TMI Blog2020 (9) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... As mentioned earlier, although complete address of the payer was available in the cancelled money receipt, the AO has never bothered to summon Shri Shashi Kant Aggarwal to find out the authenticity of the said receipt. CIT(A) is not justified in sustaining the addition of ₹ 50 lacs made by the AO on the basis of a cancelled money receipt found during the course of search conducted in the case of Micromax Group of Companies on 10th February, 2011. Accordingly, the same is directed to be deleted. The grounds raised by the assessee are accordingly allowed. - ITA No.792/Del/2016 - - - Dated:- 28-9-2020 - Shri R.K. Panda, Accountant Member And Ms Suchitra Kamble, Judicial Member For the Assessee : Shri R.S. Singhvi, CA And Shri Satyajeet Goel, CA For the Revenue : Shri Saras Kumar, Sr. DR ORDER PER R.K. PANDA, AM: This appeal filed by the assessee is directed against the order dated 28th January 2016 of the CIT(A)-12, New Delhi, relating to assessment year 2008-09. 2. Facts of the case, in brief, are that the assessee is an individual and filed the original return of income at ₹ 1,15,534/-. Subsequently, the case of the assessee was reopen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring Search of the residence of Sh. Shashi Kant Aggarwal, also, some incriminating documents were found and one of the documents was money receipt dated 10.11.2007 which reflected transaction of property Flat No. 312 at Dipali, Nehru Place in cash in the form of money received by Romi Lai Nanda amounting to Rs.l 1,00,000/- in cash as part payment against sale of Flat No. 312, Nehru Place to Sh. Shashi Kant Aggarwal for ₹ 61,00,000/-. It was also stated that balance amount remained was ₹ 50,00,000/- out of the total amount of ₹ 61,00,000/- (Sixty One Lakhs only). Money receipt was signed by Sh. Sanjiv Nanda brother of Appellant and also by Sh. Shashi Kant Aggarwal. 9.5 During post search inquiry in the Micromax Group of Companies, statement of Appellant was recorded by Investigation Wing on 18.04.2011. Parts of the statement are reproduced as under :- Q.4. Please state the details immovable properties in which you have dealt in the form of buying/selling/advance receipt/paid etc. in the financial year Ans. I sold out the property in the form of a flat no. 312, building no. 92, Deepali, Nehru Place, New Delhi to Shri Shashi Kant Aggarwal and Sons (HUF) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advance on account of proposed sale of Flat No. 312, Deepali, Nehru Place, New Delhi. In answer to query no. 8, Appellant has admitted that money receipt was written by his brother Sh. Sanjiv Nanda and he had received Rs.l 1,00,000/- against proposed sale of property at B-312, Deepali, Nehru Place, New Delhi. Further, in answer to query no. 10, he further admitted that he received Rs.l 1,00,000/- on 10.11.2007 and Demand Draft of ₹ 8,42,000/- on 01.01.2008. Therefore, there is no dispute that Appellant had sold his property at 312, Building No. 92, Deepali, Nehru Place, New Delhi to Sh. Shashi Kant Aggarwal and Sons (HUF) and there is also no dispute that monev receint dated 10.11.2007 was on account of advance for sale of the Same property at 312, Building No.92, Deepali, Nehru Place, New Delhi. Further, he also identified the signature of his brother and admitted that money receipt was signed by his brother Sh. Sanjiv Nanda on his behalf. It is also mentioned in the last page of statement that he had given this statement voluntarily and without any pressure, force and coercion and he has also stated that he found that the statement was recorded correctly. 9.7 Further, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the statement recorded on 18.04.2011 stated to be photocopy of receipt by my brother Sh. Sanjeev Nanda in order to avoid litigation and on the assurance that the proceedings will be finally concluded. I don t admit any receipt in cash. Q.6. How it is possible that you have admitted the fact that you have received Rs.l 1 lac in cash against the sale of property Flat No. 3,12, Deepali, Nehru Place, New Delhi, the amount was in toto as per the receipt dated 10.11.2007. In that receipt, it is written that Rs.ll lac is a part payment and the balance remained is ₹ 50 lacs from Sh. Shashi Kant Aggarwal S/o. Satya Kishor Aggarwal, B-312, Saraswati Vihar, Delhi-110034. Ans. 1 have not admitted receipt of ₹ 11 lac and the surrender was only to buy peace and not confirmation of receipt of cash. Further, I was not shown original receipt alleged to be issued my brother Sh. Sanjeev Nanda and as such there is no evidence for receipt of any consideration in cash for sale of above said property. Q.7. In your statement recorded on 18.04.2011 you have not stated that you were surrendering an amount of Rs.ll lac to avoid litigation and buy peace. Please explain. You ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lfilled in this case. Appellant is wrong in contending that once settlement was arrived, it is not open to initiate further proceedings. There is no legal basis for such a claim. Appellant had himself stated in answer to query no. 9 of statement dated 18.04.2011 that he will file a return of income after paying the tax. 9.12 Contents of the money receipt dated 10.11.2007 were found to be true and correct which was admitted by the Appellant. Further, he has not retracted his statement recorded on 18.04.2011 and in statement recorded on 26.02.2013 by Ld. Assessing Officer has admitted that contents of his statement recorded on 18.04.2011 were true, therefore, there is no substance in the claim of Appellant. Therefore, in this case, it is the Appellant who had admitted and surrendered Rs.l 1,00,000/- as his undisclosed income. Thereafter, he filed the return of income disclosing Rs.l 1,00,000/- surrendered during the course of statement recorded on 18.04.2011 in past- search inquiry in Micromax Group of Companies. Therefore, content of the document seized in the form of Money Receipt is true and genuine. It has not been proved otherwise by the Appellant by producing some other coge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same is not sustainable under the law. 3. That orders of lower authorities are not sustainable on the facts or under the law. 4. The ld. Counsel, referring to the reasons recorded, copy of which is placed at page 16 of the paper book, submitted that the case of the assessee was reopened for receipt of cash of ₹ 11 lakhs plus ₹ 50 lacs, totaling to ₹ 61 lacs and the assessee has not offered capital gain for taxation. He submitted that in response to an enquiry from the Investigation Wing of the Income Tax Department, the assessee to buy peace of mind surrendered ₹ 11 lacs as unaccounted sale consideration in cash merely on the basis of cancelled photocopy of some sheet of papers found which do not even have any signature of the assessee. Since the assessee was suffering from multiple illness, therefore, to buy peace of mind on account of ill health, paid full tax and interest of ₹ 3,20,345 on ₹ 11 lakhs and revised his return of income after considering the alleged sale consideration in cash amounting to ₹ 11 lacs. He submitted that the so-called seized paper obtained during the course of search operation in the case of Micromax Group ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted before us. The only dispute in the impugned appeal is regarding the addition of ₹ 50 lakhs made by the AO on account of unaccounted cash receipt for sale of property which has been upheld by the CIT(A). It is the submission of the ld. counsel that during the course of examination by the Investigation Wing, the assessee was confronted with a receipt for ₹ 11 lakhs and the assessee was never asked for any further amount received by him. It is only during the assessment proceedings that the AO confronted regarding the receipt of ₹ 50 lacs and, therefore, in absence of any material before him, he could not have made the addition since the so-called ₹ 50 lacs was a cancelled receipt which the Investigation Wing considered proper not to confront with the assessee. 7. We find some force in the above argument of the ld. Counsel. A perusal of the receipt of ₹ 50 lacs, copy of which is placed at page 19 of the paper book, shows that it is a cancelled one. The AO has not confronted the contents of the said receipts from Shri Shashi Kant Aggarwal, although his complete address was mentioned in the said sheet of paper. Since the Investigation Wing after cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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