DEPUTY COMMISSIONER OF INCOME TAX, CENTRE-CIRCLE-6(4), MUMBAI-400021 vs. ICONIC REALTORS LTD., , MUMBAI-400021

PER OM PRAKASH KANT, AM

This appeal by the Revenue is directed against order dated 30.12.2021 passed by the Ld. Commissioner of Income- tax(Appeals)-54, Mumbai [in short ‘the Ld. CIT(A)’] for assessment year 2008-09, raising following grounds:

“(1) "On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in deleting the addition made u/s.69C of Rs. 27.04.00.000/- even though Shri Madan Kolambekar, in his statement recorded on oath w/s. 132(4) of the Act, during the search action had admitted to have received unaccounted receipts from and made unaccounted cash expenditure on behalf of the Jai Corp Group, for purchase of 12.5% CIDCO plots. in lieu of commission/brokerage."

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(2) "On the facts and in the circumstances of the case and in law, the (2) "On the facts and in the circumstances of the case and in law, the (2) "On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in deleting the addition made s.69C aggregating to learned CIT(A) erred in deleting the addition made s.69C aggregating to learned CIT(A) erred in deleting the addition made s.69C aggregating to Rs.27,04.00,000/ Rs.27,04.00,000/- even though the 12.5% CIDCO plots transaction CO plots transaction actually took place in the hands of the assessee company, after making actually took place in the hands of the assessee company, after making actually took place in the hands of the assessee company, after making the said unaccounted/unexplained payment." the said unaccounted/unexplained payment." (3) "On the facts and in the circumstances of the case and in law, the (3) "On the facts and in the circumstances of the case and in law, the (3) "On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in deleting the addition made learned CIT(A) erred in deleting the addition made w/s.69C aggregating w/s.69C aggregating to Rs. 27,04,00,000/ to Rs. 27,04,00,000/- even though it has been held in the impugned even though it has been held in the impugned order that the transactions of the assessee company with Shri Madan order that the transactions of the assessee company with Shri Madan order that the transactions of the assessee company with Shri Madan Kolambekar were not on 'principal to principal' basis." Kolambekar were not on 'principal to principal' basis." (4) "On the facts and in the circumstances o (4) "On the facts and in the circumstances of the case and in law, the f the case and in law, the learned CIT(A) erred in deleting the addition made us.69C aggregating learned CIT(A) erred in deleting the addition made us.69C aggregating learned CIT(A) erred in deleting the addition made us.69C aggregating to Rs. 27,04.00,000/ to Rs. 27,04.00,000/- even though vide the impugned order, the action even though vide the impugned order, the action of the AO to reject the retraction affidavit filed by Shri Madan of the AO to reject the retraction affidavit filed by Shri Madan of the AO to reject the retraction affidavit filed by Shri Madan Kolambekar and Shri Hire Kolambekar and Shri HirenOza has been upheld." (5) "On the facts and in the circumstances of the case and in law, the (5) "On the facts and in the circumstances of the case and in law, the (5) "On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in deleting the addition made us.69C aggregating learned CIT(A) erred in deleting the addition made us.69C aggregating learned CIT(A) erred in deleting the addition made us.69C aggregating to Rs. 27,04,00,000/ to Rs. 27,04,00,000/- even though it has been held in the impugned even though it has been held in the impugned order that the transactions that documents seized from the premises of transactions that documents seized from the premises of transactions that documents seized from the premises of Shri Madan Kolambekar and impounded from the premises of M/s. Shri Madan Kolambekar and impounded from the premises of M/s. Shri Madan Kolambekar and impounded from the premises of M/s. Weldone Real Estate Limited can be used as evidence against the Weldone Real Estate Limited can be used as evidence against the Weldone Real Estate Limited can be used as evidence against the assessee." (6) "On the facts and in the circumstances of the case and in l (6) "On the facts and in the circumstances of the case and in l (6) "On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in deleting the addition made w/s.69C aggregating learned CIT(A) erred in deleting the addition made w/s.69C aggregating learned CIT(A) erred in deleting the addition made w/s.69C aggregating to Rs.27,04,00,000/ to Rs.27,04,00,000/- even though plethora of evidences were found even though plethora of evidences were found during the course of search, which corroborate the statements recorded during the course of search, which corroborate the statements recorded during the course of search, which corroborate the statements recorded on oath of various persons and substanti on oath of various persons and substantiate the fact that the assessee ate the fact that the assessee company had made unaccounted/unexplained payments." company had made unaccounted/unexplained payments." (7) "On the facts and in the circumstances of the case and in law, the (7) "On the facts and in the circumstances of the case and in law, the (7) "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting addition of Rs. 12,23,72,393/ Ld. CIT(A) erred in deleting addition of Rs. 12,23,72,393/- u/s 69 of the u/s 69 of the Act considering it to be a d Act considering it to be a double addition" 2. Briefly stated, facts of the case are that during the year under Briefly stated, facts of the case are that during the year under Briefly stated, facts of the case are that during the year under consideration, consideration, consideration, the assessee company was the the assessee assessee company company was engaged was engaged engaged in the in in the the procuring/purchasing plots of land in vicinity of Special Economic procuring/purchasing plots of land in vicinity of Special Economic procuring/purchasing plots of land in vicinity of Special Economic Zone, Mumbai by way of Zone, Mumbai by way of employing land aggregators. land aggregators. The assessee filed original return of income on 17.09.2008 claiming net loss of filed original return of income on 17.09.2008 claiming net loss of filed original return of income on 17.09.2008 claiming net loss of Rs.30,808/-. Subsequently, a search and seizure action u/s 132 of . Subsequently, a search and seizure action u/s 132 of . Subsequently, a search and seizure action u/s 132 of the Income-tax Act, 1961 (in short ‘the Act’) was carried in the case tax Act, 1961 (in short ‘the Act’) was carried in the case tax Act, 1961 (in short ‘the Act’) was carried in the case

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of ‘Jai Corporation Ltd Ltd’. group on 05.03.2009. The assessee being 05.03.2009. The assessee being one of the entities of ‘Jai Corporation ne of the entities of ‘Jai Corporation group’ was also was also subjected to the search action. Accordingly the search action. Accordingly, a notice u/s 153A of the Act was notice u/s 153A of the Act was issued and assessment in terms of section 153A r.w.s. 143(3) of the issued and assessment in terms of section 153A r.w.s. 143(3) of the issued and assessment in terms of section 153A r.w.s. 143(3) of the Act was completed on 29 Act was completed on 29.12.010 ,wherein the total income the total income was assessed at Rs.39,27,41,685/ at Rs.39,27,41,685/- making additions, firstly firstly, addition of Rs.27,04,00,000/- on account of unexplained expenditure u/s 69C on account of unexplained expenditure u/s 69C on account of unexplained expenditure u/s 69C of the Act relating to 12.5% CIDCO of the Act relating to 12.5% CIDCO land at ‘Dronagiri Dronagiri’ area and secondly, addition for r unexplained investment u/s 69C of the Act of unexplained investment u/s 69C of the Act of Rs.12,23,72,393/-. On further appeal, the Ld. CIT(A) deleted both . On further appeal, the Ld. CIT(A) deleted both . On further appeal, the Ld. CIT(A) deleted both the additions. Aggrieved the additions. Aggrieved, the Revenue is in appeal before the the Revenue is in appeal before the Income-tax Appellate Tribunal (in short ‘the Tribunal’) raising the tax Appellate Tribunal (in short ‘the Tribunal’) raising the tax Appellate Tribunal (in short ‘the Tribunal’) raising the grounds as reproduced above. produced above.

4.1 At the outset, the the ld DR referred to the delay o the delay of 75 days in filing the appeal as pointed out by the Registry and s pointed out by the Registry and s pointed out by the Registry and submitted that the period of delay the period of delay in filing the appeal being du being during the Covid Pandemic period, the delay is covered by the decision of the Hon’ble he delay is covered by the decision of the Hon’ble he delay is covered by the decision of the Hon’ble Supreme Court in Civil Supreme Court in Civil appeal no. 21 of 2022 in Miscellaneous 21 of 2022 in Miscellaneous Application No. 655 of 2021 in lication No. 655 of 2021 in suo-motu writ petition (C) No. 3 of writ petition (C) No. 3 of 2020.

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4.2 We have heard rival submission of the parties on the issue of We have heard rival submission of the parties on the issue of We have heard rival submission of the parties on the issue of condoning the delay in filing the appeal. Before us, the Ld. DR condoning the delay in filing the appeal. Before us, the Ld. DR condoning the delay in filing the appeal. Before us, the Ld. DR brought on record that order of the Ld. CIT(A) was received in the brought on record that order of the Ld. CIT(A) was r brought on record that order of the Ld. CIT(A) was r office of the Principal Commissioner of Income-tax (PCIT) on office of the Principal Commissioner of Income office of the Principal Commissioner of Income 31.01.2022 , therefore, filing therefore, filing of appeal before the Tribunal was appeal before the Tribunal was due on 30.03.2022, whereas the appeal has been filed on 27.05.2022. whereas the appeal has been filed on 27.05.2022. whereas the appeal has been filed on 27.05.2022. The Hon’ble Supreme Court in the writ petition The Hon’ble Supreme Court in the writ petition (supra) (supra) has held that in cases where the limitation would have expired during the that in cases where the limitation would have expired during the that in cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the period between 15.03.2020 till 28.02.2022, notwithstanding the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining actual balance period of limitation remaining, all persons all persons shall have a limitation period of 90 days from the 0 limitation period of 90 days from the 01.03.2022 and in the event 1.03.2022 and in the event the actual balance period of limitation remaining w.e.f. 01.03.2022 the actual balance period of limitation remaining w.e.f. 01.03.2022 the actual balance period of limitation remaining w.e.f. 01.03.2022 is greater than 90 days that longer period shall apply. Since, the 90 days that longer period shall apply. Since, the 90 days that longer period shall apply. Since, the period of limitation in the instant case is falling into the period period of limitation in the instant case is falling into the period period of limitation in the instant case is falling into the period covered by the Hon’ble Sup covered by the Hon’ble Supreme Court (supra), therefore the appeal therefore the appeal filed by the Revenue is filed by the Revenue is held to be within the limitation period and within the limitation period and accordingly admitted for adjudication. accordingly admitted for adjudication.

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various companies of the group as well as individual employees of various companies of the group as well as individual employees of various companies of the group as well as individual employees of the group with an objective the group with an objective of developing a township in those areas. township in those areas. The entities of the group The entities of the group employed ‘land aggregators and aggregators’ for procuring land. The various ‘land land aggregators’ /’brokers’ like Shri like Shri ‘Madan Kolambekar’, Shri ‘ ‘Mahendra Banthia’, Shri ‘Ganesh Atmaram Ganesh Atmaram Mokshe’ etc. used to etc. used to facilitate and purchase lands through through tri-party agreements. The land aggregators he land aggregators/brokers used funds provided by funds provided by the ‘Jai Croporation Group Group’ entities for purchase of the land in their entities for purchase of the land in their name for further transfe name for further transfer to the entities of the Jai Corporation of the Jai Corporation including the assessee company. During the course of search action including the assessee company. During the course of search action including the assessee company. During the course of search action at the premises of Sh at the premises of Shri Madan Kolabekar incriminating material in incriminating material in the form of files of the form of files of purchase of land/management information purchase of land/management information system (MIS) reports etc. were found and seized in physical form as system (MIS) reports etc. were found and seized in physical form as system (MIS) reports etc. were found and seized in physical form as well as soft copy form. well as soft copy form. Statement of Shri Madan Kolabekar was tatement of Shri Madan Kolabekar was recorded on various recorded on various occasions in search and post search occasions in search and post search proceedings, wherein he admitted wherein he admitted of incurring cash expenditure on incurring cash expenditure on behalf of Jai Corporation Corporation entities including the assessee company entities including the assessee company for purchase of land for purchase of land. He admitted that he used to receive . He admitted that he used to receive commissions/brokerage for such commissions/brokerage for such land deal at specified rates. He land deal at specified rates. He also revised his return of income also revised his return of income for corresponding period for corresponding period declaring commission/brokerage income from land deals. During the course commission/brokerage income from land deals. During the course commission/brokerage income from land deals. During the course of search at the premises premises of sh Madan Kolabekar, , Shri Hiren Oza i.e. an employee of Jai i.e. an employee of Jai Corporation Group arrived at the search site arrived at the search site and from whom certain documents in the form of details of from whom certain documents in the form of details of from whom certain documents in the form of details of purchase of properties purchase of properties etc. were found. In his statement recorded n his statement recorded,

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he also admitted the fact of he also admitted the fact of cash expenditure for purchase of cash expenditure for purchase of plot of lands. Though, before the Assessing Officer both these persons have efore the Assessing Officer both these persons have efore the Assessing Officer both these persons have retracted their statement but the Assessing Officer has rejected retracted their statement but the Assessing Office retracted their statement but the Assessing Office their retraction in absence of any evidence of threat or coercion in absence of any evidence of threat or coercion in absence of any evidence of threat or coercion during the statement recorded u/s 132(4) of the Act. In the case of during the statement recorded u/s 132(4) of the Act. In the case of during the statement recorded u/s 132(4) of the Act. In the case of the assessee 12.5% CIDCO plots 12.5% CIDCO plots of land have been purchased have been purchased at ‘Dronagiri’ area. These plots have been commonly called as These plots have been commonly called as These plots have been commonly called as ‘12.5% CIDCO plots’ for the reason that against the acquisition of the land for the reason that against the acquisition of the land for the reason that against the acquisition of the land from the farmers by the CIDCO for amenities like roads, schools from the farmers by the CIDCO for amenities like roads, schools from the farmers by the CIDCO for amenities like roads, schools etc., developed plot of land developed plot of land measuring 12.5% of the land acquired 12.5% of the land acquired, was given to the farmers. Such displaced farmers were called as was given to the farmers. Such displaced farmers was given to the farmers. Such displaced farmers project affected persons affected persons (PAP) and in order to rehabilitate them (PAP) and in order to rehabilitate them Government formulated scheme which called Government formulated scheme which called 12.5 % 12.5 % scheme of CIDCO. The assessee had he assessee had purchased several such such ‘12.5% CIDCO plots’ directly from PAPs from PAPs/farmers for which the initial payment /farmers for which the initial payment was made by the land aggregator and remaining payments were made made by the land aggregator and remaining payment made by the land aggregator and remaining payment by the group entities including the assessee. However, in many by the group entities including the assessee. However, in many by the group entities including the assessee. However, in many other cases such 12.5% CIDCO plots have been cases such 12.5% CIDCO plots have been cases such 12.5% CIDCO plots have been routed through land aggregator like Shri Madan Kolabmekar. Firstly, a tor like Shri Madan Kolabmekar. Firstly, a tripartite tor like Shri Madan Kolabmekar. Firstly, a agreement used to be made among used to be made among him, PAPS/farmers/sellers and /farmers/sellers and CIDCO and then said plot said plots were used to be registered used to be registered in the name of land aggregators or their aggregators or their proprietary concerns s .Subsequently such plots would be transferred by such plots would be transferred by them or their them or their proprietary concerns to several entities of Jai Corporation to several entities of Jai Corporation Group including the Group including the assessee.

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6.1 The assessee during the assessment proceedings claimed t The assessee during the assessment proceedings claimed t The assessee during the assessment proceedings claimed that its transaction with Shri Madan Kolambekar were on ‘principle to its transaction with Shri Madan Kolambekar were on its transaction with Shri Madan Kolambekar were on principle’ basis and he was an independent land aggregator but the basis and he was an independent land aggregator but the basis and he was an independent land aggregator but the Assessing Officer rejected the said contention in view of the Assessing Officer rejected the said contention in view of the Assessing Officer rejected the said contention in view of the observations, firstly, several incriminating documents fou several incriminating documents found during the course of search proved that the Jai the course of search proved that the Jai Corporation Corporation Group through several of its employees exercise several of its employees exercised control over over Shri Madan Kobambekar and his proprietary concern Kobambekar and his proprietary concern, secondly secondly, Shri Madan Kolambekar in his statement on oath u/s 132(4) of the Act admitted Kolambekar in his statement on oath u/s 132(4) of the Act a Kolambekar in his statement on oath u/s 132(4) of the Act a that he used to receive that he used to receive only commission/brokerage on such land only commission/brokerage on such land deals. The Assessing Officer has noted that incriminating evidence deals. The Assessing Officer has noted that incriminating evidence deals. The Assessing Officer has noted that incriminating evidence of unaccounted cash payment to the tune of Rs.40 crores was of unaccounted cash payment to the tune of Rs. of unaccounted cash payment to the tune of Rs. found during the course of search action from the office premises of found during the course of search action from the office p found during the course of search action from the office p Shri Madan Kolambekar Shri Madan Kolambekar at Vashi, Navi Mumbai Navi Mumbai, being status report/MIS report consisting of report/MIS report consisting of ‘Madan Kolambekar Madan Kolambekar purchase of 12.5% CIDCO plots’. The Assessing Officer further ’. The Assessing Officer further . The Assessing Officer further observed that out of total payments made of Rs. out of total payments made of Rs.16974.62 lakhs, a sum 16974.62 lakhs, a sum amounting to Rs.12,97 ing to Rs.12,974.62/- lakhs were appearing lakhs were appearing in the books of accounts of the various entities of the Jai Corporation Group accounts of the various entities of the Jai Corporation accounts of the various entities of the Jai Corporation including the assessee company. Thus a sum of Rs.4,000/- lakhs ( including the assessee company. Thus a sum of Rs.4,000/ including the assessee company. Thus a sum of Rs.4,000/ Rs. 40.00 crores) shown as payment to others was not recorded in shown as payment to others was not recorded in shown as payment to others was not recorded in the books of account the books of account of those entities of the Jai Corporation of those entities of the Jai Corporation Group including assessee company and including assessee company and proprietary concern of Shri Madan proprietary concern of Shri Madan Kolambekar. The Assessing Officer further perused the third Kolambekar. The Assessing Officer further perused the third Kolambekar. The Assessing Officer further perused the third annexure to MIS reports containing details reports containing details of payment payments made to

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various various various parties parties parties under under under the the the head head head ‘development ‘development ‘development charges charges charges of of of Rs.55,34,08,000/-. O . Out of such development charges, ut of such development charges, a noting was found recorded as “ recorded as “as per bank statement” for a sum of Rs. for a sum of Rs. 15,34,08,000/- and another no and another noting being “ difference” “ difference” for the balance of sum Rs.40,00,00,000/ balance of sum Rs.40,00,00,000/-. Therefore, the Assessing Officer . Therefore, the Assessing Officer held this balance sum of Rs.40 crores as nothing but this balance sum of Rs.40 crores as nothing but this balance sum of Rs.40 crores as nothing but unexplained cash expenditure.

6.2 The Assessing Officer during the assessment proceedings The Assessing Officer during the assessment proceedings The Assessing Officer during the assessment proceedings asked the assessee and Shri Madan Kolambekar to furnish year sessee and Shri Madan Kolambekar to furnish year sessee and Shri Madan Kolambekar to furnish year wise, entity wise breakup of unexplained cash expenditure but in entity wise breakup of unexplained cash expenditure but in entity wise breakup of unexplained cash expenditure but in view of no compliance on the part of the view of no compliance on the part of the assessee, he assessee, he allocated such cash expenditure of Rs.40 crores cash expenditure of Rs.40 crores among 4 entities of 4 entities of Jai Corporation Group p on the basis of details filed by sh Madan on the basis of details filed by sh Madan Kolabkar. In the case of the assessee n the case of the assessee, in the year under in the year under consideration on the basis of the details submitted by Shri Madan consideration on the basis of the details submitted by Shri Madan consideration on the basis of the details submitted by Shri Madan Kolambekar, unexplained cash expenditure was found to be unexplained cash expenditure was found to be unexplained cash expenditure was found to be Rs.27,04,00,000/-. Accordingly, . Accordingly, the Assessing Officer the Assessing Officer computed the addition in hands of the assessee. The ground No addition in hands of the assessee. The ground Nos s. 1 to 6 of the present appeal are in respect of the addition of Rs.27,04,00,000/ in respect of the addition of Rs.27,04,00,000/-. in respect of the addition of Rs.27,04,00,000/

6.3 Further, as per the seized document found from the office of as per the seized document found from the office of as per the seized document found from the office of ‘M/s Weldone Real Estat Weldone Real Estate Ltd. Pvt. Ltd’. i.e. another entity of Jai i.e. another entity of Jai Corporation Group, it was found that a sum of Rs.12,23,72,393/ a sum of Rs.12,23,72,393/- was transferred from Iconic Realtors Ltd. i.e. erred from Iconic Realtors Ltd. i.e. the assessee company the assessee company to M/s Deva Realtors for purchase of agricultural land. It was found M/s Deva Realtors for purchase of agricultural land. It was found M/s Deva Realtors for purchase of agricultural land. It was found

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that said amount of Rs.12,23,72,393/ amount of Rs.12,23,72,393/- did not appear in the books did not appear in the books of account of the assessee company. Thus of account of the assessee company. Thus, on the basis of the on the basis of the documents seized from the office of sh Madan Kolambekar and documents seized from the office of sh Madan Kolambekar documents seized from the office of sh Madan Kolambekar M/s Weldone Real Estate Pvt. Ltd. and found from possession of M/s Weldone Real Estate Pvt. Ltd. and found from possession of M/s Weldone Real Estate Pvt. Ltd. and found from possession of Shri Hiren Oza i.e. employee of the Jai Corp. Group who a i.e. employee of the Jai Corp. Group who used to a i.e. employee of the Jai Corp. Group who supervise land transacti land transactions with Shri Madan Kolambekar, t ons with Shri Madan Kolambekar, the Assessing Assessing Assessing Officer Officer Officer concluded concluded concluded that that that the the the sum sum sum aggregating to Rs.30,67,72,393/- was was transferred transferred from from several Jai several Jai Group Group companies including to assessee companies including to assessee company to to Shri Madan Kolambekar for purchase purchase of agriculture land, out of which out of which a sum of Rs.12,23,722,393/- was not appearing in the books of the account was not appearing in the books of the account was not appearing in the books of the account assessee company. Therefore, the Assessing Officer held that said assessee company. Therefore, the Assessing Officer held that said assessee company. Therefore, the Assessing Officer held that said expenditure of Rs.12,23,72,393/ expenditure of Rs.12,23,72,393/- was in the nature of the in the nature of the unexplained expenditure/investment unexplained expenditure/investment of assessee company and assessee company and accordingly, he made addition. The ground No. 7 of the present he made addition. The ground No. 7 of the present he made addition. The ground No. 7 of the present appeal is in relation to this addition of Rs.12,23,72,393/-. appeal is in relation to this addition of Rs.12,23,72,393/ appeal is in relation to this addition of Rs.12,23,72,393/

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premises of Shri Madan Kolambekar and impounded from M/s premises of Shri Madan Kolambekar and impounded from M/s premises of Shri Madan Kolambekar and impounded from M/s Weldone Real Estate Ltd. could be use Real Estate Ltd. could be used as an evidence evidence for making addition in the case of the assessee. However, the Ld. CIT(A) further addition in the case of the assessee. However, the Ld. CIT(A) further addition in the case of the assessee. However, the Ld. CIT(A) further observed that another land aggregator observed that another land aggregator, ‘Shri Dilip Dherai Shri Dilip Dherai’ was also searched during search search on Jai Corporation group and th and the Assessing Officer on the basis of the documents seized from the premises of Officer on the basis of the documents seized from the premises of Officer on the basis of the documents seized from the premises of the Shri Dilip Dherai the Shri Dilip Dherai made addition in the case of 52 in the case of 52 entities/individual of the Jai Corporation ividual of the Jai Corporation group. ‘Shri Dilip Dherai Shri Dilip Dherai’ in his statement recorded u/s 132(4) of the Act admitted that cash in his statement recorded u/s 132(4) of the Act admitted that cash in his statement recorded u/s 132(4) of the Act admitted that cash payment was made by by Jai Corporation group in respect of purchase group in respect of purchase of land and accordingly of land and accordingly, the Assessing Officer made addition u/s the Assessing Officer made addition u/s 69C of the Act in such 52 group cases and 69C of the Act in such 52 group cases and the ld CIT(A) the ld CIT(A) confirmed said addition in those 52 entities. However, the Income-tax said addition in those 52 entities. However, the said addition in those 52 entities. However, the Appellate Tribunal (in short the ‘ Appellate Tribunal (in short the ‘Tribunal’) vide vide its order dated 22.03.2013 deleted the addition u/s 69C of the Act in those cases. 22.03.2013 deleted the addition u/s 69C of the Act in those cases. 22.03.2013 deleted the addition u/s 69C of the Act in those cases. The Department preferred appeal before the Hon’ble High he Department preferred appeal before the Hon’ble High Court in 6 he Department preferred appeal before the Hon’ble High cases out of those 52 cases out of those 52 cases. The Hon’ble Bombay High Bombay High Court in the case of CIT Central v. M/s Lavanya Pvt. Ltd. in ITA No. 72 of 2004 case of CIT Central v. M/s Lavanya Pvt. Ltd. in ITA No. 72 of 2004 case of CIT Central v. M/s Lavanya Pvt. Ltd. in ITA No. 72 of 2004 vide order dated 23.06.2017 upheld the decision of the Tribunal. vide order dated 23.06.2017 upheld the decision of the Tribunal. vide order dated 23.06.2017 upheld the decision of the Tribunal. Further in the case of Further in the case of Krupa Land Ltd. (anothe nother entity of Jai Corporation), similar Corporation), similar addition u/s 69C of the Act was made which addition u/s 69C of the Act was made which was deleted by the Ld. CIT(A) and said deletion has been upheld by was deleted by the Ld. CIT(A) and said deletion has been upheld by was deleted by the Ld. CIT(A) and said deletion has been upheld by the Tribunal in ITA No. 604/Mum/2012 in ITA No. 604/Mum/2012 . Therefore, the Ld. CIT(A) . Therefore, the Ld. CIT(A) relying on the decision of the Co relying on the decision of the Co-ordinate Bench of the Tribunal in Bench of the Tribunal in the case of Krupa Land Ltd. the case of Krupa Land Ltd.(supra) and decision of the Hon’ble and decision of the Hon’ble

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Jurisdictional High Court in the case of Jurisdictional High Court in the case of M/s Lavanya Pvt. Ltd M/s Lavanya Pvt. Ltd. (supra), deleted the addition of Rs.27,04,00,000/ deleted the addition of Rs.27,04,00,000/- made u/s 69C of made u/s 69C of the Act on account of unexplained exp the Act on account of unexplained expenditure relating to purchase enditure relating to purchase of 12.5% CIDCO plots at of 12.5% CIDCO plots at ‘Dronagiri’ area.

7.1. On the issue of addition of Rs.12,23,72,293/ issue of addition of Rs.12,23,72,293/ issue of addition of Rs.12,23,72,293/- in respect of unexplained cash payment made to Shri Madan Kolambekar for unexplained cash payment made to Shri Madan Kolambekar for unexplained cash payment made to Shri Madan Kolambekar for purchase of agriculture land purchase of agriculture land, the Ld. CIT(A) observed that the Ld. CIT(A) observed that Assessing Officer at para 13.21 of the assessment order had Assessing Officer at para 13.21 of the assessment order had Assessing Officer at para 13.21 of the assessment order had concluded that all the agriculture land transaction were actually concluded that all the agriculture land transaction were actually concluded that all the agriculture land transaction were actually made by M/s Jai Laxmi i Laxmi Realties Pvt. Ltd. Therefore, the Ld. CIT(A) Realties Pvt. Ltd. Therefore, the Ld. CIT(A) was of the view that was of the view that once the Assessing Officer has added the same Assessing Officer has added the same amount in the hand of amount in the hand of M/s Jailaxmi Realty Pvt. Ltd. for assessment Jailaxmi Realty Pvt. Ltd. for assessment year 2008-09, the addition in the hands of the assessee 09, the addition in the hands of the assessee 09, the addition in the hands of the assessee would be double addition and therefore, and therefore, the Ld. CIT(A) deleted said addition the Ld. CIT(A) deleted said addition of Rs.12,23,72,393/- - in the hands of the assessee.

7.2 Before us, the Ld. DR submitted that the Ld. CIT(A) failed to Before us, the Ld. DR submitted that the Ld. CIT(A) failed to Before us, the Ld. DR submitted that the Ld. CIT(A) failed to appreciate following facts: appreciate following facts:

 Shri Madan Kolambekar, in his statement recorded on oath Shri Madan Kolambekar, in his statement recorded on oath Shri Madan Kolambekar, in his statement recorded on oath u/s. 132(4) of the Act had admitted to have received u/s. 132(4) of the Act had admitted to have received u/s. 132(4) of the Act had admitted to have received unaccounted receipt unaccounted receipts from and made unaccounted cash s from and made unaccounted cash expenditure on behalf of the Jai Corp Group; expenditure on behalf of the Jai Corp Group;  Shri Madan Kolambekar, received commission/brokerage for Shri Madan Kolambekar, received commission/brokerage for Shri Madan Kolambekar, received commission/brokerage for agricultural land deals with the assessee company and the agricultural land deals with the assessee company and the agricultural land deals with the assessee company and the same was disclosed during the assessment proceedings, by same was disclosed during the assessment proceedings, by same was disclosed during the assessment proceedings, by filing a revised ITR; a revised ITR;  The Ld. CIT(A) in the impugned order has held that the The Ld. CIT(A) in the impugned order has held that the The Ld. CIT(A) in the impugned order has held that the transactions of the assessee company with Shri Madan transactions of the assessee company with Shri Madan transactions of the assessee company with Shri Madan Kolambekar were not on 'principal to principal' basis; Kolambekar were not on 'principal to principal' basis; Kolambekar were not on 'principal to principal' basis;  The agricultural land transactions actually took place in the The agricultural land transactions actually took place in the The agricultural land transactions actually took place in the hands of the as hands of the assessee company (through its nominated sessee company (through its nominated

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farmers), after making the said unaccounted/unexplained farmers), after making the said unaccounted/unexplained farmers), after making the said unaccounted/unexplained payment; payment;  The Ld.CIT(A) in the impugned order has held that the The Ld.CIT(A) in the impugned order has held that the The Ld.CIT(A) in the impugned order has held that the documents documents documents seized seized seized from from from the the the premises premises premises of of of Shri Shri Shri Madan Madan Madan Kolambekar and impounded from the premises of M/s. Kolambekar and impounded from the premises of M/s. Kolambekar and impounded from the premises of M/s. Weldone Real Estate Limited can be used as evidence against Weldone Real Estate Limited can be used as evidence against Weldone Real Estate Limited can be used as evidence against the assessee; the assessee;  The Ld.CITA) in the impugned order has upheld the action of The Ld.CITA) in the impugned order has upheld the action of The Ld.CITA) in the impugned order has upheld the action of the AO to reject the retraction affidavit of Shri Madan the AO to reject the retraction affidavit of Shri Madan the AO to reject the retraction affidavit of Shri Madan Kolambekar and Shri Hiren Oza; Kolambekar and Shri Hiren Oza;  The plethora of evidences found du The plethora of evidences found during the course of search, ring the course of search, including those found from the premises of the Jai Corp group including those found from the premises of the Jai Corp group including those found from the premises of the Jai Corp group entities entities entities and and and the the the assessee assessee assessee Company, Company, Company, corroborate corroborate corroborate the the the statements recorded on oath of various persons, substantiate statements recorded on oath of various persons, substantiate statements recorded on oath of various persons, substantiate the the the fact fact fact that that that the the the assessee assessee assessee company company company had had had made made made unaccounted unaccounted/unexplained payments. 7.3 Further, the DR submitted that against the decision of the Further, the DR submitted that against the decision of the Further, the DR submitted that against the decision of the Tribunal in the case of Krupa Land Ltd. (supra) Tribunal in the case of Krupa Land Ltd. (supra), the Department the Department has preferred further appeal before the Hon’ble Bombay High Court has preferred further appeal before the Hon’ble Bombay High Court has preferred further appeal before the Hon’ble Bombay High Court and which is pending and therefore the d and which is pending and therefore the decision of the Ld. CIT(A) ecision of the Ld. CIT(A) might not be relied upon. On the issue of addition of might not be relied upon. On the issue of addition of might not be relied upon. On the issue of addition of Rs.12,23,72,393/- the Ld. DR relied on the order of the lower the Ld. DR relied on the order of the lower the Ld. DR relied on the order of the lower authorities.

7.4 On the other hand, the Ld. counsel for the assessee relied on On the other hand, the Ld. counsel for the assessee relied on On the other hand, the Ld. counsel for the assessee relied on the order of the Ld. CIT(A) and sub the order of the Ld. CIT(A) and submitted that in in view of binding precedent precedent of of the the Co Co-ordinate ordinate Bench Bench as as well well as as Hon’ble Hon’ble Jurisdictional High Court Jurisdictional High Court followed , the order of the Ld. CIT(A) the order of the Ld. CIT(A) is justified. On the issue of addition of Rs.12,23,72,393/- the Ld. justified. On the issue of addition of Rs.12,23,72,393/ justified. On the issue of addition of Rs.12,23,72,393/ counsel referred to the decision of th counsel referred to the decision of the Tribunal in ITA No. e Tribunal in ITA No. 1425/Mum/2022 1425/Mum/2022 1425/Mum/2022 along along along with with with CO CO CO No. No. No. 103/Mum/2022 103/Mum/2022 103/Mum/2022 for for for assessment year 2008 assessment year 2008-09 in the case of Jailaxmi Realty and 09 in the case of Jailaxmi Realty and Developers Ltd. and and submitted that the Tribunal has deleted the submitted that the Tribunal has deleted the

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said addition following following finding of the Tribunal in the case of finding of the Tribunal in the case of Krupa Land (supra) and decision of the Hon’ble Jurisdictional High Court Land (supra) and decision of the Hon’ble Jurisdictional High Court Land (supra) and decision of the Hon’ble Jurisdictional High Court in the group cases of the assessee. in the group cases of the assessee.

7.5 We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the relevant material on record. As far as ground No relevant material on record. As far as ground Nos s. 1 to 6 of the appeal of the Revenue are concerned Revenue are concerned, the facts pointed out by us in the facts pointed out by us in brief above have not been disputed by either of the parties. The only brief above have not been disputed by either of the parties. The only brief above have not been disputed by either of the parties. The only objection of the Departmental Representative is that Revenue has objection of the Departmental Representative is that Revenue has objection of the Departmental Representative is that Revenue has not accepted the decision of the not accepted the decision of the Hon’ble Bombay High Court Hon’ble Bombay High Court in the case of Lavanya Pvt. Ltd. (supra) and decision of the Co-ordinate case of Lavanya Pvt. Ltd. (supra) and decision of the Co case of Lavanya Pvt. Ltd. (supra) and decision of the Co Bench of the Tribunal in the case of Krupa Land Ltd.(supra) Bench of the Tribunal in the case of Krupa Land Ltd. Bench of the Tribunal in the case of Krupa Land Ltd. ,therefore, appeal has been preferred before the Tribunal. In our therefore, appeal has been preferred before the Tribunal. In our therefore, appeal has been preferred before the Tribunal. In our opinion though the Revenue might not have finally accepted the opinion though the Revenue might not have finally accepted the opinion though the Revenue might not have finally accepted the decision of the Co- -ordinate Bench of the Tribunal or Hon’ble ordinate Bench of the Tribunal or Hon’ble Jurisdictional High Court Jurisdictional High Court, but we are bound by the said decision of by the said decision of the Co-ordinate Bench of the Tribunal as well as decision of the ordinate Bench of the Tribunal as well as decision of the ordinate Bench of the Tribunal as well as decision of the Hon’ble Jurisdictional High Court being Hon’ble Jurisdictional High Court being a binding precedent i a binding precedent in identical set of facts and circumstances. identical set of facts and circumstances. Therefore Therefore, respectfully following the finding of the Co following the finding of the Co-ordinate Bench of the Tribunal in the ordinate Bench of the Tribunal in the case of Krupa Land Ltd. (supra) case of Krupa Land Ltd. (supra) and decision of the Hon’ble decision of the Hon’ble Jurisdictional High Court in the case of Lavanya Pvt. Ltd. (supra), Jurisdictional High Court in the case of Lavanya Pvt. Ltd. Jurisdictional High Court in the case of Lavanya Pvt. Ltd. we uphold the finding of the Ld. CIT(A) on the issue in dispute. The we uphold the finding of the Ld. CIT(A) on the issue in dispute. The we uphold the finding of the Ld. CIT(A) on the issue in dispute. The ground Nos. 1 to 6 of the appeal of the Revenue are accordingly . 1 to 6 of the appeal of the Revenue are accordingly . 1 to 6 of the appeal of the Revenue are accordingly dismissed.

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“31. We observe from the above decision that the fact in the present We observe from the above decision that the fact in the present We observe from the above decision that the fact in the present case is similar to the case of Krupa Land Ltd. (supra) as the present case is similar to the case of Krupa Land Ltd. (supra) as the present case is similar to the case of Krupa Land Ltd. (supra) as the present proceedings also arise from the same search. Instead of the statement eedings also arise from the same search. Instead of the statement eedings also arise from the same search. Instead of the statement of Mr. Dilip Dheria, the Revenue is relying on the statement of Mr. of Mr. Dilip Dheria, the Revenue is relying on the statement of Mr. of Mr. Dilip Dheria, the Revenue is relying on the statement of Mr. Madan Kolambekar in the present proceedings. However, in the present Madan Kolambekar in the present proceedings. However, in the present Madan Kolambekar in the present proceedings. However, in the present case also, Mr. Madan Kolambekar has withdrawn his sta case also, Mr. Madan Kolambekar has withdrawn his sta case also, Mr. Madan Kolambekar has withdrawn his statement and other than loose papers, no further material has been brought on record other than loose papers, no further material has been brought on record other than loose papers, no further material has been brought on record by the Revenue to justify the addition in the hands of the assessee. The by the Revenue to justify the addition in the hands of the assessee. The by the Revenue to justify the addition in the hands of the assessee. The Revenue has not supported the allegation by any material showing Revenue has not supported the allegation by any material showing Revenue has not supported the allegation by any material showing cash passing hands. Further, the Re cash passing hands. Further, the Revenue authorities have not venue authorities have not enquired with the vendors or brought any statement on record of the enquired with the vendors or brought any statement on record of the enquired with the vendors or brought any statement on record of the vendors to substantiate the claim of the Revenue that extra cash has substantiate the claim of the Revenue that extra cash has substantiate the claim of the Revenue that extra cash has actually change hands. In view of the above facts, we are inclined to actually change hands. In view of the above facts, we are inclined to actually change hands. In view of the above facts, we are inclined to accept the findings of accept the findings of the Ld.CIT(A), who was justified in relying on the the Ld.CIT(A), who was justified in relying on the decision of the coordinate bench of the Tribunal in the case of Krupa decision of the coordinate bench of the Tribunal in the case of Krupa decision of the coordinate bench of the Tribunal in the case of Krupa Land Ltd. (supra). Land Ltd. (supra). 32. Respectfully following the above said decision of the Hon'ble High 32. Respectfully following the above said decision of the Hon'ble High 32. Respectfully following the above said decision of the Hon'ble High Court and Coordinate Bench, since these deci Court and Coordinate Bench, since these decisions are binding sions are binding decisions for all the group concerns of Jai Corp Group, as the facts in all for all the group concerns of Jai Corp Group, as the facts in all for all the group concerns of Jai Corp Group, as the facts in all these group concerns are similar. Accordingly, we do not find any these group concerns are similar. Accordingly, we do not find any these group concerns are similar. Accordingly, we do not find any reason to interfere with the findings of the Ld.CIT(A) by deleting the reason to interfere with the findings of the Ld.CIT(A) by deleting the reason to interfere with the findings of the Ld.CIT(A) by deleting the additions proposed by the additions proposed by the Assessing Officer u/s. 69C of the Act. Assessing Officer u/s. 69C of the Act. Accordingly, various grounds raised by the revenue are dismissed. Accordingly, various grounds raised by the revenue are dismissed. Accordingly, various grounds raised by the revenue are dismissed. Since we have decided the main appeal against the revenue the Since we have decided the main appeal against the revenue the Since we have decided the main appeal against the revenue the relevant cross objection filed by the assessee is also dismissed. relevant cross objection filed by the assessee is also dismissed. relevant cross objection filed by the assessee is also dismissed.” 8.1 Since the additi Since the addition has been made in the case of the on has been made in the case of the assessee on the basis of the very same documents, the basis of the very same documents, which was the the basis of the very same documents, basis for the addition basis for the addition in the case of M/s Jailaxmai Realty and M/s Jailaxmai Realty and Developers Ltd. (supra) Developers Ltd. (supra), therefore, following the finding of the Co therefore, following the finding of the Co- ordinate Bench of the Tri ordinate Bench of the Tribunal in the case of Jailaxmi Real bunal in the case of Jailaxmi Realty and Developers Ltd. (supra), w Developers Ltd. (supra), we uphold the finding of the Ld. CIT(A) on e uphold the finding of the Ld. CIT(A) on the issue in dispute. The ground No. 7 of the appeal of the Revenue the issue in dispute. The ground No. 7 of the appeal of the Revenue the issue in dispute. The ground No. 7 of the appeal of the Revenue

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is accordingly dismissed. accordingly dismissed. The Ground No. 8 being general in nature general in nature, same is dismissed as infructuous. missed as infructuous.

Order pronounced in the open Court on nounced in the open Court on 31/01/2024. /01/2024. Sd/ Sd/- Sd/ Sd/- (SANDEEP SINGH KARHAIL SANDEEP SINGH KARHAIL) (OM PRAKASH KANT OM PRAKASH KANT) JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 31/01/2024 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, BY ORDER, //True Copy// (Assistant Registrar) (Assistant Registrar) ITAT, Mumbai ITAT, Mumbai