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Income Tax Appellate Tribunal, AHMEDABAD “SMC” BENCH AHMEDABAD
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “SMC” BENCH AHMEDABAD
BEFORE SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI S. S. GODARA, JUDICIAL MEMBER.
ITA No. 3198/Ahd/2015 (Assessment Year : 2012-13) Shri Parag Mohata 711, Golden Triangle, Stadium Road, Navjivan, Ahmedabad 380014 Appellant Vs. ITO, Ward – 1(3)(4), Ahmedabad Respondent PAN: AAZPM1736A आवेदक क� ओर से / By Assessee : Shri Parin Shah, A.R. राज�व क� ओर से / By Revenue : Shri Antony Pariath, Sr. D.R. सुनवाई क� तार�ख/Date of Hearing : 14.11.2017 घोषणा क� तार�ख/Date of Pronouncement : 05.01.2018 ORDER PER S. S. GODARA, JUDICIAL MEMBER
This assessee’s appeal for assessment year 2012-13, arises against the CIT(A)-10, Ahmedabad’s order dated 16.09.2015, in case no. CIT(A)- 10/ITO.WD/1(3)/708/14-15, partly upholding Assessing Officer’s action making Section 69C unexplained expenditure addition of Rs.26,22,690/- to Rs. 6,22,690/-, in proceedings u/s. 143(3) r.w.s. 147 of the Income Tax Act, 1961, hereinafter ‘the Act’. Heard both the parties. Case file perused.
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We notice at the outset that the CIT(A)’s detailed findings under challenge discuss the above issue at length as follows:
“4.4 I have carefully considered the Assessment .Order and the submission filed by the Appellant. The search proceeding was conducted at the premises of M/s. India Green Realty Pvt. Ltd and booking register for plots sold at Nalsarovar Road, Village: Zamp was found which suggests that Appellant has made cash payment of Rs. 26,2.2,690 for plot purchased in above referred scheme. During the course of Assessment Proceedings, Appellant has submitted allotment letter and no due certificate dated 19th July 2011 and Assessing Officer observed that saie deed was not registered in the name of appellant on such date. The Assessing Officer has stated that during the course of search at IGRPL, Director has confirmed that cash payment was received from Appellant and as Appellant has not proved source of cash payment of Rs. 26,22,690, such amount is required to be taxed as unexplained cash Under Section 69C of the Act. On the other hand, Appellant has argued that it has purchased the above plot for Rs. 5,58,000 and no alleged cash payment was made to such party. With reference to booking register referred by Assessing Officer, Appellant has argued that such register was not provided to Appellant hence same cannot be relied upon, it was also argued by Appellant that it has called for cross examination of Director of SGRPL on 20th January, 2015 and 28th January, 2015 but on the date of such cross examination, Director of said Company had not appeared before the Assessing Officer hence statement of Director has no credence arid same cannot be relied upon. Thus, appellant has argued that statement of third party without bringing any evidences of actual cash payment cannot be relied upon more particularly when such statement was not provided to Appellant in spite of specific request made by it as well as no cross-examination was provided hence entire addition cannot be made. In alternate submission, Appellant has argued that during the course of Assessment Proceedings it has submitted allotment letter as well as No Due Certificate dated 19th July, 2011 hence Assessing Officer is not justified in making addition for alleged cash payment reflected in booking register which bears date subsequent to 19th July, 2011.
4.5 On careful consideration of entire facts, it is observed that Assessing Officer has proceeded to make entire addition based upon booking register found during the course of search at IGRPL. The Assessing Officer has observed that Appellant has made alleged cash payment of Rs. 26,22,690 for purchase of plot in above referred scheme and payment of Rs. 50,000 was made on 5th April, 2011, Rs. 5,72,600 on 19th July, 2011, Rs. 5,72,600 on 8th September, 2011 and Rs. 14,27,400 on 25th September, 2011. During the course of Assessment Proceedings, Appellant has asked Assessing Officer to provide booking register, statement of the Director of IGRPL, wherein he has admitted that cash payment is received from Appellant and cross-examination of such Director. The Assessment Order passed by the Assessing Officer is silent on above referred observation and submission of the Appellant. Considering these facts, the observation made by Assessing Officer cannot be accepted in its entirety as alleged cash payment reflected in booking register is against the plot booked by Appellant. The details submitted by Appellant during the course of Assessment Proceedings as well as in
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Appellate Proceedings clearly suggests that IGRPL has issued allotment letter on 19th July, 2011 and on very same date,-it has issued No Due Certificate-to Appellant, which clearly means that payment is not made subsequent to 19th July, 2011. It is observed that when Assessing Officer is heavily relying upon booking register, statement of Director of IGRPL, he cannot ignore No Due Certificate as well as allotment letter issued by very same seller. Both the evidences were filed with Assessing Officer and same were not found to be incorrect or non-genuine by Assessing Officer. Considering these facts, cash payment reflected in booking register subsequent to 19th July, 2011 as referred herein above, cannot be held as cash payment made by Appellant to said Company as no independent evidences were brought on record by Assessing Officer. From the details of alleged cash payment mentioned in Assessment Order and referred herein above, it is observed that payment of Rs.5,72,600 made on 8th September, 2011 and Rs. 14,27,400 on 25th September, 2011 cannot be considered as cash payment made by Appellant hence aggregate amount of Rs. 20,00,000 cannot be held as unaccounted cash payment in the hands of Appellant. In the result, addition made by Assessing Officer for Rs, 26,22,690 is restricted to Rs. 6,22,690. The Appellant gets relief of Rs. 20,00,000. This Ground of Appeal is partly allowed.”
Heard both the parties. Case file perused. There is no dispute that the CIT(A) has already granted sufficient relief to the assessee mainly on the ground that the remaining alleged on money payment of Rs.20lacs could not have been made after completion of the relevant transaction. Mr. Parin Shah vehemently contends that there is no evidence in the case records or search documents indicating the assessee to have paid the on money in question. He highlights the fact that the assessee could not examine the searched assessee as well (supra). We find no substance in either of the two conditions. It is come on record that the impugned remaining addition is based on seized record during search. We quote this tribunal’s Third Member decision in Mrs. Malini Rele vs. ITO (1994) 49 ITD 43 (Ahd) that such an inference of on money is based on preponderance of probability. We repeat that the impugned addition is based on the above evidence found during search. We are not convinced with cross examination plea as well as remitting the issue back to the Assessing Officer for such an opportunity would mean that the entire issue has to be re-examined. The assessee does not agree to the same. Be that as it may, the CIT(A) has adjudicated the
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impugned issue in detail whilst granting substantive relief to assessee. We find no reason to adopt a different approach in given facts of the case. The assessee’s sole substantive ground is rejected.
This assessee’s appeal is dismissed.
[Pronounced in the open Court on this the 5th day of January, 2018.]
Sd/- Sd/- (N. K. BILLAIYA) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad: Dated 05/01/2018 True Copy S.K.SINHA आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. राज�व / Revenue 2. आवेदक / Assessee 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त- अपील / CIT (A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड� फाइल / Guard file. By order/आदेश से,
उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद ।