TMI Blog2018 (1) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012, notice under section 153A of the Act was issued on 30/09/2013. The legal heir of the assessee submitted that return filed under section 139(1) of the Act on 27/07/2007 might be treated as return filed under section 153A of the Act. Thereafter, statutory notices under section 143(2) and 142(1) of the Act were issued and complied with. The Assessing Officer noted that on the basis of material seized in search action on AEZ Group , it was observed that assessee invested a sum of ₹ 39,35,850/- in Nehru Vikas Minar Project of M/s Celebration City Project Private Limited. In the seized documents, breakup of the investment of ₹ 39,35,850/- was recorded as cheque of ₹ 7,50,000/- and cash of ₹ 31,85,850/-. The Assessing Officer further noted that on similar evidences found during the search action at the AEZ Group, one of the investors Sh. I.E. Soomar admitted the cash amount invested amounting to ₹ 6.64 crores and paid taxes on the said amount. In the submission filed, the assessee denied any investment in cash. The Ld. Assessing Officer, rejected the contention of the assessee and added a sum of ₹ 31,85,850/- to the total income of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated cheques (PDC) were seized as Annexure A-7 and A-8. 5. Further, both the Assessing Officer as well as the Ld. CIT-(A) has noted that the fact of cash investment was recorded in two documents found during the course of search action at the AEZ Group . Those two documents are as under: (i) Excel file named down payment booking details.xls printed from the hard disk found during search on 17/08/2011 from the corporate office of the AEZ group at 301/303, Bakshi house, Nehru Place, New Delhi (ii) Excel file named down payment booking details.xls retrieved from the hard disk found and seized as Annexure A-27 from the corporate office of AEZ group 6. The Ld. CIT-(A) has mentioned that in both these Excel files name of the assessee as purchaser, covered area, sale price, cheque amount and cash amount received by the seller are recorded. 7. The Ld. CIT-(A) in para-6.1.2 of the impugned order has mentioned that on the basis of the Excel sheet , the amount received from the assessee by way of cheque and cash was shown at ₹ 7,90,000/- and ₹ 31,85,850/- respectively aggregating to ₹ 39,35,850/- and the balance of ₹ 40,000 was again shown to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons admitted to have made the investment in cash. The appellant's name appeared in the said list which it admitted to the extent of cheque payments that endorses its link with some degree of certainty that cannot be ignored or overlooked. The DP correction sheet.xls threw light on the reliability of information, specific and intimate facts, and corroboration of the same by admission of few persons mentioned in the list. This sheet also described every day or common transactions that could have accrued at that time. 6.1.3 For Indirapuram Habitat Centre Project, one person by named Sh. I E Soomar invested ₹ 5,00,00,000/- in cash and ₹ 1,54,00,000/- by way of cheque out of the total cheque amount of ₹ 1,88,70,000/-. It was found that till the date 30.6.2007 ₹ 1,54,00,000/- was paid by cheques in addition to the cash. In the said file, the column remarks at point 5 of the table in the data showed Buy back option upto 30.6.2007 for repurchase of ₹ 6,54,00,000/- . It was found that this buy back amount was exactly similar to the total investment made by Sh. I E Soomar as he appeared and admitted that cash investment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of search. No plausible explanation was filed by the appellant in the course of the assessment proceedings accept to state/narrate the history of the case and put forth a single line argument as under: No addition can be made to its income as cash investment made in immovable property on the basis of an excel sheet found at the premises of a third party, especially because no single piece of evidence is available to prove our investment of alleged cash amount in the property. Other than the above contention, the appellant did not file any supporting evidence pertaining to the above denial. However, the AR of the appellant has relied on the judicial pronouncement of various case laws where addition cannot be made on the basis of the material found at the third party premises. I do not find any merit in the argument of the appellant because the facts are entirely different and are distinguishable from the facts of the cases referred. Here, the evidence found at the third party premises is a probable cause that can be linked to the transactions of the appellant where a part of them were admitted by the appellant. Therefore, this is not a case where the evidence foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that this condition of completed assessment, was anyway not disputed by the Ld. CIT(DR). 13. As far as the second condition of the incriminating material is concerned, we have already analyzed the material seized from the premises of the assessee and the material seized from the premises of AEZ Group in above paragraphs. In view of the analysis, we are of the considered opinion that during the search action at the premises of the assessee, which is basis of taking action under section 153A of the Act , no incriminating material was found . 14. Before us, the Ld. counsel of the assessee also relied on the decision of the Hon ble High Court of Delhi dated 25/07/2017 in the case of Principal CIT, Central-2, New Delhi Vs. Subhash Khattar in ITA 60/2017. In the said case, the Tribunal in ITA No. 902/Del/2015 observed as under: 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; S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of search at the premises of the assessee and in absence of abatement of assessment on the date of search, cannot be made in the present case as per the above cited decisions including the decision of Hon'ble jurisdictional Delhi High Court in the case of CIT vs. Kabul Chawla (supra). Under the circumstances, we are of the view that the Assessing Officer was not justified in assuming jurisdiction under section 153 A 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 question. The grounds involving the above issues are accordingly allowed. 15. We find that the Tribunal, both on the validity of addition under section 153A of the Act and merit of the addition in question has decided the issue in favour of the assessee. In the instant case, also the Assessing Officer has relied on the statement of Sh. I.E. Soomar for making addi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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