BHARGAVI SAJJA,TELANGANA vs. ACIT., CENTRAL CIRCLE 2(1), TELANGANA

The brief facts of the case are that, the assessee is an individual who filed return of income under section 139(1) of the Income Tax Act, 1961 (“the Act”) for A.Y. 2018-19 on 05.08.2018 and for A.Y. 2019–20 on 22.08.2019, declaring total income of Rs.Nil and Rs.3,33,420/- respectively. Later on, the assessee revised her return for A.Y. 2019-20 under section 139(5) of the Act on 16.10.2020 declaring the same income as in the original return. Subsequently, a search and seizure operation was conducted in the case of M/s. MSR India Ltd. and Sri M. Srinivasa Reddy, Director of M/s. Mirchi Developers Pvt. Ltd. (“developer”) on 07.01.2021. During the search, certain loose sheets were seized from the premises of M/s. MSR India Ltd., related to developer evidencing various cash and cheque payments made by different persons including the assessee, purportedly for purchase of plots from developer.

3.1 On the basis of seized document marked Annexure A/MSR/OFF/1, and after finding correlation with a registered sale deed dated 23.05.2018 for Plot No. 12, the Learned Assessing Officer (“Ld. AO”) concluded that the assessee made cash payment of Rs.5 lakhs in assessment year 2018-19 and cash payment of Rs.20 lakhs in assessment year 2019-20 over and above the registered consideration. Accordingly, proceedings under section 153C of the Act were initiated, and assessment was completed by making addition of Rs.5 lakhs and Rs.20 lakhs for assessment year 2018-19 and 2019-20 respectively as unexplained investment under section 69 of the Act.

Aggrieved with the order of Ld. AO, the assessee filed appeal before the Ld. CIT(A), which was dismissed. The observation of the Ld. CIT(A) are placed at page nos.21 to 29 of his order, which is to the following effect :

Aggrieved with the order of Ld. CIT(A), the assessee is now in appeal before this Tribunal. At the outset, the Ld. AR submitted that two primary issues are raised in this appeal i.e. (i) Non- provision of opportunity of cross-examination of the person from whom the seized documents were obtained and (ii) Absence of incriminating material in the hands of the assessee, rendering the assumption of jurisdiction under section 153C of the Act invalid.

On the first issue, the Ld. AR submitted that the assessee had specifically raised this grievance before the Ld. CIT(A), which is recorded at page no. 20 of the appellate order. The assessee contended that no opportunity of cross-examination of the concerned person (from whom the seized documents originated) was ever granted. The Ld. AR therefore submitted that the assessment order is liable to be quashed on this ground alone.

On the second issue, the Ld. AR argued that the seized document is a loose sheet without evidentiary value, and there is no other corroborative material to prove that cash payment of Rs.25 lakhs was actually made by the assessee. The document is not signed by the assessee, and no statement of the person maintaining the record has been brought on record. Hence, in absence of any credible incriminating material, initiation of proceedings under section 153C of the Act is invalid.

Per contra, the Learned Department Representative (“Ld. DR”) opposed both contentions of the assessee. On the issue of cross-examination, he submitted that no request for cross- examination was ever made by the assessee before the Ld. AO. In absence of such request, there was no obligation on the part of the Ld. AO to provide an opportunity for cross-examination. Accordingly, the allegation of violation of natural justice does not survive.

On the issue of validity of proceedings under section 153C of the Act, the Ld. DR drew our attention to the seized document placed at page no.47 of the paper book, which records cash and cheque payments, name of the assessee, plot number, and other details. He submitted that the plot no.12 and cheque payments recorded in the document for Rs.21,70,000/-, match with the registered sale deed dated 23.05.2018 placed at page nos. 50 to 61 of the paper book. The Ld. DR also submitted that in addition to cheque payments of Rs.21,70,000/- for other two cheque payments of Rs.13,00,000/- (dated 23.04.2018) and Rs.3,50,000/- (dated 07.05.2018), which has been paid for other amenities is accepted by the assessee. He further submitted that, the assessee however accepting the cheque payments recorded in the seized documents, denying only cash payment of Rs.25 lakhs. He submitted that, when most of the details of the seized document are matching with the records of the assessee and are accepted by the assessee, the assessee cannot deny the part of the records. He further submitted that, the document in question is not a random loose paper but part of a maintained register containing details of buyers, plot numbers, and payment dates. Hence, he submitted that there was sufficient incriminating material in possession of the Ld. AO to assume jurisdiction under section 153C of the Act. Accordingly, the addition made by the Ld. AO is well justified.

We have heard the rival submissions and perused the material on record. With regard to the first issue of denial of cross-examination, we have gone through page no.20 of the appellate order of the Ld. CIT(A), where the assessee has raised the plea that no opportunity for cross-examination was granted by the Ld. AO. However, we do not find any material to suggest that the assessee had made any such request for cross- examination before the Ld. AO during the assessment proceedings. Therefore, in absence of any such request, we are inclined to accept the submission of the Ld. DR that there was no obligation on the Ld. AO to provide such an opportunity suo motu. The law is clear that the obligation arises only upon a specific demand. In view of the above, the plea of violation of natural justice is rejected.

On the second issue relating to the validity of jurisdiction under section 153C of the Act and evidentiary value of the seized material, we note that the seized document (page no.47 of the paper book) records the name of the assessee, plot number, amounts paid through cheques, and amounts paid in cash. The cheque payments (Rs.21,70,000/-) and plot no. fully match with the registered sale deed (page nos.50 to 61 of the paper book). Further, in addition to cheque payments of Rs.21,70,000/-, other two cheque payments of Rs.13,00,000/- (dated 23.04.2018) and Rs.3,50,000/- (dated 07.05.2018), which has been paid for other amenities is accepted by the assessee. Accordingly, this part of the document is accepted as genuine and is not disputed.

Once a portion of a document is accepted as genuine and correlates with independently verifiable facts (i.e., sale deed), the remaining part, including cash entries, cannot be discarded solely for want of signature or formal acknowledgement. The document appears to be part of a maintained register recording payment details, and not a dumb document or random loose sheet.

In view of the above, we find no infirmity in the action of the Ld. AO in relying on the seized document to assume jurisdiction under section 153C of the Act and making addition under section 69 on account of unexplained investment. We, therefore, uphold the order of the Ld. CIT(A) and confirm the addition of Rs.5 lakhs and Rs.20 lakhs made by the Ld. AO for assessment year 2018-19 and 2019-20 respectively.