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Sanjay Parwal Versus ACIT, Circle, New Delhi

2015 (5) TMI 723 - ITAT DELHI

Undisclosed Short Term Capital Gains from sale of Share - Held that:- The arguments of the learned Authorized Representative that the appellant had not sold the property cannot be accepted since it is judicially well known that in the case of a company the entire property held in the name of Company can be transferred through the mode of transfer of shares. This is approved by the Hon’ble Karnataka High Court in the case of Bhoruka Engineers Vs. DCIT, [2013 (7) TMI 543 - KARNATAKA HIGH COURT]. A .....

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unsel that the appellant had not transferred any property to the HBN Group of Companies cannot be accepted.

Non availed the opportunity of cross examination - Held that:- The statements recorded from the witnesses are clear, categoric and they do not suffer from any contradictions are sufficient when read along with the fact of sale of shares in Smriti Buildcon Pvt. Ltd. held by the appellant with the underlying object of sale of property held by the said company. When the Assessing O .....

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n the case of Dhakeswari Cotton Mills Ltd. Vs. CIT, (1954 (10) TMI 12 - SUPREME Court); Vasantlal & Co. (C) Vs. CIT (1962 (2) TMI 7 - SUPREME Court) and CIT Vs. East Coast Commercial Co Ltd., (1966 (10) TMI 37 - SUPREME Court).

Addition made purely based on the photocopy of the agreement to sell - Held that:- This submission cannot be accepted because it is settled principle that Photostat copy can be taken as an evidence, if the circumstantial evidence justifies, please refer to Moos .....

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the same before the lower authorities knowing fully well that this was going to be used against him. Agitating on this issue, at later stage is not acceptable, since the appellant had chosen not to advance this argument before the lower authorities, when he was confronted with the information. Had the appellant chosen to advance this argument before the Assessing Officer, the Assessing Officer should have sent this document for examination by the Forensic Authorities to examine the veracity of .....

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n the said company was 2,94,700 shares. The on money paid per share comes to ₹ 295 per share. The number of shares held by the appellant were only 60,000 share therefore the on money paid to the appellant comes to ₹ 1,77,00,000/-. Apart from this the share of the on money paid on account of the shareholding held by the spouse of the appellant i.e. Mrs. Ritu Parwal is to be added in the hands of the appellant since she made categorical statement before the Investigation Wing that it w .....

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ion in the hands of the appellant only to the extent of ₹ 3,48,10,000/-. Decided partly in favour of assesse. - ITA No. 892/Del/2015 - Dated:- 15-5-2015 - SHRI G.C. GUPTA AND SHRI INTURI RAMA RAO, JJ. For the Appellant : Sh. Ashwani Kumar, CA For the Respondent : Sh. Vikram Sahay, Sr. DR ORDER PER INTURI RAMA RAO, A.M.: 1. This is an appeal filed by the assessee for the assessment year 2008-09 impugning the order of learned CIT(A), Rohtak, dated 09.12.2014 raising the following grounds of .....

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dcon Pvt Ltd. The Ld.CIT (A) has upheld the addition by ignoring the factual and legal position and summarily rejecting the exhaustive submissions made by the Appellant. ii. That the order dated 09.12.2014 passed u/s 250 of the Income Tax Act, 1961 by the Learned Commissioner of Income Tax (Appeals) Rohtak is against law and facts on the file in as much as she was not justified to reject the application filed under Rule 46A of the Income-tax Rules, 1962 for submission of following documents as a .....

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of order of assessment dated 28.12.2010 in the case of M/s Smriti Buildcon Pvt. Ltd. for Assessment Year 2008-09; Ø Copy of order of assessment dated 31.12.2010 in the case of Smt Ritu Parwal for Assessment Year 2008-09; Ø Copy of submission in the case of Smt Ritu Parwal for Assessment Year 2008-09; Ø Copy of order of CIT(A) dated 23.10.2012 in the case of Smt Ritu Parwal for Assessment Year 2008-09; Ø Copy of memo of appeal before Hon'ble Tribunal in the case of .....

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ease Deed dated 12.07.2006. iii. That the order dated 09.12.2014 passed u/s 250(6) the Income-tax Act, 1961 by the Learned Commissioner of Income-tax (Appeals) Rohtak is against law and facts on the file in as much as she was not justified to reject the contention of the Appellant that the proceedings u/s 147 of the Act and consequent completion of assessment u/s 147/143(3) of the Act, are without jurisdiction and therefore, deserve to be quashed as such by unjustifiedly holding that there is no .....

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n accordance with law by unjustifiedly and erroneously holding that enough opportunities have been given to him during the assessment and remand 'proceedinqs which is contrary to the factual position. 2. The brief facts of case are that the assessee is an individual deriving income under the heads business income, income from house property, income from short term capital gain and income from other sources. Return of income for the assessment year 2008-09 was filed on 19th August, 2008, decl .....

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was conducted by the Investigation Wing at the office premises of the appellant, based on the strength of this information furnished by the officials of HPN Group of Companies that on money was paid to the appellant and his spouse, namely, Mrs. Ritu Parwal. A notice under Section 148 of the Act was issued on 23rd August, 2011. In response to this notice, the appellant submitted on 21.09.2011 that the original return filed on 19.08.2008 should be treated as return filed incompliance of the notice .....

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tion u/s 133A of the I.T. Act was conducted by the Investigation Wing on 08.12.2009 at the office premises of the assessee Sh. Sanjay Parwal, Director in various companies having registered office at C-25 Janakpuri, New Delhi. This action u/s 133A of the Income Tax Act 1961 was consequential to the search on HBN Group conducted by the Investigation Wing, New Delhi on 10.11.2009. During the search operation on B-53, B- Block, Community Centre, Janak Puri, New Delhi, the head office of HBN Group o .....

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or a total consideration of ₹ 12.95 Crores, and an amount of ₹ 8.70 crores was paid in cash by HBN group. Seized copies of some of the relevant documents seized during the course of the search. While recording the statement of Sh. Anil Mahajan, Chief Real Estate of HBN group by the Investigation Wing, it was revealed that this property was purchased by HBN group from Sh. Sanjay Parwal through transfer of shares of M/s Smriti Buildcon Pvt. Ltd. in the financial year 2007-08. Sh. Mahaj .....

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: 23 I am showing you pages 42, 45, 50, 51, 52, 115, 116 & 121 of the documents comprised in annexure A-I refer to above (recorded from this premise). A perusal of these documents reveals that the property at B-53, BBlock, Community Centre, Janak Puri, New Delhi has actually been purchased for ₹ 12.95crores. The gist of the payments is mentioned in page No. 116 itself, which is reproduced as below: Details of payments' Payment Payable Paid Balance Total Payments 12.95 9.5 3.45 Cas .....

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through transfer of shares. The sources of cash payment of ₹ 8.70 is known to promoters & Directors only. The above mentioned seized documents were also shown to Sh. Pankaj Tetarway, General Manager of HBN Group by the investigation wing. While recording his statement during search proceeding, he also admitted that a cash payment of ₹ 8.70 crores was made in this deal. Relevant portion of statement of Sh. Pankaj Tetarway, General Manager of HBN Group is reproduced hereunder:- Rel .....

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payments is mentioned in page No. 116 is reproduced as under: Details of payments' Payment Payable Paid Balance Total Payments 12.95 9.5 3.45 Cash 8.70 6.95 1.75 By Cheque 4.25 2.55 1.70 Details of cheque paid from HBN Dairies A/c Smriti Buildcon 2.15 Sanjay Parwal 0.20 Ritu Parwal 0.20 Total 2.55 Balance to be paid 1.70" Please acknowledge the same and also explain the sources of payment made in cash. Please also state whether you recognize the handwriting on page 121 of the above ann .....

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dly in your own hand writing please also explain the nature of the entries and narration against made therein, which is reproduced below: "12.76 - B-53 Parwal B-53 -12.95 12.95 - B-53 Nehra Shop. .55 12.20- Already paid to Parwal Comm. .13 13.63 50L - Nehra 19L Parwal 12.20 31L - Parwal .31 55L - Shop .25 13 Pay to Tyagi -55 (31-13) 24 L we will pay to Nehra" Ans: The name' Parwal' on the said page refers to Sh. Sanjay Parwal, 'the owner' of the property through his sha .....

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amounts. However, the proposal regarding the shop did not materialized and the deal for transfer of property through transfer of shares for ₹ 12.95 crores only. The difference was appropriated by Sh. Nehra as his commission. Que: 25 I am showing you page no. 105 to 108 of annexure No. A-I referred to above which purport to be the details of some work done on the property at B- 53, B-Block, community Centre, Janak Puri, New Delhi., Page No. 106 also contains a memorandum in your own handwr .....

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e amounts quoted by the contractors' whereas ones in red are the amounts actually sanctioned and paid. Out of the payments ₹ 80,00,000/-, the amount of ₹ 31 lakhs was paid in cash. As regards, the further payment of ₹ 25 lakhs, as I recall the same were paid through cheque only. The source of the cash payments of ₹ 31 lakhs can be explained by Sh. Bhavnani or Sh. Sran only. Similarly, statement of Sh. SO Bhavnani, CFO of HBN group was also recorded during the search o .....

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riti Buildcon Pvt. Ltd. through its Directors namely Sh. Sanjay Parwal and Smt. Ritu Parwal who had major share holding in the said company. It had also been revealed that in this deal a cash payment of ₹ 8.70 crores was made to Sh. Sanjay Parwal and Smt. Ritu Parwal by HBN group. The above documents were confronted to Sh. Harmender Singh Sran Chairman of HBN Group by the Investigation Wing and he was asked to explain the source of cash of ₹ 8.70 crores as paid to Sh. Sanjay Parwal a .....

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ment year 2008-09. On the basis of the documents seized during the search operation related to deal in respect of B-53, B-Block, community Centre, Janak Puri, New Delhi and statement given by the person of managerial level of HBN Group involved in the said deal, a survey operation U/S 133A of the Income Tax Act 1961 was conducted on 08.12.2009 by the investigation wing on the business premises i.e. C-25, Community Centre, Janak Puri, New Delhi of Sh. Sanjay Parwal (the then director of M/s Smrit .....

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trained. During the course of operating the locker no. 409 in the name of Sh. H S Sran, located at Canara Bank, Vikas Puri, New Delhi on 15.01.2010 some documents including agreement to sale related to property no. B-53, B-Block, Community Centre, Janak Puri, New Delhi were seized. The aforesaid agreement to sell was made on 14.01.2008 between Mr Virendra Nehra S/o Sh. Partap Singh Nehra Rio A-1/84, Chankya Place, Opp. C-l, Janakpuri, New Delhi- 110059 and Sh. Harmender Singh Sran S/o Sh. Baldev .....

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riti Buildcon Pvt Ltd, C-25, Community Centre, New Delhi through its Directors namely Sh. Sanjay Parwal and Sh. Anuj Puri. It had clearly been mentioned in this agreement the total consideration of property in question will be ₹ 12.95 crores and as per terms and condition a sum of ₹ 25 lakhs was to be paid to the first party as token money. This agreement to sell is witnessed by four persons. Alongwith this agreement to sell, a receipt dated 14.01.2008 was also enclosed in which it i .....

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Lakhs as discussed, is placed as Annexure-B( 3 scanned pages.) to the assessment order. It is worthwhile to mention here that the name of Virendra Nehra was also mentioned on page No. 121 of Annexure A-I seized from the office of the HBN Group companies a scan copy of which is at Annexure-A to the assessment order. The statement of Sh. Pankaj Tetarway in whose handwriting this page was written had been reproduced above. From the various documents seized during the course of search operation on .....

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he premise M/ s Delhi Fashion Exports Prop. Sh. Virendra Nehra, A-1I84 Chankya Place, Jankpuri, New Delhi also on 02.02.210. During the course of survey proceedings, statement of Sh. Virendra Nehra was recorded on oath by the Investigation Wing whereby he admitted that he acted on behalf of Sh. Sanjay Parwal / Smriti Buildcon Pvt Ltd in selling the property at B-53, B- Block, Community Centre, Janak Puri, New Delhi to Mls HBN Dairies & Allied Ltd. He confirmed the fact that the total conside .....

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ck, Community Centre, Janak Puri, New Delhi to M/s HBN Dairies & Allied Ltd. Que: 24 Kindly give the details of the property in question and the deal as mentioned by you in your earlier answer. Ans: The property no. B-53, B-Block, Community Centre, Janak Puri, New Delhi was regd. in the name of M/s Smriti Buildcon Pvt. Ltd. Sh. Sanjay Parwal, his wife Smt. Ritu Parwal had the majority share holding in the said company. Sh. Sanjay Parwal approached me for selling of the said property in quest .....

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ment to sale was made on 14.01.2008. Total consideration of the property was fixed at ₹ 12.95 crores. I received an amount of ₹ 25 lakhs in cash from Sh. Harmender Singh Sran as token amount against sale consideration of building at plot No. B-53, B-Block, Community Centre, Janak Puri, New Delhi and handed over the same to Mr. Sanjay Parwal on the same day. Que.25Kindly explain as to how the total consideration of ₹ 12.95 crores was transacted in the process of sale of property .....

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gh cheques by HBN Dairies & Allied Ltd. to Sh. Sanjay Parwal and Mrs Ritu Parwal. Que. 26 I am showing you the page number 56-57 and 58 of Annexure A-5 which was seized from Locker No. 409 in the name of HBN Group. Kindly acknowledge them as seen and explain the contents. Ans: Page 56 and 57 as shown to me is an agreement to sale of property no. B- 53, B-Block, community Centre, Janak Puri, New Delhi. This agreement was entered by me on behalf of M/s Samriti Buildcon Pvt Ltd with Mr. H S Sra .....

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no. B-53, B-Block, community Centre, Janak Puri, New Delhi, all of the four witness namely Sh. N. S. Tyagi (witness no. 1), Sh. Pramod Singhal (witness no.2) Sh. Pankaj Tetarway( witness no. 3) and Sh. G S Chauhan (witness no. 4) were summoned by the Investigation Wing and their statements were recorded on oath. Among these witnesses Sh. Pankaj Tetarway (witness no. 3) and Sh. G.S. Chauhan (witness no. 4) are the employees of HBN Group and were looking after the affaires of this deal on behalf o .....

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ement of Sh. Pankaj Tetarway (witness no. 3) recorded on oath on 03.02.2012 by the Investigation Wing. Que:3 Do you know Mr. Virendra Nehra S/o Sh. P.S. Nehra r/o Rajouri Garden. New Delhi? Ans: I came to know Mr. Nehra during the deal of property bearing no, B-53, B- Block, Community Centre, Janakpuri, New Delhi in the year 2008 or so. He was representing the then owner of the said property. Mr. Sanjay Parwal / Rittu Parwal. Que: 4 Kindly explain regarding the deal of property in question? Ans .....

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behalf of Smriti Buildcon Pvt. Ltd. on 14.01.2008. In between in this deal, I met Mr. Virendra Nehra a couple of times as well as Mr. Sanjay Parwal at his office at Janakpuri, New Delhi. Que:5 Please explain that what was the total sale consideration and mode of payment in this deal? Ans: As per ATS, shares of Smriti Buildcon Pvt. Ltd. were to be transferred to HBN Dairies & Allied Ltd. and others for a total consideration of ₹ 12.95 crores out of which ₹ 4.25crores was paid by .....

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ntre, Janakpuri, New Delhi between Virendra Nehra and Sh. H.S.Sran. I was a witness to this agreement to sale and had signed also on ATS as my witness no. 3. Que:7 Are you sure that signatures put as witness no. 3 are yours on ATS? Ans: Yes, I am sure, these are my signatures. Que:9 Please explain whether the remaining payment out of ₹ 12.95 crores was made to Sh. Virendra Nehra or Sanjay Parwall Ritu Parwal? Ans: Besides, the payment of Rs, 25,00,0001- which was given to Mr. Virendra Nehr .....

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, New Delhi. He was representing Mr. Sanjay Parwal / Ritu Parwal who owned the said property which was purchased by HBN group. During the course of this deal for the said property, I used to meet him i.e. Sh. Virendra Nehra. Que:4 Kindly explain in details of this deal related to the property no. B-53, BBlock, community Centre, Janakpuri, New Delhi. Ans: The property in question was registered in the name of M/s Smiriti Buildcon Pvt. Ltd.which was owned by Sanjay Parwal & Ritu Parwal. Sh. Vi .....

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h. Harmender Singh Sran and Sh. Virendra Nehra who was acting on behalfofSmriti Buildcon Pvt. Ltd on 14.01.2008. I was one of the witness to the said agreement to sale as mentioned above ..... Que. 7 Are you are that signatures mentioned on page no. 56 as witness no. 4 shown to you, are yours? Yes, I am sure, I signed these documents as witness no. 4 Que. 10. How do you know that Sh. Virendra Nehra was representing M/s Smriti Buildcon Pvt. Ltd. / Sanjay Parwal/ Ritu Parwal? Ans. I earlier mentio .....

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him against the sale consideration of the building in question. Similarly, other two witnesses namely Sh. Nardev Singh Tyagi (witness no. 1) and Sh. Parmod Singhal (witness no. 2) also admitted at the time of recording their statements on oath before the Investigation Wing that they had put their signatures as witness to the agreement to sell dated 14.01.2008 in respect of the property no. B-53, B- 1, Community Centre, Janakpuri, New Delhi entered between Sh. Virrendra Nehra (first party) and Sh .....

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appellant refused to cross examine them. Therefore, the learned Assessing Officer held that the appellant received money of ₹ 8.70 crores from the HPN Group of Companies and thus he brought the said amount to tax. Being aggrieved by this assessment order, an appeal was filed before the learned CIT(A), Rohtak. Before the learned CIT(A), the appellant filed an application under Rule 46A of the Income-tax Rules, 1962 for admission of the following additional evidence: Ø Copy of Memoran .....

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; Ø Copy of order of CIT(A) dated 23.10.2012 in the case of Smt Ritu Parwal for Assessment Year 2008-09; Ø Copy of memo of appeal before Hon'ble Tribunal in the case of Smt Ritu Parwal for Assessment Year 2008-09; Ø Copy of bank statement of the Appellant; Ø Copy of notice u/s 148 dated 9.12.2011 in the case of M/s Elecom Exports Pvt. Ltd for Assessment Year 2008,-09 alongwith reasons recorded; Ø Valuation of the property based on circle rate and independen .....

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ing decision: i. CIT Vs. Virgin Securities & Credits (P) Ltd., 332 ITR 396 (Del.); ii. CIT Vs. DLF Universal Ltd., 197 taxmann.com 250 (Del); iii. CIT Vs. Imperial Cables (P) Ltd., 159 taxmann.com 328; iv. Prabhavati S. Shah Vs. CIT, 231 ITR 1 (Bom.); and v. Electra Jaipur (P.) Ltd. Vs. IAC, 26 ITD 236 (Del.) 5. However, the learned CIT(A) called for remand report from the Assessing Officer on the admissibility of the additional evidence. The Assessing Officer strongly objected on the ground .....

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, dated 9th August, 2011 is not valid under the law for the reason that the approval from the Commissioner of Income Tax, Rohtak, was obtained, which was obtained instead of Joint Commissioner or Additional Commissioner and therefore it is a case of issuance of invalid notice without jurisdiction. In this regard, reliance was placed on the following cases: i. Anirudhsinhji Karansinhji Adeja and Another Vs. The State of Gujarat, 1995 AIR 2390 (SC) ii. CIT Vs. SPL s Siddhartha Ltd., 345 ITR 223 (D .....

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sons recorded under Section 148 of the Act were based on the assumptions, presumptions and factually incorrect information. In this regard, he relied upon the following decisions: i. Shipra Srivastava Vs. ACIT, 319 ITR 221 ii. Lakshya Exim (P) Ltd. Vs. ITO, 12 ITR (Trib.) 303 (Del.) iii. ITO Vs. Bidbhanjan Investment & Trading & Co. (P) Ltd., 132 ITD 51 (Mum.) ITO. iv. CIT Vs. Smt. Paramjit Kaur, 311 ITR 38 (P&H) v. DCIT Vs. Mrs. Rainee Singh, 125 TTJ 816 (Del), upheld by Delhi High .....

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Vs. CCIT, 267 ITR 716 (P&H); xiv. CIT Vs. Supreme Plypropolene, ITA NO. 266/2011, dt. 30.10.2012; xv. CIT Vs. Batra Bhatta & Co., 321 ITR 526 (Del.); xvi. Alpine Electronics Asia PTE Ltd. Vs. Director General of Income Tax, 341 ITR 247 (Del.) xvii. CIT Vs. Pradeep Kr. Gupta, 207 CTR 115 (Del.) xviii. Jaswinder Kaur Vs. ITO, ITA No. 1511/D/2011, A.Y. 2002-03, dt. 07.10.2011. 7. However, learned CIT(A) had turned down the plea and held that CIT has not issued direction to issue notice unde .....

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rom HBN Group and market as Annexure A-1 (pages 1-153 including page 42, 45,50,51,105-108,115,116 specifically referred in the statement); ii. Copy of statement of Sh. Anil Mahajan recorded by the Investigation Wing dated 21.11.2009 (page 3 of the order of assessment); iii. Copy of statement of Sh. Pankaj Tetarway recorded by the Investigation Wing, dated 20/21.11.2009 (pages 4-6 of the order of assessment); iv. Copy of stateme of Sh. S.G. Bhavnani recorded by the Investigation Wing (page 6 of o .....

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should be declared null and void. 10. These submissions of the appellant were turned down by the CIT(A). On the merits of the addition, learned CIT(A) after considering the seized material as well as the agreement to sell had come to the conclusion that the appellant had received on money of ₹ 8.7 crores. He further held that the submissions made by the appellant are contrary to the evidence on record. Therefore, he upheld the action of the Assessing Officer. He further held that the shar .....

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ssessment proceedings initiated are bad in law, inasmuch as, the approval of CIT, Rohtak, was obtained, which was not necessary under the provisions of Section 151 of the Act and he further raised objection that the reassessment proceedings were merely initiated on the directions of Investigation Wing of the Department, New Delhi, without the Assessing Officer applying his mind independently on this issue. In this connection, he relied upon the following decisions: i. CIT Vs. SPL s Siddhartha Lt .....

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mitting the additional evidence filed before him. Learned Authorized Representative made vehement submission that the learned CIT(A) ought not have confirmed the addition based on the photocopy of agreement to sale entered into among three parties, made as annexure-A to the assessment order, inasmuch as, original of which was not found, nor produced by the lower authorities. The appellant had denied to have signed such agreement and he relied upon the decision of Hon ble Punjab & Haryana Hig .....

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appellant, he brought to our notice that the appellant was not authorized by M/s Smriti Buildcon Pvt. Ltd. to sell the property by the company. He also submitted that apart from the appellant and his spouse, there are other share holders in the M/s Smriti Buildon Pvt. Ltd., meaning thereby, he alone cannot decide on the issue of selling the property standing in the name of M/s Smriti Buildcon Pvt. Ltd. Other contention of the appellant is that he was not afforded an opportunity of cross examina .....

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principles of natural justice. He strongly placed reliance on the orders of the lower authorities. Hence, he prayed for the dismissal of the appeal. 14. We have heard the rival submissions of the parties and perused the material on record. At first instance, we shall deal will the preliminary ground raised by the appellant regarding the challenging of reassessment proceedings. It was the contention of the appellant that the reassessment proceedings are invalid for the reasons that the approval o .....

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no evidence brought on record by the appellant to say that the Assessing Officer initiated the proceedings based on the borrowed satisfaction of CIT. Hence, this contention cannot be accepted. In the cases relied upon by the learned Authorized Representation, the permission was obtained from the Commissioner instead of Joint Commissioner, therefore, the Courts have held that the jurisdiction exercised by the Commissioner is invalid, inasmuch as, he is not competent to do so. In the present case, .....

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of documents as additional evidence. Learned CIT(A) denied the admission of additional evidence by holding that the appellant had not fulfilled the requirements of Rule 46A. Hon ble Kerala High Court in the case of C. Unnikrishnan vs. CIT [1997] 140 CTR 552 (Ker) had laid down that in the matter of production of additional evidence, the assessee has to show that (i) the Assessing Officer had refused to admit the evidence, (ii) alternatively, that he was prevented by sufficient cause from produci .....

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he principles of natural justice, inasmuch as, the Assessing Officer had not afforded an opportunity of cross examining the witnesses, nor confronted the evidence gathered by the Investigation Wing of the Department. In our opinion, this is contrary to the evidence on record. The Investigation Wing of the Department had summoned four witnesses as well as Mr. Virendera Nehra who had given statement that on money was paid on behalf of the HBN Group of companies to the appellant on 24th February, 2 .....

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case show that the assessee was in knowledge of the facts and the evidence is against him. Therefore, this ratio is squarely applicable to the facts of the case since the appellant was confronted to the adverse information given against him by the said four witnesses. Moreover, the appellant had not availed the offer of cross examination which amounts to waiver of right to cross examine the witness as held by the CIT Vs. Chandravilas, [1987] 164 ITR 102 (Guj.). In In Roger Enterprises P. Ltd. v .....

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that merely because one of the witnesses was not traceable, it would not render his evidence totally redundant. It can be made use of provided the facts comply with the provisions of section 33 of the Evidence Act. This section envisages that evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts .....

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, it was observed that- The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. There is no evidence on record that the appellant had requested for cross examination during the course of assessment .....

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r disregard of the principles of natural justice cannot be accepted. Accordingly, ground no. 4 is disposed of. 18. Now, we shall deal with ground no. 1 which assails the very addition of ₹ 8.70 crores in the hands of the appellant. The arguments of the learned Authorized Representative that the appellant had not sold the property cannot be accepted since it is judicially well known that in the case of a company the entire property held in the name of Company can be transferred through the .....

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the Hon ble Jurisdictional High Court in CIT Vs. EKL Appliances Ltd., (2012) 250 CTR (Del.) 264. Therefore, the argument of learned counsel that the appellant had not transferred any property to the HBN Group of Companies cannot be accepted. 19. Other ground urged by the learned Authorized Representative is that the addition was made purely based on the photocopy of the agreement to sell entered into among three parties, namely, Mr. Virdnera Nehra and Mr. Harmander Singh Sran and Mr. Sanjay Par .....

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the underlying object of sale of property held by the said company. When the Assessing Officer is possessed of this information that raises a presumption that on money of 8.70 crores was paid to the appellant. The burden to rebut this presumption shifts to the appellant. The appellant failed to rebut the same. Therefore, that it stands corroborated. It is equally settled principle of law that strict technical rules of Evidence are not applicable in the income tax proceedings. The Assessing Offic .....

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e persons, namely, the appellant, Mr. Virendra Nehra and Mr. Harmander Singh Sran the original of which is not traced cannot be form the basis for making addition. This submission cannot be accepted because it is settled principle that Photostat copy can be taken as an evidence, if the circumstantial evidence justifies, please refer to Moosa S Madha & Azam S Madha Vs. CIT, (1973) 89 ITR 65 (SC). In the present case, as held by us in supra, the presumption drawn by the Assessing Officer that .....

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ebut the same either before the Assessing Officer or Investigation Wing of the Department and he had not even availed the opportunity of cross examination, therefore, the information that the appellant had been paid on money of ₹ 8.7 crores in connection with the transfer of shares held by him in the M/s Smriti Buildcon Pvt. Ltd. remains uncontroverted. Moreover, it is undisputed facts that the appellant has transferred his shares and controlling interest in M/s Smriti Buildcon Pvt. Ltd. t .....

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at later stage is not acceptable, since the appellant had chosen not to advance this argument before the lower authorities, when he was confronted with the information. Had the appellant chosen to advance this argument before the Assessing Officer, the Assessing Officer should have sent this document for examination by the Forensic Authorities to examine the veracity of this document and conveniently the appellant has chosen to avoid this offer and agitating on this ground before us does not he .....

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