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Income Tax Appellate Tribunal, MUMBAI BENCH “G” MUMBAI
Before: SHRI OM PRAKASH KANT & SHRI PAVAN KUMAR GADALE
Being common issues involved Being common issues involved in these both appeals in these both appeals, same were heard together and disposed off by way of this consolidated order heard together and disposed off by way of this consolidated order heard together and disposed off by way of this consolidated order for convenience and avoid repetition of facts. for convenience and avoid repetition of facts.
First, We take up the appeal of the Revenue for assessment First, We take up the appeal of the Revenue for assessment First, We take up the appeal of the Revenue for assessment year 2008-09. The grounds raised
by the Revenu
09. The grounds raised by the Revenue are reproduced e are reproduced as under:
1. "On the facts and circumstances of the case and in "On the facts and circumstances of the case and in "On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition made law, the Ld. CIT(A) erred in deleting the addition made law, the Ld. CIT(A) erred in deleting the addition made by AO on the account of unaccounted deposits in the by AO on the account of unaccounted deposits in the by AO on the account of unaccounted deposits in the bank account of the assessee on substantive basis in bank account of the assessee on substantive basis in bank account of the assessee on substantive basis in the hands of the the hands of the assessee, ignoring that the claim of assessee, ignoring that the claim of assessee that the account is related to Late Shri Sunil assessee that the account is related to Late Shri Sunil assessee that the account is related to Late Shri Sunil Gulati HUF is an afterthought as the assessee failed to Gulati HUF is an afterthought as the assessee failed to Gulati HUF is an afterthought as the assessee failed to produce any evidence to show that the account produce any evidence to show that the account produce any evidence to show that the account pertained to HUF and account was in personal name pertained to HUF and account was in personal name pertained to HUF and account was in personal name of the asse of the assessee only." 2. "On the facts and in the circumstances of the case and "On the facts and in the circumstances of the case and "On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in deleting the addition in law, the Ld. CIT (A) erred in deleting the addition in law, the Ld. CIT (A) erred in deleting the addition made us 153A r.w.s. 143(3) of the Income Tax Act, made us 153A r.w.s. 143(3) of the Income Tax Act, made us 153A r.w.s. 143(3) of the Income Tax Act, 1961 on the account of noting of the cash payments 1961 on the account of noting of the cash payments 1961 on the account of noting of the cash payments made in the deal Wise Excel Sheet made in the deal Wise Excel Sheets (DWES) found s (DWES) found during the search operation after holding that there is during the search operation after holding that there is during the search operation after holding that there is nothing on the record to suggest that the assessee was nothing on the record to suggest that the assessee was nothing on the record to suggest that the assessee was doing the said transaction at his own without doing the said transaction at his own without doing the said transaction at his own without appreciation that onus lies on the assessee to produce appreciation that onus lies on the assessee to produce appreciation that onus lies on the assessee to produce cogent material before the AO cogent material before the AO to rebut the presumption to rebut the presumption u/s 292C and the assessee also failed to produce u/s 292C and the assessee also failed to produce u/s 292C and the assessee also failed to produce anything before Ld. CIT(A) that the cash payments anything before Ld. CIT(A) that the cash payments anything before Ld. CIT(A) that the cash payments were accounted and were part of books of account." were accounted and were part of books of account." were accounted and were part of books of account." 3. "On the facts and in the circumstances of the case and "On the facts and in the circumstances of the case and "On the facts and in the circumstances of the case and in Law, the Ld. CIT(A) er in Law, the Ld. CIT(A) erred in deleting the addition red in deleting the addition made u/s 153Ar.w.s. 143(3) of the IT. Act, 1961 on the made u/s 153Ar.w.s. 143(3) of the IT. Act, 1961 on the made u/s 153Ar.w.s. 143(3) of the IT. Act, 1961 on the account account account of of of unaccounted unaccounted unaccounted cash cash cash receipts, receipts, receipts, cash/unaccounted transaction after holding that there cash/unaccounted transaction after holding that there cash/unaccounted transaction after holding that there is nothing on the record to suggest that the assessee is nothing on the record to suggest that the assessee is nothing on the record to suggest that the assessee was doing the said transac was doing the said transaction at his own without tion at his own without
Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. 3 Gulati & 2578/M/2022 ITA nos. 2577 & appreciating that onus lies on the assessee to produce appreciating that onus lies on the assessee to produce appreciating that onus lies on the assessee to produce cogent material before the AO to rebut the presumption cogent material before the AO to rebut the presumption cogent material before the AO to rebut the presumption us 292C and the assessee also failed to produce us 292C and the assessee also failed to produce us 292C and the assessee also failed to produce anything before Ld. CIT(A) that the cash payments anything before Ld. CIT(A) that the cash payments anything before Ld. CIT(A) that the cash payments were accounted and were were accounted and were part of books of account." part of books of account."
4. On the facts and in the circumstances the Id CIT(A) On the facts and in the circumstances the Id CIT(A) On the facts and in the circumstances the Id CIT(A) erred in deleting the additions made u/s 40A(3) of the erred in deleting the additions made u/s 40A(3) of the erred in deleting the additions made u/s 40A(3) of the IT. Act without appreciating the facts that no details for IT. Act without appreciating the facts that no details for IT. Act without appreciating the facts that no details for incurring of the expenditure in cash exceeding Rs. incurring of the expenditure in cash exceeding Rs. incurring of the expenditure in cash exceeding Rs. 20,000/ 20,000/- was submitted by the assessee.
Briefly stated facts of the case are that during the relevant Briefly stated facts of the case are that during the relevant Briefly stated facts of the case are that during the relevant year the deceased assessee ha year the deceased assessee had acted as real estate agent engaed in as real estate agent engaed in the purchase and sale of the land which were bought from the purchase and sale of the land which were bought from the purchase and sale of the land which were bought from villagers/farmers then sold to prospec villagers/farmers then sold to prospected real estate developers. A ted real estate developers. A search and seizure action u/s 132 of the Income search and seizure action u/s 132 of the Income-tax Act, 1961 (in tax Act, 1961 (in short ‘the Act’) was conducted in the case of Shri Madan S. short ‘the Act’) was conducted in the case of Shri Madan S. short ‘the Act’) was conducted in the case of Shri Madan S. Kolambekar who used to purchase land from the assessee. Kolambekar who used to purchase land from the assessee. Kolambekar who used to purchase land from the assessee. Subsequently, search was also Subsequently, search was also conducted u/s 132 of the Act 132 of the Act conducted at the premises of the assessee on 18.02.2009. conducted at the premises of the assessee on 18.02.2009. conducted at the premises of the assessee on 18.02.2009. Consequent to the search and seizure action notice u/s 153A of the Consequent to the search and seizure action notice u/s 153A of the Consequent to the search and seizure action notice u/s 153A of the Act was issued and served upon the assessee. In response the Act was issued and served upon the assessee. In response the Act was issued and served upon the assessee. In response the assessee filed return of income for the year under consideration on assessee filed return of income for the year under consi assessee filed return of income for the year under consi 26.02.2010 declaring income at Rs.4,50,960/ 26.02.2010 declaring income at Rs.4,50,960/-. The assessment u/s . The assessment u/s 153A r.w.s. 143(3) was completed determining total income at 153A r.w.s. 143(3) was completed determining total income at 153A r.w.s. 143(3) was completed determining total income at Rs.12,95,49,967/- after making various additions to the total after making various additions to the total after making various additions to the total income declared by the assessee. income declared by the assessee.
Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. 4 Gulati & 2578/M/2022 ITA nos. 2577 &
On further appeal, On further appeal, the Ld. CIT(A) allowed part relief to the the Ld. CIT(A) allowed part relief to the assessee. Against relief allowed assessee. Against relief allowed, the Revenue is in appeal in appeal before the Tribunal raising grounds as reproduced above. Tribunal raising grounds as reproduced above.
The ground No. 1 relates to the addition deleted by the Ld. The ground No. 1 relates to the addition deleted by the Ld. The ground No. 1 relates to the addition deleted by the Ld. CIT(A) in respect of deposits in t CIT(A) in respect of deposits in the bank accounts he bank accounts related to Shri Sunil Gulati (HUF).
The brief fact qua the issue The brief fact qua the issue-in-dispute are that the Assessing dispute are that the Assessing Officer made addition of Rs.54,87,381/ Officer made addition of Rs.54,87,381/- in respect of deposits in in respect of deposits in three bank account namely Cosmo Co three bank account namely Cosmo Co-operative Bank Ltd. A/no. operative Bank Ltd. A/no. 029204301220192, 220192, 220192, Tamilnad Tamilnad Tamilnad Mercantile Mercantile Mercantile Bank Bank Bank A/c A/c A/c No. No. No. 117150050800335, A/c No. 117750050800336 and A/c No. 117150050800335, A/c No. 117750050800336 and A/c No. 117150050800335, A/c No. 117750050800336 and A/c No. 117700480100052. The assessee contended that those accounts 117700480100052. The assessee contended that th 117700480100052. The assessee contended that th were related to Shri Sunil Gulati (HUF) and not to the assessee. The were related to Shri Sunil Gulati (HUF) and not to the assessee. The were related to Shri Sunil Gulati (HUF) and not to the assessee. The Assessing Officer held those acco Assessing Officer held those accounts as belonging to the assessee unts as belonging to the assessee and the deposits thereon were held as belonging to the assessee. and the deposits thereon were held as belonging to the assessee. and the deposits thereon were held as belonging to the assessee. The Ld. CIT(A) however after verification found that those accounts The Ld. CIT(A) however after verification found that those accounts The Ld. CIT(A) however after verification found that those accounts belongs to Shri Sunil Gulati HUF and therefore, no addition could belongs to Shri Sunil Gulati HUF and therefore, no addition could belongs to Shri Sunil Gulati HUF and therefore, no addition could have been made in the h have been made in the hands of the assessee. The relevant ands of the assessee. The relevant observation of the Ld. CIT(A) is reproduced as under: observation of the Ld. CIT(A) is reproduced as under: observation of the Ld. CIT(A) is reproduced as under:
“During the course of appellate During the course of appellate procedings, the appellant procedings, the appellant has submitted a letter from the bank pertaining to Cosmos has submitted a letter from the bank pertaining to Cosmos has submitted a letter from the bank pertaining to Cosmos Bank, Vashi Branch having account Bank, Vashi Branch having account no 029204301220192. no 029204301220192. From the letter, it is learnt that the account pertains to M s. From the letter, it is learnt that the account pertains to M s. From the letter, it is learnt that the account pertains to M s. SadguruArts( Prop. Sunil Gulati HUF). The appellant has SadguruArts( Prop. Sunil Gulati HUF). The appellant has SadguruArts( Prop. Sunil Gulati HUF). The appellant has also submitted statement of bank account pertaining to also submitted statement of bank account pertaining to also submitted statement of bank account pertaining to Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. 5 Gulati & 2578/M/2022 ITA nos. 2577 & Tamilnad Mercantile Bank Alc. No. 117150050800335 from Tamilnad Mercantile Bank Alc. No. 117150050800335 from Tamilnad Mercantile Bank Alc. No. 117150050800335 from which it is evident that thisaccount also pertains to MIs it is evident that thisaccount also pertains to MIs it is evident that thisaccount also pertains to MIs SadguruArts( Prop. Sunil Gulati HUF) Since the appellant SadguruArts( Prop. Sunil Gulati HUF) Since the appellant SadguruArts( Prop. Sunil Gulati HUF) Since the appellant has furnished the necessary evidence, addition made on has furnished the necessary evidence, addition made on has furnished the necessary evidence, addition made on this account is deleted. this account is deleted. As far as the deposit of Rs.97.406/ As far as the deposit of Rs.97.406/- is concerned in the is concerned in the bank account pertaining to the bank Tamilnad Mercantile unt pertaining to the bank Tamilnad Mercantile unt pertaining to the bank Tamilnad Mercantile Bank Alc. No. 117700480100052, the appellant has stated Bank Alc. No. 117700480100052, the appellant has stated Bank Alc. No. 117700480100052, the appellant has stated that the same has been shown in the books of accounts. that the same has been shown in the books of accounts. that the same has been shown in the books of accounts. Since the appellant has substantiated his claim by Since the appellant has substantiated his claim by Since the appellant has substantiated his claim by furnishing furnishing furnishing necessary necessary necessary evidence evidence evidence during during during the the the appellate appell appell proceedings, the addition of Rs.54,87,371/ proceedings, the addition of Rs.54,87,371/- is deleted. is deleted.”
The Ld. CIT(A) has followed binding precedent of the Tribunal The Ld. CIT(A) has followed binding precedent of the Tribunal The Ld. CIT(A) has followed binding precedent of the Tribunal in assessee’s own case for assessment year 2003 in assessee’s own case for assessment year 2003- -04 to 2007-08. The relevant finding of the Ld. CIT(A) is reproduced as under: The relevant finding of the Ld. CIT(A) is reproduced as under: The relevant finding of the Ld. CIT(A) is reproduced as under:
“Further, on similar ground in the appellant's own case for ther, on similar ground in the appellant's own case for ther, on similar ground in the appellant's own case for A.Y 2003-04 to A.Y. 04 to A.Y. 2007-08 in to 3498, 4794 08 in ITA No. 3496 to 3498, 4794 & 4795//Mum/2015 the HonblelTAT vide order dated & 4795//Mum/2015 the HonblelTAT vide order dated & 4795//Mum/2015 the HonblelTAT vide order dated 19.08.2016 held that "there is no clarity with regard to 19.08.2016 held that "there is no clarity with regard to 19.08.2016 held that "there is no clarity with regard to partition of HUF, so AO was directed partition of HUF, so AO was directed to intimate his to intimate his counterpart having jurisdiction over the case of Late Shri counterpart having jurisdiction over the case of Late Shri counterpart having jurisdiction over the case of Late Shri Sunil. D Gulati (HUF) to initiate necessary action for Sunil. D Gulati (HUF) to initiate necessary action for Sunil. D Gulati (HUF) to initiate necessary action for assessing the said amount of unexplained bank deposits of assessing the said amount of unexplained bank deposits of assessing the said amount of unexplained bank deposits of Rs. 63.15 lakhs in the hand of said HUF by resorting to the Rs. 63.15 lakhs in the hand of said HUF by resorting to the Rs. 63.15 lakhs in the hand of said HUF by resorting to the provisions of section 148 r.w.s 150 of the Act. Therefore, the ons of section 148 r.w.s 150 of the Act. Therefore, the ons of section 148 r.w.s 150 of the Act. Therefore, the substantive addition on account of unexplained bank substantive addition on account of unexplained bank substantive addition on account of unexplained bank deposits of Rs. 63.51 lakhs made by the AO in the hands of deposits of Rs. 63.51 lakhs made by the AO in the hands of deposits of Rs. 63.51 lakhs made by the AO in the hands of deceased assessee is deleted". Thus, the ITAT held that the deceased assessee is deleted". Thus, the ITAT held that the deceased assessee is deleted". Thus, the ITAT held that the account held by Sunil D. Gula account held by Sunil D. Gulati cannot be made once the ti cannot be made once the account belongs to Sunil D Gulati(HUF) and deleted the account belongs to Sunil D Gulati(HUF) and deleted the account belongs to Sunil D Gulati(HUF) and deleted the addition.”
We have heard rival submission of the parties on the issue We have heard rival submission of the parties on the issue We have heard rival submission of the parties on the issue-in- dispute and perused the relevant material on record. We find that dispute and perused the relevant material on record. We find that dispute and perused the relevant material on record. We find that the Ld. CIT(A) has has duly verified the facts and also followed the the facts and also followed the Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. 6 Gulati & 2578/M/2022 ITA nos. 2577 & decision of the Tribunal in the assessee’s own case. We do not find decision of the Tribunal in the assessee’s own case. We do not find decision of the Tribunal in the assessee’s own case. We do not find any error in the order of the Ld. CIT(A) in deleting the addition any error in the order of the Ld. CIT(A) in deleting the addition any error in the order of the Ld. CIT(A) in deleting the addition following the finding of the Tribunal (supra). Accordingly, the following the finding of the Tribunal (supra). Accordingly, the following the finding of the Tribunal (supra). Accordingly, the ground No. 1 of the appea ground No. 1 of the appeal of the Revenue is dismissed. l of the Revenue is dismissed.
The ground No. 2 of the appeal of the Revenue relates to The ground No. 2 of the appeal of the Revenue relates to The ground No. 2 of the appeal of the Revenue relates to deal wise excel sheets deletion of cash payment appearing in the deletion of cash payment appearing in the deal wise excel sheets (DWES) found during the course of search operation. The brief facts (DWES) found during the course of search operation. The brief facts (DWES) found during the course of search operation. The brief facts qua the issue-in-dispute are th dispute are that the Assessing Officer made at the Assessing Officer made addition of Rs.34,92,500/ addition of Rs.34,92,500/- on the basis of DWES statement seized on the basis of DWES statement seized from the possession of the assessee. According to the Assessing from the possession of the assessee. According to the Assessing from the possession of the assessee. According to the Assessing Officer, the cash payments reflected in the said sheet is not Officer, the cash payments reflected in the said sheet is not Officer, the cash payments reflected in the said sheet is not appearing in the books of account. appearing in the books of account. Therefore, he made addition u/s Therefore, he made addition u/s . Before the Ld. CIT(A) 69C of the Act amounting to Rs.54,92,100/ 69C of the Act amounting to Rs.54,92,100/-. Before the Ld. CIT(A) the assessee submitted that plots were purchased on behalf of the the assessee submitted that plots were purchased on behalf of the the assessee submitted that plots were purchased on behalf of the subsequent buyers and therefore, all the payments appearing in the subsequent buyers and therefore, all the payments appearing in the subsequent buyers and therefore, all the payments appearing in the said DEES were related to said DEES were related to buyers and sellers and assessee’s role buyers and sellers and assessee’s role was only deal maker and therefore all those payments belonging to was only deal maker and therefore all those payments belonging to was only deal maker and therefore all those payments belonging to the relevant parties.
The Ld. CIT(A) following the finding of the Tribunal in The Ld. CIT(A) following the finding of the Tribunal in The Ld. CIT(A) following the finding of the Tribunal in assessee’s own case for assessment year 2003 assessee’s own case for assessment year 2003-04 to assessment 04 to assessment year 2007-08 deleted the addition observing as under: 08 deleted the addition observing as under: 08 deleted the addition observing as under:
“During the appellate proceeding, the representative of the During the appellate proceeding, the representative of the During the appellate proceeding, the representative of the Appellant has stated that appellant was only coordinator Appellant has stated that appellant was only coordinator Appellant has stated that appellant was only coordinator between the purchasers and sellers and used to keep the between the purchasers and sellers and used to keep the between the purchasers and sellers and used to keep the Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. 7 Gulati & 2578/M/2022 ITA nos. 2577 & record of the receipts and payment record of the receipts and payments for each deal made s for each deal made by/through him. The receipts and payments made in cash, by/through him. The receipts and payments made in cash, by/through him. The receipts and payments made in cash, mentioned in the DWES were not the payments made by mentioned in the DWES were not the payments made by mentioned in the DWES were not the payments made by the Appellant; but were paid by the buyers themselves the Appellant; but were paid by the buyers themselves the Appellant; but were paid by the buyers themselves through the appellant and paid to the farmers. The through the appellant and paid to the farmers. The through the appellant and paid to the farmers. The payments made by way o payments made by way of cheques routed through him f cheques routed through him were accounted for in accounts. The AR has stated that were accounted for in accounts. The AR has stated that were accounted for in accounts. The AR has stated that hewas merely a real estate agent and a deal maker and hewas merely a real estate agent and a deal maker and hewas merely a real estate agent and a deal maker and hence most of the transaction happened either in cheques / hence most of the transaction happened either in cheques / hence most of the transaction happened either in cheques / cash does not belong to him but belongs to the prospective cash does not belong to him but belongs to the prospective cash does not belong to him but belongs to the prospective developers developers developers / / / investors investors investors such such such as as as BhawarlalChhajer, BhawarlalChhajer, BhawarlalChhajer, RakeshSurve Vinay Gosavi, SumeelBacchewar and others. RakeshSurve Vinay Gosavi, SumeelBacchewar and others. RakeshSurve Vinay Gosavi, SumeelBacchewar and others. Further, on similar ground in the appellant's own case for Further, on similar ground in the appellant's own case for Further, on similar ground in the appellant's own case for A.Y. 2003-04 to A.Y. 04 to A.Y. 2007-08 in to 3498, 08 in ITA No. 3496 to 3498, 4794 & 4795//Mum/2015the Honble|TAT vide 4794 & 4795//Mum/2015the Honble|TAT vide 4794 & 4795//Mum/2015the Honble|TAT vide order dated 19.08.2016 held that "the assesseeis doing agency dated 19.08.2016 held that "the assesseeis doing agency dated 19.08.2016 held that "the assesseeis doing agency work on behalf of other parties. There is nothing on record work on behalf of other parties. There is nothing on record work on behalf of other parties. There is nothing on record to suggest that the assessee was doing the said transaction to suggest that the assessee was doing the said transaction to suggest that the assessee was doing the said transaction at his own. AsessingOfficer has not brought on record to at his own. AsessingOfficer has not brought on record to at his own. AsessingOfficer has not brought on record to suggest that abo suggest that above land transaction were done by assessee ve land transaction were done by assessee in his name. It could have been corroborated by Assessing in his name. It could have been corroborated by Assessing in his name. It could have been corroborated by Assessing Officer with real instances of transaction which has not Officer with real instances of transaction which has not Officer with real instances of transaction which has not been done by him. In such situation, assessee cannot be been done by him. In such situation, assessee cannot be been done by him. In such situation, assessee cannot be taxed on the basis of on money transaction taxed on the basis of on money transaction of its client. So of its client. So addition in hand of the assessee is not justified. addition in hand of the assessee is not justified. addition in hand of the assessee is not justified. Same is directed to be deleled" directed to be deleled" Addition in respect of DWES, cash payment to various Addition in respect of DWES, cash payment to various Addition in respect of DWES, cash payment to various parties and other cash transactions has been deleted. parties and other cash transactions has been deleted. parties and other cash transactions has been deleted. Therefore, the alternative disallowance us.40A(3 Therefore, the alternative disallowance us.40A(3 Therefore, the alternative disallowance us.40A(3) is also deleted.”
We have heard rival submission of the parties on the issue We have heard rival submission of the parties on the issue We have heard rival submission of the parties on the issue-in- dispute and perused the relevant material on record. We find that dispute and perused the relevant material on record. We find that dispute and perused the relevant material on record. We find that the Ld. CIT(A) has deleted the addition following the binding the Ld. CIT(A) has deleted the addition following the binding the Ld. CIT(A) has deleted the addition following the binding precedent of the Tribunal (supra) and ther precedent of the Tribunal (supra) and therefore, we do not find any efore, we do not find any Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. 8 Gulati & 2578/M/2022 ITA nos. 2577 & error in the order of the Ld. CIT(A) on the issue-in-dispute. error in the order of the Ld. CIT(A) on the issue error in the order of the Ld. CIT(A) on the issue Accordingly, the ground raised by the Revenue is dismissed. Accordingly, the ground raised by the Revenue is dismissed. Accordingly, the ground raised by the Revenue is dismissed.
The ground No. 3 of the appeal of the Revenue relates to The ground No. 3 of the appeal of the Revenue relates to The ground No. 3 of the appeal of the Revenue relates to addition deleted by the Ld. CIT(A) in respect of account of addition deleted by the Ld. CIT(A) in respect o addition deleted by the Ld. CIT(A) in respect o unaccounted cash receipt, unaccounted cash transaction. The brief unaccounted cash receipt, unaccounted cash transaction. The brief unaccounted cash receipt, unaccounted cash transaction. The brief that the Assessing Officer made facts qua the issue-in in-dispute are that the Assessing Officer made addition of Rs.3,61,91,000/ addition of Rs.3,61,91,000/- on the basis of the noting in various on the basis of the noting in various pages of Annexure A1 impounded from Arneja pages of Annexure A1 impounded from Arneja office & Page No. 11, office & Page No. 11, 25 of Annexure A2 impounded from Kaveri Bldg show impounded from Kaveri Bldg show impounded from Kaveri Bldg showing date-wise details of payemtn in cash and cheques to various farmers/brokers details of payemtn in cash and cheques to various farmers/brokers details of payemtn in cash and cheques to various farmers/brokers in respect of various properties/plot. in respect of various properties/plot.
Before the Ld. CIT(A) the assessee claimed that assessee Before the Ld. CIT(A) the assessee claimed that assessee Before the Ld. CIT(A) the assessee claimed that assessee was only deal maker between the purchase only deal maker between the purchaser and seller. The Ld. CIT(A) and seller. The Ld. CIT(A) after considering the submission of the assessee, relying on the after considering the submission of the assessee, relying on the after considering the submission of the assessee, relying on the order of the Tribunal in assessee’s order of the Tribunal in assessee’s own case for assessment year own case for assessment year 2003-04 to 2007-08 deleted the addition observing as under: 08 deleted the addition observing as under: 08 deleted the addition observing as under:
“Further, from the paper book, it is seen that only Rs. 13 Further, from the paper book, it is seen that only Rs. 13 Further, from the paper book, it is seen that only Rs. 13 lakhs pertaining to ShriRakeshSurve appears to be a lakhs pertaining to ShriRakeshSurve appears to be a lakhs pertaining to ShriRakeshSurve appears to be a duplicate entry. Hence, the duplicate addition made to duplicate entry. Hence, the duplicate addition made to duplicate entry. Hence, the duplicate addition made to the extent of Rs. 13 lakhs is deleted. extent of Rs. 13 lakhs is deleted. In point no. (fil) above the amount of Rs. 5 lakhs isalready In point no. (fil) above the amount of Rs. 5 lakhs isalready In point no. (fil) above the amount of Rs. 5 lakhs isalready been made at Ground no. 5(x) for A.Y. 2009-10.Since the 10.Since the appellant has substantiated his claim by furnishing appellant has substantiated his claim by furnishing appellant has substantiated his claim by furnishing necessary evidence during the appellate proceedi necessary evidence during the appellate proceedi necessary evidence during the appellate proceedings, the addition of5 lakhs is deleted. addition of5 lakhs is deleted.
Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. 9 Gulati & 2578/M/2022 ITA nos. 2577 & In point no. (v) above, the amounts. 1 lakh is already been In point no. (v) above, the amounts. 1 lakh is already been In point no. (v) above, the amounts. 1 lakh is already been made at Ground no 5(v) of the appeal for A.Y. 2009 made at Ground no 5(v) of the appeal for A.Y. 2009 made at Ground no 5(v) of the appeal for A.Y. 2009-10. Since the appellant has substantiated his claim by Since the appellant has substantiated his claim by Since the appellant has substantiated his claim by furnishing furnishing furnishing necessary necessary necessary evidence evidence evidence during during during the the the appellate appellate appellate proceedings, the addition of 1 lakhs is deleted. proceedings, the addition of 1 lakhs is deleted. In point no. (x) above, the addition of Rs.1,35,00,000/ In point no. (x) above, the addition of Rs.1,35,00,000/ In point no. (x) above, the addition of Rs.1,35,00,000/- & Rs.29,20,000/ Rs.29,20,000/- is already been made at Ground no (x) & is already been made at Ground no (x) & (xi) of the appeal for A.Y. 2009 (xi) of the appeal for A.Y. 2009-10. Since the appellaht has 10. Since the appellaht has substantiated his claim by furn substantiated his claim by furnishing necessary evidence ishing necessary evidence during the appellate proceedings, the addition ofRs. during the appellate proceedings, the addition ofRs. during the appellate proceedings, the addition ofRs. 1,35,00,000/ 1,35,00,000/- & Rs.29,20,000/- is deleted On similar grounds in the appellant's own case for On similar grounds in the appellant's own case for On similar grounds in the appellant's own case for A.Y.2003-04 to A.Y. 2007 04 to A.Y. 2007-08. in to 3498, 08. in ITA No. 3496 to 3498, 4794 & 4795//Mum/2015 the Hon 4794 & 4795//Mum/2015 the Honble ITAT vide order ble ITAT vide order dated 19.08.2016held that the Revenue has not brought on dated 19.08.2016held that the Revenue has not brought on dated 19.08.2016held that the Revenue has not brought on record actual transaction done by the assessee himself. As record actual transaction done by the assessee himself. As record actual transaction done by the assessee himself. As deceased assessee's consistent stand has been accepted deceased assessee's consistent stand has been accepted deceased assessee's consistent stand has been accepted by us that he was only a Real Estate agent or broker or by us that he was only a Real Estate agent or broker or by us that he was only a Real Estate agent or broker or deal maker and hence he used to block the plots by giving r and hence he used to block the plots by giving r and hence he used to block the plots by giving some advances to the plot owner some advances to the plot owner-cum farmers on behalf of cum farmers on behalf of investors only. Revenue authorities had not brought investors only. Revenue authorities had not brought investors only. Revenue authorities had not brought anything on record to suggest that assessee himself anything on record to suggest that assessee himself anything on record to suggest that assessee himself purchased property in question from the farmer purchased property in question from the farmers. In such a s. In such a situation assessee was entitled for brokerage only. In view situation assessee was entitled for brokerage only. In view situation assessee was entitled for brokerage only. In view of the adove addition in question is not justified and of the adove addition in question is not justified and of the adove addition in question is not justified and directed the AO to delete the additions directed the AO to delete the additions.”
We have heard rival submission of the parties on the issue We have heard rival submission of the parties on the issue We have heard rival submission of the parties on the issue-in- dispute and perused dispute and perused the relevant material on record. We find that the relevant material on record. We find that the Ld. CIT(A) following the binding precedent the Ld. CIT(A) following the binding precedent on on the issue-in- dispute in the assessee’s own case and therefore, we do not find any dispute in the assessee’s own case and therefore, we do not find any dispute in the assessee’s own case and therefore, we do not find any infirmity in the order of the Ld. CIT(A) on the issue-in-dispute and infirmity in the order of the Ld. CIT(A) on the issue infirmity in the order of the Ld. CIT(A) on the issue accordingly, we uphold the same. we uphold the same. The ground No.3 of the appeal is The ground No.3 of the appeal is accordingly dismissed. accordingly dismissed.
Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. 10 Gulati & 2578/M/2022 ITA nos. 2577 &
The ground No. 4 of the appeal of the Revenue relates to The ground No. 4 of the appeal of the Revenue relates to The ground No. 4 of the appeal of the Revenue relates to deletion of the addition made by the Assessing Officer u/s 40A(3) of deletion of the addition made by the Assessing Officer u/s 40A(3) of deletion of the addition made by the Assessing Officer u/s 40A(3) of the Act for incurring expenses exceeding Rs.2 the Act for incurring expenses exceeding Rs.20,000/ 0,000/-. We find that the Ld. CIT(A) has deleted this alternative disallowance made by the the Ld. CIT(A) has deleted this alternative disallowance made by the the Ld. CIT(A) has deleted this alternative disallowance made by the AO u/s 40A(3) of the Act mainly on the ground that addition in AO u/s 40A(3) of the Act mainly on the ground that addition in AO u/s 40A(3) of the Act mainly on the ground that addition in respect of the cash payment of parties has already been deleted by respect of the cash payment of parties has already been deleted by respect of the cash payment of parties has already been deleted by him. Since, we have already uph him. Since, we have already upheld the finding of the Ld. CIT(A the finding of the Ld. CIT(A) deleting the addition made in respect of cash transaction and deleting the addition made in respect of cash transaction and deleting the addition made in respect of cash transaction and therefore, no alternative addition in respect of payment exceeding therefore, no alternative addition in respect of payment exceeding therefore, no alternative addition in respect of payment exceeding Rs.20,000/- in cash, , can survive. The ground No. 4 of the appeal of . The ground No. 4 of the appeal of the Revenue is accordingly di the Revenue is accordingly dismissed.
Now we take up the appeal of the Revenue for assessment year Now we take up the appeal of the Revenue for assessment year Now we take up the appeal of the Revenue for assessment year 10. The grounds raised
by the Revenue are reproduced as 2009-10. The grounds raised by the Revenue are reproduced as 10. The grounds raised by the Revenue are reproduced as under:
On the facts and circumstances of the case and in On the facts and circumstances of the case and in On the facts and circumstances of the case and in law, the Ld.c CIT(A) erred in deleting unaccounted law, the Ld.c CIT(A) erred in deleting unaccounted law, the Ld.c CIT(A) erred in deleting unaccounted cash receipt cash receipt from Shri Madan Kolambekar of Rs. from Shri Madan Kolambekar of Rs. 2,95,00,000/ 2,95,00,000/- without properly appreciating the without properly appreciating the relevant documents found/ seized during the course relevant documents found/ seized during the course relevant documents found/ seized during the course of search action. of search action.
2. On the facts and circumstances of the case and in On the facts and circumstances of the case and in On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition law, the Ld. CIT(A) erred in deleting the addition law, the Ld. CIT(A) erred in deleting the addition made by AO on the account of ( unaccounted deposits e by AO on the account of ( unaccounted deposits e by AO on the account of ( unaccounted deposits in the bank account of the assessee onob substantive in the bank account of the assessee onob substantive in the bank account of the assessee onob substantive basis in the hands of the assessee, ignoring that the basis in the hands of the assessee, ignoring that the basis in the hands of the assessee, ignoring that the claim of assessee that the account is related to Late claim of assessee that the account is related to Late claim of assessee that the account is related to Late Shri Sunil Gulati HUF is an afterthought as the Shri Sunil Gulati HUF is an afterthought as th Shri Sunil Gulati HUF is an afterthought as th assessee failed to produce any evidence to show that assessee failed to produce any evidence to show that assessee failed to produce any evidence to show that the account pertained to HUF and account was in the account pertained to HUF and account was in the account pertained to HUF and account was in personal name of the assessee only." personal name of the assessee only."
Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. 11 Gulati & 2578/M/2022 ITA nos. 2577 &
3. On the facts and in the circumstances of the case and On the facts and in the circumstances of the case and On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in deleting the addition in law, the Ld. CIT (A) erred in deleting the addition in law, the Ld. CIT (A) erred in deleting the addition made u/ made u/s 153A r.w.s. 143(3) of the Income Tax Act, s 153A r.w.s. 143(3) of the Income Tax Act, 1961 on the account of noting of the cash payments 1961 on the account of noting of the cash payments 1961 on the account of noting of the cash payments made in the deal Wise Excel Sheets (DWES) found made in the deal Wise Excel Sheets (DWES) found made in the deal Wise Excel Sheets (DWES) found during the search operation after holding that there is during the search operation after holding that there is during the search operation after holding that there is nothing on the record to suggest that the assessee nothing on the record to suggest that the assessee nothing on the record to suggest that the assessee was do was doing the said transaction at his own without ing the said transaction at his own without appreciation that onus lies on the assessee to appreciation that onus lies on the assessee to appreciation that onus lies on the assessee to produce cogent material before the AO to rebut the produce cogent material before the AO to rebut the produce cogent material before the AO to rebut the presumption us 292C and the assessee also failed to presumption us 292C and the assessee also failed to presumption us 292C and the assessee also failed to produce evidence before Ld. CIT(A) that the cash produce evidence before Ld. CIT(A) that the cash produce evidence before Ld. CIT(A) that the cash payments were payments were accounted and were part of books of accounted and were part of books of account." account."
4. On the facts and in the circumstances of the case and On the facts and in the circumstances of the case and On the facts and in the circumstances of the case and in Law, the La. CIT(A) erred in deleting the addition in Law, the La. CIT(A) erred in deleting the addition in Law, the La. CIT(A) erred in deleting the addition made us 153A r.w.s 143(3) of the IT. Act, 1961 on the made us 153A r.w.s 143(3) of the IT. Act, 1961 on the made us 153A r.w.s 143(3) of the IT. Act, 1961 on the account of unaccounted cash receipts after holding account of unaccounted cash receipts after hold account of unaccounted cash receipts after hold that there is nothing on the record to suggest that the that there is nothing on the record to suggest that the that there is nothing on the record to suggest that the assessee was doing the said transaction at his own assessee was doing the said transaction at his own assessee was doing the said transaction at his own without appreciating that onus lies on the assessee to without appreciating that onus lies on the assessee to without appreciating that onus lies on the assessee to produce cogent material before the AO to rebut the produce cogent material before the AO to rebut the produce cogent material before the AO to rebut the presumption u/s 292C and the assessee also failed presumption u/s 292C and the assessee a presumption u/s 292C and the assessee a to produce evidence before Ld. CITIA) that the cash to produce evidence before Ld. CITIA) that the cash to produce evidence before Ld. CITIA) that the cash payments were accounted and were part of books of payments were accounted and were part of books of payments were accounted and were part of books of account." account." 5. On the facts and in the circumstances of the case and On the facts and in the circumstances of the case and On the facts and in the circumstances of the case and in Law, the Ld. CIT(A) erred in deleting the addition in Law, the Ld. CIT(A) erred in deleting the addition in Law, the Ld. CIT(A) erred in deleting the addition made by the AO on account made by the AO on account of consideration received of consideration received for plot 22, Airoli holding that Rs. 20,34,625/- being for plot 22, Airoli holding that Rs. 20,34,625/ for plot 22, Airoli holding that Rs. 20,34,625/ consideration received against the figure of Rs 1,24, consideration received against the figure of Rs 1,24, consideration received against the figure of Rs 1,24, 18,570/ 18,570/- ignoring that the assessee has failed to ignoring that the assessee has failed to produce produce produce evidence evidence evidence before before before Ld. Ld. Ld. CIT(A) CIT(A) CIT(A) that that that the the the consideration received for consideration received for plot 22 were accounted plot 22 were accounted and were part of books of account." and were part of books of account." 6. On the facts and in the circumstances the ld CIT(A) On the facts and in the circumstances the ld CIT(A) On the facts and in the circumstances the ld CIT(A) erred in erred in appreciating additions made W/S 10119) of appreciating additions made W/S 10119) of the 1.7. 16 red in g the 1.7. 16 red in g- 9 appreciating the fact that no appreciating the fact that no details for incurring of the ex details for incurring of the expenditure in cash penditure in cash exceeding exceeding Rs. Rs.20,000/- was was submitted submitted by by the the assessee assessee
Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. 12 Gulati & 2578/M/2022 ITA nos. 2577 &
The ground No. 1 of the appeal relates to addition made by the The ground No. 1 of the appeal relates to addition made by the The ground No. 1 of the appeal relates to addition made by the Assessing Officer of Rs.3.5 crores in respect of Shri Madan Assessing Officer of Rs.3.5 crores in respect of Assessing Officer of Rs.3.5 crores in respect of Kolambekar. The Ld. CIT(A) noted that the development charge Kolambekar. The Ld. CIT(A) noted that the development charg Kolambekar. The Ld. CIT(A) noted that the development charg sheet i.e. 3rd Annexure to the status report (page no. 221) Annexure Annexure to the status report (page no. 221) Annexure Annexure to the status report (page no. 221) Annexure A1 seized from the office of Shri Madan Kolambekar showed an A1 seized from the office of Shri Madan Kolambekar showed an A1 seized from the office of Shri Madan Kolambekar showed an amount of Rs.3.5 crores against the name of the assessee. The amount of Rs.3.5 crores against the name of the assessee. The amount of Rs.3.5 crores against the name of the assessee. The amount of Rs.2.71 crores had been paid through cheque and it was amount of Rs.2.71 crores had been paid through cheque and it w amount of Rs.2.71 crores had been paid through cheque and it w reflected in the bank account in Cosmos Co reflected in the bank account in Cosmos Co-op Bank Ltd. of Shri op Bank Ltd. of Shri Sunil Gulati. Further, Sunil Gulati. Sunil Gulati. Further, the assessee had entered into an Further, the assessee had entered into an the assessee had entered into an understanding with Shri Madan Kolambekar for supply of land Shri Madan Kolambekar for supply of land admeasuring Approx. 10,000 sq. metre in Vadghar Node. The admeasuring Approx. 10,000 sq. metre in Vadghar Node admeasuring Approx. 10,000 sq. metre in Vadghar Node assessee could supply only two plots namely Plot No. 109 Sect supply only two plots namely Plot No. 109 Sector -2 supply only two plots namely Plot No. 109 Sect Vadghar admeasuring 200 sq. mtr. and Plot No. 128, sector -5 Vadghar admeasuring 200 sq. mtr. and Plot No. 128, sector Vadghar admeasuring 200 sq. mtr. and Plot No. 128, sector Vadghar admeasuing 400 sq. mtr. totaling to 600 sq. mtr. and the Vadghar admeasuing 400 sq. mtr. totaling to 600 sq. mtr. and the Vadghar admeasuing 400 sq. mtr. totaling to 600 sq. mtr. and the balance out of 10,000 sq. mtr. was not supplied to Madan balance out of 10,000 sq. mtr. was not supplied to Madan balance out of 10,000 sq. mtr. was not supplied to Madan Kolambekar. Kolambekar. It It was was submitted su bmitted that that the the assessee assessee received Rs.55,00,000/- in in in cash cash cash from from from Madan Madan Madan Kolambekar Kolambekar Kolambekar and and and Rs.2,21,00,000/- through cheques through cheques. Thus only Rs.2,76,00,000/ . Thus only Rs.2,76,00,000/- only was received by the assessee in respect of land to be supplied only was received by the assessee in respect of land to be supplied only was received by the assessee in respect of land to be supplied to Kolambekar in Vadghar Node Area. Accordi to Kolambekar in Vadghar Node Area. According to the Ld. CIT(A) ng to the Ld. CIT(A) sustained addition to the extent of Rs.55,00,000/ sustained addition to the extent of Rs.55,00,000/- in cash payment in cash payment received from Shri Madan Kolambekar. received from Shri Madan Kolambekar.
The Ld.Counsel of the assessee submitted that the assessee 18. The Ld.Counsel of the assessee submitted that the assessee The Ld.Counsel of the assessee submitted that the assessee in the return of has already disclosed a sum of Rs.55,00,000/ has already disclosed a sum of Rs.55,00,000/- in the return of Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. 13 Gulati & 2578/M/2022 ITA nos. 2577 & income filed for the search period and therefore, the Tribunal in ITA e filed for the search period and therefore, the Tribunal in ITA e filed for the search period and therefore, the Tribunal in for assessment year 2009 No. 2092/M/2022 for assessment year 2009-10 ha has restored the issue for verification verification to the Assessing Officer.
We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. In our rused the relevant material on record. In our rused the relevant material on record. In our opinion, the addition for the cash transaction has already been opinion, the addition for the cash transaction has already been opinion, the addition for the cash transaction has already been sustained by the Ld. CIT(A) sustained by the Ld. CIT(A) subject to verification with return of subject to verification with return of income and the balance amount has been verified from the books of and the balance amount has been verified from the books of and the balance amount has been verified from the books of account and therefore no further addition is justified. We do not herefore no further addition is justified. We do not herefore no further addition is justified. We do not find any error in the order of the Ld. CIT(A) on the issue-in-dispute find any error in the order of the Ld. CIT(A) on the issue find any error in the order of the Ld. CIT(A) on the issue and accordingly we uphold the same. and accordingly we uphold the same.
19A. The grounds No. 2 to 4 of the appeal of the Revenue are No. 2 to 4 of the appeal of the Revenue are No. 2 to 4 of the appeal of the Revenue are identical to the grounds raised in identical to the grounds raised in assessment year 2008 assessment year 2008-09. Therefore, respectfully following our finding, the grounds No. 2 to 4. Therefore, respectfully following our finding, the grounds No. 2 to 4. Therefore, respectfully following our finding, the grounds No. 2 to 4 of the appeal are decided of the appeal are decided mutatis mutandis. These grounds are . These grounds are already dismissed.
In ground No. 5, the Revenue has raised the issue of the In ground No. 5, the Revenue has raised the issue of the In ground No. 5, the Revenue has raised the issue of the addition of Rs.1,24,18,570/ ,24,18,570/- which has been restricted to which has been restricted to Rs.20,34,625/- by the Ld. CIT(A). We find that this issue has by the Ld. CIT(A). We find that this issue has by the Ld. CIT(A). We find that this issue has been raised by the assessee in its appeal in which raised by the assessee in its appeal in ITA No. 2092/M/2022 which raised by the assessee in its appeal in ITA No. 2092/M/2022 which has been adjudicated by the Tribunal on 02.02.2023. The relevant has been adjudicated by the Tribunal on 02.02.2023. The relevant has been adjudicated by the Tribunal on 02.02.2023. The relevant finding of the Tribunal is reproduced as under: ribunal is reproduced as under:
Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. 14 Gulati & 2578/M/2022 ITA nos. 2577 &
“41. The Ground No. 4 of the appeal relates to addition of The Ground No. 4 of the appeal relates to addition of The Ground No. 4 of the appeal relates to addition of ₹20,34,625/ ₹20,34,625/- sustained by the Ld. CIT(A), against the sustained by the Ld. CIT(A), against the addition of addition of ₹1,24,18,570/-which was made by the which was made by the Assessing Officer in relation to plot No. 22, Sector Six, Assessing Officer in relation to plot No. 22, Sector Six, Assessing Officer in relation to plot No. 22, Sector Six, Airoli relying on page No. 49of Annexure relying on page No. 49of Annexure -2 from Kaveri building. 2 from Kaveri building. 41.1 Regarding the addition, the Ld. CIT(A) has observed Regarding the addition, the Ld. CIT(A) has observed Regarding the addition, the Ld. CIT(A) has observed as under: “13.3 The facts of the case and findings of the AO recorded 13.3 The facts of the case and findings of the AO recorded 13.3 The facts of the case and findings of the AO recorded in the Assessment Order and the written submissions of the in the Assessment Order and the written submissions of the in the Assessment Order and the written submissions of the appellant have been considered. ellant have been considered. The AO observed that page no 49 of Annexure 2 seized from The AO observed that page no 49 of Annexure 2 seized from The AO observed that page no 49 of Annexure 2 seized from Kaveri Bldg showed allotment of certain properties to the Kaveri Bldg showed allotment of certain properties to the Kaveri Bldg showed allotment of certain properties to the assessee against part consideration of plot no.22 sector 6, assessee against part consideration of plot no.22 sector 6, assessee against part consideration of plot no.22 sector 6, Airoli. Total value of 4 flats in 'Muktai' on plot Airoli. Total value of 4 flats in 'Muktai' on plot 6A, Sec.6, 6A, Sec.6, Koparkhairane is worked out at Rs.31,27.580/ Koparkhairane is worked out at Rs.31,27.580/-; that of 4 ; that of 4 flats in Raj Uday Society on plot 109, sec. 1, Sampada flats in Raj Uday Society on plot 109, sec. 1, Sampada flats in Raj Uday Society on plot 109, sec. 1, Sampada worked out at Rs.80,56,500/ worked out at Rs.80,56,500/- and that of 1 flat in Sairaj and that of 1 flat in Sairaj Aptt on plot 83 & 84, Sec. 1, Sanpada worked out at Rs. Aptt on plot 83 & 84, Sec. 1, Sanpada worked out at Rs. Aptt on plot 83 & 84, Sec. 1, Sanpada worked out at Rs. 12,34,490/. Thus, t 12,34,490/. Thus, the total value of all these properties he total value of all these properties against part consideration of plot no.22, sector 6, Airoli was against part consideration of plot no.22, sector 6, Airoli was against part consideration of plot no.22, sector 6, Airoli was Rs.1,24,18,570/ Rs.1,24,18,570/-, The A made addition of Rs.1,24,18,570/ , The A made addition of Rs.1,24,18,570/- on account of unaccounted/undisclosed income of the on account of unaccounted/undisclosed income of the on account of unaccounted/undisclosed income of the assessee. The appellant has stated that the The appellant has stated that the A.O. has made this A.O. has made this addition as unexplained investment, based upon Page no. addition as unexplained investment, based upon Page no. addition as unexplained investment, based upon Page no. 49 of Annexure 49 of Annexure-2 seized from Kaveri Building.However, it 2 seized from Kaveri Building.However, it was the proposal made by the appellant to settle dispute for was the proposal made by the appellant to settle dispute for was the proposal made by the appellant to settle dispute for plot no.22 in sector plot no.22 in sector-6, Airoli and such proposals did not 6, Airoli and such proposals did not materialized as they were not accepted by the builder. ialized as they were not accepted by the builder. ialized as they were not accepted by the builder. Hence, no addition could be made only on the basis of a Hence, no addition could be made only on the basis of a Hence, no addition could be made only on the basis of a proposal which never materialized. Further, the appellant proposal which never materialized. Further, the appellant proposal which never materialized. Further, the appellant has stated that if at all additions are to be made then has stated that if at all additions are to be made then has stated that if at all additions are to be made then addition of Rs.20,34,625/ addition of Rs.20,34,625/- is to made since, the value of e since, the value of the flat requested to be allotted to the appellant was only the flat requested to be allotted to the appellant was only the flat requested to be allotted to the appellant was only Rs.20.34.625/ Rs.20.34.625/- It is seen rom page 49 af affickale R2 iTher the name of Shri s seen rom page 49 af affickale R2 iTher the name of Shri s seen rom page 49 af affickale R2 iTher the name of Shri Suni Guatappears at sr.no 4 of the project, MIs. Raj Uday Suni Guatappears at sr.no 4 of the project, MIs. Raj Uday Suni Guatappears at sr.no 4 of the project, MIs. Raj Uday Co-operative Housing Soc. Ltd bearing f operative Housing Soc. Ltd bearing flat 1001 amounting lat 1001 amounting
Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. 15 Gulati & 2578/M/2022 ITA nos. 2577 & to Rs.20,34,625/ to Rs.20,34,625/-. Thus, there was a specific reference of . Thus, there was a specific reference of the name of the appellant in this loose paper. Therefore, the name of the appellant in this loose paper. Therefore, the name of the appellant in this loose paper. Therefore, addition of Rs.20.34.625/ addition of Rs.20.34.625/- is sustained. However, in is sustained. However, in respect of the remaining addition of Rs.1,03,83,945/ respect of the remaining addition of Rs.1,03,83,945/ respect of the remaining addition of Rs.1,03,83,945/-, the AO has not made any further inquiry about whether such ot made any further inquiry about whether such ot made any further inquiry about whether such flais were acquired by the appellant or not. Therefore, the flais were acquired by the appellant or not. Therefore, the flais were acquired by the appellant or not. Therefore, the addition to the extent of Rs.1.03,83,945/ addition to the extent of Rs.1.03,83,945/- is deleted. is deleted. Accordingly, the ground no.8 of appeal is partly allowed. Accordingly, the ground no.8 of appeal is partly allowed. Accordingly, the ground no.8 of appeal is partly allowed.”
Before us on behalf of the asse Before us on behalf of the assessee, it has been ssee, it has been submitted as under: submitted as under: “The Appellant, in the course of his business activity, had The Appellant, in the course of his business activity, had The Appellant, in the course of his business activity, had struck an understanding for the development of a society struck an understanding for the development of a society struck an understanding for the development of a society plot at Plot No. 22 in sector plot at Plot No. 22 in sector - 6 Airoli, belonging to Shri. Sai 6 Airoli, belonging to Shri. Sai Raj Co-op. Hsg. Society, around 20 y op. Hsg. Society, around 20 years ago. Accordingly ears ago. Accordingly in the said proposed building flats were booked for others in the said proposed building flats were booked for others in the said proposed building flats were booked for others also i.e. for outsiders other than the members of the also i.e. for outsiders other than the members of the also i.e. for outsiders other than the members of the cooperative housing society. However, the said project did cooperative housing society. However, the said project did cooperative housing society. However, the said project did not take off for a long time. Hence, the society members not take off for a long time. Hence, the society members not take off for a long time. Hence, the society members approached another builder namely M/s. Raj Homes ached another builder namely M/s. Raj Homes ached another builder namely M/s. Raj Homes Udayvansh Builders & Developers, 425, Arenja Corner, Plot Udayvansh Builders & Developers, 425, Arenja Corner, Plot Udayvansh Builders & Developers, 425, Arenja Corner, Plot No. 71, Sector No. 71, Sector-17, Vashi, Navi Mumbai, for the development 17, Vashi, Navi Mumbai, for the development of the Society plot. That builder agreed to take over the of the Society plot. That builder agreed to take over the of the Society plot. That builder agreed to take over the Society plot for development but agre Society plot for development but agreed to allot flats in other ed to allot flats in other projects belonging to his group to persons for whom the projects belonging to his group to persons for whom the projects belonging to his group to persons for whom the Appellant had booked the flats.Since, the Appellant had Appellant had booked the flats.Since, the Appellant had Appellant had booked the flats.Since, the Appellant had earlier identified the members of the cooperative housing earlier identified the members of the cooperative housing earlier identified the members of the cooperative housing society and unified them togetherandconvinced them for the society and unified them togetherandconvinced them for the society and unified them togetherandconvinced them for the redevelopment of the Society plot, the Appellant, as a redevelopment of the Society plot, the Appellant, as a redevelopment of the Society plot, the Appellant, as a consideration for his efforts so far made by him, had consideration for his efforts so far made by him, had consideration for his efforts so far made by him, had requested for an allotment of one flat for himself, in the Raj requested for an allotment of one flat for himself, in the Raj requested for an allotment of one flat for himself, in the Raj Uday Cooperative Housing Society Building, from the said Uday Cooperative Housing Society Building, from the said Uday Cooperative Housing Society Building, from the said builder. It is only the sai It is only the said proposal of the Appellant's request that is d proposal of the Appellant's request that is contained in Page no.49 of Annexure contained in Page no.49 of Annexure-2, seized from Kaveri 2, seized from Kaveri Building However the builder M/s Raj Homes Udayvansh Building However the builder M/s Raj Homes Udayvansh Building However the builder M/s Raj Homes Udayvansh Builders & Developers had not agreed to give one flat Builders & Developers had not agreed to give one flat Builders & Developers had not agreed to give one flat requested for by the Appellant. requested for by the Appellant.
Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. 16 Gulati & 2578/M/2022 ITA nos. 2577 & Hence, the Ap Hence, the Appellant did not receive any flat from the pellant did not receive any flat from the builder, as MIs Raj Homes Udayvansh Builders & builder, as MIs Raj Homes Udayvansh Builders & builder, as MIs Raj Homes Udayvansh Builders & Developers has not allotted any flat to the Appellant. Developers has not allotted any flat to the Appellant. Developers has not allotted any flat to the Appellant. This fact can be verified from the said builder M/s Raj This fact can be verified from the said builder M/s Raj This fact can be verified from the said builder M/s Raj Homes Udavansh Builders & Developers himself or from the Homes Udavansh Builders & Developers himself or from the Homes Udavansh Builders & Developers himself or from the Housing Society concerned. Housing Society concerned. NO addition can be made in the assessment on account of NO addition can be made in the assessment on account of NO addition can be made in the assessment on account of the alleged purchase of the said flat, ONLY on the basis of a the alleged purchase of the said flat, ONLY on the basis of a the alleged purchase of the said flat, ONLY on the basis of a proposal which never materialized. proposal which never materialized. Hence. it is prayed that the addition confirmed in this Hence. it is prayed that the addition confirmed in this Hence. it is prayed that the addition confirmed in this regard to the exten regard to the extent of Rs. 20,34,625/- should be deleted. should be deleted.”
Before us the ld. Counsel of the assessee has also Before us the ld. Counsel of the assessee has also Before us the ld. Counsel of the assessee has also filed additional evidence that the allottees of said flat are filed additional evidence that the allottees of said flat are filed additional evidence that the allottees of said flat are different persons and not the assessee. The assessee has different persons and not the assessee. The assessee has different persons and not the assessee. The assessee has filed an information filed an information downloaded from the web-site of the site of the CIDCO, which is extracted as under: CIDCO, which is extracted as under:
Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. 17 Gulati & 2578/M/2022 ITA nos. 2577 &
Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. 18 Gulati & 2578/M/2022 ITA nos. 2577 &
We have heard rival submission of the parties on the We have heard rival submission of the parties on the We have heard rival submission of the parties on the issue in dispute and perused the relevant material on issue in dispute and perused the relevant material on issue in dispute and perused the relevant material on record. Before us the ld. Counsel of the assessee has filed record. Before us the ld. Counsel of the assessee has filed record. Before us the ld. Counsel of the assessee has filed additional evidence to support that said flat was never onal evidence to support that said flat was never onal evidence to support that said flat was never allotted to the assessee and it was merely a proposal, allotted to the assessee and it was merely a proposal, allotted to the assessee and it was merely a proposal, which never materialized. In view of the evidence collected which never materialized. In view of the evidence collected which never materialized. In view of the evidence collected by the widow of the demised assessee i.e. legal heir, we by the widow of the demised assessee i.e. legal heir, we by the widow of the demised assessee i.e. legal heir, we feel it appropriate to admit the a feel it appropriate to admit the additional evidence and dditional evidence and restore the matter to the file of the ld. Assessing Officer for restore the matter to the file of the ld. Assessing Officer for restore the matter to the file of the ld. Assessing Officer for necessary necessary necessary verification verification verification from from from the the the relevant relevant relevant authorities authorities authorities regarding allotment of concerned flat and then decide the regarding allotment of concerned flat and then decide the regarding allotment of concerned flat and then decide the issue in dispute in accordance with law after providing issue in dispute in accordance with law after providing issue in dispute in accordance with law after providing adequate opportunity of being heard to the assessee/legal equate opportunity of being heard to the assessee/legal equate opportunity of being heard to the assessee/legal heir of assessee. The ground of the appeal of the assessee heir of assessee. The ground of the appeal of the assessee heir of assessee. The ground of the appeal of the assessee is accordingly allowed for the statistical purposes. is accordingly allowed for the statistical purposes. is accordingly allowed for the statistical purposes.” 20.1 Since, the assessee filed additional evidence before the Since, the assessee filed additional evidence before the Since, the assessee filed additional evidence before the Tribunal claiming that t Tribunal claiming that the relevant plot was not allotted to the he relevant plot was not allotted to the assessee and therefore, no addition was justified in the case of the assessee and therefore, no addition was justified in the case of the assessee and therefore, no addition was justified in the case of the assessee. Since, the Tribunal has already restored this issue back assessee. Since, the Tribunal has already restored this issue back assessee. Since, the Tribunal has already restored this issue back to the file of the Assessing Officer for verification of claim of the to the file of the Assessing Officer for verification of claim of the to the file of the Assessing Officer for verification of claim of the assessee, this ground of the Revenue is also restored to the file of his ground of the Revenue is also restored to the file of his ground of the Revenue is also restored to the file of Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. 19 Gulati & 2578/M/2022 ITA nos. 2577 & the Ld. Assessing Officer. The ground of appeal of the Revenue is the Ld. Assessing Officer. The ground of appeal of the Revenue is the Ld. Assessing Officer. The ground of appeal of the Revenue is accordingly allowed for statistical purposes. accordingly allowed for statistical purposes.
21. The ground No. 6 of the appeal relates to the alternative The ground No. 6 of the appeal relates to the alternative The ground No. 6 of the appeal relates to the alternative addition made u/s 40A addition made u/s 40A of the Act for cash payment exceeding of the Act for cash payment exceeding Rs.20,000/-. Since the main addition for cash transactions ha . Since the main addition for cash transactions ha . Since the main addition for cash transactions has therefore this alternative claim of the Revenue already been deleted, , therefore this alternative claim of the Revenue for levying penalty for cash transaction exceeding Rs.20,000/- does for levying penalty for cash transaction exceeding Rs.20,000/ for levying penalty for cash transaction exceeding Rs.20,000/ not survive. The ground No. 6 of the appeal of the Revenue is ground No. 6 of the appeal of the Revenue is ground No. 6 of the appeal of the Revenue is accordingly dismissed. accordingly dismissed.
In the result, the appeals of the Revenue are allowed partly for In the result, the appeals of the Revenue are allowed partly for In the result, the appeals of the Revenue are allowed partly for statistical purposes.