TaxTMI 
TaxTMI 
2021 (11) TMI 626
X X X X Extracts X X X X
X X X X Extracts X X X X
....r dated 24.3.2016 with the information that during the course of survey action conducted in the case of Shah Housecon Private Limited on 11.11.2014. They have declared that they received on money to the extent of Rs. 1,000,000 from the assessee on sale of flat A 504, A Wing building at Malad East, Mumbai - 97. Accordingly show cause notice was issue to the assessee with regard to payment of such on money payment. In response assessee wide letter dated 20.12.2017 submitted that no cash payment was made for purchase of the said flat and the amount paid through cheque based on agreement are the true and correct price for the purchase of such said flat. In the same letter assessee also requested to provide opportunity for cross examination with Shah Housecon Private Limited. The assessing officer served letter dated 20.12.2017 asking the assessee to produce the parties before him in case of any objections with regard to payment of on money. In response assessee submitted that the transaction with the builder is over and being a small person buying flat from large builder, she does not have control over them with regard to bringing the parties before assessing officer. Since no response....
X X X X Extracts X X X X
X X X X Extracts X X X X
....11.11.2014. In this regard we would like to inform you that no cash payment has been done for purchase of flat and that amount paid through cheque based on agreement is only the correct and true price for purchases of the said Flat. Merely receipt loose paper from third party in her name, does not amount to un-escaped income and re-assessment proceedings should not be done. In this regard we rely on following decisions:- 1. CIT Vs. Lata Mangeshkar 97 ITR 2. CIT Vs. M. K. Brothers 53 CTR 228 (163 IT 249) 3. ACIT Vs Prabhat Oil Mill 52 TTJ 533 4. CBI VS V. C. Shukla3 SCC 410 In all these cases, it has been held that mainly because some loose papers or noting found out from thethird party mentioned the name of the assessee, additions cannot be made unless there are concreie corroborative evidence available showing the assessee having made such investment or received such unaccounted income. It has been held in all these cases that the A O must bring on record some corroborative material to M/s. Trident Creation Pvt. Ltd. Vs DCIT, CC- 1(1), Ahmedabad. Without prejudice to the above we further like to state that Sec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rity is of very important evidentiary value. The Hon'ble Bombay High Court in the case of M/s. Pebble investment & Finance Ltd. vs. ITO 2017 TIOL 188HC held that "statement u/s. 133A can be relied upon for purpose of assessment, in absence of any contrary evidence as to why such statement made is not credible. 4.1.2 In the case of CIT vs. KUWER Fibers Pvt. Ltd. (2017) TIOL 30 HC the Hon'ble Delhi High Court held as under. 'Additions made on the basis of Director's statement recorded during the course of search proceedings is sustainable where the statement recorded are duly corroborated by evidences on record. 4.1.3 The facts of the case clearly reveal that the on the basis of incriminating documents found during the course of survey action from the cabin of Shri Binesh Balkrishnan, the Director of M/s Shah Housecon Put Lid & Shri Binesh Balkrishnan senior Accountant admitted to having accepted part payment in cash towards sale of various properties in which the appellant's name is mentioned along with the exact amount received in cash from the appellant This is a concrete evidence of cash payments made by the appellant which has been affi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....view his order. 3. In the facts and circumstances of the case and in law, the Learned CIT (A) has erred in sustaining an addition of Rs. 10,00,000/- without there being any finding on the same in the Assessment order dated 27/12/2017. 4. In the facts and circumstances of the case and in law, the Learned CIT (A) has erred in confirming the reopening of assessment by Assessing Officer without any tangible material and merely on surmises and conjectures and without any application of mind on the information received from DCIT, Central Circle- 5(1). The reopening is based on borrowed satisfaction and hence not valid. 5. In the facts and circumstances of the case and in law, the Learned CIT (A) has erred in confirming the action of Assessing officer in making an addition of Rs. 10,00,000/- merely on the basis of statement of third parties and rejecting the appellant's request to provide opportunity of cross examination of said parties. The Assessment order passed is bad in law being in violation of the principles of natural justice as held by Supreme court in Kishanchand Chellaram v. CIT (1980) 125 ITR 713 and Andaman Timber Industries v. Commissioner of C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssessing officer. He submitted that it shows clearly that the reopening is based on borrowed satisfaction and hence not valid. 10. With regard to ground No. 5 he submitted that on consistent request from the assessee to have the opportunity of cross examination with the managing director and senior accountant of the SHPL based on which the addition was made in the hands of the assessee but the assessing officer did not give proper opportunity of cross examination. He submitted that the assessment order passed is bad in law being in violation of the principles of natural justice as held by the Hon'ble Supreme Court in the case of Kishanchand Chellaram versus CIT (1980) 125 ITR 713 and Andaman Timber Industries versus Commissioner of Central Excise (Civil Appeal No. 4228 of 2006). He further submitted that there is no evidence with the assessing officer to make the addition and only on uncorroborated evidence. Ld. AR submitted that Ld. CIT(A) has concluded, it is on assessee to prove that assessee has not paid any on money and he submitted that this conclusion is not proper. Since the tax authorities who has initiated the proceedings and it is on their part to prove the same. It i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f jurisdiction is involved and the Courts have held that in the case of issues involving jurisdiction, they interpreted the law literally and strictly. Whereas in the given case, the assessing officer has merely rectified the apparent mistake in his order which has no impact on the conclusion of the assessment order. Therefore, we do not see any reason to entertain the claim of the assessee. Accordingly, these grounds are dismissed. 12.1 With regard to mistake in the reasons recorded to reopen the assessment, we notice that the reasons were communicated to the assessee and the assessee also understood and participated in the assessment proceedings. Once again the assessing officer has made the typographical error in the concluding para of the notice. It does not change any material outcome, as long as it communicates the reasons for reopening the assessment, mere typographical error without having any material impact on the assessment, these can be considered as simple mistakes and rectifiable. 12.2 With regard to ground No. 5, we notice from the various communication exchanged between the parties, we noticed that the assessing officer completely relied on the statements give....