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TMI Blog2020 (3) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... e addition has been made based on same seized documents that the amount is an unexplained investment. Hon ble Delhi High Court in the appeal filed by the Revenue has dealt with exactly the same seized document in the case of PCIT vs. Mrs. Vineeta Chaurasia [2017 (5) TMI 992 - DELHI HIGH COURT] . Once on exactly same seized document the Hon ble High Court has decided this issue that this document does not belong to Mrs. Vineet Chaurasia nor any adverse inference can be drawn, therefore, in the case of the assessee whose name is not even was mentioned in the seized documents, no addition can be made. Accordingly, the said addition is deleted and the order of the Ld. CIT(A) is confirmed. - Decided against revenue - I.T.A. No.2738/DEL/2016 - - - Dated:- 28-2-2020 - Shri Amit Shukla, Judicial Member And Shri Dr. B.R.R. Kumar, Accountant Member For the Appellant : Shri Sanjay Goel, CIT-DR For the Respondent : Shri Ved Jain, Adv. Shri AK Agarwal, Adv. ORDER PER AMIT SHUKLA, J.M.: The aforesaid appeal has been filed by the Assessee against the impugned order dated 22.02.2016 passed by Commissioner of Income Tax (Appeals)-XXIX, New Delhi for the quan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chaurasia observed that, first of all, the seized document was computer generated loose sheet which was neither found from the computer of Mr. Lalit Modi nor any authorized person of the company. Mr. Modi has categorically mentioned that seized document contains some rough calculation and hence any transaction with the assessee has not been established. Though it is true that on the seized document the name of Shri Kamal Kishore Chaurasia has been mentioned but assessee has not been mentioned anywhere. It is a fact that assessee and Shri Kamal Kishore Chaurasia has entered into an agreement for sale of a commercial property for which the assessee has received amount of ₹ 7,62,92,413/- through cheque. The addition has been made on the basis that other entry mentioned as PDC value in the seized document is payment received by the assessee other than cheque amounting to ₹ 7,62,92,143/-. The assessee has denied having received such amount and the Assessing Officer has not made it clear as to what is the mode of receipt. Further, there is no corroborative evidence was found to prove that this amount has been received by the assessee because seized document does not mention a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be just a rough working, whose author is also not known. The purchaser has also denied of having given any such amount in cash. 11.7 Therefore, looking to the above facts and circumstances of the case, also following the various decisions relied upon by the appellant, it is held that the addition of ₹ 7,62,92,143/- made in the hands of the appellant, on the basis of jottings on a loose sheet found from the premises of Mr. Lalit Modi is without any basis for which no corroborative material or evidence has either been found during the course of search or subsequently brought on record and hence deserves to be deleted. I have also considered the appellate order in the case of KK Chaurasia, the purchaser, where the CIT(A) has deleted the addition considering that such payment made by him is not substantiated. Accordingly, the appellant gets a relief of ₹ 7,62,92,143/- 4. At the outset, ld. counsel for the assessee, Mr. Ved Jain submitted that not only in the case of Mr. Kamal Kishore Chaurasia the Tribunal has deleted this addition based on some seized documents but also in the appeal filed by the Revenue before the Hon ble High Court, Their Lordships vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty, short terms capitals gains and income from other sources. The assessment for the AYin question was completed under Section 143(3) of the Act with the AO passing an assessment order dated 29thDecember, 2011 at a total income of ₹ 21,22,88,069 against the return income of ₹ 2,20,19,780. 1. On 19th June, 2009, a search and seizure operation was undertaken in ITA Nos. 1004 of 2015 1005 of 2015Page 3of 14terms of Section 132 of the Act on the premises of Mr. Lalit Modi, a real estate broker. During the course of the search at his premises at L-48, Lajpat Nagar-II, New Delhia document described as Annexure A-1 was found. The said document which is computer-generated, reads as under: 5. The aforementioned document dated 18th May, 2009 contained the name of the Assessee showing the area in the Vasant Square Mall as 39561.06sq.ft. with the 'ch value ₹ 16,42,68,832'which incidentally was the disclosed sale consideration for which the Assessee had purchased the aforementioned area in Vasant Square Mall i.e. 39,651.06 sq.ft. However, the document also reflected as Total Cost a sum of ₹ 32,85,37,354 and the additional sum as P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque and recorded in books of accounts by the buyer as well as seller. Apart from the above certain other payments representing Sinking Fund, Maintenance Security, Freehold charges and commission etc. have been paid by the Assessee. As such amount of ₹ 19,02,68,289 is required to be assessed in the hands of Assessee as undisclosed investment on the basis of entries mentioned on seized documents. 3. In view of the facts stated above, it is evident that documents belonging to the Assessee have been seized from a person covered under search u/S 132 of the I.T. Act, 1961. Hence, proceedings u/s. 153C are being initiated for AY 2004- 05 to 2009-10. 8. In the resultant assessment proceedings, the AO passed an order on 29th December, 2011 under Section 153C/143(3) of the Act making the following additions: 4.5 In view of the above, I hold that not only the document being page no. 5 of A-1 seized from the premised of Shri Lalit Modi belong to her but its contents too pertain to her in entirety. Accordingly, I hold that payment over and above what is accounted in the books of 16.42 crores totalling to ₹ 16,42,68,522/-is made otherwise than by way of cheque i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s appeal was allowed. 12. The ITAT held that the initiation of proceedings against the assessment under Section 153C was bad in law. It also proceeded to discuss the merits of the additions made by the AO and the CIT (A) and found them to be unsustainable in law. 13. It may be mentioned at the outset that as far as the dismissal of the Revenue s appeal by the ITAT in the case of Mr. Lalit Modi is concerned, the Revenue filed ITA No. 992/2015 in thisCourt which was dismissed by an order dated 16thAugust, 2016. The very same document which has been relied upon by the Revenue in the case of the present Assessee was discussed by the Division Bench ( DB ‟ ) in the aforementioned order. The order of the ITAT was upheld by this Court. 14. This Court has heard the submissions of Mr. Dileep Shivpuri, learned Senior Standing Counsel for the Department and Mr. Ajay Vohra, learned Senior counsel appearing for the Assessee. 15. It requires to be first noted that the document relied upon by the Revenue (Annexure A-1 page 5) to sustain the additions made to the assessable income of the Respondent has not been shown to 'belong' to the Assessee. In arriving at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Project Ltd. allegedly involving Mr. Lalit Modi, a specific question was put to him and his answer thereto was recorded on oath on 15th March, 2013 under Section 131 of Act reads as under: Q.3. During the course of search proceedings at your residence atL-48, Lajpat Nagar-II, New Delhi, loose papers were found and seized vide annexure A-1. I am showing you page No.5 of the said Annexure A-1. Kindly explain the transactions mentioned in it. Ans. The Chaurasia family is known to me. At the time of execution of sale deed in favour of Mrs. Vinita Chaurasia by M/s. Suncity Projects Ltd. in respect of commercial space purchased in Vasant Square Mall, I was present as a witness and signed on the documents Conveying titles as a witness before sub registrar. It happened somewhere in May 2009. Since I am in real estate business, incidentally after coming back from execution of the said sale deed, I was approached by a broker at my residence making enquiry about availability of commercial space in Vasant Square Mall at Vasant Kunj, New Delhi. Since I accompanied Mrs. Vinita Chaurasia who has purchased commercial space at Vasant Square Mali, I telephoned her and got the details of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the search, he clearly stated that some cash seized in those transactions belonged to the Assessee. 23. In Principal Commissioner of Income Tax, Circle-II v. Satkar Fincap (supra), again, this Court noted in para 4 of its order that during the course of hearing it was suggested to the Respondent/Assessee through its counsel that having regard to the categorical statement in a note that During the course of search seizure documents/papers page1to 31 of Annexure A-28 seized by Party R-2, Annexures A-56, A-57and A-58 seized by party 04 are found to belong to of M/s Satkar Fincap Ld., (), Ramdutt Enclave, Uttam Nagar, New Delhi. I have examined the above mentioned documents/papers and provision of section 153C is invokable in this case , the ITAT's findings and conclusion cannot be sustained. 24. In the present case, however, it is nobody case other than the Revenue that the document found in the premises of Mr. Lalit Modi belongs to the Assessee. Mr. Shivpuri referred to Section 292C of the Act for the purposes of drawing two presumptions (i) the one contained in Section 292C(1)(i) to the effect that the document found in possession of a person should be presumed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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