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TMI Blog2021 (7) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... nt pertaining to one of the property, viz. Flat No. 101 201 Insignia; dated 05.05.2014, no other investment as regards either of the aforesaid properties in question was made by her during the year under consideration. We, thus, are in agreement with the view taken by the CIT(A) that as the assessee had during the year under consideration not made any investment with respect to the properties in question, except for an amount that was sourced from her returned income, thus, the addition made by the A.O u/s. 69 or u/s. 68 could not be sustained and was liable to be vacated - neither there is anything discernible from the records nor any material has been brought to our notice by the ld. D.R which would prove that the assessee had made any investment qua the properties in question during the year under consideration. Accordingly, finding no infirmity in the view taken by the CIT(A) that no part of the addition made by the A.O either u/s 69 or u/s 68 can be sustained, we, thus, uphold his order. - Decided against revenue. - ITA No.6479/MUM/2019 - - - Dated:- 24-6-2021 - Shri Rajesh Kumar (Accountant Member) And Shri Ravish Sood (Judicial Member) For the Assessee : Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formation Return (for short AIR ) pertaining to the assessee, it was observed by the A.O that the assessee during the year under consideration had purchased the following immovable properties : Sr. No. Amount invested Date of Transaction/Registration Registered with 1. ₹ 321,95,300 05.05.2014 Jt.Sub Registrar, Andheri 2. ₹ 136,66,512 05.05.2014 Jt. Sub Registrar, Kurla 3. ₹ 56,07,000 07.06.2014 Jt. Sub Registrar, Kurla 4. ₹ 53,57,500 07,06.2014 Jt. Sub Registrar, Kurla 5. ₹ 47,93,000 07.06.2014 Jt. Sub Registrar, Kurla 6. ₹ 47,93,000 06.06.2014 Jt. Sub Registrar, Kurla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, and except for an investment of ₹ 13,32,000/- had not made any other investment during the year under consideration. Insofar the investment of ₹ 13,32,000/- was concerned, it was the claim of the assessee that the same was sourced from her duly disclosed sources reflected in the return of income for the year under consideration. For the sake of clarity the submissions filed by the assessee qua the addition of ₹ 6,64,12,312/- that was made by the A.O u/s 69 or u/s 68 are reproduced as under: Re Ground of appeal no. 3 2.1. The Assessing Officer has made an addition of ₹ 6,64,12,312 under section 69 of the Act, observing in para. 7 that In view of the failure of the assessee to produce supporting documentary evidences to prove that the investments are recorded in books and to offer any \explanation with regards to sources of investments made, the total investments of ₹ 6,64,12,312/- made by the assessee during the F.Y.2014- 15 relevant to A.Y.2015-16 is treated as unexplained investments u/s.69 if the I.T. Act 2.2 Further, without prejudice to the addition made under section 69 of the Art, the Assessing Officer has made the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.1. Please refer the Agreement dated 5th May, 2014 for purchase of the immovable property - refer page nos. 6 to 91 of the paper book. On perusal of the same, particularly, para 1 of the agreement (page no 12 of the paper book), it can be seen that the property is under construction on execution of the Agreement. 2.6.2. Further, please refer clause L (page no 12 of the paper book andreceipt of the seller (page no 31 of the paper/book). It is evident that the appellant has made payments aggregating to ₹ 78,30,182 till the date of execution of the Agreement. 2.6.3. The Assessing Officer has made the impugned addition on the basis of the Agreement obtained by him from the office of Jt. Sub Registrar, Mumbai. Thus, copy of the Agreement is in the possession of the Assessing Officer. The said Agreement specifically states, as mentioned above, that the appellant has made payments aggregating ₹ 78,30,182 till the date of execution of the agreement The Assessing Officer, thus, could not have made the impugned addition of ₹ 3,21,95,300 when the appellant has made investment only of a sum of ₹ 78,30,182. 2.6.4. Further, the appellant submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty - refer page nos 146 to 198 of the paper book. On perusal of the same, particularly, para 4 of the agreement (page no 152 of the paper book), it can be seen that the property is under construction on date of the agreement. 2.8.2. Further, please refer clause 'P' (page no 151 of the paper book) and receipt of the seller (page no 168 of the paper book). It is evident that the appellant has made a payment of ₹ 2,00,000 till the date of agreement, that too during the year ended 31st March, 2012, relevant to assessment near 2012-13. 2.8.3. The appellant submits that the Assessing Officer has made addition only on the basis of agreement obtained from the office of Jt. Sub registrar, Mumbai. Thus, copy of the Agreement is in the possession of the Assessing Officer. On perusal of the receipt issued by the seller on the agreement date, it can be seen that the appellant has made a payment of only ₹ 2,00,000 till the date of agreement, that too during the year ended 31st March, 2012, relevant to assessment year 2012-13 2.8.4. Further, the appellant submits that she has not made any payment towards purchase of the property during the year under refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is evident that the appellant has made a payment of ₹ 5,00,000 till the date of agreement, that too during the year ended 31st March, 2013 relevant to assessment year 2013-14. 2.10.3. The appellant submits that the Assessing Officer has made addition only on the basis of agreement obtained from the office of Jt. Sub registrar, Mumbai. Thus, copy of the Agreement is in the possession of the Assessing Officer. On perusal of the receipt issued by the seller on the agreement date, it can be seen that the appellant has made a payment of only ₹ 5,00,000 till the date of agreement, that too during the year ended 31st March, 2013, relevant to assessment year 2013-14. 2.10.4. Further, appellant submits that she has not made any payment towards purchase of the property during the year under reference. 2.10.5. In view of the above, the appellant contends that the Assessing Officer ought not to have made an addition during the year under reference, much less on the basis of stamp duty value mentioned on the agreement and hence, the same needs to be deleted. Shop D11 - Premier Exotica ₹ 47,93,000 2.11.1. Please refer the agreement dated 5th June, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. The ld. Departmental Representative (for short D.R ) submitted that the assessee had purposively evaded furnishing of the copies of the agreements qua the properties in question in the course of the assessment proceedings and filed the same for the very first time before the CIT(A). It was, thus, submitted by the ld. D.R that as the details of the investments were not available with the A.O, therefore, he had rightly relied on the AIR information, and in the absence of any explanation as regards the nature and source of the investments in the properties in question had made the addition u/s 69 or u/s 68 during the year under consideration. It was further submitted by the ld. D.R that though the copies of the agreements were filed by the assessee for the very first time in the course of the proceedings before the CIT(A), however, the latter without calling for the objections of the A.O had in violation of Rule 46A admitted the said additional evidence. 6. Per contra, the ld. Authorized Representative (for short A.R ) relied on the order of the CIT(A). It was submitted by the ld. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention, it was the claim of the ld. A.R that as it was a matter of fact borne from the records that the assessee had not made any unexplained investments during the year in question, thus, no addition either under Sec. 69 or u/s 68 was called for in its case. 7. We have heard the ld. authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record. Before adverting to the merits of the case, we may herein observe, that though the A.O had made the impugned addition of ₹ 6,64,12,3122/- u/s. 69 or u/s Sec. 68 of the Act, however, the revenue in its grounds of appeal had assailed the order of the CIT(A), for the reason, that he had erred in deleting the addition that was made by the A.O u/s 69C of the Act. As the aforesaid mistake appears to have inadvertently crept in on account of a typographical error while drafting the appeal, we, thus, proceed with and deal with the sustainability of the order of the CIT(A), wherein the addition made by the A.O u/s 69 or u/s 68 was vacated by him. As is discernible from the orders of the lower authorities, the case of the assessee was selected for scrutiny assessment under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agreement dated 5 th June, 2014 Shop D11 Premier Exotica ₹ 47,93,000 06.06.2014 Jt. Sub Registrar, Kurla ₹ 6,64,13,312 On a perusal of the aforesaid details in the backdrop of the contents of the agreements pertaining to the aforesaid properties in question, we may herein observe, that as stated by the ld. A.R, and rightly so, the A.O had in the course of the assessment proceedings merely gone by the AIR information and had failed to peruse the contents of the aforesaid respective agreements in question which were there before him. On appeal, the CIT(A) after perusing the agreements qua the properties in question concurred with the claim of the assessee that the A.O had merely added the stamp duty value of the properties as per AIR information and had overlooked the actual transaction values. It was further observed by the CIT(A) that the actual amount that was paid by the assessee as per the agreements was less than the stamp duty value. Further, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing but the AIR information and the copies of agreement, which confirms the AIR information. The summary of agreements entered into by the appellant is given below Sr. no Amount invested Date of Transaction Registration Registered with 1 3,21,95,300 05.05.2014 Jt. Sub Registrar, Andheri 2 1,36,66,512 05.05.2014 Jt. Sub Registrar, Kurla 3 56,07,000 07.06.2014 Jt. Sub Registrar, Kurla 4 53,57,500 07.06.2014 Jt. Sub Registrar, Kurla 5 47,93,000 07.06.2014 Jt. Sub Registrar, Kurla 6 47,93,000 06.06.2014 Jt. Sub Registrar, Kurla 6,64,12,312 The AO made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant of ₹ 22,33,800. 6.3 Under these circumstances, I am of view that the AR has proved that the assessee has not made the investment of ₹ 6,64,12,312 and hence, there is no question of making any addition u/s 68 or 69 of the Act. Therefore, I direct the AO to delete the addition of ₹ 6,64,12,312. Thus, this ground of appeal is allowed. Before us, the ld. D.R had inter alia assailed the order of the CIT(A), on the ground, that he had in violation of Rule 46A without calling for the objections of the A.O admitted the agreements pertaining to the six properties in question which were furnished by the assessee before him for the first time. We have given a thoughtful consideration to the aforesaid grievance of the revenue and are unable to accept the same. As observed by us hereinabove, the A.O in the course of the assessment proceedings had called for the copies of the agreements in question from the Joint Sub-registrar(s), Mumbai. The aforesaid factual position can safely be gathered from a perusal of Page 7 Para 5.1 of the assessment order. On being confronted with the said fact, the ld. D.R could not rebut the same. We, thus, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 ₹ 2,91,008/- 03.01.2014 ₹ 6,79,018/- 18.02.2014 ₹ 1,94,006/- 18.02.2014 ₹ 10,000/- 18.02.2014 ₹ 4,24,046/- 17.04.2014 ₹ 3,22,000/- 25.04.2014 ₹ 10,000/- 25.04.2014 ₹ 10,00,000/- Total ₹ 78,30,182/- 2. Flat 1806-Majestic Tower 04.05.2014 1,17,75,000 1,36,66,512 ₹ 28 lac [Page 95 (backside) of APB)] 05.12.2012 :₹ 7 lac 08,12.2012 :₹ 4 lac 13.12.2012 : ₹ 8 lac 14.12.2012 : ₹ 5 lac 14.12.2021 : ₹ 4 lac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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