TaxTMI 
TaxTMI 
TaxTMI 
2021 (10) TMI 21
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....Nos.4789/Del/2018 & 5112/Del/2018 are with respect to penalty on the quantum additions. He submitted that all the appeals can be considered together. Learned DR did not controvert the submissions made by AR. We therefore for the sake of convenience proceed to dispose of all the five appeals by a consolidated order but for the sake of reference refer to the facts for A.Y. 2006-07. 3. The relevant facts as culled from the material on records are as under : 4. Assessee is a company belonging to BPTP Group which is stated to be engaged in the business of real estate. A search and seizure action was carried out on BPTP Ltd. and some of its Group Companies on 15.11.2007. On the basis of certain documents seized during the course of search and seizure action and on the basis of post-search enquires made, it was noted that the group companies of BPTP Group was following a business model as a part of which only part payments of the sale consideration in respect of land purchased were paid at the time of execution of the sale-deed and the payments of balance sale consideration was invariably made through post dated cheques (PDCs) and for the intervening period i.e. period between the date ....
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....uote, 'that seized documents definitely proves that interest is paid on PDC' despite- i. that the seized record on the basis of which above finding was given, even according to his own finding by the CIT(A), did not belong to the appellant and, ii. that no enquiries were made from any of the alleged recipients of the interest and none was confronted with relevant document(s). 3.1 That the finding of the CIT(A) is based on mere surmises and conjectures without proof and corroboration by independent evidence. 3.2 That without prejudice the CIT(A) erred in upholding the addition of interest for the period for which PDC's were extended. 3.3 That without prejudice the CIT(A) erred in not quantifying the addition and instead giving ambiguous directions to compute the interest after six months from the date of sale. 4. That on the facts and circumstances of the case and in law the CIT(A) erred in not accepting the appellant's contention that Additional Payments having not been claimed as deduction by appellant, no disallowance could have been made in the hands of the appellant. 4.1 That without prejudice the CIT(A) erred in upholding the disallowance of....
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....submitted that the utilization of the documents which belong to the assessee and which were seized in the course of search u/s 132 of Act on BPTP Ltd. and its Group companies was not permissible in the assessment made u/s 143(3) of the Act and in that situation, the assessment should have been framed u/s 153C of the Act. He submitted that the lower authorities have used the seized documents and various other documents which belongs to various other companies for reaching to adverse conclusion against the assessee and for making additions. He submitted that the AO without following due procedure of law of recording satisfaction before invoking provision of section 153C of the Act has used seized material which has vitiated the assessment proceedings. He therefore submitted that the assessment order passed u/s 143(3) of the Act after using seized documents needs to be quashed. He further pointed that the same CIT(A) in the case of other group companies had annulled the assessments in similar circumstances. The reason for annulling the assessment was that the assessments in those cases was made by utilizing the seized documents seized u/s 132 of the Act and therefore the assessment sh....
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....uring the course of search and the proper course of action for framing the assessment by the AO was to proceed on the basis of the provisions of Section 153C of the Act as the incriminating material that has been relied upon by the AO for making additions belongs to the assessee. We find that identical issue arose in the Group Co. of the assessee namely Glitz Builders & Promoters Pvt. Ltd. (supra) before the Co-ordinate Bench of Tribunal. The Co-ordinate Bench of Tribunal in ITA No.1751/Del/2013 order dated 27.01.2021 quashed the assessment framed u/s 143(3) by holding that the additions made on the basis of the document which belongs to the assessee could not be made in the assessment framed u/s 143(3) of the Act but the AO should have invoked the provision of Section 153C of the Act which is mandatory. The relevant findings of the Tribunal read as under: "13. We have carefully considered the rival contentions and orders of the learned that lower authorities. Admittedly, assessment in challenge before us has been passed under the provisions of Section 143 (3) of the income tax act. According to provisions of Section 153C of the act, it is provided that where the assessing office....