TMI Blog2023 (1) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of consideration. Even as per order of Joseph Mudaliar [ 2021 (9) TMI 701 - ITAT MUMBAI] as relied by the Ld.AR, third provision of section 50C of the Act the difference less than 10% from the consideration shown by the assessee and accepted by the Stamp Valuation Officer and DVO report has to be ignored and no addition is called in the situation. In the present case the amount of Rs. 9.02 lakh is less than 5% of total sale consideration of Rs. 1,99,20,000/- shown by the assessee. Therefore, no further addition is required to be made in the hands of the assessee u/s. 69B or any other provision of the Act. Accordingly ground no. 1 of the revenue is dismissed. Unexplained cash deposits in the saving bank account - CIT-A deleted the addition - HELD THAT:- It is pertinent to mentioned that the assessee has declared an income of Rs. 41,55,470/- for A.Y. 2015-16 and the impugned amount is only Rs. 9 lakh which is also less than the cash balance available in the proprietary firm of the assessee. Therefore the Ld. CIT(A) was right in deleting the addition of Rs. 9 lakh made by the A.O. u/s. 69A of the Act. Finally we are unable to see any valid reason to interfere with the finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur dated 25.08.2021 06.09.2021, for the A.Y s. 2015-16, 2017-18, 2018-19. Since common issues are involved in these appeals, these appeals were heard together and are being disposed of by this consolidated order. ITA Nos. 1533 1536/Del/2021 For A.Y 2018-19 2. The grounds of appeals raised by assessee are identical read as under:- 1) a) Because upon due consideration of facts and in the circumstances of the case, the authorities below are highly unjustified in making and sustaining addition of Rs. 1,50,23,692 on account of wrong allegation of payment of on money for Purchase of Shop No. 387 in Habitat Centre Indirapuram, Ghaziabad. The addition made is arbitrary and is against the facts and circumstances. b) Because in spite of these being no material to suggest that such payment has been made, such addition of Rs. 1,50,23,692 has been made and sustained arbitrarily presuming that such payment has been made. c) Because the assesse had never got the possession of the property and had not even claimed such amount as refund before the IRP. The addition has been made and sustained without consideration of overall facts and circumstances. 2) Because in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the A.O. as well as the Ld. CIT(A) and submitted that the incriminating material clearly revealed that the assessee has made payment of own money for purchase of shop no. 385 in the Habitat Centre Indirapuram, Ghaziabad therefore the addition may kindly be sustained. However he did not controvert that on the identical facts and circumstances the ITAT Delhi Bench in the cases of Smt. Shashi Yadav Smt. Poonam Yadav vs. DCIT (supra) has granted relief to the said assessee s and he could not show us any dissimilar for different facts and circumstances from the present appeals of Smt. Anil Bala Goyal and Maanya Goyal. 6. On a careful consideration of our submissions from the order of the ITAT Delhi Bench in the case of Smt. Shashi Yadav Smt. Poonam Yadav vs. DCIT (supra) we observe that for the same A.Y. 2018-19 the identical issue has been decided in favour of the assessee with following observations and findings:- 90. AO has noted that during the course of search proceedings u/s 132 of the Act at the residential premises of Shri B. B. Goel at Indirapuram Habitat Centre, Ghaziabad, Pages 70 71 of Annexure LP -1 was found and seized. The assessee was asked to submit the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e addition has been made purely on the basis of conjectures and surmises without being supported by any incriminating material. He further submitted that admittedly the diary was found at 3rd party s premises and it is a settled position of law that if anything found in possession of any person then the onus would be on such person to explain the contents of the documents and to prove that it does not belong to such person. In support of his aforesaid contentions, Ld. AR placed reliance on the judgments rendered by Hon ble Delhi High Court in the case of CIT vs. Praveen Juneja (ITA No. 56/2017 dated 14.07.2017) to buttress the contention that merely on the basis of a single document without making any further inquiries, the addition was not justified. The AO made no attempt to find out that what was the cost of investment by making field inquiries from other similar purchasers of the property. He further contended that since the impugned loose sheets were found at the premises of the third party, the presumption u/s 132(4A) and 292C of the Act thereof cannot be applied against the assessee. He further submitted that since the said papers have not been found from the possession or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e merely projections about future profit. Reliance was placed on the judgement of Hon ble Delhi High Court in the case of CIT vs. D K Gupta (2009) 308 ITR 230 (Del) to buttress the contention that the burden was on the Revenue to prove that the explanation of Shri B. B. Goel was not correct and that the notings/jottings were in fact related to the investments of the undisclosed amount. Further, Revenue has also not placed any material on record to demonstrate that any action was taken by Revenue in the case of seller of property. Considering the totality of the facts placed on record, it is evident that the lower authorities have made addition purely on the basis of the notings in diary found in the possession of Shri B. B. Goel and the statement recorded in this regard. The Revenue did not provide opportunity of cross examination to the assessee in respect of any statement made by Shri B. B. Goel. The AO has also not brought any other material suggesting the actual fair market value of the property in question is higher than what is recorded in the sale deed. Undisputedly, transfer of a property would always be between two parties one being seller and other the purchaser. It canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heet of paper is a fair market value of property would not be justified. The Ld. CIT DR could not show us any dissimilar or glaring situation which could lead us to take it different view from the view taken from the conclusion recorded by the coordinate bench of Tribunal in the case of Smt. Shashi Yadav Smt. Poonam Yadav vs. DCIT (supra). It is also relevant to note that in the present appeals the assessee Smt. Anil Bala Goyal purchase shop no 384 and Smt. Maanya Goyal purchase shop no 385 and the A.O. made addition on the basis of identical material i.e. annexure LP-1 pages 70 71. Therefore respectfully following the order of the coordinate bench of ITAT Delhi in the case of Smt. Shashi Yadav Smt. Poonam Yadav vs. DCIT (supra). Grounds of assessee are allowed. In the result the appeal of the assessee is allowed. 8. Our conclusion drawn for ITA no. 1533/Del/2021 would apply mutatis mutandis to ITA No. 1536/Del/2021. Resultantly both the appeals of assessee are allowed. Assessee appeal ITA No.1534/Del/2021 Revenue appeal ITA No. 1808/Del/2021 both for A.Y. 2015-16 9. The grounds of appeal raised in ITA No. 1534/Del/2021 for A.Y 2015-16 read as under:- 1. Beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that it was printing by mistake after which corrections were made. The A.O. not satisfied with the reply of assessee held that the reply of the assessee is not convincing and he added the difference amount of Rs. 2,10,91,000/- to the taxable income of the assessee as assessee u/s. 69B of the Act. The Ld. CIT DR submitted that the learned first appellate authority has granted relief to the assessee by considering the irrelevant facts and circumstances therefore the impugned first appellate order may kindly be set aside by restoring that of the A.O. The Ld. CIT DR also submitted that the learned first appellate authority has restricted the addition to Rs. 9.02 lakh, without any justified reasoning and basis therefore assessment order may kindly be restored and impugned first appellate order may kindly be set aside. 12. Replying to the above the Ld. AR our attention towards written submissions filed by the assessee and relevant paras of order of the Ld. CIT(A) para 5 to 6.8 and submitted that the Ld. CIT(A) has considered the total relevant facts and circumstances of the issue and rightly concluded that the seized material page no. 168 to 174 of annexure LP, which was found d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 at Rs. 2,08,22,000/- as against the declared by the appellant in the purchase deed at Rs. 1,99,20,000/- and difference was only of Rs. 9.02 lakh which is less than the 10% of total value of transaction which was required to be ignored as per the provisions of the Act, the Ld.AR vehemently pointed out that the Assessing Officer, for the reasons best known to him has not acknowledged the valuation report properly which was rightly taking into consideration by the Ld. CIT(A). The Ld.AR submitted that the Revenue Officers should be kind to consider all the relevant documents whether against the assessee or in favour of the assessee. Therefore the amount of additions of Rs. 9.02 lakh restricted by the Ld. CIT(A), which was to be ignored as per provision of the Act, should be deleted. 14. Replying to the above Ld. CIT DR again place reliance on the assessment order and submitted that the Assessing Officer was not required to referred DVO report suo motto therefore the entire addition made by the A.O. may kindly be confirmed by allowing the appeal of the revenue and dismissing appeal of the assessee. 15. On a careful consideration of rival submissions first of all we may point ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of addition of Rs. 9.02 lakh restricted by the Ld. CIT(A) is concerned the actual sale of value shown by the three co-purchasers including the assessee was at Rs. 1,99,20,000/- whereas the Departmental Valuation Officer report vide dated 24.04.2018, valuated the market value of the property at Rs. 2,08,22,000/- and there was a difference of Rs. 9.02 lakh which was picked up by the Ld. CIT(A) for making for restricted the addition made by the A.O. As per third proviso to section 50C of the Act, where the value adopted or assessed or assessable by the stamp valuation authority does not exceed 10% of the consideration received the consideration so received of accruing as a result of transfer shall for the purpose of section 48 deemed to be value of consideration. Even as per order of ITAT Mumbai in the case of Joseph Mudaliar vs. DCIT [2021] 130 taxmann.com 250 (Mumbai - Trib.) as relied by the Ld.AR, third provision of section 50C of the Act the difference less than 10% from the consideration shown by the assessee and accepted by the Stamp Valuation Officer and DVO report has to be ignored and no addition is called in the situation. In the present case the amount of Rs. 9.02 lakh is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-on 01.11.2014 from the cash book of M/s. G.G. Earthmovers. The amount of Rs. 5,00,000/- has been deposited in CBI saving bank Account on 13.11.2014 and thus the available cash balance has reduced from Rs. 21,42,186/- to Rs. 16,42,186/-. Further on 25.11.2014 Rs. 4.00,000/- have been taken from cash book and deposited in Axis Bank saving account and cash balance of Rs. 15,62,186/- has reduced to Rs. 11,62, 186/-. The books of account have been maintained by the appellant who has declared the income of Rs. 41,55,470/- this year. The assessing officer could not find any deficiency in the books of accounts and accepted the same. Therefore no otherwise conclusion can be drawn with regard to the availability of cash balance in the cash books. 7.4 In the light of facts of the case as elaborated above the cash amount of Rs. 9,00,000/- deposited in the savings bank accounts of the appellant stands explained. Therefore the addition of Rs. 9,00,000/- made u/s 69A of IT Act is hereby deleted and relief is allowed to the appellant. 19. After considering the rival submissions of both the side and evaluation of findings arrived at by the Ld. CIT(A) we are of the considered view that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Rs. 1,05,96,000/- was rightly treated as unexplained money u/s. 69A of the Act and the A.O. was also right in invoking taxing provision of section 115BB of the Act. Ld. CIT DR submitted that the learned first appellate authority has deleted the addition by wrongly observing that pertaining to shop no GF 289 no evidences of cash payments have been found in the seized material. Whereas from the same builder the other purchasers which were friends and family members of the assessee viz. Shri Rajeshwar Singh, Smt. Shashi Yadav, Smt. Poonam Yadav, Shri Manish Yadav, Smt. Anil Bala Goyal and Smt. Maanya Goyal, the Assessing Officer has made additions on identical facts and circumstances which have been confirmed by the same Ld. CIT(A). Therefore the Ld. CIT DR contended impugned first appellate order may kindly be set aside by restoring that of the A.O. 23. The Ld.AR has placed reliance on various judgements of Hon ble Supreme Court, Hon ble High Court and coordinate benches of Tribunal including recent judgment of Hon ble Bombay High Court in the case PCIT vs Nexus Builder Developers Pvt. Ltd., (2022) 134 taxamann.com 8 (Bom) and submitted that there was no evidence found aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Smt. Maanya goyal the shops were purchased in April 2017. The appellant further submits that no details of cash payments could be found and seized with regard to shop no. GF-289. Thus the appellant Sh. B.B. Goyal has made a detailed submission distinguishing his case i.e. shop no. GF-289 from the cases of Smt. Ani Bala Goyal and Smt. Maanya Goyal, in whose cases details of cash payments were found in various. seized pages, specifically. in page no. 70, 71, 73 74 of LP-1 found and seized from his residential premises. 6.4 From the observations of the assessing officer in the body of assessment order it has been found that the parallels are drawn between GF- 385 GF- 387 which are allotted to Smt. Ani Bala Goyal and Smt. Maanya Goyal and GF- 289 which is allotted to the appellant and based on this parallel, the AQ has concluded that the cash amounting to around 60% is found to be paid in case of Smt. Ani Bala Goyal and Smt. Maanya Goyal, which is evident from the seized material, therefore in case of appellant also, the cash might have been paid and hence the addition has been made us 69A of IT Act. However such parallels are not justified, when there is no mention of cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of on money for Purchase of unit No. 805 and 806 in Habitat Centre Indirapuram, Ghaziabad. The addition made is arbitrary and is against the facts and circumstances. b) Because in spite of these being no material to suggest that such payment has been made, such addition of Rs. 54,00,000/ - has been made and sustained arbitrarily presuming that such payment has been made. c) Because the assesse has never purchased such property and therefore there is no question of making such payment. The addition has been made and sustained without consideration of overall facts and circumstances. 2. Because in any view of the matter the authorities below have erred in levying and sustaining tax u/s 115 BBE. Such levy is highly excessive and unreasonable. 3. Because while making the assessment the AO and while sustaining the addition the Id. CIT (A), made various observations / conclusion, which are contrary to facts. 4. Because the appellant denies liability of interest under the act. 5. Because the order appealed against in contrary to facts, law and principles of natural justice and in any view of matter deserves to be quashed. 6. Because the assesse carves le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orating evidence of the contents of the documents and also there is no material to ascertain the truthfulness of the statement. 3.6. In such circumstances, it cannot be presumed that seized document shows any transaction of sale and purchase entered into by the assessee, which is not disclosed by him. In the case of Hindustan Ferodo ITD. vs. Collector of Central Excise (1997) 89 ELT 16 (SC) the Hon'ble Supreme Court laid down that it is not the function of the Tribunal to enter the arena of making suppositions that are tantamount to evidence that the party has failed to lead. Therefore, it is clear that from any material evidence on record the Tribunal is not supposed to infer from the facts which are not supported by any material or evidence on record. 4.3. We have considered the rival submissions and have gone through the entire material available on record. The papers in question are tiny pieces of papers. It does not Indicate that any transaction ever took place. It does not contain any information as to what was the nature of the transaction, if at all, any such transaction took place, who were the parties to the transaction and what was the date of the transact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount and found from the control and possession of the payer. The Ld. CIT-DR submitted that the presumption u/s. 132(4A) r.w.s. 292C of the Act has to be applied to such kind of evidence and the A.O. was right in making addition u/s. 69A of the Act in the hands of assessee. Further drawing our attention towards relevant operative paras of first appellate order the Ld. CIT-DR contended that the reply and submissions of the assessee has been properly considered and appreciated by the learned first appellate authority and thereafter he drew a right conclusion that the assessee has made investment of Rs. 54,00,000/- which was not disclose in the books of accounts, therefore he was right invoking provision of section 69A of the Act. 31. Placing rejoinder to the above the Ld.AR again submitted that the so called document has not been signed by the assessee and without acceptance of the any proposal in the form of signature in the agreement such kind of documentary evidence cannot be relied upon for making presumption u/s. 132(4A) r.w.s. 292C of the Act. He further submitted that the assessee categorically accepting token payment of Rs. 1,00,000/- through cheque to the builder but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind and came out from the deal of purchase of property. The said agreement was not signed by the assessee and the same was only signed by the builder, except this agreement there was no documentary evidence in the hands of A.O. in support of his claim that the assessee has paid of Rs. 54,00,000/- in cash out of his income from other undisclosed sources treating the same as unexplained money under provision of 69A of the Act. Undisputedly, the document was found and seized from the possession of the assessee but only on the standalone basis of such document which was not signed by the assessee and never acted upon by the assessee. The provision of section 69A of the Act cannot be pressed into service against the assessee. We may also point out that it is not a case of the A.O. or Ld. CIT(A) that in the said agreement there was mentioning of Rs. 54,00,000/- in cash or any other document, dairy or notings were found to support of this allegation was found and seized during the search operation. Only on the basis of such document which cannot be branded or labelled as an agreement in absence of signature of both the parties no addition can be in the hands of the assessee u/s. 69A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T in the case of Saamag Developers (P.) Ltd. vs. ACIT held that when the Assessing Officer has not made any independent enquiry from such persons and in the absence thereof no addition can be made. Especially when the Assessing Officer did not bring any adverse material on record or gave a finding with cogent evidence contrary to the explanation of the assessee and has not brought any independent corroborative material suggesting that the assessee has purchased such land/property and has made payment as recorded in the seize paper. In the present case also the Assessing Officer has made addition merely on the basis of so called agreement which has not been signed by the assessee and the A.O. has not brought on record any other positive or corroborative material to show that the assessee has actually purchased property under this agreement and made payment of Rs. 54,00,000/- in cash out of books of accounts from the income earned from undisclosed sources. Therefore, we reach to a logical conclusion that the addition made by the A.O. and confirmed by the Ld. CIT(A) u/s. 69A of the Act, is not sustainable hence we direct the A.O. to delete the same. 35. Ground no. 2 of assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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