9911796707
TMI Blog2024 (10) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... on filed by assessee has already been recorded by us on the copy of copy of submission placed. As in Kalpesh Mafatlal Patel [ 2022 (12) TMI 936 - ITAT SURAT] on the basis of similar draft Satakhat found from office of Tarnish B Kania, Advocate by holding that no specific query was raised in respect of impounded Satakhat from Tarnish B Kania, Advocate and held that no addition can be made in respect of unsigned, undated Satakhat found from a person not connected with assessee. Assessee appeal allowed. - Shri Pawan Singh, Judicial Member And Shri Bijayananda Pruseth, Accountant Member For the Assessee : Shri Rasesh Shah, C.A. For the Department : Shri Mukesh Jain, Sr. DR ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of the National Faceless Appeal Centre, Delhi (NFAC)/learned Commissioner of Income Tax (Appeals), [in short, the ld. CIT(A)] dated 31/03/2024 for the Assessment Year (AY) 2010- 11, wherein the assessee has raised following grounds of appeal: 1. On the facts and circumstances of the case as well as law on the subject, the ld. CIT(A) has erred in confirming the actions of Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 26/08/2015, proceeded for reassessment. 3. The Assessing Officer issued a detailed show cause notice to the assessee, contents of such show cause notice is recorded in para 3.1 of assessment order. In the show cause notice, the Assessing Officer narrating the aforesaid fact, asked the assessee as to why Rs. 2.39 crores should not be treated as unexplained investment. In response to such show cause notice, the assessee filed his reply on 20/11/2015. Contents of reply of assessee is recorded in para 3.2 of assessment order. In the reply, the assessee stated that while filing return of income on 20/02/2012, the assessee has shown investment in land in his financial statement filed alongwith return of income as per sale deed registered on 14/10/2009. The assessee is having 50% share in the land and has shown actual investment made in the land. On the survey action carried out under Section 133A of the Act on the office premises of Turnish B Kania, Advocate, the assessee stated that in the survey action, statement of Turnish B Kania was recorded, wherein he has given a general statement and disclosed that C.D. contains format for using for preparation of Satakhat, sale deed, Kabza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made with the intent of concealment of fact and unexplained investment, ultimate sale deed dated 14/10/2009 and Satakhat has so many correlation/common facts. The Assessing Officer, thus treated the difference of Rs. 2.39 crores (Rs. 3.59 Rs. 1.20 crore) as not recorded in the books of account. The assessee is having 50% share in the land, therefore, half of the impugned investment i.e. Rs. 1.19 crore was treated as undisclosed income and added under Section 69B of the Act while passing the assessment order on 12/08/2016 passed under Section 143(3)/147 of the Act. 5. Aggrieved by the additions in the assessment order, the assessee filed appeal before the ld. CIT(A). Before the ld. CIT(A), the assessee challenged the validity of reopening under Section 147, issuance of notice under Section 148 and the addition of Rs. 1.19 crore on merit. Before the ld. CIT(A), the assessee filed detailed written submission and also relied upon various case laws as recorded in para 5.1 of impugned order. Contents of written submissions of the assessee are not referred/reproduced by the ld. CIT(A). However, the assessee has filed copy of his submission uploaded/filed before the ld. CIT(A), which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 3.59 crores is mentioned but no date is mentioned. Satakhat is not signed or bears the date was not found in physical form. Satakhat was printed from the C.D., copied from the computer of third person. The person from whose computer, such Satakhat was found, stated that he kept such document for pro-forma. The assessee never accepted undisclosed investment in the land. Turnish B Kania never stated that Satakhat pertains to assessee. The assessee also pointed out the consistency about the date of sale deed and the entry in the notary register of Meera Kania, Advocate. Sale deed is dated 14/10/2019, however, in the register of notary, entry No. 152 of 2010 is of 29/05/2010. The record of entry of notary register and reference of affidavit of seller was not supplied to the assessee. The sale deed is executed on 14/10/2009, therefore, the entry in the notary register on 29/05/2010 is irrelevant. Statement of all the sellers were not recorded except statement of Babyben Budhiyabhai Patel who is having 3% share. Babyben Budhiyabhai Patel denied about execution of Satakhat. If the Revenue/Assessing Officer was of the opinion that Tarnish B Kania has given adverse statement against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have heard the submissions of the learned Authorised Representative (ld. AR) of the assessee and the learned Senior Departmental Representative (ld. Sr. DR) for the revenue. The ld. AR of the assessee submits that basically he has raised two grounds of appeal, one against validity of reopening and second against addition on merit. Both the grounds of appeal are covered in favour of assessee. The ld. AR of the assessee submits that before starting his submission on merit, he would like to clarify that the ld. CIT(A) while confirming the addition on merit, recorded that no submission was made by assessee, such observation of ld. CIT(A) is contrary to the facts. In fact, the assessee filed appeal on 13/09/2016 as has been mentioned in first line of order of ld. CIT(A). The ld. AR of the assessee submits that on receipt of first notice of hearing of appeal in June, 2018, the assessee filed detailed written submission in physical form, copy of acknowledgment is filed. During the hearing in faceless regime, the assessee furnished detailed written submission in response to notice dated 28/12/2020, copy of acknowledgement is filed on record. The assessee alongwith his written submission h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imilar addition was made on the basis of survey action on Turnish B Kania wherein on the basis of similar Satakhat/draft Satakhat, the addition on account of unexplained investment of purchase of land was made, however, the same were deleted, copy of decision is filed on record. The ld. AR of the assessee submits that neither the seller has accepted that any on-money was received from assessee and his co-owner nor there is evidence of actual payment of additional amount by assessee to the seller. The Assessing Officer called only Babyben Budhiyabhai Patel who has having 3% share in the land and no other co-owner/seller was called by Assessing Officer for verification of fact. The case of assessee was reopened that the assessee has made additional investment by making a cash payment. The assessee during the assessment, categorically stated that the assessee is having owner of of land and remaining land was purchased of Rameshchandra Harjibhai Gondaliya. Neither the case of Rameshchandra Harjibhai Gondaliya was reopened nor any addition in his case was made despite having common information. Thus, the assessee cannot be treated indifferently on similar set of facts. The ld. AR of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r submission, the ld. AR of the assessee submits that he has already filed statement of Turnish B Kania recorded by the investigation team who carried out survey action. Turnish B Kania in his statement clearly stated that such documents are kept by him for the purpose of format. The ld. AR of the assessee while referring the copy of such Satakhat which is placed at page No. 138 and 139 of paper book would submit that in the said Satakhat, Babyben Budhiyabhai Patel alone is shown as purchaser, however, the assessee and Rameshchandra Harjibhai Gondaliya is shown as seller. The said document does not bear the signature of parties nor it bears any date of execution. Such document is not supported by any corroborative evidence to strengthen the case of Assessing Officer that any on-money or cash payment or unexplained payment was made by assessee rather it is a waste piece of paper as has been kept by Turnish B Kania for the purpose of draft format as confirmed by him. Facts remained the same, the assessee has purchased the land on a consideration of Rs. 1.30 lacs which is duly recorded in the books of assessee. The assessee has recorded share of purchase consideration in his books of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer of that assessee made addition of undisclosed investment, which was upheld by the ld. CIT(A). However, the Tribunal deleted the addition by holding that addition is made without any basis and no corroborative evidence is placed on record. The Satakhat was found from the third party and that no addition can be made on the basis of undated, unsigned and unstamped soft copy of Satakhat from a person to whom the assessee has no dealing. Similar view was taken in Kalpesh Mafatlal Patel Vs DCIT in ITA No. 48/Srt/2017, on the basis of similar draft Satakhat found from office of Tarnish B Kania, Advocate by holding that no specific query was raised in respect of impounded Satakhat from Tarnish B Kania, Advocate and held that no addition can be made in respect of unsigned, undated Satakhat found from a person not connected with assessee. 14. We find that SMC Bench of this Tribunal in Mukesh Agarwal (in ITA No. 362/Srt/2022 dated 18.05.2023) while considering the similar addition on the basis of Satakhat found in survey action from the office of Vasudev Goplani Advocate held that the Assessing Officer solely relied on the document found at the business premises of third pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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