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2022 (4) TMI 321 - AT - Income TaxUndisclosed investment - Addition based on loose sheet found in search - HELD THAT - AO has not made any further enquiry with any other parties and made the addition based only on the loose sheet of paper found during course of survey action. AO has made addition as unexplained investment which is not sustainable in law. Further, it can be seen from the loose sheet that working made are stated to be estimation only that cannot be a base for making addition by the AO under section 69 of the Act. As held by the Ld. CIT(A) in his order, the partnership firm has been constituted on 3.2.2011 with no business and no receipt of any booking for the project, cannot have the fund at its disposal to have the amount to the tune of ₹ 10.10 crores to pay to Smt. Nitaben Patel. Therefore, this particular hypothesis does not hold water and stand the probability. We also concur with the finding that the Ld. CIT(A) that, if ₹ 10.10 crores is added in the hands of the assessee, as done in the impugned assessment, the project cost and the work-in-progress have to be enhanced by that amount, and consequently the profit would go down or the project would end up in loss and that the effect of addition made in the hands of the assessees firm as made in the assessment order would get neutralized/nullified over the period of the project. On this count also the addition made is not correct. During the search action under section 132 on 7.1.2014 in Bafna Panchal group of cases which covered the residential premises of Smt. Nitaben Patel, there is no record to show any incriminating materials relating to the purchase of this land was seized by the Revenue/Income Tax Department. Therefore, the addition made u/s. 69 of ₹ 10.10 is not sustainable in law and we are in conformity with the orders passed by the Ld. CIT(A) on this issue.- Decided against revenue.
Issues Involved:
1. Validity of reopening of assessment under section 147 of the Income Tax Act. 2. Legitimacy of the addition of ?10.10 crores as unexplained investment under section 69 of the Income Tax Act. Issue-wise Detailed Analysis: 1. Validity of Reopening of Assessment: The Commissioner of Income Tax (Appeals) [CIT(A)] considered the validity of reopening the assessment and found it justified based on the impounded documents during the survey. The reopening was initiated by the Assessing Officer (AO) due to the discovery of a loose sheet during the survey, which suggested an unexplained investment in the land. The AO issued a notice under section 148 on 31.1.2017, which the assessee responded to by treating the original return as filed in response to the notice. The CIT(A) upheld the reopening, indicating that the initial grounds for reopening were valid. 2. Legitimacy of the Addition of ?10.10 Crores as Unexplained Investment: The AO added ?10.10 crores to the assessee's income as unexplained investment based on a loose sheet found during the survey. This sheet detailed the project cost of "Monalisa Lakewood" and suggested that the land was purchased for ?12.60 crores, while the sale deed reflected only ?2.5 crores. The AO concluded that the difference of ?10.10 crores was an undisclosed investment. The CIT(A) directed the AO to delete this addition, providing several reasons: - The land was purchased by Smt. Neetaben Patel in her individual capacity, and the investment was made by her, not by the partnership firm. The land was introduced as capital contribution by Smt. Neetaben Patel to the firm, and any unexplained investment should be attributed to her and not to the firm. - No evidence was found during the survey or search to support the claim that the firm paid an undisclosed amount of ?10.10 crores to Smt. Neetaben Patel. - The firm, constituted on 3.2.2011, had no business or funds to pay such an amount. - The loose sheet was considered a rough estimation and not a reliable document for making such a significant addition. - Adding ?10.10 crores to the project cost would neutralize the effect over the project's period, making the addition impractical. The Tribunal upheld the CIT(A)'s decision, emphasizing that: - The AO's addition was based solely on the loose sheet without corroborative evidence. - The investment in the land was made in the assessment year 2011-12, and any addition should be made in that year, not in 2013-14. - The partnership firm did not have the funds to make such a payment. - The loose sheet was an estimation and not a concrete basis for the addition. The Tribunal also referenced the Gujarat High Court's judgment in Pr. CIT Vs. Nageshwar Enterprises, which stated that additions cannot be made solely based on admissions without corroborative evidence. Conclusion: The appeal filed by the Revenue was dismissed, and the Cross Objection filed by the assessee was also dismissed. The Tribunal agreed with the CIT(A) that the addition of ?10.10 crores as unexplained investment was not sustainable in law. The Tribunal emphasized the lack of corroborative evidence and the impracticality of the addition based on the loose sheet. The order was pronounced on 16th March 2022 at Ahmedabad.
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