AI Insights
The case involves appeals by the Revenue against the decisions of the CIT(A) which had deleted several additions made by the Assessing Officer regarding unaccounted deposits and cash transactions linked to the late Sunil Dharamvir Gulati. The Tribunal examined the evidence and precedents, noting that some additions were justified while others required further verification. The Tribunal's decision emphasized the need for proper documentation and evidence to substantiate claims of unaccounted income or transactions.
Appeal Details
Counselvise Citation
[2023] 140 COUNSELVISE.COM (IT) 123621 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
4 month(s) 21 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
27-02-2023
Appeal Filed By
Department
Order Result
PartlyAllowed
Bench Allotted
G
Next Hearing Date
21-02-2023
Assessment Year
2009-2010
Appeal Filed On
06-10-2022
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “G” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI PAVAN KUMAR GADALE (JUDICIAL MEMBER) ITA No. 2577/MUM/2022 Assessment Year: 2008-09 & ITA No. 2578/MUM/2022 Assessment Year: 2009-10 The Dy. CIT, Central Circle- 6(4), Room No. 1925, 19 th floor, Air India Building, Nariman Point, Mumbai-400021. Vs. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati, B-2 Kaveri Co. Op. Hsg. Soc., Plot No. 63, Sector-17, Vashi, Navi Mumbai-400705. PAN No. AEHPG 8703 R Appellant Respondent Revenue by : Dr. Kishor Dhule, CIT-DR Assessee by : Shri Hitesh M. Shah, AR Date of Hearing : 22/02/2023 Date of pronouncement : 28/02/2023 ORDER PER OM PRAKASH KANT, AM These two appeals by the Revenue are directed against two separate orders, both dated 28.07.2022, passed by the Ld. Commissioner of Income-tax (Appeals)-54, Mumbai [in short ‘the Ld. CIT(A)’] for assessment year 2008-09 and 2009-10 respectively. Being common issues involved heard together and disposed off by way of this consolidated order for convenience and avoid repetition of facts. 2. First, We take up the appeal of the Revenue for assessment year 2008-09. The grounds raised by the Revenu as under: 1. "On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition made by AO on the account of unaccounted deposits in the bank account of the assessee on substantive basis in the hands of the assessee that the account is related to Late Shri Sunil Gulati HUF is an afterthought as the assessee failed to produce any evidence to show that the account pertained to HUF and account was in personal name of the asse 2. "On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in deleting the addition made us 153A r.w.s. 143(3) of the Income Tax Act, 1961 on the account of noting of the cash payments made in the deal Wise Excel Sheet during the search operation after holding that there is nothing on the record to suggest that the assessee was doing the said transaction at his own without appreciation that onus lies on the assessee to produce cogent material before the AO u/s 292C and the assessee also failed to produce anything before Ld. CIT(A) that the cash payments were accounted and were part of books of account." 3. "On the facts and in the circumstances of the case and in Law, the Ld. CIT(A) er made u/s 153Ar.w.s. 143(3) of the IT. Act, 1961 on the account of unaccounted cash receipts, cash/unaccounted transaction after holding that there is nothing on the record to suggest that the assessee was doing the said transac Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & Being common issues involved in these both appeals heard together and disposed off by way of this consolidated order for convenience and avoid repetition of facts. First, We take up the appeal of the Revenue for assessment 09. The grounds raised by the Revenue are reproduced "On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition made by AO on the account of unaccounted deposits in the bank account of the assessee on substantive basis in the hands of the assessee, ignoring that the claim of assessee that the account is related to Late Shri Sunil Gulati HUF is an afterthought as the assessee failed to produce any evidence to show that the account pertained to HUF and account was in personal name of the assessee only." "On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in deleting the addition made us 153A r.w.s. 143(3) of the Income Tax Act, 1961 on the account of noting of the cash payments made in the deal Wise Excel Sheets (DWES) found during the search operation after holding that there is nothing on the record to suggest that the assessee was doing the said transaction at his own without appreciation that onus lies on the assessee to produce cogent material before the AO to rebut the presumption u/s 292C and the assessee also failed to produce anything before Ld. CIT(A) that the cash payments were accounted and were part of books of account." "On the facts and in the circumstances of the case and in Law, the Ld. CIT(A) erred in deleting the addition made u/s 153Ar.w.s. 143(3) of the IT. Act, 1961 on the account of unaccounted cash receipts, cash/unaccounted transaction after holding that there is nothing on the record to suggest that the assessee was doing the said transaction at his own without Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 2 in these both appeals, same were heard together and disposed off by way of this consolidated order First, We take up the appeal of the Revenue for assessment e are reproduced "On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition made by AO on the account of unaccounted deposits in the bank account of the assessee on substantive basis in assessee, ignoring that the claim of assessee that the account is related to Late Shri Sunil Gulati HUF is an afterthought as the assessee failed to produce any evidence to show that the account pertained to HUF and account was in personal name "On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in deleting the addition made us 153A r.w.s. 143(3) of the Income Tax Act, 1961 on the account of noting of the cash payments s (DWES) found during the search operation after holding that there is nothing on the record to suggest that the assessee was doing the said transaction at his own without appreciation that onus lies on the assessee to produce to rebut the presumption u/s 292C and the assessee also failed to produce anything before Ld. CIT(A) that the cash payments were accounted and were part of books of account." "On the facts and in the circumstances of the case and red in deleting the addition made u/s 153Ar.w.s. 143(3) of the IT. Act, 1961 on the account of unaccounted cash receipts, cash/unaccounted transaction after holding that there is nothing on the record to suggest that the assessee tion at his own without appreciating that onus lies on the assessee to produce cogent material before the AO to rebut the presumption us 292C and the assessee also failed to produce anything before Ld. CIT(A) that the cash payments were accounted and were 4. On the facts and in the circumstances the Id CIT(A) erred in deleting the additions made u/s 40A(3) of the IT. Act without appreciating the facts that no details for incurring of the expenditure in cash exceeding Rs. 20,000/ 3. Briefly stated facts of the case are that during the relevant year the deceased assessee ha the purchase and sale of the land which were bought from villagers/farmers then sold to prospec search and seizure action u/s 132 of the Income short ‘the Act’) was conducted in the case of Shri Madan S. Kolambekar who used to purchase land from the assessee. Subsequently, search was also conducted at the premises of the assessee on 18.02.2009. Consequent to the search and seizure action notice u/s 153A of the Act was issued and served upon the assessee. In response the assessee filed return of income for the year under consi 26.02.2010 declaring income at Rs.4,50,960/ 153A r.w.s. 143(3) was completed determining total income at Rs.12,95,49,967/- after making various additions to the total income declared by the assessee. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & appreciating that onus lies on the assessee to produce cogent material before the AO to rebut the presumption us 292C and the assessee also failed to produce anything before Ld. CIT(A) that the cash payments were accounted and were part of books of account." On the facts and in the circumstances the Id CIT(A) erred in deleting the additions made u/s 40A(3) of the IT. Act without appreciating the facts that no details for incurring of the expenditure in cash exceeding Rs. 20,000/- was submitted by the assessee. Briefly stated facts of the case are that during the relevant year the deceased assessee had acted as real estate agent engaed in the purchase and sale of the land which were bought from villagers/farmers then sold to prospected real estate developers. A search and seizure action u/s 132 of the Income-tax Act, 1961 (in short ‘the Act’) was conducted in the case of Shri Madan S. Kolambekar who used to purchase land from the assessee. Subsequently, search was also conducted u/s 132 of the Act conducted at the premises of the assessee on 18.02.2009. Consequent to the search and seizure action notice u/s 153A of the Act was issued and served upon the assessee. In response the assessee filed return of income for the year under consi 26.02.2010 declaring income at Rs.4,50,960/-. The assessment u/s 153A r.w.s. 143(3) was completed determining total income at after making various additions to the total income declared by the assessee. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 3 appreciating that onus lies on the assessee to produce cogent material before the AO to rebut the presumption us 292C and the assessee also failed to produce anything before Ld. CIT(A) that the cash payments part of books of account." On the facts and in the circumstances the Id CIT(A) erred in deleting the additions made u/s 40A(3) of the IT. Act without appreciating the facts that no details for incurring of the expenditure in cash exceeding Rs. Briefly stated facts of the case are that during the relevant as real estate agent engaed in the purchase and sale of the land which were bought from ted real estate developers. A tax Act, 1961 (in short ‘the Act’) was conducted in the case of Shri Madan S. Kolambekar who used to purchase land from the assessee. 132 of the Act conducted at the premises of the assessee on 18.02.2009. Consequent to the search and seizure action notice u/s 153A of the Act was issued and served upon the assessee. In response the assessee filed return of income for the year under consideration on . The assessment u/s 153A r.w.s. 143(3) was completed determining total income at after making various additions to the total 4. On further appeal, assessee. Against relief allowed Tribunal raising grounds as reproduced above. 5. The ground No. 1 relates to the addition deleted by the Ld. CIT(A) in respect of deposits in t Sunil Gulati (HUF). 6. The brief fact qua the issue Officer made addition of Rs.54,87,381/ three bank account namely Cosmo Co 029204301220192, Tamilnad Mercantile Bank A/c No. 117150050800335, A/c No. 117750050800336 and A/c No. 117700480100052. The assessee contended that th were related to Shri Sunil Gulati (HUF) and not to the assessee. The Assessing Officer held those acco and the deposits thereon were held as belonging to the assessee. The Ld. CIT(A) however after verification found that those accounts belongs to Shri Sunil Gulati HUF and therefore, no addition could have been made in the h observation of the Ld. CIT(A) is reproduced as under: “During the course of appellate has submitted a letter from the bank pertaining to Cosmos Bank, Vashi Branch having account From the letter, it is learnt that the account pertains to M s. SadguruArts( Prop. Sunil Gulati HUF). The appellant has also submitted statement of bank account pertaining to Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & On further appeal, the Ld. CIT(A) allowed part relief to the assessee. Against relief allowed, the Revenue is in appeal Tribunal raising grounds as reproduced above. The ground No. 1 relates to the addition deleted by the Ld. CIT(A) in respect of deposits in the bank accounts The brief fact qua the issue-in-dispute are that the Assessing Officer made addition of Rs.54,87,381/- in respect of deposits in three bank account namely Cosmo Co-operative Bank Ltd. A/no. 220192, Tamilnad Mercantile Bank A/c No. 117150050800335, A/c No. 117750050800336 and A/c No. 117700480100052. The assessee contended that th were related to Shri Sunil Gulati (HUF) and not to the assessee. The Assessing Officer held those accounts as belonging to the assessee and the deposits thereon were held as belonging to the assessee. The Ld. CIT(A) however after verification found that those accounts belongs to Shri Sunil Gulati HUF and therefore, no addition could have been made in the hands of the assessee. The relevant observation of the Ld. CIT(A) is reproduced as under: During the course of appellate procedings, the appellant has submitted a letter from the bank pertaining to Cosmos Bank, Vashi Branch having account no 029204301220192. From the letter, it is learnt that the account pertains to M s. SadguruArts( Prop. Sunil Gulati HUF). The appellant has also submitted statement of bank account pertaining to Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 4 the Ld. CIT(A) allowed part relief to the in appeal before the The ground No. 1 relates to the addition deleted by the Ld. he bank accounts related to Shri dispute are that the Assessing in respect of deposits in operative Bank Ltd. A/no. 220192, Tamilnad Mercantile Bank A/c No. 117150050800335, A/c No. 117750050800336 and A/c No. 117700480100052. The assessee contended that those accounts were related to Shri Sunil Gulati (HUF) and not to the assessee. The unts as belonging to the assessee and the deposits thereon were held as belonging to the assessee. The Ld. CIT(A) however after verification found that those accounts belongs to Shri Sunil Gulati HUF and therefore, no addition could ands of the assessee. The relevant observation of the Ld. CIT(A) is reproduced as under: procedings, the appellant has submitted a letter from the bank pertaining to Cosmos no 029204301220192. From the letter, it is learnt that the account pertains to M s. SadguruArts( Prop. Sunil Gulati HUF). The appellant has also submitted statement of bank account pertaining to Tamilnad Mercantile Bank Alc. No. 117150050800335 from which it is evident that thisaccount also pertains to MIs SadguruArts( Prop. Sunil Gulati HUF) Since the appellant has furnished the necessary evidence, addition made on this account is deleted. As far as the deposit of Rs.97.406/ bank account pertaining to the bank Tamilnad Mercantile Bank Alc. No. 117700480100052, the appellant has stated that the same has been shown in the books of accounts. Since the appellant has substantiated his claim by furnishing necessary evidence during the appell proceedings, the addition of Rs.54,87,371/ 7. The Ld. CIT(A) has followed binding precedent of the Tribunal in assessee’s own case for assessment year 2003 The relevant finding of the Ld. CIT(A) is reproduced as under: “Further, on similar ground in the appellant's own case for A.Y 2003-04 to A.Y. & 4795//Mum/2015 the HonblelTAT vide order dated 19.08.2016 held that "there is no clarity with regard to partition of HUF, so AO was directed counterpart having jurisdiction over the case of Late Shri Sunil. D Gulati (HUF) to initiate necessary action for assessing the said amount of unexplained bank deposits of Rs. 63.15 lakhs in the hand of said HUF by resorting to the provisions of section 148 r.w.s 150 of the Act. Therefore, the substantive addition on account of unexplained bank deposits of Rs. 63.51 lakhs made by the AO in the hands of deceased assessee is deleted". Thus, the ITAT held that the account held by Sunil D. Gula account belongs to Sunil D Gulati(HUF) and deleted the addition.” 8. We have heard rival submission of the parties on the issue dispute and perused the relevant material on record. We find that the Ld. CIT(A) has Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & Tamilnad Mercantile Bank Alc. No. 117150050800335 from it is evident that thisaccount also pertains to MIs SadguruArts( Prop. Sunil Gulati HUF) Since the appellant has furnished the necessary evidence, addition made on this account is deleted. As far as the deposit of Rs.97.406/- is concerned in the unt pertaining to the bank Tamilnad Mercantile Bank Alc. No. 117700480100052, the appellant has stated that the same has been shown in the books of accounts. Since the appellant has substantiated his claim by furnishing necessary evidence during the appell proceedings, the addition of Rs.54,87,371/- is deleted. The Ld. CIT(A) has followed binding precedent of the Tribunal in assessee’s own case for assessment year 2003- The relevant finding of the Ld. CIT(A) is reproduced as under: ther, on similar ground in the appellant's own case for 04 to A.Y. 2007-08 in ITA No. 3496 to 3498, 4794 & 4795//Mum/2015 the HonblelTAT vide order dated 19.08.2016 held that "there is no clarity with regard to partition of HUF, so AO was directed to intimate his counterpart having jurisdiction over the case of Late Shri Sunil. D Gulati (HUF) to initiate necessary action for assessing the said amount of unexplained bank deposits of Rs. 63.15 lakhs in the hand of said HUF by resorting to the ons of section 148 r.w.s 150 of the Act. Therefore, the substantive addition on account of unexplained bank deposits of Rs. 63.51 lakhs made by the AO in the hands of deceased assessee is deleted". Thus, the ITAT held that the account held by Sunil D. Gulati cannot be made once the account belongs to Sunil D Gulati(HUF) and deleted the We have heard rival submission of the parties on the issue dispute and perused the relevant material on record. We find that has duly verified the facts and also followed the Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 5 Tamilnad Mercantile Bank Alc. No. 117150050800335 from it is evident that thisaccount also pertains to MIs SadguruArts( Prop. Sunil Gulati HUF) Since the appellant has furnished the necessary evidence, addition made on is concerned in the unt pertaining to the bank Tamilnad Mercantile Bank Alc. No. 117700480100052, the appellant has stated that the same has been shown in the books of accounts. Since the appellant has substantiated his claim by furnishing necessary evidence during the appellate is deleted.” The Ld. CIT(A) has followed binding precedent of the Tribunal -04 to 2007-08. The relevant finding of the Ld. CIT(A) is reproduced as under: ther, on similar ground in the appellant's own case for 08 in ITA No. 3496 to 3498, 4794 & 4795//Mum/2015 the HonblelTAT vide order dated 19.08.2016 held that "there is no clarity with regard to to intimate his counterpart having jurisdiction over the case of Late Shri Sunil. D Gulati (HUF) to initiate necessary action for assessing the said amount of unexplained bank deposits of Rs. 63.15 lakhs in the hand of said HUF by resorting to the ons of section 148 r.w.s 150 of the Act. Therefore, the substantive addition on account of unexplained bank deposits of Rs. 63.51 lakhs made by the AO in the hands of deceased assessee is deleted". Thus, the ITAT held that the ti cannot be made once the account belongs to Sunil D Gulati(HUF) and deleted the We have heard rival submission of the parties on the issue-in- dispute and perused the relevant material on record. We find that the facts and also followed the decision of the Tribunal in the assessee’s own case. We do not find any error in the order of the Ld. CIT(A) in deleting the addition following the finding of the Tribunal (supra). Accordingly, the ground No. 1 of the appea 9. The ground No. 2 of the appeal of the Revenue relates to deletion of cash payment appearing in the (DWES) found during the course of search operation. The brief facts qua the issue-in-dispute are th addition of Rs.34,92,500/ from the possession of the assessee. According to the Assessing Officer, the cash payments reflected in the said sheet is not appearing in the books of account. 69C of the Act amounting to Rs.54,92,100/ the assessee submitted that plots were purchased on behalf of the subsequent buyers and therefore, all the payments appearing in the said DEES were related to was only deal maker and therefore all those payments belonging to the relevant parties. 10. The Ld. CIT(A) following the finding of the Tribunal in assessee’s own case for assessment year 2003 year 2007-08 deleted the addition observing as under: “During the appellate proceeding, the representative of the Appellant has stated that appellant was only coordinator between the purchasers and sellers and used to keep the Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & decision of the Tribunal in the assessee’s own case. We do not find any error in the order of the Ld. CIT(A) in deleting the addition following the finding of the Tribunal (supra). Accordingly, the ground No. 1 of the appeal of the Revenue is dismissed. The ground No. 2 of the appeal of the Revenue relates to deletion of cash payment appearing in the deal wise excel sheets (DWES) found during the course of search operation. The brief facts dispute are that the Assessing Officer made addition of Rs.34,92,500/- on the basis of DWES statement seized from the possession of the assessee. According to the Assessing Officer, the cash payments reflected in the said sheet is not appearing in the books of account. Therefore, he made addition u/s 69C of the Act amounting to Rs.54,92,100/-. Before the Ld. CIT(A) the assessee submitted that plots were purchased on behalf of the subsequent buyers and therefore, all the payments appearing in the said DEES were related to buyers and sellers and assessee’s role was only deal maker and therefore all those payments belonging to The Ld. CIT(A) following the finding of the Tribunal in assessee’s own case for assessment year 2003-04 to assessment 08 deleted the addition observing as under: During the appellate proceeding, the representative of the Appellant has stated that appellant was only coordinator between the purchasers and sellers and used to keep the Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 6 decision of the Tribunal in the assessee’s own case. We do not find any error in the order of the Ld. CIT(A) in deleting the addition following the finding of the Tribunal (supra). Accordingly, the l of the Revenue is dismissed. The ground No. 2 of the appeal of the Revenue relates to deal wise excel sheets (DWES) found during the course of search operation. The brief facts at the Assessing Officer made on the basis of DWES statement seized from the possession of the assessee. According to the Assessing Officer, the cash payments reflected in the said sheet is not Therefore, he made addition u/s . Before the Ld. CIT(A) the assessee submitted that plots were purchased on behalf of the subsequent buyers and therefore, all the payments appearing in the buyers and sellers and assessee’s role was only deal maker and therefore all those payments belonging to The Ld. CIT(A) following the finding of the Tribunal in 04 to assessment 08 deleted the addition observing as under: During the appellate proceeding, the representative of the Appellant has stated that appellant was only coordinator between the purchasers and sellers and used to keep the record of the receipts and payment by/through him. The receipts and payments made in cash, mentioned in the DWES were not the payments made by the Appellant; but were paid by the buyers themselves through the appellant and paid to the farmers. The payments made by way o were accounted for in accounts. The AR has stated that hewas merely a real estate agent and a deal maker and hence most of the transaction happened either in cheques / cash does not belong to him but belongs to the prospective developers / investors such as BhawarlalChhajer, RakeshSurve Vinay Gosavi, SumeelBacchewar and others. Further, on similar ground in the appellant's own case for A.Y. 2003-04 to A.Y. 4794 & 4795//Mum/2015the Honble|TAT vide dated 19.08.2016 held that "the assesseeis doing agency work on behalf of other parties. There is nothing on record to suggest that the assessee was doing the said transaction at his own. AsessingOfficer has not brought on record to suggest that abo in his name. It could have been corroborated by Assessing Officer with real instances of transaction which has not been done by him. In such situation, assessee cannot be taxed on the basis of on money transaction addition in hand of the assessee is not justified. directed to be deleled" Addition in respect of DWES, cash payment to various parties and other cash transactions has been deleted. Therefore, the alternative disallowance us.40A(3 deleted.” 11. We have heard rival submission of the parties on the issue dispute and perused the relevant material on record. We find that the Ld. CIT(A) has deleted the addition following the binding precedent of the Tribunal (supra) and ther Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & record of the receipts and payments for each deal made by/through him. The receipts and payments made in cash, mentioned in the DWES were not the payments made by the Appellant; but were paid by the buyers themselves through the appellant and paid to the farmers. The payments made by way of cheques routed through him were accounted for in accounts. The AR has stated that hewas merely a real estate agent and a deal maker and hence most of the transaction happened either in cheques / cash does not belong to him but belongs to the prospective developers / investors such as BhawarlalChhajer, RakeshSurve Vinay Gosavi, SumeelBacchewar and others. Further, on similar ground in the appellant's own case for 04 to A.Y. 2007-08 in ITA No. 3496 to 3498, 4794 & 4795//Mum/2015the Honble|TAT vide dated 19.08.2016 held that "the assesseeis doing agency work on behalf of other parties. There is nothing on record to suggest that the assessee was doing the said transaction at his own. AsessingOfficer has not brought on record to suggest that above land transaction were done by assessee in his name. It could have been corroborated by Assessing Officer with real instances of transaction which has not been done by him. In such situation, assessee cannot be taxed on the basis of on money transaction of its client. So addition in hand of the assessee is not justified. directed to be deleled" Addition in respect of DWES, cash payment to various parties and other cash transactions has been deleted. Therefore, the alternative disallowance us.40A(3 We have heard rival submission of the parties on the issue dispute and perused the relevant material on record. We find that the Ld. CIT(A) has deleted the addition following the binding precedent of the Tribunal (supra) and therefore, we do not find any Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 7 s for each deal made by/through him. The receipts and payments made in cash, mentioned in the DWES were not the payments made by the Appellant; but were paid by the buyers themselves through the appellant and paid to the farmers. The f cheques routed through him were accounted for in accounts. The AR has stated that hewas merely a real estate agent and a deal maker and hence most of the transaction happened either in cheques / cash does not belong to him but belongs to the prospective developers / investors such as BhawarlalChhajer, RakeshSurve Vinay Gosavi, SumeelBacchewar and others. Further, on similar ground in the appellant's own case for 08 in ITA No. 3496 to 3498, 4794 & 4795//Mum/2015the Honble|TAT vide order dated 19.08.2016 held that "the assesseeis doing agency work on behalf of other parties. There is nothing on record to suggest that the assessee was doing the said transaction at his own. AsessingOfficer has not brought on record to ve land transaction were done by assessee in his name. It could have been corroborated by Assessing Officer with real instances of transaction which has not been done by him. In such situation, assessee cannot be of its client. So addition in hand of the assessee is not justified. Same is Addition in respect of DWES, cash payment to various parties and other cash transactions has been deleted. Therefore, the alternative disallowance us.40A(3) is also We have heard rival submission of the parties on the issue-in- dispute and perused the relevant material on record. We find that the Ld. CIT(A) has deleted the addition following the binding efore, we do not find any error in the order of the Ld. CIT(A) on the issue Accordingly, the ground raised by the Revenue is dismissed. 12. The ground No. 3 of the appeal of the Revenue relates to addition deleted by the Ld. CIT(A) in respect o unaccounted cash receipt, unaccounted cash transaction. The brief facts qua the issue-in addition of Rs.3,61,91,000/ pages of Annexure A1 impounded from Arneja 25 of Annexure A2 impounded from Kaveri Bldg show details of payemtn in cash and cheques to various farmers/brokers in respect of various properties/plot. 13. Before the Ld. CIT(A) the assessee claimed that assessee only deal maker between the purchase after considering the submission of the assessee, relying on the order of the Tribunal in assessee’s 2003-04 to 2007-08 deleted the addition observing as under: “Further, from the paper book, it is seen that only Rs. 13 lakhs pertaining to ShriRakeshSurve appears to be a duplicate entry. Hence, the duplicate addition made to extent of Rs. 13 lakhs is deleted. In point no. (fil) above the amount of Rs. 5 lakhs isalready been made appellant has substantiated his claim by furnishing necessary evidence during the appellate proceedi addition of5 lakhs is deleted. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & error in the order of the Ld. CIT(A) on the issue Accordingly, the ground raised by the Revenue is dismissed. The ground No. 3 of the appeal of the Revenue relates to addition deleted by the Ld. CIT(A) in respect o unaccounted cash receipt, unaccounted cash transaction. The brief in-dispute are that the Assessing Officer made addition of Rs.3,61,91,000/- on the basis of the noting in various pages of Annexure A1 impounded from Arneja office & Page No. 11, impounded from Kaveri Bldg show details of payemtn in cash and cheques to various farmers/brokers in respect of various properties/plot. Before the Ld. CIT(A) the assessee claimed that assessee only deal maker between the purchaser and seller. The Ld. CIT(A) after considering the submission of the assessee, relying on the order of the Tribunal in assessee’s own case for assessment year 08 deleted the addition observing as under: Further, from the paper book, it is seen that only Rs. 13 lakhs pertaining to ShriRakeshSurve appears to be a duplicate entry. Hence, the duplicate addition made to extent of Rs. 13 lakhs is deleted. In point no. (fil) above the amount of Rs. 5 lakhs isalready at Ground no. 5(x) for A.Y. 2009-10.Since the appellant has substantiated his claim by furnishing necessary evidence during the appellate proceedi addition of5 lakhs is deleted. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 8 error in the order of the Ld. CIT(A) on the issue-in-dispute. Accordingly, the ground raised by the Revenue is dismissed. The ground No. 3 of the appeal of the Revenue relates to addition deleted by the Ld. CIT(A) in respect of account of unaccounted cash receipt, unaccounted cash transaction. The brief that the Assessing Officer made on the basis of the noting in various office & Page No. 11, impounded from Kaveri Bldg showing date-wise details of payemtn in cash and cheques to various farmers/brokers Before the Ld. CIT(A) the assessee claimed that assessee was and seller. The Ld. CIT(A) after considering the submission of the assessee, relying on the own case for assessment year 08 deleted the addition observing as under: Further, from the paper book, it is seen that only Rs. 13 lakhs pertaining to ShriRakeshSurve appears to be a duplicate entry. Hence, the duplicate addition made to the In point no. (fil) above the amount of Rs. 5 lakhs isalready 10.Since the appellant has substantiated his claim by furnishing necessary evidence during the appellate proceedings, the In point no. (v) above, the amounts. 1 lakh is already been made at Ground no 5(v) of the appeal for A.Y. 2009 Since the appellant has substantiated his claim by furnishing necessary evidence during the appellate proceedings, the addition of 1 lakhs is deleted. In point no. (x) above, the addition of Rs.1,35,00,000/ Rs.29,20,000/ (xi) of the appeal for A.Y. 2009 substantiated his claim by furn during the appellate proceedings, the addition ofRs. 1,35,00,000/ On similar grounds in the appellant's own case for A.Y.2003-04 to A.Y. 2007 4794 & 4795//Mum/2015 the Hon dated 19.08.2016held that the Revenue has not brought on record actual transaction done by the assessee himself. As deceased assessee's consistent stand has been accepted by us that he was only a Real Estate agent or broker or deal maker and hence he used to block the plots by giving some advances to the plot owner investors only. Revenue authorities had not brought anything on record to suggest that assessee himself purchased property in question from the farmer situation assessee was entitled for brokerage only. In view of the adove addition in question is not justified and directed the AO to delete the additions 14. We have heard rival submission of the parties on the issue dispute and perused the Ld. CIT(A) following the binding precedent dispute in the assessee’s own case and therefore, we do not find any infirmity in the order of the Ld. CIT(A) on the issue accordingly, we uphold the same. accordingly dismissed. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & In point no. (v) above, the amounts. 1 lakh is already been made at Ground no 5(v) of the appeal for A.Y. 2009 Since the appellant has substantiated his claim by furnishing necessary evidence during the appellate proceedings, the addition of 1 lakhs is deleted. In point no. (x) above, the addition of Rs.1,35,00,000/ Rs.29,20,000/- is already been made at Ground no (x) & (xi) of the appeal for A.Y. 2009-10. Since the appellaht has substantiated his claim by furnishing necessary evidence during the appellate proceedings, the addition ofRs. 1,35,00,000/- & Rs.29,20,000/- is deleted On similar grounds in the appellant's own case for 04 to A.Y. 2007-08. in ITA No. 3496 to 3498, 4794 & 4795//Mum/2015 the Honble ITAT vide order dated 19.08.2016held that the Revenue has not brought on record actual transaction done by the assessee himself. As deceased assessee's consistent stand has been accepted by us that he was only a Real Estate agent or broker or r and hence he used to block the plots by giving some advances to the plot owner-cum farmers on behalf of investors only. Revenue authorities had not brought anything on record to suggest that assessee himself purchased property in question from the farmers. In such a situation assessee was entitled for brokerage only. In view of the adove addition in question is not justified and directed the AO to delete the additions.” We have heard rival submission of the parties on the issue dispute and perused the relevant material on record. We find that the Ld. CIT(A) following the binding precedent on dispute in the assessee’s own case and therefore, we do not find any infirmity in the order of the Ld. CIT(A) on the issue we uphold the same. The ground No.3 of the appeal is accordingly dismissed. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 9 In point no. (v) above, the amounts. 1 lakh is already been made at Ground no 5(v) of the appeal for A.Y. 2009-10. Since the appellant has substantiated his claim by furnishing necessary evidence during the appellate In point no. (x) above, the addition of Rs.1,35,00,000/- & is already been made at Ground no (x) & 10. Since the appellaht has ishing necessary evidence during the appellate proceedings, the addition ofRs. On similar grounds in the appellant's own case for 08. in ITA No. 3496 to 3498, ble ITAT vide order dated 19.08.2016held that the Revenue has not brought on record actual transaction done by the assessee himself. As deceased assessee's consistent stand has been accepted by us that he was only a Real Estate agent or broker or r and hence he used to block the plots by giving cum farmers on behalf of investors only. Revenue authorities had not brought anything on record to suggest that assessee himself s. In such a situation assessee was entitled for brokerage only. In view of the adove addition in question is not justified and We have heard rival submission of the parties on the issue-in- the relevant material on record. We find that on the issue-in- dispute in the assessee’s own case and therefore, we do not find any infirmity in the order of the Ld. CIT(A) on the issue-in-dispute and The ground No.3 of the appeal is 15. The ground No. 4 of the appeal of the Revenue relates to deletion of the addition made by the Assessing Officer u/s 40A(3) of the Act for incurring expenses exceeding Rs.2 the Ld. CIT(A) has deleted this alternative disallowance made by the AO u/s 40A(3) of the Act mainly on the ground that addition in respect of the cash payment of parties has already been deleted by him. Since, we have already uph deleting the addition made in respect of cash transaction and therefore, no alternative addition in respect of payment exceeding Rs.20,000/- in cash, the Revenue is accordingly di 16. Now we take up the appeal of the Revenue for assessment year 2009-10. The grounds raised by the Revenue are reproduced as under: 1. On the facts and circumstances of the case and in law, the Ld.c CIT(A) erred in deleting unaccounted cash receipt 2,95,00,000/ relevant documents found/ seized during the course of search action. 2. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition made by AO on the account of ( unaccounted deposits in the bank account of the assessee onob substantive basis in the hands of the assessee, ignoring that the claim of assessee that the account is related to Late Shri Sunil Gulati HUF is an afterthought as th assessee failed to produce any evidence to show that the account pertained to HUF and account was in personal name of the assessee only." Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & The ground No. 4 of the appeal of the Revenue relates to deletion of the addition made by the Assessing Officer u/s 40A(3) of the Act for incurring expenses exceeding Rs.20,000/ the Ld. CIT(A) has deleted this alternative disallowance made by the AO u/s 40A(3) of the Act mainly on the ground that addition in respect of the cash payment of parties has already been deleted by him. Since, we have already upheld the finding of the Ld. CIT(A deleting the addition made in respect of cash transaction and therefore, no alternative addition in respect of payment exceeding , can survive. The ground No. 4 of the appeal of the Revenue is accordingly dismissed. Now we take up the appeal of the Revenue for assessment year 10. The grounds raised by the Revenue are reproduced as On the facts and circumstances of the case and in law, the Ld.c CIT(A) erred in deleting unaccounted cash receipt from Shri Madan Kolambekar of Rs. 2,95,00,000/- without properly appreciating the relevant documents found/ seized during the course of search action. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition e by AO on the account of ( unaccounted deposits in the bank account of the assessee onob substantive basis in the hands of the assessee, ignoring that the claim of assessee that the account is related to Late Shri Sunil Gulati HUF is an afterthought as th assessee failed to produce any evidence to show that the account pertained to HUF and account was in personal name of the assessee only." Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 10 The ground No. 4 of the appeal of the Revenue relates to deletion of the addition made by the Assessing Officer u/s 40A(3) of 0,000/-. We find that the Ld. CIT(A) has deleted this alternative disallowance made by the AO u/s 40A(3) of the Act mainly on the ground that addition in respect of the cash payment of parties has already been deleted by the finding of the Ld. CIT(A) deleting the addition made in respect of cash transaction and therefore, no alternative addition in respect of payment exceeding . The ground No. 4 of the appeal of Now we take up the appeal of the Revenue for assessment year 10. The grounds raised by the Revenue are reproduced as On the facts and circumstances of the case and in law, the Ld.c CIT(A) erred in deleting unaccounted from Shri Madan Kolambekar of Rs. without properly appreciating the relevant documents found/ seized during the course On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition e by AO on the account of ( unaccounted deposits in the bank account of the assessee onob substantive basis in the hands of the assessee, ignoring that the claim of assessee that the account is related to Late Shri Sunil Gulati HUF is an afterthought as the assessee failed to produce any evidence to show that the account pertained to HUF and account was in 3. On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in deleting the addition made u/ 1961 on the account of noting of the cash payments made in the deal Wise Excel Sheets (DWES) found during the search operation after holding that there is nothing on the record to suggest that the assessee was do appreciation that onus lies on the assessee to produce cogent material before the AO to rebut the presumption us 292C and the assessee also failed to produce evidence before Ld. CIT(A) that the cash payments were account." 4. On the facts and in the circumstances of the case and in Law, the La. CIT(A) erred in deleting the addition made us 153A r.w.s 143(3) of the IT. Act, 1961 on the account of unaccounted cash receipts after hold that there is nothing on the record to suggest that the assessee was doing the said transaction at his own without appreciating that onus lies on the assessee to produce cogent material before the AO to rebut the presumption u/s 292C and the assessee a to produce evidence before Ld. CITIA) that the cash payments were accounted and were part of books of account." 5. On the facts and in the circumstances of the case and in Law, the Ld. CIT(A) erred in deleting the addition made by the AO on account for plot 22, Airoli holding that Rs. 20,34,625/ consideration received against the figure of Rs 1,24, 18,570/ produce evidence before Ld. CIT(A) that the consideration received for and were part of books of account." 6. On the facts and in the circumstances the ld CIT(A) erred in the 1.7. 16 red in g details for incurring of the ex exceeding Rs. assessee Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in deleting the addition made u/s 153A r.w.s. 143(3) of the Income Tax Act, 1961 on the account of noting of the cash payments made in the deal Wise Excel Sheets (DWES) found during the search operation after holding that there is nothing on the record to suggest that the assessee was doing the said transaction at his own without appreciation that onus lies on the assessee to produce cogent material before the AO to rebut the presumption us 292C and the assessee also failed to produce evidence before Ld. CIT(A) that the cash payments were accounted and were part of books of account." On the facts and in the circumstances of the case and in Law, the La. CIT(A) erred in deleting the addition made us 153A r.w.s 143(3) of the IT. Act, 1961 on the account of unaccounted cash receipts after hold that there is nothing on the record to suggest that the assessee was doing the said transaction at his own without appreciating that onus lies on the assessee to produce cogent material before the AO to rebut the presumption u/s 292C and the assessee a to produce evidence before Ld. CITIA) that the cash payments were accounted and were part of books of account." On the facts and in the circumstances of the case and in Law, the Ld. CIT(A) erred in deleting the addition made by the AO on account of consideration received for plot 22, Airoli holding that Rs. 20,34,625/ consideration received against the figure of Rs 1,24, 18,570/- ignoring that the assessee has failed to produce evidence before Ld. CIT(A) that the consideration received for plot 22 were accounted and were part of books of account." On the facts and in the circumstances the ld CIT(A) erred in appreciating additions made W/S 10119) of the 1.7. 16 red in g- 9 appreciating the fact that no details for incurring of the expenditure in cash exceeding Rs.20,000/- was submitted by the assessee Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 11 On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in deleting the addition s 153A r.w.s. 143(3) of the Income Tax Act, 1961 on the account of noting of the cash payments made in the deal Wise Excel Sheets (DWES) found during the search operation after holding that there is nothing on the record to suggest that the assessee ing the said transaction at his own without appreciation that onus lies on the assessee to produce cogent material before the AO to rebut the presumption us 292C and the assessee also failed to produce evidence before Ld. CIT(A) that the cash accounted and were part of books of On the facts and in the circumstances of the case and in Law, the La. CIT(A) erred in deleting the addition made us 153A r.w.s 143(3) of the IT. Act, 1961 on the account of unaccounted cash receipts after holding that there is nothing on the record to suggest that the assessee was doing the said transaction at his own without appreciating that onus lies on the assessee to produce cogent material before the AO to rebut the presumption u/s 292C and the assessee also failed to produce evidence before Ld. CITIA) that the cash payments were accounted and were part of books of On the facts and in the circumstances of the case and in Law, the Ld. CIT(A) erred in deleting the addition of consideration received for plot 22, Airoli holding that Rs. 20,34,625/- being consideration received against the figure of Rs 1,24, ignoring that the assessee has failed to produce evidence before Ld. CIT(A) that the plot 22 were accounted On the facts and in the circumstances the ld CIT(A) appreciating additions made W/S 10119) of appreciating the fact that no penditure in cash was submitted by the 17. The ground No. 1 of the appeal relates to addition made by the Assessing Officer of Rs.3.5 crores in respect of Kolambekar. The Ld. CIT(A) noted that the development charg sheet i.e. 3 rd Annexure to the status report (page no. 221) Annexure A1 seized from the office of Shri Madan Kolambekar showed an amount of Rs.3.5 crores against the name of the assessee. The amount of Rs.2.71 crores had been paid through cheque and it w reflected in the bank account in Cosmos Co Sunil Gulati. Further, the assessee had entered into an understanding with admeasuring Approx. 10,000 sq. metre in Vadghar Node assessee could supply only two plots namely Plot No. 109 Sect Vadghar admeasuring 200 sq. mtr. and Plot No. 128, sector Vadghar admeasuing 400 sq. mtr. totaling to 600 sq. mtr. and the balance out of 10,000 sq. mtr. was not supplied to Madan Kolambekar. It was su Rs.55,00,000/- in cash from Madan Kolambekar and Rs.2,21,00,000/- through cheques only was received by the assessee in respect of land to be supplied to Kolambekar in Vadghar Node Area. Accordi sustained addition to the extent of Rs.55,00,000/ received from Shri Madan Kolambekar. 18. The Ld.Counsel of the assessee submitted that the assessee has already disclosed a sum of Rs.55,00,000/ Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & The ground No. 1 of the appeal relates to addition made by the Assessing Officer of Rs.3.5 crores in respect of Kolambekar. The Ld. CIT(A) noted that the development charg Annexure to the status report (page no. 221) Annexure A1 seized from the office of Shri Madan Kolambekar showed an amount of Rs.3.5 crores against the name of the assessee. The amount of Rs.2.71 crores had been paid through cheque and it w reflected in the bank account in Cosmos Co-op Bank Ltd. of Shri Sunil Gulati. Further, the assessee had entered into an Shri Madan Kolambekar for supply of land admeasuring Approx. 10,000 sq. metre in Vadghar Node supply only two plots namely Plot No. 109 Sect Vadghar admeasuring 200 sq. mtr. and Plot No. 128, sector Vadghar admeasuing 400 sq. mtr. totaling to 600 sq. mtr. and the balance out of 10,000 sq. mtr. was not supplied to Madan Kolambekar. It was submitted that the assessee in cash from Madan Kolambekar and through cheques. Thus only Rs.2,76,00,000/ only was received by the assessee in respect of land to be supplied to Kolambekar in Vadghar Node Area. According to the Ld. CIT(A) sustained addition to the extent of Rs.55,00,000/- in cash payment received from Shri Madan Kolambekar. The Ld.Counsel of the assessee submitted that the assessee has already disclosed a sum of Rs.55,00,000/- in the return of Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 12 The ground No. 1 of the appeal relates to addition made by the Assessing Officer of Rs.3.5 crores in respect of Shri Madan Kolambekar. The Ld. CIT(A) noted that the development charge Annexure to the status report (page no. 221) Annexure A1 seized from the office of Shri Madan Kolambekar showed an amount of Rs.3.5 crores against the name of the assessee. The amount of Rs.2.71 crores had been paid through cheque and it was op Bank Ltd. of Shri Sunil Gulati. Further, the assessee had entered into an Shri Madan Kolambekar for supply of land admeasuring Approx. 10,000 sq. metre in Vadghar Node. The supply only two plots namely Plot No. 109 Sector -2 Vadghar admeasuring 200 sq. mtr. and Plot No. 128, sector -5 Vadghar admeasuing 400 sq. mtr. totaling to 600 sq. mtr. and the balance out of 10,000 sq. mtr. was not supplied to Madan bmitted that the assessee received in cash from Madan Kolambekar and . Thus only Rs.2,76,00,000/- only was received by the assessee in respect of land to be supplied ng to the Ld. CIT(A) in cash payment The Ld.Counsel of the assessee submitted that the assessee in the return of income filed for the search period and therefore, the Tribunal in ITA No. 2092/M/2022 for assessment year 2009 issue for verification 19. We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. In our opinion, the addition for the cash transaction has already been sustained by the Ld. CIT(A) income and the balance amount has been verified from the books of account and therefore no further addition is justified. We do not find any error in the order of the Ld. CIT(A) on the issue and accordingly we uphold the same. 19A. The grounds No. 2 to 4 of the appeal of the Revenue are identical to the grounds raised in Therefore, respectfully following our finding, the grounds No. 2 to 4 of the appeal are decided already dismissed. 20. In ground No. 5, the Revenue has raised the issue of the addition of Rs.1,24,18,570/ Rs.20,34,625/- by the Ld. CIT(A). We find that this issue has raised by the assessee in its appeal in ITA No. 2092/M/2022 which has been adjudicated by the Tribunal on 02.02.2023. The relevant finding of the Tribunal is reproduced as under: Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & e filed for the search period and therefore, the Tribunal in ITA No. 2092/M/2022 for assessment year 2009-10 ha verification to the Assessing Officer. We have heard rival submission of the parties on the issue in rused the relevant material on record. In our opinion, the addition for the cash transaction has already been sustained by the Ld. CIT(A) subject to verification with return of and the balance amount has been verified from the books of herefore no further addition is justified. We do not find any error in the order of the Ld. CIT(A) on the issue and accordingly we uphold the same. No. 2 to 4 of the appeal of the Revenue are identical to the grounds raised in assessment year 2008 Therefore, respectfully following our finding, the grounds No. 2 to 4 of the appeal are decided mutatis mutandis. These grounds are In ground No. 5, the Revenue has raised the issue of the ,24,18,570/- which has been restricted to by the Ld. CIT(A). We find that this issue has raised by the assessee in its appeal in ITA No. 2092/M/2022 which has been adjudicated by the Tribunal on 02.02.2023. The relevant ribunal is reproduced as under: Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 13 e filed for the search period and therefore, the Tribunal in ITA has restored the We have heard rival submission of the parties on the issue in rused the relevant material on record. In our opinion, the addition for the cash transaction has already been subject to verification with return of and the balance amount has been verified from the books of herefore no further addition is justified. We do not find any error in the order of the Ld. CIT(A) on the issue-in-dispute No. 2 to 4 of the appeal of the Revenue are assessment year 2008-09. Therefore, respectfully following our finding, the grounds No. 2 to 4 . These grounds are In ground No. 5, the Revenue has raised the issue of the which has been restricted to by the Ld. CIT(A). We find that this issue has been raised by the assessee in its appeal in ITA No. 2092/M/2022 which has been adjudicated by the Tribunal on 02.02.2023. The relevant “41. The Ground No. 4 of the appeal relates to addition of ₹20,34,625/ addition of Assessing Officer in relation to plot No. 22, Sector Six, relying on page No. 49of Annexure 41.1 Regarding the addition, the Ld. CIT(A) has observed as under: “13.3 The facts of the case and findings of the AO recorded in the Assessment Order and the written submissions of the appellant have been considered. The AO observed that page no 49 of Annexure 2 seized from Kaveri Bldg showed allotment of certain properties to the assessee against part consideration of plot no.22 sector 6, Airoli. Total value of 4 flats in 'Muktai' on plot Koparkhairane is worked out at Rs.31,27.580/ flats in Raj Uday Society on plot 109, sec. 1, Sampada worked out at Rs.80,56,500/ Aptt on plot 83 & 84, Sec. 1, Sanpada worked out at Rs. 12,34,490/. Thus, t against part consideration of plot no.22, sector 6, Airoli was Rs.1,24,18,570/ on account of unaccounted/undisclosed income of the assessee. The appellant has stated that the addition as unexplained investment, based upon Page no. 49 of Annexure was the proposal made by the appellant to settle dispute for plot no.22 in sector materialized as they were not accepted by the builder. Hence, no addition could be made only on the basis of a proposal which never materialized. Further, the appellant has stated that if at all additions are to be made then addition of Rs.20,34,625/ the flat requested to be allotted to the appellant was only Rs.20.34.625/ It is seen rom page 49 af affickale R2 iTher the name of Shri Suni Guatappears at sr.no 4 of the project, MIs. Raj Uday Co-operative Housing Soc. Ltd bearing f Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & The Ground No. 4 of the appeal relates to addition of ₹20,34,625/- sustained by the Ld. CIT(A), against the addition of ₹1,24,18,570/-which was made by the Assessing Officer in relation to plot No. 22, Sector Six, relying on page No. 49of Annexure -2 from Kaveri building. Regarding the addition, the Ld. CIT(A) has observed 13.3 The facts of the case and findings of the AO recorded in the Assessment Order and the written submissions of the ellant have been considered. The AO observed that page no 49 of Annexure 2 seized from Kaveri Bldg showed allotment of certain properties to the assessee against part consideration of plot no.22 sector 6, Airoli. Total value of 4 flats in 'Muktai' on plot 6A, Sec.6, Koparkhairane is worked out at Rs.31,27.580/-; that of 4 flats in Raj Uday Society on plot 109, sec. 1, Sampada worked out at Rs.80,56,500/- and that of 1 flat in Sairaj Aptt on plot 83 & 84, Sec. 1, Sanpada worked out at Rs. 12,34,490/. Thus, the total value of all these properties against part consideration of plot no.22, sector 6, Airoli was Rs.1,24,18,570/-, The A made addition of Rs.1,24,18,570/ on account of unaccounted/undisclosed income of the The appellant has stated that the A.O. has made this addition as unexplained investment, based upon Page no. 49 of Annexure-2 seized from Kaveri Building.However, it was the proposal made by the appellant to settle dispute for plot no.22 in sector-6, Airoli and such proposals did not ialized as they were not accepted by the builder. Hence, no addition could be made only on the basis of a proposal which never materialized. Further, the appellant has stated that if at all additions are to be made then addition of Rs.20,34,625/- is to made since, the value of the flat requested to be allotted to the appellant was only Rs.20.34.625/- s seen rom page 49 af affickale R2 iTher the name of Shri Suni Guatappears at sr.no 4 of the project, MIs. Raj Uday operative Housing Soc. Ltd bearing flat 1001 amounting Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 14 The Ground No. 4 of the appeal relates to addition of sustained by the Ld. CIT(A), against the which was made by the Assessing Officer in relation to plot No. 22, Sector Six, Airoli 2 from Kaveri building. Regarding the addition, the Ld. CIT(A) has observed 13.3 The facts of the case and findings of the AO recorded in the Assessment Order and the written submissions of the The AO observed that page no 49 of Annexure 2 seized from Kaveri Bldg showed allotment of certain properties to the assessee against part consideration of plot no.22 sector 6, 6A, Sec.6, ; that of 4 flats in Raj Uday Society on plot 109, sec. 1, Sampada and that of 1 flat in Sairaj Aptt on plot 83 & 84, Sec. 1, Sanpada worked out at Rs. he total value of all these properties against part consideration of plot no.22, sector 6, Airoli was , The A made addition of Rs.1,24,18,570/- on account of unaccounted/undisclosed income of the A.O. has made this addition as unexplained investment, based upon Page no. 2 seized from Kaveri Building.However, it was the proposal made by the appellant to settle dispute for 6, Airoli and such proposals did not ialized as they were not accepted by the builder. Hence, no addition could be made only on the basis of a proposal which never materialized. Further, the appellant has stated that if at all additions are to be made then e since, the value of the flat requested to be allotted to the appellant was only s seen rom page 49 af affickale R2 iTher the name of Shri Suni Guatappears at sr.no 4 of the project, MIs. Raj Uday lat 1001 amounting to Rs.20,34,625/ the name of the appellant in this loose paper. Therefore, addition of Rs.20.34.625/ respect of the remaining addition of Rs.1,03,83,945/ AO has not made any further inquiry about whether such flais were acquired by the appellant or not. Therefore, the addition to the extent of Rs.1.03,83,945/ Accordingly, the ground no.8 of appeal is partly allowed. 42. Before us on behalf of the asse submitted as under: “The Appellant, in the course of his business activity, had struck an understanding for the development of a society plot at Plot No. 22 in sector Raj Co-op. Hsg. Society, around 20 y in the said proposed building flats were booked for others also i.e. for outsiders other than the members of the cooperative housing society. However, the said project did not take off for a long time. Hence, the society members approached another builder namely M/s. Raj Homes Udayvansh Builders & Developers, 425, Arenja Corner, Plot No. 71, Sector of the Society plot. That builder agreed to take over the Society plot for development but agre projects belonging to his group to persons for whom the Appellant had booked the flats.Since, the Appellant had earlier identified the members of the cooperative housing society and unified them togetherandconvinced them for the redevelopment of the Society plot, the Appellant, as a consideration for his efforts so far made by him, had requested for an allotment of one flat for himself, in the Raj Uday Cooperative Housing Society Building, from the said builder. It is only the sai contained in Page no.49 of Annexure Building However the builder M/s Raj Homes Udayvansh Builders & Developers had not agreed to give one flat requested for by the Appellant. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & to Rs.20,34,625/-. Thus, there was a specific reference of the name of the appellant in this loose paper. Therefore, addition of Rs.20.34.625/- is sustained. However, in respect of the remaining addition of Rs.1,03,83,945/ ot made any further inquiry about whether such flais were acquired by the appellant or not. Therefore, the addition to the extent of Rs.1.03,83,945/- is deleted. Accordingly, the ground no.8 of appeal is partly allowed. Before us on behalf of the assessee, it has been submitted as under: The Appellant, in the course of his business activity, had struck an understanding for the development of a society plot at Plot No. 22 in sector - 6 Airoli, belonging to Shri. Sai op. Hsg. Society, around 20 years ago. Accordingly in the said proposed building flats were booked for others also i.e. for outsiders other than the members of the cooperative housing society. However, the said project did not take off for a long time. Hence, the society members ached another builder namely M/s. Raj Homes Udayvansh Builders & Developers, 425, Arenja Corner, Plot No. 71, Sector-17, Vashi, Navi Mumbai, for the development of the Society plot. That builder agreed to take over the Society plot for development but agreed to allot flats in other projects belonging to his group to persons for whom the Appellant had booked the flats.Since, the Appellant had earlier identified the members of the cooperative housing society and unified them togetherandconvinced them for the redevelopment of the Society plot, the Appellant, as a consideration for his efforts so far made by him, had requested for an allotment of one flat for himself, in the Raj Uday Cooperative Housing Society Building, from the said It is only the said proposal of the Appellant's request that is contained in Page no.49 of Annexure-2, seized from Kaveri Building However the builder M/s Raj Homes Udayvansh Builders & Developers had not agreed to give one flat requested for by the Appellant. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 15 . Thus, there was a specific reference of the name of the appellant in this loose paper. Therefore, is sustained. However, in respect of the remaining addition of Rs.1,03,83,945/-, the ot made any further inquiry about whether such flais were acquired by the appellant or not. Therefore, the is deleted. Accordingly, the ground no.8 of appeal is partly allowed.” ssee, it has been The Appellant, in the course of his business activity, had struck an understanding for the development of a society 6 Airoli, belonging to Shri. Sai ears ago. Accordingly in the said proposed building flats were booked for others also i.e. for outsiders other than the members of the cooperative housing society. However, the said project did not take off for a long time. Hence, the society members ached another builder namely M/s. Raj Homes Udayvansh Builders & Developers, 425, Arenja Corner, Plot 17, Vashi, Navi Mumbai, for the development of the Society plot. That builder agreed to take over the ed to allot flats in other projects belonging to his group to persons for whom the Appellant had booked the flats.Since, the Appellant had earlier identified the members of the cooperative housing society and unified them togetherandconvinced them for the redevelopment of the Society plot, the Appellant, as a consideration for his efforts so far made by him, had requested for an allotment of one flat for himself, in the Raj Uday Cooperative Housing Society Building, from the said d proposal of the Appellant's request that is 2, seized from Kaveri Building However the builder M/s Raj Homes Udayvansh Builders & Developers had not agreed to give one flat Hence, the Ap builder, as MIs Raj Homes Udayvansh Builders & Developers has not allotted any flat to the Appellant. This fact can be verified from the said builder M/s Raj Homes Udavansh Builders & Developers himself or from the Housing Society concerned. NO addition can be made in the assessment on account of the alleged purchase of the said flat, ONLY on the basis of a proposal which never materialized. Hence. it is prayed that the addition confirmed in this regard to the exten 43. Before us the ld. Counsel of the assessee has also filed additional evidence that the allottees of said flat are different persons and not the assessee. The assessee has filed an information CIDCO, which is extracted as under: Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & Hence, the Appellant did not receive any flat from the builder, as MIs Raj Homes Udayvansh Builders & Developers has not allotted any flat to the Appellant. This fact can be verified from the said builder M/s Raj Homes Udavansh Builders & Developers himself or from the Housing Society concerned. NO addition can be made in the assessment on account of the alleged purchase of the said flat, ONLY on the basis of a proposal which never materialized. Hence. it is prayed that the addition confirmed in this regard to the extent of Rs. 20,34,625/- should be deleted. Before us the ld. Counsel of the assessee has also filed additional evidence that the allottees of said flat are different persons and not the assessee. The assessee has filed an information downloaded from the web-site of the CIDCO, which is extracted as under: Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 16 pellant did not receive any flat from the builder, as MIs Raj Homes Udayvansh Builders & Developers has not allotted any flat to the Appellant. This fact can be verified from the said builder M/s Raj Homes Udavansh Builders & Developers himself or from the NO addition can be made in the assessment on account of the alleged purchase of the said flat, ONLY on the basis of a Hence. it is prayed that the addition confirmed in this should be deleted.” Before us the ld. Counsel of the assessee has also filed additional evidence that the allottees of said flat are different persons and not the assessee. The assessee has site of the Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 17 44. We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. Before us the ld. Counsel of the assessee has filed additional evidence to support that said flat was never allotted to the assessee and it was merely a proposal, which never materialized. In view of the evidence collected by the widow of the demised assessee i.e. legal heir, we feel it appropriate to admit the a restore the matter to the file of the ld. Assessing Officer for necessary verification from the relevant authorities regarding allotment of concerned flat and then decide the issue in dispute in accordance with law after providing adequate opportunity of being heard to the assessee/legal heir of assessee. The ground of the appeal of the assessee is accordingly allowed for the statistical purposes. 20.1 Since, the assessee filed additional evidence before the Tribunal claiming that t assessee and therefore, no addition was justified in the case of the assessee. Since, the Tribunal has already restored this issue back to the file of the Assessing Officer for verification of claim of the assessee, this ground of the Revenue is also restored to the file of Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. Before us the ld. Counsel of the assessee has filed onal evidence to support that said flat was never allotted to the assessee and it was merely a proposal, which never materialized. In view of the evidence collected by the widow of the demised assessee i.e. legal heir, we feel it appropriate to admit the additional evidence and restore the matter to the file of the ld. Assessing Officer for necessary verification from the relevant authorities regarding allotment of concerned flat and then decide the issue in dispute in accordance with law after providing equate opportunity of being heard to the assessee/legal heir of assessee. The ground of the appeal of the assessee is accordingly allowed for the statistical purposes. Since, the assessee filed additional evidence before the Tribunal claiming that the relevant plot was not allotted to the assessee and therefore, no addition was justified in the case of the assessee. Since, the Tribunal has already restored this issue back to the file of the Assessing Officer for verification of claim of the his ground of the Revenue is also restored to the file of Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 18 We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. Before us the ld. Counsel of the assessee has filed onal evidence to support that said flat was never allotted to the assessee and it was merely a proposal, which never materialized. In view of the evidence collected by the widow of the demised assessee i.e. legal heir, we dditional evidence and restore the matter to the file of the ld. Assessing Officer for necessary verification from the relevant authorities regarding allotment of concerned flat and then decide the issue in dispute in accordance with law after providing equate opportunity of being heard to the assessee/legal heir of assessee. The ground of the appeal of the assessee is accordingly allowed for the statistical purposes.” Since, the assessee filed additional evidence before the he relevant plot was not allotted to the assessee and therefore, no addition was justified in the case of the assessee. Since, the Tribunal has already restored this issue back to the file of the Assessing Officer for verification of claim of the his ground of the Revenue is also restored to the file of the Ld. Assessing Officer. The ground of appeal of the Revenue is accordingly allowed for statistical purposes. 21. The ground No. 6 of the appeal relates to the alternative addition made u/s 40A Rs.20,000/-. Since the main addition for cash transactions ha already been deleted, for levying penalty for cash transaction exceeding Rs.20,000/ not survive. The ground No. 6 of the appeal of the Revenue is accordingly dismissed. 22. In the result, the appeals of the Revenue are allowed partly for statistical purposes. Order pronounced under Rule 34(4) of the ITAT Rules, 1963 on 28/02/2023. Sd/- (PAVAN KUMAR GADALE JUDICIAL MEMBER Mumbai; Dated: 28/02/2023 Rahul Sharma, Sr. P.S. Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & the Ld. Assessing Officer. The ground of appeal of the Revenue is accordingly allowed for statistical purposes. The ground No. 6 of the appeal relates to the alternative addition made u/s 40A of the Act for cash payment exceeding . Since the main addition for cash transactions ha , therefore this alternative claim of the Revenue for levying penalty for cash transaction exceeding Rs.20,000/ ground No. 6 of the appeal of the Revenue is accordingly dismissed. In the result, the appeals of the Revenue are allowed partly for Order pronounced under Rule 34(4) of the ITAT Rules, 02/2023. sd/- GADALE) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 19 the Ld. Assessing Officer. The ground of appeal of the Revenue is The ground No. 6 of the appeal relates to the alternative of the Act for cash payment exceeding . Since the main addition for cash transactions has therefore this alternative claim of the Revenue for levying penalty for cash transaction exceeding Rs.20,000/- does ground No. 6 of the appeal of the Revenue is In the result, the appeals of the Revenue are allowed partly for Order pronounced under Rule 34(4) of the ITAT Rules, - OM PRAKASH KANT) ACCOUNTANT MEMBER Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// Late Sunil Dharamvir Gulati Legal Heir Shabnam S. ITA nos. 2577 & Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai Late Sunil Dharamvir Gulati Legal Heir Shabnam S. Gulati ITA nos. 2577 & 2578/M/2022 20 BY ORDER, (Assistant Registrar) ITAT, Mumbai
Other Referred Cases
ITA No. 3496 to 3498, 4794 & 4795/Mum/2015, ITA No. 2092/M/2022
Laws Referred To
Income Tax Act, 1961
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