TaxTMI 
TaxTMI 
2026 (4) TMI 1917
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....being disposed of by this composite order by taking into consideration ITA No. 8380/M/2025 as the lead case, and the result of the same would be applicable mutatis mutandis to all the appeals under consideration. 3. Coming to ITA No. 8380/M/2025, we observe that there is delay of 05 days in filling of this appeal. Considering the reasons for delay which are otherwise supported with duly sworn affidavit, the delay is condoned. 4. Coming to merits of the case, it is observed that a search and seizure action was conducted on 17.03.2021 on Rubberwala Group cases, wherein the premises of M/s Rubber Housing and Infrastructure Ltd. (RHIL) and its Promoter and Director Shri Tabrez Shaikh and key employee of Rubberwala Group, Shri Imran Ansari, who was handling sale and registration of shops in "Platinum Mall" project of RHIL, were covered, and among others, statements of all these persons were recorded on oath on various dates during the course of search, as well as post-search proceedings. Shri Imran Ansari, during the course of search and seizure action conducted at his premises, made a statement that he has been working with Rubberwala Group entities since 2010 and inter-alia hand....
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....ity of cross-examination and not providing the copies of the incriminating material and statements relied upon by the Assessing Officer, as well as the addition on merits. However, could not get any relief, as the Ld. Commissioner not only affirmed the aforesaid addition and the assessment order on legal aspects, but also on merits as well, by passing the impugned order. 9. Thus, the Assessee being aggrieved has challenged the impugned order sustaining the addition by the Ld. Commissioner on various aspects, including legal in nature. 10. The Assessee before us has claimed that in the assessment order, the Assessing Officer has not specified or depicted the Excel sheet and/or incriminating material, date, mode and source of alleged on-money payments. Further, the Excel sheet is neither made part of the assessment order nor any communication issued to the Assessee. Further, the date of creation of Excel sheet and by the person who created and the source of data was never established, rendering the same as unreliable and unauthenticated evidence. There is no corroborative material linked with the Assessee to the alleged cash payment. Hence, the documents relied on by the Assess....
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....nt order and therefore the cash component as recorded in the Excel sheet, cannot be sidelined. The Ld. D.R. further claimed that the Assessee has not specifically asked for the incriminating documents and/or opportunity for cross-examination and therefore the addition, which is otherwise based on incriminating statement, admission and material/documents, cannot be doubted. 11.2 The Ld. CIT D.R. further submitted that in the cases relied on by the Assessee, the Hon'ble Benches of the Tribunal have dealt with exceptional circumstances, as no cash vouchers/receipts/ ledger or document signed by the Assessee and incriminating material directly connected with the Assessee, was ever found in those cases. However, this case is contrary. Thus, the instant case cannot be equated on similar footings, as that of the cases relied on by the Assessee. 12. Having heard the parties and perusing the material available on record and giving thoughtful consideration to the peculiar facts and circumstances of the case and rival claims of the parties, it is observed that from the assessment order that it clearly appears that the Assessing Officer made the addition mainly on the basis of the ex....
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....r cases travelled upto the Hon'ble Coordinate Benches of the Tribunal, who dealt with the cases in detail in the context of the same search and seizure operation, same pen drive, same statements and same offering of income at the rate of 8% on the unaccounted cash components by the Director of the RHIL Group and execution of Sale agreement by the said promoter. The Tribunal ultimately deleted the identical additions. 17. As observed above, the Hon'ble Coordinate Bench of the Tribunal in the case of Veena Hiralal Mehta (supra), has also dealt with identical addition on the basis of identical facts and circumstances and evidence and ultimately deleted the same by observing and holding as under: "18. Heard the parties and perused the material available on record. From the assessment order, it clearly appears that the Assessing Officer made the addition mainly on the basis of the pen drive recovered from the premises of Mr. Ansari, the statement of Mr. Ansari wherein he admitted receipt of the cash component by the company, and the statement of the Director of the RHIL Group wherein he admitted statement made and the Excel sheet prepared by Mr. Ansari as true and of....
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....s cash voucher, receipt, ledger or any document signed by the Assessee, was ever found during the search or post-search proceedings, either from the Rubberwala Group or Mr. Ansari, whose statement has been made the foundation for making the addition, in that eventuality, the onus shifts upon the Revenue Department to substantiate/corroborate the evidence collected during the search proceedings and to offer an opportunity for confrontation or cross- examination of the witnesses, whose statements were relied upon, while making the addition. Which the Revenue failed to substantiate the evidence collected and also failed to give any opportunity of cross examinations of the witnesses whose statements were relied on and/or made a foundation for making the addition. 24. We further observe that identical shops in same" Shopping Mall i.e. Platinum Mall" were also purchased by various other Assessees, wherein in their cases as well, identical additions were made, and therefore their cases travelled upto the Hon'ble Coordinate Benches of the Tribunal, who dealt with the cases in detail in the context of the same search and seizure operation, same pen drive, same statements and sa....
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....In view of the foregoing discussions, we are of the view that the addition of Rs.18,64,200/- made by the AO cannot be sustained. Accordingly, we set aside the order passed by Ld CIT(A) and direct the AO to delete this addition." 26. The Hon'ble co-ordinate Bench of the Tribunal in Pravin Khetaramm Purohit (or Parveen Kheta Ram) vs. DCIT (ITA Nos. 4742 to 4744/M/2025, decided on 15.10.2025) also dealt with identical addition based on the same search and seizure and material recovered and statements recorded and ultimately deleted the identical addition by observing and holding as under: "18. From the records we also noticed that no statement was provided to the assessee, and none of the persons, whose statements were relied upon were produced for cross- examination. Even the extract of the statement mentioned in the assessment order does not indicate the name of the assessee. 19. Apart, the AO during the course of assessment also failed to provide the opportunity to cross examine of the witnesses, whose statements were relied upon by the revenue which resulted in 'breach of principles of natural justice'. In this regard, reliance is being place....
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....missions and perused material on record. Undisputedly, the genesis of the addition made of 42 lakh on account of alleged payment of on-money in cash towards purchase of a flat lies in a search and seizure operation conducted in case of Hiranandani Group and related persons. Though, in the assessment order the Assessing Officer has not discussed in detail the nature of incriminating material / evidence available on record to indicate payment of on- money in cash by the assessee to M/s. Crescendo Associates, however, from the show cause notice dated 4th March 2015, which is reproduced by the Assessing Officer in the assessment order, it appears that the incriminating materials are in the form of pen drive found and seized from the residence of one of the employees of Hiranandani Group and a statement recorded under section 132(4) of the Act from Shri Niranjan Hiranandani, Director and Promoter of the Group, wherein, the details of onmoney paid by buyers / prospective buyers to Hiranandani Group concerns are mentioned and further, in the statement recorded under section 132(4) of the Act on 14th March 2014, Shri Niranjan Hiranandani, has admitted receipt of on-money in cash towards sa....
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....ssee an opportunity to cross-examine Shri Niranjan Hiranandani, and other persons whose statements were relied upon. This, in my view, is in gross violation of rules of natural justice and against the basic principle of law. In this context, I may refer to the decision of the Tribunal, Mumbai Bench, in Nikhil Vinod Agarwal (supra). Thus, for the aforesaid reason, the additior made cannot be sustained. 11. Even otherwise also, the addition made is unsustainable because of the following reasons. As discussed earlier in the order, the basis for addition on account of on-money is the information contained in the pen drive found during the search and seizure operation and the statement recorded under section 132(4) of the Act. As regards the information contained in the pen drive, it is the contention of the assessee that the said pen drive was not found from the possession of the assessee but in course of search and seizure operation conducted in case of a third party. Therefore, in absence of further corroborative evidence to establish that the contents of the pen drive are correct and authentic to the extent that the assessee paid on-money in cash, no addition can be made un....
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....g any infirmity in the same. Moreover, no investigation has been made with the Registration office/Stamp Duty authorities in this regard but he made the addition of such a huge sum without making any effort to corroborate his findings. The WhatsApp chat/post is nothing more than rough working communication between buyer's son and his accountant. It does not specifically mention either the name of the assessee or even the impugned property transaction. The assessee was searched by the Department. However, no corroborative evidence of receipt of any cash over and above the disclosed amount has been brought on record by the AO. 7.1 The AO has placed considerable reliance on the digital evidence in the form of chats. However, we find that the order is completely silent on whether the requirements of section 65B of the India Evidence Act, 1972 have been satisfied or not since the provisions require that to be admissible, they must be accompanied with a valid certificate under section 65B(4). Mere screenshots or forwarded chats have no evidentiary value since they are susceptible to tampering or fabrication. Unless the source devise is produced or section 65B certificate is ....
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.... further observe that the Hon'ble Gujarat High Court in the case of Principal Commissioner of Income Tax (Central), Ahmedabad vs. Kausik Nanubhai Majithia (R/Tax Appeal No. 20 of 2024 dated 06.03.2024) has also considered identical addition made on the basis of Excel sheets found from the computer of a person associated with a company namely Navratna Organizers and Developers Pvt. Ltd. (in short, 'the Developer), in the premises of whom the search was conducted. As per the details of payment made by the Assessee to the developer as mentioned in the Excel sheets, the tax has been paid by the developer before the Settlement Commission. Thus, the Revenue before the Hon'ble High Court has claimed that payment of tax by the developer, in whose premises search was conducted, before the Settlement Commission with respect to the amount entered in the Excel sheets found from the possession of the person working with the developer, was sufficient proof of the transaction between the Assessee and the developer. 18.1 The Hon'ble Gujarat High Court has considered the peculiar fact that the Excel sheet, on the basis of which proceedings were initiated under section 153C of the....
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....sion. 20. The Hon'ble High Court by considering the peculiar facts that the Assessee has denied payment of any cash to Lucina, held that, the entire basis i.e. the letter received from Lucina accepting the receipt of cash amount and offering the same to tax before the Settlement Commission, is alone not enough. The Hon'ble High Court further held that if the amount of Rs.20,91,200/- received from Assessee has been offered to tax by 'Lucina' before the Settlement Commission, then how the same amount can be taxed again in the hands of the Assessee. Thus, Hon'ble High Court on the aforesaid reasons, ultimately quashed the order and notice under section 148A(d) and 148 of the Act respectively. For brevity and ready reference, the conclusion drawn by the Hon'ble High Court is reproduced as under: "10. In the order dated 23rd July 2022 passed under section 148A(d) of the Act, it records Petitioner has denied having paid any cash to Lucina. The Assessing Officer ("AO") says Petitioner, however, did not submit any documentary evidence in support of her claim. The only basis on which an allegation is made that Petitioner has paid cash is a statement of so....
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.... 21. Thus, on the aforesaid analysis and the judgments of the Hon'ble High Courts, reply to the contention raised by the Ld. D.R. to the effect that the admission and offering of on-money to tax by the Promoter/Director of RHIL and execution of Agreement for Sale by the promoter himself would entail making and affirming the addition, has become clear and therefore answered in "negative". Thus, on that particular aspect as claimed by the Ld. CIT DR, the addition is un-sustainable, specifically in view of the judgements referred to above. 22. Coming to another contention raised by the Ld. CIT DR that none of the Benches have dealt with excel sheet in particularly and therefore the instant case is factually dissimilar to the cases relied on by the Assessee and therefore the excel sheet which is otherwise having details of cheque amounts as correlated with the assessment order and agreement for sale as accepted by the Assessee and therefore the same excel sheet having details of on money can be made the foundation for making the addition in hand. We observe that the Hon'ble Co-ordinate Bench of the Tribunal in the case of Arvind Ketaram Purohit vs. DCIT, Central Circle (ITA ....