DCIT-Central, Bhopal V. Shri Sudhir Kumar Agrawal, Bhopal

ITSSA 95/Ind/2020

AI Insights

The case involves an appeal by the revenue against the order of the CIT(A) which had deleted several additions made by the AO under sections 69 and 69B of the Income Tax Act, 1961, concerning alleged on-money payments and undisclosed cash payments related to land purchases by the assessee, Shri Sudhir Kumar Agarwal, for the assessment year 2011-12. The Tribunal examined the procedural and substantive aspects of the additions, including the reliance on the broker's statement without cross-examination and the lack of incriminating documents seized during the search. The Tribunal found procedural lapses in the additions made and upheld the CIT(A)'s decision in most respects, except for the protective addition of Rs. 30,00,000, which was remanded for further examination.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 130455 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 9 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 17-05-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-11-2022
• Assessment Year: 2011-2012
• Appeal Filed On: 13-08-2020
• Other Referred Cases: Suo Motu Writ Petition (C) No. 3 of 2020
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Document seized; Cost of acquisition; Documents seized
• Section: 131; 69; 132; 143(3); 153A; 69B; 13; 153C

Judgement Text

Page 1 of 13 आयकर अपीलीय अिधकरण, इंदौर ायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER IT(SS)A No. 95/Ind/2020 Assessment Year: 2011-12 DCIT, Central-II, Bhopal बनाम/ Vs. Shri Sudhir Kumar Agarwal, E-2/4, Arera Colony, Bhopal (Appellant / Revenue) (Respondent / Assessee) PAN: AASPA9450A Assessee by Shri Sumeet Neema, Sr. Advocate Shri Gagan Tiwari, Advocate, Ld. AR Revenue by Shri P.K. Mishra, Ld. CIT-DR Date of Hearing 17.11.2022/22.02.2023 Date of Pronouncement 18.05.2023 आदेश / O R D E R Per B.M. Biyani, A.M.: Feeling aggrieved by a consolidated appeal-order dated 02.03.2020 passed by learned Commissioner of Income-Tax (Appeals)-3, Bhopal [“Ld. CIT(A)”], which in turn arises out of a consolidated assessment-order dated 27.02.2014 passed by learned DCIT, Central, Bhopal [“Ld. AO”] u/s 153A read with 143(3) of Income-tax Act, 1961 [“the Act”], to the extent it concerns Assessment-Year [“AY”] 2011-12, the revenue has filed this appeal on following grounds: “1. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs. 24,50,000/- and Rs. 30,00,000/- made by the A.O. on account of on money payment. Shri Sudhir Kumar Agarwal ITA No.95/Ind/2020 Assessment year 2011-12 Page 2 of 13 2. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.20,51,000/- made by the A.O. on account of undisclosed cash payment. 3. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.64,45,000/-, Rs.64,92,000/-, Rs. 39,56,000/-, Rs. 27,00,000/-, Rs. 10,00,000/- and Rs. 5,25,000/- made by the A.O. on account of on money payment against land purchase. 4. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.6,80,000/- made by the A.O. on account of unexplained investment u/s 69B of the Income Tax Act, 1961.” 2. Heard the learned Representatives of both sides at length and case- records perused. 3. The registry has informed that the present appeal is filed after a delay of 7 days and therefore time-barred. Ld. DR prayed that the delay has occurred due to Covid-19 Pandemic. Ld. DR further placed reliance on the order of Hon’ble Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020 read with Misc. Applications, by which suo motu extension of the limitation-period for filing of appeals w.e.f. 15.03.2020 under all laws has been granted and hence there is no delay in fact. We confronted Ld. AR who agreed to the submission of Ld. DR. In view of this, the appeal is proceeded for hearing, there being no delay. 4. Brief facts leading to present appeal are such that a search u/s 132 was conducted on 21.10.2011 upon one “Sagar Group” of Bhopal and the assessee is also clubbed as a part of that group. Pursuant to search, assessments of six years from AY 2006-07 to 2011-12 were framed u/s 153A/143(3) and AY 2012-13 was framed u/s 143(3). Present appeal relates to AY 2011-12 for which the AO made assessment u/s 153A/143(3) at a total income of Rs. 2,94,91,550/- after making several additions. The assessee carried matter in appeal, contested those additions and succeeded. Now, the revenue has come in next appeal before us assailing the order of Shri Sudhir Kumar Agarwal ITA No.95/Ind/2020 Assessment year 2011-12 Page 3 of 13 first appellate authority. We shall proceed to decide various grounds in seriatim one by one. Ground No. 1 – First Part: 5. In first part of ground No. 1, the revenue claims that the CIT(A) has erred in deleting the addition of Rs. 24,50,000/- made by AO on account of on-money payment. 6. Facts apropos to this addition are such that during search, the authorities found that the assessee purchased a land measuring 15.5 acres situated at Khasra No. 126, 127, 179 & 180, Babariya Kala, Bhopal from Shri Muinuddin through broker Shri Ram / Pramod Yadav on 30.09.2010 for Rs. 55,50,000/-. During post-search enquiry, DDIT(Inv), Bhopal issued summon u/s 131 to broker and recorded his statement on 20.01.2012 wherein he admitted that the deal was made for Rs. 75,00,000/- but the registry was made for Rs. 55,50,000/- only. Based on such statement, the AO framed a view that the assessee has paid on-money of Rs. 24,50,000/- in cash. When the AO confronted assessee, the assessee denied having made any payment of on-money. However, the AO relied heavily upon the statement of broker and made addition u/s 69. 7. During first-appeal, Ld. CIT(A) deleted the addition by making a lengthy discussion in Para No. 4.2.2 to 4.2.4 of his order. Ld. CIT(A) accepted various contentions of assesssee, namely (i) the AO has made addition solely on the basis of statement of broker recorded by DDIT(Inv), Bhopal and no statement of seller was recorded; (ii) no opportunity of cross- examination of broker was afforded to assessee, which is a serious flaw and renders the addition illegal; (iii) the statement of broker is a mere oral evidence which cannot take preference over the registered sale-deed certifying the consideration of Rs. 55,50,000/-; and (iv) nothing is brought on record to establish that the assessee had in fact paid on-money, therefore the addition is on mere presumption and assumption. During first-appeal, Shri Sudhir Kumar Agarwal ITA No.95/Ind/2020 Assessment year 2011-12 Page 4 of 13 Ld. CIT(A) analysed the facts aptly and relying upon certain judicial rulings as mentioned in his order, came to a conclusion that the addition made by AO was not sustainable; accordingly deleted the addition. 8. Before us, Ld. DR placed a heavy reliance upon the order of AO, as against which Ld. AR relied upon the order of CIT(A). We have considered rival submissions of both sides and perused the orders of lower-authorities. After a careful consideration, we find that the sole basis of addition available to the AO is the oral statement of broker recorded by DDIT(Inv) and there is no other material or evidence. But neither the DDIT(Inv) nor the AO has provided any opportunity for cross-examination of those statements to assessee. In fact, Ld. AR strongly submitted that the statements have been recorded in total absence and without knowledge of assessee. It is a well- settled law in numerous rulings that the statements recorded in absence of assessee and without giving opportunity of cross-examination to assessee, does not have any legal force and cannot be used as evidence to draw conclusion against assessee. As a matter of fact, we also find that the statements which have been relied upon by AO, are of the broker and not of the seller of land. We find that neither the DD(Inv) nor the AO has taken any pain to make any enquiry whatsoever from the seller of land. Further, there is no proof of any cash payment made by assessee. Faced with these serious infirmities, we are of the considered view that the addition made solely on the basis of statement of broker recorded at the back of assessee without providing any opportunity of cross-examination, is illegal, invalid and cannot be sustained in the eyes of law; therefore the CIT(A) has rightly deleted the addition made by AO. We do not find any infirmity in the order of CIT(A) and uphold his action. With this, the first part of ground No. 1 relating to addition of Rs. 24,50,000/- is dismissed. Ground No. 1 – Second Part: Shri Sudhir Kumar Agarwal ITA No.95/Ind/2020 Assessment year 2011-12 Page 5 of 13 9. In second part of ground No. 1, the revenue claims that the CIT(A) has erred in deleting the addition of Rs. 30,00,000/- made by AO on account of on-money payment. 10. The precise facts relating to this addition, as gathered from orders of lower-authorities and pleadings made by learned representatives before us, are such that during assessment-proceeding, the AO found that a land measuring 3.62 acres situated at Khasra No. 157-164/1/2, 157-164/2, 157-164/4/1 was purchased by one “M/s Shri Agarwal Education and Welfare Society” through its President Shri Sudhir Agarwal (assessee) from Smt. Ramadevi Smriti Shikshan Sansthan, Bhopal (Secretary Shri Virendra Shrivastava) on 28.03.2011 for Rs. 2,36,00,000/-. Summon u/s 131 was issued to Shri Virendra Shrivastava and his statement were recorded wherein he averred that an amount of Rs. 30,00,000/- was paid in cash over and above the consideration declared in registry. Based on his statement, a substantive addition of Rs. 30,00,000/- was made u/s 69 in the hands of “M/s Shri Agarwal Education and Welfare Society” and simultaneously a protective addition of the same amount was also made in the hands of Sudhir Agarwal (assessee). 11. During first-appeal, Ld. CIT(A), however, deleted addition by observing that the substantive addition made in the hands of “M/s Shri Agarwal Education and Welfare Society” had already been deleted in their first- appeal No. CIT(A)-3/BPL/IT-291 to 296/2014-15 order dated 16.07.2018. 12. Before us, Ld. DR placed a heavy reliance upon the order of AO, as against which the Ld. AR relied upon order of CIT(A). We have considered rival submissions of both sides. On a careful consideration, we find that the Ld. CIT(A) has given relief by placing reliance upon the order dated 16.07.2018 in CIT(A)-3/BPL/IT-291 to 296/2014-15 (supra) whereby the substantive addition made in the hands of “M/s Agarwal Education & Welfare Society” has been deleted. We have carefully perused the order of Shri Sudhir Kumar Agarwal ITA No.95/Ind/2020 Assessment year 2011-12 Page 6 of 13 CIT(A)-3/BPL/IT-291 to 296/2014-15 (supra) to ascertain as to why the substantive addition made in the hands of “M/s Agarwal Education & Welfare Society” was deleted. For a better clarity, we extract below the finding/conclusion given by CIT(A) in that order: “Discussion and appellate decision: 11.5 Submissions filed by appellant inter alia material brought on record have been duly considered in the light of remand report submitted by the Ld. A.O. Ground# 10 of A.Y. 2011-12 is relating to alleged “on-money payment” of Rs. 30,00,000/- for purchase of land claimed to be purchased by appellant society. Ld. AO during assessment proceedings observed that a land was purchased by appellant through its president Shri Sudhir Agrawal admeasuring 3.64 acres bearing khasara no. 157-164/1/2, 157- 164/2, 157-164/4/1 from Smt. Ramadevi Smrti Shikshan Sansthan, Bhoipura, Bhopal (through its secretary Shri Virendra Shrivastava) on 28.03.2011 for a total sale consideration of Rs. 2,36,00,000/-. Summons u/s 131 were issued to seller, in response Shri Virender Shrivatava, secretary of society, attended on behalf of society and in his sworn statement recorded on oath before A.O. he admitted that an amount of Rs. 30,00,000/- was received in cash over and above registry amount of Rs. 2,36,00,000/- at the time of registry from Agrawal Educational & Welfare Society through its director Shri Sudhir Agrawal. Since this “on money payment” remained unexplained, the same was added in the hands of society on ‘substantive basis’ and in the hands of Shri Sudhir Agrawal on ‘protective basis’ u/s 69 of the Act. However, appellant during appellate proceedings has strongly contended that no such land was purchased by M/s Agrawal Educational & Welfare Society from Smt. Ramadevi Smriti Shikshan Sansthan and no on-money was paid to the seller by the assessee. In support, appellant has filed a copy of impugned registry (sale deed), wherein it is reflected that the said land under consideration was sold by Smt. Ramadevi Smriti Shikhan Sansthan, Bhoipura, Bhopal to Shri Agrawal Educational and Cultural Society and not to the appellant society. Although the said sale added document has been signed by Shri Sudhir Agrawal, as director of Shri Agrawal Education & Cultural Society. Ld. AO in his remand report has acknowledged this fact but has vehemently contended that if it is held that ‘on-money’ payment has not been made by the assessee society, then it should be sustained in the hands of Shri Sudhir Agrawal as it was he who made the on money payment to Shri Virendra Shrivastava as categorically stated by him in his statement. After considering the factual matrix and remand report submitted by AO inter alia material brought on record, I find a considerable force in the contention of the appellant that since no transaction has been materialized between the assessee society and seller Smt. Ramadevi Smriti Shikhan Sanasthan and no addition should be logically made in the hands of Shri Sudhir Kumar Agarwal ITA No.95/Ind/2020 Assessment year 2011-12 Page 7 of 13 appellant on substantive basis. On perusal of the copy of impugned registry it is seen that Ld. A.O. failed to appreciate the facts correctly while making the addition of Rs. 30,00,000/- on the basis of the said impugned registry which was actually executed between M/s Shri Agrawal Educational and Cultural Society (as buyer) and Smt Ramadevi Smriti Shikhan Sansthan (as seller), the appellant is not at all the party to the said transaction . It is evident from the copy of bank account of Shri Agrawal education and Cultural Society with bank of India (copy filed) that entire sum of disclosed sale consideration of Rs. 2,36,00,000/- is reflected in their bank account. It is settled principle that unaccounted money follows the accounted money. In other words, it has to be presumed that the person who has made the payment of accounted money must have made the unaccounted payment also. In view of the fact that statement of seller remained uncontroverted which is a good and conclusive evidence to conclude that ‘on-money’ must have been paid in the impugned transaction source of which remained unexplained. Further, Ld. A.O has requested that the addition made on protective basis in the hands of Shri Sudhir Agrawal may be sustained for which Ld. AR of the assessee submitted that Shri Sudhir Agarwal is a working chairman of the appellant society. The above transaction has been done for society in fiduciary capacity as a chairman and not as an individual and the transactions involved are also his personal transactions and the same should be deleted. Since the case of Shri Sudhir Agrawal is not before me for adjudication, therefore, it is neither appropriate nor lawful to issue any direction about addition made in his case. Nevertheless, Ld. AO is directed to make addition on substantive basis of Rs. 30,00,000/- in the case of M/s Shri Agrawal Education and Cultural Society in the relevant assessment year keeping in view the provisions u/s 150 of the Act. In view of the foregoing discussion, it is proved beyond doubt that Ld. AO has erred in making addition on account of on-money payment for alleged purchase of land from Smt Ramadevi Smriti Shikhan Sansthan which assessee did not purchase, the addition made by the AO to the tune of Rs. 30,00,000/- u/s 69 of the Act is hereby ordered to be deleted because addition is totally unwarranted in this case. Ground # 10 for AY 2011-12 is allowed subject to direction given above.” 13. On a careful reading, we observe that the CIT(A) has deleted substantive addition in the hands of “M/s Shri Agarwal Education and Welfare Society” on the footing that the impugned land was purchased by “M/s Shri Agrawal Education and Culture Society” and not by “M/s Shri Agarwal Education and Welfare Society”. Further, the CIT(A) has also directed the AO u/s 150 of the act to make addition of Rs. 30,00,000/- on substantive basis in the hands of “M/s Shri Agrawal Education and Culture Society”. Thus, substantive-addition is shifted from “M/s Shri Agarwal Shri Sudhir Kumar Agarwal ITA No.95/Ind/2020 Assessment year 2011-12 Page 8 of 13 Education and Welfare Society” to “M/s Shri Agrawal Education and Culture Society”. As regards Shri Sudhir Agarwal (assessee), the order clearly mentions that he was Chairman of “M/s Shri Agrawal Education and Culture Society” as well. Thus, the position of Shri Sudhir Agarwal (assessee) remains status quo. Therefore, at this stage we are not inclined to delete the protective addition made in the hands of Sudhir Agarwal (assessee). We are of the view that it would be more appropriate to remand this issue back to the file of AO for ascertaining the status of substantive- addition of Rs. 30,00,000/- in the hands of “M/s Shri Agarwal Education and Culture Society” and thereafter take a final call on the protective addition in the hands of assessee. While doing so, the AO shall give proper opportunity to assessee to make submissions and the AO shall consider those submissions, if any, made by assessee in accordance with law. With this, the second part of Ground No. 1 relating to addition of Rs. 30,00,000/- is allowed for statistical purpose. Ground No. 2: 14. In this ground, the revenue claims that the CIT(A) has erred in deleting the addition of Rs. 20,51,000/- made by AO on account of undisclosed cash payment. 15. Facts relating to this addition are such that during the course of search, a document inventorised as “LPS-4/51-Page No. 141” was seized which demonstrated that the assessee has made a cash payment of Rs. 20,51,000/- towards purchase of a land measuring 26.62 acres situated at Gram Simrai, District–Raisen, on 18.11.2010. The said document is scanned by AO at Page No. 82 of the assessment-order. During post-search proceedings, the statement of sellers were recorded wherein they too admitted having received cash of Rs. 20,51,000/- from assessee. Further, the factum of cash-receipt by sellers was also corroborated with the cash- deposits made by sellers in their bank accounts. Based on these evidences, Shri Sudhir Kumar Agarwal ITA No.95/Ind/2020 Assessment year 2011-12 Page 9 of 13 Ld. AO confronted the assessee as to the source of payment. In response, the assessee submitted that the said cash payment was made out of withdrawal from his partnership firm M/s Agarwal Builders. The assessee also submitted cash-book of partnership firm. However, the Ld. AO was not satisfied with the reply of assessee mainly for the reason that the books of account of firm were not complete at the time of search. Finally, the AO treated the impugned payment as unexplained and made addition u/s 69. During first-appeal, Ld. CIT(A) deleted addition by accepting assessee’s explanation on the basis of copy of Cash-Book and Copy of Capital A/c of assessee extracted from the books of account of firm filed before him. 16. Before us, Ld. DR supported the order of AO as against which the Ld. AR defended the order of CIT(A). We find that the assessee has consistently made an identical explanation before both of the lower-authorities i.e. the impugned payment was made by withdrawal from partnership firm. Further, the assessee has also placed on record the copy of cash-book of firm as well as his Capital A/c extracted from the books of firm in which the impugned withdrawal is debited. Thus, the assessee has clearly explained the source of payment of Rs. 20,51,000/-. The explanation of assessee is fully supported by documentary evidences which could not be rebutted by revenue. Therefore, in our view, the CIT(A) is fully justified in deleting the addition taking into account those documentary evidences. We do not find any infirmity in the action of CIT(A). This ground is, thus, dismissed. Ground No. 3 and Ground No. 4: 17. In ground No. 3, the revenue claims that the CIT(A) has erred in deleting the addition of Rs. 64,45,000/-, 64,92,000/-, 39,56,000/-, 27,00,000/-, 10,00,000/- and 5,25,000/- made by AO on account of on- money payment. Further, in ground No. 4, the revenue claims that the CIT(A) has erred in deleting the addition of Rs. 6,80,000/- made by AO on account of unexplained investment u/s 69B. Shri Sudhir Kumar Agarwal ITA No.95/Ind/2020 Assessment year 2011-12 Page 10 of 13 18. Taking lead on these issues, Ld. AR instantly pointed out that these additions were made in the hands of assessee on protective basis and the same were substantively added in the assessment of M/s Sagar Manufacturers Pvt. Ltd. However, on appeal by M/s Sagar Manufacturers Pvt. Ltd, the CIT(A) has already deleted all these additions fully and the order of CIT(A) has also been upheld by ITAT Indore in IT(SS)A No. 111/Ind/2019 dated 31.08.2022; therefore the protective additions made in the hands of assessee cannot survive. Ld. DR could not object to this submission of Ld. AR. 19. On perusal of the order in IT(SS)A No. 111/Ind/2019 (supra), we find that the impugned additions made substantively in the hands of M/s Sagar Manufacturers Pvt. Ltd. stand fully deleted by Hon’ble Co-ordinate Bench of ITAT, Indore. For the sake of immediate reference, we re-produce below the order of ITAT: “Revenue’s IT(SS)A No. 111/Ind/2019: 3. This appeal relates to assessment-year 2011-12 whose assessment has been made u/s 153C read with section 143(3) of the act. Precisely stated the facts relevant to this appeal are such that the assessee is a company. A search u/s 132 of the act was conducted on various premises of Sagar Group on 21.10.2011/22.10.2011 wherein certain documents relating to the assessee were found. No search was, however, conducted on the assessee and therefore the assessee is not a “searched person”, although the assessee falls within the framework of “other person” for the provisions of the act. Accordingly, treating the assessee as “other person”, the Ld. AO issued notice u/s 153C dated 11.09.2013 for making assessment. Since the assessee-company was incorporated on 12.11.2010 and it had only purchased lands but not commenced actual business activities during the year, the assessee filed Income-tax Return [“ITR”] declaring a total income of Rs. Nil. The Ld. AO, however, completed assessment u/s 153C read with section 143(3) after making a total addition of Rs. 2,17,98,000/- as per details given below: On-money payment against purchase of land 64,45,000 On-money payment against purchase of land 64,92,000 On-money payment against purchase of land 39,56,000 Shri Sudhir Kumar Agarwal ITA No.95/Ind/2020 Assessment year 2011-12 Page 11 of 13 On-money payment against purchase of land 27,00,000 On-money payment against purchase of land 10,00,000 On-money payment against purchase of land 5,25,000 Unexplained investment u/s 69B being difference of prevailing market value of land and cost of acquisition 6,80,000 4. Aggrieved by order of assessment, the assesse filed appeal to Ld. CIT(A). During appellate proceeding, the Ld. CIT(A) deleted all additions. Now, the revenue has come in appeal before us challenging the action of Ld. CIT(A), on the following Grounds: “(1) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.64,45,000/- made by Assessing Officer on account of on-money payment of against land of the Income Tax Act,1961 (2) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.64,92,000/- made by Assessing Officer on account of on-money payment of against land of the Income Tax Act,1961 (3) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.39,56,000/- made by Assessing Officer on account of on-money payment of against land of the Income Tax Act,1961 (4) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.27,00,000/- made by Assessing Officer on account of on-money payment of against land of the Income Tax Act,1961. (5) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.1 0,00,000/- made by Assessing Officer on account of on-money payment of against land of the Income Tax Act,1961 (6) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.5,25,000/- made by Assessing Officer on account of on-money payment of against land of the Income Tax Act,1961. (7) On the facts and in the circumstances of the case, ld. CIT(A) erred in deleting the addition of Rs.6,80,000/- made by the Assessing Officer on account of unexplained investment u/s 69B of the Income Tax Act, 1961. (8) The appellant reserves his right to add, amend or alter the grounds of appeal on or before the date, the appeal is finally heard for disposal.” 5. Ld. DR placed a heavy reliance upon the order of Ld. AO. Referring to the various pages of assessment-order, the Ld. DR submitted that the assessee has purchased lands from various sellers and the department Shri Sudhir Kumar Agarwal ITA No.95/Ind/2020 Assessment year 2011-12 Page 12 of 13 has recorded statements of those sellers, wherein it was revealed that the assessee has paid on-moneys to the sellers in cash. Ld. DR submitted that the payments of on-money are neither mentioned in the registered-deeds nor recorded in the books of account of assessee. Ld. DR contended that in such a situation where the payment of on-money is clearly confirmed by sellers, the Ld. AO had a sound basis to make additions. Therefore, the additions must be upheld. 6. Per contra, the Ld. AR appearing on behalf of assessee, critically analysed the assessment-order passed by Ld. AO. Ld. AR referred to Para 3 of the assessment-order where the Ld. AO has cited a list of various documents seized during the course of search-proceeding. Ld. AR submitted that the seized documents are in the nature of registered sale- deeds of the lands purchased by the assessee, site-maps, receipts of fee paid to Govt. offices, letters exchanged with Govt. offices, project-report, etc. Ld. AR submitted that none of these documents is an “incriminating document”. Ld. AR submitted that even the Revenue realized this glaring shortcoming and, therefore, conducted post-search enquiry by issuing summons to the sellers of land. Ld. AR submitted that the statements of the sellers were recorded after more than 2 months in such post-search enquiries and that too by DDIT(Inv), Bhopal and not by Ld. AO. Ld. AR further pointed out that neither the recording of statements was done in presence of assessee nor any opportunity of cross-examination was given to the assessee. Ld. AR submitted that except the statements of sellers recorded by Ld. DDIT(Inv), Bhopal, there is no basis available to the Ld. AO for making addition. With these submissions, Ld. AR summed up two-fold contentions, viz. (i) None of the documents seized during the search is an “incriminating document”. None of the additions has been made on the basis of seized document, the additions have been made on the basis of post-search enquiries. Such additions per se cannot be made in the proceeding of section 153C, and (ii) the revenue has made additions of alleged on-money payments on the basis of mere statements of sellers recorded by Ld. DDIT(Inv), Bhopal. Neither those statements were recorded by Ld. AO nor any opportunity of cross-examination was given to the assessee. Therefore also, the additions are not sustainable. 7. We have considered rival submissions of both sides, perused the material held on record and considered the relevant provisions of law. Firstly, we observe that the Ld. AR has successfully demonstrated that the seized-documents were in the nature of registered sale-deeds of the lands purchased by the assessee, site-maps, receipts of fee paid to Govt. offices, letters exchanged with Govt. offices, project-report, etc. which are not in the nature of “incriminating documents”. In fact, no addition has been made by the Ld. AO on the basis of these documents while completing assessment u/s 153C. We observe that revenue has made various additions on the basis of the oral-statements given by the sellers in post-search enquiries. Therefore, the additions are beyond the authority of section 153C per se and liable to deleted. Secondly, the only basis available to the Ld. AO for making additions, was the statements recorded by DDIT(Inv), Bhopal. Shri Sudhir Kumar Agarwal ITA No.95/Ind/2020 Assessment year 2011-12 Page 13 of 13 Neither those statements were recorded by Ld. AO nor any kind of opportunity of cross-examination was given to the assessee. Even the Ld. CIT(A) has also mentioned on Page No. 39 of his order “This is an admitted fact that statements of sellers were recorded by DDIT(Inv), Bhopal and not by the AO.” Thus, viewed from both angles, the additions do not have legs to stand. Being so, we do not find any infirmity in the action of Ld. CIT(A). We, therefore, uphold the action of Ld. CIT(A). Accordingly, the appeal of revenue being ITA No. 111/Ind/2019 is dismissed.” 20. Clearly, therefore, the Hon’ble Co-ordinate Bench has deleted the substantive additions after considering the factual as well as legal position. Consequently, the protective additions relating to those transactions made in the hands of assessee cannot survive. Therefore, we do not find any merit in these grounds of revenue and the same are hereby dismissed. 21. Resultantly, this appeal of revenue is partly allowed in terms as mentioned above. Order pronounced in the open court on 18/05/2023. Sd/- Sd/- (CHANDRA MOHAN GARG) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER Indore िदनांक /Dated : 18.05.2023 Patel/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order Assistant Registrar Income Tax Appellate Tribunal Indore Bench, Indore