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2022 (11) TMI 227 - AT - Income TaxAssessment u/s 153A - Addition being additional cash consideration for acquiring shares of KMPL and GBPL - HELD THAT:- Conclusive observation of the AO itself shows that the entire edifice of making assessment is nothing but assumptions, surmises and conjectures. The Bench asked a very simple question to the ld. DR that in whose hands substantive addition has been made and in whose hands protective addition has been made. DR could not answer to this simple question and we do not understand from the perusal of the record of the assessee and considering the assessment in the case of Peakwood Realty Pvt Ltd, though one thing is certain that same addition in respect of similar transaction has been made in the hands of the two assessees. A perusal of the assessment order in the case of Peakwood Realty Pvt Ltd shows that there is a reference of some document found which is internal page 10 of the assessment order in the case of Peakwood Realty Pvt Ltd. This document shows that some additional consideration has been paid - This document was found from the laptop of one Smt. Bina Shah. This document was neither found from the premises of the assessee nor from the possession of the assessee and is sole basis of making entire payment. Since this incriminating material was neither found from the premises of the assessee nor connected with the assessee in any manner, therefore, the ratio laid down in the case of Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] and Meeta Gutgutia [2017 (5) TMI 1224 - DELHI HIGH COURT] squarely apply. There is no adverse inference drawn in respect of sellers of shares i.e. KMPL and GBPL though the impugned addition has been made on the basis of pure surmises and conjectures nothing has been done in the hands of the sellers of the shares. As mentioned elsewhere, shareholders of GBPL and KMPL are NRI and, therefore, Peakwood Realty Pvt Ltd had to take ‘No Objection Certificate’ for transfer of shares from RBI which was duly obtained by it. AO has proceeded with a preconceived mind without realizing that the documents which he is referring to is for making addition neither has names of the sellers of the shares nor name of the assessee. Therefore, following the ratio laiddown by the Hon'ble Delhi High Court [supra], this addition deserves to be deleted. Even on merits of the case, the addition cannot be sustained as the Assessing Officer has made the addition u/s 69 of the Act which has been modified by the ld. CIT(A) and sustained the addition u/s 69 - A revisit to the facts of the case would clear the quarrel. Addition made by the Assessing Officer u/s 69 is purely on assumption and without any basis. Presuming that the assessee has paid cash for the purchase of shares as these sellers of shares were holding 430 acres of prime land in Village Mangar, Faridabad – Gurgaon border. Addition though modified by CIT(A) u/s 69B but has been confirmed on the presumption, surmises and conjectures - Firstly, investment was made by Peakwood Realty Pvt Ltd and not by the assessee and secondly, the AO has made addition in the hands Peakwood Realty Pvt Ltd, then there should not be any reason for making same addition in the hands of the assessee when the assessee is not party to the transaction. Considering the entire factual matrix from all possible angles, addition made in the hands of the assessee on all counts deserves to be deleted. - Decided in favour of assessee.
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