ORDER : BHARGAV D. KARIA, J. 1. Heard learned advocate Ms. Nupur D.Shah for the appellant and learned Senior Standing Counsel Mr. Varun Patel for the respondent. 2. By this appeal filed under section 260A of the Income Tax Act,1961 [for short ‘the Act’] the appellant has proposed the following substantial questions of law arising out of the common Judgement and Order dated 25.10.2024 passed by the Income Tax Appellate Tribunal [for short ‘the Tribunal’]in IT (SS) Appeal No. 201/Ahd/2013 for the Assessment Year 2008-09 in case of the appellant along with other individuals who are partners of the Firm-M/s. Uma Shakti Corporation. “a. Whether the addition made under Section 69 of the Act, 1961 for unexplained investment is justified when there is no direct evidence linking the petitioner to the alleged cash payments, and where the payments were shown to have been made by other partners of the firm? b. Whether the assumption of an equal division of the alleged cash payment (on-third each) among the three partners, despite the petitioner having a 23% share in the partnership, and there being a total of eight members, is legally justified, especially in the absence of supporting evidence? c. Whether the ITAT erred in confirming the entire addition based solely on the operative part of the CIT(A)’s order without considering the full factual and legal context, including the documents and judgements that support the petitioner’s position? d. Whether the ITAT erred in confirming the addition in hands of the partners when the partnership firm Uma Shakti Residency has already paid the due taxes on the unaccounted collection from members which were utilized for making investment in land?” 3. Brief facts of the case are as under : 3.1 There was a search action under section 132 of the Act on 04.03.2010 at the residential premises of one Shri Vikas R. Patel. During the course of search, Memorandam of Understanding dated 07.04.2007 was found and seized pertaining to the land at Chandlodiya. As per the said MOU, Shri Brijesh S. Patel and Shri Mahendra D. Patel agreed to purchase the land situated at Final Plot No. 32 IT-29 of Survey Nos. 217/1 and 218/2, Chandlodia from Shri Anilkumar Darji, Shri Amitkumar Patel and Shri Narendra R. Patel (second party) @ Rs. 10,171/- per Sq.Yard. As per the said MOU, Shri Brijesh S. Patel and Shri Mahendra D. Patel agreed to purchase the land situated at Final Plot No. 32 IT-29 of Survey Nos. 217/1 and 218/2, Chandlodia from Shri Anilkumar Darji, Shri Amitkumar Patel and Shri Narendra R. Patel (second party) @ Rs. 10,171/- per Sq.Yard. As per the statement of Shri Vikas R. Patel recorded on the day of search, the unaccounted payment to the tune of Rs. 2.50 Crore in cash was made. A registered sale deed for the land was executed @ Rs. 20 Lakhs between Shri Anilkumar Darji, Shri Amitkumar Patel and Shri Narendra Patel (sellers) and M/s. Uma Shakti Residency (Buyer) on31.10.2007. 3.2 During the course of assessment proceedings with regard to issue of unaccounted cash payment of Rs. 2.50 Crore, it was claimed by the assessee that the source of cash payment was out of unaccounted collection received from client of the assessee-Firm for Uma Shakti Corporation Residency Project. It was claimed that the payment of Rs. 2.50 Crore including cheque of Rs. 20 Lakh was given to the land owners against the land payment. The Assessing Officer, after considering the detailed submissions dated 29.12.2011 by the assessee, made an addition in the hands of the appellant being Rs. 54,33,333/- i.e. 33% of 1.63 Crores made for acquisition of land. 3.3 Being aggrieved, the appellant along with other partners preferred an Appeal before the CIT (A). The CIT (A) held that the partnership firm did not exist prior to 20.10.2007 and protective addition in the case of the Firm was deleted. Accordingly, the substantive addition in the hands of the three partners was confirmed to the tune of Rs. 47,66,666/-. 3.5 Being aggrieved, the appellant along with other partners preferred appeal before the Tribunal. The Tribunal, after considering the submissions made by the appellant vide order dated 08.11.2021, held as under: “After considering the fact of the case, material on record and fining of the Id. CIT(A) as elaborated above, we observed that it is undisputed fact that the partnership firm Uma Shakti Corporation Residency had come into existence on 22.10.2007. The three persons Shri. Vikas R. Patel, Shri Brijesh S. Patel and Shri Dipak G. Prajapati as per the seized document A-1/13 have made unaccounted cash payments to the seller of the land on the different dates as mentioned above in the findings of the ld. CIT(A). The three persons Shri. Vikas R. Patel, Shri Brijesh S. Patel and Shri Dipak G. Prajapati as per the seized document A-1/13 have made unaccounted cash payments to the seller of the land on the different dates as mentioned above in the findings of the ld. CIT(A). These facts and evidences categorically demonstrate that the firm was not in existence till such payment were made. Receipt of on money cannot be started by the firm before its existence. The firm would launch the residential project on acquisition of the land and the client would start making payment on approval of the project plan. We have gone through these affidavits referred by the Id. counsel and noticed that there is no specific information of the particular date on which the contribution in cash was made by such clients. There is no receipt issued as acknowledge of payment made by the clients. Without project plan and other relevant documents evidences the claim of the assessee on the basis of some affidavit cannot overrule the material fact that without the existence of the firm and project such claim is an afterthought and not tenable. The assessee failed to produce other supporting evidences and we find that subsequent affidavit filed appears to be nothing but an afterthought exercise to cover the unexplained cash payment even before the existence of the firm. Therefore, we do not find any merit in the ground no.2 of appeal of the assessee and the same stands dismissed.” 3.6 The appellant with the other partners of the Firm preferred Misc. Application No. 10/AHD/22, M.A Nos. 24 &, 25/Ahd/2022, MA No. 26/Ahd/2022 and MA No. 28/Ahd/2022 to recall the order dated 08.11.2021 passed by the Tribunal on the ground that the Tribunal did not adjudicate the specific issue regarding adjudicating the quantum of addition to be made in the hands of the partners on account of unexplained investment. 3.7 The Tribunal, by the order passed in Misc. Application, on 24.07.2024 partly recalled the order dated 08.11.2021 observing that the crux of the issue lies in the affirmation by the Tribunal of the decision of the CIT (A) taxing profit derived from unaccounted receipt @30% for the Assessment Years 2009-10 and2010-11. The Tribunal in the Misc. Proceedings observed that the facts on record indicated that the assessee-Firm has collected total tax of Rs. 3 Crore from its members out of which Rs. The Tribunal in the Misc. Proceedings observed that the facts on record indicated that the assessee-Firm has collected total tax of Rs. 3 Crore from its members out of which Rs. 2.5 Crore was paid to the land owner. It was argued before the Tribunal that only Rs. 50 lakh should have been classified as assessable income of the Firm which had already been disclosed and contrary to the Tribunal’s affirmation of estimation of net profit based on 30% of unaccounted receipts, it was noted by the Tribunal that the Departmental Representative responded to the assertion of the assessee but did not contest the factual basis presented and instead, suggested that acknowledging such argument would effectively involve review of the order of the Tribunal. The Tribunal disagreed with the submissions of the Departmental Representative and held that the facts highlighted by the assessee had not been contradicted by the Revenue and it was observed that the Tribunal in its earlier order, failed to consider all relevant facts when calculating income derived from on-money received particularly the fact that substantial payment of Rs. 2.5 Crores was made to the land owners. Hence, the Tribunal, by order dated 24.07.2024, concurred with the assessee that there was an error in the order dated 08.11.2021 for not adequately addressing the issue based on the facts presented. 3.8 After recalling the order partly, the Tribunal passed the impugned order dated 25.10.2024 partly allowing the appeal filed by the appellant in respect of addition of Rs. 41 Lakh pertaining to the Assessment Year 2007-2008. With regard to the ground of not allowing the deduction made for purchase of land from the profit of the project, the Tribunal observed that on-money received by the assessee for the impugned years under consideration, the Firm had made payment of Rs. 2.50 Crore to the land owners and therefore, the said amount was liable to be deducted from on-money receipts of the assessee for the Assessment Years 2009-10 and 2010-11. However, for the Assessment Year 2008-09 is concerned, the Tribunal, by recording facts, held as under: “14. The brief facts of the case are that search operation conducted on March 4, 2010, at the residence of Shri Vikas R. Patel. During this search, a memorandum of understanding (MOU) dated April 7, 2007, was seized, which detailed an agreement concerning the purchase of land in Chandlodia. The brief facts of the case are that search operation conducted on March 4, 2010, at the residence of Shri Vikas R. Patel. During this search, a memorandum of understanding (MOU) dated April 7, 2007, was seized, which detailed an agreement concerning the purchase of land in Chandlodia. According to this MOU, Shri Brijesh S. Patel and Shri Mahendra D. Patel (the first parties) had agreed to acquire land from Shri Anil Kumar G. Darji, Shri Amit Kumar K. Patel, and Shri Narendara R. Patel (the second parties) at a rate of Rs. 10,171/- per square yard. During the assessment proceedings, Shri Vikas R. Patel admitted to making an unaccounted cash payment of Rs. 2.5 crores. This was notable as a registered sale deed indicated a much lower sale price of Rs. 20 lakhs for the land in question. The assessee submitted before the Assessing Officer that the funds were sourced from unaccounted collections from clients of the firm involved in the Uma Shakti Residency project. The assessee stated that the Rs. 2.5 crore payment included cheques totaling Rs. 20 lakhs paid to the landowners. A detailed submission dated November 29, 2011, was made, asserting that funds collected from clients for additional work on the project were used to pay the landowners. The firm claimed to have begun collecting funds from members of M/s. Shakti Corporation (UTAP) on January 20, 2007, and that these funds were utilized for part payments to landowners. Additionally, the firm noted that bookings for their project commenced shortly before the MOU, thereby justifying their financial dealings. However, the Assessing Officer rejected these claims, stating that no evidence of unaccounted receipts related to the Uma Shakti Residency project was found during the search. The affidavits submitted by the assessee's clients did not specify the dates of the cash contributions, and the attached ledgers lacked signatures from the clients, suggesting they were prepared without proper verification. The Assessing Officer further indicated that since the firm was established only on October 22, 2007, it was implausible for clients to have contributed cash before that date. The Assessing Officer also noted the absence of an approved project plan, which weakened the statement that clients could choose flats for a non-existent project. Consequently, the Assessing Officer dismissed the cash flow statement provided by the assessee as a fabrication meant to conceal the unaccounted investment. The Assessing Officer also noted the absence of an approved project plan, which weakened the statement that clients could choose flats for a non-existent project. Consequently, the Assessing Officer dismissed the cash flow statement provided by the assessee as a fabrication meant to conceal the unaccounted investment. The Assessing Officer calculated the unexplained cash paid at Rs. 163 lace after deducting of Rs. 87 lakhs from the total consideration of Rs. 2.5 crores. The Assessing Officer has also reduced payment of Rs. 20 lakhs paid by cheque by the Uma Shakti Corporation towards purchase of land and the remaining amount of Rs. 1.43 crore was held as paid by the erstwhile partners of the assessee firm. The Assessing Officer has made addition @ Rs. 47,66,666/- each in the cases of Shri. Vikash R. Patel. Shil Brijesh S. Patel and Shri Dipak G. Prajparti. 15. In appeal before CIT(A), he affirmed/held that the partnership firm did not exist prior to October 20, 2007, and deleted the protective addition related to the firm. However, the substantive additions made to the partners' incomes were upheld, totaling Rs. 4.76 crores across the three partners. 16. In appeal to ITAT, the Tribunal concurred with the CIT(A)'s conclusion that the firm was not in existence when the cash payments were made to land sellers. The ITAT was of the view that it was established that on- money payments could not commence before the firm's formation. The Tribunal scrutinized the Affidavits presented by the assessee and noted the lack of specific details regarding cash contributions, the absence of payment receipts, and the overall absence of supporting documentation. The claims made by the assessee were deemed to be an afterthought aimed at addressing the unexplained cash payments made before the firm's establishment. Accordingly, the Tribunal found no merit in the appeals and upheld the earlier decisions regarding the unaccounted cash payments, confirming that the assessments made by the Assessing Officer and the CIT(A) were justified. 17. The assessee filed MA against the order of ITAT. The ITAT observed that the Counsel for the assessee highlighted a mistake in the previous Tribunal order regarding the addition of unexplained cash payments. The Counsel for the assessee submitted that this amount was apportioned equally among the three partners at 33% each. However, the Counsel for the partners pointed out that Rs. The ITAT observed that the Counsel for the assessee highlighted a mistake in the previous Tribunal order regarding the addition of unexplained cash payments. The Counsel for the assessee submitted that this amount was apportioned equally among the three partners at 33% each. However, the Counsel for the partners pointed out that Rs. 41 lakhs of this payment had been made in the preceding financial year, indicating that it should not nave been included in the taxable income for the current year. The ITAT in the Miscellaneous Application proceedings observed that learned Departmental Representative (DR) acknowledged this point during the proceedings, agreeing that the issue needed to be evaluated in light of the provisions of the Income Tax Act, which dictate that additions related to unexplained investments should reflect the year in which the payments were actually made. Consequently, the Tribunal recalled the earlier order of ITAT dated 08-11-2021 by observing that the inclusion of Rs. 41 lakhs in the current year's taxable income was indeed erroneous and had not been properly addressed / examined in their earlier order. Additionally, the Counsel for the assessee partners highlighted another mistake in order of ITAT, noting that while the cash payment to the landowners was attributed to all three partners, the Memorandum of Understanding (MOU) seized during the search explicitly named only one partner, Shri Brijesh Sukhdevbhai Patel, in connection with the cash payment. The Counsel for the assessee assessee partners further contended that there were actually eight partners in the firm, yet the cash payment was solely attributed to three individual partners without any rationale for this selective attribution. The DR agreed that there was a lack of justification for the proportionate addition of the unaccounted investment across the partners, further emphasizing the apparent inconsistencies in the earlier ruling. Given the DR's concessions regarding these errors in the Tribunal's order, the Tribunal recalled the earlier order of ITAT for re-adjudicated to assess the appropriate attribution among the partners involved.” 4. After considering the submissions made by both sides, the Tribunal held as under: “19. However, we are unable to agree with the contention of the Counsel for the assessee that the CIT(A) erred in facts and in law in making the additions only in the hands of three partners i.e. Shri Vikas R. Patel, Shri Brijest S. Patel and Shri Dipak Prajapati. However, we are unable to agree with the contention of the Counsel for the assessee that the CIT(A) erred in facts and in law in making the additions only in the hands of three partners i.e. Shri Vikas R. Patel, Shri Brijest S. Patel and Shri Dipak Prajapati. We observe that in the assessment order, the AO has noted that vide assessee’s submission dated 23.12.2011, the assessee have itself submitted that the main partners of both the projects viz. UTAP and UTRE are only the three partners namely Shri Vikas R. Patel, Shri Brijesh S. Patel and Shri Dipak G. Prajapati. It was submitted by the assessee that it was only these partners to had utilized the funds received from UTAP and UTRE projects for making payments towards purchase of land. Accordingly, it was keeping in view these particular facts wherein the Department has observed specifically that it was only these three operational partners who were in charge of the affairs of the company that the addition was made in the hands of these three partners. Accordingly, we find no infirmity in the order of Ld CIT(A) in confirming the additions in the hands of these three partners only. 20. Further, on going through the facts of the instant case, all the other grounds raised by the assessee are hereby dismissed since we find no infirmity in the order of Ld. CIT(A) so as to call for any interference. Further, we also observe that vide order dated 24.07.2024, the earlier order of ITAT dated 08.11.2021 was recalled only to adjudicate on these specific issues relating to year of taxability of Rs. 41 Lakhs and on the issue of appointment on quantum addition on account of unexplained investment in the hands of the respective partners. In the proceedings paragraphs accordingly, we have directed deletion of a sum of Rs. 41 Lakhs on the ground that this addition does not pertain to the impugned year under consideration and on the issue of apportionment of the addition in the hands of three partners, we are of the considered view that looking into the instant facts, wherein it has been observed that it was only these three partners who were at the helm of the affairs of the partnership firm we find no infirmity in the order of Ld. CIT(A) in upholding the order of the AO where proportionate amount was added in the hands of these three partners. Our findings in the preceding paragraphs shall be treated as part of the substituting or modifying our earlier orders dated 08.11.2021 and IT (SS) A Nos. 196/Ahd/2013, IT (SS)A No. 201/Ahd/2013 and ITA No. 1001/Ahd/2013 and IT(SS)A Nos. 197 and 198/Ahd/2013.” 5. Learned advocate Ms. Nupur Shah for the appellant submitted that the Tribunal has committed an error in confirming the order passed by the CIT (A) and did not assign any reason for upholding the findings of the CIT(A). It was pointed out that the Departmental Representative, during the course of hearing of the Misc. Application, has submitted the written notes in which it was clearly admitted that name of the appellant is not appearing in the MOU and only names of Shri Brijesh Patel and Shri Narendra Patel are mentioned who had made the payment for purchase of the land and as per the seized material, the contention of the appellant that he did not make any cash payment was accepted by the departmental representative. It was therefore, submitted that the Tribunal could not have uphold the order passed by the CIT whereby the addition made in the hands of the appellant by the Assessing Officer is confirmed. It was submitted that the Tribunal has failed to consider the issue after recalling the order by reiterating only the fact that it was only the appellant and other two partners had utilized the funds received from the project for making payment towards purchase of land. 5.1 It was therefore, submitted that the impugned order of the Tribunal is liable to be quashed and set aside. 6. Having heard learned advocates for the appellant it appears that the Tribunal has considered in detail the order passed by the CIT (A) in its order dated 08.11.2021 and after partly allowing the Misc. Application filed by the appellant, the order dated 08.11.2021 was recalled partly so as to consider the quantum of addition to be made in hands of the appellant. The appellant has not challenged the order dated 08.11.2021 which has achieved finality. Application filed by the appellant, the order dated 08.11.2021 was recalled partly so as to consider the quantum of addition to be made in hands of the appellant. The appellant has not challenged the order dated 08.11.2021 which has achieved finality. In such circumstances, the Tribunal has only considered the quantum of the addition to be added in the hands of the appellant and when the Tribunal has arrived at a findings of fact relying upon the facts found by the CIT (A) to the effect that the appellant alongwith two other partners namely Shri Vikas Patel and Shri Brijesh Patel had utilized the funds received from the projects for making payment towards purchase of land and it was only these three professional partners who were in charge of the firm. Therefore addition made by the CIT (Appeal) was upheld by the Tribunal after adjudicating that the amount of taxability of Rs. 41 Lakh pertaining to the Assessment Year 2007-08 was deleted. In such circumstances, when there are concurrent findings of fact, we are therefore of the opinion that no question of law much less any substantial question of law arises from the impugned order of the Tribunal. The appeal being therefore devoid of any merit, is accordingly dismissed.