LALITKUMAR R. GOEL, MUMBAI V. ACIT 20(1), MUMBAI

ITA 1169/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0269 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 07-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MAHESH R AJORA
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Loose papers; Document seized; Documents seized
• Section: 143(3); 50C; 153A; 69; 132; 10

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JM AND SHRI RAJESH KUMAR, AM ITA NO. 1169 / MUM/ 20 1 6 ( / ASSESSMENT YEAR: 20 04 - 05 ) SHRI NILESH R MEHTA (LEGAL REPRESENTATIVE OF LATE SHRI RAMESH M MEHTA) B - 38, HINDUSTAN HOUSE, PLOT NO.A - 129/130, ROAD NO.22, WAGLE INDUSTRIAL ESTATE, THANE (W) - 400604 / VS. THE ASSTT. COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE - XV, CHENNAI 400034 ( / APPELLAN T) : ( / RESPONDENT ) ./ PAN : AACPM7084J ( / APPELLANT) : ( / RESPONDENT ) / A SSESSEE BY : S/SHRI JITENDRA JAIN AND MAHESH RAJORA /R EVENUE BY : SHRI RAHUL RAMAN / DATE OF HEARING : 23.3.2017 / DATE OF PRONOUNCEMENT : 14. 6 . 201 7 / O R D E R PER RAJESH KUMAR, A. M: BY WAY OF THIS APPEAL THE ASSESSEE IS CHALLENGING THE ORDER OF LD.CIT(A) - 4, CHENNAI DATED 19.1.2016 FOR THE AS SESSMENT YEAR 20 04 - 05 . 2. GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE AS UNDER : 1. (A) ON THE FACTS AND CIRCUMSTANCES OF THE CASE OF THE APPELLANT AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) - 4, CHENNAI 2 ITA NO. 1169 /MUM/201 6 [CIT(A)] ERRED IN CONFIRMING THE ASSESSM ENT ORDER U/S 143(3) R.W. S . 153C OF THE I T. ACT PASSED BY THE A O WITHOUT APPRECIATING THAT THE ORDER PASSED BY A O IS ILLEGAL, BAD IN LAW AND WITHOUT JURISDICTION IN SO FAR AS NO SATISFACTION AS CONTEMPLATED U/S 153C OF THE ACT WAS RECORDED BY THE A O BEFORE ISSUE OF THE NOTICE TO THE APPELLANT U/S 153C OF THE ACT. THE APPELLANT SUBMIT THAT RECORDING OF SATISFACTION BY THE ASSESSING OFFICER OF SEARCHED PERSON IS A PREREQUISITE FOR ISSUANCE OF NOTICE U/S 153C OF THE ACT AND FAILING OF WHICH RENDERS THE PROCE EDING U/S 153C OF THE ACT ILLEGAL AND BAD IN LAW. (B) THE CIT(A) ERRED IN CONFIRMING THE ACTION OF A O IN PASSING ORDER U/S 143(3) R.W.S 153C OF THE ACT AND FAILED TO APPRECIATE THAT SINCE NO MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNTS OR DOCUMENTS 'BELONGING TO THE APPELLANT' WERE SEIZED AS A RESULT OF SEARCH AND HENCE NOTICE ISSUED U/S 153C OF THE ACT WAS ILLEGAL, INVALID AND UNSUSTAINABLE. (C) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, THE ORDER U/S 143(3 ) R.W. S . 153C OF THE IT ACT PASSED BY THE A O IS CONTRARY TO THE PROVISION OF LAW AND ULTRA VIRES; HENCE, THE SAME DESERVES TO BE VACATED AND QUASHED. 2. THE CIT(A) ERRED IN CONFIRMING THE ACTION OF A O IN MAKING ADDITION OF RS.1,93,57,057/ - ON ACCOUNT O F ALLEGED 'ON MONEY' CASH PAYMENT MADE BY THE APPELLANT TO M/S LAYER EXPORT PVT LTD TOWARDS PURCHASE OF FLAT . THE APPELLANT DENIES OF PAYMENT OF ANY ON MONEY FOR PURCHASE OF FLAT AND ON THE FACTS AND CICUMTANCES OF THE CASE OF THE APPELLANT THE ADIDT 9ION MADE BY THE AO SHALL BE DELETED A THE SAME IS MAE SOLELY ON THE BASI OF ASSUMPTION SURMISES AND CONJECTURES AND WITUT ANY MATERIAL ON REECORS. 3 . THE ISSUE RAISED IN GROUNDS OF APPEAL NO.1 IS AGAINST THE CONFIRMATION OF ASSESSMENT OR ORDER U/S 143( 3) R.W.S. 153C OF THE I NCOME TAX ACT, 1961 BY LD. CIT(A) BY IGNORING THE FACT THAT THE ORDER PASSED BY THE AO IS ILLEGAL AND BAD IN LAW AND WITHOUT JURISDICTION IN SO FAR AS NO 3 ITA NO. 1169 /MUM/201 6 SATISFACTION AS PROVIDED U/S 153C OF THE ACT WAS RECORDED BY THE AO BEFORE I SSUE OF THE NOTICE TO THE ASSESSEE. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE (LATE) RAMESH M MEHTA , ENGAGED IN THE BUSINESS OF EXPORTS OF FABRICS AND GARMENTS , FILED RETURN OF INCOME ON 20.10.2004 DECLARING A TOTAL INCOME OF RS.80,570/ - . A SEARC H OPERATION U/S 132 OF THE ACT WAS CONDUCTED ON THE PREMISES OF BHARAT SHAH GROUP ON 15 . 3. 200 8 AND DURING THE SEARCH PROCEEDINGS IT WAS FOUND THAT A FLAT WAS SOLD BY LAYA EXPORT PVT LTD TO THE ASSESSEE AND HIS WIFE MRS. MAYABEN MEHTA FOR A TOTAL CONSIDE RATION OF RS.3,87,14,102/ - PAYING RS.2,03,50,000/ - BY ACCOUNT PAYEE CHEQUE AND BALANCE OF RS.1,93 , 57 , 051/ - IN CASH. BASED ON THE FINDING OF THE INVESTIGATION WING, THE ACIT VIDE HIS LETTER DATED 21.12.2009 INFORMED THE AO, CHENNAI QUA THE SAID FACT AND B ASED ON THIS INFORMATION, T HE AO ISSUED NOTICE ISSUED U/S 153C R.W.S.153A ON 18.12.2010 AND ALSO NOTICE U/S 143(2) ON 24.09.2010. THE SHOW CAUSE NOTICE WAS REPLIED BY THE ASSESSEE DENYING HAVING MADE ANY CASH PAYMENT TO LAYA EXPORT PVT LTD. BUT THE RE PLY OF THE ASSESSEE HAS NOT ACCEPTED BY THE AO ON THE GROUND THAT DURING SEARCH ACTION U/S 132 OF THE ACT CONDUCTED ON 1 5 .3.2008 . ULTIMATELY , THE ASSESSMENT WAS MADE UNDER SECTION 153 C R.W.S.143(3) OF THE ACT VIDE ORDER DATED 29.12.2010 ASSESSING THE INCOME AT RS.1,94,37,630/ - BY MAKING AN ADDITION OF RS.1,93,57,057/ - BEING MONEY PAID BY THE ASSESSEE IN CASH FOR PURCHASE OF FLAT WHICH WAS NOT ACCOUNTED FOR AND SHOWN BY THE 4 ITA NO. 1169 /MUM/201 6 ASSESSEE . THE ASSESSEE CHALLENGED THE ORDER OF THE AO BEFORE THE FIRST APPELLA TE AUTHORITY, WHO ALSO DISMISSED THE APPEAL OF THE ASSESSEE AFTER CONSIDERING T HE CONTENTION AND SUBMISSIONS OF THE ASSESSEE FILED IN THE APPELLATE PROCEEDINGS AND CAME TO THE CONCLUSION THAT THE ORDER PASSED BY THE AO U/S 153C R.W.S.143(3) OF THE ACT WAS A VALID ORDER AS THE NOTICE UNDER SECTION 153C OF THE ACT WAS ISSUED ON THE BASIS OF INFORMATION WHICH CAME TO THE NOTICE OF THE SEARCH PARTY DURING SEARCH PROCEEDINGS U/S 132 OF THE ACT ON BHARAT SHAH GROUP IN WHICH IT WAS FOUND THAT A FLAT WAS PUR CHASED FROM LAYA EXPORT PVT LTD FOR A TOTAL CONSIDE RA TION OF RS.3,97,07,251/ - OUT OF WHICH RS.2,03,15,200/ - WAS PAID BY ACCOUNT PAYEE CHEQUE AND BALANCE OF RS.1,93,57,051/ - WAS PAID IN CASH BY OBSERVING AS UNDER : 25. THE ABOVE SEIZED MATERIAL IS ALS O AN EVIDENCE TO PROVE THAT THE ASSESSEE HAS ACTUALLY PURCHASED FLAT NO.14 FROM M/S. LAYER EXPORTS P. LTD. FOR A CONSIDERATION OF RS.3,97,07,251 / - OUT OF THE SALE CONSIDERATION, RS.2,03,50.2001 - WAS PAID BY CHEQUE AND THE BALANCE OF RS.1,93,57,051/ - WAS PA ID BY CASH. THE ASSESSEE HAS NOT ACCOUNTED THE PAYMENT OF CASH COMPONENT OF RS.1,93,57,051/ - IN HIS BOOKS OF ACCOUNTS AND, HENCE, THE SAME FORMS UNDISCLOSED INCOME BEING UNEXPLAINED INVESTMENT MADE FROM SOURCES NOT DECLARED TO THE DEPARTMENT. THEREFORE, TH E ASSESSING OFFICER HAS RIGHTLY BROUGHT THE SAID AMOUNT OF TAX WHILE COMPLETING THE ASSESSMENT U/S. 153C OF THE ACT. HENCE THE ACTION OF THE ASSESSING OFFICER IS CONFIRMED. AGGRIEVED BY THE SAID ACTION OF THE LD.CIT(A) THE ASSESSEE IS IN SECOND APPEAL B EFORE THIS TRIBUNAL. 5. BEFORE US THE LD.AR SUBMITTED THAT THE ORDER PASSED BY THE AO AND CONFIRMED BY THE FAA WAS WITHOUT JURISDICTION AS NO SATISFACTION HAS BEEN 5 ITA NO. 1169 /MUM/201 6 RECORDED BY THE AO ON THE SEARCHED PERSON BECAUSE THE AO OF THE PERSON SEARCHED HAS T O RECORD THE SATISFACTION U/S 132 OF THE ACT ON THE BASIS OF MATERIAL SEIZED DURING THE SEARCH ACTION AND FORWARD THE SAME TO THE AO OF THE ASSESSEE BEFORE ISSUING THE NOTICE U/S 153 OF THE ACT BUT THE LD. COUNSEL FOR THE ASSESSEE STATED THAT IN THE PRE SENT NO SU CH SATISFACTION WAS RECORDED BEFORE ISSUANCE NOTICE U/S 153C OF THE ACT AND MERELY ON THE BASIS OF INTIMATION OF THE AO OF THE SEARCHED PERSON THE ASSESSEE WAS ISSUED NOTICE U/S 153C OF THE ACT WHICH CONSTITUTE D A SERIOUS LAPSE ON THE PART OF REVENUE AND HENCE CONSEQUENT PROCEEDINGS WERE INVALID AND WITHOUT JURISDICTION AND SHOULD BE QUASHED. THE LD. AR TO FORTIFY THE SUBMISSIONS AND CONTENTIONS HEAVILY RELIED ON THE SERIES OF DECISIONS AS UNDER: A) SMT.JYOTSNA DESAI V/S ACIT AND CHANDRAVADAN DESAI V/S ACIT (IT(SS)A NO.114 AND 115/KOL/2011 AND IT(SS)A NOS. 116 TO 119/KOL/2011; B) ITO V/S SHRI ASHOK MEHTA, L/H OF (L) SMT. VIMLA RATILAL MEHTA IN ITA NO.3361/MUM/2014. IN ADDITION TO THE ABOVE CITATIONS, THE LD.AR POINTED OUT THAT THE SIMILAR ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE IN THE CASE OTHER SIMILARLY PLACED BUYER VI Z SHRI ASHOK MEHTA (LH) OF SMT. VIMLA RATILAL MEHTA IN ITA NO.3361/MUM/2014 VIDE ORDER DATED 9.12.2015 WHEREIN THE TRIBUNAL DELETED THE ADDITION OF RS .6.8 CRORES. FINALLY, THE LD.AR PRAYED BEFORE THE BENCH THAT IN VIEW OF THE ABOVE FACTUAL AND LEGAL ASPECTS, THE ADDITION OF RS. 1,93,57,057/ - SHOULD BE DELETED. 6 ITA NO. 1169 /MUM/201 6 6 . ON THE OTHER HAND, THE LD.DR SUBMITTED THAT THE NOTICE ISSUED U/S 153C OF THE ACT WAS ISS UED ON THE BASIS OF MATERIAL WHICH CAME TO THE POSSESSION OF THE SEARCH PARTY DURING THE COURSE OF SEARCH CONDUCTED AT BHARAT SHAH PREMISES ON 13.3.2008 IN WHICH IT WAS FOUND THAT M/S LAYER EXPORTS PVT LTD HAS SOLD FLAT TO THE ASSESSEE FOR A TOTAL CONSID ERATION OF RS.3,87,14,102/ - OUT OF WHICH RS.2,03,15,200/ - WAS PAID BY ACCOUNT PAYEE CHEQUE AND BALANCE OF RS.1,93,57,051/ - WAS PAID IN CASH AND WAS NOT ACCOUNTED BY THE ASSESSEE AND THEREFORE, THE NOTICE ISSUED BY THE AO U/S 153C WAS VALIDLY ISSUED AND PROCEEDINGS WERE INITIATED ACCORDINGLY. THE LD. DR FINALLY PRAYED THAT THE GROUND TAKEN BY THE ASSESSEE FOR ISSUING NOTICE U/S 153C OF THE ACT SHOULD BE DISMISSED. 7 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL PLACED B EFORE US INCLUDING THE IMPUGNED ORDERS AND CASE LAW. IN THE PRESENT CASE BEFORE US A SEARCH WAS CONDUCTED AT BHARAT SHAH GROUP ON 13.3.2008 AND THE INFORMATION THEREOF WAS RECEIVED BY THE AO FROM THE ACIT CENTRAL CIRCLE VIDE LETTER DATED 21.12.2009 TH AT THE M/S LAYER EXPORTS PVT LTD HAS RECEIVED ON - MONEY OF RS.3,87,14,102/ - OUT OF WHICH RS.1,93,57,051/ - WAS RECEIVED IN CASH AND THE NOTICE WAS ISSUED U/S 153 OF THE ACT ACCORDINGLY ON ON THE BASIS OF SAID LETTER. NOW, THE ISSUE BEFORE US IS WHETHER THE NOTICE U/S 153C OF THE ACT ISSUED TO THE ASSESSEE WAS VALID OR NOT AS THE SAID NOTICE WAS ISSUED WITHOUT RECORDING ANY SATISFACTION BY THE AO OF THE SEARCH ED P ERSON AND ONLY INTIMATION QUA ON 7 ITA NO. 1169 /MUM/201 6 MONEY WAS SENT TO THE AO OF THE ASSESSEE. IT IS THE S ETTLED LEGAL POSITION THAT THE NOTICE ISSUED U/S 153C OF THE ACT WITHOUT RECORDING SATISFACTION IS INVALID AND SO IS THE CONSEQUENT ASSESSMENT BASED THEREON. IN THE CASE OF SMT.JYOTSNA DESAI (SUPRA) AND CHANDRAVADAN DESAI (SUPRA) IT HAS BEEN HELD : 9.3 . WE FIND THAT FROM THE ANNEXURE REFERRED TO BY THE LEARNED AO IN HIS LETTER DATED 4.5.2010 (I.E COPY OF THE SEIZED DOCUMENT FORWARDED BY THE AO OF SECTION IT(SS) A NOS. 114,115/KOL//2011 - A SMT. JYOTSNA DESAI & IT(SS) A NOS.116 - 119/KOL//2011 - A - SH. CHAND RAVADAN 8 DESAI - A - AM 153A PERSON) , THERE IS NO REFERENCE TO CASH PORTION IN 'SH' AS MENTIONED BY THE ASSESSING OFFICER OF SECTION 153A PERSON. THE SAID ANNEXURE IS KEPT IN PAGE 9 OF THE PAPER BOOK OF THE ASSESSEE CONTAINING THE RELEVANT SEIZED DOCUMENT LOOSE PAPER WHICH IS ALSO ENCLOSED AS AN ANNEXURE TO THIS ORDER. WE FIND THAT THIS IS THE ONLY SEIZED DOCUMENT RELIED UPON BY THE LEARNED AO FOR INITIATING PROCEEDINGS U/S 153C OF THE ACT ON THE ASSESSES HEREIN. WE FIND FROM THE SAID SEIZED LOOSE PAPER, THE NOTINGS IN RESPECT OF 'CHQ' ALONE ARE MENTIONED. WE FIND THAT THE TRANSACTIONS REFLECTED AS 'CHQ' HAS BEEN ACCEPTED AS GENUINE BY THE ASSESSING OFFICER OF SECTION 153A PERSON ITSELF AND ONLY THE CASH TRANSACTIONS WERE SUBJECTED TO BE VERIFIED IN THE HANDS OF THE ASSESSES HEREIN, FOR WHICH PURPOSE A LETTER DATED 21.12.2009 TOGETHER WITH THE COPY OF THE RELEVANT SEIZED DOCUMENT LOOSE SHEETS WERE HANDED OVER TO THE LEARNED AO HEREIN. ON VERIFICATION OF THE ENTIRE SEIZED DOCUMENT LOOSE SHEETS WHICH IS IN PAGE 9 OF THE PAPER BOOK, WE FIND THAT THERE IS NO MENTION ABOUT CASH PAYMENTS AT ALL MUCH LESS CASH PAYMENTS OF RS. 8,01,39,192/ - AS ALLEGED BY THE ASSES SING OFFICER OF SECTION 153A PERSON AND HENCE THERE COULD NOT BE ANY SATISFACTION THAT COULD BE REACHED BY HIM IN TERMS OF SECTION 153C OF THE ACT AND HENCE WE AGREE WITH THE ARGUMENTS OF THE LEARNED AR THAT THE INITIATION OF PROCEEDINGS U/S 153C OF THE ACT ON THE ASSESSES HEREIN IN THESE FACTS AND CIRCUMSTANCES ARE NOT WARRANTED AND DESERVES TO BE QUASHED. ADMITTEDLY, THE SAID SEIZED LOOSE SHEETS BELON G TO THE BHARAT SHAH GROUP (I.E THE PARTY SEARCHED U/S 132 OF THE ACT) AND NOT TO THE ASSESSES HEREIN. WE ALSO HOLD THAT ON PERUSAL OF THE SAID CONTENTS OF THE SEIZED LOOSE SHEETS , NO CONCLUSION IN ACCORDANCE WITH LAW COULD BE REACHED THAT IT BELONGS TO T HE PERSON OTHER THAN THE PERSON SEARCHED U/S 132 OF THE ACT. IN THIS REGARD, THE FOLLOWING DECISIONS SUPPORTS THE VIEW OF THE ASSESSEE : - 8 ITA NO. 1169 /MUM/201 6 9.4. IN VIEW OF THE AFORESAID FACTS AND CIRCUMSTANCES AND RESPECTFULLY FOLLOWING THE AFORESA ID DECISIONS , WE HOLD THAT NO SATISFACTION IN TERMS OF SECTION 153C OF THE ACT WERE RECORDED BY THE ASSESSING OFFICER OF THE SEARCHED PERSON U/S 132 OF THE ACT TO REACH TO A CONCLUSION THAT THE CONTENTS IN THE SEIZED DOCUMENTS BELONGS TO THE ASSESSES ( I.E A PERSON OTHER THAN THE SEARCHED PERSON) AND ACCORDINGLY, WE HOLD THAT THE SEARCH ASSESSMENTS FRAMED U/S 153C READ WITH IT(SS) A NOS. 114,115/KOL//2011 - A SMT. JYOTSNA DESAI & IT(SS) A NOS.116 - 119/KOL //2011 - A - SH. CHANDRAVADAN 13 DESAI - A - AM SECTION 143(3) OF THE ACT ON THE ASSESSES HEREIN ARE DECLARED ILLEGAL AND VOID ABINITIO. SINCE THE APPEALS OF THE ASSESSEE ARE ALLOWED ON ASSUMPTION OF JURISDIC TION , WE REFRAIN TO GIVE OUR FINDINGS ON THE MERITS OF THE ISSUE. 10. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED. IN THE CASE OF SHRI ASHOK MEHTA (SUPRA) THE MUMBAI BENCH OF TRIBUNAL HAS HELD AS UNDER: 5. WE HAVE HEARD THE RIVAL CONTE NTIONS AND PERUSED THE RECORD. WE HAVE GONE THROUGH THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE AND NOTICE THAT THE FIRST APPELLATE AUTHORITY HAS MADE DETAILED DISCUSSION ON THIS ISSUE AND HENCE, FOR THE SAKE OF CONVENIENCE, WE EXTRACT THE SAME BELOW: - 2.4.24 GROUND NO.1 AND 3 TO 8 ARE IN RESPECT OF ADDITION MADE BY THE AO U/S 69 OF THE IT ACT TOWARDS ALLEGED CASH PAYMENTS FOR PURCHASE OF A FLAT JOINTLY WITH HER SON SHRI ASHOK MEHTA. LD. AO MADE THE ADDITION ON THE BASIS OF THE LOOSE PAPERS SERIALLY NUMBERED AS ANNEXURE A - 1/15 SEIZED FROM THE PREMISES OF PRIME DOWN TOWN DURING THE COURSE OF SEARCH U/S 132 OF THE IT ACT ON 15.3.2008. THE LOOSE PAPER IN QUESTION WAS SUPPOSEDLY THE RECORD RELATING TO ACTUAL SALE TRANSACTIONS IN LEGEND PROJECT PRO MOTED BY LAYER EXPORTS PVT. LTD. AS PER THE LD. AO. THE FOLLOWING FACTS EMERGE ON THE BASIS OF ANALYSIS OF THE SEIZED DOCUMENTS: - ..................................... 6. WE NOTICE THAT THE LD CIT(A) HAS MADE COMPREHENSIVE ANALYSIS OF THE FACTS PREVA ILING IN THE INSTANT CASE AND ALSO 9 ITA NO. 1169 /MUM/201 6 APPRECIATED THE VARIOUS JUDICIAL PRONOUNCEMENTS ON THE IMPUGNED ISSUE AND ACCORDINGLY TAKEN THE DECISION BY APPLYING THE CASE LAW ON THE FACTS OF THE INSTANT CASE. WE HAVE NOTICED THAT THE BASIS FOR MAKING THE IMPUGNED A DDITION IS THE LOOSE SHEET FOUND DURING THE COURSE OF SEARCH CONDUCTED IN THE BHARAT SHAH GROUP. A VERY IMPORTANT POINT IS THAT THE SAID LOOSE PAPER DOES NOT CONTAIN THE NAME OF THE ASSESSEE, IT WAS AN UNDATED DOCUMENT AND DOES NOT BEAR SIGNATURE OF ANYON E. ANOTHER IMPORTANT POINT IS THAT BOTH THE PURCHASER AS WELL AS SELLER HAS DENIED THE CONTENTS OF THE SAID DOCUMENT. WE NOTICE THAT THE ASSESSING OFFICER HAS TRIED TO DECIPHER THE INFORMATION FOUND IN THE SAID DOCUMENT BY INTERPRETING THAT SH REPRESE NTS CASH PAYMENT AND Q REPRESENTS CHEQUE PAYMENT. WE NOTICE THAT THE ASSESSING OFFICER HAS NOT BROUGHT ANY MATERIAL ON RECORD TO CORROBORATE HIS INTERPRETATION. A PERUSAL OF THE DOCUMENT WOULD SHOW THAT THE LETTER WRITTEN AFTER 45 LOOKS LIKE C AND HE NCE IT IS CAPABLE TO DIFFERENT INTERPRETATION ALSO AS AGAINST THE INTERPRETATION GIVEN BY THE AO AS LAKHS. THE ASSESSING OFFICER HAS ONLY TRIED TO CORROBORATE HIS INTERPRETATION BY COMPARING THE AGGREGATE AMOUNT NOTED IN THE LOOSE SHEET WITH THE STAMP D UTY VALUATION. HOWEVER, AS POINTED OUT BY THE ASSESSEE, THE ALLEGED CASH PAYMENT TOGETHER WITH THE PURCHASE VALUE DECLARED BY THE ASSESSEE FAR EXCEEDS THE STAMP DUTY VALUATION AND HENCE SUCH KIND OF CORROBORATION IS NOT ACCEPTABLE. EVEN OTHERWISE, THE ST AMP DUTY VALUATION STATED TO BE ADOPTED BY SEC 50C IS ONLY A LEGAL FICTION APPLICABLE TO A SELLER OF PROPERTY AND IT DOES NOT AUTOMATICALLY SUPPORT THE CONCLUSION THAT THE DIFFERENCE BETWEEN THE STAMP DUTY VALUATION AND THE ACTUAL SALE CONSIDERATION AS PAS SED HANDS. THOUGH THE AO HAS INTERPRETED THAT THE CHEQUE PAYMENT MADE BY THE ASSESSEE WAS RS.2.85 CRORES, THE SAID INTERPRETATION HAS BEEN PROVED TO BE WRONG BY THE CO - OWNERS, SINCE THEY HAVE ACTUALLY PAID A SUM OF RS.3.85 CRORES BY WAY OF CHEQUE. FURT HER, THE ASSESSEE HAS STATED THAT THE PAYMENTS HAVE BEEN MADE IN 2004, 2010 AND 2011, WHICH FACT ALSO DOES NOT SUPPORT THE INTERPRETATION GIVEN BY THE ASSESSING OFFICER. UNDER THESE SET OF FACTS, WE ARE OF THE VIEW THAT THE LD CIT(A) WAS JUSTIFIED IN OB SERVING THAT THE ASSESSING OFFICER HAS MADE THE IMPUGNED ADDITION ON SURMISES AND CONJECTURES. THE DECISION RENDERED BY HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF LATA MANGESHKAR (97 ITR 696) SUPPORTS THE CASE OF THE ASSESSEE. ACCORDINGLY, WE ARE OF THE VIEW THAT THE LD CIT(A) HAS PASSED A REASONED ORDER BASED ON VARIOUS JUDICIAL PRONOUNCEMENTS AND THE SAME DOES NOT CALL FOR ANY INTERFERENCE. 8 . IN VIEW OF THE RATIO LAID DOWN IN THE ABOVE DECISIONS BY THE CO - ORDINATE BENCH OF THE TRIBUNAL, WE HEREBY HOLD THAT THE PROCEEDINGS U/S 10 ITA NO. 1169 /MUM/201 6 153C TAKEN BY THE AO IN ABSENCE OF ANY SATISFACTION RECORDED BY THE AO OF THE SEARCHED PERSON U/S 132 OF THE ACT WERE ILLEGAL AND VOID AB - INITIO AND SO IS THE ORDER PASSED BY THE AO CONSEQUENT TO SUCH PROCEEDINGS. ACCORDINGLY, GROUND TAKEN BY THE ASSESSEE IS ALLOWED ON LEGAL ISSUE WITHOUT GOING INTO THE MERIT OF THE CASE . 9 . SINCE, WE HAVE ALREADY DECIDED THE ISSUE ON TECHNICAL GROUND IN FAVOUR OF THE ASSESSEE , THE OTHER GROUND S RAISED BY THE ASSESSEE REQUIRES NO ADJUDICATION. 10 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14TH JUNE , 2017. SD SD ( MAHAVIR SINGH ) (RAJESH KUMAR) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 14. 6 .2017 SRL,SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APP ELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, TRUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI