TaxTMI 
TaxTMI 
2018 (4) TMI 1356
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....in these two appeals. 4. Brief facts are, the assessee a company is engaged in the business of real estate development. For the assessment year under dispute, the assessee filed its return of income on 29th November 2006, declaring loss of Rs. 44,492. Assessment in case of the assessee was completed under section 143(3) of the Income Tax Act, 1961 (for short "the Act") vide order dated 5th December 2008, computing the income at nil after disallowing the loss claimed. Subsequently, on the basis of information received from the Director of Revenue Intelligence (DRI), Mumbai, regarding of payment on-money in cash by the assessee for purchasing properties at New Delhi, the Assessing Officer re-opened the assessment under section 147, by issuing notice under section 148 of the Act on 28th March 2013. As mentioned by the Assessing Officer in the reasons recorded while re-opening the assessment, during a search and seizure operation, conducted in the residential premises of Ms. Zaver Cyrus Dadina, NITCO's Dy. Manager (Accounts) two Electronic Storage Devises i.e., a hard disk and a pen drive were found and recovered. A file found in the hard disc contained details of payments made toward....
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....of the Assessing Officer's observations in the remand report, the learned Commissioner (Appeals) ultimately deleted the addition made under section 69B of the Act as per the detailed reasoning contained in Para-5.2.1 to 5.2.9 of the appeal order. Being aggrieved of the aforesaid order of the learned Commissioner (Appeals) both the Revenue as well as the assessee are in appeal before us. While the Revenue has challenged the deletion of addition made by the Assessing Officer under section 69B of the Act, the assessee has called into question the decision of the learned Commissioner (Appeals) in upholding the validity of re-opening of assessment under section 147 of the Act. 6. At the outset, learned Counsels appearing for both the parties have agreed before us that the issue raised in Revenue's appeal relating to the merits of the addition made under section 69B of the Act stands covered in favour of the assessee by virtue of the order passed by the Co-ordinate Bench in case of ITO v/s M/s. Saturn Advisory Services Pvt. Ltd., ITA no.802/Mum./2015, dated 12th September 2017. Thus, the learned Counsels appearing for both the parties have conceded before us that the issue raised in the....
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....not taken note of them during the assessment proceedings. The learned Commissioner (Appeals) observed, even though, in course of proceedings before him the Assessing Officer was directed to examine the submissions made by the assessee and conduct necessary enquiry, however, the Assessing Officer without conducting any enquiry has submitted his remand report on 18th August 2015, by simply stating that the documents forwarded to him have already been considered by the Assessing Officer while completing the assessment under section 143(3) r/w section 147 of the Act. Thus, in view of the aforesaid factual position, the learned Commissioner (Appeals) concluded that in the absence of any evidence brought on record to prove the payment of on-money by the assessee the addition made under section 69B of the Act cannot be sustained. The aforesaid factual finding of the learned Commissioner (Appeals) remains uncontroverted even before us. Moreover, while dealing with identical issue arising in the Revenue's appeal in case of M/s. Saturn Advisory Services Pvt. Ltd. (supra), wherein, addition of on-money under section 69B was made on the basis of the similar report of the DRI containing informa....
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....r to record the statement of Miss Damini Vadhwa, and Miss Reeta Bhatia also could not provide any information leading to the addition. The seized material/print out was not in the handwriting of the assessee and even there is no material to suggest that the seized material was maintained either by the assessee or it's of or employees. Even the statement of Rajaratanam was discarded by the Ld. Commissioner of Income Tax (Appeal) as the floor price, fixed by the authorities, for such property was found much lower than the value. Considering 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 b....