TaxTMI 
TaxTMI 
2018 (2) TMI 1146
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....without any positive 8s cogent evidence and rather on irrelevant facts. 3. That the Ld. CIT (Appeal) has erred in law and on facts in not appreciating that the Ld. AO has not considered the evidences produced by the appellant which clearly establishes that no cash payment was made by the appellant. 4. That the impugned appellate order is arbitrary, illegal, bad in law and in violation of rudimentary principles of contemporary jurisprudence. 5. That the Appellant craves leave to add/alter any/all grounds of appeal before or at the time of hearing of the Appeal. 2. Briefly stated facts of the case are that the assessee booked space in "Indirapuram Habitat Centre" project which was under development by M/s AEZ Group. A search and seizure action under section 132 of the Income-tax Act, 1961 (in short 'the Act') was carried out at the corporate office of M/s AEZ group on 17/08/2011 and during the search certain hard disk was seized. In certain electronic files (i.e. M.S. Excel Sheets) maintained on hard disc, a list of purchasers from whom receipt of payments for sale of space through cheque as well as cash received including the assessee, was found to be r....
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....elated to the assessee), and those cheques are in agreement with the details found in the electronic data at the premises of M/s AEZ group. According to the Ld. CIT-(A) the evidence found at thirdparty premises is a probable cause that can be linked to the transaction of the assessee, where part of them were admitted by the assessee (cheque amount). In view of the Ld. CIT-(A), when a probable cause of action was undertaken by the Department in the evidence found, the assessee cannot take the leverage of admitting what suits it and keep silent about the rest. In view of the discussion made in the impugned order, the Ld. CIT-(A) upheld the addition. 3. In all the grounds of the appeal, the only issue involved is sustaining the addition of Rs. 25,20,884/- for alleged cash component appearing in the Excel sheets seized from the premises of M/s AEZ group. Thus, all the grounds are heard together. 4. The Ld. counsel of the assessee submitted that no evidence supporting the case of the Revenue i.e. investment in cash in the "Indirapuram Habitat Centre", was found or seized from the premises of the assessee and, thus, there being no incriminating document unearthed during the search,....
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.... before the expiry of time limit to issue under section 143(2) of the Act. In view of him, the assessment cannot be held legally invalid. 7. On the merit of the addition, he relied on the finding of the Ld. CIT-(A). 8. We have heard the rival submission and perused the relevant material on record. In the grounds of the appeal raised, we find that the assessee has challenged the addition primarily on merit. We also note that the Tribunal in the case of Sh. Subhash Khattar (supra) decided the issue of addition on merit also. In the case of Subhash Khattar (supra) also the entries of cheque and cash component were found in the Excel sheet seized at the premises of M/s AEZ group. The name of the present assessee is also appearing in the same Excel sheet. Thus, facts and circumstances in the case of Sh Subhash Khattar (supra) are identical to the instant case before us. The Tribunal in the case of Sh. Subhash Khattar (supra) held as under: "8. Considering the above submissions, we find that the Learned CIT(Appeals) has upheld the addition in question mainly on the basis of (i) the details written on the hard disc found during the course of search from the premises Aerens ....
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....nt under sec. 153 A of the Act in absence of incriminating material found during the course of search at the premises of the assessee and in absence of abatement of assessment on the date of search, cannot be made in the present case as per the above cited decisions including the decision of Hon'ble jurisdictional Delhi High Court in the case of CIT vs. Kabul Chawla (supra). Under the circumstances, we are of the view that the Assessing Officer was not justified in assuming jurisdiction under section 153 A and authorities below were also not justified in making and sustaining the addition in question merely on the basis of a hard disc found during the course of search at the premises of Aerens Group without any corroborative evidence in support. We thus hold that the assessee/appellant succeeds on both the above issues i.e. on validity of assumption of jurisdiction under sec. 153A and the addition in question. The grounds involving the above issues are accordingly allowed." 9. Thus, the Tribunal allowed the appeal of the assessee both on the merit as well as on the legality of the addition. The Tribunal relied on the decision of the Hon'ble Delhi High Court in the case of CI....