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TMI Blog2023 (2) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under section 153A or section 153C of the Income Tax Act. Though the judgments relied upon by the learned CIT DR are in relation to the assessment framed under section 153A but even when the assessment is framed under section 153C the procedure is provided only under section 153A of the Income Tax. Therefore, when no notice under section 143(2) is required for framing the assessment under section 153A then on the similar analogy, the same is not required even for framing the assessment under section 153C of the Income Tax Act as both are in pursuant to search and seizure action under section 132 of the Income Tax Act. ground no. 1 and 2 of the assessee s appeal, the same are dismissed. Validity of assessment order for want of satisfaction recorded by the AO - HELD THAT:- It is pertinent to note that once the AO has specifically mentioned in the assessment order about the recording of satisfaction before the notice issued under section 153C of the Act and the assessee did not raise any objection either during the assessment proceedings or before the CIT(A) then merely because this was not mentioned in the ordersheet would not change the fact duly recorded by the AO in the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to be examined by the AO and the assessee would have been given an opportunity to cross examine before making the addition. Accordingly, we set aside the impugned order and remand the matter to the record of the Assessing Officer for fresh adjudication after examination of Shri. D.K. Pahuja and Shri. Hemant Kumar Sindhi qua the seized document and opportunity to cross examination be afforded to the assessee. Concurring Order - ACCOUNTANT MEMBER - Unexplained income allegedly received by the assessee for vacating the premises - Keeping in view the matter is to be restored to the file of the AO for denovo assessment on this issue of additions to the tune of Rs. 45 lacs as was made by the AO and later confirmed by CIT(A). The seized document, Assessee was confronted by Revenue with the aforesaid seized document, but the assessee asked for summoning of the said Mr. Dinesh Kumar Pahuja from whose possession this document was found and seized by Revenue during searches conducted u/s 132 on 05.12.2013, as is emanating from the appellate order passed by ld. CIT(A), but the department did not produce Mr. Dinesh Kumar Pahuja before the assessee for examination/cross examination . Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o assessment , as enumerated in detail as above in this separate concurring order. - ITA No. 15/Alld/2018 ITA No. 16/Alld/2018 - - - Dated:- 16-2-2023 - SHRI. VIJAY PAL RAO , JUDICIAL MEMBER AND SHRI. RAMIT KOCHAR , ACCOUNTANT MEMBER For the Appellant : Sh. Siddharth Pathak , Adv For the Respondent : Sh. Rabin Chaudhari , CIT DR ORDER SHRI VIJAY PAL RAO , J. M. These two appeals by the two related assessees are directed against two separate orders of the CIT(A), both dated 28.04.2016 for the assessment year 2013-14. 2. These appeals are arising from the assessment orders passed under section 153C in pursuant to the search and seizure action under section 132(1) of the Income Tax Act, dated 05.12.2013 in the case of Shri. Hemant Kumar Sindhi. Therefore, the facts and circumstances as well as the grounds of appeal raised by the assessees are common and identical in both the appeals. The grounds raised in the appeal in ITA No. 15/Alld/2018 are reproduced as under: 1. BECAUSE the Id. CIT(Appeals) has failed to appreciate that the assessment order dated 19th March, 2016 is wholly illegal and bad in law as the statutory notice under section 143(2) wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh its Director Shri Hemant Kumar Sindhi not with Dinesh Kumar Pahuja President of Sindhu Sahkari Avas Samiti and forcefully confirming the addition in the hands of appellant without any basis is wholly illegal and unjustified. 10. BECAUSE the Id. CIT(Appeals) failed to appreciate the correct facts as emerged from the loose paper itself, paper L-5, page124 back side found from the premises of Dinesh Kumar Pahuja, President of Sindhu Sahkari Avas Samiti, thereby erred in confirming the addition of Rs. 45,00,000/- In the hands of appellant. 11. BECAUSE the appellant was no where connected with business dealings of Dinesh Kumar Pahuja, President of Sindhu Sahkari Avas Samiti or his Samiti and the addition confirmed by the Id. CIT(Appeals) is totally illegal and unjustified. 12. BECAUSE the Id. CIT(Appeals) has erred in law and on facts in treating the vague entry found in the books of Sindhu Sahkari Avas Samiti as found from the premises of Dinesh Kumar Pahuja without bringing any material on records to prove any business dealing with the appellant with Dinesh Kumar Pahuja. 13. BECAUSE the Id. CIT(Appeals) has erred in law and facts in holding that the fake en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njustified on legal grounds as also on facts of the case. 22. BECAUSE the appellant denies the liability of interest under various section Independent of quantum of assessment. 3. The assessee is an individual and was Dental Surgeon by profession. Before filing the present appeal the assessee expired and therefore, the appeal in ITA No. 15/Alld/2018 was filed through legal heir Smt. Neeta Nath. Originally, the assessee filed his return of income on 30.07.2013 declaring total income of Rs. 1,87,730/-. Thereafter, there was a search and seizure action under section 132 of the Income Tax Act in case of Hemant Kumar Sindhi, Dinesh Kumar Pahuja group. During the course of search and seizure, the document annexure L-5/page 124 back side was found and seized. The said seized document was a ledger account of land purchase in the books of M/s H.K. Infraventures Pvt. Ltd. from 01.04.2011 to 31.03.2014, which shows that Rs. 2.10 Crore (Rs. 1.05 Crore each) has been paid to the assessee and his brother Shri Madhurendra Nath. Consequently, the AO initiated the proceedings under section 153C by issuing notice under section 153C dated 5.9.2014. In response to the said notice, the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) which is a mandatory condition is not sustainable in law and liable to be quashed. He has referred to the order-sheet entries recorded by the AO placed at page no. 44 to 46 of the paper book and submitted that the first entry is regarding notice issued under section 153C dated 5.9.2014. Thereafter, the second entry is regarding reply filed by the assessee and third entry is regarding notice issued under section 142(1) with queries. There is no mention of notice under section 143(2) as per the order-sheet entries. The learned AR has thus contended that the AO has not issued any notice under section 143(2) to the assessee therefore, the assessment framed by the AO is void ab initio and liable to be quashed. In support of his contention, he has relied upon the judgment of Hon ble jurisdictional High Court at Lucknow Bench dated 28.7.2017 in the case of CIT vs. Shri. Moin Iqbal in Income Tax Appeal Nos. 168 and 169 of 2009. The learned AR has submitted that the Hon ble High Court has held that section 143(2) of the Act is mandatory in nature and it shall be obligatory for the AO to apply mind to the contents of the return filed in response to notice and thereafter issue notice unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice under section 142(1) with detailed questionnaire was issued on 05.11.2015. In response Advocate, Shri Madhurendra Nath, attended and has filed reply 23.11.2015 and the case has been discussed with him. 7. Thus, it is clear from the assessment order that the AO recorded the fact of issuing the notice under section 143(2) on 16.11.2015 and thereafter the assessee appeared and filed reply on 23.11.2015. It is also undisputed fact that the assessee did not challenge the notice issued under section 143(2) either during the assessment proceedings or even before the CIT(A). Only before the Tribunal, the assessee has first time raised this issue in ground no. 1 and 2. The grounds raised before the CIT(A) do not question the validity of assessment for want of notice under section 143(2). For ready reference, the grounds raised by assessee before the CIT(A) are reproduced as under:- 1. Because the Learned Assessing Officer erred on facts and low in treating that the appellant had received Rs. 1,05,00,000/- as compensation from M/s H.K. Infraventures Ltd. for vacating premises No. 13, (New No. 17), Stanley Road, Allahabad. 2. Because the Id. Assessing Officer has relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Shri. Moin Iqbal (supra) as relied upon by the learned AR has specifically taken note of the fact that the assessment was framed under section 143(3) but it was erroneously mentioned under section 153A. The Hon ble High Court has recorded this fact in para 19 of the said judgment as under:- 19. Learned counsel for Revenue did not dispute seriously that mention of Section 153A was an error and that will not vitiate the assessment order but since assessment was claimed to have been completed under Section 143(3) and if that be so, notice under Section 143(2) was mandatory and non-compliance thereof vitiates assessment, therefore, we answer Question-I in favour of Assessee and against Revenue holding that Tribunal was justified in dismissing appeal of Revenue not for quoting wrong provision but, in substance, for non-compliance of a mandatory provision which was not treated to be a mere procedural irregularity in various authorities as discussed above. 10. Hence, the said decision would not apply in the assessments framed under section 153A / 153C of the Income Tax Act. On the contrary, an identical issue has been decided by a majority view in the case of ACIT vs. Sunshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derstated the income, that he takes up the assessment after first, acquiring jurisdiction by issuing notice u/s 143(2). It, therefore, follows that whereas the filing of return by the assessees having income chargeable to tax etc. is essential, but making the assessment of such returns is not essential under law. Only in such cases where the AO considers it necessary to ensure that the assessee has not understated his income etc. that he takes up assessment, which is done by firstly acquiring jurisdiction on issuing notice u/s 143(2) of the Act. If the AO does not consider necessary or expedient etc., he need not make an assessment, in which case no notice u/s 143(2) would be required. Thus, it follows that notice u/s 143(2) gives jurisdiction to the AO to take up assessment. On the other hand, section 153A gets triggered for making assessment in case of search or requisition. Such assessments have to be mandatorily made by the AO whether or not he considers necessary to expedient to ensure that the assessee has not understated the income. There is no choice with the AO except to make the assessments of the prescribed six assessment years. Once the assessments are to be mandatorily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Delhi High Court has categorically laid down that the issuance of notice u/s 143(2) is not a requirement for completing the assessment u/s 153A. While holding so, the Hon ble Delhi High Court also considered the judgment of Hon'ble Supreme Court in the case of Hotel Blue Moon (supra). Similar proposition has been laid down by the Hon ble Punjab Haryana High Court in the case of Tarsem Singla v. DCIT (2016) 385 ITR 138 (P H) holding that no specific notice is required u/s 143(2) when notice u/s 153A(1)(a) was already given. The Hon ble Punjab Haryana High Court also considered the judgment in the case of Hotel Blue Moon (supra). Following the judgments in Ashok Chaddha (supra) and Tarsem Singla (supra), the Hon ble Kerala High Court in CIT vs. Promy Kuriakose (2016) 386 ITR 597 (Ker) reiterated the proposition by holding that there is no requirement of notice u/s 143(2) for completing the assessment u/s 153C. The above referred three judgments have been considered by the Hon ble Madras High Court in B. Kubendran v. DCIT (2021) 434 161 (Mad) and thereafter, it has been laid down that there is no specific provision in the Act requiring the assessment u/s 153A to be made a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the assessee to furnish the return of income. Thus, the learned DR has submitted that once this fact is recorded in the assessment order and the assessee has not raised any objection about the satisfaction recorded by the AO either during the assessment proceedings or before the CIT(A), the same cannot be questioned at this stage. 14. We have considered the rival submissions as well as relevant material on record. The Assessing Officer in para 3 of the assessment order, which has been reproduced in the foregoing part of this order has clearly stated that after recording satisfaction in writing, a notice under section 153C of the Act dated 5.9.2014 was issued and duly served to the assessee. The assessee has challenged the recording of satisfaction only on the ground that the same is not mentioned in the order-sheet entries. It is pertinent to note that once the AO has specifically mentioned in the assessment order about the recording of satisfaction before the notice issued under section 153C of the Act and the assessee did not raise any objection either during the assessment proceedings or before the CIT(A) then merely because this was not mentioned in the ordersheet would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee and his brother have received Rs. 60 lac each only as per the MOU dated 30.5.2012 for vacating the portion of the property in which they were residing as a tenantS. The assessee further contended that the document seized from the premises of Dinesh Kumar Pahuja (a Third party) is rough and dump document which is liable to be ignored. The CIT(A) was not impressed with the contentions and explanations of the assessee and confirmed the addition made by the AO. 16. Before the Tribunal, the learned AR of the assessee has submitted that the AO has made the addition on the basis of the alleged seized document which is a ledger account in the books of M/s H.K. Infraventure Private Limited showing the payment of Rs. 1.05 Crores each to the assessee and his brother. He has submitted that the AO has ignored the fact as well as undisputed document being the memorandum of understanding dated 30.5.2012 giving the details of the payment made by the purchaser of the property in question to the assessee and his brother. The details of the payment are given in the schedule of payment of the said memorandum of understanding which is signed by the assessee and his brother on the one hand and Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court in the case of Common Cause Ors vs. Union of India 394 ITR 220. Since a seized document was not part of the books of accounts maintained in regular course of business therefore, the same cannot be used against the assessee when the person from the possession of whom it is found has not accepted the transactions. The learned AR has further contended that during the course of assessment proceedings, the AO recorded the statement of the assessee on 26.11.2015 wherein the assessee has explained and stated that he has received the compensation of Rs. 60 lac only from M/s H.K. Infraventure Private Limited through cheques. The details of which are given in memorandum of understanding dated 30.5.2012. The assessee also requested the AO, vide letter dated 23.12.2012 to provide the copy of the statement of the assessee recorded by him however, the same has not been provided. Thus, the learned AR has submitted that when the assessee has produced the evidence in the shape of memorandum of understanding duly signed by the parties and attested by the witnesses as well as notary public and also explained in his statement recorded by the AO that the assessee has received only Rs. 60 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tenant- Mahurendra Nath 10500000 Cr There are other transaction also shown in the above seized documents. You were directed to explain the transaction and to state whether the aforesaid amount has been disclosed by you. You have stated in your reply filed on 23.11.2015 that you did not receive any amount other than mentioned above from M/s H K Infraventures Put Ltd. You have further reiterated the same in your statement recorded on oath. Since the transaction is also related to M/s H K Infraventure Pvt Ltd and he was also asked to explain the aforesaid transaction as per Seized document Annexure L-5/page 124 back. M/s HK Infraventures Pvt Ltd in its reply filed on 05.02.2016( reply no 27) during the assessment proceeding in his case for A.Y. 2013-14 has accepted of a cash transaction of Rs 51,49,500/- dt.04.11.2011 being Registry made and stamp duty paid Rs 5139500 and other fees paid no 185622 voucher no. 13. The transaction is also found on the same page 124 back side of Annexure L-5. It is stated that during the search, if a part of document is found true, then the whole document will be treated as correct. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remaining amount of Rs. 45 lakhs was not disclosed either by you or by M/s H.K. Infraventure. Moreover, M/s H.K. Infraventure (P) Ltd has accepted a transaction (Rs. 51,49,500) mentioned on this page during the assessment proceedings in its case. Therefore, the transaction of a seized document cannot be partly true and partly incorrect. Thus, the amount received by you of Rs. 1.05 crore recorded in the said seized document is also correct. Therefore, contention made by you is not accepted. Out of Rs. 1,05,00,000/-, you have disclosed Rs. 60,00,000/- and the remaining amount of Rs. 45,00,000/- is treated as your unexplained under section 69 of the Income Tax Act, 1961 and added to your income which is separately tax as per provisions of section 115 BBE of Income Tax Act. 20. Thus, it is clear that as per the seized document, there are entries of payment of Rs. 1.05 crore each to the assessee and his brother. There is no narration or details of the mode of payment in the said seized document. The assessee challenged the action of the AO before the CIT(A) and filed the written submissions which were reproduced by the CIT(A) in para no. 2 at page 5 to 11 of the impugned order as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d your brother Madhurendra Nath out of which Rs. 1.20 Crore has paid through cheques. Please explain the whole transaction and also explain whether you have disclosed the aforesaid amount and whether you have shown capital gain for the relevant period. Please also correlate/verify the aforesaid transaction with your books of accounts That from the above inference it will appear that a sum of Rs. 1.20 Cr. was paid by the company through cheques. Meaning thereby that Rs. 60 Lacs each was paid to the appellant and his brother Sri Madhurendra Nath each through cheques. That the cause of such payment made through cheque after signing of the memorandum of understanding was to finally close the deal of vacating the said rented property once and for all. The alleged incriminating document i.e. Annexure L-5 Page-124 was found from the possession of Sri Dinesh Kumar Pahuja (Third Party) in whose premises aforesaid mentioned search was conducted. Based on the said paper the assessing officer presumed that a sum of Rs. 10500000/- + Rs. 10500000/- was paid to the appellant his brother when in reality the appellant and his brother each received Rs. 60/- Lacs only and that is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in all faimess of justice. That in this regard your kind attention is invited to the provision of section 292 C of the IT Act which is reproduced as under- Where any books of account, other documents money, bullion, jewellery or other valuable article or thing are or is found in the possession of control of any person in the course of a search under section 132 (for survey under section 133A) it may, in any proceeding under this Act, be presumed i) That such books of account other documents money, bullion, jewellery of other valuable article or thing belong or belongs to such person. That from the aforesaid provision since the said annexure was found from said Sri Dinesh Kumar Pahuja (third party) therefore he was bound to explain the same and even the had made a specific request also to the Assessing officer during the assessment proceeding to summon Sri Dinesh Kumar Pahuja to verify the correctness of the facts but the Assessing Officer failed in it for the reasons best known to him only and spared/freed to him and penalized the appellant uncalled for by making the unjustified addition without appreciating the correct facts which can not be called a judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t proceedings did the Assessing Officer confront the appellant of any investment which had not been disclosed in the appellant's return of income. What investment he had made the source of which could not be explained is no where mentioned in the assessment order. Also, the Assessing Officer did not make any query during the assessment proceedings - there is no reference in the order sheet entries certified copies of which have been submitted as Annexure 12 (Pages 42-45) of the Written Submissions Paper Book submitted before your goodself on 09.08.2017. It is most humbly requested that the same may kindly be perused. Your attention is drawn towards Section 69 of the Income Tax Act 1961, which reads as under: 69. Unexplained Investment Where in the financial year immediately preceeding the assessment year the assessee has made investments which are not recorded in the books of account, if maintained by him for any source of income, and the assessee offers no explanation about the nature and source of the investments or the explanation offered by him is not, in the option of the Assessing Officer, satisfactory, the value of the investments may be deemed to be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined by the AO by recording his statement on 26.11.2015 wherein the assessee has reiterated its stand that he has received only Rs. 60 lac towards the compensation for vacating the premises and on the other hand the seized document shows the payment of Rs. 1.05 Crore each to assessee and his brother. The CIT(A) has considered and decided this issue in para 3 to 9 as under:- I have examined the facts and circumstances of the case. I have considered the finding of the AO in the assessment order, the submissions of the appellant and the case laws relied upon by the appellant. It is to be noted that during the course of search in the case of Dinesh Kumar Pahuja on 05-12-2013, Annexure L-5/page 124 back side was seized which is a ledger account of land purchase in the books of H.K. Infraventures Pvt.Ltd. from 01-04-2011 to 31-04-2014 which shows that Rs. 2.10 cr. has been paid to the appellant and his brother Madhurendra Nath, out of which Rs. 1.20 Cr. has been paid through cheque. The relevant ledger account is produced herein below: Particulars Vch Type Vch No Debit Cash Being R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded transaction of the appellant and treated it as unexplained u/s 69 of the I.T. Act. 5. The appellant has contended in the written submission that he and his brother have received Rs. 60 lacs each only as per the Memorandum of Understanding dated 30-05-2012 for vacating the portion of the property in which they were residing as a tenant. The appellant has contended that the document seized from the premises of Dinesh Kumar Pahuja (third party) is a rough and dump document which is liable to be ignored. 6. On examination, find that Annexure L-5/page 124 has been seized during the course of search u/s 132 of the I. T. Act, at the premises of Shri Dinesh Pahuja, The aforesaid annexure clearly shows that the alleged payment of Rs. 1,05,00,00/- each, has been made by the H.K. Infraventure Pvt. Ltd. to the appellant and his brother Shri Madhurendra Nath vide voucher No. 208. Out of the total payment, Rs. 60 lacs each has been paid by cheques as per the agreement dated 30-05-2012 and has been disclosed by the appellant and H.K. Infraventure Pvt.Ltd. also. The balance payment of Rs. 45 lacs not been disclosed by both the parties i.e. the appellant and M/s H.K. Infraventure Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A) has relied upon the said document which contains the entries of payment of Rs. 1.05 crore each to the assessee and his brother. However, there is no mention in the said document about the mode of the said payment. Further the date mentioned in the seized document as 31.12.2012 does not match with undisputed payment of Rs. 60 lac each to assessee and his brother through cheques. The Assessing Officer has neither made any reference to the statement, if any, recorded of Shri. Dinesh Kumar Pahuja or M/s H.K Infraventures Pvt. Ltd., whereas the assessee has made the statement during the assessment proceedings as examined by the AO as well as produced the memorandum of understanding dated 30.5.2012 to show that he has received only Rs. 60 lac towards the compensation for vacating the premises. When two documentary evidence are giving different version of a transaction then the document which is signed by the parties and not disputed by its signatories cannot be ignored while considering the issue of addition based on the entries recorded in the seized document which is neither signed by any party nor accepted by the parties and particularly by the assessee. The AO has made no effort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Allahabad, U.P. I.T.A. NO. 15/Alld./2018 (Assessment Year: 2013-14) in the case of Smt. Neeta Nath L/H Late Dr. Jitendra Nath, Allahabad(PAN:ABEPN1795Q) v. The ACIT, Central Circle, Allahabad I.T.A. NO.16/Alld./2018 (Assessment Year: 2013-14) in the case of Mr. MadhunrendraNath, Allahabad ( PAN : AAIPN8161D ) v. The ACIT, Central Circle, Allahabad Concurring Order PER RAMIT KOCHAR , ACCOUNTANT MEMBER : I concur with the conclusion reached by my learned Brother(J.M.) vide order(s) for assessment year 2013-14 in the case of both the assessee s namely Mrs. Neeta Nath Legal Heir(L/H) late Dr. Jitendra Nath and Mr. Madhurendra Nath, however, I am writing this concurring order to express my view, reasoning and finding on the issues which are discussed by me in later part of this order. 2. I will first take up appeal filed by Mrs. Neeta Nath L/H of Dr. Jitendra Nath, and since the facts are identical in the case of Mr. Madhurendra Nath , my view , reasoning and finding on the issues in the case of Mrs. Neeta Nath L/H Dr. Jitendra Nath shall apply mutatis mutandis to the appeal filed by Mr. Madhurendra Nath. The brief facts of the case are enumerated by my ld. Br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er No. 11 and then 13 and now 17), Stanley Road, Allahabad , wherein he along with his brother was tenant. The AO observed that during the search operations in the case of Mr. Dinesh Kumar Pahuja at Lotus Apartment , Allahabad on 05.12.2013 , out of many incriminating documents, an incriminating document related to the assessee where it was showing over and above payment for vacating the tenancy rights as per the agreement, was found and seized, marked as Annexure LP-5/Page 124 and the back side of Page 124. The said seized document LP-5 page 124 and back side of Page 124 are reproduced hereunder: The AO confronted the assessee with the aforesaid seized document s and asked assessee to explain the whole transaction as is recorded in the said seized document s which is ledger account of Land Purchase in the books of H K Infraventures Pvt Ltd from 01.04.2011-31.03.2014 which shows that Rs. 2.10 crores has been paid to the assessee and his brother Mr. Madhurendra Nath, out of which Rs. 1.20 crores has been paid through cheque s. The AO also asked assessee to explain the whole transaction and also explain whether the said transaction is reflected in assessee s books of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d documents , certain other transactions related to Sindhu Sahkari Awas Samiti and M/s H K Infraventures Private Limited are also recorded. The AO observed that as per seized documents, the amount paid to the assessee was Rs. 1.05 crores( and further also Rs. 1.05 crores was paid to the brother of the assessee namely Mr. Madhurendra Nath) is also found recorded, out of which Rs. 60 lacs was disclosed by M/s H K Infraventures Private Limited and by the assessee, while Rs. 45 lacs was not disclosed either by the assessee as well by M/s H K Infraventures Private Limited. The AO observed that said M/s H K Infraventures Private Limited has accepted transaction of Rs. 51,49,500/- mentioned on the seized documents during assessment proceedings in its case. Thus, the AO concluded that the transaction of a seized document cannot be partly true and partly incorrect. The AO further concluded that therefore, the amount received by the assessee of Rs. 1.05 crores as recorded in the seized document is also correct, and the contentions raised by the assessee that he only received Rs. 60 lacs for vacating the property through cheques was rejected by the AO, and the AO held that out of Rs. 1,05,00, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mises and received Rs. 60 lacs( Rs. 60 lacs was also confirmed to have been received by assessee s brother Mr. Madhurendra Nath through cheques from M/s H K Infraventures Private Limited for vacating the aforesaid premises) through cheques. The assessee has filed an affidavit to that effect, which is placed in paper book at page 17-19. The MOU dated 30.05.2012 is also placed in Paper book at page 20-23. The assessee has denied to have any dealings with Sindhu Sahkari Awas Samiti and the assessee has also denied to have known Mr. Dinesh Kumar Pahuja. Incidentally, Mr. Dinesh Kumar Pahuja in the capacity of President of Sindhu Sahkari Awas Samiti has countersigned the said MOU dated 30.05.2012 acknowledging that Sindhu Sahkari Awas Samiti was the previous owner as well Landlord with respect to aforesaid land, and presently there are no dues of any kind payable by the tenants namely the assessee and Mr. Madhurendra Nath to Sindhu Sahkari Awas Samiti. Although, the assessee has denied to have known Mr. Dinesh Kumar Pahuja as well denied to have any dealings with Sindhu Sahkari Awas Samiti , which is prima-facie against the preponderance of human probabilities in the teeth of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed Property No. 17(Earlier No. 11, then No. 13 and Now No. 17), Stanley Road, Allhabad, U.P. from Sindhu Sahkari Awas Samiti who were the owners of this property. The first entry recorded is cash payment of Rs.51,49,500/- which is allegedly paid by H K Infraventures Private Limited towards Registry of the Property, and for which stamp duty charges and other fees allegedly paid in cash were recorded. This transaction as is recorded in seized document is admitted by M/s H K Infraventures Private Limited. The second entry is cash paid of Rs. 2,500/- to Nagar Nigam , Allahabad towards name entry fee in Landlord Register. This cash payment is also admitted by M/s H K Infraventures Private Limited. The next entry is Journal entry wherein in the Land Purchase Account in the books of H K Infraventures Private Limited is debited to the tune of Rs. 2,10,00,000/- vide Journal Voucher No.208 and the account of Dr. Jitendra Nath(assessee) and Mr. Madhurendra Nath are credited with Rs. 1,05,00,000/- each. The date of this voucher is 31.12.2012 ( recorded by the AO in assessment order /page 3, while incomplete document furnished by the assessee in Paper book/page 25(which is reproduced above in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is brother of Mr. Dinesh Kumar Pahuja , President of Sindhu Sahkari Awas Samiti)was the Secretary of Sindhu Sahkari Awas Samiti. The seized documents was found and seized from the residential premises of Mr. Dinesh Kumar Pahuja, and is an allegedly are ledger accounts which are part of books of accounts of M/s H K Infraventures Private Limited .Although, the assessee has denied to have known Mr. Dinesh Kumar Pahuja as well denied to have any dealings with Sindhu Sahkari Awas Samiti , but the same is primafacie against the preponderance of human probabilities in the teeth of the assessee and his brother Mr. Madhurendra Nath being tenants of the property 17, Stanley Road, Allahabad for a very long time , of which said Sindhu Sahkari Awas Samiti was the Landlord prior to the sale of the said land to H K Infraventures Private Limited vide registered sale deed dated 04.11.2011. The assessee has admitted to the dealings with M/s H K Infraventures Private Limited w.r.t. vacating the premises 17, Stanley Road, Allahabad, and the assessee has admitted to entering of MOU dated 30.05.2012 with M/s H K Infraventures Private Limited, the owners of 17, Stanley Road , Allahabad who have purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Samiti was earlier owner/landlord of the said property , which property was sold by M/s Sindhu Sahkari Awas Samiti to M/s H K Infraventures Private Limited vide registered sale deed dated 04.11.2011. Mr. Dinesh Kumar Pahuja was the President of M/s Sindhu Sahkari Awas Samiti, while his brother Mr. Dilip Kumar Pahuja was the Secretary of M/s Sindhu Sahkari Awas Samiti. Under these circumstances, it becomes important that all the relevant extracts of the statements recorded by Department during the course of search proceedings as well post search enquiries of Mr. Hemant Kumar Sindhi Director of M/s H K Infraventures Private Limited, Mr Dinesh Kumar Pahuja (President of Sindhu Sahkari Awas Samiti- and from whose possession this seized document was found and seized by Revenue during searches conducted u/s 132 on 05.12.2013) , Mr Dilip Kumar Pahuja(Secretary of Sindhu Sahkari Awas Samiti), or of any other relevant person, having bearing with the aforesaid alleged transactions of the assessee , be made available to the assessee for rebuttal , and the assessee be allowed to examine/Cross examination the said persons, keeping in view principles of natural justice . If so required , the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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