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2019 (4) TMI 1306 - AT - Income TaxAssessment u/s 153C r.w.s. 153A - proof of incriminating material found in search - HELD THAT:- Assessing Officer of the searched Company only stated that he was satisfied that sheet numbered 18-19 of the Annexure A/CPL/01 belonged to the assessee but failed to mention that these papers do not belong to the search Company namely M/s. Coastal Projects Ltd. Before the provisions of Section 153C of the said Act can be invoked, the Assessing Officer of the searched person must be satisfied that the seized material (which includes documents) does not belongs to the person referred to in Section 153A (i.e., the searched person). As in PEPSI FOODS PVT. LTD. VERSUS. ASSISTANT COMMISSIONER OF INCOME TAX [2014 (8) TMI 425 - DELHI HIGH COURT] had stated that the normal presumption is that the document found during the search belongs to the person on whom the search was conducted. Therefore, it is for the Assessing Officer of the searched person to rebut that presumption and come to a conclusion or 'satisfaction' that the document in fact belongs to somebody else. It is necessary that before the provisions of Section 153C of the said Act can be invoked, the Assessing Officer of the searched person must be satisfied that the seized material (which includes documents) does not belongs to the person referred to in Section 153A (i.e., the searched person). Since the Hon’ble Jurisdictional High Court decisions mentioned above is in favour of the assessee, the Assessing Officer of the search Company namely DCIT, Central Circle-4, Hyderabad, in the Satisfaction Note had not stated that the seized material do not belong to the searched person. Therefore, based on the above decisions of the Hon’ble Jurisdictional High Court, the issue of notice under section 153C of the Act to the assessee had to be considered as illegal and as a result, Ld. CIT(A) has rightly allowed the legal grounds raised by the assessee, hence, we do not find any infirmity in the action of the Ld. CIT(A), therefore, we uphold the action of the Ld. CIT(A) on the legal issues and dismissed the legal grounds raised by the Revenue. Undisclosed income - sale of property - HELD THAT:- Assessing Officer presumed that the assessee had received the entire consideration of ₹ 6,45,00,000/-, though the seized document only indicates that there was some negotiations for the sale of property bearing No. Sector-65, Noida and there is no indication in it of any definite transaction. There is no mention in the assessment order about the date of sale or any detail regarding the sale transaction. The seized document also indicates the possibility of M/s. Coastal Projects Ltd. acquiring the Company M/s. Humming Birds Solution Pvt. Ltd. which had the property at C-l, Sector-65, Noida. Since it is clearly mentioned in the assessment order that ₹ 70,00,000/- of the consideration was paid by cheque, the Assessing Officer should have at least traced this cheque payment. If there was evidence that the cheque of ₹ 70,00,000/- was received by the assessee Sh. Gulshan Kumar Sethi, then there was some basis for considering that the assessee had received the entire sale consideration of ₹ 6,45,00,000/- for transferring the property either through a sale deed or through the outright transfer of the shares of the Company. In the absence of any such concrete evidence, the addition of ₹ 6,45,00,000/- on the assessee is based only on assumptions and thus, not sustainable. AO had failed to carry out any enquiries to find out the actual recipient / recipients of ₹ 6,45,00,000/- from M/s. Coastal Projects Ltd before adding the above sum as assessee’s undisclosed income. In the absence of any concrete evidence, to indicate that the assessee had received the sum of ₹ 6,45,00,000/- from M/s. Coastal Projects Ltd., Ld. CIT(A) has rightly deleted the addition of ₹ 6,45,00,000/- made by the AO, which does not need any interference on our part, hence, we uphold the order of the Ld. CIT(A) on this issue and dismiss the ground raised on the merits of the case. - Decided against revenue
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