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Subhash Khattar Versus ACIT, Central Circle-18, New Delhi

2016 (8) TMI 460 - ITAT DELHI

Validity of jurisdiction of AO under sec. 153A - addition on account of unexplained source of investment in cash in a project on the basis of material found during the search at the premises of Aerens group - Held that:- A huge addition of ₹ 3,21,00,000 cannot be made in a casual manner without having corroborative evidence in support. It is a prevailing practice in the dealings of immoveable properties that cash amount, if any, out of the agreed consideration is paid during the course of .....

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00 in cash. - Assessing Officer was not justified in assuming jurisdiction under section 153A and authorities below were also not justified in making and sustaining the addition in question merely on the basis of a hard disc found during the course of search at the premises of Aerens Group without any corroborative evidence in support. We thus hold that the assessee/appellant succeeds on both the above issues i.e. on validity of assumption of jurisdiction under sec. 153A and the addition in .....

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the Assessing Officer assumed under sec. 153A and (ii) the addition of ₹ 3,21,000 made on account of unexplained source of investment in cash in a project on the basis of material found during the search at the premises of Aerens group. 2. Heard and considered the arguments advanced by the parties in view of orders of the authorities below, material available on record and the decisions relied upon. 3. The relevant facts are that search & seizure operation was conducted on 17.8.2011 in .....

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course of search proceedings in the premises of Aerens group, a hard disc was found and seized marked as Annexure A-32 wherein details of sales status of Indrapuram Habitat Centre were found showing the name of assessee at Sr. No. 32. The said hard disc was in by the name of the file as DP Correction Sheet-xls . In the detail given against the name of the assessee, total sale consideration of the property was shown at ₹ 6,21,00,000 consisting payment through cheque at ₹ 3,00,00,900 .....

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assessee and merely on the basis of hard disc found at the premises of the third party, the Assessing Officer has wrongly made huge addition of ₹ 3,21,00,000 in the assessment framed under sec. 153A of the Income-tax Act, 1961, without giving opportunity to the assessee to cross-examine the said party. There is no evidence on record to establish by the department that the assessee had made the alleged investment of ₹ 3,21,00,000 in cash. It is also incorrect to say on the part of the .....

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d on 10.2.2012, the assessee had denied the alleged investment and again vide letter dated 02.03.2012 has confirmed cheque payment only. The Learned CIT(Appeals) has also erred in holding that ₹ 100 stamp paper of agreement dated 10.10.2005 had been tempered with and erased with fluid to mention date as 10.10.2005 that too without cross verifying with the assessee or giving any opportunity to the assessee to explain. The Learned CIT(Appeals) has also erred in holding that there is discrepa .....

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at the Assessing Officer also drawn an inference about the alleged payment of cash by the assessee as a person Mr. I.E. Soomar shown in the seized material had admitted investment in cash by him and had paid tax thereon, without giving any opportunity to the assessee to cross examine him. He further submitted that in the said seized material, no where it was written that when the alleged cash amount has been paid by the assessee. Thus, the seized sheet is a dump document. The Assessing Officer h .....

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amed under sec. 153A of the Act against the assessee and the assessment, if any, on the basis of material found at the premises of the person searched can be framed against the assessee only under sec. 153C of the Act. 5. The Learned AR submitted that in the present case, original assessment was completed under sec. 143(3) of the Act on the total income of ₹ 20,41,810 vide order dated 13.11.2007 and thus no assessment was pending on the date of search i.e. 10.02.2012 at the premises of the .....

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Aggarwal - 293 ITR 43 (Del.); etc. 6. The Learned CIT(DR) on the other hand tried to justify the orders of the authorities below. He submitted that vide letter dated 21.2.2012, the authorized representative of the assessee has admitted before the Investigation Wing that the alleged investment was made. He submitted that most of the other investors in Aerens Group had admitted the cash payment made to the group. One of such investors Shri I.E.Soomar, whose name was also appearing along with asse .....

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heque dated 20.9.2005 to Aerens Group. The assessee thus cannot be allowed to rely upon the details found in the hard disc at the premises of Aerens Group in part only. 7. The Learned AR rejoined with the submission that the said letter dated 21.2.2012 written on behalf of the assessee only says that to buy peace of mind the assessee is ready to admit the payment to Aerens Group to the extent reflected in the books of account. It does not mean that the assessee had offered any admission regardin .....

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istration only. 8. Considering the above submissions, we find that the Learned CIT(Appeals) has upheld the addition in question mainly on the basis of (i) the details written on the hard disc found during the course of search from the premises Aerens Group, wherein payment through cheque and cash have been mentioned against the name of assessee at Sr. No.32; Shri I.E.Soomar appearing at Sr. No. 39 of the said hard disc had admitted the cash investment of ₹ 6.64 crores being made in the sai .....

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ution/registration of the sale deed and admittedly in the present case no sale deed or other mode of transfer has been effected. Merely because name of the assessee is appearing in the said hard disc and amongst other investors are investor Shri I.E. Soomar appearing in the said hard disc has admitted payment of cash amount, cannot be a basis for arriving at a definite conclusion, in absence of corroborative evidence in support, that the assessee had also paid the amount of ₹ 3,21,00,000 i .....

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