2023 (1) TMI 768 - AT - Income Tax

Unexplained investment u/s.69B - husband of the assessee was also part of the said transaction as per the contentions of the Revenue - addition deleted in assessee s husband s case is on technical ground and the same cannot be applied in the present case - HELD THAT - The assessee has 50% share in the property with Anal N. Shah who is husband of the assessee. This fact was never discussed by the AO and, therefore, the assessee cannot be solely held responsible for the entire addition - Besides this, the Assessing Officer in the assessment order has solely relied upon the statement of builder M/s. Munishi Land Developer LLP made before the Hon ble Settlement Commission but nowhere it has been described that the assessee has paid on-money receipt and the AO also failed to show/demonstrate in the Assessment Order that REC-DIS is actually on-money payment in cash. Merely relying on the excel sheet and admission part of the builder which was never confronted to the assessee cannot make the addition. Hence, the addition made by the Assessing Officer is not justifiable. Thus, appeal filed by the assessee is allowed.

Summary

Issues:
Appeal against addition of unexplained investment under Section 69B of the Income Tax Act for Assessment Year 2011-12.

Analysis:
1. The appeal was filed against the order confirming the addition of Rs.16,73,700 as unexplained investment under Section 69B of the Act. The appellant argued that the addition lacked cogent evidence and requested its deletion. Additionally, the appellant highlighted her 50% share in the property and emphasized that the addition should be restricted accordingly.

2. The case originated from the reopening of the assessment under Section 147 of the Income Tax Act based on information received regarding a search/survey action. The Assessing Officer made the aforementioned addition, leading to the appeal before the CIT(A) and subsequently to the ITAT.

3. During the proceedings, the appellant's representative contended that the information received implicated the appellant's husband in the transaction, and the additions were deemed non-genuine. It was also argued that since the property was jointly held, the entire addition could not be attributed solely to the appellant. The absence of evidence showing on-money payments further supported the request for deletion of the addition.

4. On the other hand, the Departmental Representative argued that the addition in the appellant's husband's case was dismissed on technical grounds and should not apply to the present case. The Department supported the addition based on the nature of the receipts and the lack of denial regarding cheque payments.

5. After considering the arguments and evidence, the ITAT ruled in favor of the appellant. The tribunal noted the joint ownership of the property with the appellant's husband, which was not adequately addressed by the Assessing Officer. The reliance on the builder's statement without concrete evidence of on-money payments was deemed insufficient to justify the addition. Consequently, the ITAT allowed the appeal, concluding that the addition made by the Assessing Officer was unjustifiable.

6. In conclusion, the ITAT allowed the appeal of the assessee, overturning the addition of Rs.16,73,700 as unexplained investment for the Assessment Year 2011-12. The decision highlighted the lack of conclusive evidence supporting the addition and the failure to consider the joint ownership of the property, leading to the ruling in favor of the appellant.