ACIT, New Delhi V. M/s S.S. Con-Build Pvt. Ltd., New Delhi

ITA 1986/DEL/2016

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6895 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 11-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SATPAL GULATI
• Assessee Lawyers: B K DHINGRA
• Keywords: Unexplained cash credit; Additional evidence; Assessment record
• Section: 143(3); 142(1); 153A; 133(6); 143(2); 153; 131; 68; 27; 132; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI A BENCH: NEW DELHI (THROUGH VIDEO CONFERENCING ) BEFORE SHRI G.S. PANNU, VICE PRESIDENT AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.1986/DEL/2016 ASSESSMENT YEAR : 2007-08 ACIT, CENTRAL CIRCLE-14, ROOM NO.354, E-2, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI. VS S.S.CON - BUILD PVT.LTD., FLAT NO.4, R.R. APARTMENT, 3-4, MANGOLPURI, MEHRAULI, NEW DELHI-110030. PAN-AAJCS7477F APPELLANT RESPONDENT APPELLANT BY SH. SATPAL GULATI, CIT DR RESPONDENT BY SH. B.K.DHINGRA, ADV. DATE OF HEARING 31.03.2021 DATE OF PRONOUNCEMENT 08 .04.2021 ORDER PER KUL BHARAT, JM : THIS APPEAL FILED BY THE REVENUE FOR THE ASSESSMENT YE AR 2007-08 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XXVI, NEW DELHI DATED 07.01.2016. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD.CIT(A) HAS ERRED IN LAW IN HOLDING THAT THE AO COULD NOT HAVE PROCEEDED TO FRAME ASSESSMENT U/S 153A OF THE ACT A S NO INCRIMINATING DOCUMENTS/ASSETS WERE FOUND DURING THE SEARCH WITHOUT APPRECIATING THAT THE PROVISION OF SECTION 1 53A OF THE ACT DOES NOT STIPULATES ANY SUCH CONDITIONALITY. 2. THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELETI NG THE ADDITION OF RS.33,91,35,982/- MADE BY AO ON ACCOUNT OF UNEXPLAINED CREDIT U/S 68 OF THE ACT. ITA NO.-1986/DEL/2016 2 3. THE CIT(A), BEING A FACT FINDING AUTHORITY, HAS ERR ED IN FACTS AND IN LAW IN ALLOWING THE APPEAL OF THE ASSESSEE WIT HOUT INDEPENDENTLY VERIFYING THE FACTS OF THE CASE, AS MA NDATED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS JANSAMP ARK ADVERTISING (375 ITR 373). 2. FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT A SEARCH OPERATION WAS CARRIED OUT ON 20.10.2008. SUBSEQUENTLY, NOTICE U/S 153A OF THE INCOME TAX ACT, 1961 (THE ACT) WAS ISSUED ON 13.11.200 9 CALLING UPON THE ASSESSEE TO FILE RETURN OF INCOME. IN RESPONSE THERE TO, THE ASSESSEE FILED ITS RETURN OF INCOME ON 29.12.2009 DECLARING INCOME OF R S.8,490/-. FURTHER, NOTICE U/S 142(1) & 143(2) OF THE ACT WAS ISSUED TO THE ASSESSEE. IN RESPONSE THERETO, LD. AUTHORIZED REPRESE NTATIVE OF THE ASSESSEE ATTENDED THE PROCEEDINGS. THE ASSESSING OFFICER WHILE FRAMING THE ASSESSMENT, OBSERVED THAT THE ASSESSEE HAD CLAIMED TO HAVE RECEIVED ADVANCE FROM CUSTOMERS AGAINST BOOKING OF SHOPS/SPACE IN THE LOCAL SHOPPING CENTRE CAPITAL CITY MALL AT PASCHIM VIHAR, NEW D ELHI. THE AMOUNT OF FRESH ADVANCE RECEIVED DURING THE YEAR UNDER CONSIDERATION WAS RS.39,62,35,982/-. THEREFORE, THE ASSESSING OFFICER ISSUE D QUESTIONNAIRE DATED 20.10.2010, CALLING UPON THE ASSESSEE T O EXPLAIN AND FURNISH THE COMPLETE DETAILS OF THE AMOUNT RECEIVED, INC LUDING THE IDENTITY OF THE PARTY, ITS CAPACITY TO PAY AND GENUINENESS OF THE TRANSACTION. THE ASSESSING OFFICER ALSO ASKED TO PRODUCE THE CREDITORS FOR VERIFICATION ALONGWITH THEIR BANK RECORDS, INCOME TAX REC ORDS AND INCOME TAX RETURNS ETC. IT IS OBSERVED BY THE ASSESSIN G OFFICER THAT EXCEPT IN THE CASE OF M/S THAPAR HOMES LTD., THE CONFIRMA TION WAS NOT FILED. THEREFORE, THE ASSESSING OFFICER TREATING THE AMOUNT OF ITA NO.-1986/DEL/2016 3 RS.33,91,35,982/- AS UNEXPLAINED CREDIT MADE ADDITION U/S 68 OF THE ACT. HENCE, THE ASSESSING OFFICER ASSESSED THE INCOME AT RS.33,91,44,472/- AGAINST THE RETURNED INCOME OF RS.8,490/-. 3. AGGRIEVED AGAINST THIS, THE ASSESSEE PREFERRED APPEA L BEFORE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS, DELETED THE ADDITION. 4. LD.CIT(A) DELETED THE ADDITION ON THE BASIS THAT THE AS SESSING OFFICER COULD NOT HAVE PROCEEDED TO FRAME ADDITION U/S 15 3A OF THE ACT IN RESPECT TO THE YEAR UNDER CONSIDERATION AS NO INCRIM INATING DOCUMENTS/ASSETS WAS FOUND DURING THE COURSE OF SEARCH OPERATION PERTAINING TO THE YEAR UNDER APPEAL. FURTHER, LD.CIT(A) ON MERIT HAVING CONSIDERED THE FACTS PLACED ON RECORD AND THE EVIDENCE S I.E. CONFIRMATIONS BY THE CONCERNED PARTIES, FURNISHED BY THE A SSESSEE AS ADDITIONAL EVIDENCES, DELETED THE ADDITION. 5. AGGRIEVED AGAINST THIS, THE REVENUE IS IN APPEAL BEFOR E THE TRIBUNAL. 6. GROUND NO.1 RAISED BY THE REVENUE IS AGAINST THE DELE TION OF ADDITION ON ACCOUNT OF ABSENCE OF INCRIMINATING DOCUMENTS. 7. LD.CIT DR SUPPORTED THE ASSESSMENT ORDER AND SUBM ITTED THAT LD.CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION. ON CONTR ARY, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING O FFICER HAS NOT MADE ADDITION ON THE BASIS OF ANY INCRIMINATING EVIDENCE GA THERED DURING THE COURSE OF SEARCH. HE RELIED UPON THE ORDER O F LD.CIT(A) AND ITA NO.-1986/DEL/2016 4 ALSO THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA [DEL.] 380 ITR 573. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THROUG H THE ORDERS OF THE AUTHORITIES BELOW. IT IS THE CASE OF THE ASSESSEE THAT THE ASSESSMENT WAS NOT ABATED. THEREFORE, THE ASSESSING OF FICER HAD NO JURISDICTION TO ENTER INTO THE FIELD BEYOND THE MATERIAL GAT HERED DURING THE SEARCH. THE REVENUE HAS NOT REBUTTED THE FACTUM THAT THE ASSESSMENT WAS NOT ABATED. DURING THE COURSE OF HEARIN G, LD. COUNSEL FOR THE ASSESSEE HAS POINTED OUT THE DATE OF FILING OF RETU RN OF INCOME VIS- -VIS THE NOTICE ISSUED U/S 153A OF THE ACT. IT IS WELL-S ETTLED LAW BY THE JUDGEMENT OF JURISDICTIONAL DELHI HIGH COURT IN THE CASE OF K ABUL CHAWLA (SUPRA) THAT QUA THE NON-ABATED YEARS, THE ASSES SMENT IS REQUIRED TO BE MADE ON THE BASIS OF MATERIAL GATHERED D URING THE COURSE OF SEARCH. UNDISPUTEDLY, THE ASSESSING OFFICER HAS NOT CON NECTED THE ADDITIONS MADE WITH THE MATERIAL UNEARTHED DURING THE SEA RCH. THE HONBLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA (SUPRA) HAS HELD AS UNDER:- 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, RE AD WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAI NED IN THE AFOREMENTIONED ITA NOS. 707, 709 AND 713 OF 2014 OF D ECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF TH E ACT, NOTICE UNDER SECTION 153 A (1) WILL HAVE TO BE MANDATORILY IS SUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HA VE TO BE COMPUTED BY THE AOS AS A FRESH EXERCISE. ITA NO.-1986/DEL/2016 5 III. THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RES PECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE S EARCH TAKES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS T HE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WI LL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. IV. ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADD ITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST-SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, I T DOES NOT MEAN THAT THE ASSESSMENT CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ITA NOS. 707, 709 AND 713 OF 2014 OF ASSESSMENT HAS TO BE MAD E UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL. V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLE TED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSM ENT OR REASSESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECTI ON 153 A IS RELATABLE TO ABATED PROCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO COMPLETED ASSE SSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNE D, THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND T HE ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSM ENT SHALL BE MADE SEPARATELY FOR EACH AY ON THE BASIS OF THE FIN DINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE AO. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONL Y ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COU RSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED IN COME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH W ERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN TH E COURSE OF ORIGINAL ASSESSMENT. 9. RESPECTFULLY FOLLOWING THE SAME, WE DO NOT SEE ANY INFIRMITY IN THE ORDER OF LD.CIT(A). THUS, GROUND NO.1 RAISED BY THE REVEN UE IS DISMISSED. 10. GROUND NO.2 RAISED BY THE REVENUE IS AGAINST THE SU STAINING OF ADDITION OF RS.33,91,35,982/-. ITA NO.-1986/DEL/2016 6 11. LD.CIT DR RELIED ON THE ASSESSMENT ORDER. ON THE CO NTRARY, LD. COUNSEL FOR THE ASSESSEE SUPPORTED THE ORDER OF LD.CIT(A). 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT LD.CIT(A) HAS DECIDED TH E ISSUE IN FAVOUR OF THE ASSESSEE BY GIVING THE FINDING ON FACTS AS UNDER:- 19. I HAVE CONSIDERED THE FACTS OF THE CASE, THE BA SIS OF ADDITIONS MADE BY THE AO AND THE ARGUMENTS OF THE AR, THE VERI FICATIONS CARRIED OUT BY THE AO DURING REMAND PROCEEDINGS AND THE REJOINDER OF THE AR ON THE SAME DURING ASSESSMENT AS WELL AS RE -ASSESSMENT PROCEEDINGS. THE FACTS OF THE CASE ARE THAT THE APPE LLANT COMPANY HAD BEEN IN THE PROCESS OF BUILDING LOCAL SHOPPING COM PLEX UNDER THE NAME AND STYLE OF CAPITAL CITY MALL AT PASCHIM VIHAR A ND IN THE PROCESS, HAD RECEIVED FUNDS FROM VARIOUS ENTITIES ON ACCOUNT OF SALE OF SPACE/FLOORS. THE ASSESSEE COMPANY HAD RECEIVED AN AMOUNT OF RS 63,31,50,982 DURING FY 06-07 FROM THE FOLLOWING PARTIES:- SI. NO. NAME OF THE PARTY AMOUNT (RS.) 1 . ANU LNFOTECH PRIVATE LTD. 24,00,000/- 2. AARUSHI ENTERPRISES (P) LTD. 26,00,000/- 3. SH. GAURAV DUGGAL 1,05,00,000/- 4. MARE SOFTWARE DEVELOPMENT (P) LTD. 47,00,000/- 5. CAPITAL EQUIPMENT CO. (P) LTD. 53,00,000/- 6. RANKUR PROMOTERS (P) LTD 15,00,000/- 7. REALTECH INFRASTRUCTURE LTD. (UNDER TWO SEPARATE ACCOUNTS) 40,99,20,000/- (10,31,00,000/-+30,68,20,000/-) 8. KASHYAP COMMERCIAL (P) LTD. 8,40,00,000/- 9. SACHDEVA BUILD CON (P) LTD. 4,63,65,000/- 10. SH. B N CHANDOK 1,25,00,000/- 11. THAPAR HOMES LIMITED 5,33,65,982/- TOTAL 63,31,50,982/- ITA NO.-1986/DEL/2016 7 20. THE AO, DURING THE REMAND PROCEEDINGS HAD ISSUED NOTICES U/S 131 FOR PERSONAL ATTENDANCE OF THE ENTITIES CONCE RNED WHICH COULD ONLY BE COMPLIED WITH BY TWO MAJOR ENTITIES NAMEL Y REALTECH INFRASTRUCTURE LTD AND M/S THAPAR HOMES LTD. FURTHE R NOTICES U/S 133(6) HAD BEEN ISSUED BY THE AO WHEREIN THE FOLLOWING INFORMATION HAD BEEN SOUGHT TO VERIFY THE TRANSACTION:- TO THE PRINCIPAL OFFICER, M/S REALTECH INFRASTRUCTURE LTD C/O RAJEEV BAHL, DIRECTOR B-8,1ST FLOOR, PANCHSHEEL ENCLAVE, NEW DELHI-17. SUB:- INFORMATION REQUIRED UNDER SECTION 133F61 OF T HE INCOME TAX ACT. 1961 FOR THE PERIOD FROM 01.04.06 TO 31.03.07 RELEVA NT TO A.Y. 2007-08 IN THE CASE OF M/S S.S. CON BUILD PVT LTD (PAN: AAICS7477F1). MY ASSESSEE M/S S.S. CON BUILD PVT LTD (PAN: AAICS7477F) HAS ENTERED INTO BUSINESS TRANSACTIONS WITH YOU DURING T HE PERIOD 01.04.2006 TO 31.03.2007. IN THIS CONNECTION, YOU ARE REQ UIRED TO FURNISH THE FOLLOWING INFORMATIONS:- COMPLETE COPY OF ACCOUNT FOR THE PERIOD FROM 01.04.2006 TO 31.03.2007 RELEVANT TO A.Y.2007-08 OF THE ASSESSEE AS APPEARING IN YOUR BOOKS OF ACCOUNTS. PLEASE PROVIDE DETAILS AS TO HOW YOU RELATED TO THE DIRECTORS OF M/S S.S. CON BUILD P LTD THE INFORMATION IS BEING CALLED U/S 133(6) OF THE ACT. YOU ARE REQUESTED TO FURNISH THE SAID INFORMATION BY 06.08.20 13. I MAY ALSO DRAW YOUR ATTENTION TO THE PROVISIONS OF SECTION 27 2A(2), WHICH PROVIDES FOR PENALTY @ RS 100/- PER DAY FOR NON-COMPL IANCE OF THE PROVISIONS OF THIS NOTICE. 21. THE VERIFICATIONS CARRIED OUT U/S 133(6) WERE C OMPLIED BY ALL THE PARTIES CONFIRMING THE TRANSACTIONS AS CLAIMED B Y THE APPELLANT ITA NO.-1986/DEL/2016 8 AND REFLECTED IN ITS BOOKS OF ACCOUNT. IT IS SEEN THAT THE AMOUNTS RECEIVED FROM M/S REALTECH INFRASTRUCTURE. LTD. AND THAPAR HOMES LTD. HAD BEEN DULY CONFIRMED BY THE SAID PARTIES U/S 131 PROCEEDINGS. IT IS ALSO IMPORTANT TO APPRECIATE THAT VA RIOUS AMOUNTS RECEIVED BY THESE TWO ENTITIES ON BEHALF OF THE APPE LLANT ON ACCOUNT OF PROPOSED SALE OF SHOP/SPACES HAD BEEN ACCORDINGLY RECORDED IN THE BOOKS OF ACCOUNT. THE ASSESSMENT OF M/S REALTECH INFRASTRUCTURE LTD. AND THAPAR HOMES LTD. FOR THE YEAR UNDER CONSIDE RATION HAD ALSO BEEN FRAMED U/S 143(3) AND NO ADVERSE VIEW HAS B EEN TAKEN IN THE SAID CASES WITH REGARD TO THE THEIR SOURCES/INVE STMENTS. IT MEANS THAT AMOUNT SHOW RECEIVED BY THE APPELLANT AND SUBJECTED TO EXAMINATION BY THE AO U/S 68 HAVE PASSED THE TEST O F CREDITWORTHINESS AS WELL AS GENUINENESS . THE APPELLAN T, IN THE PROCESS HAD ALSO FILED ALLOTMENT LETTERS IN RESPECT OF ALL PARTIES TO WHOM COMMERCIAL SPACE HAD BEEN SOLD IN LIEU OF THE AM OUNTS RECEIVED. 22. FURTHER THE OBSERVATION OF THE AO IN THE REMAND REPORT AND REJOINDER OF THE AR ON THE SAME WITH REFERENCE TO TH E FOLLOWING PARTIES IS EXAMINED HEREUNDER: 1. CAPITAL EQUIPMENT COMPANY P.LTD:- THE AO HAS OBSERVED THAT ACCOUNT STATEMENT WERE NOT LEGIBLE BUT THE PERUSAL OF THE SAME SHOWS THAT THE OBSERVATION IS FA CTUALLY WRONG. THE ENTRIES IN THE BANK STATEMENT ARE CLEARLY LE GIBLE AND CONFIRMATION SUBMITTED U/S 133(6) IS ALSO IN PLACE. IN THE CIRCUMSTANCES THERE COULD NOT BE ANYTHING TO DOUBT T HE IMPUGNED ADVANCE RECEIVED. 2. REALTECH INFRASTRUCTURE LTD. _ THE AO HAD RAISED THE ISSUE THAT BANK ACCOUNT STATEMENT WAS NOT AVAILABLE FOR CERTAIN SPECIFIC ENTRIES. THE ISSUE RAISED IS EXAMINE D AND IT IS SEEN THAT AMOUNT OF RS. 2.5 CRORE HAD BEEN PAID BY TH APAR HOMES LTD TO DDA ON BEHALF OF REALTECH INFRASTRUCTU RE LTD. AND FOR THIS REASON WAS NOT SEEN IN THE BANK STATEM ENT OF ITA NO.-1986/DEL/2016 9 REATECH INFRASTRUCTURE LTD. THIS ASPECT HAD ALSO BEE N CONFIRMED BY THAPAR HOME LTD. IT IS ALSO SEEN THAT JO URNAL ENTRIES HAD ALSO BEEN PASSED IN THE BOOKS OF THAPAR HOMES LTD. AS WELL AS REALTECH INFRASTRUCTURE LTD. TO GIVE EF FECT TO THE SAME TRANSACTION. IT IS QUITE APPARENT THAT THE AO DID NOT CONFRONT THIS ISSUE AND HENCE COULD NOT BE CLARIFIED BY THE APPELLANT. FURTHER TWO ENTRIES OF RS. 2 CRORE AND RS. 1,18,20,000 HAD BEEN HIGHLIGHTED BY THE AO ON THE GROU ND THAT SAME WERE NOT FOUND IN THE BANK STATEMENT. I H AVE PERUSED THE BANK STATEMENT, AS HIGHLIGHTED BY THE AP PELLANT IN THE REJOINDER. THE SAID ENTRIES ARE CLEARLY RECOR DED IN THE HDFC BANK ACCOUNT NO. 1342320002417 MAINTAINED WITH DEFENCE COLONY BRANCH. THE AO HAD ALSO RAISED ENTRY OF RS. 4,01,00,000 DATED 6.12.2006 WHICH IS FOUND TO BE REPRESENTATIVE OF FOUR SEPARATE CHEQUES THAT HAD BE EN ISSUED BY ASSOCIATE CONCERN OF REALTECH INFRASTRUCTURE LTD. NAMELY REALTECH CONSTRUCTION P. LTD. THE FOLLOWING CHEQUES HAD BEEN ISSUED BY REALTECH CONSTRUCTION P. LTD. AND RECORDED IN THE BOOKS OF REALTECH INFRASTRUCTURE LTD. ON THE BASIS O F JOURNAL ENTRY, HENCE WERE NOT TO BE FOUND IN THE BANK STATEM ENT OF REALTECH INFRASTRUCUTURE LTD. DATED AMOUNT 18.09.2006 51,00,000 18.09.2006 50,00,000 27.09.2006 20,00,000 29.09.2006 1,00,00,000 TOTAL 2,21,00,000 THE ABOVE SAID AMOUNTS HAVE BEEN RECEIVED IN APPELLA NTS BANK ACCOUNT WITH UTI BANK ON SAME DATES AS DETAILED ABOVE BUT THE JOURNAL ENTRIES HAVE BEEN PASSED IN THE BOOK S OF REALTECH INFRASTRUCTURE LTD. ON 6.12.2006. 3. LASTLY TWO ENTRIES OF RS. 30,00,000 AND 7.5 CRORES D ATED. 31.3.2007/ 5.12.2006 WITH PUNJAB & SINDH BANK HAVE NOT B EEN IN THE BANK STATEMENT SUBMITTED BY REALTECH INFRASTRUCT URE LTD. AS THE ITA NO.-1986/DEL/2016 10 SAID BANK ACCOUNT OF THE REALTECH INFRASTRUCTURE LT D. WITH PUNJAB AND SINDH BANK COULD NOT BE SUPPLIED BY THE BANK AS HIGHLIGHTED BY THE APPELLANT. IT HAS BEEN ATTRIBUTED TO NON AVAILABIL ITY OF THE BANK STATEMENTS PERTAINING TO F.Y. 06-07 BY THE CONCERNED B ANK. BUT HERE IT NEEDS TO BE APPRECIATED THAT THE AMOUNT SHOWN AS ADVANCE STANDS RECORDED IN THE FINANCIAL STATEMENT OF REALTEC H INFRASTRUCTURE LTD. AND HAD BEEN CONFIRMED ACCORDINGLY BEFORE THE A O U/S 131 PROCEEDINGS. THE SAID SOURCES / INVESTMENT OF REALTE CH INFRASTRUCTURE LTD. HAVE ALSO BEEN INDEPENDENTLY EXAM INED BY ITS ASSESSING OFFICER U/S 143(3) AND ACCEPTED WITHOUT MAK ING ANY ADDITION. IN VIEW OF THE ABOVE ANALYSIS THE AMOUNTS C REDITED IN THE BOOKS OF ACCOUNT OF THE APPELLANT AS RECEIVED FROM R EALTECH INFRASTRUCTURE LTD. CANNOT BE SAID TO BE SUFFERING F ROM THE ESSENTIAL PRIOR REQUISITES AS STIPULATED U/S 68. 4. B.N CHANDOK:- THE AO HAS HIGHLIGHTED THAT BANK STA TEMENT WAS NOT FILED BY B.N CHANDOK TO SUPPORT THE CREDIT OF RS. 2.2 CRORE. THE PERUSAL OF THE REJOINDER OF THE AR SHOWS THAT TH E AMOUNT OF 2.2 CRORE REPRESENTS FOLLOWING CHEQUES/ PARTIES : 1. MICROBRAIN SOFTWARE PRIVATE LIMITED 52,50,000 2. CAPITAL EQUIPMENT CO. 52,50,000 3. GAURAV DUGGALFHIS SON IN LAW) 95,00,000 4. HAMILTON TECHNOLOGY INDIA P.LTD. 20,00,000 TOTAL 2,20,00,000 THE CONFIRMATION OF BN CHANDOK CLEARLY SPECIFIED THE AMOUNTS ADVANCE AS DETAILED ABOVE SUPPORTED BY THE BANK STAT EMENTS / FINANCIAL STATEMENTS. THE AO SEEMS TO HAVE MISSED THE EVIDENCE. THE AO HAS ALSO RAISED THE ISSUE OF CERTAIN DISCREPA NCIES IN APPELLANT'S SUBMISSIONS MADE ON DIFFERENT OCCASIONS AS UN DER: WHILE PERUSING THE ASSESSMENT RECORDS/DOCUMENTS SUBMITTED DURING REMAND PROCEEDINGS/APPELLATE PROCEED INGS, IT IS OBSERVED THAT ASSESSEE HAD BEEN SUBMITTING DIFF ERENT DETAILS OF ADVANCES FROM THE CUSTOMERS. ASSESSEE HA S SUBMITTED DIFFERENT NAMES & DIFFERENT AMOUNTS AT VA RIOUS ITA NO.-1986/DEL/2016 11 POINTS OF TIME. THIS RAISES SERIOUS DOUBTS ABOUT THE VERACITY OF THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND VARIOU S OTHER DOCUMENTS SUBMITTED. FEW EXAMPLES ARE NARRATED AS UNDER:- NAMES AS PER AUDITED BALANCE SHEET(RS.) AS PER ASSESSMENT PROCEEDINGS(RS.) DURING REMAND PROCEEDINGS(RS.) (RS.) UNDER SECTION 133(6)(RS.) MR.GAURAVDUGGAL 1000000(SR.NO.4) 10500000 (SR.NO.3- REPLY DT.4.12.2010 TO Q NO. 33 & Q NO.10) 1000000(SR. NO.4) 9500000 CAPITAL EQUIPMENT CO. NAME DOES NOT APPEAR 5250000 (SR. NO. 5- REPLY DT.04.12.2010) NAME DOES NOT APPEAR 5250000 MICROBRAIN SOFTWARE (P) LTD. NAME DOES NOT APPEAR 5250000 (SR. NO. 8- REPLY DT.04.12.2010) NAME DOES NOT APPEAR 5250000 B.N.CHANDOK 22000000 2000000 (SR. NO.8- REPLY DT.4.12.2010) 22000000 2000000 HAMILTON TECHNOLOGIES(P)LTD NAME DOES NOT APPEAR NIL NIL 2000000(FOR THE FIRST TIME NAME INTRODUCE) M/S S.P.D INFOTECH PVT. LTD. 2600000 NIL M/S AARUSHI ENTERPRISES 2600000 M/S J&S MANDEEP CHATWAL 8589250 MR.MANDEEP CHATWAL - 8589250 MR.SUDESH KUMAR GUPTA 4500000 MR. SUDHEER KUMAR GUPTA 4500000 SUNNY AHUJA 5000000 SAVINAAHUJASUMESH AHUJA 5000000 THAPAR HOMES LTD. 5710182 53365982(VIDE LETTER DT. 08.06.2012) IT MAY KINDLY BE NOTED THAT MR.GAURAV DUGGAL HAS SIGNE D THE CONFIRMATION IN THE CASE OF M/S. ANNUALFOTECH PVT.LTD ., M/S. RANKUR PROMOTERS (P) LTD., AND M/S. AARUSHI ENTERPRISES PVT.LTD. CONFIRMATIONS IN CASE OF ALLIED ENGINEERING AND M/S. S ACHDEVA BUILD CON HAVE BEEN FILED AT DAK COUNTER, NOT BY POST. CONFIRMATIONS IN CASE OF CAPITAL EQUIPMENT CO.PVT. LTD .M (53 LAKHS) IS NOT SIGNED BY THE COMPETENT PERSON. ITA NO.-1986/DEL/2016 12 THE ABOVE SAID DISCREPANCIES HAVE ALREADY BEEN RECON CILED IN THE FORGING PARAGRAPHS OF THIS ORDER. IN VIEW OF THE ABOVE DETAILED ANALYSIS OF FACTS AND CIRCUMSTANCES OF THE CASE THE ADDITION MADE BY THE ASSESSING OFFICER TO THE TUNE OF RS.39,91,35,982/- IS DIRECTED TO BE DELETED. 13. THE ABOVE FINDING ON FACTS AS ARRIVED BY LD.CIT(A) IS NOT REBUTTED BY THE REVENUE BY PLACING ANY CONTRARY EVIDENCES. THUS , GROUND NO.2 RAISED BY THE REVENUE IS DISMISSED. 14. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ABOVE DECISION WAS PRONOUNCED ON CONCLUSION OF VIRTUAL HE ARING IN THE PRESENCE OF BOTH THE PARTIES ON 08 TH APRIL, 2021. SD/- SD/- (G.S. PANNU) (KUL BHARAT) VICE PRESIDENT JUDICIAL MEMBER DATE: 08.04.2021 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI