NISH DEVELOPERS PVT. LTD.,MUMBAI vs. DCIT- CC- 6(3), MUMBAI

Per Rajesh Kumar, Accountant Member:

The above titled cross appeals have been filed against the order dated 23.03.2018 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to

2 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers assessment years 2010-11, 2011-12, 2012-13, 2013-14, 2014- 15 and 2015-16.

3 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers - Purchasers of flats Shri Manoj Desai, Shri Sanjay Jain and Nemichand Jain, Shri Shrikant Agarwal, Shri Rajesh Jogani and family members, Shri Amit Doshi (M/s C.Dineesh& Co. Pvt. Ltd.

4 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers filed a complaint with Additional Commissioner of Police, Western Region, Borivali Police Station for assaulting and beating up during search by the Search team. Shri Kailash Aggarwal the main promoter, also filed a complaint with Home Ministry, Govt. of Maharashtra on 19.04.2014 narrating the incidence of torture and mishandling of his family and his staff. Thereafter he retracted his statement given during the course of search u/s 132(4) of the Act. Shri Praveen Mishra was also harassed and and tortured by the search team and was immediately referred to J J Hospital, Mumbai where doctors certified evidence of physical assault on his face and eyes. Later he also retracted his statement narrating all the ill treatment and tortures during the course of search. The retraction affidavits were filed alongwith complaint to Home Ministry on 19.04.2014. The assessments were framed by the AO for various assessment years making the additions on account of on-money, bogus purchases, undisclosed income and jewellery and debenture subscriptions. The facts in details are discussed in the following paras. In this background we take up the yearwise cross appeals as follows.

ITA No.3490/M/2018 AY 2011-12 (Revenue’s appeal) ITA No.3129/M/2018 AY 2011-12 (Assessee’s appeal)

5 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers (b) Whether on the facts and circumstances of the case the Id.ClT(A) failed to appreciate that payments made out of the on-money so received / were in cash and thus not allowable u/s 37, 40A(3) or 40(a)(ia) of the Act? (c) Whether on the facts and circumstances of the case the Id.CIT(A) failed to appreciate that the expenses could not be allowed as the assessee had not provided the details of payments so made in cash?

2.(a) Whether on the facts and circumstances of the case the ld. CIT(A) erred in restricting the addition made on account of Bogus Purchases to Rs.1,13,18,852/- as against Rs 9,05,50,817/- thereby giving a relief of Rs.7,93,31,965/-?. (b) Whether on the facts and circumstances of the case the Id. CIT(A) failed to appreciate that the entire amount of bogus purchases was required to be brought to tax? (c) Whether on the facts and circumstances of the case the Id. CIT(A) failed to appreciate that the entire decision of the Hon'ble Apex Court in the case of M/s N.K Proteins was squarely applicable in the present case?" Assessee’s grounds of appeal: “1. On the facts and circumstances of the case as well as in law, the Learned CIT(A) has erred in upholding the addition upto 20% of the alleged total on-money received by the appellant, without considering the facts and circumstances of the case. 2. On the facts and circumstances of the case as well as in law, the Learned CIT(A) as well as Learned Assessing Officer has erred in making an addition based on statement of Pravin Mishra without appreciating the fact that he himself has denied during cross examination before Assessing Officer about authenticity of data in pen drive. 3. On the facts and circumstance of the case as well as in law, the Learned OT(A) has erred in upholding an addition upto 12.5% of the alleged bogus purchases of Rs.9,05,50,817/- to the total income of the assessee, without considering the facts and circumstances of the case 4. On the facts and circumstances of the case as well as in law, the Learned CIT(A) has erred in confirming the action of the Learned Assessing Officer in making an addition on account of bogus purchases by relying on the statement supplier without appreciating the facts & circumstances. 5. On the facts and circumstance of the case as well as in law, the Learned CIT(A) has erred in confirming the action of the Learned Assessing Officer in making an addition of Rs.2,77,33,000/- on account of alleged Unaccounted cash income, without considering the facts and circumstances of the case. 6. On the facts and circumstances of the case as well as in law, the Learned CIT(A) has erred in confirming the action of the Learned Assessing Officer in making an addition of Rs.2240.88/- Lakhs u/s.69 of the Income Tax Act, 1961 as alleged unaccounted expenses, without considering the facts and circumstances of the case. 7. The appellant craves leave to add, amend, alter or delete the said ground of appeal.”

6 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers deletion and confirmation of on-money addition. The revenue has challenged the part deletion of addition by CIT(A) on account of on-money to the tune of 80% towards expenses out of on- money whereas the assessee has challenged the sustaining of addition partly to the extent of 20% by CIT(A) by rejecting the contentions arguments of the assessee on pen drive. Since the issue of on-money involved in all the assessment years is common and therefore the facts for all the years are being narrated and discussed hereunder.

7 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers assessee qua receipt of on-money and similarly accountant Shri Ajay Jhanwar also admitted about receipt of unaccounted cash component upon sale of flats which was handled by Mr. Praveen Mishra and Mr. Nand Kishore Saraf. The brokers Mr Vinay Badani and Mr Vikram Singhvi who were also covered under search also testified the receipt of on- money in the sale of flats and gave their own estimate of on-money. The five flat purchasers who were covered in the search also admitted that they have paid on-money but the amounts stated by them as having been paid in cash differed significantly from what has been found recorded in the pen drive seized. Mr. Kishore Gandhi is the cash handler assisted by his employee Dilip Pandya. He stated that the on-money received in cash was passed on to him by Nand Kishore Saraf. He used to get a commission of Rs.8000/ per Rs. I crore for providing this service. He further stated that he is the custodian of the cash. Mr. Kailash Agarwal, when confronted, admitted the receipt of on-money partially, which was retracted subsequently. However, the details of on-money received from purchasers of flats as contained in the pen drive were not matching fully with the actual purchasers of flats. The purchasers of flats were neither investigated nor examined by the tax authorities to verify the veracity of the data contained in the pen drive. Finally, on the basis of the pen drive data, the Assessing Officer issued show cause notices to the assessee which were replied in detail by the assessee denying the pen drive having belonged to it or containing data qua its project. The AO rejected the contentions of the assessee and computed the on-money on the sale of flats till the date of search. He noted that 72 flats were sold up to the

8 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers date of search at the total agreement value of Rs. 239, 01,52,750/-. Out of 72 flats, total on-money received by the assessee for 48 flats as per the findings of the search was Rs. 133,65,62,000/-. This amount was apportioned and allocated over four assessment years 2011-12, 2012-13, 2013-14 and 2014-15 ( page no. 65 and 66 of the assessment order for AY 2011-12) and the additions made in the respective assessment years are as under: A.Y. Amount (Rs.) 2011-12 74,51,57,000 2012-13 15,21,90,000 2013-14 16,60,00,000 2014-15 27, 32,15,000 Total 1,33,65,62,000 7. The Assessing Officer observed and noted that data/record of on-money received on sale of flats after the date of search was not available. He however observed that from the seized records, the on-money rate ranged between 40 to 45 % of the agreement value and presumed that similar on-money would have been received on sale of 28 flats also after the search up to 31.03.2015. So he estimated and extrapolated the on-money receipt at the rate of 45% of the agreement value. In this manner he estimated the on-money for AY 2015-16 at Rs. 59,05,80,000/-. Thus the total on-money for AYs 2011-12 to 2015-16 became Rs. 1,33,65,62,000/- + Rs. 59,05,80,000/-= 1,92,71,42,000/-. The final assessment year wise break up of the additions on account of on-money as made by the AO are as under: A.Y. Amount(Rs.)

9 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers 2011-12 74,51,57,000 2012-13 15,21,90,000 2013-14 16,60,00,000 2014-15 27, 32,15,000 2015-16 59,05,80,000 Total 1,92,71,42,000 8. Aggrieved by the order of ld AO, the assessee preferred appeal before the ld CIT(A). In the appellate order, the CIT(A) rejected the contentions of the assessee that the pen drive seized from the residence of Mr. Praveen Mishra was a false and fabricated document and no reliance could be placed on the same. Ld. CIT(A) noted that the data of the pen drive was maintained day wise entry wise showing various entries of debits and credits. Ld. CIT(A) further noted that various evidences were found during the course of search proceedings which showed that Mr. Praveen Mishra was involved in the cash handling process. She also noted that the data maintained by Mr. Praveen Mishra tallied with the data found from the premises of Mr. Nand Kishore Saraf and rejected the retraction of Shri Praveen Mishra. Ld. CIT(A) affirmed the observations of the AO and held that the contents of the pen drive seized from the premises of Shri Praveen Mishra were belonging to the appellant. While the CIT(A) deleted the addition of Rs. 59.05 crores made in the assessment year 2015-16 accepting the contentions and arguments of the assessee that there was no evidence of charging of on-money after the search and that that the flats sold after the search were sold at a higher rate, however, ld. CIT(A) made an enhancement of the on- money for the assessment year 2013-14. Ld. CIT(A) noted that out of 72

10 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers flats sold before the search, on- money figure was available only in respect 48 flats. The on-money figure for the balance 24 flats sold/booked before the search was not available and accordingly she was of the view that there was no reason why these similarly situated flats would be sold at a much cheaper rate without receiving on-money. Out of these 24 flats, the booking of one flat was cancelled, so ld. CIT(A) extrapolated on-money figures for these 23 flats by estimating on-money amount at the rate of 45% of the booking price. In this manner, the on- money was estimated at Rs. 39,45,49,448/- for these 23 flats and accordingly enhancement was made by ld CIT(A) to the income of the assessee. Thus, the revised on-money figure for AY 2013- 14 was calculated at Rs. 56,05,49,448/-(Rs.16,60,00,000/-+Rs. 39,45,49,448/-). Resultantly, the total on-money figures for the four asst. years 2011-12, 2012-13, 2013-14 ant 2014-15 were calculated as follows: A.Y. Amount(Rs.) 2011-12 74,51,57,000 2012-13 15,21,90,000 2013-14 56,05,49,448 2014-15 27, 32,15,000 Total 1,73,11,11,448 9. However, the CIT(A) partly accepted the assessee’s contentions that the entire on-money can not be added to the income of the assessee as certainly expenses were also incurred out of that and therefore ,it is only the estimated income, after making allowance for the said expenses incurred, is to be added to the income of the assessee by rejecting the AO conclusion that entire on-money is to be added to the income of the

11 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers assessee. The CIT(A) allowed a deduction of 80% of the total on- money on account of hidden expenses and directed the AO to add only 20% of the on-money as the profit. The CIT(A), while allowing deduction on account of the hidden expenses, followed the decision of the Hon’ble ITAT, Mumbai, dated 22.03.2016 in the case of Prime Developers v. DCIT ITA No. 175/M/2010 and others where the coordinate bench had computed the profit @ 17.08%. Thus , the ld CIT(A) after taking into account the account the submissions and arguments of the assessee partly allowed the appeal of the assessee on the one money by holding and observing as under:- “6.3 The submissions of the Learned Counsel have been carefully considered. At the outset, the appellant has contended that the pendrive seized from the premises of Mr. Pravin Mishra was a false and fabricated document and no reliance could be placed on the same. However, it is seen that the data of the pendrive was maintained day wise entry wise showing various entries of debits and credits. Further, various evidences were found during the course of search proceedings which showed that Mr. Pravin Mishra was involved in the cash handling process. The data maintained by Mr. Pravin Mishra tallied with the data found from the premises of Mr. Nand Kishore Saraf. The assessing officer has recorded a statement of Mr. Praveen Mishra during the assessment proceedings wherein he stated that he does not remember the details of the cash entries in the pendrive. He further stated that the data was from his imagination and there Is no basis for the same. However, in view of the fact that the data contained intricate details of inflow and outflow of cash and the same also tallied with the data maintained by Mr. Nand Kishore Saraf and further corroborated by the admissions of some of the fiat purchasers as mentioned above, no credence can be given to the retraction of Mr. Praveen Mishra. The preponderance of probability of these documents belonging to the company and not to Shri Pravin Mishra, were very high. The learned counsel for the appellant further contended that an admission given during a search cannot be read as an act of Parliament and that the admission has subsequently been retracted. Further, no cash or other unaccounted asset was seized from the residence of Shri Praveen Mishra. The learned counsei further submitted that without prejudice to anything else, the entire on-money should not be taxed as there will be a lot of hidden expenditure qua unaccounted sales and reasonable expenditure is required to be given set off against the unaccounted turnover of the assessee. The learned counsel requested that the addition on account of on-money be restricted to 5% of the total receipts considering the nature of the seized documents and the nature of business of the assessee. However, in view of the discussion above, I am inclined to agree with the AOs contention that the contents of the pendrive seized from premises of Shri Pravin Mishra were belonging to the appellant.

12 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers 6.4 However, I find merit in the without prejudice submission of the appellant that the gross on-money cannot be added to its income and a profit percentage needs to be estimated on the same. As mentioned by the AO in his Assessment Order, the seized pendrive of Shri Pravin Mishra contained details of various payments amounting to Rs. 178.43 Crores against the receipts of Rs. 181.64 Crores. Further, the appellant is engaged in the business of development of construction of buildings and has received on-money on account of sale of flats in his project "One Avighna Park", The Jurisdictional Mumbai ITAT in the case of Prime Developers Vs. DCIT has held that the entire sales proceeds of the assessee should not be added to its income and a reasonable estimate of expenses needs to be made considering the nature of business of the assessee. Thereafter, the Hon'ble ITAT has made an addition of 17.08% of gross cm-money receipts and the same has also been upheld by Hon'ble Bombay HC in ITA No. 2452 of 2013, In this case also, the pen drives found with Mr. Praveen Mishra has a record of not only the inflow of cash but also the outflow. Therefore, considering the facts of the case and the various judicial decisions in this regard, 1 find it reasonable to estimate profit @20% on the total on-money received by the appellant, These grounds of appeal are PARTLY ALLOWED for statistical purposes.”

13 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers books of accounts maintained and therefore the on-money was calculated in a correct manner. The ld DR submitted that a critical analysis would prove that the original statement given by Mr. Praveen Mishra was a natural, coherent, untutored statement and represented the correct state of affairs of the assessee company vis a vis the subsequent retraction statement of Mr. Praveen Mishra. The ld DR argued that the contents of the statement of Shri Praveen Mishra were confirmed by all the persons searched and therefore the original statement is true and thus the retracted statement is false and after thought to thwart the revenue endeavour to bring the on-money to tax. The ld DR submitted that Mr Mishra, when confronted with hand written slips (20 pages) seized during the search and also pen drives seized from his residence at Bhayander, have conceded that that these slips are in his handwriting and contained the details of cash receipts received against sale of each flat. He admitted that the pen drive also contained the details of unaccounted cash received against sale of flats in the project of the assessee at One Avighna Park next to Curry Road station, Curry Road, Mumbai and the above details are maintained for each flat sold since the commencement of the project. He also stated that the details also included details of various cash payments made by the assessee company. Mr Chotre submitted that the project had 65 floors with two wings, each floor consists of three flats with 3bhk,4bhk and 5 bhk. He stated that the cash received was from the flats already sold. Mr Chotre submitted that the details maintained by him were related to the unaccounted cash considerations received against these flats as maintained by him in the pen drive. The ld special

14 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers counsel submitted that even the other persons who were aware of the on-money/ unaccounted cash considerations were Mr. Ajay Jhawar and Mr. Nand Kishore Saraf. Mr Chotre referred to the modus operandi followed in receiving cash at various stages and maintaining the same in the pen drive (8GB)which was found and seized during the course of the search from Mr. Praveen Misra’s residence on 04.04.2014. The Sr counsel of the revenue submitted that Mr Mishra even admitted that contents in loose sheets seized during search as Annexure-1 also contained the details of cash receipts from sales of flats from the buyers of the flats and some payments made by the assessee company. The ld DR referred to a number of questions and answers put to and replied by Mr Mishra during the course of statement u/s 132(4) of the Act. The ld. Sr Counsel for the revenue submitted that no person can give these authoritative and exact details unless he is intricately involved in the whole process. He stated that it is absurd that in the retractions filed by him, he stated the contents of the pen drive and loose sheets out of sheer imagination.

15 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers Mr. Nand Kishore Saraf, Finance Controller and Mr. Ajay Jhanwar Finance Controller who sit at the project site and some times from Mr. Kailash Agarawal and Mr.Nishant Agarwal also. Some of the cash expenses were personal family expenses of the Agarwal family regarding marriage of Mr. Nishant and Ms Yashika. Some payments were also made to Mr. Umesh Agarwal ( relative of Mrs Hans Agarwal) for purchase of jewellery in cash. Majority of the cash receipts were from the sale of flats, however few entries in these sheets also included other cash receipts like scrap sales receipts etc. The ld DR submitted that those persons whose name did not appear in the flat buyers list might had given cash for other purposes. However, all cash receipts were not accounted for in the books of account of the assessee. The DR also referred to the following questions and answers during the hearing to strengthen his arguments on the issue of on- money: (b) Q. 13 & 14A cash sheet between 16.12.2013 and 19.12.2013 was missing and hence a discrepancy of Rs.50,000/- could not be reconciled. For this reason, he has not updated the pen drive thereafter. (c)Q.15This is an important revelation about the coded message sent to the mobile numbers mentioned there instructing the person to hand over cash of Rs. 100 lac, Rs.99lac and 101 lacs to the bearer of the currency note having the same number as mentioned in the SMS. (d)Q.16. He mentions that Mr. Manoj Desai, whose name is mentioned in the Excel sheet, is a customer who has booked a flat in the project. He mentions the date wise cash received

16 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers from him. The list contains 21 entries of heavy cash receipts from him. (e)Q.17He mentions that Mr. Parag Vora is a steel supplier who has delivered cash at site. The cash used to be brought by Mr. Kailash Agarawal and other employees and he was asked to make entry in the name of Parag Vora. He mentioned 35 entries of cash receipts between 15.12.2010 and 20,07.2011 (f)Q.18He mentions eight cash amounts received from Shrikant Agarwal as mentioned in the excel sheet. He knew that Shrikant Agarwal is a nephew of Shri Kailash Agarwal but he was not sure whether he had booked a flat or not. (g)Q.19He mentions 35 cash amounts received from Mr. Vinay Badani broker on behalf of customers entered in the pen drive.. As far as he knew. Mr. Badani had also booked a flat himself. (h)Q.20He mentions 19 items of cash amounts received from a customer Nemichand Jain, which is recorded in the pen drive. (i) Q.21He explains entries in another excel sheet. He says that this excel sheet contains the petty cash expenses of the assessee and the family of the Agrawals which is maintained by him. It is password protected with the password ‘ritu’.

17 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers appeared to be prima facie marriage expense are given in the written submissions. The ld submitted that the object of highlighting these facts are two- fold. It proved that Mr. Praveen Mishra recorded the intricate details of the expenses, so his statement is corroborated by the documents. Second, the on- money is used for personal purposes and no deduction of expenditure could be allowed. The above data would show that how these extremely intricate personal details could have been entered by Mr. Praveen Mishra out of imaginations. The ld DR contended that the statements are not bald statements and have been recorded with reference to the seized documents during search operation. Referring to A-4, the DR submitted that the excel sheet of the pen drive and the loose sheets, showed that heavy cash amounts have been given to Mrs. Agarwal for purchase of jewellery in cash which is corroborated by the fact that jewellery worth Rs.3,31,59,996/- was seized from the residence of Mr. Kiailash Aggrawal which was subsequently released against bank guarantee. The payments made to Mrs Agarwal/Umesh Aggrawal as found from the pen drive and the loose sheets are given also given in the written submissions filed. Referring to A-5 in respect of other outgoing, the ld DR submitted that the seized pen drive and loose papers also recorded heavy payments to other persons apart from the marriage expenses and payments made to Mrs. Aggrawal. A look at them would show that they are almost in round figure written in coded language of lakhs and thousands and are not in the nature of business expenditure. Hence, it could reasonably and safely inferred that there are no evidences that the any part of the unaccounted cash receipts have been spent for business

18 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers purposes. Knowing the character of the outgoings recorded in the pen drive, it is evident that there is no business expenditure and there is no scope for allowing any deduction from the on- money receipts.

19 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers even Mr. Kailash Agarwal has not denied the genuineness of the entries in the pen drive and the seized loose sheets. The ld DR submitted that the retraction letters dated 29.04.2015 were filed on 1st May 2015 by Kailash Agarwal and Praveen Mishra. The retraction was in the form of an affidavit dated 25.04.2014 .Mr. Praveen Mishra and Mr. Kailash Agarwal had retracted the original statements given under section 132(4) on the ground that those statements were taken by force and coercion. The ld. DR submitted that the elaborate analysis in the foregoing paragraphs would show that this contention deserved to be rejected. The reasons for rejection of this claim have been discussed at great length in the order of the Assessing Officer as well as the CIT(A). The ld DR submitted that the retraction can not be accepted for the following reason: (a) Panchanama does not record any coercion. Recording was made in presence of witnesses. (b) Statements were taken with reference to seized documents. As the analysis of the statement of Mr. Praveen Mishra, would show, he had given explanation about the various entries authoritatively proving that he was the central person in the whole activity of unaccounted cash transactions. He could explain all transactions without any difficulty or assistance. Sometimes he gave information about persons which was not there in the documents. He also explained the codes to decipher the documents. (c) Belated retraction- Retraction has been filed more than a year after the search. Retraction letter dated 29.04.2015 were filed on 1st May 2015 by Kailash Agarwal and Praveen Mishra. The retraction was in the form of an affidavit dated

20 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers 25.04.2014 The alleged date of affidavit is not relevant; the date of filing the affidavit is relevant. (d) The retraction was not filed before investigation wing which recorded the statement. It was filed before the Assessing Officer. (e) Statement in the nature of declaration is binding u/s 115 of the Indian Evidence Act, 1972, which reads as under: “115 Estoppel- When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief , neither he nor his representative, shall be allowed , in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.” (f) Statement u/s 132(4) is an admissible evidence. Admission is a very important evidence. (g) Person by making admission stops the Department from making further investigation. Had they not made that admission, the Department could have made investigation about the entries by calling concerned persons. (h) Data maintained by Praveen Mishra was date wise with entries on debit and credit side- with specific names of persons or heads of expenses with quantum of debit and credit running from 2009 onwards till 2013- 20 pages 1000 numbers. They contain the details of marriage expenses and heavy regular payments to Mrs. Agarwal. They contain the details of the on-money receipts from the flat buyer who are genuine flat buyers of the assessee. The intricate details appear to represent the true state of affairs of the company, more so when in the first round of statements they were accepted as genuine.

21 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers (i) Such credible evidence containing thousand data for years cannot be out of imagination as now claimed. (j) Cash balance of Praveen Mishra is matching with the cash balance recorded by Nand Kishore Saraf. On a paper seized from the residence of Nand Kishore Saraf, the cash balance as on 28.03.2014 has been mentioned as Rs.13, 80,800/ (vide seized document in the assessee’s appeal folder for AY 2012-13 at page 93.) . The same cash balance is recorded in the seized loose paper from the residence of Praveen Mishra at page 11. (k) The statement of Mr. Praveen Mishra was also corroborated by the statement of other persons as discussed above apart from being corroborated by the seized documents. Particularly the persons on the other end of the transaction, the buyers had at the time of search admitted that they have paid on-money. The cash handler Kishore Gandhi had admitted that he had handled cash on behalf of the appellant.

(l) In the search assessment proceedings of Shri Kishore Gandhi, he has once again accepted the fact of handling of cash of M/s Nish Developers Pvt. Ltd. The said assessee filed his return incorporating this fact u/s 153A of the Act. He has also given a statement under section 131 of the Act during the search assessment proceedings on 16.10.2016 (vide p 18)where he has accepted to have handled cash being generated by the assessee company (m) Mr.Kailash Agarwal was very much aware of the data obtained from Praveen Mishra. He has not denied that

22 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers whatever has been seized from Praveen Mishra had no relation with the company. (n) Mr. Kailash Agarwal had agreed that they are unrecorded transactions. He had not made any denial of receiving on-money from the project. (o) Thus, the claim that all those contemporaneous coherent statements given on the spot and supported by the seized documents were totally wrong is not acceptable by any stretch of imagination. (p) Mr. Kailash Agarwal and Mr. Praveen Agarwal have colluded to file retraction to obstruct the process of determining the correct tax liability of the assessee which is an offence. One cannot give a statement in a proceeding conducted by officers discharging their official functions and then after one year come and say that what was told was totally wrong. The excuse of force and exhaustion etc. is an after thought and a desperate attempt to extricate themselves from the situation. (q) Mr. Praveen Mishra is a trusted employee of the assessee for the last 15 years. He is sitting in the residence of the CEO. He has recorded the details of the daily cash dealings first in the loose sheets and then in the pen drive. He has entered the minute details of the marriage expenses. He has recorded the details of heavy amounts regularly paid to Mrs. Agarwal. He was recording them regularly under the very nose of the assessee. These printouts and loose sheets were shown to the assessee. He did not react and say that they were entries wholly unconnected with his business. On the contrary he tried to

23 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers give explanation about them. The statements were recorded in a natural course where they had given coherent answers. Then after one year they make a volte-face and say that all our proceedings were junk. This is a case of total non-cooperation and they should be held accountable. (r) It is claimed that Mr. Praveen Mishra had recorded these entries out of his imagination in order to take revenge for non-payment of bonus in Dewali 2012. But it is not understandable what type of revenge he was contemplating. He had not passed on this information to any government agency. There is no evidence that he was blackmailing the assessee. He could not anticipate a search at his house. So this is an absurd explanation by Praveen Mishra apparently at the behest of the assessee. (s) It is wrong to say that presumption of section 292C is not applicable. How is it possible that that the data of the expenses of the Promoter’s family, cash received from the flat owners of the project, cash outflow to the cash handlers and others would not belong to the company but to an employee from whose premises they were seized? It is absurd to think that Shri Praveen Mishra was doing all these entries under the nose of Kailash Agarwal without his or family members’ knowledge. This is against the test of human probability. The language of the section 292C does not use the word ‘possession’ alone. It uses the words “found in the possession or control of any person”. Here Praveen Mishra was a trusted employee of the assessee. He entered the data in the pen drive pertaining to the assessee in his

24 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers capacity of an employee under the instruction of Mr. Kailash Agarwal. Hence, these documents were under the control of the assessee. Even otherwise, it can be held that the assessee was in constructive possession of the seized documents. It appears that the confidential and unaccounted transaction details were not kept at the premises of the company nor at the Director’s/Promoter’s residence apparently as a matter of strategy against a potential event of being caught in future. The home of the employee became an extension of his office . Section 292C is clearly applicable (t) Reliance on the Board’s Circular No.286 dated 10.03.2003 is misplaced. The said circular is applicable when the addition is based merely on the basis of statements not supported by any evidence. In the case of the assessee, the evidence of “on-money” is clearly visible from the documents seized. The Board Circular and case laws pertain to those cases where no corroborative evidence are available. (u)The arguments of the assessee that the documents found from the residence of Nand Kishore Saraf were not confronted to him has no merits. He was very much asked about the detail of notings found from the residence of Nand Kishor Saraf. The seized documents of the assessee company and Nand Kishore Saraf have been received by the common authorized representative on 11.4 2014. (v) It is not correct to say that no unaccounted cash or documents were found. Unaccounted jewellery worth Rs. 3,31,59,996/- was seized which was released against bank

25 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers guarantee. There was a suspicious investment from an off- shore party worth about Rs.286.1 crores. Additions have been made on both accounts in the assessment order.

26 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers determining the rate. This principle laid down by the tribunal has not been followed by the CIT(A). The ld CIT(A) has not examined the facts of this case which are totally different from the facts of Prime Developers. Apart from that she erroneously applied the judgment in the case of Prime Developers.

27 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers allowability of the deductions. On the contrary, the assessee has disowned the entire data in the seized pen drive and the loose sheets. The CIT(A) has upheld the stand of the Revenue that the entries are genuine. Then, without any submissions from the assessee on this issue, under what provision of law the CIT(A) allowed such a massive deduction especially when the assessee is disowning the whole data. In the absence of any submissions from the assessee, the CIT(A) herself should have examined the entries in the seized pen drive and loosed sheets and come to a conclusion. On the other hand, the CIT(A) has given such a massive relief on the basis of an order of the Hon’ble ITAT where the facts are entirely different. It is a settled position of law that judgments are to be seen in the context of the facts of the respective case and the judgments cannot be construed as words of statute. Thus the decision making process of the CIT(A) is faulty and contained numerous infirmities. The order of the CIT(A) is perverse and contrary to law. On this account alone the decision of the CIT(A) should be quashed.

28 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers this judgment also, no deduction is allowable from the on- money. The error committed by the CIT(A) is that she mechanically allowed deductions on account of hidden expenses following the judgment cited before her. It is hazardous to apply a judgment indiscriminately across the board without examining the facts of each case. Accordingly Ld DR finally prayed before the bench to set aside the decision of the ld CIT(A) on this issue and restore the entire addition made by the AO in respect of on-money.

29 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers of the Maharashtra state and local police against the atrocities committed on the assessee and his staff by the search team and filed compliant against the search team personnel. Even the staff of the assessee was severely beaten up by the search team as borne out from the report filed in the police station and medical report from JJ Hospital which is Govt. owned Hospital. The ld. AR submitted that later on Mr Praveen Mishra retracted his statement through an affidavit dated 17/04/2014 giving various reasons for retractions such as the statement was taken under pressure, duress and torture, which was testified with medical report from J J Hospital wherein injury/proofs of physical assault were found. Based on the same, a letter was written to Department of Home affairs about abuse of powers by the public servants (search team) in discharging their duties. The ld AR submitted that all these facts were submitted before the AO, however, he did not comment anything on these vital facts and heavily relied upon the said pen drive data and the retracted statements to make the additions under different heads based on data in the said pen drive. The assessee denied relevance of said data and submitted that since the said pen drive was not seized from its premises hence presumption of ownership as per section 292C of the Act is not applicable. The ld AR stated that during the cross examination of the said employee, he (Mr Praveen Mishra) submitted that the confession given during search proceedings that the data belonged to appellant company was given due to coercion , pressure ,assault and torture by the search team. He further submitted that these data have nothing to do with the appellant company and that the same were prepared out of his own imagination to take

30 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers revenge from my employer who withheld my one month salary bonus. However AO did not consider his statement given during assessment proceeding and made additions under various heads based on the data in the pen drive and statement recorded u/s 132(4) of the Act. The ld AR submitted that not a single incriminating document was found from any of the premises of the assessee or site office where sales office of the project is situated. The ld counsel of the assessee strongly submitted that data found recorded in the said pen drive could not be relied upon while making assessment in the hands of assessee and additions if any to be made have be based on incriminating material found during the course of search in the premises of the assessee. The ld AR strongly opposed the arguments as presented before the bench by the Mr Chotre Sr. standing counsel of the revenue for the following reasons:- • Statement of Praveen Mishra is not voluntary, which is clear from the medical report evidencing that he was subject to physical assault during search proceeding. This fact was brought to the notice of AO as discussed on page 36 of the order. • Praveen Mishra retracted his statement immediately and filed copy of the same with AO at first available opportunity and maintained the said retraction even during the course of cross examination by the AO during assessment proceeding. The same affidavit was filed with Home Ministry, Govt. of Maharashtra on 19/04/2014. • Provision of section 292C related to presumption of ownership and onus on assessee is not applicable as the said pen drive was found at third party premises. In this regard reliance placed on judgment of Hon'ble Apex Court in the case of CIT V/s SunitaDhadhha SLP(Civil) No.94392/2018 wherein the Hon'ble Apex Court dismissed the SLP filed by the revenue holding that no interference is called for in the order of Hon'ble High Court of Rajasthan in ITA No.197/2012 and others dated 31.07.2017 wherein Hon'ble High Court confirmed the finding of the Co-ordinate Bench, Jaipur vide ITA No. 852/JP/2011 order dated 30.12.2sayli011 which held that if the Ld. AO wants to rely upon the documents found with third parties the presumption u/s 292C of the Act against the assessee is not available. • During the course of search, survey was conducted on various customers who purchased flats in appellant project and none of the customer agreed for the figure mentioned in the Pen drive data of Praveen Mishra. Details of

31 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers such customer finding given on page 44 of assessment order, summary of which is as under:- Name of Buyer Flat No. Alleged on-money Alleged on-money as per pen drive accepted by these buyer

Pallavi Desai A-3403 4,35,25,000 1,04,00,000 Manoj Desai A-3404 4,35,25,000 1,04,00,000 Jigar C Doshi B-2401 6,00,000 6,00,000 Samridhi Dealer A-2101 5,46,00,000 1,14,00,000 P Ltd.

• AO mentioned on page 13 of his order that records of Praveen Mishra Pen drive matches with records maintained by other employee Mr N K Saraf. He stated that as per N K Saraf records balance with Praveen Mishra as on 28/03/2014 was Rs. 13,80,800/- and the said balance matches with Pen Drive record of Praveen Mishra. Ld AO relied upon the following page, seized from Residence of Saraf:-

32 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers From perusal of the above page it is clear that all hand written figures were in the handwriting of Mr. N K Saraf except the typed figure of Rs. 13,80,800/- which is claimed to be balance with Praveen Mishra as on 28.03.2014. All other hand written data related to the period from 01.03.2014 to 04.03.2014. Now how a paper printed on 28.03.2014 can have data of earlier period. The Ld AO failed to point out which page of pen drive is matching with this page and whether other figure mentioned on this page were also co-related with the pen drive data of Praveen Mishra. There is no clarity on this aspect. The last entry in the pen drive was on 16th December, 2013, whereas search took place on 4.4.2014. When the said employee was stated to be updating the pen drive on 15 days periodicity why were transactions not recorded for the period from 17 Dec 2013 to 4 April 2014 in the said pen drive. As per section 65B(2) of the Indian Evidence Act, the electronic media relied upon should be regularly fed information in regular course of business. However, this pen drive was neither updated nor contained regular business transactions. Even no business transaction was found on the computer system found at the residence of Shri Praveen Mishra. Therefore, the pen drive is not a valid evidence at all.

33 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers

Date Of Total Deal value as Flat Area(3 Rate per Sq Booking(2 per Praveen Mishra No.(1) ) Ft(5 = 4/3) ) Pen Drive(4) A/1903 02-09-10 1425 6,56,00,000 46,035 A/1904 02-09-10 1425 6,56,00,000 46,035 A/2003 03-09-10 1425 3,37,50,000 23,684 A/2503 04-09-10 1425 3,41,79,000 23,985 A/2504 04-09-10 1425 3,41,79,000 23,985 A/2603 07-09-10 1425 2,95,00,000 20,702 A/2604 07-09-10 1425 2,95,00,000 20,702 A/2203 09-09-10 1425 3,36,25,775 23,597 A/2204 09-09-10 1425 3,36,25,775 23,597 A/2303 09-09-10 1425 6,12,13,275 42,957 A/2304 09-09-10 1425 6,12,13,275 42,957 A/2403 09-09-10 1425 6,12,13,275 42,957 A/2404 09-09-10 1425 6,12,13,275 42,957 A/1603 16-09-10 1425 5,86,25,775 41,141 A/1604 16-09-10 1425 5,86,25,775 41,141 A/2103 16-09-10 1425 5,86,25,775 41,141 A/2104 16-09-10 1425 5,86,25,775 41,141 A/2302 16-09-10 1350 6,99,50,000 51,815 A/2402 16-09-10 1350 7,09,50,000 52,556 A/1902 18-09-10 1350 6,69,00,000 49,556 A/2301 29-09-10 1725 5,22,45,000 30,287

From the above chart it may be noted that the variation of rate is ranging from 20,702 to 52556 during the same period, which is not possible in any circumstances and clearly proved that the data recorded is not correct and fallacious. One can understand the variation of rate between 10-15% but in this case such variation is more than 200% which is impossible. This itself suggest that the amount mentioned in the said pen drive are not actual data of the project of the appellant. The ld AR

34 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers submitted that the AO wrongly relied upon Q. No. 60 of statement of N K Saraf to justify that N K Saraf has agreed that contentions of Praveen Mishra are correct. (Page 14 of A O order.) The Ld AO has tried to twist the facts by placing reliance of a particular question without bringing on record the fact that in what context Mr Saraf has stated that Pravin Mishra is right. The ld counsel of the assessee referred to the relevant part of the statement of Mr Saraf wherein he stated the above fact which is extracted below:

35 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers Therefore, it is very clear that AO is trying to reconcile statement of Mr. Praveen Mishra with other employees of appellant whereas the facts proved otherwise. The Ld AR submitted that during cross examination it was noticed by AO that the Pen drive also contained personal CV of Praveen Mishra which proved that he was maintaining personal data in the said pen drive which further strengthened his stand that he wanted to change his job as he was a disgruntled employee. Otherwise why an employee working for more than 20 years will prepare his CV unless he intended to change his job. Further in his statement when these pages were confronted to him, he explained few entries in reply to Question Number 11 of his statement dated 04.04.2014 recorded u/s 132(4) of the Act, wherein he stated that the amount received on sale of flat in one Avighna project, however, name of the parties from whom the said alleged on- money was received were not appearing in the list of parties as mentioned by the AO on page 31-34 during the relevant period. Ld AR listed various instances of such statement in his written submissions.

36 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers framing assessment in the case of appellant. In defence of his arguments and averments, the ld AR placed reliance on the following decisions:-

• ITO Vs W D Estate P Ltd ( 45 ITD 473)(Mum) • CIT Vs. RadicoKhaitan Ltd ( 396 ITR 644)(Delhi) • ACIT Vs. DrRanjanPai (109 Taxmann.com 90)(Banglore)

He further submitted that during cross examination before AO during assessment proceeding, the employee Mr Pravin Mishra confessed that he has prepared all these data on his own imagination. Therefore, considering the facts of the case and judicial pronouncement in this regard, it is prayed that the said pen drive data cannot be considered while making addition in the hands of appellant more so when the AO has not bothered to examine the purchasers of flats and carry out further verification from them.

37 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers addition on account of on-money otherwise also not sustainable for the following facts:- • Both Shri Kailash Agarwal and Praveen Mishra Retracted their statement U/s 132(4) of the Act immediately and also filed complain to The Secretary, Home Dept.(SPL), Govt. of Maharashtra, Mumbai alongwith retraction affidavit, police complain and medical reports, copy of which is enclosed on page 15- 36 of paper book. This fact was also brought to the notice of AO, which is noted on last para of page 36 of assessment order. However AO not taken any cognizance of these reports and merely rejected the retraction that it was filed only during assessment stage. • If the amount of on-money mentioned in pen drive added to value recorded in books of account, rate per sq. ft. is quite abnormal, which is not possible. The rates worked out have no co relation with the similar size flat sold during the same period. Working of the same is given in Annexure A to this submission. • Assessee submitted report from M/s Dadbawala & Associates, Govt. Approved Valuer wherein they have compared sale value recorded in books with the sale instances in the vicinity. As per this report value recorded by appellant in books of account is more than the prevailing rate in the area. AO mentioned this fact in his order on page 46 and he did not doubt correctness of this report. Copy of such report is enclosed in Paper book on page 39-66.

38 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers • None of the buyer, who were also covered U/s 133A at the time of search on appellant by the wing, has agreed for the value as reported in the pen drive of Mr Praveen Mishra. • AO himself accepted on page 63 last para that figure of on-money varies from 30-70% of the agreement value hence it is presumed that the records maintained by him is not complete records. This is contrary to the assumption of AO that Praveen Mishra is only person who is maintaining entire record on on- money received from sale of flat. • Ld AO also relied upon statement of third parties to make addition. The appellant specifically asked for cross examination of these parties as mentioned on second para on page 44 of the order, which was not provided. • Other than jewellery of Rs. 3.31 crore no undisclosed assets or cash found during the course of search.

39 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers Ld. CIT(A) discussed this issue on page 13-18 of her order for A Y 2013-14. Total amount estimated and extrapolated was Rs.39.46 crores and addition sustained to 20% of the gross amount after allowing deduction for the hidden expenses. Ld AR re-iterated that since no incriminating documents found from the premises of the appellant hence no addition was sustainable. Further the sale value declared by the appellant is higher than the prevailing rate in the area as supported from the report of registered valuer. Further even going by the plea of department when Praveen Mishra was maintaining entire record of on- money and details of these 23 flats did not find any entry in these records then where is the question of such on-money on these flats. Further he also relied upon the decision of Co- coordinating bench in case of M/s Runwal Homes Pvt Ltd in ITA No.5621/Mum/2017 dated 20-12-2017, wherein under similar set of facts, after considering relevant materials, the co-ordinate bench held that on-money receipt should be worked out on the basis of incriminating documents found at premises of the assessee and not on the basis of estimation. The appellant also rely on the decision of Jurisdictional High Court in case of CIT Vs Dr M K E Memon( 248 ITR 310)(Bombay) and CIT Vs. C J Shah & Co. ( 246 ITR 671)(Bombay). In both these cases Hon’ble High Court has held that income cannot be made on estimation without any documents. Therefore, considering the facts of the case as well as judicial decisions on the issue it is requested to kindly delete addition made merely on the basis of third party evidences which are purely conjectures and estimates. Ld Special Counsel relied upon the decision of Supreme Court in case of Comm. Of Sales Tax Vs. H M Esufali H

40 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers M Abdulali (90 ITR 271)(SC) on the issue of extrapolation. In this regard Ld AR submitted that in the above case documentary evidences found from the premises of assessee wherein unrecorded sales data of few days was recorded based on which AO made best judgement assessment by estimating sales for the remaining period. In this case there was no such record found from the premises of the appellant. Even alleged on-money money records found from Praveen Mishra also suggest no 0n- money on many such sales. Therefore, the ratio of this decision not applicable on facts of the case. The ld AR finally prayed that the addition on account of on-money may kindly be deleted by setting the findings of the ld CIT(A).

41 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers from 2009 onwards. At the time of search Mr. Pravin Mishra admitted that these cash transactions were not entered in the books of accounts. The ground No.1 raised by the Revenue is against the order of Ld. CIT(A) challenging the deletion of addition to the tune of Rs.59,69,25,600/- while assessee has challenged in ground No.1 & 2 of its appeal part sustaining the addition to the extent of Rs.14,90,31,400/- by Ld. CIT(A). We have perused the statement of Mr. Pravin Mishra recorded u/s 132(4) of the Act and observe that he admitted during the course of search that information qua the on-money were given to him by Mr. Nand Kishore Saraf, financial controller of the assessee. We also note that the said Mr. Pravin Mishra has retracted from his statement through affidavit dated 17.04.2014 alleging that the search team has taken statement under huge pressure and coercion. The assessee has alleged physical torture of Mr Pravin Mishra as he was severally beaten up and threatened by the search team in order to elicit the confessions from him in the statement recorded u/s 132(4) of the Act, which is evident from his medical reports of J.J Hospital a Govt owned hospital. We also note that the assessee has filed a complaint in the police station to this effect and a medical certificate from Govt owned Hospital testifying the charge of physical torture of Mr Pravin Mishra. The Revenue has primarily relied on the statement recorded of Mr. Pravin Mishra, Mr. Nand Kishore Saraf and two brokers who were facilitating the sale of flats namely Mr. Vijay Badani and Mr. Vikram Sanghvi. Besides five flat purchasers were also covered under the search action who admitted to have paid the on-money. Thus the Revenue has primarily harped on the statement of these individuals to make

42 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers the addition on account of on-money. However, there is no symmetry in all these evidences as relied upon by the Revenue. During the course of search at the premises of 5 purchasers of flats, no documentary evidences of cash paid for purchase of property/flat were found or at least not brought to our notice. Further, in their statements also they have not agreed for the on-money as mentioned in the pen drive recovered from Mr. Praveen Mishra. Even the two brokers, covered under search/survey, stated that on-money ratio in the deals done through them ranged between 30 to 35% of the agreement value, whereas as per pen drive of Mr. Praveen Mishra such ratio was 55% of the agreement value. However, AO has not accepted any of these evidences and applied ratio of 45% of agreement value to work out on-money in AY. 2015-16. The assessee has challenged the veracity and authenticity of the pen drive on the ground that statement of Mr. Pravin Mishra was not voluntary as he was tortured and beaten up during the course of search and subjected to physical assaults in front of his family also. As noted above, in search proceedings were also conducted on certain purchasers of flats who denied the data in the pen drive though admitted to have paid some on-money whereas the details as contained in the pen drive mention some significantly different figures of on-money. The stand of the assessee through-out the proceedings was that both the employees of the assessee were subjected to physical torture and their statements were taken under coercion and therefore the same can not be relied upon for making the additions on account of on-money. We note that Mr. Pravin Mishra retracted his statement by filing affidavit before the AO dated 17.04.2014 in the very first hearing

43 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers when he was again cross examined by the AO. We have also perused carefully the print outs of the pen drive during the course of hearing and found that only a few names mentioned in the pen drive are matching with the flat purchasers of the assessee who purchased or agreed to purchase the flats from the assessee and other names were of different persons which AO has treated amount received from unknown persons. Besides some personal details of Mr. Pravin Mishra were also recorded in the said drive. Even during the course of cross examination of Mr. Pravin Mishra before the AO, he denied that this pen drive contained information qua the assessee. The counsel of the assessee challenged the reliance on pen drive by the Revenue which was recovered from the third party and not from either the business premises of the assessee or residential premises of the promoters. The counsel of the Revenue relied on the provisions of section 292C of the Act that pen drive recovered from the possession of the employee has to be treated as belonging to the assessee whereas the assessee contended that onus is not on the assessee but on the revenue as the pen drive was found at third party premises and not from the assessee’s premises which has been denied right from the beginning. In the appellate order, the Ld. CIT(A) has treated the pen drive as belonging to the assessee by accepting the findings of the AO that pen drive belonged to the assessee and held that it did contain information qua the on-money receipts by the assessee on sale of flats. However, the Ld. CIT(A) partly allowed the appeal on the ground that the entire on-money can not be added to the income of the assessee and only a percentage needs to be applied to assess the income /profit embedded in the on-money

44 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers and directed the AO to assess the same by applying 20% on the total on-money received by the assessee. We also note that Ld. D.R. heavily relied upon the statement of Mr. Praveen Mishra and other employees, however, he could not point out or draw our attention to any incriminating document found from the premises of the assessee, except pen drive that too was recovered from residence of Mr. Mishra at Bhayebnder, Mumbai. Further, the ld DR could not deny documentary evidences filed by the assessee evidencing physical assault to its employees and police complaints and complaint to Home Ministry. When he was put asked as to why further verification from purchasers of flats were not made, he submitted that such exercise will be futile as no one will accept the payment of on-money unless there is a direct evidence for the same. Even the report of M/s. Dadabawala and associates certifying the ongoing market rates of flats in the vicinity was not controverted and huge variations in the rates as per on-money data found recorded in the pen drive remained unexplained.

45 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers party, the presumption under section 292C of the Act against the assessee is not available. Therefore, we find merit in the argument of the ld AR that the onus is on the Revenue to prove the ownership of the pen drive which has been denied by the person from whom it was recovered by labeling serious allegations that he was subjected to physical and mental torture and assault in front of his family. Similarly, we find that the data in the pen drive was not matching with the record maintained by other employee which has been stated on page No.13 of the assessment order. We note that as per Mr. Nand Kishore Saraf, the balance with Mr. Pravin Mishra on 28.03.2014 was Rs.13,18,800/- and the said balance matches with the pen drive record of Mr. Pravin Mishra but we note that the data in the pen drive was only up to December 2013 and thus the contention of the AO that it matches with Mr. Nand Kishore Saraf record of 28.03.2014 is devoid of truth. Further in the documents of Nand Kishore Saraf, hand written data are entered on 01.03.2014 to 04.03.2014 whereas the typed data which shows balance with Praveen as on 28.03. The hand written data must be on pre-printed paper only. So at the best this date could be 28.03.2013 but on that date there is no such balance as per pen drive of Praveen Mishra. We have also perused the reply to question No.76 by Mr. Nand Kishore Saraf who clearly stated in his reply that Mr. Pravin Mishra has lied in his statement. Under these facts and circumstances, we are of the considered opinion that the data contained in the pen drive can not be relied upon to make addition qua the on-money especially when the revenue has not bothered to even examine the purchasers of flats in order to verify the data which was

46 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers claimed to be contained in the said drive or make further verification from these purchasers to corroborate the details of on-money in the pen drive. The purchasers of flats covered under search have also denied the amounts as mentioned against their name in the pen drive, the details whereof are extracted below: Name of Buyer Flat Alleged on-money On-money accepted No. as per pen drive by these buyer Pallavi Desai A- 4,35,25,000 1,04,00,000 3403 Manoj Desai A- 4,35,25,000 1,04,00,000 3404 Jigar C Doshi B- 6,00,000 6,00,000 2401 Samridhi Dealer A- 5,46,00,000 1,14,00,000 P Ltd. 2101

In our opinion the data contained in the pen drive has been denied by the assessee right from the beginning but the AO has failed to make further enquiries to dig out the truth. It can reasonably be a starting point for making investigation further but can not be used as end proof of on-money without bringing corroborating substantive evidences on record. The appellant has also filed a report of registered valuer to support its declared sales of which the AO has not taken any cognizance. Under these circumstances, the AO could have referred the matter to District Valuer Officer (DVO) to ascertain the actual rates prevailing in the area. However, AO simply relied upon the pen drive and not carried out any further investigation to make such a huge addition. As far as statement of promoter and Employees are concerned, the appellant has been stating right from the beginning that the said statements are not voluntary and were taken under undue pressure, torture and physical assault and has filed police complaint and also medical report

47 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers from JJ Hospital, Mumbai confirming the torture of the employee Mr. Praveen Mishra. The statements by the promoter and Mr. Praveen Mishra have been retracted by filing affidavit leveling serious allegation on the search team. In our opinion , the on-money has to be brought to tax on the basis of specific incriminating evidences found during the course of search or during the assessment proceedings which the assessee could not explain. As has been discussed supra that 5 customers/purchasers were also covered under search and their statements recorded but the on-money accepted by them was not matching with the data which was collected by the Revenue. So we are not in agreement with the conclusion of the ld CIT(A) that the pen drive belonged to the assessee and data related to the assessee especially when the serious allegation of beating up and physical torture were there during search which were further testified by the medical report and complaints to police and the home department of the State Govt. However we do agree with the conclusion of Ld. CIT(A) that the entire on-money can not be brought to tax and it is the only profit element which has to be estimated keeping in view of the facts and circumstances of the assessee. But amount of on-money has to be ascertained first on which the rate is to be applied which certainly can not be the amounts mentioned in the pen drive. We have also perused the contents of the pen drive and find that there are unrealistic amounts with so much glaring variations which can not be lent any credence to more so when the assessee and the person from who possession the pen drive was recovered has denied the same and revenue has not brought any substantive corroborative evidences/materials on record to

48 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers contradict the assessee and Mr Pravin Mishra. Moreover the pen drive was recovered not from the assessee or directors but from the employee from his residence. So the onus is more on the revenue to prove the contents of the pen drive and other loose sheets by bringing on record corroborating evidences. We note that the revenue has not bothered even to make further enquiry from the flat buyers to ascertain the amount of on-money. Therefore in view of these facts and circumstances , we hold that the pen drive can not be relied to make the on-money addition in the hands of the assessee. In arriving at the above conclusion we get support from the following decisions namely ITD vs. WD Estate Pvt. Ltd., CIT vs. Radio Ketan Ltd. and ACIT vs. Dr. Ranjan Payal (supra) the operative para whereof are extracted below: • ITO Vs W D Estate P Ltd ( 45 ITD 473)(Mum) Decision: We are not for a moment suggesting that there was no prevalence of on- money payments in the real estate business. But additions on account of on-money payments, to our mind, would not be justified even if we take judicial note of what is described by the revenue authorities as notorious practice in the absence of tangible evidence. The only evidence available in this case is a statement prepared and signed by Shri R.T. Sharma. There is evidence to show that Shri R.T. Sharma is a disgruntled employee. We have to bear in mind that there were proceedings against the assessee under the provisions of section 132 of the Act and no incriminating documents suggesting receipt of 'on-money' payments were seized in the course of the search. That Shri R.T. Sharma was a disgruntled employee is evident from the affidavit sworn before the metropolitan Magistrate by one of the partners and this affidavit was sworn much before the department stepped-in and raided the premises of the firm. In such circumstances, the affidavit cannot be treated as a self-serving document. The tape-recorded statements were played in the court. Most of it was incoherent. Besides, there was no indication that 'on- money' was received by the partners of the assessee-firm except a suggestion by Shri R.T. Sharma while he was talking to Shri Kripalani and that suggestion was in the form of a demand for a share of booty collected by the partners of the assessee-firm. The booking rates, disclosed by the assessee also suggested if due allowance is made to the time-lag and the like that they are comparable to the rates in Tulsiani Chambers and Maker Towers, two of the buildings situated in vicinity. Therefore, the allegation that comparable cases do suggest receipt of on- money, has to be rejected. • CIT Vs. RadicoKhaitan Ltd ( 396 ITR 644)(Delhi)

49 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers Section 132 no doubt mandates a presumption in respect of search and seizure operations; yet textually the presumption relates to material documents and books of account seized from the assessee's premises and the presumption that can be made from it, not from materials seized and statement recorded, of third parties. Only if the materials that are sought to be relied upon emanate from the premises of the party subject to assessment, that the presumption can be drawn. This is evident from sections 132(4) and (4A) of the Act. It is evident that in the absence of these foundational facts, the revenue is under an obligation to establish through materials relatable to the assessee, what it alleged against it. What were the best pointers for further investigation were the discovery of material and evidence, which the revenue claim pointed to the assessee's failure to disclose full facts and income, should have resulted in further investigation and unearthing of material in the form of seized documents from the assessee's premises. Unfortunately the linkage between the material seized from the assessee's premises and those from UPDA's premises as well as the statement of 'M' was not established through any objective material. It is now settled law that block assessments are concerned with fresh material and fresh documents, which emerge in the course of search and seizure proceedings; the revenue has no authority to delve into material that was already before it and the regular assessments were made having regard to the deposition, the inability of the revenue to establish as it were, that the assessee's expenditure claim was bogus, or it had under reported income and that it resorted to over invoicing and diversion of funds into the funds allegedly maintained by the UPDA, was not established. The findings of the Commission therefore cannot be faulted as contrary to law. • ACIT Vs. DrRanjanPai (109 Taxmann.com 90)(Banglore) “It is clear that the basis of making addition of Rs. 4.50 Crores was the document seized from the premises of 'A'. First of all, it is necessary to examine whether said document which was found in possession of 'A' can form basis for making addition in the hands of the present assessee. For the purposes of making any document to be incriminating material, it is necessary that the document should be found from the lawful custody of a person who is lawfully and naturally responsible for possessing it. In the present case, as is clear from the answer given by 'A' Kagoo, it is clear that the document was neither written by 'A' Kagoo nor she was aware of the content, nor she was aware who had written the document and it was also not the case of the revenue that the assessee had taken and kept said document in the custody of 'A' Kagoo. On the other hand, the sole case of the revenue is this that the said document was allegedly kept by 'D'. To prove the live link by the revenue, the statement of 'D' should have been recorded categorically mentioning that this document belonged to the assessee. In fact, the assessee under statement under section 131 had denied of the execution of this document and also the content. The document is required to be proved in accordance with principle of Evidence Act as applicable in Income Tax proceedings, either by primary evidence or secondary evidence. In the present case, none has been done by the revenue to prove seizure of document and contents thereof, so as to enable revenue to build up its case for the purpose of treating the document to be incriminating document. The document relied upon by the revenue has not been proved by the revenue that it belongs to the assessee nor it was proved that it contain incriminating material on the basis of which addition can be made.”

50 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers

51 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers Rs.20,000 per sq Ft to Rs.30,000 per sq. ft. during this period. Such variation pattern suggest that there may be some involvement of on-money in these transactions. This fact was also admitted by five buyers in their statement recorded U/s 132(4) of the Act during the course of search. Therefore to meet ends of justice, it would be reasonable to determine on-money by comparing average rate of sale for each year with the transaction to determine on-money for the period upto the date of search for all 71 flats sold during this period, as out of 72 flats one of the flat was cancelled. In other words as per data available on records, average rate for A Y 2011-12 works out to Rs.22,214/- so any flats sold during this year lower than this rate, the difference should be considered as on-money received on account of sale of the said flat. In our considered this aspect needs to examined at the level of AO to ascertain the amount of on-money. Accordingly, we set aside the order of ld CIT(A) on this issue and direct the AO to examine working of average sale rate on the basis of sales data on yearly basis and determine on-money for A Y 2011-12 to A Y 2014-15 on the same lines. Needless to mention that the AO will give sufficient opportunity of hearing to the assessee.

52 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers considering the various decisions as cited before us, it would be reasonable to apply a profit rate of 25% on such on-money determined as per direction given in para 28 above. The, the AO is directed accordingly to apply 25% on the amount of on- money calculated as per our direction in para above and add the same to the income of the assessee.

53 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers financial Year 2012-13 and a statement of the main person Mr. Parag Vora was recorded. He admitted to have provided accommodation entries to the assessee. The name of Mr. Parag Vora also figured in the pen drive of Mr. Praveen Mishra and cash of Rs. 7.88 crores was shown to have been received from him on different dates. Shri Praveen Mishra also in his statement recorded under section 132(4) of the Act stated that cash was received from Mr. Parag Vora. Considering these evidences, the Assessing Officer considered all the purchases made from Krishna Structure Pvt. Ltd as bogus and made disallowance under section 37 of the Act as under: AY 2011-12 Rs. 9,05,50,817/- AY 2012-13 Rs. 15,05,57,176/- Total Rs. 24,11,07,993/-

54 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers appellant from M/s. Krishna Structure Steels Pvt. Ltd. amounted to Rs. 24.11 Crores in AY 11-12 and 12-13, out of which purchases amounting to Rs, 9.06 Crores was made in current year. Therefore, once it has been established that purchases made by appellant from Parag Vohra were in the nature of bogus purchases, then the natural conclusion would be that all such purchases were bogus in nature. Thus, I find no fault in the action of the AO in treating purchases amounting to Rs. 24.11 Crores made from Shri Parag Vohra as bogus purchases. 8.4 However, the appellant has also taken a without prejudice plea that the whole of such bogus purchases cannot be considered as it's income. The appellant has submitted complete quantitative details to the AO showing actual consumption of the same. In view of the same, it has been contended that what may be added in such cases is only the GP percentage and not the entire bogus purchases. For this ratio, the appellant has placed reliance on various judicial decisions, I find merit in this contention of the appellant. It is true that the appellant had submitted complete quantitative details to the AO and the AO had accepted the same. It is not possible for the appellant to make sales without consumption of raw materials. Therefore, what follows is that the appellant must have purchased goods from some other suppliers and received bills from the above mentioned parties, which is commonly known as grey market and if this is so, the appellant has benefitted by margin of grey markets, In view of this and after considering the decision of Hon'ble Gujarat High Court in the case of Simit P Sheth ITA No. 553 of 2012 order dated 16.01.2013, I find it reasonable to restrict the addition on account of bogus purchases to 12.5% of the total bogus purchases. These grounds of appeal are PARTLY ALLOWED for statistical purposes.”

55 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers cash is received back from Mr. Parag Vora. The ld submitted that considering these evidences, the Assessing Officer treated all the purchases made from Krishna Structure Pvt. Ltd as bogus and made disallowance of the same. Ld DR submitted that the restriction of addition to 12.50% is totally wrong in view of the fact that the name of Mr. Parag Vora also figured in the pen drive of Mr. Praveen Mishra and cash of Rs. 7.88 crores was shown to have been received from him. The ld DR submitted that the pertinent question the CIT(A) has failed to address is that if Parag was a supplier, he would have received the payment, why was he has paid the cash to the assessee. The obvious conclusion is that he would have received the cheque and paid the cash after withdrawing cash as happens in hawala transactions. It is well known that this is one way of generating unaccounted money. The ld DR argued that the observations of the CIT(A) that the assessee would be purchasing steel in grey market is highly improbable. This is usually done by traders. The assessee is not a trader in steel. This is a pure case of inflation of purchases. The ld DR also submitted that the order of the CIT(A) suffered from several infirmities and inconsistencies. Even applying the rate of 12.5 %, the profit on purchase of Rs.24,11,07,993 would be around Rs.3.10 crores which is much less than the amount of nearly Rs.7.88 crores found to have been received as per the data in the pen drive. This occurred because the CIT(A) without examining the facts of this case rushed to apply inapplicable case laws. Once she rejected the plea challenging genuineness of the entries in the pen drive and held that the pen drive data was genuine, in effect, holding that the documents furnished are self serving

56 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers documents, she should have added the whole amount instead of restricting to 12.5%. of the purchases. The main plank of the assessee was that the pen drive was fabricated and can not be relied. If that claim is demolished then the assessee has no case. Once the accounts are unreliable, the addition made by the AO for whole of the purchases of Rs. 24.11 Cr. made from the party by extrapolation on the basis the figure of Rs.7.88 crores is justified by applying the judgment of the Hon’ble Supreme Court in the case of Commissioner of Sales tax v. H. M. Esuf Ali 90 ITR 271(SC) (supra). The ld DR also relied on the decision of Hon’ble Gujrat High Court N. K . Industries Ltd v. DCIT – Hon’ble Gujrat High Court - Order dt.20.06.2016, in which the Hon’ble High Court has held that the whole amount should be disallowed (SLP dismissed). The ld. DR submitted that the order of the CIT(A) may be reversed and the order of the Assessing Officer may be upheld.

57 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers Krishna Structure was received by them as confirmed by them. The ld AR submitted that the assessee provided, bills, delivery challans, octroi receipts, bank statements, confirmation from party and architect certificate about consumption of material as noted on page 72 of Assessment order. None of these documents provided to AO was doubted by him, therefore merely on the basis of entry of cash receipts in pen drive of Praveen Mishra, the genuineness of which itself is doubtful, addition can’t be made in the hands of assessee. The ld AR therefore prayed to delete entire additions.

58 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers Krishna Structure Steel Pvt. Ltd. We also note that the assessee was not provided the statement of Mr. Parag Vora nor any cross examination was allowed to the assessee despite specific request made by the assessee to this effect thereby causing the violation of natural justice. In our opinion, the third party evidences relied by the Revenue to make addition can not be sustained in view of the fact that assessee has not been confronted nor allowed cross examination of Mr Parag Vora. The case of the assessee is supported by the decision of Apex Court in the case of Kishan Chand Seela Ram 213 ITR 625 and M/s. Andaman Timber Industries vs. CCE (CA No.4228 of 2006). We note that in this case the assessee has submitted the proof of receipt of material such as bills, vouchers, delivery challans, payment of octroi and local taxes, delivery to the contractor M/s. Simplex Infra Ltd. and confirmation by M/s. Simplex Infra Ltd. and confirmation from suppliers, architect certificate about consumption of material. The AO could not point out any defect in these evidences and merely relied on the statement of Mr. Parag Vora which was not confronted to the assessee nor any cross examination was allowed despite specific request. Therefore, in view of the ratio laid down by the Apex Court in the case of Andaman Timber Industries vs. CCE (supra) and Kishan Chand Seel Ram (supra) we are not in a position to sustain the order of Ld. CIT(A). Further reliance on the decision of Hon’ble Supreme Court in case of N K Protein (Supra) is also not relevant in this case as in the case of N K Protein during the course of search blank cheque book and letter heads of supplier were found from the custody of the assessee. In this case there are no such facts. Before us neither department nor assessee

59 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers brought any facts relating to assessment of M/s Krishna Structure Steel Pvt Ltd. However taking note of recent decision of Hon’ble Bombay High Court in case of PCIT Vs. Rishabhdev Technocable Ltd. ( 424 ITR 338)(Bom) affirming the order of the tribunal wherein the tribunal directed 5% of doubtful purchases to be disallowed. We therefore respectfully following the decision of Hon’ble Jurisdictional High Court , set aside the decision of the ld CIT(A) on this issue and direct the AO to restrict the disallowance @ 5% of the total purchases from M/s Krishna Structural Steel Pvt. Ltd. Consequently ground No.2 in Revenue’s appeal is dismissed and ground No.3 & 4 of the assessee’s appeal are partly allowed.

60 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers 39. We have perused the order of Ld. CIT(A) and heard the rival contentions of both the parties on this issue. The issue challenged in ground No.5 is against the confirmation of addition of Rs.2,77,33,000/- on account of unaccounted cash income and issue in ground No.6 is against the confirmation of addition of Rs.2240.88 lakhs which were added by the AO under section 69 on account of unexplained expenses. We have already decided the issue of pen drive that the same can not be treated as a piece of evidence against the assessee as discussed in detail hereinabove. Therefore, these additions will not survive as these are based upon the data in the pen drive and AO has not brought any substantive material during the course of assessment on record to corroborate his findings. Accordingly the AO is directed to delete the additions as challenged by the assessee in ground no 5 and 6. Therefore, both the grounds of appeal of the assessee i.e. ground no.5 & 6 are allowed.

ITA No.3131/M/2018 A.Y. 2010-11 (Assessee’s appeal) 41. The only issue raised by the assessee is against the confirmation of addition of Rs.7,23,36,000/- by Ld. CIT(A) as made by the AO on account of unaccounted income made on the basis of pen drive and statement of Mr. Pravin Mishra.

61 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers view of our findings on the issue of pen drive , the additions as made by the AO and confirmed by the ld CIT(A) will not survive. Even otherwise during the course of hearing the AR of the appellant in his without prejudice arguments submitted that data of pen drive start from Sept., 2010 which relates to A.Y 2011-12 onwards, hence no addition is otherwise sustainable in A.Y. 2010-11. We have perused the data and noted that the impugned data in pen drive start from Sept., 2010, hence addition is not sustainable in this year. Accordingly the appeal of the assessee is allowed.

ITA No.3130/M/2018 A.Y. 2012-13 (Assessee’s appeal) ITA No.3523/M/2018 A.Y. 2012-13 (Revenue’s appeal)

62 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers the ground of the Revenue is dismissed and ground No.3 & 4 of assessee’s appeal are partly allowed.

63 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers The assessee was asked to offer explanation about the source of receipt of Rs.286.10 crores in the books of the assessee. The assessee replied the show cause notice vide written submissions dated 14.12.2016 by submitting that the Cyprus is no longer a notified jurisdictional area (with retrospective effect) because of a new DTAA signed between India and Cyprus as notified by CBDT circular No.15/2017 dated 21.04.2017. It was also stated that provisions of transfer pricing are not applicable. The assessee also furnished a copy of the Debenture Subscription Agreement dated 01.11.2011 entered between assessee and Apple Cross Venture Ltd., certificate of foreign inward remittance issued by BNP Paribas and Reserve Bank of India’s acknowledgement letter confirming filing of PC GPR form, certificate of incorporation of M/s Apple Cross venture Ltd.etc. In respect of non- payment of interest, it was submitted that as per agreement dated 01.11.2011, interest at the rate of 14% per annum was payable on the said debenture subject to availability of cash flow. However, vide agreement dated 05.02.2014 the terms and conditions as to payment of interest were revised and it was agreed that the said interest will accrue and payable only at the time of conversion of securities. Thereafter a second show cause notice dated 14.12.2016 was issued to the assessee pointing out that there is no clarity of the source of money coming from the off-shore entity and thus the source of money remains unexplained, no interest has been paid till now and the purported agreement dated 05.02.2014 has never been furnished to the Department, the genuineness of the transaction remains doubtful when no interest has been paid from F.Y. 2011 till date and the same debentures were never converted into the

64 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers shares of the company and even interest accrual has not been accounted for nor there is any TDS compliance on the interest payable by the company, so as to demonstrate that at least accounting of interest payable was done by the company as per the provisions of law. The AO also investigated the issue of raising of money through convertible debenture through appropriate authority and the information received from competent authority are as under:- “(a) The introducers of the off shore company Apple Cross Ventures Ltd in the bank account were M/s Amicorp (Cyprus ) Ltd. (b)The ultimate beneficial owner of the company Apple Cross Ventures Ltd is Enterprise Emerging Markets Fund B.V. It is the holding company (c) The addresses of Enterprise Emerging Markets Fund B. V. and M/s Amicorp Curacao is the same viz.Pareraweg, 45 P.O. Box 4914, Curacao, Netherlands Antilles (d) The administrators of these funds are the same namely Amicus Funds Services N.V. (e)Even the email addresses of M/s Apple Cross Ventures Ltd i.e. 1 Avonos Street , Maria House, 5th Floor, P.O. Box 23293, Nikosia-1680, Cyprus and Amicus (Cyprus) Ltd. are the same Cyprus @ amicorp.com. (f) The person who has introduced and signed the account opening form on behalf of Amicus (Cyprus) Ltd as well as Apple Cross Ventures Ltd is the same Ms Elia Nicolaou Managing Director of Amicorp ( Cyprus) Ltd. She has also signed on behalf of Mr.Briantserve Ltd, who is one of the witness of account opening form. (g) The address of AmicorpCuraco BV is Parerweg 45, P.O. Box 4914 Curacao having email address of curaco@ amicorp.com is same as of Enterprise Emerging Market Curacao.”

65 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers source of Fund. The actual source of fund remains unexplained. The assessee was asked to explain the actual source of fund. The assessee also filed detailed reply which is incorporated by the AO in para 15.5 page no 92 to 104 in the assessment order. The assessee submitted that it was not liable to deduct tax at source because it had not made any payment of interest to Apple Cross Venture Ltd. It was also submitted that as per the debenture subscription agreement, the debenture would be convertible to equity shares after three years and before five years of issue of debentures. The debentures were issued in the years 2012 to 2014. Since there is still time the debentures have not been converted into shares. It was also submitted that Amicorp Fund Service NV through their companies world over assist in setting up funds in different locations. Enterprise Emerging Market Fund NY has used its services in this case. It has created Apple Cross Venture Ltd. as a SPV which is its wholly owned subsidiary. It has tried to explain the reason for common address. The assessee also submitted that the amendment to section 68 containing the requirement of enquiring into the source of source is not applicable to a foreign company and Enterprise Emerging Market Fund B.V. has used the services of Amicorp Fund Services in Curacao which has established Apple Cross Venture Ltd. in Cyprus which has subscribed for the debentures in the assessee company. The balance sheet of Enterprise Emerging Market Fund B.V. would show that it has a net worth of Rs.1.67 billion dollars as on 31.12.2012 whereas through the SPV, Apple Cross Venture Ltd, it has made an investment of 55million dollars. Enterprise Emerging Market Fund is a1992 million dollar fund.

66 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers

67 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers appellate order from page No.32 to 38 by observing and holding as under: “13.2 The submissions of the Ld. Counsel have been carefully considered. While it is a fact that Cyprus has been notified as a Notified Jurisdictionai Area with effect from 01.11.2013, it is also a fact that the CBDT through press release dated 01.07.2016 and 18.11.2016 did notify Cyprus as an NJA with retrospective effect from 01.11.2013. A fresh double tax avoidance agreement was entered into with Cyprus by India. Therefore, the contention of the AO that Cyprus is notified as an NJA is no longer valid. The other contention of the AO is that the assessee failed to discharge it's onus of proving the identity and genuineness of the transaction and that the actual source of fund remained unexplained. However, it is seen from the records that Enterprise Emering Market Fund BV (EEMF) is an emerging market focused investment company which has used services of Amicorp Fund Services in Curacao to establish EEMF which in turn has setup an SPV by the name of Apple Cross Ventures Limited in Cyprus which has subscribed debentures in the assessee company. The balance sheet of EEMF has a total net worth of $1.6 billion and the investment made through the SPV Apple Cross Ventures Ltd is $55 million. Thus, the creditworthiness of Apple Cross Ventures and the source of fund has been explained by the assessee. Certificate of foreign inward remittance issued by BNP Paribas and Reserve Bank of India's acknowledgement letter confirming filing of FCGPR Form, certificate of incorporation of M/s. Apple Cross Ventures Ltd., etc. have been filed by the assessee both during the assessment proceedings as well as the appellate proceedings. These are evidences to prove the identity of the creditor, source of fund, the creditworthiness of the creditor and the genuineness of the transaction. Another objection of the Ld. AO is that the debenture agreement speaks about the payment of interest @14% but the assessee has not paid any interest on the debentures issued. It has been clarified by the Ld. Counsel that interest @14% would be paid as per the agreement, at the time of conversion of debentures into shares. According to the agreement, the debentures could be converted into shares anytime after the lock-in period and before the completion of five years from the date of issue of debentures. Accordingly, the same were converted into shares at the end of five year period and interest @ 14% has also been paid after deducting TDS. The assessee has met all the objections of the Assessing Officer by providing documents and other evidences but the assessing officer, for reasons best known to him has ignored the submission and the documents furnished by the assessee and made addition. Section 68 of the Income Tax Act has been amended w.e.f 2013-14 which reads as under: "Provided that where the assessee is a company (not being a company in which the public are substantially interested), and the sum so credited consists of share application-money, share capital, share premium or any such amount by whatever name called, any explanation offered by such assessee-company shall be deemed to be not satisfactory, unless— (a) the person, being a resident in whose name such credit is recorded in the books of such company also offers an explanation about the nature and source of such sum so credited; And (b) such explanation in the opinion of the Assessing Officer aforesaid has been found to be satisfactory:

68 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers Further that nothing contained in the first proviso shall apply if the person, in whose name the sum referred to therein is recorded, is a venture capital fund or a venture capital company as referred to in clause (23FB) of section 10." The learned counsel submitted that Apple Cross Ventures Limited being non resident, the assessee need not furnish evidence of source of source. Nevertheless, the assessee had explained the source of the funds with Apple Cross Ventures Ltd. which is form EEMF. 13.3 To sum up, the identity and creditworthiness of the creditor alongwith the genuineness of the transaction have been proved by the assessee. Further, the other objections of the Ld. AO that no interest has been paid by the assessee on debentures has also been met as the assessee has paid the interest after making TDS at the time of conversion of debentures into shares. Therefore, the addition made by the Ld. AO of Rs.1,46,52,17,900/- cannot be upheld. The same is deleted. This ground of appeal is ALLOWED.”

69 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers namely AYs. 2012-13, 2013-14, 2014-15 wherein nowhere the assessee has stated that it had paid the interest. Hence, it is not clear on what basis the CIT(A) made the above observations that the assessee has paid the interest and deducted tax at source. In any case, if the assessee has furnished any evidence whether oral or documentary on the basis of which the CIT(A) made the above observations then these additional evidences could not have been admitted by the CIT(A) without following the provisions of Rule 46A. On this count alone the order of the CIT(A) may be set aside. The ld DR submitted that the amount of interest involved was very high as the interest at 14% per annum on Rs.286.1 crores for over 5 years was to be paid. The ld DR submitted that thus the factual details such as the date of conversion of debentures into equity shares, the computation of interest, the mode of payment of interest and the source of payment of such heavy interest and the manner in which the payment of interest has been accounted for in the books have not been examined by the AO. The ld DR argued that the CIT(A) has failed to appreciate that this a very crucial issue raised by the Assessing Officer. If such an important event has occurred where the assessee actually paid the interest, then this is the most important point which should have been critically examined by the CIT(A). On the other hand the CIT(A) has disposed of this issue by giving one line finding. The ld DR contended that the order of the CIT(A) is perverse on this count and may be reversed. The ld DR stated that no prudent investor would accept non-payment of interest for so long. Referring to the terms and conditions of the debenture subscription agreement, the ld DR submitted that even the terms and

70 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers condition were also peculiar. The agreement dated 01.11.2011 provided that interest would be paid on the said debentures subject to availability of cash flow which appeared to be unusual on the part of the investor. How such a nasty and contingent conditions came to be accepted by the investors. To further surprise, the terms have been further liberalized by another agreement executed more than two years after allowing further deferment of payment of interest on debentures till the conversion of debenture into shares. The only conclusion is that the money actually belonged to the assessee which was generated through on-money and other unaccounted receipts which were coming back to its accounts through the foreign hawala route. Since the money actually did not belong to the investor, so it did not bother about getting interest. Since, the money belonged to the assessee, it was not worried about paying interest. The ld Dr relied heavily on the decisions of Hon’ble apex court in the case of Commissioner of Income-tax , West Bengal II vs. Durga Prasad More [1971] 82 ITR 540 (SC) and Sumati Dayal v. Commissioner of Income-tax [1995] 214 ITR 801(SC) in which the Hon’ble Court has laid down the principle that apparent is always real and the evidence has to be judged applying the test of human probabilities. The ld DR also placed reliance on the decision of Principal Commissioner of Income-tax v. NRA Iron and Steel Pvt. Ltd. [2019] 412 ITR 161 (SC) in defence of his arguments and prayed that the order of the CIT(A) may be reversed and the additions made by the Assessing Officer u/s 68 for all the three assessment years, 2012-13, 2013-14 and 2014-15 may be restored.

71 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers

72 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers The ld AR submitted that Enterprise Emerging Market Fund is a 1992 million dollar fund. The ld AR therefore submitted ld CIT(A) has considered all these issues and allowed relief to the assessee. The ld AR relied heavily on the decisions of Hon’ble Bombay High Court in case of PCIT Vs. Aditya Birla Telecom Ltd (105 Taxmann.com 206)(Bom) and Nupower Renewables P Ltd Vs ACIT ( 104 Taxmann.com 307)(Bom) in defence of his arguments. The ld AR argued that in the case of assessee also the Ld AO has called for report of appropriate authority U/s 90/90A of the Act, reference of which is given on page 91 of the assessment order. The ld AR contended that there was no adverse finding in the said report, except the fact that signatory in bank are common with another fund, which was duly explained by the assessee during assessment proceedings and discussed by the AO in the assessment order on page 100 of AO order for A Y 2012-13. The ld AR submitted that so far as issue of notified jurisdiction U/s 94A of the Act is concerned, the ld AR relied on the CBDT circular No. 15 dated 21/04/2017, wherein the CBDT has deleted name of Cyprus from notified jurisdiction with effect from 1.11.2013 . Accordingly, the said observation of Ld AO is no longer valid. Regarding, terms and conditions of the debenture subscription agreement, the Ld AR stated that there is valid agreement between the two parties which was entered into purely out of commercial considerations and business expediency. The ld AR submitted that the department can not question decision of businessman made out of commercial consideration and business expediencies. The ld AR submitted that the AO did not counter documents submitted by the assessee during assessment proceeding. Regarding

73 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers submissions of additional evidences as claimed by the Ld. D.R., Ld. A.R. stated that assessee has not filed any such evidence before Ld. CIT(A). Ld. A.R. further stated that during the course of hearing Ld. CIT(A) enquired about the fact that what happened after the completion of five year period qua the convertible debentures converted into shares. The ld AR submitted that in reply to the same assessee submitted that in 2017 these debentures were converted into shares and any response submitted in reply to the query raised by the Ld. CIT(A) could not be treated as additional evidence. The ld AR strongly defended the order of appellate authority and submitted that the same has been passed after taking into all the factual and legal aspects of the issue and therefore may kindly be affirmed on this issue.

74 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers No.91 of the assessment order and there is no adverse comment in the said report except that the signatory in the bank account are common with another fund which was also explained by the assessee during the course of assessment. Therefore, all possible investigations and enquiries were done by the AO and he did not find anything contrary to the submissions and the facts as placed on record of the assessee. The assessee has furnished all the details as desired by the AO and also given explanation to the queries raised during the course of assessment. As far as satisfaction of the requirement of proviso to section 68 of the Act is concerned, the same is not applicable on non-residents. Hence there is no merits in contention of the DR that the appellant failed to discharge its onus to explain source of funds received by the assessee under debenture subscription agreement. The requisite permissions from RBI and other banking agencies were also filed before the AO as well as CIT(A). We have perused the decisions of Hon’ble Bombay High as cited by the AR and find the same to be squarely applicable on the facts of the present case as discussed hereunder:- • In the case of PCIT Vs Aditya Birla Telecom Ltd(supra), the Hon’ble High Court has held as under: “The full inquiry of source of funds and other relevant factors in relation to the investment in question was carried out. The Assessing Officer himself carried out a detailed inquiry. His initial suspicion or in other words starting point of inquiry on the basis that apparently the investor was investing huge amount which may prima facie appear to be without adequate possible returns, may be fully justified. When all the relevant factors are properly explained, including the fact that the payment of dividend was not the sole attraction for the investor and that the investor could expect a fair return on the investment, of course, subject to vagaries of the any business decision, the Assessing Officer had to advert to all such materials on record in proper perspective. As noted by the Tribunal, all necessary permissions and clearances were granted by the Government of India and other government authorities for such investment. The source of the funds in the hands of P5AHIMLwas also verified. Merely because multiple corporate bodies may

75 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers have been involved in the entire process of collecting funds in P5AHIML and then investing the same in the assessee company, by itself would not be sufficient to establish a sham transaction or colourable device.”

Similar ratio has been laid down in another decision as relied upon by the Ld. A.R. in the case of Nupower Renewables Pvt. Ltd. vs. ACIT (supra). We have also perused the decisions relied upon by the ld DR in his defense and found them distinguishable on facts. There is no merit in the contentions of Ld. D.R. that additional evidences in the form of shares issued subsequently need to be set aside to AO as the same, in our opinion, are not additional evidences. Under these facts and circumstances and in view of the decisions as discussed above, we do not find any infirmity in the order of ld CIT(A) on this issue and are in agreement with the conclusion of the Ld CIT(A) on the deletion of addition U/s 68 of the Act. Accordingly, we uphold the decision of CIT(A) and ground no 3 of the revenue on this issue dismissed.

76 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers

ITA No.2514/M/2018 A.Y. 2013-14 (Revenue’s appeal) & ITA No.2440/M/2018 A.Y. 2013-14 (Assessee’s appeal)

77 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers - The on-money data of remaining 24 flats were not available. Actually 23 flats because out of 24 flats the sale of one flat was cancelled. - The flats on which on-money was received and those on which no on-money was received were sold almost at the same rate. - There is no reason why those flats should be sold at a cheaper rate. - Therefore, after obtaining the details and giving an enhancement notice, the CIT(A) estimated the on-money on the 23 flats at the rate of 45% of the agreement value. - He made an enhancement of Rs.394,549,448/- - He, as in other years, taxed only 20% relying on the decision of the ITAT in the case of Prime Developers. Balance was treated as expenses.

78 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers extrapolation without actually finding evidence of concealment for the period other than those 19 days for which concealment was detected. The ld DR finally submitted that the order of enhancement made by the CIT(A) may be upheld.

79 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers 6 & 7 of the assessee’s appeal. Consequently, the ground No. 4, 5 & 6 in the assessee’s appeal are allowed.

Accordingly, the appeals of the Revenue as well as assessee are partly allowed.

ITA No.3524/M/2018 A.Y. 2014-15 (Revenue’s appeal) ITA No.3103/M/2018 A.Y. 2014-15 (Assessee’s appeal) 61. The issue raised in ground No.1 in Revenue’s appeal and ground No.1 & 2 of assessee’s appeal are similar to one as decided by us in ground No.1 in ITA No.3490/M/2018 of Revenue’s appeal and ground No.1 & 2 in ITA No.3129/M/2018 of assessee’s appeal. Therefore, our finding in the above grounds would, mutatis mutandis, apply to ground No.1 in Revenue’s appeal and ground No.1 & 2 of assessee’s appeal. Accordingly, ground No.1 of Revenue’s appeal is partly allowed and ground No.1 & 2 of the assessee’s appeal are also partly allowed.

80 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers additions in the hands of the assessee without any corroborating material as stated hereinabove. Therefore, our finding in the above ground would, mutatis mutandis, apply to ground No.5, 6 & 7 of the assessee’s appeal. Consequently, the ground No. 3, 4 & 5 in the assessee’s appeal are allowed. Accordingly, the appeals of the Revenue as well as assessee are partly allowed.

ITA No.3525/M/2018 A.Y. 2015-16 (Revenue’s appeal) 64. The issue raised in ground No.1 in Revenue’s appeal is against the deletion of addition of on-money by CIT(A) as made by the AO on adhoc basis applying 45% of the agreement value on the flats sold after the date of search.

81 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers further stated that the AO was not having any reasonable basis to apply the rate of 45% on the flats sold after the date of search and the addition is merely on surmises and conjectures.

82 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers relief. The AO should have been directed to do this work and furnish the remand report. There is a saying “ Once bitten, twice shy”. (v) Moreover, several flats were sold much after the search. It is not unusual that old practices are resumed with the passage of time. (vi) The estimate made by the Assessing Officer is in accord with the judgment of the Hon’ble Supreme Court in the case of Commissioner of Sales Tax v. Esuf Ali Abdul Ali, 90 ITR 271(SC) discussed in paragraph 15.2 above. The burden is on the assessee to establish on flat to flat basis that the post search sales were completely free from on-money receipts. The vague general replies given by the assessee and unilaterally accepted by the CIT(A) does not fulfil the requirement to take the case out of the purview of the Supreme Court judgment in the Esuf Ali case (supra). (vii) The data from the seized pen drive and the loose sheets revealed how there was an entrenched elaborate system set up by the assessee to receive on- money. As elaborately discussed in the foregoing paragraph, this untaxed on-money cash was a source from which directors of the assessee met the expenses of extravagant life style and other heavy illegal payments. (viii) The CIT(A) should not have ignored the ground realty and believed that because of a search the entire operation of on-money has stopped, as there are many instances where the practice continues even after the search. (ix) She should have known the fact that the system of on-money is thriving not because of the flat sellers alone. The buyers are also not willing to pay whole amount in cash and haggling goes on as has been stated by a broker (Vikram Sanghvi, Broker (p.15 of the assessment order)). The on-money system exists because of several factors like avoiding paying the full stamp duty, capital gains tax and non-availability of sufficient white money with the buyer. (x) It is naïve to believe that the entire practice abruptly came to a stop because the search. When cogent evidence was discovered on the basis of which substantial additions have been by the AO and even enhancement has been made by her in an earlier year, she could not have given full relief without demanding strict proof. (xi) The CIT(A) gave full relief even though the assessee has not come clean and still obstinately disowns the pen drive and other seized incriminating documents. (xii) She ignored the defiant manner in which the retraction statements were given and there was total non-co-operation. (xiii) The power of the CIT(A) is co-terminus with the power of the Assessing Officer. She could have, as well, carried out the above investigation herself. Hence, the approach of the CIT(A) in summarily and unilaterally deleting the whole addition was not correct. Ld CIT(A) could not have interfered with the estimate made by the Assessing Officer. It is respectfully submitted that the order of the CIT(A) may be set aside and the order of the Assessing Officer may be restored.

83 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers 68. Ld AR of the assessee relied upon the decision of CIT(A) and stated that Ld DR has failed to bring any material/substantive evidences to counter the conclusion of Ld CIT(A) on the plea that the flats sold during the year were at much higher rate than the earlier years. The ld AR submitted that ld CIT(A) has rightly decided on basis of selling rate that no on-money was involved or not. Therefore this fact has not been taken into account by AO while estimating on-money for this year. He further submitted that in subsequent year AO has accepted sales declared by the assessee. The ld AR relied heavily upon the decision of Co-coordinating bench in case of M/s Runwal Homes Pvt Ltd vs. DCIT in ITA No.5621/Mum/2017 dated 20-12-2017, wherein under similar set of facts, the co-ordinate bench after considering relevant materials has held that on-money receipt should be worked out on the basis of incriminating documents found at premises of the assessee and not on the basis of estimation. The ld AR also relied on the decision of Jurisdictional High Court in case of CIT Vs Dr M K E Memon( 248 ITR 310)(Bom) and CIT Vs. C J Shah & Co. ( 246 ITR 671)(Bom). In both these cases Hon’ble High Court held that addition cannot be made on estimation without any documents/evidences. The ld AR finally prayed that considering the facts of the case as well as judicial decisions on the issue Hon’ble Bench the order of ld CIT(A) on this issue may be affirmed.

84 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers page 64 of the order for A Y 2015-16 which are extracted below for the sake of ready reference and convenience: “Thus, all in all out of the flat wise working for the on-money as has been recorded to have been taken by the assessee group on the basis of the working found and seized from the group ( Mr Praveen Mishra) reveals that the on-money component has been generally in the range of 40-45%. Accordingly, over and above the actual on-money taken by the assesse as mentioned above, being data compiled directly from the actual seized material on actuals the component of on-money that may have been recovered and earned by the assesse from the sale of other flats that have been sold subsequently upto 31.3.2015 (A Y 2015-16) is being worked out @ 45% .”

From the above, it is clear that there is no independent basis for AO to make addition in this year which was apparently not part of search assessment. The AO has blindly estimated the on-money on the flats sold after the date of search by applying rate of 45% on the agreement value which was arrived on the basis of notings in Mr Praveen Mishra Pen drive for earlier years. Since we have already the theory of pen drive by holding that pen drive is not the piece of evidence which can be relied upon by the AO in making addition in the hands of the assessee on the ground that it was recovered from the third party and the AO has failed to carry out the necessary verification to prove that the data in the pen drive belonged to the assessee. If we accept this theory of the revenue, the addition would continue to be made in all subsequent years at the same rate of 45% irrespective of the selling rates of the flats. Ld DR did not bring any substantive material to disapprove the findings of Ld CIT(A) that during the year rate of sale is higher than the earlier years. We have taken note of the fact that in subsequent assessment years in the assessments framed u/s 143(3) of the Act, the sales of flats declared by the assessee have been accepted by the revenue. Therefore, we do not find any reason to deviate from

85 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers the findings of ld CIT(A). In other words we are in agreement with the conclusion of the ld CIT(A) that no addition can be made during the year in absence of any incriminating documents or confession of third parties/ buyers. The case of the assessee also finds support from the decisions of Hon’ble jurisdictional high court in the cases of CIT Vs Dr M K E Memon (supra) and CIT Vs. C J Shah & Co. (supra) and coordinate bench decision in the case of M/s Runwal Homes Pvt. Ltd. vs. DCIT (supra). Further decisions quoted by Ld DR are not applicable on facts of the case. Under these facts and circumstances we are inclined to uphold the order of CIT(A) on this issue. Ground No 1 of revenue appeal dismissed. Accordingly, the appeal of the Revenue is dismissed.

ITA No.3127/M/2018 A.Y. 2015-16 (Assessee’s appeal) 70. Ground 1 of the assessee appeal relates to addition of Rs. 3,31,59,996/- on account of unaccounted jewellery found during the course of search. In this year AO has made addition U/s 69 on account of jewellery found during the course of search, however he allowed benefit of telescoping against the addition made on other issues. CIT(A) confirmed the action of AO.

86 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers documentary evidence in the form of bills and vouchers. He alternatively requested to allow benefit of telescoping as done by the lower authorities against the income, if any, confirmed in the hands of appellant.

87 ITA No.3490, 3523, 2514, 3524 & 3525/M/2018 M/s. Nish Developers assessee’s appeal. Consequently, the ground No. 2 & 3 in the assessee’s appeal are allowed. Accordingly, the appeal of the assessee is partly allowed.

Order pronounced in the open court on 12.03.2021.

Sd/- Sd/- (Ram Lal Negi) (Rajesh Kumar) JUDICIAL MEMBER ACCOUNTANT MEMBER

Mumbai, Dated: 12.03.2021. * Kishore, Sr. P.S.

Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The CIT (A) Concerned, Mumbai The DR Concerned Bench //True Copy// [ By Order

Dy/Asstt. Registrar, ITAT, Mumbai.