TMI Blog2018 (10) TMI 1346X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be held to be belonging to the assessee. - Decided in favour of assessee. - ITA No.1400/PUN/2015 - - - Dated:- 17-10-2018 - Ms. Sushma Chowla, JM and shri d. Karunakara Rao, AM For the Appellant : Shri Pramod Shingte For the Respondent : Ms. Shabana Parveen ORDER PER D. KARUNAKARA RAO, AM : This appeal is filed by the Assessee against the order of CIT(A)-2, Thane, dated 25-03-2015 for the Assessment Year 2009-10. 2. Grounds raised by the Assessee read as under : 1. On the facts and in the circumstances of the case and in law, the learned CIT (A) erred in rejecting the appellant's contention that initiation of proceedings u/s. 153C of the IT. Act, 1961 ('the Act') are bad-in-law even though no assessment or re-assessment proceedings in relation to this year were pending as on the date of the search u/s.132 of the act. 2. On the facts and in the circumstances of the case and in law, the learned CIT (A) erred in rejecting the appellant's contention that invoking of provisions of section 153C of the Act was bad-in-law in view of the fact that there was no money, bullion, jewellery or other valuable articles or things or books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on covered in the search and he was incharge of the land acquisition on behalf of the 62 other companies. The search resulted in seizure of various incriminating evidences/documents/loose papers etc. The seized documents reveal the details relating to land transactions in the 62 companies and the assessee is one among them. The documents indicate the unaccounted cash payments for acquisition of lands. Statement of Shri Dilip Dherai was recorded and confronted with the various documents seized from the premises. Statement of Shri Anand Jain (main person of Jai Corp Group) was also recorded. AO found that the contents of the said loose papers are recorded in the books of accounts of the assessee except the transactions mentioned in column cash payment . Shri Dilip Dherai agreed about the cash payments and retracted lateron by stating that the statement recorded was under pressure and coercion. At the end of the assessment proceedings, the AO invoked the provisions of section 69C of the Act and made addition of ₹ 3.84 crores (rounded off) as unexplained expenditure. 4. In the First Appellate proceedings, the CIT(A) confirmed the addition made by the AO. While com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra) are uniformly decided in favour of the assessee. It is held that the documents so seized by the Revenue cannot be held to be belonging to the assessees. Therefore, the relief stands granted to the assessees on technical grounds. Further, Ld. Counsel submitted that the Mumbai Bench of the Tribunal in the case of Harsha Land Private Limited (supra) passed a speaking order discussing the ratios of the judgments cited above. Ld. Counsel also relied heavily on the Bombay High Court judgment in the case of M/s. Avkash Land Reality Pvt. Ltd. Vs. DCIT and others as well as in the case of CIT Vs. M/s. Ambit Realty Pvt. Ltd., wherein the SLP filed by the Department before the Hon ble Supreme Court are dismissed. Ld. Counsel finally submitted that the additions made in the assessment on the basis of said loose papers are not sustainable on the technical grounds. 8. Per Contra, Ld. DR for the Revenue relied heavily on the Supreme Court judgment in the case of Vinod Solanki Vs. Union of India 16 SC 537 for the proposition that the merely because a statement is retracted, it cannot be treated that the first statement was involuntary or unlawfully obtained. It is only for the maker o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax (Appeals). Then the Tribunal noted the arguments of both sides. These arguments were noted in great details. Then, the Tribunal, in paragraph 18 and 19, held as under : .......................... .......................... 21. Thereafter, in paragraph 20, the Tribunal considered the merits and once again, at great length. The particular argument revolving around the statement of Dilip Dherai and his answer to question No.24 was also considered in paragraph 21 of the impugned order. Then, in paragraph 22, the Tribunal refers to the additions made under section 69C. After reproducing Section 69C and adverting to the fact that Dilip Dherai has retracted his statement, the Tribunal arrived at the conclusion that merely on the strength of the alleged admission in the statement of Dilip Dherai, the additions could not have been made. The concurrent findings of fact would demonstrate that the essential ingredients of Section 69C of the IT Act enabling the additions were not satisfied. This is not a case of no explanation . Rather, the Tribunal concluded that the allegations made by the authorities are not supported by actual cash passing hands. The entire decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsiders the merits of the case as well. 23. As a result of the above conclusion, we cannot agree with the learned Additional Solicitor General that we can pass a different order and entertain these Appeals for the current year of the search, namely, the Assessment Year 2009-10. That was based on the argument that the action under Section 153C for this year is an incorrect conclusion. All the earlier orders in these Appeals having being noted by us, we have no hesitation in concluding that despite sufficient opportunity being given to the Revenue, it has not been able to satisfy this Court that a different view can be taken. 4. As a result of the above discussion, and when it is conceded that all these Appeals involve identical issue and challenge, we proceed to dismiss them but without any orders as costs. 9.2 We also find the Hon ble Bombay High Court in the case of CIT Vs. Arpit Land Pvt. Ltd., as well as in the case of M/s. Ambit Reality Pvt. Ltd., dated 07-02-2017 (supra) decided the issue in favour of the assessee. For the sake of completeness, we proceed to extract the relevant paras from the said judgment : 6. We note that in terms of Section 153C of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the view that non satisfaction of the condition precedent viz., the seized document must belong to the respondent-assessee is a jurisdictional issue and non satisfaction thereof would make the entire proceedings taken thereunder null and void. The issue of Section 69C of the Act can only arise for consideration if the proceedings under section 153C of the Act are upheld. Therefore, in the present facts, the issue of Section 69C of the Act is academic. 8. In view of the above reasons and particularly the finding of fact that seized document which forms the basis of the present proceedings, do not belong to the petitioner and the same not being shown to be perverse, the question as raised does not give rise to any substantial question of law and thus not entertained. From the above judgments, it is a settled issue that the seized papers seized from the premises of Jai Corp Group and others cannot be relied upon for making additions in the hands of the land aggregators whose names appeared in the said documents. It is not the case of the Revenue that the judgments/decisions delivered in the cases of appeals involving M/s. Arpit Land Pvt. Ltd., M/s. Lavanya Land Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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