TMI Blog2022 (2) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee later from those people looking to the requirement of the matter. An additional evidence will be something that was already in existence previously but was submitted later, and this was not so in the present mater. Therefore, it cannot be termed as an additional evidence but as a supporting document. Further, we find that during the course of assessment proceedings, the assessee was not provided with the opportunity of cross-examination with the concerned persons on whose statements reliance was placed by the Assessing Officer. We also find that during the search proceedings no incriminating material was found from the assessee s premises relevant to the project Silicon City, therefore, the Assessing Officer wrongly presumed on the basis of some letters received from four persons that the assessee accepted large portion of Sale Consideration on sale of land in cash and the same was not accounted for by them. Thus, the additions were made by the Assessing Officer without appreciating the fact that neither any cash was found or seized nor any document relating to cash receipts was found or seized during the search proceedings. CIT(A) had made detailed discussi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ath Reality P. Ltd. and the decision taken for the assessment year 2009-10 will be applicable in the present group appeals as the same are also having identical facts and issue. Thus, we shall take up the case of Ajitnath Reality P. Ltd. for the assessment year 2009-10 to 2012-13 at first wherein, the Revenue has raised the grounds in the departmental appeals as under: Ajitnath Reality P. Ltd. Grounds of appeal in IT(SS)A No.14/Ind/2017 (A.Y. 2009-10) 1. On the facts and in the circumstances of the case the Ld. CIT(A) erred in deleting the addition of ₹ 42,75,63,950/- made by the AO on account of undisclosed sales from Silicon City Project without appreciating the facts and evidences brought into light by the A.O. during assessment proceeding. 2. On the facts and in the circumstances of the case the Ld. CIT(A) erred in allowing the appeals of assessee by accepting the additional evidences of affidavits for retraction of statements of purchaser of plot in Silicon City Project. Grounds of appeal in IT(SS)A No.15/Ind/2017 (A.Y. 2010-11) 1. On the facts and in the circumstances of the case the Ld. CIT(A) erred in deleting the addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessment Year Date of filing of return u/s 139(1) Returned Income 2009-10 12/09/2009 ₹ 21,71,160/- 2010-11 14/08/2010 ₹ 2,33,26,660/- 2011-12 07/09/2011 ₹ 2,63,64,810/- 2012-13 31/08/2012 ₹ 1,50,77,910/- Search and Seizure operations u/s 132 were carried out on the business as well as residential premises of the Jhaveri Group, Indore including the assessee along with other concerns/business associates on 21/09/2012. Notices u/s 153A were issued to the assessee and in compliance, the assessee filed returns of income declaring the same total income as filed in the original return. Notice u/s 143(2) was issued along with questionnaire u/s 142(1) and in response, the assessee from time to time furnished written submissions along with supporting documents. Subsequently, the assessment order was passed by Assessing Officer on 31/03/2015 by making fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the same was not accounted for by them which was not justified as the additions were made by the Assessing Officer without appreciating the fact that neither any cash was found or seized nor any document relating to cash receipts was found or seized during the search proceedings. Thus, learned Counsel for the assessee contended that the confirmation of the addition of ₹ 15,26,400/- by the ld. CIT(A) was not justified as ld. CIT(A) deleted the additions holding that no incriminating evidence material was found during the course of search operation. 6. We have heard the rival contentions and carefully perused the records placed before us. We find that the Ld. CIT-DR, except placing his reliance on the findings of the Assessing Officer, could not bring any corroborative material on record to justify the additions made by the Assessing Officer. We find that the ld. CIT(A) having gone through the material available on record, submissions and relevant judicial pronouncements deleted the additions by observing as under: The assessing officer has relied on the statements of four persons to reach the conclusion that M/s Ajitnath Reality Pvt. Ltd., M/s Padamprabhu Infrast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Further, we find that out of four persons whose statements were relied upon by the Assessing Officer, two have discredited the statement and retracted from the same via affidavits as submitted by the assessee during first appellate proceedings. It is worthy to mention that the said affidavits cannot be said to be additional evidences but the same are supporting documents in respect of the assessee s contention as the affidavits submitted were not like any old document which existed during the assessment/search proceedings but was produced later before the appellate authorities because those were actually acquired by the assessee later from those people looking to the requirement of the matter. An additional evidence will be something that was already in existence previously but was submitted later, and this was not so in the present mater. Therefore, it cannot be termed as an additional evidence but as a supporting document. Further, we find that during the course of assessment proceedings, the assessee was not provided with the opportunity of cross-examination with the concerned persons on whose statements reliance was placed by the Assessing Officer. Thus, the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions and reverse the order of the ld. CIT(A) in respect of confirmation of addition of ₹ 15,26,400/-. Accordingly, departmental appeals for the assessment year 2009-10 to 2012-13 are dismissed whereas the cross-objection filed by the assessee is allowed. Padamprabhu Infrastructure Reality P. Ltd. 9. Now, we shall take up the departmental appeals in case of Padamprabhu Infrastructure Reality P. Ltd. wherein the Revenue has raised the following grounds in departmental appeals: - Grounds of appeal in IT(SS)A No.20/Ind/2017 (A.Y. 2011-12) 1. On the facts and in the circumstances of the case the Ld. CIT(A) erred in deleting the addition of ₹ 1,00,30,044/- made by the AO on account of undisclosed sales from Silicon City Project without appreciating the facts and evidences brought into light by the A.O. during assessment proceeding. 2. On the facts and in the circumstances of the case the Ld. CIT(A) erred in allowing the appeals of assessee by accepting the additional evidences of affidavits for retraction of statements of purchaser of plot in Silicon City Project. 3. On the facts and in the circumstances of the case the Ld. CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011-12 2012-13 Returned Income ₹ 28,53,670/- ₹ 11,20,860/- Add: Addition on account of undisclosed receipts ₹ 1,00,30,044/- ₹ 76,06,744/- :Addition on account of Deemed Dividend u/s 2(22)(e) ₹ 58,50,000/- ₹ 91,00,000/- Total Assessed Income ₹ 1,87,33,710/- ₹ 1,78,27,600/- The Assessing Officer made the above additions on the basis of some letters received from four people namely Shri Dinesh Purohit, Smt. Manisha Patel, Shri Ankit Jain and Smt. Vijaya Pawar where they have stated that they paid on money over and above the amount for which the Registries have been done. Ground Nos.1 2 11. From above, it is clear that facts and ground nos.1 2 of the case of Padamprabhu Infrastructure and Reality P Ltd. are identical to the case of M/s Ajitnath Reality Pvt. Ltd. as also submitted by both the parties. Ld. CIT(A) while deleti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave heard the rival contentions and carefully perused the records placed before us. We find that the ld. CIT(A) having gone through the material available on record, submissions and relevant judicial pronouncements deleted the additions by observing as under: There are several judicial decisions where in it has been held that the assessee must be both registered as well as beneficial shareholder of the company from whom the loan is received for applicability of section 2(22)(e). To attract the provisions of Section 2(22)(e), the payment must be to a person who is registered holder of shares. The appellant company is not a registered holder of shares of M/s Ajitnath Reality Pvt. Ltd. and therefore, the provisions of Section 2(22)(e) would not be applicable. 17. Before us, the Ld. CIT-DR, except placing his reliance on the findings of the Assessing Officer, could not bring any corroborative material on record to justify the additions made by the Assessing Officer. We find that the additions on account of deemed dividend u/s 2(22)(e) were not valid as the provisions of Section 2(22)(e) did not apply in the assessee s case as specifically recorded by the ld. CIT(A) in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oath of the purchasers/customers of the assessee which served as the basis for framing the above mentioned addition by the Assessing Officer. 3. On the facts and in the circumstances of the case the Ld. CIT(A) erred in not appreciating the fact that all statements of the purchasers/customers of the assessee were recorded on oath and that retraction of such duly signed statement is merely an afterthought and is not acceptable in coherence to the principle of law laid down in the case of Deepchand Co. ACIT reported at 51 TTJ 421 (Bom.) 19. Facts as culled out from the record are that the assessee had filed return of income for the above assessment years declaring total income as follows: Assessment Year Date of filing of return u/s 139(1) Returned Income 2011-12 07/09/2011 ₹ 29,97,040/- 2012-13 15/09/2012 ₹ 54,26,570/- The case was selected for scrutiny through CASS and notice u/s 143(2) was issued and detailed questionnaire along with notice u/s 142(1) w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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