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Income Tax Appellate Tribunal, ‘’ SMC’’ BENCH, AHMEDABAD
Before: SHRI WASEEM AHMED
आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:
The captioned appeals have been filed at the instance of the Assessee against the separate orders of the Learned Commissioner of Income Tax (Appeals)-2, Vadodara, of even dated 13/06/2018 arising in the matter of assessment order
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passed under s. 143(3) r.w.s 147 of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 2010-2011 & 2013-14.
The assessee has raised the following grounds of appeal:
1.00 On the facts and in the circumstances of the case, the learned CIT. (Appeals) erred in rejecting the appellant’s ground of appeal challenging the validity of the reassessment proceedings initiated u/s.147 and the consequential reassessment order passed by the Assessing Officer. 1.01 On the facts and circumstances of appellant’s case and in law the Hon’ble CIT(A) erred in confirming view of ldAO of merely relied upon the search operations conducted and digital evidences gathered in case of M/s.Corner Point Infrastructure Private Limited (vendor) and its managing director on 16.10.2014 and 17.10.2014 assuming that appellant had paid cash amounting to Rs.1,11,000/- under section 69B of the Act.
1.02 While doing so, the Hon’ble CIT(A) erred in not appreciating that the ldAO had not provided any evidence to substantiate for making addition and also erred in not appreciating that appellant had submitted confirmation statement confirming the payment schedule which shows no payment in cash to of M/s. Corner Point Infrastructure Private. 1.03 Your appellant prays to hold so now and delete the impugned disallowance. 2.00 YOUR APPELLANT CRAVES LEAVE TO ADD, AMEND AND/OR DELETE ALL OR ANY GROUND(S) TAKE HEREINABOVE.
The only interconnected issue raised by the assessee is that the learned CIT (A) erred in confirming the addition made by the AO for ₹ 1,11,111/- under section 69B of the Act.
The facts in brief are that the assessee in the present case is an individual and engaged in the activity of medical profession. The assessee had purchased a flat bearing No. AD-6 from M/s Corner Point Infrastructure private Ltd. (for short CPIPL). The payment for the same was made by the assessee in year under consideration as well as in the subsequent year.
4.1 However, there was the search operation carried out by DGCEI at the premises of CPIPL wherein the digital evidences on the laptop of the director of
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CPIPL were found showing the receipt of ₹ 1,11,111.00 from the assessee against the flat as discussed above. This fact was also admitted by the directors of CPIPL in their statements furnished during the search by DGCEI.
4.2 Accordingly the AO concluded that the assessee has made the cash payment against the purchase of the flat which was not recorded in the regular books of accounts. Thus the AO treated such payment in cash as undisclosed investments under section 69B of the Act and accordingly added to the total income of the assessee.
Aggrieved assessee preferred an appeal to the learned CIT (A) who confirmed the order of the AO by observing as under: 4.2 Ground No.2 pertains to the merits of the addition at Rs.1,11,111/- made u/s.69B of the Act. Undisputedly, the appellant has purchased a flat no.AD-6 from Corner Point Infrastructure Pvt. Ltd. The entries recorded by the responsible person of Corner Point Infrastructure Pvt. Ltd. are reproduced as under:- 14 Jwalit AD-6 18-Mar-2010 111111 Sheth 22-Mar-2010 200000 1-April-2010 1000000 8-April-2010 800000 26-Aug-2012 261000 Total 272111 2000000 2372111 During the course of search and survey action in the case of Corner Point Infrastructure Pvt. Ltd., Shri Mitesh Patel and Shri Mehul Pandya have clearly admitted having received cash as well as cheque in respect of sale of flat. During the course of assessment proceedings, the appellant has furnished a confirmation dated 20.08.2014 of Corner Point Infrastructure Pvt. Ltd. in respect of the payment of Rs.40 Lacs by cheque. In this confirmation, following cheque payments by the appellant are certified:- Date Amount (Rs.) 22.03.10 2,00,000/- 01.04.10 10,00,000/- 08.04.10 8,00,000/- The above mentioned entries of cheque are exactly matching with the entries recorded in the account of appellant found from the laptop as discussed above. Thus from the above mentioned cheque entries, it is clear that the account maintained on laptop was true and correct and hence the cash entries recorded therein cannot be ignored because as per the established legal position, the entire documents has to be read as a whole. The cash entry pertaining to the year under consideration is Rs.1,11,111/- as on 18.03.2010 and for A.Y. 2013-14 is Rs.2,61,000/- as on 26.08.2012. In view of the above factual and legal position, thus I hold that appellant has paid cash of Rs.1,11,111/- out of his undisclosed sources for
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purchase of the flat and hence the addition made by the AO on account of unexplained investment u/s.69B at Rs.1,11,111/- is confirmed. Thus Ground No.2 is dismissed.
Being aggrieved by the order of the learned CIT (A) the assessee is in appeal before us.
The learned AR before us filed a paper book running from pages 1 to 28 and assailed the addition confirmed by the authorities below on various reasons which are summarized as under: Assessee was never confronted with the “statement” of the concerned third party relied upon by AO: • Assessee was never confronted with “statement” of the concerned third party relied upon by AO. Without doing do, the impugned disallowance could not have been made since it grossly violates principles of natural justice. • Assessee, vide letter 14.02.16 raising objections against the action of reopening (Pgs.19- 21 @ 20 of P/B), categorically requested for copy of documents relied upon by AO. • AO, vide order dated 16.02.16 disposing off objections raised against reopening (Pgs.22- 24 @ 24 of P/B), stated that the supporting evidences assessment proceedings. • However, no such evidence was furnished by AO and hence, assessee, vide letter dated 14.03.16 (Pgs.27-28 of P/B), again brought it to the notice of AO that during the course of hearing on 09.03.16, AO had no furnished any evidence to the assessee. • Thus, despite the fact that AO had relied categorically upon the “statement” of Mitesh Patel and Mehul Pandya, copy of the same was never provided to the assessee. • It is settled law that if any material is not confronted to an assessee, it would not constitute as “admissible evidence” and hence, any addition made on the basis of such evidence is liable to be deleted. Reliance is placed on “Kishinchand Chellara, - 125 ITR 713 (SC)” Opportunity of “cross-examination” has not been afforded: • An opportunity of cross-examination has also not been afforded. It is a settled law that in absence of cross-examination, no addition could have been made based on such statement. Reliance is placed on: � Pr.CIT vs. Chartered Speed Pvt. Ltd. – Tax Appeal No.126 & 126 of 2015 (Annexure “A”) � Andaman Timber Industries vs. CCE - (2015) 62 taxmann.com 3 (SC) (Annexure “B”); � Aadi Infra Developers vs. ITO – ITA 3286/A/2016 (Annex.”C”); � Ashish D Jaiswal vs ITO – ITA 543/A/2015 & other (Annex. “D”) No addition can be made either on the basis of “entries” recorded in impounded digital evidence or on the basis of “statements of third parties” in absence of any “corroborative material”: • The impugned addition has been made merely on the basis of “entries” recorded in the digital evidence impounded during the course of search. • There is no corroborative evidence whatsoever in support of the allegation as to any such cash payments having been made by the assessee. • It is a settled law that no addition can be made merely on the basis of records maintained by the builder in absence of any corroborative material in support of the same, which runs contrary to the record of the assessee. Reliance is placed on the decision of Hon’ble High Court of Gujarat in the case of “ITO vs. Bharat A Mehta – 60 taxmann.com 31 (Guj)” (Annexure “E”).
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On the other hand the learned DR contended that the list found from the laptop of the director showing the receipt from the assessee in cash is not a dumb document. The cash payment has been corroborated with the cheques payment showing on the same list from the assessee. Furthermore, this fact was also admitted by the directors of CPIPL. The learned DR vehemently supported the order of the authorities below.
We have heard the rival contentions of both the parties and perused the materials available on record. In the instant case we find that the addition has been made by the authorities below on the basis of documents found in the course of search by DGCEI viz a viz the directors of CPIPL have admitted in their respective statements to have received payment in cash from the assessee.
9.1 From the preceding discussion we note that the documents based on which the addition has been made was containing the entries of the cash as well as cheques. All the cheques entries reflecting in the list were matching with the records of the assessee except the cash entries. Thus if we see the cash entries in aggregation with the cheques entries, impugned document cannot be termed as dumb document.
9.2 Be that as it may be, we find that the assessee in his letter dated 13 February 2016 has made a request to the AO for supplying the documents based on which the addition was proposed. The relevant request by the assessee is placed on pages 19-20 of the paper book and the relevant extract is reproduced as under: In case you still wish to proceed with reason recorded, then you are requested to provide copy of documents relied upon by you using against me as a matter of natural law of justice.
9.3 The AO in his order dated 16th February 2016 disposing off the objections raised by the assessee assured to supply the documentary evidence for the cash payment at the time of assessment proceedings. The relevant finding of the AO is placed on pages 22-24 of the paper book which is reproduced as under:
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The supporting evidences regarding the cash payment will be shown to the assessee at the time of assessment proceedings. (B.B. Dholakia) Dy. Commissioner of Income-tax Circle-3(1), vadodara
9.4 The assessee further made a request vide letter dated 14th March 2016, placed on pages 27 to 28 of the paper book, for supplying the documentary evidence. The relevant extract is reproduced as under: I would further like to bring to your kind notice that vide notice dated 29.02.16 you had promised to provide me documentary evidence showing details of alleged cash payment made by me of Rs.1,11,111/- during the year under review during the course of hearing fixed on 09.03.16. However, during the course of hearing held on 09.03.16, you have not furnished any such evidence.
9.5 Similarly, it also appears that the statements of the directors of CPIL based on which the additions were made by the AO were not provided to the assessee for the rebuttal.
9.6 In view of the above, the question arises whether the addition can be sustained on the basis of search materials and the statements without providing the opportunity to the assessee for his confrontation/rebuttal. The answer is in negative. The principles of natural justice requires that the assessee should be given the opportunity of placing his points of contentions with respect to search materials and the statements based on which additions were made. In holding so we draw support and guidance from the judgment of Hon’ble Gujarat High Court in the case Heirs and Legal Representative of Late Laxmibhai S Patel vs. CIT reported in [2010] 327 ITR 290 wherein it was held as under: In the instant case, the finding was arrived at by the authorities below while denying an opportunity of cross-examining the important witness, namely, 'R' and the legal effect of that finding was certainly a question of law which required to be reviewed by the Court. The legal effect of the statement recorded behind the back of the assessee and without furnishing the copy thereof to the assessee or without giving him an opportunity of cross-examination, if the addition was made, the same was required to be deleted on the ground of violation of the principles of natural justice.
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9.7 We also draw support and guidance from the judgment of Hon’ble Bombay High Court in the case of HR Mehta vs. ACIT reported in [2016] 387 ITR 561 [Bom] wherein it was held as under: - the Assessing Officer should have done was to grant an opportunity to the assessee to meet the case against him by providing the material sought to be used against him in arriving before passing the order of assessment. This not having been done, the denial of such opportunity goes to root of the matter and strikes at the very foundation of the assessment and, therefore, renders the orders passed by the Commissioner (Appeals) and the Tribunal vulnerable. The assessee was bound to be provided with the material used against him apart from being permitting him to cross examine the deponents whose statements were relied upon by him. Despite the request seeking an opportunity to cross examine the deponents and furnish the assessee with copies of statements and disclose material, these were denied to him.
9.8 In view of the above we hold that no addition can be sustained in the hands of the assessee. As we have decided the issue in favor of the assessee on the preliminary ground as discussed, we are not inclined to decide the issue on merit. Accordingly we set aside the finding of the learned CIT (A) and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is allowed.
Coming to ITA No. 1856/Ahd/2018 for A.Y. 2013-14
The assessee has raised the following grounds of appeal:
1.00 DISALLOWANCE MADE UNDER SECTION 14A OF THE INCOME TAX ACT, 1961 R.W.R. 8D TO THE TUNE OF RS. 62,368/-. 1.01 On the facts and circumstances of appellant's case and in law, the Id AO has erred in making disallowance to the tune of Rs.62,368/- on average value of investments not appreciating that investments are made out of surplus accumulated fund and also not appreciating that no expenditure, direct or indirect is required to be incurred for the purpose of maintenance of investments. 1.01 Your appellant prays to hold so now and delete the impugned disallowance.
2.00 ADDITION OF RS. 2,61,0007- MADE UNDER SECTION 69B OF THE • INCOME TAX ACT, 1961. 2.01 On the facts and circumstances of appellant's case and in law, the Id AO merely relied upon the search operations conducted and digital evidences gathered in case of M/s. Corner
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Point Infrastructure Private Limited (vendor) and it's managing director on 16.10.2014 and 17.10.2014 showing cash receipts amounting to Rs. 2,61,000/- from your appellant on account of purchase of flat thereby making an addition of Rs. 2,61 ,000/- under section 69B of the Act. 2.02 Your appellant had also submitted the confirmation statement confirming the payment schedule which shows no payment in cash to of M/s. Corner Point Infrastructure Private Limited but the Id AO has not accepted the same without bringing on record any evidence for not accepting the same. 2.03 Your appellant prays to hold so now and delete the impugned disallowance. 3.00 YOUR APPELLANY CRAVES LEAVE TO ADD, AMEND AND 7OR DELETE ALL OR ANY GROUND(S) TAKE HEREINABOVE.
At the outset we note similar ground was raised by the assessee bearing ITA No.1855/Ahd/2018 for AY 2010-11 which has been decided in favour of assessee vide paragraph no 9 of this order. For detailed discussion please refer to the above para. Accordingly we hold that finding given in above paragraphs of this order with regard to ITA No. 1855/Ahd/2018 will mutatis mutandis apply here in this case also. Thus the grounds of appeal raised by the assessee is allowed.
In the combined results, both the appeals of the assessee bearing ITA Nos.1855 & 1856/Ahd/2018 for A.Y. 2010-11 & 2013-14 are allowed
Order pronounced in the Court on 17/03/2021 at Ahmedabad.
Sd/- Sd/- (MADHUMITA ROY) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 17/03/2021 Manish