TaxTMI 
TaxTMI 
TaxTMI 
2023 (1) TMI 897
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....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 view of the matter the authorities below have erred in levying and sustaining tax us 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....
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....ts 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 explanation as her name appeared on page 71 of the annexure. AO has noted that the aforesaid Annexure displayed the description of the Shop Nos. 387, 382 & 383 that were found to be in the name of family member of the assessee. It was further noted that Shop No.384 which was shown in the name of the assessee had mention about ....
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....o 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 the premises of the assessee, it cannot be attributed to the assessee. In support of the aforesaid contention, he placed reliance upon the decision of Tribunal in case of Straptex India Pvt. Ltd. vs. DCIT [2003] 84 ITD 320 (Mum), ACIT vs. Kishore Lal Balwant Rai [2007] 17 SOT 380 (Chd.), Jai Kumar Jain vs. ACIT (2007) 11 SOT (Jaipur) ....
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....d 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 cannot be assumed that one party disclosed correct figure of consideration and the other party concealed the true value of the property. There is no mention about action taken by Revenue in the case of seller who had sold the shops to the assessee. It was incumbent upon the AO to demonstrate the correct fair market value of the property when he....
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....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. Because the learned of the CIT appeals as erred in sustaining the addition of Rs. 9,02,000/- being the difference in the valuation of property as estimated by DVO and that recorded in the duly registered purchase deed. Report of DVO is an opinion and cannot via basis of determining the actual purchase price of property. 2. Because in any view of the matter ....
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....lief 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 during the search from official premises of Clavecon India Pvt. Ltd. was not a final document as that agreement was only name of Shri. Yugank Goyal and actually under subsequent agreement the property was purchased in the name of B.B Goyal, Smt. Anil Bala Goyal and Shri Yugank Goyal jointly by sale deed dated 22.07.2014. The Ld. AR also pointed out that all the payments have been made t....
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....e 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 out that when the Directorate Investigation during investigation has referred the matter to the DVO Meerut for valuation of property which was submitted by him on 24.04.2018 and the Assessing Officer initiated assessment proceeding u/s. 153A of the Act by issuing notice on 23.08.2021. However the Ld. A.O. did not appreciated and rather ignored this important piece of evidence gathered by the D....
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....or 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 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 and grounds no 1 and 2 of assessee in ITA No. 1534/Del/2021 are allowed. 17. Ground no. 2 of revenue. The Ld. CIT DR submitted the....
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....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 the assessee was proprietor of M/s. G G Earthmovers during A.Y. 2014-15, and available cash in hand in the said proprietary concerned was of Rs. 21,42,186/- on 13.11.2014 out of which he deposited amount of Rs. 5 lakh on 13.11.2014 and Rs. 4 on 14.112014. It is also 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 wh....
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....hasers 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 against the respondent and no enquiry was carried out by the A.O. to find out more details or positive evidence to establish that over and above payment has been made then the addition made on hypostatical basis cannot be held as sustainable. 24. On a careful consideration above submissions first of all that we may point out that on the same documents founds & seized during the search & seizure operation on the premises of the as....
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....ically. 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 payment in case of appellant from any seized material. In the appellate orders of Smt Ani Bala Goval and Smt. Maanya Goyal, additions on account of cash payments have been confirmed by the undersigned since there was categorical mention of cash payment in the seized material, therefore it has been held that in the light of provisions of section 132(4A) and 292C, the contents of seized material cannot be ignored. However in case of the....
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....e 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 leave to add, amend, modify or cancel all or any grounds of appeal. 28. The Ld. Counsel for the assessee briefly reiterated the written submissions of assessee which are as follows:- "3.4....... There seems some truth in the explanation of the assessee where it is alleged that the entries relate to some futuristic planning. Since the assessee is carrying on the business of estate agent, in the process of this business, he is required to discuss various plans, pro....
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.... 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 transaction, what did the figures noted in the piece of paper represent and whether in any manner the paper in question has any relevance to the determination of income in the hands of the assessee. The Department has not succeeded in bringing any corroborating evidence on record to support their findings..... Thus, addition on this account cannot be sustained. 29. The above written submissions can be summarized on following points:- (i) The agreement found and seized during the search oper....
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....reafter 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 thereafter he decided to changed his mind and requested the builder to refund of Rs. 1,00,000/- token payment. But instead of returning the amount of Rs. 1,00,000/- the builder due to lull in the real estate market, hard press the assessee to purchase property and not to change his mind and for this purpose he prepared an agreement by filing imaginary figures except payment of Rs. 1,00,000/-, and the send same to the assessee to force him entered into that agreement but the assessee never acted upon on such agreement and repeate....
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....one 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 the Act. To support this proposition the Ld.AR has relied on various orders and judgments of Hon'ble High Courts and coordinate benches of Tribunal which are listed below:- i) Commissioner of Income Tax vs. Ravi Kumar [(2008) 168 taxman 150 (Punjab & Haryana) ii) Kantilal Chandulal & Co. v. Commissioner of Income Tax [1992] 136 ITR 889 iii) PCIT vs. Nexus Builders and Developers (p.) Ltd. (2022) 134 taxmann.com 82 (Bom) (iv) Monohar lal Rattan lal vs. DCIT [2004 (2) TMI-275- ITAT Amritsar] (v) Saamag Developers (P.) Ltd. v....