9911796707
TMI Blog2025 (3) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... I 176 - DELHI HIGH COURT]. We wish to reiterate here that the above seized document merely indicates some rates than pinpointing any specific on-money payment or receipt; as the case may be, involving the assessee. Faced with this situation, we are of the considered view that the learned CIT(A) has rightly accepted the assessee's contentions directed against the impugned addition. Mandation to record satisfaction - AY 2008-09 Revenue could hardly dispute the clinching fact that AO had recorded his section 153C satisfaction against the assessee. That being the clinching case, we quote section 153C(1) 1st proviso that the addition of search in such an instance is to be "construed as reference to the date of receiving the books of account or documents by the AO having jurisdiction over such other person", and hold that once the assessee's assessment for the impugned assessment year 2008-09 was pending in light of its return filed on 02.12.2008 the departmental authorities could not have assessed it under the normal provisions u/s 143(3) going by Ojjus Medicare (P) Ltd.[2024 (4) TMI 268 - DELHI HIGH COURT] and Jasjit Singh [2023 (10) TMI 572 - SUPREME COURT] Disallowing the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties that the last assessment year before assessment year 2008-09 in fact involves an assessment framed under section 143(3) of the Act. 4. It is in this factual backdrop that we take up the Revenue's appeal ITA No. 5051/Del/2012 as the "lead" case wherein it seeks to revive on-money addition of Rs. 8.99 crores; made in the course of assessment framed on 30.12.2009 and deleted in the lower appellate discussion reading as under: "7. Finding on Ground of Appeal No. 3 & 4 :- A. The facts of the case, based on which addition to income of Rs. 8.99 Crores has been made, lie in a narrow compass in as much as the addition to income is based upon the interpretation of the notings made on the seized document viz. page 67 of Annexure A-6 which is a page of diary maintained by Ms. Kanika Verma, Company Secretary of M/s Kohinoor Foods Ltd. It is a matter of record that land measuring 105 acres and belonging to the appellant was agreed to be sold as per MOU entered between the assessee and one M/s Clarion Properties Ltd at the rate of Rs. 33 lacs per acre, which worked out to a total consideration for Rs. 49.5 Crores. As per the notings on this page of the diary which is dated 22.03.2005 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that that these recordings have been made by Ms. Kanika Verma who's Statement on oath was recorded during the search. That the copy of the statement of Ms. Kanika was never supplied to the appellant for cross examination and that Ms. Kanika Verma is no way connected with the business affairs of the appellant and therefore her cooperation or lack of it in the search proceedings could not be used against the appellant to come to the conclusion that a cash amount in two installments of Rs. 4 crores and Rs. 4.9 Crores was also received by the assessee on 10.04.05 and 30.04.05 respectively. B. The undisputed facts which thus emerge from the findings of the AO are as follows:- i. That the diary marked as Annexure A-6 is maintained by Ms. Kanika Verma the Company Secretary of M/s Kohinoor Foods Ltd. ii. It is also a matter of fact as seen from the Statement on oath of Ms. Kanika Verma dated 18.12.07 that while admitting the fact that this diary is an official diary Ms. Verma has not explained the contents on page 67 thereof. iii. It is again a matter of fact that M/s Clarion Properties Ltd to whom summons were issued u/s 131 has vide his reply filed on record only given det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were in fact paid to the appellant. The AO has merely relied upon the notings on page 67 the contents of which are not clear and from which no definite evidence as to receipt of unaccounted consideration is absolutely evident. Moreover this document has been maintained by Ms. Kanika Arora / Verma who has not given any categorical answer to the contents of the said document and neither she has been cross-examined on this issue by the assessee. In view of the cumulative totality of the facts the addition made to income which has not been corroborated by any other material either found during the course of search or collected subsequent to the search cannot be sustained as the same is based on presumption and assumption. Additionally, the fact the proposed deal fell apart and was not gone through even in parts for which 20% payment was made, as per the notings on the document, goes on to support the appellant's contention that the notings were referring to proposed transactions which did not materialize and therefore the MOU was not gone through. Accordingly, the addition made for Rs. 8.99 Crores is directed to be deleted and the ground of appeal is allowed. In a result the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king us to the assessment findings dated 30.12.2009 at pages 2 and 3 wherein same rough jottings and alleged map was seized from the searched person (page 9, Annexure- A-1), which is indeed in the nature of dumb document only in light of Commissioner of Income Tax v. Girish Chaudhary, 2008) 296 ITR 619 (Del). We wish to reiterate here that the above seized document merely indicates some rates than pinpointing any specific on-money payment or receipt; as the case may be, involving the assessee. 10. Faced with this situation, we are of the considered view that the learned CIT(A) has rightly accepted the assessee's contentions directed against the impugned addition of Rs. 20.97 crores made in its hands. This Revenue's instant second appeal ITA No.4011/Del/2011 also fails therefore. 11. Coming to the last assessment years 2008-09, the Revenue could hardly dispute the clinching fact that the learned Assessing Officer had recorded his section 153C satisfaction against the assessee on 04.11.2009 (page 3 in the paper-book). That being the clinching case, we quote section 153C(1) 1st proviso that the addition of search in such an instance is to be "construed as reference to the date of re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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