TaxTMI 
TaxTMI 
2026 (6) TMI 368
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....ned money being alleged on-money paid to Cosmos Group towards purchase of flat no. 802, Cosmos Mary Park, Thane(W), ignoring the contentions of the appellant that there was no evidence of any such on-money payment and ignoring the claim of the appellant that he had not paid any such on-money towards the purchase of the said flat. The addition Rs. 14,25,000/- on the above being was not warranted by facts and in law and may please be deleted. 3. The Hon CIT(A) erred in relying upon the statements of the members of the Cosmos Group without affording your appellant with opportunity to cross examine the said persons, thereby breaching the salient principles of equity, fair play and natural justice. The order framed in breach of the principles of natural justice is bad-in- law and void-ab-initio. 4. The appellant craves leave to add, alter, amend, delete and/or vary any of the above grounds of appeal at any time before the decision of the appeal." 2. Brief facts of the case are that assessee is individual filed its return of income for A.Y. 2012-13 declaring income of Rs. 2,71,280/-. Initially, the return was accepted. Later on, the case was reopened on the basis of ....
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.... such addition as the assessee is owner of 50% of flat. 4. On appeal before ld. CIT(A), the action of AO was upheld. Before, ld CIT(A) the request of assessee for cross-examination of Cosmos Group member was also declined by ld. CIT(A) by holding that addition is not only made on incriminating material. Further, aggrieved the assessee has filed appeal before Tribunal. 5. We have heard the submission of learned Authorised Representative (ld. AR) of the assessee and the learned Senior Departmental Representative (ld. Sr. DR) for the Revenue. The ld. AR of the assessee submits that the assessee along with his wife purchased a residential flat being Flat No. 802 at Cosmos Mary Park Thane (West) for a total consideration of Rs. 72.00 lacs. The details of payment are shown in the ledger account, copy of which is filed at page no. 98 to 101 of paper book. The copy of registered agreement dated 04.04.2012 is also placed on record. The assessee has not made any other amount except shown on the sale deed. The AO made addition of Rs. 14,25,000/- by taking view that assessee has made cash payment of Rs. 34,50,000/- out of which 28,50,000/- was paid in cash in the year under consideration....
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....is absent in the present case. To support such view, the ld. AR relied upon the decision of Hon'ble Supreme Court in ITO vs Lakhmani Mewal Das 103 ITR 437 (SC) and the decision of Mumbai Tribunal in Akash Developers vs ACIT in ITA No. 1767/M/2025. The ld AR of the assessee submits that he has good case on validity of reopening as well as on merit. 7. On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the Revenue supported the order of lower authorities. The ld. Sr. DR for the Revenue submits that AO was having sufficient evidence in the form of statement of key person of Cosmos Group and the supporting incriminating material found during the search which is sufficient to make the addition. 8. We have considered the rival submissions of both the parties and have gone through the orders of lower authorities carefully. We find that the AO made additions solely on the basis of statement of key persons of Cosmos group. The AO relied on the Excell sheet which is prepared by the investigation team (para-1 of AO order). Copy of incriminating material or the material contained in the alleged Gmail or yahoo mail is neither brought on record no supplied t....
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....he ld. Counsel has also referred the decision of ITAT in the case of Mrs. Mamta Sharad Gupta Vs. ITO 1(2) vide ITA No. 1553/Mum/2021 dated 16.06.2022 on the similar issue of on money as per the search action carried out in the case of Cosmos Group wherein the ITAT has held as under: "9. Since the sole issue raised in this appeal is covered by the order (supra) passed by the co-ordinate Bench of the Tribunal addition made in this case is not sustainable. Because the addition is made merely on the basis of statement made by one Mr. Suraj Parmar, one of the promoters of Cosmos Group under section 132(4) of the Act without any corroboration. Moreover, statement or any material seized during the course of search under section 132(4) of the Act can only be used against Mr. Suraj Parmar of Cosmos Group and not against the assessee without any corroboration. Excel sheet alleged to have been recovered from the office of builders is also not admissible being not proved under section 65 of the Evidence Act. So, in view of the matter, addition made by the AO and sustained by the Ld. CIT(A) is not sustainable in the eyes of law, hence ordered to be deleted. Consequently, appeal filed b....