Third-party statements and documents cannot be used to make additions without independent corroborating evidence linking them to the assessee.

आदेश/ORDER

PER AMIT SHUKLA (J.M):

The aforesaid appeal has been filed by the Revenue against order dated 27/03/2024 passed by ld. CIT(A)-54, Mumbai for the quantum of assessment passed u/s.143(3) for the A.Y.2021-22.

2. In the grounds of appeal Revenue has challenged the deletion of addition of Rs.80,00,000/- made u/s.69C on account of alleged cash payment made by assessee to Shri Shailendra Rathi.

3. The facts in brief are that assessee filed his return of income on 15/03/2022 declaring total income of Rs.4,37,06,390/-. A search and seizure action u/s.132 was conducted in case of some middle men / business men group on 23/09/2021 in which assessee was also covered u/s.132. Accordingly, the assessee’s case was selected for compulsory scrutiny and notice u/s. 143(2) was issued on 29/06/2022. Ld. AO noted that in the course of search proceedings at the residence of Shri Shailendra Rathi at Flat no. 203, Building No B-3, Kumar Parisar, Near Mahesh Vidyalaya, New DP Road, Kothrud Pune 411038, certain incriminating evidences were found from WhatsApp chat in the mobile phone of Shri Shailendra Rathi. These chats were between Shri Shailendra Rathi and Shri Nilesh Toshniwal wherein Shri Rathi has texted to Shri Toshniwal “@ received 80”. Shri Shailendra Rathi in his statement recorded on oath dated 24.09.2021 u/s. 132(4) of the Act, explained the said message in the reply of Q. No. 32 of his statement and stated that they have received Rs. 80 lakh in cash through Shri Ashok Luniya, the contact given by Shri Nilesh Toshiniwal. The Statement of Shri Shailendra Rathi recorded on oath u/s. 132 (4) dated 26.09.2021 was confronted to the assessee wherein the assessee has stated that he is not aware of any such transaction nor does he have any business relation with Shri Ashok Luniya. Ld. AO noted that Shri Nilesh Toshniwal and Shri Shailendra Rathi were working in tandem and were exchanging documents and information with respect to various transactions. The assessee has clearly stated that he has no business relationship either with Shri Ashok Luniya nor he is aware of any such transaction. The assessee also denied the transaction or any connection with any such message or transaction either with Shri Shailendra Rathi or with Shri Ashok Luniya or with Shri Nilesh Toshniwal. The assessee’s reply in response to show- cause notice has been incorporated from pages 4-5 of the assessment order. AO also noted that Shri Shailendra Rathi has retracted from his statement, which AO has rejected. The assessee also submitted that as per WhatsApp message the transaction pertains to A.Y. 2020-21 and cannot be taxed for the year under consideration. i.e., A.Y. 2021-22, but AO held that, Shri Shailendra Rathi during the search proceedings categorically admitted that he has received Rs.80,00,000 on 19/07/2020 which falls A.Y. 2021-22and he also denied cross examination of Shri Shailendra Rathi or Shri Nilesh Toshniwal. AO made addition after observing as under:-

“5.10 The assessee has Shailendra Rathi is not connected to his business in anyway In this connection, it is to state that evidences have been found during the search proceedings in respect of other issues establishing that both Shri Nilesh Toshniwal and Shri Shailendra Rathi were communicating with each other and were exchanging the documents which are in the nature of various cash transactions. Thus, the assessee imply that Shri Shailendra Rathi is not connected to his business is not acceptable

5.11 Shri Toshniwal has been found to working on the directions of Shri Jayant Shah. Therefore, in absence of any plausible explanation, the payment received by the Rucha group from the friend of Shri Jayant Shah is considered to be payment made by Shri Jayant Shah through Shri Nilesh Toshniwal. Accordingly, amount of Rs. 80 Lakh is added in the han