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Facts
A search and seizure operation on the Rubberwala Group, developer of a shop purchased by the assessee, led to allegations that the assessee made 'on-money' cash payments for the shop. This was based on third-party statements (of employees Imran Ansari and Tabrez Shaikh) and Excel sheets found on a pen drive. The Assessing Officer (AO) made additions under Section 69 of the Income Tax Act for these alleged unexplained investments, which were confirmed by the CIT(A).
Held
The Tribunal found substantial merit in the assessee's contentions, noting that the alleged incriminating material was recovered from third-party premises and not adequately linked to the assessee. Crucially, the assessee was not provided with the material or given an opportunity to cross-examine the persons whose statements were relied upon. Upholding principles of natural justice and citing precedents, the Tribunal ruled that additions made solely on uncorroroborated third-party statements, without confrontation and cross-examination, cannot be sustained and are thus vitiated. Therefore, the additions for all assessment years were deleted.
Key Issues
Whether additions made under Section 69 of the Income Tax Act, based solely on third-party statements and material recovered during a search, are sustainable when the assessee was not confronted with such material and denied the opportunity for cross-examination.
Sections Cited
153C, 69, 132, 132(4), 65B, 153
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI BENCH “D” MUMBAI
Before: SHRI OM PRAKASH KANT (ACCOUNTANT & SHRI RAHUL CHAUDHARY
ORDER Per O. P. Kant (A.M.) Per O. P. Kant (A.M.)
These three hree appeals by the Assessee are directed against directed against the common order dated order dated 09.08.2025 passed by the Ld. passed by the Ld. Commissioner of Income Tax Appeals Commissioner of Income Tax Appeals 52, [in short Ld. CIT (A)] [in short Ld. CIT (A)] for Assessment Year for Assessment Year 2017-18, 2018-19 and 201 2019-20. The issue in dispute being common in in dispute being common in all three appeals, same were heard appeals, same were heard together and disposed of by way of a consolidated order for the together and disposed of by way of a consolidated order for the together and disposed of by way of a consolidated order for the sake of convenience and avoid repetition of fact. sake of convenience and avoid repetition of fact. sake of convenience and avoid repetition of fact.
Firstly, we take up the appeal of the assessee for A.Y. Firstly, we take up the appeal of the assessee for A.Y. Firstly, we take up the appeal of the assessee for A.Y. 2017-18. The grounds raised
by the assessee in appeal ar . The grounds raised by the assessee in appeal ar . The grounds raised by the assessee in appeal are reproduced as under: reproduced as under:- 1.
1. The Ld. CIT(A) erred in confirming the stand of the The Ld. CIT(A) erred in confirming the stand of the A.O. regarding the assessment order passed u/s 153C A.O. regarding the assessment order passed u/s 153C A.O. regarding the assessment order passed u/s 153C of the Income Tax Act, 1961. The order is bad-in-law, of the Income Tax Act, 1961. The order is bad of the Income Tax Act, 1961. The order is bad vitiated by procedural lapses, and violates the principles vitiated by procedural lapses, and violates the principles vitiated by procedural lapses, and violates the principles of natural j of natural justice, as the materials and statements relied ustice, as the materials and statements relied upon in issuing notice u/s 153C were not furnished to upon in issuing notice u/s 153C were not furnished to upon in issuing notice u/s 153C were not furnished to the appellant, and no opportunity for cross examination the appellant, and no opportunity for cross examination the appellant, and no opportunity for cross examination was provided. The order ought to be quashed on these was provided. The order ought to be quashed on these was provided. The order ought to be quashed on these grounds. grounds. 2.
2. The Ld. CIT(A) erred in upholding the addition of Rs. the addition of Rs. 2,00,000/ 2,00,000/-w/s 69 as unexplained investment allegedly w/s 69 as unexplained investment allegedly paid in cash towards the purchase of shop premises paid in cash towards the purchase of shop premises paid in cash towards the purchase of shop premises over and above the agreement value. The addition is over and above the agreement value. The addition is over and above the agreement value. The addition is bad bad-in-law, law, arbitrary, arbitrary, and and based based on on surmises, surmises, conjectures, and unreliable evide conjectures, and unreliable evidence with no concrete nce with no concrete material to substantiate the alleged cash payment. There material to substantiate the alleged cash payment. There material to substantiate the alleged cash payment. There is no corroborative evidence of actual cash payment is no corroborative evidence of actual cash payment is no corroborative evidence of actual cash payment made by the appellant. made by the appellant.
3. The authorities failed to appreciate that there is no The authorities failed to appreciate that there is no material on record proving that the appellant paid cash material on record proving that the appellant material on record proving that the appellant of Rs. 2,00,000/ of Rs. 2,00,000/- in respect of the shop premises in respect of the shop premises purchase. Reliance solely on statements or third-party purchase. Reliance solely on statements or third purchase. Reliance solely on statements or third documents, documents, documents, without without without independent independent independent verification verification verification or or or opportunity opportunity opportunity for for for rebuttal, rebuttal, rebuttal, renders renders renders the the the addition addition addition unsustainable. unsustainable. 4.
4. The CIT(A) erred in confirming the addition of Rs. ing the addition of Rs. 2,00,000/ 2,00,000/- in the assessment year 2017 in the assessment year 2017-18, without any material or document conclusively demonstrating any material or document conclusively demonstrating any material or document conclusively demonstrating payment during that year. The absence of date or payment during that year. The absence of date or payment during that year. The absence of date or linkage to the relevant assessment year makes the linkage to the relevant assessment year makes the linkage to the relevant assessment year makes the addition illegal and contrary addition illegal and contrary to provisions of law. to provisions of law. 3. Consequent upon a search and seizure operation executed Consequent upon a search and seizure operation executed Consequent upon a search and seizure operation executed under section 132 of the Income under section 132 of the Income-tax Act, 1961, on 17 tax Act, 1961, on 17thMarch 2021 in relation to the Rubberwala Group, including its flagship 2021 in relation to the Rubberwala Group, including its flagship 2021 in relation to the Rubberwala Group, including its flagship concern M/s Rubberwala Housing & Infrastructure Lt concern M/s Rubberwala Housing & Infrastructure Lt concern M/s Rubberwala Housing & Infrastructure Ltd. (hereinafter “RHIL RHIL”), and on the basis of the documents and ”), and on the basis of the documents and other material alleged to have been recovered and seized during other material alleged to have been recovered and seized during other material alleged to have been recovered and seized during the said action, consequential proceedings under section 153C the said action, consequential proceedings under section 153C the said action, consequential proceedings under section 153C of the Act were instituted against the assessee. of the Act were instituted against the assessee.
3.1 Briefly stated, the facts of the case are that the assessee stated, the facts of the case are that the assessee stated, the facts of the case are that the assessee filed its return of income for the year under consideration on filed its return of income for the year under consideration on filed its return of income for the year under consideration on 29th August 2017, declaring a total income of 2017, declaring a total income of 2017, declaring a total income of ₹10,81,920/-. Subsequently, a search and seizure operation under section Subsequently, a search and seizure operation under section Subsequently, a search and seizure operation under section 132 of the Income 132 of the Income-tax Act, 1961 (hereinafter referred to as Act, 1961 (hereinafter referred to as “the Act”) was carried out on the ) was carried out on the “Rubberwala” Group, including its Group, including its flagship concern, M/s Rubberwala Housing & Infrastructure flagship concern, M/s Rubberwala Housing & Infrastructure flagship concern, M/s Rubberwala Housing & Infrastructure Ltd. (RHIL).During the course of the said search action, it was Ltd. (RHIL).During the course of the said search action, it was Ltd. (RHIL).During the course of the said search action, it was alleged on the basis of the alleged on the basis of the material gathered that the assessee material gathered that the assessee had purchased a shop in the “ had purchased a shop in the “Platinum Mall Platinum Mall” building at Girgaon, Mumbai, and had paid a sum of Girgaon, Mumbai, and had paid a sum of ₹12,64,050/ 12,64,050/- in cash towards the acquisition of the said property. It was further towards the acquisition of the said property. It was further towards the acquisition of the said property. It was further alleged that the said cash payments were ma alleged that the said cash payments were made by the assessee de by the assessee over Assessment Years 2017 over Assessment Years 2017-18, 2018-19 and 2019 19 and 2019-20 in the amounts of ₹2,00,000/-, ₹6,58,600/- and and ₹4,05,450/- ₹ respectively.On the basis of the aforesaid material, proceedings respectively.On the basis of the aforesaid material, proceedings respectively.On the basis of the aforesaid material, proceedings under section 153C of the Act were thereafter initiated in the under section 153C of the Act were thereafter initiated in the under section 153C of the Act were thereafter initiated in the case of the assessee case of the assessee.
During the course of the search proceedings, statements of During the course of the search proceedings, statements of During the course of the search proceedings, statements of certain key persons connected with the transaction were certain key persons connected with the transaction were certain key persons connected with the transaction were recorded, most notably that of Shri Imran Ansari, an employee recorded, most notably that of Shri Imran Ansari, an employee recorded, most notably that of Shri Imran Ansari, an employee stated to be handling the sale and registration of sh stated to be handling the sale and registration of sh stated to be handling the sale and registration of shops in the “Platinum Mall”. Further, a pen drive of 16 GB capacity was ”. Further, a pen drive of 16 GB capacity was ”. Further, a pen drive of 16 GB capacity was stated to have been recovered from his residence, which, as per stated to have been recovered from his residence, which, as per stated to have been recovered from his residence, which, as per his purported statement, was claimed to contain Excel files his purported statement, was claimed to contain Excel files his purported statement, was claimed to contain Excel files allegedly reflecting details of cash components received from allegedly reflecting details of cash components received from allegedly reflecting details of cash components received from various purchasers various purchasers.
Relying upon the aforesaid material, including statements Relying upon the aforesaid material, including statements Relying upon the aforesaid material, including statements of third parties, the Assessing Officer issued a show of third parties, the Assessing Officer issued a show of third parties, the Assessing Officer issued a show-cause notice to the assessee. It was recorded in the statement of Shri notice to the assessee. It was recorded in the statement of Shri notice to the assessee. It was recorded in the statement of Shri Imran Ansari that he had been in the employ of the Rubberwala Imran Ansari that he had been in the employ of the Rubberwala Imran Ansari that he had been in the employ of the Rubberwala Group since 2010 and was responsible for the sale and 2010 and was responsible for the sale and 2010 and was responsible for the sale and registration of shops in the “ registration of shops in the “Platinum Mall”. It was further ”. It was further stated that the consideration for the shops comprised two stated that the consideration for the shops comprised two stated that the consideration for the shops comprised two components, a cash component and a banking a cash component and a banking a cash component and a banking-channel component, the the the apportionment apportionment apportionment of of of which which which was was was allegedly a a determined by Shri Tabrez Shaikh (Director/CMD of RHIL and determined by Shri Tabrez Shaikh (Director/CMD of RHIL and determined by Shri Tabrez Shaikh (Director/CMD of RHIL and promoter of the Rubberwala Group), and that details of such promoter of the Rubberwala Group), and that details of such promoter of the Rubberwala Group), and that details of such transactions were maintained by Shri Imran Ansari in Excel transactions were maintained by Shri Imran Ansari in Excel transactions were maintained by Shri Imran Ansari in Excel sheets.The aforesaid assertion was corroborated by the sheets.The aforesaid assertion was corroborated by the sheets.The aforesaid assertion was corroborated by the recovery, during the search at the residence of Shri Imran ng the search at the residence of Shri Imran ng the search at the residence of Shri Imran Ansari, of a 16 GB pen drive which he admitted contained the Ansari, of a 16 GB pen drive which he admitted contained the Ansari, of a 16 GB pen drive which he admitted contained the data relating to the sale of shops in Platinum Mall. He also data relating to the sale of shops in Platinum Mall. He also data relating to the sale of shops in Platinum Mall. He also disclosed that he would escort purchasers to one Shri Abrar disclosed that he would escort purchasers to one Shri Abrar disclosed that he would escort purchasers to one Shri Abrar Ahmed, who, upon receiving ca Ahmed, who, upon receiving cash, would thereafter inform Shri sh, would thereafter inform Shri Imran Ansari so that the diaries and the Excel records could be Imran Ansari so that the diaries and the Excel records could be Imran Ansari so that the diaries and the Excel records could be updated.
The assessee, however, categorically denied having made The assessee, however, categorically denied having made The assessee, however, categorically denied having made any cash payments to any person any cash payments to any person and disclaimed knowledge of disclaimed knowledge of the the individuals individuals named named in in the the third-party th party statements. statements. Importantly, the assessee sought production of the statements Importantly, the assessee sought production of the statements Importantly, the assessee sought production of the statements and other adverse material relied upon by the Revenue and and other adverse material relied upon by the Revenue and and other adverse material relied upon by the Revenue and requested an opportunity for cross requested an opportunity for cross-examination of the persons examination of the persons whose depositions were relied upon whose depositions were relied upon.These requests we hese requests were not acceded to by the learned Assessing Officer. Relying upon the acceded to by the learned Assessing Officer. Relying upon the acceded to by the learned Assessing Officer. Relying upon the search findings in the case of the RHIL Group and the fact that search findings in the case of the RHIL Group and the fact that search findings in the case of the RHIL Group and the fact that the RHIL Group purportedly offered 8% of its overall the RHIL Group purportedly offered 8% of its overall the RHIL Group purportedly offered 8% of its overall unaccounted receipts, the learned Assessing Officer made an unaccounted receipts, the learned Assessing Officer made an unaccounted receipts, the learned Assessing Officer made an addition of ₹2,00,000/ 2,00,000/- to the assessee’s income for A.Y. 2017 s income for A.Y. 2017- 18 under section 69 of the Act, treating the amount as 18 under section 69 of the Act, treating the amount as 18 under section 69 of the Act, treating the amount as unexplained cash investment towards the shop allegedly unexplained cash investment towards the shop allegedly unexplained cash investment towards the shop allegedly acquired by the assessee acquired by the assessee.
6. Aggrieved by the assessment order, the assessee carried Aggrieved by the assessment order, the assessee carried Aggrieved by the assessment order, the assessee carried the matter in appeal before the learned Commissioner of er in appeal before the learned Commissioner of er in appeal before the learned Commissioner of Income-tax (Appeals), who confirmed the additions in respect of tax (Appeals), who confirmed the additions in respect of tax (Appeals), who confirmed the additions in respect of the alleged cash component of the shop purchase, amounting to the alleged cash component of the shop purchase, amounting to the alleged cash component of the shop purchase, amounting to ₹2,00,000/- in A.Y. 2017 in A.Y. 2017-18, ₹6,58,600/- in A.Y. 2018 in A.Y. 2018-19, and ₹4,05,450/- in A.Y. in A.Y. 2019-20. Still aggrieved by the additions so 20. Still aggrieved by the additions so sustained by the learned CIT(A), the assessee has preferred the sustained by the learned CIT(A), the assessee has preferred the sustained by the learned CIT(A), the assessee has preferred the present appeals before this Tribunal present appeals before this Tribunal.
Before us, it was vehemently submitted on behalf of the Before us, it was vehemently submitted on behalf of the Before us, it was vehemently submitted on behalf of the Assessee that the incriminating material recovere ssessee that the incriminating material recovere ssessee that the incriminating material recovered from the possession of the Rubberwala Group does not, either possession of the Rubberwala Group does not, either possession of the Rubberwala Group does not, either prima facie or otherwise, implicate the assessee. It was contended that or otherwise, implicate the assessee. It was contended that or otherwise, implicate the assessee. It was contended that the learned CIT(A) erred in affirming the Assessing Officer’s the learned CIT(A) erred in affirming the Assessing Officer’s the learned CIT(A) erred in affirming the Assessing Officer’s conclusion notwithstanding the Revenue’s failure to produce conclusion notwithstanding the Revenue’s failure to produce conclusion notwithstanding the Revenue’s failure to produce the third-party statements relied upon and without affording party statements relied upon and without affording party statements relied upon and without affording the assessee an opportunity for cross the assessee an opportunity for cross-examination of those examination of those witnesses. Further submitted was that the material so witnesses. Further submitted was that the material so witnesses. Further submitted was that the material so referenced cannot be treated as admissible evidence against the referenced cannot be treated as admissible evidence against the referenced cannot be treated as admissible evidence against the assessee in law a assessee in law and, in the absence of any cogent or nd, in the absence of any cogent or corroborative link between such material and the assessee, no corroborative link between such material and the assessee, no corroborative link between such material and the assessee, no addition under section 69 of the Act can be sustained addition under section 69 of the Act can be sustained addition under section 69 of the Act can be sustained. Any such addition would be founded on conjecture and assumption. addition would be founded on conjecture and assumption. addition would be founded on conjecture and assumption. Reliance was placed upon the judgment in Pravin Khetaramm Pravin Khetaramm Reliance was placed upon the judgment Purohit Purohit Purohit v. v. v. DCIT, DCIT, DCIT, Central Central Central Circle, Circle, Circle, Mumbai Mumbai Mumbai (ITA (ITA (ITA No. No. No. 4742/4743/4744/Mum/2025) 4742/4743/4744/Mum/2025).
The rival submissions were heard and the material on The rival submissions were heard and the material on The rival submissions were heard and the material on record was perused. Substantial merit is found in the perused. Substantial merit is found in the perused. Substantial merit is found in the contentions advanced on behalf of the assessee. It contentions advanced on behalf of the assessee. It contentions advanced on behalf of the assessee. It is a well- settled principle of law that where an addition is sought to be settled principle of law that where an addition is sought to be settled principle of law that where an addition is sought to be made solely on the basis of a third made solely on the basis of a third-party statement or on party statement or on material alleged to belong to or relate to the assessee, the material alleged to belong to or relate to the assessee, the material alleged to belong to or relate to the assessee, the assessee must be confronted with such material and afforded a assessee must be confronted with such material and afforded a assessee must be confronted with such material and afforded a meaningful and effective opportunity to cross meaningful and effective opportunity to cross meaningful and effective opportunity to cross-examine the persons whose statements are relied upon. In the absence of persons whose statements are relied upon. In the absence of persons whose statements are relied upon. In the absence of such confrontation and opportunity for cross such confrontation and opportunity for cross-examination, the examination, the impugned addition cannot be sustained and the assessment impugned addition cannot be sustained and the assessment impugned addition cannot be sustained and the assessment stands vitiated.
8.1 In the present case, the alleged incriminating material In the present case, the alleged incriminating material In the present case, the alleged incriminating material namely, the pen namely, the pen-drive, Excel sheets and the statements drive, Excel sheets and the statements emanated emanated exclusively exclusively from from third-party third party premises.No premises documentary evidence evidencing payment of any “ documentary evidence evidencing payment of any “ documentary evidence evidencing payment of any “on-money” by the assessee (such as cash by the assessee (such as cash receipts, vouchers or bank receipts, vouchers or bank records issued by or emanating from the assessee) was records issued by or emanating from the assessee) was records issued by or emanating from the assessee) was recovered from the searched premises. Mere entries in a third recovered from the searched premises. Mere entries in a third recovered from the searched premises. Mere entries in a third- party Excel sheet, without more, cannot be treated as party Excel sheet, without more, cannot be treated as party Excel sheet, without more, cannot be treated as substantive evidence substantive evidence as such material must be authenticated such material must be authenticated, corroborated and linked to the assessee by independent and corroborated and linked to the assessee by independent and corroborated and linked to the assessee by independent and cogent evidence. No corroborative evidence of an actual cash cogent evidence. No corroborative evidence of an actual cash cogent evidence. No corroborative evidence of an actual cash payment by the assessee has been placed on the record. Nor payment by the assessee has been placed on the record. Nor payment by the assessee has been placed on the record. Nor were the pen-drive or the statements of Shri Imran Ansari or drive or the statements of Shri Imran Ansari or drive or the statements of Shri Imran Ansari or Shri Tabrez Shaikh supplied to the assessee for inspection or aikh supplied to the assessee for inspection or aikh supplied to the assessee for inspection or for the purpose of cross for the purpose of cross-examination. It is a trite principle of examination. It is a trite principle of law that suspicion, however strong, cannot take the place of law that suspicion, however strong, cannot take the place of law that suspicion, however strong, cannot take the place of proof; untested and uncorroborated third proof; untested and uncorroborated third-party admissions party admissions cannot be allowed to con cannot be allowed to constitute the sole basis for an addition stitute the sole basis for an addition under section 69. The Revenue has accordingly failed to under section 69. The Revenue has accordingly failed to under section 69. The Revenue has accordingly failed to discharge the onus cast upon it of producing credible, discharge the onus cast upon it of producing credible, discharge the onus cast upon it of producing credible, independent and cogent material establishing that the assessee independent and cogent material establishing that the assessee independent and cogent material establishing that the assessee made any payment in cash over and above the made any payment in cash over and above the made any payment in cash over and above the recorded consideration. In line with these principles, the Coordinate consideration. In line with these principles, the Coordinate consideration. In line with these principles, the Coordinate Bench in Pravin Khetaramm Purohit v. DCIT (supra) Pravin Khetaramm Purohit v. DCIT (supra) Pravin Khetaramm Purohit v. DCIT (supra) has held that where additions rest solely on third held that where additions rest solely on third-party statements party statements or material and the assessee is not afforded confrontation and or material and the assessee is not afforded confrontation and or material and the assessee is not afforded confrontation and an opportunity pportunity for for cross-examination, cross examination, the the addition addition is is unsustainable.:-
“8. We have heard the arguments for both the parties and have also We have heard the arguments for both the parties and have also We have heard the arguments for both the parties and have also perused the material placed on record, judgements cited before me and perused the material placed on record, judgements cited before me and perused the material placed on record, judgements cited before me and the orders passed by the revenue authorities. From t the orders passed by the revenue authorities. From t the orders passed by the revenue authorities. From the records, we noticed that the assessment was completed u/s 153C on account of the noticed that the assessment was completed u/s 153C on account of the noticed that the assessment was completed u/s 153C on account of the fact that a search and seizure action was conducted on 17.03.2021 on fact that a search and seizure action was conducted on 17.03.2021 on fact that a search and seizure action was conducted on 17.03.2021 on Rubberwala group. In search action, premises of M/s. Rubberwala Rubberwala group. In search action, premises of M/s. Rubberwala Rubberwala group. In search action, premises of M/s. Rubberwala Housing & Infrastructure Ltd (RHIL), it Housing & Infrastructure Ltd (RHIL), its promoter and director s promoter and director-Shri Tabrez Shaikh, and a key employee of Rubberwala group Shri Imran Tabrez Shaikh, and a key employee of Rubberwala group Shri Imran Tabrez Shaikh, and a key employee of Rubberwala group Shri Imran Ansari, who was handling sale & registration of shops in “Platinum Mall” Ansari, who was handling sale & registration of shops in “Platinum Mall” Ansari, who was handling sale & registration of shops in “Platinum Mall” project of RHIL were covered. Among others, statement project of RHIL were covered. Among others, statement project of RHIL were covered. Among others, statement of these persons were recorded persons were recorded on oath onvarious dates during the course of on oath onvarious dates during the course of search as well as post search proceedings. The employee of Rubberwala search as well as post search proceedings. The employee of Rubberwala search as well as post search proceedings. The employee of Rubberwala group confirmed that the cash has been collected from the respective group confirmed that the cash has been collected from the respective group confirmed that the cash has been collected from the respective buyers of the shops. However, on the other hand, the assessee denied buyers of the shops. However, on the other hand, the assessee denied buyers of the shops. However, on the other hand, the assessee denied payment of cash. We noticed that during the search a pendrive with the ayment of cash. We noticed that during the search a pendrive with the ayment of cash. We noticed that during the search a pendrive with the details of cash transactions with respect to Rubberwala group was details of cash transactions with respect to Rubberwala group was details of cash transactions with respect to Rubberwala group was found, which was confirmed through statement of Shri Imran Ansari found, which was confirmed through statement of Shri Imran Ansari found, which was confirmed through statement of Shri Imran Ansari recorded U/s 132(4) of the Act and on this basis, 153 recorded U/s 132(4) of the Act and on this basis, 153 recorded U/s 132(4) of the Act and on this basis, 153C order was framed and the same was upheld by the Ld.CIT(A). framed and the same was upheld by the Ld.CIT(A).
We noticed that Ld. CIT(A) although referred the decision of the We noticed that Ld. CIT(A) although referred the decision of the We noticed that Ld. CIT(A) although referred the decision of the coordinate bench in case of Rajesh Jain on identical issue but misplace coordinate bench in case of Rajesh Jain on identical issue but misplace coordinate bench in case of Rajesh Jain on identical issue but misplace its reliance. After having gone through the basic facts its reliance. After having gone through the basic facts its reliance. After having gone through the basic facts of Rajesh Jain case which is mentioned by Ld. CIT(A) in its order and the same is case which is mentioned by Ld. CIT(A) in its order and the same is case which is mentioned by Ld. CIT(A) in its order and the same is reproduced as under: reproduced as under:
5.1. On 17.03.2021, the residential premise of the assessee was also On 17.03.2021, the residential premise of the assessee was also On 17.03.2021, the residential premise of the assessee was also covered by way of search action u/s 132 of the IT Act, 1961. Search action covered by way of search action u/s 132 of the IT Act, 1961. Search action covered by way of search action u/s 132 of the IT Act, 1961. Search action was also initiated on Rubberwala group on 17.03.2021. In such action o initiated on Rubberwala group on 17.03.2021. In such action o initiated on Rubberwala group on 17.03.2021. In such action along with premises (offices/sites/others) of Rubberwala group entities, along with premises (offices/sites/others) of Rubberwala group entities, along with premises (offices/sites/others) of Rubberwala group entities, residences of various key persons including its promoter and director Shri residences of various key persons including its promoter and director Shri residences of various key persons including its promoter and director Shri Tabrez Shaikh, and Shri Imran Ansari Tabrez Shaikh, and Shri Imran Ansari - a key employee of Rubberwala mployee of Rubberwala group handling sale & registration of shops in “Platinum Mall” project of group handling sale & registration of shops in “Platinum Mall” project of group handling sale & registration of shops in “Platinum Mall” project of RHIL were covered under section 132 of the Act. Among others, statement RHIL were covered under section 132 of the Act. Among others, statement RHIL were covered under section 132 of the Act. Among others, statement of these persons were recorded on oath on various dates during search as of these persons were recorded on oath on various dates during search as of these persons were recorded on oath on various dates during search as well as post se well as post search proceedings. 5.2. During the action on Rubberwala Group, among other, residence During the action on Rubberwala Group, among other, residence During the action on Rubberwala Group, among other, residence (at 109, 2nd Floor, Prabhat Sadan, 109/120 RBC Marg, Agripada, Mumbai (at 109, 2nd Floor, Prabhat Sadan, 109/120 RBC Marg, Agripada, Mumbai (at 109, 2nd Floor, Prabhat Sadan, 109/120 RBC Marg, Agripada, Mumbai Central - 400011) of Shri Imran Ashfaque Ansari was covered under 400011) of Shri Imran Ashfaque Ansari was covered under section 132 of the I.T. Act section 132 of the I.T. Act, 1961. His statement was also recorded on oath , 1961. His statement was also recorded on oath at his residence. Vide question no. 11 of the said statement dt. 17.03.2021, at his residence. Vide question no. 11 of the said statement dt. 17.03.2021, at his residence. Vide question no. 11 of the said statement dt. 17.03.2021, Shri Imran Ansari was questioned about his roles and responsibilities in Shri Imran Ansari was questioned about his roles and responsibilities in Shri Imran Ansari was questioned about his roles and responsibilities in M/s. Rubberwala Housing & Infrastructure Ltd (RHIL). In re M/s. Rubberwala Housing & Infrastructure Ltd (RHIL). In re M/s. Rubberwala Housing & Infrastructure Ltd (RHIL). In response, Shri Imran Ansari stated that he has been working with Rubberwala group of Imran Ansari stated that he has been working with Rubberwala group of Imran Ansari stated that he has been working with Rubberwala group of entities since 2010 and inter entities since 2010 and inter-alia handling sale and registration of the alia handling sale and registration of the shops shops shops in in in “PlatinumMall” “PlatinumMall” “PlatinumMall” Project Project Project of of of M/s. M/s. M/s. Rubberwala Rubberwala Rubberwala Housing Housing Housing & & & Infrastructure Ltd (RHIL). Infrastructure Ltd (RHIL). 5.3. Shri Im Shri Imran Ansari in his response to question no. 13 & 14 of the ran Ansari in his response to question no. 13 & 14 of the said statement explained the complete procedure of the of the sale of said statement explained the complete procedure of the of the sale of said statement explained the complete procedure of the of the sale of shops in the “Platinum Mall” project. While explaining further about the shops in the “Platinum Mall” project. While explaining further about the shops in the “Platinum Mall” project. While explaining further about the price structure of the shops, Shri Imran Ansari in resp price structure of the shops, Shri Imran Ansari in resp price structure of the shops, Shri Imran Ansari in response to Q. no. 15 categorically revealed that the total price of the shops contains cash categorically revealed that the total price of the shops contains cash categorically revealed that the total price of the shops contains cash component and banking channel component, and these components are component and banking channel component, and these components are component and banking channel component, and these components are decided by Shri Tabrez Shaikh (Director/CMD of RHIL and Promoter of decided by Shri Tabrez Shaikh (Director/CMD of RHIL and Promoter of decided by Shri Tabrez Shaikh (Director/CMD of RHIL and Promoter of Rubberwala Group). On probing fur Rubberwala Group). On probing further, Shri Imran Ansari, in response to ther, Shri Imran Ansari, in response to Q. no. 16, stated that these prices, as decided by Shri Tabrez Shaikh, are Q. no. 16, stated that these prices, as decided by Shri Tabrez Shaikh, are Q. no. 16, stated that these prices, as decided by Shri Tabrez Shaikh, are communicated to him orally. He also revealed in response to Q. no. 17 of communicated to him orally. He also revealed in response to Q. no. 17 of communicated to him orally. He also revealed in response to Q. no. 17 of the said statement that data related to shops is maintained by him i the said statement that data related to shops is maintained by him i the said statement that data related to shops is maintained by him in excel sheets. Corroborating to the fact that data is being maintained by Shri sheets. Corroborating to the fact that data is being maintained by Shri sheets. Corroborating to the fact that data is being maintained by Shri Imran Ansari in excel sheet, during search proceedings at the residence of Imran Ansari in excel sheet, during search proceedings at the residence of Imran Ansari in excel sheet, during search proceedings at the residence of Shri Imran Ansari, a 16GB Pendrive was retrieved from his possession. The Shri Imran Ansari, a 16GB Pendrive was retrieved from his possession. The Shri Imran Ansari, a 16GB Pendrive was retrieved from his possession. The said pen drive is accepted said pen drive is accepted by Shri Imran Ansari belonging to him and he by Shri Imran Ansari belonging to him and he also accepted that this pen drive is containing data maintained for the sale also accepted that this pen drive is containing data maintained for the sale also accepted that this pen drive is containing data maintained for the sale of shops in Platinum Mall. Shri Imran Ansari explained that this data is of shops in Platinum Mall. Shri Imran Ansari explained that this data is of shops in Platinum Mall. Shri Imran Ansari explained that this data is prepared by him. Shri Imran Ansari’s this acceptance also cor prepared by him. Shri Imran Ansari’s this acceptance also cor prepared by him. Shri Imran Ansari’s this acceptance also corroborates with the fact that the said data was retrieved from the residential premises of the fact that the said data was retrieved from the residential premises of the fact that the said data was retrieved from the residential premises of Shri Imran Ansari and not from any office of Rubberwala Group. Shri Imran Ansari and not from any office of Rubberwala Group. Shri Imran Ansari and not from any office of Rubberwala Group. 5.4. It was ascertained that the data is being maintained by Shri It was ascertained that the data is being maintained by Shri It was ascertained that the data is being maintained by Shri Imran Ansari in an excel file namely Imran Ansari in an excel file namely “consolidated 1 2 3 balance”. In the “consolidated 1 2 3 balance”. In the said file sheets with different name viz “Master”, “Payment” and “Cheque” said file sheets with different name viz “Master”, “Payment” and “Cheque” said file sheets with different name viz “Master”, “Payment” and “Cheque” etc. are found to be maintained. It is also found out that in respect of the etc. are found to be maintained. It is also found out that in respect of the etc. are found to be maintained. It is also found out that in respect of the sale of shops in the said project, comprehensive data is being maint sale of shops in the said project, comprehensive data is being maint sale of shops in the said project, comprehensive data is being maintained in these excel sheets, and in this regard, it is important to mention in these excel sheets, and in this regard, it is important to mention in these excel sheets, and in this regard, it is important to mention that the sheet “Master” is so elaborate that the data in the said sheet is that the sheet “Master” is so elaborate that the data in the said sheet is that the sheet “Master” is so elaborate that the data in the said sheet is spread across 98 columns. Shri Imran Ansari has explained all 98 columns spread across 98 columns. Shri Imran Ansari has explained all 98 columns spread across 98 columns. Shri Imran Ansari has explained all 98 columns of “Master” sheet and of “Master” sheet and such explanation of each and every column by Shri such explanation of each and every column by Shri Imran Ansari further support the fact that the he was maintaining the said Imran Ansari further support the fact that the he was maintaining the said Imran Ansari further support the fact that the he was maintaining the said data and therefore could explain all these columns with relevance and data and therefore could explain all these columns with relevance and data and therefore could explain all these columns with relevance and purpose. Shri Imran Ansari in response to Question no. 22, 23 purpose. Shri Imran Ansari in response to Question no. 22, 23 purpose. Shri Imran Ansari in response to Question no. 22, 23 and 24, has explained in detail the meaning and relevant of each and every column. In explained in detail the meaning and relevant of each and every column. In explained in detail the meaning and relevant of each and every column. In column B, against the name of ‘Raj Bhai Jain’/‘Raj BhaiJain(I.S)’, total 27 column B, against the name of ‘Raj Bhai Jain’/‘Raj BhaiJain(I.S)’, total 27 column B, against the name of ‘Raj Bhai Jain’/‘Raj BhaiJain(I.S)’, total 27 shops have been entered. Further, these 27 shops are stated (by Shri shops have been entered. Further, these 27 shops are stated (by Shri shops have been entered. Further, these 27 shops are stated (by Shri Imran Ansari) to be book Imran Ansari) to be booked by the assessee only. Also, ShriTabrez Ahmed ed by the assessee only. Also, ShriTabrez Ahmed Shaikh, Director and Promoter of the RHIL, while deposing statement Shaikh, Director and Promoter of the RHIL, while deposing statement Shaikh, Director and Promoter of the RHIL, while deposing statement during post search proceedings on 19.08.2021 categorically confirmed the during post search proceedings on 19.08.2021 categorically confirmed the during post search proceedings on 19.08.2021 categorically confirmed the admission made by Shri Imran Ansari, and has confirmed the data of admission made by Shri Imran Ansari, and has confirmed the data of admission made by Shri Imran Ansari, and has confirmed the data of the said excel to be true byconfirming facts stated by Shri Imran Ansari in his said excel to be true byconfirming facts stated by Shri Imran Ansari in his said excel to be true byconfirming facts stated by Shri Imran Ansari in his statement. It is also important to note here that the phone number statement. It is also important to note here that the phone number statement. It is also important to note here that the phone number mentioned above i.e., 9892196071 against all 27 shops, is of Shri Rajesh mentioned above i.e., 9892196071 against all 27 shops, is of Shri Rajesh mentioned above i.e., 9892196071 against all 27 shops, is of Shri Rajesh Jain. 5.5. Regarding the frequency o Regarding the frequency of updating the said excel file/sheet, f updating the said excel file/sheet, Shri Imran Ansari, in response to Q. no. 25, stated that this sheet is Shri Imran Ansari, in response to Q. no. 25, stated that this sheet is Shri Imran Ansari, in response to Q. no. 25, stated that this sheet is updated on the same day when a payment is received either in cash or updated on the same day when a payment is received either in cash or updated on the same day when a payment is received either in cash or cheque (or banking channel). The column A to AR of the sheet “Master” are cheque (or banking channel). The column A to AR of the sheet “Master” are cheque (or banking channel). The column A to AR of the sheet “Master” are stated to be updated till 16.03.2021 and other sheets of the said excel file ed to be updated till 16.03.2021 and other sheets of the said excel file ed to be updated till 16.03.2021 and other sheets of the said excel file are also stated to be updated till 16.03.2021. It is revealed in the above are also stated to be updated till 16.03.2021. It is revealed in the above are also stated to be updated till 16.03.2021. It is revealed in the above response that he takes the parties to ShriAbrar Ahmed (who during the response that he takes the parties to ShriAbrar Ahmed (who during the response that he takes the parties to ShriAbrar Ahmed (who during the search established to be a person hand search established to be a person handing cash for the Rubberwala Group). ing cash for the Rubberwala Group). ShriAbrar Ahmed, after receiving the cash confirms to Shri Imran Ansari ShriAbrar Ahmed, after receiving the cash confirms to Shri Imran Ansari ShriAbrar Ahmed, after receiving the cash confirms to Shri Imran Ansari who update the diariesand the said excel file. Such detailed mechanism in who update the diariesand the said excel file. Such detailed mechanism in who update the diariesand the said excel file. Such detailed mechanism in place further upholds the facts stated by Shri Imran Ansari on oath. It is place further upholds the facts stated by Shri Imran Ansari on oath. It is place further upholds the facts stated by Shri Imran Ansari on oath. It is also important to note here that Shri Imran Ansari also used to call and also important to note here that Shri Imran Ansari also used to call and also important to note here that Shri Imran Ansari also used to call and follow up with the buyers on the numbers saved in his data. As follow up with the buyers on the numbers saved in his data. As follow up with the buyers on the numbers saved in his data. As aforementioned, the number, for the shops for which the assessee has paid aforementioned, the number, for the shops for which the assessee has paid aforementioned, the number, for the shops for which the assessee has paid the cash component, is mentioned as 989219607 the cash component, is mentioned as 9892196071, which is the assessee’s 1, which is the assessee’s own number. Thus, it makes clear that for the cash payment part, for all own number. Thus, it makes clear that for the cash payment part, for all own number. Thus, it makes clear that for the cash payment part, for all the above mentioned 27 shops, Shri Imran Ansari used to follow up with the above mentioned 27 shops, Shri Imran Ansari used to follow up with the above mentioned 27 shops, Shri Imran Ansari used to follow up with Shri Rajesh Jain/assessee only………………… Shri Rajesh Jain/assessee only………………… 10. We also noticed that the decision of the We also noticed that the decision of the Coordinate Bench of ITAT Coordinate Bench of ITAT in the case of Rajesh Jain in 3841 & the case of Rajesh Jain in 3841 & the case of Rajesh Jain in ITA No. 3842& 3841 & ITA No. 3954,3952,3951 and3950/Mum/2023 on the identical facts is 3954,3952,3951 and3950/Mum/2023 on the identical facts is 3954,3952,3951 and3950/Mum/2023 on the identical facts is reproduced herein below: reproduced herein below: 12. The appeal filed by the revenue for AY 2020 The appeal filed by the revenue for AY 2020 The appeal filed by the revenue for AY 2020-21 is with regard to the relief granted by Ld CIT(A) holding that the cash payments relating to ief granted by Ld CIT(A) holding that the cash payments relating to ief granted by Ld CIT(A) holding that the cash payments relating to the shops purchased by others cannot be assessed in the hands of the the shops purchased by others cannot be assessed in the hands of the the shops purchased by others cannot be assessed in the hands of the assessee. The decision rendered by us in AY 2018 assessee. The decision rendered by us in AY 2018-19 and 2019 19 and 2019-20 on an identical issue on merits in the earlier paragrap identical issue on merits in the earlier paragraphs would apply in this year hs would apply in this year also. Following the same, we affirm the order passed by LdCIT(A) on this also. Following the same, we affirm the order passed by LdCIT(A) on this also. Following the same, we affirm the order passed by LdCIT(A) on this issue.
In the appeal filed by the assessee, the addition of alleged cash In the appeal filed by the assessee, the addition of alleged cash In the appeal filed by the assessee, the addition of alleged cash payment of Rs.18,64,200/ payment of Rs.18,64,200/- in respect of purchase of shop confirmed by Ld in respect of purchase of shop confirmed by Ld CIT(A) is being assailed.
14. We noticed earlier that the assessee had ) is being assailed.
We noticed earlier that the assessee had ) is being assailed.
14. We noticed earlier that the assessee had purchased a shop in the commercial premises developed by Rubberwala purchased a shop in the commercial premises developed by Rubberwala purchased a shop in the commercial premises developed by Rubberwala group. During the course of search conducted in their hands, incriminating group. During the course of search conducted in their hands, incriminating group. During the course of search conducted in their hands, incriminating documents containing details of cash collected documents containing details of cash collected on sale of various shops on sale of various shops were found. The employee of Rubberwala group confirmed that the cash were found. The employee of Rubberwala group confirmed that the cash were found. The employee of Rubberwala group confirmed that the cash has been collected from the buyers of shops. However, the assessee denied has been collected from the buyers of shops. However, the assessee denied has been collected from the buyers of shops. However, the assessee denied payment of cash. However, the AO relied upon the materials found in the payment of cash. However, the AO relied upon the materials found in the payment of cash. However, the AO relied upon the materials found in the case of Rubberwa case of Rubberwala group and accordingly made addition of Rs.18,64,200/ la group and accordingly made addition of Rs.18,64,200/- in AY 2020-21. The LdCIT(A) also confirmed the same.
21. The LdCIT(A) also confirmed the same.
The LdCIT(A) also confirmed the same.
The ld A.R submitted that the addition was made on the basis of third 15. The ld A.R submitted that the addition was made on the basis of third 15. The ld A.R submitted that the addition was made on the basis of third party statement and documents found from the premises of third party. As party statement and documents found from the premises of third party. As party statement and documents found from the premises of third party. As per the deposition made by the employee of Rubberwala group, the buyers per the deposition made by the employee of Rubberwala group, the buyers per the deposition made by the employee of Rubberwala group, the buyers were given a diary, in which, the details of cash received were were given a diary, in which, the details of cash received were were given a diary, in which, the details of cash received were acknowledged. The Ld A.R submitted the search officials did not find any acknowledged. The Ld A.R submitted the search officials did not find any acknowledged. The Ld A.R submitted the search officials did not find any such diary with the assessee during the course such diary with the assessee during the course of search operation conducted in his hands. Hence the statement so given by the employee conducted in his hands. Hence the statement so given by the employee conducted in his hands. Hence the statement so given by the employee stands disproved. He submitted that the AO has simply relied upon third stands disproved. He submitted that the AO has simply relied upon third stands disproved. He submitted that the AO has simply relied upon third party statement without bringing any independent material to support the party statement without bringing any independent material to support the party statement without bringing any independent material to support the same. The AO also did same. The AO also did not provide the opportunity of cross examination not provide the opportunity of cross examination despite being asked by the assessee. Accordingly, by placing reliance on despite being asked by the assessee. Accordingly, by placing reliance on despite being asked by the assessee. Accordingly, by placing reliance on various case laws, the Ld A.R submitted that this addition should be various case laws, the Ld A.R submitted that this addition should be various case laws, the Ld A.R submitted that this addition should be deleted.
16. We heard Ld D.R and perused the record. We n deleted.
We heard Ld D.R and perused the record. We n deleted.
16. We heard Ld D.R and perused the record. We notice that the AO has made the addition on the basis of evidence found in the premises of AO has made the addition on the basis of evidence found in the premises of AO has made the addition on the basis of evidence found in the premises of third party and also on the basis of deposition made by the employee of the third party and also on the basis of deposition made by the employee of the third party and also on the basis of deposition made by the employee of the third party. No corroborative material was brought on record to support the third party. No corroborative material was brought on record to support the third party. No corroborative material was brought on record to support the statement so g statement so given, which is mandatory when the assessee denies any iven, which is mandatory when the assessee denies any such payment. Further, the AO also did not provide opportunity of cross such payment. Further, the AO also did not provide opportunity of cross such payment. Further, the AO also did not provide opportunity of cross examination to the assessee, even after the said request was made by the examination to the assessee, even after the said request was made by the examination to the assessee, even after the said request was made by the assessee. Under these set of facts, we are of the view th assessee. Under these set of facts, we are of the view th assessee. Under these set of facts, we are of the view that the impugned addition of Rs.18,64,200/ addition of Rs.18,64,200/- cannot be sustained. In this regard, we may cannot be sustained. In this regard, we may take support from the decision rendered by SMC bench of Mumbai Tribunal take support from the decision rendered by SMC bench of Mumbai Tribunal take support from the decision rendered by SMC bench of Mumbai Tribunal in in in the the the case case case of of of Naren Naren Naren Premchang Premchang Premchang Nagda Nagda Nagda vs. vs. vs. ITO ITO ITO (IT (IT (IT Appeal Appeal Appeal No.3265/Mum/2015 dated 08 No.3265/Mum/2015 dated 08-07-2016), wherein an identical issue was in an identical issue was decided as under: decided as under:-
17. We also notice that the AO did not provide opportunity to cross 17. We also notice that the AO did not provide opportunity to cross 17. We also notice that the AO did not provide opportunity to cross examine the persons from Rubberwala group, on whose statements the AO examine the persons from Rubberwala group, on whose statements the AO examine the persons from Rubberwala group, on whose statements the AO had placed reliance upon. The Hon had placed reliance upon. The Hon‟ble Supreme Court has held in the case ‟ble Supreme Court has held in the case of Andaman Timber Industries vs. Commissioner of Central Excise of Andaman Timber Industries vs. Commissioner of Central Excise of Andaman Timber Industries vs. Commissioner of Central Excise (2015)(62 taxmann.com 3)(SC) that not providing opportunity to cross (2015)(62 taxmann.com 3)(SC) that not providing opportunity to cross (2015)(62 taxmann.com 3)(SC) that not providing opportunity to cross examine is a serious flaw and it will make the order nullity, as it amounts to examine is a serious flaw and it will make the order nullity, as it amounts to examine is a serious flaw and it will make the order nullity, as it amounts to violation of principle of natural justice. W violation of principle of natural justice. We are of the view that the above e are of the view that the above said decision of Hon said decision of Hon‟ble Supreme Court shall apply to the facts of the ‟ble Supreme Court shall apply to the facts of the present case. present case. 11. From the above we find that the Coordinate bench has consider From the above we find that the Coordinate bench has consider From the above we find that the Coordinate bench has consider the same facts and rightly decided the issue in favour of the assessee the same facts and rightly decided the issue in favour of the assessee the same facts and rightly decided the issue in favour of the assessee and since the facts of the present case are also identical with the facts and since the facts of the present case are also identical with the facts and since the facts of the present case are also identical with the facts of Rajesh Jain’s (supra) case, therefore the said decision will be of Rajesh Jain’s (supra) case, therefore the said decision will be of Rajesh Jain’s (supra) case, therefore the said decision will be application on the facts of the present case as well. Moreover, the application on the facts of the present case as well. Moreover, the application on the facts of the present case as well. Moreover, the assessee categorically denied having paid any a assessee categorically denied having paid any amount in cash over and mount in cash over and above the agreement value. The AO has neither confronted assessee above the agreement value. The AO has neither confronted assessee above the agreement value. The AO has neither confronted assessee with any of the material found during the search on Rubberwala with any of the material found during the search on Rubberwala with any of the material found during the search on Rubberwala group and even noevidence or seized document has been referred to group and even noevidence or seized document has been referred to group and even noevidence or seized document has been referred to where any name of the assessee where any name of the assessee has been explicitly mentioned on has been explicitly mentioned on account of paying any ‘on account of paying any ‘on-money’. 12. Although it has been claimed in the order of assessment that the Although it has been claimed in the order of assessment that the Although it has been claimed in the order of assessment that the assessee had paid on money, but again no such statement has been assessee had paid on money, but again no such statement has been assessee had paid on money, but again no such statement has been confronted, neither the seized material /documents /p confronted, neither the seized material /documents /p confronted, neither the seized material /documents /pendrive was confronted to the assessee nor the copy of statement of Key person was confronted to the assessee nor the copy of statement of Key person was confronted to the assessee nor the copy of statement of Key person was confronted. 13. Therefore, in our view, the information if any found in the Therefore, in our view, the information if any found in the Therefore, in our view, the information if any found in the pendrive etc., cannot be considered as ‘credible evidence’, unless they pendrive etc., cannot be considered as ‘credible evidence’, unless they pendrive etc., cannot be considered as ‘credible evidence’, unless they have been corroborated wi have been corroborated with any other evidence. Since the assessee th any other evidence. Since the assessee was not provided with the adverse material, if any, based on which was not provided with the adverse material, if any, based on which was not provided with the adverse material, if any, based on which notice u/s153 of the Act, was issued, in our view, it hampers the notice u/s153 of the Act, was issued, in our view, it hampers the notice u/s153 of the Act, was issued, in our view, it hampers the primary and fundamental requirement of natural justice. primary and fundamental requirement of natural justice. primary and fundamental requirement of natural justice. 14. As far as th As far as the information claimed in pendrive is concerned, the e information claimed in pendrive is concerned, the same was not found from the possession of the assessee but was found same was not found from the possession of the assessee but was found same was not found from the possession of the assessee but was found as per order of assessment, during the search and seizure conducted in as per order of assessment, during the search and seizure conducted in as per order of assessment, during the search and seizure conducted in the case of third party therefore, in the absence of corroborati the case of third party therefore, in the absence of corroborati the case of third party therefore, in the absence of corroborative evidence to establish that the contents of pendrive are correct and evidence to establish that the contents of pendrive are correct and evidence to establish that the contents of pendrive are correct and authenticated to the extent assessee paid ‘on authenticated to the extent assessee paid ‘on- money’ in cash, no money’ in cash, no addition can be made and even otherwise during the entire addition can be made and even otherwise during the entire addition can be made and even otherwise during the entire reassessment proceedings the veracity and reliability of the reassessment proceedings the veracity and reliability of the reassessment proceedings the veracity and reliability of the data recorded in the pendrive was not checked or tested. Therefore, in recorded in the pendrive was not checked or tested. Therefore, in recorded in the pendrive was not checked or tested. Therefore, in such a scenariono addition is warranted in the case of assessee. such a scenariono addition is warranted in the case of assessee. such a scenariono addition is warranted in the case of assessee. Reliance in this regard has been placed on the decision in case of Heena Reliance in this regard has been placed on the decision in case of Heena Reliance in this regard has been placed on the decision in case of Heena Dashrath Jhanglani ITA no.1665/Mum./2018 Dashrath Jhanglani ITA no.1665/Mum./2018 (Assessment Year : 2007 (Assessment Year : 2007– 08) wherein the Coordinate Bench of ITAT had decided the issue in 08) wherein the Coordinate Bench of ITAT had decided the issue in 08) wherein the Coordinate Bench of ITAT had decided the issue in favour of assessee and the relevant portion is being reproduced herein favour of assessee and the relevant portion is being reproduced herein favour of assessee and the relevant portion is being reproduced herein below: 10. I have considered rival submissions and perused material on I have considered rival submissions and perused material on I have considered rival submissions and perused material on record. Undisputedly, t record. Undisputedly, the genesis of the addition made of 42 lakh on he genesis of the addition made of 42 lakh on account of alleged payment of on account of alleged payment of on–money in cash towards purchase of a flat money in cash towards purchase of a flat lies in a search and seizure operation conducted in case of Hiranandani lies in a search and seizure operation conducted in case of Hiranandani lies in a search and seizure operation conducted in case of Hiranandani Group and related persons. Though, in the assessment order the A Group and related persons. Though, in the assessment order the A Group and related persons. Though, in the assessment order the Assessing Officer has not discussed in detail the nature of incriminating material/ Officer has not discussed in detail the nature of incriminating material/ Officer has not discussed in detail the nature of incriminating material/ evidence available on record to indicate payment of on evidence available on record to indicate payment of on evidence available on record to indicate payment of on–money in cash by the assessee to M/s. Crescendo Associates, however, from the show cause the assessee to M/s. Crescendo Associates, however, from the show cause the assessee to M/s. Crescendo Associates, however, from the show cause notice dated 4th March 2015, notice dated 4th March 2015, which is reproduced by the Assessing Officer which is reproduced by the Assessing Officer in the assessment order, it appears that the incriminating materials are in in the assessment order, it appears that the incriminating materials are in in the assessment order, it appears that the incriminating materials are in the form of pen drive found and seized from the residence of one of the the form of pen drive found and seized from the residence of one of the the form of pen drive found and seized from the residence of one of the employees of Hiranandani Group and a statement recorded under s employees of Hiranandani Group and a statement recorded under s employees of Hiranandani Group and a statement recorded under section 132(4) of the Act from Shri Niranjan Hiranandani, Director and Promoter of 132(4) of the Act from Shri Niranjan Hiranandani, Director and Promoter of 132(4) of the Act from Shri Niranjan Hiranandani, Director and Promoter of the Group, wherein, the details of on the Group, wherein, the details of on– money paid by buyers / prospective money paid by buyers / prospective buyers to Hiranandani Group concerns are mentioned and further, in the buyers to Hiranandani Group concerns are mentioned and further, in the buyers to Hiranandani Group concerns are mentioned and further, in the statement recorded under sect statement recorded under section 132(4) of the Act on 14th March 2014, ion 132(4) of the Act on 14th March 2014, Shri Niranjan Hiranandani, has admitted receipt of on Shri Niranjan Hiranandani, has admitted receipt of on Shri Niranjan Hiranandani, has admitted receipt of on–money in cash towards sale of flats / shops. Thus, it is clear that except these two pieces towards sale of flats / shops. Thus, it is clear that except these two pieces towards sale of flats / shops. Thus, it is clear that except these two pieces of evidences the Assessing Officer had no other evidence on record w of evidences the Assessing Officer had no other evidence on record w of evidences the Assessing Officer had no other evidence on record which demonstrates that the assessee had paid on demonstrates that the assessee had paid on–money in cash for purchase of money in cash for purchase of the flat. It is further relevant to observe, from the assessment stage itself the flat. It is further relevant to observe, from the assessment stage itself the flat. It is further relevant to observe, from the assessment stage itself the assessee has requested the Assessing Officer to provide him with all the assessee has requested the Assessing Officer to provide him with all the assessee has requested the Assessing Officer to provide him with all adverse materials and full adverse materials and full text of the statement recorded under section text of the statement recorded under section 132(4) of the Act from Shri Niranjan Hiranandani. The assessee had also 132(4) of the Act from Shri Niranjan Hiranandani. The assessee had also 132(4) of the Act from Shri Niranjan Hiranandani. The assessee had also requested the Assessing Officer for allowing her to cross requested the Assessing Officer for allowing her to cross requested the Assessing Officer for allowing her to cross–examine Shri Niranjan Hiranandani and other parties whose statements were relied Niranjan Hiranandani and other parties whose statements were relied Niranjan Hiranandani and other parties whose statements were relied upon. Apparently, this request of the assessee was not accededto by the Apparently, this request of the assessee was not accededto by the Apparently, this request of the assessee was not accededto by the Assessing Officer. When the assessee took up the aforesaid issue before Assessing Officer. When the assessee took up the aforesaid issue before Assessing Officer. When the assessee took up the aforesaid issue before the first appellate authority, the learned Commissioner (Appeals) in letter the first appellate authority, the learned Commissioner (Appeals) in letter the first appellate authority, the learned Commissioner (Appeals) in letter dated 18th July 2016, had clearly di dated 18th July 2016, had clearly directed the Assessing Officer to provide rected the Assessing Officer to provide the assessee all adverse materials / documentary evidences available with the assessee all adverse materials / documentary evidences available with the assessee all adverse materials / documentary evidences available with him indicating payment of on him indicating payment of on–money. However, on a perusal of the remand money. However, on a perusal of the remand report dated 23th June 2017, a copy of which is at Page report dated 23th June 2017, a copy of which is at Page report dated 23th June 2017, a copy of which is at Page–53 of the paper book, it is very much clear that the Assessing Officer has completely book, it is very much clear that the Assessing Officer has completely book, it is very much clear that the Assessing Officer has completely avoided the issue and there is no mention whether the assessee was avoided the issue and there is no mention whether the assessee was avoided the issue and there is no mention whether the assessee was provided with all the adverse material and if, not so, whether he has provided with all the adverse material and if, not so, whether he has provided with all the adverse material and if, not so, whether he has provided them to the assessee as per the direct provided them to the assessee as per the direct provided them to the assessee as per the directions of the learned Commissioner (Appeals). Thus, from the aforesaid facts, it is patent and Commissioner (Appeals). Thus, from the aforesaid facts, it is patent and Commissioner (Appeals). Thus, from the aforesaid facts, it is patent and obvious that the addition of ` 42 lakh made on account of on obvious that the addition of ` 42 lakh made on account of on obvious that the addition of ` 42 lakh made on account of on–money payment in cash is without complying with the primary and fundamental payment in cash is without complying with the primary and fundamental payment in cash is without complying with the primary and fundamental requirement of rules of na requirement of rules of natural justice. It is well settled proposition of law tural justice. It is well settled proposition of law that if the Assessing Officer intends to utilize any adverse material for that if the Assessing Officer intends to utilize any adverse material for that if the Assessing Officer intends to utilize any adverse material for deciding an issue against the assessee he is required to not only confront deciding an issue against the assessee he is required to not only confront deciding an issue against the assessee he is required to not only confront such adverse materials to the assessee but also offer such adverse materials to the assessee but also offer such adverse materials to the assessee but also offer him a reasonable opportunity to rebut / contradict the contents of the adverse material. opportunity to rebut / contradict the contents of the adverse material. opportunity to rebut / contradict the contents of the adverse material. Further, the assessment order reveals that the Assessing Officer has Further, the assessment order reveals that the Assessing Officer has Further, the assessment order reveals that the Assessing Officer has heavily relied upon the statement recorded from Shri Niranjan Hiranandani, heavily relied upon the statement recorded from Shri Niranjan Hiranandani, heavily relied upon the statement recorded from Shri Niranjan Hiranandani, for making the disputed for making the disputed addition. However, it is the allegation of the addition. However, it is the allegation of the assessee, which prima assessee, which prima–facie appears to be correct, that the Assessing facie appears to be correct, that the Assessing Officer has not provided the full text of such statement recorded and has Officer has not provided the full text of such statement recorded and has Officer has not provided the full text of such statement recorded and has also not allowed the assessee an opportunity to cross also not allowed the assessee an opportunity to cross also not allowed the assessee an opportunity to cross–examine Shri Niranjan Hiranandani, and other persons whose statements were relied Niranjan Hiranandani, and other persons whose statements were relied Niranjan Hiranandani, and other persons whose statements were relied upon. This, in my view, is in gross violation of rules of natural justice and upon. This, in my view, is in gross violation of rules of natural justice and upon. This, in my view, is in gross violation of rules of natural justice and against the basic principle of law. In this context, I may refer to the against the basic principle of law. In this context, I may refer to the against the basic principle of law. In this context, I may refer to the decision of the Tribunal, Mumbai B decision of the Tribunal, Mumbai Bench, in Nikhil Vinod Agarwal (supra). ench, in Nikhil Vinod Agarwal (supra). Thus, for the aforesaid reason, the addition made cannot be sustained. Thus, for the aforesaid reason, the addition made cannot be sustained. Thus, for the aforesaid reason, the addition made cannot be sustained.
11. Even otherwise also, the addition made is unsustainable because Even otherwise also, the addition made is unsustainable because Even otherwise also, the addition made is unsustainable because of the following reasons. As discussed earlier in the order, the basis for of the following reasons. As discussed earlier in the order, the basis for of the following reasons. As discussed earlier in the order, the basis for addition on account of on ition on account of on–money is the information contained in the pen money is the information contained in the pen drive found during the search and seizure operation and the statement drive found during the search and seizure operation and the statement drive found during the search and seizure operation and the statement recorded under section 132(4) of the Act. As regards the information recorded under section 132(4) of the Act. As regards the information recorded under section 132(4) of the Act. As regards the information contained in the pen drive, it is the contention contained in the pen drive, it is the contention of the assessee that the of the assessee that the said pen drive was not found from the possession of the assessee but in said pen drive was not found from the possession of the assessee but in said pen drive was not found from the possession of the assessee but in course of search and seizure operation conducted in case of a third course of search and seizure operation conducted in case of a third course of search and seizure operation conducted in case of a third party. Therefore, in absence of further corroborative evidence to establish party. Therefore, in absence of further corroborative evidence to establish party. Therefore, in absence of further corroborative evidence to establish that the contents of the pen drive are correct and authentic to the extent he contents of the pen drive are correct and authentic to the extent he contents of the pen drive are correct and authentic to the extent that the assessee paid on that the assessee paid on–money in cash, no addition can be made under money in cash, no addition can be made under section 69B of the Act. Further contention of the assessee is that in the section 69B of the Act. Further contention of the assessee is that in the section 69B of the Act. Further contention of the assessee is that in the statement recorded under section 132(4) of statement recorded under section 132(4) of the Act, Shi Niranjan Hirandani the Act, Shi Niranjan Hirandani has not made any reference to the assessee, therefore, in absence of any has not made any reference to the assessee, therefore, in absence of any has not made any reference to the assessee, therefore, in absence of any other corroborative evidence to establish that assessee has paid on other corroborative evidence to establish that assessee has paid on other corroborative evidence to establish that assessee has paid on–money in cash, no addition can be made. I find substantial merit in the aforesaid in cash, no addition can be made. I find substantial merit in the aforesaid in cash, no addition can be made. I find substantial merit in the aforesaid submissions of the assessee. In my view, neither the information contained submissions of the assessee. In my view, neither the information contained 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 in the pen drive nor the statement recorded under section 132(4) of the Act 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 from Shri Niranjan Hiranandani are enough to conclusively establish the from Shri Niranjan Hiranandani are enough to conclusively establish the factum of payment of on factum of payment of on–money by the assessee. At best, they can raise a the assessee. At best, they can raise a doubt or suspicion against the conduct of the assessee triggering further doubt or suspicion against the conduct of the assessee triggering further doubt or suspicion against the conduct of the assessee triggering further enquiry / investigation to find out and bring on record the relevant fact and enquiry / investigation to find out and bring on record the relevant fact and enquiry / investigation to find out and bring on record the relevant fact and material to conclusively prove the payment of on material to conclusively prove the payment of on–money by the as money by the assessee over and above the declared sale consideration. Apparently, the Assessing over and above the declared sale consideration. Apparently, the Assessing over and above the declared sale consideration. Apparently, the Assessing Officer has failed to bring any such evidence / material on record to prove Officer has failed to bring any such evidence / material on record to prove Officer has failed to bring any such evidence / material on record to prove the payment of on the payment of on–money by the assessee. More so, when the assessee money by the assessee. More so, when the assessee from the very beginning has sto from the very beginning has stoutly denied payment of on utly denied payment of on–money in cash. Notably, while dealing with a case involving similar nature of dispute Notably, while dealing with a case involving similar nature of dispute Notably, while dealing with a case involving similar nature of dispute concerning similar transaction with another concern of Hiranandani Group, concerning similar transaction with another concern of Hiranandani Group, concerning similar transaction with another concern of Hiranandani Group, the Tribunal in case of Shri Anil Jaggi v/s ACIT (supra) has held as u the Tribunal in case of Shri Anil Jaggi v/s ACIT (supra) has held as u the Tribunal in case of Shri Anil Jaggi v/s ACIT (supra) has held as under:– ……..
15. Reliance has also been placed in the case of Monika Anand Gupta Reliance has also been placed in the case of Monika Anand Gupta Reliance has also been placed in the case of Monika Anand Gupta (A.Y. 2011 (A.Y. 2011-12)whereas coordinate bench 12)whereas coordinate bench held as under.
6. I have heard both the parties and perused the record. I find thatthe 6. I have heard both the parties and perused the record. I find thatthe 6. I have heard both the parties and perused the record. I find thatthe addition for on addition for on-money payment has been done in thiscase without any payment has been done in thiscase without any corroborative material found from assessee. The addition is solely based corroborative material found from assessee. The addition is solely based corroborative material found from assessee. The addition is solely based upon some statement of the builder. Such additions are not sustainable on upon some statement of the builder. Such additions are not sustainable on upon some statement of the builder. Such additions are not sustainable on the touchstone of Hon'ble Supreme Court decision in the case of the touchstone of Hon'ble Supreme Court decision in the case of the touchstone of Hon'ble Supreme Court decision in the case of CIT vs P.V Kalyana sundasram 164 Taxman 78 (SC). Moreover there is nothing on Kalyana sundasram 164 Taxman 78 (SC). Moreover there is nothing on Kalyana sundasram 164 Taxman 78 (SC). Moreover there is nothing on record to suggest that so called electronic evidence collected by revenue at record to suggest that so called electronic evidence collected by revenue at record to suggest that so called electronic evidence collected by revenue at the builder’s office is compliant with the requirement of section 65B of the builder’s office is compliant with the requirement of section 65B of the builder’s office is compliant with the requirement of section 65B of Evidence Act regarding admi Evidence Act regarding admissibility of electronic evidence. Hence, I set ssibility of electronic evidence. Hence, I set aside the orders of the authority below and direct that the addition be aside the orders of the authority below and direct that the addition be aside the orders of the authority below and direct that the addition be deleted.
16. In the case of Mrs. Mamta Sharad Gupta, In the case of Mrs. Mamta Sharad Gupta, In the case of Mrs. Mamta Sharad Gupta, Assessment Year: 2011 Assessment Year: 2011-12, wherein the coordinate bench has held a 12, wherein the coordinate bench has held as under: 9. Since the sole issue raised in this appeal is covered by the order (supra) 9. Since the sole issue raised in this appeal is covered by the order (supra) 9. Since the sole issue raised in this appeal is covered by the order (supra) passed by the co passed by the co-ordinate Bench of the Tribunal addition made in this case ordinate Bench of the Tribunal addition made in this case is not sustainable. Because the addition is made merely on the basis of is not sustainable. Because the addition is made merely on the basis of is not sustainable. Because the addition is made merely on the basis of statement made by one statement made by one Mr. Suraj Parmar, one of the promoters of Cosmos Mr. Suraj Parmar, one of the promoters of Cosmos Group under section 132(4) of the Act without any corroboration. Group under section 132(4) of the Act without any corroboration. Group under section 132(4) of the Act without any corroboration. Moreover, statement or any material seized during the course of search Moreover, statement or any material seized during the course of search Moreover, statement or any material seized during the course of search under section 132(4) of the Act can only be used against Mr. Suraj under section 132(4) of the Act can only be used against Mr. Suraj under section 132(4) of the Act can only be used against Mr. Suraj Parmar of Cosmos Group and not against the assessee without any armar of Cosmos Group and not against the assessee without any armar of Cosmos Group and not against the assessee without any corroboration. Excel sheet alleged to have been recovered from the office corroboration. Excel sheet alleged to have been recovered from the office corroboration. Excel sheet alleged to have been recovered from the office of builders is also not admissible being not proved under section 65 of the of builders is also not admissible being not proved under section 65 of the of builders is also not admissible being not proved under section 65 of the Evidence Act. So in view of the Evidence Act. So in view of the matter, addition made by the AO and matter, addition made by the AO and sustained by the Ld. CIT(A) is not sustainable in the eyes of law, hence sustained by the Ld. CIT(A) is not sustainable in the eyes of law, hence sustained by the Ld. CIT(A) is not sustainable in the eyes of law, hence ordered to be deleted. Consequently, appeal filed by the assessee is ordered to be deleted. Consequently, appeal filed by the assessee is ordered to be deleted. Consequently, appeal filed by the assessee is allowed.
For the above proposition, we place reliance upon the decision in For the above proposition, we place reliance upon the decision in For the above proposition, we place reliance upon the decision in the case of ITO Vs. Vinod Aggarwal, ITO Vs. the case of ITO Vs. Vinod Aggarwal, ITO Vs. the case of ITO Vs. Vinod Aggarwal, ITO Vs. Nikhil Vinod Aggarwal, Heena Dashrath Nikhil Vinod Aggarwal, ITA No. 2574/Mum/2017 Heena Dashrath Nikhil Vinod Aggarwal, ITA No. 2574/Mum/2017 Heena Dashrath Jhanglani Vs.ITO, ITA No.1665/M/2018, Padmashrree Dr. D.Y. Patil Jhanglani Vs.ITO, ITA No.1665/M/2018, Padmashrree Dr. D.Y. Patil Jhanglani Vs.ITO, ITA No.1665/M/2018, Padmashrree Dr. D.Y. Patil University Vs. DCIT, ITA Nos. 3264 to 3268/Mum/2022. University Vs. DCIT, ITA Nos. 3264 to 3268/Mum/2022. University Vs. DCIT, ITA Nos. 3264 to 3268/Mum/2022.
From the records we also noticed that no statement was provided rom the records we also noticed that no statement was provided rom the records we also noticed that no statement was provided to the assessee, and none of the persons, whose statements were relied to the assessee, and none of the persons, whose statements were relied to the assessee, and none of the persons, whose statements were relied upon were produced for cross upon were produced for cross-examination. Even the extract of the examination. Even the extract of the statement mentioned in the assessment order does not ind statement mentioned in the assessment order does not ind statement mentioned in the assessment order does not indicate the name of the assessee. name of the assessee.
Apart, the AO during the course of assessment also failed to Apart, the AO during the course of assessment also failed to Apart, the AO during the course of assessment also failed to provide the opportunity to cross examine of the witnesses, whose provide the opportunity to cross examine of the witnesses, whose provide the opportunity to cross examine of the witnesses, whose statements were relied upon by the revenue which resulted in ‘breach of statements were relied upon by the revenue which resulted in ‘breach of statements were relied upon by the revenue which resulted in ‘breach of principles of natural principles of natural justice’. In this regard, reliance is being placed justice’. In this regard, reliance is being placed upon the decision of Hon'ble Supreme Court in the case of Andaman upon the decision of Hon'ble Supreme Court in the case of Andaman 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 Timber Industries Vs. CCE reported in (2015)281 CTR 241 (SC) wherein 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 it has been held that ‘failure to give the assessee the opportunity to it has been held that ‘failure to give the assessee the opportunity to cross examine witness, whose statements are relied upon, results in cross examine witness, whose statements are relied upon, results in cross examine witness, whose statements are relied upon, results in breach of principles of Natural Justice. It is a serious flaw which renders breach of principles of Natural Justice. It is a serious flaw which renders breach of principles of Natural Justice. It is a serious flaw which renders the order a nullity’. the order a nullity’.
In the case of CIT Vs. Odeon Builders Pvt. ltd. (418ITR In the case of CIT Vs. Odeon Builders Pvt. ltd. (418ITR In the case of CIT Vs. Odeon Builders Pvt. ltd. (418ITR 315), it was held th 315), it was held that the ‘addition/disallowance made solely on third at the ‘addition/disallowance made solely on third party information without subjecting it to further scrutiny and denying party information without subjecting it to further scrutiny and denying party information without subjecting it to further scrutiny and denying the opportunity of cross examination of the third party renders the the opportunity of cross examination of the third party renders the the opportunity of cross examination of the third party renders the addition/disallowance bad in law’ addition/disallowance bad in law’ 21. In the case of H.R. Mehta v In the case of H.R. Mehta v/s Assistant Commissionerof /s Assistant Commissionerof Income- tax, Mumbai tax, Mumbai 72taxmann.com110 (Bombay) wherein it was held as 72taxmann.com110 (Bombay) wherein it was held as under In the light of the fact that the money was advanced apparently by the In the light of the fact that the money was advanced apparently by the 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 account payee cheque and was repaid vide account payee cheque the least 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 sessing Officer should have done was to grant an opportunity to sessing Officer should have done was to grant an opportunity to the assessee to meet the case against him by providing the material sought the assessee to meet the case against him by providing the material sought 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. to be used against him in arriving before passing the order of assessment. to be used against him in arriving before passing the order of assessment. This not having been done, the denial of s This not having been done, the denial of such opportunity goes to root of uch opportunity goes to root of the matter and strikes at the very foundation of the assessment and, the matter and strikes at the very foundation of the assessment and, the matter and strikes at the very foundation of the assessment and, therefore, renders the orders passed by the Commissioner (Appeals) and therefore, renders the orders passed by the Commissioner (Appeals) and therefore, renders the orders passed by the Commissioner (Appeals) and the Tribunal vulnerable. The assessee was bound to be provided with the the Tribunal vulnerable. The assessee was bound to be provided with the the Tribunal vulnerable. The assessee was bound to be provided with the material use material used against him apart from being permitting him to cross d against him apart from being permitting him to cross examine the deponents whose statements were relied upon by him. Despite examine the deponents whose statements were relied upon by him. Despite examine the deponents whose statements were relied upon by him. Despite the request seeking an opportunity to cross examine the deponents and the request seeking an opportunity to cross examine the deponents and the request seeking an opportunity to cross examine the deponents and furnish the assessee with copies of statements and disclose furnish the assessee with copies of statements and disclose furnish the assessee with copies of statements and disclose material, these were denied to him. were denied to him.
Taking into consideration the entire facts and circumstances and Taking into consideration the entire facts and circumstances and Taking into consideration the entire facts and circumstances and legal prepositions as discussed by us above, we direct the AO to delete legal prepositions as discussed by us above, we direct the AO to delete legal prepositions as discussed by us above, we direct the AO to delete the addition, consequently these grounds raised
by the assessee are the addition, consequently these grounds raised by the assessee are the addition, consequently these grounds raised by the assessee are allowed.”
9. In view of the foregoing discussion, the absence of In view of the foregoing discussion, the absence of In view of the foregoing discussion, the absence of confrontation, lack of cross confrontation, lack of cross-examination, absence of any examination, absence of any incriminating incriminating incriminating material material material belonging belonging belonging to to to the the the assessee, assessee, assessee, and and and respectfully following the decision of the co espectfully following the decision of the co-ordinate bench of ordinate bench of this Tribunal, we delete the addition confirmed by the ld. CIT(A) this Tribunal, we delete the addition confirmed by the ld. CIT(A) this Tribunal, we delete the addition confirmed by the ld. CIT(A) and the ground no. 6 and 7 raised by the assessee are allowed and the ground no. 6 and 7 raised by the assessee are allowed and the ground no. 6 and 7 raised by the assessee are allowed on merits. In view of the fact that the addition has already been on merits. In view of the fact that the addition has already been on merits. In view of the fact that the addition has already been deleted on merits, therefore all other grounds rendered deleted on merits, therefore all other grounds rendered deleted on merits, therefore all other grounds rendered academic and require no adjudication. academic and require no adjudication.
Since the facts and circumstances of the case are identical Since the facts and circumstances of the case are identical Since the facts and circumstances of the case are identical for A.Y. 2018-19 and A.Y. 2019 19 and A.Y. 2019-20, the decision rendered for , the decision rendered for A.Y. 2017-18 above shall apply mut above shall apply mutatis mutandis to atis mutandis to A.Y. 2018- 19 and A.Y. 2019 19 and A.Y. 2019-20 as well and the addition confirmed confirmed by the ld. CIT(A) is delete ld. CIT(A) is deleted.
In the result, appeal In the result, appeals of the assessee are allowed. allowed.