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2021 (1) TMI 322 - ITAT MUMBAIReopening of assessment u/s 147 or assessment u/s. 153C - unexplained cash credit u/s 68 - HELD THAT:- CIT(A) has erred in overlooking the amendment brought in by Finance Act, 2015 in Sec.153C and carried away by the fact that the seized document must belong to the assessee for application of Sec.153C. However, as already noted the said words stood replaced by words belongs or belong to. The seized document, in the present case, undisputedly pertains to the assessee and the same form the very basis of making additions in the hands of the assessee. In view of the foregoing, we would hold that the provisions of Sec.153C were applicable to the facts of the case and Ld.AO was not justified in framing the assessment u/s 143(3) r.w.s. 147. The failure to do would vitiate the assessment proceedings. Hence, we are inclined to cancel the assessment framed u/s 143(3) r.w.s. 147. Accordingly, the impugned additions would not survive. Additions made u/s 68 which is also not applicable to the facts of the case since credit of sum in the books of accounts being maintained by the assessee is sine qua non to trigger the provisions of Sec.68. However, going by the factual matrix, it is quite clear that there was no credit entry in assessee’s’ books of accounts rather it was the Ld. AO’s allegation that the assessee received on-money on sale of flats. There was no sum found credited in assessee’s books and therefore, the provisions of Sec.68 could not have been invoked against the assessee. None of the parties have admitted to have paid or received any on-money which is evident from cross-examination proceedings. The two buyers denied having paid any cash while purchasing the flat. The assessee denied having received the on-money. Shri Pankaj Goshar was not authorised to undertake financial transactions on behalf of the assessee. He also denied having undertaken any financial transactions with Manania family. Therefore, the whole basis of making addition is mere dumb document found at the premises of a third party, without there being any corroborative evidences to support the same. No much weightage could be attached to the said document in the absence of any cogent material supporting the entries therein. - Decided in favour of assessee.
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