007-08 asmentioned at page 4 of the order of the ld.CIT(A). Income so offered had been accepted.These fact establishes that assessee had beencarrying out furnishing work in his individualcapacity. In the statement at Paper Book Pages44 & 48, the assessee has also stated that hereceived the amount for furnishing work forwhich he would pay the tax by applying the profitrate. The assessee has offered Rs.10 lacs inA.Y.2009-10 and Rs.20 lacs in A.Y. 2010-11 onthis account. Thus the assessee has offeredRs.30 lacs which gives a profit rate of 12.08%. Itis also a settled law that total receipt cannot beincome. Further, if Revenue’s contention isaccepted that these receipts pertains to thebusiness of various Group Concerns then thesecannot be taxed in the hands of assessee. Duringand after the search, assessee states that thesereceipts are of extra or additional work done byhim to certain purchaser of flats. These receiptshave to be taxed in the hands of assessee byRevenue then total receipts cannot be added tothe total income. Only profit margin has to betaxed. Therefore, we are of the view that entireamount cannot be added to the income of theassessee considering the statement of theassessee u/s 132(4) of the Act. It is alsopertinent to note that the assessee has declaredincome of Rs.10 lacs in A.Y. 2009-10 and Rs.20lacs in A.Y.2010-11 in respect of such receiptwhich is also assessed by the AO, therefore, theaddition made by the AO and partly confirmed bythe ld. CIT(A) is deleted. Thus Ground No.2 ofthe assessee is allowed and that of the Revenuein Ground No.1 (I & II) is dismissed. We are in complete agreement with the view taken by theTribunal. No substantial question of law arises in appeal no.44/2018. Hence, the same stands dismissed. In view of the disposal of substantive appeal, penalty appeal(DBITA No. 45/2018) also will not survive. Hence, both the appeals stand dismissed. (VIJAY KUMAR VYAS),J(K.S.JHAVERI),J A.Sharma/181-182