JCIT (OSD) 8(1)(1), Mumbai v. SHRI SANJAY PARMAR, Mumbai

ITA 3534/MUM/2019 | 2014-2015
Pronouncement Date: 30-03-2021 | Result: Dismissed

Appeal Details

RSA Number 353419914 RSA 2019
Assessee PAN AAACS6498M
Bench Mumbai
Appeal Number ITA 3534/MUM/2019
Duration Of Justice 1 year(s) 10 month(s) 7 day(s)
Appellant JCIT (OSD) 8(1)(1), Mumbai
Respondent SHRI SANJAY PARMAR, Mumbai
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2021
Appeal Filed By Department
Order Result Dismissed
Bench Allotted G
Tribunal Order Date 30-03-2021
Last Hearing Date 22-02-2021
First Hearing Date 22-02-2021
Assessment Year 2014-2015
Appeal Filed On 23-05-2019
Judgment Text
IN THE INCOME-TAX APPELLATE TRIBUNAL G BENCH MUMB AI BEFORE SHRI SHAMIM YAHYA ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH JUDICIAL MEMBER ITA NO.3534/MUM/2019 (ASSESSMENT YEAR 2014-15) JCIT(OSD)- 8(1)(1) ROOM NO. 625 6 TH FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI-400020. VS M/S SANJAY V. PARMAR 3 2 OORANWALA MANSION DR. B.A. ROAD PAREL MUMBAI-40001 2. P AN: AAACS6498M APPELLANT RESPONDENT C.O. NO.61/MUM/2020 (ASSESSMENT YEAR 2014-15) M/S SANJAY V. PARMAR 3 2 OORANWALA MANSION DR. B.A. ROAD PAREL MUMBAI- 400012. P AN: AAACS6498M VS JCIT(OSD)- 8(1)(1) ROOM NO. 625 6 TH FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI-400020. APPELLANT RESPONDENT APPELLANT BY : SHRI T.S. KHALSA (DR) REVENUE BY : SHRI PRAKASH JHUNJHUNWALA (AR) DATE OF HEARING : 22.02.2021 DATE OF PRONOUNCEMEN T : 30.03.2021 ORDER PER SHAMIM YAHYA ACCOUNTANT MEMBER; 1. THIS IS AN APPEAL BY THE REVENUE AND CROSS OBJECTIO N BY THE ASSESSEE ARISING OUT OF THE ORDER DATED 16.01.2019 OF LEARNED COMMIS SIONER OF INCOME TAX (APPEALS)-14 MUMBAI [FOR SHORT THE LD. CIT(A)] AN D PERTAINS TO ASSESSMENT YEAR 2014-15. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: ITA NO. 3534 M 19 & C.O. NO. 61 M 2020-M/S SANJAY V. P ARMAR. 2 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW HONBLE CIT(A) IS JUSTIFIED IN CONCLUDING THAT THE CASH TRA NSACTIONS IN THE SEIZED DOCUMENTS DURING A SEARCH OPERATION DO NOT BELONG T O THE ASSESSEE? 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW HONBLE CIT(A) IS JUSTIFIED IN DELETING THE ADDITION MADE O N GROUNDS OF UNDISCLOSED INVESTMENTS U/S. 69B OF THE INCOME TAX ACT 1961? 2. THE ASSESSEE HAS FILED CROSS OBJECTION RAISING THE FOLLOWING GROUNDS OF APPEAL: THE ASSESSEE PREFERS A CROSS OBJECTION AGAINST THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX (A) 14 MUMBAI VIDE ORDE R DATED 29/01/2019 ON FOLLOWING AMONGST OTHER GROUNDS EACH OF WHICH ARE W ITHOUT PREJUDICE TO ANY OTHER :- 1.0 ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW LD. CIT(A) OUGHT TO HAVE DELETED THE ADDITION U/S.69B OF ALLEGED UNDISCLOSED INVESTMENTS OF RS.5 50 00 000/- SINCE THE DISPUTED FLAT WHOSE BOO KING HAS BEEN CANCELLED PRIOR TO SEARCH OF THE BUILDER BELONGED TO THE WIFE OF T HE ASSESSEE; 2.0 THE LD. CIT(A) OUGHT TO HAVE DELETED THE ADDITI ON SINCE THE DOCUMENTS/MATERIAL FOUND AT PREMISE OF 3 RD PARTY CANNOT BE USED AGAINST THE ASSESSEE IN PARTICULARLY WHEN THE COPIES OF SUCH MA TERIAL AND RETRACTED STATEMENTS IS NOT PROVIDED TO THE ASSESSEE FOR CONF RONTATION AND OPPORTUNITY OF CROSS EXAMINATION HAS NOT BEEN PROVIDED TO THE ASSE SSEE. 3. BRIEF FACTS OF THE CASE ARE THAT THE IN THIS CASE I NFORMATION HAS BEEN RECEIVED FROM THE OFFICE OF THE DY. DIRECTOR OF INCOME TAX ( INV.)-UNIT 8(3) MUMBAI I.E. FROM INVESTIGATION WING OF THE INCOME TAX THAT SEARCH AND SEIZURE OPERATION WAS CONDUCTED IN THE CASE OF M/S NISH DEV ELOPERS PVT. LTD. M/S NISH DEVELOPERS PVT. LTD HAS BEEN DEVELOPING PREMIU M RESIDENTIAL PROJECT IN THE NAME OF ONE AVIGNA PARK AT CURRY ROAD MUMBAI. THE MAIN PROMOTER OF ITA NO. 3534 M 19 & C.O. NO. 61 M 2020-M/S SANJAY V. P ARMAR. 3 THE COMPANY IS KAILASH AGARWAL AND HIS SON NISHANT AGARWAL. DURING THE COURSE OF SEARCH PROCEEDINGS A PEN DRIVE AND LOOSE PAPERS WAS SEIZED FROM THE RESIDENCE OF SH. PRAVIN MISHRA ONE OF THE TRUS TED EMPLOYEE OF SH. KAILASH AGRARWAL WHICH CONTAINS THE DETAILS OF CASH TRANSACTIONS PERTAINING TO M/S NISH DEVELOPERS PVT. LTD. THE PEN DRIVE CONT AINS TRANSACTIONS AMOUNTING TO RS.181 66 44 000/- CONTAINS DATE WISE DETAILS OF CASH RECEIPTS WERE FOUND. ON THE BASIS OF THESE EVIDENCES STATEM ENT OF EMPLOYEES AND PERSONS WORKING AS CASH HANDLERS OF M/S NISH DEVELO PERS PVT. LTD HAS BEEN RECORDED WHEREIN THEY HAVE ACCEPTED THE ISSUE OF ON -MONEY. THE EVIDENCES FOUND DURING THE SEARCH PROCEEDINGS WERE CONFRONTED TO SH KAILASH AGARWAL IN WHICH HE HAS ACCEPTED THAT AN AMOUNT OF RS.181.6 4/- CRORES AS UNACCOUNTED RECEIPTS GENERATED BY M/S NISH DEVELOPE RS PVT. LTD ON OF THE NAME IN THIS PEN DRIVE IS SANJAY PARMAR AND HE HAS PAID TOTAL CASH OF RS.5.50/- CRORES IN F.Y.2013-14. IN VIEW OF THE ABO VE INFORMATION NOTICE U/S142(1) ALONG WITH DETAILS QUESTIONNAIRE DTD.03.1 0.2016 WAS ISSUED AND SERVED UPON THE ASSESSEE WHEREIN HE HAS BEEN REQUES TED TO PROVIDE THE DETAILS OF PAYMENT MADE TOWARDS BOOKING/ PURCHASE OF FLAT A T ONE AVIGNA PARK COPY OF LEDGER ACCOUNT ALONG WITH COPY OF BANK STAT EMENT. 4. THE ASSESSING OFFICER (AO) NOTED THAT THE ASSESSEE HAS FAILED TO FURNISH DOCUMENTARY EVIDENCE TO SUBSTANTIATE THE CLAIM. THE REAFTER THE AO NOTED THE ITA NO. 3534 M 19 & C.O. NO. 61 M 2020-M/S SANJAY V. P ARMAR. 4 STATEMENT OF CASH HANDLERS M/S NISH DEVELOPERS PVT. LTD. HE REFERRED TO THE STATEMENT OF THE EMPLOYEE SHRI PRAVIN MISHRA. REFER RING TO THE ABOVE HE OBSERVED THAT PEN DRIVE AS WELL AS THE STATEMENT OF SHRI MISHRA PROVIDES THAT ON MONEY WAS RECEIVED FOR FLAT IN THE PROJECT ONE AVIGNA PARK. THE AO CONCLUDED AS UNDER: 5.8 IN VIEW OF THE ABOVE FACTS AND THE STATEMENT OF SH. PRAVIN MISHRA AND SH. KAILASH AGARWAL IT IS EVIDENT THAT ASSESSEE I.E. S H. SANJAY PARMAR HAS GIVEN CASH OF RS.5.50/- CRORES TOWARDS BOOKING/PURCHASE OF FLA T AT ONE AVIGNA PARK DEVELOPED BY M/S NISH DEVELOPERS PVT. LTD. THE SOUR CE OF THE SAME HAS NOT BEEN EXPLAINED BY THE ASSESSEE DURING THE COURSE OF ASSE SSMENT PROCEEDINGS. AS PER PROVISION U/S 69B OF THE ACT WHERE IN ANY FINANCIAL YEAR THE ASSESSEE HAS MADE INVESTMENTS OR IS FOUND TO BE THE OWNER OF ANY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE AND THE [ASSESSING] OFFICER FINDS THAT THE AMOUNT EXPENDED ON MAKING SUCH INVESTMENTS OR IN ACQUIRING SUCH BULLION JEWELLERY OR OTHER VALUABLE ARTICLE EXCEEDS THE AMOUNT RECORDED IN THIS BEHALF IN THE B OOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE FOR ANY SOURCE OF INCOME AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT SUCH EXCESS AMOUNT OR THE EXPL ANATION OFFERED BY HIM IS NOT IN THE OPINION OF THE [ASSESSING] OFFICER SA TISFACTORY THE EXCESS AMOUNT MAY BE DEEMED TO BE THE INCOME OF THE ASSESS EE FOR SUCH FINANCIAL YEAR. 5.9 IN THIS CASE ASSESSEE HAS MADE INVESTMENT OF R S.5.50/- CRORES TOWARDS BOOKING/PURCHASE OF FLAT AT ONE AVIGNA PARK HOWEV ER THE SAME HAS NOT BEEN REFLECTED IN HIS BOOKS OF ACCOUNT AND SOURCE OF SUC H INVESTMENT HAS NOT BEEN EXPLAINED BY THE ASSESSCE. IN THIS CASE CLEAR CUT E VIDENCES HAS BEEN BROUGHT ON RECORD THROUGH THE SEARCH & SEIZURE OPERATION IN TH E CASE OF M/S NISH DEVELOPERS PVT. LTD. THAT ASSESSEE HAS PAID RS.5.50/- CRORES I N CASH M/S NISH DEVELOPERS PVT. LTD. AS PER PROVISION OF SECTION 69B OF THE ACT TH E BURDEN OF PROOF IS ON ASSESSEE HOWEVER ASSESSEE FAILS TO DISCHARGE HIS O NUS TO PROVIDE THE SOURCE OF CASH PAYMENT MADE TOWARDS BOOKING/PURCHASE OF THE F LAT. AS ASSESSEE FAILS TO SUBSTANTIATE THE SOURCE OF THE CASH PAYMENT OF RS.5 .50/- CRORES TOWARDS BOOKING/ PURCHASE OF FLAT AT ONE AVIGNA PARK DEVELOPED BY M/S NISH DEVELOPERS PVT. LTD THEREFORE RS.5.50/- CRORES HAS BEEN ADDED TOTA L INCOME OF THE ASSESSEE U/S ITA NO. 3534 M 19 & C.O. NO. 61 M 2020-M/S SANJAY V. P ARMAR. 5 69B OF THE ACT. PENALTY PROCEEDINGS U/S. 271(1)(C) ARE INITIATED SEPARATELY FOR FURNISHING INACCURATE PARTICULARS OF INCOME THEREBY CONCEALMENT OF INCOME CHARGEABLE TO TAX. 5. AGAINST THE ABOVE ORDER THE ASSESSEE HAS FILED THE APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) REFERRED TO THE ASSESSEES S UBMISSION HE ALSO REFERRED TO THE REMAND REPORT OBTAINED FROM THE AO AND THE REJOINDER FROM THE ASSESSEE. THEREAFTER THE LD. CIT(A) OPINED THA T THE ADDITION WAS NOT SUSTAINABLE INASMUCH AS WIFE OF THE ASSESSEE SMT. V ARSHA PARMAR HAD MADE THE BOOKING BY MAKING CHEQUE PAYMENT OF RS. 51 00 0 00/-. LATER SHE GOT THE BOOKING CANCELLED AND THE ADVANCE MONEY WAS REFUNDE D BACK TO HER. HE GAVE A FINDING THAT REFUND HAS BEEN CREDITED IN THE BANK ACCOUNT OF SMT. VARSHA PARMAR ON 25.02.2014 WHEREAS THE SEARCH AND SEIZURE ACTION TOOK PLACE IN THE PREMISES OF M/S NISH DEVELOPERS ON 04.04.2014 WHICH WAS MUCH AFTER DATE OF CANCELLATION OF BOOKING BY MRS. VARSHA PARMAR. H E NOTED THAT AO HAS NOT MADE ANY ADVERSE COMMENT IN RESPECT OF THE EVIDENCE SUBMITTED BY THE ASSESSEE REGARDING BOOKING AND CANCELLATION BY SMT. VARSHA PARMAR. HE ALSO FOUND IT ABSURD THAT EVEN AFTER CANCELLATION OF THE BOOKING CASH PAYMENT WAS NOTED IN THE SAID PEN DRIVE. THE LD. CIT(A) OPINED THAT THERE IS NO PLAUSIBLE EXPLANATION AS TO WHY A PERSON WHO HAS CANCELLED TH E BOOKING WOULD CONTINUE TO MAKE CASH PAYMENT TO THE BUILDER. REFER RING TO THE OTHER NOTING AND THE FACTS OPERATING IN THE CASE HE WAS OF THE OPINION THAT THE ADDITION WAS NOT SUSTAINABLE. THE ORDER OF LD. CIT(A) IN THI S REGARD IS AS UNDER: ITA NO. 3534 M 19 & C.O. NO. 61 M 2020-M/S SANJAY V. P ARMAR. 6 4. I HAVE CONSIDERED THE SUBMISSION MADE BY THE APP ELLANT AND THE REASONS RECORDED BY THE AO. FROM THE MATERIAL ON RECORD IT IS CLEAR THAT THE AO HAS NO MATERIAL IN ITS POSSESSION FROM WHICH IT CAN BE CON CLUDED THAT THE PERSON SANJAY PARMAR MENTIONED IN THE DATA CONTAINED IN THE PEN D RIVE SEIZED DURING THE COURSE OF SEARCH IN THE CASE OF M/S NISH DEVELOPERS PVT LT D ON 04/04/2014 WAS THE APPELLANT ONLY. THOUGH THE WIFE OF THE APPELLANT S MT. VARSHA PARMAR HAD MADE A BOOKING IN THE PROJECT ONE AVIGHNA PARK ON 11/0 7/2013 BY MAKING CHEQUE PAYMENT OF RS. 51 LAKHS THE BOOKING WAS CANCELLED BY HER AND THE ADVANCE PAYMENT WAS REFUNDED BACK TO HER. THE REFUND HAS BE EN CREDITED IN THE BANK ACCOUNT OF SMT. VARSHA PARMAR ON 25/02/2014 WHEREAS SEARCH AND SEIZURE ACTION TOOK PLACE IN THE PREMISES OF M/S NISH DEVELOPERS P VT. LTD ON 04/04/2014 WHICH WAS MUCH AFTER THE DATE OF CANCELLATION OF TH E BOOKING BY MRS VARSHA PARMAR. THE AO HAS NOT MADE ANY ADVERSE COMMENT IN RESPECT OF THE EVIDENCE SUBMITTED BY THE APPELLANT REGARDING CANCELLATION O F BOOKING BY SMT. VARSHA PARMAR. IT CAN ALSO BE SEEN FROM THE DATA CONTAINED IN THE PEN DRIVE WHICH IS REPRODUCED BY THE AO IN THE ASSESSMENT ORDER THAT C ASH PAYMENT BY SANJAY PARMAR THE PERSON MENTIONED IN THE PEN DRIVE CONTI NUED TO BE MADE EVEN AFTER 25/02/2014. FOLLOWING PAYMENTS HAVE BEEN MADE BY TH AT PERSON AFTER 25/02/2014 RS. 10 90 000/- ON 25/02/2014 RS. 25 10 000/- ON 05/03/2014 RS. 35 00 000/- ON 18/03/2014 RS. 25 00 000/- ON 27/03/2014 RS. 20 00 000/- ON 31/03/2014 THERE IS NO PLAUSIBLE EXPLANATION AS TO WHY A PERSO N WHO HAS CANCELLED BOOKING WOULD CONTINUE TO MAKE CASH PAYMENTS TO THE BUILDER . ONLY POSSIBLE EXPLANATION WOULD BE THAT THE PERSON MAKING CASH PAYMENTS AND T HE PERSON CANCELLING THE BOOKING ARE TWO DIFFERENT PERSONS. SINCE THE AO HAS FAILED TO BRING ANY MATERIAL ON RECORD TO SHOW THAT THE PERSON MAKING CASH PAYME NT IS THE APPELLANT ONLY AND THE APPELLANT HAS NOT BEEN IDENTIFIED IN THE STATEM ENTS RECORDED DURING THE COURSE OF SEARCH I'M OF THE OPINION THAT THE CASH TRANSAC TIONS RECORDED IN THE PEN DRIVE CANNOT BE TAXED IN THE HANDS OF THE APPELLANT BECAU SE THERE IS NO PLAUSIBLE REASON FOR THE APPELLANT TO CONTINUE TO MAKE CASH PAYMENTS EVEN AFTER CANCELLATION OF BOOKING. MOREOVER IN THE DESCRIPTION AGAINST THE C ASH PAYMENT ENTRY IS AS UNDER:- RECD FROM SANJAY PARMAR HE IS HAVING HIS OFFICE I N KALBADEVI. THE CASH IS RECEIVED AGAINST THE SALE OF FLAT ITA NO. 3534 M 19 & C.O. NO. 61 M 2020-M/S SANJAY V. P ARMAR. 7 THE APPELLANT DOES NOT HAVE ANY OFFICE IN KALBADEVI RATHER HIS OFFICE IS IN MASJID BUNDER. IN VIEW OF THESE FACTS AND IN VIEW OF ABSEN CE OF ANY INCRIMINATING MATERIAL BEING SEIZED DURING THE COURSE OF SEARCH IT IS CONCLUDED THAT CASH TRANSACTIONS RECORDED IN THE PEN DRIVE DO NOT BELON G TO THE APPELLANT. ACCORDINGLY THE ADDITION OF RS. 5.5 CRORE MADE BY THE AO IN THE HANDS OF THE APPELLANT IS DIRECTED TO BE DELETED AND GROUNDS OF APPEAL RAISED BY THE APPELLANT IN THIS REGARD ARE ALLOWED. 6. AGAINST THE ABOVE ORDER THE REVENUE HAS FILED APPE AL AND ASSESSEE HAS FILED THE CROSS OBJECTION. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECO RDS. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUTSET STATED THAT ON THE B ASIS OF THE SAME SEARCH AT M/S NISH DEVELOPERS ADDITIONS MADE IN THE HAND OF SOME OF THE PARTIES HAS BEEN DELETED BY THE ITAT. HENCE HE SUBMITTED THAT THE I SSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE. 8. THE LD. COUNSEL OF THE ASSESSEE HAS MADE ELABORATE WRITTEN SUBMISSIONS WHICH READS AS UNDER: THE LD. CIT(A) HAS CORRECTLY DELETED THE ADDITION U /S.69B OF RS. 5 50 00 000/OF ALLEGED ON-MONEY PAID TO M/S. NISH DEVELOPERS PVT L TD FOR PURCHASE OF FLAT AT ONE AVIGNA PARK AND IN THIS RESPECT THE ASSESSEE HUMBLY SUBMITS AS UNDER :- A) THERE IS ABSOLUTELY NO MATERIAL ON RECORD TO PROVE THAT THE ASSESSEE HAD MADE ANY ON-MONEY TO M/S NISH DEVELOPERS PVT LTD. THERE WAS NO SALE DEED MOU LETTER OF ALLOTMENT ETC FOUND DURING SEARCH O F M/S NISH DEVELOPERS PVT LTD WHICH COULD PROVE THAT THE ASSESSEE HAD MAD E ANY BOOKING OF FLAT AT ONE AVIGNA PARK. NO ENQUIRY HAS BEEN CONDUCTED AG AINST THE ASSESSEE. THE LD. AO IN ASSESSMENT ORDER AND IN REMAND REPOR T HAD NOT PROVED THAT THE ASSESSEE HAD MADE ANY BOOKING OF FLAT AT ONE A VIGNA PARK AND THAT TOO ON MAKING THE PAYMENT OF ALLEGED ON-MONEY; B) THE ASSESSEES WIFE SMT VARSHA PARMAR HAS PROVISION ALLY BOOKED A FLAT ON MAKING A TOKEN CHEQUE AMOUNT OF RS.51 00 000/- ON 1 1/07/2013 AND SUCH ITA NO. 3534 M 19 & C.O. NO. 61 M 2020-M/S SANJAY V. P ARMAR. 8 BOOKING HAD BEEN CANCELLED AND REFUND OF SUCH DEPOS IT HAD BEEN CREDITED IN HER BANK ACCOUNT ON 25/02/2014 WHICH IS BEFORE THE SEARCH CONDUCTED AT PREMISE OF M/S. NISH DEVELOPERS PVT LTD ON 04/04/20 14; C) THE CASH PAYMENTS DISCLOSED IN PEN DRIVE SEIZED DUR ING SEARCH OF M/S NISH DEVELOPERS PVT LTD DISCLOSES THE DATES FROM 25/02/2 014 TO 31/03/2014 WHEREAS SMT VARSHA PARMAR HAD CANCELLED THE BOOKING MUCH PRIOR TO SUCH DATES; D) THE LD. AO MADE THE ADDITION UNDER MISTAKEN IDENTIT Y. THE PEN DRIVE CONTAINING THE DESCRIPTION THAT RECD FROM SANJAY P ARMAR HE IS HAVING HIS OFFICE AT KALBADEVI. THE CASH IS RECEIVED AGAINST T HE SALE OF FLAT DOES NOT BELONG TO THE ASSESSEE SINCE THE ASSESSEE IS NOT HA VING ANY OFFICE AT KALBADEVI RATHER HIS OFFICE IS SITUATED AT MASJID BUNDER; E) THE ASSESSEE HAD FILED THE AFFIDAVIT SWORN ON OATH CONFIRMATION OF M/S. NISH DEVELOPERS PVT LTD AND BANK STATEMENTS OF SMT VARSHA PARMAR DISCLOSING THE CHEQUE PAYMENT OF BOOKING DEPOSIT AN D REFUND RECEIVED THEREON. THE ASSESSEE ALSO FILED COPIES OF HIS OWN BANK STATEMENTS WHICH DOES NOT DISCLOSE ANY PAYMENTS MADE TO M/S NISH DEV ELOPERS PVT LTD. THE LD. AO HAD NOT DOUBTED THE CORRECTNESS OF DOCUMENTS FILED ON RECORD; F) THE LD. AO HAD NOT CONDUCTED ANY ENQUIRY/INVESTIGAT ION TO VERIFY THE FACTS AND HAD NOT ISSUED ANY NOTICE U/S 133(6)/131 TO THE DEVELOPER. THE LD. AO DID NOT PROVIDE THE COPIES OF STATEMENTS OF 3 RD PARTIES TO THE ASSESSEE FOR REBUTTAL AND DID NOT ALLOW AN OPPORTUNITY OF CROSS EXAMINATION. IN ANY CASE THE STATEMENTS OF THE EMPLOYEE AND DIRECTOR OF M/S NISH DEVELOPERS PVT LTD HAD BEEN RETRACTED; G) THE DOCUMENTS FOUND DURING SEARCH OF 3 RD PARTIES CANNOT BE USED AGAINST THE ASSESSEE. THE PRESUMPTION OF SEC 292C AND 132(4A) A PPLIES ONLY TO SEARCHED PERSON AND WOULD NOT APPLY TO THE ASSESSEE ; H) WITHOUT PREJUDICE AND WITHOUT ACCEPTING ANY ALLEGAT IONS THE ADDITION CANNOT BE MADE IN HANDS OF THE ASSESSEE SINCE THE FLAT WAS BOOKED AND CANCELLED IN NAME OF SMT VARSHA PARMAR JUDICIAL DECISIONS RELIED UPON: ADDITION MADE IN IDENTICAL CASE (RELATES TO M/S NIS H DEVELOPERS PVT. LTD.) DELETED BY HON'BLE ITAT MUMBAI ITA NO. 3534 M 19 & C.O. NO. 61 M 2020-M/S SANJAY V. P ARMAR. 9 A) JAYESH KEWALCHAND ITA NO. 5640/MUM/2017 DATED 31 /7/2019 (COPY ENCLOSED) B) DCIT V. MANOJ AND DESAI I.T NO. (6301/MUM/2018) DATED 07/12/2020 (COPY ENCLOSED) DOCUMENTS FOUND AT PREMISE OF SEARCHED PERSON CANNO T BE USED AGAINST OTHER PERSONS C) PR. CIT V. PHENIX DATATECH SERVICES PVT LTD 77 T AXMANN.COM 294 (DEL-HC) D) CIT V. ANIL KHANDELWAL 93 CCH 42 (DEL-HC) E) CIT V. RAMKUMAR 75 CCH 78 (P & H) F) PRADEEP AMRUTLAL RUNWAL V. ITO {47 TAXMANN.COM 2 93 (PUNE)} PRESUMPTION U/S 292C AND132 (4A) APPLIES ONLY TO TH E SEARCHED PERSON. A) BIMAL KUMAR DAMANI V. CIT 261 ITR 635 (CAL-HC) HEAVY BURDEN IS ON REVENUE TO PROVE THAT SEIZED DOC UMENTS FOUND AT PREMISE OF SEARCHED PERSON BELONG TO OTHER PERSON A) KRISHNA TEXTILES V CIT {310 ITR 227 (GUJ-HC) B) KISHINCHAND CHELLARAM V. CIT (125 ITR 713 (SC) 9. PER CONTRA THE LD. DEPARTMENTAL REPRESENTATIVE (DR ) FOR THE REVENUE RELIED UPON THE ORDERS OF THE AO AND THE FINDINGS IN THE S EARCH AND SEIZURE AT NISH DEVELOPERS THE PEN DRIVE FOUND AND THE STATEMENT O F EMPLOYEES OF NISH DEVELOPERS. 10. REFERRING TO THE ABOVE THE DR FOR THE REVENUE SUBM ITTED THAT THE ABOVE FINDINGS IN THE SEARCH AND THE PEN DRIVE AND THE ST ATEMENT MAKE IT ABSOLUTELY CLEAR THAT ASSESSEE HAS ENGAGED INTO UNACCOUNTED ON MONEY TRANSACTION HENCE HE PLEADED THAT THE ORDER OF THE AO SHOULD B E SUSTAINED. ITA NO. 3534 M 19 & C.O. NO. 61 M 2020-M/S SANJAY V. P ARMAR. 10 11. UPON CAREFUL CONSIDERATION WE FIND THAT ADDITION IN THE HANDS OF THE ASSESSEE IS BASED UPON SEARCH & SEIZURE OPERATION AT THE PRE MISES OF NISH DEVELOPERS PRIVATE LIMITED. THE SOURCE IS A PEN DRIVE ENTRY RE COVERED FROM AN EMPLOYEE OF THE SAID DEVELOPER. 12. THE SAID PEN DRIVE PURPORTED TO HAVE AN ENTRY THAT CASH AGAINST SALE OF FLAT WAS RECEIVED FROM THE ASSESSEE WHO IS HAVING'S OFFI CE AT KALBADEVI. AFTER DETAILED SUBMISSION LD. CIT(A) HAS FOUND THAT ACTUA LLY THE WIFE OF THE ASSESSEE HAD BOOKED A FLAT IN THE PROPERTY OF THE S AID DEVELOPER. THAT THE SAID BOOKING WAS DONE BY MAKING CHEQUE PAYMENTS. THAT TH E BOOKING WAS CANCELLED AND THE AMOUNT OF BOOKING WAS DULY REFUND ED BY THE DEVELOPER TO THE WIFE OF THE ASSESSEE. LD. CIT(A) HAS FOUND THAT THIS SHOWS THAT THE ENTRY THAT ON MONEY WAS PAID FOR SALE OF FLAT TO THE ASSE SSEE IS NOT AT ALL CORRECT AND IS A RESULT OF A MISTAKEN IDENTITY. HE FOUND THAT T HE SAID ENTRIES FOR ON MONEY CASH PAYMENTS ARE ALL DATED AFTER THE CANCELLATION OF BOOKING BY THE WIFE OF THE ASSESSEE AND REFUND OF MONEY TO HER BY THE DEVE LOPER. HENCE HE WAS OF THE OPINION THAT THERE IS NO REASON WHY AFTER THE C ANCELLATION OF BOOKING ANYBODY WOULD PAY ON MONEY CASH AMOUNTS. LEARNED CI T(A) HAS ALSO NOTED THAT AO HAS NOT DISPUTED THE DETAILS ABOUT THE BOOK ING OF FLAT BY THE WIFE OF THE ASSESSEE THE CANCELLATION THEREOF AND THE REFU ND OF BOOKING AMOUNT TO HER ITA NO. 3534 M 19 & C.O. NO. 61 M 2020-M/S SANJAY V. P ARMAR. 11 BY THE DEVELOPER. LEARNED CIT(A) ALSO NOTED THAT TH E ASSESSEE'S ADDRESS IS ALSO NOT THE SAME AS MENTIONED IN THE SAID PEN DRIV E. 13. WE FIND THAT THE ABOVE REASONING OF THE LD. CIT(A) IN DELETING THE ADDITION IN THE HANDS OF THE ASSESSEE ARE COGENT. WHEN NO MATER IAL HAS BEEN FOUND THAT ASSESSEE HAS MADE ANY BOOKING FOR THE FLAT A MERE ENTRY IN A PEN DRIVE OF A THIRD PARTY CANNOT IPSO FACTO FASTEN THE LIABILITY OF ON MONEY TRANSACTION UPON THE ASSESSEE WITHOUT FURTHER CORROBORATIVE MATERIAL BROUGHT ON RECORD. AS A MATTER OF FACT AS NOTED BY THE LEARNED CIT(A) THE O THER MATERIALS FURTHER SUPPORT THE VIEW THAT THE ADDITION IN THE HANDS OF THE ASSESSEE IS NOT SUSTAINABLE IN AS MUCH AS THERE WAS A BOOKING OF FL AT BY THE ASSESSEES WIFE WITH THE SAME DEVELOPER WHICH WAS DULY CANCELLED AN D BOOKING WAS REFUNDED PRIOR TO THE ENTRY OF ON MONEY CASH TRANSACTION. FU RTHER THE CASE LAWS RELIED UPON BY THE LEARNED COUNSEL OF THE ASSESSEE AS REFE RRED ABOVE ARE GERMANE AND SUPPORT THE CASE OF THE ASSESSEE 14. THE ITAT IN FOLLOWING CASE ON ADDITION BASED UPON SAME SEARCH ON SIMILAR MATERIAL HAS FOUND THE ADDITION UNSUSTAINABLE. 1. JAYESH KEWALCHAND ITA NO. 5640/MUM/2017 DATED 31 /7/2019. 2. DCIT V. MANOJ AND DESAI I.T NO. (6301/MUM/2018) DATED 07/12/2020. ITA NO. 3534 M 19 & C.O. NO. 61 M 2020-M/S SANJAY V. P ARMAR. 12 15. ACCORDINGLY IN THE BACKGROUND OF AFORESAID DISCUSS ION AND PREDENTS WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD. CIT(A) A ND HENCE WE UPHELD THE SAME. 16. IN THE RESULT REVENUES APPEAL STANDS DISMISSED. 17. IN THE CROSS OBJECTION THE ASSESSEE IS SUPPORTING T HE ORDER OF LEARNED CIT(A) HENCE CROSS OBJECTION IS TREATED AS INFRUCTUOUS. 18. IN THE RESULT REVENUES APPEAL IS DISMISSED AND ASS ESSEES CO IS TREATED AS INFRUCTUOUS. ORDER PRONOUNCED IN OPEN COURT ON 30 TH MARCH 2021. SD/- SD/- AMARJIT SINGH SHAMIM YAHYA JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATE: 30 .03.2021 PS COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR G BENCH ITAT MUMBAI 6. GUARD FILE BY ORDER DY./AS ST. REGISTRAR ITAT MUMBAI