TMI Blog2021 (7) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... ber For the Assessee : Sh. Gaurav Bansal, CA For the Revenue : Ms. Paramita M. Biswas, CIT-DR ORDER PER R.K. PANDA, AM, This appeal filed by the Revenue is directed against the order dated 29.04.2015 of the learned CIT(A)-II, Agra, relating to Assessment Year 2010-11. 2. The only effective ground raised by the Revenue reads as under:- 1. The learned CIT(A) has erred in law and facts while deleting the addition of ₹ 2,15,00,000/- made on account of unaccounted money was invested by the assessee for purchase of property in J.P. Green, Greater Nodia. 3. Facts of the case, in brief, are that the assessee is an individual and derives income from business, income from house property and income from other sources. A search u/s 132(1) of the I.T. Act, was conducted on 17.09.2010 at the premises of the Sharda Group of Agra including the premises of the assessee in which certain documents and assets, etc. were found and seized. In response to notice u/s 153A dated 17.01.2012, the assessee filed his return of income on 21.09.2012 declaring total income of ₹ 19,47,520/-. During the course of assessment proceedings, the AO noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 2.65 crore and the same is clear from the payment plan letter issued by Jaypee Greens. The assessee also filed copy of the provisional allotment letter and the payment plan issued by Jaypee Greens, Greater Noida. It was clarified by the assessee in his reply to the AO that he has not made any payment on 15.11.2009 and 01.11.2009. He further clarified that he has no concern with the noting as mentioned in the impugned paper and the same has been explained giving following facts:- (A) The property has been allotted in favour of Shri Pradeep Kumar Gupta jointly with Smt. Seema Gupta by Jay Pee Greens, Greater Noida as per their provisional allotment letter dated 17.09.2012. (B) The total purchase price for the said property as per the provisional allotment letter is ₹ 5.85 crore. (C) The payment of ₹ 2.65 crore was paid out of ₹ 5.85 crore and the balance amount is to be paid as per the payment plan issued by Jay Pee Greens, Greater Noida 4. After giving the above facts relating to purchase of property as mentioned in the seized paper, the assessee further emphasized in his reply that perusal of all the documents conclusively proves that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hit Gupta and ₹ 1.65 crore was given as accounted A amount to him with premium of ₹ 72.72 lac as unaccounted B amount. Therefore, total amount of ₹ 237.72 lakhs were paid to Shri Rohit Gupta and rest amount is to be paid is ₹ 254.53 lakhs. The AO further discussed in the assessment order that during transfer process, Jaypee increased total amount to ₹ 565 lakhs because of the following reasons as mentioned in the seized papers. 10% penalty charges of ₹ 492.25 lakhs = ₹ 49.23 lakhs Golf Membership charge + sports membership =₹ 23.52 lakhs 5. After giving the above details of increase in the price of the property purchased from Jaypee, the AO has held that the amount of ₹ 565 is divided in two parts, amount A of ₹ 350 lakhs and B of ₹ 215 lakhs. The AO has also pointed out that because amount of ₹ 165 lakhs was already paid to Shri Rohit Gupta, therefore, rest amount is calculated at ₹ 185 Lakhs and in B amount ₹ 72.75 lakhs has already been paid and rest amount of ₹ 142.25 is paid on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... document is place as Annexure A-1 of this order. Looking to this seized document, total price of the property has been found to be mentioned as ₹ 5.65 crore out of which, Rs, 3.5 crore is mentioned as A and ₹ 2.15 is mentioned as B . Thus, total price of the property has come to ₹ 5.65 crore. Out of the amount mentioned as A at ₹ 3.5 crore, payment of ₹ 1.65 crore has been shown and against the balance amount of ₹ 1.85 crore, Jaypee Greens, Greater Noida is written. On the basis of these notings made in the seized document, the AO concluded that out of ₹ 3.5 crore mentioned as A amount, ₹ 1.65 crore is paid by cheque to Shri Rohit Gupta from whom property was purchased and balance ₹ 1.85 crore was required to be paid to Jaypee Greens, Greater Noida. For E3 amount of ₹ 2.15 crore, it has been concluded by the AO that the same has been paid in cash to the person from whom this property has been purchased as unaccounted payment and hence, he added this amount in the income of the assessee assuming that this payment has been made by the assessee (appellant). Now, these notings made in the seized document are requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment plan of Jaypee Greens. The question of making payment in cash over and above the price of the property mentioned in the allotment letter arises only when it is proved that the value /price of the property is more than the price mentioned in the allotment letter. Neither seized document establishes that the price of the property is more than the price mentioned in the allotment letter nor the AO has brought any evidence on record to show that the price of the property is more than ₹ 5.85 crore mentioned in the allotment letter. It is also important to note here that the property is not in the name of assessee(appellant) but it is in name of brother Shri Pradeep Kumar Gupta Smt. Seema Gupta and so far all payments have been made by them. Therefore, possibility of making any unaccented investment in this property by the assessee(appellant) does not arise. The AO only argument is that though the property is in the name of Shri Pradeep Kumar Gupta and Smt. Seema Gupta but all the dealings have been made by the assessee and he is a key person for making this dealing. Therefore, irrespective of the fact whether property is in the name of Shri Pradeep Kumar Gupta and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the course of search, the Hon ble Tribunal was of view that various documents /list annexed with the impugned order is not admissible in evidence against the assessee. Therefore, the argument of AO that B amount mentioned in seized document is payment in cash cannot be accepted because as I have already discussed that there is no possibility of making cash payment for purchase of this property in view of the fact that total price of the property as mentioned in the allotment letter of Jaypee Greens is more than what is mentioned in the seized document. Out of the total price of ₹ 5.85 crore mentioned in the allotment letter, the payment made by the elder brother of the assessee and his wife totaling to ₹ 2.65 crore has already been mentioned in the payment plan of Jaypee Greens and balance amount of ₹ 3.20 is still shown outstanding. There is no evidence that the value of the property is more than ₹ 5.85 crore. Therefore, on the basis of the seized document, it is not proved that the amount A mentioned as ₹ 3.5 crore is cheque amount and ₹ 2.15 crore mentioned as B is cash amount. Therefore, considering all the above facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.85 crores mentioned in the allotment letter. He submitted that the property is not in the name of the assessee but it is in the name of elder brother Shri Pradeep Kumar Gupta and Smt. Seema Gupta. Therefore, possibility of making any unaccounted investment in this property by the assessee does not arise. He submitted that if the argument of the AO is accepted that the unaccounted payment of ₹ 2.15 crore in cash has been made by the assessee for purchase of the impugned property, the total price of the impugned property would come to ₹ 8 crore. However, no evidence has been brought on record by the AO to show that the total price of the property or its value is assessed at ₹ 8 Crores. He submitted that the AO has never disputed the total price of the property or its value shown in the allotment letter submitted by the assessee. 10. So far as the argument of the AO that with regard to the property at Jaypee Greens, Greater Noida, the broker met Shri Y.K. Gupta and he does not know Shri P.K. Gupta, does not make any material difference as all the payments are made from the bank account of Shri P.K. Gupta and Smt. Seema Gupta and the property is also booked an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are still shown outstanding in the payment plan of Jaypee Greens, therefore, the possibility of any payment made in cash does not arise. Further, neither the seized document establishes that the price of the property is more than the price mentioned in the allotment letter nor the AO has brought any evidence on record to show that the price of the property is more than ₹ 5.85 crores mentioned in the allotment letter. Since, the property is not in the name of the assessee but is in the name of his elder brother Shri Pradeep Kumar Gupta and Smt. Seema Gupta from whose bank account payments have been made, therefore, we find force in the argument of the learned counsel for the assessee that possibility of making unaccounted investment in this property by the assessee does not arise and addition, if any, could have been made in the hands of brother of the assessee and his wife but not in the hands of the assessee in the instant case. We further find force in the argument of the learned counsel for the assessee that if the argument of the AO that unaccounted money of ₹ 2.15 Cores in cash has been made by the assessee for purchase of the impugned property then the total pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in case of the assessee, the Tribunal noted that such loose papers nowhere show that any payments were made by same partner and further no enquiry was made with the seller of the shops or the developer. The Tribunal, concluded that entries reflected in the loose papers, were not corroborated with any other evidence on record. The Hon ble Bombay High Court upheld the order of the Tribunal and dismissed the appeal filed by the Revenue. 14. We find the Hon ble Delhi High Court in the case of CIT vs Praveen Juneja (supra) has observed as under:- 4. A search took place in the premises of the Respondent/Assessee pursuant to which certain documents were seized. The document on the basis of which the above addition was made was a piece of paper dated 24th November, 2003. It contained a hand-written figure of '8050'. In two columns it set out details of purportedly expenses on drive way, tennis court, garden lights etc. in the left column totalling '9.45' and some other expenses relating to the architect, wooden fittings, bathroom fittings, etc. in the right column totaling '13.45'. 5. The explanation offered by the Assessee was that he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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