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TMI Blog2018 (6) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... rred in fact and in law confirming the penalty of ₹ 48,18,083/-, which is not only bad in law but also against the facts and circumstances of the case. 2. Briefly stated facts of the case are that the assessee company was engaged in the business of real estate. The return was filed by the assessee at loss of ₹ 87,680/-. The case was selected for scrutiny. The assessment was completed on 01.02.2011 u/s 143(3) of the Income-tax Act, 1961 (for short the Act ) at an income of ₹ 1,68,08,860/-. The Assessing Officer made addition of ₹ 1,67,75,000/- on account of unexplained receipts on booking of space/area and ₹ 1,00,000/- on account of unexplained receipts from Sh. Avinash Kumar Setia. Thereafter, the CIT(A) partly allowed the appeal by allowing relief of ₹ 27,00,000/- and confirmed the rest of the addition of ₹ 1,40,75,000/-. Consequently, the Assessing Officer levied penalty of ₹ 48,18,083/- vide order dated 29.03.2014 holding that the assessee has furnished inaccurate particulars of its income with respect to the said disallowance of ₹ 1,40,75,000/-. The Ld. CIT(A) vide order dated 5th January, 2015, also upheld the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized documents shall be handed over to the AO having jurisdiction over such other person. On receipt of such information, AO shall proceed against such other person and issue notice and assessee or reassess the income of the other person in accordance with the provisions of section 153 A. For this further condition is that AO satisfies that the document stated etc have a bearing on the determination of the total income of such other person for the relevant assessment year. Then provisions of section 153A rws 153C of the Income Tax Act govern assessment. In context of these provisions in the present fact, it is apparent that that impugned documents were found during the course of search on third party, which has been received by the Id. AO. Now Id. AO is duty bound to record his satisfaction about seized documents having bearing on the income of the assessee. After that, he has to proceed to assess the income of the assessee according to section 153A of the Income tax Act. The Assessing officer is empowered to assess six assessment years immediately preceding the assessment year relevant to the previous years in which search takes place. In this case, Search was conducted on 20-10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 under:- i. 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 1 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. ii. On 20.8.2008 search on Thapar Homes Group as well as survey on the assessee were carried out. Admittedly, during the course of search the charts as well as the counterfoils ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at these companies are the bogus companies floated by one Shin B K Dhingra and they are used for capital formation activities. This fact merely remains a conjecture and surmises in absence of any evidences led by revenue against that person i.e. Shri B K Dhingra and his connection with the appellant company. Merely making an assertion that Shri B K Dhingra is entry operator or the companies arc formed for capital formation remains unsubstantiated allegation unless there are any evidences such as assessment orders etc of entry operator or the assessment orders of those companies operated by him. vi. Further assuming that those companies are the bogus companies, and then 011 looking at the chart we found that there are columns of cash . If these amounts are the bogus amount introduced by the appellant company then we failed to understand that how the cash is also be received from those companies, whereas in general only commission is required to he paid to the entry provider and no cash is receivable from them. vii. Further, it remains uncontroverted that there was no project in the name of the appellant in impugned assessment year as there was no permission also.The fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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