I.T.O. - 3(1)(3), MUMBAI V. COSMOS REALTORS PVT. LTD., MUMBAI

ITA 7150/MUM/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7197 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 18-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K L KANAK
• Keywords: Income from undisclosed sources; Source of fund; Difference of opinion; Reason to believe; Change of opinion
• Section: 143(3); 142(1); 69B; 147; 144

Judgement Text

1 ITA 7150/MUM/2017 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C, MUMBAI BEFORE SHRI G MANJUNATHA (ACCOUNTANT MEMBER) AND SHRI RAVISH SOOD (JUDICIAL MEMBER) ITA NO.7150/MUM/2017 (ASSESSMENT YEAR : 2006-07) ITO, 3(1)(3), MUMBAI VS M/S COSMOS REALTORS PVT L TD 112, MAKERS CHAMBERS-III NARIMAN POINT, MUMBAI- 400 021 PAN : AACCC6177F APPELLANT RESPONDEDNT APPELLANT BY SHRI K.L. KANAK RESPONDENT BY SHRI VIMAL PUNMIYA DATE OF HEARING 28-01-2019 DATE OF PRONOUNCEMENT 12-04-2019 O R D E R PER G MANJUNATHA, AM : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST ORDER OF THE CIT(A)-8, MUMBAI DATED 26-09-2017 AND IT PERTAINS TO AY 2006- 07. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD, CIT(A) IS RIGHT IN DELETING THE ADDITION OF RS.5,59,30,000 /- MADE BY THE AO U/S69B OF THE INCOME TAX ACT, WITHOUT APPRECIATING THE FACT THAT THE ADDITION IS BASED ON THE SPECIFIC INFORMATION RECEIVED FROM THE DR1, MUMBAI UNIT REGARDING CASH PAYMENT OUT OF UNDISCLOSED SOURCE BY THE ASSESSEE FOR THE P URPOSE OF PURCHASING LAND AND THE ASSESSEE HAD FAILED TO COUNTER THIS FINDINGS DURING THE ASSESSMENT & REMAND PROCEEDINGS, WHICH MAKES IT EVIDENT THAT THE ASSESS EE HAD MADE PAYMENT FROM UNDISCLOSED INCOME. 2 ITA 7150/MUM/2017 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD, CIT(A) IS RIGHT IN HOLDING THAT THE ADDITIONS WERE MADE ON THE BASIS OF PRESUMPTION & WITHOUT MATERIAL EVIDENCE, WITHOUT APPRECIATING THE FACT THAT THE ADDITION IS BASED ON DOCUMENTARY EVIDENCE IN THE FORM OF PRINT OUTS OF S OFT COPY OF INFORMATION EXTRACTED FROM THE COMPUTER OF MS. ZAVER CYRUS DADINA, DEPUTY MANAGER (ACCOUNTS) OF NITCO BEFORE THE PANCHAS & PANCHNAMA OF SAID PROCEE DINGS IS PROVIDED BY THE DRI AUTHORITIES. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E COMPANY IS ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPMENT, FILED ITS RETURN OF INCOME FOR AY 2006- 07 ON 29-11-2006 DECLARING TOTAL LOSS AT RS.54,404. THE ASSESSMENT HAS BEEN COMPLETED U/S 143(3) OF THE I.T. ACT, 1961 ON 04-12 -2008 AND ASSESSED TOTAL LOSS AT RS.54,404. SUBSEQUENTLY, THE CASE HAS BEEN REOPENED U/S 147 FOR THE REASONS RECORDED, AS PER WHICH, INCOME CHARGEABLE T O TAX HAD BEEN ESCAPED ASSESSMENT ON ACCOUNT OF ON-MONEY PAYMENT FOR PURCH ASE OF LANDED PROPERTIES AND SUCH REASONS WERE RECORDED ON THE BA SIS OF REPORT OF DRI WHICH CONDUCTED SEARCHES IN THE CASE OF NITCO GROUP WHERE CERTAIN HARD DISCS WERE SEIZED WHICH REVEALED PAYMENT OF ON-MONEY FOR PURCH ASE OF LANDS. THEREAFTER, THE CASE HAS BEEN TAKEN UP FOR SCRUTINY AND NOTICES U/S 143(2) AND 142(1) OF THE ACT WERE ISSUED. INITIALLY, THE AR OF THE ASSE SSEE APPEARED AND SOUGHT TIME TO FILE DETAILS, BUT AT LATER STAGE NON APPEARED TO FILE NECESSARY DETAILS AS CALLED FOR BY THE AO. THEREFORE, THE AO PASSED ORDER U/S 144 R.W.S. 147 OF THE I.T. ACT, 1961 ON 07-03-2014 AND DETERMINED TOTAL INCOME AT R S.5,59,30,000 BY MAKING ADDIT6ION OF RS.5,59,30,000 TOWARDS ON-MONEY PAID F OR PURCHASE OF LAND AT 3 ITA 7150/MUM/2017 DELHI ON THE BASIS OF REPORT OF DIRECTORATE OF REVE NUE INTELLIGENCE. THE RELEVANT FINDINGS OF THE AO ARE AS UNDER:- 8) THE ASSESSEE COMPANY IS INCORPORATED ON 18.04.2 005. ON PERUSAL OF THE BALANCE SHEET AS ON 31.03.2006 IT IS SEEN THAT THE ASSESSEE HAS PURCHASED AGRICULTURAL LAND DURING THE YEAR UNDER C ONSIDERATION. AS PER THE BALANCE SHEET THE COST OF THE LAND IS SHOWN AT RS 3,06,72,954/-. ON PERUSAL OF THE DETAILS FILED BY THE ASSESSEE COMPAN Y DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS, IT IS SEEN THAT TH E ASSESSEE HAS PURCHASED LAND FROM 3 PARTIES AS UNDER: S R N O PARTICULARS DATE OF AGREEMENT TO SELL AMOUNT 1 LAND A/C (XII) (14112 SQ.YDS) DULICHAND S/O SHRI BHAGWANA 10,06.2005 RS2,79,65,400/- 2 LAND A/C (XIII) (226.66 SQ.YDS) PRADEEP KALRA & FAMILY 23.06.2005 RS 13.20.000/- 3 LAND A/C (XIV) (5846.40 SQ.YDS) JAGE RAM, SHANTI DEVI & BIJENDER SINGH 2-12.2005 RS 10.98.500/- 9) SUBSEQUENTLY INFORMATION HAS BEEN RECEIVED FROM INVESTIGATION WING, NEW DELHI VIDE LETTER NO. F. NO. ITO(INV)/UNIT-IV(2 )/2012-13/16 DATED 15.03.2013 OF THE ITO(LNV.), UNIT-IV(2), NEW DELHI. AS PER THE SAID INFORMATION, DRI, MUMBAI CONDUCTED A SEARCH ON 28.0 8.2009 AT THE RESIDENTIAL PREMISES OF ONE MS ZAVER CYRUS DADINA, NITCO'S DEPUTY MANAGER (ACCOUNTS) DURING WHICH A HARD DISK AND A P EN DRIVE WAS SEIZED. A FILE FOUND IN THIS HARD DISK CONTAINED DETAILS OF PURCHASE OF AND PAYMENTS MADE FOR 36(27+9) LANDED PROPERTIES IN MAI DAN GARHI (POPULARLY KNOWN AS SAINIK FARMS) AREA OF SOUTH DELHI, DURING F Y 2005-06. A COPY OF THE SAID FILE IN EXCEL FORMAT, LISTING THE SAID 36 PROPERTIES AND DETAILS OF SELLERS/BUYERS AND PAYMENTS BOTH IN DEMAND DRAFT AN D 'B' (CASH MODE) WAS ENCLOSED. DURING THE COURSE OF DISCRETE ENQUIRY BY INVESTIGATING OFFICER AT MUMBAI, IT WAS GATHERED THAT THE ENTIRE LAND DEAL APPARENTLY WAS ORGANIZED BY THE NITCO GROUP THROUGH ITS SISTER CONCERNS AND INDIVIDUALS KNOWN TO TIE DIRECTORS/KEY PERSONS IN THE GROUP WHO ACTED AS PURCHASERS. THE OBJECTIVE OF /HE TRANSACTIONS WAS CONSOLIDATION OF VARIOUS HOLDINGS AND CHANGE OF ITS LAND USE FOR DEVELOPMENT PURPOSE. OUT OF THE NAMES OF BUYERS/SELLERS, ONE OF THE NAMES IS/ THAT OF THE AS SESSEE COMPANY I.E M/S COSMOS REALTORS PVT LTD. THIS FINDING CORROBORATES WITH THE FACT THAT SHRI VIVEK TAWAR WHO IS' THE DIRECTOR OF M/S COSMOS REAL TORS PVT LTD IS ALSO THE MANAGING DIRECTOR OF M/S NITCO LTD. THE DETAILS OF CASH COMPONENT CULLED FROM THE EXCEL SHEET FURNISHED BY THE DRI, MUMBAI I S REPRODUCED HE/EUNDER: 4 ITA 7150/MUM/2017 NAME OF THE SELLER DETAILS OF PROPERTY AMOUNT OF ON-MONEY PAID(RS.) DULI CHAN D KHASA NO.50/17/24(4- 16), 50/17/2(0-4), 52/4(4-16), 52/7(5-15), VILLAGE DEVLI, TEHSIL HAUZ KHAS (MEHRAULI), NEW DELHI 4,57,68,000/- JAGE RAM & FAMIL Y 638, MAIDAN GARHI, TEHSIL HAUZ KHAS (MEHRAULI), NEW DELHI 1, 01,62, 000/- TOTAL 5,59,30,000/- 10) SINCE THE PROPERTIES ARE REFLECTED AS FIXED ASS ETS IN THE BOOKS OF THE ASSESSEE AS ON 31.03.2006, IT IS EVIDENT THAT THE A SSESSEE HAS TAKEN POSSESSION OF THE PROPERTIES AND HAS PAID THE ON-MO NEY OF RS. 5,59,30,000/- OUT OF HIS UNDISCLOSED SOURCES OF INCOME. ACCORDING LY DURING THE COURSE OF ASSESSMENT PROCEEDINGS, NOTICE U/S 142(1) ALONG WIT H EXTRACT OF EXCEL SHEET WAS ISSUED TO THE ASSESSEE AND HE WAS ASKED TO FURN ISH SUBMISSIONS IN THIS REGARD. THE ASSESSEE NEITHER ATTENDED THE SCRUTINY PROCEEDINGS NOR FURNISHED ANY REPLY. IT IS THEREFORE EVIDENT THAT THE ASSESSE E HAS NO EXPLANATION TO OFFER IN THIS REGARD. FURTHER IT IS OBSERVED THAT THE AMO UNT OF D/D MENTIONED IN EXCEL SHEET FURNISHED BY THE DRI ROUGHLY MATCHES WI TH PURCHASE VALUE OF LAND DISCLOSED BY THE ASSESSEE IN THE BALANCE SHEET BUT THE CASH COMPONENT 'B' MENTIONED IN THE EXCEL SHEET IS NOT DISCLOSED BY TH E ASSESSEE. THIS CORROBORATES WITH THE FACTS INTIMATED BY THE DRI TH AT THE CASH PORTION IS NOT DECLARED IN THE SALE AGREEMENT. SINCE THE ASSESSEE HAS NOT FURNISHED ANY SUBMISSIONS ON THIS ISSUE, IT IS PRESUMED THAT THE ASSESSEE HAS NO EXPLANATION TO OFFER. 11) TO REITERATE, IN THIS CASE DEPARTMENT HAD RECEI VED SPECIFIC INFORMATION FROM DRI, MUMBAI THAT THE ASSESSEE HAD PAID MONEY I N CASH FOR PURCHASE OF LAND OVER .AND ABOVE THE AGREEMENT VALUE. WHEN THE ASSESSEE WAS CONFRONTED WITH THESE FACTS, THE ASSESSEE OFFERED N O EXPLANATION FOR THE SAME DESPITE SEVERAL OPPORTUNITIES ; GIVEN TO HIM TO FURNISH HIS SUBMISSIONS. THE SILENCE OF THE ASSESSEE INDICATES THAT THE INFORMAT ION RECEIVED FROM DRI IS CORRECT AND SINCE THE ASSESSEE WAS FULLY AWARE ''OF THESE DEALINGS AND MONEY WAS PAID OUT OF HIS UNDISCLOSED SOURCES OF INCOME H E HAS NO PLAUSIBLE EXPLANATION TO OFFER. THE SILENCE OF THE ASSESSEE I S IN OTHER WORDS HIS ADMISSION OF GUILT OF NON DISCLOSURE OF TRUE AND CO RRECT FACTS OF HIS DEALINGS. 12) SINCE IN F Y 2005-06 THE ASSESSEE HAS MADE INVE STMENTS AND IT IS FOUND THAT THE AMOUNT EXPENDED ON MAKING SUCH INVESTMENT EXCEEDS THE AMOUNT RECORDED IN THIS BEHALF IN THE BOOKS OF ACCOUNTS MA INTAINED BY THE ASSESSEE 5 ITA 7150/MUM/2017 FOR ANY SOURCE OF INCOME AND THE ASSESSEE HAS OFFER ED NO EXPLANATION ABOUT SUCH EXCESS AMOUNT OF MONEY, THIS EXCESS AMOUNT IS DEEMED TO BE THE INCOME OF THE ASSESSEE FOR THE F Y 2005-06. THE ASS ESSEE HAS PAID ON- MONEY OF RS. 5,59,30,000/- OUT OF HIS UNDISCLOSED S OURCES OF INCOME FOR PURCHASE OF LAND OVER AND ABOVE THE AMOUNT DISCLOSE D IN THE BALANCE SHEET. ACCORDINGLY AS PER THE PROVISIONS OF SECTION 69B OF THE I T ACT THIS EXCESS AMOUNT OF RS. 5,59,30,0007- IS DEEMED TO BE THE INC OME OF THE ASSESSEE FOR THE F Y 2005-06 RELEVANT TO A Y 2006-07 AND ADDED B ACK. PENALTY PROCEEDINGS U/S 271{1)(C) OF THE I T ACT IS INITIAT ED SEPARATELY ON THIS ISSUE FOR FURNISHING INACCURATE PARTICULARS OF INCOME. 13) AS PER THE COMPUTATION OF TOTAL INCOME FILED BY THE ASSESSEE COMPANY IT IS SEEN THAT THE ASSESSEE COMPANY HAS STATED THAT B USINESS ACTIVITY IS NOT CARRIED OUT DURING THE YEAR AND HENCE THE LOSS OF R S 54.404/- IS NOT ALLOWED TO BE CARRIED FORWARD AND TO BE ADJUSTED AGAINST BUSIN ESS PROFIT OF SUBSEQUENT YEAR. THUS THE BUSINESS LOSS IS NOT ALLOWED TO BE C ARRIED FORWARD. EVEN OTHERWISE THIS LOSS CANNOT BE SET OFF AGAINST INCOM E DETERMINED U/S 69B, AS DISCUSSED IN PARA ABOVE. 3. AGGRIEVED BY THE ASSESSMENT ORDER, ASSESSEE PREF ERRED APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), ASSESSEE HAS FILED WRITTEN SUBMISSIONS WHICH HAS BEEN REPRODUCED AT PARA 4 ON PAGES 3 TO 29 OF LD.CI T(A)S ORDER. THE SUM AND SUBSTANCE OF ARGUMENTS OF THE ASSESSEE BEFORE THE L D.CIT(A) ARE THAT THE AO HAS MADE ADDITION MERELY ON THE BASIS OF THIRD PART Y INFORMATION WITHOUT CONFRONTING THOSE INFORMATIONS / STATEMENTS TO THE ASSESSEE FOR ITS REBUTTAL. THE ASSESSEE FURTHER CONTENDED THAT WHEN DOCUMENTS PRODUCED BEFORE THE AO ARE CLEARLY INDICATIVE OF PAYMENT OF CONSIDERATI ON FOR PURCHASE OF LAND, NO ADVERSE INFERENCE CAN BE DRAWN ON THE BASIS OF SOM E OUTSIDE MATERIALS TO COME TO THE CONCLUSION THAT THE ON-MONEY PAYMENT HA S BEEN MADE FOR PURCHASE OF LAND. 6 ITA 7150/MUM/2017 4. THE LD.CIT(A), AFTER CONSIDERING RELEVANT SUBMIS SIONS OF THE ASSESSEE AND ALSO BY RELYING UPON VARIOUS JUDICIAL PRECEDENTS IN CLUDING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS CALCUTT A DISCOUNT CO LTD (1973) 91 ITR 8 (CAL) HELD THAT WHEN THE AO HAS FAILED TO MAK E OUT A CASE OF ON-MONEY PAYMENT WITH ANY EVIDENCES, ERRED IN MAKING ADDITIO N ONLY ON THE BASIS OF THIRD PARTY INFORMATION WITHOUT GIVING AN OPPORTUNI TY TO CROSS EXAMINE THE PERSON, WHO GAVE THE STATEMENT AGAINST THE ASSESSEE . THE LD.CIT(A) FURTHER OBSERVED THAT ALTHOUGH AN OPPORTUNITY HAS BEEN GIVE N TO THE AO TO COMMENT ON EVIDENCE FILED BY THE ASSESSEE, BUT, THE AO, IN HIS REMAND REPORT FAILED TO OFFER ANY COMMENTS. THEREFORE, THE LD.CIT(A) CAME TO THE CONCLUSION THAT THERE WAS NO REASON FOR MAKING ADDITION TOWARDS ON- MONEY PAYMENT WITHOUT THERE BEING ANY FURTHER EVIDENCES TO PROVE THAT THE ASSESSEE HAS PAID ON- MONEY FOR PURCHASE OF LAND. THE RELEVANT OBSERVATI ONS OF THE LD.CIT(A) ARE AS UNDER:- 5.3.1 THIS GROUND OF APPEAL RELATES TO ADDITION OF RS. 5,59,30,000/- TO THE RETURNED INCOME UNDER SECTION 69B OF THE INCOME TAX ACT 1961 . THE ASSESSING OFFICER HAS DEALT WITH THIS ISSUE FROM PARA 8 TO 13 OF HIS ORDER. A P ERUSAL OF THE MATERIAL AVAILABLE ON RECORD SHOWS THAT THE COMPANY WAS INCORPORATED ON 18/04/20 05. DURING THE YEAR, THE APPELLANT HAD ACQUIRED AGRICULTURAL LAND. AS PER THE BALANCE SHEET THE COST OF LAND WAS RS. 3,06,72,954/-. THE APPELLANT HAD PURCHASED LAND FRO M FOUR PARTIES AS HAVE BEEN MENTIONED AS PARA 8 OF THE ASSESSMENT ORDER. THE AG REEMENT DATED 10/06/2005 FOR RS. 2,79,65,400/-, AGREEMENT DATED 23/06/2005 FOR RS. 1 3,20,000/-, AND AGREEMENT DATED 02/12/2005 FOR RS. 10,98,5007-. 5.3.2 THE ASSESSING OFFICER HAS OBSERVED THAT AS PE R INFORMATION RECEIVED, DRI, MUMBAI CONDUCTED SEARCH ON 28/08/2009 AT THE RESIDENTIAL P REMISES OF MS. ZAVER CYRUS DADINA, NITCO'S DEPUTY MANAGER (ACCOUNTS) FROM WHERE A HARD DISK & PEN DRIVE WERE RECOVERED AND THESE ELECTRONIC MEDIA CONTAINED DETAILS OF PUR CHASES AND PAYMENTS MADE FOR 36 PROPERTIES IN MAIDAN GARNI AREA OF SOUTH DELHI, DUR ING FY 2005-06. COPY OF THAT EXCEL FILE WAS RECEIVED BY THE TAX DEPARTMENT. THE ASSESSING O FFICER HAS FURTHER OBSERVED, 'DURING THE COURSE OF DISCRETE ENQUIRY BY INVESTIGATING OFF ICER AT MUMBAI, IT WAS GATHERED THAT THE ENTIRE LAND DEAL APPARENTLY WAS ORGANISED BY THE NI TCO GROUP THROUGH ITS SISTER CONCERNS 7 ITA 7150/MUM/2017 AND INDIVIDUALS KNOWN TO THE DIRECTORS/KEY PERSONS IN THE GROUP WHO ACTED AS PURCHASERS. THE OBJECTIVE OF THE TRANSACTIONS WAS C ONSOLIDATION OF VARIOUS HOLDINGS AND CHANGE OF ITS LAND USE FOR DEVELOPMENT PURPOSES. OU T OF THE NAMES OF BUYERS/TELLERS, ONE OF THE NAMES IS THAT OF THE ASSESSEE COMPANY I.E. M /S COSMOS REALTORS PVT LTD. THIS FINDING CORROBORATES WITH THE FACT THAT SHRI VIVEK TAWAR WHO IS THE DIRECTOR OF M/S COSMOS REALTORS PVT LTD. IS ALSO THE MANAGING DIREC TOR OF M/S NITCO LTD.' 5.3.3 THE DETAILS OF CASH COMPONENT EXTRACTED FROM THE EXCEL SHEET FURNISHED BY THE DRI MUMBAI ARE GIVEN AT PARA 9 & 10 OF THE ORDER. FOR T HE IMPUGNED TRANSACTIONS, THE TOTAL AMOUNT OF RS. 5,59,30,0007- 'ON-MONEY' WAS PAID OUT OF 'UNDISCLOSED SOURCES OF INCOME'. THE ASSESSING OFFICER HAS OBSERVED THAT TH E VALUE OF AGRICULTURAL LAND REFLECTED IN THE BALANCE SHEET OF THE APPELLANT 'ROUGHLY MATC HES' WITH THE DD AMOUNT AS PER THE INFORMATION RECEIVED FROM THE DRI. HE HAS, THEREFOR E, CONCLUDED AT PARA 12, 'SINCE IN FY 2005-05 THE ASSESSEE HAS MADE INVESTMENTS AND IT IS FOUND THAT THE AMOUNT EXPENDED ON MAKING SUCH INVESTMENT EXCEEDS THE AMOUNT RECORD ED IN THIS BEHALF IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE FOR ANY SOURCE OF INCOME AND THE ASSESSEE HAS OFFERED NO EXPLANATION ABOUT THE EXCESS AMOUNT OF M ONEY, THIS EXCESS AMOUNT IS DEEMED TO BE THE INCOME OF THE ASSESSEE FOR THE FY 2005-06. THE ASSESSEE HAS PAID ON-MONEY F RS. 5,59,30,0007- OUT OF HIS UNDISCLOSED SOURCE OF INCOME.....-'. WITH THESE OBSERVATIONS, THE ASSESSING OFFICER HAS ADDED THE I MPUGNED AMOUNT U/S 69B. ORIGINAL RETURN BE TREATED AS FILED IN COMPLIANCE T O THE SAID NOTICE. THEREAFTER, NOTICES UNDER SECTION 143(2} AND 142(1) WERE DULY ISSUED AN D SERVED ON THE APPELLANT. 5.2.3 IT IS SEEN THAT THERE WAS SPECIFIC INFORMATIO N RECEIVED BY THE ASSESSING OFFICER FROM THE INVESTIGATION WING/DRI WITH FIRM REASON TO BELIEVE THAT THE APPELLANT HAD PAID 'ON MONEY' FOR THE PURCHASES. THE ASSESSING OF FICER HAS RECORDED DETAIL 'REASONS TO BELIEVE' THAT THE INCOME OF THE APPELLA NT HAD ESCAPED ASSESSMENT AND, THEREFORE, WAS FULLY JUSTIFIED IN REOPENING OF THE ASSESSMENT. 5.2.4 I HAVE GIVEN DUE CONSIDERATION TO DECISIONS C ITED BY THE APPELLANT'S INCLUDING CIT V KELVINATOR INDIA LTD (2010) 1 TAXMANN 27. I D O NOT FIND THAT THE APPELLANT GETS SUPPORT FROM THE DECISIONS CITED BY A NUMBER OF DEC ISIONS OF THE APEX COURT AS WELL AS HIGH COURTS. IN THE CASE OF THE APPELLANT, IT IS RELEVANT TO ASCERTAIN AS TO WHETHER THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT O N BASIS OF 'REASON TO BELIEVE' OR NEAR 'CHANGE OF OPINION'. IT IS NOTED THAT THE ISSU E OF PURCHASE OF IMMOVABLE PROPERTY HAD NOT BEEN CONSIDERED EARLIER DURING THE SCRUTINY ASSESSMENT UNDER SECTION 143(3) COMPLETED ON 04/12/2008 WHEN THE ASSESSING OFFICER HAS MERELY OBSERVED THAT THE APPELLANT WAS ENGAGED IN THE BUSINESS OF REAL ESTAT E DEVELOPMENT. THE ASSESSING OFFICER HAD RECEIVED FRESH MATERIAL INFORMATION FRO M INVESTIGATION WING/DRI ABOUT PAYMENT OF MONEY. THIS MATTER WAS NOT PART OF THE O RIGINAL SCRUTINY ASSESSMENT. THEREFORE, THE REOPENING IS VALID. 5.2.5 IN THE CASE OF CALCUTTA DISCOUNT CO. LTD. V. ITO 41 ITR 191 FSC), IT WAS OBSERVED THAT IT IS THE DUTY OF THE ASSESSEE TO DIS CLOSE ALL THE PRIMARY FACTS WHICH HAVE A BEARING ON THE LIABILITY OF THE INCOME EARNE D BY THE ASSESSEE BEING SUBJECTED TO TAX. IT IS FOR THE ASSESSING OFFICER TO DRAW INF ERENCES FROM THE FACTS AND APPLY THE LAW DETERMINING THE LIABILITY OF THE ASSESSEE. 5.2.6 DISCOVERY OF NEW AND IMPORTANT MATTERS OR KNO WLEDGE OF FRESH FACTS WHICH WERE NOT PRESENT AT THE TIME OF ORIGINAL ASSESSMENT WOUL D CONSTITUTE A 'REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT' WITHIN THE MEAN ING OF SECTION 147. SIMILAR VIEW HAS BEEN TAKEN BY THE APEX COURT IN THE FOLLOW ING CASES : (/) PHOOL CHAND BAJRANG LAL V. ITO 203 ITR 456, 477; (//) ALA FIRM V. CIT 189 ITR 285, 298; (HI) INDIAN AND EASTERN NEWSPAPER SOCIETY V. C/7119 ITR 996, 1004; AND (/V) ITO V. LAKHMANI MEWAL DAS 103 ITR 437. 445. 5.2.7 IN VIEW OF THE ABOVE UNAMBIGUOUS VIEW OF JUDI CIAL AUTHORITIES WITH REGARD TO DISCOVERY OF NEW MATERIAL FACTS, I DO NOT FIND ANY MERIT IN THE CONTENTION OF THE APPELLANT FOR THIS GROUND OF APPEAL. THEREFORE, REO PENING OF ASSESSMENT IS SUSTAINED AND THIS GROUND OF APPEAL IS DISMISSED. 5.3.4 THE ABOVE FACTS HAVE BEEN CONSIDERED BY ME. I T IS NOTED THAT BESIDES A COPY OF EXCEL FILE PROVIDED BY DRI THERE WAS ABSOLUTELY NO INFORMATION AVAILABLE WITH THE 8 ITA 7150/MUM/2017 ASSESSING OFFICER REGARDING THE TRANSACTION IN RESP ECT OF AGRICULTURAL LAND PURCHASED BY THE APPELLANT. IT IS ALSO A FACT THAT MS. ZAVER CYR US DADINA, NITCO'S DEPUTY MANAGER (ACCOUNTS) IS DEPUTY MANAGER OF NITCO GROUP AND IN NO WAY CONNECTED WITH THE APPELLANT COMPANY. FURTHERMORE, APART FROM THE FILE RECEIVED FROM DRI, THE ASSESSING OFFICER HAS GATHERED NO OTHER EVIDENCE THAT THE APP ELLANT HAD PAID ANY ON-MONEY. HE HAS NOT EVEN MADE ANY INDEPENDENT ENQUIRIES TO ASCERTAI N THE MARKET RATE OF LAND IN THAT LOCALITY DURING ASSESSMENT PROCEEDINGS. 5.3.5 DURING THESE APPELLATE PROCEEDINGS, THE APPEL LANT HAD MADE WRITTEN SUBMISSIONS FILED ON 16/02/2015 WHICH INCLUDED P&L ACCOUNT, BAL ANCE SHEET AND COPIES OF AGREEMENT FOR PURCHASE OF AGRICULTURAL LAND ON STAMP PAPER. M Y PREDECESSOR HAD CALLED FOR REPORT UNDER SECTION 250(4) OF THE INCOME TAX ACT, 1961 VI DE HIS LETTER DATED 29/04/2015 ASKING THE ASSESSING OFFICER TO SUBMIT THE REMAND REPORT A FTER MAKING FURTHER ENQUIRY. THE ASSESSING OFFICER SUBMITTED HIS REMAND REPORT VIDE LETTER DATED 24/05/2016 WHEREIN HE STATED THAT ALL THE DOCUMENTS FORWARDED TO HIM HAVE ALREADY BEEN CONSIDERED BY THE ASSESSING OFFICER WHILE PASS ING THEJASSESSMENT UNDER SECTION 144 R.W.S. 147 OF THE ACT. THUS, IT IS SEEN THAT EV EN AT THE REMAND STAGE THE ASSESSING OFFICER DID NOT MAKE ANY FURTHER ENQUIRIES OR PRODU CE ANY SUBSTANTIVE OR MATERIAL EVIDENCE TO ESTABLISH PAYMENT OF ON-MONEY BY THE APPELLANT. IN THEIR RESPONSE, THE APPELLANT FILED A REBUTTAL TO THE REMAND REPORT ON 24/06/2016 REITERA TING THEIR SUBMISSIONS AS EXTRACTED ABOVE. THEY EMPHASISED THE POINT THAT IT WAS THE 1 ST YEAR OF OPERATION AND BUSINESS HAD NOT COMMENCED AND STRONGLY CONTENDED THAT THE ADDIT ION MADE BY THE ASSESSING OFFICER WAS PURELY HYPOTHETICAL AND WITHOUT ANY EVIDENCE. I T IS ALSO NOTEWORTHY THAT THE APPELLANT HAD NEVER BEEN GIVEN ANY OF FACILITIES TO CROSS EXA MINE MS, ZAVER CYRUS DADINA. NITCO'S DEPUTY MANAQER__(ACCOUNTS) FROM WHOM INFORM ATION WAS SEIZED BY DRI. 5.3.6 I HAVE CONSIDERED THE VARIOUS JUDGEMENTS RELI ED UPON BY THE APPELLANT AS REPRODUCED ABOVE IN THE CONTENTIONS AND FIND THAT T HE RATIOS OF THE VARIOUS DECISIONS APPLIES SQUARELY IN THE FACTS AND CIRCUMSTANCES OF THIS CASE. THERE MUST BE SOME MATERIAL ON RECORD AS EVIDENCE FOR ADDITION. ADDITI ON MADE ON THE BASIS OF PRESUMPTION CANNOT BE SUSTAINED IN LAW. THIS POSITION IS STRONG LY SUPPORTED BY THE FOLLOWING DECISIONS OF THE APEX COURT: A) CIT V ROMAN & CO (1968) 67 ITR 11 (SC) B) CIT V CALCUTTA DISCOUNT CO LTD (1973) 91 ITR 8 (SC) C) OMAR SALAY MOHAMED SAIT VS CIT 1959 37 ITR 151 (SC) D) DHIRAJLAL GIRDHARILAL V CIT (26 ITR 734)(SC) 5.3,7 IN VIEW OF THE ABOVE, I FIND THAT THERE IS NO JUSTIFICATION FOR PRESUMING THAT ON MONEY OF RS. 5,59,30,0007- WAS MADE BY THE APPELLANT. THI S GROUND OF APPEAL IS ALLOWED. 5. THE LD.DR SUBMITTED THAT THE LD.CIT(A) FAILED TO APPRECIATE FACTS IN RIGHT PERSPECTIVE WHILE DELETING ADDITION MADE BY THE AO TOWARDS ON-MONEY PAYMENT FOR PURCHASE OF LAND U/S 69B OF THE INCOME- TAX ACT, 1961 WITHOUT APPRECIATING THE FACT THAT THE AO HAS MADE SUCH ADD ITION ON THE BASIS OF SPECIFIC INFORMATION RECEIVED FROM THE DRI, MUMBAI, REGARDING CASH PAYMENT OUT OF UNDISCLOSED SOURCE OF INCOME OF THE ASSESSEE . THE LD.DR FURTHER SUBMITTED THAT THE LD.CIT(A) WAS ERRED IN HOLDING T HAT ADDITION WAS MADE ON 9 ITA 7150/MUM/2017 THE BASIS OF PRESUMPTION AND WITHOUT ANY MATERIAL, IGNORING THE FACT THAT THE ADDITION IS BASED ON DOCUMENTARY EVIDENCE IN THE FO RM OF PINTOUTS OF SOFT COPY OF INFORMATION RETRIEVED FROM THE COMPUTER OF MRS Z AVER CYRUS DADINA, DY. MANAGER (ACCOUNTS) OF NITCO BEFORE THE PANCHAS AND PANCHANAMAS OF SAID PROCEEDINGS WERE PROVIDED BY DRI AUTHORITIES. 6. THE LD.AR FOR THE ASSESSEE, ON THE OTHER HAND, S TRONGLY SUPPORTING THE ORDER OF THE LD.CIT(A), SUBMITTED THAT THE ISSUE IN VOLVED IN THE PRESENT APPEAL IS SQUARELY COVERED BY THE DECISION OF ITAT, MUMBAI BENCH G IN THE CASE OF M/S RHYTHM REAL ESTATES PVT LTD IN ITA NO.2325/MUM/ 2016, WHERE UNDER IDENTICAL SET OF FACTS AND ALSO ON THE BASIS OF SIM ILAR REPORT OF DRI, MUMBAI UNIT CONSIDERED BY THE TRIBUNAL AND HELD THAT IN ABSENCE OF FURTHER EVIDENCE TO PROVE THAT THE ASSESSEE HAS PAID ON-MONEY FOR PURCH ASE OF PROPERTY OR IN ABSENCE OF ANY ENQUIRY TO ASCERTAIN MARKET RATE OF LAND IN THAT LOCALITY, NO ADVERSE INFERENCE COULD BE DRAWN SO AS TO MAKE ADDI TION ON THE BASIS OF THIRD PARTY INFORMATION WITHOUT CONFRONTING THOSE INFORMA TION TO THE ASSESSEE FOR ITS REBUTTAL. THE FACTS INVOLVED IN THE PRESENT APPEAL ARE IDENTICAL AND ADDITION MADE BY THE AO ON THE BASIS OF SOME DRI REPORT, THE REFORE, THE LD.CIT(A) HAS APPRISED THE FACTS IN RIGHT PERSPECTIVE TO DELETE A DDITION MADE TOWARDS ON- MONEY FOR PURCHASE OF LAND AND HIS ORDER SHOULD BE UPHELD. 10 ITA 7150/MUM/2017 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. THE SOLE BASIS FOR ADDITION TOWARDS ON-MON EY PAYMENT U/S 69B OF THE ACT, IS REPORT OF DIRECTORATE OF REVENUE INTELLIGEN CE, MUMBAI UNIT WHERE IT WAS STATED THAT AS PER THE CONTENTS OF SEIZED DOCUMENT DURING THE COURSE OF SEARCH IN THE CASE OF NITCO, THE ASSESSEE HAS PAID ON-MONE Y FOR PURCHASE OF LANDS AT DELHI. EXCEPT THIS, NO OTHER EVIDENCE HAS BEEN BRO UGHT ON RECORD BY THE AO TO JUSTIFY HIS ACTION. THE AO HAS EVEN FAILED TO COND UCT ANY ENQUIRY TO ASCERTAIN CORRECT MARKET RATE OF THE PROPERTY AS ON THAT DAT E. UNLESS, THE AO HAS CONDUCTED FURTHER ENQUIRIES IN THE LIGHT OF REPORT OF DRI TO ASCERTAIN CORRECT RATE OF LAND, NO ADVERSE INFERENCE COULD BE DRAWN O NLY ON THE BASIS OF REPORT OF DRI WITHOUT CONFRONTING THOSE INFORMATIONS / STA TEMENTS TO THE ASSESSEE FOR ITS REBUTTAL. FURTHER, AN IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE ITAT, MUMBAI BENCH G IN THE CASE OF M/S RHYTHM REAL EST ATES PVT LTD VS ITO IN ITA NO.2325/MUM/2016, WHERE UNDER IDENTICAL SET OF FACT S AND ALSO ON THE BASIS OF SIMILAR DRI REPORT, THE TRIBUNAL CAME TO THE CON CLUSION THAT THE AO WAS ERRED IN MAKING ADDITION TOWARDS ON-MONEY PAYMENT U /S 69B WITHOUT THERE BEING ANY FURTHER EVIDENCES TO INDICATE PAYMENT OF ON-MONEY FOR PURCHASE OF LAND. THE RELEVANT FINDINGS OF THE TRIBUNAL ARE AS UNDER:- 7. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. AS COULD BE SEEN FROM THE FACTUAL MATRIX OF THE CASE, ON THE BA SIS OF INFORMATION RECEIVED FROM THE DRI, MUMBAI, THAT ASSESSEE HAS MADE CASH PAYMENT TO WARDS ONMONEY FOR PURCHASING LANDED PROPERTY IN NEW DELHI, THE ASSESSING OFFICER REOPENED THE ASSESSMENT UNDER 11 ITA 7150/MUM/2017 SECTION 147 OF THE ACT. IT IS ALSO EVIDENT, THE REP ORT OF THE DRI, MUMBAI, IS ON THE BASIS OF RECOVERY OF A HARD DISK AND A PEN DRIVE DURING A SE ARCH CONDUCTED IN THE RESIDENTIAL PREMISES OF MS. ZAVER CYRUS DADINA, NO 28TH AUGUST 2009, WHO IS STATED TO BE THE DY. MANAGER (ACCOUNTS) OF NITCO. AS PER THE INFORMATION AVAILABLE FROM THE HARD DISC CONTAINED IN EXCEL FORMAT THE ASSESSEE PURPORTEDLY PAID ONMONEY IN CASH TOWARDS PURCHASE OF LANDED PROPERTY AT SAINIK FARMS, NEW DE LHI. AS OBSERVED BY THE LEARNED COMMISSIONER (APPEALS), APART FROM THE INFORMATION RECEIVED FROM DRI, ALONG WITH ATTACHED EXCEL SHEET, THE ASSESSING OFFICER HAD NO OTHER CORROBORATIVE EVIDENCE INDICATING CASH PAYMENT OF ONMONEY BY THE ASSESSEE . AS COULD BE SEEN, THE LEARNED COMMISSIONER (APPEALS) AFTER VERIFYING THE MATERIAL S ON RECORD, HAS FOUND THAT THE ASSESSEE IN THE RELEVANT PREVIOUS YEAR ACQUIRED AGR ICULTURAL LAND AND AS PER THE BALANCE SHEET ADVANCE AGAINST THE LAND WAS SHOWN AT ` 2,42, 21,801. HE FURTHER NOTICED THAT THE ASSESSEE HAD ENTERED INTO AGREEMENTS WITH FOUR PART IES FOR PURCHASE OF LAND. HE FOUND THAT THE ENTIRE BASIS FOR ADDITION ON ACCOUNT OF ON MONEY IS ON THE BASIS OF INFORMATION FOUND FROM THE HARD DISK RECOVERED FROM MS. ZAVER C YRUS DADINA, WHO IS IN NO WAY CONNECTED WITH THE ASSESSEE. THE LEARNED COMMISSION ER (APPEALS) OBSERVED, APART FROM THIS INFORMATION IN THE FORM OF AN EXCEL SHEET RECE IVED FROM DRI, MUMBAI, THE ASSESSING OFFICER HAS NO OTHER EVIDENCE IN HIS POSSESSION TO INDICATE PAYMENT OF ONMONEY BY THE ASSESSEE. HE ALSO TOOK NOTE OF THE FACT THAT THE AS SESSING OFFICER EVEN HAS NOT MADE ANY INDEPENDENT ENQUIRY WITH THE SELLERS OF THE LANDED PROPERTY OR MADE ANY ENQUIRY TO ASCERTAIN THE MARKET RATE OF THE LAND IN THAT LOCAL ITY. HE OBSERVED, EVEN THOUGH THE ASSESSEE HAS FURNISHED THE SALE AGREEMENTS OF THE P ROPERTY BEFORE THE ASSESSING OFFICER IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESS ING OFFICER HAS NOT TAKEN NOTE OF THEM DURING THE ASSESSMENT PROCEEDINGS. THE LEARNED COMMISSIONER (APPEALS) OBSERVED, EVEN THOUGH, IN COURSE OF PROCEEDINGS BEF ORE HIM THE ASSESSING OFFICER WAS DIRECTED TO EXAMINE THE SUBMISSIONS MADE BY THE ASS ESSEE AND CONDUCT NECESSARY ENQUIRY, HOWEVER, THE ASSESSING OFFICER WITHOUT CON DUCTING ANY ENQUIRY HAS SUBMITTED HIS REMAND REPORT ON 18TH AUGUST 2015, BY SIMPLY ST ATING THAT THE DOCUMENTS FORWARDED TO HIM HAVE ALREADY BEEN CONSIDERED BY TH E ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT UNDER SECTION 143(3) R/W SECTION 147 OF THE ACT. THUS, IN VIEW OF THE AFORESAID FACTUAL POSITION, THE LEARNED COMMISSIONER (APPEALS) CONCLUDED THAT IN THE ABSENCE OF ANY EVIDENCE BROUGHT ON RECO RD TO PROVE THE PAYMENT OF ON MONEY BY THE ASSESSEE THE ADDITION MADE UNDER SECTI ON 69B OF THE ACT CANNOT BE SUSTAINED. THE AFORESAID FACTUAL FINDING OF THE LEA RNED COMMISSIONER (APPEALS) REMAINS UNCONTROVERTED EVEN BEFORE US. MOREOVER, WHILE DEAL ING WITH IDENTICAL ISSUE ARISING IN THE REVENUES APPEAL IN CASE OF M/S. SATURN ADVISOR Y SERVICES PVT. LTD. (SUPRA), WHEREIN, ADDITION OF ONMONEY UNDER SECTION 69B WAS MADE ON THE BASIS OF THE SIMILAR REPORT OF THE DRI CONTAINING INFORMATION FOUND DURING SEARCH ON MS. ZAVER CYRUS DADINA, THE CO ORDINATE BENCH HAS UPHELD THE DECISION OF THE LEARN ED COMMISSIONER (APPEALS) OBSERVING AS UNDER: 2.9. TOTALITY OF FACTS, IF KEPT IN JUXTAPOSITION, WITH THE FACTS AND THE RATIO LAID DOWN IN THE AFORESAID CASES ARE ANALYZED, THE LD. A SSESSING OFFICER IS ASKING THE ASSESSEE TO PROVE THE NEGATIVE WHICH IS NOT PERMITT ED AND THE WHOLE ASSESSEE OF THE DEPARTMENT IS BASED UPON THE PRESUMPTION THAT T HE ASSESSEE COULD NOT EXPLAIN THAT NO CASH WAS TRANSACTED IN THE SALE CON SIDERATION. IT IS ALSO NOTED THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL) HAS DUL Y ANALYZED THE STATEMENT OF SHRI ATUL SUD, MS. ZAVER CYRUS DADINA, DY. MANAGER (ACCOUNTS) OF NITCO, FROM WHOSE PREMISES THE HARD DISC WAS FOUND AND SEIZED A ND SHRI ATUL SUD ADMITTED TO HAVE PURCHASE THE LAND FROM THE CONCERNED TWO PARTI ES ON A CONSIDERATION OF `39 TO 40 LAKHS AND PAYMENTS WAS MADE BY DEMAND DRAFT H E HAS NOWHERE ADMITTED / 12 ITA 7150/MUM/2017 TENDERED THAT ANY CASH PAYMENTS WAS MADE. LIKEWISE, MS. ZAVER CYRUS DADINA HAS SPECIFICALLY TENDERED THAT SHE HAD NO ROLE TO PLAY EITHER TO ISSUE CHEQUE OR CASH. IN REPLY TO QUESTION NO.12, WHETHER ANY CASH PAYMENT W AS MADE, SHE SPECIFICALLY DENIED OF ANY TRANSACTION. A COMMISSION U/S 131(1)( D) OF THE ACT WAS ISSUED AND THE ASSESSEE WAS NOT ABLE TO PROVIDE ANY DETAILS/IN FORMATION/CONFIRMATION IN THIS REGARD. TOTALITY OF FACTS CLEARLY INDICATES THAT TH E LD. ASSESSING OFFICER COULD NOT COLLECT ANY EVIDENCE TO SUBSTANTIATE THAT IN FACT A NY CASH WAS TRANSACTED FOR PURCHASE OF PROPERTY. THE CASE OF THE ASSESSEE IS F URTHER FORTIFIED BY THE FACTS THAT THE DEMAND DRAFTS ISSUED FOR PURCHASE OF PROPERTY W ERE REFLECTED IN THE DOCUMENTS, NO STATEMENT WAS RECORDED BY DRI EITHER OF MS. ZAVER CYRUS DADINA OR OF ANY OTHER PERSON DURING THE COURSE OF SEARCH IN RESPECT OF THE DETAILS CONTAINED IN THE HARD DISC. EVEN, THE INFORMATION R ECEIVED FROM THE INVESTIGATION WING WAS NEVER CORROBORATED WITH ANY EVIDENCE, STAT EMENT THAT ANY CASH CHANGED HANDS FOR THE TRANSACTION. WHEN THE LD. ASSESSING O FFICER RECORDED THE STATEMENT OF SHRI ATUL SUD, DIRECTOR OF THE ASSESSEE COMPANY, THOUGH HE ADMITTED THE TRANSACTION TO BE MADE THROUGH DEMAND DRAFT BUT HE NEVER TENDERED THAT ANY CASH WAS TRANSACTED. MS. ZAVER CYRUS DADINA COMPLET ELY EXPRESSED OR IGNORANCE WITH REGARD TO DETAILS OF LAND DEALINGS AS HAS BEEN ALLEGED. THE EFFORTS OF ASSESSING OFFICER TO RECORD THE STATEMENT OF MISS D AMINI VADHWA, AND MISS REETA BHATIA ALSO COULD NOT PROVIDE ANY INFORMATION LEADI NG TO THE ADDITION. THE SEIZED MATERIAL/PRINT OUT WAS NOT IN THE HANDWRITING OF TH E ASSESSEE AND EVEN THERE IS NO MATERIAL TO SUGGEST THAT THE SEIZED MATERIAL WAS MA INTAINED EITHER BY THE ASSESSEE OR ITS OF OR EMPLOYEES. EVEN THE STATEMEN T OF RAJARATANAM WAS DISCARDED BY THE LD. COMMISSIONER OF INCOME TAX (AP PEAL) AS THE FLOOR PRICE, FIXED BY THE AUTHORITIES, FOR SUCH PROPERTY WAS FOUND MUC H LOWER THAN THE VALUE. CONSIDERING THE FACTUAL MATRIX AND THE JUDICIAL PRO NOUNCEMENTS, DISCUSSED HEREINABOVE, WE FIND NO INFIRMITY IN THE CONCLUSION OF THE LD. FIRST APPELLATE AUTHORITY. OUR VIEW IS FURTHER FORTIFIED BY THE FAC T THAT THE CONCERNED DATA WAS EVEN NOT FOUND FROM THE PREMISES OF THE ASSESSEE AN D FURTHER THE ASSESSEE HAS NOT STARTED ANY SUBSTANTIAL BUSINESS ACTIVITY AND F OR ACQUISITION OF THE LAND TO INTER CORPORATE LOAN OF ` 40 LAKH FROM STRATEGIC CAPITAL CORPORATION. THUS, THE PRESUMPTION OF THE LD. ASSESSING OFFICER FOR MAKING THE ADDITION ON PRESUMPTIVE BASIS WAS RIGHTLY DELETED BY THE LD. COMMISSIONER O F INCOME TAX (APPEAL). THUS, ADDITION CANNOT BE MADE ON THE BASIS OF PRESUMPTION , WHICH CANNOT BE SUSTAINED IN LAW. EVEN OTHERWISE, PRESUMPTION CANNOT TAKE THE SHAPE OF THE EVIDENCE HOWEVER STRONG IT MAY BE UNLESS AND UNTIL SUCH PRES UMPTION OR STATEMENT, IF ANY, IS CORROBORATED WITH MATERIAL EVIDENCE. THE RATIO L AID DOWN IN DR. ANITA SAHAI VS DIT 266 ITR 597 (ALL.), DHEERAJLAL GIRDHARILAL VS D CIT 26 ITR 734 (SC), CIT VS CALCUTTA DISCOUNT CO. LTD. 91 ITR 8(SC), CIT VS RAMAN & CO. 67 ITR 11 (SC), MODI CREATIONS PVT. LTD. VS INCOME TAX OFFICER (2011) 13 TAXMAN.CO M 114(DEL.), CIT VS SHREE RAMA MULTITECH LTD. (2013) 34 TAXMAN.COM 32 (GUJ.) AND C IT VS DEVINE LEASING AND FINANCE LTD. 158 TAXMAN 440 (DEL.) SUPPORTS OUR VIE W. THUS, WE AFFIRM THE STAND OF THE FIRST APPELLATE AUTHORITY, RESULTING INTO DI SMISSAL OF THE IMPUGNED GROUNDS, RAISED BY THE REVENUE. 8. FACTS INVOLVED IN THE PRESENT APPEAL BEING MATER IALLY IDENTICAL, RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF THE COORDINATE BENCH, WE UPHOLD THE DECISION OF THE LEARNED COMMISSIONER (APPEALS) ON THE ISSUE. GROUND RAISED IS DISMISSED. 13 ITA 7150/MUM/2017 8. IN THIS VIEW OF THE MATTER AND CONSISTENT WITH VIEW TAKEN BY THE CO- ORDINATE BENCH, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO ERROR IN THE FINDINGS OF LD.CIT(A) WHILE DELETING ADDITION TOWAR DS ON-MONEY PAYMENTS FOR PURCHASE OF LAND U/S 69B OF THE INCOME-TAX ACT, 196 1; HENCE, WE ARE INCLINED TO UPHOLD THE ORDER OF THE LD.CIT(A) AND DISMISS AP PEAL FILED BY THE REVENUE. 8. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 -04-2 019. SD/- SD/- (RAVISH SOOD) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 12 TH APRIL, 2019 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI