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TMI Blog2023 (12) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... .R For the Respondent : Ms. Saumya Pandey Jain, Sr. D.R. ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:- This appeal is filed by the Revenue as against the Appellate order dated 12.12.2022 passed by the Commissioner of Income Tax (Appeals)-11, Ahmedabad arising out of the reassessment order passed under section 147 r.w.s. 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) relating to the Assessment Year (A.Y) 2013-14. ACIT Vs. Femina Town 2 2. The brief facts of the case is that the assessee is a Partnership Firm engaged in Retail business of Garment. For the Assessment Year 2013-14, the assessee filed its original Return of Income admitting total income of Rs. 1,13,060/-. The return was processed u/s. 143(1) of the Act. Thereafter the case was reopened by issuing a notice dated 03-03-2017 u/s. 148 of the Act, recording the reason, from the proceedings before the Income Tax Settlement Commission by M/s. Dev Procon Ltd., which has submitted a Fund flow statement showing Rs. 80 crores as advance received from various customers in its Dev Aurum Scheme, during the Financial Year 2012-13 and the assessee firm has advanced an amount of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties before Settlement Commission. The assessee was never provided with the alleged documents held with the A.O. and not provided cross examination of M/s. Dev Procon Ltd. There is no documentary evidence regarding cash payment made by the assessee. There is no chit or loose papers or diary indicating such payments received by M/s. Dev Procon Ltd. Therefore the addition made by the A.O. require to be deleted. 4. During the appellate proceedings, the Ld. CIT(A) to verify the claim of the assessee issued a letter dated 05-08-2022 to the Assessing Officer requesting him to furnish copies of the seized materials, statements/documents on the basis of which additions was made by the A.O. In response, the Ld. A.O. vide his letter dated 09-09-2020 submitted his Remand Report which is reproduced as follows: 4.1. After considering the Remand Report, the Ld. CIT(A) held that the addition made by the A.O. is purely on the basis of cash flow statement submitted by the M/s. Dev Procon Ltd. before Hon ble Settlement Commission, which was made after the date of search. Even in the cash flow statement name of the assessee is not disclosed by M/s. Dev Procon Ltd., but an adhoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fund flow statement filed by M/s. Dev Procon Ltd. and (5) Index to the Paper Book filed before Settlement Commission. 9. In the Rule 9 report, the reply filed by M/s. Dev Procon Ltd. reads as follows: 19.12 Apart from the statement there is no whatsoever evidence of material that, has been found during the course of search to suggest that, either the land owners received an amount in excess of what has been stated in the conveyance deed or did the Applicant Company paid over and above the value mentioned in the conveyance deed. 19.13 It is submitted that the Dev Aurum Project had 60 Shops, 313 Offices and 134 Flats. The total area in the project was 7,00,381 sq. ft. (commercial units had 5,28,211 sq. ft. and residential units had 1,72,170 sq. ft). The PCIT had accepted the estimation of gross receipts in respect of commercial units at Rs. 297 crore, by not offering any adverse comment. The working of quantification of gross receipt of Rs. 207 crore is placed page no 597 of the SOF. It needs to be mentioned that the quantification of gross receipt of Rs. 297 crores takes into consideration the deal value in respects of 43 units, for which notings were found during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judgments rendered by Jurisdictional High Court and other High Courts as follows: 10.1 The Hon ble Gujarat High Court in the case of ITO Vs. Bharat A. Mehta reported in [2015] 60 taxmann.com 31 wherein it was held as follows: Section 69 of the Income-tax Act, 1961- Unexplained Investment (Investment in property) - Assessment year 1992-93-Assessee purchased a bunglow in a housing scheme from a builder firm during search, partners of said firm admitted having received certain amount as 'on money' from buyers of bunglows in said scheme-On basis of that material Assessing Officer made certain addition under section 69 to income of assessee on account of 'on money' paid to builders - On appeal, Tribunal deleted addition holding that revenue failed to prove that assesses had made undisclosed investment in aforesaid bunglow Whether as findings recorded by Tribunal were based on appreciation of facts, no interference was called for-Held, Yes [Paras 9 and 10] [In favour of assessee] 10.2. The Hon ble High Court of Delhi in the case of CIT Vs. Vineeta Gupta reported in [2014] 46 taxmann.com 439 wherein it was held as follows: Section 69B, road with section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by it to third party. In this case addition was sought to be made on the basis of entries in the books of third party showing payment made by assessee to said party. The High Court has observed as follows: Relying on the decision of the Hon'ble Supreme Court in the case of Kishinchand Chellaram (supra), the Calcutta High Court in the case of Bimal Kumar Damani (supra) held that the question of presumption of possession is confined to the amount recovered from a particular person. Possession of another cannot be presumed to be possession of the assessee. If the ownership is disputed, the burden of proving that the possession was not possession as owner and that ownership was of someone else, is on the assessee. If the Department wants to assert that the assessee is the owner of the amount recovered from someone else, then the burden lies on the Department to prove the ownership of the assessee.... 11. Respectfully following the above judicial precedents, we have no hesitation in upholding the order passed by the Ld. CIT(A) who deleted the addition of Rs. 1.64 crores as unexplained investments in the hands of the assessee. Thus we do not find any merits in the grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X
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