9911796707
TMI Blog2021 (9) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... nts belonging to the assessee were found during the course of search. In the case of group companies [ 2021 (1) TMI 737 - ITAT DELHI] on identical reasons recorded and on identical facts and after duly considering the Rules of consistency and in absence of any material, documents, evidence or statement which could implicate the assessee, it is our considered view that the impugned assessment could not have been reopened. Therefore, we hold that the action taken by the Assessing Officer for reopening of the assessment u/s 147 of the Act is not sustainable and the same is hereby quashed as being based on seized documents of other assessees and being entirely based on presumption and assumptions and incorrect interpretation of law. Accordingly, we set aside the re-assessment. - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... in upholding the assumption of jurisdiction u/s 147 by the Assessing Officer and in making the assessment in pursuance thereof, without dealing with appellant's objections on merits. 2.1 That the CIT(A) having given a finding that no seized material obtained from the search of BPTP Group of cases (no search having been made on the appellant) belonged to the appellant, clearly erred in yet upholding the action u/s 147 taken in the hands of the appellant based on such seized material. 3. That on the facts and circumstances of the case and in law the CIT(A) erred in holding to quote, 'that seized documents definitely proves that interest is paid on PDC' despite- i. that the seized record on the basis of which above finding was given, even according to his own finding by the CIT(A), did not belong to the appellant and, ii. that no enquiries were made from any of the alleged recipients of the interest and none was confronted with relevant document(s). 3.1 That the finding of the CIT(A) is based on mere surmises and conjectures without proof and corroboration by independent evidence. 3.2 That without prejudice the CIT(A) erred in upholding the addition of interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome of ₹ 4,79,940/- was filed on 20.11.2006. The case was processed u/s 143(1). 1. A search and seizure action was conducted on BPTP and its Group companies on 15.11.2007. Certain documents seized in the search action (Details enclosed as per Annexure-A) on the Group and the post-search enquiries made revealed that the group was following a business model as a part of which only part payments of the sale consideration in respect of the land purchased were paid at the time of execution of the saledeed and the payment of balance sale consideration was invariably made through post datedcheques (PDCs) and for the intervening period i.e. period between the date of sale-deed and the date of encashment of PDCs interest was paid in cash to the vendors of the land by the vendee company on monthly basis @ 1.25% p.m. on the amount of PDCs. During the course of post search enquiries, it was also noticed that the said payment of interest by the vendee company in cash has not been accounted for by it in its books of account. The assessee company has also purchased a large chunk of land and followed the same modus operandi of making payment through PDCs and has made payment of interest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer in the case of assessee as well as in the case of M/s Green Valley Tower Pvt. Ltd. for the Assessment Year 2006-07 and on the same date on 29.03.2010, but also the documents on the basis of which action u/s 147 of the Act was initiated was the same in both the cases. 4.4 The Ld. AR also submitted that an identical issue had come up before this Tribunal in the case of another group company M/s Westland Developers Pvt. Ltd. in ITA No. 1757/Del/2013 for Assessment Year 2006-07 and the issue of reopening of the assessee had been decided in favour of the assessee by the Tribunal vide order dated 22.11.2015. A copy of the said order was also placed on record. 4.5 The Ld. AR submitted that it was evident that the reasons recorded in the case of the assessee had no specific nexus with the assessee and, therefore, there was no valid reason for formation of belief that income had escaped assessment in the hands of the assessee and, therefore, the action taken u/s 147 of the Act was void ab-initio and was not sustainable. 4.6 The Ld. AR also submitted a synopsis on the merits of the case and submitted that these may be considered as the arguments of the assessee in case the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78,080/- on account of interest paid in cash out of the books of account has, thus, escaped assessment. 2. During the course of search on BPTP and its Group companies a document was found and seized (Pages 1 to 11 of Annexure-A-1 of Party BO-I) from the premises 5th & 6th Floor, DCM Building, Barakharnba Road, New Delhi which revealed that the assessee company had made additional payments 'aggregating to ₹ 9,52,625/- against the purchase of land to various land owner's. The postsearch Investigations / enquiries were also made to verify the genuineness of the additional payments actually having been made end summons u/s 131 were issued to several farmers from whom the land was acquired. The enquiries made revealed that the additional payments made were not genuine. Moreover, the additional payments were made in violation of the section 24 of the Stamp Duty Act and as such the same are not admissible as expenditure as per explanation to u/s 37 (I) of the I.T. Act. The income has, thus, been under assessed to the extent of Re.9,52,625/- on account of additional payments against the purchase of land. I have, therefore reasons to believe that income chargeable to tax a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew, the impugned assessment could not have been reopened. In view of these specific facts, the action taken by the AO of reopening of the assessment u/s 147 of assesse is not sustainable and the same is quashed as being void ab-initio as being based on seized documents of other assessee and based on presumptions, assumptions and incorrect interpretation of law. 7.4 As we have held the re-assessment as being void abinitio, the grounds raised by the assessee on the merits of the additions become academic in nature and are not being adjudicated upon. 8.0 In the result, ITA 1735/Del/2013 filed by the assessee is allowed." 6.2 We also note that similar issue was also considered by the Co-ordinate Bench of this Tribunal in the case of M/s Westland Developers Pvt. Ltd. vide order dated 22.11.2015 in ITA No.1757/Del/2013 for Assessment Year 2006-07 wherein at para- 7 of the said order the following was held: "7. Now adverting to the second limb of assessee's stand, i.e., whether the reasons recorded for forming the belief of escapement of income on the basis of material seized are justified or vague to take recourse of section 147. In this context, on perusal of the orders of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d above, we have held the proceedings u/s. 147 as void, we need not to enter into the merits of additions challenged by assessee by way of other grounds and also by the Revenue in its appeal. Accordingly, the appeal of the assessee is liable to be allowed and that of Revenue to be dismissed." 6.3 In view of the orders of the Co-ordinate Bench of this Tribunal in the case of group companies on identical reasons recorded and on identical facts and after duly considering the Rules of consistency and in absence of any material, documents, evidence or statement which could implicate the assessee, it is our considered view that the impugned assessment could not have been reopened. Therefore, on specific facts of the case and respectfully following the orders of the Co-ordinate Benches as aforesaid in the case of companies belonging to the same group and after duly giving credence of the fact that identical reasons were recorded, we hold that the action taken by the Assessing Officer for reopening of the assessment u/s 147 of the Act is not sustainable and the same is hereby quashed as being based on seized documents of other assessees and being entirely based on presumption and assumpti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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