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TMI Blog2023 (4) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue. The ITA No. 89/Asr/2020 is taken as a lead case. ITA No. 51/Asr/2020 and ITA No. 53/Asr/2020 are duly challenged by the assessees which are adjudicated separately in this order. Accordingly, for convenience we are passing a common order for all six appeals. ITA No. 89/Asr/2020 3. The revenue has taken following grounds: "1. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in allowing relief of Rs. 2,87,50,000/- by ignoring the facts collaborated by evidence seized during search which clearly demonstrated the real transaction by way of "agreement to sell". 2. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) failed to appreciate that the "agreement to sell" was actually executed by making payment of Rs.50 lac each on 25.09.2015 and 28.12.2015 out of the assessee's bank account and even possession of the property was handed over in Dec, 2015 to the Society managed by the assessee and his son. 3. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) while allowing relief has failed to appreciate the fact that even if the "agreement to sell" was unsigned, the conduct of the two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee filed written submissions which are kept in the record. The ld. Counsel first argued that the entire addition was made on basis of the unsigned draft agreement and the amounts were also cut and trimmed. Finally during search a signed lease deed executed in stamp paper dated 25.09.2015 between M/s Amar Singh charitable trust and the assessee Mr. Bhavnoor Singh Bedi in respect of property measuring two and half acre i.,e. 20 kanal was taken as lease. The ld. counsel fully relied on the order of the ld. CIT(A), page-17 which is extracted as below: "The facts of the case, the basis of addition made by the AO and the arguments of the AR during the course of appellate proceedings have been considered. The AR has argued that while making addition u/s 69B, the AO ignored the fact that the 'Draft Agreement to Sell' is not signed by any party. It was also argued that the land still stands in the name of S. Amar Singh Educational Charitable Trust and the same is leased to Baba Shri Chand Educational Society and the society is paying lease rent after deducting TDS. It was submitted that the documents seized during the course of search, was an unsigned, draft agreement t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as per the 'draft agreement to sell' and no details of payment as stated in the draft agreement matches the actual payments made by the assessee. As per the AR, the addition has been made on assumption & presumption basis without any corroborative evidence which could substantiate the contentions of alleged 'draft agreement to sell'. As per the AR, till date lease rent is being paid by the assessee and TDS has been deducted. As per the AR, the lease agreement states the 'Agreement to Sell' and does not mention 'Draft Agreement to Sell' as interpreted by the AO. Regarding the expenses, the AR mentioned that renovation was done for the reason that the assessee has taken property on lease to run the institution andfor the same one has to spend money and as per the AR, all the expenses incurred on the renovation have been duly accounted and disclosed by the assessee. As per the AR, the AO has not given any reason how the lease deed was doubtful and not genuine because it is signed by all the parties and terms are followed till date, lease rent is reflected in Profit & Loss account and security deposits in the Balance Sheet and the bank statements shows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of search and therefore no addition can be sustained only on the basis of an unsigned, undated, draft agreement which was not executed. The property is still in the possession of S. Amar Singh Educational Charitable Trust and given on lease for which lease rent is being received from time to time. Therefore, in the absence of proof regarding cash payments by the assessee, the addition made by the AO is not found sustainable and hence deleted. Accordingly this ground of appeal is allowed." 7. We heard the rival submission& perused the documents available on record. The entire addition was based on the documents which has no evidential value. The assessee primarily decided to purchase the property but later on changed the decision and has taken the property on lease. Copy of the lease deed dated 23.09.2015 is annexed in APB page nos. 13 to 29.The lease rent was paid and the TDS was deducted at source. Only 2 kanal property was purchased in later from the party by the assessee. The copy of sale deed dated 21.05.2018 is annexed in APB pages 39 to 44. The copy of the financial statement duly filed related to Baba Shrichand Educational Society which is depicted that the amount debite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the ld. CIT(A) and has taken the following grounds which is extracted as below: "1. That the order passed by the Hon'ble CIT(A) dated 16.12.2019 is against the law and facts of the case. 2. That having regard to the facts and circumstances of the case, Hon'ble CIT(A) has erred in law and on facts in confirming the action of Ld. Assessing Officer has erred in law and on facts in assuming jurisdiction and framing the impugned assessment order u/s 153A/143(3) of the Act which is bad in law and against the facts and circumstances of the case and is not sustainable on various legal and factual grounds. 3. That having regard to the facts and circumstances of the case, Hon'ble CIT(A) has erred in law and on facts in confirming the action of Ld. Assessing Officer erred in law in making addition of Rs. 40,00,000/-on account of alleged unexplained investment u/s 69A of the Act, without considering the facts of the case and submissions of the assessee and without observing the principles of natural justice. 4. That having regard to the facts and circumstances of the case, Hon'ble CIT(A) has erred in law and on facts in confirming the action of Ld. Assessing Officer erred in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenge is liable to be deleted, hence stands deleted." 13. The ld. CIT DR vehemently argued and fully relied on the order of the revenue authorities. The ld. DR invited our attention in order of CIT(A) para 4.3 page no. 18 which is reproduced as below: "4.3 Ground of Appeal No. 3 relates to addition of Rs. 40,00,000/- on account of :ash loan. The AO has mentioned that 'page no. 1-6 of Annexure A-2 [MR-8]' is a receipt in the name of the assessee in respect of cheque of Rs. 40 lacs against which , the cash of an equal amount was given to Sh. Prem Pal Singh. The page no. 9 of the same annexure annexure is a slip acknowledging the receipt of cash in lieu of cheque also the same and its mode of acceptance/repayment. The reply of the assessee that amount of Rs. 40 lacs was given through cheque and also received through cheque and that there was no cash transaction, was not found correct by the AO since the assessee failed to link the said debit/credit entries. As per the AO, n view of the facts, it was apparent that the cash of Rs. 40 lacs had changed hands in lieu of cheques mentioned in the seized receipt. As per the AO, the simple account of this incidence was that a sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased of 5 acre of land from Sh. Kewal Singh and 3 acre 13 marla from Sh. Narinder Singh, the detail of payment is extracted as below: "Regarding Rs. 95.00 Lacs mentioned at Page 18 of Annexure A-10: As mentioned above, it was a "Rough Proposal" to purchase 5 Acres of land from Sh. Kewal Singh and 3 Acre-13 Marlas from Sh. Narinder Singh. Subsequently thereto the following registered sale deeds were executed. Date Area Amount KEWAL SINGH 16.06.2015 8K Rs. 15.00 Lacs 07.01.2016 8K Rs. 15.00 Lacs 18.09.2017 SK Ps. 11.12 Lacs 18.09.2017 16K Rs.22.24 Lacs Total: A Rs. 63.36 Lacs NARINDER SINGH 22.06.2015 8K Rs. / 5.00 Lacs 20.10.2016 8K Rs. 12.35 Lacs 25.04.2017 SK-13M Rs. 13.80 Lacs Total: 13 Rs. 41.15 Lacs Total (A+B) Rs. 104.51 Lacs 15. The ld. Counsel argued that the above table substantiate the fact that the assessee had proposed to purchase land from two parties, Mr. Narinder Singh and Mr. Kewal Singh for approximately Rs. 95 lakh. The assessee is strongly relied on the the affidavit of Mr Narinder Singh. The ld. Counsel placed that there is no cross verification was done with Mr. Kewal Singh. The ld. Counsel placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly. 19. The ld. Counsel submitted a paper book which is kept in the record. In argument the ld. Counsel placed that addition of Rs. 38,07,065/- made by the revenue on account of unexplained expenditure on construction. It is stated that during course of search several documents were found and seized. During course of assessment proceeding the assessee was asked to explain the nature of expenses as mentioned in page nos. 37 to 170 of Annexure (A-6 (MR 8), in response to which the assessee filed his submission ignoring which the ld. AO had made the addition. The ld. counsel placed that the assessee submitted details documents before the ld. CIT(A) and the ld. CIT(A) has observed the following point which is extracted as below: "4.5 Ground of Appeal No. 5 relates to addition of Rs. 38,07,065/-. The AO has mentioned that the documents seized at 'Annexure A-6 [MR-8], pages 37 to 170' are loose papers containing the details of expenses of paint & tile of the college and page no. 170 is having the updated account of expenses on civil work of the college aggregating to Rs. 38,98,366/-. Regarding these, the assessee stated that the expense is also part of construction of ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 88/Asr/2020 is dismissed. ITA No. 90Asr/2020 for AY 2017-18 21. This appeal is challenged by the revenue with following grounds most of the grounds are in common with others only ground no. 1 to 4 are extracted as below: "1. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in deleting the addition of Rs. 5,67,04,000/- made u/s 69 of the I.T. Act, 196Ion account of unexplained cash deposits only on the ground that deposits are out of surrendered income. 2. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) while allowing relief to the assessee ignored the fact that the surrender of income was on account of alleged sale/purchase of properties. Subsequently, this was explained as income disclosed u/s 132(4) on account of business of immigration & Visa consultancy. Despite opportunities to substantiate the huge generation of cash was never furnished before the AO. 3. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) has failed to appreciate the fact that generation of huge cash amounting to Rs.5,67,04,000/- during the period of two months prior to demonetization is impossible since the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR, Audit Report, Balance Sheet, Profit & loss account, surrender letter and copy of cash accounts in the books of assessee out of which the cash was deposited. A perusal of the same shows that the assessee debited the cash account with Rs. 7,50,00,000/- on 08.09.2016 and accordingly the balance cash-in-hand has been increased by this amount (from Rs. 6,54,969/- to Rs. 7,56,54,969/-). Out of this, the cash seized on different dates have been reduced and the total seizure of Rs. 1,83,38,400/- has been taken to the Balance Sheet as cash seized by the Income Tax Department. There is merit in the argument of the AR that if the benefit of surrendered amount is not given to the assessee, then it will amount to double taxation of the same income. Under the facts & circumstances of the case, the assessee is entitled for benefit on account of surrendered made during the course of search and the addition made by the AO deserves to be deleted as the assessee has already paid tax on the surrendered income and has not taken benefit of the same anywhere else. Accordingly, this ground of appeal is allowed." 24. We heard the rival submission and relied on the documents available in the record. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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