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TMI Blog2022 (12) TMI 1221X X X X Extracts X X X X X X X X Extracts X X X X ..... 6/Ahd/2019 by the Assessee for A.Y. 2015-16 "1. The Ld. CIT(A)-11 has erred in facts and on law in partly confirming action of the AO in making addition of Rs.2,05,50,000/- on substantive basis treating the same as unaccounted income of the appellant without there being any corroborative seized material and further erred in rejecting the claim of the appellant interalia to the effect that he acted as a middleman only." IT(SS)A No.484/Ahd/2019 by the Revenue for A.Y. 2015-16 "1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs.35,00,000/- on account of cash payment for land purchase. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs.1,19,50,000/- out of Rs.3,25,00,000/- on account of receipt of cash. 2.1 The observation of the Ld. CIT(A) that name of the client is mentioned from whom/to whom cash is received/paid and should be treated as such without insisting on identification/confirmation of the parties as it is unnecessary and impossible burden for the appellant to discharge, is against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case and in law, the Ld. CIT(A) has erred in law and on facts in allowing set off of unaccounted expenses of Rs.13,98,770/- against unaccounted income declared under PMGKY, 2016 because para no.3 of Circular No.43 of 2016 does not allow any expenses or allowance or set off of any loss against any income declared under PMGKY, 2016. 4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs.1,33,00,000/- made on protective basis on account of receipt of cash. The observation of the Ld. CIT(A) that neither any proceeding have been initiated/pending against Shri Kartik Patel nor any substantive additions made in his hand is wrong to the extent that information has already been sent to ITO, Ward 1(2)(2), Surat for initiating proceedings in the case of Shri Kartik Patel. 5. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs.2,50,00,000/- on account of undisclosed income on account of advance received for sale of land, admitting the additional evidence during the appellate proceedings which was neither forwarded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, addition of Rs.4,40,00,000/- as unaccounted income which was on substantive basis (Rs.3,25,00,000/-) and on protective basis (Rs.1,15,00,000/-) in the hands of the assessee. The Assessing Officer also made addition of Rs.74,50,000/- as unaccounted income under Section 69 of the Act. 5. Being aggrieved by the assessment order, the assessee filed appeal before the CIT(A). The CIT(A) partly allowed the appeal of the assessee. 6. The Ld. AR submitted that the sole issue in the present appeal is related to addition of Rs.2,05,50,000/- on substantive basis treating the same as unaccounted income of the assessee without there being any corroborative seized material and further rejected the claim of the assessee that he has acted as Middleman only. The Ld. AR submitted the Excel File retrieved from the computers used by its staff members cannot be the sole criteria for making the addition. The Ld. AR further submitted that except for one tab named as Ajay 379, rest of all the 7 tabs contain transactions wherein his role was that of a broker only. These excel tags were prepared by his staff members under the supervision of his Manager Shri Kartik Patel. The assessee furnished an aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and perused all the relevant material available on record. It is pertinent to note that the affidavit filed by the Manager of the assessee though was rejected has been taken into account by the CIT(A) in consonance that the excel sheet found and seized from the office premises of the assessee and thus the data shown in the said computer belongs to the assessee. The Assessee at no point of time has proved that the excel sheet was not of assessee's and the staff is also not aware of the said excel sheet. The theory of assessee that he is a middleman acting in real estate in certain transactions and earns brokerage also is not been established by the assessee through any documents. It is only oral submissions of the assessee before the CIT(A). The CIT(A) has categorically mentioned in para 7.6 that only real income has to be taxed and not the gross income of the assessee and, therefore, addition to the extent of Rs.74,50,000/- was taken into consideration on the basis of promissory note. The CIT(A) further observed that all the payments as per the promissory notes are made after the date of receipts as reflected in P3 tab, therefore, accepted the assessee's contention. The CIT(A) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpenses of Rs.13,98,770/- against unaccounted income declared under PMGKY 2016, the Ld. DR submitted that the CIT(A) erred in allowing asset off of unaccounted expenses because paragraph no.3 of Circular No.43 of 2016 does not allow any expenses or licences or set off of any loss or any income declared by PMGKY 2016. 22. The Ld. AR relied upon the order of the CIT(A) 23. We have heard both the parties and perused all the relevant material available on record. The CIT(A) has taken cognisance of Circular No.43 of 2016 dated 27.12.2016, the same declaration of set off was already filed and taxes were paid. The Assessing Officer cannot tax the same amount by invoking provisions of Section 69A of the Act. Thus, the CIT(A) was correct in deleting the said addition. Ground no.3 of Revenue's appeal is dismissed. 24. As regards ground no.4, the same is identical to A.Y. 2015-16 and hence dismissed. 25. As regards ground no.5 relating to addition of Rs.2,50,00,000/- on account of undisclosed income, the Ld. DR submitted that the CIT(A) erred in admitting additional evidences during appellate proceedings and never called for remand report which is violation of Rule 46A of the Income Tax R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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