TMI Blog2018 (4) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals are identical they have been clubbed together and as a matter of convenience disposed off by this consolidated order. 3. The facts and issues involved in these appeals being more or less identical, we take up ITA no.3036/Mum/2016 and ITA no.2325/Mum./ 2016, concerning M/s. Rhythm Real Estates Pvt. Ltd, as lead appeals and proceed to deal with the facts involved in these two appeals. 4. Brief facts are, the assessee a company is engaged in the business of real estate development. For the assessment year under dispute, the assessee filed its return of income on 29th November 2006, declaring loss of ₹ 44,492. Assessment in case of the assessee was completed under section 143(3) of the Income Tax Act, 1961 (for short the Act ) vide order dated 5th December 2008, computing the income at nil after disallowing the loss claimed. Subsequently, on the basis of information received from the Director of Revenue Intelligence (DRI), Mumbai, regarding of payment on money in cash by the assessee for purchasing properties at New Delhi, the Assessing Officer re opened the assessment under section 147, by issuing notice under section 148 of the Act on 28th March 2013. As mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee upheld the validity of re opening under section 147 of the Act. However, as regards the validity of the addition made of ₹ 8,87,14,048 is concerned, the learned Commissioner (Appeals) called for a remand report from the Assessing Officer qua the submissions made by the assessee. After considering the submissions of the assessee in the context of facts and material on record and taking note of the Assessing Officer s observations in the remand report, the learned Commissioner (Appeals) ultimately deleted the addition made under section 69B of the Act as per the detailed reasoning contained in Para 5.2.1 to 5.2.9 of the appeal order. Being aggrieved of the aforesaid order of the learned Commissioner (Appeals) both the Revenue as well as the assessee are in appeal before us. While the Revenue has challenged the deletion of addition made by the Assessing Officer under section 69B of the Act, the assessee has called into question the decision of the learned Commissioner (Appeals) in upholding the validity of re opening of assessment under section 147 of the Act. 6. At the outset, learned Counsels appearing for both the parties have agreed before us that the issue ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee. He also took note of the fact that the Assessing Officer even has not made any independent enquiry with the sellers of the landed property or made any enquiry to ascertain the market rate of the land in that locality. He observed, even though the assessee has furnished the sale agreements of the property before the Assessing Officer in the course of assessment proceedings, the Assessing Officer has not taken note of them during the assessment proceedings. The learned Commissioner (Appeals) observed, even though, in course of proceedings before him the Assessing Officer was directed to examine the submissions made by the assessee and conduct necessary enquiry, however, the Assessing Officer without conducting any enquiry has submitted his remand report on 18th August 2015, by simply stating that the documents forwarded to him have already been considered by the Assessing Officer while completing the assessment under section 143(3) r/w section 147 of the Act. Thus, in view of the aforesaid factual position, the learned Commissioner (Appeals) concluded that in the absence of any evidence brought on record to prove the payment of on money by the assessee the addition m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that any cash changed hands for the transaction. When the Ld. Assessing Officer recorded the statement of Shri Atul Sud, Director of the assessee company, though he admitted the transaction to be made through demand draft but he never tendered that any cash was transacted. Ms. Zaver Cyrus Dadina completely expressed or ignorance with regard to details of land dealings as has been alleged. The efforts of Assessing Officer to record the statement of Miss Damini Vadhwa, and Miss Reeta Bhatia also could not provide any information leading to the addition. The seized material/print out was not in the handwriting of the assessee and even there is no material to suggest that the seized material was maintained either by the assessee or it s of or employees. Even the statement of Rajaratanam was discarded by the Ld. Commissioner of Income Tax (Appeal) as the floor price, fixed by the authorities, for such property was found much lower than the value. Considering the factual matrix and the judicial pronouncements, discussed hereinabove, we find no infirmity in the conclusion of the Ld. First Appellate Authority. Our view is further fortified by the fact that the concerned data was even not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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