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TMI Blog2021 (10) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... to inference that document which pertain to son residing in the same premises belongs to the assessee. Without going into the merits of the explanation given and also whether it is in nature of the dump document or not because the very premise of drawing an adverse presumption against the assessee is not tenable and we hold that addition is unsustainable in the hands of the assessee. Assessee s son was also covered under the search in the same premises and the document found from the said premises has been categorically owned by his son, Shri Akash Sharma who has given his explanation, then instead of drawing any inference in his assessment u/s.153A, no presumption has been made in the case of the assessee. Thus, once this document does not belong to the assessee nor there is any mention of any name of the seized document, presumption u/s. 132(4A) and Section 292C cannot be made against the assessee. Accordingly, no addition based on the said seized document can be made and same is directed to be deleted. - Decided in favour of assessee. - I.T.A. No.3434/DEL/2017 - - - Dated:- 28-9-2021 - Shri Anil Chaturvedi, Accountant Member And Shri Amit Shukla, Judicial Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 1.5 crores written in that diary was merely a proposal suggested to a customer for his outflow and is not related to Assessee s income at all. 20. As the assessee and his son is already engaged in Real Estate business, they have ample knowledge of construction and good connections with suppliers of building material. Accordingly the question of getting construction done on contractual basis to third party does not arise at all. Therefore, statement given by the third party regarding payment to him for ₹ 1.75 crores in cash for renovation of residential house property at D-135, Sector-40, Noida. Further note that total area constructed on the said plot is 253.81 sq. mtr. and if we go for construction through contractor also the estimated cost can be worked out to ₹ 37, 90, 682.22 only even as per CPWD approved rates. Besides this property was purchased by the assessee on which the construction was already there and the same is evident from the copy of title deed of the house. Accordingly the construction taken place at the premises by the assessee was merely a renovation of building and furnishing on which the assessee had incurred a total sum of near ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he was also subjected to search and residing at the same premises with his father, assessment u/s.153A was also made in his case including the impugned assessment year 2011-12. The relevant observation made by the Assessing Officer in the remand report which is incorporated at page 7 and 8 of the appellate order are as under: Though, as claimed this diary belongs to Sh. Akash Sharma and to ascertain this fact the undersigned has examined him on statement u/s 131 of the Act and he admitted that the diary belongs to him and the transactions pertains to his business of sale and purchase of property as commission agent. As per his statement Page No. 24 of Annexure A-2 is related with one of the client M/s Rashi Wears Pvt. Ltd. and M/s Denz Enterprises Pvt. Ltd. To materialized this - transaction an amount of ₹ 75,000/- was received as commission/ brokerage in cash and same has been claimed to be disclosed in ITR for A.Y. 2012-13. No evidence regarding the receipt of ₹ 75,000/- was produced to demonstrate that the assessee has actually received the brokerage. No details of TDS deducted by the company was furnished or claimed by the assessee. It is mandatory to deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... related to M/s. Denz Enterprises, in whose case, transfer deed of lease hold rights, has been documented only on 18.08.2011. Moreover, this transfer deed of lease hold rights is entered only on stamp of ₹ 100/- The plea of the appellant it belongs to Shri Akash Sharma is only an afterthought and without any cogent evidence. In view of the above, I do not find force in the contention of the appellant. The cases relied upon by the appellant are on their own footing and distinguishable on facts. Therefore, these are not applicable to the present case and the addition of ₹ 1,50,00,000/- is confirmed. 7. Before us, ld counsel submitted that, first of all, the search and seizure action was conducted in the cases of the assessee and his son on the same date i.e. 09.04.2012, which is evident from the copy of the Panchnama, placed at pages 34 to 37 of the paper, which clearly shows that there was a joint search warrant in the name of the assessee and his son at the same premises, House No.D-135, Sector-40, Noida which was in the name of Shri Rajinder Sharma, Shri Akash Sharma . And in another Panchnama also both the names were appearing. Thus, when the assessee s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sections 132(4A) is a rebuttable presumption and the same is not available for the purpose of framing assessment. It is submitted that perusal of the seized documents would show that these are no books of accounts or not fall under the definition of other documents also. These are dump documents only. He also relied upon various judgments to contest that these are merely dump documents and cannot be used against the assessee. 9. On the other hand, ld. DR strongly relied upon the order of the Assessing Officer and ld. CIT(A) and also relied upon catena of judgments. The list of which are as under: 1. CIT vs. Naresh Kumar Aggarwala [2011] 9 taxmann. Com 249 (Delhi)/[2011] 198 Taxman 194 (Delhi)/[2011] 331 ITR 510 (Delhi) 2. Mahabir Prasad Rungta vs. CIT (2014) 43 taxmann.com 328 (Jharkhand)/[2014] 266 CTR 175 (Jharkhand) 3. Bhagheeratha Engineering Ltd. Vs. ACIT [2017] 79 taxmann.com 325 (Kerala)/[2015] 379 ITR 244 (Kerala)/[2016] 280 CTR 209 (Kerala) 4. Ashok Kumar Vs. CIT [2016] 69 taxmann.com 129 (Patna)/[2016] 239 Taxman 436 (Patna)/[2016] 386 ITR 342 (Patna)/[2016] 290 CTR 450 (Patna) 5. Baldev Raj vs. CIT [2010] 2 tamann.com 335 (Pun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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