Green Park Estate Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 1743/DEL/2013

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6227 (ITAT-DELHI)
• Duration Of Justice: 8 year(s) 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 08-05-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 26-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIMA
• Assessee Lawyers: AJAY BHAGWANI
• Keywords: Reopening of assessment; Search and seizure; Document seized; Deemed dividend; Tax effect; Documents seized; Reassessment proceedings; Set aside
• Section: 2(22)(e); 37(1); 13; 153C; 147; 131; 148; 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C: NEW DELHI (THROUGH VIDEO CONFERENCING) BEFORE, SHRI R. K. PANDA, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER I.T.A NO.1743/DEL/2013 (ASSESSMENT YEAR 2006-07) GREEN PARK ESTATE PVT. LTD. M-11, MIDDLE CIRCLE, CONNAUGHT CIRCUS, NEW DELHI-110 001 PANAAACG 4040P VS. ASST. CIT, CENTRAL CIRCLE-23, NEW DELHI-110 001 (APPELLANT) (RESPONDENT) APPELLANT BY SH. AJAY BHAGWANI, CA RESPONDENT BY MS. ANIMA, SR. DR DATE OF HEARING 15.06.2021 DATE OF PRONOUNCEMENT 13.09.2021 ORDER PER SUDHANSHU SRIVASTAVA, JM: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST OR DER DATED 18.12.2012 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XXXIII, NEW DELHI {CIT(A)} AND PERTAIN S TO ASSESSMENT YEAR 2006-07. 2 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT 2.0 THE BRIEF FACTS OF THE CASE ARE THAT TH E ASSESSEE IS ONE OF THE GROUP COMPANY OF BPTP LTD. AND IS ENGAGED IN TH E BUSINESS RELATING TO REAL ESTATE. THE RETURN OF INCOME WAS FI LED DECLARING TOTAL INCOME OF RS. 4,70,940/-. ON THE BASIS OF CER TAIN DOCUMENTS SEIZED DURING THE COURSE OF SEARCH AND SEIZURE ACTI ON ON THE BPTP GROUP AND ITS GROUP COMPANIES ON 15.11.2007, THE AS SESSMENT PROCEEDINGS U/S 153A/153C OF THE INCOME TAX ACT, 19 61 (HEREINAFTER CALLED THE ACT) WERE INITIATED. SUBS EQUENTLY, THE ASSESSING OFFICER RECORDED REASONS FOR REOPENING OF ASSESSMENT AND ISSUED NOTICED U/S 148 OF THE ACT. THE ASSESSME NT U/S 147 OF THE ACT WAS MADE AFTER MAKING THE FOLLOWING ADDITIONS AND DISALLOWANCES: I) ON ACCOUNT OF INTEREST ON POST DATED CHEQUES (PDCS) OF RS.26,08,186/- II) ON ACCOUNT OF DISALLOWANCE U/S 37(1) OF THE ACT ON ADDITIONAL PAYMENT OF RS.41,50,000/- TOWARDS PURCHAS E OF LAND. III) ADDITION ON ACCOUNT OF DEEMED DIVIDEND U/S 2(22)(E) OF RS.4,54,171/-. 3 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT 2.1 AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BE FORE THE LD. FIRST APPELLATE AUTHORITY, WHO WAS PLEASED TO PAR TLY DELETE THE ADDITION ON ACCOUNT OF INTEREST ON POST DATED CHEQU ES AMOUNTING TO RS.24,12,406/-. THE LD. CIT(A) ALSO PARTLY DELET ED THE DISALLOWANCE MADE U/S 37(1) OF THE ACT ON ADDITIONAL PAYMENT OF RS.40,50,000/. THE ASSESSEE ALSO GOT RELIEF WITH RES PECT TO ADDITION ON ACCOUNT OF DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT AMOUNTING TO RS.4,54,171/. HOWEVER, THE LD. CIT(A) UPHELD THE INITIATION OF RE-ASSESSMENT PROCEEDINGS. THUS, IN E FFECT THE LD. CIT(A) CONFIRMED THE ADDITION ON ACCOUNT OF POST DA TED CHEQUES AMOUNTING TO RS.1,95,780/- AND ALSO THE DISALLOWANCE U/S 37(1) OF THE ACT ON ADDITIONAL PAYMENT OF RS.1,00,000/-. 2.2 AGGRIEVED, THE ASSESSEE IS NOW BEFORE THIS TRIB UNAL CHALLENGING THE UPHOLDING OF THE AFORESAID ADDITION S BY THE LD. CIT(A) BY RAISING THE FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN REJECTING APPELLANT'S CONTE NTION THAT ASSESSMENT ORDER MADE BY ASSESSING OFFICER WAS BAD IN LAW AND VOID AB-INITIO ON THE GROUND THAT IT OUGHT TO H AVE BEEN 4 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT MADE U/S 153C OF THE INCOME TAX ACT, AND NOT, AS WA S DONE U/S 143(3)/147 OF THE INCOME TAX ACT. 2. THAT WITHOUT PREJUDICE, ON THE FACTS AND CI RCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN UPHOLDING THE ASSUMPTION OF JURISDICTION U/S 147 BY THE ASSESSING OFFICER AND IN MAKING THE ASSESSMENT IN PURSUANCE THEREOF, WITHOUT DEALING WITH APPELLANT'S OBJECTIONS ON MERITS. 2.1 THAT THE CIT(A) HAVING GIVEN A FINDING THAT NO SEIZED MATERIAL OBTAINED FROM THE SEARCH OF BPTP GROUP OF CASES (NO SEARCH HAVING BEEN MADE ON THE APPELLANT) BELONGED TO THE APPELLANT, CLEARLY ERRED IN YET UPHOLDING THE ACTIO N U/S 147 TAKEN IN THE HANDS OF THE APPELLANT BASED ON SUCH S EIZED MATERIAL. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN HOLDING TO QUOTE, 'THAT SEI ZED DOCUMENTS DEFINITELY PROVES THAT INTEREST IS PAID O N PDC' DESPITE- I. THAT THE SEIZED RECORD ON THE BASIS OF WHICH ABOVE FINDING WAS GIVEN, EVEN ACCORDING TO HIS OWN FINDIN G BY THE CIT(A), DID NOT BELONG TO THE APPELLANT AND, II. THAT NO ENQUIRIES WERE MADE FROM ANY OF THE ALLEGED RECIPIENTS OF THE INTEREST AND NONE WAS CONFRONTED WITH RELEVANT DOCUMENT(S). 3.1 THAT THE FINDING OF THE CIT(A) IS BASED ON MERE SURMISES AND CONJECTURES WITHOUT PROOF AND CORROBORATION BY INDEPENDENT EVIDENCE. 5 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT 3.2 THAT WITHOUT PREJUDICE THE CIT(A) ERRED I N UPHOLDING THE ADDITION OF INTEREST FOR THE PERIOD FOR WHICH P DC'S WERE EXTENDED. 3.3 THAT WITHOUT PREJUDICE THE CIT(A) ERRED IN NOT QUANTIFYING THE ADDITION AND INSTEAD GIVING AMBIGUO US DIRECTIONS TO COMPUTE THE INTEREST AFTER SIX MONTHS FROM THE DATE OF SALE. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN NOT ACCEPTING THE APPELLANT 'S CONTENTION THAT ADDITIONAL PAYMENTS HAVING NOT BEEN CLAIMED AS DEDUCTION BY APPELLANT, NO DISALLOWANCE COULD HAVE BEEN MADE IN THE HANDS OF THE APPELLANT. 4.1 THAT WITHOUT PREJUDICE THE CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE OF ADDITIONAL PAYMENTS MADE TO THE REC IPIENTS WHO WERE NOT THE OWNERS OF LAND AND TO THE PAYMENT MADE IN CASH. 4.2 THAT WITHOUT PREJUDICE THE CIT(A) ERRED I N NOT HIMSELF QUANTIFYING THE ADDITION TO BE MADE. 4.3 THAT WITHOUT PREJUDICE THE CIT(A) DID NOT DEAL WITH THE FOLLOWING SPECIFIC GROUND NO.4.1:- '4.1. THAT LEARNED ASSESSING OFFICER HAS ERRED IN M AKING AN ADDITION OF RS.41,50,000/- ON ACCOUNT OF ADDITIO NAL PAYMENTS AS RECORDED IN BOOKS OF ACCOUNT OF APPELLA NT COMPANY AS AGAINST AMOUNT OF RS.40,00,000/- PAID ON ACCOUNT OF ADDITIONAL PAYMENT AND RECORDED IN BOOKS OF ACCOUNT' 6 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT 5. THAT THE ORDERS PASSED BY THE ASSESSING OFFICER AND COMMISSIONER OF INCOME TAX (APPEALS)-XXXIII, NEW DE LHI ARE BAD IN LAW AND VOID AB-INITIO. 6. THE APPELLANT CRAVES PERMISSION TO ADD, AMEND, ALTER OR VARY ALL OR ANY GROUNDS OF APPEAL ON OR BEFORE T HE DATE OF HEARING OF THE APPEAL. 3.0 WE ALSO NOTE THAT THE CROSS APPEAL FILED BY TH E DEPARTMENT AGAINST THE RELIEF ALLOWED BY THE LD. CI T(A) WAS DISMISSED BY THIS TRIBUNAL DUE TO LOW TAX EFFECT IN ITA NO.1531/DEL/2013 VIDE ORDER DATED 14.10.2019 AND, T HEREFORE, FOR THE CAPTIONED ASSESSMENT YEAR ONLY THE PRESENT APPE AL IS SURVIVING. 4.0 AT THE OUTSET, THE LD. AUTHORIZED REPRESENTATI VE (AR) SUBMITTED THAT GROUND NO.1 OF THE APPEAL WAS NOT BEI NG PRESSED. ACCORDINGLY, THIS GROUND IS DISMISSED AS NOT BEING PRESSED. 4.1 ARGUING FOR GROUND NO.2 AGAINST ASSUMPTION OF JURISDICTION U/S 147 OF THE ACT, THE LD. AR DREW OU R ATTENTION TO COPY OF THE REASONS RECORDED U/S 147 OF THE ACT AND PLACED IN THE PAPER BOOK. THE REASONS RECORDED, FOR THE SAKE OF C ONVENIENCE, ARE BEING REPRODUCED HEREIN UNDER: 7 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT REASON RECORDED, COPY PLACED AT PAGE NO.50 OF PAPER BOOK, IN PARA 1 AND 2 ARE REPRODUCED FOR SAKE OF CONVENIENCE AS UNDER: RETURN DECLARING AN INCOME OF RS.4,79,940/- WAS FIL ED ON 20.11.2006. THE CASE WAS PROCESSED U/S 143(1). 1. A SEARCH AND SEIZURE ACTION WAS CONDUCTED ON BPTP A ND ITS GROUP COMPANIES ON 15.11.2007. CERTAIN DOCUMENT S SEIZED IN THE SEARCH ACTION (DETAILS ENCLOSED AS PER ANNEX URE-A) ON THE GROUP AND THE POST-SEARCH ENQUIRIES MADE REVEAL ED THAT THE GROUP WAS FOLLOWING A BUSINESS MODEL AS A PART OF WHICH ONLY PART PAYMENTS OF THE SALE CONSIDERATION IN RES PECT OF THE LAND PURCHASED WERE PAID AT THE TIME OF EXECUTION O F THE SALE- DEED AND THE PAYMENT OF BALANCE SALE CONSIDERATION WAS INVARIABLY MADE THROUGH POST DATEDCHEQUES (PDCS) AN D FOR THE INTERVENING PERIOD I.E. PERIOD BETWEEN THE DATE OF SALE-DEED AND THE DATE OF ENCASHMENT OF PDCS INTEREST WAS PAI D IN CASH TO THE VENDORS OF THE LAND BY THE VENDEE COMPANY ON MONTHLY BASIS @ 1.25% P.M. ON THE AMOUNT OF PDCS. DURING THE COURSE OF POST SEARCH ENQUIRIES, IT WAS ALSO NOTICED THAT THE SAID PAYMENT OF INTEREST BY THE VENDEE COMPANY IN CASH H AS NOT BEEN ACCOUNTED FOR BY IT IN ITS BOOKS OF ACCOUNT. T HE ASSESSEE COMPANY HAS ALSO PURCHASED A LARGE CHUNK OF LAND AN D FOLLOWED THE SAME MODUS OPERANDI OF MAKING PAYMENT THROUGH PDCS AND HAS MADE PAYMENT OF INTEREST OF RS . 25,24,110/- IN CASH OUT OF BOOKS OF ACCOUNT. THE IN COME OF THE ASSESSEE TO THE TUNE OF RS.25,24,110/- ON ACCOUNT O F INTEREST PAID IN CASH OUT OF THE BOOKS OF ACCOUNT HAS, THUS, ESCAPED ASSESSMENT.' 2. DURING THE COURSE OF SEARCH ON BPTP AND ITS GROUP COMPANIES A DOCUMENT WAS FOUND AND SEIZED (PAGES 1 TO 11 OF ANNEXURE-A-1 OF PARTY BO-I) FROM THE PREMISES 5TH& 6 TH FLOOR, 8 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT DCM BUILDING, BARAKHARNBA ROAD, NEW DELHI WHICH REV EALED THAT THE ASSESSEE COMPANY HAD MADE ADDITIONAL PAYME NTS 'AGGREGATING TO RS1,50,000A AGAINST THE PURCHASE OF LAND TO VARIOUS LAND OWNER'S. 'THE POST-SEARCH INVESTIGATIO NS / ENQUIRIES WERE ALSO MADE TO VERIFY THE GENUINENESS OF THE ADDITIONAL PAYMENTS ACTUALLY HAVING BEEN MADE AND SUMMONS U/S 131 WERE ISSUED TO SEVERAL FARMERS FROM WHOM THE LAND WAS ACQUIRED. THE ENQUIRIES MADE REVEALED THAT THE ADDITIONAL PAYMENTS MADE 'WERE NOT GENUINE. MOREOVE R, THE ADDITIONAL PAYMENTS WERE MADE IN VIOLATION OF THE S ECTION 24 OF THE STAMP DUTY ACT AND AS SUCH THE SAME ARE NOT ADMISSIBLE AS EXPENDITURE AS PER EXPLANATION TO U/S 37 (I) OF THE I.T. ACT. THE INCOME HAS, THUS, BEEN UNDER ASSE SSED TO THE EXTENT OF RS. 1,50,000/- ON ACCOUNT OF ADDITIONAL P AYMENTS AGAINST THE PURCHASE OF LAND. I HAVE, THEREFORE REASONS TO BELIEVE THAT INCOME CH ARGEABLE TO TAX AMOUNTING TO RS.26,74,110/- (RS.25,24,110+RS.1, 50,000) HAS ESCAPED ASSESSMENT WITHIN MEANING OF SECTION 14 7 NOTICE U/S 148 IS ISSUED. 4.2 THE LD. AR SUBMITTED THAT THE ISSUE OF REOPENING OF THE ASSESSMENT PROCEEDINGS WAS FULLY COVERED IN FAVOUR O F THE ASSESSEE BY THE ORDER OF THIS TRIBUNAL IN THE CASE OF ONE OF THE GROUP COMPANIES M/S GREEN VALLEY TOWER PVT. LTD. IN ITA NO.1735/DEL/2013, WHEREIN VIDE ORDER DATED 15.01.202 1, THE REASSESSMENT PROCEEDINGS WERE HELD TO BE BAD WHEREIN IDENTICAL REASONS HAD BEEN RECORDED BY THE SAME ASSESSING OFF ICER (AO) ON 9 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT THE SAME DATE IN THE CASE OF M/S GREEN VALLEY TOWER PVT. LTD.. THE LD. AR DREW OUR ATTENTION TO COPY OF REASONS RECORDE D IN THE CASE OF M/S GREEN VALLEY TOWER PVT. LTD. WHICH WAS PLACED IN THE PAPER BOOK. THE LD. AR ALSO PLACED ON RECORD A COPY OF TH E ORDER OF THIS TRIBUNAL IN THE CASE OF M/S GREEN VALLEY TOWER PVT. LTD. VS. ACIT, NEW DELHI FOR ASSESSMENT YEAR 2006-07 IN ITA NO.1735 /DEL/2014 AS AFORESAID. 4.3 THE LD. AR SUBMITTED THAT NOT ONLY IDENTICAL R EASONS WERE RECORDED BY THE SAME ASSESSING OFFICER IN THE C ASE OF ASSESSEE AS WELL AS IN THE CASE OF M/S GREEN VALLEY TOWER PVT. LTD. FOR THE ASSESSMENT YEAR 2006-07 AND ON THE SAME DAT E ON 29.03.2010, BUT ALSO THE DOCUMENTS ON THE BASIS OF WHICH ACTION U/S 147 OF THE ACT WAS INITIATED WAS THE SAME IN BOTH THE CASES. 4.4 THE LD. AR ALSO SUBMITTED THAT AN IDENTICAL IS SUE HAD COME UP BEFORE THIS TRIBUNAL IN THE CASE OF ANOTHER GROUP COMPANY M/S WESTLAND DEVELOPERS PVT. LTD. IN ITA NO . 1757/DEL/2013 FOR ASSESSMENT YEAR 2006-07 AND THE I SSUE OF REOPENING OF THE ASSESSEE HAD BEEN DECIDED IN FAVOU R OF THE 10 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT ASSESSEE BY THE TRIBUNAL VIDE ORDER DATED 22.11.201 5. A COPY OF THE SAID ORDER WAS ALSO PLACED ON RECORD. 4.5 THE LD. AR SUBMITTED THAT IT WAS EVIDENT THAT THE REASONS RECORDED IN THE CASE OF THE ASSESSEE HAD NO SPECIFIC NEXUS WITH THE ASSESSEE AND, THEREFORE, THERE WAS NO VALID REASON FOR FORMATION OF BELIEF THAT INCOME HAD ESCAPED ASSESSM ENT IN THE HANDS OF THE ASSESSEE AND, THEREFORE, THE ACTION TA KEN U/S 147 OF THE ACT WAS VOID AB-INITIO AND WAS NOT SUSTAINABLE. 4.6 THE LD. AR ALSO SUBMITTED A SYNOPSIS ON THE MERITS OF THE CASE AND SUBMITTED THAT THESE MAY BE CONSIDERED AS THE ARGUMENTS OF THE ASSESSEE IN CASE THE INITIATION OF REASSESSMENT PROCEEDINGS U/S 147 OF THE ACT WERE HELD TO BE JUSTI FIED. THE COPY OF THE SYNOPSIS HAS BEEN TAKEN ON RECORD. 5.0 PER CONTRA, THE LD. SR. DR VEHEMENTLY A RGUED THAT LOTS OF THE SEIZED DOCUMENTS BELONGING TO GROUP COMPANIES W ERE FOUND DURING THE COURSE OF SEARCH WHICH INDICATED PAYMENT OF INTEREST IN CASH OUTSIDE THE BOOKS OF ACCOUNTS IN RESPECT OF PU RCHASE OF LAND AS WELL INDICATED ADDITIONAL PAYMENT MADE IN CASH FO R THE 11 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT PURCHASE OF LAND AND, THEREFORE, THE ASSESSING OFFI CER WAS ABSOLUTELY CORRECT IN INITIATING REASSESSMENT PROCE EDINGS U/S 147/148 OF THE ACT. THE LD. SR. DR SUPPORTED THE OR DERS OF THE LOWER AUTHORITIES ON THE LEGAL ISSUE OF VALIDITY OF REASSESSMENT PROCEEDINGS AS WELL AS ON THE MERITS OF THE CASE. 6.0 WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALSO GONE THROUGH THE RECORDS. WE HAVE ALSO PERUSED THE REASO NS RECORDED IN THE CASE OF GREEN VALLEY TOWER PVT. LTD. FOR ASS ESSMENT YEAR 2006-07 WHICH ARE BEING REPRODUCED HEREIN UNDER FOR A READY REFERENCE: REASONS FOR REOPENING THE CASE U/S 147 READ WITH S ECTION 148 RETURN DECLARING AN INCOME OF RS.4,03,150/- WAS F ILED ON 15.11.2006. THE CASE WAS PROCESSED U/S 143(1). A SEARCH AND SEIZURE ACTION WAS CONDUCTED ON BPTP A ND ITS GROUP COMPANIES ON 15.11.2007. CERTAIN DOCUMENTS SE IZED IN THE SEARCH ACTION (DETAILS ENCLOSED AS PER ANNEXURE -A) ON THE GROUP AND THE POST-SEARCH ENQUIRIES MADE REVEALED T HAT THE GROUP WAS FOLLOWING A BUSINESS MODEL AS A PART OF W HICH ONLY PART PAYMENTS OF THE SALE CONSIDERATION IN RESPECT OF THE LAND PURCHASED WERE PAID AT THE TIME OF EXECUTION OF THE SALE-DEED AND THE PAYMENT OF BALANCE SALE CONSIDERATION WAS I NVARIABLY MADE THROUGH POST DATEDCHEQUES (PDCS) AND FOR THE INTERVENING PERIOD I.E. PERIOD BETWEEN THE DATE OF SALE-DEED 12 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT AND THE DATE OF ENCASHMENT OF PDCS INTEREST WAS PAI D IN CASH TO THE VENDORS OF THE LAND BY THE VENDEE COMPANY ON MONTHLY BASIS @ 1.25% P.M. ON THE AMOUNT OF PDCS. DURING T HE COURSE OF POST SEARCH ENQUIRIES, IT WAS ALSO NOTICED THAT THE SAID PAYMENT OF INTEREST BY THE VENDEE COMPANY IN CASH H AS NOT BEEN ACCOUNTED FOR BY IT IN ITS BOOKS OF ACCOUNT. T HE ASSESSEE COMPANY HAS ALSO PURCHASED A LARGE CHUNK OF LAND AN D FOLLOWED THE SAME MODUS OPERANDI OF MAKING PAYMENT THROUGH PDCS AND HAS MADE PAYMENT OFINTEREST OF RS. 24,78,080/- IN CASH OUT OF BOOKS OF ACCOUNT. THE IN COME OF THE ASSESSEE TO THE TUNE OF RS.24,78,080/- ON ACCOUNT O F INTEREST PAID IN CASH OUT OF THE BOOKS OF ACCOUNT HAS, THUS, ESCAPED ASSESSMENT. 2. DURING THE COURSE OF SEARCH ON BPTP AND ITS GROU P COMPANIES A DOCUMENT WAS FOUND AND SEIZED (PAGES 1 TO 11 OF ANNEXURE-A-1 OF PARTY BO-I) FROM THE PREMISES 5TH & 6TH FLOOR, DCM BUILDING, BARAKHARNBA ROAD, NEW DELHI WHICH REV EALED THAT THE ASSESSEE COMPANY HAD MADE ADDITIONAL PAYME NTS 'AGGREGATING TO RS.9,52,625/- AGAINST THE PURCHASE OF LAND TO VARIOUS LAND OWNER'S. THE POSTSEARCH INVESTIGATIONS / ENQUIRIES WERE ALSO MADE TO VERIFY THE GENUINENESS OF THE ADDITIONAL PAYMENTS ACTUALLY HAVING BEEN MADE END S UMMONS U/S 131 WERE ISSUED TO SEVERAL FARMERS FROM WHOM TH E LAND WAS ACQUIRED. THE ENQUIRIES MADE REVEALED THAT THE ADDITIONAL PAYMENTS MADE WERE NOT GENUINE. MOREOVER, THE ADDIT IONAL PAYMENTS WERE MADE IN VIOLATION OF THE SECTION 24 O F THE STAMP DUTY ACT AND AS SUCH THE SAME ARE NOT ADMISSI BLE AS EXPENDITURE AS PER EXPLANATION TO U/S 37 (I) OF THE I.T. ACT. THE INCOME HAS, THUS, BEEN UNDER ASSESSED TO THE EXTENT OF RE.9,52,625/- ON ACCOUNT OF ADDITIONAL PAYMENTS AGA INST THE PURCHASE OF LAND. 13 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT I HAVE, THEREFORE REASONS TO BELIEVE THAT INCOME CHARGEABLE TO TAX AMOUNTING TO RS.34,30,705/- (RS.24,78,080+RS.9,52,625) HAS ESCAPED ASSESSMENT W ITHIN MEANING OF SECTION 147. NOTICE U/S 148 IS ISSUED. 6.1 A PERUSAL OF THE REASONS RECORDED I N THE CASE OF THE ASSESSEE AS WELL AS IN THE CASE OF M/S GREEN VALLEY TOWER LTD. ARE IDENTICAL ON THE ISSUE OF ALLEGED INTEREST PAID ON POST DATED CHEUQES. WE HAVE ALSO GONE THROUGH THE PAPER BOOK C ONTAINING THE COPIES OF SEIZED DOCUMENTS AND THE SUMMARY OF T HESE SEIZED DOCUMENTS. IT IS THE ASSESSEE CONTENTION THAT THERE WAS NO SEIZED DOCUMENTS WHICH WERE REFERRED TO IN THE ASSESSMENT O RDER WHICH COULD THE SAID TO BE BELONGING TO THE ASSESSEE. THE LD. SR. DR HAS ALSO FAILED TO BRING TO ANYTHING ON RECORD TO ESTAB LISH THAT ANY SEIZED DOCUMENTS WERE FOUND DURING THE COURSE OF SEA RCH BELONGING TO THE ASSESSEE. THERE IS A CLEAR FINDING RECORDED BY THE LD. CIT(A) IN THE IMPUGNED ORDER IN PARA. 4.3 & 4.4 OF HIS ORDER THAT NONE OF THE SEIZED DOCUMENTS BELONGED TO THE A SSESSEE. THE LD. SR. DR WAS UNABLE TO CONTROVERT THIS CATEGORICAL FINDING RECORDED BY THE LD. CIT(A). THUS, UNDISPUTEDLY, IN THE PRESENT CASE, NO DOCUMENTS BELONGING TO THE ASSESSEE WERE F OUND DURING 14 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT THE COURSE OF SEARCH. WE ALSO NOTE THAT THIS ISSUE HAS BEEN DEALT WITH IN DETAIL IN THE CASE OF M/S GREEN VALLEY TOWER PVT. LTD. IN ITA NO.1735/DEL/2013 FOR ASSESSMENT YEAR 2006-07 VI DE ORDER DATED 15.01.2021. THE RELEVANT FINDINGS OF THE CO-O RDINATE BENCH OF THE TRIBUNAL ARE CONTAINED IN PARAGRAPHS 7.3, 7. 4 AND 8 OF THE SAID ORDER AND THE SAME IS BEING REPRODUCED HEREIN UNDER FOR A READY REFERENCE: 7.3 IN OUR CONSIDERED VIEW, EACH AND EVERY ASSESSEE IS A SEPARATE AND DISTINCT ASSESSEE. IT IS A FACT ON R ECORD THAT NO SEIZED MATERIAL BELONGING TO THE ASSESSEE WAS FOUND DURING THE COURSE OF SEARCH ON BPTP LTD. AND SOME OF ITS G ROUP COMPANIES. NONE OF THE VENDORS OF LAND WHO SOLD LAN D TO ASSESSEE WERE CALLED AND EXAMINED BY THE AO. THERE IS NOTHING ADVERSE BROUGHT ON RECORD BY THE AO IN FORM OF ANY MATERIAL OR ANY STATEMENT THAT INTEREST OUTSIDE THE BOOKS WAS PAID IN CASH BY THE ASSESSEE. THE REASONS WERE RECO RDED BY THE AO BY RELYING ON SEIZED DOCUMENTS WHICH BELONGE D TO SOME OTHER ASSESSEE DURING THE COURSE OF SEARCH ON BPTP LTD. AND SOME OF ITS COMPANIES. CONSIDERING THE RULES OF PRECEDENCE AND CONSISTENCY AND IN ABSENCE OF ANY MA TERIAL, DOCUMENT, EVIDENCE OR STATEMENT WHICH COULD IMPLICA TE THE ASSESSEE, IN OUR VIEW, THE IMPUGNED ASSESSMENT COUL D NOT HAVE BEEN REOPENED. IN VIEW OF THESE SPECIFIC FACTS , THE ACTION 15 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT TAKEN BY THE AO OF REOPENING OF THE ASSESSMENT U/S 147 OF ASSESSE IS NOT SUSTAINABLE AND THE SAME IS QUASHED AS BEING VOID AB-INITIO AS BEING BASED ON SEIZED DOCUMENTS O F OTHER ASSESSEE AND BASED ON PRESUMPTIONS, ASSUMPTIONS AND INCORRECT INTERPRETATION OF LAW. 7.4 AS WE HAVE HELD THE RE-ASSESSMENT AS B EING VOID AB- INITIO, THE GROUNDS RAISED BY THE ASSESSEE ON THE M ERITS OF THE ADDITIONS BECOME ACADEMIC IN NATURE AND ARE NOT BEI NG ADJUDICATED UPON. 8.0 IN THE RESULT, ITA 1735/DEL/2013 FILED BY THE ASSESSEE IS ALLOWED.' 6.2 WE ALSO NOTE THAT SIMILAR ISSUE WAS A LSO CONSIDERED BY THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S WESTLAND DEVELOPERS PVT. LTD. VIDE ORDER DATED 22.1 1.2015 IN ITA NO.1757/DEL/2013 FOR ASSESSMENT YEAR 2006-07 WHEREI N AT PARA- 7 OF THE SAID ORDER THE FOLLOWING WAS HELD: 7. NOW ADVERTING TO THE SECOND LIMB OF ASSESSEE S STAND, I.E., WHETHER THE REASONS RECORDED FOR FORMING THE BELIEF OF ESCAPEMENT OF INCOME ON THE BASIS OF MATERIAL SEIZE D ARE JUSTIFIED OR VAGUE TO TAKE RECOURSE OF SECTION 147. IN THIS CONTEXT, ON PERUSAL OF THE ORDERS OF AUTHORITIES BE LOW, WE FIND THAT THE ASSESSEE HAS CATEGORICALLY DENIED THA T ANY OF 16 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT THE SEIZED DOCUMENTS, DISCUSSED IN THE IMPUGNED ORD ER, BELONGED TO THE ASSESSEE. WE ALSO FIND THAT THE ASS ESSMENT ORDER ALSO NOWHERE RECORDS ANY FINDING THAT ANY OF THE DOCUMENTS SEIZED BELONG TO THE ASSESSEE. EVEN THE L D. CIT(A) AT PARA 4.3 HAS CATEGORICALLY STATED THAT TH E ASSESSMENT ORDER NOWHERE MENTIONS THAT ANY PART OF THE SEIZED MATERIAL BELONG TO THE APPELLANT COMPANY. TH E ASSESSEE HAS BEEN DENYING TO HAVE PAID ANY INTEREST ON PDCS. NO COGENT MATERIAL WAS FOUND DURING THE COURS E OF SEARCH WHICH COULD REPEL THIS CONTENTION OF ASSESSE E. THE REASONS HAVE BEEN RECORDED BY THE AO AFTER DRAWING THE INFERENCE FROM THE SEIZED DOCUMENTS THAT TREND OF P AYMENT OF INTEREST ON PDCS BY THE GROUP COMPANIES STOOD DE PICTED AND THE ASSESSEE BEING A GROUP COMPANY OF BPTP LTD. , MIGHT HAVE ALSO PAID INTEREST ON SUCH PDCS. THIS AP PROACH OF THE AUTHORITIES BELOW, TO OUR MIND, IS NOT TENAB LE AT ALL BEING BASED ON FAKE INFERENCES DRAWN. THE ASSESSEE IS A SEPARATE AND DISTINCT ASSESSEE UNDER THE ACT AND IS TO BE ASSESSED ON THE BASIS OF MATERIAL WHICH BELONGS TO IT OR SPECIFICALLY RELEVANT FOR ITS ASSESSMENT. IN THE IN STANT CASE NO SPECIFIC DOCUMENT IS POINTED OUT BELONGING TO TH E ASSESSEE NOR ANY EVIDENCE OR MATERIAL,WHATSOEVER, H AS BEEN DEMONSTRATED BY THE AUTHORITIES BELOW TO SHOW THAT THE ASSESSEE HAD PAID INTEREST ON PDCS. THEREFORE, THERE BEING NO DEFINITE MATERIAL BELONGING TO THE ASSESSE E, IN OUR 17 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT OPINION, THE REASONS RECORDED FOR INITIATION OF PRO CEEDINGS U/S. 147 AGAINST THE ASSESSEE, ARE NOT IN CONSONANC E WITH LAW, HAVING BEEN BASED ON MERE SUPPOSITIONS AND SUR MISES AND EXTRAPOLATION OF MATERIAL SEIZED. THE FACT THAT THE ASSESSEE IS A GROUP COMPANY OF BPTP LTD. AND OVERAL L MANAGEMENT IS CONTROLLED BY ONE PERSON CANNOT BE EQ UATED WITH THE EXISTENCE OF INCRIMINATING MATERIAL BELONG ING TO THE ASSESSEE FOR DRAWING THE ADVERSE INFERENCE. WE, THE REFORE, FIND CONSIDERABLE FORCE IN THE CONTENTION OF THE AS SESSEE THAT ASSESSMENT IS BASED ON ALIEN MATERIAL HAVING N O SPECIFIC NEXUS WITH THE ASSESSEE AND THAT THERE IS NO CORROBORATING AND INDEPENDENT EVIDENCE TO JUSTIFY T HAT THE ASSESSEE HAD PAID INTEREST OF PDCS, AS ALLEGED BY T HE AUTHORITIES BELOW. THE ACTION TAKEN U/S. 147 BY THE AO IS, THEREFORE, VOID AB INITIO AND NOT SUSTAINABLE, HAVI NG BEEN RESORTED TO ON VAGUE REASONS. 8. ONCE, AS OBSERVED ABOVE, WE HAVE HELD THE PROCEEDINGS U/S. 147 AS VOID, WE NEED NOT TO ENTER INTO THE MERITS OF ADDITIONS CHALLENGED BY ASSESSEE BY WAY O F OTHER GROUNDS AND ALSO BY THE REVENUE IN ITS APPEAL. ACCO RDINGLY, THE APPEAL OF THE ASSESSEE IS LIABLE TO BE ALLOWED AND THAT OF REVENUE TO BE DISMISSED. 6.3 IN VIEW OF THE ORDERS OF THE CO-ORDINATE BE NCH OF THIS TRIBUNAL IN THE CASE OF GROUP COMPANIES ON IDENTICA L REASONS 18 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT RECORDED AND ON IDENTICAL FACTS AND AFTER DULY CONS IDERING THE RULES OF CONSISTENCY AND IN ABSENCE OF ANY MATERIAL , DOCUMENTS, EVIDENCE OR STATEMENT WHICH COULD IMPLICATE THE ASSE SSEE, IT IS OUR CONSIDERED VIEW THAT THE IMPUGNED ASSESSMENT COULD N OT HAVE BEEN REOPENED. THEREFORE, ON SPECIFIC FACTS OF THE CASE AND RESPECTFULLY FOLLOWING THE ORDERS OF THE CO-ORDINATE BENCHES AS AFORESAID IN THE CASE OF COMPANIES BELONGING TO THE SAME GROUP AND AFTER DULY GIVING CREDENCE OF THE FACT THAT IDE NTICAL REASONS WERE RECORDED, WE HOLD THAT THE ACTION TAKEN BY THE ASSESSING OFFICER FOR REOPENING OF THE ASSESSMENT U/S 147 OF THE ACT IS NOT SUSTAINABLE AND THE SAME IS HEREBY QUASHED AS BEING BASED ON SEIZED DOCUMENTS OF OTHER ASSESSEES AND BEING ENTIR ELY BASED ON PRESUMPTION AND ASSUMPTIONS AND INCORRECT INTERPRET ATION OF LAW. ACCORDINGLY, WE SET ASIDE THE RE-ASSESSMENT. 6.4 AS WE HAVE HELD THE REASSESSMENT AS BEING VOID AB- INITIO, THE GROUNDS RAISED BY THE ASSESSEE ON MERIT S OF THE CASE ARE NOT BEING CONSIDERED FOR ADJUDICATION AS THEY HAVE BECOME ACADEMIC IN NATURE. 19 ITA NO.1743/DEL/2013 M/S GREEN PARK ESTATE (P) LTD. VS . ACIT 7.0 IN THE FINAL RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED ON 13 TH SEPTEMBER, 2021. SD/- SD/- (R. K. PANDA) (SUDHANSHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:13/09/2021 PK/PS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI