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TMI Blog2024 (1) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... ched person. In the absence of such a burden having been discharged by the searched person invocation of provisions contained in section 153C of the Act is not in accordance with law. Assessment order is accordingly quashed. Decided in favour of assessee. - SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND MS ASTHA CHANDRA, JUDICIAL MEMBER For the Appellant : Shri Gautam Jain, Adv, Ms. Monika Agarwal, Adv and Shri Lalit Mohan, CA For the Respondent : Shri P.N. Barnwal, CIT-DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER:- The above captioned bunch of four separate appeals by two different assessees by the assessee and two different assessees by the Revenue are preferred against the common order of the ld. CIT(A) 3, Gurgaon dated 29.06.2011 20.12.2011 pertaining to Assessment Year 2009-10. 2. Since underlying facts in the issues are identical in the captioned appeals, they were heard together and are disposed of by this common order for the sake of convenience and brevity. 3. Representatives of both the sides were heard at length. Case records carefully perused. Relevant documentary evidence brought on record duly considered in light of Rule 18(6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed and in the case of Reliable Realtech Pvt Ltd were Rs. 18,87,95,601/- was confirmed. Both these assessees are in appeal before us. 9. Before us, the ld. counsel for the assessee moved an application u/r 27 of the Rules claiming that the assessment order in the case of Reliable Realtech Pvt Ltd, Shiv Kumar Garg and Jai Bhagwan Garg are devoid of any incriminating material and deserve to be quashed. 10. A search and seizure operation was also conducted on the very same date i.e. 05.02.2014 at the residence of one Shri Rajbir Singh Goyat who also happens to be the director of Reliable Realtech Pvt Ltd and Decent Realtech Pvt Ltd. 11. From the premises of Shri Rajbir Singh Goyat, certain documents were found and seized which are MOU dated 26.04.2008 between Decent Realtech Pvt Ltd and M/s Sanman Infrastructure Pvt Ltd and MOU dated 20.03.2008 between Reliable Realtech Pvt Ltd and Antriksh Engineers Construction Corporation. Alongwith some details of cash payments received on different dates, MOUs found were considered as incriminating material, basis which the impugned additions have been made. 12. The challenge before us is that the impugned assessment orders are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Reliable and M/s Antriksh, signed by Shri Jai Bhagwan Garg, Shri Rajbir Singh Goyat and Shri Rakesh Yadav in the presence of two witnesses and executed on the stamp paper, M/s Antriksh has agreed to purchase development rights in respect of 50% of FSI (Floor Space Index) measuring 3,68,762 sq. ft. in the above residential housing project (M/s Antriksh Heights, Gurgaon) for total consideration of Rs. 26,58,77,853/-@ 721/- per sq. ft. XXXXXX 6.4 On going through the seized documents vide Annexure A-5 (found and seized from the residence of Shri Rajbir Singh Goyat, which is the MOU dated 26.04.2008 between M/s Decent and M/s Sanman), it was found that it was containing details of cash receipts on the backside of page 36 on various dates from 12.05.2008 to 12.12.2008 for Rs. 2.86 crore; as part of consideration towards 50% of FSI. These receipts were in original handwriting and have been duly signed by Shri Shiv Kumar Garg, Similarly on further going through Annexure A-5 (found and seized from the residence of Shri Rajbir Singh Goyat, which is the MOU dated 20.03.2008 between M/s Reliable and M/s Antriksh), it was found that there were details of cash receipts on the backsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agh, New Delhi ( which was office address of the Garg group), It was found that there were two trial balances being prepared in respect of both parts of the project controlled by each group independently in the name of M/s Reliable. As per the data in the seized hard disk there were separate books of account prepared for each part of project by both the groups. Thus the AO reached to the inference that the MOUs have been acted upon in letter and spirit. It was further revealed from the seized record that M/s Sanman has entered into a MOU on 11.03.2008 with the Ministry of External Affairs Employees Welfare Society to construct and sell 300 flats in the Antriksh Heights Projects, Gurgaon in respect of which it has purchased FSI and all initial payments of Rs. 48.39 crore for this purpose were received by M/s Sanman from the said society. As discussed above Shri Shiv Kumar Garg, director of M/s Decent and M/s Reliable admitted in his statement recorded u/s 132(4) of the Act on 05.02.2014 and 07.03.2014 that they have divided 50% of the project between them and Shri Rakesh Kumar Yadav / Shri Rajbir Singh Goyat. Share holding of M/s Reliable and M/s Decent has been transferred proporti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of search under Section 132 or requisition under Section 132A of the Act, 1961. However, the completed/unabated assessments can be re-opened by the AO in exercise of powers under Sections 147/148 of the Act, subject to fulfilment of the conditions as envisaged/mentioned under sections 147/148 of the Act and those powers are saved. The question involved in the present set of appeals and review petition is answered accordingly in terms of the above and the appeals and review petition preferred by the Revenue are hereby dismissed. No costs. 15. Insofar as the aforesaid Civil Appeals preferred by the assessee M/s Kesarwani Zarda Bhandar Sahson, Allahabad are concerned, these appeals have been preferred against the impugned judgment and order dated 06.09.2016 passed in ITA Nos. 270/2014, 269/2014, 15/2015, 16/2015, 268/2014 and 17/2015, as also, against the order dated 21.09.2017 passed in the review applications. It is required to be noted that the issue before the Allahabad High Court was, whether in case of completed/unabated assessments, the AO would have jurisdiction to re-open the assessments made under Section 143(1)(a) or 143(3) of the Act, 1961 and to re- as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions of the Hon'ble Supreme Court in the case of Abhisar Buildwell [supra], we quash the impugned assessment orders. 20. Application u/r 27 of the ITAT Rules in the case of the three assessees, namely, Reliable Realtech Pvt Ltd, Shri Shiv Kumar Garg and Jai Bhagwan Garg are allowed. 21. Now coming to the appeal of Decent Realtech Pvt Ltd in ITA No. 1973/DEL/2022, satisfaction is recorded at pages 16 to 18 of the Paper Book, which is as under: 22. The bone of contention is the mention of the word belongs . It is the say of the ld. counsel for the assessee that even though the word pertaining has been replaced to belong by amendment and even if it is held that the amendment is retrospective, but scope of satisfaction cannot be expanded and no new word can be added/deleted from the Satisfaction Note recorded on 04.12.2015 and documents referred to the Satisfaction Note do not belong to Decent Realtech Pvt Ltd. Documents were found from the premises of Shri Rajbir Singh Goyat. 23. We have given thoughtful consideration to the orders of the authorities below and to the submissions made by the representatives. The Hon'ble High Court of Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey were recorded by the Assessing Officer. No substitution or deletion is permissible. No additions can be made to those reasons. No Inference can be allowed to be drawn based on reasons not recorded. The reasons recorded should be clear and unambiguous and should not suffer from any vagueness. The reasons recorded by the Assessing Officer cannot be supplemented by filing affidavit or making oral submission, otherwise the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches the court, on the strength o affidavit or oral submissions advanced. Admittedly, in the instant case the Assessing Officer has referred that the assessee had purchased immovable property valued of Rs. 1,80,60,000 on March 9, 2017 whereas the fact divergent. As such, the notice issued for initiation of reassessment proceeding does not have any legs to stand in the eye of law. 26. Moreover, considering the Satisfaction Note, mentioned elsewhere, there is nothing in the Satisfaction Note to show that if the searched person i.e Shri Rajbir Singh Goyat has disclaimed the said seized document executed on 26.04.2008 between Decent Realtech Pvt Ltd through Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8223; assessments cannot be disturbed, applies. 29. The observations of the Hon'ble Delhi High Court in the case of Pepsico Foods 367 ITR 112 are apt at this stage. The Hon'ble High Court, after noting the provisions of section 153C of the Act in para 5 has held as under: Section 132(4A)(i) clearly stipulates that when inter alia any document is found in the possession or control of any person in the course of a search it may be presumed that such document belongs to such person. It is similarly provided in Section 292C(1)(i). In other words, whenever a document is found from a person who is being searched the normal presumption is that the said document belongs to that person. It is for the Assessing Officer to rebut that presumption and come to a conclusion or satisfaction that the document in fact belongs to somebody else. There must be some cogent material available with the Assessing Officer before he/she arrives at the satisfaction that the seized document does not belong to the searched person but to somebody else. Surmise and conjecture cannot take the place of satisfaction . 30. Considering the facts of the case in totality, in light of the Satisfacti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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