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TMI Blog2020 (4) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Further the original assessment order were passed in the Group cases in which the Ld. CIT, Central-(2), New Delhi, has invoked jurisdiction under section 264 of the I.T. Act, 1961 and all the matters were restored to the file of A.O. for passing the Order afresh, as per Law. Thus, all the facts with regard to receipt of ₹ 7 lakhs from Shri Praveen Kumar was disclosed to the Revenue Department in the original return of income. therefore, mere recovery of the Agreement to Sell, through which, advance of ₹ 7 lakhs was received by assessee from Shri Praveen Kumar could not be treated as incriminating material found in search. Thus, there is no recovery of any incriminating material during the course of search against the assessee so as to make any of the additions against the assessee. The issue is, therefore, covered by Judgments of Hon ble jurisdictional High Court in the cases of Kabul Chawla [ 2015 (9) TMI 80 - DELHI HIGH COURT] and Meeta Gutgutia [ 2017 (5) TMI 1224 - DELHI HIGH COURT] . Identical issue have considered and decided in the Group cases of M/s. Alankar Saphire Developers and following the reasons for decision in the same case of the Group, we set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Bhavnesh Saini, Judicial Member And Shri O.P. Kant, Accountant Member For the Assessee : Shri Gautam Jain, Advocate For the Revenue : Smt. Sushma Singh, CIT-DR ORDER PER BENCH : This Order shall dispose of all the above 37 crossappeals as the issues involved are common in all these appeals. According to the Office, M/s. MDLR Group of cases have 179 appeals listed for hearing which have been consolidated on the request of the Department having the common issues. 2. We have heard the Learned Representative of both the parties, perused the material available on record and written submissions filed by both the parties. 3. Both the parties initially argued in the case of assessee M/s. M/s. Alankar Saphire Developers, in which, 03 Departmental Appeals and 03 Appeals of the Assessee have been filed by the parties. The issues in the remaining appeals are identical and arguments of the parties are also identical, therefore, for the purpose of disposal of all the above appeals, we proceed to decide the appeals in the case of M/s. Alankar Saphire Developers i.e., ITA.No.2606/Del./ 2016 of Revenue and ITA.No.2277/Del./2016 by Assessee for A.Y. 2003-2004 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined credit section 68 of the Income Tax Act, 1961. The A.O. accordingly made addition of ₹ 2,13,70,020/-. The assessment was completed under section 153A/144 of the Income Tax Act, 1961 Dated 15th March 2013. 6. The assessee challenged both the additions on merit as well as assumption of jurisdiction to proceed under section 153A of the Income Tax Act, 1961, before the Ld. CIT(A). The appeal of assessee was late by 20 days. The assessee submitted before the Ld. CIT(A) in the application for condonation of delay in filing the said appeal that the Orders were suddenly passed in the last week of February 2013 and assessee was under pressure of completing around 250 assessments for the block period and 50 + assessments of companies and individuals of the same group. The same were getting time barred on 31st March 2013. Further, various orders of the same Group of assessee were passed in a piecemeal manner from the last week of February 2013 to last week of March 2013. Since all the issues were interrelated, therefore, assessee was under tremendous mental pressure and stress and in a confused state of mind. The assessee due to the above facts was not able to defend its case pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Delhi High Court and Judgment of Hon ble Bombay High Court in the case of Sinhagad Technical Education Society 378 ITR 84 (Bom.). It was submitted that both the additions are made without reference to any incriminating material. The perusal of the assessment order makes it clear that assessment has been framed without reference to any incriminating documents or assets if found during the course of search. The Ld. CIT(A) referred to several decisions in the appellate order including the Judgment of Hon ble Delhi High Court in the case of CIT vs., Kabul Chawla 380 ITR 573 (Del.) etc., and the summary of the legal position was noted at Page-20 of the appellate order, in which, one of the relevant condition for proceeding under section 153A have been mentioned at Para-(g), which reads as under : g) Completed assessments can be interfered with the A.O. while making the assessment under section 153A only on basis of some incriminating material unearthed during course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in course of original assessment. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has explained the reasons which are sufficient to hold that assessee was prevented by sufficient cause in not filing the appeal within period of limitation because large number of assessments were pending before the authorities below of the Group and assessee has also filed writ petition before the Hon ble High Court for redressal of their grievance, but, when it was deferred, assessee filed appeal before the Ld. CIT(A). The decisions relied upon by the Ld. CIT(A) in support of his findings squarely apply to the facts of the case that the Court should adopt a pragmatic approach in condoning the delay where the delay is of few days only. The discretion exercised by the Ld. CIT(A) in condoning the delay of 20 days in filing the appeal is just and proper, therefore, we do not find any merit in these grounds of appeal. These Grounds in Departmental Appeal are dismissed. 15. The Ld. D.R. also contended that the Ld. CIT(A) should not have admitted the additional evidence under Rule 46A because the case of the assessee would not fall within the four exceptions provided under Rule 46A of the I.T. Rules, 1962 because assessee was non-cooperative before the A.O. and conduct of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pment, hotels and operating a regional Airline with brand name of MDLR Airlines. The Group is controlled by Shri Gopak Kumar Goyal and his brother and sons of Shri Muralidhar Goyal. Various assessments have been passed in the group cases under section 153A/144 of the I.T. Act, 1961. On filing of the petition by assessee, the Ld. CIT, Central-2, New Delhi passed the Order under section 264 of the I.T. Act, 1961, in respect of the Orders passed under section 153A/144 of the I.T. Act, 1961, for the A.Ys. 2002-2003 to 2008-2009 and matter was set aside to the file of A.O. The Ld. D.R. while concluding the arguments in Group cases and when arguments were going on in the cases of M/s. Witness Builders Pvt. Ltd., M/s. Witness Construction Pvt. Ltd., M/s. Worldwide Realtors Pvt. Ltd., and M/s. Vinman Estate Pvt. Ltd., of MDLR Group Appeals, have also submitted written submissions in which it is submitted that search material was found during the course of search and post-search investigation of the Investigation Wing, on which, assessments have been framed by the A.O. Copy of the relevant pages of the appraisal report and statement on oath recorded during search under section 132(4) are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contained in the Evidence Act are not applicable. There is no presumption in Law that A.O. has to discharge an impossible burden to assess the tax liability by direct evidence only and to establish the evasion beyond doubt as in criminal cases. The Ld. D.R. without prejudice to the above submission also submitted that the Ld. CIT(A) exceeded his jurisdiction by deciding an issue which was not agitated by the assessee as per the grounds of appeals enclosed with Form No.35. In this case, the assessee was aggrieved by the Order of the A.O, filed an appeal on various grounds which, however, did not include the issue of making assessment under section 153A of the Act without incriminating material being available on the said issue. This was, therefore, against the Law. Copy of the Panchanama in Group Case and statement of Shri Visesh Gupta are filed on record. The Ld. D.R, therefore, submitted that the Ld. CIT(A) should not have decide this issue of nonrecovery of incriminating material against the Revenue. Ld. CIT-DR further wanted to place on record gist of written submissions by 20.03.2020, but, till date nothing is placed on record. 19. Learned Counsel for the Assessee reiterat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Departmental Appeal, would be left with academic discussion only and there is no need for adjudication of the same. 20. We have considered the rival submission and perused the material available on record. Before proceeding to decide the issue, we may note that these are Group appeals related to M/s. MDLR Group of Cases in which search and seizure action under section 132 were carriedout on 31.01.2008. Notices under section 153A were issued in all the Group cases. Original assessments were framed under section 153A/144 of the I.T. Act, 1961. The assessees have preferred petition under section 264 of the I.T. Act, 1961, before the Ld. CIT, Central-2, New Delhi, who vide Order Dated 12.03.2010 disposed of the same setting aside the assessment orders for A.Ys. 2002-2003 to 2008-2009 and restored the matter in issue to the file of A.O. with a direction to re-frame the assessments as per law. The A.O. in pursuance to the directions issued under section 264 of the I.T. Act by Ld. CIT, Central-2, New Delhi, re-framed the assessment under section 153A of the I.T. Act, 1961. These are 179 appeals which were listed before the Bench for hearing of the Group cases as these were clubbed/ c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifically noted in the assessment order that no details were filed on these issues in the original assessment proceedings clearly supports the finding of fact recorded by the Ld. CIT(A) that no incriminating material was found during the course of search so as to make these two additions. The perusal of the assessment order, therefore, makes it clear that assessment under section 153A/144 of the I.T. Act, 1961 have been framed without reference to any incriminating documents/ material relevant to assessment in appeal. The Judgment of Hon ble jurisdictional Delhi High Court in the case of CIT vs., Kabul Chawla 380 ITR 573 (Del.) held as under : Completed assessments can be interfered with by Assessing Officer while making assessment under section 153A only on basis of some incriminating material unearthed during course of search which was not produced or not already disclosed or made known in course of original assessment. 20.2. The Hon ble jurisdictional Delhi High Court in the case of Pr. CIT, Central IT, New Delhi vs., Meeta Gutgutia 395 ITR 526 (Del.) in paras 69 to 72 considering the Judgment in the case of CIT vs., Kabul Chawla (supra), held as under : 69. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended that Judgment of Hon ble Kerala High Court in the case of Shri E.N. Gopakumar vs., CIT (Central) (supra), should be considered in favour of the Revenue in which it was held that there is no requirement for recovery of any incriminating material during the course of search so as to make the assessment under section 153A of the I.T. Act or to make the addition. It is well settled Law that the Judgments of the Hon ble jurisdictional High Court is binding on all the subordinate authorities and Courts. No preference could be given to the decisions of other High Court as against the binding precedent of the jurisdictional High Court. In the cases of assessee, the Judgments of Hon ble Delhi High Court being the jurisdictional High Court are binding on all the subordinate authorities as well as Tribunal. Further the decision of Hon ble Delhi High Court in the cases of Kabul Chawla and Meeta Gutgutia (supra) have been confirmed by the Hon ble Supreme Court by dismissing the SLP of the Department. The Ld. D.R. however, contended that the Department appeal in the case of Kabul Chawla (supra) have been dismissed by the Hon ble Supreme Court because of the low tax effect. Further in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R. also argued that the Ld. CIT(A) has exceeded his jurisdiction by deciding this issue which was not agitated by the assessee as per the grounds of appeals enclosed in Form No.35. Learned Counsel for the Assessee, however, produced the copy of the revised grounds of appeal which was submitted before the Ld. CIT(A) before deciding the appeal in which such ground have been raised by the assessee. Therefore, there is no merit in the contention of the Ld. D.R. Further, the Ld. CIT(A) has decided this issue in detail based on the material already available on record. The Hon ble Punjab Haryana High Court in the case of VMT Spinning Co. Ltd., vs., CIT 389 ITR 326 (P H) held as under: Held, that the Tribunal could decide the appeal on a ground neither taken in the memorandum of appeal nor by seeking its leave. The only requirement was that the Tribunal could not rest its decision on any other ground unless the party who might be affected had sufficient opportunity of being heard on that ground. Therefore, the Tribunal ought to have exercised its discretion in view of the fact that the assessee intended raising only a legal argument without reference to any disputed questions of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA.No.2279/Del./2016 - Assessment Year 2005-2006 M/s. Alankar Saphire Developers, vs. The DCIT, Central Circle-15 (Old), Central Circle-14 (New) New Delhi. (Appellant) (Respondent) ITA.No.2607/Del./2016 - Assessment Year 2004-2005 ITA.No.2608/Del./2016 - Assessment Year 2005-2006 The ACIT, Central Circle-14, New Delhi 110 055. vs. M/s. Alankar Saphire Developers, (Appellant) (Respondent) ITA.No.6358/Del./2016 - Assessment Year 2004-2005 M/s. Ashutosh Developers P. Ltd., vs. The DCIT, Central Circle-15 (Old), Central Circle-14 (New) New Delhi. (Appellant) (Respondent) ITA.No.122/Del./2017 - Assessment Year 2004-2005 ITA.No.675/Del./2017 - Assessment Year 2006-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd., (Appellant) (Respondent) ITA.No.6353/Del./2016 - Assessment Year 2003-2004 ITA.No.6354/Del./2016 - Assessment Year 2004-2005 ITA.No.6356/Del./2016 - Assessment Year 2006-2007 M/s. LKG Builders P. Ltd., vs., The DCIT, Central Circle-15 (Old), Central Circle-14 (New) New Delhi. (Appellant) (Respondent) ITA.No.3449/Del./2016 - Assessment Year 2006-2007 The ACIT, Central Circle-14, vs., M/s. M.M. Buildcon Pvt. Ltd., (Appellant) (Respondent) C.O.No.251/Del./2016 in ITA.No.3449/Del./2016 Assessment Year 2006-2007 M/s. M.M. Buildcon Pvt. Ltd., vs., The ACIT, Central Circle-14, (Cross Objector) (Respondent) ITA.No.1972/Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ./2016 - Assessment Year 2005-2006 The ACIT, Central Circle-14, vs., M/s. Worldwide Realtors (P) Ltd., (Appellant) (Respondent) 23. The issues in these remaining Departmental Appeals as well as Appeals/Cross Objections of the Assessee are identical. The issues in remaining Departmental Appeals are also with regard to delay of 20 days condoned by the Ld. CIT(A) in filing the appeal before him, violation of Rule 46A, allowing the grounds of appeal of assessee qua the jurisdiction to make the additions under section 153A in the absence of recovery of any incriminating material and additions deleted on merits. 24. In the remaining appeals of the assessee, the assessee challenged the additions on merit partly maintained by the Ld. CIT(A). 25. The arguments of the Learned Representatives of both the parties are identical as have been considered in the case of M/s. Alankar Saphire Developers [ITA.No.2277/Del,./2016 A.Y. 2003-2004], (supra), decided above. In the case of M/s. Ashutosh Developers P. Ltd., the Ld. D.R. also sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appraisal report which was the basis of making search against the Group cases. Cash deposited in the Bank is also referred to in the appraisal report. Agreement to Sell, receipts were also found during the course of search. 30. Learned Counsel for the Assessee submitted that in assessment year there is no reference to any incriminating material so as to make the additions. Therefore, all the items were disclosed in the original return of income and assessment was completed on the date of search. The Ld. CIT(A) correctly decided this issue in favour of the assessee. 31. In the case of M/s. M.M. Buildcon Pvt. Ltd., the Ld. D.R. submitted that A-91 [PB-50] was recovered. The assessee made surrender of income and statement under section 132(4) was recorded, therefore, additions were correctly made in this case. 32. On the other hand, Learned Counsel for the Assessee submitted that no specific material qua any of the additions have been referred to by the A.O. in the assessment order. The assessee did not make any surrender of amount for assessment year under appeal. He has referred to findings of A.O. and Ld. CIT(A) to show that no additions have been made based o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re an allegation and may be the basis for conducting search in the group cases, but, nothing has been pointed-out during the course of hearing of these appeals, if any of the additions are based on any incriminating material found during the course of search. Assessments were completed on filing original returns of income and no assessment was pending or abated. Therefore, the issue is covered by Judgments of Hon ble jurisdictional Delhi High Court in the cases of Kabul Chawla and Meeta Gutgutia (supra). We have already decided an identical issue of assumption of jurisdiction under section 153A of the I.T. Act for deleting the above additions in the case of M/s. Alankar Saphire Developers (supra). Following the reasons for decision in this case, we do not find any infirmity in the Order of the Ld. CIT(A) in holding that no addition could be made against the assessee as no incriminating material was found during the course of search against the assessee. Therefore, there were no justification to make any addition against the assessee. The issue relating to condonation of delay and violation of Rule 46A have also been decided being identical in the case of M/s. Alankar Saphire Develo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral (2), New Delhi, who has disposed of the application and set aside the original assessment order and directed the A.O. to re-frame the assessment as per Law. The A.O, therefore, proceeded to pass the impugned assessment order afresh. The objections of the assessee are dropping. The proceedings under section 153A were decided against the assessee. The A.O. noted that during assessment year under appeal, assessee has issued share capital of ₹ 1 lakhs. During original assessment proceedings as well as in re-assessment proceedings, assessee failed to discharge onus under section 68 of the I.T. Act, 1961, therefore, addition of ₹ 1 lakh was made under section 68 of the I.T. Act, 1961. The A.O. further noted that during the year assessee has received advance for land from Shri Praveen Kumar amounting to ₹ 7 lakhs. No land was sold to any of the parties. The assessee was asked to furnish to prove the identity, creditworthiness and genuineness of the transaction in the case of Shri Praveen Kumar. No evidence was furnished during assessment proceedings as well as re-assessment proceedings. The A.O, therefore, made addition of ₹ 7 lakhs on account of income from un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A), however, deleted the additions of ₹ 30,000/-, additions of ₹ 5.50 crores, ₹ 76,470/- and ₹ 18,081/- of expenses. The Department in its appeal has challenged the Order of Ld. CIT(A) in condoning the delay in filing the appeal and deleting the addition of ₹ 30,000/- and ₹ 5.50 crores. 43. The assessee in appeal challenged the additions of ₹ 7 lakhs and 1 lakhs on merits. 43.1. The assessee in its appeal raised an additional ground of appeal challenging the Order of the Ld. CIT(A) in upholding the initiation of proceedings under section 153A of the I.T. Act and framing the assessment under section 153A/143(3) of the I.T. Act, 1961, since no incriminating material was found as a result of search conducted on assessee, therefore, the assessment framed is without jurisdiction. It is also contended in the additional ground that additions are made without jurisdiction since it is not based on any material found as a result of search on the applicant and relied upon Judgments of Hon ble Delhi High Court in the cases of Kabul Chawla and Meeta Gutgutia (supra). Learned Counsel for the Assessee submitted that it is a legal ground which em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leted because no notice under section 143(2) of the I.T. Act, 1961, was issued within 12 months from the date of filing of the return. Therefore, original return was completed on the date of the search. Since the advance received through Agreement to Sell was already disclosed to the Revenue Department in original return of income, therefore, recovery of the Agreement to Sell could not be treated as incriminating material so as to make any of the additions against the assessee. He has submitted that issue is, therefore, covered by Judgments of Hon ble jurisdictional High Court in the cases of Kabul Chawla and Meeta Gutgutia (supra). Learned Counsel for the Assessee in the alternate contention submitted that at the most if the Agreement to Sell is considered as incriminating material, the addition could be made of ₹ 7 lakhs only. The other additions are not based on any evidence or material found during the course of search, therefore, no other addition could be made against the assessee. 47. The Ld. D.R. reiterated the submissions made in the above Group cases and also submitted that in the case of Kabul Chawla (supra), there should be nexus between the material and the ad ..... 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