C.P Mohandas, Pune V. Joint CIT, Range-4, Pune

ITA 1142/PUN/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1910 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-12-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 24-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE
• Assessee Lawyers: ARVIND SONDE; P D KUDWA
• Keywords: Income from undisclosed sources; Search and seizure; Deemed to accrue or arise in india
• Section: 131; 69; 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . . , ! , # $ BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.1142/PN/2013 #& & / ASSESSMENT YEAR : 2009-10 SHRI C.P. MOHANDAS, VIJAY HOUSE, 509, SACHAPIR STREET, CAMP, PUNE 411001 MAHARASHTRA PAN NO.AAXPM1656M . / APPELLANT V/S JCIT, RANGE-4, PUNE . / RESPONDENT / ASSESSEE BY : SHRI ARVIND SONDE & SHRI P.D. KUDWA / REVENUE BY : SHRI HITENDRA NINAWE / ORDER PER R.K.PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 17-01-2013 OF THE CIT(A)-II, PUNE RELATING TO ASSE SSMENT YEAR 2009-10. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 31-10-2009 DECLAR ING TOTAL INCOME OF RS.3,40,33,750/-. IN THIS CASE INFORMATION WA S RECEIVED FROM THE INCOME TAX INVESTIGATION WING, PUNE THA T DURING SURVEY, SEARCH AND SEIZURE OPERATION CARRIED OUT ON THE BUSINESS / DATE OF HEARING :14.03.2016 / DATE OF PRONOUNCEMENT:29.04.2016 2 ITA NO.1142/PN/2013 AND RESIDENTIAL PREMISES OF MALPANI GROUP OF PUNE AND SANGA MNER ON 06-10-2009 A CASH BOOK CONTAINING UNACCOUNTED CASH RECEIPTS AND CASH PAYMENTS WAS FOUND. FROM AN ANALYSIS OF THE C ASH BOOK BY THE INVESTIGATION WING, IT WAS FOUND THAT MALPANI GROUP CARRIED OUT LAND RELATED TRANSACTIONS WITH SHRI C.P. MOHANDAS, I.E. TH E ASSESSEE, PROPRIETOR OF M/S. KIRTI DEVELOPERS THROUGH MR. DHANANJAY VITTHAL NIMHAN ALIAS MR. JAYA NIMHAN, AN ESTATE AGENT/LAND BROKER. 3. THE STATEMENT OF MR. DHANANJAY VITTHAL NIMHAN ALIAS MR. JAYA NIMHAN WAS RECORDED BY THE ADIT, PUNE ON 31-03-20 10. IT TRANSPIRED FROM THE SAID STATEMENT THAT THE ASSESSEE H AS SOLD SOME HISSA NUMBERS OF SURVEY NO.211 AT SUS TO MALPANI GROUP IN FEBRUARY 2008 FOR WHICH HE ALLEGEDLY RECEIVED CASH OF RS.1,31,75,000/- ON 18-02-2008. FURTHER CASH OF RS.29 LAK HS WAS ALSO RECEIVED ON 23-02-2008. ANOTHER RS.7,48,000/- ON 04 -10- 2008 WAS SEEN TO HAVE PAID BY THE ASSESSEE TO THE MA LPANI GROUP IN RESPECT OF 05 AAR DEAL CANCELLATION. IT WAS FURTHER NOTED FROM THE SEIZED CASH BOOK FROM THE MALPANI GROUP THAT ASSESSEE HAS RECEIVE D RS. 1,44,00,000/- FROM MALPANI GROUP IN RESPECT OF S.NO.232 E TC. AT SUS ON 28-04-2008. ACCORDING TO THE STATEMENT OF MR. D HANANJAY VITTHAL NIMHAN, LAND SITUATED AT S.NO.230/2, 231, 232 ETC. AT VILLAGE SUS ORIGINALLY BELONGED TO CHANDARE FAMILY. SHRI C.P.MOHANDAS ENTERED INTO UNREGISTERED AGREEMENT (NOTARIZ ED) WITH LAND OWNERS POPULARLY KNOWN AS VISAR PAWATI IN 1996. MALP ANI GROUP HAD ACQUIRED VARIOUS PLOTS OF LAND IN ADJOINING AREA AND WANTED TO ACQUIRE THE LAND IN WHICH THE ASSESSEE WAS HOLDING RIGHT S THROUGH VISAR PAWATI. A COPY OF THE RELEVANT EXTRACTS O F THE CASH SEIZED FROM THE MALPANI GROUP AND THE COPY OF THE STATE MENT OF MR. 3 ITA NO.1142/PN/2013 DHANANJAY VITTHAL NIMHAN WAS HANDED OVER TO THE ASSESS EE THROUGH HIS AUTHORISED REPRESENTATIVE AND THE ASSESSEE WAS ASKED TO EXPLAIN WHY THE AMOUNT OF RS.1,44,00,000/- BE NOT TREAT ED AS HIS UNDISCLOSED INCOME. 4. THE ASSESSEE STATED THAT THE LAND IN QUESTION WAS P URCHASED BY MALPANI GROUP THROUGH REGISTERED AGREEMENT WITH LAND OWNERS ON 29-04-2008 BUT AS PER THE AGREEMENT DATED 21-04-2008 BET WEEN THE ASSESSEE AND MR. DHANANJAY VITTHAL NIMHAN THE ASSES SEE HANDED OVER POWER OF ATTORNEY, VISAR PAWATI ETC. WHICH HE EXECUTED WITH THE LAND OWNERS OF S.NO.232 ETC. TO MR. DHANANJAY VITT HAL NIMHAN. AFTER THIS DATE THE ASSESSEE HAD NO RIGHTS OVER THE LAND AT SURVEY NOS. 231,232 ETC. AT SUS. IT WAS SUBMITTED THAT AGAINST RECEIPT OF RS.25 LAKHS BY CHEQUE FROM MR. DHANANJAY VITTHA L NIMHAN THROUGH RADDHA BADAL AGREEMENT DATED 21-04- 2008 THE ASSESSEE HANDED OVER VISAR PAWATI AND OTHER AGREEMENT WHICH HE ENTERED INTO WITH THE ORIGINAL LAND OWNERS IN 1996. THE AS SESSEE THUS DENIED THE RECEIPT OF CASH AMOUNT OF RS.1,44,00,000/- AS ON THE DATE OF CASH PAYMENT, I.E., ON 28-04-2008. HE HAD NO RIGHTS IN THE SAID LAND AND THERE WAS NO QUESTION OF HIM RECEIVING T HE AMOUNT OF RS.1,44,00,000/-. THE AO THEREAFTER RECORDED TH E STATEMENT OF MR. DHANANJAY VITTHAL NIMHAN ON 05-12-2011 WHEREIN HE STATED THAT THE AMOUNT OF RS.1,44,00,000/- HAS BEEN PAID BY MALPANI GROUP TO THE ASSESSEE SHRI C.P. MOHANDAS FOR HANDING OVER VISAR PAWATI, POWER OF ATTORNEY ETC. IN RESPE CT OF LAND AT SURVEY NOS. 231,232 AT SUS IN HIS PRESENCE. SINCE TH E ASSESSEE DENIED THE RECEIPT OF RS.1,44,00,000/- FROM MALPANI GROUP WHEREAS MR. DHANANJAY VITTHAL NIMHAN HAS STATED UNDER O ATH THAT THIS AMOUNT HAS BEEN PAID BY MALPANI GROUP TO THE ASSES SEE, 4 ITA NO.1142/PN/2013 THEREFORE, THE AO TO CLARIFY THE MATTER, SUMMONED SHRI AS HISH MALPANI OF THE MALPANI GROUP AND HIS STATEMENT WAS RECORD ED UNDER OATH ON 05-12-2011. SHRI ASHISH MALPANI IN HIS STAT EMENT CATEGORICALLY STATED THAT THEY HAVE PAID THE TOTAL AMOU NT OF RS.1,44,00,000/- TO SHRI C.P. MOHANDAS IN CASH. THE RELEVANT REPLY OF SHRI ASHISH MALPANI IS AS UNDER : ANS : THIS PAYMENT IS TOWARDS THE LAND SITUATED AT S.NO .231 & S.NO.232. THESE LANDS ARE OWNED BY VARIOUS FARMERS. I NITIALLY WE CAME TO KNOW FROM SHRI DHANANJAY NIMHAN THAT THE PO WER OF ATTORNEY WAS IN THE NAME OF SHRI C.P. MOHANDAS, THEREAFTER ACC ORDING TO OUR INFORMATION THE RIGHTS OF THESE LANDS IS TRANSFERRED TO SHRI DHANANJAY NIMHAN AND OTHERS HENCE WHILE PURCHASING THE LAND AT SURVEY NO, MENTIONED ABOVE AND FOR EFFECTING THIS TRANSACTION AN D AS PER INSTRUCTIONS OF SHRI DHANANJAY NIMHAN WE HAD PAID RS.1 ,44,00,000/- TO SHRI C.P. MOHANDAS. WE PAID A TOTAL AMOUNT OF RS. 70,00,000/- TO SHRI DHANANJAY NIMHAN, SHRI GANESH NIMHAN AND SHRI H ARIBHAU SUTAR BY CHEQUE FOR RELEASE OF SO CALLED RIGHTS ACQUIRED BY THESE PARTIES FROM SHRI C.P. MOHANDAS AND AN AMOUNT OF RS.1,44,00,000/- TO SHRI C.P. MOHANDAS IN CASH AS STATED ABOVE. 5. IN VIEW OF THE ABOVE STATEMENT OF SHRI ASHISH MALPANI T HE AO CAME TO THE CONCLUSION THAT ASSESSEE HAS RECEIVED CASH OF RS.1,44,00,000/- FROM MALPANI GROUP TO RELINQUISH HIS RIGHTS IN LAND AT S.NO.231 ETC. AT SUS WHICH WAS NOT DISCLOSED BY HI M IN HIS BOOKS OF ACCOUNT. HE THEREFORE ADDED THE ABOVE AMOUNT TO THE TOT AL INCOME OF THE ASSESSEE AS HIS UNDISCLOSED INCOME. 6. BEFORE CIT(A) THE ASSESSEE STATED THAT THE ASSESSEE HAD RIGHTS OF LAND AT SUS UPTO 20-04-2008 AND HAD HELD THE ORIGINAL NOTARIZED DOCUMENT, I.E. VISAR PAWATI EXECUTED ON 04-04-1996 IN HIS FA VOUR BY MEMBERS OF THE CHANDARE FAMILY AND THE LAND OWNERS WITH RESPECT TO 91.5 R AREA OF LAND. BY WAY OF CANCELLATION ALTER NATIVE DEED ON 21-04-2008 MR. DHANANJAY VITTHAL NIMHAN ACQUIRE D THE RIGHTS OF SHRI C.P. MOHANDAS IN THE LAND AT SUS BY MAKING THE PAYMENT TO THE ASSESSEE OF RS.25 LAKHS BY CHEQUE ISSUED BY MR. DHANANJAY VITTHAL NIMHAN AND THE CANCELLATION ALTERNATIVE D EED 5 ITA NO.1142/PN/2013 DATED 21-04-2008 IS EXECUTED BY MR. DHANANJAY VITTHAL N IMHAN IN HIS OWN NAME. THEREFORE, ON 21-04-2008 THE ASSESSEE CE ASED TO HAVE ANY RIGHTS IN THE SAID LAND OUT OF THE SALE DEED. TH E ASSESSEE ALSO POINTED OUT TO THE SALE DEED DATED 29-04-2008 ENT ERED INTO BETWEEN M/S. GIRIRAJ ENTERPRISES, A FIRM OF THE MALPANI GROUP WHO PURCHASED THE LAND FROM THE LAND OWNERS, I.E. MEMBERS OF TH E CHANDARE FAMILY VIDE TWO SALE DEEDS EXECUTED AND REGIST ERED WITH THE SUB-REGISTRAR, HAVELI AND ALSO TO THE CONFIRMATION DEED FOR THE SUS LANDS DATED 29-04-2008 WHICH CONFIRMED THE AFORESAID SALE DEED ON THE SAME DAY VIDE TWO CONFIRMATION DEEDS. IT WA S THUS CONTENDED THAT THE CONTENTS OF THE CANCELLATION ALTERNAT IVE DEED DATED 21-04-2008 AND THE TWO CONFIRMATION DEEDS DATED 29-04- 2008 WERE EXECUTED BY MR. DHANANJAY VITTHAL NIMHAN IN HIS OWN NAME ALONG WITH THE CONSIDERATION RECEIVED BY HIM INDICATE THAT MR. DHANANJAY VITTHAL NIMHAN HAD EARNED INCOME FROM THE S ALE OF THE RIGHTS OF THE SAID PROPERTY. THE ASSESSEE ALSO SUB MITTED THAT THE SEIZED DOCUMENT IDENTIFIED AS PAGE NO.2, BUNDLE NO.9, ANNEXURE A-1, PARTY NO.S-4 SEIZED DURING THE COURSE OF S EARCH ACTION ON THE MALPANI GROUP READS AS UNDER : 28-4-2008 JAYA NIMHAN S.NO.232 ETC. 1,44,00,000 7. IT WAS SUBMITTED THAT THE AFORESAID ENTRY INDICATES T HAT THE DATE OF PAYMENT IS 28-4-2008 AND THE NAME OF THE R ECEIVER IS JAYA NIMHAN AND , THEREFORE , IT IS ILLOGICAL AND IMPROBABLE THAT SHRI . ASHISH MALPANI PAID TO THE ASSESSEE WHO WAS NOT A PARTY TO THE SUBJECT DOCUMENT BUT RECORDED PAYMENT IN THE NAME OF DVN AND , THEREFORE , DVN WAS NOT ACTING AS A BROKER FOR THE ASSESSEE . THE ASSESSEE ALSO REFERRED TO THE STATEMENT RECORDED OF DVN BY THE DDIT(LNV) ON 15-3-2010 TO SHOW T HAT 6 ITA NO.1142/PN/2013 DVN WAS NOT ONLY A PROPERTY BROKER BUT ALSO INDULGED IN LAND TRANSACTIONS. THE ASSESSEE REFERRED TO THE STATEMENT R ECORDED OF SHRI . ASHISH MALPANI RECORDED U/S 131 ON 5 - 10-2011 WHO HAD STATED THAT RS . 1 . 44 CRORES CASH WAS PAID TO THE ASSESSEE AT THE BEHEST OF DVN AND SUBMITTED THAT THE SAME IS INCONSISTENT WITH THE FACT BECAUSE THE ASSESSEE WAS NOT A PARTY TO ANY SALE DEED OR CONFIRMATION DEED WITH THE MALPANI GRO UP AND ALSO AS PER THE CA DEED DATED 21-4-2008 THE ASSE SSEE HAD TRANSFERRED THE RIGHT, TITLE AND INTEREST IN THE LAND AND H ANDED OVER ALL DOCUMENTS TO DVN. THE ASSESSEE ALSO POINTED OUT TO THE FACT THAT THE NAME OF DVN APPEARS IN THE SEIZED CAS H BOOK WHEREIN PAYMENT OF RS . 1 . 44 CRORES IN CASH WAS SHOWN IN THE NAME OF DVN . THE ASSESSEE CONTENDED THAT IT IS ILLOGICAL AND INCONCEIVABLE THAT MALPANI GROUP PAID 1 . 44 CRORES TO AN UNNAMED PARTY I . E. THE ASSESSEE WHO NEITHER EXECUTED NOR REGISTERED ANY DOCUMENT AND BEFORE 21-4-2008 HELD UNREGISTERED DOCUMENTS HAV I NG I NSIGNIFICANT VALUES. THE ASSESSEE THUS TRIED TO SHOW THAT THE DOCUMENT SUCH A S THE REGISTERED SALE DEEDS AND THE SE I ZED DOCUMENTS D I D NOT I NCRIM I NATE THE ASSESSEE AND THUS THE STATEMENT GIVEN BY DV N AND THAT OF SHRI . ASHISH MALPANI ARE FALSE AND COULD NOT BE RELIED UPON. IT WAS ARGUED THAT THE ASSESSEE HAD RECEIV ED ONLY RS . 25 LACS FOR TRANSFERRING THE RIGHTS IN THE SUBJECT LAND A T S . NO 232 IN FAVOR OF DVN ON 21 - 4-2008 AS BORNE OUT FROM THE CA AGREEMENT DATED 21-4-2008 . 8. HOWEVER, THE LD.CIT(A) WAS ALSO NOT CONVINCED WITH THE ARGUMENTS ADVANCED BY THE ASSESSEE AND UPHELD THE AC TION OF THE AO BY OBSERVING AS UNDER : 7 ITA NO.1142/PN/2013 3.5 THE SUBMISSION MADE BY THE APPELLANT HAS BEEN CARE FULLY CONSIDERED AND THE MATERIAL ON RECORD PERUSED. THE AP PELLANT HELD THE RIGHTS OF THE LAND SITUATED AT VILLAGE SUS, PUNE AND H AD POSSESSED THE 'VISAR PAWATI' OR THE EARNEST MONEY RECEIPT, THE 'SAT HE KHAT' OR THE AGREEMENT TO SALE AND THE 'KULMUKHTYAR PATRA' OR THE POWER OF ATTORNEY EXECUTED ON 4-4-1996 IN HIS FAVOR BY THE ME MBERS OF THE CHANDORE FAMILY AND THE LAND OWNERS UPTO 20-4-2008 I .E. FOR MORE THAN A PERIOD OF TWELVE YEARS. THE AFORESAID FACT REM AINS UNDISPUTED. IT WAS ONLY THROUGH A 'RADDABADAL DASTA' OR THE CANCELLA TION-ALTERATION DEED DATED 21-4-2008 (REFERRED TO AS CA DEED) THAT T HE APPELLANT TRANSFERRED THE RIGHTS IN THE LAND TO SHRI. DHANANJAY VITHAL NIMHAN OR JAYA NIMHAN (DVN) FOR A LUMPSUM CONSIDERATION OF RS.25 ,00,000/-. THE SEIZED DOCUMENT FOUND DURING THE COURSE OF SEARCH INDICATED THAT AGAINST THE NAME OF SHRI. JAYA NIMHAN RS.1,44,00,000/ - WAS MENTIONED ON THE DATE 28-4-2008. IT IS QUITE STRANGE AND ALSO DO ES NOT APPEAL TO REASON THAT THE RIGHTS HELD OF A LAND FOR MORE THAN A PERIOD OF 12 YEARS BY THE APPELLANT FETCHED HIM A MEAGRE SUM OF RS.25 LA CS WHEREAS THE RIGHTS PURCHASED BY THE BROKER, DVN ON 21-4-2008 BORE SUCH A HUGE SUM OF RS. 1.44 CRORES JUST WITHIN A PERIOD OF SEVEN DA YS, THIS IS THE OUTCOME OF THE REASONING GIVEN BY THE APPELLANT IN T HE SUBMISSION FILED DURING THE APPELLATE PROCEEDINGS. A PARTY CANNOT ESCA PE THE CONSEQUENCES OF LAW MERELY BY DESCRIBING THE STATEMENT OR THE AGREEMENTS IN A PARTICULAR FORM THOUGH IN ESSENCE AND IN SUBSTANCE, IT MAY BE A DIFFERENT TRANSACTION. THE TAX LIABILITY I N THE CASE OF SUSPICIOUS TRANSACTIONS ARE TO BE ASSESSED ON THE BASIS OF THE MATERIA L AVAILABLE ON RECORD, SURROUNDING CIRCUMSTANCES, HUMAN CONDUCT, PREP ONDERANCE OF PROBABILITY AND NATURE OF INCRIMINATING INFORMATION /EVIDENCE. IN THE CASE OF THE APEX COURT OF SUMATI DAYAL VS CIT 214 ITR 801 IT WAS FOUND THAT THE CLAIM OF THE SUBSTANTIAL AMOUNTS WERE STATED T O HAVE BEEN WON IN HORSE RACING IN TWO CONSECUTIVE ACCOUNTING YEARS AN D THE HON'BLE COURT HELD THE CLAIM TO BE NOT JUSTIFIED CONSIDERING THE TEST OF HUMAN PROBABILITIES. THUS IN THE GIVEN SET OF FACT AND CIRCU MSTANCES OF THE CASE WHAT IS NECESSARY TO BE CONSIDERED IS THE TRUE NATUR E OF THE TRANSACTION, THE SUBSTANCE OF TRANSACTION SHOULD PREVAIL OVER ITS FORM. THE SEIZED DOCUMENT IN PAGE 2 OF BUNDLE NO.9, ANNEXU RE A-1, PARTY NO S-4 SHOWED THAT ON 28-4-2008 PAYMENT OF CASH AMOUNTIN G TO RS.1,44,00,000/- FOR S.NO 232 ETC WAS DONE, THOUGH TH E NAME MENTIONED IS OF THE BROKER DVN. THE STATEMENT RECORDE D OF THE BROKER BOTH BY THE INVESTIGATION WING AND THE ASSESSING OFFICE R AND ALSO THE STATEMENT OF SHRI. ASHISH MALPANI HAVE CLEARLY DEMONST RATED AND EXPLAINED THE ENTIRE TRANSACTION IN DETAIL AND WHICH CORROBORATES THE ENTRIES FOUND ON THE SEIZED DOCUMENT. THE APPELLANT W AS VERY MUCH INVOLVED IN THE TRANSACTION BEING THE HOLDER OF THE RIGHTS OF THE LANDS IN QUESTION WHICH CHANGED HANDS SUBSEQUENTLY. THE ONLY DIF FERENCE BEING THAT THE TRANSACTION WAS NOT A DIRECT ONE WITH THE MA LPANI'S BECAUSE OF CERTAIN DISPUTES WITH APPELLANT, THE SAME HAS BEEN ROUT ED THROUGH THE BROKER SHRI. DHANANJAY NIMHAN, APPOINTED BY THE MAL PANI GROUP. THUS THE TRANSACTIONS ENTERED INTO WITH THE APPELLANT WAS A TTENDED ON BEHALF OF THE MALPANI GROUP BY DVN. THE ENTIRE TRAN SACTION OF THE SALE/PURCHASE AND OTHER RELATED CONFIRMATION AND EXEC UTION OF THE REGISTERED SALE DEED HAVE OCCURRED WITHIN A PERIOD OF SEVEN DAYS. THE CONTENTION RAISED BY THE APPELLANT THAT ON APPRECIAT ING THE CONTENTS OF THE CA DEED AND THE TWO CONFIRMATION DEEDS THE INCOM E EARNED FROM THE SALE OF RIGHTS IS NOT CORRECT AND IS CONTRARY TO TH E FACT BROUGHT ON RECORD. IT HAS BEEN STATED BY THE APPELLANT HIMSELF TH AT HE WAS AN EXPERT IN LAND DEALS AND WHO HAD OVER 25 YEARS OF EXP ERIENCE IN REAL ESTATE BUSINESS COULD HARDLY BE EXPECTED TO ACT ,IRRATI ONALLY AND 8 ITA NO.1142/PN/2013 APPARENTLY FOOLISH MANNER IN SUCH BUSINESS MATTERS. THE A PPELLANT WAS ALWAYS IN THE FOREFRONT OF THE ENTIRE TRANSACTION BUT BECAUSE OF HIS EXPERTISE IN SUCH DEALS EXECUTED THE WORK WITH FINESSE A ND PERFECTION BY OBTAINING THE CASH COMPONENT OF THE TRANSACTION O F RS.1.44 CRORES AND RS.25 LACS BY WAY OF CHEQUE. THE APPELLANT WAS FU LLY AWARE WITH RESPECT TO EACH AND EVERY ACTION UNDERTAKEN BY HIM A ND WAS ALWAYS IN THE KNOWLEDGE OF THE THINGS, THE MALPANI GROUP HAD T O PURCHASE THE LANDS AT SUS WHOSE RIGHTS WERE OWNED BY THE APPELLANT A ND AS THE APPELLANT DID NOT WANT TO DIRECTLY NEGOTIATE WITH T HEM, THE MALPANI'S APPOINTED DVN AS A BROKER OF THE TRANSACTION. THE APP ELLANT THOUGH DID NOT SOUGHT ANY CONFIRMATION OR THE SALE DEED BUT HIS O NUS WAS NEVER OVER AND BEING AN EXPERIENCED PERSON OF THIS LINE OF BUSINESS ALWAYS REMAINED IN THE BACKGROUND. THE CA DEED WAS SIGNED BY THE APPELLANT ON 21-4-2008 BY WHICH HE RECEIVED RS. 25 LACS BY CHEQ UE FROM DVN, THE BROKER ON BEHALF OF THE MALPANI'S BUT THE CASH AM OUNT OF RS. 1.44 CRORES WAS PAID BY SHRI. ASHISH MALPANI TO THE APPELLAN T IN THE PRESENCE OF DVN AND THE APPELLANT, THEREAFTER, HANDE D OVER TO SHRI. MALPANI, THE AGREEMENT 'VISAR PAWATI' AND THE POWER OF ATTORNEY THAT WERE EXECUTED BETWEEN HIM AND THE CHANDORE FAMILY O N 4-4-1996. THE BROKER DVN HAS ALSO EXPLAINED THE CAUSE OF ENTERING IN TO THE CANCELLATION ALTERATION AGREEMENT WHICH WAS NEVER RE GISTERED AND WAS PREPARED FOR THE PURPOSE OF BRINGING TOGETHER THE AP PELLANT AND THE MALPANI GROUP FOR THE LAND DEAL. THE APPELLANT HAS T RIED TO PROVE THE STATEMENT GIVEN BY DVN AND MALPANI TO BE FALSE BUT TH E FALSITY OF THE STATEMENT GIVEN BY THEM DOES NOT EMANATE FROM THE MAT ERIALS BROUGHT ON RECORD. THE APPELLANT IS TRYING TO THRUST THE ENTI RE ONUS OF THE ENTIRE TRANSACTION ON DVN WHO HAS ACTED JUST AS A FACILITATOR AS CLEARLY EVIDENT FROM THE MATERIAL ON RECORD. IT IS TRUE THAT THE PAY MENT OF RS. 25 LACS WAS MADE BY THE BROKER DVN BUT IN EFFECT IT WAS MALPA NI WHO WAS THE GUIDING FORCE BEHIND IT. THE CONTENTION RAISED BY TH E APPELLANT THAT THE PLEA TAKEN BY DVN IS MOTIVATED AND FALSE IS NOT PRIMA FACIE CORRECT IN THE GIVEN FACTS OF THE CASE AND THE CONCLUSION DRAWN B Y THE APPELLANT IS NOT LOGICAL. THIS IS BECAUSE IT WAS ALWAYS THE CASE THAT THE MALPANI GROUP HAD WANTED TO BUY THE LAND AND WHICH ULTIMATE LY WAS ACQUIRED BY THEM THROUGH THE HELP OF THE BROKER DVN. THE MAT ERIAL BROUGHT ON RECORD CANNOT BE WISHED AWAY AND IT CANNOT BE SAID T HAT THEY ARE TOTALLY IRRELEVANT, IF THEY HAVE SOMETHING TO CONNEC T THEM WITH THE APPELLANT'S BUSINESS. THE ASSESSING OFFICER HAS THUS RIGHTLY INFERRED ON THE BASIS OF THE FACT ON RECORD AND CLOSER EXAMINATION OF THE STATEMENTS RECORDED, AND IN THE GIVEN SET OF FACT AND CIRCUMSTAN CES OF THE CASE, THE ADDITION MADE BY THE ASSESSING OFFICER HAS BEEN DONE COR RECTLY AND, THEREFORE, THE SAME DOES NOT REQUIRE ANY INTERFERENCE . 3.6 IN THE PRESENT CASE ALSO THE ASSESSING OFFICER HAS BASE D THE ASSESSMENT ON THE MATERIAL FOUND DURING THE COURSE OF SEA RCH ACTION. APPARENT IS REAL UNLESS CONTRARY IS PROVED. IN THIS CASE , THE CONSIDERATION RECEIVED BY THE APPELLANT IN RESPECT OF THE SALE TRANSACTION WAS RECORDED ON THE LOOSE PAPER AND THE CO NSIDERATION RECEIVED WAS APPARENT AND IT WAS, THEREFORE, FOR THE ASSESSING OFFICER TO ESTABLISH THE CONTRARY. FURTHER, ON THE BASIS OF MA TERIAL FOUND DURING THE COURSE OF SEARCH ACTION U/S 132, AND THE STATEMENT RECORDED IT HAS BEEN ESTABLISHED THAT WHAT IS APPARENT DOES NOT REFLECT THE TRUE STATE OF AFFAIRS. THEREFORE, THE BURDEN THAT RESTED WITH THE ASSESSING OFFICER STANDS DISCHARGED AND THE ONUS HAS SHIFTED TO THE APPELLA NT. 9 ITA NO.1142/PN/2013 3.7 UNDER THE DEEMING PROVISIONS OF THE I.T. ACT, 196 1, THE POSITION IS THAT THE MERE EXISTENCE OF AN ENTRY IS SUFFICIENT TO ATTRACT THE PROVISIONS AND ONCE THE APPELLANT'S EXPLANATION IS NOT SATISFACTORY, THE CASH ENTRY IS TO BE CHARGED TO TAX IN AN EXCEPTIONABL E MANNER. IT WAS SO HELD IN ONE OF THE MOST LANDMARK CASES OF THE HON'BLE SUPREME COURT OF SUMATI DAYAL (1995) 214 ITR 801 (SC). FROM A PLA IN READING OF THE REQUISITE SECTIONS IT IS EVIDENT THAT WHEN THE ASSESSEE OFF ERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF THE CREDI TS, ITS VALUE COULD BE DEEMED INCOME OF THE ASSESSEE. AN EXPLANATION OFFERE D, IF NOT ACCEPTED IS NO EXPLANATION IN LAW AND NOT ONLY THIS T HE LEGISLATURE WHILE ENACTING THE DEEMING PROVISIONS OF THE I.T. ACT FALLING UNDER SECTIONS 68, 69 TO 690 OF THE I.T. ACT, 1961, HAS CLAR IFIED THAT IN CASE THE EXPLANATION OFFERED IS NOT SATISFACTORY THE VALUE OF T HE UNEXPLAINED DEPOSITS SHALL BE DEEMED TO BE THE INCOME OF THE ASSESSEE. THERE CAN BE NO GENERAL PROPOSITION OF LAW APPLICABLE TO ALL C ASES IRRESPECTIVE OF THE FACTS AND CIRCUMSTANCES THEREOF. ONE THING WHICH CAN BE SAID WITHOUT MUCH HESITATION IS THAT THE BURDEN IS. ALWAYS O N THE ASSESSEE, IF AN EXPLANATION IS ASKED FOR BY THE TAXING AUTHORITIES TO INDICATE THE SOURCE OF ACQUISITION OF A PARTICULAR ASSET ADMITTEDLY OWNED BY THE PERSON CONCERNED. THE BURDEN CAST UPON THE APPELLANT HAS NOT BEEN DISCHARGED EITHER AT THE STAGE OF ASSESSMENT OR DURING TH E APPELLATE PROCEEDINGS BY FURNISHING ANY ACCEPTABLE EXPLANATION. 3.7.1 IT WAS ALSO HELD THAT THE TAX AUTHORITIES WERE E NTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY, AND THE MATTER HAS TO BE CONSIDERED BY APPLYING THE TEST OF HUMAN PRO BABILITIES. IN THIS DECISION, THE HON'BLE APEX COURT ALSO RELIED UPON THE RATIO OF THE EARLIER JUDGEMENT IN THE CASE OF DURGA PRASAD MORE, 8 2 ITR 540 (S.C). IN MY CONSIDERED OPINION, THERE ARE ENOUGH CIRCUMSTAN TIAL EVIDENCES AND PREPONDERANCE OF PROBABILITIES IN THIS CASE, WHICH LEAD TO THE INFERENCE THAT THE DECISION OF THE ASSESSING OFFICER WAS ON A SOUND BASIS. IT MAY BE RELEVANT TO QUOTE THE ABOVE REFERRED DECISION OF THE APEX COURT IN THE CASE OF CIT VS. DURGA PRASAD MORE, 82 ITR 540 WHEREIN IT IS HELD AS UNDER : IT IS TRUE THAT AN APPARENT MUST BE CONSIDERED REAL UNTIL IT IS SHOWN THAT THERE ARE REASONS TO BELIEVE THAT THE APPAR ENT IS NOT REAL. FROM THE VARIOUS MATERIAL BROUGHT ON RECORD, THERE W AS NOTHING IMPROPER ON THE PART OF THE ASSESSING OFFICER IN RELYIN G ON CIRCUMSTANTIAL EVIDENCE IN SUCH CASE FOR ARRIVING AT T HE FINDING. THE ASSESSING OFFICER IS ALSO ENTITLED TO TAKE INTO CONSIDERA TION THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE AND TO DRAW HIS / HER OWN INFERENCE ON THE BASIS THEREOF, CIRCUMSTANTIAL EVIDEN CE IN SUCH CASES IS NOT IMPERMISSIBLE. ON SIMILAR FACTS THE BOMBAY HIGH CO URT IN THE CASE OF SMT. VASANTIBAI N. SHAH VS. CIT (1995) 213 ITR 805 (BOM) HELD THAT IN SUCH CASES ONLY CIRCUMSTANTIAL EVIDENCE WILL BE AVAI LABLE. NO DIRECT EVIDENCE CAN BE EXPECTED. IN THE CASE OF GREEN VALLE Y BUILDERS VS CIT (2008) 296 ITR 225 (KER), THERE WERE MATERIALS CONST ITUTING CIRCUMSTANTIAL EVIDENCE TO PROVE THAT LAND IN QUESTIO N HAD BEEN SOLD BY THE ASSESSEE AT A HIGHER PRICE THAN THAT CLAIMED BY IT AND HENCE ADDITION ON ACCOUNT OF UNACCOUNTED INCOME WAS JUSTIFI ED. 3.7.2 FROM THE PLAIN READING OF THE DEEMING PROVISIO N IT IS EVIDENT THAT WHEN THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF ACQUISITION OF THE MONEY, BULLION, JEWELLERY OR O THER VALUABLE ARTICLES IN VALUE WOULD BE DEEMED INCOME OF THE ASSESSE E. AN 10 ITA NO.1142/PN/2013 EXPLANATION OFFERED, IF NOT ACCEPTED IS NO EXPLANATI ON IN LAW AND NOT ONLY THIS, THE LEGISLATURE WHILE ENACTING THE DEEMING PROVISION HAS CLARIFIED THAT IN CASE THE EXPLANATION OFFERED IS NOT SATISFACTORY THE VALUE OF THE VALUABLE ARTICLES SHALL BE DEEMED TO BE THE INCOME OF THE ASSESSEE. 3.8 TO SUM UP, ON CAREFUL CONSIDERATION OF ALL THE EV IDENCES AND FACTS CUMULATIVELY AND ALSO THE SUBMISSION OF THE APPELLANT, IN MY CONSIDERED OPINION, THE DECISION OF THE ASSESSING OFFICER IN MAKING THE ADDITION OF RS. 1.44 CRORES WAS ON A SOUND BASIS AND LIAB LE TO BE UPHELD AND THE GROUND OF APPEAL NO. 1 RAISED BY THE APPELLANT IS, THEREFORE, LIABLE TO BE DISMISSED. 9. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW : 1. THE LD.CIT(A) ERRED IN SUSTAINING THE ADDITION MAD E BY THE AO ON GROUNDS THAT THE APPELLANT HAD RECEIVED CASH CONSID ERATION OF RS.1,44,00,000/- FROM MALPANI GROUP FOR TRANSFER OF H IS RIGHTS IN LAND AT VILLAGE SUS, PUNE WHEN THE SUBJECT AMOUNT WAS NEITH ER PAID TO HIM NOR RECEIVED BY HIM. THE APPELLANT PLEADS THAT THE A O AND CIT(A) ERRED IN DISREGARDING CONCLUSIVE DOCUMENTARY EVIDENCE BY W AY OF ENTRIES IN BOOKS OF ACCOUNTS FOUND AND SEIZED IN SEARCH ACTION U/S. 132 ON THE PREMISES OF THE MALPANI GROUP ON 06-10-2009 AND ASSERTI ONS IN REGISTERED SALE AGREEMENT IN RESPECT OF THE SUBJECT LAN DS AND IN RELYING ON FALSE AND SELF SERVING STATEMENTS MADE BY SHRI DHANAN JAY VITHAL NIMHAN AND SHRI ASHISH MALPANI OF THE MALPANI GROUP T O REACH AN ADVERSE AND ERRONEOUS CONCLUSION. THE APPELLANT PLEAD S THAT THE ADDITION MADE BY THE AO IS NOT VALID. 2. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND, MOD IFY OR WITHDRAW ANY OR ALL GROUNDS OF APPEAL. 10. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO PAGES 22 TO 26 OF THE PAPER BOOK DREW THE ATTENTION OF THE BENCH TO THE VARIOUS CLAUSES OF THE CANCELLATION CUM ALTERNATIVE DEED DATED 21 -04-2008 BETWEEN MR. DHANANJAY VITTHAL NIMHAN AND THE ASSESSEE A CCORDING TO WHICH THE AMOUNT OF RS.25 LAKHS HAS BEEN PAID BY MR. DHANANJAY VITTHAL NIMHAN TO THE ASSESSEE VIDE CHEQUES D ATED 03- 04-2008, 28-03-2008 AND 02-04-2008 DRAWN ONVISHWESHWA R COOP. BANER ROAD, BRANCH PUNE WHICH WERE CLEARED ON 07-04-20 08. REFERRING TO CLAUSE 4(B) OF THE SAID CANCELLATION CUM ALTERNA TIVE 11 ITA NO.1142/PN/2013 DEED, THE LD. COUNSEL FOR THE ASSESSEE DREW THE ATTENTIO N OF THE BENCH TO THE FOLLOWING : B. AS ON TODAY, THE TRANSFEROR VIDE THIS CANCELLATION DEED HAS CANCELLED ALL THE DOCUMENTS, I.E. POSSESSION AGREEMENT T O SALE, POWER OF ATTORNEY, SECURITY BOND IN RESPECT OF THE SAID PRO PERTY AND HAS HANDED OVER THE ORIGINAL COPIES OF SUCH AGREEMENTS IN THE POSSESSION OF THE TRANSFEREE. IN THIS RESPECT THE TRANSFEREE DOES NOT HAVE ANY COMPLAINT. 11. REFERRING TO PAGE 6 OF THE PAPER BOOK THE LD. COUNS EL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO THE TRADIN G AND PROFIT AND LOSS ACCOUNT FOR THE YEAR ENDING 31-03-2009 WHERE IN AN AMOUNT OF RS.25 LAKHS HAS BEEN DECLARED AS INCOME ON ACC OUNT OF PROFIT ON RIGHT RENUNCIATION. THE LD. COUNSEL FOR THE ASSES SEE DREW THE ATTENTION OF THE BENCH TO THE VARIOUS DEVELOP MENTS AGREEMENTS, COPIES OF WHICH ARE PLACED AT PAGES 190/202,2 04 AND 205 AND SUBMITTED THAT THE AGREEMENTS ARE BETWEEN M/ S. GIRIRAJ ENTERPRISES AND VARIOUS FAMILY MEMBERS OF CHANDORE FAMIL Y AND MR. NIMHAN IS A CONSENTING PARTY AND THE ASSESSEE IS NOT AT ALL IN THE PICTURE. REFERRING TO CLAUSE (3) OF THE PROPERTY DESCR IPTION CLAUSE OF THE CONSENT DEED (PAPER BOOK PAGES 223 TO 22 9) THE LD. COUNSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENC H TO THE FOLLOWING : 4. THE CONFIRMING PARTY NO.1 HEREIN HAS CANCELLED T HE AGREEMENT TO SALE/AGREEMENT, POWER OF ATTORNEY AND INDEMNITY BONDS EXECUTED IN FAVOUR OF SHREE C.P, MOHANDAS IN RESPECT OF THE SAI D PROPERTIES AND HANDED OVER TO THE PURCHASER. SIMILARLY, THE CONFIR MING PART NO.1 TO 3 HAVE HANDED OVER THE PURCHASER THE VISAR RECEIPTS AND RELATED DOCUMENTS EXECUTED IN THEIR FAVOUR BY THE ORIGINAL L AND OWNERS. THE CONFIRMING PARTIES HAVE PERMANENTLY SURRENDERED THE R IGHTS, ACQUIRED THROUGH VISAR RECEIPTS AND AGREEMENTS, IN FAVOUR OF TH E PURCHASER. THE CONFIRMING PARTIES HAVE CEASED TO HAVE ANY KIND OR RI GHT IN THE SAID PROPERTY. REFERRING TO THE SAID DEED, HE AGAIN DREW THE ATTENTION O F THE BENCH TO CLAUSE (4) ACCORDING TO WHICH THE CONFIRMATION PARTY NO.1 , I.E. 12 ITA NO.1142/PN/2013 MR. DHANANJAY VITTHAL NIMHAN HAS CANCELLED THE AGREEMENT TO SALE/AGREEMENT, POWER OF ATTORNEY AND INDEMNITY BOND EX ECUTED IN FAVOUR OF SHRI C.P, MOHANDAS, IN RESPECT OF THE SAID PROPERT IES AND HANDED OVER TO THE PURCHASER. REFERRING TO PAGE 184 O F THE PAPER BOOK, WHICH IS THE DEVELOPMENT AND SALE AGREEMENT, HE SUB MITTED THAT THE DESCRIPTION OF THE PROPERTY REFERRED TO IN THE SAID DEVELOPMENT AGREEMENT IS THE SAME AS PER THE CANCELLATI ON CUM ALTERNATIVE DEED, A COPY OF WHICH IS PLACED AT PAGE 26 OF T HE PAPER BOOK. REFERRING TO PAGE 164 OF THE PAPER BOOK HE SUBMITTED THAT AN AMOUNT OF RS.1,44,00,000/- HAS BEEN SHOWN AGAINST THE NAM E MR. JAYA NIMHAN FOR S.NO.232 ETC. VIDE DEED DATED 28-04-2008. 12. REFERRING TO THE STATEMENT OF MR. DHANANJAY VITTHAL N IMHAN, A COPY OF WHICH IS PLACED AT PAGES 165 TO 172 OF THE PA PER BOOK, HE DREW THE ATTENTION OF THE BENCH TO THE REPLY GIVEN BY MR. DHANANJAY VITTHAL NIMHAN TO VARIOUS QUERIES AND SUBMITTED THAT WHATEVER MR. NIMHAN HAS STATED IS FACTUALLY INCORRECT. RE FERRING TO QUESTION NO.5 HE SUBMITTED THAT MR. DHANANJAY VITTHAL NIM HAN IN HIS REPLY HAD STATED THAT HE HAS NO CONCERN WITH THE PAYMENTS OF RS.1,44,00,000/- IN RESPECT OF LAND SITUATED AT S.NO.232 VILLAGE SUS PURCHASED BY MALPANI GROUP THAT HAS NOT RECEIVED A NY AMOUNT AGAINST THE SAID TRANSACTION MENTIONED IN THE SAID SEIZED PAPER. FURTHER HE HAS ALSO NOT RECEIVED ANY COMMISSION AGAINST THE SAID TRANSACTION. THE LD. COUNSEL FOR THE ASSESSEE STATED TH AT THE ABOVE REPLY OF MR. DHANANJAY VITTHAL NIMHAN IS ABSOLUTELY FALSE SIN CE HE HAS SIGNED 3 DOCUMENTS. THEREFORE, HE CANNOT SAY THAT HE HAS NO CONCERN. 13 ITA NO.1142/PN/2013 13. AS REGARDS THE SUBSEQUENT STATEMENT THAT NO RIG HTS OF WHATSOEVER NATURE WERE ACQUIRED BY HIM AND THAT NEITHE R ANY AGREEMENT WAS ENTERED INTO BETWEEN HIM AND SHRI C.P.MOHA NDAS NOR ANY UNREGISTERED AGREEMENT WAS ENTERED INTO BETWE EN LAND OWNERS AND SHRI C.P.MOHANDAS AND THAT NO VISAR PAWATI W AS RETURNED TO HIM, THE LD. COUNSEL FOR THE ASSESSEE SUBMITT ED THAT THE ASSESSEE THROUGH REGISTERED DOCUMENTS HAVE TRANS FERRED THE ORIGINAL DOCUMENTS TO MR. DHANANJAY VITTHAL NIMHAN. THEREFO RE, WHAT MR. DHANANJAY VITTHAL NIMHAN HAS STATED IN HIS STATE MENT IS ABSOLUTELY FALSE AND INCORRECT. HE SUBMITTED THAT THE AS SESSEE HAS ONLY ONE DEAL WITH MALPANI WHEREAS MALPANI GROUP HAS NU MBER OF DEALS WITH NIMHAN WHO IS ENGAGED IN THE REAL ESTATE BUSINE SS. IT IS AN UNDISPUTED FACT THAT MALPANI HAS PAID TAX ON ACCOUNT OF CASH PAYMENT OF RS.1,44,00,000/-. NOW HE HAS TO CHOSE BETWEEN NIMHAN AND THE ASSESSEE AS THE RECEIVER OF THE ABOVE C ASH. THEREFORE, WHEN HE HAS TO CHOOSE BETWEEN THE ASSESSEE AND MR. NIMHAN, HE HAS TO TAKE THE NAME OF THE ASSESSEE AND TR Y TO PROTECT MR. NIMHAN BECAUSE HE HAS GOT FUTURE INTEREST IN HIM AND HAS NUMBER OF DEALS WITH MR. NIMHAN 14. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE SEIZED PAPER DOES NOT SAY THE NAME OF SHRI C.P. MOHANDAS AND THE AMOUNT WAS WRITTEN AGAINST THE NAME OF MR.NIMHAN. THE STATEMENT OF SHRI ASHISH MALPANI WAS RECORDED ON 05-12-2 011. THE ASSESSMENT ORDER WAS PASSED ON 07-12-2011. NO O PPORTUNITY OF CROSS EXAMINATION WAS GRANTED. THE STATEMENT OF MALP ANI ON THE DATE OF SEARCH WAS ALSO NOT SHOWN TO THE ASSESSEE. WH AT HAS HAPPENED IN THE ASSESSMENT OF MR. DHANANJAY VITTHAL NIMHA N AND IN THE CASE OF LAND OWNERS IS ALSO NOT KNOWN TO THE ASS ESSEE. 14 ITA NO.1142/PN/2013 UNDER THESE CIRCUMSTANCES HE SUBMITTED THAT EITHER TH E ENTIRE ADDITION IS DELETED OR THE MATTER MAY BE SET ASIDE TO TH E FILE OF THE AO WITH A DIRECTION TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HIS CASE. 15. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER H AND HEAVILY RELIED ON THE ORDER OF THE CIT(A). HE SUBMITTED TH AT IN THIS TYPE OF CASES THERE WOULD BE NO DIRECT EVIDENCE ON ACCO UNT OF ANY ON-MONEY INVOLVED IN THE TRANSACTION. SUCH CASES ARE TO BE ASSESSED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD, SURR OUNDING CIRCUMSTANCES, HUMAN CONDUCT, PREPONDERANCE OF PROBABILIT Y ETC, HE SUBMITTED THAT THE RAADHA BADAL DAST/CANCELLATION- ALTERNATION DEED DATED 21-04-2008 WAS NEVER REGISTERE D AND WAS PREPARED FOR THE PURPOSE OF BRINGING TOGETHER THE ASSES SEE AND THE MALPANI GROUP FOR THE LAND DEAL. THE STATEMENT GIVEN BY DHANANJAY VITTHAL NIMHAN AND MALPANI CANNOT BE JUST OVER LOOKED AS THEY CLEARLY DEMONSTRATE AND EXPLAIN THE ENTIRE TRA NSACTION IN DETAIL AND WHICH CORROBORATE THE ENTRIES FOUND ON THE SE IZED DOCUMENT. HE SUBMITTED THAT EVEN THOUGH MR.DHANANJAY VITTHAL NIMHAN AND SHRI ASHISH MALPANI HAVE MENTIONED IN THEIR STATEMENT THAT THERE WERE DIFFERENCES BETWEEN SHRI C.P. M OHANDAS AND MALPANI GROUP, HOWEVER, IT IS CLEAR THAT THE TRANSACTIO NS HAVE TAKEN PLACE BETWEEN THEM SUBSEQUENTLY ALSO WHICH IS EVID ENT FROM THE ENTRY DATED 04-10-2008 APPEARING ON THE SEIZED PA PER. HE ACCORDINGLY SUBMITTED THAT THE ORDER OF THE CIT(A) BE UPHELD. 16. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOT H THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE P APER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND DURING THE COURSE O F SEARCH AND SEIZURE ACTION U/S.132 OF THE I.T. ACT IN THE CASE OF MALPANI 15 ITA NO.1142/PN/2013 GROUP OF CASES ON 06-10-2009, A PAPER SHOWING DATE-WISE ENTRIES OF UNACCOUNTED CASH RECEIPTS AND CASH PAYMENTS FOR THE P ERIOD FROM 15-04-2008 TO 04-10-2008 IN THE FORM OF CASH BOOK WAS FOUND AND SEIZED. SHRI ASHISH MALPANI HAD ACCEPTED THAT THE ENTRIES IN THE IMPUGNED PAPERS WERE UNACCOUNTED CASH RECEIPTS AND CA SH PAYMENTS MADE IN VARIOUS LAND TRANSACTIONS ENTERED INTO BY M/S. GIRIRAJ ENTERPRISES, A PARTNERSHIP FIRM OF THE MALPANI GROUP . ON THIS PAGE AGAINST THE DATE 28-04-2008 CASH PAYMENTS O F RS.1,44,00,000/- MADE IN THE NAME OF MR. JAYA NIMHAN, S.NO.232 ET. WAS MENTIONED. THE AO MADE ADDITION OF RS.1,44,00,000/- IN THE HANDS OF THE ASSESSEE AS UNDISCLOSED INCOME RECEIVED FROM MALPANI GROUP AFTER CONSIDERING THE STATEMENT OF MR.DHANAN JAY VITTHAL NIMHAN, SHRI ASHISH MALPANI AND THE ASSESSEE. 17. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESS EE THAT THE LAND IN QUESTION WAS PURCHASED BY MALPANI GROUP THRO UGH REGISTERED AGREEMENT WITH THE LAND OWNERS ON 29-04-200 8. AS PER THE AGREEMENT DATED 21-04-2008 BETWEEN THE ASSESSEE AND MR.DHANANJAY VITTHAL NIMHAN, THE ASSESSEE HAD HANDED OVER POWER OF ATTORNEY, VISAR PAWATI ETC. WHICH HE HAD EXECUTED WITH THE LAND OWNERS OF S.NO.232. AFTER THIS DATE, I.E. 21-04-2008 THE ASS ESSEE HAD NO RIGHT IN THE LAND AT S.NO.231, 232 ETC. AT SUS. IT IS ALSO THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT IT HAS RECEIVED ONLY RS.25 LAKHS THAT TOO BY CHEQUE FROM MR.DHANANJAY V ITTHAL NIMHAN AS PER THE RADDHA BADAL AGREEMENT DATED 21-04- 2008. IT IS ALSO THE ALTERNATE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE AO HAS NOT GRANTED CROSS EXAMINATION OF MR.DHA NANJAY VITTHAL NIMHAN AND SHRI ASHISH MALPANI. FURTHER, THE STATEM ENT OF MALPANI AS ON THE DATE OF SEARCH WAS NOT SHOWN TO THE ASSESSEE. 16 ITA NO.1142/PN/2013 FURTHER, IT IS ALSO NOT KNOWN AS TO WHAT HAPPENED IN THE ASSESSMENT OF MR.DHANANJAY VITTHAL NIMHAN AND THE LAND OW NERS ON ACCOUNT OF THE PAYMENT OF RS.1,44,00,000/-. SINCE THE CASE WAS MISHANDLED FROM THE BEGINNING THE MATTER MAY BE SET ASIDE TO THE FILE OF THE AO. 18. WE FIND THE ALTERNATE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE MORE ACCEPTABLE. ADMITTEDLY, IT IS NOT COMING OU T OF THE RECORDS AS TO WHETHER THE ASSESSEE HAS ASKED FOR CRO SS EXAMINATION OF THE CONCERNED PERSONS AND WHETHER THE SAME WAS GR ANTED OR DENIED. SINCE THE STATEMENT OF MALPANI WAS RECORDED ON 0 5-12- 2011 AND THE ASSESSMENT ORDER HAS BEEN PASSED ON 07-12-2011, THEREFORE, WE FIND SOME FORCE IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT CROSS EXAMINATION SHOU LD HAVE BEEN GRANTED TO THE ASSESSEE BEFORE UTILIZING ANY ADVER SE STATEMENT AGAINST THE ASSESSEE. IT IS ALSO NOT KNOWN AS TO WHETH ER ANY ADDITION HAS BEEN MADE IN THE HANDS OF MR.DHANANJAY VITTH AL NIMHAN AGAINST WHOSE NAME RS.1,44,00,000/- IS APPEARING IN T HE SEIZED DOCUMENT. WE, THEREFORE, FIND MERIT IN THE ALTERNATE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE M ATTER SHOULD BE RESTORED TO THE FILE OF THE AO. ACCORDINGLY, W E RESTORE THE MATTER TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE THE ISSUE AFRESH. THE AO SHALL GIVE CLEAR CUT FINDING REGARDING THE O UTCOME OF THE ASSESSMENT IN THE CASE OF MR.DHANANJAY VITTHAL NIMHA N AGAINST WHOSE NAME THE AMOUNT OF RS.1,44,00,000/- WAS AP PEARING IN THE SEIZED PAPER. THE AO SHALL ALSO ALLOW OPPORTUNITY O F CROSS EXAMINATION OF MR.DHANANJAY VITTHAL NIMHAN AND SHRI ASHISH MALPANI BY THE ASSESSEE IF DEMANDED. THE RELEVANT QUESTIO NS AND ANSWERS OF SHRI ASHISH MALPANI DURING THE COURSE OF SEARCH IN 17 ITA NO.1142/PN/2013 RESPECT OF THE AMOUNT OF RS.1,44,00,000/- ARE ALSO TO BE S HOWN TO THE ASSESSEE. THE AO SHALL ACCORDINGLY DECIDE THE ISSUE AS PER FACT AND LAW AFTER GIVING DUE OPPORTUNITY OF BEARING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 19. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29-04-2016. SD/- SD/- ( VIKAS AWASTHY ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE ; DATED :29 TH APRIL, 2016. ) *#,! -! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A) - I I , PUNE 4. 5. 6. THE CIT-II, PUNE $ ''(, (, / DR, ITAT, B PUNE; - / GUARD FILE. / BY ORDER , // TRUE COPY // // TRUE COPY // // $ ' //TRUE /0 ' ( / SR. PRIVATE SECRETARY (, / ITAT, PUNE