9911796707
TMI Blog2019 (7) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the coordinate bench, we direct the learned AO to delete the above addition of ₹ 43.76 crore in the hands of the assessee based on the seized paper found from Mr. Moti S Masand.- Accordingly, ground numbers 1 3 of the appeal of the learned AO are dismissed. Assessment u/s 153C - no documents and material seized during the various searches could be said to be belonging to the assessee - HELD THAT:- The learned DR could not show us from the documents seized from Shri Moti Masand that there is any reference of the assessee in those documents. Therefore, it is apparent that they do not belong to the assessee. As such we have confirmed the order of the learned CIT A wherein the addition of ₹ 43.76 crores have been deleted following the order of the coordinate bench in case of Vipul Ltd, Even Otherwise those documents does not belong to the assessee. Thus, no addition can be made in the hands of the assessee based on these documents. The assumption of jurisdiction by the ld AO u/s 153C is also devoid of merit. Recording of satisfaction note by the AO in the file of the person searched as well as in the file of the person covered u/s 153C - HELD THAT:- O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... infirmity in the order of the learned CIT A and confirm his order deleting the addition because of interest paid to the banks. Addition based on substantial basis - assessee has already disclosed INR 31.50 crores based on seized material - addition that has been made by the learned assessing officer of INR 11.21 crores is less than INR 3 1.50 crores - HELD THAT:- The document seized from Mr. Saraf placed at page number 41 42 of the paper book does not have any reference of the appellant company, the name of the assessee company was not at all mentioned on those documents. Therefore, the learned CIT A has also held that these documents do not belong to the assessee company. Further, with respect to RTGS mentioned, no correlation or corroboration was made to show that it belongs to the assessee company. The learned departmental representative could not show us that how the seized documents belongs to the assessee. On reading the assessment order itself, the learned assessing officer has also not stated that how these documents belong to the assessee. The learned departmental representative also could not controvert the infirmity in the order of the learned CIT A. In v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue 4665/Del/2011 u/s 153A rws 14393) of the Act dated 30/12/2010 CIT (A)-III dated 5/8/2011 in Appeal No 681/10-11 2009-10 Revenue 5863/del/2011 Passed u/s 153A read with section 143 (3) of the income tax act dated 30/12/2010 Passed by the Commissioner of income tax (A) III dated 14/10/2011 in appeal number 684/10 11 2. First , we address the appeals of assessment year 2005 06 wherein both the parties have filed the cross appeals against the order of The Commissioner Of Income Tax (Appeals) III, New Delhi [ The ld CIT (A)] dated 25/3/2010. 3. The assessee has raised the following grounds of appeal in ITA No. 2494/Del/2010 for the Assessment Year 2005-06:- 1. On the facts and in the circumstances of the case, the Ld CIT (A) was not correct in holding date assessment proceedings are validly initiated and further holding that assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Year 2005-06:- 1. Whether on the facts and in the circumstances of the case, the CIT (A) has erred in law and on facts in deleting the addition of ₹ 43.61 Crores out of ₹ 43.76 Crores made by the AO on account of receipt of cash payments? 2. Whether on the facts and in the circumstances of the case, the CIT (A) has erred in law and on facts by not appreciating the fact that the addition made in the case of M/s Vipul Ltd. stands confirmed by the CIT (A) himself on the same issue as well as on the basis of same evidences'. 3. Whether on the facts and in the circumstances of the case, the CIT (A) has erred in law and on facts in ignoring the fact that the assessee company is a co partner of M/s Vipul Ltd in various projects and was in receipt of equal amount of cash component as received by M/s Vipul Ltd.? 4. The order of the CIT(A) is perverse and not tenable in law and on facts. 5. The brief fact shows that assessee is a company engaged in the business of construction of residential flats in Gurgaon. Search and seizure action u/s 132 of The Income Tax Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f cash receipts. As the assessee was jointly developing the projects having equal share in those projects, assessee company share in cash receipt too was stated to be as per LD AO at INR 40.56 crores. Therefore, the learned AO gave a copy of the statement along with the seized documents to the assessee to rebut the above findings. The opportunity of cross-examination was also given. During the course of hearing, assessee stated that those documents have neither been prepared by the assessee not seized from the possession of the assessee and they are not in the handwriting of any employees of the assessee company. He further stated that the statement of Mr. Masand has no reference about the assessee company and in the seized documents; the name of the assessee is not appearing. It was further stated that Mr. Masand has accepted that he has never collected any and has not indicated any definite source of the documents on the figure mentioned therein. Assessee also stated that that Mr. Masand has never handled financial part of M/s Vipul Ltd and was only associated with the execution of the projects as an engineer. Assessee stated that the documents seized from that person are dumb do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any of the directors and is not backed by any confessional statements. The learned assessing officer rejected the contention of the assessee stating that it has no validity as a normal practice the proposed sale deeds are made with the representative and in property deals the Kaccha sale agreements are normally prepared which is also proof of the property having exchanged the hands. Therefore, he made the addition of INR 1500000/ being half of the share of INR 3,000,000 as undisclosed income of the assessee. However he did not make any separate addition with respect to the above sum because of the addition made by the assessing officer of undisclosed cash receipt of INR 40.58 crore has been made, which subsumes it. Accordingly, assessment order u/s 143 (3) read with section 153C of the income tax act was passed on 30/12/2008 determining the total income of the assessee at ₹ 447401350/ against the returned income of INR 9 801350/ wherein an addition of ₹ 43.76 crores have been made as undisclosed income of the assessee. 7. The assessee aggrieved with the order of the learned assessing officer preferred an appeal before the learned CIT A- III, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the hands of M/s Vipul Ltd on the same set of seized documents found from the residence of Mr. Moti S Masand , which has been deleted by the coordinate bench vide order dated 24/5/2013 in ITA number 2403 and 5999/del/2010 dated 24/5/2013 as per para number 17 39 which is as under: 17. Now, we take ground Nos. 4 to 13. In these grounds of appeal, assessee is impugning addition of ₹ 48.76 crores. The brief facts of the case that search and seizure operation was carried out at the business premises of the assessee on 1st of June 2006 under sec. 132 of the Income-tax Act, 1961 along with the residential premises of its directors. It emerges out from the assessment order that Vipul Group is controlled by Shri Puneet Beriwala and Orchid Group is controlled by Shri Rajiv Gupta. They have constructed severai projects in joint venture. With effect from 1st of October 2005, both these groups have separated and transferred all the assets and liabilities available as on 3 of September 2005. According to the Assessing Officer, as a result, the various projects were taken over by Orchid Group and the details have been noticed on page 4 of the assessment und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment year and rest in other assessment years, where corresponding sales are shown. In the assessment year 2006-07 an addition of ₹ 11 crores has been made. 19. On appeal, assessee has made detailed submissions. Learned first Appellate Authority has reproduced the assessment order from page Nos. 2 to 14 of the impugned order. Thereafter, Learned First Appellate Authority has reproduced the grounds of appeal taken by the assessee and its written faster submissions. Learned GIT(Appeals) thereafter recorded following findings which include the scanned copy of page No. 52 of Annexure A1 found at the residence of Shri Moti S. Masand. This page has been reproduced on page 60 of the impugned order. The finding of the Learned CIT(Appeals) read as under: 4.6 I have carefully considered the facts of the case, submissions of the appellant, remand report of the AO dated 06,112009 and the rejoinder filed by the appellant on the last day of the proceedings. It is observed from-the factual matrix of the ease that search m/s 132 of the Act was conducted on 01.0612006 at the business premises of the company as well as residential premises of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s written of 236 at the rate of 0.5% 1.18 crores have been worked out. Below this figure less receipts 2638500 is written and balance has been drawn at 9116500 as on 25.5.2005. Below this transferred to Sona Road, Commercial 32.15 lacs is written and balance has been drawn at 5946500. Please after receipts 1.9.05-5 lacs is written and balance has drawn to 5446500. Below this transferred to commercial 1.2.06- 50 lacs and balance has drawn to nil. Please explain all these things? Ans.. These are the figures calculated for incentive for the period 1.7.01 to 31.3.06, calculated on page 43 to 55 w.r.t incentive I would like to declare additional income of ₹ 2 crore to remain in peace and avoid litigation. The cash found at my residence is the part of my income. This was further confirmed by Sh. Moti s. Masand in his statement recorded u/s 131 of the act by the A.O. on 27.08.20Q8. The relevant questions and answers are reproduced below: Q. - Page No. 52 of Annexure A-l ccntain detail of total receipts made in collaboration with M/s Orchid and other land owners. As the products were marketed by M/s. Vipul has the share of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch, the copy of the statement recorded u/s 131 of the Act during the assessment proceedings on 27.08.-2008 and gave the appellant an opportunity to cross examine Sh. Masand, if so desired. The appellant had denied the receipt of Cash and submitted that the figures in the document are nothing but the imagination and assumptions of Sh. Masand. The Counsel of the appellant in the rejoinder has referred to the documents seized during the search as dumb documents and relied on number of case laws. The case laws relied on by him are distinguishable on facts. It is further submitted that the amount of 148.76 crore has no basis and is without any relation to any of the seized material on record. There is no such amount existing in. document no. 52 in annexure A-l which has been referred to by the A.O. the figures have been taken by the AO arbitrarily without appreciating the submissions made by the appellant. The analysis of the document number 52 in annexure A-l reveals the following: 1. It is written by the Technical Director in his own handwriting and Sh. Masand was holding a very important position in the company. He was authorized to sign ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... front being a technical man, He was also looking after the financial affairs. This is borne out from the fact that he was assigned the power to sign cheques. The documents seized during the search show the financial details on different dates. The appellant had failed to rebut the cogent evidence gathered during the' search. The details of the projects executed by the appellant are clearly identifiable with the details mentioned in the document. In view of the evidence gathered in the search and judicial precedents as discussed; it is held that the AO has rightly .made the addition of ₹ 48.76 crore to the income of the appellant. 20. While impugning the order of Learned CIT(Appeals), learned counsel for the assessee submitted that the addition of ₹ 48.76 chores has been made by the Assessing Officer, primarily on the basis of loose papers found from the residence of Shri Moti S. Masand, a director in the assessee s company, coupled with the statement given by him during the course of search as well as during the course of his assessment proceedings. The learned counsel for the assessee submitted that this man came from Unitech and went back to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the residence of Sk Moti S. Masand at 12/8, Sarvpriya Vih r, New Delhi (Party B-3). The documents are numbered as pages 49, 52 and backside and 55 of Annexure A-I, the copies of which are forming part of the seized material. These papers are stated to contain some figures alleged as receipts in cash as well as cheque. against various projects. It has been mentioned in the questionnaire that Shri Moti Mdsaad was holding a very important position in the organisation and he has worked out the, so called incentive to be received/ receivable by him from the* company and the assessee has been asked to show cause why the same should not be treated as undisclosed IT come in the hands of the assessee. In this connection, it is submitted that Sh. Moti S; Masand was a director of the company at the time of the search and he left the company. Presently he does not have any common interest with that of the company.- His statement was recorded during die course . of the search as well as during the recent assessment proceedings u/s 153A initiated against him. In the return of income, he has included a sum of ₹ 2 Crore in the round figure as, additional income from ince ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een taken from Column-3 of Page 50. In Column-4, Mr. Masand Eas made some .assumptive percentage shares against these turnovers attributed to Vipul and calculated his share in Column-6. On perusal of the audited balance sheet -from 2002-2003 up to 31/03/05, the revenue recognized by Vipul Ltd was as follows:- Financial year Turnover in crores 2002-03 22.809 2003-04 39.669 2004-05 96.996 Total 159.484 The balance unadjusted advance received from customers against all the projects of Vipul were outstanding to the amount of 111.837 crore, which makes the total collections as per the audited books of accounts of the assessee as on 31/03/05 at ₹ 271.32 crore, thereby showing that the figure assumed by Mr. Moti Masand in his assumptive sheet is falling short by approximately 29 crore, if all these a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce issued on 10.10.2008 and our observations are as under: On the perusal of the above details, it is evident that whatever alleged incentive Mr. Masand has detailed for himself, it was received by Mm as on 01/02/06, which means that his return of income for F. Y. 2005- 06 relevant for the Assessment Year 2006- 07 should have depicted the total incentive received from the assessee at ₹ 1.18 crore, whereas, Mr. Masand has declared an incentive of only 26 lac in His return of income for the said Assessment Year. Further, on the perusal of the statement given by Mr. Masand on 27/08/2008, Question No.8 of the same is being reproduced as under:- Question:- On the basis of toted receipts reflected in this document you have calculated incentive received/ receivable of ₹ 1.18 crores. Please give details of amount received and mode of payment. Answer:- Entire amount of ₹ 1.18 crores was received, part of which was received by cheque as apparent from page No. 55, These cheques were received in the shape of salary from M/s. Entrepreneurs (Calcutta) Private Limited. This company was a sister conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced here under:- Ouestion:-Please state your sources of income? Answer:- As a director of Vipul Ltd., draw salary 18 or 19 lacs (Eighteen or nineteen, lacs) perannum. I also draw salary of ₹ 12 lacs (Twelve lacs) per annum from Entrepreneurs Calcutta. I also enjoy rental income from my another house No.- M-42, South City-!, approximately thirty two thousand monthly. In addition to it, I also earn interest income. Mr. Masan has categorically stated that lie was an employee of M/s. Entrepreneurs (Calcutta) Private Ltd., drawing salary from there which he now denies. In addition to the salary, 'Mr. Masand was given an amount of ₹ 10,00,000 as an advance which is recoverable from him till date as per the company s books of account and the recovery proceedings . for ₹ 10,00,000 have been initiated already by the company to recover its advanced amount Argumentatively,' in case the amounts advanced were incentives as allocated by Mr. Masand, due tax would have been deducted from the amount paid as is applicable and the net amount should have been paid/ Mr. Masand, himself, was a working director there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable. The second adjustment of ₹ 50 lac against the Dell Commercial flat as per Page 52 on 01/02/2006 also is. suspect. In his answer to the Question on Page 8 of his statement on 27/08/08, he his specified the total value of Dell commercial flat at Rs.r54 Lac, out of which, he has stated that ₹ 25 lac hks been paid. As per the company records, .Mr. Masand has made a payment of ₹ 25 lac to the company against this flat. Mr. Masand has alredy ₹ 25 lac by cheque how ₹ 50 lac could be adjusted additionally out of incentives. Only an amount of ₹ 29 lac to the maximum could have been adjusted against the alleged incentive. However, an amount of ₹ 50 lac has been adjusted on 01/02/2006, whereby, Mr. Masand in his own admission has paid a total amount of 75 lac for a property costing 54 lac which is hot .a plausible explanation, thereby forcing us to conclude that either Mr. Msand is lying under oath or the page 52 is an assumptive sheet prepared by mr. Msaand for his own purpose. In his first statement on Page 11, we reproduce the questions and answers given by Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said property. Further, as pet the records of the assessee, Mr. Masand had surrendered this flat to the company on 1st February, 2006 and a refund cheque for this amount was paid by the. company by cheque, was refunded back to him. As per prudent norms, in case he had surrendered the said commercial flat, the alleged cash incentives adjusted against this property would have also been refunded back to him immediately, thereby* his cash receipts from incentives going up by that amount in Financial Year 2005-06. But, Mr. Masand has declared only ₹ 26 lac as the incentive received by him daring this financial year which is contradictory and does not hold good on the basis of the evidence available. The second adjustment of ₹ 50 lac against the Dell Commercial flat as per Page 52 on 01/02/2006 also is suspect. In his answer to the Question on Page 8 of his statement on 27/08/08, he has specified the total value of Dell commercial flat at ₹ 54 Lac, out of which, he has stated that ₹ 25 lac has been paid. As per the company records, Mr/ Masand has made a. payment of ₹ 25 lac to the company against this flat. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tails of amount paid which are duly reflected in regular return income. The details are as under ( i) Dell Commercial tentative: total cost is 254 lacs, oat of which, 25 lacs has been paid. ( ii) Commercial Sona tentative cost is s. 53 lacs, out of which 25 lacs have been paid. Against the second property, the tentative cost against Commercial flat on Sona Road is ₹ 53 lac, Out of which, ₹ 25 Lac has been paid. In case the alleged adjustment against incentive on Page 52 is considered correct, argumentatively, then, an amount of ₹ 32,15,000/- should have been stated to his credit as 'paid in addition to ₹ 3,00,000/- paid by him by cheque. But, Mr. Moti S. Masand claims to have paid only ₹ 25 lac against the said property. Further, as pet the records of the assessee, Mr. Masand had surrendered this flat to the company on 1st February, 2006 and a refund cheque for this amount was paid by the. company by cheque, was refunded back to him. As per prudent norms, in case he had surrendered the said commercial flat, the alleged cash incentives adjusted against this property would have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 52, the total cash received till April 2006 from Plaza project was 3 crore . Identically, the alleged cash receipt from Agora project as per Page 55. was ₹ 2 crore till April 2006, but, as per Column 12 of Page 52 it was ₹ 3 crore till The alleged cash received against Sona Road Project till April, 2006 was ₹ 3 crores as per Page; 55, whereas, Nil as per Column 12 and 13 of Page 52 till 31/03/2005. The perusal of all these documents raid the above facts very clearly point out that all these figures floating around in these documents are -nothing, bid the imagination and assumption of Mr. Masand, since/not having to do anything with the financial affairs of the company and only' to do with the engineering and technical aspects of the company. Mr. Masand dreamed of becoming a consultant and earning incentives on the total receipts of the company and to calculate those assumptive incentive receipts, he was assuming certain cash receipts which might have been received by their company, purely assuming out of his little knowledge of financial facts. Additionally; ₹ 10 crore has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of search or survey proceedings except the cash accounted for in the books of accounts and surrendered during the course of proceedings, on the complete basis of all the seized records during the search survey. The assessee's stand is vindicated by the fact further established in the absence of any corroboration, whatsoever. In the light of our detailed submissions we unequivocally deny the contents of these alleged papers and the conjecture of Mr. Masand as a figment of this imagination, which lacks any corroborative value due to inherent contradictions between these alleged papers, his dichotoxnous statements under oath and the incomes declared u/s.153A; In view of the above it would not be justified to take any cognizance of the scribbling and conjectured figures assumed by Mr. Masand and such cursory details without any corroboration shall be disregarded for submitted in the next two days approximately. Thanking yon, For Arora. Bansal ' 21. The learned counsel for the assessee- further took through the statement of Shri Moti S. Masand and pointed out that he himself admitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n opportunity to rebut or cross examine the witness was given, he relied upon the judgement of Hon ble Punjab Haryana High Court in the case of Chranji Lal Steel Rolling Mil vs. CIT reported in 84 ITU-222. 22. In the next fold of his submissions, learned counsel for the assessee contended that complete details have been submitted before the learned Assessing Officer. He did not make any inquiry from the ultimate buyers, therefore, no addition on account of unexplained money received in cash for sale of property can be made. He relied upon the judgment of Hon ble Allahabad High Court in the case of Nathu Ram Prem Chand vs. CIT reported In 49 ITR 561. He also submitted that the details purchase along with addresses are placed on page Nos. 85 to 280 of paper book No.2. According to the learned counsel for the assessee, once preliminary burden was discharged by the assessee, it was for the Assessing Officer to prove that the assessee has received on money against sale of the flat. In brief, the proposition raised by the learned counsel for the assessee is that when no inquiry was conducted with the person to whom premises had been sold by the assessee company, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out an addition of ₹ 15 lacs. Though, this amount was not added separately on the ground that addition of ₹ 48.76 crores would take care of this unexplained expenditure. 24. Learned DR on the other hand submitted that first proposition raised by the learned counsel for the assessee is that Shri Moti S.. Masand is a disgruntled employee who came from Unitecli and went back to Unitech. He drew our attention towards annual report for assessment year 2002-03 and pointed out that at page.Mo- 10 of the paper book and page No. 5 of the annual report, it has been observed that Shri Moti. S. Masand, a highly respected .technocrat He has experience of 30 years various disciplined of civil engineering. He was. taken as a whole-time -director. He was authorised to sign blank cheque, audit report etc, The assessee has filed a civil suit against Shri Masand for recovery of ₹ 25 lacs. In that civil suit also assessee has stated that he was a knowledgeable man, having 30 years of experience. This civil suit has been filed in the year 2009 i.e. after Shri Masand has left the job with the assessee. Thus, there is no basis with the learned counsel for the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etting of ail the material available on the record as 'a whole including the statement of Shri Punit Beriwal. The importance not to be attached to a single page in isolation. If that approach is adopted then it would reveal that assessee was indulged in accepting on money which was not recorded in the books. 25. During the course of hearing, we put a query to the Learned DR thatfrom these documents, it was stated that payment was made to Shri Moti S. Masand even in the month of November 2007. Why an assessee would pay alleged incentive to a person who has left the job one year back. Learned DR was unable to give any reply to this query. It was also put to the Learned DR that a sum of ₹ 25 lacs was alleged tq have paid as incentive by the assesses through cheque. Why an assessee who is in business would not record such payment, because all of payments which were made during the course of business and through cheque assessee would claim as a business expenditure. Learned DR was unable to reply this question also. 26. The learned counsel for the assessee while rebutting the arguments of the Learned DR submitted that statement was given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inferences are drawn nor it is used for corroboration purposes. Thus, this document is neither here nor there for the purpose of the controversy. 29. Next page is page No. 441 ft is available on page 171 of the paper book. It contains daily collection of Vipul Garden. It is also for the month of March 06. Name of two customers Dalbir Singh and Amar Mahajan who booked Unit 6A, 8B in Tower GH-6 are noticed. They have paid ₹ 47,329 and ₹ 1,75,000 respectively. In the remarks column, revised area and car parking are respective rewritten. This paper is also of no help. These Details a duly recorded in the books. The next page is page No. 45, it is available on pager 172 of the paper book. It shows daily collection for the; project /.Green . Details of 243.2006 are noticed. In these details, name of four customers who have booked unit Nos.. 801,1101, 1010 in Tower No. 12,12,10 and 17 are noticed. This page is also neither here nor there for the; : purpose of the controversy in hands. Next page is page No, 46. It shows daily collection report in respect Bell Monte. Two customers Sanjay Jain and Rejesh Chawla booked Unit Nos. 501 and 602 in Tower No. 10 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the project, collection for the day, collection for the month and collection till date. Similar are the details available on page 51 but they are: for the month of September 2005. Copies of both these pages are forwarded to Shri Punit Beriwal, Shri Masand and Shri Dliurva. Next is the page No, 52 Which Contains details in tabular form in the handwriting of Shri Masand. This page has thirteen columns. This page has been annexed by the Assessing Officer with the assessment order along with other pages. Learned CIT (Appeals) has placed the scanned copy of this page on page No. 60 of .the order. Shri Masand has explained this page in a statement recorded during the course of Search as also id his statement recorded under sec. 131 on 27.8.2008 during his assessment proceedings. 33. Let us evaluate page Mo. 52 imd; statement of Shri Moti S, Masand. There are two statements of Shri Moti S. Masand; first recorded under sec. 131 dated 27.08.208 during his assessment proceedings. When the first statement was record he was a director of the company. While evaluating the evidentiary value as well as loose papers containing entries in his handwritings. It Is to be kept in mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income, this aspect has to be kept in mind while evaluation his statement. 35. In reply to question No.7 in the statement records, under sec, 132 of the Income tax Act, 1961, Shri Moti S Masand has disclosed his duties, Question No. 7 and reply reads as under:- Question No. 7; Please state your qualifications and what do you have look after in the above mentioned company? Ans: I am a bachelor of Engineering (C), only major and main duty is to look after construction and engineering work of the concerned company. Question No5: In the statement recorded under section 131 on 27.08.2008 Question-Please elaborately explain what other areas of-work being lock after by him fid M/s. Vipul Limited, as there are some balance sheet, other documents which stand signed by him? Ans:- I was mainly responsible for engineering activities but at times when Shri Limit Berlwal, director was not available, I , used to sign financial statements and balance sheets etc. which were put up for signatures. However, I have not idea about the financial transactions. Questions: On the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et turnover as on 31/03/05 and the figure of 47.4 is derived from. Column-S which again is as on 31/03/05, thereby, giving a total of 290.152 .We assume that this is the turnover of the organization being 'depicted by Mr. Masand. The next tine reduces 46 out of the total figure which is assumed to be the turnover till 31/03/03. On analysis of these figures and on perusal of document at Serial no. - 50, which is a daily collection report dated 31.03.2005, it is deduced that the figures in Column 2 have been taken from Coumn 3 of page 50. In Column-4, Mr. Masand has made some assumptive percentage shares against these turnovers attributed to Vipul and calculated his share in Columm. On perusal of the audited balance sheet from 2002-2003; Up to 31/03/05, the revenue recognized by Vipul Ltd .was as follows:- Financial year Turnover in crores 2002-2003 22.819 2003-2004 39.669 2004-2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Another sum of ₹ 4 lac has been deducted on 05/12/05 and an amount of ₹ 50 lac has been, transferred to Commercial (Dell Commercial flat) on 01/02/06, thereby, assuming to have writing off an amount of ₹ 46,500, which was balance and as per this document, . Mr. Masand bad adjusted all of Ms calculated alleged incentive of ₹ 1.18 crores as on 01.02.2006. We have analyzed all the adjustments of this statement in the prism of of his statements at the time of search and another made on 27/08/08 as well as his return of his income filed u/s 153A and the show cause notice issued on 10.10.2008 and our observation are as under: On the perusal of the above details, it is evident that whatever alleged incentive Mr. Masand has detailed for himself, it was received by him as on 01/02/06, which means that his return of income for F. Y, 2005-06 relevant for the Assessment 2006-07 should have depicted the total incentive received from the assessee at ₹ 1.18 crore, whereas, Mr. Masand has declared an incentive of only 26 lac in his return of income for the said assessment year. 37. The above explanation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer lost sight that these pages are duly reflected in the books of account He is not making the addition on the basis of these pages. The dispute is whether there is a nexus between the outcome of the result on the basis of these pages and calculations made by Mr Masand. The assessee has demonstrated that total collections as per the audited books of account as oh 313.2005 was at ₹ 271.32 crores. The calculations of Mr. Masand are short by 29 crores. If the money was accepted in cash then total collection would have been worked out at a higher figure then not on a lesser figure. 38. The assessee has further demonstrated as to how the theory of receipt of of incentive by Mr. Masand does not go parallel with his return of income, It is duly discernible in the reply of the assessee, extracted supra. Shri Masand has worked out incentive of ₹ 1.18 crores as on 1st of February 2006 whereas in his return for assessment year 2006-07, he has declared incentive of only 26 lacs. His calculations and disclosures are not in coherence with each other. 39. The disclosure made by any person would always be against his interest. Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d assessing officer to delete the above addition of ₹ 43.76 crore in the hands of the assessee based on the seized paper found from Mr. Moti S Masand. In view of this, we confirm the order of the learned CIT A in deleting the addition of ₹ 43.61 Crores out of INR 437,600,000 made by the learned assessing officer on account of receipt of cash payment. Accordingly, ground numbers 1 3 of the appeal of the learned assessing officer are dismissed. 12. Ground number 4 and 5 of the appeal of the learned AO are general in nature and therefore there dismissed. 13. Accordingly, appeal of the learned assessing officer is dismissed. 14. Now we come to the appeal of the assessee in ITA no 2494/Del/2011 for AY 2005-06. As per ground number 1 7 of the appeal are raised on the issue of assumption of jurisdiction u/s 153C of the income tax act. 15. Ground number 1 of the appeal of the assessee is general in nature. No specific arguments were advanced by both the parties. In view of this, we dismiss ground number 1 of the appeal. 16. Ground number 2 of the appeal relates to proceedings u/s 153 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... papers were prepared on the basis of the data available from the management information system collected from the accounts department of M/s Vipul Limited for working out incentive receivable by him. In none of the seized material, the name of the appellant company is mentioned. Further neither the same is seized from the employee or director of the appellant company and also the person from whom it is seized has not named the appellant. In view of this, it was stated that the documents seized from Mr Moti M Masand does not belong to the assessee and therefore the assumption of jurisdiction u/s 153C of the income tax act by the learned assessing officer is devoid of any merit. 18. With respect to the material seized from Mr Aman Sharma and Vipan Sharma, the satisfaction note refers to page number 49 of annexure A 1 which is a receipt of payment made by Mr Raj Singh, Dharmveeringh and SUrinder Singh. It was further stated that the above document content name of the Vipul infrastructure Ltd as well as the other person and that does not contain name of the assessee. It was further stated that the above document was seized from the possession and control of Mr Aman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfaction that documents seized during the search belong to the person other than the person referred to in section 153A of the act. The documents were handed over to the assessing Ofc having jurisdiction over the case of such other person. The assessing officer after considering the satisfaction note issued the notice u/s 153C read with section 153A of the act. The documents 43 to 47, 48, 49, 50, 51, 52 in annexure A 1 seized from the residence of Sri Masand does not show at all any transaction conducted by the appellant. However the document number 43 in annexure A 1 seized during the search from the premises of Mr Aman Sharma and Mr Vipin Sharma the notes that cash of INR 3,000,000 has been paid on 08/05/2004 in pursuance to agreement dated 15/03/2004 by the appellant. The judicial precedents discussed in the earlier paragraphs make it clear that the term belonging to implied something more than the idea of casual association. It involves the notion of continuity and indicates one more on less intimate connection with the person over a period of time. The expression belonging to the assessee connotes both the complete ownership and limited ownership of interest. The term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vipul infrastructure and developers Ltd and Messer Bhudeep uilders and exporters private limited having office at 28, community Centre, sac 8, New Delhi 110017 a sum of INR 3,000,000 (INR Thirty Lakhs only) in cash as part payment of sale consideration of agricultural land village Tikri, Tehsil Distt. Gurgaon details mentioned in agreement dated 1/3/2004. 23. The receipt is signed by Mr Raj Singh, Dharmveer Singh and Surendra Singh. The claim of the assessee is that assessee does not own any such land as mentioned in the receipt and further, nothing has been mentioned about the assessee. On perusal of para number 40 of the order of the coordinate bench in case of M/s Vipul Ltd in ITA number 2403 and 5999/del/2010 for assessment year 2005 06 and 2006 07, it has been held that Messer Bhudeep builders and exporters private limited belongs to the orchid group. However, on careful consideration of the above document it is apparent that the above receipt did not mention the name of the assessee and therefore even that document does not belong to the assessee. Even if it is presumed that M/s orchid group is involved in the transaction then there is a specific name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he honourable Delhi High Court in case of Ganapathi Fincap services private limited 82 taxmann.com 408 (del), therefore these grounds (3 5) of appeal are dismissed. 29. Ground number 6 of the appeal is general in nature and no specific arguments were advanced before us. Therefore, same is dismissed. 30. Ground number 7 of the appeal is against the confirmation of the addition by the learned CIT A based on the material collected by the assessing officer in violation of principles of natural justice and ground number 8 is with relation to addition of INR 1,500,000 confirmed by the learned CIT A. 31. The learned authorised representative submitted that as the impugned document based on which the addition has been made by the learned assessing officer does not belong to the assessee, assumption of jurisdiction u/s 153C of the income tax act is itself bad in law. Even otherwise, he submitted that there is no such payment received by the assessee as assessee did not own any such property. 32. The learned departmental representative vehemently supported the order of the lower authorities and submitted that ident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax, New Delhi (the learned Assessing Officer) in ITA number 2912/del/2011 against the order of the learned Commissioner Of Income Tax (Appeals) III, New Delhi dated 7/3/2011. 37. The brief facts of this appeal shows that appellant is engaged in the business of construction of commercial spaces and flats in Gurgaon. The appellant in joint venture with Vipul Ltd develop various projects. The search u/s 132 of the income tax act was conducted in the case of M/s Vipul Ltd and its directors and certain incriminating documents from the residence of Mr. Moti Masand , working as a technical director with Vipul Ltd. Survey under section 133A was also conducted in the business premises of the assessee. The document number 43 47, 48, 49, 5, 52 in annexure A 1 was seized from the possession of that gentleman. His statement was recorded u/s 132 (4) of the act. In the statement, he admitted that the documents contain the details of commission earned by him on the sales made by M/s Vipul Ltd. The document number 52 in different columns contain the details of the project, realization made in cheque and cash on different dates and the working of the commission earned by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onveyance deed registered with the sub- registrar and consideration was paid by account payee cheques which has been duly recorded in the register documents. It was further claimed that no statement of seller has been recorded to substantiate the fact that the cash over and above the declared consideration has been paid by the assessee. The learned assessing officer rejected the contention of the assessee and made the addition of 50% of INR 2 3716250/ on this account. However, no separate addition was made of the above sum in view of the addition of ₹ 8 crores as undisclosed assets has been made by the learned assessing officer, therefore, cash receipt of INR 8 crore can subsume the payment of INR 11858125/ . Accordingly the assessment u/s 153C read with section 143 (3) of the act was passed on 30/12/2008 at INR 101000442/ against the returned income of ₹ 21000442/ . 40. The assessee being aggrieved with the order of the learned assessing officer preferred an appeal before the learned CIT A, who relying on the order of the learned CIT A for assessment year 2005 06 , in case of assessee, deleted the addition of INR 8 crores on account of undiscl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee has also filed cross objection rasing following grounds in Cross objection No. 198/Del/2011 for the Assessment Year 2006-07:- 1. That Id CIT(A) has erred on facts and in law in not holding that present assessment without jurisdiction and void ab ignition in so far as no document or material seized during various searches could be said to be belonging to assessee and as such assessment deserves to be annulled. 2. That ld CIT(A), on facts and law, have held that document NO. 43 in Annexure A-1 seized during search belongs to appellant which is erroneous in law. 3. Without prejudice to above, that ld CIT(A) has erred on facts and in law in holding that jurisdiction u/s 153A r/w 153C is validly initiated in so far as there is no satisfaction recorded by AO in file and record to persons searched u/s 153A as mandated by Income Tax Act, 1961. As such assessment be annulled. 4. Without prejudice to above, that the ld CIT(A) has erred on facts and in law in not holding that the present assessment is without jurisdiction in so far as there is no record of handing over and taking over of record from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial and also respectfully following the decision of the coordinate bench in case of M/s Vipul Ltd, we also for the same reasons dismiss ground number 1 3 of the appeal of the revenue, uphold the order of the learned CIT A and direct the learned assessing officer to delete the addition of INR 8 crore made on account of receipt of cash payments. Accordingly, ground number 1 3 of the appeal of the learned assessing officer are dismissed. 47. Now we come to ground number 4 of the appeal wherein the learned CIT A has deleted the addition of ₹ 11858125/ made by the learned assessing officer on account of undisclosed payments for the purchase of the land at from various persons. 48. The learned departmental representative supported the order of the learned assessing officer and stated that the addition has been made based on the documents found during the course of search. He further submitted that the assessee is having 50% share in the joint venture and therefore the addition to that extent has been made by the learned assessing officer. 49. Learned authorised representative submitted that the material is impounded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the possession of the appellant but are seized from Messer SVS Promart private limited being a property dealer. It neither has the reference of the appellant or any of its employees. Furthermore the document seized shows the land at Zirakpur and the land owned by the assessee is at Raj para therefore there is a locational difference also between the documents seized and the actual facts. The learned CIT A further noted that the documents have been seized from a third-party and in spite of the request made by the assessee for examination of that party, no such opportunity was given to the assessee. Further, the learned assessing officer also did not examine the sellers of the land to find out whether there is any consideration received by them. The statement of the estate broker Shri Vipin, is recorded at the back of the assessee and never confronted to the assessee to rebut the same. In fact, actually the addition made by the learned assessing officer is not supported by any material credible evidence. Therefore, the addition was deleted. The learned departmental representative could not show us any reason that a. when there is a locational difference between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hands of the assessee as the jurisdiction on the basis of those documents under section 153C of the income tax act assumed by the assessing officer is invalid. Further with respect to the documents found from Shri Vipin Sharma and Sri Aman Sharma , we also held that those documents does not have any reference of the transaction made by the assessee or name of the assessee. Therefore, these documents also does not belong to the assessee. In view of this ground number 2 of the cross objection succeeds. 56. Ground number 1, 6, 7 and 9 of the appeal are general grounds, no specific arguments were advanced by the assessee and hence they are dismissed. 57. With respect to ground number 3 and 4 which are related to the recording of the satisfaction in the file of the searched person and absence of any recording of handing over and taking over of the seized material, ground number 5 is with respect to the recording of satisfaction twice by the assessing Officer being the jurisdictional assessing officer of the person searched and the person whose documents were found, all these grounds in view of our decision in the appeal filed by the learned assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the learned CIT A, the learned assessing officer has preferred this appeal raising following grounds of appeal in ITA No. 4665/Del/2011 for the Assessment Year 2006-07:- 1 On the facts and in the circumstances of the case, the CIT(A) has erred in law and on facts in deleting the addition of ₹ 8 Crores made by the AO on account of receipt of cash payments. 2 On the facts and in the circumstances of the case, the CIT(A) has erred in law and on facts by not appreciating the fact that the addition made in the case of M/s. Vipul Ltd. stands confirmed by the CIT(A) on the same issue as well as on the basis' of same evidences. 3 On the facts and in the circumstances of the case, the CIT(A) has erred in law and on facts in ignoring the fact that the assessee company is a co partner of M/s. Vipul ltd. in various projects and was in receipt of equal amount of cash component as received by M/s. Vipul ltd. 4 On the facts and in the circumstances of the case, the CIT(A) has erred in law and on facts in deleting the addition of ₹ 1,18,58,125/- made by the AO on account of undisclose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count of undisclosed payment for purchase of land for 50% share in the hands of the assessee. Both the parties admitted that this is identical to ground number 4 of the appeal of the learned assessing officer for assessment year 2006 07 in ITA number 2912/del/2011 wherein identical additions were made by the learned assessing officer while passing order u/s 153C of the income tax act for this assessment year. It was further stated that to keep the issue alive the assessing officer has also made the similar addition u/s 153A of the income tax act for the same assessment year once again. 66. We have carefully considered the rival contentions and perused the orders of the lower authorities. The learned assessing officer has repeated this addition in this assessment order passed u/s 153A of the income tax act, which was already made by him under section 153C of the income tax act for the same assessment year. This has happened due to the fresh search carried on by the revenue on the assessee on 26/2/2009. We have given our detailed reasons while deciding ground number 4 of the appeal for assessment year thousand 6 07 in case of the assessee wherein we have deleted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable with the assessee which have far exceeded the amount of non-interest-bearing advances. The learned CIT A deleted the above disallowance relying upon the decision of the honourable Bombay High Court in 313 ITR 340. The learned departmental representative could not point out any infirmity in the order of the learned CIT A. In view of this we also do not find any infirmity in the order of the learned CIT A and confirm his order deleting the addition of INR 1 15548/ because of interest paid to the banks. In the result ground number 5 of the appeal is dismissed. 71. Ground number 6 8 are general in nature and therefore they are dismissed. 72. In the result ITA number 4665/del/2011 filed by the learned AO is dismissed. ITA No 5863/Del/2011 A Y 2009-10 By Revenue 73. The facts resulting into the appeal number 5863/del/2011 by the assessing officer shows that search and seizure action u/s 132 of the income tax act was carried out in Sri Rama Hari ram group of cases was conducted on 26/2/2009 and the assessee was covered under that search. The assessee has originally filed its return of income on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alKishan Saraf vide this office letter dated 24.06.2010 has been requested to explain the contents related to him in the materials and electronic data from which were seized/impounded during the course of search/survey. The list of the premises which were covered under search/survey has been provided to him and the copies of the seized/impounded materials have also been provided to him as required. However he has not submitted his reply after several reminders. Shri BalKishan Saraf ultimately submitted the reply at the fag end of the period on which the assessment going to get time bar to lid the further inquiries related to the loose papers/documents/diaries/books of accounts found and seized/impounded during the course of search proceedings. The residential premises of the Shri BalKishan Saraf also covered under search and books of accounts/documents have also been found and seized from his premises but he has not filed the explanation of the documents so found/seized till 24.12.2010. The important seized papers are discussed hereunder: 5.3 Annexure A/2 Page No. 48( annexed to this order as annexure A) This paper is prepared like a fund flo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bal 0 Note Captive shares pur 20L Auto impex shares pur 5.4 On perusal of the details and pattern mentioned in this paper it is clear that the details of inflow and outflow of the funds have been mentioned on this paper. This fact is further cemented by the amount of 170 mentioning RTGS JG holding , it means 170 is the amount which has been electronically transferred/paid/received from/to JG holding (some company). Therefore, these calculations are actual receipt and payment of funds. Shri Bal Kishan Saraf has made total of left side at 800 means funds received and the right side total i.e. outflow of fund of 325, this outflow is reduced from the incoming fund of 800 as mentioned in left side (inflow of funds) the balance remains at 475 which is correctly carried forward as opening balance in left side immediately under 800. The further receipt(inflow of funds) at 73.5 if added with opening balance of 475, the total comes at 548.5 which tallies with the total mentioned in left hand side i.e inflow of funds. This total inflow of fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that sheet cannot be claimed by the assessee a future planning. Moreover, in the table word tomorrow is mentioned it means the assessee has mentioned the transactions of a day and next day only. On this calculation sheet the closing balance of the transactions is brought down for next day and out of the balance he has shown outflow of fund. In the planning the balance and tomorrow is not considered. In the planning simply the details of estimate of incoming fund and outgoing fund are mentioned. But the word tomorrow and as he has brought down the balance fund in the next day clearly proves that this is nothing but account of funds received by the assessee and details of outflow of such funds in two days. The contention of Shri Bal Kishan Saraf that this paper is a dumb paper cannot be accepted. This is nothing but an afterthought. Shri Bal Kishan Saraf tried to save his skin as well as the skin of the assessee company by not explaining the contents of this paper which is a statement of inflow and outflow of funds for some actual transaction. Neither the assessee company nor assessee s main person managing its account Mr. Bal Kishan Saraf has furnished any satisfactory reply reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n recorded by the assessee company nor explained during assessment proceedings. 5.7 As per the facts mentioned above it is proved that this paper is prepared for monitoring the funds and without proper explanation this is unaccounted funds for receipt and payment. Moreover, as discussed hereunder the modus operandie of Shri BalKishan Saraf related to the assessee company as he used to mention the money in lacs of rupee. Such as if 5 is written represents the amount of ₹ 5,00,000/-. Further Shri BalKishan Saraf is closely attached with the assessee company which is a well known real estate company. The transactions of the group are normally in the lacs of rupee. Moreover, Shri Bal Kishan Saraf also admitted unaccounted income in crore of rupee on the basis of documents seized during the course of search proceedings which clearly indicating that the transactions of Jacs of rupees'are mentioned in the papers seized from the premises of Shri BalKishan Saraf. The assessee was also required to explain the same and correlate with the regular books of accounts for which they failed. 5.8 On this paper period has not been mentioned. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he computer. Below this summary/table of To do list, certain amounts has been mentioned. 5.10 On this paper amount, cash, Cr. and amounts before that has been mentioned, it proves that these are the recording of some financial and accounting transactions. These may be accounted for or unaccounted transactions in the books of the assessee company. 5.11 In reply Shri BalKishan Saraf has mentioned that this is an estimate/projection document as it is clear from the head note at the top of the paper as To do list as on 08.01.2009 . In this regard we also wish to draw-your attention to statement of Balkishan Saraf Q.No. 15 of statement recorded during the course of search where he has admitted that These reflect the work planning for Orchid Group or Myself As such it is a planning/estimate documents. 5.12 Shri BalKishan Saraf has merely stated that the contents on this paper are to do list as on 08.01.2009 and nothing but planning and estimated and categorised as dumb documents. This submission cannot be accepted. This is the usual practice that before doing any work the works to be done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rranged the fund of ₹ 1.25 crore and given to some Shri Meeku bhai. As such it is proved that whenever, the assessee has not mentioned the amount in figure than the amount represents the figures in lacs as the strike through figure are in lacs and the total of the figure strike through figure is worked out as 1.25 crore as mention in front of the name of Shei Meeku Bhai. This logic also proves that these are the financial transactions noted on this paper which are not planning/estimation and as such this is not a dumb document as stated by Sh. Bal Kishan Saraf. The assessee has also not submitted any satisfactory reply in respect of the seized material and Shri BalKishan Saraf also has totally failed to co relate the figures mentioned in this paper as such the amount mentioned on this paper are unaccounted on the date 08.01.2009. As per the facts of the case, the unaccounted income as mentioned on the page No. 46 of Annexure A/2 of ₹ 3,97,92,000/- is added to the total income of the assessee for the year under consideration on substantive basis. 5.14 It is worthwhile to mention here that Sh. Rajiv Gupta and Shri BalKishan Saraf are main person of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On a consideration of the findings of the A.O. and the submissions made by the appellant as well as upon going through the seized documents, the scanned copy of which is forming part of this appellate order as above, the undisputed position on record is that both these papers have been found from the residential premises of Sh. Bal Kishan Saraf and have not been found / seized from either the premises or possession of the assessee company and is not authored by any of if s Directors. Even Sh. Bal Kishan Saraf in his statement on the date of search on 26.02.09 has admitted that these papers have been authored by him. The same position has been reiterated through letter dated 01.12.10 written by Sh. Bal Kishan Saraf to the AO in his assessment proceedings u/s 153A, the copy of which is placed on pages 93-97 of the paper book. Now when these documents have been not found from the assessee s possession /premises it cannot be straight away held as belonging to the assessee, and neither a presumption u/s 292C can be raised against the appellant. This is because section 292C which mandates raising a presumption relating to the truthfulness of the contents o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signifying Orchid Infrastructure development P. Ltd. Sangeeta Gupta the wife of Shri Rajiv Gupta, but apart from this the other names written in code have not been identified /linked with the assessee, by the AO and therefore on this ground itself for lack of independent corroborative evidence, there is no case for making addition in case of the appellant. The AO has in his order has made references to the fact that the assessee as well as Sh. Bal Kishan Saraf have not come out with full and true explanation relating to the narration in these seized documents. While there is a legal responsibility on part of Sh. Bal Kishan Saraf to come out with valid explanation relating to these documents in view of the presumption applicable u/s 292C of the Act, but in view of the fact that the same are held as not belonging to the assessee therefore there can be no burden on the assessee to provide any explanation as the documents have not been found or written by the appellant. Rather Sh. B.K. Saraf too in his statement dated 26.02.09 has not recalled the names like Bhop ; Tinnulala . Therefore on face of such reluctance or loss of memory on part of the writer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 11,21,42,000/- is directed to be deleted. Thus Grounds of Appeal No. 1 to 12 are disposed off as all these grounds are essentially on the same issue and have been argued from different perspective. So far as Ground No. 13 is concerned the contention of the appellant is that the AO has passed his order u/s 153A /143(3) of the Act. That since the date of search is 26.02.2009 therefore section 153A is not applicable for this year and the assessment could have been completed only u/s 143(3) and not under section 153A r.w.s. 143(3). It has therefore been prayed that the assessment order be held as void- abinitio and should be deleted on this account itself. This plea of the assessee is not found acceptable as there is nothing on record which shows that notice u/s 153A was issued in appellant s case. Moreover mention of S. 153A on the first page of the order is at best an inadvertent mistake which does not make the assessment order invalid in terms of section 292B of the Act. Thus Ground of Appeal No. 13 is accordingly disposed off. 77. Therefore the learned assessing officer is aggrieved with the order of the learned CIT A has preferred thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands of the assessee once again. He further referred to the submission made by Mr Saraf during assessment proceedings, which is placed at page number 92 108 of the paper book. He further referred to the assessment order passed in case of Mr Saraf u/s 143 (3) of the act which is placed at page number 12 5 144 of the paper book wherein the above addition has been made. He further referred to the order of the learned CIT A at page number 35 36 wherein the learned CIT A has given the detailed reason for deleting the above addition. In view of this, he stated that there is no infirmity in the order of the learned CIT A in deleting the above addition which has been made by the learned assessing officer on protective basis in the hands of the assessee. 80. We have carefully considered the rival contention and perused the orders of the lower authorities. Admittedly, based on the seized material found in the possession of Mr. Saraf the addition has been made in the hands of the assessee. Admittedly, in the present case the assessee has owned and disclosed INR 31.50 crores based on the seized documents. The amount considered by the learned assessing officer is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eized from Mr. Saraf placed at page number 41 42 of the paper book does not have any reference of the appellant company, the name of the assessee company was not at all mentioned on those documents. Therefore, the learned CIT A has also held that these documents do not belong to the assessee company. Further, with respect to RTGS mentioned, no correlation or corroboration was made to show that it belongs to the assessee company. The learned departmental representative could not show us that how the seized documents belongs to the assessee. On reading the assessment order itself, the learned assessing officer has also not stated that how these documents belong to the assessee. The learned departmental representative also could not controvert the infirmity in the order of the learned CIT A. In view of above facts, we confirm the order of the learned CIT A , for the reason that, a. the disclosure of INR 31.50 crores subsumed the above addition of INR 11.21 crore , b. to the extent of INR 9.33 crore set off to Mr. Saraf has not been granted, c. the seized document does not contain any reference of the appellant company, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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