TMI Blog2022 (10) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... essee. The ground raised by the assessee is allowed. - I. T. A No. 3086 / Del / 2015 - - - Dated:- 20-9-2022 - SHRI CHALLA NAGENDRA PRASAD , JUDICIAL MEMBER , S. M. C. Assessee by : Shri Priyansh , C. A. ; Department by : Shri Sumesh Swani , Sr. D. R .; ORDER PER C. N. PRASAD , J. M. : 1. This appeal is filed by the assessee against the order of the ld. Commissioner of Income Tax (Appeals) Ghaziabad [hereinafter referred to CIT (Appeals)] dated 27.03.2015 for assessment year 2008-09 in sustaining the addition of Rs.20,00,000/- on account of un-explained investment on the basis of search report in the case of AEZ group. 2. Briefly stated the facts are that the assessment in the case of the assessee was re-opened by issue of notice dated 16.11.2012 under section 148 of the Income Tax Act, 1961 (the Act). In response to notice under section 148 of the Act the assessee filed return of income on 18.12.2013. The assessment was re-opened based on the information received from Investigation Wing that the assessee has invested Rs.40,00,000/- towards purchase of commercial property in Nehru Vikas Minar Projects out of which Rs.20,00,000/- was paid in cash. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that this was the only bank account maintained by the assessee during the subject assessment year. Referring to page Nos. 6 to 23 of the paper book which is a copy of reply dated 25.02.2015 filed by the assessee before the Assessing Officer, the ld. Counsel submits that Nehru Vikas Minar Projects was under the name of M/s. Celebration City Projects Pvt. Ltd. of AEZ group and they have expressly confirmed that no payment has been received by them from the assessee either in cash or cheque or demand draft and they have no booking of any commercial establishment in assessee s name. The ld. Counsel further submits that the assessee has not shown any investment in his financials. It is submitted that only loose sheets were seized in the premises of AEZ group and even these sheets were not available at the time of recording of reasons. The ld. Counsel further submits that assessee also submitted confirmation from M/s. Celebration City Projects Pvt. Ltd. of SEZ group company confirming that no payment has been received by them from the assessee either in cash or cheque or demand draft for sale of space in any of its projects by the assessee. Therefore, the ld. Counsel submits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the Ld. AO was report of the investigation wing and the Ld. AO did not even have copy of seized material allegedly bearing the name of the assessee or any other document to prove that the assessee has made payment of Rs.20,00,000/- in cash. It is pertinent to note here that this alleged seized material was also no available the Investigation Unit, New Delhi. This is evident from copy of remand report dated 16.03.2015 sent by Ld. AO to Ld. CIT(A) enclosed as PB 8- 9. Perusal of para 3 would show that copy of alleged seized material i.e. page 39 of Annexure-1, copy of statements and other documents were requisitioned by the Ld. AO for the first time vide office letter dated 20.02.2015 i.e. after the conclusion of assessment proceedings and nothing was available with the Ld. AO at the time of passing the impugned assessment order. Further, it is submitted that it is evident that even DDIT (Invt.) did not have the said document and it has been admitted that alleged loose sheet was the only document with respect to alleged transaction of Rs. 20,00,000/- in cash and there is nothing more available against the assessee. It is also submitted that the Ld. AO has in the remand report, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Nehru Vikas Minar Projects Pvt. Ltd. The assessment was re-opened solely on the basis of report of Investigation Wing. In the assessment order the Assessing Officer noted that in the course of search and seizure operation in AEZ group details of the assessee were found regarding investment in Nehru Vikas Minar Projects and such total investment was Rs.40,00,000/- out of which Rs.20,00,000/- was paid in cash. Therefore, based on the report of the Investigation Wing the Assessing Officer concluded that the assessee had made un-explained investment and accordingly Rs.20,00,000/- was treated as un-explained investment under section 69 of the Act which was sustained by the ld. CIT (Appeals). The assessee contends that neither he nor any of his family members purchased any commercial property from AEZ group concerns and the confirmations were also furnished stating that the assessee neither made any cash payment or cheque payment or made any sort of investment for purchase of commercial property. The assessee also furnished bank statement wherein nothing was reflected as to any investment made by the assessee. The finances of the assessee were also not shown any investments. None of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee has invested an amount of Rs 25,20,884/-via cash in M/s Indrapuram Habitat Center Pvt. Ltd. Thereafter, a search action has also been undertaken in the case of assessee on 10.02.2012. The Ld. AR submitted that no evidence supporting the case of revenue vis-a-vis investment in cash in Indrapuram Habitate Center has been found. The Ld. AR further submitted that the Assessing Officer issued notice to the assessee asking the source of alleged investment. The Ld. AR submitted that during the course of assessment proceedings the assessee explained that the assessee had not invested anything in the alleged property. However, the Assessing Officer relying of the confession of some I.E. Soomar made the addition in the hands of the assessee. The Ld. AR further submitted that the Assessee filed appeal before the CIT (A) and argued that no addition can be made as no incriminating material has been found in the search of assessee. The Ld. AR submitted that the CIT(A) dismissed the appeal without taking cognizance of the correct facts. 7. The Ld. AR submitted that in one similar matter namely in the case of Subhash Khattar a similar addition of Rs 3,21,00,000/- has been made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 said confession and the said Group search is already taken into account in co-investor s case by this Tribunal. The Tribunal has allowed the appeal of the co-investor which is mentioned in the proceedings of the present assessee (Subhash Khattar Vs. ACIT A.Y. 2006-07 ITA No. 902/Del/2015 order dated 30/06/2016). The Hon ble Tribunal held in para 8 as under: 8. Considering the above submissions, we find that the Learned CIT(Appeals) has upheld the addition in question mainly on the basis of (i) the details written on the hard disc found during the course of search from the premises Aerens Group, wherein payment through cheque and cash have been mentioned against the name of assesee at Sr. No. 32; Shri I. E. Soomar appearing at Sr. No. 39 of the said hard disc had admitted the cash investment of Rs.6.64 crores being made in the said project and had paid the taxes on the same; (iii) the said hard disc cannot be relied upon in part as the assessee has admitted the payment through cheque but denied the cash payment shown th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assuming jurisdiction u/s 153A and authorities below ere also not justified in making and sustaining the addition in question merely on the basis of a hard disc found during the course of search at the premises of Aerens Group without any corroborative evidence in support. We thus hold that the assessee/appellant succeeds on both the above issues, i.e. on validity of assumption of jurisdiction u/s153A and the addition in question. The grounds involving the above issues are accordingly allowed. The issue contested herein is confirmed by the Hon ble Delhi High Court vide order dated 25.07.2017. Thus, the issue raised in the present appeal is already covered in co-investors case. 13. In the case on hand also the Department could not produce any corroborative evidence to show that the assessee had in fact made investment in the concerns of AEZ group. The evidences furnished by the assessee in the form of confirmation from the concerns of AEZ group that the assessee nor his family members never made any investment by paying cash or cheque were not at all examined by the Assessing Officer in spite of the assessee stating that no such investment had been made by the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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