SHRI. RAKESH NATWARLAL THAKKAR,THANE vs. DCIT CC-1 THANE , THANE

This appeal by the assessee is directed against order dated 13.09.2019 passed by the Ld. Commissioner of Income-tax (Appeals)-11, Pune, [in short ‘the Ld. CIT(A)’] for assessment year 2012-13, raising following grounds:

1. On the facts and in the circumstances of the case and in law, the learned Commissioner of Income Tax erred in retaining the addition of a sum of Rs.12.83,860/- madesuby. the Deputy Commisioner of Income Tax as unaccounted cash Commisioner of Income Tax as unaccounted cash Commisioner of Income Tax as unaccounted cash receipts from sale of flat to one Suresh A. Jadhav receipts from sale of flat to one Suresh A. Jadhav receipts from sale of flat to one Suresh A. Jadhav based merely on selective scribbings in rough note based merely on selective scribbings in rough note based merely on selective scribbings in rough note de hors any corroborati de hors any corroborative findings which is legally ve findings which is legally not justified. not justified.

2. Alternatively and without prejudice to the above Alternatively and without prejudice to the above Alternatively and without prejudice to the above ground it is submitted that the learned CIT(A' erred ground it is submitted that the learned CIT(A' erred ground it is submitted that the learned CIT(A' erred in sustaining addition of the entire sum of Rs. in sustaining addition of the entire sum of Rs. in sustaining addition of the entire sum of Rs. 12,83,860/ 12,83,860/-being being alleged alleged unaccounted unaccounted cash cash receipts from sale receipts from sale of flat to Suresh A.Jadhav which of flat to Suresh A.Jadhav which is not justified, as only a reasonable percentage of is not justified, as only a reasonable percentage of is not justified, as only a reasonable percentage of such receipts should be considered as "income" such receipts should be considered as "income" such receipts should be considered as "income" and not the entire receipts as gross receipts cannot and not the entire receipts as gross receipts cannot and not the entire receipts as gross receipts cannot be income earned. be income earned.

2. Briefly stated, facts of the case are that Briefly stated, facts of the case are that during during relevant assessment year, the assessment year, the assessee was engaged in construction of real was engaged in construction of real estate project namely “Aainaz Avenue” through his proprietary estate project namely “Aainaz Avenue” through his proprietary estate project namely “Aainaz Avenue” through his proprietary concern namely M/s SV Group Builders and Developers /s SV Group Builders and Developers. The /s SV Group Builders and Developers assessee was also running another proprietary concern namely M/s assessee was also running another proprietary concern assessee was also running another proprietary concern R.N. Traders, which was was engaged in wholesale trading of food grain. engaged in wholesale trading of food grain. For the year under consideration, the assessee filed return of For the year under consideration, the assessee filed return of For the year under consideration, the assessee filed return of income electronically on 23.01.2013 declaring total income at income electronically on 23.01.2013 declaring total income at income electronically on 23.01.2013 declaring total income at Rs.3,11,580/-. The return of income filed by the assessee w . The return of income filed by the assessee was . The return of income filed by the assessee w selected for scrutiny. The Assessing Officer observed that assessee selected for scrutiny. The Assessing Officer observed that assessee selected for scrutiny. The Assessing Officer observed that assessee was a part of ‘Thakkar Group Thakkar Group” on which a search action u/s 132 of search action u/s 132 of the Income-tax Act, 1961 (in short ‘the Act’) tax Act, 1961 (in short ‘the Act’) was carried out on was carried out on 22.02.2012. The Assessing Officer, on the basis of documents 22.02.2012. The Assessing Officer, on the basis of doc 22.02.2012. The Assessing Officer, on the basis of doc seized during the course of search seized during the course of search concluded that assessee concluded that assessee received unaccounted cash received unaccounted cash amounting to Rs.12,93,860/ amounting to Rs.12,93,860/-on sale of a flat. In view of no response/reply on the part of the assessee, the a flat. In view of no response/reply on the part of the assessee, the a flat. In view of no response/reply on the part of the assessee, the Assessing Officer, after analyzing the entries referred in the seized after analyzing the entries referred in the seized after analyzing the entries referred in the seized document, made addition of Rs.12,83,860/ made addition of Rs.12,83,860/- along with other along with other additions as discussed in the impugned assessment order dated additions as discussed in the impugned assessment order dated additions as discussed in the impugned assessment order dated 31.03.2015. On further appeal, the Ld. CIT(A) in a detailed finding 31.03.2015. On further appeal, the Ld. CIT(A) in a detailed finding 31.03.2015. On further appeal, the Ld. CIT(A) in a detailed finding upheld the addition of Rs.12,83,860/ tion of Rs.12,83,860/-. Aggrieved with the finding of . Aggrieved with the finding of the Ld. CIT(A) on the issue in dispute, the assessee is in appeal the Ld. CIT(A) on the issue in dispute, the assessee is in appeal the Ld. CIT(A) on the issue in dispute, the assessee is in appeal before the Tribunal by way of raising grounds as reproduced above. before the Tribunal by way of raising grounds as reproduced above. before the Tribunal by way of raising grounds as reproduced above.

The Ld. Counsel of the assessee supported the grounds raised The Ld. Counsel of the assessee supported the grounds raised by the assessee and submitted that the Ld. Assessing Officer has by the assessee and submitted that the Ld. Assessing Officer has by the assessee and submitted that the Ld. Assessing Officer has made addition on the basis of a made addition on the basis of a scribbling in the loose sheet which in the loose sheet which is a rough noting of estima is a rough noting of estimates. The Ld. Counsel of the assessee tes. The Ld. Counsel of the assessee submitted that dehors dehors any corroborative evidence, these scribbling corroborative evidence, these scribbling on rough notes cannot be the sole basis for addition for undisclosed on rough notes cannot be the sole basis for addition for undisclosed on rough notes cannot be the sole basis for addition for undisclosed income. In support of contention of the Ld. Counsel of the assessee income. In support of contention of the Ld. Counsel of the assessee income. In support of contention of the Ld. Counsel of the assessee relied on the decisions of the ITAT in the case of Raj Homes S.V. ecisions of the ITAT in the case of Raj Homes S.V. ecisions of the ITAT in the case of Raj Homes S.V. Group in wherein the Tribunal has relied Group in ITA no. 2408/Mum/2017 wherein the Tribunal has relied Group in ITA no. 2408/Mum/2017 wherein the Tribunal has relied on the decision of Hon’ble Supreme Court of Hon’ble Supreme Court in the case of in the case of CIT v. P.V. Kalyanasundaram [2007] 294 ITR

49. (SC) Kalyanasundaram [2007] 294 ITR

49. (SC).

4.1 The Ld. Counsel further submi The Ld. Counsel further submitted that it is a normal practice tted that it is a normal practice in the case of builders in the case of builders that whenever a prospective buyer prospective buyer visits the site,an estimated value value is providedon a piece of the paper and piece of the paper and explained to himwith with details of various charges for acquiring the details of various charges for acquiring the property/flat. The Ld. C . The Ld. Counsel submitted that when the buyer ounsel submitted that when the buyer of the flat under reference referencei.e. Mr. Suresh A. Jadhav Jadhav, visited the assessee, he explained the details of various charges for acquiring explained the details of various charges for acquiring explained the details of various charges for acquiring the flat. The ld. Counsel submitted that scribbling might be one of The ld. Counsel submitted that scribbling might be one of The ld. Counsel submitted that scribbling might be one of the said papers.

4.2 The Ld. Counsel further submitted that no defect whatsoever The Ld. Counsel further submitted that no defect whatsoever The Ld. Counsel further submitted that no defect whatsoever, has been found in the books of accounts of the assessee in the has been found in the books of accounts of the assessee in the has been found in the books of accounts of the assessee in the preceding year and the succeeding year and the profit offered by the preceding year and the succeeding year and the profit offered by the preceding year and the succeeding year and the profit offered by the assessee has been accepted. assessee has been accepted.

4.3 Further, the Ld. Counsel Further, the Ld. Counsel of the assessee submitted that no of the assessee submitted that no evidences have been found in the search or later and the addition evidences have been found in the search or later and the addition evidences have been found in the search or later and the addition has been made on the presumption. The Ld. Counsel of the has been made on the presumption. The Ld. Counsel of the has been made on the presumption. The Ld. Counsel of the assessee further submitted factual information further submitted factual information and written further submitted factual information arguments as under: arguments as under:

sg. feet and accordingly by adopting 50% area for the sg. feet and accordingly by adopting 50% area for the sg. feet and accordingly by adopting 50% area for the terrace area worked out is 658 sq. feet. terrace area worked out is 658 sq. feet.

It is difficult to get a price of 50% of sale price for terrace It is difficult to get a price of 50% of sale price for terrace It is difficult to get a price of 50% of sale price for terrace on 1st floor and hence it was merely a quotation given on 1st floor and hence it was merely a quotation given on 1st floor and hence it was merely a quotation given and working was done. Actual realization appears in and working was done. Actual realization appears in and working was done. Actual realization appears in books. Such quotation does not indicate any receipt or books. Such quotation does not indicate any receipt or books. Such quotation does not indicate any receipt or commitment. commitment.

4. The learned CIT(A The learned CIT(A) on page 6 of his order states as ) on page 6 of his order states as follows : follows :

"The first cash payment shown is Rs. 1,50,000/- and "The first cash payment shown is Rs. 1,50,000/ "The first cash payment shown is Rs. 1,50,000/ subsequently it is shown that 8 drafts of Rs.49,000/- subsequently it is shown that 8 drafts of Rs.49,000/ subsequently it is shown that 8 drafts of Rs.49,000/ each totaling Rs.3,92,000/ each totaling Rs.3,92,000/- has been paid leaving a has been paid leaving a balance of Rs.7,41,860/ balance of Rs.7,41,860/- to be paid and subsequently to be paid and subsequently 5 drafts of Rs.49,000/ drafts of Rs.49,000/-totaling Rs.2,45,000/ totaling Rs.2,45,000/- has been paid and another 4 drafts of Rs.49,000/ paid and another 4 drafts of Rs.49,000/- each totaling each totaling Rs. 1,96,000/ Rs. 1,96,000/- has been paid leaving a balance of has been paid leaving a balance of Rs.3,00,860/ Rs.3,00,860/ - which is again paid by 4 drafts of which is again paid by 4 drafts of Rs.49,000/ Rs.49,000/- each totaling Rs. 1,96,000/ each totaling Rs. 1,96,000/- leaving a balance of Rs. 1,04,860/"_ balance of Rs. 1,04,860/"_

From above conclusion arrived at it is evident that From above conclusion arrived at it is evident that From above conclusion arrived at it is evident that payments are made by draft.In such a case the payments are made by draft.In such a case the payments are made by draft.In such a case the payment cannot be said as unaccounted or in cash. The payment cannot be said as unaccounted or in cash. The payment cannot be said as unaccounted or in cash. The conclusion arrived at is totally incorrect as there can not conclusion arrived at is totally incorrect as there can not conclusion arrived at is totally incorrect as there can not be payment b be payment by draft and same is unaccounted. The y draft and same is unaccounted. The projections/ estimates/jottings made if any can not lead projections/ estimates/jottings made if any can not lead projections/ estimates/jottings made if any can not lead to a conclusion that payment was made by bank draft to a conclusion that payment was made by bank draft to a conclusion that payment was made by bank draft and that to unaccounted. Hence there was no cash and that to unaccounted. Hence there was no cash and that to unaccounted. Hence there was no cash payment as presumed. payment as presumed.

5. It may further be noted that the appella It may further be noted that the appellant has merly nt has merly received booking amount for some flats agreed to be received booking amount for some flats agreed to be received booking amount for some flats agreed to be sold and construction has just commenced. Sales have sold and construction has just commenced. Sales have sold and construction has just commenced. Sales have been effected in A.Y.2014 been effected in A.Y.2014-15, A.Y.2015-16 and hence 16 and hence there was no sale made in this year and hence there there was no sale made in this year and hence there there was no sale made in this year and hence there can not be any income which had ar can not be any income which had arisen in this year as isen in this year as consideration for sale to said Mr.Suresh Jadhav has consideration for sale to said Mr.Suresh Jadhav has consideration for sale to said Mr.Suresh Jadhav has been received in F.Y.2011 been received in F.Y.2011-12, 12-13 and 13 13 and 13-14 by cheques on various dates. Therefore presumption that cheques on various dates. Therefore presumption that cheques on various dates. Therefore presumption that sum of Rs. 12,83,860/ sum of Rs. 12,83,860/- was received in this year can was received in this year can not betrue. not betrue.

6. Your attention i Your attention is drawn to the attached judgment in the s drawn to the attached judgment in the case of CIT V. P.V.Kalyansundaram (2007) reported at case of CIT V. P.V.Kalyansundaram (2007) reported at case of CIT V. P.V.Kalyansundaram (2007) reported at 294 IT 49 which makes it clear that the addition solelv 294 IT 49 which makes it clear that the addition solelv 294 IT 49 which makes it clear that the addition solelv based on loose paper scribbling de horce any based on loose paper scribbling de horce any based on loose paper scribbling de horce any corroborate finding is not justified. corroborate finding is not justified. 7. Moreover as evident in t Moreover as evident in the order of CIT(A) a declaration he order of CIT(A) a declaration was made by uncle of the appellant of Rs.5,00,000/- on was made by uncle of the appellant of Rs.5,00,000/ was made by uncle of the appellant of Rs.5,00,000/ behalf of appellant. Appellant noticed that there was no behalf of appellant. Appellant noticed that there was no behalf of appellant. Appellant noticed that there was no such discrepancy is his records. He therefore did not such discrepancy is his records. He therefore did not such discrepancy is his records. He therefore did not offer offer offer any any any additional additional additional income income income and and and addition addition addition of of of Rs.5,00,000/ Rs.5,00,000/- made by A.O was directed to be deleted made by A.O was directed to be deleted by CIT(A)in his order. This also establishes that there by CIT(A)in his order. This also establishes that there by CIT(A)in his order. This also establishes that there was no cash consideration. was no cash consideration.”

 Page No. 7 of loose paper bundle No.1 is the saleable Page No. 7 of loose paper bundle No.1 is the saleable Page No. 7 of loose paper bundle No.1 is the saleable area statement. Area of 658 sq.ft area statement. Area of 658 sq.ft. mentioned therein . mentioned therein matches with the area mentioned in Page No. 9 matches with the area mentioned in Page No. 9 matches with the area mentioned in Page No. 9 referred above for Flat No. 1, Ground Floor. referred above for Flat No. 1, Ground Floor.  The amount under 'A' matches with the actual The amount under 'A' matches with the actual The amount under 'A' matches with the actual agreement value for the flat, clearly showing that the agreement value for the flat, clearly showing that the agreement value for the flat, clearly showing that the amount under 'B' is on money received for the same. amount under 'B' is on money received for the amount under 'B' is on money received for the  As per calculation under 'A', it reduces 551 written As per calculation under 'A', it reduces 551 written As per calculation under 'A', it reduces 551 written below the digits '500° of 1500240/ below the digits '500° of 1500240/-, resulting in , resulting in balance amount of 949240/ balance amount of 949240/-. Thereafter, there is an . Thereafter, there is an entry of Rs. 1,96,000/ entry of Rs. 1,96,000/- with before it and remark 'Ret with before it and remark 'Ret by chq' (implying return by cheque), resulting in by chq' (implying return by cheque), re by chq' (implying return by cheque), re balance amount of 11,45,240/ balance amount of 11,45,240/-. This shows receipt of . This shows receipt of an amount of Rs.551000 an amount of Rs.551000 - Rs. 196000 (which has Rs. 196000 (which has been returned) = Rs.355000/ been returned) = Rs.355000/- which is the same as which is the same as what has been claimed to have been received from what has been claimed to have been received from what has been claimed to have been received from Suresh Jadhav as per assessee's submission (refer pt Suresh Jadhav as per assessee's submission (re Suresh Jadhav as per assessee's submission (re 1 on pg 2 of the Fact Sheet filed by the assessee before 1 on pg 2 of the Fact Sheet filed by the assessee before 1 on pg 2 of the Fact Sheet filed by the assessee before the Hon ble ITAT on 26.07.2021). the Hon ble ITAT on 26.07.2021). 5.1 The Ld. DR further submitted that the document The Ld. DR further submitted that the document The Ld. DR further submitted that the document is dated 08.11.2011 as noted on the document itself as noted on the document itself and there has been and there has been regular reduction in the amounts ment in the amounts mentioned under ioned under category “B”, which implies receipt of cash receipt of cash against “B” category in installments. against “B” category in installments. Further, she refuted the claim of the assessee that the document she refuted the claim of the assessee that the document she refuted the claim of the assessee that the document also contains date of of 19.03.2012 and hence it was not 19.03.2012 and hence it was not written on 08.11.2011. The Ld. DR submitted that the date 19.03.2012 is the 08.11.2011. The Ld. DR submitted that the date 19.03.2012 is the 08.11.2011. The Ld. DR submitted that the date 19.03.2012 is the date of the seizure of the document and date has been marked date of the seizure of the document and date has been marked date of the seizure of the document and date has been marked below the signature of the witnesses of the search. below the signature of the witnesses of the search.

5.2 Further refuting the arguments of the Ld. Counsel of the Further refuting the arguments of the Ld. Counsel of the Further refuting the arguments of the Ld. Counsel of the assessee that there was no corroborative evidence, she submitted assessee that there was no corroborative evidence, she submitted assessee that there was no corroborative evidence, she submitted that the document is a that the document is a self-contained live document showing the live document showing the entire transaction in clear term. The entire transaction in clear term. The noting on the documents on the documents is clear evidence of receipt of cash against sale of property for which evidence of receipt of cash against sale of property for which evidence of receipt of cash against sale of property for which the cheque amount mentioned on the page matches with the actual the cheque amount mentioned on the page matches with the actual the cheque amount mentioned on the page matches with the actual agreement value of the flat G agreement value of the flat G-1. The total sale amount inclusive of 1. The total sale amount inclusive of cheque and cash amount equals the rate per sq. ft. mentioned on cheque and cash amount equals the rate per sq. ft. mentioned cheque and cash amount equals the rate per sq. ft. mentioned the page for an area of 658 sq. ft. which also tallies with the the page for an area of 658 sq. ft. which also tallies with the the page for an area of 658 sq. ft. which also tallies with the saleable area mentioned in the saleable area statement seized at saleable area mentioned in the saleable area statement saleable area mentioned in the saleable area statement page No. 7 of the bundle No. 1 seized from the assessee. The noting page No. 7 of the bundle No. 1 seized from the assessee. The page No. 7 of the bundle No. 1 seized from the assessee. The clearly shows receipt of Rs.3.55 lakhs against the cheque clearly shows receipt of Rs.3.55 lakhs against the cheq clearly shows receipt of Rs.3.55 lakhs against the cheq component i.e. Rs.5.51 laksh component i.e. Rs.5.51 laksh – 1.96 (cheuqe returned) = 3.55 lakhs returned) = 3.55 lakhs and this is same as the amount stated to have been received by the and this is same as the amount stated to have been received by the and this is same as the amount stated to have been received by the assessee in his submission. She further submitted that the assessee in his submission. She further submitted that the assessee in his submission. She further submitted that the assessee has not refuted refuted the documents and its contents and its contents either before the AO or before the Ld. CIT(A). As regards the decision in before the AO or before the Ld. CIT(A). As regards the decision in before the AO or before the Ld. CIT(A). As regards the decision in the case of P.V. Kalyanasundaram (supra) and Raj Home (supra), the case of P.V. Kalyanasundaram (supra) and Raj Home (supra), the case of P.V. Kalyanasundaram (supra) and Raj Home (supra), the Ld. DR submitted that same are distinguishable on facts. the Ld. DR submitted that same are distinguishable on facts. the Ld. DR submitted that same are distinguishable on facts. Further, the Ld. DR submitted that the Ld. Counsel of the assessee Further, the Ld. DR submitted that the Ld. Counsel of the asse Further, the Ld. DR submitted that the Ld. Counsel of the asse submitted that assessee follows completed contract method submitted that assessee follows completed contract method submitted that assessee follows completed contract method therefore no addition could have been made for the year under therefore no addition could have been made for the year under therefore no addition could have been made for the year under consideration, she submitted that neither he submitted that neither any such ground was any such ground was raised before the Assessing Officer or the Ld. CIT(A) nor has been raised before the Assessing Officer or the Ld. CIT(A) raised before the Assessing Officer or the Ld. CIT(A) filed before the Tribunal and therefore, led before the Tribunal and therefore, the Ld. Counsel of the Ld. Counsel of the assessee cannot surprise the respondent by way of raising a fresh assessee cannot surprise the respondent by way of raising a fresh assessee cannot surprise the respondent by way of raising a fresh argument suddenly. She further submitted that the onus was on . She further submitted that the onus was on . She further submitted that the onus was on the assessee to make such claim before the AO the assessee to make such claim before the AO that that said amount was not taxable in the year under consideration and same should not taxable in the year under consideration and same should not taxable in the year under consideration and same should have been taxed into the year of the completion of the project. The have been taxed into the year of the completion of the project. The have been taxed into the year of the completion of the project. The Assessing Officer could have added the addition on protective basis Assessing Officer could have added the addition on protective basis Assessing Officer could have added the addition on protective basis if so required in the year of completion also. As if so required in the year of completion also. As during during assessment, the assessee has not taken any such stand of completed contract the assessee has not taken any such stand of completed contract the assessee has not taken any such stand of completed contract method and therefore now assessee cannot be allowed to take such method and therefore now assessee cannot be allowed to method and therefore now assessee cannot be allowed to an argument to defeat the provisions of law when an argument to defeat the provisions of law when he is cau he is caught, as now such an action in the hands of the assessee would be barred now such an action in the hands of the assessee wou now such an action in the hands of the assessee wou by limitation.

6.1 The typed version of the seized d The typed version of the seized document is also reproduced ocument is also reproduced as under: Flat No. 1 Flat No. 1 Ground FLR 60+40 08/11/11 658 x 3800 25,00,400 Dev. Charge 98,700 R.C. 30,000 Legal Charge 5,000 Parking 1,50,000 B A 12,83,860/- 15,00,240/- 50,000 55/- 11,33,860/- 9,49,240/- 3,92,000 49x8 + 1,98,000 7,41,860/- 11,45,240/- 2,45,000/- 49x5 1,96,001/- 49x4 3,00,860/- -196,000/- 49x4 49x4 1,04,860/- Bal Bal 6.2 According to the assessee According to the assessee, the above entries are rough the above entries are rough scribbling noted at the time of inquiry by the buyer and same are noted at the time of inquiry by the buyer and same are noted at the time of inquiry by the buyer and same are only estimate explained at the time of meeting with the buyer. timate explained at the time of meeting with the buyer. timate explained at the time of meeting with the buyer. Whereas, the lower authorities Whereas, the lower authorities have analyzed the above documents analyzed the above documents and observed that the total amount of sale recorded in the and observed that the total amount of sale recorded in the and observed that the total amount of sale recorded in the registered sale agreement is matching with the amount mentioned registered sale agreement is matching with the amount mentioned registered sale agreement is matching with the amount mentioned against “A” category of amount. category of amount. The area of the flat noted in the The area of the flat noted in the seized document also matches with the seized document also matches with the registered sale document. registered sale document. The Ld. DR further submitted submitted that amount of Rs.3.55 lakhs claimed that amount of Rs.3.55 lakhs claimed to have been received by the assessee from the said customer by to have been received by the assessee from the said customer to have been received by the assessee from the said customer way of cheque and referred in books of accounts also matches with and referred in books of accounts also matches with and referred in books of accounts also matches with the working of balance amount exp the working of balance amount explained by her as under: lained by her as under:

 The noting noting clearly shows receipt of 3.55 L against receipt of 3.55 L against the chequecomponent i.e Rs.5.51 L the chequecomponent i.e Rs.5.51 L - 1.96 L (Chq 1.96 L (Chq Returned) = 3.55L. This is sameas the amount Returned) = 3.55L. This is sameas the amount Returned) = 3.55L. This is sameas the amount stated to have been received by the assessee in his stated to have been received by the assessee in his stated to have been received by the assessee in his submission. submission. 6.2 Further, the ratio of the amount to be received Further, the ratio of the amount to be received Further, the ratio of the amount to be received by cheque and cash ( i.e. 60:40) has also been recorded has also been recorded in said seized paper and said seized paper and accordingly, the total sale price of the flat has been bifurcated in the total sale price of the flat has been bifurcated in the total sale price of the flat has been bifurcated in category “A” and category and category “B” payments. The Assessing Offi payments. The Assessing Officer has concluded that category that category “A” amount, is amount to be received way ” amount, is amount to be received way of cheque and category of cheque and category “B” amount, is the amount to be received or ” amount, is the amount to be received or received by way of cash. The area of the flat recorded in the of cash. The area of the flat recorded in the of cash. The area of the flat recorded in the registered sale deed agreement registered sale deed agreement i.e. 658 sq. ft., also also matches with the area of the flat recorded in the seized paper. Further the the area of the flat recorded in the seized paper. Further the the area of the flat recorded in the seized paper. Further the component of “B” category of the payment i.e. cash payment category of the payment i.e. cash payment, has category of the payment i.e. cash payment been reduced after making each installment of payment after making each installment of payment after making each installment of payment. The analysis of seizedpaper paper getscorroborated with the corroborated with the registered sale agreement of the flat, which goes , which goes to prove that the amount recorded that the amount recorded under “B” category i.e.12,83,860/ category i.e.12,83,860/- is in the nature of the cash is in the nature of the cash component on the sale of the flat received by the assessee. the sale of the flat received by the assessee. the sale of the flat received by the assessee.

6.3 Before us, the Ld. Counsel of the assessee Before us, the Ld. Counsel of the assessee Before us, the Ld. Counsel of the assessee submitted that during the course of search no statement u/s 132(4) of the Act has during the course of search no statement u/s 132(4) of the Act has during the course of search no statement u/s 132(4) of the Act has been recorded and assessee has not been recorded and assessee has not been questioned ed and therefore no addition could have been made on the basis of the assessment no addition could have been made on the basis of the assessment no addition could have been made on the basis of the assessment proceedings. We are unable to agree with the proceedings. We are unable to agree with the Ld. Counsel of the Ld. Counsel of the assessee on this aspect. D on this aspect. During the course of the assessment uring the course of the assessment proceedings, the Assessing Officer has duly provided opportunity to proceedings, the Assessing Officer has duly provided opportunity to proceedings, the Assessing Officer has duly provided opportunity to explain the entries, however the assessee explain the entries, however the assessee did not respond. not respond. So it is not a case where the not a case where the assessee has not been en provided any opportunity to explain before the Assessing Officer. It may not be opportunity to explain before the Assessing Officer. It may not opportunity to explain before the Assessing Officer. It may not mandatorily question question the assessee on each and every paper during on each and every paper during the during the statement u/s 132(4) of the Act the during the statement u/s 132(4) of the Act in course of search in course of search proceedings and non and non-recording of statement u/s 132(4) of the Act u/s 132(4) of the Act, does not debar the Assessing officer the Assessing officer for making assessment on the for making assessment on the basis of the documents seized during the course of the search. basis of the documents seized during the course of the search. basis of the documents seized during the course of the search.

6.4 Further, the Ld. Counsel of the assessee submitted that the Further, the Ld. Counsel of the assessee submitted that the Further, the Ld. Counsel of the assessee submitted that the Assessing Officer has not cross ex Assessing Officer has not cross examined the purchaser and the purchaser and therefore, no addition could have been made relying on the decision therefore, no addition could have been made relying on the decision therefore, no addition could have been made relying on the decision in the case of Hon’ble High Court of Gujarat CIT v. Maulikkumar CIT v. Maulikkumar in the case of Hon’ble High Court of Gujarat K. Shah [2008] 307 ITR 137 (Gujarat) K. Shah [2008] 307 ITR 137 (Gujarat). But we note that t But we note that the facts of the said case are distinguishab of the said case are distinguishable as in said case the paper in in said case the paper in question did not indicate any question did not indicate any transaction, whereas in instant case transaction, whereas in instant case referredtransaction in respect of flat in respect of flat has been duly recorded has been duly recorded in the seized document. Further in support of claim that no addition could seized document. Further in support of claim that no addition could seized document. Further in support of claim that no addition could have been made on th have been made on the basis of seized paper without any seized paper without any corroborating material, the Ld Counsel corroborating material, the Ld Counsel relied on the decision of the relied on the decision of the Punjab and Haryana High Court in the case of Navneet Jhamb Navneet Jhamb v. Punjab and Haryana High Court in the case of ACIT [2020] 120 taxmann.com 314 (Punjab and Haryana). ACIT [2020] 120 taxmann.com 314 (Punjab and Haryana) ACIT [2020] 120 taxmann.com 314 (Punjab and Haryana) However, the facts of the said However, the facts of the said case are also distinguishable case are also distinguishable. In said case, the assessee was broker only and no addition was made in the the assessee was broker only and no addition was made in the the assessee was broker only and no addition was made in the hand of the seller or the managing director of the seller company. In hand of the seller or the managing director of the seller company. In hand of the seller or the managing director of the seller company. In the said case, the seller the said case, the seller was M/s Indo American Electricals Ltd. and American Electricals Ltd. and purchaser was Shri G.L. Verma as Shri G.L. Verma and no profit or loss was shown by no profit or loss was shown by the assessee arising from th arising from those transactions in his return of se transactions in his return of income, whereas, in case before us, the registered sale amount , whereas, in case before us, the registered sale amount , whereas, in case before us, the registered sale amount matches with the cheque component noted in seized paper. The matches with the cheque component noted in seized paper. matches with the cheque component noted in seized paper. facts in the case of Raj Homes SV group e of Raj Homes SV group (supra) wherein supra) wherein the Tribunal has relied in the case of P.V. Kalyanasundaram (supra) are Tribunal has relied in the case of P.V. Kalyanasundaram (supra) are Tribunal has relied in the case of P.V. Kalyanasundaram (supra) are also distinguishable as in the instant case registered sale agreement also distinguishable as in the instant case registered sale agreement also distinguishable as in the instant case registered sale agreement is one of the corroborative is one of the corroborative pieces of evidencewhich which establish the cheque component of the omponent of the same amount as well as other details of amount as well as other details of the property i.e. flat sold by the assessee. The said registered the property i.e. flat sold by the assessee. The said registered the property i.e. flat sold by the assessee. The said registered agreement being one of one of corroborative evidence, decisions evidence, decisions relied by the Ld. Counsel of the assessee are distinguishable. The Ld. the Ld. Counsel of the assessee are distinguishable. The Ld. the Ld. Counsel of the assessee are distinguishable. The Ld. Counsel further submitted that no cash was found during the further submitted that no cash was found during the further submitted that no cash was found during the course of search at the premises of the assessee. We reject this course of search at the premises of the assessee. We reject this course of search at the premises of the assessee. We reject this contention of the Ld. Counsel of the assessee contention of the Ld. Counsel of the assessee becauseas per noting becauseas per noting of seized material, cash material, cash has been received in installments, installments, which is prior to the date of seized paper i.e. the date of seized paper i.e. 18/11/2012. It is not necessary t is not necessary that same should be found from the assessee that same should be found from the assessee during the course of during the course of search. Further, the Ld. Counsel of the assessee submitted that the . Further, the Ld. Counsel of the assessee submitted that the . Further, the Ld. Counsel of the assessee submitted that the said paper is not in the hand writing of the assessee. in the hand writing of the assessee. in the hand writing of the assessee. This argument of the Ld. Counsel of the assessee is of the Ld. Counsel of the assessee is contradictory to his own contradictory to his own submission that there was a practice of making such noting on submission that there was a practice of making such noting on submission that there was a practice of making such noting on estimate basis during booking of sale of flat. Further, per the estimate basis during booking of sale of flat. Further, per estimate basis during booking of sale of flat. Further, per provisions of section 132(4 provisions of section 132(4A) of the Act any documen ) of the Act any document found during the course of the search from the premises of the assessee is the course of the search from the premises of the assessee is the course of the search from the premises of the assessee is presumed to be belonging to him and in his hand writing. The presumed to be belonging to him and in his hand writing presumed to be belonging to him and in his hand writing relevant provision is reproduced as under for ready reference: relevant provision is reproduced as under for ready reference: relevant provision is reproduced as under for ready reference:

“(4A) 2 Where any books of account, other documents, Where any books of account, other documents, Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are money, bullion, jewellery or other valuable article or thing are money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any person in the or is found in the possession or control of any person in the or is found in the possession or control of any person in the course of a search, it may be presumed course of a search, it may be presumed- (i) that such books of account, other that such books of account, other documents, money, documents, money, bullion, jewellery or other valuable article or thing belong or bullion, jewellery or other valuable article or thing belong or bullion, jewellery or other valuable article or thing belong or belongs to such person; belongs to such person; (ii) that the contents of such books of account and other that the contents of such books of account and other that the contents of such books of account and other documents are true; and documents are true; and (iii) that the signature and every other part of such books of that the signature and every other part of such books of that the signature and every other part of such books of account and other documents which purport to be in the account and other documents which purport to be in the account and other documents which purport to be in the handwriting of any particular person or which may handwriting of any particular person or which may handwriting of any particular person or which may reasonably be assumed to have been signed by, or to reasonably be assumed to have been signed by, or to reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person' the handwriting of, any particular person, are in that person' the handwriting of, any particular person, are in that person' s handwriting, and in the case of a document stamped, s handwriting, and in the case of a document stamped, s handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed executed or attested, that it was duly stamped and executed executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been or attested by the person by whom it purports to have been or attested by the person by whom it purports to have been so executed or so executed or attested.]”

6.5 This presumption his presumption is rebuttable and onus was on the assessee onus was on the assessee to produce a report from hand writing expert that said paper is not to produce a report from hand writing expert that said paper is not to produce a report from hand writing expert that said paper is not in his hand writing and in his hand writing and provide name of the person who has name of the person who has written the said paper, but no such documentary evid no such documentary evidences s have been filed except this argument this argument, hence same is rejected. Further, the Ld. is rejected. Further, the Ld. Counsel of the assessee submitted that the assessee is following Counsel of the assessee submitted that the assessee is following Counsel of the assessee submitted that the assessee is following project completion method so no business income can be assessed project completion method so no business income can be assessed project completion method so no business income can be assessed in this assessment year as the project was in this assessment year as the project was completed in subsequent completed in subsequent years. We are of the opinion that no such ground has been raised years. We are of the opinion that no such ground has been raised years. We are of the opinion that no such ground has been raised by the assessee and therefore, the Ld. Counsel of the assessee by the assessee and therefore, the Ld. Counsel of the assessee by the assessee and therefore, the Ld. Counsel of the assessee cannot surprise the respondent i.e. the ld. DR by way of raising this cannot surprise the respondent i.e. the ld. DR by way of raising this cannot surprise the respondent i.e. the ld. DR by way of raising this arguments at last moment at last moment. The Ld. Counsel has not filed any Counsel has not filed any documentary evidence in support of his contention also. This documentary evidence in support of his contention documentary evidence in support of his contention argument was not raised argument was not raised at the stage either of the Assessing Officer the stage either of the Assessing Officer or the Ld. CIT(A).The Ld. DR submittedhad The Ld. DR submittedhad such an n argument was raised by the assessee before the As raised by the assessee before the Assessing Officer sessing Officer , the Revenue could have taken care of the argument and could have assessed the could have taken care of the argument and could have assessed the could have taken care of the argument and could have assessed the addition in the year of the completion on the basis of the protective addition in the year of the completion on the basis of the protective addition in the year of the completion on the basis of the protective basis. We agree with the contention of the Ld. DR and therefore, we basis. We agree with the contention of the Ld. DR and therefore, we basis. We agree with the contention of the Ld. DR and therefore, we reject this contention reject this contention of the Ld. Counsel of the assessee. The Ld. DR of the Ld. Counsel of the assessee. The Ld. DR has submitted that this document is not a dumb document and has has submitted that this document is not a dumb document and has submitted that this document is not a dumb document and been properly analys analysed with supporting corroborative evidence. The with supporting corroborative evidence. The amount recorded under category amount recorded under category ‘B’ is conclusive to be cash is conclusive to be cash component on sale on flat at ground floor, which has been which has been registered in favor in favor Shri Suresh Jadhav. In our Shri Suresh Jadhav. In our opinion, not recording any statement or any inquiry from the buyer, also cannot recording any statement or any inquiry from the buyer recording any statement or any inquiry from the buyer render the addition the addition as not in accordance with law, particularly as not in accordance with law, particularly when the entries recorde when the entries recorded in the seized documentsare corroborated are corroborated with registered sale agreement. with registered sale agreement. In view of the above In view of the above discussion, we uphold the finding of the Ld. CIT(A) on the issue in dispute. ld the finding of the Ld. CIT(A) on the issue in dispute. ld the finding of the Ld. CIT(A) on the issue in dispute. Accordingly, the grounds raised by the assessee are dismissed. Accordingly, the grounds raised by the assessee are dismissed. Accordingly, the grounds raised by the assessee are dismissed.