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TMI Blog2021 (5) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... CBI Special Court as the issue has not attained finality and is still pending. 3. For these and other grounds that may be adduced at the time of hearing, it is prayed that order of the learned CIT(A) may be set aside and that of the Assessing Officer restored." 2. Brief facts of the case are that the assessee is an individual and film artist by profession, filed his return of income for the assessment year 2009-10 u/s.139 of the Income Tax Act, 1961. The assessment for the impugned assessment year has been originally completed u/s.143(3) of the Act vide order dated 21.12.2011. The assessment has been subsequently reopened u/s.147 of the Act for the reasons recorded, as per which income chargeable to tax had been escaped assessment on account of on money payment for purchase of property. Accordingly, notice u/s.148 dated 31.03.2013 was issued and served on the assesse. The case was taken up for scrutiny and during the course of assessment proceedings, the Assessing Officer, on the basis of information received from the DCIT, Circle-2(3), Hyderabad, opined that the assessee has paid on-money for purchase of property from M/s. Emaar Hills Township Pvt. Ltd. and accordingly, by taki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heet, the details of which are reproduced as under for convenience:- Sl.No. Plot No. Extent in Sq.Yards Amt,.paid through cheques in Rs. Excess paid per Sq.Yd. in Rs. Excess payment in Rs. Total payment made by buyer in Rs. 53 B30 1545 73,38,750 10,000 1,54,50,000 2,27,98,750 It was stated in the charge sheet that the excess money was collected by Shri T.Ranga Rao from buyers in cash only except from Sri P.S.Parthasarathy Rao and Shri Challa Suresh who had deposited money in US dollars towards part of excess payment in the bank accounts of Shri Madhu Koneru S/o. Koneru Rajendra Prasad maintained at Dubai. In view of the above reasons, the assessment was reopened by issue of notice u/s.148 as stated above. In response to the notice assessee filed written submissions on this issue on 20.03.2014 and the same was considered carefully. The contentions of the assessee are not acceptable since the information about payment of on-money in cash by assessee was clearly brought out in original and supplementary charge sheets filed in the case of Emaar Hills Townships Pvt.Ltd by the CBI. Even in the submissions made by EHTPL before learned CIT(A) against the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant's AR has strongly contended that the AO has made the above addition based on surmise and conjecture. The AR has clarified that the CBI's case has not established the appellant's on-money payment as mentioned above. The AR has relied on a favourable decision in the case of R. Saibabu V. DCIT in AY 2010-11 vide ITA No.2933/Mds/2016 dated 9.3.2018 in which on identical facts and circumstances the ITAT Chennai has deleted the Assessing Officer addition of unexplained investment. 4.3.3 I have considered both the points of view. It is ascertained that the CBI's case filed in the court is still pending and there is no finding by the Court th regard to the appellants unexplained investment in Villa plot as held by the AO, It is further noticed that the AO's conclusion is based only on the charge sheet filed by the CR1 in connection with its search operation in Emaar Group. The AG's conclusion is not based on any document or independent enquiry carried out by the AC himself. I have perused the decision of Hon'ble ITAT Chennai in the case of Shri R.Saibabu which has been reproduced above under pars 4.2. In the said case, under identical facts and circumstances, the Hon'ble ITAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge sheet filed by the CBI, when proceedings are still pending before the CBI Special Court. The relevant findings of the Tribunal are as under:- "6. We have heard both sides, perused the materials available on record and gone through the orders of authorities below. In this case, it is an undisputed fact that the assessee is an individual and the source of the income of the assessee was only income from salary and no other source of income with corroborative material established in support of the statement of the third parties is available on record either in the assessment order or in the appellate order. Further, the source for purchase of flat from M/s. EHTPL at Rs..65,25,000/- was not disputed. However, the Assessing Officer made the addition towards on money payment only on the basis of the investigation conducted by the CBI in the case of EHTPL and reference received from the DCIT, Circle 2(3), Hyderabad. It may be a fact that CBI has observed that the villa buyers have paid on money over and above Rs.5000/- per sq. yard to Mr. T. Ranga Rao of M/s. Stylish Homes or to the representative of Stylish Homes. The statute provided sufficient powers to call for information under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of provisions of section 133 of the Act with Shri Konnaru Rajendra Prasad, Shri T. Ranga Rao, Directors of M/s. Stylish Homes Real Estate (P) Ltd. and recorded their statement of having collected excess amount from the assessee over and above the cost of plot at Rs..5000/-per sq. yard; there was no material evidence to show that the assessee had enough source to make huge undisclosed investments, where, in this case, the source of income of the assessee was only income from salary and no other source of income was detected; or there was any search or survey in the case of the assessee or the plot seller and acquired any piece of evidence of having paid on-money by the assessee. Each case has to be decided according to the facts and based on the material evidence contemplated against the assessee. 6.5 Considering the entire gamut of the case, we find that the Revenue has failed to discharge its duties; no piece of evidence against the assessee having paid on money was brought on record and instead, made up a case on surmise and conjectures which cannot be allowed. Under the above facts and circumstances, we set aside the order of the ld. CIT(A) and direct the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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