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TMI Blog2016 (12) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... or the assessment years 2008-09 and 2009-10. Since issue involved in all these appeals pertain to provisions of section 132 and 153C, therefore, these were clubbed together, heard together and are being disposed of by this common order for the sake of convenience. ITA No.5664/Mum/2015 1. On the facts and in the circumstances of the case and in law, the learned CIT (A) erred in rejecting the appellant's contention that initiation of proceedings u/s. 153C of the IT. Act, 1961 ('the Act') are bad-in-law even though no assessment or re-assessment proceedings in relation to this year were pending as on the date of the search u/s.132 of the Act. 2. On the facts and in the circumstances of the case and in law, the learned CIT (A) erred in rejecting the appellant's contention that invoking of provisions of section 153C of the Act was bad-in-Law in view of the fact that there was no money, bullion, jewellery or other valuable articles or things or books of account or documents seized which are belonging or belonged to the appellant and which disclosed that the appellant had incurred unaccounted expenditure. 3. On the facts and in the circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out set, the ld. AR of the assessee submitted before the Bench that grounds of appeal No.1 and 2, are not pressed and therefore, dismissed. 3. Ground No.3 is the only effective ground which is against the confirmation of addition on account of alleged unexplained expenditure under section 69C of the Act and ground no 4, 6 and 6 are supportive to ground no. 3. 4. Brief facts of the case are that the assessee company is a Private Limited Company incorporated and registered under the Companies Act, 1956 and is engaged in the business of purchase, sell, develop, take in exchange, or on lease, hire or otherwise acquire etc land and properties. The assessee filed its return of income on 23.9.2009 declaring a total income of (-) 9,392/-. The assessing officer by following the process u/s 147 r.w.s. 148 of the Act re-opened the assessment and assessed the total income at ₹ 2,72,610/- vide an order dated 25.3.2013. A search and seizure action was carried out on 5.3.2009 in the case of Jai Crop Ltd ,its Group ,its employees and close associates who were involved in the acquisition of land. Consequent to the search and seizure operation the assessments were made u/s 143(3) r.w.s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the above facts in totality and also looking to the submission made by the appellant during the course of assessment proceedings and evidence adduced during the course of assessment proceedings,, it is submitted that no additions u/s 69C as unexplained cash expenditure are required to be made. There are no concrete and clinching corroborative evidences found during the course of search nor the A. a. has brought any evidence on record to establish beyond doubt that the amounts mentioned in column NO.6 7 or seized papers of 22 23 and the figures mentioned on other seized materials contained the details of alleged unexplained expenditure. The only statement of Shri Dilip Dherai recorded on 05.03.2009 could not be exclusive and conclusive evidence to justify an addition of the magnitude of ₹ 38. 45 crs in the land companies, particularly when the contents of the statement have been retracted by Shri Dilip Dherai and supported by Shri Pradeep Kotian, Steno who was typing the statement of Shri Dilip Dherai at the material time. Your Honour may appreciate that the additions of such magnitude cast a liability on the appellant not only to pay taxes but also to pay interest and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her corroborative evidence to justify the addition is brought on record . In view of the above, and facts of the case your honour is required to direct the assessing officer to delete the addition of ₹ 2, 82, 000/-. 5. At the time of hearing, the ld.AR submitted before us that the issue raised in this appeal is identical to that of the issue decided by the Mumbai Bench of the Tribunal in the case of M/s Avkash Land Reality Pvt Ltd V/s DCIT in ITA No.8237/Mum/2011 (AY-2008-09) and other similarly placed assessees vide order dated 22.3.2013, wherein it has been held that addition on the basis of incriminating documents/material vide pages pages No.1 to 15, 54 to 56,58, 60 to 64, 67 to 69 and 70 was deleted and therefore the ld.AR prayed that the appeal of the assessee be allowed in view of the decision of the Co-ordinate Bench of the Tribunal in the case of M/s Avkash Land Reality Pvt Ltd and others (supra) as the issue raised in both the appeals is identical. 6. The ld. DR fairly admitted that the issue raised in the case at hand and that of relied upon by the assessee are identical and stands covered by the Tribunal decision in the case of M/s Avkash Land Reali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possibility that the persons who were doing land purchase might have inflated the sale price in these loose sheets just to extract monies from their higher authorities in the guise of On-Money to be paid to the vendors. May be because of his possibility no documents were found to show that the money actually changed hands. 25. A perusal of the balance sheet of the assessee show that the authorized, issued and subscribed paid up capital is at Rs. One lakh and the assessee had not done any business during the year under consideration. With such a small corpus and no business activity, nor any has been brought on record by the Revenue, it is not acceptable that the company may have incurred such huge expenditure outside its books of account. Further in his entire assessment order, the AO himself has pointed out time and again different persons, who are alleged, to have made cash payments. Even on that count, the additions cannot be sustained in the hands of the assessee. In our considerate view, there being no evidence to support the Revenue s case that a huge figure, whatever be its quantum , over and above the figure booked in the records and accounts changed hands between the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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