TaxTMI 
TaxTMI 
2022 (10) TMI 156
X X X X Extracts X X X X
X X X X Extracts X X X X
.... property in Nehru Vikas Minar Projects out of which Rs.20,00,000/- was paid in cash. In the course of re-assessment proceedings the Assessing Officer required the assessee to explain the investment made towards purchase of property with documentary evidences. The assessee submitted that during the year assessee has not purchased any commercial property in Nehru Vikas Minar Projects neither in his own name nor in the name of any family members. It was also submitted that assessee has only one savings bank account with Punjab National Bank, Kaushambi branch and an affidavit was also furnished. However, the Assessing Officer based on the loose papers which were seized in the corporate office of AEZ group wherein the assessee's name was reflected as one of the investors concluded that the assessee purchased commercial property in Nehru Vikas Minar Projects by paying Rs.20,00,000/- in cash as the assessee failed to adduce any evidence to rebut the findings of the Investigating Wing. He treated Rs.20,00,000/- as unexplained investment made by the assessee under section 69 of the Act. 3. On appeal the ld. CIT (Appeals) sustained the addition made by the Assessing Officer. He observed th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... space in any of its projects by the assessee. Therefore, the ld. Counsel submits that even the alleged recipient of cash has denied any such transaction with the assessee of any nature in cash or through banking channels and this was also admitted by the ld. CIT (Appeals) at page 8 of the order. Therefore, it is submitted that the assessee has not purchased any commercial property measuring 800 sq. ft. at Nehru Vikas Minar Projects, Ghaziabad, and paid either in cash or through any other mode. 5. The ld. Counsel further submits that in the present case, assessee has expressly stated that he has not purchased any property from the searched party i.e. AEZ group and the assessee was asked to prove the negative. Any assessment based on the inability of the assessee to prove his negative statement and on general assumptions only is bad and should be annulled more so when there was no corroborative information/ evidence available with the Ld. AO to prove assessee had purchased the impugned property and that too in cash. It is submitted that no agreement or any document with respect to purchase of impugned property by the assessee bearing the signatures of the assessee were recovered du....
X X X X Extracts X X X X
X X X X Extracts X X X X
....assessee. It is also submitted that the Ld. AO has in the remand report, requested the Ld. CIT(A) to consider the confirmations filed by the assessee as he could not find any factual discrepancies in the same. The ld. Counsel submitted that the assessment order has been passed in the most machinal and negligent manner as the Ld. AO has alleged that assessee has purchased the impugned property for total consideration of Rs. 40,00,000/- out of which Rs. 20,00,000/- has been paid in cash. For the alleged cash part of the transaction, Ld. AO has simply relied on the report of the investigation wing but the remaining part no details have been mentioned in the entire assessment order. Table reproduced by the Ld. AO at page 2 of the assessment order would show that Ld. AO has not considered how a total of "0+20,00,000" can give a total of Rs. 40,00,000/- and simply alleged unexplained investments held by the assessee. 9. It is submitted that the case of the assessee is squarely covered by decision of Hon'ble Delhi Bench of ITAT, Subhash Sushila Lakhotia Trust vs. ACIT, ITA No. 751/DEL/2015 vide order dated 30.06.2016 (copy enclosed). In that case also consequent to search on AEZ group it....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nances of the assessee were also not shown any investments. None of these evidences were rebutted by the Revenue. We notice that no enquiry whatsoever has been conducted by the Assessing Officer in spite of the assessee producing confirmations from the concerns of AEZ group wherein it has been stated that they have not received any cash or cheque from the assessee for the alleged investment in their group by the assessee. The Assessing Officer seems to have relied solely on the report of Investigation Wing of the Department without making any further enquiriesin treating Rs.20,00,000/- as un-explained investment in the hands of the assessee. 12. It is noticed that an identical issue came up for hearing in the case of Subhash Sushila Lakhotia Trust Vs. ACIT in ITA. No. 751/Del/2015 dated 01.06.2018 and the co-ordinate bench held as under:- "5. The Ld. AR submitted that the present appeal of the assessee is arising from the order of CIT(A) dated 27/11/2014 and relates to Assessment Year 2006-07. The Ld. AR pointed out certain dates which are as under:- Date Event Remark if any 11.09.2006 Original Return of Income has been filed by the assessee. Processed u/s 143(1) of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on the basis of confession of Shri I.E.Soomar. The appeal of the assessee Subhash Khattar when come up before the ITAT, the Tribunal in ITA No 902 of 2015 held that no addition under section 153A of the Act can be made in absence of any incriminating documents found in search. The Tribunal further gave a finding that merely because some third party has surrendered some amount in his hands that does not mean that such surrender binds all other independent assessees. The Ld. AR submitted that all these aspects have been considered by the Tribunal in its order dated 30.06.2016. The Ld. AR further submitted that order of the Tribunal has now been affirmed by the High Court in ITA no 60 of 2017 order dated 25.07.2017. The Ld. AR submitted that while deciding the case of Subhash Khattar, the Hon'ble High Court decided the issue after framing the question of law. The Ld. AR submitted that the Tribunal in the case of Asha Rani Lakhotiya, which belongs to same group, following the verdict of Delhi High Court has allowed the appeal of the assessee. Therefore, the Ld. AR submitted that the issue is squarely covered by the judgment of Hon'ble Delhi High Court and hence no addition can be made ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y, out of the agreed consideration is paid during the course of execution/registration of the sale deed and admittedly in the present case no sale deed or other mode of transfer has been effected. Merely because name of the assessee is appearing in the said hard disc and amongst other investors are investor Shri I. E. Soomar appearing in the said hard disc has admitted payment of cash amount, cannot be a basis for arriving at a definite conclusion, in absence of corroborative evidence in support, that the assessee had also paid the amount of Rs.3,21,00,000/- in cash. The Hon'ble Jurisdictional High Court of Delhi in the case of CIT Vs. Prem Prakash Nagpal (Supra) wherein Assessing Officer had made certain additions u/s 69 of the Act on the basis of the documents found during search at a place of third party which indicated that assesseee had purchased a plot by paying consideration in cash, it was held by the Hon'ble High Court that the Assessing Officer could not prove by evidence that said docuemtns belonged to the assessee and that any on money transaction had taken place. The documents at the best only showed tentative/projected purchase consideration held the Hon'ble High Cout....