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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 ..... 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 the case and in law, the learned CIT (A) erred in confirming the addition on account of alleged unexplained expenditure of lands u/s 69C of the Act, ignoring the explanation seized material and appellant's reliance of various decisions. It is prayed that the addition on account of alleged unexplained expendie of Rs. 282000/- may be deleted. 4. On the facts and in the circumstances of the case and in law, the learned CIT (A) erred in bringing new evidences of Pathik Construction and Sh. Sunil Gulati on record and discussing the same in the appellate order even though the same has no connection with the facts of the appellant. The learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 Rs. 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. 153C of the Act on the most of group companies against whom the incriminating material was found. According to the information received from the Joint CIT(OSD)-CC-39, Mumbai assessee was found to have entered into cash transactions of Rs. 2,82,000/- Mathe Vengaon village. Besides pages No.1 to 15, 54 to 56,58, 60 to 64, 67 to 69 and 70 were seized during search as per punchanama dated 5.3.2009/6.3.2009 of Shri Dilip Dherai which contained dealings in land in assessee was appearing as investor to the tune of Rs. 2,82,000/-. During the course of assessment proceedings, and after considering the above incriminating materials seized by the search team , the AO came to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05.03.2009 could not be exclusive and conclusive evidence to justify an addition of the magnitude of Rs. 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 subsequent even penalty also. The nature and quantum of the additions should thus be based on clinching evidences wherefrom a layman can draw an inference that such evidences contained an expenditure which is not recorded in the books of account. The land companies have purchased lands and they are duly recorded in the relevant books of account of land companies. When the appellant has not incurred any expenditure in cash for the purchase of land and there is no evidence directly or indirectly found during the course of search, no addition can be made only on guesswork and presumption. Accordingly, it is prayed before your honour that proportionate addition out of Rs. 38.45 crs and Rs. 5.0152 Crs a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Reality Pvt Ltd (supra). 7. We have carefully considered the rival contentions and perused the material placed before us including the orders of authorities below and the case laws relied upon by the ld.AR. We find from the order of Co-ordinate Bench of the Tribunal in the case of M/s Avkash Land Reality Pvt Ltd (supra ) an identical issue has been decided by the Tribunal in favour of the assessee and in the other similarly placed assessees' whose names have been appeared in the title sheet of ITA No.8237/Mum/2011 who made investments in the land who were engaged in purchase, sale of land and development of land and in whose cases the addition was made on the basis of incriminating documents found during the course of search which also forme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 parties, no addition could therefore be made u/s. 69C of the Act to the income of the assessee. Considering the entire facts brought on record, we have no hesitation to hold that even on merits, no addition could be sustained." A perusal of the above reveals that the issue stands covered by the decision of the co-ordinate Bench of the Tribunal and therefore, respectfully following the ratio laid down by the Co-ordinate Bench of the Tribunal we set aside the order of ld CIT(A) and direct the AO to delete the addition made u/s 69C of Rs. 2,82,000/-. The appeal of the assessee is partly allowed. I.T.A. No.5664/Mum/2015 and I.T.A. No.5668/Mum/2015 8. We find from the grounds raised in these appeals are also same to that of ITA No.5664/Mum/2015 except figur ..... 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