TMI Blog2015 (7) TMI 1253X X X X Extracts X X X X X X X X Extracts X X X X ..... r brought on record by the Revenue. More over the explanation given by the assessee has been straightaway rejected by the AO. Hence, the additions solely on the basis of suspicion, how strong it may be, in our view, are not sustainable in the eyes of law. Additions in this case also under section 69B of the Act are not warranted - ITA No.2710/M/2013 - - - Dated:- 17-7-2015 - SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER Assessee by : Shri Vijay Mehta, Ms. Poonam Somaiya A.R. Revenue by : Shri Shashi Bhushan Prasad, D.R. O R D E R Per Sanjay Garg, Judicial Member: The above titled appeal relevant to assessment year 2009-10 has been preferred by the assessee against the orders of the Commissioner of Income Tax (Appeals) [(hereinafter referred to as the CIT(A)] dated 14.01.2013. The assessee has taken the following grounds of appeal: Ground No. 1: On the facts and circumstances of the case and in law, the Hon'ble CIT (A) erred in not admitting the additional ground raised by the appellant. Ground No. 2: On the facts and circumstances of the case and in law, the Hon'ble CIT (A) erred in rejecting the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009- 10 decided vide common order dated 17.04.2015. We have gone through the order (supra). The issue in the said case was relating to another 20 vacant flats in the same complex namely Central Garden Complex building. The Tribunal while considering the identical issue has made the following observations: 12. The Ld. A.R. of the assessee has contended that it was not a case where the flats were actually let out and therefore there was not any suspicion, doubt or dispute as to the rate of rent which might have been actually received by the assessee. He has contended that in this case, the flats were admittedly vacant and therefore the deemed ALV was rightly offered as per the municipal rateable value. He has relied upon the decision of the co-ordinate bench of the Tribunal in the case of Shri Anil Kashiprasad Murarka vs. ACIT ITA No.5514/M/2012 decided on 17.12.2014. We have gone through the said decision. The relevant finding of the Tribunal has been given in para 5 of the said order, which for the sake of convenience is reproduced as under: We have considered rival contentions and found that the issue is covered by the decision of the Hon'ble Bombay High Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made in respect of the said land deals. In the case of the assessee, the AO held that the assessee had made unaccounted payments in cash of ₹ 2,46,69,000/- The assessee contended that the Part B payments were not in relation to the purchase of the land but the same denote the balance towards consideration payable for getting necessary approvals for converting the land from agricultural to non-agriculture, which was subject to the above stated works done and that the cheques of ₹ 230 lakhs given for the said purpose on behalf of the assessee to the brokers/vendors of the land were never enchased by them since they have failed to do the promised act. However the AO rejected the above contention of the assessee and made the addition of the said amount into the income of the assessee under section 69B of the Act. Aggrieved by the order of the AO, the assessee preferred appeal before the Ld. CIT(A). 7. The Ld. CIT(A) also did not agree with the contentions/explanations given by the assessee in relation to the figures mentioned in Part B of the impounded documents. He therefore upheld the additions made by the AO in this respect. Aggrieved by the order of the Ld. CIT(A), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n almost similar facts and circumstances has deleted the additions made by the AO. He has further contended that the entire addition has been made merely on the basis of suspicion which was based on the strength of loose papers found during the search action, which is not sustainable in the eyes of law. The Ld. D.R. on the other has relied upon the findings of the lower authorities and submitted that the loose papers found during the search action were self explanatory proving that the Part B payment was made in cash on account of purchase of lands. He has strongly relied upon the loose paper sheet the contents of which have been discussed in para 4.2.1 of the Assesment order and further upon the contents of e mail discussed by the AO in para 4.6.2 of his order. 9. We have considered the rival submissions. We have also gone through the case laws relied upon by the assessee. We find that in almost identical facts and circumstances, the Tribunal in the case of father of the assessee Sh. Anand Jain, (Supra), while considering and relying upon the other decisions rendered by the Tribunal in the cases of the Group Companies of Jai Corp. Group., has held that the additions were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this admission, it cannot be said that the assessee has incurred certain expenditure over and above what has been recorded in its books of account. We find that the ultimate conclusions drawn by the AO and the Ld. CIT(A) have been reached merely on the entries found on loose sheet of papers for which Shri Dilip Dherai has stated that they are only estimats / budgetary figures. However, the allegations made by the lower authorities are not supported by actual cash passing hands. The entire additions are based on the seized documents and no other material has been adverted to and which could conclusively show that the huge amount of the magnitude mentioned in the seized documents travelled from, one side to the other. The Revenue authorities have not brought a single statement on record of the vendors of land in different villages. None of the seller has been examined to substantiate the claim of the Revenue that extra cash has actually changed hands. 24. Our view is fortified by the decision of the Delhi High Court in the case of Malik Brothers Pvt. Ltd. Vs CIT 162 Taxmann 43 which is relied upon by the Ld. DR. In that case, the assessee purchased the property allegedly for S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts quantum , over and above the figure booked in the records and accounts changed hands between the parties, no addition could therefore be made u/s. 69C of the Act to the income of the assessee. Considering the entire facts brought on record, we have no hesitation to hold that even on merits, no addition could be sustained. 26. Since we have allowed the issue in the case of the present assessee on both counts i.e. on legal issue and on merit and the issues involved in all other appeals of other assessees are similar and identical, though quantum may differ, for similar reasons, we quash the assessments and delete the additions on merit as well as on point of law in all other cases also. 7. A perusal of the above findings of the Tribunal in the case of related concerns of the assessees involving identical facts and issues reveals that the Tribunal has given a categorical finding that the requirement of section 69C is that an expenditure has been found to have been incurred by an assessee in any financial year for which he gives no explanation about the source thereof, then the addition can be made under section 69C in such circumstances. The Tribunal has observed that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y extra cash other than the sale consideration as recorded in the deed had changed hands. No statement of the sellers of the land had been recorded. No other corroborative evidence has been produced on the file by the Revenue Authorities to substantiate their allegation. The addition in this case has been made on the basis of the entries in the loose paper found during the search action, which at the most can be considered to have raised a suspicion about the transfer of money other than the sale consideration, but the suspicion itself and solely cannot be held to be a justifiable ground for making the additions, especially in the absence of any corroborative evidence. Except the loose papers in question no evidence, what to say of any direct or corroborative evidence, even no circumstantial evidence has been detected or brought on record by the Revenue. Hence, the additions solely on the basis of suspicion, how strong it may be, in our view, are not sustainable in the eyes of law. Moreover, the facts of the present case are identical to that of the other group concerns and in view of the decision of the Tribunal dated 22.03.2013 (supra) the additions in this case under section 69B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the e-mail dated 8.6.2008, it has been stated that Part A payment is to be paid whereas the Part B has been stated to be already paid. The dates of payments have been mentioned to be 4th July, 7th July 17th July in case of Jitubhai and 22 July and 23 July in case of Firoza. If as per the document dated 8.6.2008, the alleged payment has already been made in the month of July, then it must pertain to July month of any previous year, may be July 2007 or July 2006 or any other previous year, but in no case it can relate to future date i.e. July 2008. But this is not the case of the revenue. The case of the revenue is that the unaccounted cash has been paid in the AY 2008-09. The above dates written in the email belie the entire case of the revenue. Under the circumstances even if we consider the above email, the additions can not be made in the AY 2009-10. More over there is no matching of the figures written on the email with that of loose paper. The case of the AO is that the figures are approximate. In our view, when a deal is struck, the figures are not generally written in approximate. Even if written on approximate basis, these should match with each of the document i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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