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2022 (1) TMI 962 - ITAT INDOREAddition of cash payment by the assessee to the sellers of the land - unexplained cash/on-money - CIT(A) deleted the addition observing that merely on the basis of admission of joint seller Shri Manohar Patel, it cannot be concluded that the assessee had paid the “cash/on-money” - as per CIT-A in cases of allegation of “on-money”, burden to prove such allegations lies on the Assessing Officer and in the instant case, there are no evidence on record except admission by joint seller to prove the same - HELD THAT:- We find that ld. CIT-DR except placing reliance upon the orders of the Assessing Officer could not bring any contrary material on record to controvert the finding of the ld. CIT(A). We find that the assessee had categorically denied to have paid any alleged “cash/on–money” to the sellers either individually or as director on behalf of company submitting that the purchase transaction was executed at value mentioned in the purchase deed and no payment whatsoever beyond this sum was given. We find that the onus of proof was also discharged by the assessee by submission of various details and documentary evidences during the assessment proceedings substantiating the said fact. AO merely placed reliance on the Statements of Shri Manohar Patel but failed to appreciate the fact that there was no tangible evidence brought on record to substantiate the allegations made and no independent inquiries were conducted by the Ld. AO either u/s 131 or 133(6) to bring out correct facts on record rather sole reliance was made on the information given by DDIT (Inv.)-II, Indore. - there are no evidences on record to establish the market value of land being more than actual sale consideration. Thus, the alleged additions made by the ld. Assessing Officer are purely based on suspicion, conjectures and surmises. We are of the view that mere admission of seller of acceptance of “cash/on-money” cannot be considered as tangible material in the absence of any other corroborative material. See SHREE PARSHWANATH CONSTRUCTION VERSUS ITO-2 (1) , UJJAIN [2014 (7) TMI 1290 - ITAT INDORE] We also find that during the course of assessment proceedings, the assessee had requested the Ld. AO for opportunity of cross-examination with the sellers on whose statement’s reliance was placed but the same was ignored by the Ld. AO leading to violations of principles of Natural Justice which is, in our view, unjustified in view of the judgment of ANDAMAN TIMBER INDUSTRIES [2015 (10) TMI 442 - SUPREME COURT] wherein as examined the omission on the part of the AO not providing opportunity to assessee to cross-examine of two witnesses and held that it was a serious flaw and since the statements of those witnesses were made the basis of the impugned order, this omission on the part of AO makes the order nullity inasmuch as it amounted to violation of Principles of natural justice. Thus addition made on account of alleged payment of cash/on-money is totally baseless and erroneous - Decided in favour of assessee.
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