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2022 (1) TMI 1385 - AT - Income TaxUnexplained investment u/s 69 - on money paid for purchase of the said land through its partner and the payment of on money in cash is not recorded in the books of account - HELD THAT - We find that DR failed to controvert the facts that firstly the additions were made simply on the basis of statement of power of attorney holders, secondly the addition was made without providing any opportunity of cross examination to the assessee with the 3rd party on whose statement addition has been made, thirdly, the additions are made merely on the basis of oral evidences and there is no evidence on record which could prove that the seller has received on money and offered the same before the revenue authorities and lastly the addition seems to be made on assumption and presumption as except the registered sale deed no other incriminating material was found during search proceedings which could indicate that the alleged on money has been paid by the assessee. As in the finding of ld. CIT(A) are inclined to hold that no addition u/s 69 was called for in the hands of assessee. No infirmity in the finding of ld. CIT(A) and the same is confirmed. Decided against revenue.
Issues Involved:
1. Deletion of addition of Rs. 3,53,80,000/- made by the AO on substantive basis on account of unexplained investment u/s 69 of the Income Tax Act 1961. Issue-wise Detailed Analysis: 1. Deletion of Addition of Rs. 3,53,80,000/-: The primary issue in this case revolves around the deletion of an addition of Rs. 3,53,80,000/- made by the Assessing Officer (AO) on account of unexplained investment under Section 69 of the Income Tax Act, 1961. The assessee, a partnership firm engaged in the business of builder and developer, was subjected to a search action under Section 132 of the Act. During the assessment proceedings, the AO observed that the assessee had allegedly paid Rs. 3,53,80,000/- in cash as 'on money' for the purchase of land, which was not recorded in the books of accounts. Contentions by the Assessee: The assessee contended that no amount over and above the consideration mentioned in the registered sale deed was paid. The land was purchased from Shri Pradeep Sharma and Shri Pradeep Hirani, and the assessee had no knowledge of any agreement dated 27.11.2010 indicating a higher sale consideration. The assessee argued that the AO made the additions based on assumptions and presumptions without providing any opportunity for cross-examination of the sellers. Findings by the CIT(A): The Commissioner of Income Tax (Appeals) [CIT(A)] deleted the addition made by the AO, observing that: - The addition was made merely on the basis of statements of third parties (sellers) recorded by the DDIT(Inv), Bhopal, without providing the assessee an opportunity for cross-examination. - The statements of the sellers were recorded behind the back of the assessee, and no corroborative evidence was found to support the claim of 'on money' payment. - The AO did not conduct any independent enquiry and relied solely on the statements of third parties. - The registered sale deed indicated a sale consideration of Rs. 1,76,50,000/-, and there was no evidence to prove that any additional amount was paid. Judicial Precedents Cited: The CIT(A) referred to several judicial precedents, including: - The decision of the Hon'ble Supreme Court in the case of CIT vs. KP Varghese (131 ITR 574), which held that in the absence of evidence that the assessee paid more than the amount declared in the registered deed, no addition can be made. - The decision of the Hon'ble ITAT Indore in the case of Shri Parshwanath Construction vs. ITO (ITA.379/Ind/2013), which emphasized that oral evidence loses its credibility when a registered document is available. - The Hon'ble Supreme Court's ruling in Andaman Timber Industries vs. Commissioner of Central Excise Kolkata, which stated that in the absence of cross-examination, the assessment proceedings are nullified. Tribunal's Analysis and Conclusion: The Tribunal upheld the CIT(A)'s decision, noting that: - The addition was based solely on the statements of power of attorney holders without any corroborative evidence. - The assessee was not provided an opportunity for cross-examination. - The addition was made on the basis of oral evidence without any documentary proof of 'on money' payment. - The AO's addition was based on assumptions and presumptions, as no incriminating material was found during the search proceedings to indicate that the alleged 'on money' was paid. Final Judgment: The Tribunal found no infirmity in the CIT(A)'s findings and confirmed the deletion of the addition of Rs. 3,53,80,000/- made by the AO under Section 69 of the Act. The appeal of the revenue was dismissed, and the order was pronounced as per Rule 34 of the I.T.A.T. Rules, 1963, on 28-01-2022.
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