1 ITA No.7060-61/Mum/2016 Assessment Year :2007-08 IN INCOME TAX APPELLATE TRIBUNAL BENCH, MUMBAI , , BEFORE HON BLE SHRI MAHAVIR SINGH, JM AND HON BLE SHRI MANOJ KUMAR AGGARWAL, AM ITA No.7060/Mum/2016 (6 7 7 Assessment Year: 2007-08) DCIT-Central Circle-8(4) Shri Nathamal M.Sharma 6th Floor. Room No. 658 (Prop. Of Shree Maruti Mishthan Bhandar) Baba Bhagwandas Ka Akhada Aaykar Bhawan M.K.Road Vs. Banganga, Walkeshwar Road Mumbai 400 020 Mumbai 400 006 9 PAN/GIR No. APMPS-2091-E (Appellant) : (Respondent) ITA No.7061/Mum/2016 (6 7 7 Assessment Year: 2007-08) DCIT-Central Circle-8(4) Amrut Hotels Private Limited 6th Floor. Room No. 658 C/o Hanuman Mishthan Bhandar Aaykar Bhawan Baba Bhagwandas Ka Akhada M.K.Road Vs. Banganga, Walkeshwar Road Mumbai 400 020 Mumbai 400 006 9 PAN/GIR No. AAAC A-4801-G ( !/Appellant) : (Respondent) Assessee By : Shri S.C.Tiwari & Ms. Rutuja Pawar-Ld. ARs Revenue By : Shri Satish Chandra Rajore- Ld. DR 06/08/2019 Date of Hearing : 21/08/2019 Date of Pronouncement 2 ITA No.7060-61/Mum/2016 Assessment Year :2007-08 ORDER Manoj Kumar Aggarwal (Accountant Member): - 1. Aforesaid appeals by Revenue for Assessment Year [AY] 2007-08 with respect to different assessees contest separate orders of Ld. first appellate authority on certain common grounds of appeal. Since grievance of revenue arises out of common set of facts and circumstances, both appeals are disposed-off together by way of this common order for sake of convenience and brevity. ITA No.7060/Mum/2016 2.1 Aggrieved by order of Ld. Commissioner of Income Tax (Appeals)-50, Mumbai [CIT(A)], revenue is under appeal with following grounds of appeal: - On facts and in circumstances of case and in law ld CIT(A) erred in deleting addition of Rs.2,00,00,000/- on account of surrender of tenancy rights without appreciating fact that during course of assessment proceedings, assessee could not produce any evidence to establish that contents of e- mail were not true. 2.2 Facts in brief are that assessee being resident individual was assessed for impugned AY u/s 143(3) read with Section 147 on 27/01/2015 wherein income for assessee was determined at Rs.405.99 Lacs after certain additions of Rs.2 Crores under head capital gains on account of surrender of tenancy right in certain property. 2.3 reassessment proceedings got triggered pursuant to search and seizure action u/s 132 of Income Tax Act, 1961 on Phoenix Group on 20/02/2008 wherein email print-out was found which was seized and inventorized as Page No. 145 of Annexure-1 of Panchnama dated 21/02/2008. As per document, assessee along with 3 ITA No.7060-61/Mum/2016 Assessment Year :2007-08 another entity namely M/s Amrut Hotel Private Ltd. agreed to surrender tenancy rights in favour of M/s Phoenix mills Limited for consideration of Rs.8 Crores and agreed to vacate premise on or before 30/06/2006 under certain terms. However, said transaction was recorded in books of two entities at Rs.4 Crores. said fact led learned AO to trigger reassessment proceedings against assessee as per due process of law by issuance of notice u/s 148 on 25/07/2014. 2.4 During reassessment proceedings, assessee defended its stand by submitting that email document did not pertain to him and at same time, pleaded for examination of persons on whom department was relying upon to make addition of Rs.2 Crore. However, not convinced with assessee s submissions, Ld. AO invoking presumption of Section 132(4A) against assessee, rejected plea of cross-examination as raised by assessee. Finally, differential amount of Rs.2 Crore, being alleged cash component pertaining to assessee, was added to income of assessee for surrender of tenancy rights under head Capital Gains. 3. Aggrieved, assessee, while challenging legality of reassessment proceedings, contested additions on merits before Ld. first appellate authority vide impugned order dated 24/08/2016. Although Ld. CIT(A) upheld reassessment proceedings, however, deleted quantum additions by following decision of Tribunal in case of M/s Phoenix Mills Limited deleting addition of Rs.4 Crores made u/s 69C, by observing as under: - 6.4.1 It can be seen from order of Hon ble ITAT in ITA No.7271/M/2012 in case of PML that Hon ble ITAT has held that assessing officer in case of PML could not bring sufficient material on record to justify addition in 4 ITA No.7060-61/Mum/2016 Assessment Year :2007-08 case of PML and therefore, addition made in case of PML was not sustainable. 6.4.2 I find that Assessing Officer in case of appellant relied on exactly same piece of evidence and same reasoning for making addition which is subject matter of this appeal. I also find that AO has not even brought on record who was sender of e-mail and to whom it was sent. Further, e- mail was found in premises of PML and therefore, its evidentiary value is much more when used against PML than its evidentiary value when used against third party (appellant). 6.4.3 In view of finding of Hon ble ITAT in case of PML, I hold that addition made in case of appellant is not sustainable. Accordingly, I delete addition of Rs.2,00,00,000/-. In result, 2nd ground of appeal is allowed. operative part of Tribunal s decision in case of M/s Phoenix Mills Limited has already been extracted in impugned order and therefore, not extracted here to avoid duplication and repetition. Aggrieved, revenue is in further appeal before us. 4. After hearing rival submissions, undisputed position that emerges is fact that addition of Rs.4 Crores made u/s 69C in hands of payer i.e. M/s Phoenix Mills Limited stood deleted by Tribunal for want of requisite evidences / material vide ITA No. 7271/Mum/2012 order dated 19/08/2015. This being case, addition in hands of payee also could not be sustained. Nothing on record would suggest that aforesaid ruling is not applicable or same has been reversed in any manner, by any higher judicial authority. Therefore, stand of Ld. first appellate authority, in our considered opinion, was quite logical one and we find no reason to interfere with same. In result, we dismiss appeal. ITA No. 7061/Mum/2016 5. Facts are pari-materia same for this assessee wherein similar addition of Rs.2 Crores has been made in assessment framed u/s 143(3) read with Section 147 on 28/01/2015. learned first appellate 5 ITA No.7060-61/Mum/2016 Assessment Year :2007-08 authority has deleted addition, inter-alia, by relying upon decision of this Tribunal in case of payer. Therefore, facts and circumstances being identical, our finding and conclusion, shall mutatis mutandis apply to this appeal also. Accordingly, by confirming stand of learned CIT(A) in impugned order, we dismiss appeal. Conclusion 6. Both appeals stand dismissed. Order pronounced in open court on 21st August, 2019. Sd/- Sd/- (Mahavir Singh) (Manoj Kumar Aggarwal) Judicial Member Accountant Member Mumbai; Dated : 21/08/2019 Sr.PS, Jaisy Varghese Copy of Order forwarded to : 1. Appellant 2. Respondent 3. CIT(A) 4. CIT concerned 5. DR, ITAT, Mumbai 6. Guard File BY ORDER, (Dy./Asstt.Registrar) ITAT, Mumbai. DCIT-Central Circle-8(4), Mumbai v. Nathamal M.Sharma