SHAILESH JIVALAL JOGANI, MUMBAI V. DCIT CENTRAL CIR-5(3), MUMBAI

CO 110/MUM/2022

AI Insights

The case involves appeals by the Deputy Commissioner of Income Tax against Shailesh Jivalal Jogani concerning alleged unexplained cash receipts from the sale of land. The revenue challenged the CIT(A)'s decision which had favored the assessee, Jogani, by deleting the addition of Rs.4,23,98,000 made under section 69A of the Income Tax Act. The Tribunal examined the evidence, including seized documents and previous assessments of related entities, and concluded that the AO failed to substantiate that cash payments were made directly to the assessee. Consequently, both the revenue's appeals and the assessee's cross objections were dismissed.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 130134 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 28-05-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-03-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 11-09-2022
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment; Unexplained expenditure; Search and seizure; Document seized; Corroborative evidences; Documents seized
• Section: 132; 143(3); 153A; 69A; 13; 153C

Judgement Text

P a g e | 1 ITA No.1449 & 1450/Mum/2022 CO No. 110 & 111/Mum/2022 The DCIT, CC-5(3) Vs. Shailesh Jivalal Jogani IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, MUMBAI BEFORE SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA Nos. 1449 & 1450/Mum/2022 C.O. Nos. 110 & 111/Mum/2022 (A.Ys.2012-13 & 2013-14) The Dy. Commissioner of Income Tax, Central Circle-5(3) Room No. 1906, 19 th Floor, Air India Building, Nariman Point, Mumbai – 400021 Vs. Shailesh Jivalal Jogani 304, 304, Rikhav Chambers Chambers, Opp, Motibaug Mahidharpura, Gujarat- 395003 स्थायी लेखा सं./जीआइआर सं./PAN/GIR No:AEBPJ3548M Appellant .. Respondent Appellant by : Chetan M Kacha Respondent by : Bhupendra Shah Date of Hearing 16.03.2023 Date of Pronouncement 29.05.2023 आदेश / O R D E R Per Amarjit Singh (AM): These 2 appeals filed by the revenue are directed against the order of ld. CIT(A)-53, Mumbai for assessment year 2012-13 and 2 Cross Objection are filed by the assessee. Since all these appeals and cross objection are based on identical fact and similar issue, therefore, for the sake convenience all these appeals are adjudicated together by taking the ITA No. 1449/Mum/2022 as a lead case and its finding will be applied mutatis mutandis to the other appeal wherever applicable. ITA No. 1449/Mum/2022 (Revenue’s Appeal) P a g e | 2 ITA No.1449 & 1450/Mum/2022 CO No. 110 & 111/Mum/2022 The DCIT, CC-5(3) Vs. Shailesh Jivalal Jogani “1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is right in deleting the addition of Rs.4,23,98,000/- made by the AO u/s 69A of the Act?" 2. Whether on the facts and in the circumstances of the case and in law, the Ld CIT(A) is right in ignoring the fact that a search was conducted on 04.12.2014 in the case of Bartar Group and during the search proceedings it is seen that M/s. Greenfield Realty P. Ltd. purchased the land for a consideration of Rs. 11,35,000/ for Ship Someshwar Enclave project and Shiv Kartika Enclave project at Vesu. Subsequently, the shares of M/s. Greenfield Realty P. Ltd. were acquired by M/s. AnushthanBuildcon Ltd. for a consideration of Rs 19,93,39,659/- The seized documents mentioned the actual cost of the land at Rs 42,68,00,000/- and out of the total consideration of Rs 42,68,00,000/- Rs. 19,93,39,659/ was recorded in the books of accounts and the payment of Rs 22,74,60,350/- was made in cash to the original shareholders of M/s. Greenfield Realty P Ltd. The assessee, Shri Shailesh J. Jogani was holding 29% shares of M/s Greenfield Realty P Ltd Thais, Shri Shailesh Jogani received Rs. 6,59,63,502/-, in the ratio of shareholding, as cash in respect of purchase of land by the Bartar Group.?" 3. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is right in holding that the Ld.CIT(A)-11, Ahmedabad in the case of M/s Greenfield Realty P. Ltd, has not made any findings with respect to the cash payment made to the assessee ignoring the findings of the search conducted on 04.12 2014 in the case of "Bartar Group" that Shr Shailesh Jogani received Rs.6,59,63,502/-, in the ratio of shareholding, as cash in respect of purchase of land by the Bartar Group ?" 4. Whether on the facts and in the circumstances of the case and in law, the Ld CITA) is right in holding that the cash payment in respect of purchase of the project including land has been made by the Bartar Group to M/s Greenfield Realty P. Ltd., so addition in respect of unexplained cash receipt, if any, has to be made in the hands of M/s Greenfield Realty P. ltd, ignoring the incriminating materials seized during the search proceedings which suggests that the actual cost of the land at Rs. 42,68,00,000/ and out of the total consideration of Rs. 42,68,00,000/-, Rs. 19,93,39,659/- was recorded in the books of accounts and the payment of Rs. 22,74,60,350/- was made in cash to the original shareholders of M/s. Greenfield Realty P. Ltd. The assessee, Shri Shailesh J. Jogani was holding 29% shares of M/s. Greenfield Realty P. Ltd. Thus, Shri Shailesh Jogani received Rs. 6,59,63,502/-, in the ratio of shareholding, as cash in respect of purchase of land by the Bartar Group. ?* 5. Whether the Ld.CIT(A) is justified in deleting the addition of Rs.4,23,98,000/- made u/s 69A of the Act, holding that the seized document does not mention the name of the assessee, ignoring the fact that the addition has been made on the basis of seized evidence and corroborating statements, which are incriminating in nature, and implicate the assessee as a beneficiary of unaccounted money?" P a g e | 3 ITA No.1449 & 1450/Mum/2022 CO No. 110 & 111/Mum/2022 The DCIT, CC-5(3) Vs. Shailesh Jivalal Jogani 6. Whether the Ld.CIT(A) is justified in deleting the addition of Rs.4,23,98,000/-made u/s 69A of the Act, holding that the seized documents do not mention the assessee, ignoring the seized evidence and corroborating statements which establish the assessee as the beneficiary and ignoring further the fact that the assessee did not avail of the opportunity to cross examine in this regard, and therefore, the onus to prove otherwise has not been discharged by the assessee?" 7. The Applicant craves to leave, to add, to amend and/or to alter any of the ground of appeal, if need be.” 2. Fact in brief is that return of income declaring total income of Rs.34,21,220/- was filed on 30.03.2013. Thereafter, a search and seizer action u/s 132 of the Act was conducted in the case of M/s Shailesh J. Jogani Exports Group on 05.05.2014. Thereafter the assessment u/s 153A r.w. 143(3) of the Act was completed by accepting the returned income which also included Rs.5 lac offered as undisclosed income. 3. Subsequently, information was received with relevant seized documents from the DCIT, Central Circle 1(2) Ahmedabad wherein it was informed that a search and seizure action u/s 132 of the Act was carried out on 4.12.2014 in the case of Bartar Group. During the course of search proceedings on Shri Arshit Hirabhai Vora director of Anushthan Buildcom Pvt. Ltd. (one of the entity of Bartar Group) incriminating material reflecting unaccounted investment in land by the Bartar group was found and seized. The Bartar Group had also undertaken project named Shiv Kartika Enclave at Vesu. The acquisition of land at Vesu on which project Shiv Kartika enclave launched was acquired by way of acquisition of shares of M/s Greenfield Reality Pvt. Ltd. (GRPL) by M/s Anushthan Buildcon Pvt. Ltd. As per seized document i.e pages 2, 3 & 5 of Annexure A-3, actual cost of the land was recorded at Rs.42,68,00,000/- and on pages 11-12 of annexure A-10 details of payment towards purchase of the said land by the Bartar Group was recorded. The AO stated that on perusal of the P a g e | 4 ITA No.1449 & 1450/Mum/2022 CO No. 110 & 111/Mum/2022 The DCIT, CC-5(3) Vs. Shailesh Jivalal Jogani seized document it was clear that total consideration of the land was recorded at Rs.42,68,00,000/- and the consideration of Rs.19.93 crores was paid for acquiring the shares of M/s GRPL by ABPL and the balance payment of Rs.22.74,60,350/- was paid in cash to original shareholders of GRPL. The A.O further stated that assessee Shri S.J. Jogani was one of the original shareholder of GRPL with his shareholding of 29%, the cash received by Shri S.J. Jogani comes to Rs.6,59,63,502/- being 29% of Rs.22,74,60,352/-. 4. On the basis of the information received from the DCIT, CC-1(2) Ahmedabad the A.O reopened the assessment by issuance of notice u/s 148 of the Act on 26.03.2019. The assessee objected the reopening and stated that neither opportunity of cross-examination was provided nor any incriminating material was provided to the assessee. Further vide letter dated 15.10.2019 the assessee had denied that any of the cash has been accepted towards sale of land to M/s ABPL. 5. During the course of assessment proceedings the AO also referred statement of facts filed by M/s Greenfield Reality Pvt. Ltd. before the CIT(A) Ahmedabad and that company submitted that as per pages 2 & 5 Annexure A-3 the purchase cost of the land was noted at Rs.42,68,00,000/-. M/s Greenfield Reality in its case before the ld. CIT(A) also submitted that on page no. 5 of seized annexure A3 the detail of amount collected by the group towards booking receipts as well as the booking detail of the 14 units have been mentioned and also noted and also on the same page the land cost of Rs.42,68,00,000/- was mentioned and the aggregate amount was stated at Rs.48,65,76,625/- . M/s Greenfield Reality Pvt. Ltd. in its case before CIT(A) also stated that the payment for land in cash of Rs.22.7 crores was made out of the booking amount for the project received in cash. On the basis of the facts reported in the order of the ld. CIT(A) in the case of M/s Greenfield P a g e | 5 ITA No.1449 & 1450/Mum/2022 CO No. 110 & 111/Mum/2022 The DCIT, CC-5(3) Vs. Shailesh Jivalal Jogani Reality Pvt. Ltd. the A.O further observed that the payment of Rs.22.75 crores was paid in cash which was not recorded in its regular books of account. The AO was of the view that in the statement of facts M/s GRPL had admitted payment of cash for purchase of land from M/s ABPL. 6. Therefore the AO arrived at the conclusion that the total consideration of the land was recorded at Rs.42.68 crores and consideration of Rs.19.93 crores was paid for acquiring the shares of M/s GRPL by ABPL and balance amount of Rs.22,74,60,250/- was paid in cash. In view of above observation the AO held that assessee had received cash towards sale of land and share @ 29% which comes to Rs.4,23,98,000/- was considered as unexplained income of the assessee for the assessment year 2012-13 as per provision of Sec. 69A of the Act and added to the total income of the assessee. 7. The assesse filed the appeal before the ld. CIT(A). The ld. CIT(A) has allowed the appeal of the assesse. The relevant operating part of the decision of the CIT(A) is reproduced as under: “4.5 The findings of the AO in the assessment order and the submissions of the appellant have been considered. The facts of the case are that an information was received from the DCIT-CC-1(2), Ahmedabad that a search was conducted on 04 12.2014 in the case of Barter Group" and during the search proceedings in the case of Shri Arshit Hirabhai Vora, Director of Anushthan Buildcon Ltd, certain incriminating documents regarding unaccounted investment in land by the Barter Group was seized Pages 2,3 & 5 of Annexure 3 and Pages 11 & 12 of Annexure A 10 contain the payment made for purchase of land by Barter Group. M/s Greenfield Realty P. Ltd. purchased the land for a consideration of Rs. 11,35,000/- for Shiv Someshwar Enclave project and Shiv Kartika Enclave project at Vesu Subsequently, the shares of M/s Greenfield Realty P. Ltd. were acquired by M/s. Anushthan Buildcon Ltd. for a consideration of Rs.19,93,39,659. The seized documents mentioned the actual cost of the land at Rs.42,68,00,000/- including the details of the payment for the purchase of the land. Out of the total consideration of Rs. 42,68,00,000/-, the payment of Rs.22,74,60,350/- was paid in cash to the original shareholders of M/s Greenfield Realty P Ltd The assessee. Shri Shailesh J. Jogani was holding 29% shares of Ms. Greenfield Realty P Ltd. Thus, Shri Shailesh Jogani received Rs.6,59,63,502/- as cash in respect of purchase of land by the Barter Group. A satisfaction note was prepared by the DCIT-CC-1(2), Ahmedabad and the information was sent to DCIT-CC-5(3), Mumbai P a g e | 6 ITA No.1449 & 1450/Mum/2022 CO No. 110 & 111/Mum/2022 The DCIT, CC-5(3) Vs. Shailesh Jivalal Jogani 4.6 The appellant has submitted that no document regarding payment of cash to the appellant was found and seized. During the search proceedings, the Barter Group has given the colour of booking receipts to their own unaccounted fund introduced in the project. The department has not enquired from the old shareholders regarding receipt of cash by them, even during the search proceedings. The appellant has further stated that no opportunity of cross- examination was given by the AO Therefore, in absence of cross-examination of concerned parties, no addition can be made by the AO in the case of the appellant. It is further submitted that even after receipt of information, the AO has not conducted any further enquiry and the enquiry report of the DDIT cannot be used in absence of corroborative evidences. For this the appellant has relied upon the decisions Kanwar Natwar Singh vs. Directorate of Enforcement (Supreme Court (October 8th, 2010), KishinchandChellaram Vs. Commissioner Of Income Tax, High court of Gujarat - Heirs And Lrs Of Late Laxmanbhai S. Patel Vs. Commissioner Of Income Tax 174 Taxman 206, The High Court of Calcutta Eastern Commercial Enterprises, 210 ITR 0103 High Court Of Calcutta Bangodaya Cotton Mills Ltd. Vs. Commissioner Of Income Tax 224 CTR 62, High Court Of Delhi Commissioner Of Income Tax Vs. Dharam Pal Prem Chand Ltd (2007) 212 CTR (Del) 253, High Court Of Kerala - Commissioner Of Income Tax Vs. C. F.Thomas (2006) 204 Ctr (Ker) 21, High Court Of Madhya Pradesh- Prakash Chand Nahta Vs. Commisioner Of Income Tax (2008) 218 CTR (MP) 367, High Court Of Madras - M. PiraiChoodi Vs. Income Tax Officer (2008) 302 ITR 40 (Mad), High court of Rajasthan Commissioner Of Income Tax Vs. Geetanjali Education Society 174 taxman 440, High court of Delhi Genesis Commet (P). Ltd. 163 Taxman 482 (Del.), High court of Delhi - CIT v. SMC Share Brokers, 288 ITR 345, C.P. Adam, 105 ITR 465 (Ker.), Ashwani Gupta 322 ITR 396 (Del.). Income Tax Tribunal Bench Of Delhi Jindal Stainless Ltd. Vs. Assistant Commissioner Of Income Tax (2009) 122 TTJ (Del) 902, Sunita Dhadda, 148 TTJ 719 (Jp.), DCIT vs. Mahendra Ambalal Patel, 40 DTR 243 (Guj.), High Court of Mumbai - Rajeev G. Kalathil, High Court of Mumbai- Nikunj Eximp Enterprises P. Ltd., PermanandVs. Income Tax Officer 107 TTJ 395 (Jodh.), Jagdamba trading company vs ITO ITAT Jodhpur SMC bench 2007, CIT Vs. Leaders Valves P Ltd High Court Of Punjab And Hariyana 2006, Kulwant Singh, 134 TTJ 129, DCIT v. Beautiful Diamonds Ltd. in ITA No. 78/Mum/2000, Brij Pal Sharma, 333 ITR 229 (P & H),R.K. Synthetics Vs. Income Tax Officer [2003] 81 TTJ (Jd) 909, ITO VS. Arora Alloys Limited 12 ITR 263 and N. K. Proteins Ltd. Vs. DCIT (2004) 83 TTJ 904. OME TAX DEPART Accordingly, it is submitted that the addition should be deleted 4.7 The appellant vide letter dated 15.10.2019, addressed to the AO, has stated that opportunity of cross-examination was not provided to him in respect of the incriminating material provided by the AO. The AO issued a letter dated 18.11.2019 asking the assessee and also Shri Arshit Hirabhai Vora, Director of M/s. Anushthan Buildcon P. Ltd. for cross-examination. However, neither the assessee nor Shri Arshit H. Vora attended before the AO for cross-examination. Further, opportunity was provided to the assessee vide letter dated 03.12 2019. Again the assessee did not avail the opportunity of cross-examination. The AO has already provided the opportunity of cross-examination of Shri Arshit Hirabhai Vora to the assessee. However, the assessee deliberately did not avail this opportunity. P a g e | 7 ITA No.1449 & 1450/Mum/2022 CO No. 110 & 111/Mum/2022 The DCIT, CC-5(3) Vs. Shailesh Jivalal Jogani Therefore, the plea of the appellant that no opportunity of cross-examination was provided by the AO is factually incorrect and therefore, it is rejected 4.8 During the course of search proceedings in the case of Bartar Group, seized documents ie Pages 2, 3 & 5 of Annexure 3 and Pages 11 & 12 of Annexure A-10 indicated total value of the land of Shiv Kartika Enclave project of Rs. 42,68,00,000/- Shiv Someshwar Enclave and Shiv Kartika Enclave at Vesu was initially developed by M/s. Greenfield Realty P Ltd. The cost of the land was Rs 11,35,000/- In FYS 2012-13 and 2013-14, shares of M/s. Greenfield Realty P. Ltd. were acquired by M/s. AnushthanBuildcon P. Ltd, a concern of Bartar Group, for a consideration of Rs. 19,93,39,659/ Thus the project was acquired by way of acquisition of shares. However, the seized documents indicated the cost of land at Rs. 42,68,00,000/- Accordingly, the AO has held that the balance payment of Rs. 22.74,60,350/- was paid in cash to the original shareholders As per the details provided by the appellant, the original shareholders of M/s. Greenfield Realty P. Ltd were Shri Shailesh J. Jogani, Shri Mukeshbhai Shah and Ms. Ritaben Shah, Shri Shailesh Jogani was holding 29% of the shares of M/s Greenfield Realty P Ltd. The AO has worked out the cash received by the appellant in the ratio of shareholding 4.9 The AO has also relied upon the statement of facts submitted by M/s. Greenfield Realty P. Ltd to the CIT(A)-11, Ahmedabad The order of the CIT(A)-11, Ahmedabad in the case of M/s. Greenfield Realty P. Ltd. has been perused. In this order, the CIT(A)-11, Ahmedabad, has held that there was a cash payment of Rs. 42.68 crs for purchase of land by Bartar Group to M/s. Greenfield Realty P Ltd. and after considering the unaccounted money and unaccounted expenditure including cash payment for the land, the CIT(A) has directed the AO to consider the unaccounted income @20% of the total on-money! There is no finding of the CIT(A)-11. Ahmedabad, with respect to cash payment to the appellant, Shri Shailesh Jogani The seized documents only show that the payment in cash was made for acquisition of project including land by the Bartar Group to M/s. Greenfield Realty P. Ltd. It is seen that there is no mention of the name of the appellant in the seized documents. There is not a single document which could show that cash payment was directly made to the appellant. The DCIT-CC-1(2), Ahmedabad had forwarded the same information to two other original Directors of M/s Greenfield Realty P. Ltd. Le Mukeshbhai Shah and Ritaben Shah. The cases of Shri Mukeshbhai Shah and Ritaben Shah were reopened by the ACIT Cir. 19(2), Mumbai and ITO Wd. 19(3)(1), Mumbai respectively. In the order u/s 147 rws 143(3) in the case of Shri Mukeshbhai Shah for A.YS, 2013-14 and 2014-15 and in the case of Ms. Ritaben Shah for A.Y 2012-13, no addition has been made by the respective AOs. The respective AOS have recorded the findings that the cash transaction mentioned in the seized documents were not verifiable. Accordingly, no addition in respect of cash received from Bartar Group in respect of purchase of land from M/s. Greenfield Really P. Ltd has been made. The AO has put onus on the appellant to prove that no cash was received by him. In fact, the addition has been made by the AO in respect of unexplained money u/s. 69A of the Act. Therefore, the primary onus is on the AO to establish that the appellant has received unexplained money in cash. The AO has not discharged the primary onus put on him. In case of the present appellant also, the AO has not brought any evidence on record that could P a g e | 8 ITA No.1449 & 1450/Mum/2022 CO No. 110 & 111/Mum/2022 The DCIT, CC-5(3) Vs. Shailesh Jivalal Jogani establish cash payment of Rs.4,23,98,000/- was made by the Bartar Group to the appellant. Even otherwise, the cash payment in respect of purchase of the project including land has been made by the Bartar Group to M/s. Greenfield Realty P. Ltd. so addition in respect of unexplained cash receipt, if any, has to be made in the hands of M/s. Greenfield Realty P. Ltd. and not in the hands of the appellant. In view of the above facts, the addition of Rs. 4,23,98,000/- made u/s. 69A in respect of unexplained money by the AO is deleted. Accordingly, this ground of appeal is partly allowed.” 8. During the course of appellate proceedings before us the ld. D.R submitted after referring reason recorded for reopening that from the search action carried out at the Bartar Group, it was found from the seized material that shares of M/s GRPL was acquired by M/s ABPL for Rs.42,68,00,000/-. After referring page no. 2, 3 & 5 of Annexure A-3, the ld. D.R further submitted that out of the aforesaid consideration the amount of Rs.19.93 crores has been paid for acquiring the shares of M/s GRPL by ABPL by cheques and the balance amount of Rs.22,74,60,350/- was paid in cash. The ld. D.R further referred that since the assessee was having shareholding of 29% in the GRPL therefore, the A.O has correctly determined the unexplained money obtained by the assessee from these transaction as per provision of Sec. 69A of the Act. The ld. D.R has supported the order of the A.O. 9. On the other hand, the ld. Counsel has contended that no document regarding payment of cash to the assesse was found and seized. The ld. A.R further submitted that no opportunity of cross examination was given by the A.O and no inquiry was made from the old shareholders regarding the receipt of alleged cash amount. The ld. Counsel vehemently contended that the aforesaid issue of payment of Rs.42,68,00,000/- towards purchase of land by Bartar Group has already been discussed and examined by the A.O in the case of assessment proceedings made in the assessment of M/s Greenfield P a g e | 9 ITA No.1449 & 1450/Mum/2022 CO No. 110 & 111/Mum/2022 The DCIT, CC-5(3) Vs. Shailesh Jivalal Jogani Reality Pvt. Ltd. (GRPL) u/s 143(3) r.w.s 153A of the Act on 01.03.2017. He also contended that once the issue of part payment in cash for purchasing of land by the Barter Group to the M/s Greenfield Reality Pvt. Ltd. has already been taken into consideration by the A.O in the assessment made in the case of M/s Greenfield Reality Pvt. Ltd. as referred supra then there was no basis for adding the same amount on assumption basis in the hand of the shareholders. He supported the order of ld. CIT(A). 5. Heard both the sides and perused the material on record. The AO has reopened the assessment by issuance of notice u/s 148 of the act as referred supra in this order on the basis of information recived from the DCIT Central Circle 1(2) Ahmedabad in the case of the Shri Arshit Hirabhai Vora, Director of Anushthan Buildcon Ltd., regarding unaccounted investment in the land made by the Barter Group as per the seized document. As per the detail M/s Greenfield Reality P. Ltd. purchased the land for the Shiv Enclave project at Vesu. Subsequently, the shares of M/s Greenfield Reality Pvt. Ltd. were acquired by M/s Anushthan Buildcon P. Ltd. for a consideration of Rs.19,93,89,659/-. However, the seized documents mentioned the actual cost of the land at Rs.42,68,00,000/- and also provide the details of payment for the purchase of land. Out of the aforesaid amount of total consideration, an amount of Rs.19,93,39,659/- was recorded in the books of account and the payment of Rs.22,74,60,350/- was paid in cash for acquiring the shares of M/s Greenfield Reality Pvt. Ltd. Since, the assessee was holding 29% shares in M/s GRPL therefore, AO stated that assessee had received cash of Rs.6,59,63,502/- in the ratio of shareholding in respect of purchase of land by the Bartar Group. During the course of appellate proceedings before the ld. CIT(A) the assessee submitted that no document showing that cash payment was made to the assessee was P a g e | 10 ITA No.1449 & 1450/Mum/2022 CO No. 110 & 111/Mum/2022 The DCIT, CC-5(3) Vs. Shailesh Jivalal Jogani found and seized. Assessee further submitted that no opportunity of cross examination was provided to the assessee. The AO has made the assessment on the basis of facts reported by the CIT(A)-11 in the case of M/s Greenfield Reality Pvt. Ltd. With the assistance of ld. Representatives we have perused the copy of seized document placed at page no. 78 to 79 of the paper book and there was no any detail of any payment made to the assessee separately as old shareholder of GRPL. Further we have also gone through the report submitted by the ld. D.R dated 16.01.2023 during the course of appellate proceedings before us wherein he has also filed copy of assessment order of the assessing officer made in the case of M/s Greenfield Reality Pvt. Ltd. u/s 143(3) r.w.s 153A of the Act on 01.03.2017 for assessment year 2012-13. We have perused the above referred assessment order of GRPL and noticed that at para 4 of the assessment order the A.O has referred the seized material found and seized from the residence of Shri Arshit H. Vora and mentioned that on scrutiny of seized material it was seen that shares of M/s Greenfield Reality Pvt. Ltd. were sold during the FY 2011-12 for Rs.42,62, 00,000/- out of which the Rs.22,74,60,350/- was paid in cash. During the course of assessment in the case of M/s Greenfield Reality Pvt. Ltd. the AO has also issued show cause notice vide letter dated 07.12.2016 as mentioned at page 3 of the assessment order in respect of material seized from the residence of Shri Arshit Haribhai Vora and explanation of the M/s Greenfield Reality Pvt. Ltd. was asked. The relevant part of the assessment order of GRPL is reproduced as under: “2.2 The names of the partners have been recorded in codes. On correlation of the share holding of the partners in M/s. ABPL it can be clearly deciphered that "R" has been referred to Barter Group (Roju), "G" for Gautam represented by Shri Ankit Sureshbhai Shah; "J" for Jayesh represented by his son Shri Darshit Jayeshbhai Shah; "Ni" for Nitin Kalubhai Desai. Total contributions made by four partners recorded in codes along with booking receipts for 14 units P a g e | 11 ITA No.1449 & 1450/Mum/2022 CO No. 110 & 111/Mum/2022 The DCIT, CC-5(3) Vs. Shailesh Jivalal Jogani of Rs. 8,08,37,600 the total collection has been recorded at Rs. 48,65,76,625/ Thus, as per details recorded on the seized evidence as discussed above the land for Vesu Project (Shiv Kartik) has been purchased for Rs. 42,68,00,000/- however the cost at which the shores of M/s. Greenfield Realiity Private Limited have been. acquired is recorded in the books of M/s. Anushthan Buildcon Private Limited at Rs. 19,93,39,650/-.Thus, the remaining amount of Rs. 22,74,60,350/- constitutes unexplained investment/ unaccounted expense towards the purchase of said land. You had also submitted that cash amount of Rs. 22,74,60,000/- had been paid to the original share holder of the Greenfield reality Pvt Ltd while acquiring shares of the Greenfield Reality by Anushtan Buildcon Pvt Ltd. The same share was acquired to take ownership of the land on which project was developed. 2.3. On verification of the submissions filed by you it is noticed that you had not disclosed the same investment/expense in your books of accounts and return of income for concerned year. Hence, you are requested to explain the source of the same investment/expense of Rs. 22,74,60,000/- mode for Vesu project of Greenfield reality Pvt Ltd developed by Shah Hiralal Buildcon LLP. In case of failure to explain the same you are requested to show cause why your cash investment/expense of Rs. 22,74,60,000/- towards the Shiv Kartik project at Vesu should not be added in your total income of the Assessment Year 2012- 13 & AY 2013-14.” In the assessment order of M/s Greenfield Reality Pvt. Ltd. for AY. 2012- 13 the AO has discussed the pages 2, 3 & 5 of Annexure A-3 and pages 11-12 of Annexure A-10 seized from the residence of Arshit H. Vora. As per the entries recorded on these pages the cost of land has been recorded as Rs.42,68,00,000/-. On pages no. 11 & 12 of Annexure A10 detail of payment made towards purchase of the said land by the Bartar Group was also recorded. At para 6.2 of the assessment order in the case of M/s Greenfield Reality Pvt. Ltd, the AO stated that GRPL has accepted that payment for purchase of shares of Rs.22 crores has been made in cash and it has been included in the income offered for tax. Further we have also perused the assessment order made on the basis of similar information received from the DCIT, CC-1(2) Ahmedabad in the case of 2 other shareholders of M/s GRPL i.e Mukeshbhai Shah Ritaben Shah and noticed that no any addition has been made by the assessing officer. P a g e | 12 ITA No.1449 & 1450/Mum/2022 CO No. 110 & 111/Mum/2022 The DCIT, CC-5(3) Vs. Shailesh Jivalal Jogani 6. n view of the facts and circumstances as elaborated supra, the A.O failed to substantiate with relevant supporting material that cash payment has actually been paid to the assessee being a share holder of M/s Greenfield Reality Pvt. Ltd. therefore, we don’t find any infirmity in the decision of ld. CIT(A) in holding that cash payment in respect of purchase of the project including land has been made by the Bartar Group to M/s Greenfield Reality Pvt. Ltd. Therefore, the grounds of appeal 1 to 6 are dismissed. 7. In the result, the appeal of the revenue is dismissed. ITA No.1450/Mum/2022 8. This appeal involves identical facts and issue as we have adjudicated vide ITA No.1449/Mum/2022 supra therefore applying the finding of ITA No. 1449/Mum/2022 as mutatis mutandis this appeal is also dismissed. C.O. 110 & 111/Mum/2022 9. Both these original cross objections are filed in support of the finding of the ld. CIT(A) in deleting the addition made on the ground of on money received on the sale of land at Vesu. Subsequently, on 28.11.2012 the assessee has also filed additional ground of appeal in the cross objection which is as under: “GROUND NO 2: On the facts and circumstances of the case and in law, the ld. AO erred in issuing notice u/s 148 instead of 153C evenafter mentioning that he has incriminating material found in the search of third party. GROUND NO 3: On the facts and circumstances of the case and in law, the ld AO erred in not providing satisfaction recorded for transferring the incriminating material from the file of the AO of the third party to the file of the AO of the appellant. Judgement 143 taxmann 362 enclosed. P a g e | 13 ITA No.1449 & 1450/Mum/2022 CO No. 110 & 111/Mum/2022 The DCIT, CC-5(3) Vs. Shailesh Jivalal Jogani Your appellant reserves his right to add, amend, alter and/or withdraw any Grounds of Cross Objections at the time of hearing of the appeal.” 10. During the course of appellate proceedings before us the cross objection filed were not discussed. Since we have allowed the appeal of the assessee on merit, and the cross objection are not discussed. Therefore, the same stand dismissed. 11. In the result, the appeal of the revenue is dismissed and cross objection filed by the assessee is dismissed. Order pronounced in the open court on 29.05.2023 Sd/- Sd/- (Pavan Kumar Gadale) (Amarjit Singh) Judicial Member Accountant Member Place: Mumbai Date 29.05.2023 Rohit: PS आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant 2. प्रत्यथी / The Respondent. 3. आयकर आयुक्त / CIT 4. विभागीय प्रविविवि, आयकर अपीलीय अविकरण DR, ITAT, Mumbai 5. गार्ड फाईल / Guard file. सत्यावपि प्रवि //True Copy// आदेशानुसार/ BY ORDER, उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीिीय अतिकरण/ ITAT, Bench, Mumbai.