TaxTMI 
TaxTMI 
2020 (4) TMI 775
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....ument was not on the assessee as the name of the assessee was clearly mentioned in the seized document and thus onus was on the assessee. 3. That on the facts and in the circumstances of the case, the Ld. CIT (A) erred in holding that no evidence was brought on record by the AO as the above addition was based on the test of human probabilities and normal course of human conduct which is acceptable for making assessment as held by Hon'ble courts. 4. That the order of the CIT(A) is perverse, erroneous and is not tenable on facts and in law." 2. The facts in brief are that the assessee-company was carrying on the business of real estate developers and have constructed commercial project for sale. The ld. Assessing Officer observed that a letter was received along with related seized document from the office of ld. ACIT, Central Circle-21, New Delhi along with satisfaction note dated 01.12.2011 for issuance of notice u/s.153C. Further, on examination of the seized documents found from the premises of Shri Lalit Modi, the Assessing Officer of the assessee was satisfied that the seized Annexure A-1 is related to the assessee-company and after recording the reasons, the Assessing Off....
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.... of the Mrs. Vinita Chaurasia as unexplained investment, which has been deleted by the Tribunal in her case. The relevant observation of the Ld. CIT(A) in this regard reads as under: "11.3 During the assessment proceedings, Mrs. Vinita Chaurasia categorically denied of making any payments to the appellant other than what agreed upon as per the registered agreement and other dues for this transaction. An addition was made for the said amount in the hands of Mrs. Vinita Chaurasia also as unexplained investment for having given such amount to the appellant otherwise than by cheque i.e. cash, which was deleted by Hon'ble ITAT in her case as reproduced by the appellant in its submissions earlier. It was found to be jotting on the loose sheet, without any basis and hence the addition made in the absence of any corroborative material was deleted. It was held that the addition is not sustainable in absence of other supporting evidence or material. Hence without further investigation or enquiry from other related entities, addition made by the AO is not sustainable. Since the addition as unexplained investment in the hands of Mrs .Vinita Chaurasia, the buyer of property has been delet....
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....tings on a loose sheet found from the premises of Mr. Lalit Modi is without any basis for which no corroborative material or evidence has either been found during the course of search or subsequently brought on record and hence deserves to be deleted. I have also considered the order of Hon'ble ITAT in the case of Mrs. Vinita Chaurasia as quoted by the appellant, the purchaser, where the addition has been deleted considering that such payment made by her is not substantiated. Accordingly, the same is deleted and the appellant gets a relief of Rs. 16,42,68,522/-." 4. At the outset, ld. counsel for the assessee, Mr. Ved Jain submitted that not only in the case of Smt. Vineeta Chaurasia the Tribunal has deleted this addition based on some seized documents but also in the appeal filed by the Revenue before the Hon'ble High Court, Their Lordships vide judgments and orders dated 18.05.2017 in detailed manner has dismissed the Revenue's appeal. Further, the SLP filed by the Revenue before the Hon'ble Supreme Court also stands dismissed. 5. Ld. DR though admitted that precisely the same issue has been considered by the Hon'ble High Court on the same seized document. However, he stron....
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....4 of 2015 & 1005 of 2015Page 3of 14terms of Section 132 of the Act on the premises of Mr. Lalit Modi, a real estate broker. During the course of the search at his premises at L-48, Lajpat Nagar-II, New Delhia document described as Annexure A-1 was found. The said document which is computer-generated, reads as under: 5. The aforementioned document dated 18th May, 2009 contained the name of the Assessee showing the area in the Vasant Square Mall as 39561.06sq.ft. with the 'ch value Rs. 16,42,68,832'which incidentally was the disclosed sale consideration for which the Assessee had purchased the aforementioned area in Vasant Square Mall i.e. 39,651.06 sq.ft. However, the document also reflected as 'Total Cost' a sum of Rs. 32,85,37,354 and the additional sum as 'PDC Value' being Rs. 16,42,68,522. 6. A questionnaire was sent to the Assessee in response to which she gave a reply on 7th December, 2011. She enclosed a confirmation from Mr. Lalit Modi clarifying that Annexure A-1 page 5 did not pertain to any transaction in respect of purchase of any space in either Big Bazar, Vasant Square Mall and that it was just a draft proposal presumably by a broker. She also pointed o....
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....s, the AO passed an order on 29th December, 2011 under Section 153C/143(3) of the Act making the following additions: 4.5 In view of the above, I hold that not only the document being page no. 5 of A-1 seized from the premised of Shri Lalit Modi belong to her but its contents too pertain to her in entirety. Accordingly, I hold that payment over and above what is accounted in the books of 16.42 crores totalling to Rs. 16,42,68,522/-is made otherwise than by way of cheque i.e. from her unaccounted sources and is accordingly brought to tax. As per the said document below mentioned payments were also required to be made: (i) Sinking fund Rs. 39,65,106/- (ii)Maintenance Security Rs. 29,73,830/- (iii) Freehold charges Rs. 1,24,90,084/- (iv) Commission Rs. 65,70,747/- The assessee has not brought anything on record to explain the sources of the above payment also. In view of this, I hold that the assessee has made above payments also from her unaccounted sources. This would in turn mean total addition in the hands of the assessee of Rs. 19,02,68,289/-. Since, the assessee has not accounted for the above amounts being added, penalty proceedings u/s. 271(1)(c) for concealment ar....
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....he Department and Mr. Ajay Vohra, learned Senior counsel appearing for the Assessee. 15. It requires to be first noted that the document relied upon by the Revenue (Annexure A-1 page 5) to sustain the additions made to the assessable income of the Respondent has not been shown to 'belong' to the Assessee. In arriving at this conclusion, the ITAT followed the decision of this Court in Pepsico India Holding Ltd. v. ACIT (2015) 370 ITR 295(Del). Mr. Shivpuri on the other hand submitted that there have been subsequent decisions of the DBs of this Court which have explained the aforementioned decision and in particular the phrase 'belongs' to occurring in Section 153C of the Act. He placed particular reliance on the decisions in Principal Commissioner of Income-tax-8 v. Super Malls (P.) Ltd. [2017] 291 CTR 142 (Del), Principal Commissioner of Income Tax, Circle-II v. Satkar Fincap (decision dated 16th November, 2016in ITA No. 82 of 2016)and Principal Commissioner of Income Tax (Central)-2 v. Nau Nidh Overseas Pvt. Ltd. (decision dated 3rdFebruary, 2017in ITA No. 58/2017). 16. At the outset, it requires to be noticed that the search in the present case took place on 19thJun....
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.... the said sale deed, I was approached by a broker at my residence making enquiry about availability of commercial space in Vasant Square Mall at Vasant Kunj, New Delhi. Since I accompanied Mrs. Vinita Chaurasia who has purchased commercial space at Vasant Square Mali, I telephoned her and got the details of cost etc. of her commercial space in Vasant Square Mall and told these facts to the said brokers. After few days, the broker came to my residence and delivered a proposal, which is nothing but the same document shown to me as page No. 5 of Annexure A-1. The said proposal remained with me and before the same could be forwarded to Mrs. Vinita Chaurasia, a search and seizure operation by the Income Tax Department at my residence on 19.06.2009, during which the above mentioned paper containing the proposal was found and seized. Since it could not be delivered to Smt. Vinita Chaurasia, the proposal was not acted upon, hence, no transaction took place on the basis of the said page seized at page No. 5 of Annexure A-1. Had the said proposal materialized, I would have earned brokerage income. Since no such transaction took place, no commission was earned by me." 19. What is evident fr....
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.... found in the premises of Mr. Lalit Modi belongs to the Assessee. Mr. Shivpuri referred to Section 292C of the Act for the purposes of drawing two presumptions (i) the one contained in Section 292C(1)(i) to the effect that the document found in possession of a person should be presumed to belong to such person. As far as this is concerned, clearly, since the document was found in possession of Mr. Modi, the presumption, if at all, is attracted only qua Mr. Lalit Modi and not the Assessee herein. 25. There is, therefore, nothing to contradict the categorical finding of the ITAT that the document which formed the main basis for initiation of the proceedings under Section 153C of the Act does not belong to the Assessee. One of the principal conditions for attracting Section 153C of the Act is, therefore, not fulfilled in the present case. 26. Turning to the document itself, Mr. Shivpuri urged that the further presumption in Section 292C(1)(ii) would stand attracted viz.,that the contents of the document should be presumed to be true. His submission that the said presumptions have not been rebutted by the Assessee and, therefore, whatever was said in the document should be taken to....