TMI Blog2020 (10) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... EDI, AM: This appeal filed by the Assessee is directed against the order dated 22.09.2017 of the Commissioner of Income Tax (A)- 21, New Delhi relating to Assessment Year 2008-09. 2. The relevant facts as culled from the material on records are as under: 3. Assessee is an individual stated to be having income from salary, capital gains, property etc. Assessee filed return of income for A.Y. 2008-09 on 31.07.2008 declaring total income of ₹ 5,82,668/-. The return of income was initially processed u/s 143(1) of the Act. Subsequently, on the basis of information received by the AO from the Investigation Wing w.r.t cash payments for the purchase / booking of the property, the details of which according to the AO were not disclosed by the assessee in the return of income, notice u/s 148 of the Act was issued on 25.3.2015. Thereafter, the assessment was framed u/s 148/143(3) vide order dated 14.03.2016 and the total income was determined at ₹ 62,09,830/-. Aggrieved by the order of AO, assessee carried the matter before CIT(A) who vide order dated 22.09.2017 in appeal no. 21/2016-17 dismissed the appeal of the assessee. Aggrieved by the order of CIT(A), assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es by receiving part cash payments and the cash payments were not reflected in its books of accounts. From the details obtained from hard disk, it was noticed that assessee had also purchased Shop No. UG-1 at AEZ Vaishali and from the details it was noticed that assessee is stated to have paid ₹ 42,63,000/- through cheque and ₹ 56,27,160/- in cash to AEZ group. AO noted that the assessee had admitted to the investment of ₹ 42,63,000/- with AEZ group for purchase of property. The Assessee was therefore, asked to explain the source of cash payment of ₹ 56,27,160/- to AEZ group. Assessee denied the making of cash payment. The submission of the assessee was not found acceptable to AO. AO concluded that assessee has made investments in cash out of the income generated from undisclosed sources amounting to ₹ 56,27,160/-. He accordingly made its addition u/s 69 of the Act. Aggrieved by the order of AO, assessee carried the matter before CIT(A) who upheld the order of AO. Aggrieved by the order of CIT(A), assessee is now before us. 7. Before us, Ld .AR reiterated the submissions made before lower authorities and further submitted that the AO has merel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the hard disc. The Tribunal following the decision in the case of other Investors deleted the addition of unexplained investment under Section 69 of the Act. The paras of order of Tribunal mentioning the facts of material found from AEZ Group are as under: 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchased a plot by paying consideration in cash, it was held by the Hon ble High Court that the Assessing Officer could not prove by evidence that said documents belonged to the assessee and thafany on money transaction had taken place. The documents at the best only showed tentative/projected purchase consideration held the Hon'ble High Court. Again, in the case of CIT vs. Alpha Impact Pvt. Ltd. (supra), the Hon'ble Bombay High Court has been pleased to hold that addition to assessee s income in respect of additional sales consideration received in sale of land merely on the basis of Email recovered during the course of search action at the premises of another person and there being no independent material available supporting such additions, was not justified. Besides, we also find substance in the contention of the Learned AR that assessment under sec. 153 A of the Act in absence of incriminating material found during the course 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, we are of the opinion that no addition could have been made in the instant assessment year in absence of any incriminating material found from the premises of the assessee. 18. The facts and circumstances of the case being identical to the facts and circumstances of Sh. Subhash Khattar (supra), the addition on merit also deserve to be deleted following the finding of the Tribunal in ITA 902/Del/2015. We hold accordingly. The grounds of the appeal are allowed. 6. In para-18 (above), the Tribunal has deleted the addition on merit. As the identical issue is involved in the instant case, respectfully following above findings of the Tribunal, the addition made in the instant case, is also deleted on merit. Since we have already deleted the addition on merit, we are not adjudicating the grounds, challenging the validity of reassessment proceedings. 7. In the result, the appeal of the assessee is allowed. 10. Before us, no distinguishing feature in the facts of the present case and that of Subhash Khattar/Deepak Gupta (supra) has been pointed out by the Revenue. Further it has also not brought on record any material to show that the decisions of the co-ordinat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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