TMI Blog2019 (4) TMI 1925X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA No. 770/DEL/2015, ITA No. 938/DEL/2015 - - - Dated:- 12-4-2019 - Shri T. S. Kapoor, Accountant Member And Ms Suchitra Kamble, Judicial Member Appellant by: Sh. P. C. Yadav Smt. Manju Yadav, Adv Respondent by: Sh. S. S. Rana, CIT, DR ORDER Suchitra Kamble, JM These two appeals are filed by the assessees against the order dated 27/11/2014 passed by CIT(A)-XXVII, New Delhi for Assessment Year 2007-08 2006-07 respectively. 2. Though the issues are common in both the appeals we are dealing factual aspect and finding separately in each of the appeal. The grounds of appeal being ITA No. 770/DEL/2015 are as under:- ITA No. 770/DEL/2015 1. That the Ld. CIT (Appeal) has erred in law and on facts in confirming the addition of ₹ 31,35,850/- as income from undisclosed sources which was added by the ACIT, Central Circle-9, New Delhi in as much as the entire addition is unwarranted, based on surmises and conjectures, without any basis, illegal and thus, requires to be deleted in toto. 2. That the Ld. CIT (Appeal) has erred in law and on facts in not appreciating that the addition of ₹ 31,35,850/- has been made without any positive c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,85,850/- were available on record. According to the Assessing Officer no statutory explanation was furnished by the assessee except denial of the cash payment. Since the cash payment was approved on the basis of materials seized, the Assessing Officer opined that the assessee make the above cash payment out of the books of account and treated it as unexplained income of the assessee. However, before added back the same while notice dated 5/2/2014 along with copy of excel sheet. The Assessing Officer gave an opportunity to the assessee to furnish the reply. According to the Assessing Officer, the assessee filed reply narrated the history of the case without any merit to consider and extracted para 5 of the said reply and incorporated in the same in the assessment order as under:- Your honour merely on the basis of an impression which has been drawn by you based on one excel sheet found at the premises of third party no amount of addition can be made to our total income as cash investment in immovable property specially because not one single piece of evidence is available to prove our investment of alleged cash amount in the property. The Assessing Officer further observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn of income on 27/7/2007. The time limit for issuance of notice u/s 143(2) was expired on 31st July, 2008. On 17/8/2011, a search and seizure action has undertaken in the case of AEZ Group during the search. It is alleged that the assessee invest an amount of ₹ 39,35,850/- via cash in Nehru Vikas Minar. Thereafter a search action was also Thereafter, a search action was also undertaken in the case of assessee on 10.02.2012. However, no evidence supporting the case of revenue vis-a-vis investment in cash in Indrapurarn Habitate Center was found. AO issued notice to the assessee asking the source of alleged investment. During the course of assessment proceedings, the assessee explained that assessee had not invested anything in the alleged property. However, the Assessing Officer relied upon the confession of some I.E. Soomar and made the addition in the hands of the assessee. The Assessee filed appeal before the CIT (A) and argued that no addition can be made as no incriminating material was found in the search of assessee. However, the CIT (A) sustained the addition. The Ld. AR submitted that no addition can be made in absence of any incriminating document unearthed du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see of the responsibility cast upon her. In the same excel sheet, name of Sh. I.E.Soomar (name appearing at serial no. 39) who admitted the cash invested amounting to ₹ 6.64 crores and paid taxes on the said amount. As per para 6.1 of order of the CIT(A), annexure A-27 was also seized from corporate office of AEZ Group. Cheque payments made by the Lakhotia family as reflected in the file named DP. Correction sheet.xls and Down payment booking details. xls matched exactly with the cheques paid in the name of each family member of Lakhotia Family. Thus, the Ld. DR submitted various decisions with regard to presumption of entries found recorded in books of account seized during search as per sections 132(4A) 292C of I.T. Act. The Ld. DR though relied upon these decision could not controvert the decision of the Hon ble High Court in case of Subhash Khattar. 8. We have heard both the parties and perused all the records. It is pertinent to note that in present case on 17.08.2011, a search and seizure action has undertaken in the case of AEZ group during this search it is alleged that the assessee invested an amount of ₹ 39,35,850/-via cash in M/s Nehru Vikas Minar Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- in cash. The Hon ble Jurisdictional High Court of Delhi in the case of CIT Vs. Prem Prakash Nagpal (Supra) wherein Assessing Officer had made certain additions u/s 69 of the Act on the basis of the documents found during search at a place of third party which indicated that assessee had purchased 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 that any 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 addition, was not justified. Besides, we also find substance in the contention of the Learned AR that assessment u/s153A of the act in absence of incriminating ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the premises of the assessee on 10.02.2012. The case of the assessee was centralized vide order issued by the Commissioner of Income Tax, Delhi-VIII, New Delhi, u/s 127 of the Income Tax Act, 1961 on 25.09.2013 and the jurisdiction over the assessee s case was assigned to the present Assessing Officer, Central Circle- 9, New Delhi. Thereafter, a notice u/s 153A of the IT Act, 1961 was issued and served upon the assessee on 30.09.2013. In response to the same, it was stated that the return filed u/s 139(1) on 25.07.2006 be treated as the return filed in response to notice u/s 153A. Subsequently, statutory notices u/s 143(2) and 142(1) were issued and served upon the assessee. In response to the same, the Authorized Representative of the assessee attended the assessment proceedings and furnished the requisite information, documents, accounts etc. Thereupon, the assessment was completed in terms of an order u/s 153A read with section 143(3) at a total income of ₹ 26/19/064/-/- as against the returned income of ₹ 98,180/-, wherein the Assessing Officer made an addition of ₹ 25,20,884/- on account of undisclosed income. In the course of search proceedings u/s 132 in ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 25,20,884/- made by the assessee was not disclosed by assessee in its books of account. Accordingly, the Assessing Officer added the amount of ₹ 25,20,884/- to the income of the assessee as income from undisclosed sources. 12. Being aggrieved by the Assessment Order, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee. 13. The Ld. AR submitted that the present appeal of the assessee is arising from the order of CIT(A) dated 27.11.2014 and relates to AY 2006-07. The assessee is a HUF and filed its original return on 25.07.2006. The return filed by the assessee was selected for scrutiny and then assessment under section 143(3) was framed. On 17.08.2011, a search and seizure action has undertaken in the case of AEZ group during this search it is alleged that the assessee invested an amount of ₹ 32,70,884/-via cash in M/s Indrapurarn Habitat Center Pvt. Ltd. Thereafter, a search action was also undertaken in the case of assessee on 10.02.2012. However, no evidence supporting the case of revenue vis-a-vis investment in cash in Indrapurarn Habitate Center was found. AO issued notice to the assessee asking the source of al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of hard disk as X annexure A-32 file name DP.Correction sheet.xls containing details of sales status of its flat at Indirapuram Habitat Centre. As per this seized document, the assessee had made payment of ₹ 25,20,884 in cash ₹ 7,50,000 by cheque. The Ld. DR further submitted that the assessee failed to discharge its onus for reconciliation of entries in the seized document with its books of account as well as return of income as required by provisions of section 132(4A) and 292C of Income Tax Act. Mere denial of cash payment does not absolve the assessee of the responsibility cast upon it. In the same excel sheet, name of Sh. I.E.Soomar (name appearing at serial no. 39) who admitted the cash invested amounting to ₹ 6.64 crores and paid taxes on the said amount. As per para 6.1 of order of the CIT(A), annexure A-27 was also seized from corporate office of AEZ Group. Cheque payments made by the Lakhotia family as reflected in the file named DP.Correction sheet.xls and Down payment booking details. xls matched exactly with the cheques paid in the name of each family member of Lakhotia Family. Thus, the Ld. DR submitted various decisions with regard to pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that cash amount, if any, out of the agreed consideration is paid during the course of execution/registration of the sale deed and admittedly in the present case no sale deed or other mode of transfer has been affected. Merely because name of the assessee is appearing in the said hard disc and amongst other investors are investor Shri I. E. Soomar appearing in the said hard disc has admitted payment of cash amount, cannot be a basis for arriving at a definite conclusion, in absence of corroborative evidence in support, that the assessee had also paid the amount of ₹ 3,21,00,000/- in cash. The Hon ble Jurisdictional High Court of Delhi in the case of CIT Vs. Prem Prakash Nagpal (Supra) wherein Assessing Officer had made certain additions u/s 69 of the Act on the basis of the documents found during search at a place of third party which indicated that assesseee had purchased 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 that any on money transaction had taken place. The documents at the best only showed tentative/projected purchase consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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