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TMI Blog2018 (1) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... that on the basis of material seized in search action on 'AEZ Group', it was observed that assessee invested a sum of Rs. 39,35,850/- in Nehru Vikas Minar Project of M/s Celebration City Project Private Limited. In the seized documents, breakup of the investment of Rs. 39,35,850/- was recorded as cheque of Rs. 7,50,000/- and cash of Rs. 31,85,850/-. The Assessing Officer further noted that on similar evidences found during the search action at the AEZ Group, one of the investors 'Sh. I.E. Soomar' admitted the cash amount invested amounting to Rs. 6.64 crores and paid taxes on the said amount. In the submission filed, the assessee denied any investment in cash. The Ld. Assessing Officer, rejected the contention of the assessee and added a sum of Rs. 31,85,850/- to the total income of the assessee. 3.1 Aggrieved, the assessee filed appeal before the Ld. CIT-(A) and made detailed submissions challenging the addition. The assessee submitted that not a single incriminating paper or document or any type of evidence or agreement was found during the course of search at the premises of the assessee to prove the existence of any cash unaccounted money payment for the purchase of the offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 from the corporate office of the AEZ group at 301/303, Bakshi house, Nehru Place, New Delhi (ii) Excel file named "down payment booking details.xls retrieved from the hard disk found and seized as Annexure A-27 from the corporate office of AEZ group 6. The Ld. CIT-(A) has mentioned that in both these 'Excel files' name of the assessee as purchaser, covered area, sale price, cheque amount and cash amount received by the seller are recorded. 7. The Ld. CIT-(A) in para-6.1.2 of the impugned order has mentioned that on the basis of the 'Excel sheet', the amount received from the assessee by way of cheque and cash was shown at Rs. 7,90,000/- and Rs. 31,85,850/- respectively aggregating to Rs. 39,35,850/- and the balance of Rs. 40,000 was again shown to have been received by cheque. 8. In view of the above factual information, it is clear that during the course of search action at the premises of the assessee, which attracted proceedings under section 153A of the Act, no incriminating material was found. 9. The Ld. CIT-(A), however, has based his finding on the conclusion that the material found during the course of search at the premises of the third-party constituted an incrimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... common transactions that could have accrued at that time. 6.1.3 For Indirapuram Habitat Centre Project, one person by named Sh. I E Soomar invested Rs. 5,00,00,000/- in cash and Rs. 1,54,00,000/- by way of cheque out of the total cheque amount of Rs. 1,88,70,000/-. It was found that till the date 30.6.2007 Rs. 1,54,00,000/- was paid by cheques in addition to the cash. In the said file, the column "remarks" at point 5 of the table in the data showed "Buy back option upto 30.6.2007 for repurchase of Rs. 6,54,00,000/-". It was found that this buy back amount was exactly similar to the total investment made by Sh. I E Soomar as he appeared and admitted that cash investment of 6.54 crores was made and taxes thereon was paid. 6.1.4 The overall balance of the evidence is a matter how decisively any data would tell in favour of a proposition. The AR of the appellant did not furnish any evidence to support the contention that no payment in cash was made against the property to be purchased. The evidence that was deciphered and linked to few persons cannot be denied as they did admit to have paid cash in addition to the said cheque payment. When a probable cause of action was undertaken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file any supporting evidence pertaining to the above denial. However, the AR of the appellant has relied on the judicial pronouncement of various case laws where addition cannot be made on the basis of the material found at the third party premises. I do not find any merit in the argument of the appellant because the facts are entirely different and are distinguishable from the facts of the cases referred. Here, the evidence found at the third party premises is a probable cause that can be linked to the transactions of the appellant where a part of them were admitted by the appellant. Therefore, this is not a case where the evidence found at the third party is not related to the appellant and that no subsequent evidence was found at her place when the search took place. Attention is drawn to the post dated cheques found at the residential premises of the lakhotia family where the cheques are in agreement with the details found in the data. In the absence of any evidence furnished by the appellant in support of his contentions, I do not find any reason to interfere and disturb the impugned addition made by the Assessing Officer. Accordingly, the addition of Rs. 31,85,850/- made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Ld. counsel of the assessee also relied on the decision of the Hon'ble High Court of Delhi dated 25/07/2017 in the case of Principal CIT, Central-2, New Delhi Vs. Subhash Khattar in ITA 60/2017. In the said case, the Tribunal in ITA No. 902/Del/2015 observed as under: "8. Considering the above submissions, we find that the Learned CIT(Appeals) has upheld the addition in question mainly on the basis of (i) the details written on the hard disc found during the course of search from the premises Aerens Group, wherein payment through cheque and cash have been mentioned against the name of assessee at Sr. No.32; Shri I.E. Soomar appearing at Sr. No. 39 of the said hard disc had admitted the cash investment of Rs. 6.64 crores being made in the said project and had paid the taxes on the same; (iii) the said hard disc cannot be relied upon in part as the assessee has admitted the payment through cheque but denied the cash payment shown therein etc. In our view, a huge addition of Rs. 3,21,00,000 cannot be made in a casual manner without having corroborative evidence in support. It is a prevailing practice in the dealings of immoveable properties that cash amount, if any, out of the agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mises of Aerens Group without any corroborative evidence in support. We thus hold that the assessee/appellant succeeds on both The above issues i.e. on validity of assumption of jurisdiction under sec. 153A and the addition in question. The grounds involving the above issues are accordingly allowed." 15. We find that the Tribunal, both on the validity of addition under section 153A of the Act and merit of the addition in question has decided the issue in favour of the assessee. In the instant case, also the Assessing Officer has relied on the statement of Sh. I.E. Soomar for making addition in the hands of the assessee. 16. On further challenge of the decision of the Tribunal in above case, the Hon'ble Delhi High Court upheld the order of the Tribunal with following observations: "7. A question was posed to the learned counsel for the Revenue whether in the present case anything incriminating has been found when the premises of the Assessee was searched. The answer was in the negative. The entire case against the Assessee was based on what was found during the search of the premises of the AEZ Group. It is thus apparent on the face of it, that the notice to the Assessee under S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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