Poonam Brijlal Lalchandani, Ahmedabad V. The ACIT, Circle-3(2), Ahmedabad

ITSSA 140/AHD/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5517 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-05-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 27-11-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Loose papers; Documents seized
• Section: 132; 142(1); 143(1); 143(2); 69A; 153C

Judgement Text

IT(SS)A No.140/Ahd/2023 Assessment Year: 2011-12 Page 1 of 5 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “A” BENCH, AHMEDABAD BEFORE Ms. SUCHITRA KAMBLE, JUDICIAL MEMBER AND SHRI NARENDRA PRASAD SINHA, ACCOUNTANT MEMBER IT(SS)A No.140/Ahd/2023 Assessment Year: 2011-12 Poonam Brijlal Lalchandani, 90/2, GIDC, Phase-I, Vatva, Ahmedabad - 382 445 [PAN – AACPL 8891 N] Vs. Assistant Commissioner of Income Tax, Circle – 3(2), Ahmedabad. (Appellant) (Respondent) Assessee by Shri S.N. Divatia & Shri Samir Vora, ARs Revenue by Shri Ritesh Parmar, CIT-DR D a t e o f H e a ri n g 28.05.2024 D a t e o f P ro n o u n c e m e n t 30.07.2024 O R D E R PER SUCHITRA KAMBLE, JUDICIAL MEMBER: This appeal is filed by the Assessee against order dated 17.10.2023 passed by the CIT(A)-11, Ahmedabad for the Assessment Year 2011-12. 2. The assessee has raised the following grounds of appeal :- “1. The learned Commissioner of Income Tax (Appeals)-11, Ahmedabad has erred in confirming the addition of Rs.20,03,600/- being addition u/s.69A of the Income Tax Act for the unexplained money. 2. In view of the facts and circumstances it is prayed that addition of Rs.20,03,600/- be deleted.” 3. The return of income was filed by the assessee on 28.09.2011 declaring total income of Rs.5,63,690/- which was processed under Section 143(1) of the Income Tax Act, 1961. A search under Section 132 of the Act was conducted in the case of HN Safal Group on 04.09.2013. Intimation in the case of the assessee was received on 16.05.2017 and in view of the provisions of Section 153C of the Act, the case was IT(SS)A No.140/Ahd/2023 Assessment Year: 2011-12 Page 2 of 5 selected for scrutiny assessment under Section 153C of the Act after recording satisfaction under Section 153C of the Act. Accordingly, notice under Section 153C of the Act was issued on 20.09.2018 and duly served upon the assessee. The assessee requested to provide Satisfaction Note and the same was provided. The assessee had not complied in response to notice under Section 153C of the Act and then a reminder letter was sent to the assessee and, thereafter, assessee filed the return on 29.11.2018 at Rs.5,63,690/-. Notice under Section 143(2) of the Act was issued alongwith notice under Section 142(1) of the Act. The show cause notice was issued on 15.12.2018 and the assessee submitted the letter dated 17.12.2018. After taking cognisance of the assessee’s reply, the Assessing Officer observed that the seized material/documents are that of the assessee and in fact information received from Excel Sheet belonged to the assessee only. Therefore, the Assessing Officer held that the cash money payment of amount of Rs.20,03,600/- by the assessee for purchasing of two plots in Nirvana Scheme during the A.Y. 2011-12 remained unexplained. Thus, the Assessing Officer made addition of Rs.20,03,600/- under Section 69A of the Act. 4. Being aggrieved by the Assessment Order, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee. 5. The Ld. AR submitted that the assessee should not be assessed on the basis of some noting made by the third party in the name of the assessee as there is no proof with neither HN Safal Group nor or with the Assessing Officer that the assessee paid on-money. The Ld. AR submitted that there is no authenticity of an Excel Sheet which is considered as loose papers and such sheet cannot become primary evidence on which conclusion can be derived. The Excel Sheet is proprietary document of HN Safal and not marked or signed by the assessee as token of acceptance. Thus, the Excel Sheet is only a dump document and not authentic or reliable. The Ld. AR relied upon the order of the Tribunal in the case of Pravinbhai Patel, 45 taxmann.com 533. The Ld. AR further submitted that HN Safal Group have accepted before the Settlement Commission that they have received on-money was a general statement and nowhere the said Group mentioned assessee’s name. The assessee is not refuting Assessing Officer’s claim that HN Safal group could have taken on-money during their other dealings because assessee is not aware how their dealings are IT(SS)A No.140/Ahd/2023 Assessment Year: 2011-12 Page 3 of 5 conducted. But in assessee’s case, she has only made payments by cheque and has provided Assessing Officer with all the proof. The Assessing Officer has not provided the assessee with the order passed by the Settlement Commission and has not supplied the assessee any supporting documents/evidences that substantiates their claim that HN Safal group has stated assessee’s name for on-money given to HN Safal group. The Ld. AR further submitted that the assessee on several occasions requested the Assessing Officer to submit the Panchnama of HN Safal group which was relied upon while recording the satisfaction under Section 153C of the Act but the same was not supplied to the assessee till the completion of the assessment proceedings. The Assessing Officer has also not given the details of statements of HN Safal group whether the same was retracted or not. The Ld. AR further submitted that on going through the Excel Sheet, the assessee has observed gross incorrect data and in fact, there are mistakes and inaccurate details in the said Excel Sheet which cannot be treated as incorrect material or material belonging to or related to the assessee. The Ld. AR submitted that the decision quoted by the CIT(A) that of Anil Kumar Gopikishan Agrawal vs. ACIT (2019) 106 taxmann.com 137 (Gujrat HC) is not at all relevant in assessee’s case as the assessee has demonstrated the details of the transactions with HN Safal group which was already recorded in assessee’s books and shows that there were no on-money transactions between HN Safal group and the assessee. The Ld. AR further submitted that no cross-examination was allowed to the assessee to contest the matter and simpliciter making addition in respect of on- money under Section 69A of the Act is not justifiable. 6. The Ld. DR submitted that the Assessing Officer has categorically in para no.6.6 discussed with seized material and the impact to that of assessee’s transaction with HN Safal group and the satisfaction note itself is the elaborately mentioned to that extent and, therefore, the documents seized cannot be held as dump document. The Ld. DR further submitted that there was no need of cross-examination as the assessment is not solely based on the statements of the party to that of the material seized as well as the assessee’s details presented at the time of assessment order. 7. We have heard both the parties and perused all the relevant materials available on record. It is pertinent to note that the assessee has twice requested for satisfaction note which was already recorded in the Assessment Order that the assessee IT(SS)A No.140/Ahd/2023 Assessment Year: 2011-12 Page 4 of 5 requested satisfaction note on 04.10.2018 and 17.12.2018. When the assessee replied the show cause notice on 17.12.2018 categorically mentioned that the satisfaction of the Assessing Officer of searched person was given to the assessee and in fact the assessee has given the detailed reply in respect of proceedings under Section 153C of the Act thereby stating that the assessee had given all the details about the money paid to Manushi Land Developers LLP for purchase of plot of Nirvana Scheme and has not paid any cash money as described in his Excel Sheet narrated as ratio DIS. The Excel Sheet nowhere mentions the name of the assessee as well as it is not dealt with the assessee and there is no corresponding connection established related to the on-money transaction between HS Safal Group and the assessee. Therefore, the seized material that of Excel Sheet is not at all related or belonged to the assessee and are merely dump document in the present assessee’s case. The CIT(A) as well as the Assessing Officer has totally ignored the evidences filed by the assessee alongwith bank statements, income tax return and computation which was before the Assessing Officer and the assessee has explained the transactions during the assessment year which has not at all indicated that there was cash transactions involved between the assessee and HN Safal group or Manushi Land Developers LLP. Hence, Assessing Officer as well as the CIT(A) was not justified in making the addition under Section 69A of the Act. 8. In the result, appeal of the assessee is allowed. Order pronounced in the open Court on this 30 th July, 2024. Sd/- Sd/- (NARENDRA PRASAD SINHA) (SUCHITRA KAMBLE) Accountant Member Judicial Member Ahmedabad, the 30 th July, 2024 PBN/* Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File IT(SS)A No.140/Ahd/2023 Assessment Year: 2011-12 Page 5 of 5 By order UE COPY Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad