TaxTMI 
TaxTMI 
2020 (4) TMI 775
X X X X Extracts X X X X
X X X X Extracts X X X X
....cts in holding that the onus of explaining the seized document 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s for this transaction. An addition was made for the said amount in the hands 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 in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e appellant, it is held that the addition of Rs. 16,42,68,522/- made in the hands of the appellant, on the basis of jottings 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....069 against the return income of Rs. 2,20,19,780. 5. On 19th June, 2009, a search and seizure operation was undertaken in ITA Nos. 1004 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....longing to the Assessee have been seized from a person covered under search u/S 132 of the I.T. Act, 1961. Hence, proceedings u/s. 153C are being initiated for AY 2004- 05 to 2009-10. 8. In the resultant assessment proceedings, 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t which was dismissed by an order dated 16thAugust, 2016. The very same document which has been relied upon by the Revenue in the case of the present Assessee was discussed by the Division Bench ('DB') in the aforementioned order. The order of the ITAT was upheld by this Court. 14. This Court has heard the submissions of Mr. Dileep Shivpuri, learned Senior Standing Counsel for the 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 Ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d in it. Ans. The Chaurasia family is known to me. At the time of execution of sale deed in favour of Mrs. Vinita Chaurasia by M/s. Suncity Projects Ltd. in respect of commercial space purchased in Vasant Square Mall, I was present as a witness and signed on the documents Conveying titles as a witness before sub registrar. It happened somewhere in May 2009. Since I am in real estate business, incidentally after coming back from execution of 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of search &seizure documents/papers page1to 31 of Annexure A-28 seized by Party R-2, Annexures A-56, A-57and A-58 seized by party 04 are found to belong to of M/s Satkar Fincap Ld., (), Ramdutt Enclave, Uttam Nagar, New Delhi. I have examined the above mentioned documents/papers and provision of section 153C is invokable in this case", the ITAT's findings and conclusion cannot be sustained." 24. In the present case, however, it is nobody' case other than the Revenue that the document 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....