AKSHAY KUMAR SAXENA,MUMBAI vs. ITO-4(2)(1), MUMBAI

This appeal by the assessee is directed against order dated 10.02.2024 passed by the Ld. Commissioner of Income-tax (Appeals) – 58, Mumbai [in short ‘the Ld. CIT(A)’] for assessment year 2013-14. The relevant grounds raised by the assessee, which were revised through letter dated 10.10.2024, are reproduced as under:

A. Ground No A. Ground No-1: - 1) The Assessing officer has issued 1) The Assessing officer has issued notice u/s 148 on dated notice u/s 148 on dated 31.03.2021 which is uploaded on portal on 01/04/2021) So 31.03.2021 which is uploaded on portal on 01/04/2021) So 31.03.2021 which is uploaded on portal on 01/04/2021) So the service of Notice considered as 01/04/2021. As per the service of Notice considered as 01/04/2021. As per the service of Notice considered as 01/04/2021. As per Finance Act,2021, The New Provision of Reassessment has Finance Act,2021, The New Provision of Reassessment has Finance Act,2021, The New Provision of Reassessment has been introduced in FY 2021 been introduced in FY 2021-22 which effective from 22 which effective from 01/04/2021. S 01/04/2021. So, as per the consideration of provision o, as per the consideration of provision mentioned in Section 148A/149/151 of the Income Tax Act, mentioned in Section 148A/149/151 of the Income Tax Act, mentioned in Section 148A/149/151 of the Income Tax Act, 1961 the Issuance of the Notice u/s148 under the older 1961 the Issuance of the Notice u/s148 under the older 1961 the Issuance of the Notice u/s148 under the older regime on 01/04/2021 should not prevail. regime on 01/04/2021 should not prevail. B. Ground No B. Ground No-2: - 1) We would like to inform your honor that, 1) We would like to inform your honor that, Appellant has Appellant has purchase flat in FY 2012 purchase flat in FY 2012-13 for the sale consideration of Rs. 13 for the sale consideration of Rs. 55,48,000/- and Our Sale Agreement are register on dated and Our Sale Agreement are register on dated 20/12/2012. As per Ld. Assessing Officer observation, we 20/12/2012. As per Ld. Assessing Officer observation, we 20/12/2012. As per Ld. Assessing Officer observation, we have paid cash over and above the sale consideration for have paid cash over and above the sale consideration for have paid cash over and above the sale consideration for purchasing the flat. The Cash payment was made by g the flat. The Cash payment was made by g the flat. The Cash payment was made by Assessee to Bhagwati Developers after 5 years since the Assessee to Bhagwati Developers after 5 years since the Assessee to Bhagwati Developers after 5 years since the purchased of Flat for parking and installation of grills, society purchased of Flat for parking and installation of grills, society purchased of Flat for parking and installation of grills, society and Club charges, which are related to repairs & maintenance and Club charges, which are related to repairs & maintenance and Club charges, which are related to repairs & maintenance in FY 2017-18. 18. 2) Unexplained Mo 2) Unexplained Money: Section 69A of Income Tax act, 1961 In ney: Section 69A of Income Tax act, 1961 In our case, we would like to inform you that, we have explained our case, we would like to inform you that, we have explained our case, we would like to inform you that, we have explained the nature of expense and the source of cash payment along the nature of expense and the source of cash payment along the nature of expense and the source of cash payment along with bank statements. Hence, concern matter in this no more with bank statements. Hence, concern matter in this no more with bank statements. Hence, concern matter in this no more unexplained. So, it is Unjustif unexplained. So, it is Unjustifiable to Add the same in the total iable to Add the same in the total income.

“6.2 The assessee during the course of appellate proceedings “6.2 The assessee during the course of appellate proceedings “6.2 The assessee during the course of appellate proceedings has mentioned that he had made cash payment to the builder has mentioned that he had made cash payment to the builder has mentioned that he had made cash payment to the builder after the purchase of flat for parking and in after the purchase of flat for parking and installation of grill stallation of grill and society and club charges which are related to repair and and society and club charges which are related to repair and and society and club charges which are related to repair and maintenance in F.Y.2017 maintenance in F.Y.2017-18. The assessee further stated that 18. The assessee further stated that cash payment was made after cash withdrawal from the cash payment was made after cash withdrawal from the cash payment was made after cash withdrawal from the bank account of the assessee and also from cash in hand of bank account of the assessee and also from cash in hand of bank account of the assessee and also from cash in hand of his mother and grandmother. s mother and grandmother. 6.3 Order of the AO and submission of the assessee have 6.3 Order of the AO and submission of the assessee have 6.3 Order of the AO and submission of the assessee have been examined. During the course of search action on been examined. During the course of search action on been examined. During the course of search action on Bhagavati Developers and its group concerns from which the Bhagavati Developers and its group concerns from which the Bhagavati Developers and its group concerns from which the assessee had purchased a flat, the documents were seized assessee had purchased a flat, the documents were seized assessee had purchased a flat, the documents were seized which show that the assessee had paid an amount of show that the assessee had paid an amount of show that the assessee had paid an amount of Rs.60,47,525/ Rs.60,47,525/- against the purchase of flat no. A- -1102 in Sky Oasis. Further, statement of Kulin Shantilal Voha, key person Oasis. Further, statement of Kulin Shantilal Voha, key person Oasis. Further, statement of Kulin Shantilal Voha, key person of the developers was recorded during the search action u/s. of the developers was recorded during the search action u/s. of the developers was recorded during the search action u/s. 132(4) of the Act wherein 132(4) of the Act wherein he had admitted that the Bhagvati he had admitted that the Bhagvati Developers had received on money from various clients Developers had received on money from various clients Developers had received on money from various clients against the sale of flats. The assessee, during the course of against the sale of flats. The assessee, during the course of against the sale of flats. The assessee, during the course of assessment proceedings has mentioned he has not made any assessment proceedings has mentioned he has not made any assessment proceedings has mentioned he has not made any cash payment to the builder and he was not party cash payment to the builder and he was not party cash payment to the builder and he was not party to the entries made in respect of purchase of flat reflected in the entries made in respect of purchase of flat reflected in the entries made in respect of purchase of flat reflected in the seized document. Now, before the appellate proceedings, the seized document. Now, before the appellate proceedings, the seized document. Now, before the appellate proceedings, the assessee has come out with a totally new theory that he has assessee has come out with a totally new theory that he has assessee has come out with a totally new theory that he has made cash payment after the purchase of flat for parking, made cash payment after the purchase of flat for parking, made cash payment after the purchase of flat for parking, installation of grills, society and club charges which are ion of grills, society and club charges which are ion of grills, society and club charges which are related to repair and maintenance in F.Y.2017 related to repair and maintenance in F.Y.2017-18. 18. 6.4 However, the contention of the assessee is without merit 6.4 However, the contention of the assessee is without merit 6.4 However, the contention of the assessee is without merit as the seized document has clearly mentioned that the value as the seized document has clearly mentioned that the value as the seized document has clearly mentioned that the value of the flat at Rs.60,47,525/ of the flat at Rs.60,47,525/- which has already included has already included these charges, i.e.parking, installation of grills, society and these charges, i.e.parking, installation of grills, society and these charges, i.e.parking, installation of grills, society and club charges and the assessee has paid Rs.55,48,000/ club charges and the assessee has paid Rs.55,48,000/ club charges and the assessee has paid Rs.55,48,000/- as per agreement value and Rs.4,99,525/ per agreement value and Rs.4,99,525/-paid in cash over and paid in cash over and above the agreement value in A.Y.2013 above the agreement value in A.Y.2013-14 only. Further 14 only. Further, the assessee has not furnished any supporting documents assessee has not furnished any supporting documents assessee has not furnished any supporting documents received from the builder regarding cash payment made by received from the builder regarding cash payment made by received from the builder regarding cash payment made by him against repairs and maintenance in F.Y.2017 him against repairs and maintenance in F.Y.2017- him against repairs and maintenance in F.Y.2017-18. 6.5 The assessee has relied on decision of the ITAT, Delhi in 6.5 The assessee has relied on decision of the ITAT, Delhi in 6.5 The assessee has relied on decision of the ITAT, Delhi in the case of Ram Kishan VS I the case of Ram Kishan VS ITO (ITA No. 1909/Del/2020). TO (ITA No. 1909/Del/2020). However the same is not applicable to the facts of the case as However the same is not applicable to the facts of the case as However the same is not applicable to the facts of the case as the assessee could not explain the source of cash of Rs. the assessee could not explain the source of cash of Rs. the assessee could not explain the source of cash of Rs. 4,99,525/- paid to the builder in A.Y.2013 paid to the builder in A.Y.2013-14. 6.6 In view of the above facts, an addition of Rs.4,99,525/ 6.6 In view of the above facts, an addition of Rs.4,99,525/ 6.6 In view of the above facts, an addition of Rs.4,99,525/- made by the AO on account of cash payment made to M/s. made by the AO on account of cash payment made to M/s. made by the AO on account of cash payment made to M/s. Bhagavati Developers Pvt. Ltd. over and above the agreement Bhagavati Developers Pvt. Ltd. over and above the agreement Bhagavati Developers Pvt. Ltd. over and above the agreement value towards the purchase of flat u/s.69A of the Act as value towards the purchase of flat u/s.69A of the Act as value towards the purchase of flat u/s.69A of the Act as unexplained money has been confirmed.” unexplained money has been confirmed.”

4.1 Since we have already allowed the appeal of the assessee on Since we have already allowed the appeal of the assessee on Since we have already allowed the appeal of the assessee on merit, the ground No. 1 challenging the validity of the reassessment ground No. 1 challenging the validity of the reassessment ground No. 1 challenging the validity of the reassessment proceedings is accordingly rendered academic. Therefore, we are not proceedings is accordingly rendered academic. Therefore, we are not proceedings is accordingly rendered academic. Therefore, we are not adjudicating upon the same udicating upon the same at this stage.