DCIT CC-8(4), MUMBAI, MUMBAI V. SUDIPTA AJOYKUMAR MUKHERJEE, MUMBAI

ITA 3605/MUM/2025

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The case involves an appeal by the revenue against the order of the CIT(A) which deleted an addition of Rs. 80,00,000 to the income of the assessee, Sudipta Ajoykumar Mukherjee, for the Assessment Year 2018-19. The addition was initially made by the Assessing Officer (AO) under section 69 of the Income-tax Act, 1961, based on an Excel sheet found during a search operation, which allegedly showed that the assessee had made a cash payment of Rs. 80,00,000 for a flat. The CIT(A) found that the assessee had not made any such payment and had resigned from the society before any payment was made. The Tribunal agreed with the CIT(A)'s decision, emphasizing the lack of direct evidence of any payment or allotment of a flat to the assessee.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 773642 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2018-2019
• Appeal Filed On: 22-05-2025
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATYAPRAKASH R.SINGH; DR
• Assessee Lawyers: VEENA AGRAWAL; AR
• Keywords: Unexplained investment; Search and seizure
• Section: 132; 69

Judgement Text

" | आयकर अपीलीय अिधकरण ा यपीठ, मुंबई | IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, MUMBAI BEFORE SHRI NARENDRA KUMAR BILLAIYA, HON’BLE ACCOUNTANT MEMBER & SHRI SANDEEP SINGH KARHAIL, HON’BLE JUDICIAL MEMBER I.T.A. No. 3605/Mum/2025 Assessment Year: 2018-19 DCIT, CC-8(4), Mumbai Vs Sudipta Ajoykumar Mukherjee Q-19, Near Aath Rasta Chowk Laxmi Nagar Nagpur - 440022 [PAN: APOPM9461L] अपीला थ\u0016/ (Appellant) \u0017\u0018 यथ\u0016/ (Respondent) Assessee by : Ms. Veena Agrawal, A/R Revenue by : Shri Satyaprakash R. Singh, CIT D/R सुनवाई की तारीख/Date of Hearing : 10/09/2025 घोषणा की तारीख /Date of Pronouncement : 12/09/2025 आदेश/O R D E R PER NARENDRA KUMAR BILLAIYA, AM: This appeal by the revenue is preferred against the order of the ld. CIT(A)-50, Mumbai {hereinafter “the ld. CIT(A)”} dated 05/03/2025 pertaining to AY 2018-19. 2. The grievance of the revenue reads as under:- “1. Whether on the facts and in law, the Hon'ble CIT(A) erred in deleting the addition of 280,00,000/- made under section 69 of the Income-tax Act, 1961, by treating a seized Excel sheet as a 'dumb document', without appreciating that the said document was recovered in a valid search under section 132, contained specific and decipherable entries related to the assessee, and was corroborated by other evidentiary material, thereby attracting the statutory presumption under section 292C of the Act? 2. Whether the Hon'ble CIT(A) erred in law in not adjudicating the jurisdictional grounds raised by the assessee challenging the validity of proceedings under section 153C, despite the presence of incriminating material pertaining to the assessee found during a search on a third party, which satisfied the legal requirements for assumption of jurisdiction under section 153C? 3. Whether the Hon'ble CITA) was justified in law in holding that the absence of the assessee's signature on the seized document and lack of direct evidence of cash payment rendered the document inadmissible, ignoring the principle that once a document pertains to the assessee and is recovered during a lawful search, the onus Printed from counselvise.com I.T.A. No. 3605/Mum/2025 2 lies on the assessee to rebut the statutory presumption under section 292C of the Income-tax Act, 1961? 4. The appellant craves leave to add to, alter, amend, modify and /or delete any or all of the above said grounds of appeal the appellant reserves its right to file further submissions in the appeal.” 3. Briefly stated, the facts of the case are that a search and seizure action u/s 132 of the Act was conducted by the DDIT, Inv. Unit 6(1), Mumbai in the case of Mohini Group and related entities on 07/05/2018. The flagship company of the Group is Mohini Shelthors Private Limited, which is primarily engaged in developing real estate. During the course of the search and seizure operation, several incriminating documents were found and seized. One such evidence unearthed during the course of search action was an excel-sheet titled Ashirwad Co-operative Housing Society Ltd., dated 22/03/2018. In the said excel-sheet, the name of the assessee was found appearing saying that she has made cash payment of Rs. 80,00,000/- towards allotment of a flat in Ashirwad Co- operative Housing Society Ltd.. The assessee was issued a showcause notice asking her to showcause why the cash payment of Rs. 80,00,000/- should not be treated as unexplained investment and added back to the total income for the year under consideration. In her reply, the assessee stated that she received a letter dated 19/06/2017 by which she was allotted one 2BHK flat costing Rs. 51.20 Lakhs as per the decision in the special general meeting of the Society and requested the assessee to deposit Rs. 15,16,800/- being 25% of the initial payment of allotment of residential flat for the confirmation of the allotment. The assessee intimated the society that she is in the process of availing loan of Rs. 30,00,000/-. However, subsequently the assessee resigned from the member-ship of the society due to delay in granting permission for Printed from counselvise.com I.T.A. No. 3605/Mum/2025 3 raising housing loan and never made any payment in cash or cheque to the said Society. Basis the noting in the excel-sheet, the AO formed a belief that the assessee has made payment of Rs. 80,00,000/- in cash for which she has not explanation and went on to make addition of Rs. 80,00,000/- u/s 69 of the Act completed the assessment at an income of Rs. 98,32,350/-. 3.1. The assessee strongly agitated the matter before the ld. CIT(A) and reiterated that no payment was made by the assessee the assessee has subsequently cancelled the member-ship in the Society and the flat was never allotted to the assessee. Considering the submissions, the ld. CIT(A) was convinced that the assessee has not paid any amount as per letter dated 19/06/2017 and has resigned from the membership of the Society. The ld. CIT(A) was also convinced that there is not question of allotment of flat and payment for the same and deleted the impugned addition of Rs. 80,00,000/-. 4. Before us, the ld. D/R strongly supported the findings of the AO and read the operative part of the assessment order. The ld. Counsel reiterated that no payment whatsoever was ever made by the assessee and no flat was allotted or purchased by the assessee in the said society. Therefore, there is no question of any unexplained investment triggering the provisions of Section 69 of the Act. 5. We have given a careful consideration to the orders of the authorities below. The undisputed fact is that though the assessee was offered a flat in the said society but the assessee never made any initial payment of 25% as asked by the Society. It is not in dispute that no such flat was allotted to the assesse nor there is any evidence brought on Printed from counselvise.com I.T.A. No. 3605/Mum/2025 4 record by the AO to suggest that the assessee has actually made any payment, whether in cash or cheque, to the said Society. The entire basis of the addition is the excel-sheet found from the premises of some third persons who was merely a building contractor and had relations with the said Society. But the fact of the matter is that no direct evidence has been brought on record to show that the assessee has ever made any payment to the said society for the allotment of the flat. No evidence of any registration of the said flat has been brought on record nor there is any agreement to suggest that the assessee has been actually allotted a flat in the said society. The entire addition has been made on the basis of presumption, surmises and conjectures, which cannot be accepted. Considering the facts of the case in totality, we do not find any error or infirmity in the findings of the ld. CIT(A). 6. In the result, appeal of the revenue is dismissed. Order pronounced in the Court on 12th September, 2025 at Mumbai. Sd/- Sd/- (SANDEEP SINGH KARHAIL) (NARENDRA KUMAR BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dated 12/09/2025 *SC SrPs *SC SrPs *SC SrPs *SC SrPs आदेश की \u0015ितिलिप अ\u001aेिषत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. \u0015 थ / The Respondent 3. संबंिधत आयकर आयु\" / Concerned Pr. CIT 4. आयकर आयु\" ) अपील ( / The CIT(A)- 5. िवभागीय \u0015ितिनिध ,आयकर अपीलीय अिधकरण, मुंबई /DR,ITAT, Mumbai, 6. गाड& फाई/ Guard file. आदेशानुसार/ BY ORDER TRUE COPY Assistant Registrar आयकर अपीलीय अिधकरण ITAT, Mumbai Printed from counselvise.com "