ACIT Non Corporate Circle 20(1), CHENNAI V. Ramcharan Tej Konidala, CHENNAI

ITA 2074/CHNY/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5788 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 02-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G CHANDRABABU
• Keywords: Unexplained investment; Salary income; Additional evidence; Set aside
• Section: 69A; 13; 69

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A B ENCH, CHENNAI , . , % BEFORE SHRI MAHAVIR SINGH, VICE-PRESIDENT AND SHRI G.MANJUNATHA, ACCOUNTANT MEMBER ./ I.T.A.NO.2074/CHNY/2018 ( / ASSESSMENT YEAR: 2009-10) THE ASSISTANT COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE-20(1) CHENNAI. VS MR. RAMCHARAN TEJ KONIDALA, 98, KAMDAR NAGAR, MAHALINGAPURAM, CHENNAI-600 034. PAN: ALIPK 5347D ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR.G.CHANDRABABU, ADDL.CIT /RESPONDENT BY : MR. VIKRAM VIJAYARAGHAVAN, ADVOCATE /DATE OF HEARING : 18.02.2021 /DATE OF PRONOUNCEMENT : 28.04.2021 / O R D E R PER G.MANJUNATHA, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST ORDER OF THE LEARNED CIT(A)-14, CHENNAI DATED 28.03.201 8 AND PERTAINS TO ASSESSMENT YEAR 2009-10. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE ORDER OF THE LEARNED CIT(A) IS CONTRARY TO FACTS AND CIRCUMSTANCES OF THE CASE. 2.1 THE LEARNED CIT(A) ERRED IN DELETING THE ADDITI ON OF ` 1,54,50,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN VILLA PLOT. 2.2 THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT ADDITION WAS MADE ON THE BASIS OF CHARGE 2 ITA NO.2074/CHNY/2018 SHEET AND SUPPLEMENTARY CHARGE SHEET FILED BY THE CBI BASED ON THE FACTS FINDINGS BY CBI. 2.3 THE LEARNED CIT(A) OUGHT TO HAVE DECIDED THE C ASE BEFORE DISPOSAL OF APPEAL BY THE CBI SPECIAL COURT AS THE ISSUE HAS NOT ATTAINED FINALITY AND IS STIL L PENDING. 3. FOR THESE AND OTHER GROUNDS THAT MAY BE ADD UCED AT THE TIME OF HEARING, IT IS PRAYED THAT ORDER OF THE LEARNED CIT(A) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER RESTORED. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND FILM ARTIST BY PROFESSION, FILED HI S RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 U/S.139 OF THE INCOME TAX ACT, 1961. THE ASSESSMENT FOR THE IMPUGNED ASSE SSMENT YEAR HAS BEEN ORIGINALLY COMPLETED U/S.143(3) OF TH E ACT VIDE ORDER DATED 21.12.2011. THE ASSESSMENT HAS BEEN SUBSEQUENTLY REOPENED U/S.147 OF THE ACT FOR THE REASONS RECORDED, AS PER WHICH INCOME CHARGEABLE TO TAX HA D BEEN ESCAPED ASSESSMENT ON ACCOUNT OF ON MONEY PAYMENT F OR PURCHASE OF PROPERTY. ACCORDINGLY, NOTICE U/S.148 D ATED 31.03.2013 WAS ISSUED AND SERVED ON THE ASSESSE. TH E CASE WAS TAKEN UP FOR SCRUTINY AND DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER, ON THE BASIS OF INFORMATION 3 ITA NO.2074/CHNY/2018 RECEIVED FROM THE DCIT, CIRCLE-2(3), HYDERABAD, OPI NED THAT THE ASSESSEE HAS PAID ON-MONEY FOR PURCHASE OF PRO PERTY FROM M/S. EMAAR HILLS TOWNSHIP PVT. LTD. AND ACCORDINGLY , BY TAKING NOTE OF VARIOUS FACTS INCLUDING CHARGE SHEET FILED BY CBI BEFORE THE COURT OF SPECIAL JUDGE FOR CBI HELD THAT THE AS SESSEE HAS PAID A SUM OF ` 1,54,50,000/- TOWARDS ON-MONEY PAYMENT FOR PURCHASE OF RESIDENTIAL VILLA FLAT ADMEASURING 4000 SQ.YARD. THE RELEVANT FINDINGS OF THE ASSESSING OFFICER IN THE A SSESSMENT ORDER ARE AS UNDER:- AFTER COMPLETION OF THE ASSESSMENT U/S.143(3) FOR ASSESSMENT YEAR 2009-10 INFORMATION WAS RECEIVED FR OM THE DCIT, CIRCLE-2(3), HYDERABAD, THAT WHILE COMPLE TING SCRUTINY ASSESSMENT IN THE CASE OF M/S.EMAAR HILLS TOWNSHIPS PVT.LTD FOR THE ASSESSMENT YEAR 2009-10 A N AMOUNT OF ` 101,22,14,777 WAS ADDED BACK TO THE TOTAL INCOME ON ACCOUNT OF ON-MONEY RECEIVED BY M/S.EMAA R HILLS TOWNSHIPS PVT.LTD TOWARDS SALE OF VILLA PLOTS . AGGRIEVED AGAINST THE SAID ASSESSMENT ORDER EHTPL FILED FURTHER APPEAL TO THE CIT(A) III HYDERABAD AND DURI NG THE COURSE OF APPELLATE PROCEEDINGS EHTPL FILED COPIES OF CHARGE SHEET DATED 17.8.2011 AND SUPPLEMENTARY CHAR GE SHEETS DATED 23.04.2012 FILED BY CBI BEFORE THE COU RT OF HONBLE SPECIAL JUDGE FOR CBI CASES AS ADDITIONAL EVIDENCE BEFORE CIT(A) . ON AN EXAMINATION OF THE SAID CHARGE SHEET IT WAS NOTICED THAT SOME OF VILLA PLOT BUYERS HAVE PAID ON MONEY IN ADDITION TO WHAT WAS STATED I N SALE AGREEMENT . AS EHTPL WAS RELYING ON THE ABOVE CHARG E 4 ITA NO.2074/CHNY/2018 SHEETS IT IS CLEAR THAT THE FACT OF EXTRA CONSIDERA TION WAS PAID IS ACCEPTED BY EHTPL. AS PER CHARGE SHEET AND SUPPLEMENTARY CHARGE SHEETS IT WAS NOTICED THAT SHR I TUMMALA RANGA RAO, DIRECTOR OF M/S. STYLISH HOLMES REAL ESTATES PVT.LTD. HAD CONFIRMED THAT SOME OF THE VILLA PLOTS WERE SOLD BY COLLECTING EXCESS AMOUNT RANGING FROM RS 4000 PER SQ.YARD TO RS.45,000 PER SQ.YARD OVER AND ABOVE THE REGISTERED RATE OF RS.5000 PER SQ.YARD. THE RELEVANT EXTRACTS OF THE CHARGE SHEET AND SUPPLEM ENTARY CHARGE SHEETS WERE ALSO FORWARDED TO THIS OFFICE. I T WAS SEEN FROM CHARGE SHEETS FILED THAT AS PER INSTRUC TIONS OF MR. KONERU RAJENDRA PRASAD, SHRI T.RANGA RAO DIRECT OR OF M/S. STYLISH HOLMES REAL ESTATES PVT.LTD SOLD 82 VI LLA PLOTS OF WHICH ONE VILLA PLOT WAS PURCHASED BY THE ASSESS EE SHRI RAMCHARAN TEJ KONIDALA BY COLLECTING EXCESS AMOUNTS FROM THE BUYERS RANGING FROM ` 4000/- PER SQ.YARD TO RS.45,000 PER SQ.YARD OVER AND ABOVE T HE RATE OF RS.5000 PER SQ.YARD. THE DETAILS OF LAND PURCHA SED BY MR. RAMCHARAN TEJ KONIDALA WERE SHOWN WERE SHOWN A T SL.NO.53 OF THE CHARGE SHEET, THE DETAILS OF WHICH ARE REPRODUCED AS UNDER FOR CONVENIENCE:- SL.NO. PLOT NO. EXTENT IN SQ.YARDS AMT,.PAID THROUGH CHEQUES IN ` EXCESS PAID PER SQ.YD. IN ` EXCESS PAYMENT IN ` TOTAL PAYMENT MADE BY BUYER IN ` 53 B30 1545 73,38,750 10,000 1,54,50,000 2,27,98,75 0 IT WAS STATED IN THE CHARGE SHEET THAT THE EXCESS M ONEY WAS COLLECTED BY SHRI T.RANGA RAO FROM BUYERS IN C ASH ONLY EXCEPT FROM SRI P.S.PARTHASARATHY RAO AND SHR I CHALLA SURESH WHO HAD DEPOSITED MONEY IN US DOLLARS 5 ITA NO.2074/CHNY/2018 TOWARDS PART OF EXCESS PAYMENT IN THE BANK ACCOUNTS OF SHRI MADHU KONERU S/O. KONERU RAJENDRA PRASAD MAINTAINED AT DUBAI. IN VIEW OF THE ABOVE REASONS, THE ASSESSMENT WAS REOPENED BY ISSUE OF NOTICE U/S.148 AS STATED ABOVE . IN RESPONSE TO THE NOTICE ASSESSEE FILED WRITTEN SUBMI SSIONS ON THIS ISSUE ON 20.03.2014 AND THE SAME WAS CONSIDERED CAREFULLY. THE CONTENTIONS OF THE ASSESSEE ARE NOT ACCEPTABLE SINCE THE INFORMATION ABOUT PAYMENT OF ON-MONEY IN CASH BY ASSESSEE WAS CLEARLY BROUGHT OUT IN ORIGINA L AND SUPPLEMENTARY CHARGE SHEETS FILED IN THE CASE OF EM AAR HILLS TOWNSHIPS PVT.LTD BY THE CBI. EVEN IN THE SUBMISSIONS MADE BY EHTPL BEFORE LEARNED CIT(A) AGAINST THE ASSESSMENT ORDER IN THEIR CASE IT HAS B EEN CLEARLY POINTED OUT BY EHTPL THAT THE EXCESS MONEY IN CASH WAS PAID BY BUYERS WHICH ESTABLISHES THE FACT. THE CLAIM OF EHTPL WAS THAT THEY HAVE NOT RECEIVED THE EXCESS MONEY IN CASH INSTEAD IT WAS M/S. STYLISH H OLMES REAL ESTATES PVT.LTD. / KONERU RAJENDRA PRASAD / SU NIL REDDY THIS ALSO CLEARLY CORROBORATES THE FACT THE ASSESSEE HAS PAID AN AMOUNT OF ` 1,54,50,000 IN CASH OVER AND ABOVE THE AGREED VALUE OF THE VILLA PLOT N O.B- 30. 3. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE PREFERRED APPEAL BEFORE LEARNED CIT(A). BEFORE THE LEARNED CIT(A), THE ASSESSEE HAS SUBMITTED THAT THE ASSESSI NG OFFICER HAD MADE ADDITIONS TOWARDS ON-MONEY ONLY ON THE BA SIS OF 6 ITA NO.2074/CHNY/2018 CHARGE SHEET FILED BY THE CBI BEFORE THE COURT OF SPECIAL JUDGE FOR CBI IN THE CASE OF M/S.EMAAR HILLS TOWNSH IP PVT. LTD. WITHOUT BRINGING ON ANY EVIDENCE TO PROVE THAT THE ASSESSEE HAS PAID ON-MONEY FOR PURCHASE OF THE FLAT. THE A SSESSEE HAS ALSO TAKEN SUPPORT FROM THE DECISION OF ITAT., CHEN NAI IN THE CASE OF MR.R.SAIBABU IN ITA NO.2933/CHNY/2016, WHER E UNDER IDENTICAL SET OF FACTS AND ON THE BASIS OF SAME CBI ENQUIRY CONDUCTED IN THE CASE OF M/S.EMAAR HILLS TOWNSHIP P VT.LTD. HELD THAT THE ASSESSING OFFICER HAS NOT ESTABLISHED ON THE BASIS OF EVIDENCE GATHERED THAT THE ASSESSEE HAS P AID ON- MONEY TO THE EXTENT QUANTIFIED BY THE ASSESSING OF FICER . THE LEARNED CIT(A), AFTER CONSIDERING RELEVANT SUBMISS IONS OF THE ASSESSEE AND ALSO BY FOLLOWING THE DECISION OF THE ITAT., CHENNAI IN THE CASE OF MR.R.SAIBABU IN ITA NO.2933/CHNY/2016 HELD THAT THE CONCLUSION ARRIVED AT BY THE ASSESSING OFFICER THAT ASSESSEE HAS PAID ON-MONEY F OR PURCHASE OF FLAT IS NOT BASED ON ANY DOCUMENT OR IN DEPENDENT ENQUIRY CARRIED OUT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ACCORDINGLY, DELETED THE ADDITIONS MAD E BY THE ASSESSING OFFICER. THE RELEVANT FINDINGS OF THE LEA RNED CIT(A) ARE AS UNDER:- 7 ITA NO.2074/CHNY/2018 4.3.1 1 HAVE CAREFULLY CONSIDERED THE AOS OBSERVA TION MENTIONED ABOVE UNDER PARA 4.1 AND THE APPELLANTS SUBMISSION BEFORE THE CTT(A) MENTIONED ABOVE UNDER PARA 4.2. 4.3.2 BASED ON CARS SEARCH IN EMAAR GROUP, THE AO C AME TO THE CONCLUSION THAT THE APPELLANT HAD PAID ON-MO NEY IN CASH TO THE TUNE OF RS.1.54 CR FOR THE PURCHASE OF VILLA PLOT. THE AOS OBSERVATION IN THE ASSESSMENT ORDER WAS BASED ON CHARGE-SHEET FILED BY THE 081 IN A COURT I N CONNECTION WITH ITS SEARCH. BEFORE THE CIT(A), THE APPELLANTS AR HAS STRONGLY CONTENDED THAT THE AO H AS MADE THE ABOVE ADDITION BASED ON SURMISE AND CONJECTURE. THE AR HAS CLARIFIED THAT THE CBIS CAS E HAS NOT ESTABLISHED THE APPELLANTS ON-MONEY PAYMENT AS MENTIONED ABOVE. THE AR HAS RELIED ON A FAVOURABLE DECISION IN THE CASE OF R. SAIBABU V. DCIT IN AY 20 10-11 VIDE ITA NO.2933/MDS/2016 DATED 9.3.2018 IN WHICH O N IDENTICAL FACTS AND CIRCUMSTANCES THE ITAT CHENNAI HAS DELETED THE ASSESSING OFFICER ADDITION OF UNEXPL AINED INVESTMENT. 4.3.3 I HAVE CONSIDERED BOTH THE POINTS OF VIEW. IT IS ASCERTAINED THAT THE CBIS CASE FILED IN THE COURT IS STILL PENDING AND THERE IS NO FINDING BY THE COURT TH REG ARD TO THE APPELLANTS UNEXPLAINED INVESTMENT IN VILLA PLOT AS HELD BY THE AO, IT IS FURTHER NOTICED THAT THE AOS CONC LUSION IS BASED ONLY ON THE CHARGE SHEET FILED BY THE CR1 IN CONNECTION WITH ITS SEARCH OPERATION IN EMAAR GROUP . THE AGS CONCLUSION IS NOT BASED ON ANY DOCUMENT OR INDEPENDENT ENQUIRY CARRIED OUT BY THE AC HIMSELF. I HAVE PERUSED THE DECISION OF HONBLE ITAT CHENNAI IN THE CASE OF SHRI R.SAIBABU WHICH HAS BEEN REPRODUCED ABOVE 8 ITA NO.2074/CHNY/2018 UNDER PARS 4.2. IN THE SAID CASE, UNDER IDENTICAL F ACTS AND CIRCUMSTANCES, THE HONBLE ITAT HAS HELD THAT NO PE ACE OF EVIDENCE AGAINST THE ASSESSEE HAVING PAID ON-MONEY WAS BROUGHT ON RECORD AND INSTEAD MADE UP A CASE ON SUR MISE AND CONJECTURE AND DELETED THE ADDITION. 4.3.4 RESPECTFULLY FOLLOWING THE DECISION OF THE HO NBLE ITAT CHENNAI ON IDENTICAL FACTS AND CIRCUMSTANCES, THE AOS AFORESAID ADDITION IS DELETED. THE APPELLANTS GROUNDS ARE ALLOWED 4. THE LEARNED DR SUBMITTED THAT THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION OF ` 1,54,50,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN VILLA FLAT WITHOUT APPREC IATING THE FACT THAT ADDITION WAS MADE ON THE BASIS OF CHARGE SHEET AND SUPPLEMENTARY CHARGE SHEETS FILED BY THE CBI BASED ON THE FACTS AND FINDINGS OF THE CBI DURING THE COURSE OF SEARCH IN THE CASE OF M/S.EMAAR HILLS TOWNSHIP PVT.LTD. THE DR F URTHER SUBMITTED THAT LEARNED CIT(A) OUGHT NOT TO HAVE DEC IDED THE CASE BEFORE THE DISPOSAL OF APPEAL BY THE CBI SPEC IAL COURT, AS THE ISSUE HAS NOT ATTAINED FINALITY AND IS STIL L PENDING. 5. THE LEARNED AR, ON THE OTHER HAND, STRONGLY SUPP ORTING THE ORDER OF LEARNED CIT(A) SUBMITTED THAT THE ISSU E IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY SERIES OF DECI SIONS OF THE 9 ITA NO.2074/CHNY/2018 TRIBUNAL IN THE CASE OF R.SAIBABU IN ITA NO.2933/CH NY/2016 AND THE DECISION OF ITAT.,HYDERABAD IN THE CASE OF G.SAMYUTHA IN ITA NO.356/HYD/2017 DATED 28.02.2018, WHERE THE TRIBUNAL HAS RECORDED CATEGORICAL FINDING THAT UNLESS THE ASSESSING OFFICER HAS BROUGHT ON RECORD SOME INDEPE NDENT EVIDENCES TO PROVE THAT ON-MONEY PAYMENT HAS BEEN M ADE FOR PURCHASE OF PROPERTY, HE CANNOT MAKE ADDITIONS SOL ELY ON THE BASIS OF CHARGE SHEET FILED BY THE CBI BEFORE CBI SPECIAL COURT, WHEN THE PROCEEDINGS IN THE CBI SPECIAL COU RT IS STILL PENDING. 6. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATE RIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE FIND THAT AN IDENTICAL ISSUE HAS BEEN CON SIDERED BY CO-ORDINATE BENCH OF THE ITAT., CHENNAI IN THE CASE OF R.SAIBABU IN ITA NO.2933/CHNY/2016, WHERE THE TRIB UNAL, AFTER CONSIDERING CHARGE SHEET FILED BY THE CBI IN THE CASE OF M/S.EMAAR HILLS TOWNSHIP PVT.LTD. HELD THAT UNLESS THE ASSESSING OFFICER BROUGHT ON RECORD SOME ADDITIONAL EVIDENCES TO CORROBORATE THE FINDINGS RECORDED BY CBI IN THE CASE OF M/S.EMAAR HILLS TOWNSHIP PVT.LTD. TO ARRIVE AT A CONCLUSION 10 ITA NO.2074/CHNY/2018 THAT THE ASSESSEE HAS PAID ON-MONEY FOR PURCHASE OF PROPERTY, NO ADDITION CAN BE MADE ONLY ON THE BASIS OF CHARGE SHEET FILED BY THE CBI, WHEN PROCEEDINGS ARE STILL PENDING BEFORE THE CBI SPECIAL COURT. THE RELEVANT FINDING S OF THE TRIBUNAL ARE AS UNDER:- 6. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIAL S AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IN THIS CASE, IT IS AN UNDISPUTED FACT THAT THE ASSESSEE IS AN INDIVIDUAL AND THE SOURCE OF THE INCOME OF THE A SSESSEE WAS ONLY INCOME FROM SALARY AND NO OTHER SOURCE OF INCO ME WITH CORROBORATIVE MATERIAL ESTABLISHED IN SUPPORT OF TH E STATEMENT OF THE THIRD PARTIES IS AVAILABLE ON RECORD EITHER IN THE ASSESSMENT ORDER OR IN THE APPELLATE ORDER. FURTHER , THE SOURCE FOR PURCHASE OF FLAT FROM M/S. EHTPL AT .65,25,000/- WAS NOT DISPUTED. HOWEVER, THE ASSESSING OFFICER MADE THE A DDITION TOWARDS ON MONEY PAYMENT ONLY ON THE BASIS OF THE INVESTIGATION CONDUCTED BY THE CBI IN THE CASE OF E HTPL AND REFERENCE RECEIVED FROM THE DCIT, CIRCLE 2(3), HYDE RABAD. IT MAY BE A FACT THAT CBI HAS OBSERVED THAT THE VILLA BUYERS HAVE PAID ON MONEY OVER AND ABOVE 5000/- PER SQ. YARD TO MR. T. RANGA RAO OF M/S. STYLISH HOMES OR TO THE REPRESENT ATIVE OF STYLISH HOMES. THE STATUTE PROVIDED SUFFICIENT POWE RS TO CALL FOR INFORMATION UNDER SECTION 133 OF THE ACT AND TO FUR NISH INFORMATION IN RELATION TO SUCH POINTS OR MATTERS, OR TO FURNISH STATEMENTS OF ACCOUNTS AND AFFAIRS VERIFIED IN THE MANNER SPECIFIED BY VARIOUS AUTHORITIES OF THE DEPARTMENT. BUT, ON PERUSAL OF THE ORDERS OF AUTHORITIES BELOW, IT IS C LEAR THAT NO CORROBORATIVE EVIDENCE IS AVAILABLE WITH THE DEPART MENT OR THE 11 ITA NO.2074/CHNY/2018 DEPARTMENT MADE ANY EXTENSIVE ENQUIRY TO CONCLUDE T HAT THE ASSESSEE MIGHT HAVE PAID ON MONEY TOWARDS PURCHASE OF FLATS. 6.1 IN THE CASE OF CIT V. N. SWAMY 241 ITR 363, THE HONBLE JURISDICTIONAL HIGH COURT HAS HELD THAT THE BURDEN OF SHOWING THAT THE ASSESSEE HAD UNDISCLOSED INCOME IS ON THE REVENUE AND THE BURDEN CANNOT BE SAID TO BE DISCHAR GED BY MERELY REFERRING TO THE THIRTY PARTY STATEMENTS. AL TERNATIVELY, WITH A VIEW TO ASSIST THE ASSESSING OFFICER AND TO REDUCE THE RIGOUR OF THE BURDEN THAT LAY UPON THE ASSESSING OF FICER, PROVISIONS OF SECTIONS 68, 69, 69A TO 69D OF THE AC T HAVE PROVIDED FOR CERTAIN DEEMING PROVISIONS, WHERE, AN ASSUMPTION OF INCOME IS RAISED IN THE ABSENCE OF SATISFACTORY EXPLANATION FROM THE ASSESSEE. AS THESE ARE DEEMING PROVISIONS, THE CONDITIONS PRECEDENT FOR INVOKING SUCH PROVISIONS I S REQUIRED TO BE STRICTLY CONSTRUED. THE FACTS AND CIRCUMSTANCES GIVING RISE TO THE PRESUMPTION OF HAVING UNDISCLOSED INCOME TO MAK E INVESTMENT HAVE TO BE ESTABLISHED WITH REASONABLE C ERTAINTY. IN THIS CASE IT WAS NOT DONE BY THE DEPARTMENT. 6.2 IN THIS CASE, THE ASSESSING OFFICER HAS NOT EST ABLISHED ON THE BASIS OF EVIDENCE GATHERED THAT THE ASSESSEE HAS PAID ON MONEY TO THE EXTENT QUANTIFIED BY HIM. IN FACT, THE DEPARTMENT HAS NO PIECE OF EVIDENCE AGAINST THE ASS ESSEE DIRECTLY LINK THE ASSESSEE TOWARDS PAYMENT OF ON MO NEY. YET, MERELY ON THE BASIS OF THE FACT THAT SOME OTHER BUY ERS HAVE ACCEPTED PAYMENT OF ON-MONEY, THE ASSESSING OFFICER CANNOT MADE ADDITION UNDER SECTION 69 OF THE ACT. 6.3 MOREOVER, MERE ACCEPTANCE OF ADDITION MADE IN T HE ASSESSMENT OF .2,04,500/- ON UNDISCLOSED CASH DEPOSITS IN STANDARD CHARTED BANK AND UNDISCLOSED PAYMENTS ON C REDIT 12 ITA NO.2074/CHNY/2018 CARD BILLS OF .2,96,960/- ISSUED BY THE UNION BANK OF INDIA, CANNOT BE A GROUND THAT THE ASSESSEE HAS MADE HUGE ON MONEY OF .93,53,000/- WARRANTING ADDITION UNDER SECTION 69 O F THE ACT. 6.4 AT LAST, THE CONCEPT OF PREPONDERANCE OF PROBAB ILITY CANNOT BE APPLIED IN THIS CASE BECAUSE, IN GROUND R EALITY, THE DEPARTMENT FAILED TO MAKE ANY ENQUIRY IN TERMS OF P ROVISIONS OF SECTION 133 OF THE ACT WITH SHRI KONNARU RAJENDRA P RASAD, SHRI T. RANGA RAO, DIRECTORS OF M/S. STYLISH HOMES REAL ESTATE (P) LTD. AND RECORDED THEIR STATEMENT OF HAVING COLLECT ED EXCESS AMOUNT FROM THE ASSESSEE OVER AND ABOVE THE COST OF PLOT AT .5000/-PER SQ. YARD; THERE WAS NO MATERIAL EVIDENCE TO SHOW THAT THE ASSESSEE HAD ENOUGH SOURCE TO MAKE HUGE UNDISCLOSED INVESTMENTS, WHERE, IN THIS CASE, THE S OURCE OF INCOME OF THE ASSESSEE WAS ONLY INCOME FROM SALARY AND NO OTHER SOURCE OF INCOME WAS DETECTED; OR THERE WAS A NY SEARCH OR SURVEY IN THE CASE OF THE ASSESSEE OR THE PLOT S ELLER AND ACQUIRED ANY PIECE OF EVIDENCE OF HAVING PAID ON-MO NEY BY THE ASSESSEE. EACH CASE HAS TO BE DECIDED ACCORDING TO THE FACTS AND BASED ON THE MATERIAL EVIDENCE CONTEMPLATED AGA INST THE ASSESSEE. 6.5 CONSIDERING THE ENTIRE GAMUT OF THE CASE, WE FI ND THAT THE REVENUE HAS FAILED TO DISCHARGE ITS DUTIES; NO PIECE OF EVIDENCE AGAINST THE ASSESSEE HAVING PAID ON MONEY WAS BROUGHT ON RECORD AND INSTEAD, MADE UP A CASE ON SU RMISE AND CONJECTURES WHICH CANNOT BE ALLOWED. UNDER THE ABOV E FACTS AND CIRCUMSTANCES, WE SET ASIDE THE ORDER OF THE LD . CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION MADE UNDER SECTION 69 OF THE ACT. 13 ITA NO.2074/CHNY/2018 7. IN THIS VIEW OF THE MATTER AND CONSISTENT WITH T HE VIEW TAKEN BY THE CO-ORDINATE BENCH IN THE CASE OF R.SAI BABU IN ITA NO.2933/CHNY/2016 VIDE ORDER DATED 09.03.2018, WE A RE OF THE CONSIDERED VIEW THAT FINDINGS RECORDED BY THE LEARN ED CIT(A) IN LIGHT OF THE DECISION OF ITAT., CHENNAI BENCH IS UN CONTROVERTED. THE REVENUE HAS FAILED TO BRING ON RECORD ANY EVIDE NCE TO PROVE THAT FINDINGS OF FACT RECORDED BY LEARNED CIT (A) IS INCORRECT OR OPPOSED TO THE FACTS. HENCE, WE ARE IN CLINED TO UPHOLD THE FINDINGS OF LEARNED CIT(A) AND DISMISS T HE APPEAL FILED BY THE REVENUE. 8. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH APRIL, 2021 SD/- SD/- ( ) ( . ) (MAHAVIR SINGH) (G. MANJUNATHA ) / VICE-PRESIDENT $ / ACCOUNTANT MEMBER & /CHENNAI, ' /DATED 28 TH APRIL, 2021 DS )* +* /COPY TO: 1. APPELLANT 2. RESPONDENT 3. , () /CIT(A) 4. , /CIT 5. * 1 /DR 6. /GF .