TaxTMI 
TaxTMI 
2023 (8) TMI 1625
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....ommission. 2. On the facts and in the circumstances of the case and in law, the ld. CIT (A) has failed to appreciate that the assessee had booked/purchased a villa in KBG Scheme Unit No. 371 & 372 and had business/financial relationship with NODPL, despite the name of the assessee is clearly mentioned in excel file namely, x10000226.xls. 3. On the facts in the circumstances of the case and in law, the ld. CIT (A) has failed to appreciate that NODPL has accepted on money receipts recorded in the seized excel sheet and has offered income on the same in its application filed before ITSC. Also the submission filed by NODPL shows that the transaction was done between NODPL and the assessee. 4. On the facts and in the circumstances of the case and in law, the ld. CIT (A) has failed to appreciate that the seized excel sheet was duly reproduced in notice u/s 142(1) of the Act dated 21/10/2019 and satisfaction note was also provided to the assessee which was completely ignored by the Ld. CIT(A). Moreover the soft copy of the same was also sent to the assessee through e-proceedings facility, however the assessee has intentionally ignored the onus to explain the purpose of payme....
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....etails of the on-money given by the assessee. In view of the above the Assessing Officer made an addition of Rs. 8,05,11,000/- in the hands of the assessee as unexplained income under Section 69C of the Act. 4. The assessee filed appeal before CIT (A) against the aforesaid order passed by the Assessing Officer. 5. In appeal, Ld. CIT (A) allowed the appeal of the assessee on the ground that the assessee was not provided copy of any incriminating material which would prove that assessee had paid unaccounted money to NODPL for the purchase of property. Further, the additions were made in the hands of the assessee on the basis of statement of parties, but the assessee was never provided an opportunity to cross-examine the parties on the basis of whose statement, additions were made in the hands of the assessee. The assessee has furnished all details of payment made by him for the purchase of plots and the construction thereon alongwith documentary evidences. The Assessing Officer has failed to link the notings of excel sheet with the details provided by the assessee. Further, the Affidavit of Mr. Murlidhar M. Trivedi also clearly indicates that the said transaction belongs to NO....
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....rson whose statement is sought to be used against the appellant, no adverse inference can be drawn against the appellant on the basis of the said excel sheet named "x10000106.xls". From the assessment order, it can be seen that the AO has relied upon the affidavit of Shri Murlidhar M. Trivedi dated 4/12/2019, wherein he has stated that excel file named "x10000106.xls" belongs to Navratna Organisers & Developers Pvt. Ltd. The AO has also stated that NODPL has submitted an application u/s. 245D(1) of the Act before the Hon'ble Settlement Commission wherein they have submitted that the course of search operation at the residence of Murlidhar M. Trivedi an excel file named "x10000106.xls" was found which contained various notings and jottings. The excel sheet is for the period from March 2014 to September 2014. The Digital Data claimed to includes the-following : A) Receipt of on-money in respect of units booked. B) Refund of on-money upon receipt of cheque etc.". The AO has also relied upon the submission made by the NODPL wherein it has been accepted that the seized data belongs to its transaction and contains A) Receipts of on money in respect of units booked B) refund of on-mon....
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....e payment for material, payment for labor/expenses, receipts of on money in respect of units booked and refund of on money upon receipt of cheque. In the entire assessment order, the receipt of cash has not been linked with respect to on-money in respect of units booked, such as total market value, cheque amount, cash element, comparable cases etc. and therefore, the same cannot be considered towards the on- money. The AO has made addition for cash payment but not towards on money as explained in para No. 3.10 of the assessment order. Therefore, it is not the case of the AO for making addition towards on-money. The AO has also not linked the cheque payment with respect to cash payment and even with respect to borrowing etc. and therefore, the addition even for cash payment is not justified in absence of further evidences and cross examination as the appellant has categorically denied having paid any amount. 5.8 Thus, the action of the AO is in sheer violation of principle of natural justice and against the ratio laid down by the Hon'ble Supreme Court and other course of law referred and relied upon by the appellant in this regard as reproduced herein above. Hon'ble ....
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....ure. Merely doubting the notings as to an actual transaction without any corroborative evidence cannot be the reason for sustaining an addition. The appellant has referred to the case of Common Cause (A Registered Society) vs. UOI (2017) 394 ITR 220 (SC) and Pradeep Amrutlal Runwal (2014) 149 ITD 548 (Pune) in support of his contention. 5.10 I agree with the contention of the appellant that even in the affidavit so furnished by the searched party i.e Shri Murlidhar Trivedi (copy of which has not been provided to the appellant) the only worthwhile clarification is that the transactions belong to NODPL. How, the appellant is connected with the excel sheet has not been clarified by Mr. Murlidhar Trivedi as would be observed on the perusal of the assessment order. It is a settled legal proposition that additions cannot be made on mere notings and jottings and some corroborative evidence has to be brought on record to support the allegation. In the case of Gyankumar Agarwal v ACIT (2012) 146 TTJ 334 (Hyd.) it was held that " material considered by the Assessing Officer for making the addition was only the seized material which was a note book containing the details of day-to-day l....
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....nt year 2009-10 - No addition should be made in case of assessee on bast's of an entry found in account of third party from which neither it could be definitely said that name written therein was that of assessee nor any other evidence relating to above transaction had been found in favour of assessee] In the case of Jawaharbhai Atmaram Hathiwala (2010) 128 TTJ (Ahd.)(UO) it was held that "Section 69 of the Income-tax Act, 1961 - Unexplained investments - Assessment year 1999-2000 - Where assessee was alleged to have paid a sum as 'on money' for purchase of flat but no evidence could be brought on record by Revenue to show that in fact assessee had paid 'on-money' to developers, and no document containing signature of assessee or handwriting of assessee to corroborate above making of payment by assessee was found during course of search, addition on account of such alleged payment was not justified fin favour of assessee] In the case of ACIT V Prabhat Oil Mills (1995) 52 TTJ 533 (And.) it was held that "As stated above the impugned addition has been made by the Assessing Officer on two grounds, viz., erratic yield of oil cake compared monthwise and secondl....
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....d by the judgment of the Bombay High Court in the case of Addl. Commissioner v. Lata Mangeskar (1974) 97 ITR 696 (Bom). 5.11 In light of the above discussion and the settled position of law I agree with the arguments extended by the appellant that the addition is not sustainable particularly in light of the fact that the searched party has merely indicated that the documents in question belongs to NODPL. The AO has also not been able to bring any material or other evidence on record in support of the notings made that such amounts have actually been paid by the appellant to NODPL. 5.12 The appellant had also argued that any statement or other deposition made by Shri Murlidhar Trivedi on behalf NODPL would not have any evidentiary value whatsoever, particularly on account of the fact that he was not a Director or an authorised person of the aforesaid company. No adverse inference can be on the basis of any statement made by any person who is a stranger to the company to which the transaction is alleged to pertain. It was also submitted that in view of this fact Shri Murlidhar Trivedi would have no locus standi to make such statement which can implicate the appellant in any man....
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....addition. In the case of Rajvee Tractors Pvt. Ltd. 143 taxmann.com 330, the Ahmedabad ITAT held that where the Assessing Officer made additions in the hands of the assessee company on the basis of draft sale deed of property between the assessee company and a developer on purchase of property being reported less / short by it, and the said draft deed was never signed by the assessee and application by the developer before Settlement Commission admitting to have invested certain amount of unaccounted income was not provided to the assessee for confrontation, impugned additions were directed to be deleted. In the case of Gordhanbhai Talavia 146 taxmann.com 528, the ITAT held that where the Assessing Officer made additions to income of the assessee on the basis of certain loose papers recovered during search, however, no enquiry was conducted or independent evidence was brought on record, being corroborative evidence to connect seized material with the assessee, there was no infirmity or illegality in the order passed by Commissioner (Appeals) in deleting the addition. In the case of Pradeep Amrutlal Runwal 47 taxmann.com 293, the ITAT held that where the Assessing Officer made additi....