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TMI Blog2021 (4) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... l correct and is a result of a mistaken identity. He found that the said entries for on money cash payments are all dated after the cancellation of booking by the wife of the assessee and refund of money to her by the developer. Hence, he was of the opinion that there is no reason why after the cancellation of booking anybody would pay on money cash amounts. CIT(A) has also noted that AO has not disputed the details about the booking of flat by the wife of the assessee, the cancellation thereof and the refund of booking amount to her by the developer. Learned CIT(A) also noted that the assessee's address is also not the same as mentioned in the said pen drive. The above reasoning of the ld. CIT(A) in deleting the addition in the hands of the assessee are cogent. When no material has been found that assessee has made any booking for the flat, a mere entry in a pen drive of a third party cannot ipso facto fasten the liability of on money transaction upon the assessee without further corroborative material brought on record. As a matter of fact as noted by the learned CIT(A) the other materials further support the view that the addition in the hands of the assessee is not susta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from investigation wing of the Income Tax that search and seizure operation was conducted in the case of M/s Nish developers Pvt. Ltd. M/s Nish developers Pvt. Ltd has been developing premium residential project in the name of One Avigna Park at curry road Mumbai. The main promoter of the company is Kailash Agarwal and his son Nishant Agarwal. During the course of search proceedings, a pen drive and loose papers was seized from the residence of Sh. Pravin Mishra, one of the trusted employee of Sh. Kailash Agrarwal which contains the details of cash transactions pertaining to M/s Nish developers Pvt. Ltd. The pen drive contains transactions amounting to ₹ 181,66,44,000/- contains date wise details of cash receipts were found. On the basis of these evidences, statement of employees and persons working as cash handlers of M/s Nish developers Pvt. Ltd has been recorded wherein they have accepted the issue of on-money. The evidences found during the search proceedings were confronted to Sh Kailash Agarwal in which he has accepted that an amount of ₹ 181.64/- crores as unaccounted receipts generated by M/s Nish developers Pvt. Ltd on of the name in this pen drive is Sanjay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has paid ₹ 5.50/- crores in cash M/s Nish developers Pvt. Ltd. As per provision of Section 69B of the Act, the burden of proof is on assessee, however assessee fails to discharge his onus to provide the source of cash payment made towards booking/purchase of the flat. As assessee fails to substantiate the source of the cash payment of ₹ 5.50/- crores towards booking/ purchase of flat at One Avigna Park developed by M/s Nish developers Pvt. Ltd, therefore ₹ 5.50/- crores has been added total income of the assessee u/s 69B of the Act. Penalty proceedings u/s. 271(1)(c) are initiated separately for furnishing inaccurate particulars of income thereby concealment of income chargeable to tax. 5. Against the above order, the assessee has filed the appeal before the ld. CIT(A). The ld. CIT(A) referred to the assessee s submission, He also referred to the remand report obtained from the AO and the rejoinder from the assessee. Thereafter, the ld. CIT(A) opined that the addition was not sustainable inasmuch as wife of the assessee Smt. Varsha Parmar had made the booking by making cheque payment of ₹ 51,00,000/-. Later she got the booking cancelled and the advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 25,10,000/- on 05/03/2014 ₹ 35,00,000/- on 18/03/2014 ₹ 25,00,000/- on 27/03/2014 ₹ 20,00,000/- on 31/03/2014 There is no plausible explanation as to why a person who has cancelled booking would continue to make cash payments to the builder. Only possible explanation would be that the person making cash payments and the person cancelling the booking are two different persons. Since the AO has failed to bring any material on record to show that the person making cash payment is the appellant only and the appellant has not been identified in the statements recorded during the course of search, I'm of the opinion that the cash transactions recorded in the pen drive cannot be taxed in the hands of the appellant because there is no plausible reason for the appellant to continue to make cash payments even after cancellation of booking. Moreover, in the description against the cash payment entry is as under:- Recd from Sanjay Parmar, he is having his office in Kalbadevi. The cash is received against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ha Parmar had cancelled the booking much prior to such dates; d) The Ld. AO made the addition under mistaken identity. The pen drive containing the description that Recd from Sanjay Parmar, he is having his office at Kalbadevi. The cash is received against the sale of flat does not belong to the assessee since the assessee is not having any office at Kalbadevi, rather his office is situated at Masjid Bunder; e) The assessee had filed the Affidavit sworn on oath, Confirmation of M/s. Nish Developers Pvt Ltd and bank statements of Smt Varsha Parmar disclosing the cheque payment of booking deposit and refund received thereon. The assessee also filed copies of his own bank statements which does not disclose any payments made to M/s Nish Developers Pvt Ltd. The Ld. AO had not doubted the correctness of documents filed on record; f) The Ld. AO had not conducted any enquiry/investigation to verify the facts and had not issued any notice u/s 133(6)/131 to the developer. The Ld. AO did not provide the copies of statements of 3rd parties to the assessee for rebuttal and did not allow an opportunity of cross examination. In any case, the statements of the employee and director of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion ld. CIT(A) has found that actually the wife of the assessee had booked a flat in the property of the said developer. That the said booking was done by making cheque payments. That the booking was cancelled and the amount of booking was duly refunded by the developer to the wife of the assessee. Ld. CIT(A) has found that this shows that the entry, that on money was paid for sale of flat to the assessee is not at all correct and is a result of a mistaken identity. He found that the said entries for on money cash payments are all dated after the cancellation of booking by the wife of the assessee and refund of money to her by the developer. Hence, he was of the opinion that there is no reason why after the cancellation of booking anybody would pay on money cash amounts. Learned CIT(A) has also noted that AO has not disputed the details about the booking of flat by the wife of the assessee, the cancellation thereof and the refund of booking amount to her by the developer. Learned CIT(A) also noted that the assessee's address is also not the same as mentioned in the said pen drive. 13. We find that the above reasoning of the ld. CIT(A) in deleting the addition in the hands ..... X X X X Extracts X X X X X X X X Extracts X X X X
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