TMI Blog2020 (3) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... that cash was received by the assessee. In the absence of any such incriminating material/ evidences, no such addition could be made in the hands of the assessee. It is also evident that booking of flats against which the cash was alleged to be received by the assessee was already cancelled much before the date of search and cheque amount was already refunded by assessee to other party which would further weaken the stand of Ld.AO. Therefore, no fault could be found with the approach of Ld. first appellate authority. Our view find support from the decision rendered in CIT V/s Maulikkumar K.Shah [ 2007 (7) TMI 267 - GUJARAT HIGH COURT] wherein Hon ble Court refused to admit revenue s appeal, inter-alia by noting that Ld. AO had not broug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) ought to have upheld the order of the AO. 3. It is, therefore, prayed that the order of the Ld. CIT(A) be set aside and that of the AO be restored to the above extent. As evident, the sole subject matter of appeal is addition of ₹ 196.25 Lacs. 2. We have carefully heard the arguments advanced by both representatives. We have also perused relevant material on record including documents placed in the paper-book. Our adjudication to the subject matter of appeal would be as given in succeeding paragraphs. 3.1 Briefly stated the assessee being resident firm stated to be engaged in building construction was subjected to an assessment u/s 143(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, it transpired that the assessee entered into agreement for sale of 9 flats at Wind Chimes to a firm namely M/s Raj Shah Enterprises Pvt. Ltd. (REPL). The recorded cost of ₹ 44.59 Crores correlated with the amount mentioned in the MOU. In one of computer file namely total amount.xls, date-wise payment was recorded. In the said sheet, some of the transactions cash was recorded against payment and dates. After analysis, if transpired the cash of ₹ 196.25 Lacs was paid against the flats situated at Wind Chimes. As per the terms of MOU, REPL agreed to make payment of ₹ 858.76 Lacs against allotment of 9 flats. The relevant documents /details seized from the resident of Shri Haribhai Vora and Shri Sanket J. Shah was v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore Ld. CIT(A), the assessee argued that the loose paper was not found at assessee s premises. The same was neither signed nor in the handwriting of any partner of the firm and therefore, the same was merely a dumb document which could not be relied upon to make additions in the hands of the assessee. Reliance was placed on various judicial pronouncements to support the same. The assessee also denied the contents of MOU since the same was not signed by all the parties and none of the partners of the assessee signed it. It was again reiterated that booking of flats were cancelled and amount was already refunded to REPL in July, 2012 well before the date of search. It was also submitted that no incriminating document was found during survey o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not confronted to anyone at any stage of investigation cannot be held justified. The Hon'ble High Court of Delhi held in the case of CIT v/s. S.M. Agrawal (2007)293 ITR 0043 that the only person competent to give evidence on the truthfulness of the contents of the document is the writer. Keeping in view the judgements of the Hon'ble High Court of Delhi, the documents found during the course of search at third party are not reliable evidences in this case. The AO made the additions, as one entry of ₹ 90 lakh paid by cheques tallied with the books of accounts of the appellant, whereas, another three entries on same page through cheques did not match with the appellant's books of accounts. Thus, it is reasonable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count of the appellant and entries in the bank account cannot be back dated. Six flats are still unsold and reflected as closing stock in the books of accounts by REPL. In such circumstances, considering receipt of ₹ 1,96,25,000/- by the appellant from REPL in cash is not reasonable and justified. Keeping in view the discussion above, the additions made by the AO are not found sustainable factually and legally. Hence, the additions of ₹ 1,96,25,000/- are deleted. This ground of appeal is allowed. Aggrieved as aforesaid, revenue is under appeal before us. 5. Upon due consideration of factual matrix as enumerated hereinabove, we find that Ld. CIT(A) has clinched the issue in correct perspective. The only basis of making impu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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