Sanjiv Khanna, J. - (1.) THIS appeal filed by the Revenue pertains to assessment year 2004 -05 and impugns the findings recorded by the Income Tax Appellate Tribunal (Tribunal, for short) in their order dated 21st September, 2012.
(2.) THE appeal, it appears, was filed within time, but returned under office objection and there is a prolonged delay of 650 days in re -filing of the appeal. However, before issuing notice on the application for condonation of delay, we deem it appropriate to examine the grounds of appeal on merits. The respondent, a company and persons associated with it, were subject to search and seizure operations under Section 132 of the Income Tax Act, 1961 (Act, for short) on 28th March, 2006. Notice under Section 153A was issued and return of income for assessment year 2004 -05 was filed declaring income of Rs.10,15,899/ -. The respondent company had surrendered undisclosed income of Rs.2 crores during the course of search. In addition, disclosure of Rs.2 crores in the name of Yogesh Gupta, Rs.2 crores in the name of Rajiv Bahal and his family members, Rs.9 crores in the name of Realtech Project Pvt. Ltd. and Realtech Construction (P) Ltd. was made. The aforesaid surrender is not in dispute and the amount has been brought to tax.
(3.) IN the order passed under Section 153A of the Act, the Assessing Officer referred to the reply submitted by the assessee in response to the notice for violation of Section 269SS and 269T of the Act, wherein it was mentioned that during the period in question, the assessee had taken advance/loan on certain commitments for buying property, which after the property was sold, was returned with the commitment as agreed. In this way, the transaction of one property was cleared and the surplus fund so generated along with further requirement of funds as arranged on commitments deployed in another property and so on. The surplus income earned by the assessee was used in other properties. The Assessing Officer observed that the reply was roundabout and was not specific and to the point. He held that the assessee had accepted that they had received cash loan and had repaid the same in cash along with interest. The Assessing Officer referred to one document, which was found at the residence of Yogesh Gupta and observed that the figures mentioned in the said document/register, when decoded, revealed cash loan transactions. This, he held, was indicative of violation of Sections 269SS and 269T as loan was taken in cash and was also returned in cash along with interest. The findings recorded by the Assessing Officer are to be found in paragraphs 8.4 and 2, which for the sake of convenience are reproduce below: - "8.4. It is seen that Shri Yogesh Gupta is the main person of the group. As the facts and circumstances suggest the loans etc. were used for the purpose of the business of the flagship company M/s. Home Developers Private Limited. Further, most of the documents under reference were in the hand writing of Shri Yogesh Gupta (mostly in pencil) . In view of the facts, the loan transactions and repayment of loans are considered in the hands of M/s. Home Developers Private Limited. The additions to be made on this account would be as per the discussion in the following paragraphs wherein specific documents evidencing the receipt of loan and its repayments has been indicated. x x x x x x 2. Similar are the facts of Page No. 16 to 18 (Annexure A -11) seized from the residence of Yogesh Gupta. These pages gives details of loans/ deposits and the interest paid/ payable thereon to some Ojhaji & Sharmaji which comes to 75 lacs (8 lacs to 67 lacs) in AY 04 -05. It is held that these loans received, have been repaid in AY 04 -05 itself. Further, the interest thereon as paid/ payable comes to Rs. 15 lacs. Total addition on account of this page would work out to Rs.90 lacs. (75+15) . This page is found mentioned on page No. 22 of Annexure A -11. I am satisfied the assessee has furnish/ concealed particulars of his income. Penalty proceedings u/s 271(1)(c) is being initiated on this point separately.";