Dy. Commissioner of Income Tax, Central Cir.-2, Surat V. Shri Rameshbhai Raghavbhai Bhadani, Surat

ITSSA 25/SRT/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1889 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 2 month(s) 12 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-07-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-06-2022
• Assessment Year: 2013-2014
• Appeal Filed On: 02-05-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RASESH SHAH
• Keywords: Unexplained cash credit; Unexplained investment; Income from undisclosed sources; Search and seizure; Salary income; Loose papers; Document seized; Share purchase agreement; Principle of natural justice; Opportunity of cross examination; Peak credit; Source of fund; Corroborative evidences; Third party statement; Validity of assessment; Capital receipt; Documents seized
• Section: 131; 68; 69; 132; 143(3); 142(1); 153A; 143(2); 69A; 142(2A); 113; 43; 48; 13; 22; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A.L. SAINI, AM आयकरअपीलसं./IT(SS)A Nos.25 &31/SRT/2021 (Ǔनधा[रणवष[ / Assessment Year: (2013-14) (Virtual Court Hearing) Deputy Commissioner of Income-tax, Central Circle-2, Room No. 505, 5 th Floor, Aaykar Bhawan, Majura Gate, Surat-395001. Rameshbai Raghavhai Bhadani Plot No.14-16, Nirman Industrial Estate, A./K. Road, Surat-395008 Vs. Rameshbhai Raghavbhai Bhadani, Prop. of M/s Rangeela Fashion, 14, Nirman Industrial Estate, A.K. Road, Fulpada, Surat Deputy Commissioner of Income- tax, Central Circle-2, Room No.505, 5 th Floor, Aaykar Bhawan, Majura Gate, Surat-395001 èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ADKPB 0556 F (Assessee) (Respondent) आयकरअपीलसं./IT(SS)A Nos.45/SRT/2021 (Ǔनधा[रणवष[ / Assessment Year: (2014-15) Deputy Commissioner of Income-tax, Circle-3, Room No. 505, 5 th Floor, Aaykar Bhawan, Majura Gate, Surat-395001. Vs. Shri Rameshbhai Raghavbhai Bhadani, Prop. of M/s Rangeela Fashion, 14, Nirman Industrial Estate, A.K. Road, Fulpada, Surat èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ADKPB 0556 F (Assessee) (Respondent) आयकरअपीलसं./IT(SS)A Nos.26 & 30/SRT/2021 (Ǔनधा[रणवष[ / Assessment Year: (2013-14) Deputy Commissioner of Income-tax, Central Circle-2, Room No. 505, 5 th Floor, Aaykar Bhawan, Majura Gate, Surat-395001. Jayeshkumar Dhirajlal Mistry 40, Jasukaka Wadi, A.K. Road, Surat-395008 Vs. Jayeshkumar Dhirajlal Mistry 40, Jasukaka Wadi, A.K. Road, Fulpada, Surat-395008 Deputy Commissioner of Income- tax, Central Circle-2, Room No.505, 5 th Floor, Aaykar Bhawan, Majura Gate, Surat-395001 Page | 2 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ACXPM 7158 A (Assessee) (Respondent) Assessee by : Shri Rasesh Shah, CA Revenue by : Shri H. P. Meena, CIT(DR) स ु नवाई कȧ तारȣख/ Date of Hearing : 07/06/2022 घोषणा कȧ तारȣख/Date of Pronouncement : 15/07/2022 आदेश / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: This is bunch of five appeals, out of which, three appeals are filed by Revenue and two appeals are filed by different two assessee, pertaining to Assessment Years 2013-14 and 2014-15, are directed against the separate orders passed by the Learned Commissioner of Income Tax(Appeals)-4, Surat [in short “ld. CIT(A)”], which in turn arise out of separate assessment orders passed by the Assessing Officer under section 143(3) r.w.s 153C of the Income Tax Act, 1961 (hereinafter referred to as “the Act”). 2. Since, common and identical issues involved in all these appeals, therefore these appeals have been clubbed and heard together and a consolidated order is being passed for the sake of convenience and brevity. We shall take Revenue’s appeal in IT(SS)A No.25/SRT/2021 as “lead” case for assessment year 2013-14 to narrate the facts. 3. Although, these appeals filed by the Revenue and assessees, contain multiple ground of appeals. However, at the time of hearing we have carefully perused all the grounds raised by the Revenue as well as grounds raised by the Assessee. We find that most of the grounds raised by the Revenue as well as Assessee, are either academic in nature or contentious in nature. However, to meet the end of justice, we confine ourselves to the core of the controversy and main grievances of Revenue and the Assessee as well. With this background, we Page | 3 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry summarize and concise the grounds raised by the Revenue as well as Assessee as follows: 4.Concise and summarized grounds of Revenues` appeals are as follows: (1).Learned CIT(A) erred in deleting the addition, which were made by the assessing officer, based on the sauda chithi found and seized during the course of search proceedings under section 132 of the Act, in the group case of Laxmipati group of Surat: (a).Ground No.1 of IT(ss) No.25/SRT/21, for A.Y. 2013-14. Addition of Rs.4,09,33,869/- on account of unaccounted investments. (b).Ground No.2 of IT(ss) No.25/SRT/21, for A.Y. 2013-14. Addition of Rs.4,65,09,013/- on account of unaccounted gain on sale of land. (c ). Ground No.3 of IT(ss) No.25/SRT/21, for A.Y. 2013-14. Addition of Rs.1,00,00,000/- on account of unaccounted investment. (d ).Ground No.2 of IT(ss) No.45/SRT/21, for A.Y.2014-15, addition of Rs.1,84,28,500/- on account of unexplained investments. (e ). Ground No.3 of IT(ss) No.45/SRT/21, for A.Y.2014-15, addition of Rs.50,000/- on account of unexplained investments. (f). Ground No.4 of IT(ss) No.45/SRT/21, for A.Y.2014-15, addition of Rs.1,41,00,000/- on account of unexplained investments. (2).Learned CIT(A) erred in deleting protective addition made by assessing officer on account of unexplained cash credit based on incriminating documents seized during the search under section 132 of the Act in case of Laxmipati Group of Surat, even though the decision on substantive addition in the case of Shri Dilip C.Sojitra is still pending. (a)Ground No.4 of IT(ss) No.25/SRT/21, for A.Y. 2013-14, deleted protective addition of Rs.54,01,21,000/-. (b) Ground No.2 of IT(ss) No.26/SRT/21, for A.Y. 2013-14, deleted protective addition of Rs. 54,01,21,000/-. (c ). Ground No.5 of IT(ss) No.45/SRT/21, for A.Y. 2014-15, deleted protective addition of Rs. 25,00,28,700/-. (3).Ground No.1 of IT(ss) No.26/SRT/21, for A.Y.2013-14, grievance of the Revenue is that ld CIT(A) erred in deleting addition of Rs.1,00,00,000/-, made by AO on account of peak credit of the transaction appearing in ledger seized in search in case of Laxmipati Group of Surat. (4).Ground No.1 of IT(ss) No.45/SRT/21, for A.Y.2014-15, grievance of the Revenue is that ld CIT(A) erred in deleting addition of Rs.11,00,000/-, which was made by the assessing officer based on incriminating documents seized in search proceedings under section 132 in the case of Laxmipati group of Surat. 5. Concise and summarized grounds of Assessees` appeals are as follows: Page | 4 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry (1).Ground No.1 of IT(ss) No.31/SRT/21, for A.Y. 2013-14, and Ground No. 1 of IT(ss) No.30/SRT/21, for A.Y. 2013-14 are common and identical. In these grounds grievance of the assessee is that ld CIT(A) has grossly erred in upholding the assessing officer`s action in issuing notice u/s 153C of the Act and passing assessment order u/s 153C of the Act. (2).The Assessee`s common grievance in IT(ss) No.30 and 31/SRT/2021 is that ld CIT(A) erred in sustaining addition on account of alleged unaccounted investment in the project La-Grand: (a) Ground No. 2 of IT(ss) No. 31/SRT/21, for A.Y.2013-14, addition of Rs.48,83,483/-. (b) Ground No. 2 of IT(ss) No. 30/SRT/21, for A.Y.2013-14, addition of Rs.48,83,483/-. (3)Ground No.3 of IT(ss) No. 31/SRT/21, for A.Y. 2013-14, the assessee`s grievance is that ld CIT(A) erred in sustaining addition of Rs.3,42,48,000/-, on account of unaccounted profit by the assessee from the project Triton. 6. First, we shall adjudicate Revenue`s concise and summarized grounds of appeal. The concise and summarized ground No.1 is reproduced below for ready reference as follows: “(1) Learned CIT(A) erred in deleting the addition, which were made by the assessing officer, based on the sauda chithi found and seized during the course of search proceedings under section 132 of the Act, in the group case of Laxmipati group of Surat: (a) Ground No.1 of IT(SS) No.25/SRT/21, for A.Y. 2013-14. Addition of Rs.4,09,33,869/- on account of unaccounted investments. (b) Ground No.2 of IT(SS) No.25/SRT/21, for A.Y. 2013-14. Addition of Rs.4,65,09,013/- on account of unaccounted gain on sale of land. (c) Ground No.3 of IT(SS) No.25/SRT/21, for A.Y. 2013-14. Addition of Rs.1,00,00,000/- on account of unaccounted investment. (d). Ground No.2 of IT(SS) No.45/SRT/21, for A.Y.2014-15, addition of Rs.1,84,28,500/- on account of unexplained investments. (e) Ground No.3 of IT(SS) No.45/SRT/21, for A.Y.2014-15, addition of Rs.50,000/- on account of unexplained investments. (f). Ground No.4 of IT(SS) No.45/SRT/21, for A.Y.2014-15, addition of Rs.1,41,00,000/- on account of unexplained investments.” 7. Brief facts qua the summarized ground No.1 of Revenue`s appeal are that assessee before us is an individual. A search action u/s 132 of the Act was carried out on 18.02.2014 in the group cases of Laxmipati Group of Surat. During the course of search action some incriminating documents were found which Page | 5 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry related to the assessee. Therefore, after recording the reasons, the case was selected for scrutiny by issuing notice u/s 153C r.w.s. 153A of the Act. The notice u/s 153C r.w.s 153A of the Act was issued on 02.12.2014 and served upon the assessee. In response to the said notice, the assessee furnished the return of income which was filed on 28.03.2015, declaring total income at Rs.34,35,940/-. Subsequently, notice u/s 143(2) and 142(1) along with questionnaire was issued on 27.04.2015 and served upon the assessee. During the search action u/s 132 of the Act, on 18.02.2014 at the residence of the Shri Dilip C, Sojitra at 28, Shiv Shankar Parvati Society, Varachha Road, Surat, he was asked to give the details as to who is maintaining his accounts since certain computer printouts were found from his residence, however, no accounts were found. It was stated by Shri Dilip C. Sojitra that accounts of himself and his family members are maintained by his accountant Piyush Modi. Accordingly, statement of accountant of Shri Dilip C. Sojitra, Shri Piyushbhai G. Modi, was recorded u/s 131 of the Act at his residence. In his statement, Shri Piyushbhai G. Modi stated that he worked as an accountant for Shri Dilip C, Sojitra. During the course of recording of statement, vide Q.No.4, he was asked to explain some printed papers found from Shri Dilip C. Sojitra office/residence since the same was not available in his computer data. In reply, he stated that the soft copy of the printed papers and the pen drive thereof was available at his residence i.e. 14, Alkapuri Society, Sumul Dairy Road, Surat. Subsequently, search action u/s 132 of the Act was conducted on the residential premises of Shri Piyush Modi i.e. 14, Alkapuri Society, Sumul Dairy Road, Surat on 18.02.2014 in pursuance of the statement of his accountant. During the search proceedings, many incriminating documents were found and seized as Annexure-Al to A71 which included 21 pen drives and 3 hard discs. Statement u/s 132(4) of accountant Shri Piyush G. Modi was recorded wherein he admitted that the seized documents belong to Shri Dilip Sojitra. He further stated that these documents and pen drive / hard disks pertain to his business activity of finance and real estate. In the seized material, there were also some crossed cheques which were also explained by the accountant as security cheques taken by Shri Dilip C. Sojitra in the business of finance. There were various documents Page | 6 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry even reflecting his real estate transactions. After recording the statement of his accountant, the said material was seized. On perusal of seized material it was seen that some documents was signed by Shri Ramesh R. Bhadani. 8. On 18.12.2015 Shri Piyush G. Modi and on 22.12.2015 Dilip C. Sojitrra have submitted sworn affidavit, in which Dilip C. Sojitra and Shri Piyush G. Modi have stated that seized material found from residence of Shri Piyush G. Modi belonged to a partnership firm / joint venture in which the assessee along with Shri Dilip C. Sojitra, Shri Jayesh D, Mistry, Shri Rajubhai Mori, Shri Ashwin R. Bhadani and Shri Ravindra Patel were partners. On the basis of affidavit of Shri Piyush G. Modi and Shri Dilip C. Sojitra and their statements recorded on 18.12.2015 and statement of Shri Dilip C. Sojitra on 06.01.2016, which was continued on 27.01.2016, 28.01.2016, 29.01.2016 and 01.02.2016 summon u/s 131 of the Act was issued to the assessee to attend personally on 08.02.2016 and file his explanation on being partner of joint venture as claimed by Shri Dilip C. Sojitra and Shri Piyush G. Modi. The assessee filed a written submission on 08.02.2016 asking for provide the copy of affidavits and statement of Shri Dilip C. Sojitra and Shri Piyush G. Modi and copy of books of account seized from residence of Shri Piyush G. Modi. Accordingly the same has been provided to him. The assessee has submitted his reply in this regard on 17.02.2016 in which he has denied that he was partner in any such partnership firm / Joint venture with Dilip C. Sojitra. Subsequently, the reply of the assessee has been forwarded to Shri Dilip C. Sojitra for his comment on 17.02.2016. Shri Dilip C. Sojitra has filed submission on 26.02,2016 and the same has been forwarded to the assessee for his comment. Meanwhile, considering the nature and complexity, volume, doubt of correctness, multiplicity of transactions involved in the seized books of account, were required to be referred for special audit. Vide letter dated 24.02.2016, the assessee was asked to submit his objections with regard to the seized material being referred to special audit u/s 142(2A) of the Act after giving reasonable opportunity. In response, vide letter dated 04.03.2016, the assessee has not objected to the books Page | 7 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry of account being referred for special audit u/s 142(2A). Accordingly, the assessee was directed to get his accounts audited u/s 142(2A) of the Act on 15.03.2016 for F.Y. 2007-08 to F.Y. 2013-14 relevant to A.Ys. 2008-09 to 2014-15 alongwith Shri Dllip C. Sojitra, Vijaybhai Bhadani, Jayesh D. Mistry & Piyush Modi by M/s Chandabhoy and Jassoobhoy, 605, 607 Silver Oaks, Mr, Mahalaxmi Cross Road, Paldi, Ahmedabad and to furnish a report on such audit in the prescribed Performa duly signed and verified by the auditor within sixty days. On 06.10.2016 Shri Dillp C. Sojitra has objected to the observation of special auditor given in the special audit report u/s 142(2A) of the Act for the relevant period, Shri Dilip C. Sojitra again furnished further objections on the observations of the special auditor vide letter dated 10.10.2016. Copy of the same has been provided to the assessee for his comment on 10.10.2016 Shri Dilip C. Sojitra asked for cross examination of the assessee but the assessee has requested for adjournment. On 14.10.2016, the assessee has furnished his submission along with counter comments on the objections of the assessee on 17.10.2016. The counter comments were provided to Shri Dilip C. Sojitra vide order sheet entry on 17.10.2016. On 17.10.2016, 18.10.2016 & 21.10.2016, the cross-examination proceedings of the assessee by Shri Dilip C. Sojitra was carried out and copy of the cross-examination proceedings were provided to them. The assessee has also requested for cross examination of Shri Dilip C. Sojitra. Subsequently, on 24.10.2016 Shri Dilip C. Sojitra was cross examined by the assessee and concluded on the same date. Finally, a show cause notice was issued to the assessee on 24.10.2016 requiring to file his explanation with documentary evidence on various issues related to the seized material and partnership with Shri Dilip C. Sojitra in partnership firm/ Joint venture. Finally, a show cause notice was issued to the assessee on 24.10,2016 requiring him to file his explanations on various land transactions. 9. The assessee submitted his reply before the assessing officer. The submission of the assessee has been examined by AO. The AO observed that out of the total unexplained investment of Rs.20,58,43,870/- as proposed in the said show cause notice the following amounts stands reflected in the regular books. Page | 8 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry (i) Out of the disclosure of Rs, 14,00,01,814/- as made in the hands of his two companies, R.J. Square Link Pvt. Ltd. and Creative Trendz Pvt. Ltd, an amount of Rs.13,97,89,490/-stands Invested by the said companies in the land at 438-439, Dumas in cash on which the tax has been duly paid. (ii).An amount of Rs.1,80,10,000/- has been paid by him in cheque and hence the same is reflected in his books. (iii) There is an unidentified discrepancy of Rs.71,10,510/- in respect of the payment receipts found for the said land which has been reported by the special auditor as unaccounted investment in respect of the said land. Thus, AO noted that considering the above amounts totaling to Rs.16,49,10,000/-, an unexplained investment of Rs.4,09,33,869/- (20,58,43,870 - 16,49,10,000) remains in the hands of the assessee. In respect of this unexplained investment of Rs.4,09,33,869/-, the assessee has contended that the said amount has not been paid since the deal for the land at 439 Dumas was cancelled and therefore, the payment receipts thereof have also not been found. However, AO did not agree with the said reply of the assessee, and noted that since the sauda chithi for both the lands i.e. 438 & 439, Dumas clearly specify the total price of the said lands at Rs.20,58,43,870/- and therefore the assessee must have paid the balance amount of Rs.4,09,33,869/-. The issue of the title of the land being defective is merely an afterthought of the assessee since the litigation in the said land is from last more than 15 years and therefore the said argument of the assessee was not acceptable to AO. Accordingly, the amount of Rs.4,09,33,869/- was treated as unexplained investment in land 438-439, Dumas and added to the total income of the assessee. Further the unidentified discrepancy of Rs.71,10,510/- as reported by the Special Auditor was also treated as unexplained investment in land and added to the total Income of the assessee. This way, the assessing officer made total addition to the tune of Rs.4,80,44,379/- ( Rs.4,09,33,869 + Rs.71,10,510). 10. Aggrieved by the order of Assessing Officer, the assessee carried the matter in appeal before the Ld. CIT(A) who has deleted the addition of Rs.4,09,33,869/-, however, confirmed the addition to the tune of Rs.71,10,510/-, which was made Page | 9 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry by assessing officer on account of unidentified discrepancy. Aggrieved by the order of the ld CIT(A), the Revenue is in appeal before us. 11. Learned DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer, and argued that assessing officer made addition based on sauda chithi, which is incriminating material found in the possession of other party, therefore assessment order framed under section 143(3) r.w.s. 153C of the Act may be upheld. 12. Shri Rasesh Shah, Learned Counsel for the assessee argued that first of all, the addition for unexplained investment cannot be made in the year under consideration i.e. A.Y. 2013-14 since the said land stands purchased in A.Y. 2011-12 and even as per the seized sauda chitthi, the entire payment was to be made within 12 months from the date of the sauda chitthi i.e. upto 07-10-2011 being A.Y. 2012-13. The assessee contended that even as per the seized documents, the total payment made in the year under consideration was only Rs.13 lacs and thus, the addition of Rs. 4,80,44,379/- in the year under consideration is absolutely incorrect and bad in law. The assessee also pointed out the findings of the special auditor as contain in the special audit report dated 27- 08-2016 wherein the special auditor has clearly reported that total investment for acquisition of land at 438 & 439, Dumas as per the seized material worked out to Rs. 1649.10 lacs and after reducing the cheque amount of Rs.180.10 lacs and the disclosure of Rs. 1400.00 lacs, there was an unidentified shortfall of Rs.71,10,510/- which is required to be considered as the unexplained investment of the assessee in respect of the Assessing officer's findings that the issue of defective title of the land as raised by the assessee is an afterthought, the assessee relied upon his own statement recorded u/s 131 during post search proceedings on 13-05-2015 wherein in reply to question no. 17, he had clearly stated that due to litigation / title problem, he had decided not to purchase the land at 439, Dumas and had cancelled the deal and whatever advance payment was made, was returned back to his companies, and thus, the assessee emphasized the stand. The assessee also stated that there is no statement of the original land owner Shri Vinod Lavri that the assessee had purchased the said land from him. Accordingly, Page | 10 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry the ld Counsel argued that addition of Rs.4,09,33,869/- (Rs.20,58,43,869 - Rs.16,49,10,000) as made by the learned AO is not based on any seized material but is based on assumptions and presumptions and therefore, ld CIT(A) has rightly deleted the addition of Rs.4,09,33,869/-. The ld Counsel also stated that addition on account of unidentified shortfall of Rs.71,10,510/- sustained by ld CIT(A) should also be deleted, as the said addition is not based on any incriminating material found during search. Apart from this, ld Counsel submitted combined written submissions in respect of IT(SS)A No.30 and 26/SRT/2021 and IT(SS)A No.25 and 45/SRT/2021 which is reproduced below: “Written submission in respect of ITA No. 30 and 26 -by assessee are as follows: Arguments :- 1. The assessee relies on the submission made at Para No. 7 to 11 of the submission dated 03.06.2022, made in the case of Rameshbhai R. Bhadani for A.Y. 2013-14. Findings of the CIT(Appeals) :- 2. The learned CIT(Appeals) held that the business premises of M/s. Creative TrendzPvt. Ltd. at Shree Sai Krupa Society, A.K. Road, Surat was searched and various share transfer forms had been found along with share certificates of the said Company which had been sold by various persons to the assessee. He further held that the assessing officer has also recorded a satisfaction that the search premises of M/s. Creative TrendzPvt. Ltd. at 14, Alkapuri Society, Sumul Dairy Road, Surat was occupied by Shri Piyush G. Modi and certain loose paper files had been seized which were belonging to the assessee and were bearing on the total income of the assessee. Rebuttal of CIT(Appeals) findings :- 3. The satisfaction note was recorded on 02.12.2014. The Assessing Officer, in the satisfaction note, described the papers at Page No 15-16 and 17-18. The papers were just described and no analysis was made for the purpose of establishing that these papers have a bearing on the total income of the assessee. This is proved by the fact that, in the statement recorded u/s. 131 on 13.05.2014, the assessee explained the impugned papers before the DDIT (Investigation) Wing in reply to question no 26. The statement of the assessee was not considered while recording the satisfaction note. Further, these papers cannot be said to be belonging to the assessee as the in the saudachitthi, the name of the sellers were also mentioned. So, it cannot be said that the saudachitthibelonged to the assessee. In the satisfaction note, the assessing officer did not prove that the papers belonged to the assessee. The addition made on the basis of these papers were only to the tune of Rs. 48,83,483/- as against the figure of Rs. 21,00,00,000/- as mentioned in the satisfaction note by the assessing officer. This addition of Rs. 48,83,483/- is also challenged before the Honourable Tribunal. Page | 11 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry So far as the papers mentioned in the satisfaction note at Annexure A-15 are concerned, it is submitted that the papers were just described in the satisfaction note, without establishing that they have a bearing on the total income of the assessee. Further, these papers do not belong to the assessee. It is also to be noted that no addition was made on the basis of these papers. So far as the share certificates and share transfer forms relating to M/s. Creative TrendzsPvt. Ltd. are concerned, it is submitted that no addition was made in the assessment order on the basis of these certificates and share transfer forms and in the satisfaction note, it was also not established that these papers have a bearing on the total income of the assessee. Further, all the shares were transferred to Jayesh Mistry in the year 2008 and 2009 and so the share certificates and share transfer forms were not pertaining to the year under appeal. Addition of Rs. 48,83,483/- (Ground No 2) Facts:- 4. An addition of Rs. 48,83,483/- on account of unexplained investment by the assessee in the project called “La-Grand “ was made in the case of the assessee. Similar addition was also made in the case of Rameshbhai R. Bhadani. We have already filed a submission dated 03.06.2022, narrating the facts in detail in the case of the said Rameshbhai R. Bhadani and to avoid duplication of discussion, the same is not repeated again here and the submission narrating the facts at Para No 12 to 22 of the said submission may be please be referred to. Arguments :- 5. The assessee relies on the arguments made at Para No. 23 to 28 of the submission dated 03.06.2022 made in the case of Rameshbhai R. Bhadani for A.Y. 2013-14. Findings of the CIT(Appeals) :- 6. The learned CIT(Appeals) dismissed this ground as per his findings at Para 9.3 (Page No 60) of the appellate order. The findings of the CIT(Appeals) are narrated in Para 29 (Page No 14) of the submission given in case of RameshbhaiBhadani for A.Y. 2013-14 and the same may please be referred to. Rebuttal of findings of CIT(Appeals) :- 7. Regarding the finding of the CIT(Appeals), it is submitted that there was a clear bifurcation between the capital and loan in the seized paper at Page No 16 and 18 of Annexure “A-6”. It was not mentioned in this paper that the loan amount will be equally contributed by the partners. In the statement recorded u/s. 131 on 13.05.2014 by the DDIT, Investigation Wing, it was clearly mentioned in reply to question 26 that the amount of Rs. 15,05,00,000/- was invested by the assessee and Shri RameshbhaiBhadani. Regarding the source, it was explained that Rs. 14,88,76,700/- was received in respect of sales/sauda cancellation for land at Block No 408 and 439 at Dumas. It was never admitted by the assessee and RameshbhaiBhadani that the investment was made through loans. Accordingly, the addition made bythe AO and confirmed by the CIT(Appeals) is not valid. Even otherwise, as the bifurcation, by way of loan, was given in the seized paper, it should be regarded to be true as per the presumption raised u/s. 132(4A) and 292C. As the loan has not been recorded in the books of accounts, the addition cannot be made u/s. 68. The loan is capital receipt and it cannot be equated with Page | 12 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry the income of the assessee. Accordingly, as assessee filed explanation for the source of his share in the contribution, no addition can be made except the addition of Rs. 8,00,150/-, which remains unexplained as capital contribution. Revenue’s Appeal for A.Y. 2013-14 - ITA No : IT(SS) 26/SRT/2021 8. The cross appeals for A.Y. 2013-14 are directed against the order of the CIT(Appeals) passed on 22.02.2021. In the appeal filed by the Revenue, the following grounds of appeals are raised. Grounds raised by the Revenue (i) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs. 1,00,00,000/- made u/s. 69A of the Act on account of peak credit of transactions appearing in the impugned ledger seized during the course of search proceedings u/s. 132 in the group case of Laxmipati Group of Surat. (ii) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in treating the incriminating documents seized during the search action u/s. 132 of the Act in the group case of Laxmipati Group of Surat as not connected to the assessee and deleting the protective addition made of Rs. 54,01,21,000/- on account of unexplained cash credit, even though the decision on the substantive addition in the case of Shri Dilip C. Sojitra is pending. Deletion of Rs. 1,00,00,000/- (Ground No 1) Facts :- 9. The facts of the case in respect of the addition of Rs. 1,00,00,000/- is that during the course of assessment proceedings, the AO asked the assessee to explain Ledger No. 26 in the name of “Jayeshbhai”, as found in the pen drive seized from the residence of Piyush G. Modi and asked him to show cause as to why the transactions, therein, should not be added to his total income. 10. In reply, the assessee vide his letter dated 27.1.2016, explained that the said ledger account was a part of the accounts found and seized from the premises of a third person Shri Piyush G. Modi and that during the course of search itself, Shri Piyush G. Modi in his statement u/s. 132(4) had stated that the account belonged to Dilip Sojitra and the said Dilip Sojitra also confirmed that Shri Piyush G. Modi was his accountant. The assessee further argued that the said accounts were not found from his premises and have been owned by Shri Dilip C. Sojitra as belonging to him, and no cognizance could be taken thereof in his case. 11. The assessee further contended that the ledger was not in his name i.e. “Jayesh Mistry” but in the name of some “Jayeshbhai” and the name “Jayeshbhai” is common and hence could not be attributed to him and that there was also no evidence in the form of voucher/ receipt etc showing that the transactions reflected in the said ledger were pertaining to him and there were many JVs in the ledger account which was also without any narration or supporting evidence. 12. The assessee, thus contented that the said ledger account did not belong to him and he had never entered into any such transactions with the said Dilip Sojitra Page | 13 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry and he even placed reliance on the report of the Special Auditor wherein also, the said transactions had not been recorded as being carried out by the assessee. 13. However, the AO did not accept the aforesaid explanation of the assessee and on Page No 15 of the assessment order, he held that the assessee’s contention was not acceptable since the ledger had been opened in the name of Jayeshbhai. He further held that the accounting code of the said ledger in the seized books is “JAYEMI” which was a short form of “Jayesh” (JAY) and “Mistry” (MI). Thus, the argument of the assessee that the ledger account did not belong to him was incorrect and could not be accepted. The AO further held that from the ledger account, it could not be seen that the assessee has given funds to Shri Dilip C. Sojitra and part of which have been received back and the peak balance in the said ledger account was the Credit Balance of Rs. 1,00,00,000/- on 09.07.2012 which the assessee had failed to explain and hence the AO made the addition of Rs. 1,00,00,000/- in the hands of the assessee as unexplained money u/s. 69A of the Act. Arguments :- 14. It is submitted that the notice u/s. 153C stands issued in the case of the assessee on the basis of certain loose papers found from the premises of an unrelated 3rd party. The ledger account found from the 3rd party does neither contains the full name of the assessee nor has been signed by the assessee. 15. There is even no corroborative evidence whatsoever against the assessee in respect of any transaction as mentioned in the ledger account, having ever materialised. 16. The learned AO has also grossly erred in taking the base of the short form of the name used in the ledger account since it does not conclusively prove that it belonged to the assessee. Moreover, none of the entries reflected in the ledger account material were found even partly reflected in the regular books of the assessee or the 3rd party so as to draw any reference. 17. It is submitted that the presumption u/s. 292C was also not available in the case of the assessee as the material on which the learned AO had placed reliance was also not found from the possession of the assessee but had been found from a 3rd party who had not named the assessee. The 3rd party viz. Shri Piyush Modi from whose possession, the said ledger account had been found had neither named the assessee in his statement recorded u/s. 132(4) during the course of search, nor had he named the assessee even during the post search proceedings. 18. It is further submitted that even Shri DilipSojitra to whom the said seized material belongs has neither named the assessee in his statement recorded u/s. 132(4) during the course of search nor during the course of post search proceedings but has named the assessee during the course of assessment proceedings after a period of around more than a year through an affidavit which is not supported by any documentary or corroborative evidence. 19. After conducting Special Audit u/s. 142(2A), the written affidavits filed by Shri Dilip Sojitra and Shri Piyush Modi had been found to be made without any documentary or corroborative evidence and hence, the same could not be held Page | 14 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry to be good in law. Thus, your honour would appreciate that the learned AO was not at all justified in relating the ledger account to the assessee. 20. The above facts clearly establish that the seized ledger account was a dumb document as far as the assessee was concerned and the learned AO had grossly erred in relying upon the same for making impugned addition in the hands of the assessee, which was not justified at all. 21. Reliance is placed on the following judicial pronouncements.  In the case of CBI Vs. V.C. Shukla AIR 1998 SC 1406, the Hon’ble Supreme Court was faced with the issue as to whether the seized documents / books fulfil the other requirements of section 34 of the Indian Evidence Act, 1872 so as to be an admissible evidence and as to whether the entries therein are admissions within the meaning of its section 17, so as to be admissible as relevant evidence u/s. 21 of the said Act. In this regard, the Hon’ble Apex Court vide its judgement dated 02-03-1998 held that the documents seized were not books of accounts and were not maintained in the regular course of business and hence, they will not be relevant u/s. 34 of the Indian Evidence Act, 1872 and even if, they amount to be relevant in plain language, then they can at the most be termed as ‘corroborative evidence’. The Court also ruled that the entries in the seized document are not admissions within the meaning of section 17 and therefore, they cannot be admitted as relevant evidence u/s. 21 of the Indian Evidence Act.  The Hon’ble Supreme Court of Indian in the case of Common Cause (A Registered Society) & Others Vs. Union of India & Others (2017) 98 CCH 0028 (SC) has held that there has to be some relevant and admissible evidence and some cogent reason, which is reliable and that too, supported by some other circumstances pointing out that the particular third person against whom the allegations have been levelled was in fact involved in the matter or he has done some act during that period, which may have co- relations with the random entries.  The Hon’ble Supreme Court while dismissing the appeal of the Revenue in the case of CIT Vs. P.V. Kaluansundaram [294 ITR 49 held that the actual sale price of the property, the implication of the contradictory statements made by the person on whom raid was conducted or whether reliance could be placed on the loose sheets recovered in the course of the raid are all questions of fact.  The Hon’ble High Court of Bombay in the case of CIT Vs. Lavanya Land Pvt. Ltd. & Ord. (2017) 397 ITR 0246 (Bom) has held that mere mention of names of villages where companies may have purchased lands would not give any basis to assume/presume/surmise that name of companies were mentioned in impugned documents and thus, the very foundation of Sec. 153C had been shaken by not fulfilling condition precedent for issue of notice. Page | 15 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry  The Hon’ble High Court of Gujarat in the case of CIT Vs. KantibhaiRevidas Patel [Tax Appeal No 910 of 2013], after considering the observation made by the ITAT in the appellant’s brother’s case, dismissed the appeal of the Department in the case of the assessee. The relevant observations made by the Hon’ble High Court in Para 5 and 6 of the order are as under. “5. We have heard rival contentions and gone through the material on record. Ld. A.O. has used third party statement of Vikas A. Shah in framing the assessment. The statement of Shri Vikas A. Shah recorded under Section 131(1A) not under Section 132 of the IT Act on 14/03/2005 and 19/04/2005. The ld. A.O. had used this statement without allowing cross examination of Vikas A. Shah which is against the principle of natural justice. This land had registered document and the value has been accepted as to correct by registering authority to the charge of stamp duty. There was no material or evidence that any on money was paid by the appellant on the transaction. Ld. A.O. had not referred this land to the DVO for determining the market value on date of registration. The statement given by Vikas A. Shah was self service statement without any supporting evidence. There was no search carried out on the appellant. The seized papers were found in the possession of Shri Vikas A. Shah. The third person evidence cannot be base for addition on the basis of any entries therein. .............. 6. In view of the above, when in the case of the copurchaser, similar addition came to be deleted by the CIT(A), which came to be confirmed up to this Court, it cannot be said that the tribunal has committed any error in dismissing the appeal preferred by the revenue and consequently confirming the order passed by the CIT(A) deleting the addition of Rs.92,00,000/- made on account of unaccounted investment. No question of law, much less substantial question of law arises in the present Tax Appeal. Hence, the present Tax Appeal deserves to be dismissed and is accordingly dismissed”.  The Hon’ble High Court of Delhi in the case of CIT Vs. Anil Khandelwal (2015) 93 CCH 0042 (DelHC) has held that presumption u/s 134(4A)/292C is available only in the case of the person from whose possession and control the documents are found and it is not available in respect of a third party.  The Hon’ble High Court of Bombay in the case of Addl. CIT vs. Miss LataMangeshkar (1974) 97 ITR 0696 has held that that in the absence of any corroborative evidence, addition cannot be made in the hands of the assessee by merely relying upon documents seized from third party.  The Hon’ble Delhi ITAT in the case of Mahashian Di Hatti Ltd. Vs. DCIT (2013) 21 ITR 0731 has held that document found from the third party cannot be applied against the assessee and the burden lays upon the Department to show that the same reflects transactions of the assessee.  The Hon’ble Calcutta Bench of ITAT in the case of ACIT vs. Shri RadheshyamPoddar (1992) 41 ITD 0449 (Cal) has held that no cause of action could arise in any court of law on the basis of an unsigned document Page | 16 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry and the presumption u/s. 132(4A) is rebuttable and the assessee having provided ample evidence to rebut the presumption, the addition made was rightly deleted.  The Hon’ble Pune Bench of ITAT in the case of Pradeep Amrutlal Runwal vs. TTO (2014) 166 TTJ 0498 (Pune) has held as follows. “5.3 ................ Hence, simply because the name of the assessee is noted on the seized papers does not mean that the addition could be made in the hands of the assessee. Since no evidence was found relating to the existence of any transaction between the assessee and Dhariwal Group and in the absence of any corroborative evidence to suggest that the assessee had actually received the said amount, no addition could be made merely on the basis of noting in loose papers found during the search proceedings in the case of Dhariwal Group against the name of the assessee.” 22. In view of the aforesaid facts of the case and the direct judicial pronouncements applicable thereto, it is most humbly pleaded that the impugned addition of Rs. 1,00,00,000/- for peak credit in the seized ledger account may kindly be deleted as being illegal and bad in law. 23. It is further submitted that in addition to the above judicial pronouncements, we once again would also like to bring to the kind notice of your honour that on exactly identical facts, the same learned AO had made an addition in the case of one of the group assessee viz. Shri Vijay Bhadani, in respect of peak balance appearing in the ledger account, alleged to be belonging / pertaining to him, only on a protective basis, accepting the fact that there is no evidence to make the addition on substantive basis however, in the case of the appellant, the same learned AO has taken an altogether different stand. 24. Further, we would like to bring to the kind notice of your honour that even the aforesaid protective addition as made in the case of Shri Vijay Bhadani stands deleted by the Hon’ble CIT(A)-4, Surat, vide appellate order dated 07-02-2019 in Appeal No. CIT(A), Surat-4/10413/2016-17, by appreciating the fact that the protective addition cannot be sustained since, the Special Auditor has categorically reported that there is no credible or reliable evidence to correlate the codes used in the seized material with its identifiable owner and even Shri Dilip C. Sojitra has failed to produce any signed receipts, vouchers, slips, notings, etc., or other documentary evidence to prove that the entries in the said ledger account belonged to Vijay Bhadani. 25. It may please be noted that even in the present case, it is a fact on record that the Special Auditor in his audit report has very categorically reported that there is no credible or reliable evidence to correlate the codes used in the seized material with its identifiable owner and Shri Dilip C. Sojitra has failed to produce any signed receipts, vouchers, slips, notings, etc., or other documentary evidence to prove that the entries in the said ledger account and hence, the facts of both these cases are exactly identical. 26. It is most humbly submitted that the impugned addition of Rs.1,00,00,000/-, as made by the learned AO, in respect of peak balance appearing in the ledger Page | 17 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry account prepared and submitted by Shri Dilip C. Sojitra subsequent to search and alleged to be belonging / pertaining to the assessee, erroneous, illegal and bad-in-law. The learned CIT(A) had rightly deleted the addition. Findings of the CIT(Appeals) : 27. The assessee narrated the arguments on the above lines which has been reproduced by the CIT(Appeals) at Para 7.4 (Page No 26 to 30) . The learned CIT(Appeals), deleted the addition as per his findings given at Para 10.4 (Page No 63 to 66). The learned CIT(Appeals) has held as under..... “It is seen that the ledger account is in the name of Shri ‘Jayeshbhai’ with the code ‘JAYEMI’ which has been found from the premises of a third party viz. Shri Piyush G. Modi. There is no signature of the appellant on this ledger account. Further, there are no corroborative or other documentary evidences from which it can be inferred that the ledger account belongs to the appellant or that the appellant has entered into any such transactions. Even the special auditor has not pointed out any evidence to infer that the said ledger belongs to the appellant or that the transactions therein have been carried out by him. There is even no statement of either Shri Piyush G. Modi or Shri Dilip C. Sojitra explaining the transactions in the ledger account. Further, none of the entries in the regular books of accounts of the appellant match with the entries in the seized ledger and there is also no cheque entry therein tallying with the regular books of the appellant and there is also no such reference in the assessment order by the AO”. Deletion of protective addition of Rs. 54,01,21,000/- on account of cash credits : (Ground No 2) Facts :- 28. The facts of the case in this regard were discussed elaborately at Para No 3 to 13 by the Tribunal in the case of Rameshbhai R. Bhadani in the appeal filed by the Revenue in ITA No 02 to 05/SRT/2019 pursuant to A.Y. 2009-10 to A.Y. 2012-13 in their order passed on 22.09.2021. The facts are already discussed at Para No 140, Page No 47 to 53 of the submission given in the case of Ramesh R. Bhadani for A.Y. 2013-14 which may please be referred to. Arguments :- 29. The assessee relies on the submission made at Para No. 141 to 151, Page No. 54 to 58 of the submission dated 03.06.2022 made in the case of Rameshbhai R. Bhadani for A.Y. 2013-14. 30. In view of the above submission, your Honours are requested to allow the appeal of the assessee and dismiss the appeal filed by the Revenue and oblige.” Written submission in respect of ITA No.25 and 45/SRT/2021,- by assessee are as follows: 1. “The assessee, Rameshbhai R. Bhadani had filed a detailed submission dated 03.06.2022 in the Revenue’s Appeal in ITA No. IT(SS) No. 25/SRT/2021 for A.Y. 2013-14 in regard to the deletion of the protective addition Rs. 54,01,21,000/-, Page | 18 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry vide Para No 140 to 151, Page No 47 to 58. Similar protective addition was made for A.Y. 2014-15 of Rs. 25,00,28,700/- which was also deleted by the CIT(Appeals), which is subject matter of Revenue’s appeal in ITA No IT(SS) No. 45/SRT/22021 for A.Y. 2014-15. Similar addition was also made in A.Y. 2009-10 to A.Y. 2012-13 which was deleted by the CIT(Appeals) and the order of the CIT(Appeals) was confirmed by the Honourable ITAT in order ITA No 02 to 05/SRT/2019 passed on 22.09.2021. 2. In case of Jayeshbhai D. Mistry, the same addition of Rs. 54,01,21,000/- was made for A.Y. 2013-14 that was also deleted by the CIT(Appeals), which is subject matter of Revenue’s appeal in ITA No. IT(SS) 26/SRT/2021. Similar addition also was made in A.Y. 2009-10 to A.Y. 2012-13 and A.Y. 2014-15 which was deleted by the CIT(Appeals) and the order of the CIT(Appeals) was confirmed by the Honourable ITAT in order ITA No IT(SS) 21 To 25/SRT/2018 passed on 13.10.2021. 3. The substantive additions was made in the case of Dilipbhai Sojitra and his appeals were pending before CIT(Appeals), when the order of the Honourable Tribunal was passed earlier on 22.09.2021 in case of Rameshbhai R. Bhadani and on 13.10.2021 in case of Jayeshbhai D. Mistry. However, the successor CIT(Appeals), in the case of Dilipbhai Sojitra restricted the addition to the extent of his share in various years and he had given the direction to make additions in the case of Rameshbhai R. Bhadani and Jayesh D. Mistry although full protective addition was made earlier in case of Rameshbhai R. Bhadani and Jayeshbhai D. Mistry. The orders of the CIT(Appeals) in case of Dilipbhai Sojitra were not served to the assessees. These orders were also not placed before the Honourable Tribunal also. Accordingly, no comment is necessary on these orders passed by the CIT(Appeals) as the assessee were not aware of the actual findings given by the CIT(Appeals) and the Revenue has also not placed the orders in case of Dilipbhai Sojitra. Without prejudice, the following submission is made. 4. At the outset, it is submitted that as per clause (b) of Explanation 2 to Section 153, the opportunity is required to be given to the affected person which has not been given by the CIT(Appeals). The said explanation is reproduced as under. “(b) any income is excluded from the total income of one person and held to be the income of another person, then, an assessment of such income on such other person shall, for the purposes of section 150 and this section, be deemed to be one made in consequence of or to give effect to any finding or direction contained in the said order, if such other person was given an opportunity of being heard before the said order was passed”. 5. Accordingly, the direction given by the CIT(Appeals) in the case of Dilipbhai Sojitra is not valid as per the principal of natural justice and mandatory provision of clause (b) of Explanation 2 to Section 153. 6. The reliance is placed on the following case laws of courts.  CIT vs. Uttarakhand Van Vikas Nigam [66 taxmann.com 87 (Utt. HC)  Rural Electrification Corporation Ltd. Vs. CIT [34 taxmann.com 197 (Del. HC) Page | 19 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry  A.B. Parikh vs. ITO [203 ITR 186 (Guj HC)  Vijay Kumar Sarda vs. DCIT [40 taxmann.com 113 (Mum. Trib) 7. Further it is submitted that as stated above, the Revenue has not placed the order in the course of hearing of the present appeal in the case of Rameshbhai R. Bhadani and Jayeshbhai D. Mistry and so, they have not accepted the orders of the CIT(Appeals) more so, when the Revenue has not served the order of Dilipbhai Sojitra to the assessees. 8. In view of the above, your Honours are requested to confirm the deletion of the protective addition CIT(Appeals).” 13. We have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials brought on record. We note that issue before us is in respect of addition of Rs.4,80,44,379/-, which was made by AO for unaccounted investment in purchase of land at Block no. 438 & 439, Dumas. We observe that main stand of ld Counsel is that said addition is without any evidence and also by ignoring the fact that out of the two blocks of land only block no. 438 stands purchased by the assessee and that too in the assessment year (A.Y.) 2011-12, whereas assessee`s assessment year under consideration is A.Y.2013-14. Though facts have been discussed in detail in the foregoing paragraphs, however in the succinct manner, the relevant facts and background are reiterated in order to appreciate the controversy and the issue for adjudication. During the course of search at the residence of Shri Piyush G. Modi, a sauda chitthi dated 08-10-2010 was found and seized as Pg. 1 of Annexure A-3 which was in respect of purchase of land at 438 & 439, Dumas, Surat totaling to Rs.20,58,43,869/-. The said sauda chitthi was signed by the assessee. Over and above the sauda chitthi, payment vouchers signed by the assessee were found and seized as Pg. 22 to 61 and Pg. 97 to 99 of Annexure A-l which showed a total payment of Rs.14,39,00,000/- as made by the assessee in cash and Rs.1,80,10,000/- in cheque, totaling to Rs.16,19,10,000/-. Further, even a payment diary for the said land was found and seized at Pg. 84 to 94 of Annexure A-1 which contained total cash payment of Rs.14,69,00,000/- in cash and Rs. 1,80,10,000/-in cheque. In view of the above, the Assessing Officer asked the Page | 20 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry assessee to show cause as to why the amount of Rs.20,58,43,869/- as per the seized sauda chitthi for purchase of land at Block no. 438 & 439, Dumas the assessee had purchased only Block no. 438 in A.Y 2011-12 and he had not purchased the land at Block no. 439, Dumas. In this regard, the assessee explained in detail before AO that initially he had entered into a deal for purchase of both the lands at 438 & 439, Dumas with Shri Siddique Salimkh Pathan who was introduced to him by Shri Jivraj Kakadia, Shri Jivraj Kakadia had inform the assessee that Shri Siddique Salimkhan Pathan had purchased the said lands from the land owner Shri Vinod Lavri for which the registered purchase deed was yet to be executed however, on the instruction of Shri Siddique Salimkhan Pathan, the land owner Shri Vind Lavri would execute the registered document of both these lands in the name of any person suggested by Shri Siddique Salimkhan Pathan. Accordingly, from October 2010, the assessee started making payment to Shri Siddique Salimkhan Pathan and got the document for the land at 438 registered in his name in February 2011. Thereafter, in the month of July 2011, when the payment for the land at 439 was in progress, due to paucity of funds, the assessee entered into a sauda chitthi for sale of both the lands on 28-07- 2011. After executing the sauda chitthi for sale of land on 28- 07-2011, the proposed buyer for both these lands came up with very serious issues as regards the title of the land and from him, the assessee learnt that Shri Siddique Salimkhan Pathan had cheated him since there were two other owners of the same land along with Shri Vinod Lavri and moreover, the subject land was even taken over by the Govt. of Gujarat, whose entry was even entered in the land revenue records. Accordingly, after huge efforts, the assessee recovered the entire cash amount as paid to Shri Siddique Salimkhan Pathan through Shri Jivraj Kakadi; and at that time the assessee came to know that Shri Siddique Salimkhan Pathan had purchased the said land from land owner Shri Vinod Lavri for a total amount of Rs.5 crore and thereafter, had entered into a sauda chitthi to sale the same to the assessee at a huge profit. In respect of the payment of Rs. 16,49,10,000/-, as found noted in the payment diary seized as Pg. 84 to 94 of Page | 21 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry Annexure A-l as made by the assessee for the said land, the assessee furnished the following explanation. Particulars Amount (Rs.) Amount found recorded in the diary seized as Pg. 84-94 of Annexure A-1 which is higher than the amount found recorded in the payment vouchers seized as Pg. 22-61 and 97-99 of Annexure A-1 Less: Amount paid by cheque reflected in the regular books Less: Payment made from unaccounted income disclosed by assessee’s company Creative Trendz Pvt. Ltd. for A.Y 2011-12 Less: Payment made from unaccounted income disclosed by assessee’s company Creative Trendz Pvt.Ltd.,for A.Y. 2011-12 and A.Y 2012-13 Unidentified discrepancy 16,49,10,000 1,80,00,000 14,69,10,000 6,00,00,000 7,97,89,490 71,20,510 14. The aforesaid details are reproduced by the AO on Pg. 8 of the assessment order. The assessee thus explained that as against the total sauda chitthi of Rs.20,58,43,S69/- for purchase of land at Block no. 438 & 439, Dumas, he had made payment only to the extent of Rs. 16,49,10,000/- as evidenced by the payment diary and the balance payment of Rs.4,09,33,869/- (Rs.20,58,43,869 - Rs.16,49,10,000) was not paid since the entire deal made for purchase of both the lands with Shri Siddique Salimkhan Pathan was cancelled and the entire amount paid in cash was received back. The assessee voluntarily offered unidentified discrepancy of Rs.71,20,510/- as his income in the form of unexplained investment in the said land but denied to have made the balance payment of Rs.4,09,33,869/- as worked out by the AO from the sauda chltthi for which no evidence was found in the form of payment vouchers or notings in the payment diary. The assessee further reiterated that after making total payment of Rs.16,49,10,000/-, when he went to sale the said lands, he came to know from the proposed buyer that the title of the land was defective and it came to his knowledge that the said lands being agriculture land had been sold by the original owner to three different buyers since 1984 and the land owner Shri Vinod Lavri was one such owner and since the other two buyers were not farmers as per the Page | 22 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry state laws of Gujarat, the Govt. had taken over the said land and even the name of the Govt. of Gujarat was entered in the land revenue records. Thus, there were not only simultaneous three owners of the said land but the said land had even been taken over by the Government and hence, these lands had hardly any saleable value. The assessee further explained that on making part payment as per the sauda chitthi, he executed registered purchase deed in respect of one block of land at 438, Dumas, however, after making payment of Rs.16,49,10,000/- when he learned about the actual title about the property, he did not make the balance payment and cancelled the entire deal and recovered the cash back from Shri Siddique Salimkhan Pathan. The assessee filed various documentary evidences on his above claim. The assessee also filed an affidavit of Shri Jivraj Kakadia through whom he had entered into the deal for purchase of the said lands with Shri Siddique Salimkhan Pathan. However, the Assessing Officer did not accept the aforesaid explanation of the assessee and on Pg. 20 & 21 of the assessment order, he has held that since the sauda chitthi for both the lands i.e. 438 and 439, Dumas clearly specify the total price of the said lands at Rs.20,58,43,869/- therefore, the assessee must have paid even the balance amount of Rs.4,09,33,869/-. The Assessing officer further held that the issue of the title of the land being defective is merely an afterthought of the assessee since, the litigation in the said land is for last more than 15 years and therefore, the said argument of the assessee is not acceptable.The Assessing office accordingly made addition of the balance amount of Rs.4,09,33,869/-(Rs.20,58,43,869 - Rs. 16,49,10,000) as unexplained investment in land at Block no. 438 & 439, Dumas and further he also added the unidentified discrepancy of Rs. 71,10,510/- as offered by the assessee and even reported by the special auditor to be treated as unexplained investment in land and accordingly, made a total addition of Rs. 4,80,44,379/-(Rs, 4,09,33,869 + Rs. 71,10,510) 16. On appeal by assessee, the ld CIT(A) observed that deal for both the lands was no doubt made for a total amount of Rs.20,58,43,869/- however, the seized material itself evidences payment of only Rs.16,49,10,000/- out of which the amount paid in cash is Rs.14,69,00,000/- and the amount paid in cheque is Page | 23 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry Rs.1,80,00,000/-. It is also a fact on record that the assessee has purchased only land at Block no. 438, Dumas and has not purchased the land at Block no. 439, Dumas but has entered into an agreement for transferring a clear title to the buyer since, he had already executed a sauda chitthi for the same. Moreover, the source of the cash payment of 14,69,00,000/- stands explained by the assessee as being made from the disclosure of Rs.6,00,00,000/- in the hands of his company viz. R.J. Square Link Pvt. Ltd. for the A.Y. 2011-12 and disclosure of Rs.7,97,89,490/- made in the hands of his other company viz. Creative Trendz Pvt. Ltd., for the A.Y. 2011-12 and A.Y. 2012-13, leaving a discrepancy of Rs.71,10,510/-. The disclosure in the hands of these two companies amounting Rs.13,97,89,490/- (6,00,00,000+7,97,89,490) has been accepted by the Assessing Officer in the hands of the above mentioned two companies of the assessee to that extent.The ld CIT(A) noted that even the special auditor after verifying the entire seized material has given findings that as per the seized material, the total investment made by the assessee in land at 438 & 439, Dumas is Rs.1649.10 lacs out of which Rs. 180.10 lacs is paid by cheque and Rs.1400 lacs is funded by the disclosure made by the two companies of the assessee thus, there is an unidentified shortfall of only Rs. 71,10,510/-. Then ld CIT(A) referred the relevant findings of the special auditor in this regard, which are reproduced below: “I. Notes on agricultural land bearing survey no. 438 & No. 439 at Dumas, Surat From the perusal of seized papers and other papers mode available, it is noticed as under: (viii) Mr. Rameshbhai Raghavbhai Bhadani bought survey no. 438 land for Rs.180.10 lacs (plus stamp, registration etc. etc., stated at Rs. 42.23 (lacs) during A.Y.2011-12. (ix) RJ Square Link Private Limited (RJ) (PAN : AAECR4043F) and Creative Trendz Private Limited (Creative) (PAN : AACCC8368A) have declared undisclosed income during search proceedings in the matter as under” (iii) Rs. 602.12 lacs by RJ. for A.Y. 2011-12 (iv) Rs. 317 lacs and Rs. 480.89 lacs (aggregate Rs. 797.89 lacs) by Creative resp. during A.Y. 2011-12 and A.Y. 2012-13. Page | 24 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry (x) The aforesaid income disclosed aggregating Rs. 1400 lacs by RJ and Creative (as per para (b) above) were stated to have been utilized to make unaccounted payment towards acquisition of No. 438 and No. 439. (xi) Total investment for acquisition of survey no. 438 and no. 439 works out at Rs. 1649.10 lacs as per seized papers and after granting credit of Rs. 180.10 lacs paid by Mr Ramesh Bhadani from regular books and Rs. 1400 lacs funded by M/s RJ and Creative, there is unidentified shortfall of Rs. 71,10,510/- which is required to be considered as undisclosed income for A.Y. 2011-12, could be in the case of Mr. Ramesh Bhadani. (xiii) .................... (xiii) ......... ... (xiv) Undisclosed income of Rs. 1400 lacs in the case of RJ and Creative for AY 2011-12 and AY 2012-13 appear to have suffered income tax under the assessment order dated 31-03-2016 in both these cases passed by DOT, CC-2, Surat. (xv) We are informed that due to some litigation in respect of conversion of agricultural land to NA use of No. 439 and few other material problems, banakhat (chitthi) payments of Rs. 680.23 lacs (out of Rs, 1649.10 lacs for both No. 438 / No. 439) and due to some manipulative practices alleges to have been committed by Mr. Siddique, this banakhat was cancelled and payments were returned back by Mr. Slddique..............,..." 17. The ld CIT(A) observed that Assessing officer has also not been able to bring any evidence on record to show that the balance payment of Rs. 4,09,33,869/- stands paid by the assessee. There is also no statement of the original owner of the land viz. Shri Vinod Lavri that he had sold the land to the assessee and had received the entire payment of Rs. 20.58 crores from him. The Assessing officer has also not negated the affidavit of Shri Jivraj Kakadia with any evidence that the assessee had entered into a deal with Siddique Salimkhan Pathan and that the said deal was cancelled and the cash was returned back. The assessee's stand at the assessment stage as regards the cancellation of the deal, receipt back of the cash given and the defective title of the land also cannot be considered an afterthought since, all these facts was explained by the assessee before the Investigation Wing during the course of recording of his statement on 13-05-2015 at the time of post search proceedings. On going through the statement of the assessee recorded by the Investigation Wing on 13-05-2014, it is seen that in reply to Question no. 8, the assessee has clearly stated that Shri Siddique Salimkhan Pathan / Shri Jivraj Kakadia had signed sauda chitthi on Page | 25 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry behalf of the land owner, Shri Vinod Lavri and that Shri Siddique Salimkhan Pathan / Jivraj Kakadia had signed sauda chitthi after taking confirmation from Vinod Lavri on telephone in front of him. In reply to question no. 11, the assessee has also confirmed of him having made payment to either Shri Siddique Salimkhan Pathan or Shri Jivraj Kakadia who in turn got the confirmation from the land owner Shri Vinod Lavri. Even the land owner Shri Vinod Lavri in his statement, recorded on 06-11-2015, before the Assessing officer, In reply to Question no. 7, has stated that he had sold both these lands along with its defective title to Shri Siddique Salimkhan Pathan and on the instruction of Shri Siddique Salimkhan Pathan he has executed the registered deed of land at 438, Dumas in the name of the assessee. In reply to Question no. 12, Shri Vinod Lavri further stated that he has carried out no cash transactions with the assessee and he had only transacted with Siddique Pathan and even the cheque of the assessee was given to him by Shri Siddique Pathan. In reply to Question no. 7, 8, 9,10,13, Shri Vinod Lavri has even denied his signature in the seized papers and in reply to Question no. 9, he has explained that he signs in Gujarati and writes his full name in his signature and the signature in the seized papers does not match with his signature. Therefore, in view of the assessee's own statement before the Investigation Wing as also the statement of the land owner Shri Vinod Lavri, the assessee's explanation cannot be considered as an afterthought when there is no evidence to the contrary. Based on these facts, ld CIT(A) held that it is legally settled principle that the seized documents should be read in totality and harmonious way so as to reach to the correct nature of transaction. When the documents itself contain details of payment of Rs. 1649.10 lakh, additions above this amount are not justified. In view of the above facts ld CIT(A) deleted addition Rs. 4,09,33,869/- However, addition of Rs.71,10,510/-, the unidentified discrepancy in the payment for the said land as evidenced by the seized diary was sustained by ld CIT(A). We do not find any infirmity in the order of ld CIT(A), that being so, we decline to interfere with the order of Id. CIT(A) in deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue are dismissed. Page | 26 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry 18. About summarized ground no. “1(b).Ground No.2 of IT(ss) No.25/SRT/21, for A.Y. 2013-14. Addition of Rs.4,65,09,013/- on account of unaccounted gain on sale of land.” The ld CIT(A) observed that deal for both the lands was no doubt made for a total amount of Rs. 20,58,43,869/- however, the seized material evidences payment of only Rs. 16,49,10,000/- out of which the amount paid in cash is Rs. 14,69,00,000/- and the amount paid in cheque is Rs.1,80,00,000/-. Similarly, as per the seized sauda chitthi, the said two lands were agreed to be sold for a total consideration of Rs. 32,64,67,000/- on 28-07-2011 however, there is no evidence in the seized material of the assessee receiving any payment in respect of the said deal. Moreover, it is also seen that the sauda chitthi for sale has been entered with Pavan Tulsiyani on 28-07-2011 however, the registered sale deed for land at 438, Dumas has been executed by the assessee with Shri Jashwant Patel and the assessee has not executed the registered sale deed for the land at 438, Dumas. There is also nothing on record from the registered buyer of the said land viz. Shri Jashwant Patel that he has paid any cash to the assessee. Thus, as per the seized material, there is no evidence that the assessee had sold the lands at 438 & 439, Dumas to Shri Pavan Tulsiyani and has received payment of Rs. 32,24,67,000/- for the same from him or from any other person. It is also a fact on record that the assessee has purchased only land at Block no. 438, Dumas and has not purchased the land at Block no. 439, Dumas and hence, there is also no question of the same being sold by the assessee. The seized notarized agreement entered into by the assessee as relied upon by the Assessing officer is only for passing of the clear title of the land at 439, Dumas in order to pass on a clear title and cannot be equated with the registered sale deed when no payment either in cheque or in cash has been received by the assessee for the same. The ld CIT(A) observed that even the special auditor after verifying the entire seized material has given his findings that as per the seized material, the total investment made by the assessee in land at 438 & 439, Dumas is Rs.1649.10 lacs out of which Rs.180.10 lacs is paid by cheque and Rs.1400 lacs is funded by the disclosure made by the two companies of the assessee and thus, there is an Page | 27 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry unidentified shortfall of only Rs.71,10,510/-. The relevant findings of the special auditor were taken into account by ld CIT(A), which is reproduced below: “I. Notes on agricultural land bearing survey no. 438 & No. 439 at Dumas, Surat From the perusal of seized papers and other papers made available, it is noticed as under: ..... ...... ...... (vi) Mr, Rameshbhai Kaghavbhal Bhadani sold the said no. 438 during A.Y. 2013-14 for sales consideration of Rs. 324.14 lacs and after considering the cost of question (including cost of stamp etc.) of Rs. 222.33 toes, Mr. Ramesh Bhadani has declared chargeable capital gain of fts. 101.80 lacs during A.Y. 2013-14. However, after considering unaccounted money transacted including some funds received from the middleman Mr. Siddique Salimkhan Pathan (Mr. Siddique), It Is seen that further capital gain after considering Rs.71,10,510 as above in para (d)J, Ks.19,99,700 has been earned which could be undisclosed income for A.Y. 2013-14 could be in the case of Mr. Rameshbhai Raghavbhai Bhadani. (viii) Undisclosed Income of Rs. 1400 lacs in the case of RJ and Creative for AY 2011-12 and AY 2012-13 appear to have suffered Income tax under the assessment order dated 31-03-2016 in both these cases passed by DOT, CC-2, Surat. (ix) We are informed that due to some litigation in respect of conversion of agricultural land to NA use of No. 439 and few other material problems, banakhat (chitthl) payments of Rs. 680.23 lacs (out of Rs. 1649.10 lacs for both No. 438 / No. 439} and due to some manipulative practices alleges to have been committed by Mr. Siddique, this banakhat was cancelled and payments were returned back by Mr. Siddique. Unidentified Income of Rs. 19,99,700 las above as per para (e}] Includes small surplus received on cancellation of banakhat of No. 439................." 19. The ld CIT(A) thus observed, that Assessing officer has also not been able to bring any evidence on record to show that assessee has received the sale consideration as per the sauda chitthi. The sauda chitthi under consideration does not contain any detail about the payment made. It only contains figures of sales consideration. There is also no statement of any person making payment to the assessee for purchase of these lands. The Assessing officer has also not negated the affidavit of Shri Jivraj Kakadia with any evidence that the assessee had entered into a deal with Siddique Salimkhan Pathan and that the said deal was cancelled and the cash was returned back. The assessee's stand at the assessment stage as regards the cancellation of the deal of purchase, receipt back of the cash Page | 28 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry given and the defective title of the land also cannot be considered an afterthought since, all these facts was explained by the assessee before the Investigation Wing during the course of recording of his statement on 13-05-2015 at the time of post search proceedings. The assessee in reply to Question no. 5,7,17 and 18 of his statement recorded on 13-05-2014 by the Investigation Wing has clearly stated that the sauda chitthi for sale of the said land with Shri Pavan Tulsiyani was cancelled and that the total capital gain earned by him on sale of the land at 438, Dumas was Rs. 1,01,80,471/- which was duly reflected in his regular book and an amount of Rs.19,99,936/- was his undisclosed gain being unidentified discrepancy. Even the purchaser as per the seized sauda chitthi for sale viz. Shri Pavan Tulsian, in reply to Question no. 10 of his statement recorded by the Assessing Officer on 06-11-2015 has stated that he has not entered into any cash transaction with the assessee. Therefore, ld CIT(A) noted that neither the seized material evidences receipt of any cash payment by the assessee for sale of the said land nor is there any statement of the alleged purchaser of made any payment in cash. Therefore, out of the addition of Rs. 4,85,08,713/- as made by the AO for unaccounted capital gain on sale of land at 438, 439, Dumas, the addition of Rs.19,99,700/- based on the seized material and reported by the Special Auditor was sustained by ld CIT(A) and the balance amount of Rs. 4,65,09,013/- (Rs. 4,85,08,713 -Rs. 19,99,700) was deleted. Based on these facts, we do not find any infirmity in the order of ld CIT(A), hence we confirm the findings of ld CIT(A). 20. About ground no. “1 (c ). Ground No.3 of IT(ss) No.25/SRT/21, for A.Y. 2013-14. Addition of Rs.1,00,00,000/- on account of unaccounted investment.” We note that Assessing Officer made addition of Rs.1,00,00,000/- for unaccounted investment u/s. 69 in purchase of land at Block no. 19/2, Variyav. We note that during the course of appellate proceedings, the assessee has reiterated his contentions as raised before the Assessing Officer that he was only a witness in the sauda chitthi for purchase as is evidenced by the seized sauda chitthi for sale wherein his signature is in the capacity of witness. The assessee relied upon his statement recorded on 13-05-2014 during the course of post search proceedings wherein also he had explained the said fact. The assessee also Page | 29 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry relied upon the findings of the special auditor who has also reported that the deal for purchase has not materialized upto February 2016, this land at 19/2, Variyav continued to be held in the name of the erstwhile owner and had neither been purchased or sold by the assessee. Accordingly, the assessee pleaded that the addition of Rs.1,00,00,000/- being 50% share of unaccounted investment in land at 19/2, Variyav has wrongly been made by the Assessing Officer and needs to be deleted. The ld CIT(A) observed that one part of the seized material being the purchase sauda chitthi raises doubt as the assessee being 50% purchaser of the said land at 19/2 Variya, however, the other part of the same seized material being the sale sauda chitthi clearly shows that the assessee has signed in the capacity of witness, which puts to rests the doubt as regards the assessee`s role in the said transaction since if the assessee has signed the purchase sauda chitthi as a purchaser then the sauda chitthi for sale would not have been signed as a witness. Based on these facts, ld CIT(A) deleted the addition of Rs.1,00,00,000/-. We have gone through the above findings of ld CIT(A) and noted that there is no any infirmity, hence we confirm the findings of ld CIT(A). 21. About ground No.1(d)“Ground No.2 of IT(ss) No.45/SRT/21, for A.Y.2014-15, addition of Rs.1,84,28,500/- on account of unexplained investments.” it was observed by ld CIT(A) that assessee’s signature in the sauda chitthi for purchase of the land at Block No.19/2,Variyav seized as Pg. 22 of Annexure A-3 is appearing below the signature of the purchaser and no further detail is mentioned against the assessee’s signature in the sauda chitthi of sale of the said land seized as Pg. 21 of Annexure A-3 against the assessee’s signature, the word “witness” has been mentioned. It was noted that even in the statement recorded by the DDIT (Inv.)-1, Surat on 13.05.2014, the assessee in reply to Question No.31 to 34, has clearly stated that he has not purchased the said land and had only signed the sauda chitthis in the capacity of witness and that he had also not made any payment towards the deal and accordingly, his signature or name was nowhere appearing in the payment diary. The fact that the assessee had never owned the said land is also evidenced by the land revenue records. Page | 30 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry The ld CIT(A) also observed that even the special auditor after verifying the entre seized material has given his findings that the said land has neither been purchased nor sold by the assessee and that as per the property extracts, the land continues to be in the name of the erstwhile owners in the land revenue records. The relevant findings of the special auditor in this regard are reproduced here below. “I, land at Block No.19/2 at Variav (2012-13) Sauda chitthi for proposed purchase of this land by Mr. Rameshbhai Bhadani has been seized. Bana amount of Rs.5 lacs was paid on 28.03.2012. The banakhat therefore has been cancelled and the said bana amount has been returned. From property extracts upto February 2016 made available, this BlockNo.19/2 has neither been purchased or sold and continues to be held in the name of erstwhile owner in the revenue records.” Based on these facts, ld CIT(A) observed that Assessing Officer has not been able to bring any evidence on record to show that the assessee has received the sale consideration as per the sauda chtthi. There is also no statement of any person that the assessee had made the payment of the purchase of the said land. The Assessing Officer has rejected the explanation of the assessee as an afterthought and being without any proof. However, the assessee’s stand at the assessment stage as regards of him having signed the purchase sauda chitti as a witness cannot be considered an afterthought since, the said fact was also explained by the assessee to the DDIT (Inv.)-1,Surat during the course of recording of his statement on 13.05.2015 at the time of post search proceedings. The assessee in reply to Question No.31 to 34 of his statement recorded on 13.05.2014 by the Investigation Wing has clearly stated that he was only witness in the said deal and that he had not made any payment. Thus, one part of the seized material being the purchase sauda chitthi raises doubt as the assessee being 50% purchaser of the said land at 19/2,Variyav however, the other part of the same seized material being the sale sauda chitthi clearly shows that the assessee has signed in the capacity of witness, which puts to rests the doubt as regards the assessee’s role in the said transaction since if the assessee had signed the purchase sauda chitthi as a purchaser then the sauda chitthi for sale would not have been signed as a witness. Hence, in view of the above findings, the addition Page | 31 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry of Rs.1,84,28,500/- being 50% of the payment made for purchase of the land at 19/2,Variyav was deleted by ld CIT(A). Based on the factual position narrated above, we do not find any infirmity in the order of ld CIT(A), hence we confirm the findings of ld CIT(A). 22. About ground No.1(e) “1(e ). Ground No.3 of IT(ss) No.45/SRT/21, for A.Y.2014-15, addition of Rs.50,000/- on account of unexplained investments” the ld CIT(A) observed that purchaser of the land was Shri Dilip C Sojitra and that he had signed the sauda chitthi after Shri Dilip C Sojitra, only for goodwill purpose. The assessee placed reliance on the findings of the special auditor that the said land was not purchased by him. Moreover, during the appellate proceedings, the assessee argued that the Assessing Officer has not considered his alternative argument that even if, it is assumed that the said amount of Rs.50,000/- was paid by the assessee even then the source thereof stands explained as being from the amount received back on cancellation of the project La-Grand which was out of the disclosure of Rs.14 crores made during the course of search by the two companies of the assessee. The assessee also submitted the fund flow statement showing date wise investment in the lands at Naginawadi, Variyav, 215,216, 217,218/2, Sarbhon and 233-234, Sarbhon as being made from, the amount received back on cancellation of the project La-Grand, which was even furnished to the learned AO on Pg 31 & 32 of the assessment order in the case of the assessee for the A.Y 2013-14. Based on these facts, ld CIT(A) noted that assessee has explained the source, therefore deleted the addition of Rs.50,000/-, hence we do not find any infirmity in the order of ld CIT(A), therefore, we confirm the findings of ld CIT(A). 23. About ground No.1(f),“1(f). Ground No.4 of IT(ss) No.45/SRT/21, for A.Y.2014-15, addition of Rs.1,41,00,000/- on account of unexplained investments.” the ld CIT(A) noted that sauda chitthi for the purchase of land at Naginawadl, Katargam has been signed by the appellant. The payment diary also evidences the payment of Rs.1,41,00,000/- for the said land and it is an undisputed fact that the deal has been cancelled and that the land has not been purchased by the appellant. As regards, the payment, the appellant is arguing that Page | 32 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry even if the said amount of Rs.1,41,00,000/- is considered to have been paid by him, even then the source thereof stands explained as being from the amount received back on cancellation of the project La-Grand in May 2013. The appellant has submitted date-wise fund flow statement wherein the payment made for different land at Naginawadl, Variyav and Sarbhon stands explained as being made from the amount received on cancellation of the project La-Grand and the same stands reproduced herein before. The Assessing officer has not given any findings in respect of the said contention as raised by the appellant during the assessment stage as to why the same is not acceptable however, the Assessing officer has allowed the credit of the Dumas land against the debit in the project La-Grand but thereafter the Assessing officer has not commented on the source of funds available in the hands of the appellant on cancellation of the project La- Grand for further investment in other lands in the year under consideration. Accordingly, the addition of Rs.1,41,00,000/- for unexplained investment in land at Naginawadi, Katargam as made by the Assessing officer in the hands of the appellant was deleted by ld CIT(A). We have gone through the above findings of ld CIT(A) and noted that there is no infirmity in the order of ld CIT(A), therefore, we confirm the findings of ld CIT(A). 24. Now, we shall take summarized and concise ground no. 2 of Revenue, which is reproduced below for ready reference below: “(2).Learned CIT(A) erred in deleting protective addition made by assessing officer on account of unexplained cash credit based on incriminating documents seized during the search under section 132 of the Act in case of Laxmipati Group of Surat, even though the decision on substantive addition in the case of Shri Dilip C.Sojitra is still pending. (a)Ground No.4 of IT(ss) No.25/SRT/21, for A.Y. 2013-14, deleted protective addition of Rs.54,01,21,000/-. (b) Ground No.2 of IT(ss) No.26/SRT/21, for A.Y. 2013-14, deleted protective addition of Rs. 54,01,21,000/-. (c ). Ground No.5 of IT(ss) No.45/SRT/21, for A.Y. 2014-15, deleted protective addition of Rs. 25,00,28,700/-.” 25. When this appeal was called out for hearing, learned counsel for the assessee invited our attention to the order dated 22.09.2021, passed by the Page | 33 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry Division Bench of this Tribunal in assessee’s own case in for assessment years 2009-10 to 2012-13 in IT(SS)A No.02-05/SRT/2019 whereby the issue of relating to protective addition has been discussed and adjudicated in favour of assessee. Learned counsel for the assessee submitted that the present grounds are squarely covered by the aforesaid order of the Tribunal, a copy of which was also placed before the Bench. 26. Learned Departmental Representative, nevertheless relied upon the orders of the authorities below. 27. We see no reasons to take any other view of the matter than the view so taken by the Division Bench of this Tribunal in assessee’s own case vide order dated 22.09.2021. In this order, the Tribunal has inter alia observed as follows: “22.We have considered the rival submission of both the parties and have gone the order of lower authorities. We have also deliberated on various case laws and well as on the various documentary evidences furnished by the assessee. We find that the assessing officer while passing the assessment order recorded that Piyush Modi was accountant of Dilip Sojitra and not of the assessee. It was also concluded that the assessee has explained his relationship with Dilip Sojitra as employee and employer and some land transactions either as a co-purchaser or seller or as a mediator in some land transaction and all transactions had been accepted in his name and appeared in the signature therein. The Assessing Officer specifically concluded in para 9.5 of the assessment order that on the basis of such document it cannot be concluded that assessee and other person claimed by Dilip Sojitra are his partner in all the transactions. We find that on the affidavit of assessee and counter affidavit of Dilip Sojitra, the Assessing Officer concluded that Shri Jignesh J Patel has given a counter affidavit to assessee stating that his earlier affidavit was given to Dilip Sojitra was obtained by threat and fear and it should not be considered. 23. We further find that the Assessing Officer in para 9.8 of assessment order held that on 18.10.2016 Dilip Sojitra filed an affidavit with a photo copy of seized paper claiming it to be a “samadhan karar” between assessee and Shri Pinabhai Gujarati signed as a witness and that original of the document is with the assessee, however, the assessee disputed the genuineness of such “samadhan karar”. We further noted that the Assessing Officer concluded that photo copy cannot be taken as a conclusive evidence of any partnership / joint venture between assessee and Dilip Sojitra. Moreover, the name of joint venture partnership is not mentioned. On the stand of assessee that Dilip Sojitra was the employee of assessee, Dilip Sojitra claimed that bogus transaction of salary is prepared by assessee in collusion with a chartered accountant. The Assessing Officer also held that Dilip Sojitra while filing return of income has shown salary income has not revised the return of income despite having opportunity of Page | 34 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry revise it. On the basis of detailed discussion, the Assessing Officer in para 9.12 of the assessment order held that Dilip Sojitra has failed to prove with reasonable and credible evidence that assessee is his partner in respect of transaction reflected in the seized material and failed to produce any memo of understanding (MoU), agreement, partnership deed or any document in writing to prove the existence of any partnership / joint venture with him. Dilip Sojitra also failed to produce any signed vouchers, slips or noting to prove the distribution of profit between partners or introduction or repayment of capital in the partnership firm in the joint venture. 24. We find that despite recording the aforesaid findings the assessing officer held that the assessee has accepted some land transactions were made through Dilip Sojitra, therefore, to protect the interest of revenue and to avoid the possibility of revenue leakage a protective addition is made at the hand of assessee,as made in the case of Dilip Sojitra on substantive basis. We find that on the submissions of the assessee, the ld CIT(A) called remand report from assessing officer. The assessing officer furnished his remand report for all assessment years. 25.The ld. CIT(A) deleted the protective addition from the hand of assessee by holding that the substantive addition has been made in the hand of Dilip Sojitra and the protective addition of the same amount is made in the hands of Piyush Modi (accountant/ CA), Jayeshkumar D Mistry and Rameshbhai R Bhadani (assessee), the basis of protective addition is made only on the conjecture as the assessee has entered into some land transaction group with Dilip Sojitra and there may be probability that assessee might be a partner. The Ld. CIT(A) further held that Assessing Officer on satisfaction that incriminating materials seized pertains to Dilip Sojitra and there is no connection with the assessee of such seized materials. The ld CIT(A) held that the Assessing Officer is a quasi- Judicial officer and was duty bound to tax the real income in the hands of an assessee, his decision should be based on cogent evidence and sound reasoning which is missing in the assessment order and that there should be live link with the seized material with the assessee. It was further held that the Assessing Officer made the addition only to circumvent of future happening for which he himself is not sure of. The scheme of assessment under the Act does not provide for such assessment. 26. We find that the ld.CIT(A) in para 7.3 of his order has recorded the substantive and protective additions in a graphic and held that substantive additions was made in the hand of Dilip Sojitra and first layer protective addition is made in the hand of Piyush Modi, second layer protective additions in the hand of Jayesh Mistry and third layer in the hand of assessee. It was also held that to fix the liability of assessee there needs to be a live connection or link between the seized materials and deleted the protected addition at the hand of the assessee. 27. We have independently examined the facts of the present case and are of the view that once it is held by the assessing officer that the assessee is neither partner nor having any share-holding in any joint venture nor there is existence of any such concern with Dilip Sojitra, the assessing officer was not justified in Page | 35 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry making protective addition at the hand of the assessee. The protective additions can be made when it appears to the income tax authorities that certain income has been received during the relevant assessment year but it is not clear who has received that income and prima facie it appears that income has been received by ‘X’ or ‘Y’ or by both together, it would be open to the tax authorities to determined the said income by taking appropriate proceedings against both ‘X’ or ‘Y’. 28. The Hon’ble Supreme Court in Lalji Haridas Vs Income tax officer (supra) held in cases where it appears to the income-tax authorities that certain income has been received during the relevant assessment year but it is not clear who has received that income and prima facie it appears that the income may have been received either by A or B or by both together, it would be open to the relevant income-tax authorities to determine the said question by taking appropriate proceedings both against A and B. 29.However, in the present case, we find that it is clear that income is received as the assessing officer has clearly held that Dilip Sojitra failed to produce any signed vouchers, slips or noting to prove the distribution of profit between partners or introduction or repayment of capital in the partnership firm in the joint venture, the protective additions at third level in the hand of assessee is not justified. Thus, we affirms the order of ld CIT(A). In the result the grounds of appeal raised by the revenue are dismissed.” 28. We note that the issue is squarely covered in favour of assessee and against the Revenue in assessee’s own case IT(SS)ANo.02-05/SRT/2019 (supra) and there is no change in facts and law, therefore, respectfully following the binding precedent, we dismiss the summarized ground No.2 raised by Revenue. 29. Summarized and Concise ground No.3 raised by the Revenue, is reproduced below: (3).Ground No.1 of IT(ss) No.26/SRT/21, for A.Y.2013-14, grievance of the Revenue is that ld CIT(A) erred in deleting addition of Rs.1,00,00,000/-, made by AO on account of peak credit of the transaction appearing in ledger seized in search in case of Laxmipati Group of Surat. 30. The necessary facts relating to this group have already been narrated by us in above paras, therefore, we do not repeat them. We have heard both the parties on this ground. Learned DR for the Revenue placed reliance on the findings of assessing officer, whereas ld Counsel defended the order passed by ld CIT(A). We have gone through the findings of the AO, the submissions of the assessee, the copy of the ledger account, the various documentary evidences submitted by the assessee and the findings of the special auditor. The ld CIT(A) observed that Page | 36 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry ledger account is in the name of Shri’ Jayeshbhai’ with the code ‘JAYEMI’ which has been found from the premises of a third party viz. Shri Piyush G Modi. There is no signature of the assessee on this ledger account. Further, there are no corroborative or other documentary evidence from which it can be inferred that the said leger account belongs to the assessee or that the assessee has entered into any such transactions. The ld CIT(A) noted that even the special auditor has not pointed out any evidence to infer that the said ledger belongs to the assessee or that the transactions therein have been carried out by him. There is even no statement of either Shri Piyush G. Modi or Shri Dilip C Sajitra explaining the transactions in the ledger account. Further, none of the entries in the regular books of account of the assessee match with the entries in the seized ledger and there is also no cheque entry therein tallying with the regular books of the assessee and there is also no such reference in the assessment order by the AO. Therefore, ld CIT(A) held that assessee’s case is clearly covered by the case law of Common cause and Others vs. UOI & Ors (2017) 98 CCH 0028 (SC) in writ petition Civil Appeal No.505 of 2015 decided by Hon'ble Supreme Court of India wherein it has been held that there has to be some relevant and admissible evidence and some cogent reason which is reliable and that too supported by some other circumstances pointing out that the particular third person against whom the allegations have been leveled was in fact involved in the matter or he has done some act during that period, which may have co-relations with the random entries. The assessee’s case is further found covered by the case law of CBI vs. V.C.Shukla AIR 1998 SC 1406 of the Supreme Court as also the case law of CIT vs. Lavanya Land Pvt.Ltd, 2017 397 ITR 0246 (Bom) of the Bombay High Court in which it has been held that when there is no direct evidence whatsoever to allege that money changed hands between the two parties and in the absence of any material to show that huge cash was transferred from one side to another, the addition cannot be sustained.These case laws of Hon'ble Supreme Court have been relied upon by the Hon'ble High Court of Gujarat in the case of CIT vs. Shri Mauli Kumar K. Shah (2008) 307 ITR 137 (Guj) and PCIT vs. Ajay Sundarbhai Patel (2016) 69 taxmann.com 309 (Guj). These judgments of Hon'ble Page | 37 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry High Court of Gujarat and Hon'ble Supreme Court of India have been relied upon by Hon'ble ITAT Ahmedabad in several cases. The assessee’s case also stand covered by the case laws of CIT vs. Gian Gupa (2014) 369 ITR 248 (Del); M.M. Financers (P) Ltd. vs. DCIT (2007) 107 TTJ 200 (Chennai ITAT) and; ACIT vs. Shri Radheshyam Poddar (1992) 41 ITD 449 (Kolkata ITAT) wherein it has been held that no course of action could arise in any court of law on the basis of an unsigned document and the addition made on the basis of such unsigned documents were not sustainable. The assessee’s case is even supported by the case laws of Nishant Construction Pvt. Ltd. vs. DCIT (2019) 57 CCH 83 (Ahmedabad ITAT); and Sheth Akshay Pushpavadan vs. DCIT (2010) 130 TTJ 42 wherein it has been held that addition toward unaccounted investment in purchase of land cannot be made on the basis of dumb document and presumption u/s 132(4A) is not available when the seized paper is recovered from third party and not from the assessee. The assessee’s case is also covered by the case law of Cosmos Infra Engineering (India) Ltd. vs. DCIT (2017) 58 ITR 383 (Chandigarh Tribunal) wherein the tribunal has held that when the third party from whose premises alleged documents were found had not confirmed that the entry belonged to the assessee, there was no question of any assumption or belief that the entry belonged to the assessee and no addition can be made on this issue. Even the Pune Bench of the Tribunal in the case of Pradeep Amritial Runwal vs. ITDO (2014) 166 TTJ 498 (Pune) has held that simply because the name of the assessee is noted on the seized papers does not mean that the addition should be made in the hands of the assessee when no evidence has been found relating to the existence of any transaction between the assessee and the party searched and there is the existence of any transaction between the assessee and the party searched and there is also no corroborative evidence to suggests that the transaction had taken place. Keeping in view the above factual and legal discussion, the ld CIT(A) held that the addition of Rs.1,00,00,000/- u/s 69A as made by the AO for unexplained money in respect of peak credit appearing in the ledger account in the name of ‘Jayeshbhai’ as found and seized from the premises of Shri Piyush G Modi only on the basis that the code ‘JAYEMI’ used in the Page | 38 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry ledger account, is the short name of the assessee is not found justified and hence, the addition u/s 69A for unexplained money as made by the Assessing Officer was deleted by ld CIT(A). We have gone through the findings of ld CIT(A) and noted that there is no infirmity in the order of ld CIT(A) hence, we approve and confirm the findings of ld CIT(A) and dismiss the ground raised by Revenue. 31. Summarized and Concise ground No.4 raised by the Revenue, is reproduced below: “(4).Ground No.1 of IT(ss) No.45/SRT/21, for A.Y.2014-15, grievance of the Revenue is that ld CIT(A) erred in deleting addition of Rs.11,00,000/-, which was made by the assessing officer based on incriminating documents seized in search proceedings under section 132 in the case of Laxmipati group of Surat.” 32. The facts of the case in respect of the addition of Rs.11,00,000/- for unaccounted investment in land at Block no, 215,216,217, 218/2, Sarbhon are as follows. During the course of search at the residence of Shri Piyush G. Modi, a sauda chitthi dated 23.11.2013 was found and seized as Pg, 31 & 32 of Annexure A-3 which was in respect of purchase of land at Block no. 215, 216, 217, 218/2, Sarbhon, Bardoli for a total amount of Rs. 3 crores, wherein a down payment of Rs.1,00,000/- was paid. In the said sauda chitthi, Shri Dilip C. Sojitra and the assessee are the purchaser and Shri Tekchand Shah, Ravindra Tekchand Shah and others are the sellers. In addition to the aforesaid sauda chitthi, a payment diary has also been found and seized as Pg. 1 to 3 of Annexure A-43 showing total payment of Rs. 21,00,000/- in cash being received by the seller Shri Tekehand Shah along with his signature and there is no detail of person making the payment. During the course of assessment proceedings, the Assessing Officer asked the assessee to explain the aforesaid seized material and in this regard, the assessee explained that he had never purchased the said land at Sarbhon and his name was put in the sauda chitthi along with Shri Dilip C Sojitra for goodwill purpose as the seller was not willing to sale the land to Shri Dilip C Sojitra on accounts of his criminal background. In support of his contention, the assessee furnished land revenue records in the form of Form no. 7/12 and 8A showing that the said land has never been owned either by the assessee or any of his family members or group concerns. Further, the assessee submitted that the down Page | 39 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry payment of Rs. 1,00,000/- was made by him as a part of goodwill and the source thereof was the amount received back, from the project La-Grand on its cancellation in May 2013. The assessee further explained that the balance payment of Rs.21,00,000/- as evidenced by the diary has been made by Shri Dilip C. Sojitra. The assessee also relied upon his statement recorded by the DDIT (Inv.)-l, Surat on 13-05-2014 wherein in reply to question no. 40, the assessee had clearly stated that the said amount was paid by Shri Dilip C. Sojitra. The assessee also relied upon the findings of the special auditor as contained in his special audit report for the A.Y, 2014-15 wherein the special auditor has clearly held that the deal for purchase of the said land stands cancelled and the amount of Rs.21,00,000/- stands returned back by the seller Shri Tekchand Shah since the land was an agriculture land and there were various issues of conversion thereof into N.A. The assessee thus explained the learned AO that he had paid only Rs.1,00,000/- as down payment for goodwill purpose and the same stands explained from the amount received back on cancellation of the project La-Grand in May 2013 and the balance payment of Rs. 21,00,000/- was made by Shii Ditip C. Sojitra. However, the Assessing Officer did not accept the aforesaid explanation of the assessee and on Pg. 9 of the assessment order, he has held that it is seen that the land at Block no. 215, 216,217, 218/2, Sarbhon, Bardoii has not been purchased by the assessee and the deal for the said land stands cancelled but total payment of Rs.22,00,000/- has been paid by the assessee along with Shri Djlip C, Sojttra and therefore, an amount of Rs.11,00,000/- by assuming 50% of the share as belonging to the assessee, has been treated as unexplained investment in the hands of the assessee. 33. On appeal, ld CIT(A) deleted the addition. Before us, ld DR for the Revenue reiterated the findings of assessing officer, whereas ld Counsel defended the order passed by the ld CIT(A). We note that ld CIT(A) deleted the addition observing as follows: “9.5 I have considered the facts of the case, the findings of the AO, the submissions of the assessee, the copy of the seized material, the various Page | 40 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry documentary evidences submitted by the assessee before the AO and the findings of the special auditor as contained in his report for the A.Y 2014-15. On going through the above, it is seen that the saduda chitthi for the purchase of land at Block No.215,216,217, 218/2, Sarbhon, Bardoli has been signed by Shri Dilip C. Sojitra and the assessee wherein a down payment of Rs.1,00,000/-has been made. A payment diary has also been seized in respect of the said land showing total payment of Rs.21,00,000/- however, in the said diary, there is signature of only recipient i.e. the seller and there is no name or signature of the person making the payment i.e. the buyer. It is further seen that during the course of statement before the DDIT(Inv.)-1, Surat on 13.05.2014, the assessee in reply to Question no.40 has admitted that the had paid the down payment of Rs.1,00,000/- as noted down in the sauda chitthi and as regards, the balance payment of Rs.21,00,000/-, noted down in the seized diary, the assessee has stated that the same has been paid by Shri Dilip C. Sojitra, however, there is no evidence that the entire payment has been made by Shri Dilip Sojitra and no amount other than Rs.1,00,000/- has been paid by the assessee. Accordingly, in the absence of any evidence other than the statement that the assessee has paid only Rs.1,00,000/-, the Assessing Officer has rightly treated 50% of the total amount of Rs.22,00,000/- (Rs.1,00,000 + Rs.21,00,000) amounting to Rs.11,00,000/- as attributable to the assessee since the purchase sauda chitthi has been signed by the assessee along with Shri Dilip C. Sojitra. Now coming to the alternative argument taken by the assessee that even if the said amount of Rs.11,00,000/- is considered to have been paid by him, even then the source thereof stands explained as being from the amount received back on cancellation of the project La-Grand in May 2013.The assessee has submitted date-wise found flow statement wherein the payment made for different land at Naginawadi,Variyav and Sarbhon stands explained as being made from the amount received on cancellation of the project La-Grand and the same stands reproduced herein before. The Assessing Officer has not given any findings in respect of the said contention as raised by the assessee during the assessment stage however, the Assessing Officer has allowed the credit of the Dumas land against the debit in the project La-Grand but thereafter the Assessing Officer has not commented on the source of funds available in the hands of the assessee on cancellation of the project La-Grand for further investment in other lands in the year under consideration. Accordingly, the addition of Rs.11,00,000/- for unexplained investment in land at 215, 216, 217, 218/2, Sarbhon,Bardoli as made by the Assessing Officer in the hands of the assessee is deleted on the ground that the source thereof stands explained by the assessee as being made from the amount received back on cancellation of the project La-Grand, which is clearly evident from the fund flow chart prepared on the basis of documents found during the course of search. Accordingly, ground no. 5 as raised by the assessee stands allowed.” 34. We have gone through the above findings of ld CIT(A) and noted that ld CIT(A) passed the order considering both sides arguments, and we do not find any infirmity in his order, therefore we confirm and approve the findings of ld CIT(A). Page | 41 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry 35. Now we shall take up assessee’s appeal. Concise and summarized ground No.1 of Assessees` appeals are as follows: “(1).Ground No.1 of IT(ss) No.31/SRT/21, for A.Y. 2013-14, and Ground No. 1 of IT(ss) No.30/SRT/21, for A.Y. 2013-14 are common and identical. In these grounds grievance of the assessee is that ld CIT(A) has grossly erred in upholding the assessing officer`s action in issuing notice u/s 153C of the Act and passing assessment order u/s 153C of the Act.” 36. In common ground No.1 raised by assessee, the assessee has challenged the validity of assessment u/s 153C r.w.s. 143(3) of the Act. At the outset, Ld. Counsel for the assessee submitted that assessment framed by AO u/s 153C of the Act is not valid, as the assessing officer has not recorded proper satisfaction. The single satisfaction was recorded u/s 153C of the Act for various assessment years which is not valid in the eye of law. The ld Counsel further pointed out that documents and papers mentioned in the satisfaction note were not incriminating in nature and hence no additions should made on the basis of these papers. In the satisfaction note, it was also stated that the loose papers were recovered in the search action taken in case of Piyush G. Modi. However, only the descriptions of the papers were given by the assessing officer in the satisfaction note. Therefore, ld Counsel argued that the impugned proceedings under section 153C of the Act may be quashed. 37. On the other hand, Ld. CIT-DR for the Revenue submitted that Assessing Officer has issued a valid notice and recorded the satisfaction u/s 153C of the Act and therefore notice issued u/s 153C of the Act as well as satisfaction recorded by the Assessing Officer u/s 153C of the Act are valid in the eyes of law and hence it should not be quashed. 38. We have heard both the parties and perused the materials available on record. To adjudicate this issue, we take lead case in IT(SS) No.31/SRT/2021 (Rameshbhai R Bhadani). We note that in Ground No.1 both the assessees have challenged the satisfaction note stating that satisfaction is not in accordance with law. We have gone through the satisfaction note which is attached in the paper book page 272 to 276 and note that the headings of the satisfaction note clearly provided that some of the loose papers on these files are belonged to Shri Page | 42 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry Rameshbhai R Bhadani and these papers have a bearing on the total income of assessee (Rameshbhai R Badani). Hence, we note that the satisfaction u/s 153C of the Act has been recorded by the Assessing Officer in accordance with law. We note that on page 5 of the satisfaction note, it is clearly mentioned by the Assessing Officer that some of the loose papers from those files are belonged to Shri Rameshbhai R Bhadani and these papers have bearing on determination of his total income. We have also gone through the details of the documents mentioned in the satisfaction u/s 153C of the Act, wherein we find that quantification of the figures that is, amount of Rs.14,10,000 per sq.mt. in respect of 22,82 sq.yd land was mentioned. Hence, we observe that satisfaction note is in accordance with the provisions of section153C of the Act. We have also gone through the judgment relied upon by Ld. Counsel for the assessee in respect of satisfaction note and we observe that none of the judgment are applicable or defend the assessee’s case under consideration. Therefore, ground No.1 raised by assessee challenging the validity of assessment u/s 153C of the Act is dismissed. 39. Summarized and concise ground no.2 of assessee’s appeals is reproduced below for ready reference: “(2).The Assessee`s common grievance in IT(ss) No.30 and 31/SRT/2021 is that ld CIT(A) erred in sustaining addition on account of alleged unaccounted investment in the project La-Grand: (a)Ground No. 2 of IT(ss) No. 31/SRT/21, for A.Y.2013-14, addition of Rs.48,83,483/-. (b) Ground No. 2 of IT(ss) No. 30/SRT/21, for A.Y.2013-14, addition of Rs.48,83,483/-.” 40. To adjudicate this issue, we take lead case in IT(SS)A No.31/SRT/2021 (Rameshbhai R Bhadani). Brief facts qua ground No.2 of assessee`s appeal are that during the course of search at the residence of Shri Piyush G.Modi, a sauda chitthi dated 27.04.2012 was found and seized as page 15 to 18 of Annexure A-6 which is in respect of project La-Grand.In the said sauda chitthi, it has been stated that a total amount of Rs.21,00,00,000/- shall be brought in partners capital in the project La-Grand by the incoming partners i.e. the assessee, Shri Jayesh Mistry and Shri Dilip C Sojitra. The sauda chitthi further states that in case if, an Page | 43 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry additional amount of Rs.4,00,00,000/- is required to be introduced then the same shall be contributed by the old partners along with the new partners at an interest rate of less than 2% and if more than Rs.4,00,00,000/- is required then the same shall be borrowed from the shroffs on interest. In addition to the above, a diary has also been found and seized s Pg.1 to 10 of Annexure A-59 from the residence of Shri Piyush Modi which contained the notings of total payment of Rs.23,80,00,000/- as received by the old partner of La-Grand viz. Shri Vipul T Patel and its date-wise detail is reproduced on Pg 9 to 11 of the assessment order. The Assessing Officer on Pg 28 of the assessment order, has held that the old partner Shri Vipul T Patel has admitted to have received the said amount of Rs.23,80,00,000/- as mentioned in the seized diary from 3 persons i.e the assessee, Shri Jayesh Mistry and Shri Dilip C. Sojitra out of which, Rs.21,00,00,000/- was received as capital and balance of Rs.2,80,00,000/- was received as loan. The assessee in his statement recorded by the DDIT(Inv.)- 1,Surat on 13.05.2014, in reply to Question no.22 to 26, admitted that he along with his partner Shri Jayesh Mistry had contributed Rs.15,05,00,000/- towards the project La-Grand from the amount received back on cancellation of the deal for the land at Dumas. The balance amount of Rs.6,00,00,000/- towards the capital was stated to have been contributed by Shri Dilip C Sojitra. It was further explained that there were some legal issues in the land of the project La-Grand and hence, the project La-Grand was shelved and the deal was cancelled and the investment of Rs.15,05,00,000/- was received back. 41. During the course of assessment proceedings, the Assessing Officer asked the assessee to show cause as to why 1/3 rd share in the total unaccounted investment of Rs.23,80,00,000/- in the project La-Grand should not be made in the hands of the assessee as per the diary found and seized as Pg1 to 10 of Annexure A-59. 42. In reply, the assessee explained the Assessing Officer that he and Shri Jayesh Mistry vide their companies Creative Trendz Pvt. Ltd., and R.J. Square Link Pvts.Ltd., had invested capital of Rs.15,05,00,000/- in the project La-Grand, out of which the source of which Rs.14,88,99,700/- stands explained as income Page | 44 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry being disclosed and offered to tax in the hands of the said 2 companies. Thus, there was a discrepancy of only Rs.16,00,300/- (i.e.Rs.15,05,00,000 – Rs.14,88,99,700) which works out to Rs.8,00,150/- (Rs.16,00,300/2) in the hands of the assessee being 50% share. As regards, the loan of Rs.2,80,00,000/- given in the project La-Grand, the assessee explained that he and Shri Jayesh Mistry contributed only towards the capital and did not make any contribution towards the loan of Rs.2,80,00,00/- given in the said project. The Assessing Officer accepted the explanation of the assessee that the investment of Rs.14,88,99,700/- stands explained through the disclosure made by the 2 companies of the assessee and from the sales proceeds of Dumas land. However, the Assessing Officer as discussed on Pg.27 to 34 of the assessment order, did not accept the contention of the assessee that he and Shri Jayesh Mistry had not contributed in the loan of Rs.2,80,00,000/- given to La-Grand. The Assessing Officer divided the total investment of Rs.23,80,00,000/- in the project La-Grand in 3 equal parts i.e. Rs.7,93,33,333/- each in the hands of the assessee, Shri Jayesh Mistry and Shri Dilip C Sojitra. From the said 1/3 rd share of investment of Rs.7,93,33,333/- in the project La-Grand in the hands of the assessee, the Assessing Officer allowed 50% share of the disclosure of Rs.14,88,99,700/- to the assessee i.e. Rs.7,44,49,850/- (Rs.14,88,99,700 /2) and made balance addition of Rs.48,83,483/- (Rs.7,93,33,333- Rs.7,44,49,850) as unexplained investment by the assessee in the project La-Grand. 43. On appeal, ld CIT(A) confirmed the action of the assessing officer. Aggrieved, the assessee is in further appeal before us. 44. Learned Counsel for the assessee submits before us that learned AO as well as the learned CIT(A) have even failed to appreciate that in the statement dated 13-05-2014, as recorded u/s. 131 of the Act, during the post search proceedings, the assessee, out of the total capital contribution of Rs.21,00,00,000/- in the project, La-Grand, had accepted capital contribution as made by him and Shri Jayesh Mistry at Rs. 15,05,00,000/- in equal share and there was no acceptance of funding of any loan by him. The ld Counsel further submitted that even in the seized diary, there is no signature of the assessee of Page | 45 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry having given any amount to Shri Vipul T. Patel towards the project La-Grand and the said evidence has also not been found from their possession. Therefore, addition was made based on dump documents, which require to be deleted. 45. On the other hand, the Ld. DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer, which we have already noted in our earlier para and is not being repeated for the sake of brevity. 46. We have heard both the parties and perused the materials available on record. We find merit in the submission of ld Counsel that in the seized diary, there was no signature of the assessee of having given any amount to Shri Vipul T. Patel towards the project La-Grand, therefore addition should not be made in the hands of the assessee. The ld Counsel submitted before us reconciliation statement along with written submission, which is reproduced below: “The learned AO as well as the learned CIT(A) have also failed to consider the fact on record that Shri Dilip C. Sojitra is engaged in the business of finance not only as per the statement of Shri Dilip C. Sojitra and Shri Piyush G. Modi, as recorded u/s. 132(4), but even from the material seized that Shri Dilip C. Sojitra used to borrow loans from open market at a lower rate and finance the same at a higher rate to other persons and for which addition u/s. 68 already stands made in his hands for loans borrowed. Thus, the source of the additional amount of Rs. 2.80 crores as given in the form of loan for the project, La-Grand stands well and truly explained as being made by Shri Dilip C. Sojitra and not by the assessee, who had only contributed towards the capital. In conclusion, it is most humbly submitted that the learned AO has grossly erred in making addition of Rs. 48,83,483/- in the hands of the assessee, instead of an amount of Rs. 8,00,150/-, as already discussed herein before and the summary of which is once again given in the following table. Particulars Addition as per AO (Rs.) Addition to be reduced to (Rs.) Total payments made to Vipul T. Patel for project La-Grand - Towards capital 21,00,00,000 21,05,00,000 - Towards loan 2,80,00,000 -- 23,80,00,000 21,05,00,000 1/3 rd share of the asessee in total payment of Rs. 23.80 Crores as taken by the AO 7,93,33,333 -- ½ share of the assessee in the total -- 7,52,50,000 Page | 46 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry capital contribution of Rs. 15.05 Crores, out of total of Rs. 21.05 Cr., as admitted in the statement u/s. 131 (Rs. 15,05,00,000 / 2) Less: 50% share in receipts from land at Dumas (Rs. 14,88,99,700 / 2) 7,44,49,850 7,44,49,850 Addition 48,83,483 8,00,150 The assessee filed a detailed written submission before the CIT(Appeals) which has been reproduced by the CIT(Appeals) at Para No 7.6 (Page No 34 to 38) on the above lines. The learned CIT(Appeals) confirmed the addition as per his findings given at Para No 12.4 on the basis of notes of the Special Auditor. Accordingly, before the assessing officer and before the CIT(Appeals), the assessee raised contentions that the assessee along with Shri Jayesh Mistry had contributed only Rs. 15,05,00,000/- towards capital in the project La-Grand and had not made any contribution towards loan of Rs. 2,80,00,000/-. The source of the investment of Rs. 15,05,00,000/- was explained to the extent of Rs. 14,88,99,700/-, leaving a total discrepancy of Rs. 16,00,300/- i.e. an amount of Rs. 8,00,150/- in the hands of the assessee being his 50% share. As regards the loan of Rs. 2,80,00,000/-, the assessee submitted that the same had been contributed by Shri Dilip C. Sojitra. Accordingly, the assessee pleads that the addition of Rs. 48,83,483/- as made, be restricted to Rs. 8,00,150/- being his 50% share in the unexplained capital of Rs. 16,00,300/- contributed in the project La-Grand.” 47. We have gone through the above reconciliation of the assessee and considered the submissions of ld DR for the Revenue. Even during the appellate proceedings, vide para 12.3 of order of ld CIT(A) on page no.88, the assessee explained as follows: “The source of the investment of Rs.15,05,00,000/- was explained to the extent of Rs.14,88,99,700/-, leaving a total discrepancy of Rs.16,00,300/- i.e. an amount of Rs.8,00150/- in the hands of the appellant being his 50% share.” 48. However, ld CIT(A) did not consider the submission of the assessee. The ld CIT(A) has to point out that above reconciliation submitted by the assessee is wrong. Just to say that assessee`s explanation is not acceptable, is not sufficient. Therefore, we direct the assessing officer to make addition of Rs. 8,00,150/- in the hands of Ramesh R. Bhadani and Rs. 8,00,150/- in the hands of Jayesh D Mistry. Therefore, common ground no.2 raised by assessees are partly allowed. Page | 47 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry 49. Summarized and concise ground no.3 of assessee’s appeals is reproduced below for ready reference: “(3) Ground No.3 of IT(ss) No. 31/SRT/21, for A.Y. 2013-14, the assessee`s grievance is that ld CIT(A) erred in sustaining addition of Rs.3,42,48,000/-, on account of unaccounted profit by the assessee from the project Triton.” 50. Succinct facts are that during the course of search at the residence of Shri Piyush G Modi, a sauda chitthi dated 14-08-2012 was found and seized as Pg. 28 of Annexure A-3, As per the said sauda chitthi, 10 showrooms in the project Tritron which was being developed by Shri Sandip naik and his firm M/s Blue Feathers, were agreed to be purchased by Shri Dilip C Sojitra for a total amount of Rs.32,43,56,000/- and as against the said purchase value of Rs.32.43 crores, Shri Dilip Sojitra had agreed to give his 10 bungalows in the project White House at village-Soyani, Bardoli for a total amount of Rs.6 crores. Accordingly, a net amount of Rs.26,53,56,000/- (Rs.32,43,56,000 – Rs.6,00,00,000) was payable by Shri Dilip C. Sojitra for 10 showrooms in the project ‘Tritron’. The said sauda chitthi for purchase is signed by Shri Dilip C. Sojitra as the purchaser and Shri Sandip Naik as the seller. In addition to the above, another sauda chitthi dated 09- 10-2013 has also been found and seized as Pg. 29 of Annexure A-3 from the residence of Shri Piyush Modi wherein the said 10 showrooms as purchased by Shri Dilip C Sojitra from Shri Sandip naik are returned back by Shri Dilip C Sojitra to Shri Sandip Naik and on which a profit of Rs.6,84,96,000/- has been agreed to be paid by Shri Sandip Naik to Shri Dilip Sojitra within 5 months in equal instalments. This sauda chitthi for returned back of the showroom has been signee by Shri Dilip C. Sojitra and also by the assessee as the sellers and Shri Sandip Naik as the purchaser. The Assessing Officer, on Pg. 34 of the assessment order, has discussed the above fact and has stated that as per the sauda chitthi dated 09-10-2013, it has been agreed to return back the 10 showrooms of project Tritron to Shri Sandip Naik on which profit of Rs.6,84,96,000/- is payable by Shri Sandip Naik to the assessee and Shri Dilip C Sojitra. Accordingly, the Assessing Officer asked the assessee to show cause as to why the amount of 50% of the said Page | 48 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry profit of Rs.6,84,96,000/- amounting to Rs.3,42,48,000/- should not be treated as the unaccounted income of the assessee. 51. In response, the assessee submitted before AO, the written submission and explained the Assessing Officer that in the seized sauda chitthi dated 14-08-2012, which is for the purchase of 10 showrooms in the project Tritron, there is signature of only Shri Dilip C. Sojitra as the purchaser and there is no signature or name of the assessee as the purchaser. Hence, in the event of the assessee not being the purchaser at all, there is no question of the assessee getting any profit on cancellation / return back of the said 10 showrooms in the project Tritron on was made by Shri Dilip C Sojitra with Shri Sandip Naik on 14-08-2012, however, since, 09-10-2013, the construction work of the project Tritron did not commence, the deal of purchase was cancelled between Shri Dilip Sojitra and Shri Sandip naik through the mediation of the assessee and as per the said mediation, Shri Sandip Naik agreed to give profit of Rs.6,84,96,000/- to Shri Dilip C Sojitra within a period of 5 months in equal installments by taking back the 10 showrooms. The assessee thus submitted that in the cancellation sauda chitthi dated 09-10-2013, he had only signed as a mediator. The assessee also submitted that even after signing the sauda chitthi, Shri Sandi Naik has not made any payment to Shri Dilip Sojitra and accordingly, no evidence whatsoever of any payment being made by Shri Sandip Naik has been found or seized during the course of search in the form of vouchers, receipts, diaries etc. 52. However, Assessing Officer has rejected the contention of the assessee and held that as per the seized sauda chitthi dated 09-10-2013, the profit of Rs.6,84,96,000/- to be given by Shri Sandip Naik, is to be shared by Shri Dilip C Sojitra and the assessee and the said sauda chitthi is even signed by the assessee and hence, the Assessing Officer has made an addition of 50% of the total profit of Rs.6,84,96,000/- amounting to Rs.3,42,48,000/- ( 50% of Rs.6,84,96,000) in the hands of the assessee as unaccounted income from the project Tritron. 53. On appeal, ld CIT(A) confirmed the action of the assessing officer, therefore assessee is in further appeal before us. Page | 49 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry 54. Learned Counsel for the assessee submits before us that in the sauda chitthi dated 14-08-2012 for purchase of 10 showrooms in the project Tritron, there is no name or signature of the assessee and thus, it is explicitly clear that the assessee has nothing to do with the purchase of the said 10 showrooms in the project Tritron. Thus, in the event of the showrooms not being purchased by the assessee, there is no question of the assessee earning any profit on cancellation / return thereof. Moreover, the sauda chitthi dated 09-10-2013 for cancellation / return back of the 10 showrooms to Shri Sandip Naik has been signed by the assessee only as a mediator. The ld Counsel also contended that even the 10 bungalows in the project White House at Bardoli which are given by Shri Dilip C Sojitra to Shri Sandip Naik in exchange for purchase of 10 showrooms in the project Tritron, does not belong to him but belongs to the family members of Shri Dilip Sojitra which also proves beyond doubt that the deal for purchase was made by Shri Diliip C Sojitra only and not by the assessee. The ld Counsel also submitted that neither there is any evidence in the seized material that the assessee had received any money from Shri Sandip naik nor there is any statement of Shri Sandip Naik that he had given any such amount to the assessee or even to Shri Dilip C Sojitra. The ld Counsel also relied upon the findings of the special auditor as given in the special audit report of DCS, AUM etc., dated 31- 08-2016 wherein the special auditor has clearly stated that the sauda chitthi dated 14-08-2012 for booking of 10 showrooms was entered into between Shri Dilip C Sojtra and Shri Sandip Naik and a Bana amount of Rs.11,00,000;/- was paid on the same date. The special auditor has further reported that the said project Tritron has not operationalized and the sauda was cancelled in October 2013 and the compensation profit has since then not been received. Accordingly, the ld Counsel pleaded that addition of Rs.3,42,48,000/- being 50% of the profit of Rs.6,84,96,000/- in respect of the cancellation / return back of the 10 showrooms in the project Tritron as made in his hands by the AO may be deleted. 55. On the other hand, the Ld. DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer, which we have already noted in our earlier para and is not being repeated for the sake of brevity. Page | 50 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry 56. We have heard both the parties and gone through the findings of the AO, the submissions of the assessee, the copy of the seized material, the various documentary evidences submitted by the assessee before the AO and the findings of the special auditor as contained in his report dated 27-08-2016 in the case of the assessee. We note that in the sauda chitthi for purchase of 10 showrooms in the project Tritron dated 14-08-2012, there is signature of only Shri Dilip C Sojitra as a buyer and Shri Sandip Naik as the seller. The assessee had signed the cancellation sauda chitthi only as a mediator. In this regard, the ld Counsel explained that assessee had not purchased the 10 showrooms in the project ‘Triton’ but the same had been purchased by Shri Dilip C. Sojitra, as is clearly evidenced by the seized purchase sauda-chitthi dated 14-08-2012.The ld Counsel thus contended that when assessee was not the purchaser of the 10 showrooms in the project ‘Triton’ as per the seized sauda-chitthi, there was no question of getting any profit on the sale thereof. The ld Counsel also explained that the 10 bungalows offered in the project ‘White House’ does not belong to him but belongs to the family members of Shri Dilip C. Sojitra and hence, even on this count, it gets proved that the said deal of purchase of 10 showrooms in the project ‘Triton’, was entered by Shri Dilip C. Sojitra himself. 57. As regards assessee`s signature in the another seized sauda-chitthi for sale, the ld Counsel explained that the construction of the project ‘Triton’ did not commence as promised by Shri Sandip Naik, which resulted into a dispute between Shri Sandip Naik and Shri Dilip C. Sojitra, which was resolved by the assessee by acting as a mediator, whereby, Shri Sandip Naik agreed to give a profit of Rs. 6,84,96,000/- to Shri Dilip C. Sojitra, by buying back the said 10 showrooms and returning the 10 bungalows in the project ‘White House’. The said amount of profit was agreed to be paid by Shri Sandip Naik to Shri Dilip C. Sojitra, in 5 equal monthly installments of 20% each, commencing after Diwali. Now, only because the said sauda-chitthi was executed through the mediation of the assessee, he had put his signature along with Shri Dilip C. Sojitra. The learned AO was thus explained the fact that when the assessee had not purchased the said 10 showrooms, there was no question of receiving any profit on the return back Page | 51 IT(SS)A Nos.25, 31, 45, 26 & 30/SRT/2021 A.Ys.13-14 & 14-15 Rameshbhai R Bhadani & Jayeshkumar D Mistry thereof. The learned AO was also explained that subsequent to Diwali, the construction of the said project ‘Triton’ did not commence and thus, Shri Sandip Naik was not able to make any payment towards profit, even to Shri Dilip C. Sojitra. We note that no person can get profit on sale or cancellation of any property if, he is not the buyer of the said property and thus, in this case, when it is fact on record proved by the seized material itself that the assessee was not a buyer as per the seized sauda-chitthi, the question of taking any profit on cancellation of the deal, does not arise. Therefore, based on this factual position, we delete the addition of Rs.3,42,48,000/-. 58. In the result, summarized and concise ground No.3 is allowed. 59. In combined result, all appeals of Revenue are dismissed, whereas assessees appeals are partly allowed. Registry is directed to place one copy of this order in all appeals folder / case files. Order is pronounced in the open court on 15/07/2022 by placing the result on the Notice Board as per Rule 34(5) of the Income Tax (Appellate Tribunal) Rule 1963. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr/Surat Ǒदनांक/ Date: 15/07/2022 Dkp Outsourcing Sr.P.S/**SAMANTA** Copy of the Order forwarded to: 1. The Assessee 2. The Respondent 3. The CIT(A) 4. Pr. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // True Copy // Assistant Registrar/Sr. PS/PS ITAT, Surat