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TMI Blog2017 (1) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has actually paid ₹ 52,26,000/- over and above the cheque amount for the purchase of Shop No. 119 at Little World. The entire assessment has been made only on the basis of surmise, assumptions and conjectures. In our humble opinion, such additions cannot be sustained - Decided in favour of assessee - ITA No.5064/Mum/2014 - - - Dated:- 6-1-2017 - Shri Rajendra, Accountant Member and C.N. Prasad, Judicial Member For The Revenue : Shri Ajit Manwani For The Assessee : Shri S. K. Mishra Order u/s.254(1)of the Income- tax Act,1961(Act) PER Rajendra A.M. - Challenging the order,dated 6.6.2014 of the CIT(A)-13, Mumbai, the assessee has filed the present appeal.Assessee,an individual filed his return of income on 26.9.2009, declaring total income at ₹ 1.85 crores.The Assessing Officer (AO) completed the assessment u/s.143(3) of the Act, on 16.12.2011,determining his income at ₹ 2.56 crores. 2.The effective ground of appeal is about upholding the addition of ₹ 71 lacs. During the assessment proceedings it was found that the assessee had purchased a shop (No.105, Little World Mall at Kharghar, Navi Mumbai) along with his son and that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of the section 69 of the Act. 3. Aggrieved by the order of the AO, the assessee preferred an appeal before the First Appellate Authority(FAA)and made elaborate submissions.Before her,the assessee submitted that he had written to the AO to summon the builder for cross examination,that a remand report should be called from the AO after the builder was crossed examined by him, that he had not paid any cash money to the builder.The assessee requested the FAA to allow him to cross examine the builder in presence of the AO during the appellate proceedings. The FAA held that the assessee had not asked for the cross-examination of the builder during the assessment proceedings,that the very issue of cross examination was raised only after 2 years after the assessment order was passed,that the assessee had not taken any ground in that regard.Referring to Rule 46A of the Income Tax Rules, 1962 (Rules),the FAA held that the assessee did not have any reasonable cause as required by the provisions of 46A of the Rules. Referring to the statements recorded by the Investigation Wing of the department, the FAA held that the assessee had accepted half of the details of the seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er.In our opinion,Rule 46A is not applicable to the facts of the case.The assessee had not filed additional evidences before the FAA,so,there was no justification for invoking the provisions of Rule 46A of the Rules.We find that in the case of Synthetic Hydro Carbon(supra),the Tribunal has dealt with the same issue.In that matter also a shop was purchased from the same vendor and on the basis of the seized paper the AO had made an addition to the income of the assessee.In the appellate proceedings,the FAA deleted the addition.The ground of appeal raised by the AO,before the Tribunal read as under: On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition of ₹ 52,26,000/- made by the AO as the assessee had made payment of unaccounted money of ₹ 52,26,000/- for acquisition of Shop No. 119 in Little World, Khharghar, Navi Mumbai. The Tribunal narrated the facts of the case as follow: 3. The facts giving rise to the grievance of the Revenue show that a search and seizure action U/s. 132 was conducted in the case of Siddhi Group on 19.2.2009. During the course of the search, some documents were seized from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l B. Shah (partner of the assessee firm) and amount of cash received as ₹ 52,26,000/-. According to the AO, this cash payment amounting to ₹ 52,26,000/- for the purchase of shop No. 119 at Little World is not recorded in the books of account of the assessee. The AO went on to treat the said payment as undisclosed investment u/s. 69 of the Act and added to the total income of the assessee firm. After considering the arguments of the DR and the AR,the matter was decided by as under: 9.We have considered the rival submissions and carefully perused the orders of lower authorities. The whole dispute revolves around the entries in the document found during search and seizure operation carried on at the premises of the builder M/s. Gayatri Homes. The entire assessment has been made only on the basis of all the entries found in the seized document and the statemet of Shri Kantilal M. Patel of Gayatri Homes. It would be pertinent to note that in the seized document, the total area of shop mentioned is 909 sq. ft., however, the actual area purchased by the assessee is 454.50 sq. ft only This fact is also not disputed by the assessing officer. It appears that the AO has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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