HEMANT AGARWAL,MUMBAI vs. ACIT, CIRCLE 4 , THANE

This appeal by the assessee is directed against order dated 10.01.2020 passed by the Ld. Commissioner of Income-tax (Appeals)-3, Thane [in short ‘the Ld. CIT(A)’] for assessment year 2009-10, raising following ground:

The learned CIT(A) erred in disregarding the grave mistake The learned CIT(A) erred in disregarding the grave mistake The learned CIT(A) erred in disregarding the grave mistake committed by the Assessing Officer in making addition of committed by the Assessing Officer in making addition of committed by the Assessing Officer in making addition of ₹6,26,400 6,26,400/- to the income of the appellant on account of to the income of the appellant on account of cash received from sale of FSI to the builder when in fact the reason received from sale of FSI to the builder when in fact the reason received from sale of FSI to the builder when in fact the reason recorded for reopening stated that the appellant had paid cash to recorded for reopening stated that the appellant had paid cash to recorded for reopening stated that the appellant had paid cash to the builder for purchase of the property. The learned CIT(A) thus the builder for purchase of the property. The learned CIT(A) thus the builder for purchase of the property. The learned CIT(A) thus failed to appreciate that the reassessment is void ab initio. failed to appreciate that the reassessment is void ab failed to appreciate that the reassessment is void ab 3. The learned CIT(A) erred in inferring that reasons recorded and The learned CIT(A) erred in inferring that reasons recorded and The learned CIT(A) erred in inferring that reasons recorded and assessment framed are congruous despite admitting that there is assessment framed are congruous despite admitting that there is assessment framed are congruous despite admitting that there is infirmity in the reasons recorded. The learned CIT(A) failed to infirmity in the reasons recorded. The learned CIT(A) failed to infirmity in the reasons recorded. The learned CIT(A) failed to appreciate that the infirmity is so material which goes to the root appreciate that the infirmity is so material which appreciate that the infirmity is so material which of the reassessment and is fatal invalidating the assessment. of the reassessment and is fatal invalidating the assessment. of the reassessment and is fatal invalidating the assessment. 4. The learned CIT(A) erred in not following the decision of the The learned CIT(A) erred in not following the decision of the The learned CIT(A) erred in not following the decision of the jurisdictional High Court which has held that if no addition is jurisdictional High Court which has held that if no addition is jurisdictional High Court which has held that if no addition is made in respect of issue which formed the basis for reopening, no made in respect of issue which formed the basis for made in respect of issue which formed the basis for other addition is permissible. other addition is permissible. 5. The learned CIT(A) erred in concluding that the common element The learned CIT(A) erred in concluding that the common element The learned CIT(A) erred in concluding that the common element in the recorded reasons and assessment framed is unaccounted in the recorded reasons and assessment framed is unaccounted in the recorded reasons and assessment framed is unaccounted cash element involved in the transaction and hence the addition is cash element involved in the transaction and hence the addition is cash element involved in the transaction and hence the addition is exactly what was pe exactly what was perceived in the recorded reasons. The learned rceived in the recorded reasons. The learned CIT(A) failed to appreciate that if wrong facts forms the CIT(A) failed to appreciate that if wrong facts forms the CIT(A) failed to appreciate that if wrong facts forms the foundation of reassessment, the entire assessment collapses. foundation of reassessment, the entire assessment collapses. foundation of reassessment, the entire assessment collapses. 6. The learned CIT(A) erred in upholding the stand of the Assessing The learned CIT(A) erred in upholding the stand of the Assessing The learned CIT(A) erred in upholding the stand of the Assessing Officer in completely relyi Officer in completely relying on the inferential evidence such as ng on the inferential evidence such as statement of the partner of the searched party. statement of the partner of the searched party.

The learned CIT(A) erred in concluding that the loose papers The learned CIT(A) erred in concluding that the loose papers The learned CIT(A) erred in concluding that the loose papers found during the search operations in case of third party are found during the search operations in case of third party are found during the search operations in case of third party are sufficient to establish the nexus with the app sufficient to establish the nexus with the appellant. ellant.

The learned CIT(A) failed to appreciate that apart from the The learned CIT(A) failed to appreciate that apart from the The learned CIT(A) failed to appreciate that apart from the statement and material found during the search of the developer, statement and material found during the search of the developer, statement and material found during the search of the developer, the Assessing Officer could not adduce any cogent corroborative the Assessing Officer could not adduce any cogent corroborative the Assessing Officer could not adduce any cogent corroborative evidence in support of his contention that the appellant had in fact evidence in support of his contention that the appellant h evidence in support of his contention that the appellant h received cash in the transaction. received cash in the transaction. 9. The learned CIT(A) erred in brushing aside the appellant's The learned CIT(A) erred in brushing aside the appellant's The learned CIT(A) erred in brushing aside the appellant's contention that he was not afforded the opportunity to cross- contention that he was not afforded the opportunity to cross contention that he was not afforded the opportunity to cross examine the deponent on the basis of whose statement the examine the deponent on the basis of whose statement the examine the deponent on the basis of whose statement the addition was made. addition was made. 2. At the outset, the Ld. Counsel of the assessee submitted that t, the Ld. Counsel of the assessee submitted that t, the Ld. Counsel of the assessee submitted that assessee has opted for Vivad Se Vishwas Scheme, 2020 and settled assessee has opted for Vivad Se Vishwas Scheme, 2020 and settled assessee has opted for Vivad Se Vishwas Scheme, 2020 and settled its dispute and paid the taxes due under the said scheme its dispute and paid the taxes due under the said scheme its dispute and paid the taxes due under the said scheme and therefore, the assessee wishes to withdraw the captioned appeal therefore, the assessee wishes to withdraw the captioned appeal therefore, the assessee wishes to withdraw the captioned appeal. The Ld. Counsel has also filed Form Nos. 3, 4 & 5 prescribed under has also filed Form Nos. 3, 4 & 5 prescribed under has also filed Form Nos. 3, 4 & 5 prescribed under the Vivad Se Vishwas Act, 2020. The relevant part the Vivad Se Vishwas Act, 2020. The relevant part of of Form No. 5 is reproduced as under: reproduced as under:

In view of withdrawal of the appeal iew of withdrawal of the appeal by the assessee, by the assessee, the same is dismissed as infructuous. is dismissed as infructuous.