9911796707
TMI Blog2023 (2) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... under: "1. BECAUSE the Id. CIT(Appeals) has failed to appreciate that the assessment order dated 19th March, 2016 is wholly illegal and bad in law as the statutory notice under section 143(2) was issued beyond the limitation as prescribed in the Income Tax Act, 1961. 2. BECAUSE the Id. CIT (Appeals) should have cancelled the assessment order dated 19th March, 2016 herself as the mandatory notice under section 143(2) was issued beyond the time limit prescribed in the Income Tax Act, 1961. 3. BECAUSE no "Satisfaction" was recorded by the assessing officer to meet the requirement of law before invoking the provision of section 153C In the case of appellant thereby the assessment order dated 19th March, 2016 should have been quashed by the Id. CIT(Appeals). 4. BECAUSE the Id. CIT (Appeals) should have quashed the assessment order dated 19th March 2016 on the preliminary legal issues which goes to the very root of a valid assessment and in pursuance to illegal assessment the order passed by the Id. CIT(Appeals) is also bad in law. WITHOUT PREJUDICE TO AFORESAID 5. BECAUSE the Id. CIT (Appeals) has erred in law and on facts in confirming the addition of Rs. 45,00,000/- a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business dealing with the appellant with Dinesh Kumar Pahuja. 13. BECAUSE the Id. CIT(Appeals) has erred in law and facts in holding that the fake entries appearing in the paper L-5, page124 back side belongs to the appellant despite the categorical finding given by the assessing officer that the disputed paper was found from the premises of Dinesh Kumar Pahuja, President of Sindhu Sahkari Awas Samiti. 14. BECAUSE the entries as found In the loose paper L-5, page124 back side are third party entry which cannot be added in the hands of appellant as the said entries are not admissible as evidence under section 34 of the Indian Evidence Act,. 15. BECAUSE the Id. CIT(Appeals) has erred in law by treating contention of the company M/s H.K. Infraventures Pvt. Ltd. as correct without appreciating the facts that the appellant is not the owner of the land but only a tenant. 16. BECAUSE the entries as recorded in the loose paper L-5, page124 back side are between the purchaser and seller l.e. M/s H.K. Infraventures Pvt. Ltd and Sindhu Sahkari Awas Samiti and the addition on the basis of their transaction in the hands of appellant is wholly illegal and unjustified. 17. BECAUSE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceedings under section 153C by issuing notice under section 153C dated 5.9.2014. In response to the said notice, the assessee filed reply dated 22.9.2014 and stated that the return filed under section 139 on 30.07.2013 may be treated as return filed in compliance to notice issued under section 153C. Since, the assessee and his brother declared a sum of Rs. 60 Lac each as receipt towards compensation for vacating the premises i.e. House No. 11/13/17 Stanely Road, Allahabad which was occupied by the assessee and his brother as a tenant of M/s Sindhu Sahkari Awas Samiti sold to M/s H.K. Infraventures Pvt. Ltd, therefore, the AO issued show cause notice as to why the balance amount of Rs. 45 Lac each should not be added to their total income as unexplained income under section 69 of the Income Tax Act. In reply dated 22.02.2016, the assessee denied the allegations of receiving any amount over and above of Rs. 60 Lac, in lieu of vacating the premises. The assessee also explained that the compensation was received from Shri Hemant Kumar Sindhi for vacating the premises in question and the assessee had no dealing with M/s Sindhu Sahkari Awas Samiti whatsoever. The assessee also denie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligatory for the AO to apply mind to the contents of the return filed in response to notice and thereafter issue notice under section 143(2) of the Act before proceeding to decide controversy. The non- compliance of mandatory provision vitiates the assessment. He has also relied upon the judgment of Hon'ble Supreme Court in the case of Assistant Commissioner of Income Tax vs. Hotel Blue Moon 321 ITR 362 (SC). 5. On the other hand, learned DR has submitted that the AO has duly recorded at page no. 2 of the assessment order that notice under section 143(2) was duly issued to the assessee on 16.11.2015 alongwith the notice issued under section 142(1) and in response to which the counsel of the assessee attended the proceedings before Assessing Officer and filed reply. The assessee never objected during the assessment proceedings to the notice issued under section 143(2) by the AO. He has further submitted that even otherwise the notice under section 143(2) is not required while framing the assessment under section 153A/153C of the Income Tax Act. He has relied upon the judgment of Hon'ble jurisdictional High Court in the case of CIT vs. Anurag Aggarwal 299 taxman 532 as well as in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing premises No. 13, (New No. 17), Stanley Road, Allahabad. 2. Because the Id. Assessing Officer has relied on the entries in the books of a third person (Mr. Dinesh Kumar Pahuja) and has failed to appreciate the replies and statement of the appellant thereby treating Rs. 1,05,00,000/- as compensation received by the appellant. 3. Because the addition of Rs. 45,00,000/- as unexplained made by Ld. Assessing Officer is based on conjectures and surmises only. 4. Because in any view, the entire addition of Rs. 45,00,000/- is against the facts of the case and is liable to be deleted." 8. Therefore, at the outset, we find that when the AO has clearly mentioned in the assessment order that the notice under section 143(2) was issued on 16.11.2015 and the assessee did not raise any objection either before the AO or before the CIT(A) then merely because this fact was not recorded in the ordersheet by the AO would not lead to the conclusion that the fact recorded in the assessment order is false / incorrect. The assessee is not disputing the fact as recorded by the AO in the assessment order as well as service of notice but the challenge is based merely on the ground that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrary, an identical issue has been decided by a majority view in the case of ACIT vs. Sunshine Infraestate Private Limited (supra) and the Third Member vide order dated 12.04.2022 has considered and decided this issue in para 6.2 to 6.6 as under:- "6.2. Section 153A of the Act, at the relevant time, opens with a nonobstante clause, inter-alia, qua section 147 and provides that when a person is searched after the specified date, the AO shall: "(a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b) ..... and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139". Section 153A(1)(b) states that the AO shall: "assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made". The first proviso to section 153A(1) also says that "the Assessing Officer shall assess or reassess the total income in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessments of the prescribed six assessment years. Once the assessments are to be mandatorily made in search cases, unlike the regular cases giving choice to the AO to make assessment only on considering it necessary or expedient, there is no requirement of acquiring any jurisdiction to do so by firstly issuing notice u/s 143(2). The very factum of search confers jurisdiction on the AO to make assessment under section 153A of the Act. 6.3. It is no doubt true that section 147 also requires issuance of a notice u/s 143(2) as a pre-condition for making assessment or reassessment. However, in view of the fact that section 153A contains non-obstante clause qua section 147, the consequential requirement of issuing notice u/s 143(2) before making assessment u/s 147, also gets obliterated in an assessment u/s 153A. Moreover, section 153A directly empowers the AO to take up the assessment without acquiring any separate jurisdiction. 6.4. The ld. AR heavily relied on the judgment of the Hon'ble Supreme Court in ACIT & Anr. vs. Hotel Blue Moon (2010) 321 ITR 362 (SC) to contend that issuance of notice u/s 143(2) in search cases for making block assessment u/s 158BC has been held b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no specific provision in the Act requiring the assessment u/s 153A to be made after issuing notice u/s 143(2). No contrary decision of any other Hon'ble High Court, mandating the requirement of notice u/s 143(2) in making assessment u/s 153A, has been placed by the ld. AR before me. 6.6. At this stage, it would be significant to note that a difference of opinion arose between two Members of the Mumbai Bench on this very issue as to whether requirement of issuing notice u/s 143(2) is there before making assessment u/s 153A? The learned Third Member in Smt. Sumanlata Bansal vs. ACIT (TM), vide his order dated 20.05.2015 (ITA Nos.525 to 530/Mum/2008), has decided the issue in favour of the Revenue by holding that the issuance of notice u/s 143(2) is not warranted while framing assessment u/s 153A. In view of the foregoing discussion, the overwhelming legal position is clear by which the four Hon'ble High Courts of the country have decided this issue against the assessee apart from the learned Third Member also approving similar view. I, therefore, answering the question in negative, hold that issuance of notice u/s 143(2) is not a mandatory jurisdictional requirement for maki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) then merely because this was not mentioned in the ordersheet would not change the fact duly recorded by the AO in the absence of any contrary fact or material brought before us. Hence, the mere verbal contention of the assessee disputing the recording of the satisfaction, which find place in the assessment order itself, would not negate the fact of recording the satisfaction. Accordingly, we do not find any merit or substance in ground no. 3 and 4 of the assessment order and the same are dismissed. 15. Ground no. 5 to 20 are regarding the addition of Rs. 45 lac made by the AO on account of unexplained income allegedly received by the assessee for vacating the premises. The AO noted that during the search in the case of Dinesh Kumar Pahuja at Lotus Apartment on 5.12.2013, a document marked as Annexure L-5/ page 124 back side was seized which is a ledger account of land purchase in the books of M/s H.K. Infraventure Private Limited showing that Rs. 2.10 Crore has been paid to assessee and his brother Sh. Madhurendra Nath. The AO accordingly, asked the assessee vide questionnaire dated 5.11.2015 to explain the whole transaction and also explained whether you have disclosed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is signed by the assessee and his brother on the one hand and Shri. Dinesh kumar Pahuja on behalf of Sindhu Sehkari Avas Samiti as well as Sh. Hemant Kumar Sindhi, the Director of M/s H.K. Infraventure Private Limited. The said document is also attested by the witnesses. Therefore, a compensation was received by the assessee under the memorandum of understanding which is signed by all the parties has been duly declared by the assessee in the return of income and there is no evidence of receiving any compensation over and above which is mentioned in the memorandum of understanding and paid through cheques. The allegation of the AO regarding Rs. 45 lac received by the assessee and his brother in cash is neither accepted by M/s H.K. Infraventure Private Limited nor mentioned in the memorandum of understanding. The seized document was found from the possession of Shri. Dinesh Kumar Pahuja (Third Party) therefore, he was bound to explain the same. The learned AR has submitted that the assessee has made specific request to AO during the assessment proceedings to summon Shri. Dinesh Kumar Pahuja to verify the correctness of the fact but the AO failed in it for the reasons best known t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement recorded by the AO that the assessee has received only Rs. 60 lac as compensation for vacating the premises in question then in the absence of any tangible material to show the payment of the alleged sum of Rs. 45 lac as compensation to the assessee the addition made by the AO is not justified. 16. On the other hand, the learned DR has submitted that M/s H.K. Infraventure Private Limited has accepted the part transactions recorded in the seized document and therefore, the seized document cannot be accepted in part but the whole of the document has to be accepted and the transactions recorded in the document are to be deemed as correct. The memorandum of understanding dated 30.5.2012 is showing only the payment through cheques and the cash payment, component of compensation is not mentioned in the said memorandum as it is a normal practice when the money is taken in cash. He has relied upon the impugned order of the CIT(A) and submitted that the CIT(A) has examined the facts and the relevant material including the seized document marked as Annexure L-5/ page 124 and held that the document found during the course of search should be treated as genuine with respect to all ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated as true. Therefore Please state why it will not be treated that you have received Rs 1,05,00,000/- for vacating the premises from M/s H K Infraventures during the year and why the remaining amount not disclosed by you may not be treated your undisclosed receipt/undisclosed income. You are hereby given an opportunity of being heard. Therefore, you are directed to file your reply on 22.02.2016 at 11 AM. In the absence of any reply, it would be presumed that you have nothing to say in the matter and proceeding will be decided on merits." 18. The assessee filed the reply dated 22.02.2016 which is also reproduced by the AO at page no. 4 as under:- "The assessee has filed reply on 22.02.2016 and relevant part of reply is - reproduced as under:- "Re: Compensation received from Mr. Hemant Sindhi for vacating premises No stanley Road, Allahabad under our tenancy, I have had no dealing with M/s Sindhu Sahkari Avas Samiti whatsoever. I have made it clear that I do not know Dinesh Kumar Pahuja. I do not think that I have ever met him. What he has en in his books I have got nothing to do with it. That my dealing was with Mr. Hemant Sindhi of M/s HK Infraventures only and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,87,730/- alongwith all necessary paper and documents copy of which are enclosed at page no........of the paper book alongwith computation chart. From the computation sheet itself it will appear that apart from professional and interest income the appellant voluntarily disclosed Rs. 60 Lakhs in his return which was received from M/s H.K. Infraventure Pvt. Ltd. to vacate the property No. 13, Stanley Road, Allahabad which is a rented property and for vacating the property the appellant received consideration of Rs. 60 Lakhs only. Thus it is a voluntary disclosure in the return which proves the conduct and intention of the appellant. That after filing of the return notice u/s 153C of the IT Act dated 05/09/2014 was served on the appellant on 09/09/2014 requiring thereby to furnish the returns for six years starting from A. Ys. 2007-08 to 2012-13. In compliance to the said notice returns for these six years were filed on 22/09/2014. In compliance to the notices u/s 143(2) of the IT Act necessary explanations, informations and details were also furnished as per requirement of the Assessing Officer. That the cause/reason for issue of the notice u/s 153C of the IT Act was that a sear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for such payment was only because the appellant and his brother both were residing in the property situated at13 Stanley Road, Allahabad as tenant from the year 1947 and paying rent of Rs 2500/- per month. The property in question belonged to M/s Sindhu Sahkari Awas Samiti in which the said Sri Dinesh Kumar Pahuja was the main person/Landlord. The said property was sold to M/s H.K. Infraventure P Ltd in which Sri Hemant Kumar Sindhi is a director. In this regard there is no dispute of any kind between said M/s Sindhu Sahkari Awas Samity & M/s H.K. Infraventure P Ltd. That after purchase of the said property by M/s H.K. Infraventure Pvt Ltd. one of the directors of the Company named Sri Hemant Kumar Sindhi entered into an agreement with the appellant and his brother on 30.05.2012 much before the date of search and the said disputed single unsigned loose paper was founded seized in the course of search from said third party Dinesh Kumar Pahuja from his residence According to the agreement the appellant and his brother both were paid Rs. 60 Lakh + Rs. 60 Lakh only by M/s H.K. Infraventure Pvt. Ltd. for vacating the portion of the property in which they were residing as a tenant. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... page no........ The said notarized agreement and mode/amount of payment as mentioned therein have been accepted by the Assessing Officer and on this count there is no adverse remark anywhere in the assessment order. It means the assessing officer gave full cognizance to the said notarized agreement. The fact of payment of Rs 60 lakhs each has been duly confirmed by Dinesh Kumar Pahuja and Hemant Kumar Sindhi as per the agreement. That the addition of Rs. 45 Lacs was made by the assessing officer by giving too much weightage to the referred connected L- 5/page 124 only which is a rough, dump & duff documents only found from the premises of third party named Sri Dinesh Kumar Pahuja and the same does not bear anybody's signature also. Hence the Assessing Officer proceeded on presumptions only and according to his own likings added made a wrong addition in the hands of the appellant knowingly by sparing the said third party namely Dinesh Kumar Pahuja from whose possession the said document was found. In the assessment of Dinesh Kumar Pahuja no adverse view was taken by the Assessing Officer on the basis of said referred annexure when the same was found from his residence and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tenants, the landlord as well as the purchaser. The property was owned by Sindhu Sehkari Avas Samiti which was purchased by M/s H.K. Infraventures Pvt. Ltd,. The assessee and his brother were occupants of one portion of the properties as tenants. The said memorandum of understanding contains all the details regarding the status of the parties, the monthly rent of the portion of the property occupied by the assessee and his brother and the schedule of the payments of compensation for vacating the property by assessee and his brother as the same was purchased by M/s H.K. Infraventures Pvt. Ltd., from M/s Sindhu Sehkari Avas Samiti. The details of the payment have been given as under:- i Rs. 34,00,000.00 Vide Cheque No. 566707 dated 18.05.2012 drawn on Vijaya Bank, Allahabad ii Rs. 34,00,000.00 Vide Cheque No. 566705 dated 18.05.2012 drawn on Vijaya Bank, Allahabad iii Rs. 16,00,000.00 Vide Cheque No. 525457 dated 17.05.2012 drawn on ING Vysya Bank Ltd., Allahabad iv Rs. 16,00,000.00 Vide Cheque No. 525458 dated 17.05.2012 drawn on ING Vysya Bank Ltd., Allahabad v Rs. 10,00,000.00 Vide Cheque No. 823068 dated 23.04.2012 drawn on ING Vysya Bank Ltd., Alla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Rs. 60 lacs through 3 cheques from H.K. Infraventure (P)(Ltd.) as per the agreement dated 30-05-2012 for vacating the premise No. 13,Stanley Road, Allahabad which was under the tenancy of the appellant and his brother Madhurendra Nath who also got Rs. 60 lacs as per the agreement. The AO has noted that M/s H.K. Infraventures Pvt. in its reply filed on 05-02-2016 during the assessment proceeding for A.Y. 2013-14 has accepted the cash transaction of Rs. 51,49,500/- dated 04-11-2011, being registry made and stamp duty paid of Rs. 51,39,500/- and other fees paid vide receipt no. 185622 voucher no. 13. The transaction related to the appellant and his brother Shri Madhurendra Nath of payment of Rs. 2.10Cr. is found on the same page 124 back side of Annexure L-5 which shows payment of Rs. 1.05 Cr. and Rs. 1.05 cr. paid to appellant's brother Madhurendra Nath) to the appellant. Out of total amount of Rs. 1.05 Cr., Rs. 60 lacs has been disclosed by H.K. Infraventure and the appellant also but the remaining amount has not been disclosed by the appellant or by M/s H.K. Infraventure. The AO has held that the transaction of Rs. 45,00,000/- as per the seized document is the unrecorded tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Shri Dinesh Kumar Pahuja is a rough and dump document is not found acceptable. 9. Considering the facts and circumstances of the case, I find that the seized documents annexure L-5/ page 124 and the records are not the rough documents rather they are true statement of the actual state of affairs for the land purchase deal between H.K. Infraventure and the appellant. The seized document clearly establishes the fact that the appellant has received Rs. 45,00,000/- over and above the agreement for vacating the tenancy rights of the premises 13, Stanley Road, Allahabad. In view thereof addition of Rs. 45,00,000/- made by the AO by treating it as unexplained u/s 69 of the I. T. Act and adding it to the income of the appellant is hereby upheld." 23. The said seized document contained some other entries regarding payment of Rs. 51,52,000/- towards Stamp Duty and entry fee to Nagar Nigam, Allahabad. M/s H.K. Infraventures Pvt. Ltd., accepted those transactions being matter of record as payment was made to the authorities and also mentioned in the sale deed. The said seized document was found from the possession of Sh. Dinesh Kumar Pahuja. The AO as well as CIT(A) has relied upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee would have been given an opportunity to cross examine before making the addition. Accordingly, we set aside the impugned order and remand the matter to the record of the Assessing Officer for fresh adjudication after examination of Shri. D.K. Pahuja and Shri. Hemant Kumar Sindhi qua the seized document and opportunity to cross examination be afforded to the assessee. 24. Since the issue, facts and circumstances in both the appeals are identical therefore, in view of our finding in ITA No. 15/Alld/2018, the appeal in ITA No. 16/Alld/2018 stand disposed of in the same terms and with same directions. 25. The learned AR of the assessee has pointed out during the course of hearing that the AO has attached the bank account and property of the assessee for recovery of the outstanding demands. Since, the matter is set aside to the record of the AO therefore, the AO is directed to release the bank account and properties of the assessee, if any, for recovery of the demand in question. 24. In the result, both the appeals in ITA No. 15/Alld/2018 & ITA No.16/Alld/2018 are partly allowed for statistical purpose. Order pronounced on 16.02.2023 at Allahabad, U.P. I.T.A. NO. 15/A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Revenue u/s 132 , cash ,jewellery etc. as per Annexures to various Panchanama drawn, were found and seized. As per Revenue, the assessee has allegedly received payments from one of the group companies of Mr. Hemant Sindhi and Mr. Hemant Sindhi as per seized documents. After recording satisfaction in writing, a notice u/s 153C dated 05.09.2014 was issued by the AO requiring assessee to furnish return of income latest by 20.09.2014. The assessee did not filed return of income within stipulated time, but filed reply on 22.09.2014 that return filed u/s 139 on 30.07.2013 may be treated as return of income filed in compliance to notice u/s 153C. The AO issued notice u/s 143(2), dated 16.11.2015. Thereafter, notice u/s 142(1) was issued by the AO with detailed questionnaire on 05.11.2015. The assessee appeared before the AO and , inter-alia, submitted that the assessee has received cheque's aggregating to Rs. 60 lacs from M/s H K Infraventures Private Limited ( his brother Mr. MadhurendraNath also received cheques aggregating to Rs. 60 lacs from M/s H K Infraventures Private Limited) for vacating the tenancy rights of premises 17(Earlier No. 11 and then 13 and now 17), Stanley Road, Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was under their tenancy. The assessee submitted that he had no dealing with M/s Sindhu Sahkari Avas Samiti whatsoever. The assessee submitted that he does not know Mr. Dinesh Kumar Pahuja. He submitted that he never met Mr. Dinesh Kumar Pahuja. The assessee submitted that he is not concerned with what Mr. Dinesh Kumar Pahuja writes in his books as he has got nothing to do with that. The assessee explained that he has dealings with Mr. Hemant Sindhi of M/s. H K Infraventures Pvt. Ltd. only and with no other person. The assessee explained that he is not aware as to how name of Mr. Dinesh Kumar Pahuja has come in between. The AO rejected the reply of the assessee with respect to seized document Annexure LP-5/Page 124 and its back, as not satisfactory and unacceptable. The AO observed that Shri Dinesh Kumar Pahuja is son of Late Narayan Das Pahuja, who was Secretary of Sindhu Sahkari Awas Samiti and the said Samiti is owner of the property 17, Stanley Road, Allahabad. Presently, Shri Dilip Pahuja (brother of Mr. Dinesh Kumar Pahuja) is the Secretary of Sindhu Sahkari Awas Samiti. The AO observed that in the aforesaid seized documents , certain other transactions related to Sindhu Sahk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search operations conducted by Revenue on Mr. Dinesh Kumar Pahuja from his residence at Lotus Apartment, Allahabad, on 05.12.2013. The aforesaid seized document LP-5 page 124 and its back page are reproduced hereunder : As is emerging from the records, Property at 17 ( earlier No. 11 , then No. 13 and now No. 17 ) , Stanley Road , Allahabad , was owned by Sindhu Sahkari Awas Samiti. Mr. Dinesh Kumar Pahuja was the President of the said Sindhu Sahkari Awas Samiti. Mr. Dilip Kumar Pahuja (who is brother of Mr. Dinesh Kumar Pahuja )was the Secretary of Sindhu Sahkari Awas Samiti. The said Sindhu Sahkari Awas Samiti sold the property at 17(Earlier No. 11 , then No. 13 and Now No. 17), Stanley Road, Allahabad , to M/s H K Infraventures Private Limited. Mr. Hemant Kumar Sindhi is the Director of M/s H K Infraventure Private Limited. The assessee (along with his brother Mr. Madhurendra Nath ) were the tenants of the said property. The assessee has admitted that he (along with his brother Mr. Madhurendra Nath) entered into MOU dated 30.05.2012 with M/s H K infraventures Private Limited for vacating the said premises and received Rs. 60 lacs( Rs. 60 lacs was also confirmed to have been rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as well cash) to M/s Sindhu Sahkari Awas Samiti towards purchase of aforesaid land/property 17, Stanley Road, Allahabad, aggregating to Rs. 10,54,42,250/- , staring from 03.09.2011 to 13.03.2013. On 31.03.2013, the entire amount of Rs. 10,54,42,250/- was transferred vide Journal Voucher No. 301 to Land Purchase Account, which strengthens the view that all the payments recorded were towards Land/Property Purchase viz. 17( Previous No. 11 , then No. 13 and Now No. 17) , Stanley Road, Allahabad, U.P. by H K Infraventures Private Limited from M/s Sindhu Sahkari Awas Samiti. The payments are systematically recorded date wise , amount wise etc. in the aforesaid seized document. On perusal of seized document LP-5/back page of 124, it transpires that this is alleged ledger(allegedly part of books of accounts) of M/s H K Infrastructures Private Limited, 17 , Industrial Colony , Naini, Allahabad , and the back page LP- 5/page 124 consists of Ledger Account of Land Purchase from 01.04.2011 to 31.03.2014 in the books of H K Infraventures Private Limited. It is admitted position that M/s H K Infraventures purchased Property No. 17(Earlier No. 11, then No. 13 and Now No. 17), Stanley Road, Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have received any amount over and above the aforestated amount of Rs. 60 lacs received vide cheques under the MOU dated 30.05.2012. However, the said sized document records that Rs. 2,10,00,000/- was , inter-alia, debited to Land Purchase Account by H K Infraventures Private Limited in its books of accounts w.r.t. transactions with the outgoing tenants namely the assessee as well his brother Mr. Madhurendra Nath. The assessee has denied to have any dealings with Sindhu Sahkari Awas Samiti and the assessee has also denied to have known Mr. Dinesh Kumar Pahuja. Incidentally, Mr Dinesh Kumar Pahuja in the capacity of President of Sindhu Sahkari Awas Samiti has countersigned the said MOU dated 30.05.2012 acknowledging that Sindhu Sahkari Awas Samiti was the previous owner as well Landlord with respect to aforesaid land, and presently there are no dues of any kind payable by the tenants namely the assessee and Mr. Madhurendra Nath to Sindhu Sahkari Awas Samiti. As is emerging from the records, Property at 17, Stanley Road , Allahabad , was owned by Sindhu Sahkari Awas Samiti. Mr. Dilip Kumar Pahuja (who is brother of Mr. Dinesh Kumar Pahuja , President of Sindhu Sahkari Awas Samiti) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 132(4A) and 292C shall apply, and the contents of the documents shall be presumed to be true. The name of the assessee and his alleged transactions w.r.t. vacating the property 17, Stanley Road, Allahabad, are allegedly recorded in the aforesaid seized document. It is equally true that the seized document LP-5/Page 124 and its back page were not found and seized from the possession of the assessee. No doubt, the assessee was confronted by Revenue with the aforesaid seized document, but the assessee asked for summoning of the said Mr. Dinesh Kumar Pahuja from whose possession this document was found and seized by Revenue during searches conducted u/s 132 on 05.12.2013, as is emanating from the appellate order passed by ld. CIT(A), but the department did not produce Mr. Dinesh Kumar Pahuja before the assessee for examination/cross examination . The assessee has denied to have known Mr.Dinesh Kumar Pahuja and also denied to have any dealings with M/s. Sindhu Sahkari Awas Samiti. It is also true that the assessee was tenant of the premises/property 17, Stanley Road, Allahabad and M/s Sindhu Sahkari Awas Samiti was earlier owner/landlord of the said property , which property was sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be considered before fastening any tax-liability. Contents of the part of the seized document LP-5/Page 124 and back page of 124 is admitted by M/s H K Infraventures Private Limited. The name of the assessee is recorded in the said seized document. It is for the assessee to rebut the said presumption. It is also true that this document was not seized from possession of the assessee. It is also true that the assessee has during the impugned assessment year, transactions with M/s. H K Infraventures Private Limited w.r.t. vacating of tenanted property situated at 17, Stanley Road, Allahabad, U.P.. Thus, with these remarks and reasons as enumerated above in my concurring order, I set aside the impugned order and remand the matter to the record of the AO for fresh/denovo assessment , as enumerated in detail as above in this separate concurring order. I order accordingly. 5. Since the issue, facts and circumstances in ITA No. 16/Alld/2018 on this issue are similar to the facts, issue and circumstances in ITA no. 15/Alld/2018, my decision as above shall apply mutatis mutandis to ITA no. 16/Alld/2018 on this issue. 6. In the result, both the appeals in ITA No. 15 & 16/Alld/2018 for a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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