TaxTMI 
TaxTMI 
2021 (7) TMI 767
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....assessees as well as the department. Case files perused. 2. It transpires at the outset that all these appeals involve delay in filing of 03 days (ITA No.782/H/20) and 06 days (ITA Nos.784 & 785/H/20); respectively, stated to be attributable to the reason(s) beyond their control as per the respective condonation petition(s)/affidavit(s). No rebuttal has come from the departmental side. The impugned delay is condoned in all the above said appeals therefore. 3. We notice at the outset that all the three instant appeals arise from the departmental search action dt.04-07-2017. The same led to initiation u/s.143(3) r.w.s.153C and 153A proceedings; as the case may be, finally culminating in Section 69B un-explained investment addition(s) in the nature of on-money payments involving varying sums of money, stated to be based on the alleged incriminating material found/seized during the course thereof. 4. Before we proceed further, these assessees as well as the department are ad idem during the course of hearing that this tribunal's co-ordinate bench in ITA No.783/Hyd/2020 (involving yet another group concern M/s.Zainab Investments Private Limited Vs. DCIT pertaining to the ver....
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....uiries at the Delhi and the statement recorded of Mr. Bardia create suspicion as to the transactions of the appellant company with the creditor. The suspicion should lead to investigation to bring out the facts and material on record to disprove the contention of the appellant. No such enquiries were conducted by the AO to bring out facts/material on record. Suspicion, however strong, cannot substitute for evidence. The AO ought to have conducted further enquiries to take it to the logical conclusion. iii) The appellant discharged, the initial 'burden of proof by producing all the documentary evidences. The AO has not contradicted any of the evidences produced by the appellant. Unless some evidence is brought on record and appellant is confronted with such evidence, the burden does not shift back to the appellant. iv) No evidences, were found during the Search which are 'incriminating as to the transactions with various companies. The enquiries conducted were post search enquiries only. Otherwise, the transactions are duly recorded in the hands of recipient and the payer. v) The statement recorded by DDIT(Inv), Hyderabad....
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....arpo Real Estate P Ltd 4 Karpo Builders P Ltd 5 Jasnath Infrastructure P Ltd 6 Tarini Enterprises Ltd 7 Khatushyam Shares and Securities P ltd 8 R. K Investments P Ltd 9 Minimm Shares and Securities P Ltd 10 Gaiety Realtech P Ltd Ans: I am furnishing herewith the relevant letter heads of all the above companies containing the registered addresses. Q.7. Where are the books of accounts of the above companies maintained? Ans: The books of accounts of these companies are maintained at the Corporate office i.e 20-B, Old Gupta Colony, Delhi. Q8. On verification it is found that the building at the above address is being demolished and no office was found functioning there. Please explain. Ans: Yes, the premise is under renovation. So we have shifted the relevant records temporarily to 3/14A, 1st Floor, Double Storey, Vijay nagar colony, Delhi. However, books of accounts are not readily available at this office. Back up of the accounts was taken up and kept with our auditor. I will furnish the books of accounts as and when required. Q9. Who are the directors of the above companies? Ans....
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....l compile and forward the details of the share holders of the above companies by post by 10.10.2017. Q.13. How do you know Sri. Ajaz Farooqi and Smt Laxmi Raman? Ans: We met them through common friend Sri. V. P Anand. Q.14. What is the purpose of the above mentioned investments? Ans: The above mentioned advances/investments were made to collaborate real estate projects with the above mentioned companies/individual. Q.15. Please state whether the above mentioned investments are still receivable. Ans: Yes, the above mentioned investments are still receivable by our companies. Q.16. Have you received any benefit out of the above investments made.? Ans: No, we have not yet received any benefits out of the above investments as this money has been invested for the collaboration/joint ventures of the projects. Q.17. Please furnish the details of the proposed projects. Ans: The projects at various places which are still in process. Q.18. It is seen that the amounts invested by you has been used by Sri. Ajaz Farooqi for making investments in mutual funds, fixed assets and acquisition of immovable properties in ....
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....there cannot be any scope for sustaining the addition made for Rs. 95 lakhs on the presumption that the assessee would have incurred commission expenditure for obtaining such accommodation entries. Therefore, we do not have any hesitation to delete the addition made by the Ld. AO on this issue which is omitted to be adjudicated by the Ld. CIT (A). Accordingly, addition made by the Ld. AO for Rs. 95 lakhs on the presumption that the assessee would have incurred commission expenditure for obtaining accommodation entries is hereby deleted. 10. Ground No.2: Addition made for Rs. 14,99,45,000/- invoking the provisions of section 69B of the Act.: 11. During the course of search and seizure operations in the residential premises of Mr. J.K. Datta, General Manager of M/s. K.V.R. Rail Infra Projects Pvt Ltd., and in the premises of the Accounts Manager employed in the concerns of Shri Ajaz Farooqi certain incriminating materials were found and seized containing details of cash paid by the assessee company M/s. Zainab Investments Private Limited to Ms. Adala Bhanu Rekha and Ms. Adala Indira Priyadarshini towards purchase of residential property admeasuring 2855 sq ....
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.... cash payments towards the purchase of house property by Zainab Investments Pvt Ltd situated at Jubilee Hills Cooperative House Building Society Limited, Jubilee Hills, Hyderabad-0020. Page No. of Annexure Date Name of the person Amount (Rs.) 8 03/11/2014 Smt. Bhanu Rekha 3,00,00,000 7 04/11/2014 Smt. Adala Indira Priyadarshini 3,00,00,000 6 05/11/2014 Smt. Adala Indira Priyadarshini 3,00,00,000 5 06/11/2014 Smt. Bhanu Rekha 3,00,00,000 4 07/11/2014 Smt. Adala Indira Priyadarshini 2,09,25,000 ---------------------------------------------------------------------------*Sri Dutta Reconfirmed the above in his statement recorded on 26/07/2017. 12. Further, on query with the sellers of the property Ms. Adala Bhanu Rekha and Ms. Adala Indira Priyadarshini confirmed the onmoney transaction and admitted the same in the scrutiny assessment proceedings and paid tax. 13. For the aforestated reasons the ld. AO came to the conclusion that the assessee company has paid on-money of Rs. 14,09,35,000/- to the sellers of the property and added to the income of the assessee invoking the provisio....
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.... the assessee. Further, it was submitted that provisions of section 65B(4) of the Evidence Act was not followed hence, the contents retrieved from the pen-drive does not have any evidentiary value. The Ld. AR further submitted that the Directors of the assessee company were not allowed to cross examine the vendors of the property. It was submitted that the Ld. Revenue Authorities had only relied on the documents found in the Pen-drive of the employee of the assessee and the statements recorded from the sellers of the property. Thus, there was no direct evidence, and all the evidence were by way of oral testimony which cannot be used against the assessee. Further, it was argued that the noting's and statements obtained from third parties cannot be treated as corroborative evidence as it is not a direct evidence of the transaction. It was further submitted that no evidence was seized from the premises of the appellant or its Director Shir Ajaz Farooqi who has denied the authenticity of the noting's retrieved from the Pen-drive seized in the premises of the employee of the assessee. The Ld. AR further argued that merely based on the seller's statement that they have accepted ....
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....evidence against the assessee. Therefore, these documents appear to be dumb documents and cannot be made a basis for making addition in the hands of the assessee. Moreover, confessions were obtained from the employee of the assessee which were subsequently retracted by him. It is pertinent to mention that the CBDT vide Instruction F.No.286/2/2003-IT (INV.II), dated 10/3/2003 has condemned the forced confession made during the search and survey operations. Further the Hon'ble High Court of Telangana and Andhra Pradesh in the case Gajjam Chinna Yellappa vs. ITO vide order dated 6/11/2014 reported in [2015] 59 Taxmann.com 69 (Andhra Pradesh and Telangana) has held that where assessment order passed on the basis of mere statement recorded during the course of survey which are retracted and where the Assessing Officer did not produce any other cogent material to support the statements or sale consideration of land, the assessment order is to be set aside. While deciding so the Hon'ble Court had placed reliance in the CBDT Circular dated 10/03/2003 referred herein above. Further, the Hon'ble High Court of Madras in the case CIT vs. S. Khader Khan Son vide order dated 4/....