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Income Tax Appellate Tribunal, MUMBAI BENCH “B”, MUMBAI
Before: SHRI C.N. PRASAD, HONBLE & SHRI RAJESH KUMAR, HONBLEShri Balakrishna R. Chavan
(A.Y: 2007-08) & CO NO.107/MUM/2019 Shri Balakrishna R. Chavan O R D E R PER C.N. PRASAD (JM) 1. This appeal and cross objection are filed by the Revenue and assessee respectively, against the order of the Learned Commissioner of Income Tax (Appeals)–40, Mumbai [hereinafter in short “Ld.CIT(A)”] dated 07.04.2017 for the Assessment Year 2007-08.
Briefly stated the facts are that, based on the information received from DDIT (Inv.), Unit – 6(3), Mumbai, the case of the assessee was reopened by issue of notice u/s. 148 of the Act, for the reason that the assessee had paid “on money” for purchase of Flat No. 1701 in the building called “Glendale” and therefore, income had escaped assessment. In the course of the search in the case of Hiranandani Group certain incriminating material were seized wherein it was stated that there were some “on money” payments with buyers to the developers in respect of properties purchased in different projects of Hiranandani Group. Based on this information and the statement of Shri Niranjan Hiranandani recorded u/s. 132(4) of the Act, the Assessing Officer was of the view that assessee had paid “on money” to the builder M/s. Crescendo Associates which is concern of Hiranandani Group. In the course of the assessment proceedings the assessee contended that he has never paid any “on money” for purchase of his flat. However, the Assessing Officer based on (A.Y: 2007-08) & CO NO.107/MUM/2019 Shri Balakrishna R. Chavan the statement and the admission made by Shri Niranjan Hiranandani concluded that assessee has paid “on money” to the builder and accordingly treated ₹.1,68,75,00/- as unaccounted investment of the assessee. On appeal, Ld.CIT(A) sustained the said addition.
At the time of hearing, Ld. Counsel for the assessee submitted that the assessee had never paid any “on money” for purchase of his flat and the said addition was made only based on the statement recorded in the course of search in Hiranandani Group. It was contended that addition cannot be made merely on the statement of builder without bringing any corroborative evidence on record suggesting that the payment of “on money” was made by the assessee. Ld. Counsel for the assessee submitted that identical issue has been decided by the Coordinate Bench in the case of Anil Jaggi v. ACIT in ITA.No. 3049/Mum/2019 dated 20.12.2017 [89 taxmann.com 266 (Mumbai–Trib.)], wherein similar addition made in that case based on the statement made by Shri Niranjan Hiranandani that the assessee Anil Jaggi paid “on money” to the builder for purchase of the flat was deleted. Ld. Counsel for the assessee submits that the addition was deleted as there was no evidence to show that the assessee had paid “on money” and the addition was simply made based only on the statement of Shri Niranjan Hiranandani as was done in the case of the assessee before us. Ld. Counsel for the assessee also placed
(A.Y: 2007-08) & CO NO.107/MUM/2019 Shri Balakrishna R. Chavan reliance on the decision in the case of ITO v. Vinod Aggarwal in ITA.No. 2573/Mum/2017 dated 19.09.2018, wherein similar addition was deleted following the decision in the case of Nikhil Vinod Aggarwal in ITA.No. 2574/Mum/2017 dated 13.10.2017.
Ld. DR vehemently supported the orders of the authorities below.
We have heard the rival submissions, perused the orders of the authorities below. On a perusal of the orders of the Authorities below, we find that the addition was made based only on the statement of Shri Niranjan Hiranandani that the assessee made some “on money” payments. There are no other evidences on record suggesting that the assessee paid “on money” to the builder. We find that on identical fact situation the Coordinate Bench deleted addition in the case of Anil Jaggi v. ACIT (supra), wherein it has been held that mere admission of amounts recorded in pen drive as the additional unexplained income would not lead to draw an adverse inference that unexplained investment was made by the assessee for purchase of property particularly when no evidence was brought on record. While holding so, it has been observed as under: - “14. We shall now take up the case of the assessee on merits and deliberate on the validity of the addition of Rs. 2.23 crore made by the A.O on the ground that the assessee had made a payment of “on money” for purchase of flats from M/s Lakeview developers. We have perused the facts of the case and the material available on record on the basis of which the addition of Rs. 2.23 crore had been made in the hands of the assessee. We have further deliberated on the material placed on record and the contentions of the ld. A.R to drive home his contention
(A.Y: 2007-08) & CO NO.107/MUM/2019 Shri Balakrishna R. Chavan that no payment of any “on money” was made by the assessee for purchase of flats from M/s Lakeview Developers. We find that the genesis of the conclusion of the A.O that the assessee had paid “on money” of Rs. 2.23 crore for purchase of property under consideration is based on the contents of the pen drive which was seized from the residence of an ex-employee of Hiranandani group. We have perused the print out of the pen drive (Page 42 of APB) and find ourselves to be in agreement with the view of the ld A.R that though against the heading “Amount of on money paid” the name, address and PAN No. of the assessee is mentioned alongwith the details of the property purchased by him, viz. Flat no.2501 in “Somerset” building from Lakeview Developers (a Hiranandani group concern), however, the same would not conclusively prove suppression of investment and payment of “on money” by the assessee for purchase of the property under consideration. We find that the information as emerges from the print out of the pen drive falls short of certain material facts, viz. date and mode of receipt of „on money‟, who had paid the money, to whom the money was paid, date of agreement and who had prepared the details, as a result whereof the adverse inferences as regards payment of “on money” by the assessee for purchase of the property under consideration remain uncorroborated. We further find that what was the source from where the information was received in the pen drive also remains a mystery till date. We find that Sh. Niranjan Hiranandani in the course of his cross- examination had clearly stated that neither he was aware of the person who had made the entry in the pen drive, nor had with him any evidence that the assessee had paid any cash towards purchase of flat. We have deliberated on the fact that Sh. Niranjan Hiranandani in his statement recorded on oath in the course of the Search & seizure proceedings had confirmed that the amounts aggregating to Rs. 475.60 crore recorded in the pen drive were the on-money received on sale of flats, which was offered as additional income under Sec. 132(4) and thereafter offered as such for tax in the petition filed before the Settlement commission. We are of the considered view that there is substantial force in the contention of the ld. A.R that mere admission of the amounts recorded in the pen drive as the additional income by Sh. Niranjan Hiranandani, falling short of any such material which would inextricably evidence payment of “on money” by the assessee would not lead to drawing of adverse inferences as regards the investment made by the assessee for purchase of the property under consideration. We rather hold a strong conviction that the very fact that the consideration paid by the assessee for purchase of the property under consideration when pitted against the „market value‟ fixed by the stamp valuation authority is found to be substantially high, further fortifies the veracity of the claim of the assessee that his investment made towards purchase of the property under consideration was well in order. We are of the considered view that though the material acted upon by the department for drawing of adverse inferences as regards payment of “on money” by the assessee formed a strong basis for doubting the investment made by the assessee for purchase of the property under consideration, but the same falling short of clinching material which would have irrefutably evidenced the said fact, thus, does not inspire much of confidence as regards the way they have been construed by the lower authorities for drawing of adverse inferences in the hands of the assessee. We thus are of a strong conviction that as the material relied upon by the lower authorities does not corroborate the adverse inferences drawn as regards the investment made by the assessee, therefore, the same cannot conclusively form a basis for concluding that the assessee had made payment of “on money” for purchase of the property under consideration. We thus in the (A.Y: 2007-08) & CO NO.107/MUM/2019 Shri Balakrishna R. Chavan backdrop of our aforesaid observations are of the considered view that the adverse inferences drawn by the A.O as regards payment of “on money” of Rs. 2.23 crore by the assessee for purchase of Flat No. 2501 from M/s Lakeview Developers are based on of premature observations of the A.O, which in the absence of any clinching evidence cannot be sustained. We thus are unable to subscribe to the view of the lower authorities and set aside the order of the CIT(A) sustaining the addition of Rs. 2.23 crores in the hands of the assessee.”
In the case of ITO v. Vinod Aggarwal (Supra) the Coordinate Bench held as under: -
“8. Having held so, we propose to deal the issue on merit also as, in our view, the assessee has a strong case on merit. It is evident from the assessment order, the Assessing Officer has primarily relied upon certain information received from the Investigation Wing, which contained statement recorded from the Directors/promoters of Hiranandani Group admitting receipt of on money. It is also evident from the assessment order itself, in response to the query raised by the Assessing Officer, the assessee has appeared from time to time and, as per Assessing Officer’s own version, filed some details. However, alleging that the assessee did not furnish name of the person (broker), who fixed the final rate and conditions of payment, the Assessing Officer rejected assessee’s claim of non- payment of on money. In this regard, it is the specific contention of the assessee that no broker was involved in the transaction relating to purchase of flat. Moreover, it is evident, in course of assessment proceedings the assessee has repeatedly requested the Assessing Officer to communicate and bring to his notice the adverse materials in his possession for effective rebuttal. However, the Assessing Officer has refused to divulge any information available with him which were ultimately utilized against the assessee. Even though the statements of third parties were utilized for making the addition, no opportunity for cross-examination was offered to the assessee. This, in our view, is in gross violation of rules of natural justice. It is further relevant to observe, the Assessing Officer has not conducted any enquiry worth its name independently to ascertain the fact whether the assessee has actually paid on money in cash or not. Non-furnishing of details by the assessee as alleged by the Assessing Officer certainly cannot prevent him from making any further enquiry and investigation to ascertain the truth. Simply relying upon the statement of third parties, the Assessing Officer cannot make the addition purely on conjectures and surmises and in the process ignore the evidence brought on record by the assessee by way of payment made through banking channel and the documentary evidence thereof. It is relevant to observe, while deciding identical issue in the case of Shri Nikhil Vinod Aggarwal (supra), the Bench has held as under: “11. Even otherwise also, the assessee has a strong case on merit as well. As evident from the facts on record, the Assessing Officer has made the addition on account of alleged on-money paid by the assessee towards purchase of flat relying upon the information obtained from the search operation carried out in the case of Hiranandani Group. Further, he has relied upon the statements recorded from the directors and promoters of Hiranandani Group in course of search. However, though, the assessee in the course of assessment proceedings, has repeatedly requested the Assessing Officer to provide the information / adverse material in his possession, neither such adverse material was provided to the assessee nor confronted to him. Further, the statement recorded from third parties which were relied upon by the Assessing Officer for making the addition were neither confronted to the assessee nor the (A.Y: 2007-08) & CO NO.107/MUM/2019 Shri Balakrishna R. Chavan assessee was Shri Nikhil Vinod Aggarwal permitted to cross-examine the concerned persons. Neither in the assessment order the Assessing Officer has discussed in detail the nature of information / material available with him directly implicating the assessee for paying on-money for purchase of flat nor the learned Departmental Representative has brought on record any such material as may be available with the Assessing Officer. It is evident from the assessment order,, the Assessing Officer without disclosing adverse material / information available with him to the assessee during the assessment proceedings, has simply called upon the assessee to furnish the name of persons who according to the Assessing Officer negotiated for purchase of flat between the assessee and the builder. Unless, the assessee is confronted with the adverse material in possession of the Assessing Officer, he cannot be expected to rebut them considering the fact that the from very beginning the assessee has consistently stated that he has not paid any on-money over and above the declared sale consideration. The learned Commissioner (Appeals) while deciding the issue has clearly brought out the aforesaid factual aspect in his order. We agree with the learned Commissioner (Appeals) that once the assessee has furnished the details of transactions relating to purchase of flat and has stated that he has not paid on-money over and above the declared sale consideration, burden shifts to the Assessing Officer to falsify Shri Nikhil Vinod Aggarwal assessee's claim by bringing cogent evidence on record. Merely, referring to certain adverse material and statement of third parties, but, without confronting them to the assessee the Assessing Officer cannot make the addition. In view of the aforesaid, we do not find any infirmity in the order of the learned Commissioner (Appeals) in deleting the addition. Accordingly, we uphold the order of the learned Commissioner (Appeals) by dismissing the ground raised by the Revenue.” The aforesaid decision of the co-ordinate Bench, under identical facts and circumstances, equally applies to the present appeal also. Therefore, on overall consideration of facts and material on record, we are of the view that the learned CIT(A) was justified in deleting the addition made by the Assessing Officer. Thus, the assessee deserves to succeed on merits as well.”
Facts and circumstances being identical, this decision squarely applies to the present case in hand. Thus, respectfully following the said decision, we delete the addition made by the Assessing Officer and sustain the order of the Ld.CIT(A).
Though ground has been raised on reopening of assessment in the cross objection by the assessee the same is treated as academic and is not adjudicated.
(A.Y: 2007-08) & CO NO.107/MUM/2019 Shri Balakrishna R. Chavan 9. In the result, appeal filed by the Revenue and cross objection filed by the assessee are dismissed.
Order pronounced in the open court on the 31st May, 2019