2022 (6) TMI 1476 - ITAT JAIPUR

Addition u/s 153A - Addition made on the basis of material seized alongwith the statement as recorded during search and also confronted to the assessee - Addition u/s 68 - HELD THAT:- There is contradictory approach of the AO in making wrong addition on this account. It is also noteworthy to mention that AO made the addition on the basis of statements of Harpal Yadav who gave his search statement u/s 132(4) in relation to the loose paper found in his premises but no material on this account was found in the possession of the assessee.

As per the provisions of Sec. 153C, the material, if any, on the basis of which addition is to be made was not found in the premises of assessee then neither action could be taken under section 153A nor any addition u/s 153A can be made. The addition if any could have been made only after issuing notice under section 153C after recording the satisfaction by the AO of other search persons. In the present case the AO has not assumed any jurisdiction under section 153C rather than made the addition u/s 153A.

Thus the assessment as well as addition u/s 153A are wrongly made and liable to be deleted. Further the AO has also made the addition u/s 68 which is also incorrect or wrong in view of above deliberations. Thus in view of the above facts, circumstances and legal position of the case, the addition sustained by the ld. CIT(A) is deleted and grounds of appeal of the assessee are allowed.

Long Term Capital Gain - Addition was made on the basis of statement of Sh. Nirmal Kedia who purchased the land from assessee and paid the On-Money to the assessee and statement has been given u/s 132(4) - HELD THAT:- The same addition was also made in the hands of M/s Kedia Real Estate LLP on account of On-Money Paid by him to the assessee. On perusal of the record and material before us, it is found that Sh. Nirmal Kedia has retracted from his statements and the assessee has also nowhere admitted receiving any On-Money from M/s Kedia Real Estate LLP and no documents or evidence has been found either in the possession of the assessee or in the possession of M/s Kedia Real Estate LLP except only a statement of Sh. Nirmal Kedia, who had retracted the same later on. To this effect, the ld. CIT(A) and this Bench has deleted the addition in the hands of M/s Kedia Real Estate LLP [2019 (6) TMI 426 - ITAT JAIPUR] Thus we concur with the findings of the ld. CIT(A). Thus the appeal of the Revenue is dismissed.