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Income Tax Appellate Tribunal, MUMBAI BENCH “G” MUMBAI
Before: SHRI OM PRAKASH KANT & SHRI RAHUL CHAUDHARY
PER OM PRAKASH KANT, AM
These two appeals by the deceased assessee through legal heir are directed against two separate orders, both dated 28/07/2022, passed by the Ld. Commissioner of income-tax(Appeals)-54[in short
Late Sunil D Gulati 2 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
‘the Ld. CIT(A)’]for assessment year 20 for assessment year 2008-09 and 2009 and 2009-10, arising from the two separate two separate orders passed by the Assessing Officer u/s. Assessing Officer u/s. 143(3) r.w.s 153A of the Act r.w.s 153A of the Act, both on 29/12/201 /2011. The issues raised in both the appeals raised in both the appeals are permeating from same set of facts permeating from same set of facts and circumstances, hence both the appeals were heard together and circumstances, hence both the appeals were heard together and circumstances, hence both the appeals were heard together and disposed off by way of thi and disposed off by way of this consolidated order for convenience s consolidated order for convenience and avoid repetition of facts. and avoid repetition of facts.
Firstly, we take up the appeal of the assessee for AY 2008 Firstly, we take up the appeal of the assessee for AY 2008 Firstly, we take up the appeal of the assessee for AY 2008-09. The grounds raised by the assessee The grounds raised by the assessee for AY 2008-09 09 are reproduced as under:
“GROUND I:- -
On the facts and in the On the facts and in the circumstances of the case, the circumstances of the case, the Learned Commissioner of Income Tax (Appeal) Learned Commissioner of Income Tax (Appeal) - 54, MUMBAI 54, MUMBAI (hereinafter fan referred to as 'the CIT(A)') has erred in (hereinafter fan referred to as 'the CIT(A)') has erred in (hereinafter fan referred to as 'the CIT(A)') has erred in confirming an addition of Rs.1,31,495/ confirming an addition of Rs.1,31,495/- as unexplained as unexplained expenditure us. 69 in respect of the credit cards expe expenditure us. 69 in respect of the credit cards expe expenditure us. 69 in respect of the credit cards expenses alleged as unverifiable alleged as unverifiable
The appellant being aggrieved, prays that the addition made The appellant being aggrieved, prays that the addition made The appellant being aggrieved, prays that the addition made on account of unexplained expenditure us. 69 to the extent of on account of unexplained expenditure us. 69 to the extent of on account of unexplained expenditure us. 69 to the extent of Rs. 1,31,495/ Rs. 1,31,495/- being unjustified, unwarranted, bad in law being unjustified, unwarranted, bad in law and illegal be deleted." and illegal be deleted."
GROUND II:- -
On the facts and in the circumstances of the case, the ts and in the circumstances of the case, the ts and in the circumstances of the case, the Learned CIT(A) has erred in confirming the addition made on Learned CIT(A) has erred in confirming the addition made on Learned CIT(A) has erred in confirming the addition made on
Late Sunil D Gulati 3 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
account of current liabilities and unsecured loans taken in account of current liabilities and unsecured loans taken in account of current liabilities and unsecured loans taken in the name of Rakesh Survey Rs 8,80,000/ the name of Rakesh Survey Rs 8,80,000/- and Shree Mukund Associates Rs 35,00,000/ Mukund Associates Rs 35,00,000/- aggregating to Rs. aggregating to Rs. 43,80,000/-a as unexplained cash credit for u/s. 68 of the Act. s. 68 of the Act.
The appellant being aggrieved, prays that the addition made The appellant being aggrieved, prays that the addition made The appellant being aggrieved, prays that the addition made on account of current liabilities and unsecured loans as on account of current liabilities and unsecured loans as on account of current liabilities and unsecured loans as unexplained cash credit u/s. 68 to the extent of Rs unexplained cash credit u/s. 68 to the extent of Rs unexplained cash credit u/s. 68 to the extent of Rs 43,80,000/- being unjustified, unwarranted, bad in law and being unjustified, unwarranted, bad in law and illegal be deleted illegal be deleted.
GROUND III- -
On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the Learned CIT(A) has erred in confirming the disallowance of Learned CIT(A) has erred in confirming the disallowance of Learned CIT(A) has erred in confirming the disallowance of Rs. 61,309/- - made on account of personal element in certain made on account of personal element in certain expenses.
The appellant being aggrieved, prays that the disallowance The appellant being aggrieved, prays that the disallowance The appellant being aggrieved, prays that the disallowance made on account of estimated personal element in certain made on account of estimated personal element in certain made on account of estimated personal element in certain expenses to the extent of Rs. 61,309/ expenses to the extent of Rs. 61,309/- being unjustified, being unjustified, unwarranted, bad in law and illegal bedeleted. unwarranted, bad in law and illegal bedeleted.
GROUND IV: GROUND IV:
On the facts and On the facts and in the circumstances of the case, the in the circumstances of the case, the Learned CIT(A) has erred in confirming the addition made on Learned CIT(A) has erred in confirming the addition made on Learned CIT(A) has erred in confirming the addition made on account of disallowance of interest us. 36(1)(iii) to the extent account of disallowance of interest us. 36(1)(iii) to the extent account of disallowance of interest us. 36(1)(iii) to the extent of Rs. 16,19,127/ of Rs. 16,19,127/- alleging it being not for the business alleging it being not for the business purposes.
Late Sunil D Gulati 4 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
The appellant being aggri The appellant being aggrieved, prays that the addition made eved, prays that the addition made on account of disallowance of interest us. 36(1) (ii) to the on account of disallowance of interest us. 36(1) (ii) to the on account of disallowance of interest us. 36(1) (ii) to the extent of Rs. 16,19, 127/ extent of Rs. 16,19, 127/-being unjustified, unwarranted, being unjustified, unwarranted, bad in law and illegal be deleted bad in law and illegal be deleted.
Briefly stated facts of the case are that the assessee riefly stated facts of the case are that the assessee riefly stated facts of the case are that the assessee had not filed his return of income for the year under consideration return of income for the year under consideration u/s. return of income for the year under consideration 139(1) of the Act. Duri During the year under consideration ng the year under consideration, the assessee had acted as real estate agent engaged in purchase and sale of land real estate agent engaged in purchase and sale of land real estate agent engaged in purchase and sale of land and was mainly dealing mainly dealing in plots awarded to villagers awarded to villagers/farmers under scheme of CIDCO for allotment of 12.5 % area of land acquired for allotment of 12.5 % area of land acquired for allotment of 12.5 % area of land acquired. His business was carried out as a proprietary business in his personal carried out as a proprietary business in his personal carried out as a proprietary business in his personal name. A search and seizure action u/s. 132 of the Income Tax Act, name. A search and seizure action u/s. 132 of the Income Tax Act, name. A search and seizure action u/s. 132 of the Income Tax Act, 1961 [for short, “the Act”] was conducted 1961 [for short, “the Act”] was conducted in the case of one Shri in the case of one Shri Madan S. Kolambekar Madan S. Kolambekar, who was dealing in land. Subsequently, who was dealing in land. Subsequently, search u/s. 132 of the Act was also carried out in the case of search u/s. 132 of the Act was also carried out in the case of search u/s. 132 of the Act was also carried out in the case of assessee on 18.02.2009. Consequent to the search and seizure assessee on 18.02.2009. Consequent to the search and seizure assessee on 18.02.2009. Consequent to the search and seizure action, notice u/s. 153A of the Act dated 12.10 action, notice u/s. 153A of the Act dated 12.10.2009 was issued .2009 was issued and served on the assessee asking to file the return of income. In and served on the assessee asking to file the return of income. In and served on the assessee asking to file the return of income. In response, the assessee filed his return of income for A.Y. 2008-09 response, the assessee filed his return of income for A.Y. 2008 response, the assessee filed his return of income for A.Y. 2008 on 26.02.2010 declaring total income at Rs. 4,50,960/-. Thereafter, on 26.02.2010 declaring total income at Rs. 4,50,960/ on 26.02.2010 declaring total income at Rs. 4,50,960/ statutory notices under the Act were statutory notices under the Act were issued and served on the issued and served on the assessee. In the assessment completed u/s. 143(3) assessment completed u/s. 143(3) assessment completed u/s. 143(3) r.w.s. 153A of the Act, the Assessing Officer determined total income at Rs. , the Assessing Officer determined total income at Rs. , the Assessing Officer determined total income at Rs. 12,93,49,967/- after after making several additions to the total income making several additions to the total income declared in the return of income by th declared in the return of income by the assessee.
Late Sunil D Gulati 5 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
Aggrieved by the action of the Assessing Officer, the assessee Aggrieved by the action of the Assessing Officer, the assessee Aggrieved by the action of the Assessing Officer, the assessee preferred appeal before the ld. CIT(A) preferred appeal before the ld. CIT(A) who partly allowed the appeal who partly allowed the appeal of the assessee. Again, Again, not satisfied with the finding of Ld CIT(A) d with the finding of Ld CIT(A), the assessee is in appeal before us. the assessee is in appeal before us.
The ground no. 1 of the appeal The ground no. 1 of the appeal relates to addition of relates to addition of Rs.1,31,495/- confirmed by the ld. CIT(A) in respect of credit card confirmed by the ld. CIT(A) in respect of credit card confirmed by the ld. CIT(A) in respect of credit card expenses.
The facts qua this issue The facts qua this issue are that during the course of search, that during the course of search, various credit cards were found and vide notice u/s. 142(1) of the various credit cards were found and vide notice u/s. 142( various credit cards were found and vide notice u/s. 142( Act, the assessee was specifically asked to furnish details of Act, the assessee was specifically asked to furnish details of Act, the assessee was specifically asked to furnish details of payments for all credit/debit cards with him. all credit/debit cards with him. On comparison of the On comparison of the details submitted by the assessee, the Assessing Officer observed details submitted by the assessee, the Assessing Officer observed details submitted by the assessee, the Assessing Officer observed that certain credit cards that certain credit cards were not disclosed/accou not disclosed/accounted for by the assessee. Accordingly, a show cause notice dated 07.12.2011 was assessee. Accordingly, a show cause notice dated 07.12.2011 was assessee. Accordingly, a show cause notice dated 07.12.2011 was issued to the assessee, in reply to which issued to the assessee, in reply to which, it was explained it was explained by the assessee that those credit card transactions that those credit card transactions were not reflected in his balance sheet because the same relates his balance sheet because the same relates to his HUF and are duly to his HUF and are duly accounted for in that entity. However, the Assessing Officer did not accounted for in that entity. However, the Assessing Officer did not accounted for in that entity. However, the Assessing Officer did not accept the same as the details obtained from various banks in accept the same as the details obtained from various banks in accept the same as the details obtained from various banks in respect of those credit cards clearly show that the same are in the respect of those credit cards clearly show that the same are in the respect of those credit cards clearly show that the same are in the name of assessee only. Further, name of assessee only. Further, the stand of the assessee was also the stand of the assessee was also not supported by any documentary evidence. Eventually, the not supported by any documentary evidence. Eventually, the not supported by any documentary evidence. Eventually, the Assessing Officer fficer fficer made made made the the the addition addition addition of of of Rs. Rs.6,67,200/- Rs. as unexplained expenditure unexplained expenditure being the total expenses reflecting against being the total expenses reflecting against
Late Sunil D Gulati 6 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
the relevant credit cards to which the the relevant credit cards to which the assessee could not provide assessee could not provide any satisfactory explanation before the Assessing Officer. any satisfactory explanation before the Assessing Officer. any satisfactory explanation before the Assessing Officer.
Before the ld. CIT(A), the assessee substantiated the payments Before the ld. CIT(A), the assessee substantiated the payments Before the ld. CIT(A), the assessee substantiated the payments to the tune of Rs. 5,35,705/ to the tune of Rs. 5,35,705/- made through cheques and after due made through cheques and after due verification, relief to that extent wa verification, relief to that extent was granted by the ld. CIT(A) and the ld. CIT(A) and balance Rs.1,31,495/ 1,31,495/- was sustained being not verifiable. was sustained being not verifiable.
The ld. Counsel of the assessee The ld. Counsel of the assessee referred to para 6.4 of the para 6.4 of the assessment order to show that the transactions of credit cards assessment order to show that the transactions of credit cards assessment order to show that the transactions of credit cards appearing therein have two columns, one appearing therein have two columns, one for expenses of Rs. for expenses of Rs. 6,67,200/- and other for payments of Rs. and other for payments of Rs.6,54,204/- -. The Assessing Officer made the addition for expenses and not for payments. He Officer made the addition for expenses and not for payments. He Officer made the addition for expenses and not for payments. He argued that if at all any additions are to be made with the reference argued that if at all any additions are to be made with the reference argued that if at all any additions are to be made with the reference to the transaction of a year as unex to the transaction of a year as unexplained, it can be made only plained, it can be made only with reference to the payments in the year, that too, only when with reference to the payments in the year, that too, only when with reference to the payments in the year, that too, only when those payments are not properly explained by the appellant. The ld. those payments are not properly explained by the appellant. The ld. those payments are not properly explained by the appellant. The ld. Counsel submitted that all the payments towards the credit cards Counsel submitted that all the payments towards the credit cards Counsel submitted that all the payments towards the credit cards are either made by assessee or are either made by assessee or M/s. Sadguru Arts whose proprietor M/s. Sadguru Arts whose proprietor is Mr. Sunil Gulati HUF and that same are duly reflected in the is Mr. Sunil Gulati HUF and that same are duly reflected in the is Mr. Sunil Gulati HUF and that same are duly reflected in the books of accounts. Further, he argued that no claim of such books of accounts. Further, he argued that no claim of such books of accounts. Further, he argued that no claim of such expenditure is even made in the books as the same is part of expenditure is even made in the books as the same is part of expenditure is even made in the books as the same is part of withdrawals for the year in the cap withdrawals for the year in the capital account. ital account. The assessee further explained that in view of cash withdrawal out of capital further explained that in view of cash withdrawal out of capital further explained that in view of cash withdrawal out of capital account during various years justify the balance account during various years justify the balance amount, amount, which the Ld CIT(A) has upheld due to not explained by way of cheque. Ld CIT(A) has upheld due to not explained by way of cheque. Ld CIT(A) has upheld due to not explained by way of cheque.
Late Sunil D Gulati 7 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
The ld. Departmental The ld. Departmental Representative relied on the order of ld. relied on the order of ld. CIT(A) and requested ed for confirming the addition as sustained by the addition as sustained by the ld. CIT(A).
We have perused the rival submissions of the parties and We have perused the rival submissions of the parties and We have perused the rival submissions of the parties and material on record. The credit cards referred by the Assessing material on record. The credit cards referred by the Assessing material on record. The credit cards referred by the Assessing Officer refers to two columns, one for expenses and another for efers to two columns, one for expenses and another for efers to two columns, one for expenses and another for payments. So, the disallowance could have been made to the extent the disallowance could have been made to the extent the disallowance could have been made to the extent of payments made to credit of payments made to credit card and not expenses incurred or and not expenses incurred or credit amount from credit cards credit amount from credit cards. It is observed that the ld. CIT(A) . It is observed that the ld. CIT(A) has carried out due verification of payments and after that he has arried out due verification of payments and after that he has arried out due verification of payments and after that he has sustained addition of Rs. 131495/ sustained addition of Rs. 131495/- out of Rs. 667200/ out of Rs. 667200/- made by the Assessing Officer. However, if aggregate payments are to be the Assessing Officer. However, if aggregate payments are to be the Assessing Officer. However, if aggregate payments are to be considered for the year, then Rs. 654204/ considered for the year, then Rs. 654204/- needs to be considered. needs to be considered. Since, the payments of Rs. 5,35,705/ Since, the payments of Rs. 5,35,705/- are duly verified and stands are duly verified and stands reconciled, the differential amount of Rs. reconciled, the differential amount of Rs. 1,18,499/- - (Rs. 654204 (-) Rs. 535705), is only amount has not been explained by way sources , is only amount has not been explained by way sources , is only amount has not been explained by way sources of cheque. The Ld. Counsel of the assessee has shown year wise of cheque. The Ld. Counsel of the assessee has shown of cheque. The Ld. Counsel of the assessee has shown cash withdrawal by the assessee, which are placed on record. In our cash withdrawal by the assessee, which are placed on record cash withdrawal by the assessee, which are placed on record opinion, the amount of said withdrawal is sufficient to explain the opinion, the amount of said withdrawal is sufficient to explain the opinion, the amount of said withdrawal is sufficient to explain the source of balance amount source of balance amount of Rs.1,18,499/-. Accordingly, the Accordingly, the addition on account of credit card payment is dele addition on account of credit card payment is deleted. ted.
The ground no. 2 relates to addition of Rs. 43,80,000/ The ground no. 2 relates to addition of Rs. 43,80,000/ The ground no. 2 relates to addition of Rs. 43,80,000/- confirmed by the ld. CIT(A) confirmed by the ld. CIT(A) u/s. 68 of the Act.
Late Sunil D Gulati 8 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
The brief facts qua this issue The brief facts qua this issue are that the assessee had that the assessee had shown unexplained liabilities in his balance sheet which amounted to Rs. unexplained liabilities in his balance sheet which amounted to Rs. unexplained liabilities in his balance sheet which amounted to Rs. 6,70,30,000/-. This liability included amount . This liability included amount of Rs. 8,80,000/ of Rs. 8,80,000/- from Mr. Rakesh Surve and Rs. 35,00,000/ from Mr. Rakesh Surve and Rs. 35,00,000/- from Shree Mukund from Shree Mukund Associates. The AO made addition for entire . The AO made addition for entire . The AO made addition for entire liability of Rs. 6,70,30,000/- u/s. 68 u/s. 68 of the Act as the assessee failed to discharge of the Act as the assessee failed to discharge his onus to prove the same. During the appellate proceedings, the o prove the same. During the appellate proceedings, the o prove the same. During the appellate proceedings, the ld. CIT(A) had called for remand report on various additions made ld. CIT(A) had called for remand report on various additions made ld. CIT(A) had called for remand report on various additions made u/s. 68 of the Act in th u/s. 68 of the Act in the case. The comment of the The comment of the AO in his remand report are ext remand report are extracted as under:
“11.2 During the course of 11.2 During the course of appellate proceedings, the AR of appellate proceedings, the AR of the appellant submitted additional evidences in respect of the appellant submitted additional evidences in respect of the appellant submitted additional evidences in respect of this ground of appeal. The additional evidences were this ground of appeal. The additional evidences were this ground of appeal. The additional evidences were admitted under Rule 46A and Remand Report was called admitted under Rule 46A and Remand Report was called admitted under Rule 46A and Remand Report was called from the AO. The AO has submitted Remand Report vide from the AO. The AO has submitted Remand Report vide from the AO. The AO has submitted Remand Report vide letter dated 24.12.2014 which is reproduced asunder r dated 24.12.2014 which is reproduced asunder r dated 24.12.2014 which is reproduced asunder-
The Assessing Officer while passing order had made The Assessing Officer while passing order had made The Assessing Officer while passing order had made an addition of Rs. 6.70.30.000/ an addition of Rs. 6.70.30.000/- on account of current on account of current liabilities. liabilities.
M/s. Rishi Enterprises ( Rs.15,00,000/-) : The M/s. Rishi Enterprises ( Rs.15,00,000/ M/s. Rishi Enterprises ( Rs.15,00,000/ assessee has submitted that loan pertained to earlier assessee has submitted that loan pertained assessee has submitted that loan pertained year.
ShriRakeshSurve (MIs. Shri Ganesh Builders & ShriRakeshSurve (MIs. Shri Ganesh Builders & ShriRakeshSurve (MIs. Shri Ganesh Builders & Developers) Developers) - Rs.8,80,000/-: The assessee has filed : The assessee has filed confirmation from the said party. confirmation from the said party.
Late Sunil D Gulati 9 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
In this case, the notice issued us. 133/6) of the Act In this case, the notice issued us. 133/6) of the Act In this case, the notice issued us. 133/6) of the Act has been received back unserved. Therefore, the has been received back unserved. Therefore, the has been received back unserved. Therefore, the assessee has failed to prove the genuineness of the see has failed to prove the genuineness of the see has failed to prove the genuineness of the loan.
M/s. Mahavir Universal Homes Pvt. Ltd s. Mahavir Universal Homes Pvt. Ltd s. Mahavir Universal Homes Pvt. Ltd - Rs.2, 16,00,000/ 16,00,000/- : The assessee has filed confirmation from : The assessee has filed confirmation from the said party. In response to the notice u/s. 133(6) of the said party. In response to the notice u/s. 133(6) of the said party. In response to the notice u/s. 133(6) of the Act, the party has submitted copy of ROl, bank the Act, the party has submitted copy of ROl, the Act, the party has submitted copy of ROl, statement. The party has stated that the advance statement. The party has stated that the advance statement. The party has stated that the advance made were towards purchase of land. made were towards purchase of land.
M/s. M/s. M/s. Mahavir Mahavir Mahavir Universal Universal Universal Homes Homes Homes Pvt. Pvt. Pvt. Ltd Ltd Ltd - Rs.5,00,000/ Rs.5,00,000/- : The assessee has filed confirmation : The assessee has filed confirmation from the said party. In response to the notice us. from the said party. In response to the notice us. from the said party. In response to the notice us. 133(6) of the Act, the 133(6) of the Act, the party has submitted copy of ROl, party has submitted copy of ROl, bank statement. This amount represents advance for bank statement. This amount represents advance for bank statement. This amount represents advance for payment to villagers on behalf of M/s. Mahavir payment to villagers on behalf of M/s. Mahavir payment to villagers on behalf of M/s. Mahavir Universal Homes Pvt. Ltd. Universal Homes Pvt. Ltd.
M/s. Madan Associates M/s. Madan Associates - Rs.2,71,00,000/ Rs.2,71,00,000/- : The assessee has filed confirmation from the said party. In assessee has filed confirmation from the said party assessee has filed confirmation from the said party response to the notice us. 133(6) of the Act, the party response to the notice us. 133(6) of the Act, the party response to the notice us. 133(6) of the Act, the party has submitted copy of ROl, bank statement. The same has submitted copy of ROl, bank statement. The same has submitted copy of ROl, bank statement. The same is found to be in order. is found to be in order.
M/s. Guru Prerna Enterprises M/s. Guru Prerna Enterprises - Rs.1,60,00,000/ Rs.1,60,00,000/- : This amount represents outstanding liability payable This amount represents outstanding liability payable This amount represents outstanding liability payable to M/s. Guru Pr to M/s. Guru Prerna Enterprises for purchase of the erna Enterprises for purchase of the flat from the said party. The assessee has filed sale flat from the said party. The assessee has filed sale flat from the said party. The assessee has filed sale agreement which may be considered. agreement which may be considered.”
Late Sunil D Gulati 10 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
12.1 Regarding the li liability of Mr. Rakesh Surve and M/s. Mukund of Mr. Rakesh Surve and M/s. Mukund Associates, no satisfactory material could be placed before the no satisfactory material could be placed before the ld. no satisfactory material could be placed before the CIT(A) CIT(A) CIT(A) and and and accordingly, accordingly, accordingly, same same same was was was upheld upheld upheld and and and balance balance balance Rs.6,26,50,000/- was deleted. was deleted.
The ld. Counsel of the assessee referred to the remand report The ld. Counsel of the assessee referred to the remand report The ld. Counsel of the assessee referred to the remand report called from the Assessing Officer by the ld. CIT(A) and submitted called from the Assessing Officer by the ld. CIT(A) and submitted called from the Assessing Officer by the ld. CIT(A) and submitted that all the loans are accepted as that all the loans are accepted as genuine by the Assessing Officer genuine by the Assessing Officer and hence, the addition be deleted. and hence, the addition be deleted.Alternatively, he submitted that he submitted that the assessee has already expired and it was very difficult for his the assessee has already expired and it was very difficult for his the assessee has already expired and it was very difficult for his widow, who is legal heir of assessee who is legal heir of assessee, to gather documents from to gather documents from various persons, still o various persons, still one more opportunity might be provided for ne more opportunity might be provided for gathering documents from relevant person and file before the AO. gathering documents from relevant person and file before the AO. gathering documents from relevant person and file before the AO.
The ld. Departmental Representative appearing for the The ld. Departmental Representative appearing for the The ld. Departmental Representative appearing for the Revenue objected and submitted and submitted that the remand report that the remand report has not accept genuineness of the lo accept genuineness of the loans taken by the parties namely ans taken by the parties namely Rakesh Surve and M/s. Mukund Associates and hence, requested Rakesh Surve and M/s. Mukund Associates and hence, requested Rakesh Surve and M/s. Mukund Associates and hence, requested to upheld the addition confirmed by the ld. CIT(A). to upheld the addition confirmed by the ld. CIT(A).
We have heard rival submission and heard rival submission and perused relevant relevant material on record. We have gone through the remand rep on record. We have gone through the remand report reproduced at ort reproduced at para 11.2 of the CIT(A)’s or para 11.2 of the CIT(A)’s order. We find that the assessee has find that the assessee has collected documents for discharging onus of the assessee and in collected documents for discharging onus of the as collected documents for discharging onus of the as most of the cases, documents , documents have been filed. In respect of Rakesh n respect of Rakesh Surve, although the assessee had filed loan Surve, although the assessee had filed loan confirmation of Rs. confirmation of Rs.
Late Sunil D Gulati 11 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
8,80,000/-, however, notice issued u/s. 133(6) of the Act had been , however, notice issued u/s. 133(6) of the Act had been , however, notice issued u/s. 133(6) of the Act had been returned unserved. In such circumstances, the Ld In such circumstances, the Ld. AO should have AO should have made effort for verification of the same by way sending inspector made effort for verification of the same by way sending inspector made effort for verification of the same by way sending inspector from his office for verification of th for verification of the party. As regards M/s. Mukund As regards M/s. Mukund Associates from whom loan of Rs. 35,00,000/ om whom loan of Rs. 35,00,000/-, the Ld Counsel of , the Ld Counsel of the assessee has requested to provide one more opportunity for the assessee has requested to provide one more opportunity for the assessee has requested to provide one more opportunity for providing the documents in support. In view of above facts and providing the documents in support. In view of above facts and providing the documents in support. In view of above facts and circumstances, we restore this circumstances, we restore this issue of addition of Rs. issue of addition of Rs.43,80,000/- back to file of the AO for deciding afresh after examining documents back to file of the AO for deciding afresh after examining documents back to file of the AO for deciding afresh after examining documents filed by the assessee and conducting due enquires as required. The filed by the assessee and conducting due enquires as filed by the assessee and conducting due enquires as ground of the appeal of the assessee is accordingly allowed for ground of the appeal of the assessee is accordingly allowed for ground of the appeal of the assessee is accordingly allowed for statistical purpose.
The ground no. 3 of the appeal relates to The ground no. 3 of the appeal relates to disallowance of Rs. disallowance of Rs. 61,309/- as personal expenses of the assessee. as personal expenses of the assessee.
The brief facts qua this issue The brief facts qua this issue are that the assessee has that the assessee has claimed certain expenses on account of motor car expenses, car claimed certain expenses on account of motor car expenses, car claimed certain expenses on account of motor car expenses, car loan interest, depreciation and telephone expenses. However, as the preciation and telephone expenses. However, as the preciation and telephone expenses. However, as the assessee failed to justify these expenses, the Assessing Officer assessee failed to justify these expenses, the Assessing Officer assessee failed to justify these expenses, the Assessing Officer disallowed 25% of these e disallowed 25% of these expenses which worked out to Rs. xpenses which worked out to Rs.61,309/-. During the appellate proceedings before the ld. CIT(A), the assessee During the appellate proceedings before the ld. CIT(A), the assessee During the appellate proceedings before the ld. CIT(A), the assessee relied on his own ITAT order for A.Y. 2003 d on his own ITAT order for A.Y. 2003-04 to 2007 04 to 2007-08 for this issue; however, the same could not be applied for the reason that issue; however, the same could not be applied for the reason that issue; however, the same could not be applied for the reason that those years are unabated years unabated years whereas the year under whereas the year under consideration is abated assessment year consideration is abated assessment year. Accordingly, the ld. CIT(A) . Accordingly, the ld. CIT(A)
Late Sunil D Gulati 12 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
did not apply the ratio of those decisions being the year under t apply the ratio of those decisions being the year under t apply the ratio of those decisions being the year under consideration an un unabated year and that the assessee has not abated year and that the assessee has not proved that these expenses were wholly and exclusively utilized for proved that these expenses were wholly and exclusively proved that these expenses were wholly and exclusively his business.
In this regard, we agree with the view taken by the ld. CIT(A) In this regard, we agree with the view taken by the ld. CIT(A) In this regard, we agree with the view taken by the ld. CIT(A) as the year under consideration is as the year under consideration is unabated year and has no abated year and has no refrence to any incriminating material found in the course of to any incriminating material found in the course of to any incriminating material found in the course of search. But we find that the details of total of expenses filed before we find that the details of total of expenses filed before we find that the details of total of expenses filed before the Ld CIT(A) by the assessee is as under: the Ld CIT(A) by the assessee is as under: Nature of Expenses Nature of Expenses Amount ( Amount (₹) Depreciation Depreciation 195654 195654 Interest on loan from Bank Interest on loan from Bank 56866 56866 Motor car expenses car expenses 12500 12500 Telephone Expenses Telephone Expenses 23497 23497 Total 288517 288517 19. We are of the opinion that t We are of the opinion that the depreciation he depreciation (Rs. 195,654/-) does not require any vouchers as such. Similarly, the interest on does not require any vouchers as such. Similarly, the does not require any vouchers as such. Similarly, the bank loan (Rs. 56,866/ 866/-) cannot be disallowed on ad ) cannot be disallowed on ad-hoc basis. The Only expenses, which could be disallowed are for Motor car ( Rs. Only expenses, which could be disallowed are for Only expenses, which could be disallowed are for 12,500/-) and telephone expenses and telephone expenses (Rs. 23,497/-) , but the quantum , but the quantum of those expenses claimed is claimed is not too high as compared to the as compared to the business activity of the assessee , so same does business activity of the assessee , so same does not not deserve any disallowance . Accordingly, the disallowance confirmed by the ld . Accordingly, the disallowance confirmed by the ld . Accordingly, the disallowance confirmed by the ld CIT(A) is deleted.
The ground no. 4 of th The ground no. 4 of the appeal relates to the disallowance of e appeal relates to the disallowance of interest of Rs. 16,19,127/ interest of Rs. 16,19,127/- u/s. 36(1)(iii) of the Act.
Late Sunil D Gulati 13 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
The brief facts qua, The brief facts qua, this issue is that the assessee has claimed this issue is that the assessee has claimed bank interest of Rs. 16,19,127/ bank interest of Rs. 16,19,127/- in his Profit & Loss A/c. The in his Profit & Loss A/c. The Assessing Officer observed t Assessing Officer observed that the bank loans are personal in hat the bank loans are personal in nature. In response thereto, the assessee explained that these loans nature. In response thereto, the assessee explained that these loans nature. In response thereto, the assessee explained that these loans were business loans with personal guarantee were business loans with personal guarantee given by the assessee given by the assessee and utilized for advancing amounts for purchasing plots of land. ed for advancing amounts for purchasing plots of land. ed for advancing amounts for purchasing plots of land. However, the Assessin However, the Assessing Officer rejected the explanation given by the e explanation given by the assessee. The ld. CIT(A) also confirmed the disallowance for the assessee. The ld. CIT(A) also confirmed the disallowance for the assessee. The ld. CIT(A) also confirmed the disallowance for the reasons that the assessee has not furnished any evidence of reasons that the assessee has not furnished any evidence of reasons that the assessee has not furnished any evidence of advancing loan for business as contended before the Assessing advancing loan for business as contended before the Assessing advancing loan for business as contended before the Assessing Officer.
We have heard the rival submissions of the parties and heard the rival submissions of the parties and heard the rival submissions of the parties and material on record. The ld. Counsel of the assessee submitted that material on record. The ld. Counsel of the assessee submitted that material on record. The ld. Counsel of the assessee submitted that the assessee being a real estate agent has to scout for the probable the assessee being a real estate agent has to scout for the probable the assessee being a real estate agent has to scout for the probable sellers of the CIDCO plots, which the land owners cum farmers sellers of the CIDCO plots, which the land owners cum farmers sellers of the CIDCO plots, which the land owners cum farmers were entitled to 12.50% of the lands surrendered by and acquired ed to 12.50% of the lands surrendered by and acquired ed to 12.50% of the lands surrendered by and acquired from them. Since the appellant earns reasonable amount of from them. Since the appellant earns reasonable amount of from them. Since the appellant earns reasonable amount of commission in the real estate deals made through him, he has to commission in the real estate deals made through him, he has to commission in the real estate deals made through him, he has to block the plots as and when he comes across some good plots and block the plots as and when he comes across some good plots and block the plots as and when he comes across some good plots and that blocking is possible only when some amount is paid as possible only when some amount is paid as possible only when some amount is paid as advance to the plot owners. For this purpose, the assessee asks the advance to the plot owners. For this purpose, the assessee asks the advance to the plot owners. For this purpose, the assessee asks the intending buyers of the plots to make advance payments to the plot intending buyers of the plots to make advance payments to the plot intending buyers of the plots to make advance payments to the plot owners through the appellant; however, sometimes, due to urgency, owners through the appellant; however, sometimes, due to urgency, owners through the appellant; however, sometimes, due to urgency, when the buyers are not readily available or cannot be contacted, ers are not readily available or cannot be contacted, ers are not readily available or cannot be contacted,
Late Sunil D Gulati 14 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
the assessee himself makes these advances from out of his own the assessee himself makes these advances from out of his own the assessee himself makes these advances from out of his own funds or borrowed funds. Hence, for this purpose, the assessee at funds or borrowed funds. Hence, for this purpose, the assessee at funds or borrowed funds. Hence, for this purpose, the assessee at times borrows money from bank and others which is utilised for times borrows money from bank and others which is utilised for times borrows money from bank and others which is utilised for purchasing plots. Considering, the nature of business of real estate plots. Considering, the nature of business of real estate plots. Considering, the nature of business of real estate agent of the assessee, the explanation given by the ld. Counsel is agent of the assessee, the explanation given by the ld. Counsel agent of the assessee, the explanation given by the ld. Counsel not unreasonable. Accordingly, we delete the addition made by the Accordingly, we delete the addition made by the Accordingly, we delete the addition made by the assessing officer.
In the result, the appeal of the assessee In the result, the appeal of the assessee is partly allowed. is partly allowed.
Now we take up the appeal of the assessee for assessment year Now we take up the appeal of the assessee for assessment year Now we take up the appeal of the assessee for assessment year 2009-10. The grounds raised by the assessee 10. The grounds raised by the assessee are are reproduced as under:
“GROUND I:- -
On the facts and in the circumstances of the case and in the On the facts and in the circumstances of the case and in the On the facts and in the circumstances of the case and in the law, the Learned Commissione law, the Learned Commissioner of Income Tax (Appeal) r of Income Tax (Appeal) - 54 , MUMBAI ('hereinafter referred to as 'the CIT(A)') has erred in MUMBAI ('hereinafter referred to as 'the CIT(A)') has erred in MUMBAI ('hereinafter referred to as 'the CIT(A)') has erred in confirming the addition to the extent of Rs 55,00,000/ confirming the addition to the extent of Rs 55,00,000/ confirming the addition to the extent of Rs 55,00,000/- as cash received in land deal from Mr. Madan Kolambekar in cash received in land deal from Mr. Madan Kolambekar in cash received in land deal from Mr. Madan Kolambekar in- spite of the appellani already made a declarat spite of the appellani already made a declaration of income ion of income to that extent and included in the return of income filed in to that extent and included in the return of income filed in to that extent and included in the return of income filed in response to notice us. 153A. response to notice us. 153A.
The appellant being aggrieved, prays that the addition made The appellant being aggrieved, prays that the addition made The appellant being aggrieved, prays that the addition made on account of cash received from Mr. Madan Kolambekar to on account of cash received from Mr. Madan Kolambekar to on account of cash received from Mr. Madan Kolambekar to the extent of Rs. the extent of Rs.
Late Sunil D Gulati 15 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
55,00,000/- being unjustified, unwarranted, bad in law and unjustified, unwarranted, bad in law and illegal be deleted. illegal be deleted.
GROUND II : GROUND II :-
On the facts and in the circumstances of the case and in the On the facts and in the circumstances of the case and in the On the facts and in the circumstances of the case and in the law, the Learned Commissioner of Income Tax (Appeal) law, the Learned Commissioner of Income Tax (Appeal) law, the Learned Commissioner of Income Tax (Appeal) - 54 , MUMBAI (hereinafter referred to as the CIT(A)') has erred in MUMBAI (hereinafter referred to as the CIT(A)') has erred in MUMBAI (hereinafter referred to as the CIT(A)') has erred in confirming the addition to the extent of Rs 6,03,000/ confirming the addition to the extent of Rs 6,03,000/ confirming the addition to the extent of Rs 6,03,000/- as unverifiable transactions in respect of Plot No: 154 Sector unverifiable transactions in respect of Plot No: 154 Sector unverifiable transactions in respect of Plot No: 154 Sector-44 by the appellant with M/s. Madan Associates. by the appellant with M/s. Madan Associates.
The appellant being aggrieved, prays that the addition made The appellant being aggrieved, prays that the addition made The appellant being aggrieved, prays that the addition made on account of unverifiable tr on account of unverifiable transaction in respect of Plot No ansaction in respect of Plot No 154 Sector-44 with M/s Madan Associates to the extent of 44 with M/s Madan Associates to the extent of 44 with M/s Madan Associates to the extent of Rs. 6,03,000/ Rs. 6,03,000/- being unjustified, unwarranted, bad in law being unjustified, unwarranted, bad in law and illegal be deleted. and illegal be deleted.
GROUND III: GROUND III:-
On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the Learned CIT(A) ha Learned CIT(A) has erred in confirming the addition made on s erred in confirming the addition made on account of other cash / unaccounted transaction to the extent account of other cash / unaccounted transaction to the extent account of other cash / unaccounted transaction to the extent of Rs. 1,63,22,000/ of Rs. 1,63,22,000/- by by treating it treating it as unexplained as unexplained expenditure us. 69C of the Act. expenditure us. 69C of the Act.
The appellant being aggrieved, prays that the addition made The appellant being aggrieved, prays that the addition made The appellant being aggrieved, prays that the addition made on account of unexplained expenditure us. 69C to the extent account of unexplained expenditure us. 69C to the extent account of unexplained expenditure us. 69C to the extent of Rs. 1,63,22,000/ of Rs. 1,63,22,000/-being unjustified, unwarranted, bad in being unjustified, unwarranted, bad in law and illegal be deleted law and illegal be deleted
GROUND IV : GROUND IV :-
Late Sunil D Gulati 16 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the Learned CIT(A) has erred in confirming the ad Learned CIT(A) has erred in confirming the addition made on dition made on account of consideration received for plot no: 22 Sector 6 account of consideration received for plot no: 22 Sector 6 account of consideration received for plot no: 22 Sector 6 Airoli to the extent of Rs. 20,34,625/ Airoli to the extent of Rs. 20,34,625/-from out of Rs. from out of Rs. 1,24,18,570/ 1,24,18,570/- merely based on a loose paper found at sr. no: merely based on a loose paper found at sr. no: 49 49 49 of of of Annexure: Annexure: Annexure: 2 2 2 by by by treating treating treating the the the same same same as as as unaccounted/undisclosed unaccounted/undisclosed income. Under the facts and income. Under the facts and circumstances, addition is incorrect and unlawful. The circumstances, addition is incorrect and unlawful. The circumstances, addition is incorrect and unlawful. The appellate pray to delete the additions of Rs. 20,34,625/ appellate pray to delete the additions of Rs. 20,34,625/ appellate pray to delete the additions of Rs. 20,34,625/-
GROUND V : GROUND V :-
On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the Learned CIT(A) has erred in confirming the addit Learned CIT(A) has erred in confirming the addition made on ion made on account of cash found during the search for Rs.16,93,750/ account of cash found during the search for Rs.16,93,750/ account of cash found during the search for Rs.16,93,750/- treating the same as unexplained money us. treating the same as unexplained money us.
69A in-spite of the fact that the appellant has explained that spite of the fact that the appellant has explained that spite of the fact that the appellant has explained that there was cash on hand as on the date of search i.e. 18 there was cash on hand as on the date of search i.e. 18 there was cash on hand as on the date of search i.e. 18-02- 2009 represented by 2009 represented by sufficient withdrawals. Under the facts sufficient withdrawals. Under the facts and circumstances, addition is incorrect and unlawful. The and circumstances, addition is incorrect and unlawful. The and circumstances, addition is incorrect and unlawful. The appellate pray to delete the additions of Rs.16,93,750/ appellate pray to delete the additions of Rs.16,93,750/ appellate pray to delete the additions of Rs.16,93,750/-.
GROUND VI : GROUND VI :-
On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the Learned CIT(A) has erred in confirming the addition made on Learned CIT(A) has erred in confirming the addition made on Learned CIT(A) has erred in confirming the addition made on account of jewellery for Rs.16,81,573/ account of jewellery for Rs.16,81,573/- treating the same as treating the same as unexplained investment us. 69. Source of jewellery are fully unexplained investment us. 69. Source of jewellery are fully unexplained investment us. 69. Source of jewellery are fully explained during th explained during the assessment proceeding. He further e assessment proceeding. He further erred in holding the amount of Rs. 16,81,573/ erred in holding the amount of Rs. 16,81,573/ erred in holding the amount of Rs. 16,81,573/- as
Late Sunil D Gulati 17 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
unexplained investment us.69A of the Act. Even the addition unexplained investment us.69A of the Act. Even the addition unexplained investment us.69A of the Act. Even the addition is not in sync with his detailed reasoning. Therefore under is not in sync with his detailed reasoning. Therefore under is not in sync with his detailed reasoning. Therefore under the facts and consideration additions are unwarran the facts and consideration additions are unwarran the facts and consideration additions are unwarranted. The appellate pray to delete the addition of Rs.16,81,573/ appellate pray to delete the addition of Rs.16,81,573/ appellate pray to delete the addition of Rs.16,81,573/-.
GROUND VII : GROUND VII :-
On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the Learned CIT(A) has erred in confirming the addition made on Learned CIT(A) has erred in confirming the addition made on Learned CIT(A) has erred in confirming the addition made on account of current liabilities and unsecured loans as account of current liabilities and unsecured loans as account of current liabilities and unsecured loans as unexplained cash credit for Rs. 1,74,01,3671 ined cash credit for Rs. 1,74,01,3671- u/s. 68 of the u/s. 68 of the Act.
The appellant being aggrieved, prays that the addition made The appellant being aggrieved, prays that the addition made The appellant being aggrieved, prays that the addition made on account of current liabilities and unsecured loans as on account of current liabilities and unsecured loans as on account of current liabilities and unsecured loans as unexplained cash credit us.68 to the extent of Rs unexplained cash credit us.68 to the extent of Rs unexplained cash credit us.68 to the extent of Rs 1,74,01,367/ 1,74,01,367/- being unjustified, unwarranted, bad in law d, unwarranted, bad in law and illegal be deleted and illegal be deleted
GROUND VIII: GROUND VIII:-
On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the Learned CIT(A) has erred in confirming the estimated Learned CIT(A) has erred in confirming the estimated Learned CIT(A) has erred in confirming the estimated disallowance of Rs. 30,577/ disallowance of Rs. 30,577/- made on account of personal made on account of personal element in certain expenses element in certain expenses.
The appellant being aggrieved, prays that the disallowance The appellant being aggrieved, prays that the disallowance The appellant being aggrieved, prays that the disallowance made on account of estimated personal element in certain made on account of estimated personal element in certain made on account of estimated personal element in certain expenses to the extent of Rs. 30,5771 expenses to the extent of Rs. 30,5771- being unjustified, being unjustified, unwarranted, bad in law and illegal be deleted. unwarranted, bad in law and illegal be deleted.
GROUND IX: GROUND IX:-
Late Sunil D Gulati 18 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
On the facts and in On the facts and in the circumstances of the case, the the circumstances of the case, the Learned CIT(A) has erred in confirming the addition made on Learned CIT(A) has erred in confirming the addition made on Learned CIT(A) has erred in confirming the addition made on account of disallowance of interest us. 36(1) (iii) to the extent account of disallowance of interest us. 36(1) (iii) to the extent account of disallowance of interest us. 36(1) (iii) to the extent of Rs. 24,13,176/ of Rs. 24,13,176/- alleging it being not for the business alleging it being not for the business purposes.
The appellant being aggriev The appellant being aggrieved, prays that the addition made ed, prays that the addition made on account of disallowance of interest us. 36(1)(iii) to the on account of disallowance of interest us. 36(1)(iii) to the on account of disallowance of interest us. 36(1)(iii) to the extent of Rs. 24,13, 176/ extent of Rs. 24,13, 176/-being unjustified, unwarranted, being unjustified, unwarranted, bad in law and illegal be deleted bad in law and illegal be deleted
GROUND X:- -
On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the Learned CIT(A) has erred in confirming the addition made on ned CIT(A) has erred in confirming the addition made on ned CIT(A) has erred in confirming the addition made on account of disallowance of donation of Rs. 10,000/ account of disallowance of donation of Rs. 10,000/ account of disallowance of donation of Rs. 10,000/-. The appellant being aggrieved, prays that the addition made on appellant being aggrieved, prays that the addition made on appellant being aggrieved, prays that the addition made on account of disallowance of donation u/s. 80G be deleted. account of disallowance of donation u/s. 80G be deleted. account of disallowance of donation u/s. 80G be deleted.”
The ground No. ground No. 7 of the appeal was revised/modified /modified by the assessee on 20/09/2022. The said assessee on 20/09/2022. The said revised ground is reproduced as revised ground is reproduced as under:
“REVISED GROUND VII TO BE READ AS UNDER: REVISED GROUND VII TO BE READ AS UNDER:-
On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the On the facts and in the circumstances of the case, the Learned CIT(A) has erred in confirming the a Learned CIT(A) has erred in confirming the addition made on ddition made on account of current liabilities and unsecured loans as account of current liabilities and unsecured loans as account of current liabilities and unsecured loans as unexplained cash credit aggregating to Rs. 3,33,62,724/ unexplained cash credit aggregating to Rs. 3,33,62,724/ unexplained cash credit aggregating to Rs. 3,33,62,724/-us. 68 of the Act in respect of Rs. 2,16,00,000/ 68 of the Act in respect of Rs. 2,16,00,000/- pertains to M/s. pertains to M/s. Mahavir Universal Homes Pvt. Ltd. (PAN : AAFCM2072C) ; Mahavir Universal Homes Pvt. Ltd. (PAN : AAFCM2072C) ; Mahavir Universal Homes Pvt. Ltd. (PAN : AAFCM2072C) ;
Late Sunil D Gulati 19 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
Rs. 90,00,000/ 0,000/- pertains to M/s. Narayan Niryat India Pvt. pertains to M/s. Narayan Niryat India Pvt. Ltd. (MOU) and Rs. 27,62,724/ Ltd. (MOU) and Rs. 27,62,724/- pertains to Basant Reality. pertains to Basant Reality.
The appellant being aggrieved, prays that the addition made The appellant being aggrieved, prays that the addition made The appellant being aggrieved, prays that the addition made on account of current liabilities and unsecured loans as on account of current liabilities and unsecured loans as on account of current liabilities and unsecured loans as unexplained cash credit us. 6 unexplained cash credit us. 68 to the extent of Rs 8 to the extent of Rs 3,33,62,724/ 3,33,62,724/- being unjustified, unwarranted, bad in law being unjustified, unwarranted, bad in law and illegal, be deleted and illegal, be deleted.”
In ground No. one issue raised relates to addition of ground No. one issue raised relates to addition of ground No. one issue raised relates to addition of ₹ 55 lakh and cash received in land deals from Mr Madan Kolambkar. and cash received in land deals from Mr Madan Kolambkar. and cash received in land deals from Mr Madan Kolambkar.
The brief facts qua t The brief facts qua the issue in dispute are that the Assessing he issue in dispute are that the Assessing Officer made addition of Officer made addition of Rs.3,50,00,000/-as unaccounted cash as unaccounted cash received by the assessee on the basis of annexure to MIS report received by the assessee on the basis of annexure to MIS report received by the assessee on the basis of annexure to MIS report under the details of development charges, which is seized from the under the details of development charges, which is seized from the under the details of development charges, which is seized from the premises of Sh Madan Madan Kolambkar.
Ld. CIT(A) restricted the addition to the extent of Ld. CIT(A) restricted the addition to the extent of Ld. CIT(A) restricted the addition to the extent of ₹ 55 lakh observing as under:
“6.3 The facts of the case and findings of the AO recorded in 6.3 The facts of the case and findings of the AO recorded in 6.3 The facts of the case and findings of the AO recorded in the Assessment Order and the written submissions of the the Assessment Order and the written submissions of the the Assessment Order and the written submissions of the appellant have been considered. appellant have been considered.
The facts of the case are that as per the main part of the The facts of the case are that as per the main part of the The facts of the case are that as per the main part of the status report as on 31.10.2008, the total payments made to status report as on 31.10.2008, the total payments made to status report as on 31.10.2008, the total payments made to Shri Suni Gulati for this plot Shri Suni Gulati for this plot - Kachha 33, Vadghar (Page No. Kachha 33, Vadghar (Page No. 226 of Annexure A 226 of Annexure A-1 seized from the office of Shri Madan 1 seized from the office of Shri Madan Kolambekar) are Rs. Kolambekar) are Rs.621 lakh. Further, in the ledger register, 621 lakh. Further, in the ledger register,
Late Sunil D Gulati 20 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
Annexue A- -1, seized from the office of Shri Madan 1, seized from the office of Shri Madan Kolambekar on 06.02.2009 ( Page No. 175 {6/F No. 174}), Kolambekar on 06.02.2009 ( Page No. 175 {6/F No. 174}), Kolambekar on 06.02.2009 ( Page No. 175 {6/F No. 174}), shows a total payment made for the aforesaid plot only to shows a total payment made for the aforesaid plot only to shows a total payment made for the aforesaid plot only to the tune of Rs.271 lakh. Further, the "developmen the tune of Rs.271 lakh. Further, the "developmen the tune of Rs.271 lakh. Further, the "development charge sheet ie the third Annexure to the Status Report ( page no. sheet ie the third Annexure to the Status Report ( page no. sheet ie the third Annexure to the Status Report ( page no. 221 ) shows an amount of Rs.350 lakh against the name of 221 ) shows an amount of Rs.350 lakh against the name of 221 ) shows an amount of Rs.350 lakh against the name of the assessee. The amount of Rs.271 lakhs has been paid the assessee. The amount of Rs.271 lakhs has been paid the assessee. The amount of Rs.271 lakhs has been paid through cheques and it was reflected in the bank account in through cheques and it was reflected in the bank account in through cheques and it was reflected in the bank account in Cosmos Co- -operative Bank Ltd of Shri Sunil Gulati.This tive Bank Ltd of Shri Sunil Gulati.This payment of Rs.271 lakhs was accounted for in the books of payment of Rs.271 lakhs was accounted for in the books of payment of Rs.271 lakhs was accounted for in the books of Shri Madan Kolambekar.The appellant had entered into an Shri Madan Kolambekar.The appellant had entered into an Shri Madan Kolambekar.The appellant had entered into an understanding with Shri. Madan Kolambekar for the supply understanding with Shri. Madan Kolambekar for the supply understanding with Shri. Madan Kolambekar for the supply of land admeasuring Approx. 10,000 sqare metr of land admeasuring Approx. 10,000 sqare metre in Vadghar e in Vadghar Node, the appellant could supply only two plots namely, (1) Node, the appellant could supply only two plots namely, (1) Node, the appellant could supply only two plots namely, (1) Plot No. 109, Sector Plot No. 109, Sector-5, Vadghar admeasuring 200 sq. metre 5, Vadghar admeasuring 200 sq. metre and (2) Plot No. 128, Sector and (2) Plot No. 128, Sector-5, Vadghar admeasuring 400 sq. 5, Vadghar admeasuring 400 sq. metre totalling 600 sq, metre and the balance out of 10,000 metre totalling 600 sq, metre and the balance out of 10,000 metre totalling 600 sq, metre and the balance out of 10,000 sq, metre was not supplied to Madan Kolambekar. In respect etre was not supplied to Madan Kolambekar. In respect etre was not supplied to Madan Kolambekar. In respect of supply of Kaccha plot no. 33 in Vadghar Node to M/s of supply of Kaccha plot no. 33 in Vadghar Node to M/s of supply of Kaccha plot no. 33 in Vadghar Node to M/s Madan Associates; the appellant had agreed to supply appx. Madan Associates; the appellant had agreed to supply appx. Madan Associates; the appellant had agreed to supply appx. 10,000 sq.m.of plot at Vadghar Node to Shri. Madan 10,000 sq.m.of plot at Vadghar Node to Shri. Madan 10,000 sq.m.of plot at Vadghar Node to Shri. Madan Kolambekar. Shri.Sunil Gulati had rec Kolambekar. Shri.Sunil Gulati had received Rs. 55,00,000/ eived Rs. 55,00,000/- in cash from MadanKolambekar and Rs.2.21.00,000/ in cash from MadanKolambekar and Rs.2.21.00,000/ in cash from MadanKolambekar and Rs.2.21.00,000/-, through cheques. Thus, Rs. 2,76,00,000/ through cheques. Thus, Rs. 2,76,00,000/- only was received only was received by the Appellant in respect of land to be supplied to by the Appellant in respect of land to be supplied to by the Appellant in respect of land to be supplied to Kolambekar in Vadghar Node Area. Kolambekar in Vadghar Node Area.
In view of the above, from the additi In view of the above, from the addition of Rs.3.50 Crores, the on of Rs.3.50 Crores, the addition of Rs. 55,00,000/ addition of Rs. 55,00,000/- is sustained being cash payment is sustained being cash payment
Late Sunil D Gulati 21 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
received Shri Madan Kolambekar received Shri Madan Kolambekar in respect of land supplied respect of land supplied to Shri Madam Kolambekar in Vadghar Node Area. to Shri Madam Kolambekar in Vadghar Node Area. to Shri Madam Kolambekar in Vadghar Node Area.
Accordingly, the ground no.1 of appeal is partly allowed. Accordingly, the ground no.1 of appeal is partly allowed. Accordingly, the ground no.1 of appeal is partly allowed.”
Before us, the Ld. counsel Ld. counsel of the assessee submitted as under: of the assessee submitted as under:
“Amount received from Madan Kolambekar Rs. 55,00,000/ Amount received from Madan Kolambekar Rs. 55,00,000/ Amount received from Madan Kolambekar Rs. 55,00,000/-
The A.O. has made addition of Rs. 3,50,00,000/ The A.O. has made addition of Rs. 3,50,00,000/ The A.O. has made addition of Rs. 3,50,00,000/- from out that a cash receipt of Rs 55,00,000/ that a cash receipt of Rs 55,00,000/- has been sustained by has been sustained by the learnedCIT(A) the learnedCIT(A)-54. We categorically denied the receipt of We categorically denied the receipt of Rs. 3,50,00,000/ Rs. 3,50,00,000/-in cash from Madan Kolambekar and we in cash from Madan Kolambekar and we confirm having received Rs. 55,00,000/ confirm having received Rs. 55,00,000/- Lakhs in cash from Lakhs in cash from him which has been duly shown in the appellant's books of him which has been duly shown in the appellant's books of him which has been duly shown in the appellant's books of accounts. The said income from undisclosed has accounts. The said income from undisclosed has been offered been offered to tax in the return as Income from other sources us.153A to to tax in the return as Income from other sources us.153A to to tax in the return as Income from other sources us.153A to the extent of Rs 68,00,000/ the extent of Rs 68,00,000/- as part of the disclosure made. as part of the disclosure made.
Though the appellant has received Rs. 55,00,000/ Though the appellant has received Rs. 55,00,000/ Though the appellant has received Rs. 55,00,000/- in cash from Madan Kolambekar, he has denied the said payment of from Madan Kolambekar, he has denied the said payment of from Madan Kolambekar, he has denied the said payment of cash of Rs. 55,00,000/ of Rs. 55,00,000/- vide his separate letter enclosed vide his separate letter enclosed with the confirmation letter dated 18.05.2012. However, as a with the confirmation letter dated 18.05.2012. However, as a with the confirmation letter dated 18.05.2012. However, as a true and sincere person, the appellant has entered the true and sincere person, the appellant has entered the true and sincere person, the appellant has entered the receipt of cash of Rs. 55.00.000/ receipt of cash of Rs. 55.00.000/- in his books of accounts. in his books of accounts. Thus whatever the appellan Thus whatever the appellant has received from Madan t has received from Madan Kolambekar, either in cheque or in cash, have been Kolambekar, either in cheque or in cash, have been Kolambekar, either in cheque or in cash, have been accounted for in his books. accounted for in his books. Therefore no further addition is Therefore no further addition is warranted and hence it is prayed that it be deleted. warranted and hence it is prayed that it be deleted. warranted and hence it is prayed that it be deleted.”
Late Sunil D Gulati 22 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
We have heard rival submission of the parties on the issue i We have heard rival submission of the parties on the issue i We have heard rival submission of the parties on the issue in dispute and perused the relevant material dispute and perused the relevant material on on record. As the assessee has candidly accepted receipt of assessee has candidly accepted receipt of ₹ 55 lakh and shown to 55 lakh and shown to have entered in books of accounts and offered as the undisclosed have entered in books of accounts and offered as the undisclosed have entered in books of accounts and offered as the undisclosed income of ₹ 68 lakh filed for the search period, thus, thus, no separate addition in the case is required addition in the case is required subject to verification of subject to verification of computation of income returned by the Assessing officer. The issue computation of income returned by the Assessing officer computation of income returned by the Assessing officer is therefore restored back to the file of the Assessing Officer. is therefore restored back to the file of the Assessing Officer. is therefore restored back to the file of the Assessing Officer. Accordingly, the ground Accordingly, the ground No. 1 of the appeal of the assessee of the appeal of the assessee is allowed for statistical purpose. for statistical purpose.
In ground No. 2 2 of the appeal, the assessee is ag of the appeal, the assessee is agitated by the addition of Rs.6,03,000/ 000/-sustained by the Ld. CIT(A) against the sustained by the Ld. CIT(A) against the addition of ₹63,29,500/ 500/-which was made by the Assessing Officer in which was made by the Assessing Officer in respect of unexplaine respect of unexplained expenditure in relation to transactions for d expenditure in relation to transactions for plot No. 154, sector plot No. 154, sector-44, Dronagiri Node admeasuring 2950 m², measuring 2950 m², which was handed over to Sri Madan Kolambkar. which was handed over to Sri Madan Kolambkar.
Brief facts qua qua the issue in dispute are that in the course of the issue in dispute are that in the course of search proceedings in the case of ch proceedings in the case of Sh Madan Kolmbkar certain Madan Kolmbkar certain incriminating documents were impounded/seized which reflected incriminating documents were impounded/seized which reflected incriminating documents were impounded/seized which reflected amount of ₹63,29,500/ 500/- paid by the Madan Kolmabkar to the paid by the Madan Kolmabkar to the assessee for purchase of plots for parties namely Shyam Kaluram assessee for purchase of plots for parties namely Shyam assessee for purchase of plots for parties namely Shyam Bhoir, Tulsabai Ramdas Patil, Gangaram Bhoir, Tulsabai Ramdas Patil, Gangaram Budhaji Budhaji Thakur and Surekha Ram Patil. The position of consideration and total payment . The position of consideration and total payment . The position of consideration and total payment
Late Sunil D Gulati 23 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
as on18/10/2008, reproduced by the Assessing Officer is extracted as on18/10/2008, reproduced by the Assessing Officer is extracted as on18/10/2008, reproduced by the Assessing Officer is extracted as under:
32.1 In view of no supporting evidence filed by the assessee view of no supporting evidence filed by the assessee, the view of no supporting evidence filed by the assessee Assessing Officer held the amount of Assessing Officer held the amount of ₹63,29,500/- as unexplained expenditure under section 609C of the expenditure under section 609C of the Act. On further appeal, the ct. On further appeal, the Ld. CIT(A) after verification of submission of the assessee found that Ld. CIT(A) after verification of submission of the assessee found that Ld. CIT(A) after verification of submission of the assessee found that ₹57,26,000/ was made through cheque and payment of 57,26,000/-was made through cheque an he deleted the addition to that extent and upheld the accordingly, he deleted the addition to that extent and upheld the he deleted the addition to that extent and upheld the addition to the extent of addition to the extent of ₹6,03,000/-.
Before us the Ld. counsel Ld. counsel of the assessee relied on the order of of the assessee relied on the order of the Tribunal for assessment year 2003 ribunal for assessment year 2003-04 to 2007 04 to 2007-08 in ITA No. 3496 to 3498, 4794 & 4795/mum/2015 and submitted that 94 & 4795/mum/2015 and submitted that 94 & 4795/mum/2015 and submitted that Tribunal has held that assessee has held that assessee was engaged in real estate as was engaged in real estate as agency work of purchase and sale on behalf of other parties and the agency work of purchase and sale on behalf of other parties and the agency work of purchase and sale on behalf of other parties and the
Late Sunil D Gulati 24 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
Assessing Officer had not brought on record anything to suggest Assessing Officer had not brought on record anything to suggest Assessing Officer had not brought on record anything to suggest that those land transac that those land transactions were done by the assessee in his tions were done by the assessee in his name.
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 dispute and perused the relevant material on record record. Regarding the transaction of the assessee the transaction of the assessee the Tribunal (supra) has observed that ribunal (supra) has observed that assessee was engaged in brokering activity of purchase and sale of s engaged in brokering activity of purchase and sale of s engaged in brokering activity of purchase and sale of the land. The relevant finding of the the land. The relevant finding of the Tribunal is reproduced as ribunal is reproduced as under:
“9.1 We find that assessee had been doing agency work on 9.1 We find that assessee had been doing agency work on 9.1 We find that assessee had been doing agency work on behalf of other parties. There is nothing on record to suggest behalf of other parties. There is nothing on record to suggest behalf of other parties. There is nothing on record to suggest that 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. Assessing Officer has not brought anything on record to Assessing Officer has not brought anything on record to Assessing Officer has not brought anything on record to suggest that above land transaction were done by him in his suggest that above land transaction were done by him in his suggest that above land transaction were done by him in his personal capacity. In such situation, assessee cannot be taxed personal capacity. In such situation, assessee cannot be taxed personal capacity. In such situation, assessee cannot be taxed on the basis of on invest on the basis of on investment transaction of its client. So, ment transaction of its client. So, addition in hand of assessee is not justified. Same is directed addition in hand of assessee is not justified. Same is directed addition in hand of assessee is not justified. Same is directed to be deleted. to be deleted.”
34.1 In the facts qua the issue in dispute also it is evident that the facts qua the issue in dispute also it is evident that the facts qua the issue in dispute also it is evident that assessee has merely acted as broker for Mr Madan Kolmbkar for assessee has merely acted as broker for Mr Madan Kolmbkar for assessee has merely acted as broker for Mr Madan Kolmbkar for purchase of plots from four persons and this fact has been plots from four persons and this fact has been plots from four persons and this fact has been corroborated from the seized documents and cheque payments corroborated from the seized documents and cheque payments corroborated from the seized documents and cheque payments made by the assessee. Accordingly made by the assessee. Accordingly, the addition of the addition of ₹ 6, 03, 000/- sustained by the Ld. CIT(A) is not justified, therefore same is sustained by the Ld. CIT(A) is not justified, therefore same is sustained by the Ld. CIT(A) is not justified, therefore same is
Late Sunil D Gulati 25 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
deleted. The ground ground No. two of the appeal of the assessee No. two of the appeal of the assessee is accordingly allowed.
In ground No. 3 3 of the appeal, the assessee is is agitated by way of amount of ₹1,63,22, 1,63,22,000/-sustained by the Ld. CIT(A) out of the sustained by the Ld. CIT(A) out of the addition of ₹7,57,07,000/ 000/-which was made by the Assessing which was made by the Assessing Officer in respect of the cash/unaccounted transactions of the assessee. in respect of the cash/unaccounted transactions of the assessee. in respect of the cash/unaccounted transactions of the assessee.
The brief facts qua the issue in dispute are that on the basis of The brief facts qua the issue in dispute are that on the basis of The brief facts qua the issue in dispute are that on the basis of noting on various pages of annexure A noting on various pages of annexure A-1 impounded/seized from 1 impounded/seized from the Arneja office, page No. 43 and 64 of Annexure A-3 is from the Arneja office, page No. 43 and 64 of Annexure A the Arneja office, page No. 43 and 64 of Annexure A Arneja office and various pages of annexure A Arneja office and various pages of annexure A-2 seized from Kaveri 2 seized from Kaveri Building, made addition of made addition of ₹7,57,07,000/-. The Ld. CIT(A) has . The Ld. CIT(A) has summarized all these additions in para 12.1 of the impugned order. ed all these additions in para 12.1 of the impugned order. ed all these additions in para 12.1 of the impugned order. For ready reference, said Paras For ready reference, said Paras are reproduced as under: under:
“12.1 During the assessment proceedings, the A observed that 12.1 During the assessment proceedings, the A observed that 12.1 During the assessment proceedings, the A observed that various various various seized seized seized documents documents documents indicated indicated indicated cash/unaccounted cash/unaccounted cash/unaccounted transactions. transactions.
(i) The AO observed that page no.1 of Annexure A The AO observed that page no.1 of Annexure A The AO observed that page no.1 of Annexure A-1 impounded from ArnejaOffice, contained details of cash impounded from ArnejaOffice, contained details of cash impounded from ArnejaOffice, contained details of cash payment of Rs.2 payment of Rs.2,00,000/- were made by the assessee to Mr. were made by the assessee to Mr. Anil Sakpal. Certain cheque payment of Rs.3,00,000/ to Anil Sakpal. Certain cheque payment of Rs.3,00,000/ to Anil Sakpal. Certain cheque payment of Rs.3,00,000/ to Pandhari Balkrishan Gharat and Rs.50,000/ Pandhari Balkrishan Gharat and Rs.50,000/ Pandhari Balkrishan Gharat and Rs.50,000/- each to Jayshree Kamlakar Patil and Surekha Shashikant Patil were Jayshree Kamlakar Patil and Surekha Shashikant Patil were Jayshree Kamlakar Patil and Surekha Shashikant Patil were also appearing on these pages. From the Ulve Plot also appearing on these pages. From the Ulve Plot also appearing on these pages. From the Ulve Plot, it is seen that out of the 7 lakhs, cash payment of Rs.1,00,000/ that out of the 7 lakhs, cash payment of Rs.1,00,000/ that out of the 7 lakhs, cash payment of Rs.1,00,000/- has
Late Sunil D Gulati 26 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
been made by the assessee to Shri Peter Anton Patil been made by the assessee to Shri Peter Anton Patil been made by the assessee to Shri Peter Anton Patil @Machado. and remaining Rs.6 lakh was paid by Shri B. @Machado. and remaining Rs.6 lakh was paid by Shri B. @Machado. and remaining Rs.6 lakh was paid by Shri B. Chajjer. The AO observed that apart from the above Chajjer. The AO observed that apart from the above Chajjer. The AO observed that apart from the above payments, apparently no pay payments, apparently no payments are seen to have been ments are seen to have been made against the remaining 2 plots i.e. 550 Ulwe and 300 made against the remaining 2 plots i.e. 550 Ulwe and 300 made against the remaining 2 plots i.e. 550 Ulwe and 300 Ulwe. Thus, as per the page, the assessee has made cheque Ulwe. Thus, as per the page, the assessee has made cheque Ulwe. Thus, as per the page, the assessee has made cheque payments of Rs.4 lakh and cash payment of Rs.3 lakhs. The payments of Rs.4 lakh and cash payment of Rs.3 lakhs. The payments of Rs.4 lakh and cash payment of Rs.3 lakhs. The AO asked the assessee to furnish the source of payment AO asked the assessee to furnish the source of payment AO asked the assessee to furnish the source of payment alongwith supporting documents and other relevant details. alongwith supporting documents and other relevant details. alongwith supporting documents and other relevant details. The assessee failed to furnish any details and explanation The assessee failed to furnish any details and explanation The assessee failed to furnish any details and explanation about the source of these payments. Accordingly, the AO about the source of these payments. Accordingly, the AO about the source of these payments. Accordingly, the AO made addition U/s.69C of Rs.7,00,000/ made addition U/s.69C of Rs.7,00,000/- on account of on account of unaccounted unaccounted payment(which payment(which inc include lude unaccounted unaccounted cash cash payment of Rs.3 lakh) payment of Rs.3 lakh)
Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) of the I.T.Act and has disallowed an amount of Rs.3,00,000/ of the I.T.Act and has disallowed an amount of Rs.3,00,000/ of the I.T.Act and has disallowed an amount of Rs.3,00,000/-.
(ii) The AO observed that page no.2 and 3 of Annexure A The AO observed that page no.2 and 3 of Annexure A-1 The AO observed that page no.2 and 3 of Annexure A impounded fromArneja Office, c impounded fromArneja Office, contained cash payment of ontained cash payment of Rs.73,50,000/ Rs.73,50,000/- were made by theassessee to Mr. Vinay were made by theassessee to Mr. Vinay Gosawi. As per entries on these pages, total cash payment of Gosawi. As per entries on these pages, total cash payment of Gosawi. As per entries on these pages, total cash payment of Rs.66,00,000/ Rs.66,00,000/- and cheque payment of R$.7,50.000/ and cheque payment of R$.7,50.000/- has been made by the assessee in respect of several/properties. been made by the assessee in respect of several/properties. been made by the assessee in respect of several/properties. The AO observed that cash payments of Rs.10 lakhshave e AO observed that cash payments of Rs.10 lakhshave e AO observed that cash payments of Rs.10 lakhshave been made during the F.Y. 2007 been made during the F.Y. 2007-08 and cash payments of 08 and cash payments of Rs.56 lakh have been made in F.Y. 2008 Rs.56 lakh have been made in F.Y. 2008-09 by the assessee. 09 by the assessee. The AO asked the assessee to furnish the source of payment The AO asked the assessee to furnish the source of payment The AO asked the assessee to furnish the source of payment alongwith supporting documents alongwith supporting documents and other relevant details. and other relevant details. Accordingly, the AO made addition U/s.69C of Rs.63,50,000/ Accordingly, the AO made addition U/s.69C of Rs.63,50,000/ Accordingly, the AO made addition U/s.69C of Rs.63,50,000/-
Late Sunil D Gulati 27 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
(including cheque payment of Rs.7.50 lakh) on account of (including cheque payment of Rs.7.50 lakh) on account of (including cheque payment of Rs.7.50 lakh) on account of unaccounted cash payment. unaccounted cash payment.
Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) of of the the I.T.Act I.T.Act and and has has disallowed disallowed an an amount amount of of Rs.56,00,000/ Rs.56,00,000/-(Cash Expenditure).
(iii) The AO observed that page no. 17 of Annexure A The AO observed that page no. 17 of Annexure A-1 The AO observed that page no. 17 of Annexure A impounded from ArnejaOffice, contained cash of Rs.65 lakh impounded from ArnejaOffice, contained cash of Rs.65 lakh impounded from ArnejaOffice, contained cash of Rs.65 lakh have been received by the assessee in respect of various have been received by the assessee in respect of various have been received by the assessee in respect of various properties/plot. The AO aske properties/plot. The AO asked the assessee to furnish d the assessee to furnish explanation alongwith supporting documents and other explanation alongwith supporting documents and other explanation alongwith supporting documents and other relevant details. The assessee failed to furnish any details relevant details. The assessee failed to furnish any details relevant details. The assessee failed to furnish any details and explanation about the source of these cash payments. and explanation about the source of these cash payments. and explanation about the source of these cash payments. The AO observed that during the F.Y. 2008 The AO observed that during the F.Y. 2008-09, cash of Rs.65 09, cash of Rs.65 lakh were received by the assessee. Accordingly, the AO lakh were received by the assessee. Accordingly, the AO lakh were received by the assessee. Accordingly, the AO made addition of Rs.65 lakh u/s.69C on account of made addition of Rs.65 lakh u/s.69C on account of made addition of Rs.65 lakh u/s.69C on account of unaccounted cash received. unaccounted cash received.
(iv) The AO observed that page no.26 & 27 of Annexure A The AO observed that page no.26 & 27 of Annexure A-1 The AO observed that page no.26 & 27 of Annexure A impounded from Arneja Office, contained Cheque and cash impounded from Arneja Office, contained Cheque and cash impounded from Arneja Office, contained Cheque and cash payments were made to various farmers.Out of the total were made to various farmers.Out of the total were made to various farmers.Out of the total payments payments made made of of Rs.1,20,85,000/- Rs.1,20,85,000/ an an amount amount of of Rs.2,64,000/ Rs.2,64,000/- has been paid in cash by the assessee. The AO has been paid in cash by the assessee. The AO asked the assessee to furnish the source of payment asked the assessee to furnish the source of payment asked the assessee to furnish the source of payment alongwith supporting documents and other relevant alongwith supporting documents and other relevant alongwith supporting documents and other relevant details. The assessee failed to furnish any details and explanation The assessee failed to furnish any details and explanation The assessee failed to furnish any details and explanation about the source of these cash payments. The AO observed about the source of these cash payments. The AO observed about the source of these cash payments. The AO observed that during the F.Y. 2008 that during the F.Y. 2008-09, an amount of Rs. 1,20,85,000/ 09, an amount of Rs. 1,20,85,000/- of unaccounted payments (which include unaccounted cash of unaccounted payments (which include unaccounted cash of unaccounted payments (which include unaccounted cash
Late Sunil D Gulati 28 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
payment of Rs. payment of Rs.2,69,000) were made by the assessee. 2,69,000) were made by the assessee. Accordingly, the AO made addition of Rs. 1,20,85,000/ Accordingly, the AO made addition of Rs. 1,20,85,000/ Accordingly, the AO made addition of Rs. 1,20,85,000/- u/s.69C on account of unaccounted payment. u/s.69C on account of unaccounted payment.
Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) of the I.T.Act and has disallowed an amount of Rs.2,69,000/ of the I.T.Act and has disallowed an amount of Rs.2,69,000/ of the I.T.Act and has disallowed an amount of Rs.2,69,000/- (Cash expenditure). (Cash expenditure).
(v) The AO observed thatpage no.30 to 35 of Annexure A The AO observed thatpage no.30 to 35 of Annexure A-1 The AO observed thatpage no.30 to 35 of Annexure A impounded impounded impounded fromArneja fromArneja fromArneja Office, Office, Office, contained contained contained cash cash cash of of of Rs.2,30,000/ Rs.2,30,000/- is paid to Kamlakar S. Tandel against plot no is paid to Kamlakar S. Tandel against plot no 118, sector 55. The AO asked the assessee to furnish the 118, sector 55. The AO asked the assessee to furnish the 118, sector 55. The AO asked the assessee to furnish the source of paym source of paymentalongwith supporting documents and other alongwith supporting documents and other relevant details. The assessee failed to furnish any details relevant details. The assessee failed to furnish any details relevant details. The assessee failed to furnish any details and explanation about the source of these cash payments. and explanation about the source of these cash payments. and explanation about the source of these cash payments. The AO observed that, cash payments of R$.1.00,000/ The AO observed that, cash payments of R$.1.00,000/ The AO observed that, cash payments of R$.1.00,000/-have been made during the F.Y.2007 been made during the F.Y.2007-08 and cash payments of cash payments of Rs.1.30.000/ Rs.1.30.000/- have been made in F.Y. 2008 have been made in F.Y. 2008-09 by the assessee. Accordingly, the AO made addition of Rs.1,30,000/ assessee. Accordingly, the AO made addition of Rs.1,30,000/ assessee. Accordingly, the AO made addition of Rs.1,30,000/- u/s.69C on account of unaccounted cash payment u/s.69C on account of unaccounted cash payment u/s.69C on account of unaccounted cash payment
Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) of the I.T.Act an of the I.T.Act and has disallowed an amount of Rs. 1,30,000/ d has disallowed an amount of Rs. 1,30,000/- (Cash expenditure). (Cash expenditure).
(vi) The AO observed that page no.43 and 60 of Annexure A The AO observed that page no.43 and 60 of Annexure A The AO observed that page no.43 and 60 of Annexure A-3 impounded from Arneja Office, contained total payment of Rs. impounded from Arneja Office, contained total payment of Rs. impounded from Arneja Office, contained total payment of Rs. 16,72,000/- is made by the assessee which includes cash is made by the assessee which includes cash payment of Rs.2 payment of Rs.2,25,000/-. The AO asked the assessee to . The AO asked the assessee to furnish furnish furnish the the the source source source of of of payment payment payment alongwith alongwith alongwith supporting supporting supporting documents and other relevant details. The assessee failed to documents and other relevant details. The assessee failed to documents and other relevant details. The assessee failed to
Late Sunil D Gulati 29 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
furnish any details and explanation about the source of these furnish any details and explanation about the source of these furnish any details and explanation about the source of these cash payments. The AO observed that during cash payments. The AO observed that during the F.Y. 2008 the F.Y. 2008- 09, an amount of Rs.16,72,000/ 09, an amount of Rs.16,72,000/- of unaccounted payments of unaccounted payments (which include unaccounted cash payment of Rs.2,25,000) (which include unaccounted cash payment of Rs.2,25,000) (which include unaccounted cash payment of Rs.2,25,000) were made by the assessee. Accordingly, the AO made were made by the assessee. Accordingly, the AO made were made by the assessee. Accordingly, the AO made addition addition of of Rs. Rs. 16,72,000/- 16,72,000/ u/s.69C u/s.69C on on account account of of unaccounted payment. unaccounted payment.
Further, the AO has also invoked provisions of section 40A(3) r, the AO has also invoked provisions of section 40A(3) r, the AO has also invoked provisions of section 40A(3) of the IT.Act and has disallowed an amount of Rs.2,25,000/ of the IT.Act and has disallowed an amount of Rs.2,25,000/ of the IT.Act and has disallowed an amount of Rs.2,25,000/- (Cash expenditure). (Cash expenditure).
(vii) The AD observed that page no,1 of Annexure A The AD observed that page no,1 of Annexure A The AD observed that page no,1 of Annexure A-2 impounded from Kaveri Bldg, contained payments to the tune impounded from Kaveri Bldg, contained payments to the tune impounded from Kaveri Bldg, contained payments to the tune of Rs.4,50,000/ 0,000/-.The AO asked the assessee to furnish the .The AO asked the assessee to furnish the source of payment alongwith supporting documents and other source of payment alongwith supporting documents and other source of payment alongwith supporting documents and other relevant details. The assessee failed to furnish any details relevant details. The assessee failed to furnish any details relevant details. The assessee failed to furnish any details and explanation about the source of these payments. The A and explanation about the source of these payments. The A and explanation about the source of these payments. The A observed that during the F.Y. observed that during the F.Y. 2008-09, payments of 09, payments of Rs.4,50,000/ Rs.4,50,000/- were made by the assessee. Accordingly, the were made by the assessee. Accordingly, the AO made addition of Rs.4,50,000/ AO made addition of Rs.4,50,000/- u/s.69C on account of u/s.69C on account of unaccounted payment. unaccounted payment.
Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) of the IT.Act and has disallowed an a of the IT.Act and has disallowed an amount of Rs.4,50,000/ mount of Rs.4,50,000/- (Cash expenditure). (Cash expenditure).
viii. The AO observed that page no.2 of Annexure A viii. The AO observed that page no.2 of Annexure A viii. The AO observed that page no.2 of Annexure A-2 impounded from Kaveri Bldg, it is seen thatthe assessee has impounded from Kaveri Bldg, it is seen thatthe assessee has impounded from Kaveri Bldg, it is seen thatthe assessee has entered into deals of 11 files for a total amount of entered into deals of 11 files for a total amount of entered into deals of 11 files for a total amount of Rs.7,49,00,000/ Rs.7,49,00,000/- which was payable by the assess which was payable by the assessee. Out of
Late Sunil D Gulati 30 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
this payable amount of Rs.7,49,00,000/ this payable amount of Rs.7,49,00,000/- total amount of Rs. total amount of Rs. 1,61,00,000/ 1,61,00,000/- is mentioned as paid. As per thesheet, total is mentioned as paid. As per thesheet, total payment of Rs.1,61,00.000/ payment of Rs.1,61,00.000/- has been made, out of which has been made, out of which Rs.1,18,00,000/ Rs.1,18,00,000/- has been paid by the assessee. The AO has been paid by the assessee. The AO asked the asses asked the assessee to furnish the source of payment see to furnish the source of payment alongwith supporting documents and other relevant details. alongwith supporting documents and other relevant details. alongwith supporting documents and other relevant details. The assessee failed to furnish any details and explanation The assessee failed to furnish any details and explanation The assessee failed to furnish any details and explanation about the source of these cash payments. The AO observed about the source of these cash payments. The AO observed about the source of these cash payments. The AO observed that during the F.Y. 2008 that during the F.Y. 2008-09, payments of Rs.1,18,00,000/ .1,18,00,000/- were made by the assessee. Accordingly, the AO made were made by the assessee. Accordingly, the AO made were made by the assessee. Accordingly, the AO made addition addition of of Rs.1,18,00,000/- Rs.1,18,00,000/ u/s.69C u/s.69C on on account account of of unaccounted payment. unaccounted payment.
Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) of the I.T.Act and has disallowed an amount of Rs. of the I.T.Act and has disallowed an amount of Rs. of the I.T.Act and has disallowed an amount of Rs. 1,18,00,000/ ,00,000/-.
(ix) The AO observed that page no.11 of Annexure A The AO observed that page no.11 of Annexure A The AO observed that page no.11 of Annexure A-2 seized from Kaveri Bldg, contained cash payment of Rs.87,00,000/ from Kaveri Bldg, contained cash payment of Rs.87,00,000/ from Kaveri Bldg, contained cash payment of Rs.87,00,000/- were made by the assessee to Mr. Vinay Gosawi out of which were made by the assessee to Mr. Vinay Gosawi out of which were made by the assessee to Mr. Vinay Gosawi out of which Rs.31.00,000/ Rs.31.00,000/- were paid in F.Y. 2007-08. The AO asked the 08. The AO asked the assessee to furnish the source of payment alongwith to furnish the source of payment alongwith to furnish the source of payment alongwith supporting documents and other relevant details. The supporting documents and other relevant details. The supporting documents and other relevant details. The assessee failed to furnish any details and explanation about assessee failed to furnish any details and explanation about assessee failed to furnish any details and explanation about the source of these cash payments. Accordingly, the AO made the source of these cash payments. Accordingly, the AO made the source of these cash payments. Accordingly, the AO made addition addition U/s.69C U/s.69C of of Rs.56,00,000/- Rs.56,00,000/ on on account of unaccounted cash. unaccounted cash.
Late Sunil D Gulati 31 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) of of of the the the I.T. I.T. I.T. Act Act Act and and and has has has disallowed disallowed disallowed an an an amount amount amount of of of Rs.56,00,000/ Rs.56,00,000/-(Cash expenditure).
(x) The AO observed that page no.23 of Annexure A The AO observed that page no.23 of Annexure A The AO observed that page no.23 of Annexure A-2 seized from Kaveri Bldg from Kaveri Bldg contained total amount paid fo. to Rakesh. contained total amount paid fo. to Rakesh. Surve Rs.1,17,50,000/ Surve Rs.1,17,50,000/-), Sumeet Bacchewar (Rs.5,00,000/ ), Sumeet Bacchewar (Rs.5,00,000/-) and Labchand (Rs.12,50,000/ and Labchand (Rs.12,50,000/-). The payments are in respect ). The payments are in respect of various properties/plots and are in the form of on of various properties/plots and are in the form of on of various properties/plots and are in the form of on-money payments'. The AO asked the assessee payments'. The AO asked the assessee to furnish the source to furnish the source of payment alongwith supporting documents and other of payment alongwith supporting documents and other of payment alongwith supporting documents and other relevant details. The assessee failed to furnish any details relevant details. The assessee failed to furnish any details relevant details. The assessee failed to furnish any details and explanation about the source of these cash payments. and explanation about the source of these cash payments. and explanation about the source of these cash payments. Accordingly, the AO made addition of Rs.1,35,00,000/ Accordingly, the AO made addition of Rs.1,35,00,000/ Accordingly, the AO made addition of Rs.1,35,00,000/- u/s.69C on account of unaccounted cash payment. n account of unaccounted cash payment. n account of unaccounted cash payment.
Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) of the I.T.Act and has disallowed an amount of Rs. of the I.T.Act and has disallowed an amount of Rs. of the I.T.Act and has disallowed an amount of Rs. 1,35,00,000/ 1,35,00,000/-
XiThe AO observed that page no.24 of Annexure A XiThe AO observed that page no.24 of Annexure A XiThe AO observed that page no.24 of Annexure A-2 impounded from KaveriBldg containe two t impounded from KaveriBldg containe two tables. One table ables. One table shows details of 13 plots and the other table shows details of shows details of 13 plots and the other table shows details of shows details of 13 plots and the other table shows details of 11 plots (with file nos.). As regards 13 plots, the assessee has 11 plots (with file nos.). As regards 13 plots, the assessee has 11 plots (with file nos.). As regards 13 plots, the assessee has entered into deals of 13 files for a total amount of entered into deals of 13 files for a total amount of entered into deals of 13 files for a total amount of Rs.7,49,00,000/ Rs.7,49,00,000/- which which waspayable waspayable by by the the assessee. assessee. Similarly, in respect of 11 plots, the assessee has entered into ly, in respect of 11 plots, the assessee has entered into ly, in respect of 11 plots, the assessee has entered into deals deals deals of of of 11 11 11 files files files for for for a a a total total total payable payable payable amount amount amount of of of Rs.3,12,00,000/ Rs.3,12,00,000/-. . Thus Thus the the total total amount amount payable payable is is Rs.10,61,00,000/ Rs.10,61,00,000/-. As per the sheet, total payment of . As per the sheet, total payment of
Late Sunil D Gulati 32 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
Rs.10,61,00,000/ Rs.10,61,00,000/- has has been been made, made, out out of of which which Rs.1,45,00,000/ Rs.1,45,00,000/- has been paid by the assessee. The AO has been paid by the assessee. The AO asked the assessee to furnish the source of payment asked the assessee to furnish the source of payment asked the assessee to furnish the source of payment alongwith supporting documents and other relevant details. alongwith supporting documents and other relevant details. alongwith supporting documents and other relevant details. The assessee failed to furnish any details and explanation The assessee failed to furnish any details and explanation The assessee failed to furnish any details and explanation about the source of these cash about the source of these cash payments. The AO observed payments. The AO observed that during the F.Y. 2008 that during the F.Y. 2008-09, payments of Rs. 1,45,00,000/ 09, payments of Rs. 1,45,00,000/- were made by the assessee. Accordingly, the AO made were made by the assessee. Accordingly, the AO made were made by the assessee. Accordingly, the AO made addition of Rs. 1,45,00,000/ addition of Rs. 1,45,00,000/- u/s.69C on account of u/s.69C on account of unaccounted payment. unaccounted payment.
Further, the AO has also invoked provisions Further, the AO has also invoked provisions of section 40A(3) of section 40A(3) of the IT.Act and has disallowed an amount of Rs. of the IT.Act and has disallowed an amount of Rs. of the IT.Act and has disallowed an amount of Rs. 1,45,00,000/ 1,45,00,000/-,
xii. The AO observed that page no.24 per page no.25 of The AO observed that page no.24 per page no.25 of The AO observed that page no.24 per page no.25 of Annexure A- -2 seized from Kaveri Bldg, contained that total 2 seized from Kaveri Bldg, contained that total amount paid to Shri Rakesh Surve are Rs.1,62,60,000/ amount paid to Shri Rakesh Surve are Rs.1,62,60,000/ amount paid to Shri Rakesh Surve are Rs.1,62,60,000/- while payment received are Rs.10,50,000/ payment received are Rs.10,50,000/-, The payments are in , The payments are in respect of various properties/plots and are in the form of ón respect of various properties/plots and are in the form of ón respect of various properties/plots and are in the form of ón- money payments'. Out of these amount, payment of money payments'. Out of these amount, payment of money payments'. Out of these amount, payment of Rs.24,20,000/ Rs.24,20,000/- pertains to F.Y. 2008-09. The AO asked the 09. The AO asked the assessee to furnish the sourc assessee to furnish the source of payment alongwith e of payment alongwith supporting documents and other relevant details. The supporting documents and other relevant details. The supporting documents and other relevant details. The assessee failed to furnish any details and explanation about assessee failed to furnish any details and explanation about assessee failed to furnish any details and explanation about the source of these cash payments. Accordingly, the A made the source of these cash payments. Accordingly, the A made the source of these cash payments. Accordingly, the A made addition addition of of Rs.24,20,000/- Rs.24,20,000/ u/s.69C u/s.69C on on account account of of unaccounted unaccounted cash payment
Late Sunil D Gulati 33 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) Further, the AO has also invoked provisions of section 40A(3) of of of the the the I.T.Act I.T.Act I.T.Act and and and has has has disallowed disallowed disallowed an an an amount amount amount of of of Rs.24,20,000/ Rs.24,20,000/-.”
The Ld. CIT(A) after considering the submission of the Ld. CIT(A) after considering the submission of the Ld. CIT(A) after considering the submission of the assessee filed before him deleted the addition to the extent of assessee filed before him deleted the addition to the ext assessee filed before him deleted the addition to the ext ₹5,93,85,000/-and and and sustained sustained sustained the the the balance balance balance addition addition addition of of of ₹1,63,22,000/-observing as under: observing as under:
“(a) In point no. (i) above, the amount of Rs.2 lakhs is already In point no. (i) above, the amount of Rs.2 lakhs is already In point no. (i) above, the amount of Rs.2 lakhs is already been made at Sr. no. (viii) for A.Y. 2008 been made at Sr. no. (viii) for A.Y. 2008-09 and Rs. 1lakh 09 and Rs. 1lakh already made as per serial no. (v) for already made as per serial no. (v) for A.Y. 2008-09. Since the 09. Since the appellant has substantiated his claim by furnishing necessary appellant has substantiated his claim by furnishing necessary appellant has substantiated his claim by furnishing necessary evidence during the appellate proceedings, the addition of 3 evidence during the appellate proceedings, the addition of 3 evidence during the appellate proceedings, the addition of 3 lakhs is deleted.Further, the assessee has stated that lakhs is deleted.Further, the assessee has stated that lakhs is deleted.Further, the assessee has stated that Cheques of Rs4,00,000/ Cheques of Rs4,00,000/- are accounted for in the books are accounted for in the books of accounts.
Since the appellant has substantiated his claim by furnishing Since the appellant has substantiated his claim by furnishing Since the appellant has substantiated his claim by furnishing necessary evidence during the appellate proceedings, the necessary evidence during the appellate proceedings, the necessary evidence during the appellate proceedings, the addition of Rs.7 lakhs is deleted. addition of Rs.7 lakhs is deleted.
(b) In point no. (i In point no. (ii) above, out of the total addition of Rs. ) above, out of the total addition of Rs. Rs.63,50,000/ Rs.63,50,000/- the appellant was able to substantiate claim appellant was able to substantiate claim of Rs.7.50 lakhs. However, cash amount of Rs.56 lakhs is not of Rs.7.50 lakhs. However, cash amount of Rs.56 lakhs is not of Rs.7.50 lakhs. However, cash amount of Rs.56 lakhs is not explained by the appellant. Hence, addition to the tune or explained by the appellant. Hence, addition to the tune or explained by the appellant. Hence, addition to the tune or Rs.7.50 lakhs is deleted and Rs.56 lakhs is upheld. Rs.7.50 lakhs is deleted and Rs.56 lakhs is upheld. Rs.7.50 lakhs is deleted and Rs.56 lakhs is upheld.
c)In point no. (ill) above, the AO had made c)In point no. (ill) above, the AO had made addition of Rs. addition of Rs. Rs.65,00,000/ Rs.65,00,000/-on account of cash received. The appellant on account of cash received. The appellant
Late Sunil D Gulati 34 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
was unable to substantiate this claim of Rs.65 lakhs. Hence, was unable to substantiate this claim of Rs.65 lakhs. Hence, was unable to substantiate this claim of Rs.65 lakhs. Hence, the addition of Rs.65 lakhs is upheld. addition of Rs.65 lakhs is upheld.
d)In point no. (iv) above, the addition of Rs.1,20,85,000/ d)In point no. (iv) above, the addition of Rs.1,20,85,000/ d)In point no. (iv) above, the addition of Rs.1,20,85,000/- has already been consi already been considered in Ground no.4. Hence, the same dered in Ground no.4. Hence, the same being repetitive, addition of Rs.1,20,85,000/ being repetitive, addition of Rs.1,20,85,000/- is deleted. is deleted.
e)In point no. (v) above, the AO had made addition of Rs. Rs. e)In point no. (v) above, the AO had made addition of Rs. Rs. e)In point no. (v) above, the AO had made addition of Rs. Rs. 1,30,000/- on account of unaccount cash payment. The on account of unaccount cash payment. The appellant was unable to substantiate this cl appellant was unable to substantiate this cl appellant was unable to substantiate this claim of Rs. 1,30,000/-, Hence, the addition of Rs.1,30,000/ , Hence, the addition of Rs.1,30,000/- is upheld is upheld
f)In point no. (vi) above, out of the total addition of RS. R$. 16 f)In point no. (vi) above, out of the total addition of RS. R$. 16 f)In point no. (vi) above, out of the total addition of RS. R$. 16 72.0001-(unaccounted cash payment is of Rs.2,25,000/ (unaccounted cash payment is of Rs.2,25,000/ (unaccounted cash payment is of Rs.2,25,000/-). The appellant was unable to substantiate claim of Rs.16.72 lakh appellant was unable to substantiate claim of Rs.16.72 lakh appellant was unable to substantiate claim of Rs.16.72 lakhs. Hence, the addition of Rs.16.72 lakhs is upheld. Hence, the addition of Rs.16.72 lakhs is upheld.
g)In point no. (vil above, the addition of Rs.4,50,000/ g)In point no. (vil above, the addition of Rs.4,50,000/ g)In point no. (vil above, the addition of Rs.4,50,000/- has already been considerd at sr. no. xi. Hence, the same being already been considerd at sr. no. xi. Hence, the same being already been considerd at sr. no. xi. Hence, the same being repetitive, addition of Rs. 4,50,000/ repetitive, addition of Rs. 4,50,000/-is deleted
h)In point no. (vil) above, the ad h)In point no. (vil) above, the addition of Rs.1:18,00,000/ dition of Rs.1:18,00,000/- has already been considerd at sr. no. xi. Hence, the same being already been considerd at sr. no. xi. Hence, the same being already been considerd at sr. no. xi. Hence, the same being repetitive, addition of Rs.1,18,00,000/ repetitive, addition of Rs.1,18,00,000/- is deleted. is deleted.
(i) In point no. (ix) above, the addition of Rs.56,00,000/ In point no. (ix) above, the addition of Rs.56,00,000/ In point no. (ix) above, the addition of Rs.56,00,000/- has already been considerd at sr. no. ii. Moreover, already been considerd at sr. no. ii. Moreover, from verification from verification of the paper book, it is seen that the page is a duplicate page. of the paper book, it is seen that the page is a duplicate page. of the paper book, it is seen that the page is a duplicate page. Hence the same being repetitive, addition of Rs.56,00,000/ Hence the same being repetitive, addition of Rs.56,00,000/ Hence the same being repetitive, addition of Rs.56,00,000/- is deleted.
Late Sunil D Gulati 35 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
(j) 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/- has already been considerd at sr. no. × already been considerd at sr. no. × for A.Y. 2008 for A.Y. 2008-09. Hence, the same being repetitive, addition of Rs.1,35,00,000/ the same being repetitive, addition of Rs.1,35,00,000/ the same being repetitive, addition of Rs.1,35,00,000/- is deleted.
k)In point no. (xi) above, the addition of Rs.1,45,00,000/ k)In point no. (xi) above, the addition of Rs.1,45,00,000/ k)In point no. (xi) above, the addition of Rs.1,45,00,000/- has already been considered at serial no. (ji) & (vii) for A.Y. 2009 already been considered at serial no. (ji) & (vii) for A.Y. 2009 already been considered at serial no. (ji) & (vii) for A.Y. 2009- 10 and at serial no. (il) para 9 f 10 and at serial no. (il) para 9 for A.Y.2008-09. Hence, the 09. Hence, the same being repetitive, addition of Rs.1,45,00,000/ same being repetitive, addition of Rs.1,45,00,000/ same being repetitive, addition of Rs.1,45,00,000/- is deleted.
(l) In point no. (xil) above, the AO had made addition of In point no. (xil) above, the AO had made addition of In point no. (xil) above, the AO had made addition of Rs.24,20,000/ Rs.24,20,000/-(unaccounted (unaccounted cash cash payment payment is is of of Rs.2,25,000/ Rs.2,25,000/-). The appellant was unable to substantiate ). The appellant was unable to substantiate claim of Rs.24.20 lakhs. Hence, the addition of Rs.24.20 lakhs m of Rs.24.20 lakhs. Hence, the addition of Rs.24.20 lakhs m of Rs.24.20 lakhs. Hence, the addition of Rs.24.20 lakhs is upheld.
Addition in respect of cash payment to various parties and Addition in respect of cash payment to various parties and Addition in respect of cash payment to various parties and other cash transactions has been deleted. Therefore, the other cash transactions has been deleted. Therefore, the other cash transactions has been deleted. Therefore, the alternative disallowance u/s.40A(3) is also deleted. alternative disallowance u/s.40A(3) is also deleted. alternative disallowance u/s.40A(3) is also deleted.
In view of the de In view of the decision of the Hon'ble ITAT, out of the total cision of the Hon'ble ITAT, out of the total addition ofRs.7,57,07,000/ addition ofRs.7,57,07,000/-, the addition of Rs.5,93,85,000/ , the addition of Rs.5,93,85,000/- is deleted
Accordingly, the ground no.7 of appeal is partly allowed. Accordingly, the ground no.7 of appeal is partly allowed. Accordingly, the ground no.7 of appeal is partly allowed.
13.Ground No.8 is related to addition of Rs.1,24,18,570/ 13.Ground No.8 is related to addition of Rs.1,24,18,570/ 13.Ground No.8 is related to addition of Rs.1,24,18,570/- made on account of"Con made on account of"Consideration received for plot 22, sector sideration received for plot 22, sector 6, Airoli".”
Before us the us the Ld. counsel of the assessee has made of the assessee has made submission in his written synopsis, which submission in his written synopsis, which is reproduced as under: reproduced as under:
Late Sunil D Gulati 36 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
“(i)The learned Assessing officer has made additions for Rs (i)The learned Assessing officer has made additions for Rs (i)The learned Assessing officer has made additions for Rs 63,50,000/- on the basis of Page 2 & 3 of Annexure A basis of Page 2 & 3 of Annexure A-1 impounded/seized impounded/seized impounded/seized from from from Arenja Arenja Arenja Office, Office, Office, amount amount amount of of of Rs. Rs. Rs. 56,00,000/-paid in cash and Rs. 7,50,000 in cheque to Vinay paid in cash and Rs. 7,50,000 in cheque to Vinay paid in cash and Rs. 7,50,000 in cheque to Vinay Gosavi.
(ii)The learned Assessing officer has made additions for (ii)The learned Assessing officer has made additions for (ii)The learned Assessing officer has made additions for Rs.65,00,000/ Rs.65,00,000/- on on basis basis ofPage ofPage 17 17 ofAnnexureA- ofAnnexure 1impounded/seized from Arenja Office, being the amounts 1impounded/seized from Arenja Office, being the amounts 1impounded/seized from Arenja Office, being the amounts paid to various farmers directly by Bhanwarlal Chhajer. This paid to various farmers directly by Bhanwarlal Chhajer. This paid to various farmers directly by Bhanwarlal Chhajer. This record has been kept by appellant's office staff as a record of record has been kept by appellant's office staff as a record of record has been kept by appellant's office staff as a record of transactions arranged by the appellant for the sake of taking transactions arranged by the appellant for the sake of taking transactions arranged by the appellant for the sake of taking up the matter with the landowners er with the landowners-cum-farmers.
(iii)The learned Assessing officer has made additions for Rs. i)The learned Assessing officer has made additions for Rs. i)The learned Assessing officer has made additions for Rs. 1,30,000/- (out of total Rs. 2,30,000/ (out of total Rs. 2,30,000/- the A.O. has added the A.O. has added ₹1,00,000 in A.Y. 2008 1,00,000 in A.Y. 2008-09) on basis of Page 30 & 45 of 09) on basis of Page 30 & 45 of Annexure A- -1 impounded from Arenja Office, amount of Rs. mount of Rs. 1,30,000/- paid to Kam.lakar S. Tandel. (this property to paid to Kam.lakar S. Tandel. (this property to paid to Kam.lakar S. Tandel. (this property to belonging to Kamlakar Tandel was sold to by Kaeser Khan) belonging to Kamlakar Tandel was sold to by Kaeser Khan) belonging to Kamlakar Tandel was sold to by Kaeser Khan) The cheque amount has been recorded through my account The cheque amount has been recorded through my account The cheque amount has been recorded through my account which was shown in my bank statement on 04.04.2008. All which was shown in my bank statement on 04.04.2008. All which was shown in my bank statement on 04.04.2008. All the cash amounts the cash amounts were paid by the buyer on behalf of whom I were paid by the buyer on behalf of whom I negotiated the deal. This record is kept by my office staff as a negotiated the deal. This record is kept by my office staff as a negotiated the deal. This record is kept by my office staff as a record of transactions arranged by me for the sake of taking record of transactions arranged by me for the sake of taking record of transactions arranged by me for the sake of taking up the matter with the landowners up the matter with the landowners-cum-farmers.
(iv)The learned Assessing officer has ma (iv)The learned Assessing officer has made additions for de additions for Rs.16,72,000/ Rs.16,72,000/- on the basis of Page 43 & 60 of Annexure A on the basis of Page 43 & 60 of Annexure A-3 impounded/seized from Arena Office, amount Rs. 12,22,000/ impounded/seized from Arena Office, amount Rs. 12,22,000/ impounded/seized from Arena Office, amount Rs. 12,22,000/-
Late Sunil D Gulati 37 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
payable of Rs. 2,25,000 in cash and Rs. 14.47.000/ payable of Rs. 2,25,000 in cash and Rs. 14.47.000/ payable of Rs. 2,25,000 in cash and Rs. 14.47.000/- in cheque to various farmers. This record is kept by appellant's cheque to various farmers. This record is kept by appellant's cheque to various farmers. This record is kept by appellant's office staff as a record of transactions arranged by me for the ce staff as a record of transactions arranged by me for the ce staff as a record of transactions arranged by me for the sake of taking up the matter with the landowners sake of taking up the matter with the landowners sake of taking up the matter with the landowners-cum- farmers.
(v)The learned Assessing officer has made additions of Rs (v)The learned Assessing officer has made additions of Rs (v)The learned Assessing officer has made additions of Rs 24,20,000/- relating to this A.Y. on the basis Page 25 of relating to this A.Y. on the basis Page 25 of Annexure A- -2 impounded from Kaveri Bldg. It is submitted nded from Kaveri Bldg. It is submitted here that out of the above, a sum of Rs. 15,00,000/ here that out of the above, a sum of Rs. 15,00,000/ here that out of the above, a sum of Rs. 15,00,000/- has been paid to Sai Ganesh Builders through cheque ng. 532361 paid to Sai Ganesh Builders through cheque ng. 532361 paid to Sai Ganesh Builders through cheque ng. 532361 which was duly accounted in the books of accounts on which was duly accounted in the books of accounts on which was duly accounted in the books of accounts on 10.10.2008. 10.10.2008. 10.10.2008. Hence Hence Hence the the the addition addition addition to to to the the the extent extent extent of of of Rs.15,00.000/ Rs.15,00.000/- is not justified.
However the balance amount of Rs. 9,20,000/ However the balance amount of Rs. 9,20,000/ However the balance amount of Rs. 9,20,000/- to Rakesh Surve must have been paid by the purchasers through the Surve must have been paid by the purchasers through the Surve must have been paid by the purchasers through the Appellant.Therefore even in respect of this Rs. 9,20,000/ Appellant.Therefore even in respect of this Rs. 9,20,000/ Appellant.Therefore even in respect of this Rs. 9,20,000/- no addition need in the hands of the Appellant. Hence addition need in the hands of the Appellant. Hence addition need in the hands of the Appellant. Hence we pray that the entire addition of Rs. 1,63,22,000/ that the entire addition of Rs. 1,63,22,000/- be deleted. be deleted.
However in view of the facts that the appellant is a deal However in view of the facts that the appellant is a deal However in view of the facts that the appellant is a deal maker and must be earning brokerage and/or commission maker and must be earning brokerage and/or commission maker and must be earning brokerage and/or commission from the land deals intermediated through him he has already from the land deals intermediated through him he has already from the land deals intermediated through him he has already offered a disclosure of ₹70 lacs to cover up the deficiency. offered a disclo 70 lacs to cover up the deficiency.
The detailed break up of the disclosure amount is mentioned The detailed break up of the disclosure amount is mentioned The detailed break up of the disclosure amount is mentioned herein above. above.
We would like to bring to your kind attention to the We would like to bring to your kind attention to the We would like to bring to your kind attention to the Honourable Jurisdictional Mumbai ITAT'S Order no; 3496 to Honourable Jurisdictional Mumbai ITAT'S Order no; 3496 to Honourable Jurisdictional Mumbai ITAT'S Order no; 3496 to
Late Sunil D Gulati 38 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
3498 and 4794/4795 dated 1 3498 and 4794/4795 dated 19.08.2016 in the appellant's 9.08.2016 in the appellant's own case for the earlier years of Block period AY. 2003 own case for the earlier years of Block period AY. 2003 own case for the earlier years of Block period AY. 2003-04 TO 2007-08 at paragraph no: 3, 19, 27 and 39 of the aforesaid 08 at paragraph no: 3, 19, 27 and 39 of the aforesaid 08 at paragraph no: 3, 19, 27 and 39 of the aforesaid order on account of cash/ unaccounted transaction cannot be order on account of cash/ unaccounted transaction cannot be order on account of cash/ unaccounted transaction cannot be made and hence be deleted. made and hence be deleted.”
The Ld. DR on the other hand relied on the order of the the other hand relied on the order of the the other hand relied on the order of the lower authorities.
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. 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 Tribunal (supra) in assessment year 2003 ribunal (supra) in assessment year 2003-04 to 2008 04 to 2008-09 has held the assessee as dealmaker only held the assessee as dealmaker only and the all the cash the all the cash transactions have been held to be carried out by the assessee on transactions have been held to be carried out by the assessee on transactions have been held to be carried out by the assessee on behalf of the prospective buyers/sellers of the land. Before us the behalf of the prospective buyers/sellers of the land. Before us the behalf of the prospective buyers/sellers of the land. Before us the Ld. counsel of the assessee has also submitted that of the assessee has also submitted that of the assessee has also submitted that the assessee has kept record of the transaction of the dealings between the has kept record of the transaction of the dealings between the has kept record of the transaction of the dealings between the developers of the lands and the farmers for the sake of taking up developers of the lands and the farmers for the sake of taking up developers of the lands and the farmers for the sake of taking up the matter with the landowners cum farmers only. We find that no the matter with the landowners cum farmers only. We find that no the matter with the landowners cum farmers only. We find that no enquiry has been made by the Assessing Officer from either the enquiry has been made by the Assessing Officer from enquiry has been made by the Assessing Officer from farmers are from rural land developers regarding the cash farmers are from rural land developers regarding the cash farmers are from rural land developers regarding the cash component of the transactions nor any adverse finding of component of the transactions nor any adverse finding of component of the transactions nor any adverse finding of investigation wing has been brought on record by the Assessing investigation wing has been brought on record by the Assessing investigation wing has been brought on record by the Assessing Officer. The relevant finding of The relevant finding of Tribunal (supra) (supra), wherein the assessee has been held to be only dealmaker is reproduced as ssee has been held to be only dealmaker is reproduced as ssee has been held to be only dealmaker is reproduced as under:
Late Sunil D Gulati 39 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
“3.2 Same has been opposed before us inter alia submitting 3.2 Same has been opposed before us inter alia submitting 3.2 Same has been opposed before us inter alia submitting that CIT(A) was not justified in confirming the estimation of that CIT(A) was not justified in confirming the estimation of that CIT(A) was not justified in confirming the estimation of turnover and profit thereon at Rs. 15,22,780/ turnover and profit thereon at Rs. 15,22,780/-. Ld. Authorized . Ld. Authorized Representative submitted that addition in question is not tative submitted that addition in question is not tative submitted that addition in question is not justified by way of making estimation of turnover and profit justified by way of making estimation of turnover and profit justified by way of making estimation of turnover and profit thereon. Assessing Officer has not given actual working as to thereon. Assessing Officer has not given actual working as to thereon. Assessing Officer has not given actual working as to how the estimated turnover of Rs.38,06,951/ how the estimated turnover of Rs.38,06,951/- was calculated. was calculated.
The stand of deceased The stand of deceased assessee has been that he used to assessee has been that he used to deal in Navi deal in Navi-Mumbai areas.He used to identify those Mumbai areas.He used to identify those suitablelocations of CIDCO plots belonging to different suitablelocations of CIDCO plots belonging to different suitablelocations of CIDCO plots belonging to different farmers, get them properly allotted to them and enter into farmers, get them properly allotted to them and enter into farmers, get them properly allotted to them and enter into MoUs with them for sale of the said plots of land to th MoUs with them for sale of the said plots of land to th MoUs with them for sale of the said plots of land to the Real Estate developers who were in need of these plots. It was Estate developers who were in need of these plots. It was Estate developers who were in need of these plots. It was clarified that though he was not buying and selling the plots clarified that though he was not buying and selling the plots clarified that though he was not buying and selling the plots on his own, yet he, as a broker, negotiated the deals between on his own, yet he, as a broker, negotiated the deals between on his own, yet he, as a broker, negotiated the deals between the seller-cum cum-farmers and the buyers-cum cum-developers- builders. Sinc builders. Since, deceased assessee earned reasonable e, deceased assessee earned reasonable amount of commission in the Real Estate deals made through amount of commission in the Real Estate deals made through amount of commission in the Real Estate deals made through him. Deceased assessee was doing said business for him. Deceased assessee was doing said business for him. Deceased assessee was doing said business for developers/investor as stated above.Assessing Officer did not developers/investor as stated above.Assessing Officer did not developers/investor as stated above.Assessing Officer did not agree with the concept of commission agency b agree with the concept of commission agency b agree with the concept of commission agency by assessee. Since, Assessing Officer did not accept the books of account, Since, Assessing Officer did not accept the books of account, Since, Assessing Officer did not accept the books of account, so, he estimated the turnover and profit thereon.Ld. so, he estimated the turnover and profit thereon.Ld. so, he estimated the turnover and profit thereon.Ld. Authorized Representative submitted that theseadditions are Authorized Representative submitted that theseadditions are Authorized Representative submitted that theseadditions are not based on the seized materials at the time of search as not based on the seized materials at the time of search as not based on the seized materials at the time of search as discussed above, but only on the basis of cash flow statement above, but only on the basis of cash flow statement above, but only on the basis of cash flow statement prepared by assessee irrespective of correlation to search prepared by assessee irrespective of correlation to search prepared by assessee irrespective of correlation to search material. So, addition in question has no nexus with search material. So, addition in question has no nexus with search material. So, addition in question has no nexus with search
Late Sunil D Gulati 40 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
material, so, addition is not justified in view of decision of All material, so, addition is not justified in view of decision of All material, so, addition is not justified in view of decision of All Cargo Global Logis Cargo Global Logistic Ltd. So, in the proceedings after search tic Ltd. So, in the proceedings after search in the assessment us. 153A of the Act addition should have in the assessment us. 153A of the Act addition should have in the assessment us. 153A of the Act addition should have nexus with seized material found at the time of search. nexus with seized material found at the time of search. nexus with seized material found at the time of search. Without prejudice to above, estimation of turnover and profit Without prejudice to above, estimation of turnover and profit Without prejudice to above, estimation of turnover and profit thereon in question is also not ba thereon in question is also not based on material on sed on material on record.Agreeing to alternative contention of assessee, we find record.Agreeing to alternative contention of assessee, we find record.Agreeing to alternative contention of assessee, we find that assessee had been doing agency work on behalf of other that assessee had been doing agency work on behalf of other that assessee had been doing agency work on behalf of other parties. There is nothing on record to suggest that assessee parties. There is nothing on record to suggest that assessee parties. There is nothing on record to suggest that assessee was doing the said transaction at his own. Assessing was doing the said transaction at his own. Assessing was doing the said transaction at his own. Assessing Officer has not brought anything on record to suggest that above land has not brought anything on record to suggest that above land has not brought anything on record to suggest that above land transaction were done by assessee in his name. It could have transaction were done by assessee in his name. It could have transaction were done by assessee in his name. It could have been corroborated by Assessing Officer with real instances of been corroborated by Assessing Officer with real instances of been corroborated by Assessing Officer with real instances of transaction which has not been done by him. In such transaction which has not been done by him. In such transaction which has not been done by him. In such situation, assessee cannot be taxed on the basis of on money assessee cannot be taxed on the basis of on money assessee cannot be taxed on the basis of on money transaction of its client. So, addition in hand of assessee is not transaction of its client. So, addition in hand of assessee is not transaction of its client. So, addition in hand of assessee is not justified. Same is directed to be deleted. justified. Same is directed to be deleted.”
40.1 Respectfully following the finding of the following the finding of the Tribunal(supra), the ribunal(supra), the addition sustained by the L sustained by the Ld. CIT(A) in respect of cash transactions d. CIT(A) in respect of cash transactions is hereby deleted. The is hereby deleted. The ground No. three of the appeal of the No. three of the appeal of the assessee is accordingly allowed. accordingly allowed.
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/- sustained by the Ld. CIT(A), against the additio sustained by the Ld. CIT(A), against the addition of sustained by the Ld. CIT(A), against the additio ₹1,24,18,570/-which was made by the Assessing Officer in relation which was made by the Assessing Officer in relation which was made by the Assessing Officer in relation to plot No. 22, Sector Sector Six, Airoli relying on page No. 49of Annexure , Airoli relying on page No. 49of Annexure - 2 from Kaveri building. 2 from Kaveri building.
Late Sunil D Gulati 41 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
41.1 Regarding the addition, the Ld. CIT(A) has observed as under: Regarding the addition, the Ld. CIT(A) has observed as under: Regarding the addition, the Ld. CIT(A) has observed as under:
“13.3 The facts of the 13.3 The facts of the case and findings of the AO recorded in case and findings of the AO recorded in the Assessment Order and the written submissions of the the Assessment Order and the written submissions of the the Assessment Order and the written submissions of the appellant have been considered. appellant 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 aga assessee against part consideration of plot no.22 sector 6, inst part consideration of plot no.22 sector 6, Airoli. Total value of 4 flats in 'Muktai' on plot 6A, Sec.6, Airoli. Total value of 4 flats in 'Muktai' on plot 6A, Sec.6, Airoli. Total value of 4 flats in 'Muktai' on plot 6A, Sec.6, Koparkhairane is worked out at Rs.31,27.580/ Koparkhairane is worked out at Rs.31,27.580/-; that of 4 flats ; that of 4 flats in Raj Uday Society on plot 109, sec. 1, Sampada worked out in Raj Uday Society on plot 109, sec. 1, Sampada worked out in Raj Uday Society on plot 109, sec. 1, Sampada worked out at Rs.80,56,500/ at Rs.80,56,500/- and that of 1 flat in Sairaj Aptt on plot 83 & hat of 1 flat in Sairaj Aptt on plot 83 & 84, Sec. 1, Sanpada worked out at Rs. 12,34,490/. Thus, the 84, Sec. 1, Sanpada worked out at Rs. 12,34,490/. Thus, the 84, Sec. 1, Sanpada worked out at Rs. 12,34,490/. Thus, the total value of all these properties against part consideration of total value of all these properties against part consideration of total value of all these properties against part consideration of plot no.22, sector 6, Airoli was Rs.1,24,18,570/ plot no.22, sector 6, Airoli was Rs.1,24,18,570/-, The A made , The A made addition addition of of Rs.1,24,18,570/- Rs.1,24,18,570 on on account account of of unaccounted/undisclosed income of the assessee. unaccounted/undisclosed income of the assessee. unaccounted/undisclosed income of the assessee.
The appellant has stated that the A.O. has made this addition The appellant has stated that the A.O. has made this addition The appellant has stated that the A.O. has made this addition as unexplained investment, based upon Page no. 49 of as unexplained investment, based upon Page no. 49 of as unexplained investment, based upon Page no. 49 of Annexure-2 seized from Kaveri Building.However, it was the 2 seized from Kaveri Building.However, it was the 2 seized from Kaveri Building.However, it was the proposal made by proposal made by the appellant to settle dispute for plot no.22 the appellant to settle dispute for plot no.22 in sector-6, Airoli and such proposals did not materialized as 6, Airoli and such proposals did not materialized as 6, Airoli and such proposals did not materialized as they were not accepted by the builder. Hence, no addition they were not accepted by the builder. Hence, no addition they were not accepted by the builder. Hence, no addition could be made only on the basis of a proposal which never could be made only on the basis of a proposal which never could be made only on the basis of a proposal which never materialized. Further, the app materialized. Further, the appellant has stated that if at all ellant has stated that if at all additions are to be made then addition of Rs.20,34,625/ additions are to be made then addition of Rs.20,34,625/ additions are to be made then addition of Rs.20,34,625/- is to made since, the value of the flat requested to be allotted to the made since, the value of the flat requested to be allotted to the made since, the value of the flat requested to be allotted to the appellant was only Rs.20.34.625/ appellant was only Rs.20.34.625/-
Late Sunil D Gulati 42 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
It is seen rom page 49 af affickale R2 iTher the name of Shr 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 Shr Suni Guatappears at sr.no 4 of the project, MIs. Raj Uday Co Suni Guatappears at sr.no 4 of the project, MIs. Raj Uday Co Suni Guatappears at sr.no 4 of the project, MIs. Raj Uday Co- operative Housing Soc. Ltd bearing flat 1001 amounting to operative Housing Soc. Ltd bearing flat 1001 amounting to operative Housing Soc. Ltd bearing flat 1001 amounting to Rs.20,34,625/ Rs.20,34,625/-. Thus, there was a specific reference of the . Thus, there was a specific reference of the name of the appellant in this loose paper. Therefore, addition name of the appellant in this loose paper. Therefore, addition name of the appellant in this loose paper. Therefore, addition of Rs.20.34. of Rs.20.34.625/- is sustained. However, in respect of the is sustained. However, in respect of the remaining addition of Rs.1,03,83,945/ remaining addition of Rs.1,03,83,945/-, the AO has not made , the AO has not made any further inquiry about whether such flais were acquired by any further inquiry about whether such flais were acquired by any further inquiry about whether such flais were acquired by the appellant or not. Therefore, the addition to the extent of the appellant or not. Therefore, the addition to the extent of the appellant or not. Therefore, the addition to the extent of Rs.1.03,83,945/ Rs.1.03,83,945/- 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 assessee us on behalf of the assessee, it has been submitted as it has been 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 plot struck an understanding for the development of a society plot struck an understanding for the development of a society plot at Plot No. 22 in sector at Plot No. 22 in sector - 6 Airoli, belonging to Shri. Sai Raj Co 6 Airoli, belonging to Shri. Sai Raj Co- op. Hsg. Society, around 20 years ago. Accordingly in the said op. Hsg. Society, around 20 years ago. Accordingly in the said op. Hsg. Society, around 20 years ago. Accordingly in the said proposed building flats were booked for others also i.e. for sed building flats were booked for others also i.e. for sed building flats were booked for others also i.e. for outsiders other than the members of the cooperative housing outsiders other than the members of the cooperative housing outsiders other than the members of the cooperative housing society. However, the said project did not take off for a long society. However, the said project did not take off for a long society. However, the said project did not take off for a long time. Hence, the society members approached another builder time. Hence, the society members approached another builder time. Hence, the society members approached another builder namely M/s. Raj H namely M/s. Raj Homes Udayvansh Builders & Developers, omes Udayvansh Builders & Developers, 425, Arenja Corner, Plot No. 71, Sector 425, Arenja Corner, Plot No. 71, Sector-17, Vashi, Navi 17, Vashi, Navi Mumbai, for the development of the Society plot. That builder Mumbai, for the development of the Society plot. That builder Mumbai, for the development of the Society plot. That builder agreed to take over the Society plot for development but agreed to take over the Society plot for development but agreed to take over the Society plot for development but agreed to allot flats in other projects bel agreed to allot flats in other projects belonging to his group to onging to his group to persons for whom the Appellant had booked the flats.Since, persons for whom the Appellant had booked the flats.Since, persons for whom the Appellant had booked the flats.Since,
Late Sunil D Gulati 43 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
the Appellant had earlier identified the members of the the Appellant had earlier identified the members of the the Appellant had earlier identified the members of the cooperative cooperative cooperative housing housing housing society society society and and and unified unified unified them them them togetherandconvinced them for the redevelopment of the togetherandconvinced them for the redevelopment of the togetherandconvinced them for the redevelopment of the Society plot, the Society plot, the Appellant, as a consideration for his efforts so Appellant, as a consideration for his efforts so far made by him, had requested for an allotment of one flat for far made by him, had requested for an allotment of one flat for far made by him, had requested for an allotment of one flat for himself, in the Raj Uday Cooperative Housing Society himself, in the Raj Uday Cooperative Housing Society himself, in the Raj Uday Cooperative Housing Society Building, from the said builder. Building, from the said builder.
It is only the said proposal of the Appellant's request It is only the said proposal of the Appellant's request It is only the said 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.
Hence, the Appellant did not receive any flat from Hence, the Appellant did not receive any flat from Hence, the Appellant did not receive any flat from the builder, as MIs Raj Homes Udayvansh Builders & Developers has not as MIs Raj Homes Udayvansh Builders & Developers has not as MIs Raj Homes Udayvansh Builders & Developers has not allotted any flat to the Appellant. allotted any flat to the Appellant.
This fact can be verified from the said builder M/s Raj Homes This fact can be verified from the said builder M/s Raj Homes This fact can be verified from the said builder M/s Raj Homes Udavansh Builders & Developers himself or from the Housing Udavansh Builders & Developers himself or from the Housing Udavansh Builders & Developers himself or from the Housing Society concerned. Society concerned.
NO addition can be made in the assessment on account of the n can be made in the assessment on account of the n can be made in the assessment on account of the alleged purchase of the said flat, ONLY on the basis of a alleged purchase of the said flat, ONLY on the basis of a 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 regard Hence. it is prayed that the addition confirmed in this regard Hence. it is prayed that the addition confirmed in this regard to the extent of Rs. 20,34,625/ to the extent of Rs. 20,34,625/- should be deleted should be deleted.”
Before us the ld. Counsel of the assessee has also filed Before us the ld. Counsel of the assessee has also filed Before us the ld. Counsel of the assessee has also filed additional evidence that the allottees of said flat are different additional evidence that the allottees of said flat are different additional evidence that the allottees of said flat are different
Late Sunil D Gulati 44 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
persons and not the assessee. The assessee has filed an information persons and not the assessee. The assessee has filed an information persons and not the assessee. The assessee has filed an information downloaded from the web downloaded from the web-site of the CIDCO, which is extrac site of the CIDCO, which is extracted as under:
Late Sunil D Gulati 45 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
We have heard rival submission of the parties on the issue in have heard rival submission of the parties on the issue in have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. Before us the dispute and perused the relevant material on record. Before us the dispute and perused the relevant material on record. Before us the ld. Counsel of the assessee has filed additional evidence to support ld. Counsel of the assessee has filed additional evidence to support ld. Counsel of the assessee has filed additional evidence to support that said flat was never allotted that said flat was never allotted to the assessee and it was merely a to the assessee and it was merely a proposal, which never materia which never materialized. In view of the evidence collected ed. In view of the evidence collected by the widow of the demised assessee i.e. legal heir, we feel it by the widow of the demised assessee i.e. legal heir, we feel it by the widow of the demised assessee i.e. legal heir, we feel it appropriate to admit the additional evidence and restore the matter appropriate to admit the additional evidence and restore the matter appropriate to admit the additional evidence and restore the matter to the file of the ld. Assessing Officer for necessary verification from to the file of the ld. Assessing Officer for necessary verification from to the file of the ld. Assessing Officer for necessary verification from
Late Sunil D Gulati 46 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
the relevant authorities regarding allotment of concerned flat and authorities regarding allotment of concerned flat and authorities regarding allotment of concerned flat and then decide the issue in dispute in accordance with law after then decide the issue in dispute in accordance with law after then decide the issue in dispute in accordance with law after providing adequate opportunity of being heard to the assessee/legal providing adequate opportunity of being heard to the assessee/legal providing adequate opportunity of being heard to the assessee/legal heir of assessee. The ground of the appeal of the assessee is heir of assessee. The ground of the appeal of the assessee heir of assessee. The ground of the appeal of the assessee accordingly allowed for the statistical purposes. ly allowed for the statistical purposes.
The ground No. The ground No. 5 of the appeal relates to addition of of the appeal relates to addition of ₹16,93,750/-on account of cash found during the course of the on account of cash found during the course of the on account of cash found during the course of the search sustained by the Ld. CIT(A). search sustained by the Ld. CIT(A).
The facts qua the issue in dispute that rega The facts qua the issue in dispute that regarding the rding the source of cash of Rs.16,93,780/ 780/- on from the assessee, it was submitted th on from the assessee, it was submitted that assessee being engaged in the real estate and property dealer in the assessee being engaged in the real estate and property dealer in the assessee being engaged in the real estate and property dealer in the Navi Mumbai area, where most of the plots are purchased from Navi Mumbai area, where most of the plots are purchased from Navi Mumbai area, where most of the plots are purchased from villagers, it was normal to keep amount of cash i villagers, it was normal to keep amount of cash in the range of n the range of ₹ 10 to 15 lakh. Before the Ld. CIT(A) the assessee also submitted that to 15 lakh. Before the Ld. CIT(A) the assessee also submitted that to 15 lakh. Before the Ld. CIT(A) the assessee also submitted that during the course of statement recorded on 19/02/2009, the during the course of statement recorded on 19/02/2009, the during the course of statement recorded on 19/02/2009, the assessee stated that cash found was out of withdrawal from his assessee stated that cash found was out of withdrawal from his assessee stated that cash found was out of withdrawal from his regular bank account and from his sale parties for payment to regular bank account and from his sale parties regular bank account and from his sale parties landowners. Before the Ld. landowners. Before the Ld. CIT(A) landowners. Before the Ld. CIT(A) the assessee failed to CIT(A) the assessee failed to the assessee failed to substantiate details of withdrawals along with supporting evidence substantiate details of withdrawals along with supporting evidence substantiate details of withdrawals along with supporting evidence and therefore Ld. CIT(A) upheld the addition. Before us the ld and therefore Ld. CIT(A) upheld the addition. Before us the ld and therefore Ld. CIT(A) upheld the addition. Before us the ld Counsel of the assessee submitted that due to demise o l of the assessee submitted that due to demise o l of the assessee submitted that due to demise of the assessee, his legal heir who is his widow is making attempt to assessee, his legal heir who is his widow is making attempt to assessee, his legal heir who is his widow is making attempt to collect necessary evidence and therefore matter may be restored to collect necessary evidence and therefore matter may be restored to collect necessary evidence and therefore matter may be restored to the file of the Ld. Assessing Officer afresh. The Assessing Officer afresh. The Ld. DR on the Assessing Officer afresh. The
Late Sunil D Gulati 47 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
Contra, submitted that already enough opportunity has been Contra, submitted that already enough opportunity has be Contra, submitted that already enough opportunity has be provided to the assessee, so addition should be upheld. provided to the assessee, so addition should be upheld. provided to the assessee, so addition should be upheld.
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. We find that the assessee had already stated source of dispute. We find that the assessee had already stated source of dispute. We find that the assessee had already stated source of cash found as out of withdrawal from bank accounts and advance cash found as out of withdrawal from bank accounts and advance cash found as out of withdrawal from bank accounts and advance from landowners or purchase a plot. Before us, the m landowners or purchase a plot. Before us, the m landowners or purchase a plot. Before us, the Ld. Counsel of the assessee has given undertaking that the legal heir of the the assessee has given undertaking that the legal heir of the the assessee has given undertaking that the legal heir of the assessee has agreed for collecting evidence from the banks and assessee has agreed for collecting evidence from the banks and assessee has agreed for collecting evidence from the banks and from the landowners to support of the availability of cash in the from the landowners to support of the availability of cash in the from the landowners to support of the availability of cash in the hands of the assessee. We are of the opinion that the interest of nds of the assessee. We are of the opinion that the interest of nds of the assessee. We are of the opinion that the interest of substantial justice one more opportunity should be allowed to the substantial justice one more opportunity should be allowed to the substantial justice one more opportunity should be allowed to the legal hair of the assessee to substantiate the source of cash found legal hair of the assessee to substantiate the source of cash found legal hair of the assessee to substantiate the source of cash found from the assessee. Accordingly, we set aside the finding of the Ld. from the assessee. Accordingly, we set aside the finding o from the assessee. Accordingly, we set aside the finding o CIT(A) on the issue in dispute and restore the matter back to the file CIT(A) on the issue in dispute and restore the matter back to the file CIT(A) on the issue in dispute and restore the matter back to the file of the ld. Assessing Officer for verification of the claim of the Assessing Officer for verification of the claim of the Assessing Officer for verification of the claim of the assessee. The assessee is directed to file all the necessary evidence assessee. The assessee is directed to file all the necessary evidence assessee. The assessee is directed to file all the necessary evidence in support of source of the cash availa in support of source of the cash availability along with cash bility along with cash statement in the form of the cash book. The ground No. 5 (five) of statement in the form of the cash book. The ground No. statement in the form of the cash book. The ground No. the appeal of the assessee the appeal of the assessee is accordingly allowed for statistical accordingly allowed for statistical purposes.
The ground No. The ground No. 6 of the appeal of the assessee relates to of the appeal of the assessee relates to addition confirmed by Ld. CI addition confirmed by Ld. CIT(A) for unexplained investment in T(A) for unexplained investment in jewelry of ₹16,81,573/ 573/-against the addition made of against the addition made of ₹33,63,147/- by the Assessing Officer. by the Assessing Officer.
Late Sunil D Gulati 48 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
The facts qua the issue in dispute The facts qua the issue in dispute are that during the course that during the course of the search action total jewelry of of the search action total jewelry of ₹33,63,147/-including dia including diamond jewelry of ₹14,57,538/ 538/-and bullion worth ₹6,16,000/ 16,000/- was found from the residence of the assessee. Before the Assessing Officer, the from the residence of the assessee. Before the Assessing Officer, the from the residence of the assessee. Before the Assessing Officer, the assessee explained that in addition to the normal jewelry which assessee explained that in addition to the normal jewelry which assessee explained that in addition to the normal jewelry which could be available with family members according to the CBDT could be available with family members according to could be available with family members according to circular, jewelry was received by the wife of the assessee from her circular, jewelry was received by the wife of the assessee from her circular, jewelry was received by the wife of the assessee from her parents and his mother who expired in the year 2007. The ld. parents and his mother who expired in the year 2007. The l parents and his mother who expired in the year 2007. The l Assessing Officer rejected the contention of the assessee and Assessing Officer rejected the contention of the assessee and Assessing Officer rejected the contention of the assessee and divided the 50% of the jewelry in the hands of the assessee and his divided the 50% of the jewelry in the hands of the asses divided the 50% of the jewelry in the hands of the asses minor son and balance 50% jewelry in the hands of his wife and his minor son and balance 50% jewelry in the hands of his wife and his minor son and balance 50% jewelry in the hands of his wife and his daughter, and accordingly computed unexplained investment of the daughter, and accordingly computed unexplained investment of the daughter, and accordingly computed unexplained investment of the assessee ₹16,81,574/ 81,574/-however in the computation of the income in however in the computation of the income in the assessment order, the Assessing Officer add the assessment order, the Assessing Officer added entire amount of ed entire amount of the jewelry of ₹33,63, 33,63,147/-in the hands of the assessee. The Ld. in the hands of the assessee. The Ld. CIT(A) accordingly deleted the balance addition and sustained CIT(A) accordingly deleted the balance addition and sustain CIT(A) accordingly deleted the balance addition and sustain addition to the extent of the ₹16,81,574/-. addition to the extent of the
Before us, the the Ld. counsel of the assessee submitted that of the assessee submitted that benefit of the jewelry as per the CBDT instruction No. 1916 dated nefit of the jewelry as per the CBDT instruction No. 1916 dated nefit of the jewelry as per the CBDT instruction No. 1916 dated 11/05/1994, the assessee the assessee should be allowed 500 g hould be allowed 500 grams of gold jewelry in respect of his wife, 250 g jewelry in respect of his wife, 250 grams for his unmarried daughter for his unmarried daughter and 100 grams each for the assessee and a son. He further and 100 grams each for the assessee and a son. He further and 100 grams each for the assessee and a son. He further submitted that balance if any can be explained by way of disclosure itted that balance if any can be explained by way of disclosure itted that balance if any can be explained by way of disclosure
Late Sunil D Gulati 49 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
of ₹ 70 lakh made by the assessee made by the assessee, which has been offered to tax for , which has been offered to tax for assessment year 2008 assessment year 2008-09 and assessment year 2009 09 and assessment year 2009-10.
The Ld. DR on the other hand relied on the order of the lower on the other hand relied on the order of the lower on the other hand relied on the order of the lower authorities.
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 middle of record. We find that the dispute and perused the relevant middle of record. We find that the dispute and perused the relevant middle of record. We find that the Hon’ble Gujrat High Court in the case Cit Vs Ratanlal Vyarilal Jain Hon’ble Gujrat High Court in the case Cit Vs Ratanlal Vyarilal Jain Hon’ble Gujrat High Court in the case Cit Vs Ratanlal Vyarilal Jain (2010)(7) TMI 769 (Guj); Hon’ble Allahabad High Court in the case (2010)(7) TMI 769 (Guj); Hon’ble Allahabad High Court in the case (2010)(7) TMI 769 (Guj); Hon’ble Allahabad High Court in the case of of of CIT(Central), CIT(Central), CIT(Central), Kanpur Kanpur Kanpur Vs Vs Vs M/s M/s M/s Ghanshyam Ghanshyam Ghanshyam Das Das Das Johri Johri Johri (2013)(10)TMI 1187 ( Allahabad HC) and Hon’ble Rajasthan High (2013)(10)TMI 1187 ( Allahabad HC) and Hon’ble Rajasthan High (2013)(10)TMI 1187 ( Allahabad HC) and Hon’ble Rajasthan High Court in the case of CIT Vs Kailash Chnad Sharma (2004)(7) TMI the case of CIT Vs Kailash Chnad Sharma (2004)(7) TMI the case of CIT Vs Kailash Chnad Sharma (2004)(7) TMI 647( Rajasthan High Court) have consistently held that the position 647( Rajasthan High Court) have consistently held that the position 647( Rajasthan High Court) have consistently held that the position of the jewelry of the quantities specified in the instruction issued by of the jewelry of the quantities specified in the instruction issued by of the jewelry of the quantities specified in the instruction issued by the CBDT is reasonable and therefore should be held to be the CBDT is reasonable and therefore should be held to be the CBDT is reasonable and therefore should be held to be explained in the hands of the assessee and should not be subject lained in the hands of the assessee and should not be subject lained in the hands of the assessee and should not be subject matter of the addition by the AO on the ground that assessee was matter of the addition by the AO on the ground that assessee was matter of the addition by the AO on the ground that assessee was unable to explain the possession thereof to his satisfaction. Further, unable to explain the possession thereof to his satisfaction. Further, unable to explain the possession thereof to his satisfaction. Further, Tribunal Bench Chandigarh in the case of Smt Neena Syal V Bench Chandigarh in the case of Smt Neena Syal Vs ACIT Bench Chandigarh in the case of Smt Neena Syal V (1998)(9) TMI 114 and Mumbai Bench of Tribunal in the case Mrs (1998)(9) TMI 114 and Mumbai Bench of Tribunal in the case Mrs (1998)(9) TMI 114 and Mumbai Bench of Tribunal in the case Mrs Nawaz Singhania Vs DCIT Central Nawaz Singhania Vs DCIT Central Circle(2018)(1) TMI 21has also Circle(2018)(1) TMI 21has also treated the amount of the jewelry as per CBDT instruction (supra) treated the amount of the jewelry as per CBDT instruction (supra) treated the amount of the jewelry as per CBDT instruction (supra) as explained in the hand of an assessee. In view of the a s explained in the hand of an assessee. In view of the above s explained in the hand of an assessee. In view of the a precedents, we feel it appropriate to restore the matter to the file of , we feel it appropriate to restore the matter to the file of , we feel it appropriate to restore the matter to the file of the Assessing Officer for allowing benefit of jewelery as per the the Assessing Officer for allowing benefit of jewel the Assessing Officer for allowing benefit of jewel
Late Sunil D Gulati 50 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
CBDT instruction (supra) in accordance with law and also examine CBDT instruction (supra) in accordance with law and also examine CBDT instruction (supra) in accordance with law and also examine the claim of the assessee in respect of the balance amount of the the claim of the assessee in respect of the balance amount of the the claim of the assessee in respect of the balance amount of the jewelry if any out of the disclosure of Rs. 70 jewelry if any out of the disclosure of Rs. 70 lakhs claimed to have been made by the assessee for assessment year 2008-09 and 2009- been made by the assessee for assessment year 2008 been made by the assessee for assessment year 2008 10. Accordingly, the ground of the appeal of the assessee is allowed the ground of the appeal of the assessee is allowed the ground of the appeal of the assessee is allowed for statistical purposes. for statistical purposes.
52.1 In modified ground No. seven, the assessee has challenged In modified ground No. seven, the assessee has challenged In modified ground No. seven, the assessee has challenged addition of ₹3,33,62,724/ 724/-confirmed by the Ld. CIT(A) under section confirmed by the Ld. CIT(A) under section 68 of the Act out of t ct out of the addition of ₹5,12,94,285/ /- made by the Assessing Officer.
52.2 During the course of the During the course of the first appellate proceeding proceeding, theLd. CIT(A) called for a remand report from the Assessing Officer and remand report from the Assessing Officer and remand report from the Assessing Officer and thereafter taking into consideration written submission of the thereafter taking into consideration written submission of the thereafter taking into consideration written submission of the assessee, sustained addition of addition of ₹3,33,62,724/-observing as under: observing as under:
“16.3 The facts of the case and findings of the AO recorded in 16.3 The facts of the case and findings of the AO recorded in 16.3 The facts of the case and findings of the AO recorded in the Assessment Order, remand report and the written the Assessment Order, remand report and the written the Assessment Order, remand report and the written submissions of the appellant have been considered. submissions of the appellant have been considered. submissions of the appellant have been considered.
i)In the case of loan of i)In the case of loan of Rs.2,71,00,000/- given to MIs. Madan given to MIs. Madan Associates, it pertained to earlier year. Therefore, no addition Associates, it pertained to earlier year. Therefore, no addition Associates, it pertained to earlier year. Therefore, no addition is to be made during the year. is to be made during the year.
ii) In the case of loan of Rs.15,00,000/ In the case of loan of Rs.15,00,000/- given to Mis. Rishi given to Mis. Rishi Enterprises pertained to earlier year. Therefore, no Enterprises pertained to earlier year. Therefore, no Enterprises pertained to earlier year. Therefore, no addition is to be made during the year. to be made during the year.
Late Sunil D Gulati 51 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
iii) In the case of loan of Rs.2,16,00,000/ In the case of loan of Rs.2,16,00,000/- given to MIs. given to MIs. Mahavir Universal Homes Put. Ltd. As per the ledger account, Mahavir Universal Homes Put. Ltd. As per the ledger account, Mahavir Universal Homes Put. Ltd. As per the ledger account, the appellant has received an amount of Rs.45,00,000/ the appellant has received an amount of Rs.45,00,000/ the appellant has received an amount of Rs.45,00,000/- during the year from the said party. Out during the year from the said party. Out of which an amount of which an amount of Rs.8,81,561/ of Rs.8,81,561/- was paid to villagers and the remaining was paid to villagers and the remaining amount shown as liability.However, as per the bank amount shown as liability.However, as per the bank amount shown as liability.However, as per the bank statement, the appellant has received an amount of statement, the appellant has received an amount of statement, the appellant has received an amount of Rs.80,00,000/ Rs.80,00,000/- during the year from the said party. During during the year from the said party. During the appellate proce the appellate proceedings, the AR has also not submitted edings, the AR has also not submitted confirmation of loan and other supporting evidences.Therefore, confirmation of loan and other supporting evidences.Therefore, confirmation of loan and other supporting evidences.Therefore, addition of Rs.2,16,00,000/ addition of Rs.2,16,00,000/- is upheld.
iv) In the case of loan of Rs. 11,50,000/ In the case of loan of Rs. 11,50,000/- to M/s. Chandra to M/s. Chandra Brothers, the AO had issued notice u/s. 133(6) of the Ac Brothers, the AO had issued notice u/s. 133(6) of the Ac Brothers, the AO had issued notice u/s. 133(6) of the Act and the appellant has filed confirmation from the said party. the appellant has filed confirmation from the said party. the appellant has filed confirmation from the said party. Therefore, this loan is held as genuine. Therefore, this loan is held as genuine.
v) In respect of amount of Rs.5,92,918/ In respect of amount of Rs.5,92,918/- given to MIs. Guru given to MIs. Guru Prerna Enterprises.The appellant has submitted before the AO Prerna Enterprises.The appellant has submitted before the AO Prerna Enterprises.The appellant has submitted before the AO that the said sum was payable that the said sum was payable to the developers towards to the developers towards society formation and other legal charges which was society formation and other legal charges which was society formation and other legal charges which was subsequently paid. The assessee has filed sale deed which subsequently paid. The assessee has filed sale deed which subsequently paid. The assessee has filed sale deed which may be considered. may be considered. Therefore, no addition can be made in this Therefore, no addition can be made in this regard
vi) In respect of amount of Rs.90,00,000/ ) In respect of amount of Rs.90,00,000/- given to given to MIs. Narayan Trading, the appellant has filed MOU dated Narayan Trading, the appellant has filed MOU dated Narayan Trading, the appellant has filed MOU dated 24.07.2008 before 24.07.2008 before the AO, 24.07.2008 before the AO, the AO, wherein this amount i.e. wherein wherein this amount this amount 18.02.2009. Even during the appellate proceeding, the 18.02.2009. Even during the appellate proceeding, the 18.02.2009. Even during the appellate proceeding, the
Late Sunil D Gulati 52 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
appellant has not justified that these expenses were incurred appellant has not justified that these expenses were incurred appellant has not justified that these expenses were incurred exclusively for the business pur exclusively for the business purpose.
In view of the above discussion, addition of Rs.30,557/ In view of the above discussion, addition of Rs.30,557/ In view of the above discussion, addition of Rs.30,557/-made on account of certain expenses is upheld. on account of certain expenses is upheld.
Accordingly, ground no. 12 of the appeal is dismissed. Accordingly, ground no. 12 of the appeal is dismissed. Accordingly, ground no. 12 of the appeal is dismissed.”
We have heard rival submission have heard rival submissions of the parties ies on the issue in dispute and perused perused relevant material on record. Regarding the record. Regarding the addition of ₹2,16,00, 2,16,00,000/-pertaining to m/s Mah pertaining to m/s Mahavir Universal homes Private Limited, the homes Private Limited, the Ld. counsel of the assessee submitted of the assessee submitted that addition for this amount has already been made in assessment that addition for this amount has already been made in assessment that addition for this amount has already been made in assessment year 2008-09. He submitted that bmitted that the said loan had been confirmed the said loan had been confirmed by the Assessing Officer Assessing Officer in assessment year 2008 in assessment year 2008-09, which has been deleted by the Ld.(CIT(A) and therefore no addition should been deleted by the Ld.(CIT(A) and therefore no addition should been deleted by the Ld.(CIT(A) and therefore no addition should have been made in the year under consideration. On perusal of the have been made in the year under consideration. On perusal of the have been made in the year under consideration. On perusal of the order of the Ld. CIT(A) for assessment year 2008 CIT(A) for assessment year 2008-09 , we find that in 09 , we find that in para 11.4(iii) the Ld. CIT(A) has deleted the unexplained credit of para 11.4(iii) the Ld. CIT(A) has deleted the unexplained credit of para 11.4(iii) the Ld. CIT(A) has deleted the unexplained credit of ₹2,16,00,000/- in respect of M/s Mahavir in respect of M/s Mahavir Universal Homes Universal Homes Private Limited. The relevant finding of the Ld. CIT(A) is reproduced as Limited. The relevant finding of the Ld. CIT(A) is reproduced as Limited. The relevant finding of the Ld. CIT(A) is reproduced as under:
“11.4The facts of the case and findings of the AO recorded in 11.4The facts of the case and findings of the AO recorded in 11.4The facts of the case and findings of the AO recorded in the AssessmentOrder, remand report of AO and the written the AssessmentOrder, remand report of AO and the written the AssessmentOrder, remand report of AO and the written submissions of the appellant have been considered. submissions of the appellant have been considered. submissions of the appellant have been considered.
i. ………………. ………………. ii. …………………… ……………………
Late Sunil D Gulati 53 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
iii. In the case of loan of Rs.2,16,00,000/- given to In the case of loan of Rs.2,16,00,000/ In the case of loan of Rs.2,16,00,000/ M/s. Mahavir M/s. Mahavir Universal Homes Pvt. Ltd, the Universal Homes Pvt. Ltd, the appellant has filed confirmation from the said appellant has filed confirmation from the said appellant has filed confirmation from the said party and also submitted copy of ROl, bank party and also submitted copy of ROl, bank party and also submitted copy of ROl, bank statement etc. before the AO. Therefore, this loan statement etc. before the AO. Therefore, this loan statement etc. before the AO. Therefore, this loan is held as genuine is held as genuine iv. ……………….. ………………... v. …………………. ………………….. vi. …………………. ………………….
……………………… ………………………
Accordingly, the ground Accordingly, the ground no.6 of appeal is partly allowed. no.6 of appeal is partly allowed.”
(emphasis supplied externally) (emphasis supplied externally)
53.1 In view of the above verification, the claim of the assessee is In view of the above verification, the claim of the assessee is In view of the above verification, the claim of the assessee is accepted and the addition in dispute the addition in dispute of Rs. 2,16,00,000/ of Rs. 2,16,00,000/- made in the year under consideration is deleted. the year under consideration is deleted.
53.2 Regarding the amount of Regarding the amount of ₹90,00,000/-pertaining to Mrs pertaining to Mrs. Narayan Niryat India Private Limited, the assessee submitted that it Niryat India Private Limited, the assessee submitted that it Niryat India Private Limited, the assessee submitted that it is a trade advance for which a copy of the MOU dated 24/07/2008 is a trade advance for which a copy of the MOU dated 24/07/2008 is a trade advance for which a copy of the MOU dated 24/07/2008 confirming the same is already placed on record. The remand report confirming the same is already placed on record. The remand report confirming the same is already placed on record. The remand report submitted by the Assessing Officer mitted by the Assessing Officer, a copy of which is plac , a copy of which is placed on paperbook page 107 to 115 paperbook page 107 to 115, also confirmed that as per the MOU , also confirmed that as per the MOU filed, the amount represented as advance received from said party filed, the amount represented as advance received from said party filed, the amount represented as advance received from said party for sale/assigning development right of a plot. We are the opinion for sale/assigning development right of a plot. We are the opin for sale/assigning development right of a plot. We are the opin that the Assessing Officer has not disputed the fact that amount in that the Assessing Officer has not disputed the fact that amount in that the Assessing Officer has not disputed the fact that amount in
Late Sunil D Gulati 54 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
dispute was a trade advance to the assessee dispute was a trade advance to the assessee and concern of the Assessing Officer was that how that amount has been adjusted Assessing Officer was that how that amount has been adjusted Assessing Officer was that how that amount has been adjusted subsequently. We are of the opinion that as far as provision We are of the opinion that as far as provision We are of the opinion that as far as provisions of section 68 are concerned, the assessee has dischargedhis onus by section 68 are concerned, the assessee has discharge section 68 are concerned, the assessee has discharge way of filing MOU between the assessee and said party. Once the way of filing MOU between the assessee and said party. Once the way of filing MOU between the assessee and said party. Once the assessee filed the confirmation assessee filed the confirmation, onus sifted to the Assessing Officer the Assessing Officer and if he did not discharge his onus, the assessee cannot be and if he did not discharge his onus, the assessee c and if he did not discharge his onus, the assessee c faulted. Accordingly, the addition in respect of M/s Narayan Niryat faulted. Accordingly, the addition in respect of M/s Narayan Niryat faulted. Accordingly, the addition in respect of M/s Narayan Niryat India Private Limited is deleted ndia Private Limited is deleted. Regarding the amount of ₹27,62,724/- from M/s Basant 53.3 Regarding the amount of from M/s Basant Reality, the Ld. Counsel Ld. Counsel of the assessee has requested for one more of the assessee has requested for one more opportunity. In the interest of the substantial justice particularly in e interest of the substantial justice particularly in e interest of the substantial justice particularly in view of the fact that assessee has already demised and being view of the fact that assessee has already demised and being view of the fact that assessee has already demised and being represented by his widow, we feel it appropriate to restore this issue represented by his widow, we feel it appropriate to restore this issue represented by his widow, we feel it appropriate to restore this issue to the file of the Assessing Officer for deciding a fresh. It is needless to the file of the Assessing Officer for deciding a fresh. It is needl to the file of the Assessing Officer for deciding a fresh. It is needl to mention that the assessee shall be afforded adequate opportunity to mention that the assessee shall be afforded adequate opportunity to mention that the assessee shall be afforded adequate opportunity of being heard. The ground of the appeal of the assessee is of being heard. The ground of the appeal of the assessee is of being heard. The ground of the appeal of the assessee is accordingly allowed for statistical purposes. accordingly allowed for statistical purposes.
In ground No. 8 8, the assessee has challenged disallowance of expenses of ₹30,557/ 30,557/- being 25% of expenses on motor car, being 25% of expenses on motor car, depreciation, interest on loan, telephone expenses etc. depreciation, interest on loan, telephone expenses et depreciation, interest on loan, telephone expenses et
We find that identical issue of ad We find that identical issue of ad-hoc addition in respect of the hoc addition in respect of the similar expenses has been deleted by us in assessment year 2008- similar expenses has been deleted by us in assessment year 2008 similar expenses has been deleted by us in assessment year 2008
Late Sunil D Gulati 55 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
09, according to following our finding in assessment year 2008 llowing our finding in assessment year 2008-09, llowing our finding in assessment year 2008 the ground of the appeal of the assessee is allowed. the ground of the appeal of the assessee is allowed.
The ground No. The ground No. 9 of the appeal of the assessee relate to of the appeal of the assessee relate to disallowance of interest under section 36(1)(iii) of the Act amounting disallowance of interest under section 36(1)(iii) of the disallowance of interest under section 36(1)(iii) of the to ₹24,13,176/-.
We find that identical issue We find that identical issue raised in assessment year 2008 in assessment year 2008- 09, has been deleted by us, therefore following our finding in 09, has been deleted by us, therefore following our finding in 09, has been deleted by us, therefore following our finding in assessment year 2008 assessment year 2008-09 on the issue in dispute, the ground no. 9 09 on the issue in dispute, the ground no. 9 of the appeal of the assessee for the year under consideration is of the appeal of the assessee for the year under consideration is of the appeal of the assessee for the year under consideration is also deleted.
In the result, the appeals of the assessee for assessment year In the result, the appeals of the assessee for assessment year In the result, the appeals of the assessee for assessment year 2008-09 and 2009-10 are allowed partly for statistical purposes. 10 are allowed partly for statistical purposes. 10 are allowed partly for statistical purposes.
Order pronounced in the open Court/under Rule 34(4) of Order pronounced in the open Court/under Rule 34(4) of Order pronounced in the open Court/under Rule 34(4) of the ITAT Rules, 1963 on the ITAT Rules, 1963 on 02/02/2023. Sd/- Sd/- Sd/ (RAHUL CHAUDHARY CHAUDHARY) (OM PRAKASH KANT OM PRAKASH KANT) JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 02/02/2023 Dragon Legal/Rahul Sharma, Sr. P.S. Rahul Sharma, Sr. P.S.
Copy of the Order forwarded to Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT
Late Sunil D Gulati 56 ITA Nos. 2091 & 2092/M/2022 ITA Nos. 2091 & 2092/M/2022
DR, ITAT, Mumbai 6. Guard file.
BY ORDER, BY ORDER, //True Copy// (Sr. Private Secretary) (Sr. Private Secretary) ITAT, Mumbai ITAT, Mumbai