BIREN MANNA,MUMBAI vs. ITO -WARD-23(1)(6), MUMBAI

ORDER PER OM PRAKASH KANT, AM

This appeal by the assessee is directed against order dated 03.09.2025 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2022-23, raising following grounds:

1. Void Order 1.1. On facts, in the circumstance of the case and in law, the learned Commissioner of Income Tax (Appeal), NFAC, ("The CIT(A)" erred in upholding the assessment order framed by the Ld. upholding the assessment order framed by the Ld. upholding the assessment order framed by the Ld. Assessing Assessing Assessing Officer, Officer, Officer, Assessment Assessment Assessment Unit Unit Unit (Faceless), (Faceless), (Faceless), (the (the (the 'A.O.), 'A.O.), 'A.O.), (collectively "the authorities below") dated 15 (collectively "the authorities below") dated 15-03-2024 is void ab 2024 is void ab initio as the same has been framed without providing effective initio as the same has been framed without providing effective initio as the same has been framed without providing effective opportunity of be opportunity of being heard and explain the case to the appellant. ing heard and explain the case to the appellant. 1.2. The authorities below erred in considering only: 1.2. The authorities below erred in considering only: a. the statements of third parties and/or a. the statements of third parties and/or b. entries found in the books of a third b. entries found in the books of a third-party regarding cash party regarding cash received from some Viren Manna (Assessee being Bi received from some Viren Manna (Assessee being Biren Manna) ren Manna) without providing your appellant the entries, statement and without providing your appellant the entries, statement and without providing your appellant the entries, statement and opportunity to counter the same. opportunity to counter the same. 1.3. The authorities below failed in not considering that the cash 1.3. The authorities below failed in not considering that the cash 1.3. The authorities below failed in not considering that the cash was allegedly received by different persons for a flat booked from a was allegedly received by different persons for a flat booked from a was allegedly received by different persons for a flat booked from a different entity different entity and cash handed over to yet a third person and the and cash handed over to yet a third person and the entries in books were made subsequently collating the same from entries in books were made subsequently collating the same from entries in books were made subsequently collating the same from the sales records of the builder and in the process the appellant had the sales records of the builder and in the process the appellant had the sales records of the builder and in the process the appellant had no say nor any incriminating or corroborative evidence was found no say nor any incriminating or corroborative evidence was found no say nor any incriminating or corroborative evidence was found from the appellant. the appellant.

2. Addition of Rs 81,00,000 2. Addition of Rs 81,00,000 2.1. The authorities below erred in assessing the total income of the 2.1. The authorities below erred in assessing the total income of the 2.1. The authorities below erred in assessing the total income of the appellant appellant appellant at at at Rs.94,87,760 Rs.94,87,760 Rs.94,87,760 making making making addition/disallowance addition/disallowance addition/disallowance amounting in all to Rs.81,00,000 under section 69B of the Income amounting in all to Rs.81,00,000 under section 69B of the Income amounting in all to Rs.81,00,000 under section 69B of the Income Tax Act, 1961 (The Act) Tax Act, 1961 (The Act) allegedly paid in cash as on- money to M/s money to M/s Ruparel Reality. Ruparel Reality. 2.2. The authorities below did not provide copies of the statement or 2.2. The authorities below did not provide copies of the statement or 2.2. The authorities below did not provide copies of the statement or the said entries and opportunity to confront the same in the light of the said entries and opportunity to confront the same in the light of the said entries and opportunity to confront the same in the light of apparent and patent errors on the fact of the record su apparent and patent errors on the fact of the record su apparent and patent errors on the fact of the record such as the name of the person who paid the alleged money mentioned were name of the person who paid the alleged money mentioned were name of the person who paid the alleged money mentioned were wrong e.g. Viren Manna not Biren Manna, Dolat etc. without any wrong e.g. Viren Manna not Biren Manna, Dolat etc. without any wrong e.g. Viren Manna not Biren Manna, Dolat etc. without any corroborative evidence. corroborative evidence. 2.3. The authorities blow failed to appreciate that the alleged sums 2.3. The authorities blow failed to appreciate that the alleged sums 2.3. The authorities blow failed to appreciate that the alleged sums of rupees 81,00,000 as tabula of rupees 81,00,000 as tabulated below were given by the appellant ted below were given by the appellant after he had already acquired irreversible RERA protected rights by after he had already acquired irreversible RERA protected rights by after he had already acquired irreversible RERA protected rights by entering in to an agreement to purchase flat at a RERA Registered entering in to an agreement to purchase flat at a RERA Registered entering in to an agreement to purchase flat at a RERA Registered -03-2021 project on 31- Date Date Rupees

21 21-04-2021 25,00,000 03 03-05-2021 25,00,000 05 05-05-2021 3,00,000 10 10-05-2021 28,00,000 Total Total 81,00,000 2.4. The authorities below erred in not distinguishing between 2.4. The authorities below erred in not distinguishing between 2.4. The authorities below erred in not distinguishing between amount PAID and amount payable as per the agreement, still amount PAID and amount payable as per the agreement, still amount PAID and amount payable as per the agreement, still outstanding till date, as the said flat is still under construction. outstanding till date, as the said flat is still under construction. outstanding till date, as the said flat is still under construction.

4. The appellant prays that the aforesaid grounds of appeal

are 4. The appellant prays that the aforesaid grounds of appeal are 4. The appellant prays that the aforesaid grounds of appeal are without prejudice to and independent of one another. without prejudice to and independent of one another.

2. Briefly stated, the assessee filed his return of income for the Briefly stated, the assessee filed his return of income for the Briefly stated, the assessee filed his return of income for the year under consideration on 31.12.2022 declaring a total income of year under consideration on 31.12.2022 declaring a total income o year under consideration on 31.12.2022 declaring a total income o ₹13,87,760/-. The return of income filed by the assessee was The return of income filed by the assessee was The return of income filed by the assessee was selected for scrutiny selected for scrutiny assessment and statutory notices under the and statutory notices under the Income-tax Act , 1961 ( in short the Act) tax Act , 1961 ( in short the Act) were issued and complied were issued and complied with. In the assessment completed u/s 143(3) of the Act on In the assessment completed u/s 143(3) of the Act on In the assessment completed u/s 143(3) of the Act on 15/03/2024, addition for cash money of Rs. 81,00,000/- paid for 15/03/2024, addition for cash money of Rs. 81,00,000/ 15/03/2024, addition for cash money of Rs. 81,00,000/ purchase of flat was held as unexplained expenditure in terms of purchase of flat was held as unexplained expenditure in terms of purchase of flat was held as unexplained expenditure in terms of section 69 of the Act. On further appeal, the ld CIT(A), upheld the section 69 of the Act. On further appeal, the ld CIT(A), upheld the section 69 of the Act. On further appeal, the ld CIT(A), upheld the addition. Aggrieved, the assessee is in appeal before the Tribunal on. Aggrieved, the assessee is in appeal before the Tribunal on. Aggrieved, the assessee is in appeal before the Tribunal raising the grounds as reproduced as above. raising the grounds as reproduced as above.

3. In all the grounds the sole issue is of addition of Rs. 81,0 In all the grounds the sole issue is of addition of Rs. 81,0 In all the grounds the sole issue is of addition of Rs. 81,00,00 as unexplained expenditure, therefore all the grounds are taken as unexplained expenditure, therefore all the grounds are taken as unexplained expenditure, therefore all the grounds are taken together for adjudication. ication.

4.1 From the seized material, the Assessing Officer noted that the From the seized material, the Assessing Officer noted that the From the seized material, the Assessing Officer noted that the assessee had purchased Flat No. 4304 in the project Ruparel Jewel assessee had purchased Flat No. 4304 in the project assessee had purchased Flat No. 4304 in the project and, according to the notings found during the search, an aggregate and, according to the notings found during the search, an aggregate and, according to the notings found during the search, an aggregate cash payment of ₹81,00,000/ 81,00,000/- was alleged to have been made in was alleged to have been made in connection with the said flat. connection with the said flat. The fact of receipt of cash component fact of receipt of cash component was duly admitted by the persons controlling the affairs admitted by the persons controlling the affairs of the admitted by the persons controlling the affairs Ruparel Reality group. group.

4.2 The Assessing Officer, therefore, issued a show cause notice The Assessing Officer, therefore, issued a show cause notice The Assessing Officer, therefore, issued a show cause notice calling upon the assessee to explain the source of the alleged cash calling upon the assessee to explain the source of the alleged cash calling upon the assessee to explain the source of the alleged cash payment of ₹81,00,000/ 81,00,000/- reflected in the seized material found at reflected in the seized material found at the premises of the Rupar the premises of the Ruparel Realty Group. In response, the assessee In response, the assessee categorically denied having made any cash payment to the categorically denied having made any cash payment to the categorically denied having made any cash payment to the developer. It was submitted that the total investment in the flat was developer. It was submitted that the total investment in the flat was developer. It was submitted that the total investment in the flat was ₹2,66,37,408/-, jointly made with his spouse, and that the entire , jointly made with his spouse, and that the entire , jointly made with his spouse, and that the entire consideration was pa consideration was paid through accounted sources from business id through accounted sources from business income.

4.3 The assessee further contended that no seized document or The assessee further contended that no seized document or The assessee further contended that no seized document or statement relied upon by the Assessing Officer was ever furnished statement relied upon by the Assessing Officer was ever furnished statement relied upon by the Assessing Officer was ever furnished to him, nor was any opportunity of cross to him, nor was any opportunity of cross-examination provided. It examination provided. It was also pointed out that the agreement for sale was executed on was also pointed out that the agreement for sale was executed on was also pointed out that the agreement for sale was executed on 1.03.2021 for a consideration of ₹2.63 crores and, once a duly 31.03.2021 for a consideration of 2.63 crores and, once a duly executed and enforceable agreement existed, there was no occasion executed and enforceable agreement existed, there was no occasion executed and enforceable agreement existed, there was no occasion or necessity for any subsequent cash payment. It was emphasized or necessity for any subsequent cash payment. It was emphasized or necessity for any subsequent cash payment. It was emphasized that the proposed addition was based solely on loose papers found that the proposed addition was based solely on loose papers fou that the proposed addition was based solely on loose papers fou during the search of a third party and on mere presumptions, during the search of a third party and on mere presumptions, during the search of a third party and on mere presumptions, without any corroborative material linking the assessee to the without any corroborative material linking the assessee to the without any corroborative material linking the assessee to the alleged cash payment. Reliance was placed on various decisions of alleged cash payment. Reliance was placed on various decisions of alleged cash payment. Reliance was placed on various decisions of the Tribunal to submit that no addition could be sustained in the the Tribunal to submit that no addition could be sustained in t the Tribunal to submit that no addition could be sustained in t absence of incriminating material found from the assessee or absence of incriminating material found from the assessee or absence of incriminating material found from the assessee or evidence directly implicating him. evidence directly implicating him. But the Ld. Assessing Officer But the Ld. Assessing Officer rejected the contention of the assessee and made addition of rejected the contention of the assessee and made addition of rejected the contention of the assessee and made addition of Rs.81,00,000/-.

4.4 On appeal, the assessee On appeal, the assessee assailed the addition assailed the addition on multiple grounds. First, it was submitted that the loose papers seized during First, it was submitted that the loose papers seized during First, it was submitted that the loose papers seized during the search and the statements of Shri Hitesh Lalchandani and Shri the search and the statements of Shri Hitesh Lalchandani and Shri the search and the statements of Shri Hitesh Lalchandani and Shri Ramchandran S. Iyer referred to cash receipts of ₹ ₹61,00,000/- in Ramchandran S. Iyer referred to cash receipts of the names of “Viren Manna” and “Shri Dolai” the names of “Viren Manna” and “Shri Dolai”, and not in the name , and not in the name of the assessee. Nowhere in the seized material was it stated that of the assessee. Nowhere in the seized material was it stated that of the assessee. Nowhere in the seized material was it stated that the assessee had paid cash of ₹81,00,000/-. It was thus contended the assessee had paid cash of . It was thus contended that the Assessing Officer had made the addition on assumptions that the Assessing Officer had made the addition on assumptions that the Assessing Officer had made the addition on assumptions unsupported by the seized record. unsupported by the seized record.

4.5 Secondly, it was argued that neither the seized documents nor Secondly, it was argued that neither the seized documents nor Secondly, it was argued that neither the seized documents nor the statements recorded during the search specifically implicated the statements recorded during the search specifically implicated the statements recorded during the search specifically implicated the assessee in any payment of on the assessee in any payment of on-money. The statements were money. The statements were never confronted to the assessee, nor was any opportunity of cross- never confronted to the assessee, nor was any opportunity of cross never confronted to the assessee, nor was any opportunity of cross examination afforded, even several years after the search. It was examination afforded, even several years after the search. It was examination afforded, even several years after the search. It was submitted that an addition based purely on untested third-party submitted that an addition based purely on untested third submitted that an addition based purely on untested third statements and without following principles of natural justice was statements and without following principles of natural justice was statements and without following principles of natural justice was unsustainable in law. unsustainable in law.

4.6 Thirdly, it was emphasized that Thirdly, it was emphasized that no search or survey was no search or survey was conducted at the assessee’s premises and that documents seized conducted at the assessee’s premises and that documents seized conducted at the assessee’s premises and that documents seized from a third party could not, by themselves, be used against the from a third party could not, by themselves, be used against the from a third party could not, by themselves, be used against the assessee without independent corroboration. assessee without independent corroboration.

4.7 The assessee placed reliance on the decision of the Coor The assessee placed reliance on the decision of the Coor The assessee placed reliance on the decision of the Coordinate Bench in Naren Naren Naren Premchand Premchand Premchand Nagda Nagda Nagda v. v. v. ITO ITO ITO (ITA No. 3265/Mum/2015), wherein it was held that no addition could be 3265/Mum/2015), wherein it was held that no addition could be 3265/Mum/2015), wherein it was held that no addition could be made solely on the basis of documents found from third-party made solely on the basis of documents found from third made solely on the basis of documents found from third premises and statements recorded therein, in the absence of premises and statements recorded therein, in the absence of premises and statements recorded therein, in the absence of corroborative evidence against the assessee. nce against the assessee. It may be noted that in It may be noted that in this case the transaction of purchase of property by the assessee this case the transaction of purchase of property by the assessee this case the transaction of purchase of property by the assessee from the builder has not been denied by the assessee. Further, the from the builder has not been denied by the assessee. Further, the from the builder has not been denied by the assessee. Further, the cheque payment was also reflected in the seized noting. Inspite of cheque payment was also reflected in the seized noting. Inspite of cheque payment was also reflected in the seized noting. Inspite of this, the addition made on the basis of noting in respect of cash the addition made on the basis of noting in respect of cash the addition made on the basis of noting in respect of cash transaction was not confirmed. transaction was not confirmed. Reliance was also placed on Reliance was also placed on Jawaharbhai Atmaram Hathiwala v. ITO [128 TTJ 36 (Ahd)], [128 TTJ 36 (Ahd)], Jawaharbhai Atmaram Hathiwala v. ITO wherein it was held that mere third wherein it was held that mere third-party notings or statements, party notings or statements, without any supporting evidence such as handwriting, signatures, porting evidence such as handwriting, signatures, porting evidence such as handwriting, signatures, or other incriminating material belonging to the assessee, could not or other incriminating material belonging to the assessee, could not or other incriminating material belonging to the assessee, could not justify an addition on account of alleged on justify an addition on account of alleged on-money. It was money. It was specifically pointed out that none of the seized documents bore the specifically pointed out that none of the seized documents bore the specifically pointed out that none of the seized documents bore the handwriting or signature of the assessee. g or signature of the assessee.

4.8 The Ld. CIT(A) rejected the assessee’s contentions and upheld The Ld. CIT(A) rejected the assessee’s contentions and upheld The Ld. CIT(A) rejected the assessee’s contentions and upheld the addition. The principal reasoning was that the seized the addition. The principal reasoning was that the seized the addition. The principal reasoning was that the seized documents referred to Flat No. 4304 at Ruparel Jewel and documents referred to Flat No. 4304 at Ruparel Jewel and documents referred to Flat No. 4304 at Ruparel Jewel and mentioned the name “Viren Manna”, which, according to the Ld. mentioned the name “Viren Manna”, which, according to the Ld. mentioned the name “Viren Manna”, which, according to the Ld. CIT(A), was a mere clerical error for “Biren Manna”, as other details e clerical error for “Biren Manna”, as other details e clerical error for “Biren Manna”, as other details matched the assessee’s transaction. The Ld. CIT(A) further relied matched the assessee’s transaction. The Ld. CIT(A) further relied matched the assessee’s transaction. The Ld. CIT(A) further relied upon the statement of Shri Ramchandran S. Iyer recorded under upon the statement of Shri Ramchandran S. Iyer recorded under upon the statement of Shri Ramchandran S. Iyer recorded under section 132(4), wherein it was stated that cash collected was section 132(4), wherein it was stated that cash collected was section 132(4), wherein it was stated that cash collected was handed over to Shri Milind Ruparel. On this basis, the Ld. CIT(A) o Shri Milind Ruparel. On this basis, the Ld. CIT(A) o Shri Milind Ruparel. On this basis, the Ld. CIT(A) money of ₹81,00,000/- concluded that the assessee had paid on concluded that the assessee had paid on-money of and confirmed the addition. and confirmed the addition.The relevant finding of the Ld. CIT(A) is The relevant finding of the Ld. CIT(A) is reproduced as under: reproduced as under:

6.3 During the course of appellate proceedings, th 6.3 During the course of appellate proceedings, the appellant has e appellant has furnished the written submission and the same is perused by the furnished the written submission and the same is perused by the furnished the written submission and the same is perused by the undersigned. The appellant has argued that the appellant has not undersigned. The appellant has argued that the appellant has not undersigned. The appellant has argued that the appellant has not made any cash payment and further the AO could not make any made any cash payment and further the AO could not make any made any cash payment and further the AO could not make any addition on the basis of information received from addition on the basis of information received from evidences found evidences found in 3 rd party premises. From the perusal of seized documents, it is in 3 rd party premises. From the perusal of seized documents, it is in 3 rd party premises. From the perusal of seized documents, it is confirmed that the appellant has purchased the flat no. 4304 at confirmed that the appellant has purchased the flat no. 4304 at confirmed that the appellant has purchased the flat no. 4304 at Ruparel Jewel from Ruparel Realty Group. The appellant has Ruparel Jewel from Ruparel Realty Group. The appellant has Ruparel Jewel from Ruparel Realty Group. The appellant has claimed that in the seized documents against the claimed that in the seized documents against the cash payment cash payment Shri Viren Manna name is there whereas the appellant's name is Shri Viren Manna name is there whereas the appellant's name is Shri Viren Manna name is there whereas the appellant's name is Shri Biren Manna, therefore, the cash payment is not related to the Shri Biren Manna, therefore, the cash payment is not related to the Shri Biren Manna, therefore, the cash payment is not related to the appellant. The appellant has not denied the fact that the flat was appellant. The appellant has not denied the fact that the flat was appellant. The appellant has not denied the fact that the flat was purchased from the builder Ruparel Realty Gro purchased from the builder Ruparel Realty Group and the flat no. is up and the flat no. is 4304 at Ruparel Jewel. The flat no. and other details are matching 4304 at Ruparel Jewel. The flat no. and other details are matching 4304 at Ruparel Jewel. The flat no. and other details are matching with the appellant's transaction and only the first letter is changed with the appellant's transaction and only the first letter is changed with the appellant's transaction and only the first letter is changed as V instead of B and the mistake could have happened on account as V instead of B and the mistake could have happened on account as V instead of B and the mistake could have happened on account of clerical spelling mistake. T of clerical spelling mistake. Therefore, the appellant argument is not herefore, the appellant argument is not acceptable. These facts are confirmed by one of the key person Shri acceptable. These facts are confirmed by one of the key person Shri acceptable. These facts are confirmed by one of the key person Shri Ramchandran S Iyer in the statement recorded u/s 132(4) of the Act Ramchandran S Iyer in the statement recorded u/s 132(4) of the Act Ramchandran S Iyer in the statement recorded u/s 132(4) of the Act and he has stated that the collected cash amount was handed over and he has stated that the collected cash amount was handed over and he has stated that the collected cash amount was handed over to Shri Milind R to Shri Milind Ruparel. In view of the above-mentioned facts and mentioned facts and discussions, the AO has established through the seized documents discussions, the AO has established through the seized documents discussions, the AO has established through the seized documents that the appellant has paid the on that the appellant has paid the on-money of Rs.81,00,000/ money of Rs.81,00,000/- for purchasing the flat, therefore, the undersigned does not find any purchasing the flat, therefore, the undersigned does not find any purchasing the flat, therefore, the undersigned does not find any reason to interfere with the addition made in the assessment order. erfere with the addition made in the assessment order. erfere with the addition made in the assessment order. The appellant has raised the objection on the addition of The appellant has raised the objection on the addition of The appellant has raised the objection on the addition of Rs.81,00,000/ Rs.81,00,000/- through ground nos. 3 to 6, therefore, ground nos. 3 through ground nos. 3 to 6, therefore, ground nos. 3 to 6 are decided against the appellant. to 6 are decided against the appellant.

5.1 We have carefully considered the rival submissions and We have carefully considered the rival submissions and We have carefully considered the rival submissions and perused the material available on record. perused the material available on record.

5.2 It is an undisputed fact that the assessee purchased Flat No It is an undisputed fact that the assessee purchased Flat No It is an undisputed fact that the assessee purchased Flat No. 4304 in the project 4304 in the project Ruparel Jewel and disclosed consideration of and disclosed consideration of ₹2.63 crores, along with applicable taxes, in the duly executed 2.63 crores, along with applicable taxes, in the duly executed 2.63 crores, along with applicable taxes, in the duly executed agreement for sale dated 31.03.2021. The entire disclosed agreement for sale dated 31.03.2021. The entire disclosed agreement for sale dated 31.03.2021. The entire disclosed consideration stands recorded in the agreement. The addition in consideration stands recorded in the agreement. The addition in consideration stands recorded in the agreement. The addition in dispute arises solely from certain loose papers and notings found pute arises solely from certain loose papers and notings found pute arises solely from certain loose papers and notings found during the course of search conducted at the premises of the during the course of search conducted at the premises of the during the course of search conducted at the premises of the developer, Ruparel Realty Group Ruparel Realty Group, wherein an aggregate cash , wherein an aggregate cash payment of ₹81,00,000/ 81,00,000/- is alleged to have been made in respect of is alleged to have been made in respect of the said flat.

5.3 The loose papers found from the Ruparel Reality group has The loose papers found from the Ruparel Reality group has The loose papers found from the Ruparel Reality group has beeb explained by key eomployees of the group. beeb explained by key eomployees of the group. The relevant para of The relevant para of the copy of the statement of Shri Ramchandran S. Iyer dated the copy of the statement of Shri Ramchandran S. Iyer dated the copy of the statement of Shri Ramchandran S. Iyer dated 27.11.2021 wherein he has provided detail of cash 27.11.2021 wherein he has provided detail of cash received against received against the flat No. 4304 of Ruparel Jewel flat No. 4304 of Ruparel Jewel , available on Paper Book page available on Paper Book page 99, is reproduced as under: is reproduced as under: 93 This page contains my To Do List for the day To Do List for the day 21.04.2021. Apart from that the page also contains my noting Apart from that the page also contains my noting regarding cash collected from the f regarding cash collected from the following parties. (i) Rs. 25,00,000 received from Shri Viren Manna Shri Viren Manna, buyer of Flat No. 4304 of Ruparel Jewel project at buyer of Flat No. 4304 of Ruparel Jewel project at Sewre. I had personally handed over said cash to Shri I had personally handed over said cash to Shri Milind Ruparel (noted by me as TMR in my entries) Milind Ruparel (noted by me as TMR in my entries)

103 This page contains my To Do List for the day Do List for the day 03.05.2021. Apart from that the page also contains my noting Apart from that the page also contains my noting regarding cash collected from the following parties. regarding cash collected from the following parties. (i) Rs. 5,00,000 received from Shri Dolai Shri Dolai, buyer of Flat No. 4304 of Ruparel Jewel project at Sewre. Flat No. 4304 of Ruparel Jewel project at Sewre. I had personally handed over said cash to Shri anded over said cash to Shri Milind Ruparel (noted by me as TMR in my entries) Milind Ruparel (noted by me as TMR in my entries) 105 This page contains my To Do List for the day To Do List for the day 05.05.2021. Apart from that the page also contains my noting Apart from that the page also contains my noting regarding cash collected from the following parties. regarding cash collected from the following parties. (i) Rs. 3,00,000 received from Shri Dolai Shri Dolai, buyer of Flat No. 4304 of Ruparel Jewel project at Sewre. Flat No. 4304 of Ruparel Jewel project at Sewre. I had personally handed over said cash to Shri I had personally handed over said cash to Shri Milind Ruparel (noted by me as TMR in my entries) Milind Ruparel (noted by me as TMR in my entries) 106 This page contains my To Do List for the day To Do List for the day 06.05.2021. Apart from that the page also contains my noting Apart from that the page also contains my noting regarding cash collected from the following parties. regarding cash collected from the following parties. (i) Rs. 5,00,000 received from Shri Naresh Shri Naresh Sharma, buyer of Flat No. 4504 of Ruparel Ariana , buyer of Flat No. 4504 of Ruparel Ariana project at Sewre. I had personally handed over said cash to I had personally handed over said cash to Shri Milind Ruparel (noted by me as TMR in my entries) Milind Ruparel (noted by me as TMR in my entries) 111 This page contains my To Do List for the day To Do List for the day 12.05.2021. Apart from that the page also contains my noting Apart from that the page also contains my noting regarding cash collected from the following parties. regarding cash collected from the following parties. (i) Rs. 3,00,000 received from Shri Naresh Shri Naresh Sharma, buyer of Flat No. 4504 of Ruparel Ariana , buyer of Flat No. 4504 of Ruparel Ariana project at Sewre. I had personally handed over said cash to Shri I had personally handed over said cash to Shri Milind Ruparel 5.4 On examination of the statement of Shri Ramchandran S. Iyer, On examination of the statement of Shri Ramchandran S. Iyer, On examination of the statement of Shri Ramchandran S. Iyer, relied upon by the Assessing Officer, it is evid relied upon by the Assessing Officer, it is evident that the notings ent that the notings refer to receipt of refer to receipt of ₹25,00,000/- from “Shri Viren Manna” and from “Shri Viren Manna” and ₹5,00,000/- and ₹3,00,000/ 3,00,000/- from one “Shri Dolai” in connection from one “Shri Dolai” in connection with Flat No. 4304. The Revenue has failed to explain who “Shri with Flat No. 4304. The Revenue has failed to explain who “Shri with Flat No. 4304. The Revenue has failed to explain who “Shri Dolai” is, or on what basis amounts allegedly received from such Dolai” is, or on what basis amounts allegedly received from such Dolai” is, or on what basis amounts allegedly received from such person could be attributed to the assessee, when the flat admittedly person could be attributed to the assessee, when the flat admittedly person could be attributed to the assessee, when the flat admittedly stands in the assessee’s name. The presence of multiple names stands in the assessee’s name. The presence of multiple names stands in the assessee’s name. The presence of multiple names against the same flat number, without any enquiry or clarification against the same flat number, without any enquiry or clarifi against the same flat number, without any enquiry or clarifi by the Investigation Wing or the Assessing Officer, seriously by the Investigation Wing or the Assessing Officer, seriously by the Investigation Wing or the Assessing Officer, seriously undermines the reliability of the seized notings themselves. During undermines the reliability of the seized notings themselves. undermines the reliability of the seized notings themselves. the course of assessment proceedings of the Investigation Wing no the course of assessment proceedings of the Investigation Wing no the course of assessment proceedings of the Investigation Wing no opportunity to cross- -examine the veracity of the stat examine the veracity of the statement made by the key persons of the Ruparel Reality was provided to the assessee. the key persons of the Ruparel Reality was provided to the assessee. the key persons of the Ruparel Reality was provided to the assessee.

5.5 We also note that no receipt, confirmation, or document We also note that no receipt, confirmation, or document We also note that no receipt, confirmation, or document evidencing payment of cash by the assessee has been brought on evidencing payment of cash by the assessee has been brought on evidencing payment of cash by the assessee has been brought on record. None of the seized papers bear the handwr record. None of the seized papers bear the handwriting or signature iting or signature of the assessee, nor do they conclusively establish that the assessee of the assessee, nor do they conclusively establish that the assessee of the assessee, nor do they conclusively establish that the assessee was the person who allegedly made the cash payments. The was the person who allegedly made the cash payments. The was the person who allegedly made the cash payments. The addition has thus been founded entirely on third addition has thus been founded entirely on third-party material. party material.

5.6 In our opinion it is the admitted positio In our opinion it is the admitted position that the statements n that the statements relied upon were never confronted to the assessee and no relied upon were never confronted to the assessee and no relied upon were never confronted to the assessee and no opportunity of cross opportunity of cross-examination of the concerned persons was examination of the concerned persons was afforded. It is trite law that any material collected behind the back afforded. It is trite law that any material collected behind the back afforded. It is trite law that any material collected behind the back of the assessee cannot be used against him un of the assessee cannot be used against him unless he is confronted less he is confronted with such material and given a fair opportunity to rebut the same. with such material and given a fair opportunity to rebut the same. with such material and given a fair opportunity to rebut the same. Failure to provide cross Failure to provide cross-examination goes to the root of the matter examination goes to the root of the matter and vitiates the addition. and vitiates the addition.

5.7 We find that Co We find that Co-ordinate Bench of the Tribunal in identical ordinate Bench of the Tribunal in identical circumstances in case of M/s Rucha Consultancy LLP in of M/s Rucha Consultancy LLP in of M/s Rucha Consultancy LLP in and 5706/Mum/2024 for assessment year 2021- 4996/Mum/2024 and 5706/Mum/2024 for assessment year 2021 4996/Mum/2024 and 5706/Mum/2024 for assessment year 2021 22 has deleted observing as under: has deleted observing as under:

“11.4. We notice that the impugned addition has been made on the 11.4. We notice that the impugned addition has been made on the 11.4. We notice that the impugned addition has been made on the basis of a third party statement, basis of a third party statement, which has been denied by the which has been denied by the assessee. It is also stated that the said statement has been assessee. It is also stated that the said statement has been assessee. It is also stated that the said statement has been retracted by the third party. No other corroborative material has retracted by the third party. No other corroborative material has retracted by the third party. No other corroborative material has been brought on record by the AO to support his case that the been brought on record by the AO to support his case that the been brought on record by the AO to support his case that the assessee has, indeed, received the amo assessee has, indeed, received the amount of Rs. 17.00 crores. It is unt of Rs. 17.00 crores. It is noticed that the assessee had requested the AO to supply to it the noticed that the assessee had requested the AO to supply to it the noticed that the assessee had requested the AO to supply to it the copy of statements recorded from Shri Prabhkar Dalvi, since the copy of statements recorded from Shri Prabhkar Dalvi, since the copy of statements recorded from Shri Prabhkar Dalvi, since the impugned addition has been made by the AO on the basis of that impugned addition has been made by the AO on the basis of that impugned addition has been made by the AO on the basis of that statement only. However, the AO statement only. However, the AO did not supply the copy of did not supply the copy of statement to the assessee. It is well established proposition of law statement to the assessee. It is well established proposition of law statement to the assessee. It is well established proposition of law that the AO could not have made addition on the basis of material that the AO could not have made addition on the basis of material that the AO could not have made addition on the basis of material collected behind the back of the assessee, unless those materials collected behind the back of the assessee, unless those materials collected behind the back of the assessee, unless those materials were confronted with the as were confronted with the assessee. The Ld A.R submitted that the sessee. The Ld A.R submitted that the assessee had specifically requested the AO assessee had specifically requested the AO to allow cross to allow cross examination of Shri Prabhakar Dalvi and the AO did not provide examination of Shri Prabhakar Dalvi and the AO did not provide examination of Shri Prabhakar Dalvi and the AO did not provide such an opportunity. Hence, the AO could not have made any such an opportunity. Hence, the AO could not have made any such an opportunity. Hence, the AO could not have made any addition on the basis of third party s addition on the basis of third party statement which is not tatement which is not corroborated, and not confronted with the assessee. We notice that corroborated, and not confronted with the assessee. We notice that corroborated, and not confronted with the assessee. We notice that the Ld CIT(A) has relied upon various case laws in support of the the Ld CIT(A) has relied upon various case laws in support of the the Ld CIT(A) has relied upon various case laws in support of the decision reached by him. Before us, no contrary decision was decision reached by him. Before us, no contrary decision was decision reached by him. Before us, no contrary decision was placed reliance by the revenue. We notic placed reliance by the revenue. We noticed earlier that the ed earlier that the assessing officer has made the addition u/s 69A of the Act, but the assessing officer has made the addition u/s 69A of the Act, but the assessing officer has made the addition u/s 69A of the Act, but the assessee was not found to be the owner of any cash. Accordingly, assessee was not found to be the owner of any cash. Accordingly, assessee was not found to be the owner of any cash. Accordingly, we are of the view that the Ld CIT(A) was justified in deleting the we are of the view that the Ld CIT(A) was justified in deleting the we are of the view that the Ld CIT(A) was justified in deleting the addition of Rs. 17.00 crores made u addition of Rs. 17.00 crores made u/s 69A as unexplained money. /s 69A as unexplained money.

(j) Atul Tantia vs.DCIT (ITA No.492/Kol/2021 dated 28 (j) Atul Tantia vs.DCIT (ITA No.492/Kol/2021 dated 28 (j) Atul Tantia vs.DCIT (ITA No.492/Kol/2021 dated 28-03-2023); 12.3 From the facts discussed above, we notice that the Ld CIT(A) From the facts discussed above, we notice that the Ld CIT(A) From the facts discussed above, we notice that the Ld CIT(A) has deleted this additi has deleted this addition of Rs.80.00 lakhs for justifiable reasons. on of Rs.80.00 lakhs for justifiable reasons. earlier paragraphs, while adjudicating the issue No.1 urged by the earlier paragraphs, while adjudicating the issue No.1 urged by the earlier paragraphs, while adjudicating the issue No.1 urged by the assessee, we have held that the provisions of sec.69A could be assessee, we have held that the provisions of sec.69A could be assessee, we have held that the provisions of sec.69A could be invoked only if money is physically found in the hands of the invoked only if money is physically found in the hands of the invoked only if money is physically found in the hands of the assessee, which is assessee, which is not the case. The Ld A.R further submitted that not the case. The Ld A.R further submitted that the AO had also made the addition in the hands of Shri Prashant the AO had also made the addition in the hands of Shri Prashant the AO had also made the addition in the hands of Shri Prashant Prakash Nilawar on the basis of whatsapp chat found in the phone Prakash Nilawar on the basis of whatsapp chat found in the phone Prakash Nilawar on the basis of whatsapp chat found in the phone of Shri Shailendra Rathi. The said addition has been deleted by the of Shri Shailendra Rathi. The said addition has been deleted by the of Shri Shailendra Rathi. The said addition has been deleted by the Tribunal, vide its order dated 12 vide its order dated 12-02-2025 passed in the hands of 2025 passed in the hands of Shri Prashant Prakash Nilawar in & 5073/Mum/2024. Shri Prashant Prakash Nilawar in & 5073/Mum/2024. Shri Prashant Prakash Nilawar in & 5073/Mum/2024. The Tribunal held as under: The Tribunal held as under:- ".....the assessee cannot be saddled with the responsibility to ".....the assessee cannot be saddled with the responsibility to ".....the assessee cannot be saddled with the responsibility to explain the image/sheet found from the mobile explain the image/sheet found from the mobile of a third person, of a third person, more particularly in the present situation where the owner of the more particularly in the present situation where the owner of the more particularly in the present situation where the owner of the said document Shri Shailendra Rathi himself could not clearly said document Shri Shailendra Rathi himself could not clearly said document Shri Shailendra Rathi himself could not clearly explain the contents therein as is evident from his statement explain the contents therein as is evident from his statement explain the contents therein as is evident from his statement recorded." 12.4. Accordingly, we are of the vi 12.4. Accordingly, we are of the view that the Ld CIT(A) was ew that the Ld CIT(A) was justified in deleting the addition of Rs.80.00 lakhs. justified in deleting the addition of Rs.80.00 lakhs.” 5.8 The Co-ordinate Bench of the Tribunal in the case of Kundal ordinate Bench of the Tribunal in the case of Kundal ordinate Bench of the Tribunal in the case of Kundal Raghubir Bhandari in for assessment Raghubir Bhandari in ITA No. 3646/Mum/2023 for assessment Raghubir Bhandari in ITA No. 3646/Mum/2023 for assessment year 2017-18 also in identical circumstances making a 18 also in identical circumstances making a 18 also in identical circumstances making addition for on-money received in cash without providing opportunity of cross money received in cash without providing opportunity of cross- money received in cash without providing opportunity of cross examination has been deleted. The relevant finding of the Co- examination has been deleted. The relevant finding of the Co examination has been deleted. The relevant finding of the Co ordinate Bench is reproduced as under: ordinate Bench is reproduced as under:

“18. Considered the rival submissions and material placed on 18. Considered the rival submissions and material placed on 18. Considered the rival submissions and material placed on record, we observe record, we observe that there was a search action in the case of the that there was a search action in the case of the builder Shri Kulin S Vora and in that case the builder has accepted builder Shri Kulin S Vora and in that case the builder has accepted builder Shri Kulin S Vora and in that case the builder has accepted that they have received on that they have received on-money from the various projects money from the various projects conducted by them and he has disclosed the name of all the flat conducted by them and he has disclosed the name of all the flat conducted by them and he has disclosed the name of all the flat owners. The Ta owners. The Tax Authorities proceeded to make the addition based x Authorities proceeded to make the addition based on the above declaration of receipt of on on the above declaration of receipt of on-money in the hands of the money in the hands of the Flat Owners. Assessee being one of the flat purchaser, the Flat Owners. Assessee being one of the flat purchaser, the Flat Owners. Assessee being one of the flat purchaser, the assessment was reopened. However, no cross examination assessment was reopened. However, no cross examination assessment was reopened. However, no cross examination opportunity was given t opportunity was given to the assessee. In this case, no such In this case, no such opportunity was granted to the assessee and only the statement opportunity was granted to the assessee and only the statement opportunity was granted to the assessee and only the statement recorded were supplied to the assessee and in fact, it was asked recorded were supplied to the assessee and in fact, it was asked recorded were supplied to the assessee and in fact, it was asked the assessee to bring the builder before the Assessing Officer. After the assessee to bring the builder before the Assessing Officer. After the assessee to bring the builder before the Assessing Officer. After careful consideratio careful consideration, we observe that the assessee is or will never n, we observe that the assessee is or will never in a position to bring any builder before the tax authorities, it is the in a position to bring any builder before the tax authorities, it is the in a position to bring any builder before the tax authorities, it is the duty of the tax authorities if they want to rely on statement to duty of the tax authorities if they want to rely on statement to duty of the tax authorities if they want to rely on statement to arrange for the cross examination and opportunity to be extended to arrange for the cross examination and opportunity to be extended to arrange for the cross examination and opportunity to be extended to the assessee. Apart from the above statement of the builder and he assessee. Apart from the above statement of the builder and he assessee. Apart from the above statement of the builder and whatever they have declared in their assessment was with the whatever they have declared in their assessment was with the whatever they have declared in their assessment was with the authorities, this information was never available with the Assessing authorities, this information was never available with the Assessing authorities, this information was never available with the Assessing Officer in this case, hence, there is no evidences available in Officer in this case, hence, there is no evidences available in Officer in this case, hence, there is no evidences available in the hands of the Tax Authorities against the assessee except the hands of the Tax Authorities against the assessee except the hands of the Tax Authorities against the assessee except the statement of the builder. The additions proposed by the Assessing statement of the builder. The additions proposed by the Assessing statement of the builder. The additions proposed by the Assessing Officer merely relying on the statement of the builder. Therefore, in Officer merely relying on the statement of the builder. Therefore, in Officer merely relying on the statement of the builder. Therefore, in our considered view the addition cannot be made withou our considered view the addition cannot be made withou our considered view the addition cannot be made without bringing proper material on record or bringing on record the proper joint proper material on record or bringing on record the proper joint proper material on record or bringing on record the proper joint statement from the builder as well as the assessee wherein statement from the builder as well as the assessee wherein statement from the builder as well as the assessee wherein assessee should be one of the party should concede that they have assessee should be one of the party should concede that they have assessee should be one of the party should concede that they have made the on-money. In this case merely relying on the s money. In this case merely relying on the statement of money. In this case merely relying on the s the third party and without giving opportunity to the assessee to the third party and without giving opportunity to the assessee to the third party and without giving opportunity to the assessee to prove its point of view, which is against the natural justice. In this prove its point of view, which is against the natural justice. In this prove its point of view, which is against the natural justice. In this situation, the addition cannot be made in the hands of the situation, the addition cannot be made in the hands of the situation, the addition cannot be made in the hands of the assessee. Therefore, we are inclined to treat th assessee. Therefore, we are inclined to treat the assessment order e assessment order as bad in law which was made purely on the basis of assumption as bad in law which was made purely on the basis of assumption as bad in law which was made purely on the basis of assumption and unverified statement of the third party. Accordingly, appeal and unverified statement of the third party. Accordingly, appeal and unverified statement of the third party. Accordingly, appeal filed by the assessee is allowed. filed by the assessee is allowed.” 5.9 Similarly, the Tribunal in the case of Yes Synthetics Pvt. Ltd. Similarly, the Tribunal in the case of Yes Synthetics Pvt. Ltd. Similarly, the Tribunal in the case of Yes Synthetics Pvt. Ltd. in for assessment year 2013 No. 268/Mum/2024 for assessment year 2013 No. 268/Mum/2024 for assessment year 2013-14 deleted the addition of the on-money without providing opportunity of the money without providing opportunity of the money without providing opportunity of the cross-examination. The relevant finding of the Tribunal is examination. The relevant finding of the Tribunal is examination. The relevant finding of the Tribunal is reproduced as under: reproduced as under:

“6. We have heard the parties and perused the record. We notice We have heard the parties and perused the record. We notice We have heard the parties and perused the record. We notice that the Assessing Officer has placed reliance on the statement that the Assessing Officer has placed reliance on the statement that the Assessing Officer has placed reliance on the statement taken from Shri Binesh Balakrishnan. The statement was given taken from Shri Binesh Balakrishnan. The statement was given taken from Shri Binesh Balakrishnan. The statement was given u/s. 133A of the Act and it is well settled proposition that the same u/s. 133A of the Act and it is well settled proposition that the same u/s. 133A of the Act and it is well settled proposition that the same does not have any evidentiary value. Hence, it is imperative for the oes not have any evidentiary value. Hence, it is imperative for the oes not have any evidentiary value. Hence, it is imperative for the AO to bring any other corroborative material to substantiate the AO to bring any other corroborative material to substantiate the AO to bring any other corroborative material to substantiate the entries made in the document. The responsibility of the assessing entries made in the document. The responsibility of the assessing entries made in the document. The responsibility of the assessing officer would go up, when the assessee denies the entries officer would go up, when the assessee denies the entries officer would go up, when the assessee denies the entries made in the document seized during the course of survey operations. the document seized during the course of survey operations. the document seized during the course of survey operations.

However, we notice that the Assessing Officer neither made any However, we notice that the Assessing Officer neither made any However, we notice that the Assessing Officer neither made any further enquiry nor bring on record any other credible material to further enquiry nor bring on record any other credible material to further enquiry nor bring on record any other credible material to substantiate the entries made in the document that the as substantiate the entries made in the document that the as substantiate the entries made in the document that the assessee has made cash payment of Rs.1.61 crores. has made cash payment of Rs.1.61 crores.

employee of Hiranandani group. We have perused the print out of employee of Hiranandani group. We have perused the print out of employee of Hiranandani group. We have perused the print out of the pen drive (Page 42 of APB) and find ourselves to be in the pen drive (Page 42 of APB) and find ourselves to be in the pen drive (Page 42 of APB) and find ourselves to be in agreement with the view of the Id A.R that though against the agreement with the view of the Id A.R that though against the agreement with the view of the Id A.R that though against the heading "Amount of on money paid" the name, addres heading "Amount of on money paid" the name, addres heading "Amount of on money paid" the name, address and PAN No. of the assessee is mentioned alongwith the details of the No. of the assessee is mentioned alongwith the details of the No. of the assessee is mentioned alongwith the details of the property purchased by him, viz. Flat no.2501 in "Somerset" building property purchased by him, viz. Flat no.2501 in "Somerset" building property purchased by him, viz. Flat no.2501 in "Somerset" building from Lakeview Developers (a Hiranandani group concern), however, from Lakeview Developers (a Hiranandani group concern), however, from Lakeview Developers (a Hiranandani group concern), however, the same would not conclusively prove suppression o the same would not conclusively prove suppression o the same would not conclusively prove suppression of investment and payment of "on money" by the assessee for purchase of the and payment of "on money" by the assessee for purchase of the and payment of "on money" by the assessee for purchase of the property under consideration. We find that the information as property under consideration. We find that the information as property under consideration. We find that the information as emerges from the print out of the pen drive falls short of certain emerges from the print out of the pen drive falls short of certain emerges from the print out of the pen drive falls short of certain material facts, viz. date and mode of receipt of "on material facts, viz. date and mode of receipt of "on money", who had money", who had paid the money, to whom the money was paid, date of agreement paid the money, to whom the money was paid, date of agreement paid the money, to whom the money was paid, date of agreement and who had prepared the details, as a result whereof the adverse and who had prepared the details, as a result whereof the adverse and who had prepared the details, as a result whereof the adverse inferences as regards payment of "on money" by the assessee for inferences as regards payment of "on money" by the assessee for inferences as regards payment of "on money" by the assessee for purchase purchase purchase of of of the the the property property property under under under consideration consideration consideration re re remain uncorroborated. We further find that what was the source from uncorroborated. We further find that what was the source from uncorroborated. We further find that what was the source from where the information was received in the pen drive also remains a where the information was received in the pen drive also remains a where the information was received in the pen drive also remains a mystery till date. We find that Sh. Niranjan Hiranandani in the mystery till date. We find that Sh. Niranjan Hiranandani in the mystery till date. We find that Sh. Niranjan Hiranandani in the course of his cross course of his cross-examination had clearly stated that ne examination had clearly stated that neither he was aware of the person who had made the entry in the pen drive, was aware of the person who had made the entry in the pen drive, was aware of the person who had made the entry in the pen drive, nor had with him any evidence that the assessee had paid any nor had with him any evidence that the assessee had paid any nor had with him any evidence that the assessee had paid any cash towards purchase of flat. We have deliberated on the fact that cash towards purchase of flat. We have deliberated on the fact that cash towards purchase of flat. We have deliberated on the fact that Sh. Niranjan Hiranandani in his statement recorded on Sh. Niranjan Hiranandani in his statement recorded on Sh. Niranjan Hiranandani in his statement recorded on oath in the course of the Search & seizure proceedings had confirmed that the course of the Search & seizure proceedings had confirmed that the course of the Search & seizure proceedings had confirmed that the amounts aggregating to Rs. 475.60 crore recorded in the pen drive amounts aggregating to Rs. 475.60 crore recorded in the pen drive amounts aggregating to Rs. 475.60 crore recorded in the pen drive were the on- money received on sale of flats, which was offered as money received on sale of flats, which was offered as money received on sale of flats, which was offered as additional income under Sec. 132(4) and ther additional income under Sec. 132(4) and thereafter offered as such eafter offered as such for tax in the petition filed before the Settlement commission. We are for tax in the petition filed before the Settlement commission. We are for tax in the petition filed before the Settlement commission. We are of the considered view that there is substantial force in the of the considered view that there is substantial force in the of the considered view that there is substantial force in the contention of the Id. A.R that mere admission of the amounts contention of the Id. A.R that mere admission of the amounts contention of the Id. A.R that mere admission of the amounts recorded in the pen drive as the additi recorded in the pen drive as the additional income by Sh. Niranjan onal income by Sh. Niranjan Hiranandani, falling short of any such material which would Hiranandani, falling short of any such material which would Hiranandani, falling short of any such material which would inextricably evidence payment of "on money" by the assessee would inextricably evidence payment of "on money" by the assessee would inextricably evidence payment of "on money" by the assessee would not lead to drawing of adverse inferences as regards the investment not lead to drawing of adverse inferences as regards the investment not lead to drawing of adverse inferences as regards the investment made by the assessee for purchase made by the assessee for purchase of the property under of the property under consideration. We rather hold a strong conviction that the very fact consideration. We rather hold a strong conviction that the very fact consideration. We rather hold a strong conviction that the very fact that the consideration paid by the assessee for purchase of the that the consideration paid by the assessee for purchase of the that the consideration paid by the assessee for purchase of the property under consideration when pitted against the "market property under consideration when pitted against the "market property under consideration when pitted against the "market value" fixed by the stamp valuation auth value" fixed by the stamp valuation authority is found to be ority is found to be substantially high, further fortifies the veracity of the claim of the substantially high, further fortifies the veracity of the claim of the substantially high, further fortifies the veracity of the claim of the assessee that his investment made towards purchase of the assessee that his investment made towards purchase of the assessee that his investment made towards purchase of the property under consideration was well in order. We are of the property under consideration was well in order. We are of the property under consideration was well in order. We are of the considered view that though the material act considered view that though the material acted upon by the ed upon by the department for drawing of adverse inferences as regards payment department for drawing of adverse inferences as regards payment department for drawing of adverse inferences as regards payment of "on money" by the assessee formed a strong basis for doubting of "on money" by the assessee formed a strong basis for doubting of "on money" by the assessee formed a strong basis for doubting the investment made by the assessee for purchase of the property the investment made by the assessee for purchase of the property the investment made by the assessee for purchase of the property under consideration, but the same falling short under consideration, but the same falling short of clinching material of clinching material which would have irrefutably evidenced the said fact, thus, does which would have irrefutably evidenced the said fact, thus, does which would have irrefutably evidenced the said fact, thus, does not inspire much of confidence as regards the way they have been not inspire much of confidence as regards the way they have been not inspire much of confidence as regards the way they have been construed by the lower authorities for drawing of adverse inferences construed by the lower authorities for drawing of adverse inferences construed by the lower authorities for drawing of adverse inferences in the hands of the assessee. We t in the hands of the assessee. We thus are of a strong conviction that hus are of a strong conviction that as the material relied upon by the lower authorities does not as the material relied upon by the lower authorities does not as the material relied upon by the lower authorities does not corroborate corroborate corroborate the the adverse the adverse inferences drawn as adverse inferences drawn as regards inferences drawn as regards the regards the the investment made by the assessee, therefore, the same cannot investment made by the assessee, therefore, the same cannot investment made by the assessee, therefore, the same cannot conclusively form a basis for concluding t conclusively form a basis for concluding that the assessee had hat the assessee had made payment of "on money" for purchase of the property under made payment of "on money" for purchase of the property under made payment of "on money" for purchase of the property under consideration. We thus in the backdrop of our aforesaid consideration. We thus in the backdrop of our aforesaid consideration. We thus in the backdrop of our aforesaid observations are of the considered view that the adverse inferences observations are of the considered view that the adverse inferences observations are of the considered view that the adverse inferences drawn by the A.O as regards payment of "on money" drawn by the A.O as regards payment of "on money" drawn by the A.O as regards payment of "on money" of Rs. 2.23 crore by the assessee for purchase of Flat No. 2501 from M/s crore by the assessee for purchase of Flat No. 2501 from M/s crore by the assessee for purchase of Flat No. 2501 from M/s Lakeview Developers are based on of premature observations of the Lakeview Developers are based on of premature observations of the Lakeview Developers are based on of premature observations of the A.O, which in the absence of any clinching evidence cannot be A.O, which in the absence of any clinching evidence cannot be A.O, which in the absence of any clinching evidence cannot be sustained. We thus are unable to subscribe to the view sustained. We thus are unable to subscribe to the view sustained. We thus are unable to subscribe to the view of the lower authorities and set aside the order of the CIT(A) sustaining the authorities and set aside the order of the CIT(A) sustaining the authorities and set aside the order of the CIT(A) sustaining the addition of Rs. 2.23 crores in the hands of the assessee. addition of Rs. 2.23 crores in the hands of the assessee. addition of Rs. 2.23 crores in the hands of the assessee. In the case before the co In the case before the co-ordinate bench, the pen drive was found ordinate bench, the pen drive was found during the course of search operations conducted u/s during the course of search operations conducted u/s during the course of search operations conducted u/s 132(4) of the Act and further the builder has offered the alleged on Act and further the builder has offered the alleged on Act and further the builder has offered the alleged on-money receipts as its income. The co receipts as its income. The co- ordinate bench has held that the ordinate bench has held that the action taken by the builder would not automatically support the action taken by the builder would not automatically support the action taken by the builder would not automatically support the presumption that the concerned assessee has paid on presumption that the concerned assessee has paid on presumption that the concerned assessee has paid on money.