ACIT 22 (3), MUMBAI V. SAEEDA YUSUF SAIKH, MUMBAI

ITA 6479/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1656 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2015-2016
• Appeal Filed On: 11-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GURBINDER SINGH
• Keywords: Unexplained cash credit; Unexplained investment; Sale consideration of property below Jantri Value; Additional evidence; Set aside
• Section: 68; 69; 144; 69C; 142(1); 133(6); 205; 201; 13; 101; 20

Judgement Text

ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H MUMBAI BEFORE SHRI RAJESH KUMAR (ACCOUNTANT MEMBER) AND SHRI RAVISH SOOD (JUDICIAL MEMBER) ITA NO.6479/MUM/2019 (ASSESSMENT YEAR: 2015 - 16) ACIT - 22(3) 305, 3 RD FLOOR, PIRAMAL CHAMBERS, LAL BAUG, PAREL, MUMBAI 400 012 VS. SAEEDA YUSUF SAIKH A/307/308, KAILASH PRABHAT BLDG., KURIYA ESTATE, KALINA, SANTACRUZ (WEST), MUMBAI 400 055 PAN NO. BCMPS5317K ( REVENUE ) ( ASSESSEE ) ASSESSEE BY : SHRI RAJIV KHANDELWAL , A.R REVENUE BY : SHRI GURBINDER SINGH , D.R DATE OF HEARING : 08/06/2021 DATE OF PRONOUNCEMENT : 24 /06/2021 ORDER PER RAVISH SOOD, J.M: THE PRESENT APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) - 34, MUMBAI, DATED 25.03.2019, WHICH IN TURN ARISES FROM THE ASSESSMENT ORDER PASSED BY THE A.O UNDER SEC. 144 OF THE INCOME TAX ACT, 1961 (FOR SHORT ACT), DATED 27.12.2017. THE REVENUE HAS ASSAILED THE IMPU GNED ORDER ON THE FOLLOWING GROUNDS BEFORE US : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN DELETING THE ADDITION OF RS.6,64,12,312/ - U/S 69C OF THE I.T. ACT. ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN DELETING THE ADDITION U/S 69 OF THE I.T. ACT, WITHOUT FOLLOWING DUE PROCESS OF RULE AND LAW. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND LAW, THE CIT(A) ERRED I N NOT INTERPRETING RULE 46A IN LETTER AND SPIRIT AND IN NOT ALLOWING THE A.O TO CROSS EXAMINE NOR EXAMINE THE SUBMISSIONS, EXPLANATIONS PROVIDED BEFORE THE APPELLATE AUTHORITY. 4. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT(A) ON THE ABOVE GROUNDS B E SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 5. THE APPELLANT CRAVES LEAVE TO AMEND OR TO ALTER ANY GROUND OR ADD A NEW GROUND, WHICH MAY BE NECESSARY. 2. BRIEFLY STATED, THE ASSESSEE HAD E - FILED HER RETURN OF INCOME FOR A.Y 201 5 - 1 6 ON 09. 12.2016, DECLARING A TOTAL INCOME OF RS.22,33,800/ - . SUBSEQUENTLY, THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT UNDER COMPUTER AIDED SCRUTINY SELECTION (FOR SHORT CASS ) , FOR THE REASON, THAT THE INVESTMENTS IN PROPERTY MADE BY HER DURI NG THE YEAR WERE NOT COMMENSURATE TO HER RETURNED INCOME . 3. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE A.O ISSUED NOTICE S UNDER SEC.142(1) ON VARIOUS DATES, VIZ 21.09.2017; 26.10.2017; 09.11.2017; 17.11.2017 AND 30.11.2017, WHEREIN THE ASSESSEE WAS INTER ALIA CALLED UPON TO FURNISH DETAILS OF THE PROPERTIES THAT WERE PURCHASED BY HER DURING THE YEAR ALONG WITH THE SOURCES THEREOF. HOWEVER, THE ASSESSEE DESPITE SP ECIFIC DIRECTIONS FAILED TO FURNISH THE REQUISITE DETAILS AS WERE CALLED FOR BY THE A.O. IN THE BACKDROP OF THE AFORESAID FACT S THE A.O BEING LEFT WITH NO OTHER ALTERNATIVE PROCEEDED WITH THE ASSESSMENT ON AN EX - PARTE BASIS UNDER SEC. 144 OF THE ACT . ON A PERUSAL OF THE ANNUAL INFORMATION RETURN (FOR SHORT AIR ) PERTAINING TO THE ASSESSEE, IT WAS OBSERVED BY THE A.O THAT THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION HAD PURCHASED THE FOL LOWING IMMOVABLE PROPERTIES : SR. NO. AMOUNT INVESTED DATE OF TRANSACTION/REGISTRATION REGISTERED WITH ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 3 1. RS. 321,95,300 05.05.2014 JT.SUB REGISTRAR, ANDHERI 2. RS. 136,66,512 05.05.2014 JT. SUB REGISTRAR, KURLA 3. RS. 56,07,000 07.06.2014 JT. SUB REGISTRAR, KURLA 4. RS. 53,57,500 07,06.2014 JT. SUB REGISTRAR, KURLA 5. RS. 47,93,000 07.06.2014 JT. SUB REGISTRAR, KURLA 6. RS. 47,93,000 06.06.2014 JT. SUB REGISTRAR, KURLA RS. 6,64,13,312 THE A.O IN THE COURSE OF THE ASSESSMENT PROCEEDINGS CALLED FOR THE C OPIES OF THE AGREEMENT S FROM THE J OINT SUB - REGISTRAR ( S ) , MUMBAI. ON A PERUSAL OF THE AFORESAID AGREEMENT S , THE A.O WAS OF THE VIEW THAT THE AFOREMENTIONED PROPERTIES WERE REGISTERED/ACQUIRED BY THE ASSESSEE DURING THE YEAR IN QUESTION. OBSERVING, THAT THE ASSESSEE HAD FAILED TO SUBSTANTIATE THE NATURE AND SOURCE OF THE INVESTMENTS MADE BY HER IN THE AFOREMENTIONED PROPERTIES DURING T HE YEAR , THE A.O TREATED THE ENTIRE AMOUNT OF THE IMPUGNED INVESTMENTS OF RS. 6,64,12,312/ - AS THE UNEXPLAINED INVESTMENT S OF THE ASSESSEE UNDER SEC. 69 OF THE ACT. ALTERNATIVELY, IT WAS OBSERVED BY THE A.O , THAT EVEN IF THE INVESTMENT S IN QUESTION WERE RECORDED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE, EVEN THEN, IN ABSENCE OF ANY EXPLANATION AS REGARDS THE CORRESPONDING SOURCE THEREOF THE SAME COULD SAFELY BE BROUGHT WITHIN THE MEANING OF SEC. 68 OF THE ACT. BACKED BY HIS AFORESAID DELIBERATIONS THE A.O VIDE HIS ORDER PASSED UNDER SEC. 144, DATED 27.12.2017 ASSESSED THE ASSESSEES INCOME AT RS.7,42,91,160/ - . 4. AGGRIEVED, THE ASSESSEE ASSAILED THE ASSESSMENT ORDER BEFORE THE CIT(A). REBUTTING THE ADDITION THAT WAS MADE BY THE A.O TOWARDS UNEXPLAINED INVESTMENT S I N PROPERTIES OF RS.6,64,12,312/ - , I T WAS SUBMITTED BY THE ASSESSEE THAT THE A.O HAD MADE THE IMPUGNED ADDITION ON THE BASIS OF THE AGREEMENT S WHICH WERE OBTAINED BY HIM FROM THE OFFICE OF THE J OINT SUB - REGISTRAR (S) , MUMBAI , WITHOUT PERUSING THE CONTENTS OF THE SAME. IT WAS THE CLAIM OF THE ASSESSEE THAT DURING THE YEAR IN REFERENCE ONLY THE AGREEMENTS WERE ENTERED INTO AND REGISTERED WITH RESPECT TO THE PROPERTIES IN QUESTION WHICH WERE STILL UNDER CONSTRUCTION AND FULL AMOUNT WAS NOT PAID IN ANY OF THE CASES. ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 4 IT WAS THE CLAIM OF THE ASSESSEE THAT WHATEVER AMOUNT WAS PAID, THE SAME , EXCEPT FOR AN AMOUNT OF RS.13,32,000/ - , PERTAINED TO THE EARLIER YEARS ON THE BAS IS OF HER AFORESAID CONTENTIONS, IT WAS THE CLAIM OF THE ASSESSEE THAT THE A.O WITHOUT PERUSING THE CONTENTS OF THE AGREEMENT S HAD SIMPLY ADDED THE STAMP DUTY VALUE OF THE PROPERTIES IN QUESTION AS WERE REFLECTED IN THE AIR REPORT. IN SUM AND SUBSTANCE, IT WAS THE CLAIM OF THE ASSESSEE THAT SHE HAD ONLY ENTERED INTO THE RESPECTIVE AGREEMENT S DURING THE YEAR IN QUESTION , AND EXCEPT FOR AN INVESTMENT OF RS.13,32,000/ - HAD NOT MADE ANY OTHER INVESTMENT DURING THE YEAR UNDER CONSIDERATION. INSOFAR THE INVESTMENT OF RS.13,32,000/ - WAS CONCERNED, IT WAS THE CLAIM OF THE ASSESSEE THAT TH E SAME WAS SOURCED FROM HER DULY DISCLOSED SOURCES REFLECTED IN THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. FOR THE SAKE OF CLARITY THE SUBMISSIONS FILED BY THE ASSESSEE QUA THE ADDITION OF RS.6,64,12,312/ - THAT WAS MADE BY THE A.O U/S 69 OR U/S 68 ARE REPRODUCED AS UNDER: RE GROUND OF APPEAL NO. 3 2.1. THE ASSESSING OFFICER HAS MADE AN ADDITION OF RS 6,64,12,312 UNDER SECTION 69 OF THE ACT, OBSERVING IN PARA. 7 THAT 'IN VIEW OF THE FAILURE OF THE ASSESSEE TO PRODUCE SUPPORTING DOCUMENTARY EVIDENCES TO PROVE THAT THE INVESTMENTS ARE RECORDED IN BOOKS AND TO OFFER ANY \ EXPLANATION WITH REGARDS TO SOURCES OF INVESTMENTS MADE, THE TOTAL INVESTMENTS OF RS.6,64,12,312/ - MADE BY THE ASSESSEE DURING THE F.Y.2014 - 15 RELEVANT TO A .Y.2015 - 16 IS TREATED AS UNEXPLAINED INVESTMENTS U/S.69 IF THE I.T. ACT' 2.2 FURTHER, WITHOUT PREJUDICE TO THE ADDITION MADE UNDER SECTION 69 OF THE ART, THE ASSESSING OFFICER HAS MADE THE ADDITION OF THE AFORESAID RS . 6,64,12, 312 / - UNDER SECTION 68 OF THE ACT, CONCLUDING THAT, <( EVEN W HEN IT IS CONSIDERED THAT THE INVESTMENTS ARE RECORDED IN THE BOOKS, THE C ORRESPONDING SOURCES REMAINED UNEXPLAINED.' FACTS 2.3. THE AIR INFORMATION SUGGESTED THAT THE APPELLANT HAS PURCHASED IMMOVABLE PROPERTIES. THE CASE WAS ACCORDINGLY SELECTED FOR' SCRUTINY. THE APPELLANT DID NOT RESPOND TO THE VARIOUS NOTICES OF THE ASSESSING OFFICER, AND HENCE, HE UNDER SECTION 133(6) OF THE A CT, OBTAINED FROM THE OFFICE OF JT. SUB ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 5 REGISTRAR, MUMBAI } COPY OF AGREEMENTS (6 NOS) EXECUTED BY THE APPELLANT DURING THE YEAR. 2.4. DURING THE YEAR UNDER REFERENCE, THE APPELLANT HAS ENTERED INTO THE FOLLOWING AGREEMENTS FOR PURCHASE OF CERTAIN IMMOVABL E PROPERTIES, DETAILS OF WHICH ARE GIVEN BELOW (ALSO REFER PARA 5 OF THE ASSESSMENT ORDER) SR. NO. PARTICULARS AGREEMENT DATE AGREEMENT VALUE (IN RS.) STAMP DUTY VALUE (IN RS.) 1. FLAT 101 AND 201 - INSIGNIA 05.05.2014 2,62,00,000 3,21,95,300 2. FLAT 1806 - MAJESTIC TOWER 04.05.2014 1,17,75,000 1,36,66,512 3. FLAT 903 PREMIER EXOTICA 25.06.2014 49,41,840 56,07,000 4. SHOP E3 PREMIER EXOTICA 05.06.2014 53,35,000 53,57,500 5. SHOP E4 PREMIER EXOTICA 05.06.2014 47,85,000 47,93,000 6. SHOP D11 - PREMIER EXOTICA 05.06.2014 47,85,000 47,93,000 5,78,21,840 6,64,12,312 2 .5. THE ASSESSING OFFICER HAS, UNDER SECTION 69, MADE ADDITION OF RS. 6,64,12,312, BEING THE STAMP DUTY VALUE OF THE 6 AGREEMENTS RECEIVED BY HIM FROM T HE JT SUB REGISTRAR, MUMBAI. CONTENTIONS 2.6. FLAT 101 AND 201 - INSIGNIA RS. 3,21,95,300 2. 6.1. PLEASE REFER THE AGREEMENT DATED 5 T H MAY, 2014 FOR PURCHASE OF THE IMMOVABLE PROPERTY - REFER PAGE NOS . 6 TO 91 OF THE PAPER BOOK. ON PERUSAL OF THE SAME, PARTICULARLY, PARA 1 OF THE AGREEMENT (PAGE NO 12 OF THE PAP ER BOOK), IT CAN BE SEEN THAT THE PROPERTY IS UNDER CONSTRUCTION ON EXECUTION OF THE AGREEMENT. 2.6 .2. FURTHER, PLEASE REFER CLAUSE L (PAGE NO 12 OF THE PAPER BOOK AND - RECEIPT OF THE SELLER (PAGE NO 31 OF THE PAPER/BOOK). IT IS EVIDENT THAT THE APPELLANT HA S MADE PAYMENTS AGGREGATING TO RS . 78,30,182 TILL THE DATE OF EXECUTION OF THE AGREEMENT. 2.6.3. THE ASSESSING O FFICER HAS MADE THE IMPUGNED AD DITI O N ON THE BASIS OF THE AGREEMENT OBTAINED BY HIM FROM THE OFFICE OF JT . SUB REGISTRAR, MUMBAI. THUS, COPY OF THE AGREEMENT IS IN THE POSSESSION OF THE ASSESSING OFFICER. THE SAID AGREEMENT SPECIFICALLY STATES, AS MENTIONED ABOVE, TH AT THE APPELLANT H AS MADE PAYMENTS AGGREGATING RS. 78,30,182 TILL THE DATE OF EXECUTION OF THE AGREEMENT THE ASSESSING OFFICER, THUS, COULD NOT HAVE MADE THE IMPUGNED ADDITION OF RS.3,21,95,300 WHEN THE APPELLANT HAS MADE INVESTMENT ONLY OF A SUM OF RS. 78,3 0,182. 2.6.4. FURTHER, THE APPELLANT SUBMITS THAT SHE H AS MADE PAYMENTS AGGREGATING RS. 64,98,182 TOWARDS PURCHASE OF THE PROPERTY BEFORE THE COMMENCEMENT OF THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDE R REFERENCE AND. THE BALANCE RS. 13,32,000 IS PAID DURING THE YEAR UNDER REFE RENCE AND HENCE, THE ASSESSING OFFIC ER COU LD NOT HAVE MADE ADDITION OF RS. 3,21,95,300, BEING THE STAMP DUTY VALUE MENTIONED ON THE AGREEMENT, AS THE SAME IS NOT IN ACCORDANCE WITH ANY PROVISION OF THE ACT, MUCH LESS THE PROV ISIONS OF SECTION 69/ 68 OF THE ACT. IN VIEW OF THE ABOVE, THE IMPUGNED ADDITION OUGHT NOT TO HAVE BEEN MADE BY THE ASSESSING OFFICER. ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 6 2.7. FLAT 1806 - MAJESTIC TOWER RS. 1,36,66,512 2.7.1. PLEASE REFER THE AGREEMENT DATED 4 T H MAY, 2014 FOR PURCHASE OF THE IMMOVABLE PROPERTY - REFER PAGE NOS . 92 TO 145 OF THE PAPER BOOK. ON PERUSAL OF THE SAME, PARTICULARLY, PARA 3 OF THE AGREEMENT (PAGE NO 95 OF THE PAPER BOOK), IT CAN HE SEEN THAT THE PROPERTY IS UNDER CONSTRUCTION ON DATE OF THE AGREEMENT. 2.7.2. FURTHER, PLEASE REFER CLAUSE 'O (PAGE NO 94 OF THE PAPER BOOK.) AND REC EIPT OF THE SELLER (PAGE NO 110 OF THE PAPER BOOK). IT IS EVIDENT THAT THE A PPELLANT HAS MADE A PAYMENT OF R S . 28,00,000 TILL THE DATE OF AGREEMENT, THAT TOO DURING THE YEAR EN DED 31ST MARCH, 2013, RELEVANT TO ASSESSMENT YEAR 2013 - 14. 2.7.3. THE APPELLANT SUBMITS THAT THE ASSESSING OFFICER HAS MADE ADDITION ONLY ON THE BASIS OF AGREEMENT OBTAINED FROM THE OFFICE OF JT . SUB REGISTRAR, MUMBAI. THUS, COPY OF THE AGREEMENT IS IN THE POSSESSION OF THE ASSESSING OFFICER. ON PERUSAL OF THE RECEIPT ISSUED BY THE SELLER ON THE DAT E OF EXECUTION OF THE AGREEMENT IT CAN BE SEEN THAT THE APPELLANT HAS MADE A PAYMENT OF ONLY RS . 28,0 0,000 TILL THE DATE OF AGREEMENT, T HAT TOO DURING THE YEAR ENDED 31ST M ARCH, 20 13, RELEVANT TO ASSESSMENT YEAR 2013 - 14. 2.7.4. FURTHER, APPELLANT SUBMITS THAT SHE HAS NOT MADE ANY PAYMENT TOWARDS OF THE PROPERTY DURING THE YEAR UNDER REFERENCE. 2. 7.5 IN VIEW OF THE ABOVE, THE APPELLANT CONTENDS THAT THE ASSESSING OFFICER OUGHT NOT TO HAVE MADE AN ADDITI ON DURING THE YEAR UNDER REFERENCE, MUCH LESS ON THE BASIS OF STAMP DUTY VALUE MENT I ONED ON THE AGREEMEN T AND HENCE, THE SAME NEEDS TO B E DELETED. 2.8. FLAT 903 - PREMIER EXOTICA - RS 56,07,000 2.8.1. PLEASE REFER THE AGREEMENT DATED 25 T H JUNE, 2014 FOR PURCHASE OF THE IMMOVABLE PROPERTY REFER PAGE NOS 146 TO 198 OF THE PAPER BOOK. ON PERUSAL OF THE SAME, PARTICULARLY, PARA 4 OF THE AGREEMENT (PAGE NO 152 OF THE PAPER BOOK), IT CAN BE SEEN THAT THE PROPERTY IS UNDER CONSTRUCTION ON DATE OF THE AGREEMENT. 2.8.2. FURTHER, PLEASE REFER CLAUSE 'P' (PAGE NO 151 OF THE PAPER BOOK) AND RECEIPT OF THE SELLER (P AGE NO 168 OF THE PAP ER BOOK). IT IS EVIDENT THAT THE APPELLANT HAS MADE A PAYMENT OF RS 2,00,000 TILL THE DATE OF AGREEMENT, THAT TOO DURING THE YEAR ENDED 31ST MARCH, 2012, RELEVANT TO ASSESSMENT NEAR 2012 - 13. 2.8.3. THE APPELLANT SUBMITS THAT THE ASSESSING OFFICER HAS MADE ADDITION ONLY ON THE BASIS OF AGREEMENT OBTAINED FROM THE OFFICE OF JT . SUB REGISTRAR, MUMBAI. THUS, COPY OF THE AGREEMENT IS IN THE POSSESSION OF THE ASSESSING OFFICER. ON PERUSAL OF THE RECEIPT ISSUED BY THE SELLER ON THE AGREEMENT DATE, IT CAN BE SEEN THAT THE APPELLAN T HAS MADE A PAYMENT OF ONLY RS. 2,00,000 TILL THE DATE OF AGREEMENT, THAT TOO DURING THE YEAR ENDED 31ST MARCH, 2012, R ELEVANT TO ASSESSMENT YEAR 201 2 - 13 2.8.4. FURTHER, THE APPELLANT SUBMITS THAT SHE HAS NOT MADE ANY PAYMENT TOWARDS PURCHASE OF THE PROPERTY DURING THE YEAR UNDER REFERENCE. ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 7 2.8.5. IN VIEW OF THE ABOVE, THE APPELLANT CONTENDS THAT THE ASSESSING OFFICER OUGHT NOT TO HAVE MADE AN ADDITION DURING THE YEAR UNDER REFERENCE, MUCH LESS ON THE BASIS OF STAMP DUTY VALUE MENTIO NED ON THE AGREEMENT AND HENCE , SAME NEEDS TO B E DELETED. 2. 9. SHOP E3 - PREMIER EXOTICA RS. 53,57,500 2.9.7. PLEASE REFER THE AGREEMENT DATED 5 T H JUNE, 2014 FOR PURCHASE OF THE IMMOVABLE PROPERTY - REFER PAGE NOS . 199 TO 252 OF THE PAPER BOOK. ON PERUSAL OF THE SAME, PARTICULARLY, PARA 4 OF THE AGREEMENT (PAGE NO 205 OF THE PAPER BOOK), IT CAN BE SEEN THAT THE PROPERTY IS UNDER CONSTRUCTION ON DATE OF THE AGREEMENT. 2.9.2. FURTHER, PLEASE REFER CLAUSE 'P (PAGE NO 204 OF THE PAPER BOOK) AND RECEIPT OF THE SELLER (PAGE NO 221 OF THE PAPER BOOK). IT IS EVIDENT THAT THE APP ELLANT HAS MADE A PAYMENT OF RS. 5,00,000 TILL THE DATE OF AGREEMENT, THAT TOO DURING THE YEAR ENDED 31ST MARCH, 20 13, RELEVANT TO ASSESSMENT YEAR 2 013 - 14. 2.9.3. THE APPELLANT SUBMI TS THAT THE ASSESSING OFFICER HAS MADE ADDITION ONLY ON THE BASIS OF AGREEMENT OBTAINED FROM THE OFFICE OF JT . SUB REGISTRAR, MUMBAI. THUS, COPY OF THE AGREEMENT IS IN THE POSSESSION OF THE ASSESSING OFFICER. ON PERUSAL O F THE RECEIPT ISSUED BY THE SELLER ON THE AGREEMENT DATE, IT CAN BE SEEN THAT THE APPELLAN T HAS MADE A PAYMENT OF ONLY RS. 5,00,000 TILL THE DATE OF AGREEMENT, THAT TOO DURING THE Y EAR ENDED 31ST MARCH, 2013, RELEVANT TO ASSESSMENT YEAR 2013 - 14. 2.9.4. FU RTHER, APPELLANT SUBMITS THAT SHE HAS NOT MADE ANY PAYMENT TOWARDS PURCHASE OF THE PROPERTY DURING THE YEAR UNDER REFERENCE. 2.9.5. IN VIEW OF THE ABOVE, THE APPELLANT CONTENDS THAT THE ASSESSING OFFICER OUGHT NOT TO HAVE MADE AN ADDITION DURING THE YEAR UNDER REFERENCE, MUCH LESS BASIS OF STAMP DUTY VALUE MENTIONED ON THE AGREEMENT AND HENCE, THE SAME NEEDS TO BE DELETED. 2.10. SHOP E4 - PREMIER EXOTICA RS. 47,93,000 2.10.1. PLEASE REFER THE AGREEMENT DATED 5 T H JUNE, 2014 FOR PURCHASE OF THE IMMOVABL E PROPERTY - REFER PAGE NOS . 253 TO 306 OF THE PAPER BOOK. ON PERUSAL OF THE SAME, PARTICULARLY, PARA 4 OF THE AGREEMENT (PAGE NO 259 OF THE PAPER BOOK), IT CAN BE SEEN THAT THE PROPERTY IS UNDER CONSTRUCTION ON DATE OF THE AGREEMENT. 2.10.2. FURTHER, PLEASE REFER CLAUSE P' (PAGE NO 258 OF THE PAPER BOOK) AND RECEIPT OF THE SELLER (PAGE NO 275 OF THE PAPER BOOK). IT IS EVIDENT THAT THE APP ELLANT HAS MADE A PAYMENT OF RS. 5,00, 000 TILL THE DATE OF AGREEMENT, THAT TOO DURING THE YEAR ENDED 31ST MARCH, 20 13 RELEVANT TO ASSESSMENT YEAR 2013 - 14. 2.10.3. THE APPELLANT SUBMITS THAT THE ASSESSING OFFICER HAS MADE ADDITION ONLY ON THE BASIS OF AGREEMENT OBTAINED FROM THE OFFICE OF JT . SUB REGISTRAR, MUMBAI. THUS, COPY OF THE AGREEMENT IS IN THE POSSESSION OF THE ASSESSING OFFICER. ON PERUSAL OF THE RECEIPT ISSUED BY THE SELLER ON THE AGREEMENT DATE, IT CAN BE SEEN THAT THE APPELLAN T HAS MADE A PAYMENT OF ONLY RS. 5,00,000 TILL THE DATE OF AG REEMENT, THAT TOO DURING THE YEAR ENDED 31ST MARCH, 2013, RELEVANT TO ASSESSMENT YEAR 2013 - 14. ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 8 2.10.4. FURTHER, APPELLANT SUBMITS THAT SHE HAS NOT MADE ANY PAYMENT TOWARDS PURCHASE OF THE PROPERTY DURING THE YEAR UNDER REFERENCE. 2.10.5. IN VIEW OF THE ABOVE, THE APPELLANT CONTENDS THAT THE ASSESSING OFFICER OUGHT NOT TO HAVE MADE AN ADDITION DURING THE YEAR UNDER REFERENCE, MUCH LESS ON THE BASIS OF STAMP DUTY VALUE MENTIONED ON THE AGREEMENT AND HENCE, THE SAME NEEDS TO BE DELETED. SHOP D11 - PREMIER EXOTICA RS. 47,93,000 2.11.1. PLEASE REFER THE AGREEMENT DATED 5TH JUNE, 2014 FOR PURCHASE OF THE IMMOVABLE PROPERTY - REFER PAGE NOS . 307 TO 360 OF THE PAPER BOOK. ON PERU.SAL OF THE SAME, PARTICULARLY, PARA 4 OF THE AGREEMENT (PAGE NO 313 OF THE PAPER BOOK), IT CAN BE SEEN THAT THE PROPERTY IS UNDER CONSTRUCTION ON DATE OF THE AGREEMENT. 2.11.2. FURTHER, PLEASE REFER CLAUSE P (PAGE NO 312 OF THE PAPER BOOK) AND RECEIPT OF THE SELLER (PAGE NO 329 OF THE PA PER BOOK). IT IS EVIDENT THAT THE APPELLANT HAS MADE A PAYMENT OF RS. 5,00,000 TILL THE DATE OF AGREEMENT, THAT TOO DURING THE YEAR ENDED 31ST MARCH, 2013, RELEVANT TO ASSESSMENT YEAR 2013 - 14. 2.17.3. THE APPELLANT SUBMITS THAT THE ASSESSING OFFICER HAS MA DE ADDITION ONLY ON THE BASIS OF AGREEMENT OBTAINED FROM THE OFFICE OF JT SUB REGISTRAR, MUMBAI. THUS, COPY OF THE AGREEMENT IS IN THE POSSESSION OF THE ASSESSING OFFICER. ON PERUSAL OF THE RECEIPT ISSUED BY THE SELLER ON THE AGREEMENT DATE, IT CAN BE SEEN THAT THE APPELLAN T HAS MADE A PAYMENT OF ONLY RS. 5,00,000 TILL THE DATE OF AGREEMENT, THAT TOO DURING THE YEAR ENDED 31ST MARCH, 2013, RELEVANT TO ASSESSMENT YEAR 2013 - 14. 2.11.4 . FURTHER, APPELLANT SUBMITS THAT SHE HAS NOT MADE ANY PAYMENT TOWARDS PURCHASE OF THE PROPERTY DURING THE YEAR UNDER REFERENCE. 2.11.5. IN VIEW OF THE ABOVE, THE APPELLANT CONTENDS THAT THE ASSESSING OFFICER OUGHT NOT TO HAVE MADE AN ADDITION DURING THE YEAR UNDER REFERENCE, MUCH LESS ON THE BASIS OF STAMP DUTY VALUE MENTIO NED ON THE AGREEMENT AND HENCE, THE SAME NEEDS TO BE DELETED. AFTER DELIBERATING AT LENGTH ON THE AFORESAID CONTENTION S ADVANCED BY THE ASSESSEE IN THE BACKDROP OF THE AGREEM ENT S QUA WHICH THE ADDITIONS WERE M A DE BY THE A.O UNDER SEC. 69 OF THE ACT, TH E CIT(A) , OBSERVED , THAT EXCEPT FOR AN INVESTMENT OF RS.13,3 2 ,000/ - THE ASSESSEE HAD NOT MADE ANY OTHER INVESTMENT DURING THE YEAR UNDER REFERENCE. INSOFAR THE INVESTMENT OF RS.13,32,000/ - WAS CONCERNED , THE CIT(A) WAS OF THE VIEW THAT THE SAME COULD SAFELY BE HELD TO HAVE BEEN SOURCED FROM THE INCOME OF RS. 22,33,800/ - THAT WAS DISCLOSED ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 9 BY THE ASSESSEE IN HER RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. BACKED BY HIS AFORESAID OBSERVATIONS, THE CIT(A) BEING OF THE VIEW THAT NO ADDITION W.R.T THE INVESTMENTS IN THE PROPERTIES IN QUESTION WAS LIABLE TO BE MADE U/S 69 OR U/S 68 OF THE ACT VACATED T HE ADDITION OF RS.6,64,12,312/ - THAT WAS MADE BY THE A.O . 5. THE REVENUE BEING AGGRIEVED WITH THE ORDER OF THE CIT(A ) HAS CARRIED THE MATTER IN APPEAL BEFORE US. T HE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) SUBMITTED THAT THE ASSESSEE HAD PURPOSIVELY EVADED FURNISHING OF THE COPIES OF THE AGREEMENTS QUA THE PROPERTIES IN QUESTION IN THE COURSE OF THE A SSESSMENT PROCEEDINGS AND FI LED THE SAME FOR THE VERY FIRST TIME BEFORE THE CIT(A). IT WAS, THUS, SUBMITTED BY THE LD. D.R THAT AS THE DETAILS OF THE INVESTMENTS WERE NOT AVAILABLE WITH THE A.O, THEREFORE, HE HAD RIGHTLY RELIED ON THE AIR INFORMATION , AND IN THE ABSENCE OF ANY EXPLANATION AS REGARDS THE NATURE AND SOURCE OF THE INVESTMENTS IN THE PROPERTIES IN QUESTION HAD MADE THE ADDITION U/S 69 OR U/S 68 DURING THE YEAR UNDER CONSIDERATION. IT WAS FURTHER SUBMITTED BY THE LD. D.R THAT THOUGH THE COPIES O F THE AGREEMENTS WERE FILED BY THE ASSESSEE FOR THE VERY FIRST TIME IN THE COURSE OF THE PROCEEDINGS BEFORE THE CIT(A), HOWEVER, THE LATTER WITHOUT CALLING FOR THE OBJECTIONS OF THE A.O HAD IN VIOLATION OF RULE 46A ADMITTED THE SAID ADDITIONAL EVIDENCE. 6. PER CONTRA, THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) RELIED ON THE ORDER OF THE CIT(A). IT WAS SUBMITTED BY THE LD. A.R THAT EXCEPT FOR THE DULY EXPLAINED INVESTMENT OF RS.13,32,000/ - (SUPRA) , AS NO OTHER INVESTMENT QUA THE PROPERTIES IN QUE STION WAS MADE BY THE ASSESSEE DURING THE YEAR IN REFERENCE , THUS, THE CIT(A) HAD RIGHTLY OBSERVED THAT NO ADDITION COULD HAVE BEEN MADE BY THE A.O EITHER U/S 69 OR U/S 68 OF THE ACT. REBUTTING THE CLAIM OF THE LD. D.R THAT THE DETAILS AS REGARDS THE INVES TMENTS QUA THE PROPERTIES IN QUESTION WAS ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 10 NOT AVAILABLE BEFORE THE A.O, IT WAS SUBMITTED BY THE LD. A.R THAT THE A.O HAD IN THE COURSE OF THE ASSESSMENT PROCEEDINGS CALLED FOR THE COPIES OF THE AGREEMENT S FROM THE J OINT SUB - REGISTRAR ( S ) , MUMBAI. IN ORDER TO DRIVE HOME HIS AFORESAID CLAIM THE LD. A.R TOOK US THROUGH PAGE 7 PARA 5.1 OF THE ASSESSMENT ORDER, WHICH REVEAL ED THAT THE COPIES OF THE AGREEMENTS WERE CALLED FOR BY THE A.O FROM THE J OINT SUB - REGISTRAR S . ADVERTING TO THE MERITS OF THE ADD ITION MADE BY THE A.O, IT WAS SUBMITTED B Y THE LD. A.R THAT AS THE ASSESSEE HAD NOT MADE THE IMPUGNED INVESTMENTS QUA THE PROPERTIES IN QUESTION DURING THE YEAR UNDER CONSIDERATION , THEREFORE, THE CIT(A) HAD RIGHTLY OBSERVED THAT NO ADDITION U/S. 69 COULD HAVE BEEN MADE IN THE HANDS OF THE ASSESSEE. IT WAS FURTHER SUBMITTED BY THE LD. A.R THAT AS IT WAS NO T A CASE OF ANY UNEXPLAINED CASH CREDIT IN THE BOOKS OF ACCOUNT OF THE ASSESSEE, THUS, NO ADDITION U/S 68 COULD HAVE BEEN MADE IN ITS HANDS. I N ORDER TO B UTTRESS HIS AFORESAID CLAIM THAT NO INVESTMENT DURING THE YEAR IN REFERENCE WAS MADE BY THE ASSESSEE QUA THE PROPERTIES IN QUESTION THE LD. A.R TOOK US THROUGH THE RELEVANT PAGES OF THE AGREEMENTS FORMING PART OF THE ASSESSEES PAPER BOOK (FOR SHORT APB ). FURTHER, IN ORDER TO SUPPORT THE FACT THAT THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION HAD EXCEPT FOR AN INVESTMENT OF RS.13,32,000/ - ( SUPRA) NOT MADE ANY OTHER INVESTMENT QUA THE PROPERTIES IN QUESTION, THE LD. A.R HAD PLACED ON RECORD A CHART ALONGWITH SUPPORTING RECEIPTS. TAKING US THROUGH THE AGREEMENT S PERTAINING TO THE SIX PROPERTIES IN QUESTION, IT WAS SUBMITTED BY THE LD. A.R THAT ONLY PART OF THE PURCHASE CONSIDERATION WAS PAID BY THE ASSESSEE TILL THE D ATE OF EXECUTION OF THE SAID RESPECTIVE AGREEMENTS , WHICH TOO , EXCEPT FOR AN INVESTMENT OF RS. 13,32,000/ - THAT WAS MADE DURING THE YEAR UNDER CONSIDERATION PERTAINED TO THE YEARS PRECEDING THE YEAR UNDER REFERENCE . IN THE BACKDROP OF HIS AFORESAID CONTE NTION, IT WAS THE CLAIM OF THE LD. A.R THAT AS IT WAS A MATTER OF FACT BORNE ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 11 FROM THE RECORDS THAT T HE ASSESSEE HAD NOT MADE ANY UNEXPLAINED INVESTMENTS DURING THE YEAR IN QUESTION, THUS, NO ADDITION EITHER UNDER SEC. 69 OR U/S 68 WAS CALLED FOR IN ITS CAS E. 7. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES FOR BOTH THE PARTIES, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD. BEFORE ADVERTING TO THE MERITS OF THE CASE, WE MAY HEREIN OBSERVE , THAT THOUGH THE A.O HAD MADE THE IMPUGNED ADDITION OF RS. 6,64,12,3122/ - U/S. 69 OR U/S SEC. 68 OF THE ACT, HOWEVER, THE REVENUE IN ITS GROUNDS OF APPEAL HAD ASSAILED THE ORDER OF THE CIT(A) , FOR THE REASON , THAT HE HAD ERRED IN DELETING THE ADDITION THAT WAS MADE BY THE A.O U/S 69C OF THE ACT. AS THE AFORESAID MISTAKE APPEARS TO HAVE INADVERTENTLY CREPT IN ON ACCOUNT OF A TYPOGRAPHICAL ERROR WHILE DRAFTING THE APPEAL, WE, THUS, PROCEED WITH AND DEAL WITH THE SUSTAINABILITY OF THE ORDER OF THE CIT(A), WHEREIN THE ADDITION MADE BY THE A.O U/S 69 OR U/S 68 WAS VACATED BY HIM. AS IS DISCERNIBLE FROM THE ORDERS OF THE LOWER AUTHORITIES, THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT UNDER CASS, FOR THE REASON, THAT THE INVESTMENTS IN PROPERTIES MADE BY HER DURING THE YEAR UNDER CONSIDERATION WERE NOT FOUND TO BE COMMENSURATE WITH HER RETURNED INCOME FOR THE SAID YEAR. ADMITTEDLY, IT IS A MATTER OF FACT BORNE FROM THE RECORD THAT DESPITE SPECIFIC DIRECTIONS BY THE A.O VIDE HIS NOTICES ISSUED U/S 142(1) OF THE ACT T HE ASSESSEE HAD FAILED TO FURNISH THE DETAILS AS REGARDS THE PROPERTIES THAT WERE PURCHASED BY HER ALONGWITH THE SOURCE THEREOF. AS THE REQUISITE DETAILS QUA THE INVESTMENTS IN THE PROPERTIES IN QUESTION WERE NOT FORTHCOMING, THEREFORE, THE A.O PROCEEDED WITH THE ASSESSMENT ON AN EX - PARTE BASIS U/S 144 OF THE ACT. IN THE COURSE OF THE ASSESSMENT PROCEEDINGS THE A.O CALLED FOR THE COPIES OF THE AGREEMENTS FROM THE J OINT SUB - REGISTRAR ( S ) , MUMBAI, AND AS PER THE AIR INFORMATION CONCLUDED THAT THE ASSESSEE HAD ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 12 DURING THE YEAR UNDER CONSIDERATION MADE UNEXPLAINED INVESTMENTS U/S 69 OF RS.6,64,12,312/ - W.R.T THE FOLLOWING SIX PROPERTIES : SR. NO. PARTICULARS PAYMENTS OF PROPERTIES AMOUNT INVESTED DATE OF TRANSACTION / REGISTRATIO N REGISTERED WITH 1. AGREEMENT DATED 5 TH MAY 2014 FLAT 101 AND 201 - INSIGNIA RS. 321,95,300 05.05.2014 JT.SUB REGISTRAR, ANDHERI 2. AGREEMENT DATED 4 TH MAY 2014 FLAT 1806 MAJESTIC TOWER RS. 136,66,512 05.05.2014 JT. SUB REGISTRAR, KURLA 3. AGREEMENT DATED 5 TH JUNE, 2014 FLAT 903 PREMIER EXOTICA RS. 56,07,000 07.06.2014 JT. SUB REGISTRAR, KURLA 4. AGREEMENT DATED 5 TH JUNE, 2014 SHOP E3 - PREMIER EXOTICA RS. 53,57,500 07,06.2014 JT. SUB REGISTRAR, KURLA 5. AGREEMENT DATED 5 TH JUNE, 2014 SHOP E4 - PREMIER EXOTICA RS. 47,93,000 07.06.2014 JT. SUB REGISTRAR, KURLA 6. AGREEMENT DATED 5 TH JUNE, 2014 SHOP D11 - PREMIER EXOTICA RS. 47,93,000 06.06.2014 JT. SUB REGISTRAR, KURLA RS. 6,64,13,312 ON A PERUSAL OF THE AFORESAID DETAILS IN THE BACKDROP OF THE CONTENTS OF THE AGREEMENTS PERTAINING TO THE AFORESAID PROPERTIES IN QUESTION , WE MAY HEREIN OBSERVE , THAT AS STATED BY THE LD. A.R, AND RIGHTLY SO, THE A.O HAD IN THE COURSE OF THE ASSESSMENT PROCEEDINGS MERELY GONE BY THE AIR IN FORMATION AND HAD FAILED TO PERUSE THE CONTENTS OF THE AFORESAID RESPECTIVE AGREEMENTS IN QUESTION WHICH WERE THERE BEFORE HIM . ON APPEAL, THE CIT(A) AFTER PERUSING THE AGREEMENTS QUA THE PROPERTIES IN QUESTION CONCURRED WITH THE CLAIM OF THE ASSESSEE THAT THE A.O HAD MERELY ADDED THE STAMP DUTY VALUE OF THE PROPERTIES AS PER AIR INFORMATION AND HAD OVERLOOKED THE ACTUAL TRANSACTION VALUE S . IT WAS FURTHER OBSERVED BY THE CIT(A) THAT THE ACTUAL AMOUNT THAT WAS PAID BY THE ASSESSEE AS PER THE AGREEMENTS WAS LESS THAN THE STAMP DUTY VALUE. FURTHER, IT WAS NOTICED BY THE CIT(A) THAT ALL THE SIX PROPERTIES IN QUESTION WERE UNDER CONSTRUCTION DURING THE YEAR IN REFERENCE . ALSO, IT WAS OBSERVED BY THE CIT(A) THAT A PERUSAL OF THE AGREEMENTS REVEALED THAT THE ASSESSEE HAD NOT PAID ANY AMOUNT ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 13 DURING THE YEAR UNDER REFERENCE, EXCEPT FOR AN AMOUNT OF RS.13,32,000/ - THAT WAS PAID BY HER DURING THE YEAR UNDER CONSIDERATION IN RESPECT OF ONE OF THE PROPERTY , VIZ. FLAT NOS. 101 & 201 - I NSIGNIA, VIDE AGREEMENT DATED 05.05.2014. IT WAS FURTHER OBSERVED BY THE CIT(A), THAT THE AMOUNTS THAT W ERE PAID TILL THE DATE OF THE AGREEMENT S QUA THE PROPERTIES IN QUESTION WERE PAID IN THE EARLIER YEARS AND NOT IN THE YEAR UNDER REFERENCE. IT WAS OBSERVED BY THE CIT(A) THAT AS THE ASSESSEE DURING THE YEAR IN QUESTION HAD ENTERED INTO THE PURCHASE AGREEMENTS , THUS, IT WAS FOR THE SAID REASON THAT THE AFORESAID TRANSACTIONS WERE REFLECTED IN HER AIR INFORMATION . O BSERVING , THAT THE ASSESSEE HAD ONLY INVESTED AN AMOUNT OF RS.13,32,000/ - IN THE PROPERTIES IN QUESTION DURING THE YEAR UNDER CONSIDERATION, WHICH WAS SOURCED FROM HER RETURNED INCOME, WE FIND, THAT THE CIT(A) HAD OBSERVED THAT NO PART OF THE ADDITION OF RS.6,64,12 ,312/ - MADE BY THE A.O U/S 68 OR U/S 69 COULD BE SUSTAINED. 8. WE HAVE DELIBERATED AT LENGTH ON THE ISSUE IN HAND , AND CONCUR WITH THE VIEW TAKEN BY THE CIT(A) THAT AS THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION HAD NOT MADE ANY INVESTMENT QUA THE PR OPERTIES IN QUESTION , EXCEPT FOR AN INVESTMENT OF RS.13,32,000/ - THAT WAS MADE BY HER WITH RESPECT TO ONE OF THE PROPERT Y , VIZ. FLAT NO. 101 & 201 - I NSIGNIA, WHICH TOO IN THE BACKDROP OF HER RETURNED INCOME COULD SAFELY BE HELD TO HAVE BEEN S OURCED FROM HER EXPLAINED SOURCE S , THEREFORE, NO PART OF THE IMPUGNED ADDITION OF RS. 6,64,12,312/ - COULD BE SUSTAINED IN THE HANDS OF THE ASSESSEE. ON A PERUSAL OF THE ORDER OF THE CIT(A), WE FIND THAT HE HAD VACATED THE IMPUGNED ADDITION MADE BY THE A.O BY OBSERVING AS UNDER: 6.1 BRIEF FACTS OF THE CASE ARE THAT THE APPELLANT HAS ENTERED INTO SIX AGREEMENTS TO PURCHASE IMMOVABLE PROPERTIES DURING THE YEAR UNDER REFERENCE. THE SAME WAS REFLECTED IN THE AIR REPORT AVAILABLE WITH THE AO. ON NON APPEARANCE BY THE APPELLANT, THE AO PROCURED THE COPIES OF, ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 14 PURCHASE AGREEMENTS FROM THE OFFICE OF - JT SUB - REGISTRAR. THEN THE AO PROCEEDED ON THE BASIS OF MATERIAL ON RECORD, WHICH IS NOTHING BUT THE AIR INFORMATION AND THE COPIES OF AGREEMENT, WHICH CONFIRMS THE AIR INFOR MATION. THE SUMMARY OF AGREEMENTS ENTERED INTO BY THE APPELLANT IS GIVEN BELOW SR . NO AMOUNT INVESTED DATE OF TRANSACTION REGISTRATION REGISTERED WITH 1 3,21,95,300 05.05.2014 JT . SUB REGISTRAR, ANDHERI 2 1,36,66,512 05.05.2014 JT. SUB REGISTRAR, KURLA 3 56,07,000 07.06.2014 JT. SUB REGISTRAR, KURLA 4 53,57,500 07.06.2014 JT. SUB REGISTRAR, KURLA 5 47,93,000 07.06.2014 JT. SUB REGISTRAR, KURLA 6 47,93,000 06.06.2014 JT. SUB REGISTRAR, KURLA 6,64,12,312 THE AO MADE THE ADDITION OF RS 6,64,12,312 U/S 69 OF THE ACT ON FAILURE OF THE ASSESSEE TO PROVE THE SOURCES OF INVESTMENTS MADE AND HELD THE INVESTMENTS TO BE UNEXPLAINED. THE AO FURTHER, WITHOUT PREJUDICE TO ADDITION MADE U/S 69, MADE ADDITION U/S 68 STA TING THAT CORRESPONDING SOURCES REMAIN UNEXPLAINED AND CORRESPONDING CREDIT ENTRIES ARE NOT PROVED BY THE APPELLANT W.R.T. THE INVESTMENT MADE. THE LD. AR FILED WRITTEN SUBMISSIONS AND EXPLAINED EACH OF THE AGREEMENT ENTERED INTO BY THE APPELLANT (WRITTEN SUBMISSIONS REPRODUCED ABOVE). THE AR ALSO PRODUCED THE COPIES OF EACH OF THE AGREEMENT. THE SUBMISSIONS MADE BE THE AR CAN BE SUMMARIZED AS UNDER - 1 EACH OF THE PROPERTY IS UNDER CONSTRUCTION . 2 . AIR REFLECTS STAMP DUTY VALUE AND NOT THE ACTUAL TRANSACTION VALUE . 3 . ACTUAL AMOUNT PAID BY THE ASSESSEE IS LESS THAN THE STAMP DUTY \ VALUE . 4. THE APPELLANT DID NOT PAY ANY AMOUNT DURING THE YEAR UNDER REFERENCE, EXCEPT RS. 13,32,0 00, IN RESPECT OF FIRST PROPERTY . WHATEVER SUM IS PAID BY THE ASSESSEE WAS PAID IN EARLIER YEARS AND NOT IN THE YEAR UNDER REFERENCE TH IS IS ALSO EVIDENCED BY THE RECEIPT OF THE SELLER ATTACHED TO EACH OF THE AGREEMENT. 5. THE ASSESSEE JUST ENTERED INTO THE PURCHASE AGREEMENTS DURING THE YEAR UNDER REFERENCE AND HENCE, ARE REFLECTED IN THE AIR. 6.2 I FOUND THE CONTENTIONS OF THE AR TO BE CORRECT. ON PERUSAL OF EACH OF THE AGREEMENTS, IT IS EVIDENT THAT THE APPELLANT DID NOT MAK E ANY INVESTME NT DURING THE YEAR UNDER REFERENCE, EXCEPT FOR RS. 13,32,000. IT IS ONLY THAT THE AGREEMENTS WERE ENTERED INTO AND REGISTERED DURING THE YEAR UNDER ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 15 REFERENCE. FURTHER, ALL THE PROPERTIES WERE STILL UNDER CONSTRUCTION AND HENCE, FULL AMOUNT WAS NOT PAID IN A NY OF THE CASES. WHATEVER AMOUNT WAS PAID, WAS PAID IN THE EAR LIER YEARS (EXCEPT RS. 13,32,000/ - ). IT IS ONLY THAT THE STAMP DUTY VALUE OF THE PROPERTIES WERE BEING REFLECTED ON THE AIR REPORT AND ONLY ON THAT BASIS, AO HAS MADE THE ADDITION. HENCE, IT IS A FACT THAT APPELLANT HAS ONLY ENTERED INTO THE AGREEMENT IN THE YEAR AND NOT ACTUALLY MADE INVESTMENTS. AS SUCH, THE OBSERVATION OF T HE AO THAT THE INVESTMENT OF RS. 6,64,12,312 REMAINS UNEXPLAINED IS NOT CORRECT FOR THE REASON THAT APPELLANT HAS NOT MADE T HAT KIND OF INVESTMENT. FURTHER, AMOUNT PAID BY THE APPELLANT OF RS. 13,32,000 CAN BE EASILY SUBSTANTIATED BY THE INCOME DECLARED BY THE APPELLANT OF RS. 22,33,800. 6.3 UNDER THESE CIRCUMSTANCES, I AM OF VIEW T HAT THE AR HAS PROVED THAT THE ASSESSEE HA S NOT MADE THE INVESTMENT OF RS. 6,64,12,312 AND HENCE, THERE IS N O Q UESTION OF MAKING ANY ADDITION U/S 68 OR 69 OF THE ACT. THE REFORE, I DIRECT THE AO TO DELETE THE ADDITION OF RS. 6,64,12,312. THUS, THIS GROUND OF APPEAL IS ALLOWED. BEFORE US, THE LD. D.R HAD INTER ALIA ASSAILED THE ORDER OF THE CIT(A), ON THE GROUND, THAT HE HAD IN VIOLATION OF RULE 46A WITHOUT CALLING FOR THE OBJECTIONS OF THE A.O ADMITTED THE AGREEMENTS PERTAINING TO THE SIX PROPERTIES IN QUESTION WHICH WERE FURNISHED BY THE ASSESSEE BEFO RE HIM FOR THE FIRST TIME. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE AFORESAID GRIEVANCE OF THE REVENUE AND ARE UNABLE TO ACCEPT THE SAME. AS OBSERVED BY US HEREINABOVE, THE A.O IN THE COURSE OF THE ASSESSMENT PROCEEDINGS HAD CALLED FOR THE COPIES O F THE AGREEMENTS IN QUESTION FROM THE JOINT SUB - REGISTRAR ( S ) , MUMBAI . THE AFORESAID FACTUAL POSITION CAN SAFELY BE GATHERED FROM A PERUSAL OF PAGE 7 PARA 5.1 OF THE ASSESSMENT ORDER . ON BEING CONFRONTED WITH THE SAID FACT, THE LD. D.R COULD NOT REBUT THE SAME. WE, THUS, IN THE BACKDROP OF THE AFORESAID FACTS, ARE OF THE CONSIDERED VIEW, THAT AS THE COPIES OF THE AGREEMENTS IN QUESTION WERE THERE BEFORE THE A.O IN THE COURSE OF THE ASSESSMENT PROCEEDINGS, THEREFORE, THE CLAIM OF THE LD. D.R THAT THE CIT(A) HAD ADMITTED THE SAME IN VIOLATION OF RULE 46A OF THE INCOME - TAX RULES, 1962, IS DEVOID OF ANY MERIT , AND THUS, IS REJECTED. THE GROUND OF APPEAL NO. 3 RAISED BY THE REVENUE IS DISMISSED. 9. WE HAVE FURTHER PERUSED THE COPIES OF THE SIX AGREEMENTS WHICH FORM PART OF THE ASSESSEES PAPER BOOK (FOR SHORT APB) , AND ARE ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 16 PERSUADED TO SUBSCRIBE TO THE OBSERVATION OF THE CIT(A) THAT QUA ALL THE SIX AGREEMENT S THE AGREEMENT VALUE WAS LESS THAN THE STAMP DUTY VALUE. APART FROM THAT, WE ALSO CONCUR WITH HIS VIEW THAT THOUGH THE AGREEMENTS WERE EXECUTED DURING THE YEAR UNDER CONSIDERATION, HOWEVER, ONLY PART OF THE PURCHASE CONSIDERATION QUA THE PROPERTIES I N QUESTION WAS PAID TILL THE DATE OF EXECUTION OF THE SAID AGREEMENTS , AND EXCEPT FOR AN AMOUNT OF RS.13,32,000/ - (SUPRA) ALL THE REMAINING PAYMENTS WERE MADE IN THE PRECEDING YEARS. THE AFORESAID FACTUAL POSITION AS GATHERED FROM THE COPIES OF THE SIX A GREEMENTS (FORMING PART OF THE APB) AND THE RECEIPTS IS CULLED OUT AS UNDER: SR. NO. PARTICULARS AGREEMENT DATE AGREEMENT VALUE (IN RS.) STAMP DUTY VALUE (IN RS.) AMOUNT PAID (UP TO DATE OF AGREEMENT AMOUNT AND DATE OF PAYMENT (AS PER RECEIPT /AGREEME NTS ) 1. FLAT 101 AND 201 - I NSIGNIA 05.05.2014 2,62,00,000 3,21,95,300 RS.78,30,182 (PAGE 31 BACKSIDE OF APB) 21.10.2011 RS.5,00,000/ - 21.10.2011 RS.5,00,000/ - 09.07.2013 RS.9,70,026/ - 09.07.2013 RS.9,70,026/ - 16.09.2013 RS.9,70,026/ - 06.11.2013 RS.4,89,863/ - 06.11.2013 RS.4,89,863/ - 06.11.2014 RS. 10,000/ - 06.11.2014 RS.2,91,008/ - 03.01.2014 RS.6,79,018/ - 18.02.2014 RS.1,94,006/ - 18.02.2014 RS. 10,000/ - 18.02.2014 RS.4,24,046/ - 17.04.2014 RS.3,22,000/ - 25.04.2014 RS. 10,000/ - 25.04.2014 RS.10,00,000/ - TOTAL RS.78,30,182/ - 2. FLAT 1806 - MAJESTIC TOWER 04.05.2014 1,17,75,000 1,36,66,512 RS. 28 LAC [P AGE 95 ( BACKSIDE ) OF APB) ] 05.12.2012 : RS.7 LAC 08,12.2012 : RS.4 LAC 13.12.2012 : RS.8 LAC 14.12.2012 : RS. 5 LAC 14.12.2021 : RS. 4 LAC RS. 28 LAC [ PAGE 110 (BACKSIDE) OF APB ]. 3. FLAT 903 PREMIER EXOTICA 25.06.2014 49,41,840 56,07,000 RS. 2 LAC (PAGE 152 OF APB - BACKSIDE) 30.01.2012 : RS. 2 LAC [P AGE 168 (BACKSIDE) OF APB ] 4. SHOP E3 PREMIER EXOTICA 05.06.2014 53,35,000 53,57,500 RS. 5 LAC (PAGE 20 OF APB BACKSIDE) 06.10.2012 : RS. 5 LAC [P AGE 221 ( BACKSIDE ) OF APB ]. 5. SHOP E4 PREMIER EXOTICA 05.06.2014 47,85,000 47,93,000 RS. 5 LAC (PAGE 259 OF APB - BACKSIDE) 03.12.2012 : RS. 5 LAC [P AGE 275 (BACKSIDE) OF APB ]. 6. SHOP D11 - PREMIER EXOTICA 05.06.2014 47,85,000 47,93,000 RS. 5 LAC (PAGE 313 OF APB - BACKSIDE) 04.10.2012 : RS. 5 LAC [ PAGE 329 (BACKSIDE) OF APB ]. TOTAL 5,78,21,840 6,64,12,312 ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 17 ON A PERUSAL OF THE AFORESAID DETAILS, IT STANDS REVEALED BEYOND ANY DOUBT THAT AS OBSERVED BY THE CIT(A), AND RIGHTLY SO, EXCEPT FOR A PAYMENT OF RS.13,32,000/ - (SUPRA) THAT WAS MADE BY THE ASSESSEE WITH RESPECT TO AN AGREEMENT PERTAINING TO ONE OF THE PROPERTY, VIZ. FLAT NO. 101 & 201 I NSIGNIA ; DATED 05.05.2014, NO OTHER INVESTMENT AS REGARDS EITHER OF THE AFORESAID PROPERTIES IN QUESTION WAS MADE BY HER DURING THE YEAR UNDER CONSIDERATION . WE , THUS, ARE IN AGREEMENT WITH THE VIEW TAKEN BY THE CIT(A) THAT AS THE ASSESSEE HAD DURING THE YEAR UNDER CONSIDERATION NOT MADE ANY INVESTMENT WITH RESPECT TO THE PROPERTIES IN QUESTION, EXCEPT FOR AN AMOUNT OF RS.13,32,000/ - (SUPRA) THAT WAS SOURCED FROM HER RETURNED INCOME, THUS, THE ADDITION MADE BY THE A.O U/ S. 69 OR U/S . 68 COULD NOT BE SUSTAINED AND WAS LIABLE TO BE VACATED . AT THIS STAGE, WE MAY HEREIN OBSERVE , THAT NEITHER THERE IS ANYTHING DISCERNIBLE FROM THE RECORDS NOR ANY MATERIAL HAS BEEN BROUGHT TO OUR NOTICE BY THE LD. D.R WHICH WOULD PROVE THAT TH E ASSESSEE HAD MADE ANY INVESTMENT QUA THE PROPERTIES IN QUESTION DURING THE YEAR UNDER CONSIDERATION. ACCORDINGLY, FINDING NO INFIRMITY IN THE VIEW TAKEN BY THE CIT(A) THAT NO PART OF THE ADDITION MADE BY THE A.O EITHER U/S 69 OR U/S 68 CAN BE SUSTAINED, WE, THUS , UPHOLD HIS ORDER . 9. RESULTANTLY, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRON OUNCED IN THE OPEN COURT ON 24 /06/2021. SD/ - SD/ - (RAJESH KUMAR) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 24 .06.2021 * PS: ROHIT ITA NO.6479/MUM/2019 A.Y. 2015 - 16 ACIT - 22(3) VS. SAEEDA YUSUF SAIKH 18 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 . BY ORDER, //TRUE COPY// (SR. PRIVATE SECRETARY) ITAT, MUMBAI