PKG FINSTOCK PVT. LTD., MUMBAI V. DCIT - CC - 5(1), MUMBAI

ITA 5263/MUM/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3424 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 11-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V SREEKAR
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Business income; Income from undisclosed sources; Search and seizure; Loose papers; Principle of natural justice; Opportunity of cross examination; Block assessment; Onus to prove; Retraction; Documents seized
• Section: 143(3); 153A; 69B; 201; 143(2); 64; 113; 13; 153C; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (VIRTUAL COURT) C BENCH, MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER ITA NO S . 5263 & 5264 /MUM/201 8 (A.Y. 201 3 - 14 & A.Y. 2014 - 15 ) M/S. PKG FINSTOCK PVT. LTD., C - 98, SANGHI UPASANA TOWER SUBHASH MARG, C SCHEME, JAIPUR RAJASTHAN 302201 PAN: AABCP1148C V. DY.CIT, CENTRAL CIRCLE 5(1) R.NO.1928, 19 TH FLOOR AI R INDIA BUILDING, NARIMAN POINT MUMBAI 400021 (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. RITU KAMAL KISHOR DEPARTMENT BY : SHRI V. SREEKAR DATE OF HEARING : 04.06.2021 DATE OF PRONOUNCEMENT : 07 .06.2021 O R D E R PER S. RIFAUR RAHMAN (AM) 1. THE PRESENT APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE RESPECTIVE ORDERS PASSED BY THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 53, [FOR SHORT LD. CIT(A)] FOR A . Y . 2013 - 14 AND A . Y . 2014 - 15, DATED 20.06.2018, WHICH IN TURN ARISES FROM THE A SSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER [FOR SHORT A.O] U/S. 153C R.W.S 143(3) 2 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., AND U/S 143(3) OF THE INCOME TAX ACT, 1961, DATED 31.03.2016 RESPECTIVELY . AS COMMON ISSUES ARE INVOLVED IN T HE CAPTIONED APPEALS, THE SAME ARE BEING TAKEN UP AND DISPOSED OFF TOGETHER BY WAY OF A CONSOLIDATED ORDER. 2. THE ASSESSEE IN ITS APPEAL FOR A . Y . 2013 - 14, WHEREIN THE IMPUGNED ORDER HAS BEEN ASSAILED BEFORE US ON THE FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT, 1961 WHICH IS ILLEGAL AND BAD IN LAW. 2. THE LEARNED CIT(A) HAS ERRED IN PASSING THE ORDER IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 3. THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF RS. 1,05,57,000/ - MADE BY THE ASSESSING OFFICER AS ALLEGED UNACCOUNTED INCOME RECEIVED FROM SALE OF FLATS OVER AND ABOVE REGISTERED VALUE. 4. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND, ALTER OR DELETE ALL OR ANY OF THE FOREGOING GROUNDS OF APPEAL. 3. BRIEFLY STATED THE FACTS ARE , A SEARCH AND SEIZURE ACTION WAS CARRIED OUT IN THE CASE OF ANAND RATHI G ROUP ON 24.09.2013 AND T HE OFFICE PREMISE OF D IRECTOR OF ASSESSEE C OMPANY, SHRI PRADEEP GUPTA WAS ALSO SEARCHED. DURING THE COURSE OF SEARCH, SOME LOOSE PAPERS WERE FOUND AND SEIZE D FROM THE OFFICE PREMISE OF SHRI P RADEEP G UPTA. STATEMENT OF 3 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., SHRI PRADEEP GUPTA WAS RECORDED AND HE WAS CONFRONTED WITH TH E SEIZED MATERIAL. IN THE STATEMENT, HE HAS ADM ITTED THAT THE SEIZED MATERIAL CONTAINS THE WORKINGS OF AMOUNTS RECEIVED IN CHEQUE AND CASH ON SALE OF THREE FLATS IN TWO PROJECTS, VISHWARIYA PROJECT AND PADMAVATI NAGAR P ROJECT. 4. THE ASSESSING OFFICER ISSUED NOTICE U/S 153C DATED 11.01.2016 REQUIRING THE ASSESSEE TO FILE RETURN OF INCOME . IN RESPONSE TO SAID NOTICE, THE ASSESSEE FILED ITS RETURN OF INCOME ON 24.02.2016 DECLARING TOTAL INCOME OF . 19,02,740/ - . BAS ED ON THE STATEMENT OF SHRI PRADEEP GUPTA, THE ASSESSING OFFICER MADE ADDITION OF ALLEGED CASH GENERATED OF . 62.07 LAKHS FROM VISHWARIYA P ROJECT AND . 43.50 LAKHS FROM PADMAVATI NAGAR P ROJECT AGGREGATING TO . 105.57 LAKHS. 5. THE LD. CIT(A) SUSTAINED THE ADDITION OBSERVING AS UNDER : - 3.4.. IT IS NOTED THAT THE PAYMENTS BY CHEQUE MENTIONED IN THE LOOSE PAPER COMPLETELY MATCHES WITH THAT RECORDED IN BOOKS. THIS CLEARLY LENDS AUTHENTICITY TO THE CONTENTS OF THE LOOSE PAPER AND ALSO CORROBORATES THE CONTENTS. WHEN THIS PART IS TRUE, THE REST OF THE ENTRIES ON THE PAPER IS ALSO TRUE. THE PAPER WAS FOUN D IN THE CABIN OF THE DIRECTOR OF THE APPELLANT. THE DIRECTOR CLEARLY AND COGENTLY EXPLAINED THE SEIZED PAPER AT THE TIME OF SEARCH AND ADMITTED TO THE CONTENTS OF THE SAME. T H US NOT ONLY THERE IS PRESUMPTION TO BE DRAWN AGAINST THE APPELLANT IN TERMS OF S ECTION 132(4A) AND THE NEW PROVISIONS IN SECTION 292C, THE PAPERS ARE CORRELATED WITH THE RECORDED PART OF THE TRANSACTIONS IN APPELLANT'S 4 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., BOOKS AND ADMITTED AND EXPLAINED BY THE DIRECTOR OF THE APPELLANT COMPANY. THE LOOSE PAPERS FOUND ARE NOT DENIED AS N OT PERTAINING TO OR BELONGING TO APPELLANT. RELIANCE IS PLACED ON THE DECISION IN THE CASE FIFTH A VENUE V CIT (2009) 224 CTR 442 (KAR). NOW IT IS THE CONTENTION OF THE APPELLANT THAT THE ADMISSION BY SHRI PRADEEP GUPTA WAS ERRONEOU S AND IS RETRACTED I FIND THAT THERE IS NOT A WHISPER OF EVIDENCE THAT SUCH STATEMENT W AS RECORDED UNDER PRESSURE OR COERCI ON. THERE IS IN ANY CASE NO SUCH EVIDENC E. THIS IS A BALD DENIAL TO AVOI D TAX LIABILITY. SUCH RETRACTION IS RIGHTLY REJECTED BY THE ASSESSING OFFICER. THE PAP ER CLEARLY SHOWS IT BE IN ACCOUNTS OF RECORDED AND UNDISCLOSED TRANSACTIONS. IT IS NOT SOME WORKING OR DUMB DOCUMENT AS CLAIMED. THE EVIDENTIARY VALUE OF STATEMENTS RECORDED IN THE COURSE OF SEARCH IS EXPLAINED BY HONBLE ITAT, MUMBAI BENCH IN THE CASE OF HIRLAL MAGANLAL 16 ITD 113 (MUM) AND I RELY ON THE SAME. 3.5 IT HAS BEEN ARGUED THAT THE ASSESSING OFFICER HAS ADDED THE UTILIZATION OF CASH IN RENOVATION OF FLAT IN THE HANDS OF SHRI PRADEEP GUPTA WHICH AMOUNTS TO DOUBLE ADDITION. I FIND THE CONTENTION UNTENABLE. THE ON MONEY RECEIVED IN CASH AND NOT RECORDED IN BOOKS OF APPELLANT COMPANY IS ASSESSABLE IN ITS HANDS. SHRI GUPTA IS ANOTHER LEGAL ENTITY. IF HE INCURS EXPENDITURE NOT RECORDED IN HIS BOOKS AND IS NOT EXPLAINED FROM SOURCES WHICH ARE OFFERED T AX BY HIM, CLEARLY THE SAME IS TAXABLE IN HIS HANDS. EVEN IF THE APPELLANT COMPANY WERE TO GIVE MONEY TO SHRI GUPTA FROM ITS TAX PAID SOURCES, THE AMOUNT RECEIVED BY SHRI GUPTA WOULD BE TAXABLE IN THE HANDS OF SHRI GUPTA. THE APPELLANT HAS NOT UNDERSTOOD A ND APPRECIATED THE DISTINCTION BETWEEN THE TWO TAXABLE ENTITIES. IT IS ALSO NOTED THAT SHRI PRADEEP GUPTA HAS DENIED EXPENDITURE ON RENOVATION OF HIS FLAT AT BEAU MONDE, PRABHADEVI, MUMBAI. THE CONTENTION IS THEREFORE REJECTED. 3.6 THE APPELLANT HAS CONTEN DED THAT THE BUYERS OF FLATS HAVE NOT BEEN EXAMINED TO CORROBORATE CASH PAYMENT AND OPPORTUNITY OF CROSS EXAMINATION IS NOT PROVIDED. I FIND THIS TO BE A SPECIOUS ARGUMENT FOR TWO REASONS. FIRSTLY, BY ADMITTING TO THE FACT THAT CASH WAS RECEIVED IN THE COU RSE OF SEARCH, THE APPELLANT PRECLUDED THE INVESTIGATION WING FROM CARRYING OUT FURTHER INVESTIGATION. SECONDLY, AT THIS STAGE THE PURCHASER MAY NOT ACCEPT HAVING MADE PAYMENTS IN CASH AS IT MAY BE SELF - INCRIMINATING FOR THEM, AND PRESUMPTION IS NOT AVAILA BLE AGAINST THIRD PARTIES. FURTHER, THE ADDITION IS NOT MADE 5 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., ON THE BASIS OF STATEMENTS OF BUYERS AND HENCE THERE IS NO NEED FOR ALLOWING OPPORTUNITY OF CROSS EXAMINATION. 6. DURING THE COURSE OF THE HEARING BEFORE US , THE LD. COUNSEL FOR THE ASSESSEE SUBMITT ED THAT THE ENTIRE ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER BY RELYING ON THE STATEMENT OF SHRI PRADEEP GUPTA. INVITING OUR ATTENTION TO THE STATEMENT OF SHRI PRADEEP GUPTA IT IS SUBMITTED THAT SHRI GUPTA HAS RETRACTED HIS STATEMENT AND THE SAID RETRACTION MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS IS AS FOLLOWS : - I HAVE ALREADY SUBMITTED REVISED INCOME TAX RETURN AS REQUIRED UNDER SECTION 153A OF THE INCOME TAX ACT 1961. I HAVE ADDED RS. 35,00,000/ - (RUPEES THIRTY FIVE LACS) IN MY GROSS TOTAL INCOME IN ASSESSMENT YEAR 2013 - 14 TOWARDS CASH DEPOSIT RECEIPTS ISSUED BY R.M. BHUTHER& CO. WHICH WAS FOUND AT MY RESIDENCE, I HAVE REVIEWED AND PERUSED MY RECORDS AND HAVE NOTHING ELSE TO ADD OR REVISE IN MY IN COME TAX RETURN DURING BLOCK ASSESSMENT PERIOD AND ACCORDINGLY I HAVE FILED INCOME TAX RETURN IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE INCOME TAX ACT 1961. WITH REGARDS TO YOUR QUERIES ABOUT CERTAIN CASH EXPENDITURE MENTIONED IN MY STATEMENT DURING INCOME TAX INVESTIGATION, I HEREBY STATE THAT THE STATEMENT RECORDED UNDER SECTION 132 (4) OF THE INCOME TAX ACT, 1961 CANNOT BE RELIED BECAUSE MY STATEMENT WERE TAKEN ON FEW UNRELATED DOCUMENTS. DURING SEARCH PROCEEDINGS INVESTIGATING OFFICIALS' RIGOROUS AND REPEATED QUESTIONING HAS CAUSED TREMENDOUS MENTAL STRESS ON ME AND TO MY FAMILY AT THAT TIME. THE SEARCH TEAM HAS UNNECESSARY GRILLED AND INTERROGATED ME AND OBTAINED STATEMENTS UNDER SEVERE MENTAL PRESSURE AND HYPER TENSION, IT IS ABSOLUTELY CLEAR THA T THE SEARCH PARTY DID NOT FIND ANY UNACCOUNTED ASSET, MONEY, CASH OR ANY INCRIMINATING EVIDENCES AGAINST ME OR THE ANANDRATHI GROUP FROM MY RESIDENCE. 6 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., I WAS OBVIOUSLY NERVOUS DURING THE SEARCH PROCEEDING AND WAS SUBJECTED TO TRAVEL BETWEEN OFFICES AND RES IDENCES. I HAVE WITNESSED CONTINUED GRILLING AND QUESTIONING TO MY AGEING PARENTS. I COULD NOT BEAR SUCH QUESTIONING AND GRILLING TO MY FAMILY MEMBERS. THIS KIND OF MENTAL AND PHYSICAL TRAUMA I HAD NOT FACED EARLIER IN MY ENTIRE LIFE. THEREFORE, IN SUCH CI RCUMSTANCES WHICH WERE BEYOND MY CONTROL I HAD SIMPLY STARTED FOLLOWING INSTRUCTIONS AND DIRECTIONS GIVEN BY THE INVESTIGATING TEAM. AS IT IS CLEAR THAT AM DIRECTOR OF MANY COMPANIES AND RECEIVE VARIOUS DOCUMENTS AND REPORTS WHICH INCLUDES BUDGET, PROJECTI ON, QUOTATIONS AS WELL PERFORMANCE REPORTS. AT TIMES, WHILE REVIEWING THE VARIOUS REPORTS I NEED TO HAVE THE BRIEF AND BACKGROUND ON VARIOUS REPORTS AND DOCUMENTS. NONE OF THE DOCUMENTS SEIZED BY THE OFFICIALS HAVE BEEN PREPARED OR SIGNED BY ME. THESE ARE MERE EXCEL PRINT OUTS AND I HAVE NOT AUTHORED ANY DOCUMENT OR BEAR MY HAND WRITING. INVESTIGATING TEAM WAS HELL BENT ON QUESTIONING ON EACH AND EVERY PAPER AND NUMBER MENTIONED ON PAPERS FOUND AT MY HOME OR AT OFFICE. HENCE THE STATEMENT WAS OBTAINED FROM ME DURING THE COURSE OF SAID SEARCH ACTION AT MY RESIDENCE OR AT OFFICE UNDER COERCION, WHEREIN I WAS ASKED TO ADMIT ALL UNEXPLAINED NUMBERS AND AMOUNT MENTIONED ON FEW DOCUMENTS AS EITHER CASH RECEIPTS OR CASH PAYMENTS. I WAS INFORMED THAT ULTIMATELY MY S TATEMENTS WILL BE CORROBORATED WITH THE FINANCIAL STATEMENTS AND IN CASE THE FINANCIAL STATEMENTS AND BANK ACCOUNTS ALSO REVEALS SUCH CASH INCOME OR PAYMENT THEN ONLY IT WILL BE ADDED TO MY TOTAL INCOME. I HAVE LEARNT THAT NONE OF THESE STATEMENTS HAVE BEE N VERIFIED OR SOUGHT EXPLANATION AFTER SEARCH ACTION. IN VIEW OF THIS, I HEREBY STATE THAT STATEMENT WHICH HAVE NOT BEEN VERIFIED AND DO NOT REFLECT IN THE AUDITED AND TAXED ACCOUNTS ARE FAR FROM THE TRUTH AND THE SAME SHOULD NOT BE GIVEN ANY CREDENCE AS T HE SAME WAS OBTAINED UNDER UNDUE STRESS AND COERCION WHEN I WAS NOT IN THE PROPER STATE OF MIND. IN THE ABOVE BACKGROUND, I REITERATE THAT UNDER THE ABNORMAL CIRCUMSTANCES AS EXPLAINED ABOVE, I HAD BEEN COMPELLED TO SIGN ON THE DOTTED LINES IN THE STATEMEN TS DRAFTED BY THE INVESTIGATION TEAM, THUS, I WOULD LIKE TO SAY THAT THE STATEMENTS ALLEGED TO BE GIVEN BY ME ARE ILLEGAL, UNLAWFUL, BASELESS AND ABSURD TO THE EXTENT AS AFFIRM HEREUNDER. 7 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., THE STATEMENT THEREFORE MADE BY ME WAS UNDER MENTAL PRESSURE BETWEEN 24 SEPTEMBER, 2013 TO 28' SEPTEMBER, 2013 SHOULD NOT BE TAKEN COGNIZANCE IN ANY OF THE PROCEEDINGS. UNDER THE SAID CIRCUMSTANCES, IN THE ABSENCE OF ANY REAL UNDISCLOSED AND UNACCOUNTED RECEIPT OR INCOME, I RETRACT THE WHOLE STATEMENTS OBTAINED FROM ME AT THE TIME OF SEARCH PROCEEDING. HENCE, IT IS SUBMITTED THAT NO COGNIZANCE OF THE SAME MAY BE TAKEN AT ANY POINT OF TIME AND IN ANY OF THE PROCEEDINGS UNDER THE INCOME TAX ACT AND IT MAY NOT BE INSISTED UPON AND THAT I SHOULD BE FREED FROM THE SAID STATEMENT RECORDED SINCE THE START OF THE SEARCH TILL ITS CONCLUSION. 7. LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT F ROM THE ABOVE RETRACTION IT IS EVIDENT THAT THE STATEMENT OF SHRI PRADEEP GUPTA WAS OBTAINED UNDER UNDUE STRESS AND COERCION AND WHEN HE WAS NOT IN PRO PER STATE OF MIND. HE HAS CLEARLY STATED THAT HE WAS COMPELLED TO SIGN ON THE DOTTED LINES IN THE STATEMENT DRAFTED BY THE INVESTIGATION TEAM. HE HAS STATED THAT NO COGNIZANCE BE TAKEN OF HIS ORIGINAL STATE MENT IN ANY OF THE PROCEEDINGS. 8. THE LD. COUNSEL FO R THE ASSESSEE PLACE D RELIANCE ON THE FOLLOWING DECISIONS IN SUPPORT OF HER ABOVE CONTENTIONS. (I) PULLANGODE RUBBER PRODUCE CO. LTD. V. STATE OF KERALA [1973] 91 ITR 18 (SC) : THEIR LORDSHIPS WHILE OBSERVING THAT ADMISSION IS AN EXTREMELY IMPORTANT PIECE OF EVIDENCE, HELD THAT, IT CANNOT BE SAID TO BE CONCLUSIVE AND THE MAKER CAN SHOW THAT IT WAS INCORRECT. [ALSO REFER S. ARJUN SINGH V. 8 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., CWT [1989] 175 ITR 91/[1988] 41 TAXMAN 272 (DEL.)]. (II) NARAYAN BHAGWANTRAO GOSAVI BALAJIWALE V. GOPAL VINAYAK GOSAVI [ AIR 1960 SC 100 ] : THE HONBLE SUPREME COURT HELD THAT AN ADMISSION IS THE BEST EVIDENCE THAT AN OPPOSITE PARTY CAN RELY UPON AND, THOUGH NOT CONCLUSIVE, YET COULD BE DECISIVE OF THE MATTER UNLESS SUCCESSFULLY WITHDRAWN OR PROVED ERRONEOUS. (III) SATINDER KUMAR (HUF) V. CIT [1977] 106 ITR 64 (SC) : IT WAS HELD THAT IT IS TRUE THAT AN ADMISSION MADE BY AN ASSESSEE CONSTITUTES A RELEVANT PIECE OF EVIDENCE BUT IF THE ASSESSEE CONTENDS THAT IN MAKING THE ADMISSION HE HAD PROCEEDED ON A MISTAKEN UNDERSTANDING OR ON MISCONCEPTI ON OF FACTS OR ON UNTRUE FACTS SUCH AN ADMISSION CANNOT BE RELIED UPON WITHOUT FIRST CONSIDERING THE AFORESAID CONTENTION. (IV) AVADH KISHORE DAS V. RAM GOPAL [ AIR 1979 SC 861 ] : IT WAS HELD THAT EVIDENTIARY ADMISSIONS ARE NOT CONCLUSIVE PROOF OF THE FACTS ADMI TTED AND MAY BE EXPLAINED OR SHOWN TO BE WRONG, BUT THEY DO RAISE AN ESTOPPEL AND SHIFT THE BURDEN OF PROOF ON TO THE PERSON MAKING THEM. THE SUPREME COURT FURTHER HELD THAT UNLESS SHOWN OR EXPLAINED TO BE WRONG, THEY ARE AN EFFICACIOUS PROOF OF THE FACTS ADMITTED. 9. FURTHER, THE LD. COUNSEL FOR THE ASSESSEE INVITING OUR ATTENTION TO THE PAPER BOOK AND THE LETTER DATED 24.02.2016 FILED BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT IS 9 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., SUBMITTED THAT THE ASSESSEE HAS DENIED OF ANY DEALINGS IN CASH AND ALSO REQUESTED NOT TO PLACE RELIANCE ON THE STATEMENT OF SHRI PRADEEP GUPTA. THE CONTENTS OF SAID LETTER REFERRED TO ARE AS UNDER: - WE HAVE ALREADY SUBMITTED INCOME TAX RETURN IN RESPONSE TO NOTICES UNDER SECTION 153A OF THE INCOME TAX ACT 1961 FOR THE PERIOD FROM AY 2008 - 09 TO AY 2013 - 14. WE HAVE REVIEWED AND PERUSED OUR RECORD AND HAVE NOTHING TO ADD OR REVISE IN INCOME TAX RETURN DURING BLOCK ASSESSMENT PERIOD WITH REGARDS TO YOUR QUERIES ABOUT CERTAIN CASH TRANSACTION ON ACCOUNT OF SALE OF FLATS MENTIONED IN STATEMENTS OF SHRIPRADEEP GUPTA, DIRECTOR OF THE COMPANY DURING INCOME TAX INVESTIGATION, WE HEREBY STATE THAT THE STATEMENT RECORDED UNDER SECTION 132 (4) OF THE INCOME TAX ACT, 1961 CANNOT BE RELIED. WE HEREBY DENY THAT THE COMPANY HAS EVER DEALT IN CASH OR RECEIVED ANY CASH COMPENSATION AGAINST SALE OF FLATS. THE COMPANY DOES NOT OWN OR TAKE RESPONSIBILITY OF ANY DOCUMENTS FOUND AT OUR DIRECTOR RESIDENCE. WE HAVE FURTHER VERIFIED THOSE DOCUMENTS AND CAN'T CORROBORATE THE SAM E WITH OUR RECORDS. THUS, IN VIEW OF ABOVE INCOME TAX RETURN FILED IN RESPONSE TO NOTICES UNDER SECTION 153A SHOULD BE TREATED FINAL AND ASSESSED ACCORDINGLY. LD. COUNSEL FOR THE ASSESSEE, T HEREFORE SUBMITTED THAT THE STATEMENT GIVEN BY SHRI PRADEEP GUPTA CANNOT BE RELIED ON AND BASED ON SUCH STATEMENT NO ADDITION IS WARRANTE D IN THE HANDS OF THE ASSESSEE. 10. LD DR STRONGLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES AND SUBMITTED THAT THE ALLEGED DOCUMENTS WERE FOUND/SEIZED FROM CHAMBER 10 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., OF DIRECTOR SHRI PRADEEP GUPTA. THE PAYMENT RECEIVED FROM FLAT OWNERS WERE TALLYING WITH THE ACCOUNTS MAINTAINED BY THE ASSESSEE BUT BASED ON STATEMENT OF THE DIRECTOR ONLY CASH PAYM ENTS WERE RECEIVED. LD.CIT(A) HAS BROUGHT ON RECORD THE CASH AND CHEQUE PAYMENTS CLEARLY. HE SUBMITTED THAT THE RETRACTION WILL NOT ALTER THE FACTS THAT THE ASSESSEE HAS RECEIVED THE ON - MONEY THROUGH THE DIRECTOR. HE RELIED ON THE FINDINGS OF LD.CIT(A) IN THE PARA NO. 3.2 TO 3.6 OF THE ORDER. ALSO CASH GENERATED WERE UTILIZED IN ANOTHER PROJECTS OF THE ASSESSEE. THEREFORE, HE PRAYED THAT THE ORDER OF THE LD.CIT(A) MAY BE CONFIRMED. 11. CONSIDERED THE RIVAL SUBMISSIONS AND FACTS ON RECORD. WE NOTICED THAT DURING SEARCH AND SEIZURE PROCEEDINGS CONDUCTED IN THE CASE OF ANAND RATHI GROUP ALONG WITH OTHER GROUP CONCERNS ON 24.09.2013 SHRI PRADEEP GUPTA ONE OF THE DIRECTOR S OF ASSESSEE COMPANY WAS ALSO COVERED IN THE ABOVE SEARCH AND CERTAIN PAPERS WERE FOUND IN HIS POSSESSION WERE SEIZED. THE ISSUE REVOLVING AROUND THE SEIZED PAPER /DOCUMENT IS REPRODUCED FOR THE SAKE OF CLARITY: - 11 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., 12 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., 12. WHEN CROSS VERIFIED THE ABOVE EVIDENCES WITH SHRI PRADEEP GUPTA , HE AGREED THAT THIS BELONGS TO THE PROJECTS NAMELY VISHWARIYA PROJECT AND PADMAVATI NAGAR PROJECT AT JAIPUR. IN THE STATEMENT HE AGREED THAT CASH OF . 105.57 (62.07 + 43.50) LAKHS WERE GENERATED IN VISHWARIYA PROJECT AND SUBMITTED THAT .47.50 LAKHS WERE UTILIZED IN PADMAVATI NAGAR PROJECT . THE BALANCE W AS UTILIZED IN THE RENOVATION OF HIS OWN FLAT AT BEAU MONDE AT PRABHADEVI, MUMBAI. IT IS IMPORTANT TO NOTE THAT ALL THESE EVIDENCES WERE FOUND IN THE PERSONAL CABIN BELONGS TO THE DIRECTOR SHRI PRADEEP GUPTA . NONE OF THE TRANSACTION S REFLECTED IN THE INC RIMINATING MATERIAL FOUND DURING SEARCH WERE MATCHING WITH THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE. THE ASSESSING OFFICER HAS PRESUMED THAT THESE TRANSACTIONS WERE CARRIED OUT BY THE DIRECTOR AND WILL DEFINITELY BELONGS TO THE ASSESSEE. THE OTHE R RELEVANT ISSUE IS SHRI PRADEEP GUPTA HAS RETRACTED THE STATEMENT RECO RDED DURING SEARCH PROCEEDINGS. 13. WE ALSO NOTICE THAT THE INCRIMINATING MATERIAL FOUND DURING SEARCH DOES NOT CONTAIN ANY SIGNATURE OR OWNERSHIP TO THE SAID DOCUMENT. THIS DOCUMENT MAY B E PERSONAL DOCUMENT MAINTAINED BY SHRI PRADEEP GUPTA FOR HIS OWN BENEFIT OR UTILISATION. THERE IS NO LINK TO THE ASSESSEE EXCEPT 13 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., PRESUMPTION THAT IT IS RELATING TO THE PROJECT CARRIED OUT BY THE ASSESSEE. IT IS ALSO RELEVANT TO NOTE THAT ASSESSING OFFICE R HAS NOT CROSS VERIFIED THE CASH TRANSACTIONS WITH THE BUYERS. 14. IN THE GIVEN CASE, CERTAIN INCRIMINATING MATERIAL FOUND IN THE POSSESSION OF ONE OF THE DIRECTOR S AND IT IS THE QUESTION OF OWNERSHIP OF THE ABOVE MATERIAL FOUND DURING SEARCH. JUST BECAUSE THE TRANSACTION CONTAINED IN THE PIECE OF PAPER RELATING TO THE PROJECT , I T IS NOT PROPER TO PRESUME THAT THE TRANSACTION MUST HAVE BEEN CARRIED ON BY THE ASSESSEE. 15. WE ALSO NOTICE THAT SHRI PRADEEP GUPTA ACCEPTED THAT CERTAIN PORTION OF THE CA SH WAS UTILIZED IN THE RENOVATION OF FLATS BELONG ING TO HI M . IF IT IS UTILISED FOR THE PERSONAL PURPOSES BY SHRI PRADEEP GUPTA , HOW COME IT IS SAID THAT IT IS RELATING TO THE ASSESSEE. IT CLEARLY INDICATES THAT THE TRANSACTION IS CARRIED OUT BY THE DIRECTOR OF THE COMPANY FOR HIMSELF AND NOT BY THE ASSESSEE. IN OUR VIEW, THE INCRIMINATING MATERIAL FOUND DURING SEARCH WAS NEVER OWNED BY THE ASSESSEE AND ONLY DIRECTOR HAS ACCEPTED IT. WHY IT CANNOT BE SAID THAT THE TRANSACTION CARRIED ON BY THE DIRECTOR IS FOR HIMSELF IN HIS PERSONAL CAPACITY. IT IS ONLY DIRECTOR WHO HAS OWNED U P THE TRANSACTION AND DEPARTMENT SHOULD HAVE INITIATED 14 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., THE PROCEEDINGS IN THE HANDS OF T HE DIRECTOR AND NOT THE ASSESSEE. NOW, THE DIRECTOR HAS RETRACTED THE STATEMENT ON THE BAS IS OF COERCION THE WHOLE STATEMENT AND THE PRESUMPTION APPLIED BY THE REVENUE AUTHORITIES ARE ON DAISY GROUND. IN OUR VIEW, THE DOCUMENT FOUND DURING THE SEARCH BELONGS TO THE DIRECTOR AND HE HAS PROFITED FROM THE TRANSACTION EVEN IF IT IS PRESUMED THAT T HE CASH WAS ACTUALLY RECEIVED BY THE DIRECTOR OF THE COMPANY AND ADMITTEDLY PART OF IT WAS SAID TO HAVE BEEN UTILISED BY HIM FOR HIS PERSONAL USE. FURTHER, THE ASSESSING OFFICER NEVER CORROBORATED THE TRANSACTION WITH THE BUYERS OF THE FLAT AND SIMPLY RELI ED ON THE STATEMENT OF SHRI PRADEEP GUPTA . 16. THEREFORE, THE ADDITION IN THE HANDS OF THE ASSESSEE BASED ON PRESUMPTION IS NOT CALLED FOR. THE RIGHT MODE OF ACTION SHOULD HAVE BEEN TO INITIATE PROCEEDINGS AGAINST THE DIRECTOR AND CORROBORATED THE TRANSACTION WITH THE BUYERS OF THE FLAT. 17. THERE ARE VARIOUS JUDICIAL PRECEDENTS WHEREIN, IT HAS BEEN HELD THAT NO ADDITION CAN BE MADE ON THE BASIS OF STATEMENT WHICH HAS BEEN OBTAINED UNDER UNDUE STRESS AND COERCION. AFTER THE RETRACTION MADE BY DIRECTOR O F COMPANY, ORIGINAL STATEMENT HAS NO EVIDENTIARY VALUE. 15 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., 18. FURTHER, IT IS SUBMITTED THAT IN ORDER TO PROVE THAT NO RELIANCE CAN BE PLACED ON THE RETRACTION MADE BY DIRECTOR OF ASSESSEE COMPANY, THE ASSESSING OFFICER MUST HAVE MADE THE EFFORTS FOR ISSUING NOTI CE/SUMMONS TO BUYERS OF THE FLAT BUT ASSESSING OFFICER CHOSE NOT TO MAKE ANY FURTHER ENQUIRY AND HAS PLACED RELIANCE ONLY ON THE ORIGINAL STATEMENT. THE ASSESSING OFFICER SHOULD HAVE MADE CROSS VERIFICATION WITH THE BUYERS OF THE FLAT, WHICH THE ASSESSING OFFICER HAS FAILED TO DO SO IN THE PRESENT CASE AND MERELY MADE ADDITION ON THE BASIS OF STATEMENT OF DIRECTOR OF COMPANY . DURING THE COURSE OF ASSESSMENT PROCEEDINGS WHEN THE DIRECTOR OF ASSESSEE COMPANY DENIED OF RECEIPT OF ANY ON - MONEY IT WAS THE DUTY OF ASSESSING OFFICER TO ISSUE SUMMONS TO BUYERS OF THE FLATS AND MAKE ENQUIRIES WHICH THE ASSESSING OFFICER HA S FAILED TO DO IN THE PRESENT CASE. 19. FURTHER, THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS AS WELL AS BEFORE US SUBMITTED IN PAPER BOOK, THE REGISTERED AGREEMENTS OF FLATS ON THE SALE OF WHICH THE ASSESSING OFFICER HAS MADE ALLEGATION OF RECEIPT OF CASH OVER AND ABOVE CHEQUE VALUE . IT IS OBSERVED IN CASE OF ALL THE FLATS, THE REGIST ERED VALUE IS ALWAYS MUCH MORE THAN THE STAMP DUTY VALUE. HENCE, THE FLATS HAVE BEEN SOLD BY ASSESSEE AT THE REASONABLE 16 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., PRICE. THE ASSESSEE ALSO SUBMITTED THAT THERE WAS A PARTNERSHIP IN VISHWARIYA PROJECT BETWEEN ASSESSEE AND KHUSHI HEIGHTS WHEREIN, THE A SSESSEE WAS SHARING 60% OF PROFITS AND KHUSHI HEIGHTS WAS SHARING 40% OF PROFITS. FOR THE SAKE OF BREVITY, THE DETAILS OF VARIOUS FLATS SOLD IN PREVIOUS YEAR RELEVANT TO AY 2013 - 14 AND AY 2014 - 15 ARE GIVEN AS UNDER: - PKG FINSTOCK PVT LTD DETAILS OF SALES FOR THE YEAR 2012 - 2013 ( AY 2013 - 2014) SR. NO. FLAT NO. NAME OF THE BUYER PAN NO. DATE OF REGISTRATION AREA OF THE FLAT STAMP DUTY VALUE AMOUNT OF SALE PAYMENT RECEIVED BY PKG DATE PAYMENT RECEIVED BY KHUSHI HEIGHTS PROJECT : VISHVESHRIYA NAGAR, GOPALPURA BYE PASS, JAIPUR 1 G/1 RAJAT JAIN AFBPJ3899L 24/08/2012 1920 SQ.FT 25,93,241 34,50,000 20,70,000 23.08.2012 13,80,000 GROUND FLOOR SHOBHIT JAIN AGUPJ7493C FLAT NUNBER 102 GOLDEN SOUBHAGY RAJENDER MARG BAPU NAGAR JAIPUR 2 G/2 ARCHNA JAIN W/O AALOK JAIN ALJPJ6788N 30/11/2012 915.83 SQ.FT 15,90,438 20,00,000 12,00,000 30.11.2012 8,00,000 GROUND FLOOR 115 PANCH WATI WARD NO 46 ALWER (RAJASTHAN) 3 F/1 SUNIL KUMAR GOYAL ABOPG4618B 24 - 09 - 2012 1554.61 SQ.FT 20,78,049 24,35,000 14,61,000 24.09.2012 9,74,000 FIRST FLOOR S/O RAMSWROOP GOYAL 15/42 MALVIYA NAGAR JAIPUR 4 F/2 DR YOGESH KUMAR BHRGAV AHGPB1086Q 14/12/2012 1114.80 SQ.FT 18,07,355 22,00,000 5,00,000 11.12.2012 8,80,000 FIRST FLOOR S/O DEVI PRASHAD BHARGAV 8,20,000 14.12.2012 1 A BANGLA JAT STATION ROAD SITAPUR (UP) 5 S/1 ANIL KUMAR BANSAL ABWPB0310K 18/10/2012 1567.59 SQ.FT 28,37,567 27,00,000 16,20,000 16.10.2012 10,80,000 SECOND FLOOR S/O RAMESHWAR PRASHAD GUPTA 7 UMA PATH RAMNAGAR SODALA JAIPUR (RAJASTHAN) TOTAL SALES AMOUNT 1,09,06,650 1,27,85,000 76,71,000 51,14,000 17 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., 20. FROM THE ABOVE DETAILS OF STAMP DUTY VALUE AND ACTUAL SALE AMOUNT, IT IS EVIDENT THAT NO FLAT HA S BEEN SOLD BY THE ASSESSEE ON LESS THAN THE STAMP DUTY VALUE SO AS TO RAISE ANY SUSPICION ABOUT RECEIPT OF ON - MONEY OF SALE OF FLATS. ALL THE FLATS ARE SOLD AT ABOVE STAMP DUTY/MARKET VALUE WHICH ITSELF SHOWS THAT IS IT NOT CONCLUSIVELY PROVED THAT THE ASSESSEE HAS RECEIVED ANY ON - MONEY. 21. THUS, IN VIEW OF THE FACT THAT ORIGINAL STATEMENT OF DIRECTOR ON THE BASIS OF WHICH THE ASSESSING OFFICER MADE ADDITION HAS BEEN RETRACTED AND ORIGINAL STATEMENT DOES NOT HOLD GOOD AND IN VIEW OF THE FACT THAT FLATS HAVE BEEN SOLD AT THE PRICE MUCH ABOVE STAMP DUTY VALUE, WE HOLD THAT THE SEIZED MATERIAL AND THE STATEMENT OF SHRI PRADEEP GUPTA DO NOT CONCLUSIVELY PROVE THAT ON - MONEY HAS BEEN RECEIVED BY THE ASSESSEE ON SALE OF FLATS . IN THE CIRCUMSTANCES, THE APPEAL OF THE ASSESSEE IS ALLOWED IN TERMS OF OUR AFO RESAID OBSERVATIONS AND THE ASSESSING OFFICER IS DIRECTED TO DELETE THE ADDITION MADE ON ACCOUNT OF ALLEGED ON - MONEY CASH RECEIPT OF .105.57 LAKHS. GROUNDS RAISED BY THE ASSESSEE ON THIS ISSUE ARE ALLOWED. 18 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., ITA.NO. 5264/MUM/2018 (A.Y. 2014 - 15) 22. WE SHALL NOW ADVERT TO T HE APPEAL OF THE ASSESSEE FOR A.Y. 2014 - 15. THE IMPUGNED ORDER HAS BEEN ASSAILED ON THE FOLLOWING GROUNDS OF APPEAL BEFORE US: 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ORDER PASSED BY THE ASSESSING OFFICER U/S 14 3(3) OF THE INCOME TAX ACT, 1961 WHICH IS ILLEGAL AND BAD IN LAW. 2. THE LEARNED CIT(A) HAS ERRED IN PASSING THE ORDER IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 3. THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF RS. 32,64,625/ - MADE BY THE A SSESSING OFFICER AS ALLEGED UNACCOUNTED INCOME RECEIVED FROM SALE OF FLATS OVER AND ABOVE REGISTERED VALUE. 4. THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF RS. 25,50,575/ - MADE BY THE ASSESSING OFFICER AS ALLEGED UNEXPLAINED PORTION OF CASH IN VESTMENT IN IMMOVABLE PROPERTY U/S 69B OF THE ACT. 5. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND, ALTER OR DELETE ALL OR ANY OF THE FOREGOING GROUNDS OF APPEAL. 23. ON THE BASIS OF SEARCH AND SEIZURE PROCEEDINGS CONDUCTED ON 24.09.2014 UNDER SEC. 132 OF THE ACT IN THE CASE OF ANAND RATHI GROUP, THE ASSESSING OFFICER ISSUED NOTICE U/S 143(2) DATED 16.09.2015 AND THE ASSESSMENT U/S 143(3) WAS FRAMED IN THE CASE OF THE ASSESSEE COMPANY AND ITS INCOME WAS ASSESSED AT . 1,05,06,290 / - VIDE ORDER DATED 31.03.2016 . A GGRIEVED, THE ASSESSEE ASSAILED THE ADDITIONS MADE IN THE 19 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., ASSESSMENT BEFORE THE LD. CIT(A). HOWEVER, THE LD. CIT(A) NOT FINDING FAVOUR WITH THE CONTE NTIONS ADVANCED BY THE ASSESSEE DISMISSED THE APPEAL. 24. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF THE LD. CIT(A) HAS CARRIED THE MATTER IN APPEAL BEFORE US. AS ONE OF THE ISSUE OF RECEIPT OF ON - MONEY ON SALE OF FLAT NO . 302 AND 303 OF UNIQUE BUILDERS AMOUNTING TO .32,64,625/ - INVOLVED IN THE PRESENT APPEAL OF THE ASSESSEE REMAINS THE SAME AS WERE THERE BEFORE US I N ITS APPEAL FOR A . Y , 2013 - 14 IN ITA NO. 5263/ MUM /2018 . IN THE PRESENT APPEAL ALSO THE ASSESSEE HAS ARGUED THAT NO RELIANCE CAN BE PLACED ON THE ORIGINAL STATEMENT OF DIRECTOR WHICH HAS BEEN RETRACTED AND THE ASSESSEE FOR THE PRESENT ASSESSMENT YEAR ALSO SUBMITTED THE REGISTERED AGREEMENTS FOR PURCHASE AND SALE OF FLATS AND HAS ALSO SUBMITTED THE DETAILS OF STAMP DUTY VALUE AND ACTUAL PRICE AT WHICH THE FLATS ARE SOLD WHICH IS TABULATED AS UNDER: - PKG FINSTOCK PVT LTD DETAILS OF SALES FOR THE YEAR 2013 - 2014 ( AY 2014 - 2015) SR. NO. FLAT NO. NAME OF THE BUYER PAN NO. DATE OF REGISTRATION AREA OF THE FLAT STAMP DUTY VALUE AMOUNT OF SALE PAYMENT RECEIVED DATE FLAT AT : UNIQUE TOWER, VILL. MAHAL JAIPUR 1 F/302 SHOBHA SHRIVASTAV ABPPS9346F 06 - 06 - 2013 1310.28 SQ.FT 22,95,163 29,48,130 1,00,000 25.05.2013 FIRST FLOOR W/O SHELENDRA SHRIVASTAV 28,48,130 05.06.2013 C - 39 A M D COLONY NAKA MADAR AJMER (RAJASTHAN) 2 F/303 GOURAV GUPTA AFMPG6911M 16 - 04 - 2013 1237.53 SQ.FT 21,67,989 27,84,438 5,00,000 19.02.2013 FIRST FLOOR S/O KULDEEPSINGH GUPTA 56,888 03.04.2013 154 A D GANDHI NAGAR JAMMU ( J&K) 22,27,550 12.04.2013 TOTAL 1,03,10,568 1,03,10,568 20 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., 25. THUS, FROM THE ABOVE, IT WAS OBSERVED THAT THE FLATS HAVE BEEN SOLD BY THE ASSESSEE AT A PRICE MUCH HIGHER THAN THE STAMP DUTY VALUE AND THUS, THE ORDER PASSED BY US WHILE DISPOSING OFF THE APPEAL OF THE ASSESSEE FOR A .Y. 2013 - 14 SHALL APPLY MUTATIS MUTANDIS FOR DISPOSING THE PRESENT APPEAL FOR A.Y 201 4 - 15. ACCORDINGLY, THE ADDITION MADE IN THE PRESENT APPEAL IS ALSO DELETED. GROUND NO. 3 IS ALLOWED. 26. IN THE PRESENT APPEAL APART FROM THE ISSUE OF RECEIPT OF ON - MONEY, THE ASSESSEE HAS ALSO CHALLENGED ADDITION OF . 25,50,575/ - MADE BY THE ASSESSING OFFICER AND CONFIRMED BY LD. CIT(A) AS ALLEGED UNEXPLAINED PORTION OF CASH INVESTMENT IN IMMOVABLE PROPERTY U/S 69B OF THE ACT. 27. THE FACTS OF THIS ISSUE IS THAT THE ASSESSING OFFICER , ON THE BASIS OF SEIZED MATERIAL AND STATEMENT OF SHRI PRADEEP GUPTA, HAS ALSO HELD INVESTMENT OF . 58,15,200/ - AS UNACCOUNTED INVESTMENT IN SID D HARTH NAGAR PLOT AND AFTER HOLDING THAT PART OF THE INVESTMENT OF . 32,64,627/ - HAS BEEN MADE OUT OF ALLEGED CASH GENERATED ON SALE OF FLAT N O. 302 AND 303 OF UNIQUE BUILDERS, THE ASSESSING OFFICER HAS MADE NET ADDITION OF . 25,50,575/ - (58,15,200 32,64,627) BY TREATING THE SAME AS UNACCOUNTED INVESTMENT U/S 69B OF THE I NCOME TAX ACT, 1961. 21 ITA NOS. 5263 & 5264/MUM/2018 (A.Y. 2013 - 14 & A.Y. 2014 - 15) M/S. PKG FINSTOCK PVT. LTD., 28. WE ARE OF THE VIEW THAT THE SAID ADDITION WAS ALSO MADE ON THE BASIS OF ORIGINAL STATEMENT OF DIRECTOR OF COMPANY SHRI PRADEEP GUPTA , WHICH DOES NOT HOLD GOOD AFTER THE SAME HAS BEEN RETRACTED BY THE DIRECTOR FOR THE REASONS GIVEN BY U S IN OUR EARLIER PARAGRAPH S WHILE DISPOSING OFF THE APPEAL FOR A.Y. 2013 - 14. HENCE, THE ADDITION OF . 25,50,575/ - IS DELETED. GROUND NO. 4 IS ALLOWED. 29. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED ON 07 .06.2021 AS PER RULE 34(4) OF ITAT RULES BY PLACING THE PRONOUNCEMENT LIST IN THE NOTICE BOARD. SD/ - SD/ - (C.N. PRASAD) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI / DATED 07 / 06/2021 GIRIDHAR, SR.PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM