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Income Tax Appellate Tribunal, “G” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI RAJESH KUMAR
Since, the issues raised in all these appeals are identical they have been clubbed together and as a matter of convenience disposed off by this consolidated order.
The facts and issues involved in these appeals being more or less identical, we take up and ITA no.2325/Mum./ 2016, concerning M/s. Rhythm Real Estates Pvt. Ltd, as lead appeals and proceed to deal with the facts involved in these two appeals.
Brief facts are, the assessee a company is engaged in the business of real estate development. For the assessment year under dispute, the assessee filed its return of income on 29th November 2006, declaring loss of ` 44,492. Assessment in case of the assessee was completed under section 143(3) of the Income Tax Act, 1961 (for short “the Act”) vide order dated 5th December 2008, computing the income at nil after disallowing the loss claimed. Subsequently, on the basis of information received from the Director of Revenue Intelligence
4 M/s. Rhythm Real Estates Pvt. Ltd. M/s. Orchid Realtors Pvt. Ltd. M/s. Merino Realtors Pvt. Ltd. (DRI), Mumbai, regarding of payment on–money in cash by the assessee for purchasing properties at New Delhi, the Assessing Officer re–opened the assessment under section 147, by issuing notice under section 148 of the Act on 28th March 2013. As mentioned by the Assessing Officer in the reasons recorded while re–opening the assessment, during a search and seizure operation, conducted in the residential premises of Ms. Zaver Cyrus Dadina, NITCO’s Dy. Manager (Accounts) two Electronic Storage Devises i.e., a hard disk and a pen drive were found and recovered. A file found in the hard disc contained details of payments made towards purchase of 36 landed properties in Maidan Garhi (popularly known as Sainik Farms) area of South Delhi during the year 2005. As per the copy of the said file in Excel format attached to the letter of the Addl. Director General, Director of Revenue Intelligence, Mumbai Zonal Unit, it contained details of sellers/ buyers of 36 landed properties as well as payments made both in demand draft and cash mode. As per the said information, the total amount paid for acquisition of the property is to the tune of ` 54.29 crore comprising of demand draft component of ` 14.43 crore and cash component of ` 41.86 crore. As per the report of the DRI, the information relating to transactions involving the assessee is given at serial no.9, 10, 16 and 23 of the Excel Sheet. From the information received, it was observed that the assessee had paid on–money in 5 M/s. Rhythm Real Estates Pvt. Ltd. M/s. Orchid Realtors Pvt. Ltd. M/s. Merino Realtors Pvt. Ltd. cash amounting to ` 7,07,95,198 along with other cash paymentS totaling to ` 8,87,14,048. Therefore, in the course of assessment proceedings, the Assessing Officer proposed to treat the cash payment made on account of on–money, etc., as unexplained investment of the assessee under section 69B of the Act. Though, the assessee vide letter dated 14th March 2014, objected to the proposed addition however, the Assessing Officer rejecting the objections of the assessee and relying upon the information received from the DRI treated the cash payment of ` 8,87,14,048 as unexplained investment under section 69B of the Act and added back to the income of the assessee. Being aggrieved of the addition so made, assessee preferred an appeal before the first appellate authority.
In course of hearing of appeal, the assessee relying upon various documentary evidences contested the addition made by the Assessing Officer under section 69B of the Act. Of course, assessee also challenged the validity of reopening of assessment under section 147 of the Act. The learned Commissioner (Appeals) after considering the submissions of the assessee upheld the validity of re–opening under section 147 of the Act. However, as regards the validity of the addition made of ` 8,87,14,048 is concerned, the learned Commissioner (Appeals) called for a remand report from the Assessing Officer qua the submissions made by the assessee. After considering the 6 M/s. Rhythm Real Estates Pvt. Ltd. M/s. Orchid Realtors Pvt. Ltd. M/s. Merino Realtors Pvt. Ltd. submissions of the assessee in the context of facts and material on record and taking note of the Assessing Officer’s observations in the remand report, the learned Commissioner (Appeals) ultimately deleted the addition made under section 69B of the Act as per the detailed reasoning contained in Para–5.2.1 to 5.2.9 of the appeal order. Being aggrieved of the aforesaid order of the learned Commissioner (Appeals) both the Revenue as well as the assessee are in appeal before us. While the Revenue has challenged the deletion of addition made by the Assessing Officer under section 69B of the Act, the assessee has called into question the decision of the learned Commissioner (Appeals) in upholding the validity of re–opening of assessment under section 147 of the Act.
At the outset, learned Counsels appearing for both the parties have agreed before us that the issue raised in Revenue’s appeal relating to the merits of the addition made under section 69B of the Act stands covered in favour of the assessee by virtue of the order passed by the Co–ordinate Bench in case of ITO v/s M/s. Saturn Advisory Services Pvt. Ltd., ITA no.802/Mum./2015, dated 12th September 2017. Thus, the learned Counsels appearing for both the parties have conceded before us that the issue raised in the Revenue’s appeal is to be decided in favour of the assessee following the aforesaid decision of the Co–ordinate Bench.
7 M/s. Rhythm Real Estates Pvt. Ltd. M/s. Orchid Realtors Pvt. Ltd. M/s. Merino Realtors Pvt. Ltd.
We have considered rival submissions and perused materials on record. As could be seen from the factual matrix of the case, on the basis of information received from the DRI, Mumbai, that assessee has made cash payment towards on–money for purchasing landed property in New Delhi, the Assessing Officer re–opened the assessment under section 147 of the Act. It is also evident, the report of the DRI, Mumbai, is on the basis of recovery of a hard disk and a pen drive during a search conducted in the residential premises of Ms. Zaver Cyrus Dadina, no 28th August 2009, who is stated to be the Dy. Manager (Accounts) of NITCO. As per the information available from the hard disc contained in Excel format the assessee purportedly paid on–money in cash towards purchase of landed property at Sainik Farms, New Delhi. As observed by the learned Commissioner (Appeals), apart from the information received from DRI, along with attached Excel Sheet, the Assessing Officer had no other corroborative evidence indicating cash payment of on–money by the assessee. As could be seen, the learned Commissioner (Appeals) after verifying the materials on record, has found that the assessee in the relevant previous year acquired agricultural land and as per the Balance Sheet advance against the land was shown at ` 2,42,21,801. He further noticed that the assessee had entered into agreements with four parties for purchase of land. He found that the entire basis for addition
8 M/s. Rhythm Real Estates Pvt. Ltd. M/s. Orchid Realtors Pvt. Ltd. M/s. Merino Realtors Pvt. Ltd. on account of on–money is on the basis of information found from the Hard Disk recovered from Ms. Zaver Cyrus Dadina, who is in no way connected with the assessee. The learned Commissioner (Appeals) observed, apart from this information in the form of an Excel Sheet received from DRI, Mumbai, the Assessing Officer has no other evidence in his possession to indicate payment of on–money by the assessee. He also took note of the fact that the Assessing Officer even has not made any independent enquiry with the sellers of the landed property or made any enquiry to ascertain the market rate of the land in that locality. He observed, even though the assessee has furnished the sale agreements of the property before the Assessing Officer in the course of assessment proceedings, the Assessing Officer has not taken note of them during the assessment proceedings. The learned Commissioner (Appeals) observed, even though, in course of proceedings before him the Assessing Officer was directed to examine the submissions made by the assessee and conduct necessary enquiry, however, the Assessing Officer without conducting any enquiry has submitted his remand report on 18th August 2015, by simply stating that the documents forwarded to him have already been considered by the Assessing Officer while completing the assessment under section 143(3) r/w section 147 of the Act. Thus, in view of the aforesaid factual position, the learned Commissioner (Appeals) concluded that in 9 M/s. Rhythm Real Estates Pvt. Ltd. M/s. Orchid Realtors Pvt. Ltd. M/s. Merino Realtors Pvt. Ltd. the absence of any evidence brought on record to prove the payment of on–money by the assessee the addition made under section 69B of the Act cannot be sustained. The aforesaid factual finding of the learned Commissioner (Appeals) remains uncontroverted even before us. Moreover, while dealing with identical issue arising in the Revenue’s appeal in case of M/s. Saturn Advisory Services Pvt. Ltd. (supra), wherein, addition of on–money under section 69B was made on the basis of the similar report of the DRI containing information found during search on Ms. Zaver Cyrus Dadina, the Co–ordinate Bench has upheld the decision of the learned Commissioner (Appeals) observing as under:–
“2.9. Totality of facts, if kept in juxtaposition, with the facts and the ratio laid down in the aforesaid cases are analyzed, the Ld. Assessing Officer is asking the assessee to prove the negative which is not permitted and the whole assessee of the Department is based upon the presumption that the assessee could not explain that no cash was transacted in the sale consideration. It is also noted that the Ld. Commissioner of Income Tax (Appeal) has duly analyzed the statement of Shri Atul Sud, Ms. Zaver Cyrus Dadina, Dy. Manager (Accounts) of NITCO, from whose premises the hard disc was found and seized and Shri Atul Sud admitted to have purchase the land from the concerned two parties on a consideration of `39 to 40 lakhs and payments was made by demand draft he has nowhere admitted / tendered that any cash payments was made. Likewise, Ms. Zaver Cyrus Dadina has specifically tendered that she had no role to play either to issue cheque or cash. In reply to question no.12, whether any cash payment was made, she specifically denied of any transaction. A commission u/s 131(1)(d) of the Act was issued and the assessee was not able to provide any details/information/confirmation in this regard. Totality of facts clearly indicates that the Ld. Assessing Officer could not collect any evidence to substantiate that in fact any cash was transacted for purchase of property. The case of the assessee is further fortified by the facts that the 10 M/s. Rhythm Real Estates Pvt. Ltd. M/s. Orchid Realtors Pvt. Ltd. M/s. Merino Realtors Pvt. Ltd. demand drafts issued for purchase of property were reflected in the documents, no statement was recorded by DRI either of Ms. Zaver Cyrus Dadina or of any other person during the course of search in respect of the details contained in the hard disc. Even, the information received from the investigation wing was never corroborated with any evidence, statement that any cash changed hands for the transaction. When the Ld. Assessing Officer recorded the statement of Shri Atul Sud, Director of the assessee company, though he admitted the transaction to be made through demand draft but he never tendered that any cash was transacted. Ms. Zaver Cyrus Dadina completely expressed or ignorance with regard to details of land dealings as has been alleged. The efforts of Assessing Officer to record the statement of Miss Damini Vadhwa, and Miss Reeta Bhatia also could not provide any information leading to the addition. The seized material/print out was not in the handwriting of the assessee and even there is no material to suggest that the seized material was maintained either by the assessee or it’s of or employees. Even the statement of Rajaratanam was discarded by the Ld. Commissioner of Income Tax (Appeal) as the floor price, fixed by the authorities, for such property was found much lower than the value. Considering the factual matrix and the judicial pronouncements, discussed hereinabove, we find no infirmity in the conclusion of the Ld. First Appellate Authority. Our view is further fortified by the fact that the concerned data was even not found from the premises of the assessee and further the assessee has not started any substantial business activity and for acquisition of the land to inter corporate loan of ` 40 lakh from Strategic Capital Corporation. Thus, the presumption of the Ld. Assessing Officer for making the addition on presumptive basis was rightly deleted by the Ld. Commissioner of Income Tax (Appeal). Thus, addition cannot be made on the basis of presumption, which cannot be sustained in law. Even otherwise, presumption cannot take the shape of the evidence however strong it may be unless and until such presumption or statement, if any, is corroborated with material evidence. The ratio laid down in Dr. Anita Sahai vs DIT 266 ITR 597 (All.), Dheerajlal Girdharilal vs DCIT 26 ITR 734 (SC), CIT vs Calcutta Discount Co. Ltd. 91 ITR 8(SC), CIT vs Raman & Co. 67 ITR 11 (SC), Modi Creations Pvt. Ltd. vs Income Tax Officer (2011) 13 taxman.com 114(Del.), CIT vs Shree Rama Multitech Ltd. (2013) 34 taxman.com 32 (Guj.) and CIT vs Devine Leasing and Finance Ltd. 158 taxman 440 (Del.) supports our view. Thus, we affirm the stand of the First Appellate Authority, resulting into dismissal of the impugned grounds, raised by the Revenue.”
11 M/s. Rhythm Real Estates Pvt. Ltd. M/s. Orchid Realtors Pvt. Ltd. M/s. Merino Realtors Pvt. Ltd. 8. Facts involved in the present appeal being materially identical, respectfully following the aforesaid decision of the Co–ordinate Bench, we uphold the decision of the learned Commissioner (Appeals) on the issue. Ground raised is dismissed.
In the result, Revenue’s appeal is dismissed.
As regards assessee’s appeal in ITA no.2325/Mum./2016, in view of our decision while deciding Revenue’s appeal in ITA no.3036/Mum./2016, the ground raised therein is of mere academic importance, hence, has become infructuous.
In the result, assessee’s appeal is also dismissed.
Our aforesaid decision in ITA no.2325/Mum./2016 and applies mutatis mutandis to the other appeals under consideration viz. ITA no. 2326/Mum./2016 and ITA no.3446/Mum./2016 relating to M/s. Orchid Realtors Pvt. Ltd. and ITA no.2327/Mum./2016 and ITA no.3498/Mum. /2016, relating to M/s. Merino Realtors Pvt. Ltd.
12 M/s. Rhythm Real Estates Pvt. Ltd. M/s. Orchid Realtors Pvt. Ltd. M/s. Merino Realtors Pvt. Ltd. 13. In the result, all the appeals are dismissed. Order pronounced in the open Court on 25.04.2018