TMI Blog2017 (2) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... o controvert or rebut the findings recorded by the learned CIT (A). Moreover, there are no reason for us to deviate from the findings recorded by the learned CIT (A). - Decided against revenue. - I.T.A. No. 3619/Mum/2013, I.T.A. No. 3618/Mum/2013 - - - Dated:- 15-2-2017 - Shri R. C. Sharma, AM And Shri Sandeep Gosain, JM Appellant by : Ms Pooja Swaroop Respondent by : Shri B. V. Javeri ORDER Per Sandeep Gosain, Judicial Member The present two appeals have been filed by the revenue against the order of Commissioner of Income Tax (Appeals)-11, Mumbai and dated 25.02.2013 and 19.03.2013 respectively for A.Y. 2004-05 on the grounds of appeal mentioned herein below. 2. Since the issues raised in these two appeals are identical, except for the name of respondents, therefore, for the sake of convenience, these appeals are clubbed, heard and disposed of by this consolidated order. 3. First of all, we take up Revenue s appeal in ITA No. 3619/Mum/2013 for assessment year 2004-05. The grounds of appeal are mentioned herein below:- 1. Whether on the facts and the circumstances of the case and in law, the id. CIT(A) was correct in deleting the addition made u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present common order. 8. The Ld. DR appearing on behalf of the revenue relied upon the orders passed by the AO u/s 143(3) r.w.s 147 of the Income Tax Act and submitted that the assessee in the previous year relevant to assessment year under consideration jointly alongwith spouse booked a flat for total consideration of Rs,2.37,52,200/- as per the agreement. 'The flat was booked with M/s Layer Export Pvt. Ltd. who were constructing the building named LEGEND , at Malabar Hill, Walkeshwar, Mumbai - 400006. The assessee booked flat No. 14 admeasuring 145 Sq. Mt. equivalent to 1565.73 sq.ft. carpet area. It was further submitted by Ld. DR that subsequent to the booking of flat as mentioned above, an action was taken u/s 132 of the Act on 15.03.2008 on Bharat Shah group of cases. M/s Layer Export Pvt. Ltd. being a company of this group was also covered u/s 132(1) of the Act and during the course of Search and Seizure action certain documents were seized and as per the documents, the booking of the flat in the building Legend, M/s Layer Export Pvt. Ltd. were charging purchased consideration in two forms being cheque and cash. Ld. DR further submitted that the cash element attri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were also provided to the Assessee for reply and therefore it shows that Ld. CIT(A) has also considered the detailed submissions filed by the assessee on 11.02.13 and also taken into consideration the remand report filed by the AO. The Ld. CIT(A) has dealt with this ground in para No.4.8 to 4.13 of his order. The operative portion is reproduced below:- 4.8 Submission of the Ld. AR alongwith remand report of the AO and the facts of the case has been. considered. Mismatch in the area of fiat as per the sheet and as per the agreement is evident. The submission of the AO that sales of flat are made on the basis of super built up area which is about 35 - 40% higher than the carpet area also do not lead to conclusion that said document relates to the assessee because carpet area of the flat is 1565.75 sq.ft. and therefore, super built up area being 40% higher than the carpet area would be 2192.05 sq.ft. whereas the area mentioned in the paper is 2550 sq.ft. If it is considered that super built up area is about 40% higher than the built up area, still the built up area would be 2630.46 sq.ft. But it would be 68% higher than the carpet area which appears ridiculous. 4.9 Secondly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er passed by Hon ble Tribunal and after hearing the arguments of both the parties, we have noticed on page No. 12 in para no. 27 in the order of Hon ble ITAT in ITA No. 3019, 3020, 3021, 2985 2986/Mum/11 there is a chart which contains summary of yearwise receipts of amount and also contains the name of assessee at serial no. 3. This case pertains to the builder where under the same search and similar additions were made on the basis of same loose sheets as were made in the case of assessee and while deleting the additions, the Coordinate Bench of Hon ble ITAT has decided this issue in favour of assessee. Further the similar additions were deleted in assessee s own case for AY 2007-08. The Hon ble ITAT while deciding the revenue s appeal in ITA No. 3361/Mum/14 in para 6 at page 25 has upheld the order of Ld. CIT(A) who deleted the additions. The operative portion of Hon ble ITAT is reproduced below:- 6. We notice that the Ld C1T(A) has made comprehensive analysis of the facts prevailing in the instant case and also appreciated the various judicial pronouncements on the impugned issue and accordingly taken the decision by applying the case law on the facts of the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasoned order based on various judicial pronouncements and the same does not call for any inference. From the cogent reading of order passed by Ld. CIT(A) in this case and while taking into consideration the orders of Hon ble ITAT in ITA No. 3019, 3020, 3021, 2985 2986/Mum/11 and 3361/Mum/14, we are of the considered view that Ld. CIT(A) after considering the material placed on record as well as appreciating the various judicial pronouncement on the impugned issue had accordingly taken the decision by applying the law on the facts of the instant case. We have further noticed that the basis for making the impugned additions in the present case is the loose sheets found during the course of search conduct on the Bharat Shah Group. We have also noticed that a very important point that the said loose papers does not contain the name of the assessee, it was undated document and does not bear signature of anyone. Another important point is that both the purchaser as well as seller has denied the contents of the said document. We have further noted that Ld. CIT(A) has rightly considered that as per the details of payment furnished vide page No. 1 of the paper book, total cheque p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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