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TMI Blog2022 (11) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... record and therefore, the AO or CIT(A) could not have relied upon the second statement. There is no infirmity in the impugned order of the ITAT deleting the addition of Rs. 20 crores under Section 68 of the Act against the Assessee. Therefore, we are of the considered view that there is no substantial question of law raised in the present appeal. The Supreme Court in the case of Ram Kumar Aggarwal Anr. vs. Thawar Das (through LRs), [ 1999 (8) TMI 1008 - SUPREME COURT] has reiterated that under Section 100 of CPC, the jurisdiction of the High Court to interfere with the orders passed by the Courts below is confined to hearing on substantial question of law and interference with finding of the fact is not warranted if it involves re-appreciation of evidence. Thus, we see no merit in the appeal and it is accordingly dismissed. - ITA 271/2019 - - - Dated:- 27-10-2022 - HON'BLE MR. JUSTICE MANMOHAN AND HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA Appellant Through: Mr. Abhishek Maratha, Sr. Standing Counsel for Revenue. Respondent Through: Mr. Ved Jain, Mr. Nischay Kantoor and Ms. Richa Mishra, Advocates. J U D G M E N T MANMEET PRITAM SIN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d statement, Devender stated that cash transaction of Rs. 20 crores took place at the office of the Assessee, in the presence of the Assessee and the cash was handed over to the parties in this office. He states that a perusal of the second statement of Devender shows that Devender was a mere pawn acting under the instructions of the Assessee and in fact Devender was not even aware of the name of Newage Infra. He states that the ITAT failed to consider that the Assessee had failed to cross-examine Devender despite an opportunity provided to him in this regard. He lastly states that since the identity, genuineness and creditworthiness of Newage Infra is doubtful and considering the contents of the second statement of Devender, it is apparent that the said company Newage Infra is a company used by the Assessee as a conduit for his unaccounted cash. 5. We have heard the learned counsel for the parties. Having perused the paper book, the facts of the case relevant for deciding the present appeal are as follows: 5.1. During the course of post search investigation, Devender was summoned by the Investigation Wing under Section 131 of the Act to examine him and verify the seized docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2016 issued a notice to the Assessee on 18th March, 2016, to show cause as to why the cash amount involved in the transaction of Rs. 20 crores should not be added to the income of the Assessee. The Assessee filed his reply and stated that the transaction on behalf of Newage Infra undertaken by Devender with Saroj and the payment of Rs. 20 crores have no concern with the Assessee. He stated that pursuant to the MOU, Devender entered into an agreement for purchase of land with Saroj. When the transaction was denied by Saroj, Devender filed a police complaint against Saroj before the Economic Offences Wing of Delhi Police as well as at Gurgaon. The Assessee submitted that there was no justification with the AO to make an addition of Rs. 20 crores under Section 68 of the Act as the transaction undertaken as per the terms of MOU was not concerned with the Assessee. However, the AO, did not accept the explanation of the Assessee and made an addition of Rs. 20 crores on account of the said MOU. 5.7. The Assessee filed an appeal against the assessment order before the Commissioner of Income Tax (Appeals) [ CIT(A) ] challenging the aforesaid addition of Rs. 20 crores made on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly support the statement of Sh. Devender Kumar recorded by the investigation wing on 18.10.2013. The statement of Sh. Devender Kumar recorded by AO on 11.03.2016 is not corroborated by any evidence or material on record. Thus, there was no justification for the AO or CIT(A) to rely upon subsequent statement of Sh. Devender Kumar dated 11.03.2016. It may also be noted here that the assessee filed letter dated 12.10.2016 before Ld. CIT(A) supported by affidavit of Sh. Devender Kumar (PB 166 176) in which he has affirmed his statement made to the investigation wing on 18.10.2013. It is also stated in the affidavit that subsequently notice u/s 153C dated, 08.02.2016 was issued to him by Ms. Preeti Singh, ACIT, Central Circle-26, New Delhi and she told him that huge liability to the extent of Rs. 20 crores would fall on him, if he strict to his original statement made before investigation wing on 18.10.2013. He has, therefore, disowned his statement recorded before AO on 11.03.2016. In this affidavit also he has confirmed all the transactions recorded in his name on behalf of M/s Newage Infrabuilders P. Ltd. The Ld. CIT(A) without any justification ignored the affidavit of Sh. Deven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 153A read with Section 153C of the Act making an addition of Rs. 20 crores resulting in protective addition. 6.3. The agreement to sell dated 17th December, 2011 executed between Saroj and Devender for the purchase of land at village Harchandpur. 6.4. The receipt of Rs. 10 crores executed by Saroj, in favour of the purchasers vide separate receipt dated 17th December, 2011. 6.5. The statements of Devender recorded on 18th October, 2013 and 11th March, 2016 respectively. 6.6. The application dated 6th April, 2012 filed by Devender before the Sub Registrar, Sohna requesting not to register any sale deed for the land of Saroj. 6.7. The Complaint dated 4th June, 2012 filed by Devender against Saroj before the Deputy Commissioner of Police, New Delhi for cheating and criminal breach of trust. 6.8. The Complaint filed before the Commissioner of Police, Gurgaon against Saroj for cheating. 6.9. A copy of the suit for specific performance filed before the Court of Civil Judge, Gurgaon. 6.10. Letter of the Assessee dated 12th October, 2013 along with affidavit of Devender retracting from his statement dated 11th March, 2016 made before the AO. 7. The I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement recorded on 11th March, 2016, is not corroborated by any evidence or material on record and therefore, the AO or CIT(A) could not have relied upon the second statement. The ITAT also noted that the affidavit of Devender filed before the CIT(A) retracting his second statement dated 11th March, 2016, was not considered by the CIT(A) and therefore it had committed an error. 10. The learned senior standing counsel for the Appellant has not disputed the aforesaid facts forming the basis of the finding of the ITAT that the Assessee herein has no concern with the MOU executed between Devender and Newage Infra. 11. We are of the view that the facts and the law have been properly and correctly assessed by the ITAT. In view of the finding of fact by the ITAT, there is no infirmity in the impugned order of the ITAT deleting the addition of Rs. 20 crores under Section 68 of the Act against the Assessee. Therefore, we are of the considered view that there is no substantial question of law raised in the present appeal. The Supreme Court in the case of Ram Kumar Aggarwal Anr. vs. Thawar Das (through LRs), (1999) 7 SCC 303 has reiterated that under Section 100 of CPC, the juris ..... X X X X Extracts X X X X X X X X Extracts X X X X
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