TMI Blog2022 (10) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... orities under the jurisdiction of Hon ble Allahabad High Court. We therefore respectfully following the judgement of the jurisdictional High Court rendered in the case of Rajkumar Arora (supra) hereby dismiss the grounds of the assessee. Approval granted by Addl.CIT u/s 153D of the Act was a mechanical approval without application of mind and therefore assessment order was bad in law and contrary to the settled position of law - From the records, it is evident that the entire case file was placed before the competent authority who after perusing the same and due application of mind had accorded the requisite approval and therefore in our view, the contentions of the assessee is merely based upon suspicion without being backed by any material evidence and hence we do not see any merit in the contention of the Ld AR. Thus this Ground No.2 raised by the assessee is dismissed. Valuation adopted in respect of the construction of a property at Noida UP. - HELD THAT:- The direct evidence on cost of construction should be preferred unless found unreliable or unacceptable to the indirect evidence on the point coming through the road of estimated valuation. The Revenue has not br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatements. Moreover, the statements do not reveal the specific details of the transaction with the assessee and the share applicant. Merely a sweeping statement without supported by relevant evidences cannot form the basis of making the addition. It is well settled that the addition cannot be made purely on the basis of suspicion and the AO is required to bring material evidences in its support. In the instant case, the AO has not brought any adverse material suggesting that the assessee had devised a colorable device for the purpose of routing its own money. In the absence of such evidence and in the light of the binding decisions cited hereinabove, we are of the considered view that the impugned addition cannot be sustained in the facts of the present case. We accordingly hereby direct the AO to delete the addition - Also the addition made by the AO on account of alleged payment of commission thereon u/s 69C also cannot be sustained. Hence, the AO is hereby directed to delete the addition. Addition made by estimating the cost of construction on the basis of the report submitted by the DVO - HELD THAT:-We direct the AO to adopt the state PWD rates for estimating the cost of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of purchases of paintings - we are of the view that the disallowance of claim of assessee regarding sale of paintings in the present facts of the case is excessive and arbitrary. We therefore in interest of justice restrict the addition to the extent of Rs.6,00,000/- i.e. 30% of total disallowance made by the AO and rest of the addition is hereby deleted. Thus the ground of assessee is partly allowed. Unexplained investments u/s 69 in the property at Indirapuram, Gaziabad - HELD THAT:- Lower authorities have made addition purely on the basis of the notings in diary found in the possession of Shri B. B. Goel and the statement recorded in this regard. The Revenue did not provide opportunity of cross examination to the assessee in respect of any statement made by Shri B. B. Goel. The AO has also not brought any other material suggesting the actual fair market value of the property in question is higher than what is recorded in the sale deed. Undisputedly, transfer of a property would always be between two parties one being seller and other the purchaser. It cannot be assumed that one party disclosed correct figure of consideration and the other party concealed the true value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore respectfully following the binding precedents cited by the Ld. AR noted hereinabove direct the AO to delete the addition. Thus the ground of the assessee is allowed. Addition u/s 69A of the Act with respect to unexplained investment in jewellery and bullion - HELD THAT:- As in terms of CBDT instructions, 535.28 gms of jewellery, in the absence of any contrary material, is stood explained. Further, the contention that out of the total jewellery found at the premises of Shri Dinesh Yadav, jewellery weighing 160.358 gms belonged to Mrs. Shweta Yadav, who is stated to be the sister of Mr. Manish Yadav. The AO could not controvert the fact that at the time of search the jewellery in question was found in a separate pouch with the name of Mrs. Shweta Yadav. Therefore, looking to the fact that Shri Manish Yadav admitted the fact that the jewellery belonged to his sister, Mrs. Shweta Yadav and coupled with the fact that it is a normal practice in Indian household that ladies keep their jewellery jointly, the AO ought to have not attributed the aforesaid jewellery solely in the hands of the Assessee. We hold accordingly, and direct the AO to delete the addition to that exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed and corresponding ground and Revenue s appeal is dismissed. - ITA No(s) : 1127/Del/2021, 1128/Del/2021, 1499/Del/2021, 1116/Del/2021, 1117/Del/2021, 1118/Del/2021, 1122/Del/2021, 1123/Del/2021, 1119/Del/2021, 1448/Del/2021, 1120/Del/2021, 1121/Del/2021, 1124/Del/2021, 1126/Del/2021, 1500/Del/2021 - - - Dated:- 10-10-2022 - Sh. Anil Chaturvedi, Accountant Member And Shri Kul Bharat, Judicial Member For the Assessee : Shri Gourav Jain, Adv. And Ms. Sweta Bansal, C.A. For the Revenue : Shri H.K. Choudhary, CIT-D.R. ORDER PER BENCH : The present appeals are filed by the above captioned assesses and the Revenue, feeling aggrieved by the orders passed by the Commissioner of Income Tax Appeals [CIT(A)] for various assessment years mentioned hereinabove. 2. Since the issues raised by the parties in all these appeals are common, therefore all the appeals were taken up together for the hearing and being disposed of by way of a consolidated order for the sake of brevity and convenience. 3. At the outset, both the Learned Representative of the Parties have stated that the ITA No.1127/Del/2021 in the case of Ecstasy Buildcon Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following grounds: 1. That the CIT(A) erred on facts and in law in not quashing the assessment order dated 22.12.2019 passed by the AO under section 153C of the Income Tax Act, 1961 ( the Act ) on the ground of being beyond jurisdiction, bad in law and void ab initio. 1.1. That the CIT(A) erred on facts and in law in not appreciating that the impugned proceedings initiated by the AO under section 153C were beyond jurisdiction and bad in law, in the absence of satisfaction note being recorded by the AO in possession of the seized documents gathered during to search under section 132 conducted in the case of another person, viz., Shri Rajeshwar Singh Yadav on 10.11.2017. 1.2 That the CIT(A) erred on facts and in law in not appreciating that the impugned proceedings initiated by the AO under section 153C were beyond jurisdiction and bad in law, since no incriminating material/evidence/assets belonging to/relating to the appellant suggesting undisclosed income/investment were found in the course of search under section 132 at the premises of Shri Rajeshwar Singh Yadav, leave alone such material not being handed over to the AO of the appellant and consequently illeg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on report under section 142A, (ii) as also issue report using the same method of valuation. 6. That the CIT(A) erred on facts and in law in not deleting the entire addition made by the AO under section 69B on the basis of valuation report of DVO, since the addition was not based on any evidence of unexplained investment made by the appellant and was merely made by estimating the fair market value of the property which was outside the scope of provisions of section 69B r.w.s. 142A of the Act. 7. Further without prejudice, that the CIT(A) erred on facts and in law in not rejecting the report of DVO which suffered from several inaccuracies qua the method of valuation followed, like adoption of CPWD rates instead of PWD rates/not allowing discounting of 20% on account of personal supervision, etc. 7.1 That the CIT(A) erred on facts and in law in observing that the DVO had adopted the appropriate method to determine the fair market value of the property and adopting CPWD rates for property situated in Noida, which was near to Delhi whereas PWD rates was not appropriate which was meant for entire state of UP. 8. That the CIT(A) erred on facts and in law in sus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paper book). From the aforesaid satisfaction note, first of all he submitted that the satisfaction note is an undated satisfaction note. He thereafter, pointed that AO has noted that loose paper containing various invoices issued in the name of the assessee were found and on the perusal of which he noted that assessee had purchased construction material /design for a total consideration of Rs.4,96,71,274/- during the Financial Years 2015-16, 2016-17 2017-18. He also pointed to the satisfaction note wherein it has been noted that Balance Sheet of M/s. Inspire 2 Aspire Business Solutions Pvt. Ltd. and the ledger account of the assessee in the books of Inspire 2 Aspire Business Solutions Pvt. Ltd. was found which demonstrated that assessee had received share capital amounting to Rs.1,50,00,000/- during the Financial Year 2015-16. Learned AR submitted that aforesaid material was not incriminating in nature which resulted in the detection of any undisclosed assets and income of the assessee. He thereafter submitted that the condition precedent for invocation of proceedings u/s 153C of the Act are that the assets/documents belonging to/pertaining to/relating to an assessee found during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returns of assessee not only for the undisclosed income which was found during the search operation but also with regard to the material that was available at the time of the original assessment proceedings. He further submitted that the decision of Hon ble Apex Court in the case of Singhad Technical Society (supra) is not applicable to the facts of the present case because the AO in the satisfaction note in this case has clearly recorded the fact that the invoices (LP 4, LP 5, LP 10) with regard to the purchase of construction material were found for three financial years whereas in the case of Singhad Technical Society (supra), no such invoices or any other incriminating material for the year in which the search took place was found. He further stated that the bills that were found during the course of search would have clear bearing on the income of the assessee. Therefore he submitted that it cannot be construed that the bills/invoices found are not incriminating in nature. 10. We have heard the rival submissions and perused the material available on records. The assessee vide the aforesaid grounds is challenging the assumption of jurisdiction by the AO in framing the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) Where books of account or documents or assets seized or requisitioned as referred to in sub-section (1) has or have been received by the AO having jurisdiction over such other person after the due date for furnishing the return of income for the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A and in respect of such assessment year- (a) no return of income has been furnished by such other person and no notice under sub-section (1) of section 142 has been issued to him, or (b) a return of income has been furnished by such other person but no notice under sub-section (2) of section 143 has been served and limitation of serving the notice under sub-section (2) of section 143 has expired, or (c) assessment or reassessment, if any, has been made, before the date of receiving the books of account or documents or assets seized or requisitioned by the AO having jurisdiction over such other person, such AO shall issue the notice and assess or reassess total income of such other person of such assessment year in the manner provided in section 153A. 12. From a bare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the search operation but also with regard to the material that was available at the time of the original assessment proceedings. A similar view has been expressed by the Tribunal (Third Member) in the case of Sunshine Infra State Pvt. Ltd. (103/Ald/2017 order dated 12th April 2022). In the present case, the assessee being under the jurisdiction of Hon ble Allahabad High Court, the ratio of the decision in the case of Raj Kumar Arora (supra) holds the field as it is binding on all the authorities under the jurisdiction of Hon ble Allahabad High Court. We therefore respectfully following the judgement of the jurisdictional High Court rendered in the case of Rajkumar Arora (supra) hereby dismiss the grounds of the assessee. Thus Ground Nos.1 to 1.3 are dismissed. 15. Vide Ground No.2 it is the contention of the assessee that the approval granted by the Additional Commissioner of Income Tax (Addl.CIT) u/s 153D of the Act was a mechanical approval without application of mind and therefore assessment order was bad in law and contrary to the settled position of law. 16. Before us, Learned AR submitted that in the present case the approval u/s 153D was granted by Addl. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is not supported by any credible evidence. 18. We have considered the rival contentions and perused the material on record. From the records, it is evident that the entire case file was placed before the competent authority who after perusing the same and due application of mind had accorded the requisite approval and therefore in our view, the contentions of the assessee is merely based upon suspicion without being backed by any material evidence and hence we do not see any merit in the contention of the Ld AR. Thus this Ground No.2 raised by the assessee is dismissed. 19. In Ground Nos.3 to 7.1 the assessee has challenged the valuation adopted by the AO at Rs.1,58,86,369/- in respect of the construction of a property at Noida UP. 20. During the course of assessment proceedings, AO noted that assessee had claimed that a sum of Rs.93,02,377/- was incurred for the construction of the property at Noida. However, the fair market value estimated by the District Valuation Officer (DVO) of the property in question was stated to be at Rs.1,58,86,369/-. Assessee was therefore, asked to explain the difference between the value declared by it and the fair market value ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of sub-section (1) of Section 142A is only a machinery provision and do not override provisions of section 69B of the Act. The provisions of section 142A, on the other hand, in our respectful submission, get triggered only once it is found that provisions of section 69B are applicable and in that situation, power of reference to valuation officer has been given to only estimate the actual investment. 59. In the present assessment, it would be appreciated that no such finding was reached by the assessing officer or even Investigation Wing before making a reference to the valuation officer. There was no material nor any evidence, nor the same has been brought on record, which led to the inference at the first place, that excess investment than the amount recorded in book of account has been made by the appellant in the subject property. The reference was made to the valuation officer in the routine manner, without any material/evidence in the possession of the Deputy Director of Income Tax (Inv.) leading to the inference that amount invested in construction was more than that recorded in the books of account without having any incriminating document/ material suggesting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded in the books of accounts. He stated that the estimate made by the expert in respect of the investment made in the property in question override the requirement of any evidence related to investment in the property. He further stated that when the fair market value is estimated by an expert at a higher fair market value then it would suggest that there was undisclosed and unexplained investment made by the Assessee. He thus supported the order of lower authorities. 24. We have heard the rival submissions and perused the material available on record. The factum of construction of the building and the incurrence of expenses thereof is not in dispute. The only dispute is regarding the quantum of expenses hence in the instant ground the issue revolves around the estimation of fair market value by the DVO adopting the CPWD rates for the valuation of FMV of the property. The AO undisputedly adopted the CPWD rate as recommended by the DVO for estimating fair market value of the property constructed by assessee. So far as the application of the rate for the purpose of arriving at the fair market value of the property is concerned, this issue is no more res integra. It has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded in its books of accounts and secondly that the Hon ble High jurisdictional High Court and the Coordinate Benches of this Tribunal have unequivocally ruled that the state PWD rates should be adopted for computing the fair market value of the property situated in different states. Therefore, respectfully following binding precedents, we hereby direct AO to adopt PWD rates as prevalent at that point in time for ascertaining the correct and true figure of investment made by the assessee. In case, if the AO finds that upon applying prevailing PWD rates, fair market value of the property is lesser than the investment disclosed by the assessee, he shall delete the addition. 26. As far as the granting of rebate on account of self supervision charges is concerned, such rebate has been allowed by the Co-ordinate Bench and High Courts of different judicature. Even the Learned CIT(A) has given the rebate to the extent of 5% only meaning thereby that Revenue is not disputing the eligibility for such self supervision charges. Therefore, considering the experience, qualification and the expertise of the Director of the assessee company who is stated to have looked after the affairs of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hows the receipt of money through banking channels. He also pointed to the Income Tax Return of the share applicant, the Balance Sheet of share Applicant Company, the company Master Data as downloaded from website of Ministry of Corporate Affairs to establish the identity of the share applicant. 30. With respect to the share application money received from Incredible India IT Solutions Pvt. Ltd., he placed on record the copy of its PAN Card to demonstrate the identity of the investor. He also placed on record its bank statement showing the payment received from the account of the investor company to assesseecompany, copy of its Balance Sheet showing the investment made by it in the assessee company. 31. He further submitted that during the course of assessment proceedings, AO had issued notice u/s 133(6) of the Act to both the aforesaid companies wherein those companies had duly confirmed about the investments made by them and had also filed supporting documents. He further pointed out that no adverse inference with regard to the transactions between the assessee and M/s. Inspire 2 Aspire Business Solutions Pvt. Ltd. was made by the AO of the share applicant in the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made available to the assessee, nor any opportunity to cross examine him was provided to the assessee. He submitted that it is a settled law that any statement of third person recorded or any evidence collected behind the back of the assessee cannot be used against him without confronting it to the assessee and giving a fair chance of cross examination. He further submitted that Courts have held that it was obligatory on the part of the AO to collect sufficient evidences against the assessee to disprove the documentary evidences filed by the assessee and the failure to do so would make the addition unsustainable in the eyes of law. In support of his aforesaid contention, he placed reliance on the decision of Hon ble Supreme Court in the case of Andaman Timber Industries vs. CCE 62 Taxmann.com 3 (2015). He also placed reliance on the decision of CIT vs. Sunita Dhadda [2018] 100 taxmann.com 526 (SC) and other decisions. He therefore submitted that since the Assessee has given requisite information regarding genuineness of the transaction, identity of the applicant and creditworthiness of the creditors, the addition of Rs.3 crore being the share application money and the addition of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne (India) Infrastructure P. Ltd. 2015-TIOL106-ITAT-Del. 37. We have heard the rival contentions and perused the material available on records. The grievance of the assessee in the present grounds is that the authorities below have erroneously made addition u/s 68 being the share application money received by the assessee and the addition made u/s 69C regarding the payment of alleged commission for receiving the share application money from the aforementioned share applicants. 38. There is no dispute about the fact that the assessee had placed before the AO supporting evidences regarding the identity of the share applicants, genuineness of the transactions and the creditworthiness of the share applicants. However, the AO did not accept the evidences as placed by the assessee in support of his claim regarding share application money. The basis of making addition being the share application money received from Inspire 2 Aspire Business Solutions Pvt. Ltd. is stated to be a statement made by the director of the share applicant, namely shri Ghanshyam Gupta. It is the contention of the Ld. AR that the assessee was not provided any copy of the statement relied upon by the AO an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repeated request by the assessee, this statement could not be relied upon to his detriment. Therefore we find merit in the submissions of the Ld AR that when the evidences are collected at the back of the assessee, the same evidences were required to be confronted with the assessee to sub serve the interest of principles of natural justice. It is a well established principle of law that the crossexamination is a valuable right and a fundamental rule of legal jurisprudence. Looking to the facts of the present case, the assessee had placed before the AO the requisite evidences regarding the investments made by the share applicants. Moreover, in the case of the share applicant namely M/s. Inspire 2 Aspire Business Solutions Pvt. Ltd. and Incredible India IT Solutions Pvt. Ltd., qua the transaction in question no adverse inference has been made in the assessment proceedings by the concerned AOs. Even no action having been taken by the Revenue against the share applicants on this issue as has been brought to our notice. The AO has attributed to the assessee the share application money without bringing any credible evidence in support of the same. We are of the view that it was incumben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... void ab initio. 1.1. That the CIT(A) erred on facts and in law in not appreciating that the impugned proceedings initiated by the assessing officer under section 153C were beyond jurisdiction and bad in law, in the absence of satisfaction note being recorded by the assessing officer in possession of the seized documents gathered during to search under section 132 conducted in the case of another person, viz., Shri Rajeshwar Singh Yadav on 10.11.2017. 1.2 That the CIT(A) erred on facts and in law in not appreciating that the impugned proceedings initiated by the assessing officer under section 153C were beyond jurisdiction and bad in law, since no incriminating material/evidence/assets belonging to/relating to the appellant suggesting undisclosed income/investment were found in the course of search under section 132 at the premises of Shri Rajeshwar Singh Yadav, leave alone such material not being handed over to the assessing officer of the appellant and consequently illegal satisfaction note was recorded by the assessing officer of the appellant. 1.3 That the CIT(A) erred on facts and in law in observing that (i) the invoices for purchase of construction materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition made by the assessing officer under section 69B on the basis of valuation report of DVO, since the addition was not based on any evidence of unexplained investment made by the appellant and was merely made by estimating the fair market value of the property which was outside the scope of provisions of section 69B r.w.s. 142A of the Act. 7. Further without prejudice, that the CIT(A) erred on facts and in law in not rejecting the report of DVO which suffered from several inaccuracies qua the method of valuation followed, like adoption of CPWD rates instead of PWD rates/not allowing discounting of 20% on account of personal supervision, etc. 7.1 That the CIT(A) erred on facts and in law in observing that the DVO had adopted the appropriate method to determine the fair market value of the property and adopting CPWD rates for property situated in Noida, which was near to Delhi whereas PWD rates was not appropriate which was meant for entire state of UP. Each of the above ground is independent and without prejudice to one another. The appellant craves leave to add, alter, amend or withdraw any ground or grounds of appeal at any time before or during the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poses. We now take up Revenue s appeal in ITA No.1499/Del/2021 (arising out of the order of Ld.CIT(A) Kanpur-4 dated 12.08.2021) for A.Y. 2017-18 in the case of Ecstasy Buildcon Pvt. Ltd. as a lead case. 50. The solitary effective ground in Revenue s appeal reads as under: 1. On facts and circumstances of the case and in law, the Ld CIT(A) erred in deleting the addition made by AO to the tune of Rs.1,20,86,755/- on account of unexplained construction in property. The Ld CIT(A) failed to appreciate the fact that during the course of assessment proceedings, the assessee company had failed to produce any bills/vouchers in respect of difference amount of Rs.1,64,83,690/-, during the assessment proceedings as well as at the time of valuation done by DVO. And had also failed to explain the source thereof despite giving several opportunities vide notices u/s 142(1) of the Income Tax Act, 1961. 51. Before us, both the parties admitted that the ground raised in the present appeal of the Revenue is interconnected with the Ground Nos. 3 to 7.1 raised in assessee s appeal in ITA No.1127/Del/2021 for A.Y. 2017-18. 52. Before us, Ld. DR took us through the observa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l dated 20.12.2019 granted by the Addl. CIT under section 153D, lacking complete application of mind and thus rendering the assessment order to be beyond jurisdiction. 4. That the CIT(A) erred on facts and in law in not deleting the aforesaid addition of alleged unexplained investment on the ground of being beyond jurisdiction and scope of assessment under section 153A, since the same was not based on any incriminating material found during the course of search. 5. That the CIT(A) erred on facts and in law in not deleting the aforesaid addition made under section 69 on the basis of valuation report furnished by the DVO, pursuant to reference made by the DDIT(Inv.), on the ground that the AO was not empowered to refer the aforesaid report, without an independent reference to DVO under section 142A of the Act. 5.1 That the CIT(A) erred on facts and in law in observing that the AO was competent to refer the report of DVO submitted pursuant to reference made by DDIT(Inv.) under section 132(9D) of the Act since the same DVO - (i) was competent to issue valuation report under section 142A, (ii) as also issue report using the same method of valuation. Without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty as declared by the assessee and adopted by AO on the basis of DVO report. 60. The facts relating to these grounds are that the AO while framing the assessment made the addition of Rs.2,82,141/- as unexplained investments. It was noticed by the AO that a survey operation u/s 133A of the Act was conducted at the hotel of the assessee situated at Agra Marg, Sanjay Nagar, Agra which was constructed in the F.Y. 2015-16. It was observed that as per the Valuation Report of the Govt. Valuer, the cost of construction of the hotel for F.Y. 2015-16 was determined at Rs.17,09,700/- but as per the books of accounts, the declared construction value was at Rs.14,27,559/-. The AO therefore treated the difference in the amounts (i.e. the amount as determined in valuation report and that declared by the assessee in the books of accounts) as unexplained investments and made its addition. 61. Assessee preferred appeal against the action of AO before the Learned CIT(A) who after considering the submissions upheld the action of AO and sustained the additions. Aggrieved by the order of CIT(A), assessee is now in appeal before the Tribunal. 62. Learned Counsel for the assessee reiter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asion to make addition. We find merit into this contention in view of our decision in ITA No.1127/Del/2021 in the case of Ecstasy Buildcon Pvt. Ltd. The facts of the present case are identical to the facts of the case of Ecstasy Buildcon Pvt. Ltd. (supra) as admitted by both the parties. In the case of Ecstasy Buildcon Pvt. Ltd. (supra), we have examined the issue elaborately and decided the issue in favour of the assessee by directing the AO to adopt the State PWD rates for the purpose of arriving at fair market value of the property. For the same reasoning, in this case also we hereby direct the AO to adopt the State PWD rates and also grant deduction on account of self supervision at 10%. The AO is hereby directed to delete the impugned addition in view of the working given by the Assessee in the form of chart which is reproduced hereinabove. Thus the grounds of the assessee are allowed. 66. In the result, the appeal of assessee in ITA No.1116/Del/2021 is partly allowed. Now we take assessee s appeals in the case of Gajendra Singh in ITA Nos.1117 1118/Del/2021 for A.Ys. 2017-18 201819 (arising out of the order of Ld.CIT(A) Kanpur-4 dated 12.08.2021): 67. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by estimating the fair market value of the property which was outside the scope of provisions of section 69 r.w.s. 142A of the Act. 7. Further without prejudice, that the CIT(A) erred on facts and in law in not rejecting the report of DVO which suffered from several inaccuracies qua the method of valuation followed, like adoption of CPWD rates instead of PWD rates, discounting of 20% on account of personal supervision, etc. 7.1 That the CIT(A) erred on facts and in law in observing that the DVO had adopted the appropriate method to determine the fair market value of the property. Each of the above ground is independent and without prejudice to one another. The appellant craves leave to add, alter, amend or withdraw any ground or grounds of appeal at any time before or during the course of hearing of the appeal. 68. Assessee has raised following grounds of appeal in ITA No.1118/Del/2021 for A.Y. 2018-19: 1. That the CIT(A) erred on facts and in law in not quashing the assessment order dated 27.12.2019 passed by the assessing officer under section 153A of the Income Tax Act, 1961 ( the Act ) on the ground of being beyond jurisdiction, bad in law and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... WD rates instead of PWD rates, discounting of 20% on account of personal supervision, etc. 7.1 That the CIT(A) erred on facts and in law in observing that the DVO had adopted the appropriate method to determine the fair market value of the property. Each of the above ground is independent and without prejudice to one another. The appellant craves leave to add, alter, amend or withdraw any ground or grounds of appeal at any time before or during the course of hearing of the appeal. 69. The identical grounds in these appeals are related to addition on account of unexplained investments in the construction of the property and also challenged the validity of the assessment framed u/s 153A of the Act and the approval obtained u/s 153D of the Act. 70. Learned Authorities Representative of the parties have adopted the same arguments as were addressed while arguing the matter in ITA No.1127/Del/2021 (supra). 71. We have heard the rival submissions of both the parties and perused the material on record. Since the facts of the present case are identical to the facts in the case of ITA No.1127/Del/2021 (supra), we therefore for the reasons stated hereinabove whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions and perused the material on record. Before us both the parties have submitted that the issue raised in the present grounds are identical to the issue raised in the case of Ecstasy Buildcon Pvt. Ltd. We have for the reasons given herein while deciding the grounds in ITA No.1127/Del/2021 have dismissed the grounds. We for the same reasoning as in ITA No.1127/Del/2021 dismiss the grounds in the present appeal. 76. Ground No.2 is with respect to the addition of Rs.20,00,000/- made u/s 69A of the Act being unexplained cash found. 77. During the course of search u/s 132 of the Act at the residential premises of the assessee at Faridabad, cash amounting to Rs.22,85,600/- was seized. The assessee was asked to explain the source of cash. Assessee made the submissions explaining the source of cash which was not found acceptable to AO. AO thereafter considered the entire cash found to be unexplained and made the addition of Rs.22,85,600/- on substantive basis. He also made the addition of the aforesaid amount in the hands of Shri Rajeshwar Singh Yadav. 78. Aggrieved by the order of AO, assessee carried the matter before CIT(A) who after considering the submissions of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67,000 70,000 10. Tree of Life Bal Krishan 1955 95,000 1,70,000 11. Udaka Bharat Lal 1955 95,000 60,000 12. A collage on a hill Bhawesh 1964 90,000 1,70,000 13. Water Flowers Indraj 1955 95,000 80,000 14. Charulata Nala Ram 1964 67,000 1,20,000 15. A Meaning Making Capacity Mahender Lal 1955 95,000 1,80,000 16. Dharna Bhaskar 1964 90,000 1,70,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was called for by the AO regarding details of purchases of paintings. Considering the totality of the aforesaid facts and circumstances of the present case, we are of the view that the disallowance of claim of assessee regarding sale of paintings in the present facts of the case is excessive and arbitrary. We therefore in interest of justice restrict the addition to the extent of Rs.6,00,000/- i.e. 30% of total disallowance made by the AO and rest of the addition is hereby deleted. Thus the ground of assessee is partly allowed. 83. In the result, the appeal of the assessee in ITA No.1122/Del/2021 is partly allowed. Now we take ITA No.1123/Del/2021 in the case of Smt. Shashi Yadav for A.Y. 2018-19 (arising out of the order of Ld.CIT(A) Kanpur-4 dated 12.08.2021): 84. It is contended by the Learned Representatives of the parties that the effective issue in present appeal is related to unexplained investments in the property at Indirapuram, Gaziabad. 85. A search and seizure operation u/s 132 of the Act was conducted on 10.11.2017 at the premises of the assessee and Rajeshwar Singh Yadav Group of cases. Consequently, notice u/s 153A was issued and served on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A) were based on surmises and conjectures; and the presumptions under section 132(4A) and 292C could not have been drawn against the appellant since the document was not found from the premises of the appellant. 3.3 That the CIT(A) erred on facts and in law in not deleting the aforesaid addition made by the AO, without bringing on record any adverse statement or providing any opportunity to the appellant to cross examine Mr. B. B. Goel, from whose premises aforesaid document was found, to substantiate the contents of such documents, before drawing adverse inference / conclusion against the appellant on assumption and presumptions. 3.4 Without prejudice, that the CIT(A) erred on facts and in law in not holding that the aforesaid addition was beyond the scope of the provisions of section 69 of the Act. 3.5 Further, without prejudice, that the CIT(A) erred on facts and in law in assuming the alleged excess investment during the year under consideration, whereas if the assumption drawn by the AO/ CIT(A) was to accepted, then the aforesaid excess investment would have been made in the preceding year and consequently impugned addition was not warranted in the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Yugank Goel were directors in the company. AO also noted that the Shri B. B. Goel is a contractor in Irrigation department where Shri Rajeshwar Yadav, husband of the assessee worked as a Superintending Engineer. AO therefore concluded that families of Shri B. B. Goel and the assessee knew each other. AO was further of the view that Page 71 of Annexure LP 1 found at the residential premises of Shri B. B. Goel indicated that the family of Shri B. B. Goel and the family of the assessee had jointly invested in a project namely the Habitat Centre and it also reflected that the cost of shop was at Rs.25,000/- per sq.ft. for which according to AO, approximately 60% of the cost was paid in cash from unaccounted money. AO noted that no convincing reply was furnished by the assessee about the difference. He therefore treated the difference of the amount found in Annexure LP1 and the amount disclosed by the assessee amounting to Rs.1,09,87,004/- as unexplained investment towards purchase of shop No. 384 and made its addition u/s 69 of the Act. 91. 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), asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in property transactions and therefore the registration by the stamp valuation authority at lower rate as per the stamp valuation Act such amount does not reflect the true and correct fair market value of the property. He therefore, submitted that the AO has rightly treated the amount mentioned in diary as unexplained investment. 94. We have heard the rival submissions and perused the material available on record. There is no dispute with regard to the fact that the additions have been made purely on the basis of the certain loose papers found at the premises of third party. It is also undisputed that except the loose papers, there are no other documents suggesting that assessee had entered into an agreement at a higher rate than disclosed in the sale deed. The AO has also not brought any other sale instances of similarly situated properties. The law is well settled that there has to be corroborative evidences to prove any figure written in the loose sheet of paper. Moreover, it has been held by the Hon ble Supreme Court in the case of CBI vs. V. C. Shukla [1998] 3 SCC 410, that writing in his diary by a third party is not a reliable evidence and same cannot be viewed as an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee is partly allowed. Now we take ITA No.1119/Del/2021 in the case of Smt. Poonam Yadav for A.Y. 2015-16 (arising out of the order of Ld.CIT(A) Kanpur-4 dated 12.08.2021): 96. In this case, in response to notice u/s 153A of the Act, assessee electronically filed her return of income on 31.08.2019 declaring income of Rs.6,60,330/-. Thereafter, assessment was framed u/s 143(3) r.w.s 153A of the Act vide order dated 25.12.2019 and the total income was determined at Rs.56,60,330/- inter alia by making addition of Rs.50,00,000/- u/s 68 of the Act. 97. Aggrieved by the order of AO, assessee carried the matter before CIT(A) who vide order dated 09.08.2021 in Appeal No.CIT(A)-IV/KNP/11368/2019-20 granted partial relief to the assessee by deleting the addition of Rs.20,00,000 in respect of the loan received from M/s New Delhi Buildcon Ltd. 98. Aggrieved by the order of CIT(A), assessee is now in appeal and has raised the following grounds: 1. That the CIT(A) erred on facts and in law in not quashing the assessment order dated 25.12.2019 passed by the AO under section 153A of the Income Tax Act, 1961 ( The Act ) on the ground of being beyond jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds are identical to the ground raised in the case of Ecstasy Buildcon Pvt. Ltd. in ITA No.1127/Del/2021(supra) and therefore, they have same arguments to make. Further, it was contended that submissions made and contentions raised in that case may be treated as the part of submissions of this appeal as well. 101. We have heard the rival submissions and perused the material available on record. We have taken a view against the assessee in the case of Ecstasy Buildcon Pvt. Ltd. (supra) and dismissed the grounds related to the framing of assessment u/s 153A of the Act and approval u/s 153D. Since the issue raised in the present appeal is identical to that raised in the case of Ecstasy Buildcon Pvt. Ltd. (supra), therefore for the same reasoning the Ground Nos. 3 4 are dismissed and our finding in ITA No.1127/Del/2021 shall apply mutatis mutandis to the present grounds. Thus the grounds of assessee are dismissed. 102. With respect to Ground No.2, Learned AR submitted that the issue is with respect to the addition of Rs.30,00,000/-made u/s 68 of the Act being the amount of unsecured loan received from M/s. Zarf Trading Marketing Pvt. Ltd. 103. AO during the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade the addition u/s 68 of the Act. He further submitted that loan that was taken was repaid in the year of borrowing itself and therefore it cannot be considered to be not genuine so as to invoke the provision u/s 68 of the Act. He further contended that even otherwise also no addition can be sustained u/s 68 of the Act as the assessee is not required to maintain the books of accounts and Section 68 of the Act presupposes the maintenance of the books of accounts. He contended that in view of the decisions of the coordinate Benches of this tribunal wherein it has been categorically held that if the loan was received and repaid in the same year, no addition u/s 68 will be called for. For this proposition he placed reliance on the decision of Delhi Bench of the Tribunal in the case of Navyug Iron Traders vs. DCIT in ITA No.553/Del/2017 dated 24.09.2019 and the decision of Delhi Tribunal in the case of ITO vs. Habitat Infrastructure Ltd. in ITA No. 6155/Del/2015 dated 11.02.2019. He further submitted that addition made by the AO is bad in law and needs to be deleted as the provisions of Section 68 of the Act presupposes the maintenance of books of accounts wherein the disputed sum sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n if the assessee is not required to maintain the books of accounts statutorily due to falling in a special class of assessee. Thus this argument of the Ld. AR is devoid of any merits. However, regarding unsecured loans received from M/s. Zarf Trading Marketing Pvt. Ltd. the Assessee had provided income tax return acknowledgement, bank statements of those parties. The AO without carrying out requisite enquiry proceeded purely on the basis of surmise and therefore, such approach of the assessing authority is not in accordance with the settled position of law. Admittedly in the present case no addition has been made in the case of the lender. Hence, it can be safely inferred that no addition has been made in the hand of the lender meaning thereby the source of such amount has been duly accepted in the hand of lender since no addition has been made by AO. Therefore, in our considered view source is explained. Now AO cannot blow hot and cold at the same time. There is no finding regarding the unsecured loan being routed through dubious route by the assessee to bring her own unexplained money through the lenders. In the absence of specific finding by the AO supported by relevant evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion report furnished by the DVO, pursuant to reference made by the DDIT(Inv.), on the ground that the AO was not empowered to refer the aforesaid report, without an independent reference to DVO under section 142A of the Act. 5.1 That the CIT(A) erred on facts and in law in observing that the AO was competent to refer the report of DVO submitted pursuant to reference made by DDIT(Inv.) under section 132(9D) of the Act since the same DVO - (i) was competent to issue valuation report under section 142A, (ii) as also issue report using the same method of valuation. Without Prejudice 6. That the CIT(A) erred on facts and in law in not deleting the entire addition made by the AO under section 69 on the basis of valuation report of DVO, since the addition was not based on any evidence of unexplained investment made by the appellant, more so after search conducted under section 132, and was merely made by estimating the fair market value of the property which was outside the scope of provisions of section 69 r.w.s. 142 A of the Act. 7. Further without prejudice, that the CIT(A) erred on facts and in law in not rejecting the report of DVO which suffered from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Ecstasy Buildcon Pvt. Ltd. (supra). Since the issue raised in the present appeal is identical to that raised in the case of Ecstasy Buildcon Pvt. Ltd. (supra), therefore for the same reasoning the other grounds related to the valuation and investment of the property at Noida are allowed and our finding in ITA No.1127/Del/2021 shall apply mutatis mutandis to the present grounds. Thus the grounds of assessee are allowed. 116. In the result, the grounds in the appeal in ITA No.1448/Del/2021 of the assessee are partly allowed. 117. The grounds raised in ITA No.1120/Del/2021 reads as under: 1. That the CIT(A) erred on facts and in law in not quashing the assessment order dated 25.12.2019 passed by the assessing officer under section 153A of the Income Tax Act, 1961 ( the Act ) on the ground of being beyond jurisdiction, bad in law and void ab initio. 2. That the CIT(A) erred on facts and in law in sustaining the addition of Rs. 11,20,916, out of total addition of Rs.68,13,945/-, and not deleting the aforesaid entire addition, which was made by the assessing officer under section 69 of the Act alleging unexplained investment in property on the basis of higher f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he property and adopting CPWD rates for property situated in Noida, which was near to Delhi whereas PWD rates was not appropriate which was meant for entire state of UP. 8. Each of the above ground is independent and without prejudice to one another. The appellant craves leave to add, alter, amend or withdraw any ground or grounds of appeal at any time before or during the course of hearing of the appeal. 118. Ground Nos. 1, 3 4 are against the validity of the assessment framed u/s 153A and approval granted u/s 153D of the Act. 119. It is submitted on behalf of the Ld. Authorized Representatives of the respective parties that the issues raised in these grounds are identical to the ground raised in the case of Ecstasy Buildcon Pvt. Ltd. in ITA No.1127/Del/2021(supra) and therefore, they have same arguments to make. 120. We have heard the rival submissions and perused the material available on record. We have taken a view against the assessee in the case of Ecstasy Buildcon Pvt. Ltd. (supra) and dismissed the grounds related to the framing of assessment u/s 153A of the Act and approval u/s 153D. Since the issue raised in the present appeal is identical to tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dirapuram, Ghaziabad, on the basis of some documents found during the course of independent search at premises of third party, i.e., Shri B.B. Goel, containing name of, inter alia, appellant with amount invested in the aforesaid property. 3.1 That the C1T(A) erred on facts and in law in holding that, on reading the aforesaid seized documents it follows that cash was paid by the appellant towards purchase of impugned property. 3.2 That the CIT(A) erred on facts and in law in not appreciating that the aforesaid document was a dumb document and the inferences drawn by the AO / CIT (A) were based on surmises and conjectures; and the presumptions under section 132 (4A) and 292C could not have been drawn against the appellant since the document was not found from the premises of the appellant. 3.3 That the CIT(A) erred on facts and in law in not deleting the aforesaid addition made by the AO, without bringing on record any adverse statement or providing any opportunity to the appellant to cross examine Mr. B.B. Goel, from whose premises aforesaid document was found, to substantiate the contents of such documents, before drawing adverse inference / conclusion against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in these grounds are identical to the ground raised in the case of Ecstasy Buildcon Pvt. Ltd. in ITA No.1127/Del/2021 (supra) and therefore, they have same arguments to make. 128. We have heard the rival submissions and perused the material available on record. We have taken a view against the assessee in the case of Ecstasy Buildcon Pvt. Ltd. (supra) and dismissed the grounds related to the framing of assessment u/s 153A of the Act and approval u/s 153D. Since the issue raised in the present appeal is identical to that raised in the case of Ecstasy Buildcon Pvt. Ltd. (supra), therefore for the same reasoning the Ground Nos. 1, 2 are dismissed and our finding in ITA No.1127/Del/2021 shall apply mutatis mutandis to the present grounds. Thus the grounds of assessee are dismissed. 129. Ground Nos. 3 to 3.5 are with respect to the addition of Rs.3,46,20,962/- u/s 69 of the Act. 130. Learned AR submitted that issue raised in this ground is identical to the ground raised in the case of Shashi Yadav in ITA No.1123/Del/2021. On these issues, the Learned AR relied upon the submissions made therein. He submitted that impugned addition deserves to be deleted. On the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(1A) of the Act and he was asked to explain about the jewellery found in the residential premises of Shri Dinesh Yadav. In response thereto he stated that prior to the search operation, there was some function in his family and his wife Poonam Yadav and his sister Ms. Shweta Singh were wearing some jewellery which was left at the residential house of Shri Dinesh Yadav due to security reasons and hence the jewellery found and seized at the residential premises of Shri Dinesh Yadav belonged to his wife and sister and therefore considering the statement made by the husband of the assessee and Shri Dinesh Yadav, AO held that the out of the total jewellery of 2916.158 gms found at the residential premises of Dinesh Yadav, 80 gms of jewellery valuing Rs.2,37,920/- belonged to Shri Dinesh Yadav and his family members and the remaining jewellery valued at Rs.94,38,552/- belonged to Smt. Poonam Yadav. It is further recorded by the AO that during the course of assessment proceedings, assessee was asked to explain the source of acquisition of jewellery along with supporting evidences and its source of investment. Assessee inter alia submitted that some of the jewellery was received by her as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: Name of Family Gms. Assessee s Stand Mr. Dinesh Yadav and Family 705.04 (Gold Jewellery) + 78.11 Gms Diamond Stone Total 783.15 Gms Mr. Dinesh Yadav during his assessment proceedings explained his family s entitlement at 950 Grams (Self 100, Wife 500, Daughter 250, Son 100). It was claimed to be covered by entitlement as envisaged in relevant circular of CBDT. Less : Relief allowed by AO of 451.45 Gms [80 Gms + 371.450 Gms] Total : 331.70 Gms Mrs. Arshi Manoj (Sister in law of Mr. Dinesh Yadav) 535.28 Gms Arshi Yadav submitted an affidavit interalia explaining her family s entitlement at 1100 gms (Husband 100, Wife 500, Two daughters - 500). It was claimed to be covered by entitlement as envisaged in relevant CBDT Circular. While in search at her premises 31Gms and 535.28 Gms found from Mr. Dinesh s premises stand explained reasonable, same should be accepted. Mrs. Shweta Yada ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llery attributed to the assessee by the Revenue can be divided into four parts. Firstly, the AO has failed to give benefit of CBDT Instruction No. 1916 dated 11th May 1994 belonging to Shri Dinesh Yadav and his family members. Secondly, the AO did not consider the gift deed evidencing the fact that the jewellery was received as a gift from Grandmother in law, Smt Sonwati. Thirdly, the AO erroneously rejected the evidence in the form of bills on the basis that TIN number belonged to Shri Subhash Chand Jain without taking into consideration the fact that Shri Subhash Chand Jain being the proprietor of firm, Shree Jewellers, therefore TIN was registered in his personal name and fourthly, the explanation offered regarding the jewellery of other persons who had duly affirmed the ownership by filing affidavit. 140. We find merit in the submissions of the Ld. AR that had the AO given the benefit of CBDT instructions and considered the evidences in the form of gift deed, affidavit, bills and vouchers the impugned addition would have reduced substantially. We are therefore of the considered view that not granting the benefit of CBDT Instructions No. 1916 (supra), and in the light of bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at amount received from Shri Shantanoo Goyal as unexplained cash credit. 143. With regard to the loan of Rs.20,00,000/- received by the assessee from Shri Shantanoo Goyal, supporting evidences were filed in the form of PAN Card of the lender, confirmation of the lender, bank statement of the lender and bank statement of the assessee which reflected the amounts received from the lender. However, the AO wrongly stated that no amount to the extent of the loan has been debited in the bank statement of Shri Shantanoo Goyal. It is noteworthy that AO had made addition of Rs.52,50,000/- out of which Rs.32,50,000/-, being loan received from Shri Pravin and Smt. Mamta Kapoor was deleted by the Learned CIT(A). However, the sum of Rs.20,00,000/- was sustained by the CIT(A) as assessee had failed to furnish ITR and other details to verify the credit. 144. In this regard the submissions of the Ld AR is that the identity of the lender is established by the PAN Card of the lender, the genuineness of the transactions was also fully established by the fact that the transaction was duly recorded and confirmed in the accounts of the lenders and was received through banking channels. In suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. The Ld. AR has pointed out from the bank statement of the lender that the amount was duly reflected and same was confirmed by the lender. However, Ld. CIT(A) taking a different stand that the assessee failed to prove credit worthiness of the lender upheld the addition. However, the AO had made addition on the basis that there was no debit entry in the bank statement of the lender. However, looking into the material placed on record in support of the claim regarding loan of Rs. 20 lakh received from Shri Shantnoo Goyal, the amount is duly reflected. Therefore, the suspicion of AO is baseless. We, therefore, looking to the material placed on record are of considered view that the AO erroneously made addition and hence same is hereby deleted. Thus the ground of the assessee is allowed. 148. In the result, the appeal of the assessee is partly allowed. Now we take ITA No.1124/Del/2021 in the case of Manish Yadav for A.Y. 2018-19 (arising out of the order of Ld.CIT(A) Kanpur-4 dated 12.08.2021): 149. Assessee has raised the following grounds: 1. That the CIT(A) erred on facts and in law in not quashing the assessment order dated 27.12.2019 passed by the AO un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceding year and consequently impugned addition was not warranted in the year under consideration. 4. That the CIT(A) erred on facts and in law in sustaining the addition of Rs.84,01,956/- and Rs.4,56,000/- made the AO under section 69A alleging unexplained investment in gold / diamond / silver jewellery found from the residential premises of the appellant at the time of search, by rejecting the explanation offered by the appellant regarding ownership and source of such investment, on surmises and conjectures. Each of the above ground is independent and without prejudice to one another. The appellant craves leave to add, alter, amend or withdraw any ground or grounds of appeal at any time before or during the course of hearing of the appeal. 150. Ground Nos.1 2 are against challenging the validity of jurisdiction thereby framing the assessment u/s 153A and approval u/s 153D of the Act. 151. It is submitted on behalf of the Learned Authorized Representatives of the respective parties that the issues raised in these grounds are identical to the ground raised in the case of Ecstasy Buildcon Pvt. Ltd. in ITA No.1127/Del/2021(supra) and therefore they have sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and diamond jewellery was found which are tabulated by AO at para 5 of the assessment order. The aggregate value of jewellery found was Rs. 1,30,26,060/-. The assessee was asked to explain the source of acquisition of the jewellery along with the supporting documents and evidences. Assessee inter alia made the submissions about the source and ownership of the jewellery. The submissions of the assessee were not found acceptable to AO. AO thereafter, following the CBDT instructions gave credit of the jewellery with respect to the family members of the assessee amounting to Rs.46,24,102/- and remaining jewellery and Bullions 2379.662 gms valued at Rs.84,01,956/- was added as unexplained investment u/s 69A of the Act. 158. During the course of search, 11500 gms of silver jewellery amounting to Rs.4,56,000/- was also found. During the course of assessment proceedings, assessee was asked to explain the source of investment of the jewellery to which assessee made the submissions. The submissions of the assessee were not found acceptable to AO. AO held that in the absence of any explanation or documentary evidences, the investment of Rs.4,56,000/- in the jewellery to be unexplained a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her explanation before the AO was that the jewellery that was found in locker and from the residential premises also included the jewellery received by his wife from his grandmother, Smt Sonwati. The AO treated this explanation as afterthought without bringing any material rebutting such explanations. Therefore looking to the totality of the facts, had the AO given setoff, the jewellery belonging to Shri Gajendra Singh and his family weighing 1500 gms and jewellery belonging to the wife of the assessee, then in that event the addition would have reduced drastically. In the case of Poonam Yadav in ITA No.1121/Del/2021 (supra) we have directed the AO to give set off of the jewellery received as a gift from grandmother in law of Smt. Poonam Yadav and for the same reasoning the AO would allow the setoff of the jewellery belonging to Gajendra Singh and his family and the jewellery belonging to the wife of the assessee that was received as gift from grandmother law and was part of the jewellery that was found at the residential premises of the assessee and his locker. Looking to the facts and material placed before us, we are of the considered view that the action of AO is not justified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Grounds raised by assessee in ITA No.1126/del/2021 are as under: 1. That the CIT(A) erred on facts and in law in not quashing the assessment order dated 07.11.2019 passed by the assessing officer under section 143(3) of the Income Tax Act, 1961 ( the Act ) on the ground of being beyond jurisdiction, bad in law and void ab initio. 2. That the CIT(A) erred on facts and in law in sustaining the addition of Rs.63,27,948, out of total addition of Rs.4,02,36,126/- and not deleting the aforesaid entire addition, which was made by the assessing officer under section 69B of the Act alleging unexplained investment in property on the basis of higher fair market value thereof determined by the DVO. 3. That the CIT(A) erred on facts and in law in not quashing the impugned order passed under section 143(3), since the same was passed pursuant to a mechanical approval dated 20.12.2019 granted by the Addl. CIT under section 153D, lacking complete application of mind and thus rendering the assessment order to be beyond jurisdiction. 4. That the CIT(A) erred on facts and in law in not deleting the aforesaid addition made under section 69B of the Act on the basis of valuati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee was taken up for scrutiny assessment through CASS. The AO while framing the assessment assessed income at Rs.18,02,36,130/- after making addition of Rs.8,25,00,000/- on account of corpus donations. AO noticed that during the year under consideration assessee had received corpus donations of Rs.3,00,00,000/- from Shri Hazarimal Somani Memorial Trust, Rs.2,00,00,000/- from Bhadram Janhit Shalika and Rs.25,00,000/- from Narinaka Sewa Kendra. To verify the genuineness of the donations, notices u/s 133(6) of the Act was issued by the AO on 27.08.2019. AO has noted that no response was received to the notices u/s 133(6) of the Act. AO at para 10 of his order noted that in the case of Anandilal Ganesh Podar Society, incomplete information was received from its Chartered Accountant and no confirmation from the donor, or audited balance sheet and income expenditure account was furnished. AO therefore, was of the view that the donation was given by it to the assessee could not be verified in the absence of audited balance sheet. In respect of the other donors, AO noted that no information in respect to confirmation was furnished by the donors. He noted that assessee had also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee had discharged its burden by filing bank statements, ITR and financial statements and the notices issued u/s 133(6) were not returned back. He therefore deleted the addition of Rs.8,25,00,000/-. Aggrieved by the order of CIT(A), Revenue is now in appeal. 168. Learned DR took us through the findings of AO and supported his order. He further submitted that since corpus donations is permanent in nature it should be confirmed by the donor and if the AO has not done full enquiry, Learned CIT(A) ought to have made the necessary enquiries before deciding the issue. He thus supported the order of AO and submitted that CIT(A) has erred in deleting the addition made by AO. 169. Learned AR on the other hand reiterated the submissions made before the CIT(A) and further submitted that assessee has discharged its initial onus by proving the identity and the creditworthiness of the donors and the additions made by the AO was only based on surmise and not based on the facts. He thus supported the order of CIT(A). 170. We have heard the rival submissions and perused the material available on record. We find that Ld CIT(A) while deciding the issue in favour of the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on the evidences of bank statements and creditworthiness. 7.7 Under the above facts and circumstances of the case, the addition of Rs.8,25,00,000/- made by AO u/s 68 is hereby deleted. Accordingly Ground No 3 is allowed to the appellant. 171. Before us, no fallacy in the findings of CIT(A) has been pointed out by Revenue by placing any contrary material on record. Moreover, the AO has not brought any evidence on record suggesting that the Assessee routed its own money through donors. Admittedly, Revenue has not brought any material suggesting that any action has been taken and or contemplated against the donors under the Act. Considering the totality of the aforesaid facts, we find no reason to interfere with the order of CIT(A) and thus the ground of Revenue is dismissed. 172. Ground No.2 is with respect to deletion of addition made by the AO of Rs.5.75 crores. 173. AO has observed that a survey operation u/s 133A of the Act was conducted at the premises of Sita Devi Memorial Shiksha Sansthan on 10.11.2017 and certain documents were found and impounded. A ledger account of M/s. Metamorphosis Constructions relating to F.Y. 2016-17 were found wherein it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 69C of the Act. The copy of the said page as referred by the Appellant is produced as above. The Appellant submitted that the upper typed portion of the said page contains the details of construction expenses paid to Metamorphosis Construction ( Contractor ), which is duly recorded in the books of the accounts of the Appellant. The said fact has not been disputed by the AO. Further, it is noticed that there are some scribbling on the bottom part of the page wherein a figure of cheque 6.47 and cash of Rs. 5.75 is mentioned. On the right side of said figure of Cheque 6.47, a figure of 0.50 is mentioned that makes the cheque figure to 6.97. The AO considered the said figure of cash of Rs. 5.75 as to depict 5.75 crore and made an addition of Rs. 5.75 crores in the hands of the Appellant. The Appellant submitted that such rough handwritten scribbling cannot be treated as part of books of account and is dumb document for the Appellant. For this the Appellant relied on the various judgments of Hon ble Supreme Court and High Court. The Appellant further submitted that no show cause notice or other details were asked by the AO under notice u/s 142(1) to respond in this regard. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he absence of any adverse material we do not see any reason to interfere with the order of CIT(A) and thus the ground raised by the Revenue is dismissed. 179. Ground No.3 is with respect to deleting the addition of Rs.3,39,08,178/-. 180. During the year under consideration, AO noted that assessee has disclosed the investment of Rs.9,06,00,243/- in the construction on the Plot bearing No.196/2B, Sector 51, Noida on which the school namely LPS Global School was running. He noted that as per valuation report received from DVO, Delhi, the total construction value that was determined by him at Rs.13,08,36,369/- meaning thereby that there was difference of Rs.4,02,36,126/-. Assessee was asked to explain the difference of the aforesaid amount with necessary documentary evidences. Before AO, Assessee inter alia stated that the DVO has made estimation of fair market value of the property but the value declared by the assessee was actual cost incurred. It was further submitted that DVO had stated that the property was under construction but on the contrary the valuation was done by DVO by assuming the construction as completed. The submissions of the assessee were not found accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records. It is not in dispute that the impugned addition has been made on the basis report by DVO regarding construction cost of the property in question. The assessee claimed cost of construction on the actual expenditure incurred and booked in the books of accounts on the other hand the AO made addition by relying on value estimated by the DVO. The assessee pointed to two serious lacuna in the report; (i) the DVO applied CPWD rates for estimating the cost of construction and; (ii) the DVO had taken value of fully constructed property but in fact the construction of property was yet to be completed. We find merit into the contentions of the Learned Counsel for the assessee as it is well settled that State PWD rate is better guiding factor for arriving at cost of construction of the property. Moreover, the Revenue has not rebutted the claim of the assessee that the property in question was yet to be completed and the DVO took the value of completed property coupled with fact that no evidence is brought on record by the AO suggesting that any expenditure more than what was booked by the assessee in its books of accounts has been incurred. In the absence of such evidence, the cost a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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