9911796707
TMI Blog2016 (6) TMI 1160X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case is upheld. Therefore, additional ground of appeal of the appellant is dismissed. Above documents are not seized from the premises of the assessee but at the premises of third party who is neither the director nor the shareholder of the company. However neither the ld. AO as well as The Ld. CIT (A) has led any evidence that though the paper shows the names of the appellant along with two other companies but these papers are found from the third party i.e. Shri B K Dhingra and how is he associated with the appellant. Ld. CIT (A) has stated that Shri B K Dhingra is a close associate of Shri I M Thapar . Merely an assertion that somebody is close to one of the director cannot become the close associate of the appellant company itself. Ld. AO has not led any evidence that Shri Dhingra looks after the affairs of the company in any manner. the evidence of actual transaction of those parties and it is unaccounted income of these companies. It is the allegation of the revenue that these companies are the bogus companies floated by one Shri B K Dhingra and they are used for capital formation activities. This fact merely remains a conjecture and surmises in absence of any evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s 143(3) of the act by the AO, which is confirmed by the Ld. CIT (A). He further submitted that assessee has not taken this objection before the Ld. AO as well as before the Ld. CIT (A) and therefore at this stage this ground of appeal should not be admitted. 5. We have carefully perused the prayer of the assessee for admission of additional ground of appeal. It is apparent that this ground of appeal is purely legal in nature and does not require any further facts to be adduced by both the parties. In view of this, we admit additional ground of the appeal for adjudication. 6. The brief facts of the case are that appellant company is a private limited company engaged in the business of real estate. The facts noted by the Ld. assessing officer that in this case,the investigation wing conducted survey u/s 133A on 20 of October 2008 and pursuant to survey, notices under section 142 (1) and 143 (2) dated 24/09/2010 were issued. In response to these notices, the assessee filed copy of the return already filed by it. The reason for the survey conducted on the assessee was that it has an interconnected business activity with M/S Thapar Home group of cases, which was, searched on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no cheques were ever transacted as per the bank statements as the counterfoils of chequebook seized by the Income tax department. Assessee filed fresh confirmation from 41 parties as additional evidences under rule 46A citing insufficiency of time before the Ld. AO. The Ld. AO submitted the remand report on 25th of May 2012 in response to which the assessee filed rejoinder on 17/12/2012. Based on the above facts and circumstances the Ld. CIT (A) decided the issue against the assessee confirming the addition of ₹ 1,40,78,000/-. Reasons given for confirming the addition by ld. CIT (A) that noting on the pages are not projections but record of real events. According to him counterfoil of the chequebook is a basic and primary record created by the drawer of the cheque immediately upon writing of the cheque since the entry of six cheques in the counterfoil corroborate the six entries recorded under the column 6 in the seized chart. Further provisions of section 292C of the Act, which raises the presumption about the correctness of the contents of the seized documents and according to him as the transaction made by the cheque is corroborated by the primary document comprising the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed agricultural land at village Gharauli Gurgaon, in financial year 2007 08 and after amendment to the master plan of Gurgaon the revised application for grant of license was made and the authorities have granted the license only in financial year 2012 13.Therefore, there is no such project in existence at that time and no one will pay in FY 2008-09 for which project that has not started even in FY 12-13. He further submitted that along with the search under section 132 conducted on Thapar group on 28th of October 2008 survey under section 133A was also carried on in the business premises of the assessee however during the course of survey no incriminating material has been found which can corroborate the seized document allegedly found from Shri B K Dhingra. He further submitted that during the search of the business premises of Shri B K Dhingra an unsigned computer printout was seized with which assessee does not have any connection as it neither belong to it , even otherwise there are no transactions taken place as counterfoils of the cheques unless transacted in bank does not have any value. He further submitted that the document itself says that these are the details of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e brief facts of the case above. Both the issues on legal aspects as well as on merits of the addition are dealt with as under :- 13. On legal issue, admittedly, assessment has been framed by the ld. AO u/s 143(3) of the act and whole addition has been made based on seized document being page 1 of Annexure A-12 impounded from the premises situated at 604, tower IIA, Rajender Palace, New Delhi during search on Thapar homes group of cases. Therefore, apparently,impounded material received by Ld. AO is in case of search on third party and he was of the view that documents belong to the assessee and it has a bearing on the determination of the total income of the appellant. With effect from 1stJune 2003, provisions of section 153A to 153C enacted, which covers the new scheme of search assessments. Accordingly, where the assessing officer is satisfied that any books of account or other documents seized in search pertains to person or any information contained therein relates to person other than the person searched, then the books of accounts etc. or seized documents shall be handed over to the AO having jurisdiction over such other person. On receipt of such information, AO shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meter is mentioned. Then the details of 66 parties are mentioned showing area booked, rate per square feet, total advance payment, then there is bifurcation between above three companies including appellant of the square feet area, next column shows amount of cheque , amount in cash and cheques issued, balance. Subsequent documents shows the cheque book counterfoils of six companies where in the counter foils of cheque books were found showing issue of cheques in the name of appellant and other two entities. Namely in case of party no. 1 listed in the statement is Akshya Aroogya mandir private limited from cheque book counterfoil with kotak Mahindra Bank Limited shows issue of cheque in the name of appellant of ₹ 9,60,000/-. Further in case of party no 18 Micron steels limited , this companies cheque book counter foil with kotak Mahindra bank shows that a cheque of ₹ 3,60,000/- is issued to the one of the three companies. Similarly, in case of three more companies such counterfoils of chequebooks were seized. Based on these evidences the addition is made by the Ld. AO and confirmed by the CIT (A). The seized documents vis a vis the reasons for addition are examined as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and also apparently no payment have been made. On these confirmation ld. AO has neither issued any summons to those parties nor examined their bank statement about the issue of those cheques and whether these cheques have been cleared or not. The assessing officer and CIT (A) have brushed aside those confirmations as meaningless. In fact,on examination of those confirmations, reality of the reason for writing counterfoils of the chequebooks in the name of appellant and two other companies would have been known to revenue . The reason why those cheques were issued but were never came in to the bank accounts of the appellant and whether they are really handed over to the appellant company is also not known to revenue. It is an uncontroverted facts that those cheques remaining non-transacted. Contrary to that appellant has discharged its onus by producing the confirmation of those parties that they have neither booked any premises with the appellant company and therefore have not paid any sum. v. It is the allegation of the revenue that these companies are the bogus companies floated by one Shri B K Dhingra and they are used for capital formation activities. This fact merely rema ..... 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