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TMI Blog2023 (7) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... hold such a plea cannot be entertained for the reason that here the search has taken place and the clause previous six assessment years start from A.Y. 2008-09 and this assessment year 2007-08 falls beyond the period of six years and as mentioned in Section 153A. Moreover, the amendment brought by way of fourth proviso in Section 153A extending the abatement till 10 years, has come w.e.f. 01/04/2017 which is applicable on searches conducted after 01/04/2017. Therefore, the ld. AO could not have acquired the jurisdiction u/s. 153C. Thus, this plea taken by the ld. Counsel is rejected. Addition u/s 69B - If any entry by a third party of cash received has been recorded then presumption is it his unaccounted money and burden is upon that person to explain that this money has come from the other person and has to substantiate that. It is then the burden shifts upon the other person, i.e., assessee here to prove that he has not given any money. Thus, uncorroborated information cannot lead to addition in the hands of the assessee, specifically when nothing has been brought on record as to what was the fate of that information or material found and what inference in the case of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed that the assessee Shri Rejesh Ravjibhai Patel has purchased flat from Hiranandani Group by paying on money (cash) to the tune of Rs 1,11,89,600/- during the Financial Year 2006-07 relevant to the AY. 2007-08. S. No. Name of the Concern of Hiranandani Group to whom On Money is paid Amount 1 Crescenda Associates Rs. 1,11,89,600/- Total Rs. 1,11,89,600/- In view of the above, I have reasons to believe that the income of the assessee of Rs 1,11,89,600/- has been escaped assessment within the meaning of the provisions of Section 147 of the IT Act, 1961. 3. Accordingly, notice u/s. 148 was issued to the assessee on 28/03/2014. In response to the notices, assessee had filed return of income on 10/04/2014 stating that return filed earlier should be treated as return filed in response to Section 148 and also filed objections for reopening which has been disposed of by the ld.AO vide order dated 09/02/2015. The ld. AO noted that as per the details filed, it is seen that assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 11/04/2006 Rs. 14,41,600/- 3604 Torino Crescendo Associates Total Rs. 1,1 1,89,600/ - 5. The ld. AO has also noted the statement of Shri Ranjan Hiranandani was recorded u/s. 132(4) on 14/03/2014, wherein he has accepted that total On-money cash received by him for various flats was more than Rs. 475.60 Crores. However, the assessee denied having taken any On-money in cash. AO has made the addition after observing as under:- 9.5 The following facts emerge in this case which establish the payment of on-money to the tune of Rs. 1,11,89,600/-by the assessee in connection with the purchase of flats: i. It is an undisputed fact that the asssessee booked flat no 2801 A in Torino Building. These flats appear in the contents of the pen drive seized during the search and seizure in the Hiranandani group of cases. It proves that the contents of the pen-drive were true. ii. It is also a fact that the assessee made payment and acquired the flats from Crescendo Associates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant that the A.O. should have issued notice u/s 153A/153C of the Act instead of 148 has no merit. No search took place at the premises of the appellant. Further, the search proceedings at the premises of the Hiranandani group revealed the on-money payment by the appellant. The information was passed over by the concerned A.O. Hence, the proceedings u/s 148 was validly initiated in this case. Accordingly, the Ground of Appeal No. 2 of the present appeal is dismissed. 7. In so far as merits are concerned, Ld. CIT(A) has confirmed the action of the ld. AO on the ground that there was direct evidence in the form of pen drive which is found and seized and the content of which were never doubted at any stage. 8. Before us, ld. Counsel submitted that the reasons recorded are based on information received from Investigation Wing and it is based on borrowed satisfaction and there is no independent application of mind by the ld. AO. Secondly, she submitted that once any document or material is found in the course of search and if anything pertaining to or relating to other person is found then only recourse is to acquire jurisdiction u/s. 153C. 9. After hearing both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquiring the jurisdiction u/s. 147 and formation of reason to believe that prima facie income chargeable to tax for escaped assessment. But that alone is not sufficient while making the addition in the assessment order. The assessee before the ld. AO had submitted the details of purchases and source of purchase of flats and has categorically denied that he has made any payment of cash as On-money. It was submitted that he has made certain advances to the builder in the A.Y. 2007-08 and possession was received in the F.Y. 2011-12. All the advance payments were out of borrowed home loan from ICICI bank for sum of Rs. 1,31,81,250/- which was paid in installment to the builder. Once assessee has submitted the documents for the payment and has denied the payment of any cash, then it was incumbent upon Assessing Officer to carry out some enquiry from the builder (Crescendo Associates, part of Hiranandani group) to get further details as to when and how the cash payment was made by the assessee. If the ld. AO is relying heavily on the statement of Shri Ranjan Hiranandani, then he should have been put to cross examination if his statement was the sole basis for drawing adverse inference b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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