DCIT-CC-6(1), MUMBAI, BKC, MUMBAI vs. GOPAL NARAYANDAS KELA, AKOLA

We have heard the counsels for both the parties, perused the material placed on record, judgments cited before us and also the orders passed by the revenue authorities. The brief facts are that assessee is an individual and the assessment for year under consideration was reopened on the ground that a search and seizure action u/s 132 of the Act on ‘Rucha Group of cases’ was conducted on 23.09.2021 certain incriminating documents were found and wherein an e-mail from the mail id raviwadepalle6233 @ gmail.com was found to b e sent to mundadasandesh @ gmail.com and certain excel sheets were seized from them. As per the AO, the said seized documents reflected transactions in respect of purchase of land mentioned therein and the amounts paid by various parties in cash and in cheque. The relevant portions of the screenshot of the e-mail is reproduced at Page 2 of the assessment order. In the screenshot under the column "Buyer" the alphabets G.K. & G.K nowhere mentioned. Thus while relying upon statement of Sandesh Mundada, it was held that G.K. mentioned in the said sheet refers to the present assessee Gopal N. Kela who had purchased the property mentioned in the said screenshot. AO was of the view that the transaction as mentioned in the said sheet read with the statement of Sandesh Mundada proves that the present assessee purchased certain land in Rajapur and for which cash payment of Rs. 5,44,47,875/- was made by him which was liable to be assessed u/s 69C of the Act.

Whereas on the contrary, the assessee submitted that he had never made any such cash payment in respect of the land purchased by him in Karshingewadi and for which he had also furnished the registered document in which payments of Rs.13,00,000/- were made by cheques. He further submitted that the provisions u/s 69C are not attracted in the present case.

It was further submitted by Ld. AR that there is no basis to assume that documents found from independent professional Sandesh Mundada have any connection or could be taken as a basis to make addition in the hands of the assessee. It was further submitted that the assessee did not purchased any land as mentioned in the said extract of the screenshot relied on except the one stated above.

Ld. AR further submitted that the AO erred in believing the statement of Sandesh Mundada where G.K is deciphered as "Gopal Kela" and requested that no addition could be made in the hands of the assessee based on the said screenshot in the absence of any other corroborative evidence. However AO after reproducing the reply of the assessee in his order, added an amount of Rs. 5,44,47,875/- in the hands of the assessee as ‘unexplained expenditure’ u/s 69C of the Act.

Against the above additions, the assessee preferred appeal the Ld. CIT(A) and Ld. CIT(A) after hearing the parties and after appreciating the material placed on record deleted the additions by holding that there is no evidence on record that the assessee incurred cash expenditure as mentioned in the loose papers seized from the e-mail id of Sandesh Mundada. AO further held that in the absence of any evidence of such alleged expenditure and in the absence of any linking of the assessee to the said documents, no addition u/s 69C could be made and accordingly partly allowed the appeal of the assessee.

Now before us, Ld. DR while relying upon the order passed by the AO submitted that Ld. CIT(A) erred in deleting the additions as the assessee had purchased land and the purchase price as mentioned in the document of purchase and as admitted by the assessee himself is Rs. 13,00,000/- which is the same amount as reflected in the said sheet which is reproduced at Page No. 10 of the assessment order. It was submitted that once it is an admitted fact that the assessee had purchased the land and at the same amount as mentioned in the said sheet, therefore AO rightly while relying upon the seized document made additions in the hands of the assessee.

On the other hand, Ld. AR while relying upon the order passed by Ld. CIT(A) submitted that in the present case the additions relates back to an e-mail communication between two independent parties unconnected to the assessee. It was also submitted that in order to make the assessment it was mandatory on the part of the AO to bring out a live and palpable connection between the said parties and the assessee. However, on the perusal of the assessment order, it was evident that no such link or connection was established. Ld. AR further submitted that it is an admitted fact that both the parties mentioned in the order are independent professionals and any e- mail exchanged between them cannot lead to an assessment on the assessee more particularly when other than this communication, there was no independent evidence on record to show that there is any positive or corroborative evidence with the AO based on which it could be established that the assessee incurred the said expenditure. It was submitted that the allegation of the AO that the assessee had purchased the property for a value lower than the Fair Market Value (FMV) and paid the difference between the agreement value and FMV in cash is wrong. Under the Income Tax Act there are specific anti- avoidance provisions whereby purchase of the property at less than the Stamp Duty Value can be brought to tax on the amount of difference between the agreement value and the Stamp Duty Value. Lastly it was also submitted by Ld. AR that the AO had wrongly invoked Sec. 69C of the Act in the present case as there was no evidence to show any expenditure incurred in cash. The Ld. AR also raised arguments to press the issue with regard to validity of the notice u/s 148 of the Act by submitting that the same is approved by Ld. PCIT where as it should have been approved by the PCCIT as per Act since the notice u/s 148 was issued beyond 3 years from the end of the relevant assessment year.

We have heard the counsels for both the parties, perused the material placed on record, judgments cited before us and also the orders passed by the revenue authorities. From the records we noticed that the AO had not invoked Sec. 69 of the Act in the present case but had chosen to make additions u/s 69C of the Act, in this regard on our query Ld. DR submitted that he relies upon the orders of the AO.

After having gone through the entire facts and circumstances of the present case we noticed that Ld. CIT(A) had rightly deleted the additions on the ground that there was no evidence to show that the assessee had actually incurred the said expenditure in cash. Further even in the Grounds of Appeal raised by the Department there is no specific challenge to this finding. We further noticed that even in the Assessment Order apart from relying upon the document seized from the independent parties (who are stated to be independent professionals and which fact was neither disputed nor rebutted), no other corroborative evidence had been brought on record to prove actual incurrence of the expenditure so as to invoke the provisions of Sec. 69C of the Act. Admittedly the incurring of expenditure must first be established before invoking the provisions of Sec. 69C of the Act.