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2023 (2) TMI 849 - AT - Income TaxAssessment u/s 153A - unaccounted profits or investments made - purchases have been suppressed and the investments have been acquired at a much lower price and hence AO has made addition of suppressed income in the hands of the assessee - HELD THAT:- In the present case, we note that ld. CIT (A) has given a categorical finding that there is nothing on record which suggest that assessee has incurred higher expenditure on purchase than reflected in the books of account. CIT (A) placed strong reliance upon the decision of Hon’ble jurisdictional High Court in the case of Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] which is fully applicable. Assessee has purchased share of 6 companies at the face value with book value of these shares on the date of purchase was much higher - In this regard, mere such submission cannot fortify the case of the assessee. In the case of K.P. Varghese [1981 (9) TMI 1 - SUPREME COURT]duly expounded that there must be evidence to show that the actual consideration was more than the consideration shown in the books. In this regard, ld. Counsel of the assessee referred to catena of case laws. We find that this aspect is fully applicable in the assessee’s case. No evidence whatsoever is on record that actual consideration paid is any how suppressed. Hence, the assessee’s case is covered on the touchstone of Hon’ble Apex Court in the case of K.P. Varghese (supra). Apart from the value of investment, another addition made by the AO is with regard to credit card payments. In this aspect, ld. CIT (A) has given a finding that there is no incriminating material and in this view of the matter, addition is not sustainable on the touchstone of Hon’ble Delhi HIgh Court in the case of Kabul Chawla (supra). - Decided against revenue. Whether assessment should have been done under section 153C and not under section 153A ? - Section 153C permits documents found from another search to be sent to the AO of that person after due satisfaction and then on the basis of those documents assessment u/s 153C can be done. In the present case, material found at the premises of Rajiv Gupta has been taken as if they are material found during search at the assessee, Atul Kumar Gupta, which is not at all correct. Hence, the very basis of addition is missing. The assessment has been made u/s 153A and not u/s 153C, and this has led to a fatal error in the assessment order which is not curable. As rightly contended by the ld. Counsel of the assessee that the presumption u/s 132 (4A) cannot be extended to material found at somebody else place and de hors corroborating documents, these cannot be linked to the assessee. Assessee’s plea that assessee’s name is nowhere directly mentioned in these documents found at Rajiv Gupta place whereas it is mentioned as Dildar (Atul sir) which ipso facto cannot mean the assessee. Hence, we set aside the order of the authorities below and delete the addition in this regard.
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