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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI AMIT SHUKLA, JM & SHRI ARUN KHODPIA, AM
for the hearing and accordingly decided under this common order.
To adjudicate the aforesaid identical cases, having similar issues, ground of appeal
, facts and circumstances, for the sake of brevity, the appeal in the case of Shri Manish Mali, for AY 2017-18 has been taken up as the lead matter, wherein our observations, deliberations and adjudication shall apply mutatis mutandis to the remaining appeals. in the case of Manish Mali for AY 2017
18. Ground of appeal:
1. On the facts and circumstances of the case in law, Ld. CIT(A) erred in confirming the stand of A.O. about that issuing the notice u/s 153C of the Act without DIN. It is blatant contravention of the Circular No. 19/2019, dated 14-8- 2019 issued by the CBDT.
2. On the facts and circumstances of the case in law, Ld. CIT(A) erred in confirming addition without referring to any incrementing document. Besides,he has not referred to any incriminating material in the satisfaction note issued to the Appellant. 3. On the facts and circumstances of the case in law, Ld. CIT(A) erred in confirming stand of A.O. for not sharing incrementing documents found during the course of search of rubberwala group which was pertained to the appellant.
, 6569, 6568, 6478, 6479 & 6480/Mum/2025 Manish Mali &Anr. 4. On the facts and circumstances of the case in law, Ld. CIT(A) erred in confirming stand of A.O. about the not providing statement and materials used by him against the appellant. 5. On the facts and circumstances of the case in law, Ld. CIT(A) erred in confirming stand of A.O. about opportunity of cross examination of the person whose statements were used against the appellant.
The brief facts of the lead case are that the assessee filed his original return of income for the AY 2017-18 on 14.04.2017, declaring total income of Rs. 3,11,620/-. Subsequently on 17.03.2021 a search and seizure action was conducted on the Rubberwala Group in the premises of M/s Rubberwala Housing & Infrastructure Pvt. Ltd. (RHIL), its Promoter and Director Shri Tabrez Shaikh and a key employee of the Group Shri Imran Ansari, who was handling sale and registration of Shops in “Platinum Mall” project on RHIL.
Mrs. Imran Ansari in his statements recorded under section 132(4) of the Act during the search had stated that he is working with Rubberwala Group since 2010 and have explained the complete procedure of sale of Shops in the “Platinum Mall”. It is revealed that the assessee Shri Manish Mali also purchased Shop No. 160 in the Platinum Mall admeasuring 73 sq. ft. for consideration of Rs. 22,00,950/- paid through proper banking channel. Further from the electronic data in the form of Excel sheets seized during the search, it is surfaced that the assessee had also made cash payments for purchase of aforesaid Shop in AY 2017-18 for Rs. 2,00,000/-, AY 2018-19 for Rs. 11,02,700/- and for AY 2019-20 Rs. 8,39,850/-, the information was further corroborated by the statements of Shri Imran Ansari and Shri Tabrez Shaikh , 6569, 6568, 6478, 6479 & 6480/Mum/2025 Manish Mali &Anr. recorded under section 132(4) of the Act. In consequential action to such facts unearthed during the search, the AO initiated assessment proceedings under section 153C of the Act. The assessee was served with notice to explain as to why cash payments as per the information found during the search should not be added in the hands of assessee as unexplained investments. The assessee denied before the AO to have made such cash payments; however, such submissions of assessee was not found convincing by the ld. AO and accordingly the assessment was completed under section 153C r.w.s. 143(3) of the Act with the additions under section 69 on account of unexplained investment in the hands of assessee for the aforesaid alleged cash payments admitted to be received by the builder from the assessee.
Being aggrieved with aforesaid order by Ld. AO, the assessee preferred an appeal before the ld. CIT(A), however with no success, the appeal of the assessee was dismissed.
To assail the findings of ld. CIT(A), assessee has preferred an appeal before the ITAT, which is under consideration in the present matters.
At the outset, the ld. AR representing the assessee submitted that the AO has erroneously made an addition towards alleged ‘on-money’ payment for earlier AYs even though the first cheque payment pertaining to the transactions was made only in AY 2019-20. It is further submitted that the documents were 6569, 6568, 6478, 6479 & 6480/Mum/2025 Manish Mali &Anr. recovered from the premises of 3rd party which is not connected to the assessee are devoid of any direct evidentiary value against the assessee, the addition was unjustified based on presumption on the basis of information maintained by a Private Party which could not be further verified through any document in the possession of assessee. It was the submission that in absence of any independent corroborative evidenced linking the assessee to entries appearing in the said Excel sheet, the documents lakes evidentiary credibility cannot be validly relied upon to make any addition. It was the submission that the AO has failed to establish any concrete nexus between the assessee and the entries in the said Excel sheet. The ld. AR also submitted that the cash trail could not be established for the aforesaid transactions, therefore the allegation of payment of ‘on-money’ and addition based thereupon cannot be sustained in the eyes of law. It is further submitted by the ld. AR that dates of cash payment also could not be mentioned or evident from the satisfaction note, show-cause notice or from the assessment order. The ld. AR further submitted that in the present matter full submission of Shri Imran Ansari or Shri Tabrez Shaikh were not provided to the assessee neither the alleged Excel sheet was provided to the assessee therefore the assessee remained deprived of any effective opportunity to rebut or to verify the veracity of such documents. The entire addition was made on one sided reliance on 3rd party submissions and documents which were never confronted or substantiated, in view of such proceedings conducted in disregard of procedural fairness, are vitiated in law, the resultant addition 6 , 6569, 6568, 6478, 6479 & 6480/Mum/2025 Manish Mali &Anr. therefore cannot be sustained. The ld. AR also submitted that the assessee has made a request to cross-examine the alleged persons but the same was denied which is evident from the noting’s of AO in assessment order in para-9.3. On the aspect of cross-examination, the ld. AR placed his reliance on the decision of Hon’ble Supreme Court in the case of Andaman Timber Industries vs. CCE [2015] 324 ELT 641(SC). The ld. AR further submitted that the identical issues are decided by the Co-ordinate Bench of ITAT, Mumbai in the following cases:
(1) Pravin K Purohit v/s DCIT Central Circle 4(2) in to 4744/M/2025 dated 15.10.2025. (2) Bhavana V Jain v/s ACIT Central Circle 4(2) in to 6365/M/2025 dated 10.12.2025. (3) Akhraj Chopra v/s DCIT Central Circle 4(2) in 5555/M/2025 dated 12.11.2025 and Lilaram v/s DCIT Central Circle 4(2) in ITA No.5554, 5557/Mum/2025 dated 12.11.2025 (4) Heena D Jhanglani v/s ITO 2(5), Mumbai in ITA No. 1665/M/2018 dated 11.01.2019. (5) Mamta S Gupta v/s ITO 2(5), Mumbai in ITA No. 1553/M/2021 dated 16.06.2022.
From the aforesaid decisions, the ld. AR drew our attention to a particular judgment in the case of Heena D. Jhanglani (supra) to enlighten that the information seized from the 3rd party would not be conclusive to prove the factum of alleged ‘on-money’ payment, without corroborative evidence, the relevant findings for the said judgments are extracted as under:
, 6569, 6568, 6478, 6479 & 6480/Mum/2025 Manish Mali &Anr. “I find substantial merit in the aforesaid submissions of the assessee. In my view, neither the information contained in the pen drive nor the statement recorded under section 132(4) of the Act from Shri Niranjan Hiranandani are enough to conclusively establish the factum of payment of on–money by the assessee. At best, they can raise a doubt or suspicion against the conduct of the assessee triggering further enquiry / investigation to find out and bring on record the relevant fact and material to conclusively prove the payment of on– money by the assessee over and above the declared sale consideration. Apparently, the Assessing Officer has failed to bring any such evidence / material on record to prove the payment of on– money by the assessee. More so, when the assessee from the very beginning has stoutly denied payment of on–money in cash. Notably, while dealing with a case involving similar nature of dispute concerning similar transaction with another concern of Hiranandani Group, the Tribunal in case of Shri Anil Jaggi v/s ACIT (supra) has held as under: –
“15. We shall now take up the case of the assessee on merits and deliberate on the validity of the addition of Rs. 2.23 crore made by the A.O on the ground that the assessee had made a payment of “on money” for purchase of flats from M/s Lakeview developers. We have perused the facts of the case and the material available on record on the basis of which the addition of Rs. 2.23 crore had been made in the hands of the assessee. We have further deliberated on the material placed on record and the contentions of the ld. A.R to drive home his contention that no payment of any “on money” was made by the assessee for purchase of flats from M/s Lakeview Developers. We find that the genesis of the conclusion of the A.O that the assessee had paid “on money” of Rs. 2.23 crore for purchase of property under consideration is based on the contents of the pen drive which was seized from the residence of an ex-employee of Hiranandani group. We have perused the print out of the pen drive (Page 42 of APB) and find ourselves to be in agreement with the view of the ld A.R that though against the heading “Amount of on money paid” the name, address and PAN No. of the assessee is mentioned alongwith the details of the property purchased by him, viz. Flat no.2501 in “Somerset” building from Lakeview Developers (a Hiranandani group concern), however, the same would not conclusively prove suppression of investment and payment of “on money” by the assessee for purchase of the property under consideration. We find that the information as emerges from the print out of the pen drive falls short of certain material facts, viz. date and mode of receipt of „on money‟, who had paid the money, to whom the money was paid, date of agreement and who had prepared the details, as a result whereof the adverse inferences as regards payment of “on money” by the assessee for purchase of the property under consideration remain uncorroborated. We further find that what was the source from where the information was received in the pen drive also remains a mystery till date.
, 6569, 6568, 6478, 6479 & 6480/Mum/2025 Manish Mali &Anr. We find that Sh. Niranjan Hiranandani in the course of his cross- examination had clearly stated that neither he was aware of the person who had made the entry in the pen drive, nor had with him any evidence Heena Dashrath Jhanglani that the assessee had paid any cash towards purchase of flat. We have deliberated on the fact that Sh. Niranjan Hiranandani in his statement recorded on oath in the course of the Search & seizure proceedings had confirmed that the amounts aggregating to Rs. 475.60 crore recorded in the pen drive were the onmoney received on sale of flats, which was offered as additional income under Sec. 132(4) and thereafter offered as such for tax in the petition filed before the Settlement commission. We are of the considered view that there is substantial force in the contention of the ld. A.R that mere admission of the amounts recorded in the pen drive as the additional income by Sh. Niranjan Hiranandani, falling short of any such material which would inextricably evidence payment of “on money” by the assessee would not lead to drawing of adverse inferences as regards the investment made by the assessee for purchase of the property under consideration. We rather hold a strong conviction that the very fact that the consideration paid by the assessee for purchase of the property under consideration when pitted against the „market value‟ fixed by the stamp valuation authority is found to be substantially high, further fortifies the veracity of the claim of the assessee that his investment made towards purchase of the property under consideration was well in order. We are of the considered view that though the material acted upon by the department for drawing of adverse inferences as regards payment of “on money” by the assessee formed a strong basis for doubting the investment made by the assessee for purchase of the property under consideration, but the same falling short of clinching material which would have irrefutably evidenced the said fact, thus, does not inspire much of confidence as regards the way they have been construed by the lower authorities for drawing of adverse inferences in the hands of the assessee. We thus are of a strong conviction that as the material relied upon by the lower authorities does not corroborate the adverse inferences drawn as regards the investment made by the assessee, therefore, the same cannot conclusively form a basis for concluding that the assessee had made payment of “on money” for purchase of the property under consideration. We thus in the backdrop of our aforesaid observations are of the considered view that the adverse inferences drawn by the A.O as regards payment of “on money” of Rs. 2.23 crore by the assessee for purchase of Flat No. 2501 from M/s Lakeview Developers are based on of premature observations of the A.O, which in the absence of any clinching evidence cannot be sustained. We thus are unable to subscribe to the view of the lower authorities and set aside the order of the 6569, 6568, 6478, 6479 & 6480/Mum/2025 Manish Mali &Anr. CIT(A) sustaining the addition of Rs. 2.23 crores in the hands of the assessee.”
In sum and substance, it was submitted by the Ld. AR that the Ld. AO did not summon the assessee at any stage during the course of the search proceedings, nor any efforts were made to cross verify the entries appearing in the impugned excel sheet with the assessee or to confront the assessee with any person allegedly connected to the said documents. The proceedings were conducted in a one-sided manner without affording the reasonable opportunities to the assessee to explain and rebut, this constitutes violation of the principle of natural justice.
In backdrop of the aforesaid submissions, it was the prayer by ld. AR that the additions made are arbitrary, with no evidence/material on record to prove the payment of ‘on-money’ by the assessee, which the assessee from very beginning has denied to have made such cash payments, therefore such additions are unsustainable in terms of the decisions of ITAT, Mumbai in identical cases emerged from the same search conducted in the Rubberwala Group, the appeal of assessee, therefore deserves to be allowed and the addition made is liable to struck down.
Per contra, the ld. CIT-DR representing the revenue submitted that during the search on Rubberwala Group certain touchable documents in the form of Excel sheet were found which were confronted to the Director and employee of 6569, 6568, 6478, 6479 & 6480/Mum/2025 Manish Mali &Anr. Rubberwala Group who were involved in process of sale of shops in Platinum Mall, wherein the assessee was also one of the buyers he submitted that a specific Excel sheet pertaining to assessee recorded therein a transaction of cheque amounting to Rs. 22,00,950/- and a transaction of cash received by the owners of Platinum Mall amounting to Rs. 21,42,550/- were duly recorded and when the statements of the aforesaid key persons were recorded, they have categorically admitted that such cash was received from the assessee, therefore no further doubt qua the cash transactions about the purchase of property which the assessee have made to the Rubberwala Group. It is also submitted that once payment cash by the assessee is accepted by the seller group, the addition was made based on material, evidence and admission by the related party, there was no need for any cross examination to be provided to the assessee. Under such circumstances, no further corroborative evidences are required to establish that there were cash payments by the assessee which were not disclosed by the assessee and remail unexplained, therefore falls within the ambit of section 69 as unexplained investment and the AO has rightly made the addition of those amounts in respective years when such payments were made for which the assessee could not make any substantial reply to dislodge the convictions of the AO and accordingly the addition was rightly made which was further examined by the ld. CIT(A) and had sustained the same. It was the submission that the assessee was unable to make any convincing submission before the AO to rebut the material seized during the search or to answer the queries raised by the AO. 11 , 6569, 6568, 6478, 6479 & 6480/Mum/2025 Manish Mali &Anr. With such submissions, ld. CIT-DR vehemently supported the orders of AO and CIT(A) and requested to sustain the same.
We have considered the rival submissions, perused the material available on record and the decisions / jurisprudence relied upon by the assessee.
Admittedly, as per the facts of present matter, during the search and seizure action on Rubberwala Group, certain incriminating material was found, relates to the assessee Shri Manish Mali, further confronted and admitted by Mr. Imran Ansari (employee of Rubberwala Group) and Mr. Tabrez Shaikh, the Director of RHIL. As per admission of the key persons of Rubberwala Group certain cash was paid by the buyers of Shops in Platinum Mall including the assessee Shri Manish Mali. However, the assessee had always denied the alleged payment of cash.
It is brought to our notice that identical issues involving cash payments for acquisition of Shops in Platinum Mall constructed by RHIL, cases of certain more assessees were also picked-up and assessed under section 153 of the Act.
In such cases ITAT, Mumbai had adopted a view that, if the statements used against the assessee are not provided, neither the cross examination of persons, whose statements were relied upon was provided, the assessee was kept deprived of reasonable opportunity to rebut in contradiction of the evidence and facts used against him, no addition can be made. The observations of Tribunal 12 , 6569, 6568, 6478, 6479 & 6480/Mum/2025 Manish Mali &Anr. in various cases are reproduced hereunder for the sake of interpretation in the present matter:
(1) Pravin K Purohit in to 4744/M/2025 dated 15.10.2025.
“18. From the records we also noticed that no statement was provided to the assessee, and none of the persons, whose statements were relied upon were produced for cross-examination. Even the extract of the statement mentioned in the assessment order does not indicate the name of the assessee.
19. Apart, the AO during the course of assessment also failed to provide the opportunity to cross examine of the witnesses, whose statements were relied upon by the revenue which resulted in 'breach of principles of natural justice'. In this regard, reliance is being placed upon the decision of Hon'ble Supreme Court in the case Andaman Timber Industries Vs. CCE reported in (2015)281 CTR 241 (SC) wherein it has been held that 'failure to give the assessee the opportunity to cross examine witness, whose statements are relied upon, results in breach of principles of Natural Justice. It is a serious flaw which renders the order a nullity'.
20. In the case of CIT Vs. Odeon Builders Pvt. ltd. (418ITR 315), it was held that the 'addition/disallowance made solely on third party information without subjecting it to further scrutiny and denying the opportunity of cross examination party renders the of the third addition/disallowance bad in law'
21. H.R. Mehta v/s Assistant Commissioner of Income-tax, Mumbai, 72 taxmann.com110 (Bombay) :
In the light of the fact that the money was advanced apparently by the account payee cheque and was repaid vide account payee cheque the least that the Assessing Officer should have done was to grant an opportunity to the assessee to meet the case against him by providing the material sought to be used against him in arriving before passing the order of assessment. This not having been done, the denial of such opportunity goes to root of the matter and strikes at the very foundation of the assessment and, therefore, renders the orders passed by the Commissioner (Appeals) and the Tribunal vulnerable. The assessee was bound to be provided with the material used against him apart from being permitting him to cross examine the deponents whose statements were relied upon by him. Despite the request seeking an opportunity to cross examine the deponents and furnish the assessee with copies of statements and disclose material, these were denied to him.
, 6569, 6568, 6478, 6479 & 6480/Mum/2025 Manish Mali &Anr. 22. Taking into consideration the entire facts and circumstances and legal prepositions as discussed by us above, we direct the AO to delete the addition, consequently these grounds raised by the assessee are allowed.”
(3) Bhavana V Jain in to 6365/M/2025 dated 10.12.2025.
“During the hearing, the learned AR apart from placing reliance upon the aforenoted two decisions rendered by the Co-ordinate Bench in similar circumstances also placed reliance upon another decision of the Co-ordinate Bench of the Tribunal in Akhraj Pukhraaj Chopra vs DCIT and Lilaram Vs DCIT in ITAs No.5553 and 5554/Mum/2025, vide order dated 12.11.2025, wherein similar addition was made on the basis of search and seizure action on Rubberwala Group. Apart from relying upon the orders passed by the lower authorities, the learned DR could not bring any material on record to deviate from the findings of the Co-ordinate Bench rendered in the aforenoted decisions in similar factual circumstances. Therefore, respectfully following the decisions of the Co-ordinate Bench cited supra, we do not find any merits even in the additions made under section 69 of the Act in the assessment year 2019-20, and the same is also deleted. Accordingly, the impugned additions made under section 69 of the Act in the assessment years 2017-18 to 2019-20 are deleted.”
5555/M/2025 dated 12.11.2025.
“18. From the records we also noticed that no statement was provided to the assessee, and none of the persons, whose statements were relied upon were produced for cross- examination. Even the extract of the statement mentioned in the assessment order does not indicate the name of the assessee.
Apart, the AO during the course of assessment also failed to provide the opportunity to cross examine of the witnesses, whose statements were relied upon by the revenue which resulted in 'breach of principles of natural justice. In this regard, reliance is being placed upon the decision of Hon'ble Supreme Court in the case of Andaman Timber Industries Vs. CCE reported in (2015)281 CTR 241 (SC) wherein it has been held that 'failure to give the assessee the opportunity to cross examine witness, whose statements are relied upon, results in breach of principles of Natural Justice. It is a serious flaw which renders the order a nullity'.
20. In the case of CIT Vs. Odeon Builders Pvt. ltd. (418ITR 315), it was held that the 'addition/disallowance made solely on third party information without subjecting it to further scrutiny and denying the opportunity of cross examination of the third party renders the addition/disallowance bad in law'.
, 6569, 6568, 6478, 6479 & 6480/Mum/2025 Manish Mali &Anr.
In the case of H.R. Mehta v/s Assistant Commissioner of Income-tax, Mumbai 72 taxmann.com110 (Bombay) wherein it was held as under In the light of the fact that the money was advanced apparently by the account payee cheque and was repaid vide account payee cheque the least that the Assessing Officer should have done was to grant an opportunity to the assessee to meet the case against him by providing the material sought to be used against him in arriving before passing the order of assessment. This not having been done, the denial of such opportunity goes to root of the matter and strikes at the very foundation of the assessment and, therefore, renders the orders passed by the Commissioner (Appeals) and the Tribunal vulnerable. The assessee was bound to be provided with the material used against him apart from being permitting him to cross examine the deponents whose statements were relied upon by him. Despite the request seeking an opportunity to cross examine the deponents and furnish the assessee with copies of statements and disclose material, these were denied to him.
Taking into consideration the entire facts and circumstances and legal prepositions as discussed by us above, we direct the AO to delete the addition, consequently these grounds raised by the assessee are allowed.
& 4744/Mum/2025, FY 2018-19 & 2020-21
As the facts and circumstances in these appeals are identical to for the A.Y 2017-18 (except variance in figures) and the decision rendered in above paragraph would apply mutatis mutandis for these appeals also. Accordingly, the grounds of appeal of the present appeals also stands allowed. In the result, all the appeals filed by the assessee stands allowed.”
14. In light of the facts and circumstances involved in the present matter, identical to the facts of cases decided by the ITAT Mumbai in various matters, relied upon by the assessee, in absence of any contradictory material, fact or decision submitted by the revenue to rebut in defence., respectfully following the observation and legal prepositions by the Co-ordinate Bench of ITAT, we find substance in the contention raised by ld. AR. Accordingly, Ground Nos. 2 , 6569, 6568, 6478, 6479 & 6480/Mum/2025 Manish Mali &Anr. to 8 raised by the assessee, assailing the sole issue qua the addition under section 69 are allowed, the ld. AO is, thus, directed to vacate the addition made u/s 69 of the Act.
15. Regarding Ground No.1 to challenge the validity of notice issued under section 153C without DIN in blatant contravention of the Circular No. 19/2019, dated 14-8-2019 issued by the CBDT. The same is dismissed as not pressed.
Since, the lead appeal of assessee in for AY 2017-18 stands allowed, thus the remaining two appeals of the assessee in 6568/Mum/2025 for AY 2018-19 and 2019-20 involving identical issues are also allowed following our aforesaid observations.
In result, the appeal of assessee in 6569 & 6568/Mum/2025, stands allowed in terms of our observations.
Mehta for AY 2018-19 and 2019-20 The issues in the appeal of assessee Darpan Hiralal Mehta are also lies within the same compass, identical to the issues involved in the case of Mr Manish Mali in emerged from search and seizure operations in the Rubberwala Group, having issue of cash payment by the assessee in the 6569, 6568, 6478, 6479 & 6480/Mum/2025 Manish Mali &Anr. form of on-money and concluded with assessment u/s 153C of the Act with an addition made u/s 69 of the Act, thus stands on same parity. Both the rival parties made similar arguments and submissions, thus, our observations and decision in the case of Mr Manish Mali in shall apply mutatis mutandis to these appeals in ITA 5488 & 5489/Mum/2025 also.
Consequently, we allow & 5489/Mum/2025 of the assessee, in terms of our observation.
Megharam Choudhary for AY 2019-20, 2018-19 and 2017-18 The issues in the appeals of assessee Dinesh Megharam Choudhary are also lies within the same compass, identical to the issues involved in the case of Mr Manish Mali in emerged from search and seizure operations in the Rubberwala Group, having issue of cash payment by the assessee in the form of on-money and concluded with assessment u/s 153C of the Act with an addition made u/s 69 of the Act, thus stands on same parity.
Both the parties made similar arguments and submissions, except the revenues additional submission that the assessment in these cases were passed u/s 144 of the Act, however, ld. CIT(A) decided the issue on merits. On this aspect it would be pertinent to mention that the Ld. CIT(A) is also conferred with the powers and obligations coterminous with that of AO, thus his decision coincides with the decision of ld. AO. Under such circumstances, the issue 17
ITA Nos. 6571, 6569, 6568, 6478, 6479 & 6480/Mum/2025 Manish Mali &Anr. remains at same pedestal, accordingly, our observations and decision in the case of Mr Manish Mali in shall apply mutatis mutandis to the 6479 & 6480/Mum/2025 also. Consequently, we allow 6479 & 6480/Mum/2025, in terms of our observation.
In combine result, all the captioned appeals of the respective assessee’s are allowed, in terms of our aforesaid observations.
Order pronounced in the open court on 24-12-2025.