TaxTMI 
TaxTMI 
TaxTMI 
2016 (11) TMI 1367
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....tat Royale Projects P Ltd.) 2. The grounds raised in Revenue's ITA No. 617/Del/2012 (AY 2007-08) read as under:- 1. On the facts and in the circumstances of the case Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs. 3,50,00,000/- made by the Assessing Officer on substantive basis on account of unaccounted income from sale of property by holding that the seized document does not belong to the assessee. 2 On the facts and in the circumstances of the case, the CIT(A) has erred in law and on facts in deleting the addition of RS.1,OO,OO,OOO/- made by the Assessing Officer on protective basis on account of unexplained investment in property by holding that the seized document does not belong to the assessee. 3. On the facts and in the circumstances of the case, the CIT(A) has erred in law and on facts in holding that the requirement for initiating proceedings u/s 153C of the Income tax Act, 1961 has not fulfilled in this case. 4 On the facts and in the circumstances of the case, the CIT(A) has not correctly interpreted the provisions of section 153C r.w.s. 153A of the Income tax Act, 1961. 5. On the facts and in the circumstances of the case, the CIT(A) h....
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.... has not correctly interpreted the provisions of section 153C r.w.s. 153A of the Income tax Act, 1961. 5. On the facts and in the circumstances of the case, the CIT(A) has erred in law and on facts in holding that there is no intimate connection between the seized document and the assessee without appreciating the fact that the property mentioned in the seized document has been sold by the assessee and the payments received through cheques thereto have been reflected in the books of the assessee. 6. On the facts and in the circumstances of the case, the CIT(A) has erred in law and on facts in holding that there is no evidence to the effect that the assessee had received the cash portion recorded in the seized document, without appreciating the settled position of law that the seized document should be read in totality and when cheque payments mentioned in the document have been reflected in the books of the assessee, she cannot deny the cash portion mentioned therein. 7. On the facts and in the circumstances of the case, without prejudice to the ground no.1, CIT(A) himself has confirmed the above mentioned addition of Rs. 17.50 Crores made on protective basis in the hands of ....
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....easoned order which does not need any interference and the same may be upheld. Ld. Counsel of the assessee also filed an Application under Rule 27 of the ITAT Rules, 1963 to support CIT(A) order on the legal ground of recording of specific and explicit satisfaction. In support of his contention relating to invoking of Rule 27 is concerned, he referred the decision of ITAT, Delhi Benches, New Delhi passed in ITA No. 1313/Del/2015 (AY 2011-12) on 2.12.2015 in the case of SIS Live vs. ACIT wherein, the similar issue was dealt with and request of the Department of invoking the Rule 27 was accepted. 8. We have heard both the parties and perused the records, especially the Orders of the revenue authorities. We find that ld. CIT(A) has elaborately discussed the issues in dispute raised in ground no. 1 & 2 and adjudicated at page no. 24 & 25 respectively. The relevant paragraphs of the finding of the Ld. CIT(A) are reproduced as under:- "I have given considerable thought to the facts of the case and the arguments made by the appellant as well as the ratio of the case laws relied upon by the appellant. It is a matter of record that the impugned documents have been seized from the resident....
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.... of Paper Book the property at D-17, Pushpanjali which has been sold by the assessee to Sh. R.S. Shokeen of Vijeta Properties P. Ltd. and the property at GWG which has been purchased by the assessee from M/s Nimitaya Properties Ltd., a company which is under control of Sh. Sanjeev Mahajan, are legally belonging to the assessee. The fact however remains that the there is no absolute or limited ownership of the assessee over the seized documents apart from the fact that the transactions recorded therein pertain to properties owned by the assessee. Now the requirement under the law is not regarding the ownership of the properties mentioned in the seized document but it is regarding the ownership of the document itself. As there is no intimate connection between the contents of the seized documents and the assessee and neither there is any other corroborative evidence to the effect that the assessee had received the cash portion recorded in the seized document therefore the requirement under the law that the seized document should belongs to the assessee for initiation of proceeding u/s 153C of the IT Act are not fulfilled in the case of the assessee. Therefore, Ld. CIT(A) has rightly ....
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....arty G-3, it is noted that Property no, D-17, Pushpanjali has been sold by Nimitaya Group to Sudhiksha Singh Bajaj. The alleged property D-17, Pushpanjali was purchased by M/s Nimitaya Properties Ltd on 15.04.2005 from Shri Chander Prakash Gupta, son of Shri Jugal Kishore. 4/138, Safdarjung Development Area for Rs. 1.5'0 Crores. it was sold by Nimitaya Properties Ltd. to M/s Sudiksha Singh for Rs. 2 Crores. Further, the said property was sold by Ms. Sudiksha Singh to Shri R K Shokeen of Vijeta Properties Pvt Ltd. vide Sale Deed dated 27.02.08 for registered value of Rs. 4,00,00,000/-. But the chart made on page no. 1 of Annexure A-1 party G-3, reveals that, the actual sale consideration was Rs. 25 crores and not Rs. 4 crore. The amount of commission paid is Rs. 25 lakhs which matches as per the normal property dealings in the market. The payment of commission as well as the balance sale consideration of Rs. 21 crores are thus, made in cash on various dates mentioned in the chart. During the course of post search investigation it was also gathered that Ms. Sudhiksha Singh is a sister in law of Sh. Sandeep Singh Khinda and real sister of Smt. Samita Khinda. From the above fact....
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....the first element is concerned, we find that this Rule has been enshrined with a view to dispense justice to a assessee who is otherwise entitled to assail the correctness of the impugned order by filing appeal or cross objection, whether or not actually filed. This is borne out from the expression `though he may not have appealed' used in the context of a assessee. This amply indicates the existence of a pre-right of the respondent to appeal, which may have remained un-availed. This Rule cannot help the respondent in a situation where he is otherwise debarred from filing cross appeal or cross objection. If no right to file a cross appeal or cross objection statutorily vests in the respondent, then it cannot be inferred indirectly by taking recourse to Rule 27. We have found out supra that, in the given facts, the Assessee has a right to file cross appeal or cross objection against the adverse direction given by the Ld. CIT(A) as contained in his appellate order. Thus, the first element, namely, the condition precedent for invoking rule 27, stands satisfied. 9.4 The next element is the scope of interference by the respondent. This is contained in the later part of the rule, which ....
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....were made in hands of Sandeep Khinda. It is noted that satisfaction note dated 25.11.2010 being date of issue of notice u/s. 153C, and therefore, the same is invalid on account of following reasons:- i.) That extant satisfaction note is not recorded in capacity of AO of raided party as manifest from facial reading of the same, which is must as held by the Coordinate Bench Delhi ITAT in DSL Properties Ltd. vs. DCIT 60 SOT 89 vide order dated 31.5.2012 (even if AO of both the raided party and other person are same); ii) That on basis of jurisdictional Delhi High Court order in the case of Pepsi Food Pvt. Ltd. vs. ACIT 2014 (8) TMI 425 dated 7.8.2014 it is clear that the instant satisfaction note is based on conjectures and surmises and do not reflect the application of mind by AO on presumptions u/s 292C/132(4A); iii) That in whole satisfaction note AO has not demonstrated that as to how document referred there belongs to assessee (Sudiksha Singh) as explained by jurisdictional Delhi High Court in case of Pepsico Holdings Pvt. Ltd. vs. ACIT (2015) 370 ITR 295 (14/8/2014) para 16; During search, in statements recorded none of the raided party disclaimed the subject documents; iv) T....
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.... (ITA NO. 334/DEL/2012 AY-2007-08) 11. The grounds raised in ITA No. 334/Del/2012 (AY 2007-08) read as under:- 1) The Learned CIT ( Appeals) has grossly erred in law and on the facts of the case in confirming the addition of Rs. 3.50 crores ( Three crores fifty lacs) in the hands of the assessee as unaccounted income or receipt during the year under consideration on sale of Property D-17 Pushpanjali. 2) The Learned CIT ( Appeals) has grossly erred in law and on the facts of the case in appreciating the factual matrix of the case while confirming the impugned addition of Rs. 3.50 crores (Three crores fifty lacs) as unaccounted income or receipt on sale of property D-17 Pushpanjali in the hands of the assessee even when the appellant is not the owner of the subject sold property. 3) The Learned CIT (Appeals) has grossly erred in law and on the facts of the case in applying Sec 292C of the Income Tax Act merely because some papers were found from the premises of the assessee while ignoring vital facts and contentions of the assessee. 4) The appellant craves leave to add, alter, demand, supplement or raise fresh grounds of appeal, if considered expedient and advisable at the time....
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....r, the assessee appealed before the ld. CIT(A) who vide his impugned order dated 28.11.2011 has dismissed the appeal of the Assessee. 14. Ld. Counsel of the assessee stated that Ld. CIT(A) was erred in confirming the addition in dispute in the hands of the assessee as unaccounted income or receipt during the year under consideration on sale of property D-17, Pushpanjali even when the assessee is not the owner of the subject sold property. He further stated that Ld. CIT(A) was further erred in applying Section 292C of the I.T. Act, merely because some papers were found from the premises of the assessee while ignoring vital facts and contentions of the assessee. To support his contention he relied upon the decision of the Hon'ble Supreme Court of India in the case of Sumati Dayal 214 ITR 801 and the ruling of the Hon'ble Delhi High Court dated 3.4.2014 in the case of True Zone Buildwell and the Hon'ble Allahabad High Court in the case of Babu Mohan Lal order dated 7.11.2013. In view of the above, he stated that the Appeals of the assessee may be allowed. 15. On the other hand, Ld. DR relied upon the orders of the authorities below and stated that the orders passed by them are the w....
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....ing due capital gain u/s 50C read with section 48 i.e there is no sanction & under the present law to tax a seller over & above the given transaction rate which is well considers the applicable rate otherwise sec 50c will become redundant. This can be a fiction in fiction i.e. 292 can't be infused a incorporated in section 50c. In our view, suspicion how grave & strong can't substitute the place of reliable cogent evidence to fasten a tax liability. 16.2 We have also perused the Sale deed dated 27.2.2008 of the property bearing No. D-17, Pushpanjali, New Delhi which was executed by Mrs. Sudiksha Singh in favour of M/s Vijeta Properties (P) Ltd. which establish that no such property bearing no D-17 Pushpanjali ever belonged to the assessee (Sandeep Singh Khinda) and no purchase/sale of aforesaid property has ever been made by the assessee. Therefore, there is no question of any undisclosed income which can be attached to the assessee with respect to above alleged property transactions. Assessee has never received/paid any payment in cash with respect to such property as the above property never belonged to the assessee. The AO has made the addition in the hands of the asses....
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....see . To support this view, we are placing reliance on the following judgements/decisions:- - ITA No. 936/2009 CIT vs. VP Bansal Order dated 2.8.2010 - The Hon'ble Delhi High Court has held that in the said case, the figures mentioned on the seized paper without there being any corroborator material in support thereof, contents were not capable of describing any transaction. Hence, addition cannot be made. - ITA No. 769 of 2009 dated 10.8.2010 CIT vs. BM Transport -The Hon'ble High Court of Gujarat at Ahmedabad has held that unsigned loose paper may be clue for further investigation but cannot be a conclusive evidence to make addition. - Nirmal Fashions (P) Ltd. vs. DCIT 123 TTJ 180 - - it was observed that the presumption under section 292C is rebuttal presumption and the document has to be considered considering the totality of the facts of the case. The deeming provision cannot be applied mechanically ignoring the facts of the case and the surrounding circumstances. 17. In the background of the aforesaid discussions and respectfully following the precedents as aforesaid, we delete the additions in dispute and allow both the Assessee Appeals. Revenue appeal No. 619/Del/2012 ....
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....08, therefore the amount of Rs. 74 lacs is a case of application of income already brought to tax on substantive bas is in case of Sh. Sandeep Singh Khinda. Accordingly, the protective addition made by the AO for Rs. 74 lacs in case of the appellant i.e. M/s Habitat Royale Projects P ltd. is directed to be deleted." 20. We have heard both the parties and perused the records especially the aforesaid finding of the Ld. CIT(A) passed in his impugned order, we find that Ld. CIT(A) has rightly observed that since the source of the investment in cash for Rs. 74 lacs is forming part of the cash of Rs. 3.50 crores which has been held as unaccounted income of Sh. Sandeep Singh Khinda in his appellate order for AY 2007-08, therefore, the amount of Rs. 74 lacs is a case of application of income already brought to tax on substantive basis in case of Sh. Sandeep Singh Khinda. Accordingly, he directed the AO to delete the protective addition of Rs. 74 lacs in the case of assessee i.e. M/s Habitat Royale Projects P Ltd. made by AO. However, as aforesaid, in the case of Sandeep Singh Khinda vide para no. 11 to 17 for the assessment years 2007- 08 and 2008-09, we have already deleted the addition ....