TMI Blog2014 (11) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... ence was made to the assessee Mr.Suresh Nanda, much less any suggestion being made that Mr. Suresh Nanda was involved in defence deals or that he had earned any commission - the statement does not support the contentions of the Revenue that the assessee has earned commission - Dr.MV Rao has not admitted the ownership of the document found in his premises though the presumption is against him - In any event the documents have not been demonstrated as those which belong to the assessee by the Revenue - no addition can be made without further evidence being brought on record, that the documents in question actually did not belong to Dr.MV Rao, but in fact belong to the assessee - Addition cannot be made based on presumption – thus, the order of the CIT(A) is upheld – Decided against revenue. Unexplained investments made in M/s Claridges Hotels Pvt.Ltd. and in M/s Claridges SEZ Pvt. Ltd. – Held that:- As the assessee being a non-resident, there is evidence of dividend having been received by him outside India from a company incorporated outside India which is the source of investment in UBS Mauritius to the extent of 20% - Hence that income cannot be subjected to tax - There is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e’s own case for the earlier assessment year, it has been held that the addition cannot be upheld inasmuch as both were separated by way of deed of settlement dated 4-4-1998 and the payments based thereon on were already made - The addition has been made not based on any evidence or incriminating material, indicating that any payment was made out of books - The sole basis of addition is an assumption that there was some unwritten understanding between the assessee and his estranged wife Smt. Renu Nanda - lesser amount for support was paid by the assessee as compared to earlier years - the basis of addition being only on presumptions, there being no material what so ever, the addition is deleted – Decided against revenue. - ITA no. 2236/Del/2013, ITA no. 2601/Del/2013, ITA no. 2605/Del/2013, C.O. 165/Del/2013, ITA no. 2606/Del/2013, C.O.No.166/Del/13 - - - Dated:- 21-2-2014 - SHRI J.SUDHAKAR REDDY AND SHRI RAJPAL YADAV, JJ. For The Appellant :- Sh.Ajay Wadhwa, C.A. For The Respondent :- Sh. Ramesh Chand, CIT, D.R ORDER PER J.SUDHAKAR REDDY, AM ITA 2605/Del/13, ITA 2606/Del/13 and ITA 2601/Del/13 are filed by the Revenue. ITA 2236/Del/13 is filed by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esident. Some additions to the tune of ₹ 1,21,93,650/- were made by the AO in the assessment. 4.1. Aggrieved assessee challenged the same in first appeal, wherein they were deleted. On second appeal, by the Revenue, the ITAT dismissed the same by upholding the order of CIT(A), 4.2. In the meanwhile, on 22nd February, 2007, Delhi Police searched the premises of one Dr. M.V. Rao who was found to be impersonating himself as Scientific Advisor to the Prime Minister of India. Delhi police accordingly informed the Directorate of Income tax (lnv.) that during the course of search action on one Dr. M.V. Rao they have found cash amounting to Rs. two Crores lying at his Green Park house along with some incriminating papers. Consequent thereto, the Director of Income Tax (Inv.)-II, Delhi issued Warrant of Authorization under section 132 of the Income tax Act, 1961 for search seizure action at the premise of said Dr. M. V. Rao. 4.3. Subsequently, DIT (lnv) requested the Delhi Police to hand over photocopies of the documents seized by them. Search and seizure operations were also carried out at assessee's premises by income tax department on 28- 2-2007 along with one Shri M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e receipt of the amount mentioned in page 58 59. Thus, the commission income has been actually received in the hands of Sh. Suresh Nanda his Group. 4.9. On the basis of information received from Dr. M.V. Rao, similar search seizure operations were carried out in the premises of one Shri Mohan Jagtap and assessee. It resulted in seizure of some other papers and statement on oath of Shri Jagtap. 4.10. During the course of search proceedings a document in Russian Language was found seized as page no. 4, Annexure no. 2 from the residence of Sh. Mohan Sambhaji Jagtap on 28-2-2007. The Russian to English translation to this document was arranged during the course of assessment proceedings. 4.11. This document has been signed by Sh. Mohan Sambhaji Jacthap as the agent. The remittance has been made to the bank account of Globtech International Inc. According to the AO, a perusal of the above document it is amply clear that parts 53-65K worth US$384460 have been sold in India and on this sale the commission due of USD 38446 has to be paid to the account of Globtech International Inc. This is in accordance with an agreement dated 30.03.1998. The document bears a date stamp o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s-one admeasuring about 1100 acres in Karjat, Mumbai-Pune Expressway other about 280 acres of land in Panvel, Maharashtra. The first patch of land is owned by a company named as Claridges SEZ Pvt. Ltd. (formerly Tsunami Tech Pvt. Ltd.) and the second patch is owned by M/s Crown College Education Institutions Pvt. Ltd. M/s Claridges SEZ Pvt. Ltd. has obtained an in principle approval from Ministry of Commerce for establishing a multi product SEZ and M/s Crown College Education Institutions Pvt. Ltd., which is planning a multi disciplinary college or a Golf Course in the Pan vel land . 4.14. Assessing Officer inferred that on paper these companies were controlled by entities situated out side India or by the entities which were ultimately controlled by entities situated out side India. For example M/s Claridges Hotel Pvt. Ltd. is ultimately controlled by an entity situated in Mauritius by name of Universal Business Solutions, Port Louis, Mauritius, M/s Claridges Hotel Pvt. Ltd. in turn owns various subsidiary companies which own different properties. 4.15. On papers, though there appeared to be no connection between assessee and concerned Indian companies but their Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interests in India. The relevant portion of the statement is reproduced the below for ready reference Q.10. Please disclose your all movable assets including Bank accounts. FDRs, investment in banking, investment in capital market, investment in (P) Ltd. Company/ firm/ AOP etc. Ans. Jly bank accounts are as follows- Deutsche Bank, New Delhi NRO NRE ale Some FDRs in the State Bank of India, branch I don't remember Demat a/c with the ICICI Bank I have interest in following companies as a share holder: Crown Corporation (P) Ltd. Dynatron Services (P) Ltd. Cl India (P) Lt-Investment through Y2K Ltd., Mauritius Claridges Hotels (P) Lt-Investment made through Mauritius based company UBS. 4.21. Apropos C 1 India Pvt. Ltd, it was inferred that assessee controls the day to day functioning of the company. An e-mail from one Shri Vivek Aggarwal, President and CEO of C-l India Pvt. Ltd. was found and seized addressing his resignation to Sh. Suresh Nanda citing his inadequate compensation. This was construed to be indicting that assessee controlled the affairs of Cl India Pvt. Ltd. 4.22. Apropos the balance sheet and the Profit and Loss accounts of M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee who fails to qualify as a resident under Section 6 (l) of the Act will be regarded as a non-resident for all the purposes of the Income Tax Act 1961. Section 6 (1) of the Income Tax Act 1961 provides as under: - An individual is said to be resident in India in any previous year, if he: (a) is in India in that year for a period or periods amounting in .all to one hundred and eighty two days or more; or (b) . (c) having within the four years preceding that year been in India for a period or periods amounting in all to three hundred and sixty five days or more, is in India for a period or periods amounting in all to sixty days or more in that year. Explanation - In the case of an individual, (a) being a citizen of India, who leaves India in any previous year [as a member of the crew of an Indian ship as defined in clause (18) of section 3 of the Merchant Shipping Act, 1958 (44 of 1958), or] for the purpose of employment outside India, the provisions of sub-clause (c) shall apply in relation to that year. (b) being a citizen of India or a person of Indian origin within the meaning of Explanation to clause (e) of section 115C, who, being outside India, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf in India. In order to set off this disadvantage the legislature has provided in clause (b) of the Explanation that where an Indian citizen/person of Indian origin visits India in the previous year succeeding the year in which he became a non-resident, the rigor of clause (c) of section 6(1)is diluted to some extent by providing a relaxation for the assessment year succeeding the year in which he became a non-resident, namely, he will be treated as Non-Resident if he is in India for less than 182 days in that year. Thus, these amendments were brought to mitigate the hardship being faced by the non-resident assesses and was introduced to do away with the mischief which was inadvertently caused by earlier provisions. 4.32. Consequent to budgetary amendment in Finance Act, by way of explanatory notes a Circular of CBDT No 684 dated 10.06.1994 in this behalf was issued to clarify the meaning and purpose of amendment as under-- 19.2 Suggestions had been received to the effect that the aforesaid period of one hundred and fifty days should be increased to one hundred and eighty-two days. This is because the nonresident Indians, who have made investments in India, find it necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India' connotes some permanence abroad. It is for the benefit of the person who stays abroad and comes on a visit to India. The Assessee has been staying in India for approximately half of the year during the last ten - fifteen years. (c) The A.O referred to assesses profound social ties maintained in India with his son, wife and other relations and to keep control over Indian companies which were sufficient to hold that the assessee was inside India and a resident in India for all practical purposes. (d) The AO made reference to the renovation carried by the Assessee at his farm house in India to show that assessee was to be treated as inside India . 4.35. Consequently, AO made the additions in this behalf in all these years. Further assessee s residential status was changed from Non-Resident to Resident and thus the entire global income of the assessee was brought to tax in India. 3.0. The issues that comes for our determination in the impugned assessment year are the residential status of the assessee, and additions/disallowances in various AYs, pertaining to (a) commission income from defence deals; b) unexplained investments in Hotel Claridges; (c) Deposits i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Counsel of the assessee submits that the issue is in assessee s favour. 3.2. The Ld.D.R. filed detailed submissions which are extracted for ready reference: (B) Question of Residential status: 1. This issue is common for all the years involved under present appeal for Assessment Year 2004-05 to 2006-07. Very briefly the Assessing Officer has extracted the details of the period spent by the assessee in India which is as under: A.Y. No. of days in India No. of visits to India from abroad from different countries being UK, Singapore, Dubai, France, Thailand, Russia, Hongkong. * 2004-05 177 18 2005-06 155 16 2006-07 157 18 It be noted that assessee has huge business stakes in Mauritius still no visits to India from Mauritius. 2. The AO has inter alia pointed out that the interpretation sought to be given by the assessee to clause (b) of Explanation to Sec. 6(1)(c) cannot be accepted because such an interpretation wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CIT(A) he would have been able to appreciate the tax evasion centric planning. CIT(A) failed to appreciate that if the assessee was not the resident of India or income was really accruing or arising abroad incriminating material would not been found from the assessee's premises in India. 4. We have heard rival contentions on the issue of residential status of the assessee. The Hon ble Jurisdictional High Court of Delhi in a judgement delivered on 25th Feb.,2013 in ITA Nos.85/13, ITA 100/13, ITA 87/13 in the assessee s own case for the AYs 2001-02, 2002-03 and 2003-04 had considered the issue. After extracting S.6 of the I.T.Act at para 7, at paras 8 to 12 of the order it was held as follows. 8. Before we examine the provisions of section 6 it would be appropriate to set out the number of days of stay of the respondent/assessee in India. This has been tabulated in the assessment order. There is a discrepancy between the number of days as computed by the assessee and the so-called actual number of days as computed by the assessing officer. The same is given in the chart below:- A.Y. No.of days in India As computed by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though, the respondent/assessee has, in the preceding 4 years been in India for a period in excess of 365 days in India, in none of years has he been in India for a period in excess of 182 days. Therefore, the Tribunal is absolutely right in concluding that the respondent/assessee was not a resident of India. This is a pure question of fact based on a plain reading of the provisions of section 6. All that has to be seen is the number of days that the respondent/assessee has spent in India in the year in question as also in the preceding 4 years. No substantial question of law arises insofar as this aspect of the matter is concerned. 4.1. A perusal of the above judgement does not support the contentions of the D.R. that the Hon ble High Court has not adjudicated the matter and hence it is not a binding precedent. A plain reading of the judgment that on deem it clear that the High Court has interpreted the law and applied the same to the facts. Such arguments are devoid of merit. The Hon ble High Court, after extracting the data for six years at para 8 of its order has interpreted the provisions of Section 6 and this is binding on us. Hence we uphold the order of the Ld.Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee s own case, on the very same set of facts had adjudicated the matter in a particular manner, and that the same has to be followed by the Coordinate Bench of the Tribunal. 5. After hearing rival contentions on the issue of following the order of the Coordinate Bench in the assessee s own case on the very same set of facts, we rely on the decision of Hon ble Supreme Court in the case of Keshoram Co. vs. UOI (1989) 3 SCC 151 wherein, at page 160 it is held as follows: The binding effect of a decision of this Court does not depend on whether particular arguments are considered or not, provided the point with reference to which the argument is advanced subsequently was actually decided in an earlier decision. Similar is the view of Hon ble Supreme Court in the case of Ambika Prasad (1980) 3 SCC 719 wherein it was held that every discretionary or argumentative novelty cannot undo or compel reconsideration of a binding precedent . In other words, what the Ld.D.R. seeks is that the Tribunal has to hold that its earlier decision is per in curium and that the judgment of the Hon ble High Court is not binding. We are unable to accept this argument, as the Ld. Departmenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onciliation statement. Page 60 and 61 confirm the receipt of the amount mentioned in page 58 and 59. Thus, the commission income has been actually received in the hands of Sh. Suresh Nanda and his Group. 5.8 It can be safely concluded that Sh. Suresh Nanda has been working for Tadiran and other overseas suppliers to push through their contracts in India. The Assessing Officer also examined the papers seized from one Mr. Mohan S. Jagtap, an employee of M/s Crown corporation Ltd. Mr. Mohan S. Jagtap was an interpreter. On examination of these documents the assessee came to a conclusion that Shri Mohan S. Jagtap was closely connected with mediating in defence deals. Annexure 2, page 4 was examined which shows that parts of certain defence equipments was sold in India and the commission therefrom has to be paid to the account of Global Tech International Inc. The Assessing Officer also examined Annexure A-15 page no.1 to 7 seized during the search which is of the file of Mr. Suresh Nanda. Annexure A-7 page no.22 was also relied upon for coming to a conclusion that Mr. Suresh Nanda is an owner of Globe-tech International Corporation. Thus, based on the examination of all these do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me from commission/business of dealings in arms are decided afresh by Assessing Officer . Since the directions of the Hon ble ITAT in the case of Shri Suresh Nanda relate to the same additions of income as in the case of the appellant, the said direction will also be applicable in the case of this appellant . In my considered view, the truth of the matter cannot be ascertained without making a reference to the Govt. of Israel through the competent authority, FT TR division of the CBDT, on the issues raised in para 5.9 of this order, which are the same as, and in compliance to, the order of Hon ble ITAT in the case of Shri Suresh Nanda and complements the aforesaid orders by specifying the issues to be further enquired into. These issues will reach finality after reference to the Govt. of Israel under the DTAA and receipt of report therefrom. I direct the Assessing Officer accordingly . 9.2. This ground of appeal will be subject to the outcome/findings in that case. The Hon ble ITAT, vide its order cited above, had allowed this ground of appeal for statistical purpose in the case of the appellant for Assessment Year 2002-03 and 2003-04. Following the above order of Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 47 of PB) Apropos common ground raised in A.Ys. 2002-03 2003-04 in respect of alleged income from arms deals made on account of searches in the case of M.V. Rao and Mohan Sambha Ji Jagtap, the relevant statements have neither been provided nor these persons have been allowed to be cross examined by assessee. In the presence of these infirmities in the proceedings, these additions cannot be made. The AO may be directed to do the needful in this behalf; consider the outcome of assessment proceeding in their cases provide the opportunity for the cross examination and decide the issue afresh in accordance with law. We are of the view that the addition based on documents found from third parties cannot be made without confronting the material and allowing the opportunity of cross examination to the assessee. This proposition has been repeatedly laid down by all the Courts. Besides, there is a presumption in law that the person from whom the document is found is the owner of the document. The Department should discharge their burden before seeking to tax the assessee on the basis of documents found from Dr. M.V. Rao or Shri Mohan Sambhaji Jagtap. Since the assessee has not been pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee or his family members to even remotely suggest that any such payment was received by the assessee. (f) There is no bank account etc of the assessee to show that any of these payments were made to him. (g) No person including Dr. M.V. Rao has stated that these payments were ever made to the assessee. (h) One fails to understand how a paper found from a third party mentioning some amounts, without mentioning the name of the person who has made these payments or the persons to whom the payments have been made, can be said to be referring to the assessee. As far as the assessee is concerned, he reiterates that he has nothing to do with the said papers and therefore completely and totally refutes and disregards the same. II. Annexure A10 P 60 and 61: These documents have been seen by the assessee for the first time on 12.12.2012 after copies of these documents were provided by AO. These documents also do not contain the name of the assessee and merely contain some dates and amounts. It also has a column titled Paid to Hudar US$ . The assessee does not know who Hudar is and has never heard this name. These papers are also dumb in nature and do not mention the nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material and to whom? When was this presentation material given and has any person named in the said material been examined. Has anybody named in the document claimed to having even known the assessee? (f) This document nowhere says that any commission has been paid to the assessee and the services that he has rendered in respect of any business transaction. (g) In fact, the assessee does not know any of the person named in the presentation material and firmly denies having anything to do with the narrative in the said material. (h) The assessee also wonders why this paper was never shown to him during the course of assessment proceedings. Could it have been doctored or placed by somebody? All this is not known. The assessee s suspicion gets further accentuated by the fact that no question about this document was asked from Dr. M.V. Rao despite his statement having been taken twice. (i) It may not be out of place to mention here that as per the allegations made in the assessment order, Dr. M.V. Rao was said to have impersonated as the Scientific Advisor of the Hon'ble Prime Minister of India because of which, the Delhi Police searched his residence on 22.02.2007. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments indubitably do not belong to the appellant as they were not found on him and even otherwise do not bear his name or signatures to signify any form of ownership. (iii) The Department has not been able to establish the ownership of the documents vis- -vis Dr. M.V. Rao who did not even admit that the documents were found from his premises. In such a situation one fails to understand how the documents can be said to be belonging/related to the appellant. Hence, the Hon'ble Tribunal s direction that the presumption in law that the person from whom the document is found is the owner of the document and the burden is on the Department to prove that is also not discharged. (iv) For ease of reference the relevant portion of Dr. M.V. Rao s statement on 05.04.2011 where he completely denied having anything to do with the documents is reproduced as under:- Q.1 Please identify your self? Ans. I am Dr. M.V. Rao S/o Sh. Jagannath Rao R/o F-58, Green Park Main, New Delhi-110016. 1 am working as Director in M/s Transcom Services India Pvt. Ltd. My Authorised Representative will submit a copy of the proof of identification by 07.04.20 I1. Q.2. I am showing you a copy of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e carrying on with his profession. To the best of the knowledge and belief of the assessee, no where Mr. Bipin Shah stated that he was holding shares on behalf of the assessee and that M/s Transcom Services Pvt. Ltd belongs to the assessee. (vi) The assessee fails to understand how merely on conjectures and surmises and on some allegations before the search can the statement be made that M/s Transcom Services Pvt. Ltd belong to him. (vii) It is trite that every company is the separate legal entity and merely on allegations it cannot be held that it belongs to persons other than the share holders. (viii) There is no finding of the Assessing Officer or any other authority that the company is benami of the assessee or belongs to him. There is nothing to show that the assessee is a share holder or has invested his funds to the company. (ix) The Hon'ble Supreme Court of India in the case of Vodafone held that a company having a single share holder, is also a separate legal entity and it cannot be held to be belonging to anybody else on the basis of mere statement, conjectures and surmises. (x) Hence, the assessee firmly states that Ms Transcom Services Pvt. Ltd does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch. Statements of Shri M. V. Rao and Mr. Mohan Jagtap were referred to the assessee, on being given copies of these documents, given his contentions, The Ld. Departmental Representative relied on the order of the Assessing Officer, documents found were analysed and inferences were drawn and relied on the evidences during the arguments. We adjudicate the issue on hand by examining the document in question, after considering the findings of the Assessing Officer and the contention of the D.R. and the contentions of the assessee. As the A.O. has already given his findings on the document, in our view no useful purpose would be served by restoring the matter once again to the file of the A.O. for fresh adjudication. 6.4. From a perusal of the documents seized from the premises of Dr. M. V. Rao and Mr. Mohan Jagtap and from a reading of the statements recorded from Dr.M.V.Rao, who has purportedly impersonated as the scientific Adviser to the Prime Minister of India, and the statement of Mr. Mohan Jagtap it cannt be held that the assessee has received commission income, from defence deals. In this case the Assessing Officer, in pursuance to the directions of the Tribunal in the earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a paper titled presentation material conceived as being addressed to Tadiran . This does not prove that the assessee has received or earned any commission income from defence deal. 6.5. For the same reasons given in paragraph no above, we are of the considered opinion that no addition can be made based on this document. Dr.MV Rao has not been questioned on these documents. The document does not indicate that services have been rendered by the assessee or that any commission was received. Thus, no addition can be made based on this document. 6.6. In the statement given by Dr.MV Rao, no mention or a reference was made to the assessee Mr.Suresh Nanda, much less any suggestion being made that Mr. Suresh Nanda was involved in defence deals or that he had earned any commission. Thus in our view the statement does not support the contentions of the Revenue that the assessee has earned commission in question. Dr.MV Rao has not admitted the ownership of the document found in his premises though the presumption is against him. In any event the documents have not been demonstrated as those which belong to the assessee by the Revenue. Under the circumstances, no addition can be ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At para 9.4 page 34 the Assessing Officer has examined the following documents: a) Annexure A-8 page 17 to 34 party R-1. b) Annexure A-8 page 35 party R-1. c) Annexure A-8 page 36 party R-1 After giving a factual narration as what is given in each of these documents , the Assessing Officer came to a conclusion that Mr. Suresh Nanda is owner of UBS Ltd. Mauritius, as well as UPS Trading ,FZC, UAE. For the sake of brevity we do not extract the conclusion arrived in the order, as narrated by the Assessing Officer at para 9.5. The Assessing Officer refers, enquiry sent to the Govt. of Maurititius through the FT TR division of the CBDT, and has received a reply and came to a conclusion that Mr. Suresh Nanda, has used the Mauritius route, to bring the unaccounted money into the Indian companies to avoid disclosure. The explanations given by the assessee and the submission that the assessee was only a 20% shareholder of UBS Maurititus was rejected as vague. The confirmation from Mr. Hamilton was held as not verifiable at. At 9.40 and 9.11 the Assessing Officer held as follows: 9.0 On analysis of the seized documents it was also notices that Shri Suresh Nanda was a Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble ITAT is applied to the present Assessment Year, supersedes the earlier decision of CIT(A) on this ground, the earlier order of CIT(A) merges with the subsequent order of ITAT, which ahs become binding on the appellate authority. Consequently, this ground of appeal is allowed. Appellant gets relief of ₹ 104,68,35,904/-. 7.3. It is noted that the impugned amounts have not been brought to tax in the hands of the beneficiary companies, namely M/s Shantideep Foods (P) Ltd., M/s Shantideep Hotels (P) Ltd. and M/s Pradigm Hotels (P) Ltd. It is also noted that so far there is no evidence to establish that the amounts invested are income of the appellant that has arisen in India. It is seen from para 10.6 (page 4) of the assessment order that certain information, such as bank statements of the Mauritius based companies, are still awaited from the Government of Mauritius. The addition was, therefore, also premature and pended ascertaining full facts. On this reason also the appeal on this ground has to be allowed for statistical purposes. Assessing Officer is directed to pursue the reference to Mauritius through the FT TR division of CBDT and any further investigation th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation to ascertain truth. (2.1) When this issue was not there before the Tribunal it was incorrect on the part of the CIT(A) to instead of dealing with various arguments given by the Assessing Officer while making addition, seek any cover of the Tribunal order. The CIT(A) has failed to appreciate that if the money did not belong to the assessee why was the land purchased in the names of the assessee and his son Sanjeev Nanda. (2.2) The AR of the assessee has argued that the order of the CIT(A) to the extent of restoring the issue to Assessing Officer is not as per the law because power of restoring the issue back to Assessing Officer is not vested any more with him and hence wants expunction of these directions. In this connection, it is to be noted that the CIT(A) has not set aside the issue to be decided de-novo (which alone is barred in law) and that these directions endorsed by the Tribunal in earlier years were accepted by the assessee as no appeal has been filed in the High Court against these directions. Further, CIT(A) has not addressed the very pertinent issue raised by the Assessing Officer that very fact of buying agricultural land in the names of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy certificate It was also submitted that UBS Ltd. is a tax resident of Mauritius and in support the tax residency certificate of the company was also furnished by Claridges Hotels P Ltd c. Shareholding of UBS Ltd., Mauritius also filed The appellant though not required in law, has gone to the extent of showing the share holders of UBS Ltd. and even the share holder of the share holders i.e. the ultimate beneficiary. As regards the share holding in UBS Ltd., it was submitted that there are three share holders in UBS Ltd., namely, Paranal Finance S.A. Mideast Consortium S.A. and Infotec Services Ltd. These three share-holders owned 60%, 20% and 20% share respectively in UBS Ltd. (d) Confirmation by Shareholders of UBS Ltd Mauritius The appellant s contention is that he is share holder in Infotec Services Ltd. which has a 20% stake in UBS Ltd. It was further submitted that Paranal Finance S.A. and Mideast Consortium S.A. are owned by another investor, Mr. Hamilton Andrews who is a British citizen. The confirmation as regards the ownership of Paranal Finance S.A. and Mideast Consortium S.A. by Mr. Hamilton Andrews was enclosed during the assessment proceedings. (PB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant have a stake in Universal Business Solutions Mauritius only through holding majority shares in M/s Infotec Services Ltd, Jersey, Channel Island. The appellant was a resident of UAE Dubai during the entire block period. During this period, appellant had majority stake in a company called M/s UBS Trading FZC, Sharjah. UBS Trading FZC was engaged in sale and purchase of commodities and was being managed professionally in Sharjah. The books of accounts of this company were duly audited and the audited balance sheets for the year ending 31st December 2004 and 31st December, 2005 are available elsewhere in the documents seized by the Department during the course of search u/s 132(1) of the Income-tax Act, 1961. As is evident from the letter referred to by your goodself, there was a second round of financing requirement in Universal Business Solution Ltd ,Mauritius and Infotec Services Ltd holding 20% stake was required to contribute its 20% share of the finance in Universal Business Solution Ltd The letter is intimation to Infotec Services Ltd that a request has been made to UBS Trading, FZC, a company engaged in purchase and sale of commodities in Sharjah to declare interim di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h M/s Infotec Services Services Ltd, as submitted elsewhere in this reply. (f) Annexure A 8 Page-13 The AO s interpretation of this document is absolutely correct. The document shows that there are three shareholders of Universal Business Solutions Limited who have, besides contributing to share capital also given loans to the said company. The AO has further stated that under the column I the phrase Ex UBS Sharjah has been mentioned. This clearly means that ISL had contributed the said amount to Universal Business Solutions Mauritius by receiving remittances from UBS Sharjah. The AO has further observed that at page 38 Annexure A 8 party A-1 it is written that the investment in Universal Business Solutions Mauritius by ISL is for and on behalf of Mr. Suresh Nanda. This observation is absolutely correct. As already submitted ISL is a 20% shareholder in Universal Business Solutions Mauritius and the appellant is a majority shareholder in it. The appellant is also a 99% shareholder in UBS Trading Sharjah and had directed the company to remit dividends out of profits made by it during the years to ISL on his behalf. (g) Annexure A 8, pages 72-75, Party R-1 The AO s inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices Ltd, a company in which the appellant own majority stake, owns only 20% shares in Universal Business Solutions Mauritius. Therefore, the AO s contention that the appellant own Universal Business Solutions Mauritius is grossly incorrect as is evident from the documents relied upon by the AO himself. The department south information from Mauritius regarding UBS Ltd. Mauritius and the Mauritius authorities confirmed that the documents addressed to UBS Mauritius and not Mr. Suresh Nanda and that loans etc. taken by them are from the shareholders. The analysis of the balance sheet of UBS Mauritius. Regarding enquiry sent to Government of Mauritius through FT TR are as follows : 4. Information sought from Government of Mauritius through FT TR division of CBDT. The reply of the Government of Mauritius as reproduced in Para 10.6 Page-41 of the assessment completely supports the contention of the appellant. As per clause (i) the Government of Mauritius has stated that the equity structure is as per Balance Sheet. The Government of Mauritius has confirmed the equity structure of UBS Ltd. As already submitted UBS Ltd. has three share holders namely Paranal Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Sheet of UBS Ltd, which the AO has produced in his assessment order, it may further be seen that the investment made in its subsidiary i.e. M/s Shantideep Food P Ltd. has also been clearly reflected as assets. The Balance Sheet of UBS Ltd., Mauritius completely corroborates the appellant s contentions as regards the UBS Ltd. and its share holders in terms of the ownership of the share holding companies. 6. Statement given by the Appellant during search: At Para 9.3, the Assessing Officer has reproduced reply to Question No. 10 rerecorded by DDIT Investigation, New Delhi on 8.3.2007. At the very inception, it is respectfully submitted that the copy of the statement recorded on 8.3.2007 has still not been furnished despite request being made. It is trite that no statement can be used against the appellant unless the same is confronted to him. Even on perusal of the reply given by the Appellant, it is found that the Appellant has stated that his interest in Claridges Hotel Pvt. Ltd. is by way of investment made through Mauritius based company UBS Ltd. There is nothing wrong with the statement. As already submitted, Infotec Services Ltd. is a share holder of UBS Ltd. to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e source of investment in UBS Mauritius to the extent of 20%. Hence that income cannot be subjected to tax. There is also finding of fact that the remaining 80% of the shareholding belong to Mr. Hamilton Andrews and the same has been confirmed by him. 10. Legal submissions: (i) Whoever alleges a fraud has to prove it (a) It may be submitted that the A.O. is trying to state that the equity structure of UBS Ltd. is a sham and that its Mr. Suresh Nanda is the real owner. It is settled law that whoever alleges fraud had to establish the same. Hence burden of proving this allegation squarely vests with the department. The assessee has been able to clearly show that UBS Ltd., Mauritius is an independent entity having three share holders, the person behind two share holders is Mr. Hamilton Andrews holding shares in the company to the extent of 80% and Mr. Suresh Nanda to the extent of 20%. This equity structure comes out from the documents seized and described earlier and the appellant has also maintained this position consistently. Even the Government of Mauritius in their response to Income Tax Department has confirmed the equity structure of the UBS Limited. The Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Appellant has himself admitted that he is the major shareholder of the third corporate entity i.e. Infotec Services Ltd which owns 20% share capital of UBS Ltd. Needless to add that Balance Sheet of UBS Ltd. and its share holders constitution has been filed before the A.O. during the proceedings relating to Claridges Hotels Pvt.Ltd. The source of funds of Infotech Services Ltd. who is 20% share holder of UBS Ltd. has also been established in as much as the same has come by way of dividend from UBS FZC., Sharjah. Similarly, the owner of Paranal Finance Ltd., and Mid East online, Mr. Hamilton Andrews has given an attested confirmation that he owns the said companies and also that these companies own 80% shares in UBS Ltd., Mauritius. It is further submitted that when the line of ownership is so clear then under no stretch of imagination can the appellant Mr.Suresh Nanda be held to be the owner of M/s Shantideep Hotels P Ltd, M/s Shantideep foods P Ltd and M/s Paradigm Hotels P Ltd. The Department alleges that the appellant owns Claridges Hotel Pvt. Ltd. The burden to prove this allegation irrefutably lies on the department. The department has done nothing to check and counter th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wns the Claridges Hotel Pvt.Ltd. It is pertinent to mention that the Claridges Hotel is being managed by General Manager who is a professional and is a foreigner. e) Further reliance is placed on the Hon ble Supreme Court in the case of Daulat Ram Rawatmull 87 ITR 349 wherein at page 359 it has been held that:- A person can still be held to be the owner of a sum of money even though the explanation furnished by him regarding the source of that money is found to be not correct. From the simple fact that the explanation regarding the source of money furnished by A, in whose name the money is lying in deposit, has been found to be false, it would be a remote and far-fetched conclusion to hold that the money belongs to B. There would be in such a case no direct nexus between the facts found and the conclusion drawn therefrom. It may be appreciated that UBS Ltd., Mauritius has given complete evidence of its ownership of Claridges Hotel Pvt.Ltd. and without prejudice even if it is for any reason held that UBS Ltd. not a real owner even then it cannot be held that the appellant is the owner. f) In the case of Subramaniam 55 ITR 610 (Madras), it was held that just because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o verify the statement of the assessee. Thus, after the assessee filed the confirmatory letter with the correct name and address of the creditor and the GIR number as well, the onus immediately shifted on the Department which was not discharged by the Department in this case. The deletion of the addition of ₹ 41,500 and allowance of interest on it by the Tribunal was, therefore, proper. Per Sushil Kumar Jha: Where an assessee gives the correct name, address and GIR number of the creditor, he has discharged his onus to prove the genuineness of credits in his accounts and unless a notice in due form under Section 131 of the Act is issued by the Revenue authority to test the genuineness of the transaction or the capacity of the creditor to pay, the amounts cannot be assessed in the hands of the assessee. The ratio of the judgement applies to appellant as well. Additionally in the case of appellant on an enquiry made to Mauritius authorities, it was confirmed that it is Universal Business Solutiions Ltd. Mauritius which has made the investment into Claridges Hotel Pvt.Ltd. c) In the case of Sarogi Credit Corporation 103 ITR 344 (Patna) it was held that: Once the ide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... editors could have acquired money to be deposited with him. The fact that the depositors explanation about the sources where from they acquired the money is not acceptable to the A.O., it cannot be presumed that the deposits made by such creditors is the money of the assessee himself. There is no warrant for such presumption. In such event, if the creditors explanation is found to be not acceptable about such deposits, the investment owned by such persons may be subjected to the proceedings for inclusion of such investment as their income from undisclosed sources or if they have been found benami, the real owner can be brought to the tax net. But in order to fasten liability on the assessee by including such credits as his income from unexplained sources a nexus has to be established that he sources of creditors deposit flew from the assessee. In the absence of any such link, additions of cash credits found at the books of account of the assessee cannot be considered to be unexplained income of the assessee, where existence of depositors of such credits is established and such deposits/advance/loan is owned by such existing person. On such proof the assesee s onus is discharged. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dges SEZ (P) Ltd is owned by Palm Technologies Ltd which is a foreign company incorporated in Mauritius. As far as I am aware, Palm Technologies is owned by an UK citizen Mr. E.A. Hoffland who is a friend and was introduced to me by Mr Hamilton Andrews. Mr. Hoffland was interested in setting up a technology company. When he found the going difficult as a technology company the objects of the company were changed to establishing an SEZ in India and for that purpose, remitted money for acquisition of land. He sought my assistance in introducing him to certain professionals and experts who could help in executing the transactions on behalf of the company. At one stage, I was contemplating on taking a stake in the company as Mr.Hoffland was finding it difficult to manage the land acquisition etc in India. Even otherwise, I felt that there was a good investment potential in the SEZ project and I at one stage advanced a sum of ₹ 3,25,00,000 as share application money in Claridges SEZ (P) Ltd. However, because of unfortunate turn of events that developed after the search that took place on my premises, I was unable to travel abroad and therefore, could not proceed any further in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wned subsidiary M/s Claridges SEZ. The judgements and legal position on benami etc., cited in the case of addition relating to Claridges Hotels P Ltd would apply to the impugned addition as well. It is further submitted that there is not an iota of evidence to effect that the individual appellant is a shareholder in M/s Palm technologies, or a contributory to funds in the said company. Hence the mere allegation of the department that the appellant is de facto M/s Palm Technologies is bereft of any basis or reason. It is trite that the onus is on the person who alleges benami. The department, except for bald allegations has not been able to tender any proof or evidence of the appellant s money being routed through Palm Technologies. Hence the addition so made deserves to be deleted. Without prejudice to the aforesaid it is submitted that the appellant has made a substantive addition of the same amount in the hands of the Indian company Claridges SEZ Private Limited which received the amount from its shareholder M/s Palm Technologies. Such additionson two hands on substantive basis is untenable in law. It is further submitted that in respect of remittance from a tax re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed and the addition of ₹ 10,51,20,000/- is deleted. 7.4.2. Applying the propositions laid down by the Hon ble High Court we uphold the order of the Ld.Commissioner of Income Tax (Appeals) we hold that the addition in question is bad in law, the order of the Tribunal is also in favour of the assessee. As in the earlier issue of additions made on alleged commission income, here also the Assessing Officer made additions based on certain documents. The assessee has made detailed contentions on these documents. We examine these documents and the contentions of both the parties. 7.4.3. As it is held that the assessee is a Non-Resident Indian, the burden to prove that a particular income has either accrued or received in India is on the Revenue, if it chooses to bring to tax a particular receipt as income. In cases where exemptions or deductions are claimed from taxable income, then the burden of proof is on the assessee. 7.4.4. In this case M/s Clardges Hotels P.Ltd. received money from its Holding Co. M/s UBS of Mauritius. This is not a case where the assessee received any money. M/s UBS, Mauritius is not a company controlled by the assessee and there is no material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Annexure A 8 page 38, 39 to 71 support the contentions of the assessee that Info Services Ltd. provide funds to UBS Ltd., Mauritius. (vi) Annexure A 8 page 13 also corroborates the claim of the assessee regarding funding of M/s UBS, Mauritius. There is no controvery on the interpretation of this ;document between the Assessing Officer and the assessee. Similar is the interpretation of annexure A 8 pages 70 to 75. (vii) Annexure A 22 pages 67 to 70 does not demonstrate that the assessee has acquired or that the assessee had invested further in M/s Paramel Finance. Merely because the financial statements including balance sheet of Paramel Finance is sent to the assessee, it does not follow that the assessee had purchased those company that too without any further evidence. (viii) Similarly Annexure A 26 pages 11 to 13 only corroborate the version of the assessee that he invested in UBS, Maurities through Infortech Services Ltd. and that the stale is only 20% and that 80% shares of UBS, Mauritius is owned by Mr.Hamitton and Ruse through M/s Paramal Finance and Mites Company. In our view the statement given by the assessee to the DIT Investigation, New Delhi on 8.3.2007 (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in and out of money in assessee s a/c with Deutsche bank, Singapore to his NRE a/c with Deutsche Bank, New Delhi, which document was called by the assessee as having mere rough scribbling, made addition because assessee did not give details of his business abroad. CIT(A) instead of dealing with various contentions put forth by the Assessing Officer in his order, as seen ;from his order (e.g. para 5.2 of his order for Assessment Year 2004-05), instead of dealing with various contentions/points of the Assessing Officer, deleted the addition solely relying on the ITAT order dt. 24.7.2012. 2. CIT(A) ought to have taken note of the finding recorded by the Assessing Officer that despite being asked the assessee has (question no.31), to hide the truth, disowned the document calling to be containing mere scribbling and that (except asserting that the bank account had been subjected to scrutiny) he did not provide bank a/c to the Assessing Officer which ought to have been done especially when the Assessing Officer had every right to examine the issue from the angle of status being Resident. The CIT(A) has failed to appreciate that the bank a/c contained the proceeds of illegal commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a moral duty, he continued to support her financially. At para 9.2 the Assessing Officer lists out the payments made from Deutsche bank, Singapore, to his wife. The Assessing Officer at para 9.6 and 9.7 held as follows. 9.6. Based on the above, it is evident that the assessee is not giving any fixed amount to his wife through banking channels. A minimum conservative estimate of the amount paid by the assessee as support to his wife would be based on the agreement dated 11th September,2004. The details are worked out as below:- (i) Fixed payments = ₹ 1,00,000 pm x 12m + ₹ 2,00,000 for Diwali = ₹ 14,00,000/- (ii) Payments to 1 guards, 4 servants, 2 drivers, 1 mali and ₹ 10,000/- to one Alok is estimated at ₹ 1,00,000 pm and thus the Total annual payment on this account would be ₹ 1,00,000x12=Rs.12,00,000/- (iii) Phone bills, maintenance of house, furniture and fixture, car expenses And maintenance, overseas and domestic airlines tickets are estimated to ₹ 50,000 pm. Thus the annual payment would be ₹ 6,00,000/-. (iv) Total amount = ₹ 32,00,000/-. 9.7. It is to be noted that this amount broadly matches with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion being only on presumptions, there being no material whatsoever, the addition is deleted. We find merit in the argument of the Ld.Counsel that with estranged relations on record such presumption is baseless . 2. Additions are not presumptions made but are made on the basis of specific evidences found in search which have not been virtually considered by the CIT(A)/ITAT. When the additions are referable to the evidences found in the search action it is absolutely incorrect to say that additions were based on presumptions and hence either the order of the Assessing Officer be restored or alternatively the matter be set aside to CIT(A) for dealing with the specific charges/reasons/contentions of the Assessing Officer. 9.3. The Ld.Counsel for the assessee argued that the issues are covered through the judgement of Hon ble Delhi High Court vide order dt. 25.2.2013. He further submitted that the Tribunal, on appreciation of facts had decided the issue in favour of the assessee in the earlier AYs. He submitted as follows. 6. Ground No.6 .regarding Addition of ₹ 23,90,000/- - payment to assessee s wife Renu Nanda: This issue is also covered by the Delhi High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 32 lacs for the year under consideration. The basis of his estimation is as follows:- (a) That the appellant paid ₹ 31 lacs as annual maintenance to his wife in the year 1997-98 and therefore, why would he not pay more at least the same amount 10 years later. (b) The estimation of the payment that would have been made to his wife is to be based on the agreement dated 11.09.2004 wherein Mrs. Nanda was to be paid ₹ 1 lacs per month and ₹ 2 lacs for diwali. It is respectfully submitted that the addition made is illegal and deserves to be set aside for the following reasons:- (i) That during the course of search on 28.02.2007, no evidence whatsoever was found to even remotely suggest that any payment other than ₹ 8,10,000/- by cheque was made to Mrs. Renu Nanda by the appellant. (ii) The appellant has paid ₹ 8,10,000/- by cheque for her day to day expenses which is more than enough considering that Mrs. Renu Nanda is alone in the house provided by the appellant and all the other fixed expenses are made by the appellant. (iii) No examination of the appellant or Mrs. Renu Nanda was made to arrive at the estimation. (iv) The estimati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial what so ever, the addition is deleted. We find merit in the argument of ld. Counsel that with estranged relations on record such presumption is baseless. This ground of assessee raised in A.Y. 2003-04 is deleted. Similar basis has been adopted by the AO while making the addition on the issue in AY 2004-05. In view of the facts and the decision of the ITAT, addition of ₹ 23,90,000/- on account of money paid by appellant to his wife from his bank account deserves to be deleted. 9.4. On careful consideration of rival submissions, we find that on the very same set of facts, the Coordinate Bench of the Tribunal had deleted the addition on the ground that the sole basis of the addition is presumption and assumption. The Hon ble Delhi High Court had upheld this finding. As claimed by the Ld. Departmental Representative there is no evidence found during the search. Only on estimates was made which is not based on any evidence. Thus, we uphold the order of the First Appellate Authority and dismiss ground no.6 of Revenue. In the result the appeal of the Revenue for A. Y. 2004-05 is later dismissed. 10. We now take up Revenue s appeal for the Assessment Year 2005-06 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eas bank account pertaining to Assessment Year 2005-06 and 2006-07. 12.1. The Ld.D.R. referred to para 13 of the order of the Assessing Officer for the Assessment Year 2005-06 and based is arguments on document in Annexure A-10, which listed out at para 13.1 of Assessing Officer s order. The Assessing Officer arrived at total payments of US Dollars 48934. The Ld.DR submitted that in the absence of any explanation given by the assessee as to the source of funds into there overseas bank account this amount has been added. His further submissions are at para G of his submissions, wherein he states as follows: (G) Issue of renovation of Sonali Farm from overseas bank a/c:- (1) This issue is relevant to Assessment Year 2005-06 and 2006-07. In Assessment Year 2005- 06 (para 13), the Assessing Officer had made addition of ₹ 21.34 lacs. Assessing Officer has discussed the relevant Annexure A-2(pages 35-37) which revealed engagement of various consultants from abroad for renovation of Sonali Farm which documents were being termed as mere rough estimates. On failure of the assessee to furnish the details of the foreign bank accounts from which these payments were made, the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms, is also added thus making it a case of double addition. 12.4. After hearing rival contentions, we are of the considered opinion that the order of the Ld.Commissioner of Income Tax (Appeals) has to be upheld in view of the observations at para 13 of the Hon ble High Court s order in the assessee s own case dt. 25.2.2013. We have already held while disposing off ground no.7 for the Assessment Year 2004-05 that the credits in the bank account at Singapore held by the assessee in Deutsche bank cannot be added. Consequently the debits from the very bank account which was used for investments in Sonali Farms cannot be added. In the result ground no.2 of the Revenue is dismissed. 13. Ground no.3 is on the issue of addition e of ₹ 41,88,22,533/- made by the Assessing Officer on account of alleged commission income earned by the assessee on defence deals. The very same issue has been adjudicated by us in the Assessment Year 2004-05 vide ground no.2 at paras 6.3 to 6.8 at pages 32 to 36. The grounds for made in the addition and the facts of the case being the same, for the reasons given therein, and consistent with the view taken therein we uphold the order of the Ld.Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 is dismissed. 19. ITA No.2601/Del/2013 in revenue appeal for the assessment year 2006-07, the grounds are as follows: 1. The order of the Ld. CIT (A) is not correct in law and facts. 2. On the facts and in the circumstances of the case, the Ld. CIT (A) has erred in restricting the addition to ₹ 2,66,31,299/- and allowing a relief of ₹ 2,82,34,008/- on account of undisclosed investment made by assessee in Sonali Farms from his undisclosed sources. 3. On the facts and in the circumstances of the case, the Ld. CIT (A) has erred in deleting the addition to ₹ 7,44,07,498/- on account of undisclosed investment made by assessee in renovation of Sonali Farms in the form of payment to the overseas contractors from his overseas bank accounts. 4. On the facts and in the circumstances of the case, the Ld. CIT (A) has erred in deleting the addition to ₹ 25,79,27,065/- made by Assessing Officer on account of commission income earned by assessee against contracts in defence deals. 5. On the facts and in the circumstances of the case, the Ld. CIT (A) has erred in deleting the addition to ₹ 44,16,86,000/- made by Assessing Officer on account of un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal for the assessment year-2004-05. Consistent with the view taken therein, we uphold the order of the Ld. CIT (A) and dismissed the ground no.4 of the assessee. Ground no.5 and 6 relate to an addition made on the ground that the assessee has made certain unexplained investments in M/s Claridges Hotel Pvt. Ltd. This issue is similar on facts to the addition made in the assessment year 2004-05. We have dealt with this issue as ground no. 3 for the assessment year 2004-05 at para 7.3 to para7.5 of this order. Consistent with the view taken therein, we uphold the order of the first appellate authority and dismiss this ground of the revenue. Ground no.7 relates to an addition made on the ground that the assessee had unexplained deposits with Deutsche Bank, Singapore. The Very same issue was dealt by us as ground no.5, while adjudicating the appeal for the assessment year 2004-05, at para 8.3, we applied the judgment of the jurisdictional High Court and dismissed the ground of Revenue. Consistent view taken therein, we uphold the order of the Ld. CIT (A) and dismissed ground no.7 of the Revenue. Ground no.8 is an addition on the ground that the assessee would have made certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On appeal the First Appellate Authority considered the contentions of the assessee and granted part relief. He took the total contract value with M/s Jayant K Furnishers at ₹ 105765307/- and after deducting the total payments made to the tune of ₹ 7934008/- had sustained an addition to the tune of ₹ 26631299/-. Both the assessee and the Revenue are in appeal. The Ld.D.R. relied on the order of the Assessing Officer and pointed out that the addition was based on certain seized material which is analysed in detail at para 8 of his order. The Ld. Counsel for the assessee made detailed submissions: 1) That the running account bills raised by the contractor were scrutinized by the assessee or his appointed experts and after disallowing many of the claims, for the approved amount, afresh R. A. bills was raised, by the contractors. 2) There is no evidence of any payments in cash or otherwise over and above the approved and passed bills. 3) That the contract value is ₹ 5,09,00,000/- as per the agreement and ther is no basis for the contract value of ₹ 10,57,65,307/- arrived. 21. We have considered the rival submissions. The sum and substance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search conducted on 28.02.2007 and no assessment or reassessment was pending as son the date of initiation of search which could have abated in terms of second proviso to section 153(1) of the Income Tax Act,1961. 2. Without prejudice to the above, the search u/s 132 having been concluded on 28.02.2007, the assessment made on 30.12.2009 is barred by limitation and hence, the Ld. CIT (A) ought to have cancelled the assessmsent in view of the above of the judgment of Hon ble High Court in the case of C. Ramaiah Reddy vs. CIT (2011)61DTR(Kar.) 82. 3. That while deleting the azddtions namely (i) ₹ 104,68,35,904/- representing investment of UBS Ltd. Mauritius in three Indian companies and (ii)Rs.34,60,000/- being share capital invested by Palm Technology. Mauritius in Tsunami Technologies P. Ltd. (now known as Claridges SEZ P. Ltd.), the Ld. CIT (A) in pars 3.7 and 8.3 of his order has erred in directing the Assessing Officer to Pursue the reference to Mauritius through FT TR Division of CBDT aznd any further investigation that may be required to ascertain the truth. 4. That on the facts and in the circumstances of the case, the addition of ₹ 25,48,12,645/- made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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