BHARAT SOLANKI ,MUMBAI vs. DCIT, CENTRAL CIRCLE , MUMBAI

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ITA 6523/MUM/2025Status: DisposedITAT Mumbai23 December 2025AY 2017-1840 pages

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Cases cited in this judgment

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Andaman Timber Industries v. CCE
62 Taxmann.com 3 · 2015 · SC
1,335 citing
Kishanchand Chellaram v. CIT
125 ITR 713 · 1980 · SC
962 citing
Director, ECIL v. B. Karunakar (1993) 4 SCC 727; Haryana Financial Corporation v. Kailash Chandra Ahuja
3 SCC 364 · 1996
93 citing
Addl. CIT v. Jay Engineering Works Ltd.
113 ITR 389 · 1978 · HC
92 citing
Vasantlal & Co. v. CIT
256 ITR 536 · 2012 · HC
78 citing
CIT v. Metal Products of India
150 ITR 714 · 1984 · HC
47 citing
Hersh W. Chadha v. DDIT
43 SOT 544 · 2011 · ITAT
23 citing
Shyamlal Biri Merchant v. UOI
68 ELT 548 · 1993
17 citing
44 ITR 529 (SC); CIT v. Mohanlal Ranchhodas
211 ITR 635 · 1995 · HC
15 citing
ITC Classic Finance Ltd. v. DCIT ITC Classic Finance Ltd. v. DCIT
264 ITR 154 · HC
11 citing

Income Tax Appellate Tribunal, MUMBAI BENCH “B” MUMBAI

Before: SHRI OM PRAKASH KANT & SHRI SANDEEP SINGH KARHAIL

For Appellant: Mr. Bharat Kumar

For Respondent: Mr. Solgy Jose T. Kottaram, CIT-DR

Hearing: 04/12/2025Pronounced: 23/12/2025

ORDER PER OM PRAKASH KANT, AM

These three appeals by the assessee are directed against a common order dated 01.08.2025 passed by the Ld. Commissioner of Income-tax (Appeals) – 52, Mumbai [in short ‘the Ld. CIT(A)’] for assessment year 2017-18 to 2019-2020 respectively.

Bharat Solanki to 6525/MUM/2 to 6525/MUM/2025

Since all three appeals pertains to same assessee, involving ree appeals pertains to same assessee, involving ree appeals pertains to same assessee, involving common issue in dispute permeating from similar factual matrix common issue in dispute permeating from similar factual matrix common issue in dispute permeating from similar factual matrix and therefore, these appeals were heard together and disposed off and therefore, these appeals were heard together and disposed off and therefore, these appeals were heard together and disposed off by way of this consolidated order for the sake of convenience and by way of this consolidated order for the sake of convenience and by way of this consolidated order for the sake of convenience and avoid repetition of facts. The parties agreed to take assessment year tion of facts. The parties agreed to take assessment year tion of facts. The parties agreed to take assessment year 2017-18 as lead case and to follow the decision of the same mutatis 18 as lead case and to follow the decision of the same mutatis 18 as lead case and to follow the decision of the same mutatis mutandis in other years. Accordingly, mutandis in other years. Accordingly, firstly, we take up the appeal we take up the appeal of the assessee for assessment year 2017 of the assessee for assessment year 2017-18 for adjudication. 18 for adjudication. The relevant grounds raised by the assessee are reproduced as under: relevant grounds raised by the assessee are reproduced as under: relevant grounds raised by the assessee are reproduced as under:

1. On the facts and circumstances of the case in law, Ld. CIT(A) On the facts and circumstances of the case in law, Ld. CIT(A) On the facts and circumstances of the case in law, Ld. CIT(A) erred in confirming the stand of A.O. about that issuing the erred in confirming the stand of A.O. about that issuing the erred in confirming the stand of A.O. about that issuing the notice u/s 153C of the Act without DIN. It is blatant notice u/s 153C of the Act without DIN. It is blatant notice u/s 153C of the Act without DIN. It is blatant contraven contravention of the Circular No. 19/2019,dated 14 tion of the Circular No. 19/2019,dated 14-8-2019 issued by the CBDT issued by the CBDT 2. On the facts and circumstances of the case in law, Ld. CIT(A) On the facts and circumstances of the case in law, Ld. CIT(A) On the facts and circumstances of the case in law, Ld. CIT(A) erred in confirming addition without referring to any erred in confirming addition without referring to any erred in confirming addition without referring to any incrementing document. Besides,he has not referred to any incrementing document. Besides,he has not referred to any incrementing document. Besides,he has not referred to any incriminating incriminating material in the satisfaction note issued to the material in the satisfaction note issued to the Appellant. Appellant. 3. On the facts and circumstances of the case in law, Ld. CIT(A) On the facts and circumstances of the case in law, Ld. CIT(A) On the facts and circumstances of the case in law, Ld. CIT(A) erred in confirming stand of A.O. for not sharing incrementing erred in confirming stand of A.O. for not sharing incrementing erred in confirming stand of A.O. for not sharing incrementing documents found during the course of search of rubberwala documents found during the course of search of rubberwala documents found during the course of search of rubberwala group which group which was pertained to the appellant. 4. On the facts and circumstances of the case in law, Ld. CIT(A) On the facts and circumstances of the case in law, Ld. CIT(A) On the facts and circumstances of the case in law, Ld. CIT(A) erred in confirming stand of A.O. about the not providing erred in confirming stand of A.O. about the not providing erred in confirming stand of A.O. about the not providing statement and materials used by him against the appellant statement and materials used by him against the appellant statement and materials used by him against the appellant 5. On the facts and circumstances of the case in On the facts and circumstances of the case in law, Ld. CIT(A) On the facts and circumstances of the case in erred in confirming stand of A.O. about opportunity of cross erred in confirming stand of A.O. about opportunity of cross erred in confirming stand of A.O. about opportunity of cross examination of the person whose statements were used examination of the person whose statements were used examination of the person whose statements were used against the appellant. against the appellant. 6. On the facts and circumstances of the case in law, Ld. CIT(A) On the facts and circumstances of the case in law, Ld. CIT(A) On the facts and circumstances of the case in law, Ld. CIT(A) erred in confirming addition of Rs.1,00,0 erred in confirming addition of Rs.1,00,000/-u/s 69 of the Act. u/s 69 of the Act. 3. The ground Nos s. 3 to 6 of the appeal relate to addition made . 3 to 6 of the appeal relate to addition made by the Assessing Officer u/s 69C of the Act on account of alleged by the Assessing Officer u/s 69C of the Act on account of alleged by the Assessing Officer u/s 69C of the Act on account of alleged on-money payment made for purchase of shop in cash and which money payment made for purchase of shop in cash and which money payment made for purchase of shop in cash and which Bharat Solanki to 6525/MUM/2 to 6525/MUM/2025 has been upheld by the Ld. CIT(A). The gro has been upheld by the Ld. CIT(A). The ground No. 1, the assessee und No. 1, the assessee has challenged issue of notice u/s 153C of the Act without has challenged issue of notice u/s 153C of the Act without has challenged issue of notice u/s 153C of the Act without document identification number which is in violation of Circular No. document identification number which is in violation of Circular No. document identification number which is in violation of Circular No. 19/2019 dated 14.08.2019 issued by the Central Board of Direct 19/2019 dated 14.08.2019 issued by the Central Board of Direct 19/2019 dated 14.08.2019 issued by the Central Board of Direct Taxes (CBDT). The ground No. 2 is also a Taxes (CBDT). The ground No. 2 is also a legal ground challenging legal ground challenging the addition made in proceedings u/s 153C of the Act without any the addition made in proceedings u/s 153C of the Act without any the addition made in proceedings u/s 153C of the Act without any reference to the incriminating material in the satisfaction note. The reference to the incriminating material in the satisfaction note. The reference to the incriminating material in the satisfaction note. The parties agreed that if the assessee gets relief on the ground on merit parties agreed that if the assessee gets relief on the ground on merit parties agreed that if the assessee gets relief on the ground on merit of the addition, then gro then ground No. 2 of the appeal may be kept open. und No. 2 of the appeal may be kept open.

On appeal, the assessee primarily challenged the addition on the assessee primarily challenged the addition on the assessee primarily challenged the addition on the ground that (i) the addition was based solely on third-party the ground that (i) the addition was based solely on third the ground that (i) the addition was based solely on third statements and documents, (ii) the incriminating material was statements and documents, (ii) the incriminating material was statements and documents, (ii) the incriminating material was never supplied to the assessee, and (iii) no opportunity of cross- never supplied to the assessee, and (iii) no opportunity never supplied to the assessee, and (iii) no opportunity examination of Shri Imran Ansari was granted. examination of Shri Imran Ansari was granted. The assessee relied The assessee relied on the decision of the Co the Co-ordinate Bench in the case in the case of Shri Rajesh Jain in and 3841/Mum/2023 for assessment years Jain in and 3841/Mum/2023 for assessment year Jain in and 3841/Mum/2023 for assessment year 2020-21 and 2021-22 22, wherein, on similar facts relat wherein, on similar facts relating to alleged on-money payments for purchase of shops in the same project, the money payments for purchase of shops in the same project, the money payments for purchase of shops in the same project, the additions were deleted additions were deleted. The learned Commissioner (Appeals), The learned Commissioner (Appeals), however, rejected the contentions of the assessee, holding that the however, rejected the contentions of the assessee, holding that the however, rejected the contentions of the assessee, holding that the right of cross-examination examination examination is is is not not not absolute, absolute, absolute, that that that adequate opportunity had been granted, and that the material relied upon opportunity had been granted, and that the material relied upon opportunity had been granted, and that the material relied upon constituted corroborated digital evidence supported by sworn constituted corroborated digital evidence supported by sworn constituted corroborated digital evidence supported by sworn statements and disclosure by the developer group. The Ld. CIT(A) statements and disclosure by the developer group. statements and disclosure by the developer group. citing the various decisions in the impugned order, upheld the citing the various decisions in the impugned order citing the various decisions in the impugned order finding of the Assessing Officer on the issue in dispute. Aggrieved, finding of the Assessing Officer on the issue in dispute. Aggrieved, finding of the Assessing Officer on the issue in dispute. Aggrieved, the assessee is in appeal before the the assessee is in appeal before the Income-tax Appellate Tribunal ( tax Appellate Tribunal ( in short the ‘Tribunal Tribunal’) raising the grounds as reproduced above. raising the grounds as reproduced above.

6.1 The facts, in brief, insofar as they relate to the issue in The facts, in brief, insofar as they relate to the issue in The facts, in brief, insofar as they relate to the issue in dispute, are that pursuant to a search action conducted at the dispute, are that pursuant to a search action conducted at the dispute, are that pursuant to a search action conducted at the premises of M/s. Rubberwala Housing & Infrastructure Ltd. M/s. Rubberwala Housing & Infrastructure Ltd. (“RHIL”), M/s. Rubberwala Housing & Infrastructure Ltd. statements of its promoter and director, Shri Tabrez Shaikh, and of statements of its promoter and director, Shri Tabrez Shaikh, and of statements of its promoter and director, Shri Tabrez Shaikh, and of a key employee of the group, Shri Imran Ansari, were recorded. Shri a key employee of the group, Shri Imran Ansari, were recorded. Shri a key employee of the group, Shri Imran Ansari, were recorded. Shri Imran Ansari was stated to be handling the sale and registration of Imran Ansari was stated to be handling the sale and registration of Imran Ansari was stated to be handling the sale and registration of shops in the Platinum Mall Platinum Mall project developed by RHIL. In his ped by RHIL. In his statement, Shri Imran Ansari deposed that he had been associated statement, Shri Imran Ansari deposed that he had been associated statement, Shri Imran Ansari deposed that he had been associated with the Rubberwala Group entities since the year 2010 and was, with the Rubberwala Group entities since the year 2010 and was, with the Rubberwala Group entities since the year 2010 and was, inter alia, entrusted with responsibilities relating to the sale and inter alia, entrusted with responsibilities relating to the sale and inter alia, entrusted with responsibilities relating to the sale and registration of shops in the Platinum registration of shops in the Platinum Mall project. He described the Mall project. He described the procedure ordinarily followed for sale of the shops. According to procedure ordinarily followed for sale of the shops. According to procedure ordinarily followed for sale of the shops. According to him, prospective purchasers would approach him to ascertain the him, prospective purchasers would approach him to ascertain the him, prospective purchasers would approach him to ascertain the availability of shops, whereupon he would show them the available availability of shops, whereupon he would show them the available availability of shops, whereupon he would show them the available units. Upon selection by the units. Upon selection by the prospective purchaser, he would prospective purchaser, he would communicate the particulars of the shop, including the area, rate, communicate the particulars of the shop, including the area, rate, communicate the particulars of the shop, including the area, rate, registration charges, and other terms and conditions. Shri Imran registration charges, and other terms and conditions. Shri Imran registration charges, and other terms and conditions. Shri Imran Ansari further stated that, upon the purchaser agreeing to the Ansari further stated that, upon the purchaser agreeing to the Ansari further stated that, upon the purchaser agreeing to the terms, a token amount, stated terms, a token amount, stated to range between to range between ₹50,000/- and ₹2,00,000/-, was collected in cash, and upon receipt thereof, the , was collected in cash, and upon receipt thereof, the , was collected in cash, and upon receipt thereof, the shop would be provisionally booked in the name of the purchaser. shop would be provisionally booked in the name of the purchaser. shop would be provisionally booked in the name of the purchaser. He claimed that, thereafter, a small diary was handed over to the He claimed that, thereafter, a small diary was handed over to the He claimed that, thereafter, a small diary was handed over to the Bharat Solanki to 6525/MUM/2 to 6525/MUM/2025 purchaser, wherein the cash purchaser, wherein the cash amounts received were noted. He amounts received were noted. He would then intimate the details of the transaction to Shri Tabrez would then intimate the details of the transaction to Shri Tabrez would then intimate the details of the transaction to Shri Tabrez Shaikh, Chairman and Managing Director of RHIL. According to Shaikh, Chairman and Managing Director of RHIL. According to Shaikh, Chairman and Managing Director of RHIL. According to him, the balance consideration was thereafter paid by the him, the balance consideration was thereafter paid by the him, the balance consideration was thereafter paid by the purchaser in agreed instalments, and u purchaser in agreed instalments, and upon completion of the pon completion of the formalities, the shop was registered either in the name of the formalities, the shop was registered either in the name of the formalities, the shop was registered either in the name of the purchaser or in the name specified by such purchaser. He further purchaser or in the name specified by such purchaser. He further purchaser or in the name specified by such purchaser. He further explained that the sale price of the shops was determined by Shri explained that the sale price of the shops was determined by Shri explained that the sale price of the shops was determined by Shri Tabrez Shaikh, having regard to factors Tabrez Shaikh, having regard to factors such as the floor on which such as the floor on which the shop was situated and its proximity to the atrium. He stated the shop was situated and its proximity to the atrium. He stated the shop was situated and its proximity to the atrium. He stated that each floor was divided into four levels based on proximity to that each floor was divided into four levels based on proximity to that each floor was divided into four levels based on proximity to the atrium, with Level the atrium, with Level-1 shops, being closest to the atrium, 1 shops, being closest to the atrium, commanding the highest price, and Le commanding the highest price, and Level-4 shops, being the 4 shops, being the farthest, being priced the lowest. He also stated that the pricing of farthest, being priced the lowest. He also stated that the pricing of farthest, being priced the lowest. He also stated that the pricing of shops on the lower floors was higher as compared to those situated shops on the lower floors was higher as compared to those situated shops on the lower floors was higher as compared to those situated on the upper floors.

6.3 Further, during the course of the search proceedings Further, during the course of the search proceedings Further, during the course of the search proceedings conducted at the residential premises of Shri Imran Ansari, a 16 GB ted at the residential premises of Shri Imran Ansari, a 16 GB ted at the residential premises of Shri Imran Ansari, a 16 GB pen drive was found and seized from his possession. In his pen drive was found and seized from his possession. In his pen drive was found and seized from his possession. In his statement, Shri Imran Ansari stated that the data contained in the statement, Shri Imran Ansari stated that the data contained in the statement, Shri Imran Ansari stated that the data contained in the said pen drive had been prepared and maintained by him in Excel said pen drive had been prepared and maintained by him in Excel said pen drive had been prepared and maintained by him in Excel format. The contents of the Excel sheets retrieved from the pen at. The contents of the Excel sheets retrieved from the pen at. The contents of the Excel sheets retrieved from the pen drive have been reproduced by the Assessing Officer in paragraph drive have been reproduced by the Assessing Officer in paragraph drive have been reproduced by the Assessing Officer in paragraph 5.4 of the impugned assessment order. Shri Imran Ansari explained 5.4 of the impugned assessment order. Shri Imran Ansari explained 5.4 of the impugned assessment order. Shri Imran Ansari explained that the Excel file, titled that the Excel file, titled “Consolidated 1 2 3 Balance” “Consolidated 1 2 3 Balance”, comprised multiple sheets, including sheets captioned multiple sheets, including sheets captioned “Master” “Master”, “Payment”, and “Cheque”, among others. According to Shri Imran Ansari, , among others. According to Shri Imran Ansari, , among others. According to Shri Imran Ansari, comprehensive details relating to the sale of shops in the Platinum comprehensive details relating to the sale of shops in the comprehensive details relating to the sale of shops in the Mall project were recorded in these Excel sheets. He further project were recorded in these Excel sheets. He further stated project were recorded in these Excel sheets. He further that the “Master” sheet was particularly detailed, containing data sheet was particularly detailed, containing data sheet was particularly detailed, containing data spread across 98 columns. In response to Questions Nos. 22 to 24 spread across 98 columns. In response to Questions Nos. 22 to 24 spread across 98 columns. In response to Questions Nos. 22 to 24 in his statements recorded on 17.03.2021 and 20.03.2021, Shri in his statements recorded on 17.03.2021 and 20.03.2021, Shri in his statements recorded on 17.03.2021 and 20.03.2021, Shri Imran Ansari explained the nature and significance of each of the Imran Ansari explained the nature and significance of Imran Ansari explained the nature and significance of columns maintained in the said sheet. The explanations furnished columns maintained in the said sheet. The explanations furnished columns maintained in the said sheet. The explanations furnished by Shri Imran Ansari in this regard have been collated and by Shri Imran Ansari in this regard have been collated and by Shri Imran Ansari in this regard have been collated and Bharat Solanki to 6525/MUM/2 to 6525/MUM/2025 reproduced by the Assessing Officer at pages 5 and 6 of the reproduced by the Assessing Officer at pages 5 and 6 of the reproduced by the Assessing Officer at pages 5 and 6 of the impugned assessment order. impugned assessment order. For ready reference, the said tab For ready reference, the said table is reproduced as under: reproduced as under:

K Token Amount A Token Amount A This means the amount in Rs. accepted as This means the amount in Rs. accepted as token in cash at the time of booking of shop token in cash at the time of booking of shop from buyer as mentioned in Column B. from buyer as mentioned in Column B. L Date This is the date of the amount paid in cash This is the date of the amount paid in cash mentioned in Column K. M Token Amount B Token This means the amount in Rs. accepted as This means the amount in Rs. accepted as second token amount in cash from buyer as second token amount in cash from buyer as mentioned in Column B. N Date This is the date of the amount paid in cash This is the date of the amount paid in cash mentioned in Column M. O 1st inst. Payment 1st inst. Payment This means the amount in Rs. accepted as This means the amount in Rs. accepted as first instalment amount in cash from buyer as first instalment amount in cash from buyer as mentioned in Column B. P Date This is the date of the amount paid in cash This is the date of the amount paid in cash mentioned in Column O. Q 2nd Inst. Payment 2nd Inst. Payment This means the amount in Rs. accepted as This means the amount in Rs. accepted as Second instalment amount in cash from buyer Second instalment amount in cash from buyer as mentioned in Column B. mentioned in Column B. R Date This is the date of the amount paid in cash This is the date of the amount paid in cash mentioned in Column Q. S 3rd Inst. Payment 3rd Inst. Payment This means the amount in Rs. accepted as This means the amount in Rs. accepted as third instalment amount in cash from buyer third instalment amount in cash from buyer as mentioned in Column B. as mentioned in Column B. T Date This is the date of the amount paid in cash the amount paid in cash mentioned in Column S. U Penalty Penalty This means the estimated penalty to be levied This means the estimated penalty to be levied on the basis delayed payments, however the on the basis delayed payments, however the same has never been collected. same has never been collected. V Days Delayed Days Delayed This means the number of days delayed in the This means the number of days delayed in the payments of any instalments as mentioned in instalments as mentioned in previous columns. W Due Date Due Date This means the last due date of payment to be This means the last due date of payment to be made in cash X Date This means the cut off date to calculate days This means the cut off date to calculate days delayed as mentioned in Column V delayed as mentioned in Column V Y A Value A Value This means old agreement value of shop in This means old agreement value of shop in Rs. which has been derived from the old area Rs. which has been derived from the old area (as mentioned in column F multiplied by the (as mentioned in column F multiplied by the rates as mentioned above) rates as mentioned above) Z Rev A. Value Rev A. Value This means Revised agreement value in Rs. of This means Revised agreement value in Rs. of shop which has been derived from the revised shop which has been derived from the revised area (as mentioned in column G mul area (as mentioned in column G multiplied by the rates as mentioned above) the rates as mentioned above)

Further, in response to Question No. 26 of his statement, Shri 6.5 Further, in response to Question No. 26 of his statement, Shri Further, in response to Question No. 26 of his statement, Shri Imran Ansari elaborated upon the manner in which buyers were Imran Ansari elaborated upon the manner in which buyers were Imran Ansari elaborated upon the manner in which buyers were Bharat Solanki to 6525/MUM/2 to 6525/MUM/2025 informed of the payment structure and the procedure followed for informed of the payment structure and the procedure followed for informed of the payment structure and the procedure followed for collection of amounts through cash and banking channels. For the collection of amounts through cash and banking channels collection of amounts through cash and banking channels sake of completeness, the substance of his response is summarised sake of completeness, the substance of his response is summarised sake of completeness, the substance of his response is summarised below. Shri Imran Ansari stated that, at the time of booking of a below. Shri Imran Ansari stated that, at the time of booking of a below. Shri Imran Ansari stated that, at the time of booking of a shop, the buyer was informed of the respective components of the shop, the buyer was informed of the respective components of the shop, the buyer was informed of the respective components of the consideration payable in cash and through cheque or banking consideration payable in cash and through cheque consideration payable in cash and through cheque channels. According to him, payments were made by the buyers in channels. According to him, payments were made by the buyers in channels. According to him, payments were made by the buyers in accordance with the agreed schedule, and in cases of delay, he accordance with the agreed schedule, and in cases of delay, he accordance with the agreed schedule, and in cases of delay, he would contact the buyers telephonically to remind them of the would contact the buyers telephonically to remind them of the would contact the buyers telephonically to remind them of the pending payments. He further stated that cheques were handed pending payments. He further stated that cheques were ha pending payments. He further stated that cheques were ha over to him by the buyers at the office, which he would thereafter over to him by the buyers at the office, which he would thereafter over to him by the buyers at the office, which he would thereafter forward to the Accounts Department through an office assistant. In forward to the Accounts Department through an office assistant. In forward to the Accounts Department through an office assistant. In cases where payment was made through bank transfer, the buyer cases where payment was made through bank transfer, the buyer cases where payment was made through bank transfer, the buyer would inform him either telephonically or by way of a message. would inform him either telephonically or by way of a m would inform him either telephonically or by way of a m With regard to cash payments, Shri Imran Ansari stated that, after With regard to cash payments, Shri Imran Ansari stated that, after With regard to cash payments, Shri Imran Ansari stated that, after verifying the amount of cash to be accepted from the buyer, he verifying the amount of cash to be accepted from the buyer, he verifying the amount of cash to be accepted from the buyer, he would accompany the buyer to Shri Abrar Ahmed, who was stated would accompany the buyer to Shri Abrar Ahmed, who was stated would accompany the buyer to Shri Abrar Ahmed, who was stated to be the cashier of M/s. Rubberwala Housing & M/s. Rubberwala Housing & Infrastructure Ltd. Infrastructure Ltd. and was stationed at the company’s office at Rubberwala House, and was stationed at the company’s office at Rubberwala House, and was stationed at the company’s office at Rubberwala House, Dr. A.R. Nair Road, Opposite Agripada Police Station, Mumbai – Dr. A.R. Nair Road, Opposite Agripada Police Station, Mumbai Dr. A.R. Nair Road, Opposite Agripada Police Station, Mumbai 400011. According to him, the buyer would hand over the cash to 400011. According to him, the buyer would hand over the cash to 400011. According to him, the buyer would hand over the cash to Shri Abrar Ahmed, who would thereafter orally Shri Abrar Ahmed, who would thereafter orally confirm receipt of confirm receipt of the cash to him. He further stated that, upon such confirmation, he the cash to him. He further stated that, upon such confirmation, he the cash to him. He further stated that, upon such confirmation, he would record the details of the cash payment, including the date would record the details of the cash payment, including the date would record the details of the cash payment, including the date and amount, in a diary which, according to him, had been provided and amount, in a diary which, according to him, had been provided and amount, in a diary which, according to him, had been provided

“Q.26 Please Q.26 Please state how buyers are informed regarding payments state how buyers are informed regarding payments and payment is collected in cash and in cheque (or banking and payment is collected in cash and in cheque (or banking and payment is collected in cash and in cheque (or banking channel)? Ans. At the time of booking, the buyer is informed about the Ans. At the time of booking, the buyer is informed about the Ans. At the time of booking, the buyer is informed about the components of payment to be made in cash and through cheque components of payment to be made in cash and through cheque components of payment to be made in cash and through cheque or banking channe or banking channels. Buyers pay the amount as per agreed ls. Buyers pay the amount as per agreed schedule. In case of non schedule. In case of non-payment at due time, I call to buyers payment at due time, I call to buyers from my mobile and remind them for payments. The buyers from my mobile and remind them for payments. The buyers from my mobile and remind them for payments. The buyers handover me the cheques in office which I forward to the handover me the cheques in office which I forward to the handover me the cheques in office which I forward to the Accounts Department through office boy. Accounts Department through office boy. In case of bank transfer, In case of bank transfer, the buyer intimate me either on call or through message. In case the buyer intimate me either on call or through message. In case the buyer intimate me either on call or through message. In case of cash, I verify the amount of cash to be accepted from the buyer of cash, I verify the amount of cash to be accepted from the buyer of cash, I verify the amount of cash to be accepted from the buyer and then take the buyer to Mr. Abrar Ahmed (Cashier in M/s and then take the buyer to Mr. Abrar Ahmed (Cashier in M/s and then take the buyer to Mr. Abrar Ahmed (Cashier in M/s Rubberwala Housing and Infrastructure L Rubberwala Housing and Infrastructure Limited) who also sits in imited) who also sits in office of at Rubberwala Housing and Infrastructure Limited office of at Rubberwala Housing and Infrastructure Limited office of at Rubberwala Housing and Infrastructure Limited situated at Rubberwala House, Dr. A R Nair Road, Opp. Agripada situated at Rubberwala House, Dr. A R Nair Road, Opp. Agripada situated at Rubberwala House, Dr. A R Nair Road, Opp. Agripada Police Station, Agripada Mumbai Police Station, Agripada Mumbai- 400011. Then, the buyer gives 400011. Then, the buyer gives the amount of cash to Mr. Abrar Ahmed. Thereaf the amount of cash to Mr. Abrar Ahmed. Thereafter, Mr. Abrar ter, Mr. Abrar Ahmed confirms the cash received from buyer to me orally. Then, Ahmed confirms the cash received from buyer to me orally. Then, Ahmed confirms the cash received from buyer to me orally. Then, I make entry in the diary earlier given to the buyer at the time of I make entry in the diary earlier given to the buyer at the time of I make entry in the diary earlier given to the buyer at the time of booking of shop. I mention the amount of cash along with date of booking of shop. I mention the amount of cash along with date of booking of shop. I mention the amount of cash along with date of payment in that diary and sign after each en payment in that diary and sign after each entry. Parallelly, I try. Parallelly, I update my Excel File named "consolidated 1 2 3 balance" which update my Excel File named "consolidated 1 2 3 balance" which update my Excel File named "consolidated 1 2 3 balance" which has been mentioned above. has been mentioned above.” 6.6 Further, in response to Question No. 27 of his statement, Shri Further, in response to Question No. 27 of his statement, Shri Further, in response to Question No. 27 of his statement, Shri Imran Ansari stated that he would accompany the buyers to Shri Imran Ansari stated that he would accompany the buyers to Shri Imran Ansari stated that he would accompany the buyers to Shri Abrar Ahmed, who w Abrar Ahmed, who was stated to be the person entrusted with as stated to be the person entrusted with handling cash transactions on behalf of the Rubberwala Group. He handling cash transactions on behalf of the Rubberwala Group. He handling cash transactions on behalf of the Rubberwala Group. He deposed that, upon receipt of cash from the buyer, Shri Abrar deposed that, upon receipt of cash from the buyer, Shri Abrar deposed that, upon receipt of cash from the buyer, Shri Abrar

6.7 On the basis of the aforesaid Excel sheets ma On the basis of the aforesaid Excel sheets maintained by Shri intained by Shri Imran Ansari, the Assessing Officer observed that the assessee had Imran Ansari, the Assessing Officer observed that the assessee had Imran Ansari, the Assessing Officer observed that the assessee had booked a shop in the Platinum Mall project and had allegedly made booked a shop in the Platinum Mall project and had allegedly made booked a shop in the Platinum Mall project and had allegedly made cash payments aggregating to cash payments aggregating to ₹12,87,900/-, spread over three , spread over three assessment years, namely Assessment Years 201 assessment years, namely Assessment Years 2017– –18 to 2019–20. The Assessing Officer further noted that, pursuant to the search The Assessing Officer further noted that, pursuant to the search The Assessing Officer further noted that, pursuant to the search action and the statements recorded from key persons of the action and the statements recorded from key persons of the action and the statements recorded from key persons of the Rubberwala Group, the said group had accepted the receipt of Rubberwala Group, the said group had accepted the receipt of Rubberwala Group, the said group had accepted the receipt of unaccounted cash and had offered 8 per cent of such amount to unaccounted cash and had offered 8 per cent of such am unaccounted cash and had offered 8 per cent of such am tax. Relying upon the details reflected in the Excel sheets, the tax. Relying upon the details reflected in the Excel sheets, the tax. Relying upon the details reflected in the Excel sheets, the Assessing Officer formed the view that the assessee had incurred Assessing Officer formed the view that the assessee had incurred Assessing Officer formed the view that the assessee had incurred unexplained cash expenditure / investment towards the purchase unexplained cash expenditure / investment towards the purchase unexplained cash expenditure / investment towards the purchase of the said shop. When the assessee sought an opportunity to of the said shop. When the assessee sought an opportuni of the said shop. When the assessee sought an opportuni cross-examine the persons whose statements and data were relied examine the persons whose statements and data were relied examine the persons whose statements and data were relied upon, the Assessing Officer declined the said request. The reasons upon, the Assessing Officer declined the said request. The reasons upon, the Assessing Officer declined the said request. The reasons recorded by the Assessing Officer for rejecting the request for cross- recorded by the Assessing Officer for rejecting the request for cross recorded by the Assessing Officer for rejecting the request for cross examination are reproduced in paragraph 9.3 of the impugned examination are reproduced in paragraph 9.3 of th examination are reproduced in paragraph 9.3 of th assessment order, wherein reliance was placed upon certain judicial assessment order, wherein reliance was placed upon certain judicial assessment order, wherein reliance was placed upon certain judicial precedents to hold that the right of cross precedents to hold that the right of cross-examination is not examination is not Bharat Solanki to 6525/MUM/2 to 6525/MUM/2025 absolute and depends upon the facts and circumstances of each absolute and depends upon the facts and circumstances of each absolute and depends upon the facts and circumstances of each case. It was further observed by the Assessing Officer that, case. It was further observed by the Assessing Office case. It was further observed by the Assessing Office according to him, the documents seized during the search according to him, the documents seized during the search according to him, the documents seized during the search proceedings clearly contained the name and PAN of the assessee in proceedings clearly contained the name and PAN of the assessee in proceedings clearly contained the name and PAN of the assessee in relation to the alleged unaccounted transaction, and that the relation to the alleged unaccounted transaction, and that the relation to the alleged unaccounted transaction, and that the contents of the electronic data had been admitted by the concerned contents of the electronic data had been admitted by the concer contents of the electronic data had been admitted by the concer person in a statement recorded under section 131 of the Act. On person in a statement recorded under section 131 of the Act. On person in a statement recorded under section 131 of the Act. On this basis, the Assessing Officer concluded that no circumstances this basis, the Assessing Officer concluded that no circumstances this basis, the Assessing Officer concluded that no circumstances warranting grant of cross warranting grant of cross-examination were made out. Accordingly, examination were made out. Accordingly, on the aforesaid reasoning, the Assessing Officer proceeded to make on the aforesaid reasoning, the Assessing Officer procee on the aforesaid reasoning, the Assessing Officer procee an addition of ₹1,00,000/ 1,00,000/- in the year under consideration. in the year under consideration.

“9.3. Further, in respect to the assessee's request for cross 9.3. Further, in respect to the assessee's request for cross 9.3. Further, in respect to the assessee's request for cross examination it is submitted that the right of cross examination it is submitted that the right of cross examination is examination is not an absolute right. (Nath International Sales vs. UOI, AIR 1992 not an absolute right. (Nath International Sales vs. UOI, AIR 1992 not an absolute right. (Nath International Sales vs. UOI, AIR 1992 (Del) 295). The Hon'ble Supreme Court has also held that the (Del) 295). The Hon'ble Supreme Court has also held that the (Del) 295). The Hon'ble Supreme Court has also held that the right of hearing does not necessarily include right of cross right of hearing does not necessarily include right of cross right of hearing does not necessarily include right of cross examination. The right of cross examination must dep examination. The right of cross examination must dep examination. The right of cross examination must depend upon the circumstances of each case and also on the statute concerned the circumstances of each case and also on the statute concerned the circumstances of each case and also on the statute concerned (State of J&K vs. Bakshi Gulam Mohammad AIR 1967 SC 122). (State of J&K vs. Bakshi Gulam Mohammad AIR 1967 SC 122). (State of J&K vs. Bakshi Gulam Mohammad AIR 1967 SC 122). The question whether the assessee is entitled to cross The question whether the assessee is entitled to cross The question whether the assessee is entitled to cross examination is a question which may largely depends on the examination is a question which may largely depends on the examination is a question which may largely depends on the facts and circumstances of the case (ef. Shyamlal Biri Merchant circumstances of the case (ef. Shyamlal Biri Merchant circumstances of the case (ef. Shyamlal Biri Merchant vs. UOI (1993) 68 ELT 548, 551(All.) In the present case, no such vs. UOI (1993) 68 ELT 548, 551(All.) In the present case, no such vs. UOI (1993) 68 ELT 548, 551(All.) In the present case, no such circumstances are warranted as in the documents collected circumstances are warranted as in the documents collected circumstances are warranted as in the documents collected during the search and survey proceedings in the case of M/s during the search and survey proceedings in the case of M/s during the search and survey proceedings in the case of M/s Bait-Al-Tamur Co., Tamur Co., the name and PAN of the assessee (ACM the name and PAN of the assessee (ACM- Ashok Chimanlal Mehta) was clearly mentioned in respect of Ashok Chimanlal Mehta) was clearly mentioned in respect of Ashok Chimanlal Mehta) was clearly mentioned in respect of unaccounted purchase of Rs. 13,81,350/ unaccounted purchase of Rs. 13,81,350/- from M/s Bait from M/s Bait-Al- Tamur Co. during the F.Y.2017 Tamur Co. during the F.Y.2017- 18 relevant to A.Y.2018 18 relevant to A.Y.2018-19. Further, these facts in the pendrive were Further, these facts in the pendrive were also confronted to Shri also confronted to Shri Rajal Narendra Ashar (proprietor of M/s Bait Rajal Narendra Ashar (proprietor of M/s Bait-Al-Tamur Co.) and Tamur Co.) and in his statement recorded on oath u/s.131 of the Act, he admitted in his statement recorded on oath u/s.131 of the Act, he admitted in his statement recorded on oath u/s.131 of the Act, he admitted the fact that the pen drive contained a list of out of books sales. the fact that the pen drive contained a list of out of books sales. the fact that the pen drive contained a list of out of books sales.

The Hon'ble Rajasthan High Court i The Hon'ble Rajasthan High Court in the case of Rameshwarlal n the case of Rameshwarlal Mali vs. CIT 256ITR536(Raj.) has held that "there is no provision Mali vs. CIT 256ITR536(Raj.) has held that "there is no provision Mali vs. CIT 256ITR536(Raj.) has held that "there is no provision for permitting the cross examination of the persons whose for permitting the cross examination of the persons whose for permitting the cross examination of the persons whose statements were recorded during survey." statements were recorded during survey." In CIT v. Metal Products of India (1984) 150 ITR 714 (P&H), it In CIT v. Metal Products of India (1984) 150 ITR 714 (P&H), it In CIT v. Metal Products of India (1984) 150 ITR 714 (P&H), it was held that the AO may gather information in any manner he as held that the AO may gather information in any manner he as held that the AO may gather information in any manner he likes, behind the back of the assessee and utilize the same likes, behind the back of the assessee and utilize the same likes, behind the back of the assessee and utilize the same against the assessee, even if it does not, in all respects satisfy against the assessee, even if it does not, in all respects satisfy against the assessee, even if it does not, in all respects satisfy the requirements of the Indian Evidence Act. What is necessary is the requirements of the Indian Evidence Act. What is necessary is the requirements of the Indian Evidence Act. What is necessary is that he should have material upon which to base the t he should have material upon which to base the t he should have material upon which to base the assessment; "material" as distinguished from "evidence" which assessment; "material" as distinguished from "evidence" which assessment; "material" as distinguished from "evidence" which includes direct and circumstantial evidence. includes direct and circumstantial evidence. Therefore, in view of the facts and circumstance discussed Therefore, in view of the facts and circumstance discussed Therefore, in view of the facts and circumstance discussed hereinabove, the request of the assessee hereinabove, the request of the assessee for cross examination is for cross examination is rejected.” 6.9 On further appeal, the Ld. CIT(A) also rejected the contention On further appeal, the Ld. CIT(A) also rejected the contention On further appeal, the Ld. CIT(A) also rejected the contention of the assessee for providing cross of the assessee for providing cross-examination. The relevant examination. The relevant finding of the Ld. CIT(A) is reproduced as under: finding of the Ld. CIT(A) is reproduced as under:

“8.1 The AO have mentioned gist of allega 8.1 The AO have mentioned gist of allegation in the satisfaction tion in the satisfaction note. In this regard, I have perused the show cause notice issued note. In this regard, I have perused the show cause notice issued note. In this regard, I have perused the show cause notice issued by the AO. A thorough examination of the said notice reveals that by the AO. A thorough examination of the said notice reveals that by the AO. A thorough examination of the said notice reveals that the AO had duly communicated and forwarded the details of the the AO had duly communicated and forwarded the details of the the AO had duly communicated and forwarded the details of the incriminating incriminating material material relied relied upon upon fo for r the the purposes purposes of of assessment. The show cause notice clearly refers to and includes assessment. The show cause notice clearly refers to and includes assessment. The show cause notice clearly refers to and includes relevant extracts from the statement of Shri Imran Ansari, details relevant extracts from the statement of Shri Imran Ansari, details relevant extracts from the statement of Shri Imran Ansari, details regarding the purchase of flats, and data retrieved from pen regarding the purchase of flats, and data retrieved from pen regarding the purchase of flats, and data retrieved from pen drives and all of which formed the basis of t drives and all of which formed the basis of the proceedings. he proceedings. Hence, the material in question was made available to the Hence, the material in question was made available to the Hence, the material in question was made available to the appellant and the principles of natural justice were duly adhered appellant and the principles of natural justice were duly adhered appellant and the principles of natural justice were duly adhered to. 8.2 It is a settled position in law that when the assessee is 8.2 It is a settled position in law that when the assessee is 8.2 It is a settled position in law that when the assessee is provided with an adequate opportunity to respond t provided with an adequate opportunity to respond to the material o the material relied upon, there is no violation of the principles of natural relied upon, there is no violation of the principles of natural relied upon, there is no violation of the principles of natural justice. In this context, reliance is placed on Andaman Timber justice. In this context, reliance is placed on Andaman Timber justice. In this context, reliance is placed on Andaman Timber Industries v. CCE [2015] 62 taxmann.com 3 (SC), where the Industries v. CCE [2015] 62 taxmann.com 3 (SC), where the Industries v. CCE [2015] 62 taxmann.com 3 (SC), where the Hon'ble Supreme Court held that denial of cross Hon'ble Supreme Court held that denial of cross-examinat examination would vitiate proceedings only if the evidence sought to be cross would vitiate proceedings only if the evidence sought to be cross would vitiate proceedings only if the evidence sought to be cross- examined was the sole basis of the order and no opportunity was examined was the sole basis of the order and no opportunity was examined was the sole basis of the order and no opportunity was provided at any stage. However, if adequate opportunity is provided at any stage. However, if adequate opportunity is provided at any stage. However, if adequate opportunity is Bharat Solanki to 6525/MUM/2 to 6525/MUM/2025 provided and documents are shared, such proceedings are not provided and documents are shared, such proceedings are not provided and documents are shared, such proceedings are not rendered invalid. dered invalid. 8.3. In the present case, the AO has clearly provided the 8.3. In the present case, the AO has clearly provided the 8.3. In the present case, the AO has clearly provided the necessary material through the show cause notice dated necessary material through the show cause notice dated necessary material through the show cause notice dated 03.03.2024 and granted the appellant sufficient opportunity to 03.03.2024 and granted the appellant sufficient opportunity to 03.03.2024 and granted the appellant sufficient opportunity to submit a response. Therefore, the argument that there was non submit a response. Therefore, the argument that there was non submit a response. Therefore, the argument that there was non- supply of material or denial of cross ply of material or denial of cross-examination is devoid of examination is devoid of merit and does not hold ground. merit and does not hold ground. 8.4. In the case of Chairman Mining Board v. Ramjee 1977 AIR 8.4. In the case of Chairman Mining Board v. Ramjee 1977 AIR 8.4. In the case of Chairman Mining Board v. Ramjee 1977 AIR 965 SC, the Hon'ble Supreme Court observed as under: 965 SC, the Hon'ble Supreme Court observed as under: 965 SC, the Hon'ble Supreme Court observed as under:- Natural justice is no unruly horse, no lurking la Natural justice is no unruly horse, no lurking landmine, nor a ndmine, nor a judicial cure-all. If fairness is shown by the decision all. If fairness is shown by the decision-maker to the maker to the man proceeded against, the form, features and the fundamentals man proceeded against, the form, features and the fundamentals man proceeded against, the form, features and the fundamentals of such essential procedural propriety being conditioned by the of such essential procedural propriety being conditioned by the of such essential procedural propriety being conditioned by the facts and circumstances of each situation, no facts and circumstances of each situation, no breach of natural breach of natural justice can be complained of. Unnatural expansion of natural justice can be complained of. Unnatural expansion of natural justice can be complained of. Unnatural expansion of natural justice without reference to the administrative realities and other justice without reference to the administrative realities and other justice without reference to the administrative realities and other factors of a given case can be exasperating. Courts cannot look at factors of a given case can be exasperating. Courts cannot look at factors of a given case can be exasperating. Courts cannot look at law in the abstract or natural justice as law in the abstract or natural justice as a mere artifact... If the a mere artifact... If the totality of circumstances from denial of reasonable opportunity totality of circumstances from denial of reasonable opportunity totality of circumstances from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules the Court will decline to be punctilious or fanatical as if the rules the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures." of natural justice were sacred scriptures." 8.5. Duties and obligations go hand in hand and the 8.5. Duties and obligations go hand in hand and the 8.5. Duties and obligations go hand in hand and the appellant cannot merely harp on technicalities even while failing to cannot merely harp on technicalities even while failing to cannot merely harp on technicalities even while failing to discharge the onus laid on him. discharge the onus laid on him. 8.6. In the case of Hersh W Chadah V. DDIT, 43 SOT 544, the 8.6. In the case of Hersh W Chadah V. DDIT, 43 SOT 544, the 8.6. In the case of Hersh W Chadah V. DDIT, 43 SOT 544, the Hon'ble ITAT has held that: Hon'ble ITAT has held that:- "6.14 It will also be worthwhile to consider the nature of burden "6.14 It will also be worthwhile to consider the nature of burden "6.14 It will also be worthwhile to consider the nature of burden of proof on the Assessing Officer for proving a fact or of proof on the Assessing Officer for proving a fact or of proof on the Assessing Officer for proving a fact or circumstance in the income circumstance in the income-tax proceedings. The questions raised tax proceedings. The questions raised about the tax liability by the Assessing Officer are to be about the tax liability by the Assessing Officer are to be about the tax liability by the Assessing Officer are to be answered by the assessee by furnishing reasonable and answered by the assessee by furnishing reasonable and answered by the assessee by furnishing reasonable and plausible explanations plausible explanations. If assessee is not forthcoming with proper . If assessee is not forthcoming with proper or complete facts or his statement or explanation is contradictory, or complete facts or his statement or explanation is contradictory, or complete facts or his statement or explanation is contradictory, drawing of suitable inferences and estimation of facts is drawing of suitable inferences and estimation of facts is drawing of suitable inferences and estimation of facts is inevitable. Courts generally will not interfere with such estimate inevitable. Courts generally will not interfere with such estimate inevitable. Courts generally will not interfere with such estimate of facts, unless t of facts, unless the inferences or estimates are perverse or he inferences or estimates are perverse or capricious.” 8.7. In the above case of Hersh W Chadhavs DDIT, 8.7. In the above case of Hersh W Chadhavs DDIT, 8.7. In the above case of Hersh W Chadhavs DDIT, to 3098 & 3107/Del/2005, the Hon'ble ITAT held as follows: to 3098 & 3107/Del/2005, the Hon'ble ITAT held as follows: to 3098 & 3107/Del/2005, the Hon'ble ITAT held as follows:

"The tax liability in the cases of suspicious transactions, is to be "The tax liability in the cases of suspicious transactions, is to be "The tax liability in the cases of suspicious transactions, is to be assessed on the basis of the material available on record, the basis of the material available on record, surrounding circumstances, human conduct, preponderance of surrounding circumstances, human conduct, preponderance of surrounding circumstances, human conduct, preponderance of probabilities and nature of incriminating information/ evidence probabilities and nature of incriminating information/ evidence probabilities and nature of incriminating information/ evidence available with AO." It was further held as "6.3 Rules of evidence available with AO." It was further held as "6.3 Rules of evidence available with AO." It was further held as "6.3 Rules of evidence do not govern the i do not govern the income-tax proceedings, as the proceedings tax proceedings, as the proceedings under the Income under the Income-tax Act are not judicial proceedings in the tax Act are not judicial proceedings in the sense in which the phrase "judicial proceedings" is ordinarily sense in which the phrase "judicial proceedings" is ordinarily sense in which the phrase "judicial proceedings" is ordinarily used. The Assessing Officer is not fettered or bound by technical used. The Assessing Officer is not fettered or bound by technical used. The Assessing Officer is not fettered or bound by technical rules about evidence con rules about evidence contained in the Indian Evidence Act, and tained in the Indian Evidence Act, and he is entitled to act on material which may not be accepted as he is entitled to act on material which may not be accepted as he is entitled to act on material which may not be accepted as evidence in a court of law." evidence in a court of law." 8.8. The Hon'ble Delhi High Court in Addl. CIT v. Jay Engg. 8.8. The Hon'ble Delhi High Court in Addl. CIT v. Jay Engg. 8.8. The Hon'ble Delhi High Court in Addl. CIT v. Jay Engg. Works Ltd. [1978] 113 ITR 389 (Delhi) held that the Assessing Works Ltd. [1978] 113 ITR 389 (Delhi) held that the Assessing Works Ltd. [1978] 113 ITR 389 (Delhi) held that the Assessing Officer has, no doubt, to hear "evidence", but such evidence may ficer has, no doubt, to hear "evidence", but such evidence may ficer has, no doubt, to hear "evidence", but such evidence may consist of material which would be wholly inadmissible in a court consist of material which would be wholly inadmissible in a court consist of material which would be wholly inadmissible in a court of law. 8.9. In CIT v. Metal Products of India [1984] 150 ITR 714 (Punj. 8.9. In CIT v. Metal Products of India [1984] 150 ITR 714 (Punj. 8.9. In CIT v. Metal Products of India [1984] 150 ITR 714 (Punj. &Har.), it was held that the Assessing Officer may gat &Har.), it was held that the Assessing Officer may gat &Har.), it was held that the Assessing Officer may gather information in any manner he likes, behind the back of the information in any manner he likes, behind the back of the information in any manner he likes, behind the back of the assessee and utilize the same against the assessee, even if it assessee and utilize the same against the assessee, even if it assessee and utilize the same against the assessee, even if it does not, in all respects satisfy the requirements of the Indian does not, in all respects satisfy the requirements of the Indian does not, in all respects satisfy the requirements of the Indian Evidence Act. What is necessary is that he should have material Evidence Act. What is necessary is that he should have material Evidence Act. What is necessary is that he should have material upon which to base the assessment; "material" as distinguished pon which to base the assessment; "material" as distinguished pon which to base the assessment; "material" as distinguished from "evidence" which includes direct and circumstantial from "evidence" which includes direct and circumstantial from "evidence" which includes direct and circumstantial evidence. 8.10. In ITC Classic Finance Ltd vs DCIT, 264 ITR 154, the 8.10. In ITC Classic Finance Ltd vs DCIT, 264 ITR 154, the 8.10. In ITC Classic Finance Ltd vs DCIT, 264 ITR 154, the Hon'ble Bombay HC has held that where the transaction does Hon'ble Bombay HC has held that where the transaction does Hon'ble Bombay HC has held that where the transaction does not appear to be overboard, the addition is to be sustained. r to be overboard, the addition is to be sustained. r to be overboard, the addition is to be sustained. 8.11. In State Bank of Patiala v. K Sharma [1996] 3 SCC 364, the 8.11. In State Bank of Patiala v. K Sharma [1996] 3 SCC 364, the 8.11. In State Bank of Patiala v. K Sharma [1996] 3 SCC 364, the Hon'ble Supreme Court observed as follows: "Justice means Hon'ble Supreme Court observed as follows: "Justice means Hon'ble Supreme Court observed as follows: "Justice means justice between both the parties. The interests of justice equally justice between both the parties. The interests of justice equally justice between both the parties. The interests of justice equally demand demand that that th the e guilty should guilty should be punished and that be punished and that technicalities and irregularities which do not occasion failure of technicalities and irregularities which do not occasion failure of technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of justice are not allowed to defeat the ends of justice. Principles of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. natural justice are but the means to achieve the ends of justice. natural justice are but the means to achieve the ends of justice. They cannot be pe They cannot be perverted to achieve the very opposite end. That rverted to achieve the very opposite end. That would be a counter would be a counter-productive exercise." The Hon'ble Court productive exercise." The Hon'ble Court further held that "(6) While applying the rule of audi alteram further held that "(6) While applying the rule of audi alteram further held that "(6) While applying the rule of audi alteram partem [the primary principle of natural justice] the Court/ partem [the primary principle of natural justice] the Court/ partem [the primary principle of natural justice] the Court/ Tribunal/Authority must al Tribunal/Authority must always bear in mind the ultimate and ways bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a riding objective underlying the said rule, viz., to ensure a riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is fair hearing and to ensure that there is no failure of justice. It is fair hearing and to ensure that there is no failure of justice. It is Bharat Solanki to 6525/MUM/2 to 6525/MUM/2025 this objective which should guide them in applying the rule to this objective which should guide them in applying the rule to this objective which should guide them in applying the rule to varying situations tha varying situations that arise before them." 8.12. Right to Cross 8.12. Right to Cross-examination as held in various decisions, is examination as held in various decisions, is not absolute in nature. not absolute in nature. (i) The Hon'ble Supreme Court has held in the case of State of (i) The Hon'ble Supreme Court has held in the case of State of (i) The Hon'ble Supreme Court has held in the case of State of J&K Vs. Bakshi GulamMohd. AIR 1967 (SC) 122 and in the case J&K Vs. Bakshi GulamMohd. AIR 1967 (SC) 122 and in the case J&K Vs. Bakshi GulamMohd. AIR 1967 (SC) 122 and in the case of Nath International of Nath International Sales Vs. UOI AIR 1992 Del 295 that the Sales Vs. UOI AIR 1992 Del 295 that the right of hearing does not include a right to cross right of hearing does not include a right to cross-examine. The examine. The right to cross examine must depend upon the circumstances of right to cross examine must depend upon the circumstances of right to cross examine must depend upon the circumstances of each case and also on the statue concerned. each case and also on the statue concerned. (ii) In the case of GTC Industries Ltd. V. Ass (ii) In the case of GTC Industries Ltd. V. Asstt. CIT (1998) 60 TTJ tt. CIT (1998) 60 TTJ (Bom.Trib) 308, it was held that under the dictum of 'Audi (Bom.Trib) 308, it was held that under the dictum of 'Audi (Bom.Trib) 308, it was held that under the dictum of 'Audi Alteram Partem', the right to cross Alteram Partem', the right to cross-examine the witness who examine the witness who made adverse report is not an invariable attribute of the made adverse report is not an invariable attribute of the made adverse report is not an invariable attribute of the requirement of the said dictum. The principles of natural requirement of the said dictum. The principles of natural requirement of the said dictum. The principles of natural justice do not require formal cross do not require formal cross- examination. Formal cross examination. Formal cross- examination is a part of procedural justice. It is governed by the examination is a part of procedural justice. It is governed by the examination is a part of procedural justice. It is governed by the rules of evidence, and is the creation of Court. It is part of legal rules of evidence, and is the creation of Court. It is part of legal rules of evidence, and is the creation of Court. It is part of legal and statutory justice, and not a part of natural justic and statutory justice, and not a part of natural justice, therefore, e, therefore, it cannot be laid down as a general proposition of law that the it cannot be laid down as a general proposition of law that the it cannot be laid down as a general proposition of law that the revenue could not rely on any evidence which had not been revenue could not rely on any evidence which had not been revenue could not rely on any evidence which had not been subjected to cross subjected to cross-examination. However, if a witness has given examination. However, if a witness has given directly incriminating statement and the addition in the directly incriminating statement and the addition in the directly incriminating statement and the addition in the assessment is based solely or mainly on such statement, in that assessment is based solely or mainly on such statement, in that assessment is based solely or mainly on such statement, in that eventuality it is incumbent on the Assessing Officer to allow eventuality it is incumbent on the Assessing Officer to allow eventuality it is incumbent on the Assessing Officer to allow cross- examination. Adverse evidence and material, relied upon examination. Adverse evidence and material, relied upon examination. Adverse evidence and material, relied upon in the order, to reach the finality, should be disclosed to the in the order, to reach the finality, should be disclosed to the in the order, to reach the finality, should be disclosed to the assessee. But this rule is not applicable where the material or sessee. But this rule is not applicable where the material or sessee. But this rule is not applicable where the material or evidence used is of collateral nature. evidence used is of collateral nature. (iii) In Kanungo& Company vs Collector of Customs And Ors. on 7 (iii) In Kanungo& Company vs Collector of Customs And Ors. on 7 (iii) In Kanungo& Company vs Collector of Customs And Ors. on 7 February, 1972, AIR 1972 SC 2136, a 3 judge bench of the February, 1972, AIR 1972 SC 2136, a 3 judge bench of the February, 1972, AIR 1972 SC 2136, a 3 judge bench of the Hon'ble Apex Court held that "We m Hon'ble Apex Court held that "We may first deal with the ay first deal with the question of breach of natural justice. On the material on record, in question of breach of natural justice. On the material on record, in question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the show our opinion, there has been no such breach. In the show our opinion, there has been no such breach. In the show-cause notice issued on August 21, 1961, all the material on which the notice issued on August 21, 1961, all the material on which the notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was se Customs Authorities have relied was set out and it was then for t out and it was then for the appellant to give a suitable explanation. The complaint of the the appellant to give a suitable explanation. The complaint of the the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were appellant now is that all the persons from whom enquiries were appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been alleged to have been made by the authorities should have been alleged to have been made by the authorities should have been produced to enable it to cross produced to enable it to cross-examine them. In our-opinion, the opinion, the principles of natural justice do not require that in matters like this principles of natural justice do not require that in matters like this principles of natural justice do not require that in matters like this the persons who have given information should be examined in the persons who have given information should be examined in the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross the presence of the appellant or should be allowed to be cross the presence of the appellant or should be allowed to be cross-

Bharat Solanki to 6525/MUM/2 to 6525/MUM/2025 examined by them on the statements examined by them on the statements made before the Customs made before the Customs Authorities. Accordingly, we hold that there is no force in the Authorities. Accordingly, we hold that there is no force in the Authorities. Accordingly, we hold that there is no force in the third contention of the appellant." It was further held in para 13 third contention of the appellant." It was further held in para 13 third contention of the appellant." It was further held in para 13 as "What the impugned order does is that it refers to the evidence as "What the impugned order does is that it refers to the evidence as "What the impugned order does is that it refers to the evidence on the record which militates aga on the record which militates against the version of the appellant inst the version of the appellant and then states that the appellant had not been able to meet the and then states that the appellant had not been able to meet the and then states that the appellant had not been able to meet the inferences arising there from. In our opinion, the High Court was inferences arising there from. In our opinion, the High Court was inferences arising there from. In our opinion, the High Court was right in holding that the burden of proof had shifted on to the right in holding that the burden of proof had shifted on to the right in holding that the burden of proof had shifted on to the appellant after the Customs appellant after the Customs Authorities had informed the Authorities had informed the appellant of the results of the enquiries and investigations.". appellant of the results of the enquiries and investigations.". appellant of the results of the enquiries and investigations.". (iv) In Surjeet Singh Chhabravs Union of India &Ors on 25 (iv) In Surjeet Singh Chhabravs Union of India &Ors on 25 (iv) In Surjeet Singh Chhabravs Union of India &Ors on 25 October, 1996, the Hon'ble SC held that cross October, 1996, the Hon'ble SC held that cross-examination was examination was not an absolute right. This case was cited not an absolute right. This case was cited by Hon'ble Andhra by Hon'ble Andhra Pradesh High Court in its order dated 31.10.2017 in M/s Pradesh High Court in its order dated 31.10.2017 in M/s Pradesh High Court in its order dated 31.10.2017 in M/s Manidhari Stainless Wire Private Limited Vs. Union of India, (Writ Manidhari Stainless Wire Private Limited Vs. Union of India, (Writ Manidhari Stainless Wire Private Limited Vs. Union of India, (Writ Petition No. 5917 of 2017), wherein it held "25. In Surjeet Singh Petition No. 5917 of 2017), wherein it held "25. In Surjeet Singh Petition No. 5917 of 2017), wherein it held "25. In Surjeet Singh Chhabra v. Union of India, the Supreme Court was Chhabra v. Union of India, the Supreme Court was Chhabra v. Union of India, the Supreme Court was concerned with a case arising under the Foreign Exchange Regulation Act with a case arising under the Foreign Exchange Regulation Act with a case arising under the Foreign Exchange Regulation Act and the Customs Act. Though the decision in Surjeet Singh and the Customs Act. Though the decision in Surjeet Singh and the Customs Act. Though the decision in Surjeet Singh Chhabra was a very brief order, the Supreme Court rejected the Chhabra was a very brief order, the Supreme Court rejected the Chhabra was a very brief order, the Supreme Court rejected the contention that the denial of cross contention that the denial of cross-examination tantamounted t examination tantamounted to the violation of the principles of natural justice. the violation of the principles of natural justice. (v) In the case of Telestar Travels Pvt. LtdvsSpecial Director of (v) In the case of Telestar Travels Pvt. LtdvsSpecial Director of (v) In the case of Telestar Travels Pvt. LtdvsSpecial Director of Enforcement dated 13.02.2013 in Civil Appeal Nos. 1306 Enforcement dated 13.02.2013 in Civil Appeal Nos. 1306 Enforcement dated 13.02.2013 in Civil Appeal Nos. 1306-1309 of 2013(arising out of S.L.P. (C) Nos. 15546 2013(arising out of S.L.P. (C) Nos. 15546-15549 of 2008), "18. 15549 of 2008), "18. The question, however, is whether failure to permit the party to on, however, is whether failure to permit the party to on, however, is whether failure to permit the party to cross examine has resulted in any prejudice so as to call for cross examine has resulted in any prejudice so as to call for cross examine has resulted in any prejudice so as to call for reversal of the orders and a de novo enquiry into the matter. The reversal of the orders and a de novo enquiry into the matter. The reversal of the orders and a de novo enquiry into the matter. The answer to that question would depend upon the facts and answer to that question would depend upon the facts and answer to that question would depend upon the facts and circumstances of circumstances of each case". It was further held in para 20 as each case". It was further held in para 20 as "the refusal of the Adjudicating Authority to permit cross "the refusal of the Adjudicating Authority to permit cross "the refusal of the Adjudicating Authority to permit cross examination of the witnesses producing the documents cannot examination of the witnesses producing the documents cannot examination of the witnesses producing the documents cannot even on the principles of Evidence Act be found fault with. At any even on the principles of Evidence Act be found fault with. At any even on the principles of Evidence Act be found fault with. At any rate, the disclosure of rate, the disclosure of the documents to the appellants and the the documents to the appellants and the opportunity given to them to rebut and explain the same was a opportunity given to them to rebut and explain the same was a opportunity given to them to rebut and explain the same was a substantial compliance with the principles of natural justice. That substantial compliance with the principles of natural justice. That substantial compliance with the principles of natural justice. That being so, there was and could be no prejudice to the appellants being so, there was and could be no prejudice to the appellants being so, there was and could be no prejudice to the appellants nor was any demonstrat nor was any demonstrated by the appellants before us or before ed by the appellants before us or before the Courts below". the Courts below". 8.13. Accordingly, Grounds No. 2 to 4, raised by appellant stand 8.13. Accordingly, Grounds No. 2 to 4, raised by appellant stand 8.13. Accordingly, Grounds No. 2 to 4, raised by appellant stand dismissed.”

Bharat Solanki to 6525/MUM/2 to 6525/MUM/2025 6.10 Further, the Ld. CIT(A) also rejected the contention of the Further, the Ld. CIT(A) also rejected the contention of the Further, the Ld. CIT(A) also rejected the contention of the assessee that addition was made solely on the third party statement assessee that addition was made solely on the third pa assessee that addition was made solely on the third pa without any documentary evidence or the proof of cash transaction without any documentary evidence or the proof of cash transaction without any documentary evidence or the proof of cash transaction relating to the assessee. The Ld. CIT(A) referred to the detailed relating to the assessee. The Ld. CIT(A) referred to the detailed relating to the assessee. The Ld. CIT(A) referred to the detailed statement of Shri Imaran Ansari and concluded that Rubberwala statement of Shri Imaran Ansari and concluded that Rubberwala statement of Shri Imaran Ansari and concluded that Rubberwala Group itself admitted that having such on Group itself admitted that having such on-money money and offered the same as additional income and additional income and paid taxes thereon. Thus, paid taxes thereon. Thus, this was not case of unverified unverified scribbling or anonymous documents, but scribbling or anonymous documents, but rather one of authenticated and corroborated authenticated and corroborated digital evidence, digital evidence, supported by sworn statements of persons directly involved in the supported by sworn statements of persons directly supported by sworn statements of persons directly transaction upheld by the developer group by way of income transaction upheld by the developer group by way of income transaction upheld by the developer group by way of income disclosure. The Ld. CIT(A) distinguished the decision in the case of disclosure. The Ld. CIT(A) distinguished the decision in the case of disclosure. The Ld. CIT(A) distinguished the decision in the case of Rajesh Jain relied upon by the assessee observing as under: Rajesh Jain relied upon by the assessee observing as under: Rajesh Jain relied upon by the assessee observing as under:

“10.6 Further the Appellant has referred to a decisi 10.6 Further the Appellant has referred to a decisi 10.6 Further the Appellant has referred to a decision of the Hon'ble Mumbai Tribunal decision delivered in the case of Rajesh Hon'ble Mumbai Tribunal decision delivered in the case of Rajesh Hon'ble Mumbai Tribunal decision delivered in the case of Rajesh Jain (ITA Nos. 3842 & 3841/MUM/2023 for the A Y 2020 Jain (ITA Nos. 3842 & 3841/MUM/2023 for the A Y 2020 Jain (ITA Nos. 3842 & 3841/MUM/2023 for the A Y 2020-21 & A Y 2021-22). I would like to reproduce relevant para for sake of 22). I would like to reproduce relevant para for sake of 22). I would like to reproduce relevant para for sake of convenience as under convenience as under- "15. The Id A.R submitted that the "15. The Id A.R submitted that the addition was made on the addition was made on the basis of third party statement and documents found from the basis of third party statement and documents found from the basis of third party statement and documents found from the premises of third party. As per the deposition made by the premises of third party. As per the deposition made by the premises of third party. As per the deposition made by the employee of Rubberwala group, the buyers were given a diary, in employee of Rubberwala group, the buyers were given a diary, in employee of Rubberwala group, the buyers were given a diary, in which, the details of cash received were acknowl which, the details of cash received were acknowledged. The Ld edged. The Ld A.R submitted the search officials did not find any such diary A.R submitted the search officials did not find any such diary A.R submitted the search officials did not find any such diary with the assessee during the course of search operation with the assessee during the course of search operation with the assessee during the course of search operation conducted in his hands. Hence the statement so given by the conducted in his hands. Hence the statement so given by the conducted in his hands. Hence the statement so given by the employee stands disproved. He submitted that the AO has employee stands disproved. He submitted that the AO has employee stands disproved. He submitted that the AO has simply relied upon third party statement without bringing any relied upon third party statement without bringing any relied upon third party statement without bringing any independent material to support the same. The AO also did not independent material to support the same. The AO also did not independent material to support the same. The AO also did not provide the opportunity of cross examination despite being asked provide the opportunity of cross examination despite being asked provide the opportunity of cross examination despite being asked by the assessee. Accordingly, by placing reliance on various case by the assessee. Accordingly, by placing reliance on various case by the assessee. Accordingly, by placing reliance on various case laws, the Ld A.R submitted that this addition should be deleted. e Ld A.R submitted that this addition should be deleted. e Ld A.R submitted that this addition should be deleted.

16.

We heard Ld D.R and perused the record. We notice that the 16. We heard Ld D.R and perused the record. We notice that the 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 AO has made the addition on the basis of evidence found in the 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 premises of third party and also on the basis of deposition made premises of third party and also on the basis of deposition made by the employee of the third party. No corroborative material was mployee of the third party. No corroborative material was mployee of the third party. No corroborative material was brought on record to support the statement so given, which is brought on record to support the statement so given, which is brought on record to support the statement so given, which is mandatory when the assessee denies any such payment. mandatory when the assessee denies any such payment. mandatory when the assessee denies any such payment. Further, the AO also did not provide opportunity of cross Further, the AO also did not provide opportunity of cross Further, the AO also did not provide opportunity of cross examination to the assess examination to the assessee, even after the said request was ee, even after the said request was made by the assessee. Under these set of facts, we are of the made by the assessee. Under these set of facts, we are of the made by the assessee. Under these set of facts, we are of the view that the impugned addition of Rs. 18,64,200/ view that the impugned addition of Rs. 18,64,200/- - cannot be sustained. In this regard, we may take support from the decision sustained. In this regard, we may take support from the decision sustained. In this regard, we may take support from the decision rendered by SMC bench of Mumbai rendered by SMC bench of Mumbai Tribunal in the case of Naren Tribunal in the case of Naren Premchang Nagda vs. ITO (IT Appeal No.3265/Mum/2015 dated Premchang Nagda vs. ITO (IT Appeal No.3265/Mum/2015 dated Premchang Nagda vs. ITO (IT Appeal No.3265/Mum/2015 dated 08-07-2016), wherein an identical issue was decided as under: 2016), wherein an identical issue was decided as under:- 2016), wherein an identical issue was decided as under: 17. We also notice that the AO did not provide opportunity to 17. We also notice that the AO did not provide opportunity to 17. We also notice that the AO did not provide opportunity to cross examine the persons from Rubberwala g cross examine the persons from Rubberwala group, on whose roup, on whose statements the AO had placed reliance upon. The Hon"ble statements the AO had placed reliance upon. The Hon"ble statements the AO had placed reliance upon. The Hon"ble Supreme Court has held in the case of Andaman Timber Supreme Court has held in the case of Andaman Timber Supreme Court has held in the case of Andaman Timber Industries vs. Commissioner of Central Excise (2015) (62 Industries vs. Commissioner of Central Excise (2015) (62 Industries vs. Commissioner of Central Excise (2015) (62 taxmann.com 3) (SC) that not providing opportunity to cross taxmann.com 3) (SC) that not providing opportunity to cross taxmann.com 3) (SC) that not providing opportunity to cross examine is a se examine is a serious flaw and it will make the order nullity, as it rious flaw and it will make the order nullity, as it amounts to violation of principle of natural justice. We are of the amounts to violation of principle of natural justice. We are of the amounts to violation of principle of natural justice. We are of the view that the above said decision of Hon'ble Supreme Court shall view that the above said decision of Hon'ble Supreme Court shall view that the above said decision of Hon'ble Supreme Court shall apply to the facts of the present case. apply to the facts of the present case. 18. The assessee has raised ce 18. The assessee has raised certain legal contentions with rtain legal contentions with regard to the validity of assessment passed u/s 153A of the Act. regard to the validity of assessment passed u/s 153A of the Act. regard to the validity of assessment passed u/s 153A of the Act. According to the assessee, the AO should have initiated According to the assessee, the AO should have initiated According to the assessee, the AO should have initiated proceedings u/s 153C of the Act only for making the above said proceedings u/s 153C of the Act only for making the above said proceedings u/s 153C of the Act only for making the above said addition, since the impugned addition has b addition, since the impugned addition has been made on the een made on the basis of material found in the search conducted in the hands of basis of material found in the search conducted in the hands of basis of material found in the search conducted in the hands of third parties. We noticed earlier that the search has also been third parties. We noticed earlier that the search has also been third parties. We noticed earlier that the search has also been conducted in the hands of the assessee also and consequent conducted in the hands of the assessee also and consequent conducted in the hands of the assessee also and consequent thereto the proceedings u/s 153A of the Act have been thereto the proceedings u/s 153A of the Act have been thereto the proceedings u/s 153A of the Act have been initiated in the hands of the assessee. Further, the assessment of AYs in the hands of the assessee. Further, the assessment of AYs in the hands of the assessee. Further, the assessment of AYs 2020-21 and 2021 21 and 2021-22 would fall under the category of "abated 22 would fall under the category of "abated assessments". The law is well settled now that, in the case of assessments". The law is well settled now that, in the case of assessments". The law is well settled now that, in the case of abated assessments, the AO is entitled to take into account abated assessments, the AO is entitled to take into account abated assessments, the AO is entitled to take into account all the materials, that is not only those materials that were the materials, that is not only those materials that were the materials, that is not only those materials that were unearthed during the course of search in the hands of the unearthed during the course of search in the hands of the unearthed during the course of search in the hands of the assessee, but also any other material that may come to his notice assessee, but also any other material that may come to his notice assessee, but also any other material that may come to his notice during the course of assessment proceedings. Hence, in our view, during the course of assessment proceedings. Hence, in our view, during the course of assessment proceedings. Hence, in our view, the AO was very much entitled to take into account the O was very much entitled to take into account the O was very much entitled to take into account the information obtained from the search conducted in the hands of information obtained from the search conducted in the hands of information obtained from the search conducted in the hands of Rubberwala group for these two years. Hence, there was no Rubberwala group for these two years. Hence, there was no Rubberwala group for these two years. Hence, there was no necessity to initiate proceedings u/s 153C of the Act. necessity to initiate proceedings u/s 153C of the Act. necessity to initiate proceedings u/s 153C of the Act.

15.

The Id A.R submitted that the addition was made on the basis of third party statement and documents found from the is of third party statement and documents found from the is of third party statement and documents found from the premises of third party. As per the deposition made by the premises of third party. As per the deposition made by the premises of third party. As per the deposition made by the employee of Rubberwala group, the buyers were given a diary, in employee of Rubberwala group, the buyers were given a diary, in employee of Rubberwala group, the buyers were given a diary, in which, the details of cash received were acknowledged. The Ld which, the details of cash received were acknowledged. The Ld which, the details of cash received were acknowledged. The Ld A.R submitted A.R submitted the search officials did not find any such diary the search officials did not find any such diary with the assessee during the course of search operation with the assessee during the course of search operation with the assessee during the course of search operation conducted in his hands. Hence the statement so given by the conducted in his hands. Hence the statement so given by the conducted in his hands. Hence the statement so given by the employee stands disproved. He submitted that the AO has employee stands disproved. He submitted that the AO has employee stands disproved. He submitted that the AO has simply relied upon third party stat simply relied upon third party statement without bringing any ement without bringing any independent material to support the same. The AO also did not independent material to support the same. The AO also did not independent material to support the same. The AO also did not provide the opportunity of cross examination despite being asked provide the opportunity of cross examination despite being asked provide the opportunity of cross examination despite being asked by the assessee. Accordingly, by placing reliance on various case by the assessee. Accordingly, by placing reliance on various case by the assessee. Accordingly, by placing reliance on various case laws, the Ld A.R submitted that this laws, the Ld A.R submitted that this addition should be deleted. addition should be deleted. 10.7 I have gone through the above Hon'ble ITAT decision. It is 10.7 I have gone through the above Hon'ble ITAT decision. It is 10.7 I have gone through the above Hon'ble ITAT decision. It is well known fact that the decisions of higher judicial authorities well known fact that the decisions of higher judicial authorities well known fact that the decisions of higher judicial authorities are binding on lower authorities and this aspect needs no are binding on lower authorities and this aspect needs no are binding on lower authorities and this aspect needs no reiteration. reiteration. However, However, the the above-mentioned above ed case case law law is is distinguishable on facts compared to the present appeal. In the distinguishable on facts compared to the present appeal. In the distinguishable on facts compared to the present appeal. In the above mentioned case the assesseee Shri Rajesh Jain was also above mentioned case the assesseee Shri Rajesh Jain was also above mentioned case the assesseee Shri Rajesh Jain was also covered by the IT Department by a search action u/s 132 of the covered by the IT Department by a search action u/s 132 of the covered by the IT Department by a search action u/s 132 of the IT Act. In the present case, no such search action ha IT Act. In the present case, no such search action ha IT Act. In the present case, no such search action has been Bharat Solanki to 6525/MUM/2 to 6525/MUM/2025

carried out in the case of the appellant. Thus, this case is carried out in the case of the appellant. Thus, this case is carried out in the case of the appellant. Thus, this case is distinguishable on facts. distinguishable on facts. 10.8 Further, at the same time, it is seen that full facts were not 10.8 Further, at the same time, it is seen that full facts were not 10.8 Further, at the same time, it is seen that full facts were not placed before the Hon'ble ITAT and it has also not been examined placed before the Hon'ble ITAT and it has also not been examined placed before the Hon'ble ITAT and it has also not been examined that Excel sheet clearly stat that Excel sheet clearly stated the agreement value as well cash ed the agreement value as well cash component both. Imran Ashfaque Ansari was employee of component both. Imran Ashfaque Ansari was employee of component both. Imran Ashfaque Ansari was employee of Rubberwala group and his statement was also recorded on oath Rubberwala group and his statement was also recorded on oath Rubberwala group and his statement was also recorded on oath at his residence. Vide question no. 11 of the said statement dt. at his residence. Vide question no. 11 of the said statement dt. at his residence. Vide question no. 11 of the said statement dt. 17.03.2021, Imran Ansari was questioned 17.03.2021, Imran Ansari was questioned about his roles and about his roles and responsibilities in M/s. Rubberwala Housing & Infrastructure Ltd responsibilities in M/s. Rubberwala Housing & Infrastructure Ltd responsibilities in M/s. Rubberwala Housing & Infrastructure Ltd (RHIL). In response, he stated that he had been working with (RHIL). In response, he stated that he had been working with (RHIL). In response, he stated that he had been working with Rubberwala group of entities since 2010 and inter Rubberwala group of entities since 2010 and inter-alia handling alia handling sale and registration of the shops in "Platinu sale and registration of the shops in "Platinum Mall" Project of m Mall" Project of M/s. Rubberwala Housing & Infrastructure Ltd (RHIL, that he M/s. Rubberwala Housing & Infrastructure Ltd (RHIL, that he M/s. Rubberwala Housing & Infrastructure Ltd (RHIL, that he was handling said excel sheet. It was not case where unrelated was handling said excel sheet. It was not case where unrelated was handling said excel sheet. It was not case where unrelated person statements were recorded. This statement was further person statements were recorded. This statement was further person statements were recorded. This statement was further reinforced by Shri Tabrez Ahmed Shaikh, Director and P reinforced by Shri Tabrez Ahmed Shaikh, Director and P reinforced by Shri Tabrez Ahmed Shaikh, Director and Promoter of RHIL, in his post of RHIL, in his post-search deposition dated 19.08.2021. He search deposition dated 19.08.2021. He verified the contents of the Excel file and affirmed the truth of verified the contents of the Excel file and affirmed the truth of verified the contents of the Excel file and affirmed the truth of Shri Imran Ansari's statement. Moreover, the Rubberwala Group Shri Imran Ansari's statement. Moreover, the Rubberwala Group Shri Imran Ansari's statement. Moreover, the Rubberwala Group itself admitted to having received such on itself admitted to having received such on-money (cash money (cash component), offered the same as additional income, and paid nent), offered the same as additional income, and paid nent), offered the same as additional income, and paid taxes thereon. taxes thereon. 10.9 Further, proposition of law laid down discussed in para 10.9 Further, proposition of law laid down discussed in para 10.9 Further, proposition of law laid down discussed in para (supra) was not placed before the Hon'ble ITAT, which clearly (supra) was not placed before the Hon'ble ITAT, which clearly (supra) was not placed before the Hon'ble ITAT, which clearly establish that when statements are relied upon by the establish that when statements are relied upon by the establish that when statements are relied upon by the Department as secondary evidence in collaboration with other t as secondary evidence in collaboration with other t as secondary evidence in collaboration with other evidences, then the denial of right to cross evidences, then the denial of right to cross-examination cannot be examination cannot be taken as plea to not make the addition. Therefore, decision relied taken as plea to not make the addition. Therefore, decision relied taken as plea to not make the addition. Therefore, decision relied upon by the assessee, in my considered opinion, is not of any upon by the assessee, in my considered opinion, is not of any upon by the assessee, in my considered opinion, is not of any help to him. 10.10 Thus, Hon'ble ITAT decision relied upon by the appellant 10.10 Thus, Hon'ble ITAT decision relied upon by the appellant 10.10 Thus, Hon'ble ITAT decision relied upon by the appellant does not aid his case. Unlike the present matter, where there is does not aid his case. Unlike the present matter, where there is does not aid his case. Unlike the present matter, where there is clear linkage between the documents found, the assessee's clear linkage between the documents found, the assessee's clear linkage between the documents found, the assessee's transaction, and the admission of parties involved, the cases transaction, and the admission of parties involved, the cases transaction, and the admission of parties involved, the cases cited by the appellant pertain to instances where uncorroborated ted by the appellant pertain to instances where uncorroborated ted by the appellant pertain to instances where uncorroborated third- party statements were the sole basis of addition. Here, the party statements were the sole basis of addition. Here, the party statements were the sole basis of addition. Here, the evidence is not only specific but also substantiated. evidence is not only specific but also substantiated. 10.11 It is well established in law that income 10.11 It is well established in law that income-tax proceedings tax proceedings are not governed by the strict rules of evidence applicable in a governed by the strict rules of evidence applicable in a governed by the strict rules of evidence applicable in a court of law. In Addl. CIT v. Jay Engg. Works Ltd. [1978] 113 ITR court of law. In Addl. CIT v. Jay Engg. Works Ltd. [1978] 113 ITR court of law. In Addl. CIT v. Jay Engg. Works Ltd. [1978] 113 ITR 389 (Delhi), it was held that the AO can rely on material which 389 (Delhi), it was held that the AO can rely on material which 389 (Delhi), it was held that the AO can rely on material which may not be admissible in a court of law, as long as it is relevant. may not be admissible in a court of law, as long as it is relevant. may not be admissible in a court of law, as long as it is relevant.

Similarly, the Hon'ble Punjab & Haryana High Court in CIT v. imilarly, the Hon'ble Punjab & Haryana High Court in CIT v. imilarly, the Hon'ble Punjab & Haryana High Court in CIT v. Metal Products of India [1984] 150 ITR 714 (P&H) held that the Metal Products of India [1984] 150 ITR 714 (P&H) held that the Metal Products of India [1984] 150 ITR 714 (P&H) held that the AO can collect evidence behind the back of the assessee, AO can collect evidence behind the back of the assessee, AO can collect evidence behind the back of the assessee, provided it is material and forms the basis of assessment. provided it is material and forms the basis of assessment. provided it is material and forms the basis of assessment. 10.12 The Hon'ble 10.12 The Hon'ble ITAT in Hersh W. Chadha v. DDIT [43 SOT ITAT in Hersh W. Chadha v. DDIT [43 SOT 544] and Hersh W. Chadha v. DDIT, to 3098 & 544] and Hersh W. Chadha v. DDIT, to 3098 & 544] and Hersh W. Chadha v. DDIT, to 3098 & 3107/Del/2005, has further clarified that in cases of suspicious 3107/Del/2005, has further clarified that in cases of suspicious 3107/Del/2005, has further clarified that in cases of suspicious transactions, tax liability is to be assessed based on surrounding transactions, tax liability is to be assessed based on surrounding transactions, tax liability is to be assessed based on surrounding circumstances, prepondera circumstances, preponderance of probabilities, human conduct, nce of probabilities, human conduct, and the material available on record. The AO is not bound by the and the material available on record. The AO is not bound by the and the material available on record. The AO is not bound by the Indian Evidence Act but must act on material that is relevant and Indian Evidence Act but must act on material that is relevant and Indian Evidence Act but must act on material that is relevant and reliable. 10.13 In ITC Classic Finance Ltd. v. DCIT [264 ITR 154], the 10.13 In ITC Classic Finance Ltd. v. DCIT [264 ITR 154], the 10.13 In ITC Classic Finance Ltd. v. DCIT [264 ITR 154], the Hon'ble Bombay Hi Hon'ble Bombay High Court upheld additions where transactions gh Court upheld additions where transactions lacked transparency, reinforcing the principle that apparent lacked transparency, reinforcing the principle that apparent lacked transparency, reinforcing the principle that apparent deficiencies in evidence must be considered in light of deficiencies in evidence must be considered in light of deficiencies in evidence must be considered in light of surrounding corroborative circumstances. surrounding corroborative circumstances. 10.14 In the case of CIT vs Kalpetta Estates Ltd, 211 10.14 In the case of CIT vs Kalpetta Estates Ltd, 211 ITR 635, 78 ITR 635, 78 Taxman 265, the Hon'ble Kerala HC held as under: Taxman 265, the Hon'ble Kerala HC held as under: 4. What the Bench did was to affirm that the principles of res 4. What the Bench did was to affirm that the principles of res 4. What the Bench did was to affirm that the principles of res judicata will not apply to income judicata will not apply to income-tax proceedings. Nevertheless, tax proceedings. Nevertheless, the Tribunal may place reliance on an earlier decision to support the Tribunal may place reliance on an earlier decision to support the Tribunal may place reliance on an earlier decision to support its conclusion. It could not, therefore, be said that the decision in its conclusion. It could not, therefore, be said that the decision in its conclusion. It could not, therefore, be said that the decision in the assessee's case before us, relating to the prior years, would the assessee's case before us, relating to the prior years, would the assessee's case before us, relating to the prior years, would operate as res judicata. The Tribunal is entitled to take a operate as res judicata. The Tribunal is entitled to take a operate as res judicata. The Tribunal is entitled to take a different view of the matter, if new materials were placed o different view of the matter, if new materials were placed o different view of the matter, if new materials were placed or on a closer and more intelligent analysis. It is evident from the various closer and more intelligent analysis. It is evident from the various closer and more intelligent analysis. It is evident from the various decisions placed before us that a different aspect of the matter decisions placed before us that a different aspect of the matter decisions placed before us that a different aspect of the matter has been presented for consideration, as laid down in the has been presented for consideration, as laid down in the has been presented for consideration, as laid down in the decisions mentioned earlier. The Tribunal was therefore e decisions mentioned earlier. The Tribunal was therefore e decisions mentioned earlier. The Tribunal was therefore entitled to have a fresh look at the matter based on the line of thinking to have a fresh look at the matter based on the line of thinking to have a fresh look at the matter based on the line of thinking disclosed by these decisions. That was what was done by the disclosed by these decisions. That was what was done by the disclosed by these decisions. That was what was done by the Tribunal in the instant case. We are not, therefore, inclined to Tribunal in the instant case. We are not, therefore, inclined to Tribunal in the instant case. We are not, therefore, inclined to accept the contention that the assessment in the earlier y accept the contention that the assessment in the earlier y accept the contention that the assessment in the earlier years operates as res judicata or that it precludes the assessee from operates as res judicata or that it precludes the assessee from operates as res judicata or that it precludes the assessee from raising the plea as done in the instant case. We overrule the raising the plea as done in the instant case. We overrule the raising the plea as done in the instant case. We overrule the contention. 10.15 The appellant's argument that the absence of a diary (as 10.15 The appellant's argument that the absence of a diary (as 10.15 The appellant's argument that the absence of a diary (as claimed by the employee of the Rubberwala Group) disproves the claimed by the employee of the Rubberwala Group) disproves the claimed by the employee of the Rubberwala Group) disproves the entire case is fallacious. The addition was not based on the entire case is fallacious. The addition was not based on the entire case is fallacious. The addition was not based on the alleged diary alone, but on robust and corroborated digital alleged diary alone, but on robust and corroborated digital alleged diary alone, but on robust and corroborated digital

8.5 The Ld. counsel for the assessee submitted that said e Ld. counsel for the assessee submitted that said e Ld. counsel for the assessee submitted that said Rubberwala Group has credited 100% amount of the cash in its Rubberwala Group has credited 100% amount of the cash in its Rubberwala Group has credited 100% amount of the cash in its books of accounts against offering 8% of books of accounts against offering 8% of income on such income on such declaration. In other words, they have generated huge amount of . In other words, they have generated huge amount of . In other words, they have generated huge amount of income in their hands at income in their hands at 33% of tax on the 8% income income of the cash declared. For example, if the assessee get credited Rs.100 in its declared. For example, if the assessee get credited Rs.100 in its declared. For example, if the assessee get credited Rs.100 in its books of accounts against cash received then it has paid taxes @ books of accounts against cash received then it has paid taxes @ books of accounts against cash received then it has paid taxes @ 33% on the Rs.8 which 33% on the Rs.8 which work out to Rs.2.6. The Ld. counsel for the The Ld. counsel for the assessee submitted that this was one of the beneficial declaration that this was one of the beneficial declaration that this was one of the beneficial declaration and therefore, they have admitted and paid the taxes. The Ld. and therefore, they have admitted and paid the taxes. and therefore, they have admitted and paid the taxes. counsel for the assessee submitted that the assessee has never paid counsel for the assessee submitted that the assessee has never paid counsel for the assessee submitted that the assessee has never paid such cash on-money and it might be their own money which they money and it might be their own money which they money and it might be their own money which they had brought into books in garb of cash on o books in garb of cash on-money for tax benefit. money for tax benefit.

Bharat Solanki to 6525/MUM/2 to 6525/MUM/2025 8.7 The Ld. counsel for the assessee specifically brought to our The Ld. counsel for the assessee specifically brought to our The Ld. counsel for the assessee specifically brought to our attention that Shri Imran Ansari in his answer to question No. 13 of attention that Shri Imran Ansari in his answer to question No. 13 of attention that Shri Imran Ansari in his answer to question No. 13 of the statement dated 17.03.2021 stated that after the statement dated 17.03.2021 stated that after receipt receipt of alleged cash from the customers a small diary mers a small diary was being used to provide was being used to provide containing cash details received from the customers. The Ld. containing cash details received from the customers. The Ld. containing cash details received from the customers. The Ld. counsel for the assessee submitted that no such diary has been counsel for the assessee submitted that no such diary has been counsel for the assessee submitted that no such diary has been recovered from the assessee nor any recovered from the assessee nor any kind of receipt issued by of receipt issued by Rubberwala Group having s Rubberwala Group having signature of the assessee has been found ignature of the assessee has been found from the premises of the Rubberwala group or from the assessee. from the premises of the Rubberwala group or from the assessee. from the premises of the Rubberwala group or from the assessee. The Ld. counsel submitted that in the case of one of the customer The Ld. counsel submitted that in the case of one of the customer The Ld. counsel submitted that in the case of one of the customer sh Rajesh Jain search search was conducted by the Department but no was conducted by the Department but no such document in the form such document in the form of diary was found which of diary was found which could corroborate statement of Shri Imran Ansari statement of Shri Imran Ansari. According to him, . According to him, Shri Imran Ansari cooked up cooked up a story of cash on-money in his money in his statement for benefiting interest of their company. for benefiting interest of their company.

8.12 It is well settled that It is well settled that mere furnishing of copies of statements or mere furnishing of copies of statements or documents does not, by itself, satisfy the requirement of natural documents does not, by itself, satisfy the requirement of natural documents does not, by itself, satisfy the requirement of natural justice, where such material is sought to be used adversely against , where such material is sought to be used adversely against , where such material is sought to be used adversely against an assessee and the assessee specifically disputes its correctness. an assessee and the assessee specifically disputes its correctness. an assessee and the assessee specifically disputes its correctness. The learned Commissioner (Appeals) has proceeded on the The learned Commissioner (Appeals) has proceeded on the The learned Commissioner (Appeals) has proceeded on the Bharat Solanki to 6525/MUM/2 to 6525/MUM/2025 assumption that since extracts of statements, Excel data, and pen- assumption that since extracts of statements, Excel data, and pen assumption that since extracts of statements, Excel data, and pen drive contents were supplied through the show contents were supplied through the show-cause notice, the cause notice, the principles of natural justice stood fully complied with. This principles of natural justice stood fully complied with. This principles of natural justice stood fully complied with. This approach conflates disclosure of material disclosure of material with testing of material testing of material, which are legally distinct concepts. The reliance placed by the which are legally distinct concepts. The reliance placed by the which are legally distinct concepts. The reliance placed by the learned Commissioner (Appeals) on rned Commissioner (Appeals) on Andaman Timber Industries Andaman Timber Industries is, with respect, misconceived and internally contradictory misconceived and internally contradictory. The said misconceived and internally contradictory decision has been cited to suggest that cross decision has been cited to suggest that cross- -examination is necessary only where the third necessary only where the third-party statement is the “sole basis” o party statement is the “sole basis” of the addition. This reading is incorrect. In the present case, the the addition. This reading is incorrect. In the present case, the addition. This reading is incorrect. In the present case, Excel sheets and the pen Excel sheets and the pen-drive data have no independent drive data have no independent evidentiary value dehors the explanation and interpretation evidentiary value dehors the explanation and interpretation evidentiary value dehors the explanation and interpretation supplied by Shri Imran Ansari supplied by Shri Imran Ansari. The alleged cash component, the . The alleged cash component, the attribution of entries to specific buyers, and the linkage of the on of entries to specific buyers, and the linkage of the on of entries to specific buyers, and the linkage of the assessee to such entries emanate entirely from his statement. The assessee to such entries emanate entirely from his statement. The assessee to such entries emanate entirely from his statement. The digital material does not speak for itself. Consequently, the digital material does not speak for itself. Consequently, the digital material does not speak for itself. Consequently, the statement is not collateral or incidental evidence but the very statement is not collateral or incidental evidence but the statement is not collateral or incidental evidence but the foundation of the addition. Much emphasis has been placed by the of the addition. Much emphasis has been placed by the of the addition. Much emphasis has been placed by the lower authorities on the proposition that income lower authorities on the proposition that income-tax proceedings tax proceedings are not governed by the strict provisions of the Indian Evidence Act. are not governed by the strict provisions of the Indian Evidence Act. are not governed by the strict provisions of the Indian Evidence Act. There can be no quarrel with this settled proposition. However, it is There can be no quarrel with this settled proposition. However, There can be no quarrel with this settled proposition. However, equally settled that equally settled that relaxation of evidentiary rules does not imply relaxation of evidentiary rules does not imply abrogation of natural justice abrogation of natural justice. Even material which is otherwise . Even material which is otherwise admissible must still satisfy the minimum requirement of fairness admissible must still satisfy the minimum requirement of fairness admissible must still satisfy the minimum requirement of fairness when used against an assessee. The Hon’ble Supreme Court in when used against an assessee. The Hon’ble Supreme when used against an assessee. The Hon’ble Supreme

8.18 We find that, in identical factual circumstances relating to We find that, in identical factual circumstances relating to We find that, in identical factual circumstances relating to alleged cash “on-money” payments for purchase of shops in money” payments for purchase of shops in money” payments for purchase of shops in Platinum Mall from the Ru from the Rubberwala Group, the Co- -ordinate Bench of the Tribunal in Praveen Khetaramm Purohit v. DCIT Praveen Khetaramm Purohit v. DCIT Praveen Khetaramm Purohit v. DCIT (ITA Nos. 4742 to 4744/Mum/2025) has deleted similar additions. The 4742 to 4744/Mum/2025) has deleted similar additions. 4742 to 4744/Mum/2025) has deleted similar additions. learned also placed reliance upon another decision of the Co- learned also placed reliance upon another decision of the Co learned also placed reliance upon another decision of the Co ordinate Bench of the Tribunal in Ak ordinate Bench of the Tribunal in Akhraj Pukhraaj Chopra vs DCIT hraj Pukhraaj Chopra vs DCIT and Lilaram Vs DCIT in ITAs No.5553 and 5554/Mum/2025, vide and Lilaram Vs DCIT in ITAs No.5553 and 5554/Mum/2025, vide and Lilaram Vs DCIT in ITAs No.5553 and 5554/Mum/2025, vide order dated 12.11.2025, wherein similar addition was made on the order dated 12.11.2025, wherein similar addition was made on the order dated 12.11.2025, wherein similar addition was made on the basis of search and seizure action on Rubberwala Group. Reliance basis of search and seizure action on Rubberwala Group. basis of search and seizure action on Rubberwala Group. in this regard has been in this regard has been also placed on the decision in case of on the decision in case of Heena Dashrath Jhanglani ITA no.1665/Mum./2018 (Assessment Year Dashrath Jhanglani ITA no.1665/Mum./2018 (Assessment Year Dashrath Jhanglani ITA no.1665/Mum./2018 (Assessment Year : 2007–08) wherein the Coordinate Bench of ITAT had decided the wherein the Coordinate Bench of ITAT had decided the wherein the Coordinate Bench of ITAT had decided the issue in favour of assessee and the relevant portion is being issue in favour of assessee and the relevant portion is being issue in favour of assessee and the relevant portion is being reproduced herein below: reproduced herein below: 10. I have con I have considered rival submissions and perused sidered rival submissions and perused material on record. Undisputedly, the genesis of the addition material on record. Undisputedly, the genesis of the addition material on record. Undisputedly, the genesis of the addition made of 42 lakh on account of alleged payment of on made of 42 lakh on account of alleged payment of on– –money in cash towards purchase of a flat lies in a search and seizure cash towards purchase of a flat lies in a search and seizure cash towards purchase of a flat lies in a search and seizure

Bharat Solanki to 6525/MUM/2 to 6525/MUM/2025 operation conducted in case of Hir operation conducted in case of Hiranandani Group and related anandani Group and related persons. Though, in the assessment order the Assessing Officer persons. Though, in the assessment order the Assessing Officer persons. Though, in the assessment order the Assessing Officer has not discussed in detail the nature of incriminating material/ has not discussed in detail the nature of incriminating material/ 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– –money in cash by the assessee to M/s. Crescen cash by the assessee to M/s. Crescendo Associates, however, do Associates, however, from the show cause notice dated 4th March 2015, which is from the show cause notice dated 4th March 2015, which is from the show cause notice dated 4th March 2015, which is reproduced by the Assessing Officer in the assessment order, it reproduced by the Assessing Officer in the assessment order, it reproduced by the Assessing Officer in the assessment order, it appears that the incriminating materials are in the form of pen appears that the incriminating materials are in the form of pen appears that the incriminating materials are in the form of pen drive found and seized from the residence of o drive found and seized from the residence of one of the ne of the employees of Hiranandani Group and a statement recorded employees of Hiranandani Group and a statement recorded employees of Hiranandani Group and a statement recorded under section 132(4) of the Act from Shri Niranjan Hiranandani, under section 132(4) of the Act from Shri Niranjan Hiranandani, under section 132(4) of the Act from Shri Niranjan Hiranandani, Director and Promoter of the Group, wherein, the details of on Director and Promoter of the Group, wherein, the details of on Director and Promoter of the Group, wherein, the details of on– money paid by buyers / prospective buyers to Hiranandani money paid by buyers / prospective buyers to Hiranandani money paid by buyers / prospective buyers to Hiranandani Group concerns are mentioned and further, in the statement concerns are mentioned and further, in the statement concerns are mentioned and further, in the statement recorded under section 132(4) of the Act on 14th March 2014, recorded under section 132(4) of the Act on 14th March 2014, recorded under section 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– –money in cash towards sale of flats / shops. Thus, it is clear that except cash towards sale of flats / shops. Thus, it is clear that except cash towards sale of flats / shops. Thus, it is clear that except these two pieces of evidences the Assessing Officer had no other eces of evidences the Assessing Officer had no other eces of evidences the Assessing Officer had no other evidence on record which demonstrates that the assessee had evidence on record which demonstrates that the assessee had evidence on record which demonstrates that the assessee had paid on–money in cash for purchase of the flat. It is further money in cash for purchase of the flat. It is further money in cash for purchase of the flat. It is further relevant to observe, from the assessment stage itself the relevant to observe, from the assessment stage itself the relevant to observe, from the assessment stage itself the assessee has requested assessee has requested the Assessing Officer to provide him the Assessing Officer to provide him with all adverse materials and full text of the statement with all adverse materials and full text of the statement with all adverse materials and full text of the statement recorded under section 132(4) of the Act from Shri Niranjan recorded under section 132(4) of the Act from Shri Niranjan recorded under section 132(4) of the Act from Shri Niranjan Hiranandani. The assessee had also requested the Assessing Hiranandani. The assessee had also requested the Assessing Hiranandani. The assessee had also requested the Assessing Officer for allowing her to cross Officer for allowing her to cross–examine Shri Niranjan Shri Niranjan Hiranandani and other parties whose statements were relied Hiranandani and other parties whose statements were relied Hiranandani and other parties whose statements were relied upon. Apparently, this request of the assessee was not upon. Apparently, this request of the assessee was not upon. Apparently, this request of the assessee was not accededto by the Assessing Officer. When the assessee took up accededto by the Assessing Officer. When the assessee took up accededto by the Assessing Officer. When the assessee took up the aforesaid issue before the first appellate authority, the the aforesaid issue before the first appellate authority, the the aforesaid issue before the first appellate authority, the learned Commissioner (Appeals) in letter dated 18th July 2016, ned Commissioner (Appeals) in letter dated 18th July 2016, ned Commissioner (Appeals) in letter dated 18th July 2016, had clearly directed the Assessing Officer to provide the had clearly directed the Assessing Officer to provide the had clearly directed the Assessing Officer to provide the assessee all adverse materials / documentary evidences assessee all adverse materials / documentary evidences assessee all adverse materials / documentary evidences available with him indicating payment of on available with him indicating payment of on–money. However, money. However, on a perusal of the rema on a perusal of the remand report dated 23th June 2017, a copy nd report dated 23th June 2017, a copy of which is at Page of which is at Page–53 of the paper book, it is very much clear 53 of the paper book, it is very much clear that the Assessing Officer has completely avoided the issue and that the Assessing Officer has completely avoided the issue and that the Assessing Officer has completely avoided the issue and there is no mention whether the assessee was provided with all there is no mention whether the assessee was provided with all there is no mention whether the assessee was provided with all the adverse material and i the adverse material and if, not so, whether he has provided f, not so, whether he has provided them to the assessee as per the directions of the learned them to the assessee as per the directions of the learned them to the assessee as per the directions of the learned Commissioner (Appeals). Thus, from the aforesaid facts, it is Commissioner (Appeals). Thus, from the aforesaid facts, it is Commissioner (Appeals). Thus, from the aforesaid facts, it is patent and obvious that the addition of ` 42 lakh made on patent and obvious that the addition of ` 42 lakh made on patent and obvious that the addition of ` 42 lakh made on account of on– –money payment in cash is without complying with out complying with the primary and fundamental requirement of rules of natural the primary and fundamental requirement of rules of natural the primary and fundamental requirement of rules of natural justice. It is well settled proposition of law that if the Assessing justice. It is well settled proposition of law that if the Assessing justice. It is well settled proposition of law that if the Assessing Officer intends to utilize any adverse material for deciding an Officer intends to utilize any adverse material for deciding an Officer intends to utilize any adverse material for deciding an issue against the assessee he is required to issue against the assessee he is required to not only confront not only confront

Bharat Solanki to 6525/MUM/2 to 6525/MUM/2025 such adverse materials to the assessee but also offer him a such adverse materials to the assessee but also offer him a such adverse materials to the assessee but also offer him a reasonable opportunity to rebut / contradict the contents of the reasonable opportunity to rebut / contradict the contents of the reasonable opportunity to rebut / contradict the contents of the adverse material. Further, the assessment order reveals that the adverse material. Further, the assessment order reveals that the adverse material. Further, the assessment order reveals that the Assessing Officer has heavily relied upon the s Assessing Officer has heavily relied upon the s Assessing Officer has heavily relied upon the statement recorded from Shri Niranjan Hiranandani, for making the recorded from Shri Niranjan Hiranandani, for making the recorded from Shri Niranjan Hiranandani, for making the disputed addition. However, it is the allegation of the assessee, disputed addition. However, it is the allegation of the assessee, disputed addition. However, it is the allegation of the 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 Officer has not provided the full text of such statement recorded Officer has not provided the full text of such statement recorded and has also not allowed the assessee an opportunity to cross and has also not allowed the assessee an opportunity to cross and has also not allowed the assessee an opportunity to cross– examine Shri Niranjan Hiranandani, and other persons whose examine Shri Niranjan Hiranandani, and other persons whose examine Shri Niranjan Hiranandani, and other persons whose statements were relied upon. This, in my view, is in gross statements were relied upon. This, in my view, is in gross statements were relied upon. This, in my view, is in gross violation of rules of natural justice and against the basic violation of rules of natural justice and against the basic violation of rules of natural justice and against the basic principle of law. In this context, I may refer to the decision of the w. In this context, I may refer to the decision of the w. In this context, I may refer to the decision of the Tribunal, Mumbai Bench, in Nikhil Vinod Agarwal (supra). Thus, Tribunal, Mumbai Bench, in Nikhil Vinod Agarwal (supra). Thus, Tribunal, Mumbai Bench, in Nikhil Vinod Agarwal (supra). Thus, for the aforesaid reason, the addition made cannot be for the aforesaid reason, the addition made cannot be for the aforesaid reason, the addition made cannot be sustained.

11. Even otherwise also, the addition made is unsustainable Even otherwise also, the addition made is unsustainable Even otherwise also, the addition made is unsustainable because of the following reasons. As discussed earlier in the because of the following reasons. As discussed earlier in the because of the following reasons. As discussed earlier in the order, the basis for addition on account of on order, the basis for addition on account of on–money is the money is the information contained in the pen drive found during the search information contained in the pen drive found during the search information contained in the pen drive found during the search and seizure ope and seizure operation and the statement recorded under section ration and the statement recorded under section 132(4) of the Act. As regards the information contained in the 132(4) of the Act. As regards the information contained in the 132(4) of the Act. As regards the information contained in the pen drive, it is the contention of the assessee that the said pen pen drive, it is the contention of the assessee that the said pen pen drive, it is the contention of the assessee that the said pen drive was not found from the possession of the assessee but in drive was not found from the possession of the assessee but in drive was not found from the possession of the assessee but in course of searc course of search and seizure operation conducted in case of a h and seizure operation conducted in case of a third party. Therefore, in absence of further corroborative third party. Therefore, in absence of further corroborative third party. Therefore, in absence of further corroborative evidence to establish that the contents of the pen drive are evidence to establish that the contents of the pen drive are evidence to establish that the contents of the pen drive are correct and authentic to the extent that the assessee paid on correct and authentic to the extent that the assessee paid on correct and authentic to the extent that the assessee paid on– money in cash, no a money in cash, no addition can be made under section 69B of ddition can be made under section 69B of the Act. Further contention of the assessee is that in the the Act. Further contention of the assessee is that in the the Act. Further contention of the assessee is that in the statement recorded under section 132(4) of the Act, Shi Niranjan statement recorded under section 132(4) of the Act, Shi Niranjan statement recorded under section 132(4) of the Act, Shi Niranjan Hirandani has not made any reference to the assessee, Hirandani has not made any reference to the assessee, Hirandani has not made any reference to the assessee, therefore, in absence of any other co therefore, in absence of any other corroborative evidence to rroborative evidence to establish that assessee has paid on establish that assessee has paid on–money in cash, no addition money in cash, no addition can be made. I find substantial merit in the aforesaid can be made. I find substantial merit in the aforesaid can be made. I find substantial merit in the aforesaid submissions of the assessee. In my view, neither the submissions of the assessee. In my view, neither the submissions of the assessee. In my view, neither the information contained in the pen drive nor the statement information contained in the pen drive nor the statement information contained in the pen drive nor the statement recorded under section 132(4) of the Act from Shri Niranjan rded under section 132(4) of the Act from Shri Niranjan rded under section 132(4) of the Act from Shri Niranjan Hiranandani are enough to conclusively establish the factum of Hiranandani are enough to conclusively establish the factum of Hiranandani are enough to conclusively establish the factum of payment of on payment of on–money by the assessee. At best, they can raise a money by the assessee. At best, they can raise a doubt or suspicion against the conduct of the assessee doubt or suspicion against the conduct of the assessee doubt or suspicion against the conduct of the assessee triggering further triggering further enquiry / investigation to find out and bring on enquiry / investigation to find out and bring on record the relevant fact and material to conclusively prove the record the relevant fact and material to conclusively prove the record the relevant fact and material to conclusively prove the payment of on payment of on–money by the assessee over and above the money by the assessee over and above the declared sale consideration. Apparently, the Assessing Officer declared sale consideration. Apparently, the Assessing Officer declared sale consideration. Apparently, the Assessing Officer has failed to bring any s has failed to bring any such evidence / material on record to uch evidence / material on record to Bharat Solanki to 6525/MUM/2 to 6525/MUM/2025