TMI Blog2013 (12) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... AM :- This appeal filed by the assessee is directed against the order dated 29-03-2012 of the CIT(A)-II, Pune relating to Assessment Year 2008-09. 2. Addition of Rs.2,39,24,910 u/s.69A made by the Assessing Officer and confirmed by the CIT(A) is the only issue in the grounds raised by the assessee in this appeal. 3. Facts of the case, in brief, are that the assessee is a partnership firm engaged in the business activity of Promoter and Builder. It filed its return of income on 17-07-2008 declaring total income of Rs.24,910. The Investigation Wing of Mumbai and Pune had carried out a search and survey at the business premises of Marvel group of Pune and in the business premises of Sri Pandoo P. Naig, one of the directors of Marvel Realtors and Developers Ltd. Pune (in short 'MRDL'). From the documents impounded it was found that M/s. Nandan Associates, the assessee, had received Rs.2.39 crores in cash from Marvel group. To verify this transaction, a survey u/s.133A was carried out at the office premises of the assessee. The partner of the assessee firm Sri Shamkant Kotkar in his statement recorded on oath had stated that the said deal with Marvel group was cancelled and the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by MRDL are faulty. It was submitted that although the assessee had refunded the amount of Rs.1.61 crores by Cheque No.368738 dated 11-06-07 drawn on Bank of Maharastra, the said entry is not appearing in the books of MRDL. Therefore, the cash payments recorded by MRDL which are not appearing in the books accounts of the assessee cannot be the basis for addition in the hands of the assessee. 5.1. Referring to the reply given by Mr. Pandoo P. Naig recorded during the course of survey it was submitted that he had never admitted that such cash has been paid to the assessee. It was argued that whenever any such cash transaction takes places the same is undertaken only and only when the deal takes place. However, in the instant case, since the deal was cancelled, there was no possibility of any cash transaction. It was further argued that survey of the premises of the assessee was a simultaneous action when the search took place at the premises of the said party. Had any cash transactions taken place in realty some evidence would have been found by the Income Tax authorities at the premises of the assessee. Since no agreement/MOU etc was entered into and since no incriminating evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about above points. However, the Assessing Officer made wrong inference from the above statement and concluded that Mr. Pandoo P. Naig had not denied the transaction. He submitted that the Assessing Officer did not bother to examine the other directors or call for any explanation from the said company. He submitted that when the assessee has denied to have received any cash from MRDL and since the deal was cancelled and the amount of Rs.1.61 crores received from MRDL was refunded to them and since the other party had not categorically stated to have paid any cash to the assessee, therefore, under these circumstances, no addition u/s.69A is called for. 7.1. In his alternate contention he submitted that since search took place in the premises of MRDL and the incriminating documents relating to the assessee were found the assessment should have been completed u/s.153A/153C and not u/s.143(3). Therefore, the addition made by the Assessing Officer and sustained by the CIT(A) should be deleted. Referring to the provisions of section 69A he submitted that the same speaks of unexplained money etc. which the assessee is found to be owner in any financial year and which is not recorded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders of the Assessing Officer and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. There is no dispute to the fact that during the course of search/survey at the business premises of Marvel Group certain documents containing payment of Rs.2.39 crores in cash and Rs.1.61 crores in cheque were found to have been paid to the assessee. There is also no dispute to the fact that the assessee in his statement recorded during the survey proceedings had denied to have received any cash as on- money from the Marvel group. There is also no dispute to the fact that the director of Marvel group Mr. Pandoo P. Naig in his reply to Question No.47, which was recorded u/s.131 on 09- 05-2005, had stated that the affairs of the company are not looked after by him. It was further stated that the books of accounts of the company are maintained at Pune by the other directors and they can only comment about the cash payments, the details of which were found during the course of survey. We find the Assessing Officer in the instant case has not examined the other directors of the MRDL who were responsible for maintaining the books ..... X X X X Extracts X X X X X X X X Extracts X X X X
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