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TMI Blog2018 (11) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... l premises and A-1 to A-3 from M/s S.O. Sales Corporation and A-1 to A-22 from Advance Institute of Technology and Management, A-1 to A-22 from M/s Deep Medical Centre (P) Ltd. Were seized/impounded. At search time cash of Rs. 96,651/- and jewellery valued at Rs. 6,35,847/- were found. Jewellery valued at Rs. 9,68,957/- was also found from the locker No.90 OBC, Sector-19, Faridabad in the name of Manju Gupta. 4. It was found that land measuring 98 kanals 12 marla located at Village Aurangabad Tehsil Hodal, Faridabad, Haryana was purchased on 15th December, 2005 in the name of Bankey Bihari Education Trust, 969, Sector 15, Faridabad through Shri Vinay Gupta, Chairman from the ten villagers of Village Mitrol, Tehsil Hodal, Distt. Faridabad ("sellers") and the sale has been registered for Rs. 49,22,706/-. It turned out during the enquiry that such land was sold to the assessee for a consideration of Rs. 3,01,96,750/-. The sale was registered in the name of Bankey Behari Educational Trust through him for a sum of Rs. 49,22,706/-. When examined, it was stated by the sellers that an advance amount of Rs. 30 lacs was received at the time of agreement by way of cheque for Rs. 2 lacs and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee. 8. Aggrieved by such an addition, assessee challenged the same before the learned CIT(A) stating that no adequate opportunity was granted to him and there was violation of principle of natural justice and also that there were no grounds to make the huge addition of Rs. 2,58,24,044/- in his hands when the property was purchased by the trust, there was no need to put his money. The matter was remanded to the learned AO for providing an opportunity to the assessee for cross examination of the witnesses. However, learned AO by remand report dated 25.2.2011 submitted that cross examination of the sellers by the assessee was fixed on 15.11.2010 but it seems on that a letter was addressed seeking adjournment and such a letter was received on 16.11.2010; that another letter dated 22.11.2010 was filed in receipt counter and was received by the learned AO on 26.11.2010, but such a letter does not contain any reference of the cross examination of the witnesses. On 11.1.2011 at 10.30AM though the assessee appeared before the AO and the witnesses came by 11.30AM, but by looking at them approaching the chamber of the AO, the assessee simply left the premises to never come back despi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsus CIT 330 ITR 104 (Kolkata) for the principle that when the person from whom the documents were seized was not produced for cross examination, the addition cannot be upheld. Further reliance is placed on the decisions reported in JJ Enterprises versus CIT 254 ITR 216 (SC), CIT versus Vikas Electronics (International) P Ltd 204 taxation 148 (Del), and IT versus Bithika Nag and Sumar Nag 204 taxation 255 (ITAT) (Kolkata) for the principle that no addition could be made on exemptions and guesswork. CIT versus Balaji Wires Private Limited 304 ITR 393 (Delhi) is relied upon for the principle that in the absence of any corroborating evidence to connect the searched material, no addition could be made. Lastly, reliance is placed on CIT versus Kabul Chawla 380 ITR 573, PCIT versus Saumya constructions 81 taxmann.com 292 (Gujarat) and Meeta Gutgutia 395 ITR 526 is a relied upon for the principle that in the absence of any incriminating material qua the assessment year under consideration no addition could be made. 13. Per contra, it is the submission of the learned DR that it is incorrect to state that nothing was recovered during the search, but as a matter of fact, the documents stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by way of statements of the sellers and the brokers coupled with the calculation slip in respect of the sale consideration and basing on this the tentatively reached a conclusion that the sale consideration is not Rs. 49,22,706/- but it was Rs. 3,01,96,250/-. It could be seen from the letter dated 22/24-12-2010 of the Ld. CIT(A) that, when the Ld. AO in his letter simply stated that the sellers hve not attended the office nor any reply was filed them, Ld. CIT(A) expressED a sincere concern that in case sellers do not respond, an alternative measure to safeguard the interest of revenue would be to tax such cash received by them in their hands as the fact of availability of the cash is proved in their hands; that in the absence of any evidence to substantiate the fact that the same has been received by them from the purchaser of the property or in the hands of the purchaser after fulfilling the legal requirements. 17. It is therefore clear that the revenue is concerned with the taxability of the unaccounted money that had flown into the sale transaction and resulted in the sale consideration. The revenue was thinking of the alternatives whether it should be in the hands of the sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in favour of the revenue that the proceedings are conducted properly and regularly and a particular procedure is followed in a particular case. On the other hand, the conduct of the assessee as recorded by the learned assessing officer in the assessment order and also subsequently during the remand proceedings appears to be correct because of the interest of the assessee involved in this matter. If really the sellers deposited thereon unaccounted money in the bank on the name of the sale consideration for the land, nothing should have prevented the assessee from cooperating with the Department from eliciting such truth in the cross examination. For the reasons best known to the assessee, he wilfully abstained from participating in the enquiry process and conducting the crossexamination of the witnesses. The remand report submitted by the learned assessing officer was considered by the Ld. CIT(A) in the light of the affidavit of the assessee given on 07/06/2012. 20. Be that as it may, it is pertinent to note that even before us the assessee did not seek any opportunity for cross-examination of the witnesses. All the circumstances unmistakably point out that by noncooperation wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore are of the considered opinion that the cases relied upon by the assessee to say that in the absence of any incriminating evidence the authorities are not justified in making any addition. In the case of CIT versus Kabul Chawla (2016) 380 ITR 573 (Del) the Hon'ble Delhi High Court held that insofar as pending assessments are concerned, the generation to make the original assessment and the assessment under section 153 A merges into one, only one assessment shall be made separately for each assessment year on the basis of the findings of the search and any other material existing are brought to the record of the assessing officer. In this matter, therefore, Ld. assessing officer is justified in considering not only the sale deeds that were found during the search proceedings but also the other material in the shape of statements of the sellers and the slip containing the calculations in respect of sale consideration. We therefore find that the decisions relied upon by the assessee in the cases where the assessments were concluded, have no application to the facts of the case on hand. 24. In respect of the evidence on record, impugned order speaks that the learned assessing offic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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