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TMI Blog2022 (6) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... /03/2020 and by placing reliance on the Government of India of notification No. 218979 dated 31/03/2020 in Taxation and Other Laws (Relaxation of Certain Provisions) Ordinance 2020 (No. 2 of 2020) dated 31/3/2020 as per Clause 3(1)(b) extending the time limit specified in Income Tax Act which falls during the period from 20th day of March 2020 to 29th June 2020 for the purpose of final appeal till 30/06/2020 or such other date as the Central Government by notification specified in this behalf. Subsequently, the Government vide Notification No. 35/2020 dated 24/06/2020, has extended the said time limit up to 31/03/2021. In view of the same, we are inclined to condone the delay and the appeals are admitted for adjudication. Both the appeals are taken up together and disposed of by this common order for the sake of convenience. ITA No. 1806/Mum/2020 (A.Y. 2014-15) 2. The ground No. 1 raised by the assessee is challenging the action of the Ld. CIT(A) in not admitting the additional evidences produced under Rule 46A of the Income Tax Rules in connection with applicability of provisions of Section 2(22)(e) of the Act in respect of advance given by M/s. MAAD Realtors and Infra Ltd., to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances for the very same A.Y. 2014-15, this Tribunal in the hands of another 50% shareholder i.e. Devendra Ladani vs. ACIT in ITA No. 1824/Mum/2020 dated 15/03/2022 had directed the Ld. CIT(A) to consider the additional evidences and decide the issue on merits. For the sake of convenience, the entire order is reproduced hereunder:- "The present appeal has been filed by the assessee for the Assessment Year (AY) 2014-15 as against the impugned order of the Ld. Commissioner of Income Tax (Appeals) - 11, Pune dated 23.03.2020 u/s. 250 of Income Tax Act. The following are the grounds raised by the assessee:- 1. The Hon. CIT(A) erred in not admitting the additional evidences produced u/r. 46A of the I.T. Rules, 1962, to support the argument that the provisions of section 2(22)(e) were not attracted in respect of the business advance by M/s. MAAD Realtors & Infra Ltd. to M/s. D.M. Logistic Pvt. Ltd. thereby denying the appellant opportunity to support his arguments, which action being not as per law may kindly be overruled and the Hon. CIT(A) may be directed to admit the additional evidences and consider the same in deciding the merits of the addition. 2. The Hon. CIT(A) erred in u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l evidence does not explain or certify the claim made by the assessee as they were not relied upon during the assessment proceedings. 4. In this factual background, the Ld. AR submitted that the additional evidence may be adduced before the AO and stated that the assessee was on a misconception that section 2(22)(e) of the Act would not be attracted in the present case. The Ld. AR denied the fact that it was not assessed's borrowal money and relied on the decision of Hon'ble Bombay High Court in the case of Smt. Prabhavati S. Shah Vs. Commissioner of Income Tax (1998) 231 ITR 1 (Bom) with regard to adducing additional evidence before Ld. CIT(A). 5. The Ld. DR on the other hand, contends that the assessee has not filed any affidavit stating that he has misunderstood the provision of Section 2(22)(e) of the Act and insisted the Ld. AR to file an affidavit for the same. The Ld. AR in reply to this, stated that it has been taken up before the AO and is thus reflected in para 7.4 of AO's order. The Ld. AR prayed that the matter be remanded back to Ld. CIT(A) for fresh consideration with the direction to permit the assessee to adduce the specified additional documentary e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned loan was only on advance by M/s. MAAD Realtors & Infra Ltd. to M/s. D.M. Logistics Pvt. Ltd. for the purpose of acquisition of agricultural land at some village from one Shri Dilip Kishor Kansaw and other for the purpose of buying developable FSI to the extent of 30,000 Sq. ft after conversion of land for non-agriculture purpose after obtaining the necessary sanction from the local authorities. The consideration was fixed for Rs. 700 per Sq. Ft. It was contended that the payment made by M/s. MAAD Realtors & Infra Ltd. to M/s. D.M. Logistics Pvt. Ltd. is towards acquisition of the said FSI as per the MOU between both the companies. It was further contended that M/s. MAAD Realtors & Infra Ltd. has also made direct payment to the land owner Shri Dilip Kansaw and M/s. D.M. Logistics Pvt. Ltd. could not execute conveyance deed from land owners owing to unexplained reasons. As the additional evidence pertains to the said transaction which according to the Ld. AR is a business transaction was not accepted by the Ld. CIT(A) since it was not taken up before the AO. The Ld. AR relied on a catena of judgments which state that keeping in view the complexity and specialization of ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the decision in ground No. 1 above, the ground No. 2 also is set aside to Ld. CIT(A). Accordingly, the ground No. 2 is also allowed for statistical purposes. 5. In the result, appeal of the assessee for A.Y. 2014-15 is allowed for statistical purposes. ITA No. 1802/Mum/2020 (A.Y. 2010-11) 6. The only ground raised by the assessee is challenging the action of the Ld. CIT(A) in confirming the addition of Rs. 64,70,818/- as unexplained income of the assessee. 6.1. We have heard rival submissions and perused the materials available on record. Pursuant to search conducted u/s. 132 of the Act in the residential premises of the assessee, notice u/s. 153A of the Act for A.Y. 2010-11 was issued. The original return of income was filed by the assessee on 28/12/2010 for A.Y. 2010-11 declaring total income of Rs. 54,61,240/-. In response to notice issued u/s. 153A of the Act, the assessee filed the return of income on 31/03/2015 declaring total income of Rs. 38,70,520/-. Pursuant to various incriminating documents found during the course of search in the premises of the assessee and MAAD group of companies, the assessee had offered additional income of Rs. 4,09,280/- for A.Y. 2010-11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. AO did not agree to this explanation of the assessee and observed that in the same seized documents, the expression "cash" was mentioned with dates together with the amounts thereon. This represents unexplained cash transaction carried out by the assessee for which no satisfactory explanation has been given by the assessee and hence, sought to be added as unexplained income of the assessee totalling to Rs. 64,70,818/-. Similarly, further sum of Rs. 20,60,000/- representing cash transaction which was also reflected in the very same seized document was also sought to be added as unexplained income of the assessee. 6.4. We find that assessee explained each and every transaction mentioned in loose paper bundle No. 1, page No. 16/- by way of a small note before the Ld. CIT(A). In respect of cheque transactions reflected in the seized document, the same cheques were reflected in books of group company of the assessee and hence, no addition was made by the Ld. AO himself. In respect of cash transactions totalling to Rs. 20,60,000/-, the assessee explained by way of a note No. 3 before the Ld. CIT(A) that Mr. Anil Seth which signifies partner Anil Ramachandra Gupta who was to organise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name, 'D' representing demand draft has been mentioned. The document has been found and seized from the residential premise of the appellant, and is a handwritten note. That there are payments by persons named in the seized documents by cheque is proved and accepted. It flows from the document that the other entries representing cash also indicate payments made. In respect to the above said entries totaling Rs. 64,70,818/-, no names are mentioned and only 'D' representing demand draft is indicated in the seized document. It only indicates that these are payments which have been made by the appellant himself. That all these transactions had materialized is confirmed by the entry on the reverse side of the seized page indicating the date 20/3/2010-Cash-1,30,30,818/-. Further, the bifurcation into cash and bank and the trifurcation in to cheque, demand draft and cash for the total amount of Rs. 1,30,30,818/- amply indicate that the transactions have already been completed and therefore the claim of the appellant that the above said entries indicating 'D' totaling Rs. 64,70,818/- never materialized is not accepted. From the noting in the document, it is clear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehemently argued by the Ld. AR that assessee is not at all involved in any construction business. R.D. Karas and Sons has been supplying steel and cement only to MAAD group of companies and not to assessee and hence, there was no need for having any transaction for the assessee with R.D. Karas & Sons. We are unable to comprehend ourselves to accept to these statements of the Ld. AR in view of the fact that the seized document page No. 16 was admittedly seized from the residential premises of the assessee. The other transactions reflected in the same seized document has been entered in the books of accounts of group companies of MAAD group. Moreover, the Ld. CIT(A) had even given credit for transactions to be carried out by other Directors of the MAAD group and accordingly deleted a sum of Rs. 20,60,000/- from the hands of the assessee. Against this finding of the Ld. CIT(A), both assessee as well as the Revenue are not in appeal before us. Hence, for remaining transactions of Rs. 64,70,818/- the onus purely lies on the assessee to explain with cogent evidences. Since that loose sheet was seized from the preemies of the assessee, the presumption u/s. 292C of the Act would lie on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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