COMMISSIONER OF INCOME TAX-II Vs. AKSHAR ENTERPRISES

JUDGEMENT

(1.) By way of these appeals, the revenue has challenged the order of the Income Tax Appellate Tribunal, Ahmedabad Bench "D", Ahmedabad (For short, "the Tribunal") in ITA No.36/Ahd/2006 with CO No.50/Ahd/2006, ITA No.41/Ahd/2006 with CO No.51/Ahd/2006 dated 17.4.2009, whereby the appeal filed by the revenue was dismissed and the cross -objection of the assessee was allowed.

(2.) As per the facts of Tax Appeal No.1914 of 2009, the respondent is a partnership firm and it undertook the work to construct a township with one firm, M/s.Akshar Corporation. A search and seizure operation was carried out on 14.2.1994 and statement of partner of the assessee, Shri Vireshbhai D. Patel was recorded wherein he admitted that 40% on -money was charged in respect of sale of flats. Thereafter, a survey operation under Section 133A of the Act was conducted on 24.3.1999 and a print -out of trial balance was also obtained from the assessee. The assessee filed return of income for the Assessment Year 1999 -2000 and the Assessment Officer determined the total income of the assessee to be at Rs.11,13,180/ -. Thereafter, the Assessing Officer found that the assessee has shown the receipt against booking of flats at Rs.93,56,713/ - in the balance -sheet filed with the return, whereas, in the trial balance obtained at the time of survey on 24.3.1999, the same was shown as Rs.1,13,32,043/ -. Thus, the assessee has shown Rs.19,75,330/ - less in the return. The Assessing Officer, therefore, recorded reasons as required under Section 147 of the Act and, thereafter, issued notice directing the assessee to file its return for the Assessment Year on 24.3.2004 and initiated re -assessment. Vide Assessment order dated 28.3.205, the Assessing Officer determined total income of the assessee at Rs.30,88,510/ - by making addition of difference of booking amount being Rs.19,75,330/ -. Against said order, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals), who vide order dated 28.10.2005 partly allowed the appeal of the assessee and deleted addition made by the Assessing Officer. Against the said order, the department preferred an appeal before the Income Tax Appellate Tribunal while the assessee filed Cross Objection No.50/Ahd/2006 in the said Appeal. Both the appeal and the Cross Objection were disposed of by the impugned order, whereby the appeal of the revenue was dismissed and the cross objection of the assessee was allowed.

(3.) At the time of admission of the Appeals, following question of law was framed: -