Swapnil Properties (P) Ltd., New Delhi V. ACIT, New Delhi

ITA 2063/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74007 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2006-2007
• Appeal Filed On: 09-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMESH CHANDRA
• Keywords: Loose papers; Document seized; Additional evidence; Documents seized
• Section: 153A; 148; 132; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G: NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI I. C. SUDHIR, JUDICIAL MEMBER ITA NO. 2063/DEL/2013 ASSESSMENT YEAR: 2006-07 SWAPNIL PROPERTIES (P) LTD. VS. ACIT D-20, NDSE PART-II CENTRA L CIRCLE-21 NEW DELHI. N EW DELHI. PAN AAJCS006IR (APPELLANT) (RESP ONDENT) APPELLANT BY : SHRI R.S. SING HVI, ADVOCATE RESPONDENT BY : SHRI RAMESH CHAN DRA, CIT DR ORDER PER I.C. SUDHIR, JUDICIAL MEMBER THE ASSESSEE HAS QUESTIONED FIRST APPELLATE ORDER O N THE FOLLOWING GROUNDS:- 1.(I) THAT ON THE FACTS AND CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING ADDITION OF RS.4,80,97,125/- TOWARDS ALLEGED CASH PAYMENT SAID TO BE MADE BY THE APPELLANT COMPANY TO VARIOUS FARMERS BA SED ON THE SEIZED ANNEXURE FROM SH. SURENDER MODI WHICH DI D NOT BELONG TO THE APPELLANT COMPANY AND COULD NOT BE MA DE BASIS FOR ADDITION U/S 153C OF THE INCOME TAX ACT. (II).THAT THE SEIZED ANNEXURE CONTAINS DETAILS OF P ROPERTY PURCHASE TRANSACTION BY THE THIRD PARTY WITH REFERE NCE TO DRAFT PAYMENT AND STAMP DUTY CHARGES AND THESE FACTS HAVI NG BEEN VERIFIED BY AO AND CIT(A), THE SAID ANNEXURE COULD NOT BE ATTRIBUTED TO THE APPELLANT IN TERMS OF PROVISIONS OF SECTION 153 (C) OR COULD BE BASIS FOR ANY SUCH ADDITION IN THE CASE OF APPELLANT. ITA NO. 2063/DEL/2013 2 (III).THAT HAVING ACCEPTED THE FACT THAT DETAILS IN THE SAID ANNEXURE CONTAIN PROPERTY TRANSACTION BY THIRD PART Y, WHOLE BASIS OF ADDITION IS ILLEGAL, ARBITRARY AND MISCONC EIVED. 2 THAT THE DETAILS OF ALLEGED CASH PAYMENT IN THE S EIZED ANNEXURE IS NEITHER RELATED TO ANY INVESTMENT OR TR ADING ACTIVITIES AND AS SUCH THERE COULD BE NO BASIS TO C ONTEMPLATE ANY ADDITION ON THE BASIS OF SAME IN THE CASE OF AP PELLANT. 3.THAT IMPUGNED ADDITION IS BASED ON PRESUMPTION AN D SURMISES AND WITHOUT PROPER APPLICATION OF MIND AND SAME IS NOT SUSTAINABLE UNDER THE LAW. 2. WE HAVE HEARD AND CONSIDERED THE ARGUMENTS ADVANCED BY THE PARTIES IN VIEW OF ORDERS OF THE AUTHORITIES BELOW AND MATERIAL AVAILABLE ON RECORD, AND THE DECISIONS RELIED UPON. 3. THE FACTS IN BRIEF ARE THAT SEARCH AND SE IZURE OPERATION U/S 132 OF THE ACT WAS CARRIED OUT IN CASE OF SHRI SURENDER MO DI ON 19/6/2009. DURING THE COURSE OF THE SEARCH AT THEIR RESIDENTIAL/BUSIN ESS PREMISES CERTAIN DOCUMENTS BELONGING TO THE ASSESSEE WERE SEIZED AND PROCEEDINGS U/S 153 C READ WITH SECTION 153 A OF THE ACT WERE INITIATED . IN RESPONSE TO NOTICE ISSUED U/S 153C THE ASSESSEE FILED ITS RETURN OF IN COME DECLARING INCOME AT NIL. ON THE BASIS OF SEIZED PAPERS MARKED AS A-29, PAGE 66 THE AO MADE ADDITION OF RS.4,80,97,125/- TOWARDS UNACCOUNTED CA SH PAYMENT. BEFORE THE LD. CIT(A) THE ASSESSEE OBJECTED THE ADDITION O N THE BASIS THAT THE SEIZED DOCUMENTS DID NTO BELONG TO THE ASSESSEE AS NO PLOTS OF LAND WERE PURCHASED BY THE ASSESSEE FROM THE PARTIES MENTIONE D IN THOSE LOOSE PAPERS. THE ASSESSSE HAD MERELY PAID ADVANCE AMOUN T OF RS.30,04,559/- TO THOSE PARTIES ON BEHALF OF INMON BUILDCON (P) LT D AND THE AMOUNT ADVANCED WAS REFUNDED BACK IN SUBSEQUENT YEARS. IT WAS CONTENDED THAT THE SEIZED DOCUMENT DID NOT CONTAIN THE NAME OF THE ASSESSEE COMPANY NOR IT REPRESENT TRANSACTIONS OF PURCHASE OF PROPERTIES SUPPORTED BY THE DOCUMENTS OF PURCHASE. IT WAS ALSO CONTENDED THAT THE ADDITION WAS BEYOND THE SCOPE OF THE PROVISIONS LAID DOWN U/S 15 3C OF THE ACT. RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS:- ITA NO. 2063/DEL/2013 3 AL CARGO GLOBAL LOGISTICS LTD. 137 ITD 2 87 (MUM) (SB) KAILASH AUTO FINANCE 32 SOT 80 (LUCK) 4. THE LD. CIT (A) DID NOT AGREE WITH THE CONT ENTIONS OF THE ASSESSEE AND HAS UPHELD THE ACTION OF THE A.O. WHILE AFFIRM ING THE ADDITION MADE BY THE A.O, THE LD. CIT(A) HAS FOLLOWED THE DECISION O F HONBLE DELHI HIGH COURT IN THE CASES OF CIT VS. ANIL KUMAR BHATIA 24, TAXMAN.COM 98 (DELHI). CIT VS. CHETAN DAS 25 TAXMAN.COM 227 (DELHI) SSP AVIATION LTD. VS. DCIT 346 ITR 177 (DELHI). 5. LD. AR HAS REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. HE SUBMITTED THAT THE ASSESSMENT PROCEEDING S FOR THE YEAR UNDER APPEAL WAS NOT PENDING ON THE DATE OF RECORDING OF SATISFACTION U/S 153 C, HENCE THE PROCEEDINGS DID NOT ABATE AND ALSO THAT T HE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDITION IN THE ABSENCE OF SEIZED MATERIAL RELATING TO THE ASSESSEE. THE LD. AR ALSO REFERRED PAGE NO. 25 AND 26 OF THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE I.E COPY OF THE SATISFACTION NOTE FOR ISSUANCE OF NOTICE U/S 153C OF THE ACT TO THE ASSESSEE. HE SUBMITTED THAT DURING THE COURSE OF PENDENCY OF ASS ESSMENT PROCEEDINGS IN THE CASE OF SHRI SURENDER MODI FOR THE A.Y 2004-05 TO 2010-11 U/S 153A READ WITH SECTION 143 (3) OF THE ACT, THE MATERIAL SEIZED FROM THE PREMISES OF THE ASSESSEE WAS EXAMINED. THE A.O HAS WRITTEN HIS SATISFACTION NOTE THAT AFTER EXAMINING SEIZED MATERIAL, HE WAS SATISF IED THAT SOME DOCUMENTS BELONG TO PERSONS OTHER THAN SHRI SURENDER MODI. T HE LD. AR SUBMITTED THAT FROM THE SATISFACTION NOTE, IT IS EVIDENT THAT THE DOCUMENTS ALLEGEDLY BELONGING TO THE ASSESSEE WERE SEIZED FROM THE POSS ESSION OF SOME OTHER PERSON SEARCHED U/S 132 OF THE ACT. THE SOLE ADDIT ION AMOUNTING TO RS.4,80,97,125/- BEING ALLEGED CASH PAYMENTS SAID T O BE MADE BY THE ASSESSEE COMPANY TO FARMERS AS ADVANCE AGAINST PURC HASE OF PROPERTY ON THE BASIS OF ANNEXURE A-29 PAGE 66 MADE AVAILABLE A T PAGE NO. 24 OF THE PAPER BOOK WAS SEIZED DURING THE COURSE OF SEARCH A T THE PREMISES OF SHRI ITA NO. 2063/DEL/2013 4 SURENDER MODI. HE SUBMITTED THAT THE SATISFACTION NOTE RECORDED U/S 153C WHICH FORMS BASIS OF ASSESSMENT DOES NOT SUPPORT TH E CASE OF THE AO AS THERE IS NO REFERENCE TO ANNEXURE A-29 PAGE 66. TH E OTHER DOCUMENTS SEIZED DURING THE COURSE OF SEARCH AND REFER TO THE SATISFACTION NOTE ARE OF GENERAL NATURE AND ARE PART OF REGULAR BOOKS OF ACC OUNTS AND THERE IS NO DISPUTE ABOUT CORRECTNESS OF THE SAME OR ANY ADVERS E INFERENCE IN RESPECT OF THE SAME. THE LD. AR SUBMITTED FURTHER THAT SAT ISFACTION NOTE IS THE BASIS OF ASSUMING JURISDICTION U/S 153C OF THE ACT. IN THE PRESENT CASE, SINCE THE SATISFACTION NOTE ITSELF FAILED TO MAKE R EFERENCE TO THE SEIZED ANNEXURE A-29 PAGE 66 ON THE BASIS OF WHICH ADDITIO N WAS MADE, THE ASSESSMENT SO FRAMED IS ILLEGAL AND WITHOUT JURISDI CTION AND IN CONTRAVENTION TO THE SCHEME OF THE ACT. EVEN OTHERWISE THE SAID A NNEXURE DOES NOT BELONG TO THE ASSESSEE. IT DOES NOT CONTAIN NAME O F THE ASSESSEE, NEITHER IT IS SIGNED BY ANY OFFICER OF THE ASSESSEE COMPANY NOR IT IS FOUND FROM THE PREMISES OF THE ASSESSEE COMPANY NOR IT CONTAIN DET AILS OF ANY TRANSACTION RELATING TO THE ASSESSEE AND AS SUCH DEEMING PROVIS IONS OF SECTION 292C ARE NOT APPLICABLE TO THE CASE OF THE ASSESSEE COMP ANY. IN SUPPORT HE PLACED RELIANCE ON THE FOLLOWING DECISIONS:- CIT VS. MEGHMANI ORGANICS LTD (ITA NO. 2077/2009) (GUJARAT H.C) DSL PROPERTIES PVT. LTD DCIT (ITA NO. 1344/DEL/ 2012) (DELHI ITAT) ORDER DATED 31/ 5/2012 ACIT VS. THERAPEUTIC INDIA ( P). LTD. (ITA NO. 4514 & 4515/DEL/2012) (DELHI ITAT)O RDER DATED 22/3/2013. 5.1. HE SUBMITTED FURTHER THAT THERE IS NO DISPU TE THAT CONTENTS OF ANNEXURE A-29, PAGE 66 ARE RELATING TO PROPERTY TRA NSACTION OF INMON BUILDCON (P) LTD AND AS SUCH THE SAID DOCUMENT MAY BE RELATED TO INMON BUILDCON (P) LTD AND NOT TO THE ASSESSEE. THE LD. AR POINTED OUT FURTHER THAT IN THE CONTEXT OF ANNEXURE A-29, PAGE 66, THE LD. CIT(A) ISSUED ENHANCEMENT NOTICE U/S 251 (2) IN RESPECT OF OTHER TRANSACTIONS IN THE SAID ITA NO. 2063/DEL/2013 5 ANNEXURE RELATING TO CHEQUE/DRAFT PAYMENT AMOUNTING TO RS.2,07,04,754/- AND STAMP PURCHASING WORTH RS.15,62,280/- HOWEVER, AS PER REPLY DATED 3/1/2013 TO THE LD. CIT(A) IN THE CONTEXT OF ENHANC EMENT NOTICE U/S 251 (2), THE LD. CIT(A) MADE DETAILED ENQUIRY AND RECOR DED THE FINDING THAT THE DRAFT PAYMENT AND STAMP PURCHASES ARE RELATING TO M /S INMON BUILDCON (P) LTD AND ACCOUNTED FOR BY M/S INMON BUILDCON (P) LTD . FOR A READY REFERENCE HE DREW OUR ATTENTION ON PARA NOS. 6.7 OF THE FIRST APPELLATE ORDER. HE SUBMITTED FURTHER THAT ON THE BASIS OF V ERIFICATION OF CONTENTS OF ANNEXURE A-29, PAGE 66, THE LD. CIT(A) HAS DROPPED THE ENHANCEMENT PROCEEDINGS AND HAS ALSO OBSERVED ABOUT ENHANCEMENT IN THE CASE OF INMON BUILDCON (P) LTD IN RESPECT OF ALLEGED CASH T RANSACTIONS REFERRED TO IN THE YEARS IN ANNEXURE A-29 , PAGE 66. HE SUBMITTED THAT THE COPIES TO DRAFT BY INMON BUILDCON (P) LTD HAVE BEEN MADE AVAI LABLE AT PAGE 49 TO 59 OF THE PAPER BOOK WHICH BUTTRESSES THE FACT THAT AL L THE PAYMENTS THROUGH DRAFTS WERE MADE BY INMON BUILDCON (P) LTD. THUS, IT SUPPORTS THE CASE OF THE ASSESSEE THAT ANNEXURE A-29 PAGE 66 BELONG TO I NMON BUILDCON (P) LTD. HE SUBMITTED THAT ALL THE BANK DRAFTS WERE PURCHASE D THROUGH BANK ACCOUNT NO. CD2846(INDIAN OVERSEAS BANK) WHICH BELONGS TO I NMON BUILDCON (P) LTD AS PER COPIES OF CHEQUES FOUND DURING SEARCH. HE SUBMITTED THAT THE LD. CIT(A) HAVING ACCEPTED THE FACT THAT THE CHEQUE AND STAMP PURCHASE TRANSACTIONS REFERRED TO ANNEXURE A-29 PAGE 66 ARE IN RESPECT OF THE PROPERTY PURCHASED BY INMON BUILDCON (P) LTD, HENCE THERE IS NO BASIS FOR SUSTAINING THE ADDITION IN RESPECT OF ALLEGED CASH TRANSACTIONS REFERRED TO THE IN THE ANNEXURE A-29 PAGE 66 IN THE HANDS OF TH E ASSESSEE. THE LD. AR REITERATED THAT THE ASSESSEE HAS NOT PURCHASED ANY PROPERTY DURING THE YEAR UNDER REFERENCE OR IN SUBSEQUENT YEARS AND FACTUAL POSITION TO THIS EFFECT HE SUPPORTED FROM THE COPY OF THE AUDIT BALANCE-SHEET MADE AVAILABLE AT PAGE NOS. 16 TO 21 OF THE PAPER BOOK. HE SUBMITTED THAT IN RESPECT OF ADDITION OF RS.30,04,559/- MADE BY THE A.O DURING THE YEAR U NDER CONSIDERATION REFER TO IN ANNEXURE A-29 PAGE 66 THE TRANSACTIONS WERE DULY RECORDED IN ITA NO. 2063/DEL/2013 6 THE BOOKS OF ACCOUNTS AND CORRECTNESS OF THE SAME W ERE DULY VERIFIED BY THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEED INGS AND THERE IS NOT CASE OF ANY DISPUTE OR ADVERSE INFERENCE IN RESPECT OF THE SAME. HE SUBMITTED THAT THE ASSESSEE HAS OBTAINED COPIES OF PURCHASE DEEDS RELATING TO INMON BUILDCON (P) LTD AND DETAILS OF CHEQUES AN D DRAFTS TRANSACTIONS RELATING TO ANNEXURE A-29 PAGE 66 ARE FULLY SUPPORT ED AND CORROBORATED FROM THE RELEVANT PURCHASE DATES. AS PER VERIFICATI ON OF FACTS AND FINDING OF ASSESSING OFFICER AND THE LD. CIT(A) IT IS SELF-EVI DENT THAT SEIZED ANNEXURE A-29, PAGE 66 DOES NOT BELONG TO ASSESSEE AND THUS THERE IS NO FACTUAL OR LEGAL BASIS FOR ASSUMING JURISDICTION U/S 153C OF T HE ACT OR FOR MAKING ANY ADDITION EVEN ON MERITS. THE LD. AR SUBMITTED FURT HER THAT AS PER OBSERVATION AND DIRECTION OF THE LD. CIT(A) PROCEED INGS U/S 148 HAVE ALREADY BEEN INITIATED IN THE CASE OF INMON BUILDCO N (P) LTD IN RELATION TO THE ALLEGED CASH PAYMENT OF RS.4,80,97,125/- REFERR ED TO IN THE ANNEXURE A-29 PAGE 66. WHILE CONCLUDING HIS ARGUMENT THE LD . AR SUBMITTED THAT THERE IS NO DIRECT OR INDIRECT NEXUS BETWEEN THE AS SESSEE AND INMON BUILDCON (P) LTD AND THERE IS NO COMMON DIRECTORSHI P OR SHARE HOLDING. HE ALSO PLACED RELIANCE ON THE FOLLOWING DECISIONS IN SUPPORT:- AL CARGO GLOBAL LOGISTICS LTD 137 ITD 287(MUM) (SB) KAILASH AUTO FINANCE 32 SOT 80 (LUCKN) KUSUM GUPTA VS. DCIT ITA NO. 4873/D/2009 & ORS. ORD ER DATED 28.3.2013 6. THE LD. CIT DR ON THE OTHER HAND PLACED R ELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW. HE POINTED OUT THAT NEITHER BEFORE THE LD. CIT(A) NOR BEFORE THE TRIBUNAL STATEMENT OF FACTS HAVE BEE N FILED BY THE ASSESSSEE, THE GROUNDS OF APPEAL PREFERRED BY THE LD. CIT(A) S UGGEST THAT THE ASSESSEE HAS SHIFTED ITS STAND BEFORE THE TRIBUNAL. THE SPECIFIC GROUNDS QUESTIONING THE ASSESSMENT ON THE BASIS THAT SECTIO N 153C WAS NOT MAINTAINABLE BECAUSE ON THE DATE OF RECORDING SATIS FACTION NO PROCEEDINGS ITA NO. 2063/DEL/2013 7 WERE PENDING, THAT SECTION 153C ASSESSMENT IS TO BE RESTRICTED TO ASSESSMENT IN RESPECT OF THE SEIZED DOCUMENTS AND T HE AO HAS IGNORED LEGAL OBJECTIONS FILED BEFORE HIM, HAVE NOT BEEN RA ISED BEFORE THE TRIBUNAL. THE AVERMENT OF THE ASSESSEE IN REFERENCE TO CONTEN TS OF IMPUGNED DOCUMENT I.E ANNEXURE A-29 PAGE 66 MADE BEFORE THE AO THAT SHRI SURENDER MODI HAD MADE A DECLARATION OF RS.20 CRORE S DURING HIS STATEMENTS RECORDED U/S 132(3) OF THE ACT IN RESPEC T OF UNDISCLOSED INCOME, UNDISCLOSED INVESTMENT ETC PARTICULARLY PAPERS CONT AINING NOTINGS ON LOOSE PAPERS SEIZED NO ADVERSE INFERENCE MAY BE DRAWN, IT SELF GOES TO SHOW THAT THERE IS AN IMPLIED ADMISSION THAT THE IMPUGNED DOC UMENT BELONGS TO THE ASSESSEE AND THAT THE PAYMENTS AND INCOME AS MENTIO NED THEREIN ALSO ARE ATTRIBUTABLE TO THE ASSESSEE COMPANY, SUBMITTED THE LD. DR. HAD IT NOT BEEN SO THERE WAS NO OCCASION FOR THE ASSESSEE TO C OVER ITS (PAGE NO. 66) CONTENTS WITH THE SURRENDER MADE OF RS. 20 CRORES U /S 132(4) OF THE ACT. THE LD. DR DREW OUT ATTENTION TO THE CONTENTS OF PA GE NO. 12 OF THE FIRST APPELLATE ORDER, WHEREIN THE LD. CIT(A) HAS RECORDE D ITS FINDING THAT THE PRESENCE OF THE ORIGINAL COPY OF THE BOARD RESOLUTI ON OF INMON BUILDCON (P) LTD APPOINTING AN AUTHORIZED SIGNATORY TO GET THE L ANDS REGISTERED IN ITS NAME, AMOUNTS SHOWN IN THE SEIZED RECORDS(PAGE 67 O F A-29) FURTHER BUTTRESSES THE INFERENCE ABOUT THE APPELLANT COMPAN YS PRIMARY INVOLVEMENT IN THESE TRANSACTIONS. HE POINTED OUT THAT THE ABOVE FINDING OF THE LD. CIT(A) IS UNCONTROVERTED. IT CLEARLY SHOWS THAT THE ASSESSEE COMPANY AND SHRI SURENDER MODI WERE NOT THE STRANGE R TO THE LAND TRANSACTIONS UNDERTAKEN FOR AND ON BEHALF OF INMON BUILDCON (P) LTD. THIS COUPLED WITH THE FACT THAT THE ASSESSEE COMPANY HAD MADE ADVANCE PAYMENTS (MAY BE ON BEHALF OF INMON BUILDCON (P) LT D) FROM ITS OWN BOOKS GOES TO CLINCH THE ISSUE IN FAVOUR OF THE AO THAT C ASH PAYMENTS AS REFLECTED IN A-29/66 WERE MADE BY THE ASSESSEE ONLY SPECIALLY WHEN THERE IS NO EVIDENCE POINTING OUT THE PAYMENT TO HAVE BEEN MADE BY INMON BUILDCON (P) LTD. CONCLUSION IS THUS THAT THE CASH PAYMENTS HAVE BEEN MADE BY THE ITA NO. 2063/DEL/2013 8 ASSESSEE ONLY MAY BE PARTLY OR FULLY ON BEHALF OF I NMON BUILDCON (P) LTD. HAD IT NOT BEEN SO THE DOCUMENTS WOULD NOT HAVE BEE N FOUND IN ORIGINAL FROM THE CUSTODY OF SHRI SURENDER MODI, THE DIRECTO R OF ASSESSEE COMPANY NOR ITS CONTENTS (THOUGH PARTLY) WOULD HAVE BEEN FO UND RECORDED IN THE BOOKS OF THE ASSESSEE COMPANY. THE LD. DR SUBMITTE D THAT THERE HAS NOT BEEN ANY OWNERSHIP OF THESE DOCUMENTS BY ANYBODY EL SE AND THE CLAIM OF EVENTS CLEARLY SHOW THAT THE DOCUMENTS REFLECTED TH E FINANCIAL TRANSACTIONS UNDERTAKEN BY THE ASSESSEE COMPANY ONLY. VERY CLEA RLY THE ASSESSEE COMPANY THROUGH ITS DIRECTOR SHRI SURENDER MODI BES IDES BEING FACILITATOR WAS ACTIVE PARTNER EVEN FINANCIALLY IN THESE LAND T RANSACTIONS. 7. REGARDING THE SUBMISSION OF THE ASSESSEE THAT INITIATION OF ACTION U/S 148 BY THE REVENUE IN THE CASE OF INMON BUILDCO N (P) LTD GOES TO SHOW TACIT ACCEPTANCE ON REVENUES PART THAT THE DOCUMEN T AND ITS CONTENTS DO NOT BELONG TO THE ASSESSEE, THE LD. DR SUBMITTED TH AT FIRSTLY THIS IS A BALD ASSERTION MADE BY THE ASSESSEE BECAUSE THERE IS NOT DOCUMENTARY EVIDENCE PLACED BEFORE THE TRIBUNAL PROVING THE INITIATION A CTION QUA THIS VERY IMPUGNED DOCUMENT. 8. FURTHER, IT IS PRESUMED THAT REVENUE HAS TAKNE ACTION U/S 148 IN THE CASE OF INMON BUILDCON (P) LTD QUA THE DOCUMENT (A-29/66) IT WOULD NOT IPSO FACTO NULLIFY THE ADDITION MADE IN THE HAN DS OF THE ASSESSEE BECAUSE AS SEEN FROM THE CHEQUE PAYMENTS FIRST BEIN G MADE BY THE ASSESSEE AND LATER CLAIMED AS REIMBURSEMENT FROM IN MON BUILDCON (P) LTD WHICH LOGICALLY PROVE THAT EVEN THE CASH PAYMENT WA S FIRST MADE BY THE ASSESSEE ONLY. FROM WHICH SOURCES THIS CASH PAYMEN T WAS MADE IS NOT EXPLAINED AND HENCE ADDITION WAS RIGHTLY MADE BY TH E A.O. 9. WITHOUT PREJUDICE TO ABOVE SUBMISSION, THE LD. DR SUBMITTED THAT SO LONG AS THERE IS NO ADMISSION ON THE PART OF INM ON BUILDCON (P) LTD THAT IT WAS IT WHICH MADE THE CASH PAYMENT TO M/S SWAPNI L PROPERTIES TO BE ITA NO. 2063/DEL/2013 9 MADE TO VARIOUS PARTIES FINDING MENTIONED ON IMPUGN ED PAGE NO. 66 OR THAT THE ACTION QUA THE TAXABILITY OF THESE VERY PA YMENTS IN THE HANDS OF INMON BUILDCON (P) LTD DOES NOT BECOME CONCLUSIVE I .E IT IS NOT CHALLENGED FURTHER IN APPEAL ETC BY INMON BUILDCON (P) LTD IN WHOSE HANDS, THESE VERY SUMS WOULD BE TAXED BY THE AO, THE ACTION OF THE AS SESSING OFFICER CANNOT BE FAULTED. IN THIS REGARD, THE LD. DR DREW OUT AT TENTION TO PAGE NO. 22 OF THE PAPER BOOK WHICH IS A COPY OF LETTER DATED 27/2 /2006 BY THE ASSESSEE COMPANY TO INMON BUILDCON (P) LTD FROM WHICH MODUS OPERANDI OF ACQUISITION OF PROPERTIES WOULD BECOME CLEAR. AS PE R THIS LETTER, INITIALLY THE PAYMENT OF RS.30,04,559/- WAS MADE BY SWAPNIL PROPE RTIES (P) LTD ON BEHALF OF INMON BUILDCON (P) LTD AND THEREAFTER RE- IMBURSEMENT OF THE ADVANCES GIVEN BY THE ASSESSEE OUT OF OWN FUNDS, WA S CLAIMED. HE SUBMITTED FURTHER THAT THIS LETTER GOES TO ESTABLIS H THAT LIKE THE PAYMENT OF RS.30,04,559/- CASH PAYMENT AS RECORDED ON PAGE NOS . 66 OF RS.4.84 CRORES WAS ALSO INITIALLY MADE TO VARIOUS PARTIES B Y THE ASSESSEE AND WHEN IT WAS SO, THIS PAYMENT WHICH MIGHT HAVE BEEN CLAIMED AS REIMBURSEMENT FROM INMON BUILDCON (P) LTD, WAS NECESSARILY REQ UIRED TO BE CONSIDERED IN THE HANDS OF THE ASSESSEE AND IT WAS THE ASSESSEE T O EXPLAIN THE SOURCES OF THIS CASH PAYMENT. WHEN IT IS SO IRRESPECTIVE OF A NY POSSIBLE ACTION IN THE HANDS OF INMON BUILDCON (P) LTD INDEPENDENTLY IN TH E ASSESSEES HANDS ALSO NECESSARY ACTION QUA THE TAXABILITY WAS REQUIRED TO BE TAKEN WHICH THE AO ACTUALLY DID. THESE FACTS ALSO SHOW THAT JUST BECA USE THE LAND DOCUMENTS ARE IN THE NAME OF INMON BUILDCON (P) LTD. ONE CANN OT NECESSARILY INFER THAT THE CASH PAYMENTS TOO SHOULD BE PRESUMED TO HAVE BE EN MADE BY THEM ONLY ( AND NOT BY THE ASSESSEE COMPANY) AS PER THE ARRANGEMENT AND UNDERSTANDING DISCERNIBLE FROM PAGE NO. 22 OF A-29 REFER TO ABOVE FUND ARRANGEMENT (THOUGH PARTLY OR FULLY) INITIALLY REQUIRED TO BE DONE BY THE ASSESSEE AND LATER ON TO BE REIMBURSED TO IT BY INMON BUILDCON (P) LTD. IT SINCE INITIALLY PAYMENT S (CHEQUE, DRAFT OR CASH) WERE BEING MADE FOR INMON BUILDCON (P) LTD ONLY, FR OM NATURALLY TRANSFER OF ITA NO. 2063/DEL/2013 10 LAND WAS TO TAKE PLACE IN THE NAME OF INMON BUILDCO N (P) LTD. THUS, JUST BECAUSE LAND STANDS TRANSFERRED IN THE NAME OF INMO N BUILDCON (P) LTD IN THE LIGHT OF THE FACTS DISCUSSED ABOVE, AOS ACTION IN BRINGING TO TAX CASH PAYMENTS TO THOSE VERY LAND PARTIES (SELLERS) BY TH E ASSESSEE COMPANY CANNOT BE FAULTED WITH. THUS, IT IS CLEAR THAT POS SIBILITY OF ACTION IN THE HANDS OF INMON BUILDCON (P) LTD DOES NOT AFFECT ADV ERSELY TAXABILITY OF THE IMPUGNED SUM IN THE HANDS OF THE ASSESSEE, SUBMITTE D THE LD. DR. 10. THE LD. DR SUBMITTED FURTHER THAT DURING T HE COURSE OF HEARING BEFORE THE TRIBUNAL THE LD. AR HAD AVERRED THAT SEI ZED PAGE NOS 66 ON THE BASIS OF WHICH ADDITION HAS BEEN MADE BY THE AO IS NOT THE PART OF THE DOCUMENTS REFERRED TO IN THE SATISFACTION RECORDED U/S 153 AND HENCE IT WAS NOT PERMISSIBLE FOR THE AO TO TREAT ADDITION ON THE BASIS OF THE DOCUMENTS ON THE BASIS OF THE SATISFACTION HAS NOT BEEN RECOR DED U/S 153(C) OF THE ACT. AGAINST THIS CONTENTION OF THE ASSESSEE THE LD. DR SUBMITTED THAT THE CONTENTION DOES NOT MERIT CONSIDERATION BECAUSE THE RE IS NO SUCH LAW THAT IN THE PROCEEDINGS INITIATED U/S 153(C) DOCUMENTS O THER THAN ONES MENTIONED IN THE SATISFACTION NOTE CANNOT BE CONSID ERED. 11. AGAINST THE CONTENTION OF THE ASSESSEE TH AT PAGE NO. 66 IS NOT THE PART OF THE SATISFACTION NOTE, HENCE, ON THIS GROUN D ALSO ADDITION CONFIRMED BY THE LD. CIT(A) NEEDS TO BE DELETED, THE LD. DR S UBMITTED THAT EVEN IF PAGE 66 OF ANNEXURE A-29 IS NOT MENTIONED IN THE DO CUMENTS ON THE BASIS OF WHICH THE SATISFACTION NOTE FOR INITIATING ACTIO N U/S 153(C) WRITTEN, THE ADDITION MADE BY THE AO CANNOT BE OPPOSED FOR THE S IMPLE REASON THAT FIRSTLY THE IMPUGNED DOCUMENT WAS ALSO FOUND DURING THE COURSE OF SEARCH AT THE PREMISES OF SHRI SURENDER MODI, DIRECTOR OF THE COMPANY AND SECONDLY, BECAUSE THIS DOCUMENT HAS DIRECT CONTRIBU TION TO THE AFFAIRS OF THE ASSESSEE COMPANY AND HENCE WAS REQUIRED TO BE CONSI DERED FOR THE PURPOSE OF FRAMING THE ASSESSMENT. HE REITERATED T HAT THERE IS NO LAW THAT IN THE PROCEEDINGS U/S 153C ADDITION HAS TO BE NECE SSARILY RESTRICTED TO THE ITA NO. 2063/DEL/2013 11 DOCUMENTS ON THE BASIS OF WHICH SATISFACTION TO INI TIATE ACTION U/S 153(C) WAS TAKEN. 12. THE LD. DR SUBMITTED THAT IT NEEDS TOO BE AP PRECIATED THAT THE DOCUMENT WAS FOUND FROM THE OFFICE/RESIDENCE PREMIS ES OF SHRI SURENDER MODI, DIRECTOR OF THE COMPANY. IF SHRI SURENDER MO DI OR THE ASSESSEE HAD NOTHING TO DO WITH THESE DOCUMENTS IT WOULD NOT HAV E BEEN FOUND FROM THEIR POSSESSION. VERY FACT THAT SHRI SURENDER MOD I WAS FOUND IN POSSESSION OF THESE DOCUMENTS GOES TO INDICATE THAT THESE DOCU MENTS BELONGS TO THE ASSESSEE COMPANY. HE SUBMITTED THAT POSSESSION IS THE PRIMA FACIE EVIDENCE OF THE TITLE OF OWNERSHIP. APART FROM THE POSSESSION EVEN THE CONTENTS (NAMES OF THE PARTIES ETC) OF THESE DOCUME NTS ARE FOUND PARTLY RECORDED IN THE BOOKS OF THE ASSESSEE WHICH ONLY GO ES TO ESTABLISH THAT THE ASSESSEE COMPANY WAS PRIMARILY INVOLVED IN THE LAND TRANSACTION MENTIONED THEREIN THE DOCUMENT. IN SUPPORT, THE LD. DR PLACE D RELIANCE ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. SONAL CONSTRUCTIONS, 28 TAXMAN.COM 127 AND ALSO ON THE DE CISION IN THE CASE OF SHRI RAM MILLS, 95 ITR 279 (PATNA). 13. LD. CIT DR SUBMITTED FURTHER THAT WHEN PA RT OF THE DOCUMENT THAT IS THE VERY NAMES FROM WHOM LAND WAS BOUGHT THOUGH TRANSFER IN THE NAME OF INMON BUILDCON (P) LTD ARE FOUND RECORDED IN THE BOOKS OF THE ASSESSEE, IT HAS TO BE APPRECIATED THAT THE REST OF THE CONTE NTS WHICH DEPICT CASH PAYMENTS ETC ARE ALSO TRUE AND BELONG TO THE ASSESS EE. THUS THERE WERE ALSO SUFFICIENT INCRIMINATING MATERIAL AVAILABLE IN THE SEIZED MATERIAL TO INITIATE PROCEEDINGS AGAINST THE ASSESSE U/S 153C O F THE ACT. IN THIS REGARD, HE HAS PLACED RELIANCE ON THE DECISIONS IN THE CASE OF GLASS LINES EQUIPMENT CO. LTD. VS. CIT 253 ITR 454 (GUJRAT) & BI REN V. SELVA VS. ACIT 100 TTJ (MUM) 1006 AND CIT VS. ANIL KUMAR BHATIA, 2 4 TAXMAN.COM 98 (DEL). ITA NO. 2063/DEL/2013 12 14. LD. CIT DR ALSO TRIED TO DISTINGUISH THE FA CTS OF THE CASES CITED BY THE LD. AR IN THE CASES OF ACIT VS. THERAPEUTIC INDIA ( P) LTD (ITA NO. 4514 & 4515/DEL/12 & DSL PROPERTIES (P) LTD VS. DCIT (ITA NO. 1344/DEL/12). HE SUBMITTED THAT DECISION IN THE CASE OF ACIT VS. THE RAPEUTIC INDIA (P) LTD (SUPRA) IS DISTINGUISHABLE ON FACTS AS WELL AS LAW. IN THAT CASE, THE CONTROVERSY WAS IN REFERENCE TO DOCUMENTS/BOOKS OF ACCOUNTS WHICH WERE PRIMA FACIE NOT INDICATIVE OF UNACCOUNTED/UNRECORDE D TRANSACTIONS. AS AGAINST THIS IT WOULD BE NOTICE THAT THERE IS NO SU CH CHALLENGE BY THE ASSESSEE FURTHER ADDITION HAS BEEN MADE BY THE AO O N THE BASIS OF DOCUMENTS WHICH WAS SEIZED DURING THE SEARCH WHICH CLEARLY INDICATED UNACCOUNTED/UNRECORDED TRANSACTIONS. 15. LIKEWISE, THE DECISION IN THE CASE OF DSL P ROPERTIES (P) LTD. VS. DCIT (SUPRA) IS DISTINGUISHABLE ON FACTS AS WELL AS OF L AW. IN THAT CASE, THE ASSESSEE HAD RAISED THE GROUNDS ARGUING THAT THE DO CUMENTS BEING AUDIT PROFIT AND LOSS ACCOUNT AND BALANCE-SHEET BELONGING TO SHARE HOLDER DIRECTOR ON THE BASIS OF WHICH PROCEEDINGS U/S 153( C) WAS INITIATED WAS NOT BELONGING TO IT TO WHICH THE TRIBUNAL AGREED AND AL LOWED THE APPEAL. IT WOULD BE NOTICED THAT IN THE PRESENT APPEAL THERE I S NO SUCH CONTROVERSY OR GROUND OF APPEAL INVOLVED, CONTENDED THE LD. CIT DR . HE SUBMITTED FURTHER THAT COPIES OF CERTAIN DOCUMENTS (BEARING NO. 48, 4 9, 50 & 51) BEING THE PHOTO COPIES OF SOME CHEQUES ISSUED BY INMON BUILDC ON (P) LTD FURNISHED BY THE ASSESSEE BEFORE THE TRIBUNAL. THE LD. DR SU BMITTED THAT THESE DOCUMENTS WERE NEITHER FILED BEFORE THE AO NOR BEFO RE THE LD. CIT(A) AND HENCE ARE IN THE NATURE OF ADDITIONAL EVIDENCES WHI CH CANNOT BE CONSIDERED WITHOUT FOLLOWING THE PROVISIONS OF RULE 29 OF THE I.T RULES 1962. ITA NO. 2063/DEL/2013 13 16. CONSIDERING THE ABOVE SUBMISSIONS MADE BY TH E PARTIES WE FIND THAT THERE ARE CERTAIN UNDISPUTED MATERIAL FACTS IN THE PRESENT CASE. THESE FACTS ARE THAT THE SEIZED DOCUMENT MARKED AS ANNEXURE A-2 9 PAGE 66 WAS NOT FOUND FROM THE PREMISES OF THE ASSESSEE NOR WAS IT SIGNED BY THE EMPLOYEE OF THE ASSESSEE NOR THE NAME OF THE ASSESSEE WAS AP PEARING IN THIS SEIZED DOCUMENT ON THE BASIS OF WHICH ADDITION IN QUESTION OF RS. 4,80,97,125/- WAS MADE BY THE AO IN THE ASSESSMENT FRAMED U/S 153 C READ WITH SECTION 153A OF THE ACT. IT ALSO REMAINED UNDISPUTED FACT T HAT PROCEEDINGS U/S 148 OF THE ACT IN RELATION TO THE ALLEGED CASH TRANSACT ION OF RS. 4,80,97,125/- REFERRED TO IN THE ANNEXURE A-29 PAGE 66 HAVE BEEN INITIATED BY THE DEPARTMENT IN THE CASE OF INMON BUILDCON (P) LTD. B ESIDES EVEN ON THE MERITS OF THE ADDITION IN QUESTION THERE ARE CERTAI N ADMITTED FACTS THAT THE CONTENTS OF ANNEXURE A29 PAGE 66 ARE RELATING TO PR OPERTY TRANSACTIONS OF INMON BUILDCON (P) LTD. AS IN ITS INQUIRY DURING TH E PROCEEDINGS INITIATED FOR ENHANCEMENT U/S 251(2) OF THE AT IN THE CONTEXT OF ANNEXURE 29 PAGE 66 TRANSACTIONS, THE LD. CIT(A) HAS RECORDED THAT THE DRAFT PAYMENT AND STAMP PURCHASES ARE RELATING TO INMON BUILDCON (P) LTD. A ND ACCOUNTED FOR BY INMON BUILDCON (P) LTD. AND HAS ACCORDINGLY DROPPED THE ENHANCEMENT AGAINST THE ASSESSEE. IN SUPPORT THE LD. AR HAS ALS O FURNISHED COPIES OF DRAFTS THROUGH WHICH PAYMENT IN QUESTION WAS MADE BY INMON BUILDCON (P) LTD., MADE AVAILABLE AT PAGE NOS. 49 TO 59 OF T HE PAPER BOOK. HE ALSO POINTED OUT THAT ALL THE BANK DRAFTS WERE PURCHASED THROUGH BANK ACCOUNT ITA NO. 2063/DEL/2013 14 NO. CD2846 (INDIAN OVERSEAS BANK) WHICH BELONGS TO INMON BUILDCON P LTD. AS PER COPIES OF THE CHEQUES FOUND DURING SEAR CH. WE THUS ALSO FIND SUBSTANCE IN THE CONTENTION OF THE LD. AR THAT THE LD. CIT(A) HAVING ACCEPTED THE FACT THAT THE CHEQUE AND STAMP PURCHAS E TRANSACTION REFERRED TO ANNEXURE A 29 PAGE 66 ARE IN RESPECT OF THE PROP ERTY PURCHASED BY INMON BUILDCON P. LTD., THERE IS NO BASIS FOR SUST AINING THE ADDITION IN RESPECT OF ALLEGED CASH TRANSACTIONS REFERRED TO IN THE ANNEXURE A 29 PAGE 66 IN THE HANDS OF THE ASSESSEE. THE LD. AR ALSO R EITERATED THAT THE ASSESSEE HAS NOT PURCHASED ANY PROPERTY DURING THE YEAR UNDER REFERENCE OR IN SUBSEQUENT YEARS AND IN SUPPORT HE HAS MADE A VAILABLE THE COPY OF THE AUDIT BALANCE SHEET AT PAGE NOS. 16 TO 21 OF TH E PAPER BOOK. FURTHER SUBMISSIONS OF THE ASSESSEE ALSO REMAINED THAT IN R ESPECT OF ADDITION OF RS. 30,04,559/- MADE BY THE AO DURING THE YEAR UNDER C ONSIDERATION REFERRED TO IN THE SAID ANNEXURE, THE TRANSACTIONS WERE DULY RECORDED IN THE BOOKS OF ACCOUNTS AND CORRECTNESS OF THE SAME WERE DULY VERI FIED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THERE IS N O CASE OF ANY DISPUTE OR ADVERSE INFERENCE IN RESPECT OF THE SAME. THE SU BMISSION OF THE ASSESSEE ALSO REMAINED THAT THERE IS NO DIRECT OR INDIRECT N EXUS BETWEEN THE ASSESSEE AND INMON BUILDCON P LTD. NOR IS THERE ANY COMMON D IRECTOR OR SHARE HOLDING. IN ABSENCE OF REBUTTAL OF THESE MATERIAL F ACTS OF THE CASE WE ARE OF THE VIEW THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN S USTAINING THE ADDITION IN QUESTION MADE BY THE AO IN PROCEEDINGS U/S 153C RE AD WITH SECTION 153A ITA NO. 2063/DEL/2013 15 OF THE ACT ON THE BASIS OF INFERENCE REMOTELY DRAWN . SUPPORTING THE ACTION OF THE AUTHORITIES BELOW LD. CIT DR BEFORE US HAS H OWEVER TRIED TO DRAW AN INFERENCE TO JUSTIFY THE ADDITIONS IN QUESTION WITH THIS SUBMISSION THAT THE AVERMENT OF THE ASSESSEE IN REFERENCE TO CONTENTS O F IMPUGNED DOCUMENT MADE BEFORE THE AO THAT SHRI SURENDER MODI HAD MADE A DECLARATION OF RS. 20 CRORES DURING HIS STATEMENTS RECORDED U/S 132(4) OF THE ACT IN RESPECT OF UNDISCLOSED INCOME UNDISCLOSED INVESTMENT ETC. DOES NOT ABSOLVE THE ASSESSEE, RATHER IT ITSELF GOES TO SHOW THAT THERE IS AN IMPLIED ADMISSION THAT THE IMPUGNED DOCUMENT BELONGS TO THE ASSESSEE AND THAT THE PAYMENTS AND INCOME AS MENTIONED THEREIN ALSO ARE A TTRIBUTABLE TO THE ASSESSEE AND THAT HAD IT NOT BEEN SO THERE WAS NO O CCASION FOR THE ASSESSEE TO COVER ITS (PAGE NO. 66) CONTENTS WITH T HE SURRENDER MADE OF RS. 20 CRORES U/S 132(4) OF THE ACT. THE LD. CIT DR HAS ALSO TAKEN ASSISTANCE OF THE OBSERVATION OF THE LD. CIT(A) MADE AT PAGE NO. 12 OF THE FIRST APPELLATE ORDER THAT THE PRESENCE OF THE ORIGINAL C OPY OF THE BOARD RESOLUTION OF INMON BUILDCON (P) LTD. APPOINTING AN AUTHORIZED SIGNATORY TO GET THE LAND REGISTERED IN ITS NAME, AND THE AMOUNT S SHOWN IN THE SEIZED RECORD FURTHER BUTTRESSES THE INFERENCE ABOUT THE A SSESSEE COMPANYS PRIMARY INVOLVEMENT IN THESE TRANSACTIONS. ON THE B ASIS OF THESE OBSERVATIONS THE LD. CIT DR TRIED TO ADVANCE ITS CA SE THAT THE ASSESSEE COMPANY AND ITS DIRECTOR SHRI SURENDER MODI WERE NO T THE STRANGER TO THE LAND TRANSACTIONS UNDERTAKEN FOR AND ON BEHALF OF I NMONN BUILDCON (P) LTD.. ITA NO. 2063/DEL/2013 16 HE SUBMITTED FURTHER THAT THIS COUPLED WITH THE FAC T THAT THE ASSESSEE COMPANY HAD MADE ADVANCE PAYMENTS MAY BE ON BEHALF OF INMON BUILDCON (P) LTD. FROM ITS OWN BOOKS GOES TO CLINCH THE ISSU E IN FAVOUR OF THE AO THAT CASH PAYMENTS AS REFLECTED IN A-59 PAGE 66 WERE MA DE BY THE ASSESSEE ONLY ESPECIALLY WHEN THERE IS NO EVIDENCE POINTING OUT THE PAYMENT HAD BEEN MADE BY INMON BUILDCON (P) LTD. WITHOUT PREJUD ICE TO THE ABOVE SUBMISSION THE LD. CITDR SUBMITTED FURTHER THAT SO LONG AS THERE IS NO ADMISSION ON THE PART OF INMON BUILDCON (P) LTD. TH AT IT WAS IT WHICH MADE THE CASH PAYMENT TO M/S. SWAPNIL PROPERTIES I.E. TH E ASSESSEE TO BE MADE TO VARIOUS PARTIES FINDING MENTIONED ON IMPUGNED PA GE NO. 6 6 (A-29) OR THAT THE ACTION QUA THE TAXABILITY OF THE SE VERY PAYMENTS IN HANDS OF INMON BUILDCON (P) LTD. DOES NOT BECOME CONCLUSI VE. IN THE LETTER DATED 27.2.2006 BY THE ASSESSEE COMPANY TO INMON BUILDCON LTD. IT HAS BEEN STATED THAT INITIALLY THE PAYMENT OF RS. 30,04,559/ - WAS MADE BY THE ASSESEE ON BEHALF OF THE INMON BUILDCON (P) LTD. AN D THEREAFTER REIMBURSEMENT OF THE ADVANCES GIVEN BY THE ASSESSEE OUT OF OWN FUNDS WAS CLAIMED. THIS LETTER GOES TO ESTABLISH THAT LIK E THE PAYMENT OF RS. 30,04,559/- CASH PAYMENT AS RECORDED ON PAGE NO. 66 OF THE ANNEXURE 29 OF RS. 4.84 CRORES WAS ALSO INITIALLY MADE TO VARIO US PARTIES BY THE ASSESEE AND WHEN IT WAS SO, THIS PAYMENT WHICH MIGHT HAVE B EEN CLAIMED AS REIMBURSEMENT FROM INMON BUILDCON (P) LTD. WAS NEC ESSARILY REQUIRED TO BE CONSIDERED IN THE HANDS OF THE ASSESSEE AND IT W AS THE ASSESSEE TO ITA NO. 2063/DEL/2013 17 EXPLAIN THE SOURCES OF THIS CASH PAYMENT. WE DO NOT FIND SUBSTANCE IN THE SUBMISSIONS OF THE LD. CIT(DR) IN ABSENCE OF EVIDEN CE IN SUPPORT ESPECIALLY IN A CASE OF SEARCH WHERE ONUS IS HEAVY ON THE AO T O ESTABLISH THAT THE DOCUMENTS SEIZED NOT FROM THE POSSESSION OF THE ASS ESSEE AND THE TRANSACTIONS MENTIONED THEREIN BELONG TO THE ASSESS EE THAT TOO WHEN THE DOCUMENT SEIZED IS UNDISPUTEDLY NOT SIGNED BY THE E MPLOYEE OF THE ASSESSEE NOR IS THERE ANY REFERENCE OF THE ASSESSEE AND THE LD. CIT(A) WHILE DROPPING THE ENHANCEMENT PROCEEDINGS AGAINST THE ASSESSEE U/S 251(2) IN THE CONTEXT OF THE TRANSACTIONS RECORDED IN ANNEUXRE A-29 PAGE 66 HIMSELF HAS RECORDED AFTER INQUIRY THAT THE DRAF T PAYMENTS AND STAMP PURCHASES ARE RELATING TO INMON BUILDCON (P) LTD. U NDER THE ABOVE FACTS AND CIRCUMSTANCES WE CAME TO THE CONCLUSION THAT TH ERE WAS NO BASIS WITH THE AO TO MAKE THE ADDITION IN QUESTION IN THE HAND S OF THE ASSESEE IN A PROCEEDINGS U/S 153C READ WITH SECTION 153A. THE RA TIO LAID DOWN IN THE CITED DECISIONS BY THE LD. CIT DR NOWHERE ALLOW THE AO TO MAKE AN ADDITION WITHOUT ANY BASIS OR SUPPORT IN EVIDENCE. JUST AND PROPER ASSESSMENT IS THE VERY OBJECT OF OUR LEGISLATURE IN THE PROVISIONS LAID DOWN UNDER THE I.T. ACT, 1961. WE THUS WHILE SETTING ASI DE ORDERS OF THE AUTHORITIES BELOW REGARDING MAKING AND AFFIRMING TH E ADDITION IN QUESTION, DIRECT THE AO TO DELETE THE ADDITION OF RS. 4,80,97 ,125/- TOWARDS ALLEGED CASH PAYMENT SAID TO BE MADE BY THE ASSESSEE COMPAN Y TO VARIOUS FARMERS ITA NO. 2063/DEL/2013 18 BASED ON THE SEIZED ANNEXURE FROM SHRI SURENDER MOD I. THE GROUNDS QUESTIONING THE ADDITION ARE ACCORDINGLY ALLOWED. 17. CONSEQUENTLY APPEAL IS ALLOWED IN FAV OUR OF THE ASSESSEE. THE ORDER IS PRONOUNCED IN THE OPEN C OURT ON 29 TH JANUARY, 2014. SD/- SD/- (G.D. AGRAWAL) ( I.C. SUDHIR ) VICE PRESIDENT JUDICIAL MEMBER DATED 29 TH JANUARY, 2014 RESHMA/VEENA COPY OF ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR, ITAT