GAURAV JAIN, MUMBAI V. DCIT, CETRAL CIRCLE - 39, MUMBAI

ITA 2717/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2131 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 03-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 08-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B JAYA KUMAR
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Income from undisclosed sources; Search and seizure; Loose papers; Document seized; Retraction; Documents seized
• Section: 69C; 143(3); 153A; 131

Judgement Text

GAURAV JAIN ITA NO. 2716 /MUM/20 1 3 ITA NO. 2717/MUM/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G , MUMBAI BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI RAJESH KUMAR , ACCOUNTANT MEMBER ITA NO. : 2 7 1 6 /MUM/20 1 3 ( ASSESSMENT YEAR: 200 7 - 0 8 ) ITA NO. : 271 7 /MUM/20 13 ( ASSESSMENT YEAR: 2008 - 10 ) GAURAV JAIN , 82, MAKER CHAMBER, III, NARIMAN POINT, MUMBAI - 400 021 .: PAN: A BA P J 2262 J VS DY . COMMISSIONER OF INCOME TAX - CENTRAL CIRCLE - 39, MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIJAY MEHTA RESPONDENT BY : SHRI B JAYA KUMAR /DATE OF HEARING : 02 - 09 - 201 5 / DATE OF PRONOUNCEMENT : 30 - 11 - 201 5 ORDER , . . : PER AMIT SHUKLA, J M : THE AFORESAID APPEAL S HA VE BEEN FILED BY THE ASSESSEE AGAINST SEPARATE IMPUGNED ORDER S DATED 14 .0 1 .201 3 PASSED BY CIT(A) - 4 1 , MUMBAI FOR THE QUANTUM OF ASSESSMENT PASSED U/S 143(3) R.W.S. 153A FOR THE ASSESSMENT YEAR S 200 7 - 0 8 & 2 009 - 10. SINCE THE ISSUES INVOLVED IN BOTH THE APPEALS ARE COMMON, THEREFORE, THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY WAY OF THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. WE WILL FIRST TAKE - UP APPEAL OF SHRI GAURAV JAIN IN ITA NO. 2716/MUM/2013 VIDE WHICH FOLLOWING GROUNDS HAVE BEEN RAISED: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONBLE CIT(A) ERRED IN CONFIRMING THE ACTION OF THE AO IN INITIATING PROCEEDINGS U/S 153A OF THE INCOME TAX ACT, 1961. THE APPE LLANT PRAYS THAT THE ACTION OF THE AO IN INITIATING THE GAURAV JAIN ITA NO. 2716 /MUM/20 1 3 ITA NO. 2717/MUM/2013 2 PROCEEDINGS U/S 153A SUFFERS FROM LEGAL INFIRMITY AND THEREFORE THE SAID PROCEEDINGS REQUIRE TO BE QUASHED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONBLE CIT(A) ERRED IN CONFI RMING THE A DDITION MADE BY THE AO OF RS. 65,000/ - ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENTS IN KOLMANDLE LAND U/S 69B OF THE INCOME TAX ACT, 1961. THE APPELLANT PRAYS THAT THE SAID ADDITION IS UNJUSTIFIED & REQUIRES TO BE DELETED. 3. AT THE OUTSET, THE LD. COUNSEL SUBMITTED THAT, GROUND NO. 1 IS NOT PRESSED , ACCORDINGLY, SAME IS TREATED AS DISMISSED AS NOT PRESSED. 4. AS REGARDS ISSUE RAISED VIDE GROUND NO. 2 RELATING TO ADDITION OF RS. 65,000/ - ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENTS IN KO LMANDLE LAND MADE U/S 69B, HE SUBMITTED THAT THESE ADDITIONS ARE ARISING OUT OF S E IZED DOCUMENT THAT THE ASSESEES HAVE PAID CASH AMOUNT FOR THE PURCHASE OF VARIOUS LANDS AS MENTIONED THEREIN. THIS VERY SEIZED DOCUMENT HAD COME UP FOR CONSIDERATION IN VARI OUS OTHER CASES OF THE SAME GROUP / FAMILY MEMBERS , WHEREIN THE MATTER HAS REACHED TO THE STAGE OF THE TRIBUNAL . IN ALL THESE CASES THIS ISSUE H A S BEEN DECIDED IN FAVOUR OF THE ASSESSEE S . IN SUPPORT OF HIS CONTENTION, HE FILED FOLLOWING DECISIONS OF THE TR IBUNAL IN ASSESSEES OWN GROUP / FAMILY MEMBERS : - SR. NO. CASE LAW CITATION/ITA NO. S 1 SHRI ANAND JAIN V DCIT (AYS 2006 - 07, 2007 - 08 & 2009 - 10) ITA 2707,2708,2709/M/2013, ORD. DT. 17.04.2015[ITAT - MUM] 2 SHRI HARSH JAIN (AY 2009 - 10) ITA 2710/M/2013 ORD. D T. 17.07.2015[ITAT - MUM] 3 ACIT VS. SANJEEVANI REAL ESTATE PVT LTD ITA 261,262/M/2014 ORD. DT. 14.08.2015[ITAT - MUM] 4 M/S AVKASH LAND REALTY PVT LTD & OTHER LAND COMPANIES VS DCIT ORD. DT. 22.03.2013[ITAT - MUM] 5. LD. DR HAS ALSO ADMITTED THAT THIS IS SUE STANDS DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL. 6. BRIEF FACTS QUA THE ISSUE INVOLVED IS THAT, A SEARCH AND SEIZURE ACTION WAS UNDERTAKEN ON 05. 03.2009 IN THE CASE OF JAI CORP GROUP AND ITS CLOSE ASSOCIATES AND EMPLOYEES WHO WERE GAURAV JAIN ITA NO. 2716 /MUM/20 1 3 ITA NO. 2717/MUM/2013 3 CLOSELY INV OLVED IN THE PROCESS OF ACQUIRING LAND S . DURING THE COURSE OF SEARCH, CERTAIN DOCUMENTS WERE SEIZED AND IMPOUNDED WHEREIN, THE CONSIDERATION / COST OF THE LAND WAS BIFURCATED INTO PAR T A AND PART B. FROM THESE DOCUMENTS, THE AO INFERRED THAT PART B W AS ON ACCOUNT OF ON - MONEY PAYMENTS WHEREAS PAR T A WAS AMOUNT WHICH WAS PAID / PAYABLE AS PER THE STAMP DUTY VALUE OF THE LAND . THE EXCESS AMOUNT WHICH IS HAS BEEN MENTIONED IN CASH IN PART B IS UNACCOUNTED . IN RESPONSE TO THE SHOW CAUSE NOTICE, THE AS SESSEE HAS GIVEN VERY DETAIL CLARIFICATION; HOWEVER, THE AO HELD THAT THE AMOUNT MENTIONED IN PART B IS TO BE TAXED AS INCOME FROM UNDISCLOSED SOURCES U/S 69B. 7. WE FIND THAT, SIMILAR ISSUE HAD COME UP FOR CONSIDERATION IN THE GROUP CASES OF THE ASSES SEE BASED ON THE SAME SEIZED DOCUMENTS , WHEREIN THE TRIBUNAL INVARIABL Y IN ALL THE CASES AFTER DETAIL ANALYSIS AND ON THE BASIS OF MATERIAL ON RECORD HAS DELETED THE SAID ADDITION. FOR THE SAKE OF READY REFERENCE, THE RELEVANT OBSERVATION AND THE FINDING G IVEN BY THE TRIBUNAL IN THE CASE OF ANAND JAIN VS DCIT, ORDER DATED 17.04.2015 ( SUPRA ) IS REPRODUCED HEREUNDER : - 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE LD. REPRESENTATIVES OF BOTH THE PARTIES AND HAVE ALSO GONE THROUGH THE RECORD. THE LD. A.R . OF THE ASSESSEE, BEFORE US, HAS SUBMITTED THAT EXCEPT THE SEIZED DOCUMENT, THE CONTENTS OF WHICH HAVE BEEN DULY EXPLAINED BY THE ASSESSEE, NO OTHER EVIDENCE OF ANY KIND WAS FOUND OR SEIZED WHICH WOULD INDICATE THAT THE ASSESSEE HAD INCURRED THE COST OF L AND IN CASH AS ALLEGED BY THE REVENUE. HE HAS FURTHER CONTENDED THAT THE WORDS MENTIONED IN THE DOCUMENT CASH REQUIRED DID NOT MEAN THAT THE CASH HAD ACTUALLY BEEN EXPENDED. THE ALLEGATIONS LEVELLED BY THE REVENUE REGARDING THE PAYMENT OF ON MONEY HAVE N OT BEEN CORROBORATED WITH ANY RELIABLE OR CONVINCING EVIDENCE. EVEN IN THE STATEMENTS RECORDED OF SHRI VIRENDRA JAIN VICE CHAIRMAN OF JAI CORPORATIONS ON 11.05.2009 UNDER SECTION 131 AND FURTHER AFFIDAVIT DATED 22.12.10 OF SHRI ATUAL PAWAR, AN EMPLOYEE OF JAI CORPORATIONS, IT HAS BEEN DULY EXPLAINED THAT THE PART A WAS THE AMOUNT PAID IN ADVANCE AND PART B WAS THE BALANCE TOWARDS BUDGETED COST OF DEVELOPMENT FOR CONVERTING THE LAND FROM AGRICULTURE TO NON AGRICULTURE. HE HAS FURTHER SUBMITTED THAT NONE OF THE SELLERS HAVE BEEN EXAMINED IN THE MATTER TO ASCERTAIN WHETHER ANY AMOUNT HAS BEEN PAID TO THEM IN CASH IN SPITE OF THE FACT THAT THE ASSESSEE HAD SPECIFICALLY ASKED THE AO VIDE LETTER DATED 13.12.10 TO EXAMINE THE SELLERS IF REQUIRED. HE HAS GAURAV JAIN ITA NO. 2716 /MUM/20 1 3 ITA NO. 2717/MUM/2013 4 FURTHER RELIED UPON THE DECISION OF THE ITAT IN THE CASE OF AVKASH LAND REALITY PVT. LTD. & OTHERS WHEREIN UNDER THE SIMILAR CIRCUMSTANCES, THE ADDITIONS MADE BY THE REVENUE AUTHORITIES HAVE BEEN DELETED BY THE TRIBUNAL. HE HAS FURTHER RELIED UPON ANOTHER DECIS ION OF THE TRIBUNAL IN THE CASE OF JAI CORP. LTD. DATED 26.11.2014 TO STRESS THAT THE CONSIDERATION FOR THE PURCHASE OF THE LAND WAS MORE THAN THE RATES OF READY RECKNOR OF STAMP DUTY AUTHORITIES, ALL THE PAYMENTS WERE MADE THROUGH CHEQUE, AND IN THE ABS ENCE OF ANY EVIDENCE THAT ANY PAYMENT WAS MADE IN CASH OR UNACCOUNTED MONEY HAS EXCHANGED HANDS, THE ADDITIONS COULD NOT BE MADE. HE HAS FURTHER CONTENDED THAT THE ENTIRE ADDITION HAS BEEN MADE MERELY ON THE BASIS OF SUSPICION WHICH WAS BASED ON THE STRENG TH OF LOOSE PAPERS FOUND DURING THE SEARCH ACTION, WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW. THE LD. D.R. ON THE OTHER HAS RELIED UPON THE FINDINGS OF THE LOWER AUTHORITIES AND SUBMITTED THAT THE LOOSE PAPERS FOUND DURING THE SEARCH ACTION WERE SELF EXP LANATORY PROVING THAT THE PART B PAYMENT WAS MADE IN CASH ON ACCOUNT OF PURCHASE OF LANDS. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE HAVE ALSO GONE THROUGH THE CASE LAWS RELIED UPON BY THE ASSESSEE. WE FIND THAT IN THE CASE OF M/S. AVKASH LAND REA LTY PVT. LTD. AND OTHERS VS. DCIT AND OTHERS ITA NOS. 8327M/2011AND OTHERS, THE TRIBUNAL, WHILE DEALING WITH THE IDENTICAL ISSUE WHILE ADJUDICATING 67 APPEALS OF 52 DIFFERENT ASSESSEES IN RELATION TO ADDITIONS MADE UNDER SECTION 69B IN THE CASE OF JAI COR P. GROUP COMPANIES ON ACCOUNT OF ON MONEY CASH PAYMENTS FOR PURCHASE OF LAND, HAS MADE THE FOLLOWING OBSERVATION: 22. .THE ENTIRE DISPUTE REVOLVES AROUND THE ALLEGED CASH PAYMENT AMOUNTING TO RS. 43 CRORES APPROX. AND WHICH HAS BEEN ADDED U/S. 69C OF THE ACT. SEC. 69C OF THE ACT READS AS UNDER: WHERE IN ANY FINANCIAL YEAR AN ASSESSEE HAS INCURRED ANY EXPENDITURE AND HE OFFERS NO EXPLANATION ABOUT THE SOURCE OF SUCH EXPENDITURE OR PART THEREOF, OR THE EXPLANATION, IF ANY, OFFERED BY HIM IS NOT, IN TH E OPINION OF THE AO, SATISFACTORY, THE AMOUNT COVERED BY SUCH EXPENDITURE OR PART THEREOF, AS THE CASE MAY BE, MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR SUCH FINANCIAL YEAR. 23. A PERUSAL OF THE AFOREMENTIONED SECTION SHOWS THAT THE REQUIREMENT OF THE SECTION IS THAT AN EXPENDITURE HAS BEEN FOUND TO HAVE BEEN INCURRED BY AN ASSESSEE IN ANY FINANCIAL YEAR. CONSEQUENTLY, THE ASSESSEE FAILS TO INDICATE SATISFACTORILY THE SOURCE OF SUCH EXPENDITURE OR ANY PART THEREOF. THEN SECTION 69C IS ATTRACTED IN SUCH CIRCUMSTANCES. THE EMPHASIS IS ON THE FACT THAT AN ASSESSEE HAS INCURRED ANY EXPENDITURE. THIS ITSELF SHOW THAT THE ASSESSEE MUST HAVE BEEN FOUND TO HAVE INCURRED ANY EXPENDITURE TO INVOKE THE PROVISIONS OF SEC. 69C OF THE ACT. EVEN IF FOR THE SA KE OF ARGUMENTS, THE RETRACTION OF SHRI DILIP DHERAI IS IGNORED, IN HIS REPLY TO QUESTION NO. 24 ON THE DATE OF SEARCH, SHRI DILIP DHERAI HAS CATEGORICALLY MENTIONED THAT CASH PAYMENT FROM MAKERS IS AT RS. 28.01 CRORES AND CASH PAYMENT FROM JAI TOWERS IS A T RS. 10.43 CRORES, TOTAL OF THESE AMOUNTS WORKS GAURAV JAIN ITA NO. 2716 /MUM/20 1 3 ITA NO. 2717/MUM/2013 5 OUT AT RS. 38.45 CRORES WHICH WAS PROVIDED TO SHRI DILIP DHERAI BY ONE SHRI SANJAY PUNKHIA CEO OF SEZ PROJECT. SHRI DILIP DHERAI IS NOT EVEN REMOTELY RELATED TO THE ASSESSEE COMPANY .IT IS ALSO NOT THE CASE OF THE REVENUE THAT DILIP DHERAI WAS ACTING AS AGENT OF THE ASSESSEE COMPANY. MERELY ON THE STRENGTH OF THIS ADMISSION, IT CANNOT BE SAID THAT THE ASSESSEE HAS INCURRED CERTAIN EXPENDITURE OVER AND ABOVE WHAT HAS BEEN RECORDED IN ITS BOOKS OF ACCOUNT. WE F IND THAT THE ULTIMATE CONCLUSIONS DRAWN BY THE AO AND THE LD. CIT(A) HAVE BEEN REACHED MERELY ON THE ENTRIES FOUND ON LOOSE SHEET OF PAPERS FOR WHICH SHRI DILIP DHERAI HAS STATED THAT THEY ARE ONLY ESTIMATES / BUDGETARY FIGURES. HOWEVER, THE ALLEGATIONS MA DE BY THE LOWER AUTHORITIES ARE NOT SUPPORTED BY ACTUAL CASH PASSING HANDS. THE ENTIRE ADDITIONS ARE BASED ON THE SEIZED DOCUMENTS AND NO OTHER MATERIAL HAS BEEN ADVERTED TO AND WHICH COULD CONCLUSIVELY SHOW THAT THE HUGE AMOUNT OF THE MAGNITUDE MENTIONED IN THE SEIZED DOCUMENTS TRAVELLED FROM, ONE SIDE TO THE OTHER. THE REVENUE AUTHORITIES HAVE NOT BROUGHT A SINGLE STATEMENT ON RECORD OF THE VENDORS OF LAND IN DIFFERENT VILLAGES. NONE OF THE SELLER HAS BEEN EXAMINED TO SUBSTANTIATE THE CLAIM OF THE REVENUE THAT EXTRA CASH HAS ACTUALLY CHANGED HANDS. 24. OUR VIEW IS FORTIFIED BY THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF MALIK BROTHERS PVT. LTD. VS CIT 162 TAXMANN 43 WHICH IS RELIED UPON BY THE LD. DR. IN THAT CASE, THE ASSESSEE PURCHASED THE PROP ERTY ALLEGEDLY FOR RS. 6 LAKHS. THE VENDOR IN HER STATEMENT CONFIRMED THAT THE SALE CONSIDERATION OF SAID PROPERTY WAS RS. 45 LAKHS AND PAID TAX THEREON. IN VIEW OF VENDORS STATEMENT, THE AO MADE AN ADDITION OF RS. 39 LAKHS TO THE INCOME OF THE ASSESSEE T OWARDS UNEXPLAINED INVESTMENT. THE ACTION OF THE AO WAS JUSTIFIED AND THE ADDITIONS WERE CONFIRMED. THUS IN VIEW OF THE AFORESAID DECISION, IN THE PRESENT CASE, NONE OF THE SELLERS HAVE BEEN EXAMINED BY THE AO TO STRENGTHEN HIS VIEWS THAT CASH HAS BEEN PAI D OVER AND ABOVE THE REGISTERED AMOUNT. THERE IS NOT EVEN A SINGLE DOCUMENT/EVIDENCE OF PARTIES INVOLVED IN THE SALE OF LAND AT DIFFERENT VILLAGES BROUGHT ON RECORD TO SHOW THAT AN AMOUNT OTHER THAN THE PAYMENT OF CONSIDERATION HAS EXCHANGED HANDS. NO CONF ESSIONS FROM THE SELLERS HAVE BEEN BROUGHT ON RECORD. THE ENTIRE ADDITIONS HAVE BEEN MADE MERELY ON THE STRENGTH OF LOOSE PAPERS FOUND DURING THE COURSE OF THE SEARCH NOT SUPPORTED BY ANY INDEPENDENT AUTHORITY. CONSIDERING THE ENTIRE ADDITION, IN THE LIGHT OF THE PROVISIONS OF SEC. 69C, AS PER A.OS OWN INTERPRETATION, INVESTMENTS IN PURCHASE OF LAND HAVE BEEN FULLY FINANCED BY SOME OTHER PERSONS, THEREFORE, THE ADDITION IN THE HANDS OF THE ASSESSEE CANNOT BE JUSTIFIED AS THE ASSESSEE HAS NOT INCURRED ANY E XPENDITURE. THERE MAY BE ONE MORE POSSIBILITY THAT THE PERSONS WHO WERE DOING LAND PURCHASE MIGHT HAVE INFLATED THE SALE PRICE IN THESE LOOSE SHEETS JUST TO EXTRACT MONIES FROM THEIR HIGHER AUTHORITIES IN THE GUISE OF ON - MONEY TO BE PAID TO THE VENDORS. MA Y BE BECAUSE OF HIS POSSIBILITY NO GAURAV JAIN ITA NO. 2716 /MUM/20 1 3 ITA NO. 2717/MUM/2013 6 DOCUMENTS WERE FOUND TO SHOW THAT THE MONEY ACTUALLY CHANGED HANDS. 25. A PERUSAL OF THE BALANCE SHEET OF THE ASSESSEE SHOW THAT THE AUTHORIZED, ISSUED AND SUBSCRIBED PAID UP CAPITAL IS AT RS. ONE LAKH AND THE ASSESSEE HAD NOT DONE ANY BUSINESS DURING THE YEAR UNDER CONSIDERATION. WITH SUCH A SMALL CORPUS AND NO BUSINESS ACTIVITY, NOR ANY HAS BEEN BROUGHT ON RECORD BY THE REVENUE, IT IS NOT ACCEPTABLE THAT THE COMPANY MAY HAVE INCURRED SUCH HUGE EXPENDITURE OUTSIDE ITS B OOKS OF ACCOUNT. FURTHER IN HIS ENTIRE ASSESSMENT ORDER, THE AO HIMSELF HAS POINTED OUT TIME AND AGAIN DIFFERENT PERSONS, WHO ARE ALLEGED, TO HAVE MADE CASH PAYMENTS. EVEN ON THAT COUNT, THE ADDITIONS CANNOT BE SUSTAINED IN THE HANDS OF THE ASSESSEE. IN OU R CONSIDERATE VIEW, THERE BEING NO EVIDENCE TO SUPPORT THE REVENUES CASE THAT A HUGE FIGURE, WHATEVER BE ITS QUANTUM, OVER AND ABOVE THE FIGURE BOOKED IN THE RECORDS AND ACCOUNTS CHANGED HANDS BETWEEN THE PARTIES, NO ADDITION COULD THEREFORE BE MADE U/S. 69C OF THE ACT TO THE INCOME OF THE ASSESSEE. CONSIDERING THE ENTIRE FACTS BROUGHT ON RECORD, WE HAVE NO HESITATION TO HOLD THAT EVEN ON MERITS, NO ADDITION COULD BE SUSTAINED. 26. SINCE WE HAVE ALLOWED THE ISSUE IN THE CASE OF THE PRESENT ASSESSEE ON BO TH COUNTS I.E. ON LEGAL ISSUE AND ON MERIT AND THE ISSUES INVOLVED IN ALL OTHER APPEALS OF OTHER ASSESSEES ARE SIMILAR AND IDENTICAL, THOUGH QUANTUM MAY DIFFER, FOR SIMILAR REASONS, WE QUASH THE ASSESSMENTS AND DELETE THE ADDITIONS ON MERIT AS WELL AS ON P OINT OF LAW IN ALL OTHER CASES ALSO. 7. A PERUSAL OF THE ABOVE FINDINGS OF THE TRIBUNAL IN THE CASE OF RELATED CONCERNS OF THE ASSESSEES INVOLVING IDENTICAL FACTS AND ISSUES REVEALS THAT THE TRIBUNAL HAS GIVEN A CATEGORICAL FINDING THAT THE REQUIREMENT OF SECTION 69C IS THAT AN EXPENDITURE HAS BEEN FOUND TO HAVE BEEN INCURRED BY AN ASSESSEE IN ANY FINANCIAL YEAR FOR WHICH HE GIVES NO EXPLANATION ABOUT THE SOURCE THEREOF, THEN THE ADDITION CAN BE MADE UNDER SECTION 69C IN SUCH CIRCUMSTANCES. THE TRIBUNAL HAS OBSERVED THAT THE REQUIREMENT OF THE SECTION IS THAT THE ASSESSEE MUST HAVE BEEN FOUND TO HAVE INCURRED ANY EXPENDITURE TO INVOKE THE PROVISIONS OF SECTION 69C OF THE ACT. THE CONCLUSIONS DRAWN BY THE AO AND THE LD. CIT(A) WERE BASED ON THE ENTRIES FOU ND ON LOOSE SHEET OF PAPERS FOR WHICH IT WAS EXPLAINED BY THE ASSESSEE/CONCERNED PERSONS THAT THEY WERE ONLY ESTIMATES/BUDGETARY FIGURES. THE ALLEGATIONS MADE BY THE LOWER AUTHORITIES WERE NOT SUPPORTED BY ANY EVIDENCE OF ACTUAL CASH PASSING HANDS. THE REV ENUE AUTHORITIES HAD NOT BROUGHT A SINGLE STATEMENT ON RECORD OF THE VENDORS OF THE LAND IN DIFFERENT VILLAGES. NONE OF THE SELLERS HAD BEEN EXAMINED TO SUBSTANTIATE THE CLAIM OF THE REVENUE THAT THE EXTRA CASH HAD ACTUALLY CHANGED HANDS. THE TRIBUNAL, AFT ER CONSIDERING THE EVIDENCES IN RELATION TO THE ADDITIONS IN THE LIGHT OF PROVISIONS OF SECTION 69C OF THE ACT, HAS HELD THAT NO ADDITIONS WERE WARRANTED UNDER SECTION 69C OF THE ACT IN THE HANDS OF THE ASSESSEE. WE FIND THAT IN THE CASE OF THE ASSESSEE, THE ADDITIONS HAVE BEEN MADE BY THE LOWER AUTHORITIES UNDER SECTION 69B OF THE ACT GAURAV JAIN ITA NO. 2716 /MUM/20 1 3 ITA NO. 2717/MUM/2013 7 WHICH PROVIDES THAT WHERE THE ASSESSEE HAS MADE INVESTMENTS OR IS FOUND TO BE THE OWNER OF ANY BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE AND THE AO FINDS THAT THE AMOUNT EXPENDED ON MAKING OF SUCH INVESTMENTS OR IN ACQUIRING SUCH BULLION JEWELLERY OR OTHER VALUABLE ARTICLE EXCEEDS THE AMOUNT RECORDED IN THIS BEHALF IN THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE FOR ANY SOURCE OF INCOME AND THE ASSESSEE OFFERS NO EXPLA NATION ABOUT SUCH EXCESS AMOUNT OR THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT SATISFACTORY, THE EXCESS AMOUNT MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR THAT RELEVANT YEAR. SO, THE FIRST REQUIREMENT FOR THE INVOCATION OF PROVISIONS OF SECTION 6 9B OF THE ACT IS THAT THE AMOUNT MUST BE EXPENDED BY THE ASSESSEE AND WHICH IS FOUND IN EXCESS THAN THAT IS RECORDED IN THE BOOKS OF THE ACCOUNT AND THE ASSESSEE DOES NOT GIVE ANY EXPLANATION ABOUT SUCH EXCESS AMOUNT. IN THE CASE IN HAND, EXCEPT THE LOOSE PAPERS AS DISCUSSED ABOVE, NO EVIDENCE WAS FOUND THAT THE ASSESSEE HAD INCURRED EXPENDITURE ON THE PURCHASE OF LAND MORE THAN THAT WAS RECORDED IN THE BOOKS OF ACCOUNT. THE LD. A.R. OF THE ASSESSEE HAS VEHEMENTLY CONTENDED THAT THE CONSIDERATION RECORDED I N THE SALE AGREEMENTS WAS MUCH MORE THAN THE VALUE ADOPTED BY THE STAMP DUTY AUTHORITIES. THERE WAS NO EVIDENCE THAT ANY EXTRA CASH OTHER THAN THE SALE CONSIDERATION AS RECORDED IN THE DEED HAD CHANGED HANDS. NO STATEMENT OF THE SELLERS OF THE LAND HAD BEE N RECORDED. NO OTHER CORROBORATIVE EVIDENCE HAS BEEN PRODUCED ON THE FILE BY THE REVENUE AUTHORITIES TO SUBSTANTIATE THEIR ALLEGATION. THE ADDITION IN THIS CASE HAS BEEN MADE ON THE BASIS OF THE ENTRIES IN THE LOOSE PAPER FOUND DURING THE SEARCH ACTION, WH ICH AT THE MOST CAN BE CONSIDERED TO HAVE RAISED A SUSPICION ABOUT THE TRANSFER OF MONEY OTHER THAN THE SALE CONSIDERATION, BUT THE SUSPICION ITSELF AND SOLELY CANNOT BE HELD TO BE A JUSTIFIABLE GROUND FOR MAKING THE ADDITIONS, ESPECIALLY IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE. EXCEPT THE LOOSE PAPERS IN QUESTION NO EVIDENCE, WHAT TO SAY OF ANY DIRECT OR CORROBORATIVE EVIDENCE, EVEN NO CIRCUMSTANTIAL EVIDENCE HAS BEEN DETECTED OR BROUGHT ON RECORD BY THE REVENUE. HENCE, THE ADDITIONS SOLELY ON THE BAS IS OF SUSPICION, HOW STRONG IT MAY BE, IN OUR VIEW, ARE NOT SUSTAINABLE IN THE EYES OF LAW. MOREOVER, THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THAT OF THE OTHER GROUP CONCERNS AND IN VIEW OF THE DECISION OF THE TRIBUNAL DATED 22.03.2013 (SUPRA) THE A DDITIONS IN THIS CASE UNDER SECTION 69B OF THE ACT ARE NOT WARRANTED AND THE SAME ARE ACCORDINGLY ORDERED TO BE DELETED. THIS APPEAL OF THE ASSESSEE IS ACCORDINGLY PARTLY ALLOWED . 8 . THE AFORESAID FINDING AND CONCLUSION OF THE TRIBUNAL WILL APPLY MUTA TIS MUTANDIS IN THIS CASE ALSO AS IT IS BASED ON THE SAME SEIZED MATERIAL, THEREFORE, RESPECTFULLY FO LLOWING THE SAME AND AS A MATTER OF JUDICIAL PRECEDENCE, WE DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE AND ACCORDINGLY, THE ADDITION OF RS. 65,000/ - STAND S DELETED. 9. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED. GAURAV JAIN ITA NO. 2716 /MUM/20 1 3 ITA NO. 2717/MUM/2013 8 10. NOW, WE WILL TAKE - UP ASSESSEES APPEAL IN ITA NO. 2717/MUM/2013 FOR AY 2009 - 10, IN THIS CASE ALSO ASSESSEE HAS RAISED FOLLOWING TWO GROUNDS : - 1. ON THE FACTS AND CIRCUMSTAN CES OF THE CASE AND IN LAW, THE HONBLE CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 8,95,500/ - ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENTS IN KOLMANDLE LAND U/S 69B OF THE INCOME TAX ACT, 1961. THE APPELLANT PRAYS THAT THE SAID ADDITION IS UNJUSTIFIED & R EQUIRES TO BE DELETED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONBLE CIT(A) ERRED IN CONFIRMING THE ACTION OF THE AO IN NOT COMPUTING THE TOTAL INCOME OF THE APPELLANT IN ACCORDANCE WITH PROVISIONS OF S. 14 OF THE INCOME TAX ACT, 1961 AND IN NOT COMPUTING THE LOSSES U/S 74 OF THE ACT. . 11. AT THE OUTSET, THE LD. COUNSEL SUBMITTED THAT GROUND NO. 2 IS NOT PRESSED ACCORDINGLY; THE SAME IS TREATED AS DISMISSED AS NOT PRESSED. 12. THE ISSUE RAISED VIDE GROUND NO. 1 IS SIMILAR TO IS SUE RAISED IN GROUND NO. 2 IN APPEAL FOR AY 2007 - 08 , WHEREIN THIS ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE VARIOUS TRIBUNAL ORDERS IN THE CASE OF GROUP CONCERNS. ACCORDINGLY THE ADDITION OF RS. 8,95,500/ - MADE U/S 69B STANDS DELETE D. ACCORDINGLY, GROUND NO. 1 RAISED BY THE ASSESSEE IS ALLOWED. 13. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 14. IN THE RESULT, BOTH APPEALS FILED BY THE ASSESSEE FOR AYS 2007 - 08 & 2009 - 10 STANDS PARTLY ALLOWED. ORDER PRONOUNCED IN THE O PEN COURT ON 30 TH NOVEMBER , 2015. SD / - SD/ - ( RAJESH KUMAR ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 30 TH NOVEMBER , 2015 GAURAV JAIN ITA NO. 2716 /MUM/20 1 3 ITA NO. 2717/MUM/2013 9 / COPY TO: - 1 ) / THE APPEL LANT. 2 ) / THE RESPONDENT. 3) THE CIT (A) - 4 1 , MUMBAI. 4 ) THE CIT CENTRAL - III , MUMBAI. 5 ) , , / THE D.R. G BENCH, MUMBAI. 6 ) \ COPY TO GUARD FILE. / BY ORDER / / TRUE COPY / / / , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS