2021 (9) TMI 885 - AT - Income Tax

Tribunal upholds CIT(A) decision, dismissing appeals by assessee and Revenue on all issues. Order dated 01/09/2021.

M/s. Apex Realities Versus ITO-3 (2) Indore And (Vice-Versa)

The Tribunal dismissed both the assessee's and the Revenue's appeals, confirming the findings of the CIT(A) on all issues. The order was pronounced on ... Addition u/s 69 on account of unexplained investment - HELD THAT:- As during the course of assessment proceedings it was found that the assessee has made the cash payment of ₹ 50,000/- out of the books. During the course of assessment proceedings as well as appellate proceedings, the assessee failed to explain the source of investment. Even before us, the Id. Counsel for the assessee could not bring any contrary material to controvert the findings of the Revenue Authorities. - the addition made by the AO as confirmed. Therefore, the first ground raised in the appeal of the assessee is dismissed. Addition u/s 69 on account of unexplained investment - during the course of survey, it was found that assessee had made the cash payment to the land owners against the purchase of their land - CIT(A) discussed the relevant judicial pronouncements and found that neither the retraction was made nor communicated to the Revenue Authorities and the record suggests that no threat or coercion has been exerted during the confession statement of the assessee - HELD THAT:- CIT(A) discussed the evidentiary value as per Indian Evidence Act and reached to the conclusion that no retraction communicating to the Revenue Authorities was made and it is also evident from the record available that no threat or coercion had been exerted during the confession statement of the assessee. Even before us, the finding of the Id. CIT(A) could not be controverted by the Id. CIT(A) by bringing any contrary material on record, thus, we are in agreement with the Id. CIT(A) in observing that the evidence of testimony cannot be wiped out and does not become non-existent and therefore, this evidence can well be utilized to frame the assessment. Accordingly, we do not find any reason to interfere with the findings of the Id. CIT(A). Hence, the findings recorded by the Id. CIT(A) are confirmed. Therefore, last ground i.e. ground no.2 raised in the appeal of the assessee is also dismissed. Addition u/s 69C - unexplained expenditure - HELD THAT:- We find that the assessee made the payment by RTGS and the source of payment and destination can be found on the bank statement. Since the assessee purchased the stamp and made the payment through RTGS then there is no question of considering the same has unexplained investment - AO issued the summon u/s 131 of The Act to the stamp vendor and by issuing the summon, the stamp vendor becomes the witness of the Revenue and thus, it was the duty of the Assessing Officer to collect the information from the stamp vendor and confront to the assessee but the AO failed to gather the information. Even before us, the Id. CIT-DR could not controvert the findings of the CIT(A) on this issue. Accordingly, we confirm the findings of the Id. CIT(A) on this issue. Hence, ground no. 1 raised in the appeal filed by the Revenue is dismissed. Unexplained and undisclosed investment u/s 69B - HELD THAT:- Assessing Officer failed to discharge his onus and simply on guess work, presumption and suspicion, the addition in this regard had been made. The allegations of the Assessing Officer were merely without having brought any corroborative material on record and Id. CIT-DR also could not bring any contrary material to rebut the findings of the Id. CIT(A), therefore, we do not find any reason to interfere with the finding recorded by the Id. CIT(A). We confirm the same. Accordingly, the ground no.2 raised in the appeal of the Revenue is also dismissed. Issues Involved:1. Addition of Rs. 50,000/- under Section 69 for unexplained investment.2. Addition of Rs. 70,00,000/- under Section 69 for unexplained investment.3. Deletion of Rs. 70,73,241/- under Section 69C for unexplained expenditure.4. Deletion of Rs. 11,30,80,000/- under Section 69B for unexplained and undisclosed investment.Issue-wise Detailed Analysis:1. Addition of Rs. 50,000/- under Section 69 for unexplained investment:During the assessment proceedings, it was found that the assessee made a cash payment of Rs. 50,000/- out of the books. The assessee failed to explain the source of this investment during both the assessment and appellate proceedings. The Tribunal confirmed the addition made by the Assessing Officer (AO), as the assessee could not provide any contrary material to dispute the findings of the Revenue Authorities. Therefore, the first ground raised by the assessee was dismissed.2. Addition of Rs. 70,00,000/- under Section 69 for unexplained investment:A survey under Section 133A revealed that the assessee made a cash payment of Rs. 70,00,000/- to landowners against the purchase of their land, and no cash was available on the date of registry (22/01/2015). The partner of the firm admitted an additional income of Rs. 70,00,000/- during the survey. The AO made an addition based on this admission. The CIT(A) confirmed the addition, noting that the confession was voluntary and no retraction was made. The Tribunal agreed with the CIT(A), emphasizing that the statement was binding on the assessee and no contrary evidence was provided. Thus, the second ground raised by the assessee was also dismissed.3. Deletion of Rs. 70,73,241/- under Section 69C for unexplained expenditure:The AO noted a discrepancy in the payment date for stamp duty and made an addition of Rs. 70,73,241/-. The CIT(A) deleted the addition, stating that the payment was made through RTGS, and the source and destination were evident from the bank statement. The AO failed to gather information from the stamp vendor despite issuing a summons. The Tribunal upheld the CIT(A)'s findings, noting that the payment was properly documented and the AO did not collect necessary evidence. Therefore, the first ground raised by the Revenue was dismissed.4. Deletion of Rs. 11,30,80,000/- under Section 69B for unexplained and undisclosed investment:The AO made an addition based on a statement from a third party (Shri Nagendra Singh Chauhan) suggesting that the assessee paid Rs. 60,00,000/- per beegha for land. The CIT(A) deleted the addition, observing that the third party was not related to the transaction and no evidence of on-money payment was found during the survey. The Tribunal agreed, stating that the AO's addition was based on uncorroborated statements and no documentary evidence supported the claim. The Tribunal emphasized that the burden of proof was on the Revenue, which was not discharged. Therefore, the second ground raised by the Revenue was dismissed.Conclusion:The Tribunal dismissed both the assessee's and the Revenue's appeals, confirming the findings of the CIT(A) on all issues. The order was pronounced on 01/09/2021.