TMI Blog2023 (2) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... rial has been found. We note that we do not have benefit of the AO s order in the case of those sellers. In the present case, the AO has mentioned incriminating material referred in Investigation Wing report. In these circumstances, in our considered opinion these additional materials were never before the AO. We note that interest of justice demands that the matter may be remitted back to the file of the AO. The AO shall examine the case with reference to the additional material in the shape of appellate orders in purchaser s case and thereafter decide as per law. This appeal filed by the Revenue stands allowed for statistical purposes. - ITA No. 3146/DEL/2019 - - - Dated:- 2-2-2023 - SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND Ms. AS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sale consideration for computation of. 3. Brief facts of the case are that the Assessing Officer noted that assessment was reopened in this case on the basis of information received from Investigation Wing of the Directorate of Income Tax that the assessee had sold her share in land situated Maidan Garhi for Rs.1,54,43,000/- (Rs.36 lakh through cheque and Rs.1,18,43,000/- through cash). Hence, capital gain arising on such transfer has escaped. On query in this regard, the assessee admitted to have received only Rs.36 lakh through cheque and denied any cash through cash payment. However, the AO was not satisfied with. The AO referred to some electronic storage devices recovered from the residential premises of Ms. Zaver Cyrus Dadin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted on the basis of sale consideration mentioned in the sale deed. Since, this case is also part of the same group, it will not be fruitful and worthwhile to repeat the same line of argument here again, therefore, by respectfully following the orders of my predecessor in the group cases of Col. Mahavir Singh Dagar and Sh. Shukhbir Singh Dagar for the same AY 2006-07, the AO is directed to rework the capital gain only on the basis of sale consideration mentioned in the sale deed. 6. Against this order, the Revenue is in appeal before us. 7. We have heard both the parties and perused the records. The ld. DR has relied upon the order of the AO and submitted that the addition have been made after discovery of incriminating material. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recovered. In the hard disc, there were details of purchase and purchase of property /payments in Maidan Gadi (Popularly known Sanik Farm) in Delhi. As per the information, certain portion of cash was transacted along with demand draft for purchase of the property. The Ld. Assessing Officer, on the basis of the information, reopened the assessment and made the addition. 2.2. On appeal, before the Ld. Commissioner of Income Tax (Appeal), the factual matrix was considered and ultimately the addition made by the Assessing Officer was not found sustainable, resultantly deleted, which is under challenge before this Tribunal. 2.3. If the observation made in the assessment order, leading to addition made to the total income, conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manager (Accounts) of NITCO, from whose premises the hard disc was found and seized and Shri Atul Sud admitted to have purchase the land from the concerned two parties on a consideration of Rs.39 to 40 lakhs and payments was made by demand draft he has nowhere admitted/tendered that any cash payments was made. Likewise, Ms. Zaver Cyrus Dadina has specifically tendered that she had no role to play either to issue cheque or cash. In reply to question no.12, whether any cash payment was made, she specifically denied of any transaction. A commission u/s 131(1)(d) of the Act was issued and the assessee was not able to provide any details/information/confirmation in this regard. Totality of facts clearly indicates that the Ld. Assessing Officer c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the factual matrix and the judicial pronouncements, discussed hereinabove, we find no infirmity in the conclusion of the Ld. First Appellate Authority. Our view is further fortified by the fact that the concerned data was even not found from the premises of the assessee and further the assessee has not started any substantial business activity and for acquisition of the land to inter corporate loan of Rs.40 lakh from Strategic Capital Corporation. Thus, the presumption of the Ld. Assessing Officer for making the addition on presumptive basis was rightly deleted by the Ld. Commissioner of Income Tax (Appeal). Thus, addition cannot be made on the basis of presumption, which cannot be sustained in law. Even otherwise, presumption cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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