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TMI Blog2016 (6) TMI 1160X X X X Extracts X X X X X X X X Extracts X X X X ..... sing officer has completed the assessment proceedings under section 143 (3) instead of u/s 153A rws 153C of the act. He stated that it is the root cause of the addition and ground is legal in nature. He further stated that no fresh facts are required to be looked into to decide the above ground of appeal. Therefore,this ground of appeal should be admitted and adjudicated. 4. Ld. Departmental representative objected to the admission of additional ground submitting that there is no error in the order passed u/s 143(3) of the act by the AO, which is confirmed by the Ld. CIT (A). He further submitted that assessee has not taken this objection before the Ld. AO as well as before the Ld. CIT (A) and therefore at this stage this ground of appeal should not be admitted. 5. We have carefully perused the prayer of the assessee for admission of additional ground of appeal. It is apparent that this ground of appeal is purely legal in nature and does not require any further facts to be adduced by both the parties. In view of this, we admit additional ground of the appeal for adjudication. 6. The brief facts of the case are that appellant company is a private limited company engaged in the bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l before the Commissioner of Income Tax (Appeals). Before the Ld. CIT (A), Assessee submitted that the addition was made on surmises and conjectures. Shri BK Dhingra was the third party who had no connection with the appellant that as per heading of the chart seized it merely listed parties "taking interest in the residential projects". He submitted there is no signature of the director/ shareholder on it. Therefore, burden of proof rests with the revenue. He further submitted that no cheques were ever transacted as per the bank statements as the counterfoils of chequebook seized by the Income tax department. Assessee filed fresh confirmation from 41 parties as additional evidences under rule 46A citing insufficiency of time before the Ld. AO. The Ld. AO submitted the remand report on 25th of May 2012 in response to which the assessee filed rejoinder on 17/12/2012. Based on the above facts and circumstances the Ld. CIT (A) decided the issue against the assessee confirming the addition of Rs. 1,40,78,000/-. Reasons given for confirming the addition by ld. CIT (A) that noting on the pages are not projections but record of real events. According to him counterfoil of the chequebook is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue has not done all these mandatory exercise and despite the seized documents; ld. AO has made assessment u/s 143(3) of the act. Therefore he submitted that assessment order passed u/s 143(3) of the act based on seized material which has come in to possession of ld. AO is bad in law and he should have carried out assessment proceedings in accordance with section 153C of the act. 10. On the merit of the addition, he submitted that the 3 companies have jointly purchased agricultural land at village Gharauli Gurgaon, in financial year 2007 - 08 and after amendment to the master plan of Gurgaon the revised application for grant of license was made and the authorities have granted the license only in financial year 2012 - 13.Therefore, there is no such project in existence at that time and no one will pay in FY 2008-09 for which project that has not started even in FY 12-13. He further submitted that along with the search under section 132 conducted on Thapar group on 28th of October 2008 survey under section 133A was also carried on in the business premises of the assessee however during the course of survey no incriminating material has been found which can corroborate the seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its of the case, he mainly relied on the orders of the Ld. AO and Ld. CIT (A) stating that that the plea of the assessee that the transactions are yet to be entered into is not correct. Therefore, he submitted that that ld. AO has rightly made the addition and confirmed by the CIT (A) and therefore it maybe upheld. 12. We have carefully considered the rival contentions and perused the orders of the lower authorities and the document seized. We have alreadydiscussed the brief facts of the case above. Both the issues on legal aspects as well as on merits of the addition are dealt with as under :- 13. On legal issue, admittedly, assessment has been framed by the ld. AO u/s 143(3) of the act and whole addition has been made based on seized document being page 1 of Annexure A-12 impounded from the premises situated at 604, tower - IIA, Rajender Palace, New Delhi during search on Thapar homes group of cases. Therefore, apparently,impounded material received by Ld. AO is in case of search on third party and he was of the view that documents belong to the assessee and it has a bearing on the determination of the total income of the appellant. With effect from 1stJune 2003, provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies are mentioned i.e. (1) Prime Infoways private Limited, (2) Prime IT solutions P Limited, (3) Phoneix dataTech Services private Limited (Appellant). These chart further states the names of 66 companies. There it is mentioned " names of the parties in whom favors cheques are to be issued" . Further on that chart below on top also shows the names of the above three companies purportedly written in acronyms and below that square feet and area converted in to square meter is mentioned. Then the details of 66 parties are mentioned showing area booked, rate per square feet, total advance payment, then there is bifurcation between above three companies including appellant of the square feet area, next column shows amount of cheque , amount in cash and cheques issued, balance. Subsequent documents shows the cheque book counterfoils of six companies where in the counter foils of cheque books were found showing issue of cheques in the name of appellant and other two entities. Namely in case of party no. 1 listed in the statement is Akshya Aroogya mandir private limited from cheque book counterfoil with kotak Mahindra Bank Limited shows issue of cheque in the name of appellant of Rs. 9,60 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the person from whose possession these chart and also the counterfoils of the cheques of six companies were found. In fact, there is no averment in the order that any such statement is in possession of revenue. iv. Furthermore the name of all the parties in that particular statement wherein bookings in the name of those parties have been shown, appellant has filed confirmation of those parties stating that they have not booked any such premises and also apparently no payment have been made. On these confirmation ld. AO has neither issued any summons to those parties nor examined their bank statement about the issue of those cheques and whether these cheques have been cleared or not. The assessing officer and CIT (A) have brushed aside those confirmations as meaningless. In fact,on examination of those confirmations, reality of the reason for writing counterfoils of the chequebooks in the name of appellant and two other companies would have been known to revenue . The reason why those cheques were issued but were never came in to the bank accounts of the appellant and whether they are really handed over to the appellant company is also not known to revenue. It is an uncont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This assertion of Ld. CIT (A) is also not supported by evidences because in those circumstances the cheques issued by those companies should have been reflected in the bank statements of the appellant companies. It is unassailed that these cheques have never been credited in the bank account of the appellant company. x. Ld CIT (A) relied on the decision of Honourable Delhi High court in case of CIT V Sonal Constructions 28 taxmann.com 127 (del for calculations shown in the documents. In the present case as the project is non-"existent, the cheques are not credited in the bank account of the appellant, the confirmation of the parties that the y have not made any bookings and have not paid any sum to the appellant company, the facts of that case are distinguishable. 15. In view of the above reasons, we reverse the finding of the ld. CIT (A) in confirming the addition of Rs. 14078000/- in the hands of the appellant on account of booking sums allegedly received from those parties. In the result, solitary ground raised in the appeal is allowed. 16. In the result as the additional ground of the appeal of the assessee is dismissed , the appeal is partly allowed. 17. Order pronounce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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