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TMI Blog2016 (3) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... illed. 2. The Learned CIT(Appeals) also failed to appreciate the fact that notice issued under sec. 153C of the Act is without any 'satisfaction' and without any 'application of mind' of the authorities concerned etc. and hence is otherwise also illegal as per the alternative grounds." 3. Since the issue raised in the cross objection is legal in nature and goes to the very root of the matter, hence, we prefer to adjudicate upon this issue. The parties were accordingly directed to advance their respective argument in this regard. 4. The Learned AR submitted that similar objections on the validity of notice issued under sec. 153C of the Act and assessment made in furtherance thereto were raised before the Assessing Officer as well as Learned CIT(Appeals) but the assessee could not succeed. He submitted that assessee an individual has sold his total interest (29,875 shares i.e. 13.55% of total shareholding ) with Bahal Sons Properties Pvt. Ltd. to Mr. Dinesh Jain vide agreement dated 19.1.2007 for a consideration of Rs. 1,69,35,839 i.e. @ Rs.566.89 per share. The said company was the owner of Hotel Grace Mount at Mussouri. All the other shareholders had also sold their total shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise, except page Nos. 46-47 of Ann. A-30, is given/shown to assessee nor even replies on the allegations are appreciated/considered. d) Unsigned computer sheets (pages 46-47) dt. 27.11.08 (total interest transferred on 19.01.07) given to the assessee are vague, not belonging to assessee and nobody hinted about the assessee and about any transaction related to the said company/hotel. e) Nether Mr. Ashok Agarwal nor Mr. Sri Gopal Gupta have ever entered into the transaction of shares sales or any other transaction and while Mr.Agarwal is a total stranger but Mr. Gupta is remotely known as he acquired some shares from other share holders under the aforesaid agreement dt. 19.01.07. f) Issue of sale of shares of said company/hotel is already examined and finalized by the order u/s. 143(3) DT. 27.11.09 of ACIT, C-2, Ghaziabad. 4.3 The Assessing Officer passed assessment order under sec.153C/143(3) of the Act making addition of Rs. 4.5 crores as undisclosed capital gain on sale of shares of Bahal Sons Properties Pvt. Ltd., being 1/3rd of the total alleged consideration received at Rs. 13.5 crores mainly on the basis that Shri Gopal Gupta offered the investment of Rs. 25 cores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... page Nos. 6 to 9 of the assessment order wherein relevant extract of the statement of Shri Gopal Gupta have been reproduced in the question and answer form. The Learned AR referred question Nos. 36 and 37 of the statement of Shri Gopal Gupta. In answer to question No. 36, Mr. Gopal Gupta has stated that the hotel at Mussorie was owned by Bahal Sons Properties Pvt. Ltd. and he along with Mr. Shishir Aggarwal, Dinesh Jain/Lata Jain purchased the shares in Bahal Sons Properties Pvt. Ltd. in January 2007. He stated that all the groups i.e. himself, Shishir Aggarwal and Dinesh Jain/Lata Jain purchased 33.33% from the existing shareholders of Bahal Sons Properties Pvt. Ltd. vide sale purchase agreement dated 19.1.2007. The shares were purchased at the rate of Rs. 566.89 per share. He purchased the shares from Mr. Vikram Bahal and his family members whereas Mr. Shishir Aggarwal and Dinesh Jain and Lata Jain purchased the shares from other members. After that by share purchase agreement dated 16.12.2008, Gopal Infrastructure Pvt. Ltd. purchased 66% share holding from Mr. Shishir Aggarwal and Dinesh Jain/Lata Jain in Bahal Sons Properties Pvt. Ltd. at a total consideration of Rs. 8,82,00,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Learned CIT(Appeals) vide ground Nos. 2 to 4 of the first appeal. The assessee had also questioned the validity of addition of Rs. 4,50,00,000 in the hands of the assessee before the Learned CIT(Appeals) vide ground Nos. 1 and 5 to 8. The Learned CIT(Appeals) has discussed the cases of the parties including the decisions cited before him on all the issues raised in the above grounds i.e. on the validity of notice issued under sec. 153C/ 153A of the Act and on the merit of the additions questioned and has allowed the first appeal with the direction to the Assessing Officer to delete the addition in question i.e. 4,50,00,000 made in the hands of the assessee. Thus, by implication, it can be arrived at a conclusion that the Learned CIT(Appeals) has also allowed the appeal in favour of the assessee on the issue of validity of notice issued under sec. 153C/153A of the Act. In other words, if the Learned CIT(Appeals) was not agreeing with the contention of the assessee on the legal issue regarding the validity of notice issued under sec. 153C/153A of the Act and the assessment framed in furtherance thereto, then the related ground Nos. 2, 3, 4 would have been rejected and thus appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome. It was explained that page Nos. 64-73/74-85 were related to assessee's brother and family and other documents (not identified) were relating to expenses on renovation outside accounts. About page Nos. 39 to 63 of Annexure-5 seized from the residence of Shri Ashok Aggarwal being a share purchase agreement dated 16.12.2008, it was observed by the Learned CIT(Appeals) that it did not belong to the assessee as the assessee had exited from the shareholding in Bahal Sons Properties Pvt. Ltd. on 19.1.2007 itself. 8. We find that the Learned CIT(Appeals) has given his finding on the documents seized stated by the A.O. to be belonging to assessee at page Nos. 37 to 43 of the first appellate order that these documents do not belong to the assessee and nor was there any independent corroboration through documentary evidence or through any adverse statement given by Shri Gopal Gupta who in the case had made disclosure of Rs. 25 crores on account of investment in acquiring Hotel Grace Mount in December 2008 relevant to assessment year 2009-10, while the assessee had already exited from his shareholding in January 2007 itself. This finding of the Learned CIT(Appeals) has not been specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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