Mr. Pravin Juneja, New Delhi V. DCIT, New Delhi

ITA 2414/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2876 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 15-06-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 24-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHEFALI SWROOP
• Assessee Lawyers: V K AGGARWAL
• Keywords: Unexplained expenditure; Search and seizure; Salary income; Loose papers; Document seized; Principle of natural justice; Documents seized
• Section: 69C; 153A; 69; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND SMT. BEENA A. PILLAI, JUDICIAL MEMBER ITA NOS.2413 & 2414/DEL/2015 ASSESSMENT YEARS : 2005-06 & 2006-07 PRAVIN JUNEJA, E-47, GROUND FLOOR, GREATER KAILASH-II, NEW DELHI. VS. DCIT, CENTRAL CIRCLE- 4, NEW DELHI. PAN : AAFPJ2179L (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V. K. AGGARWAL, AR DEPARTMENT BY : MS. SHEFALI SWROOP, CIT-DR DATE OF HEARING : 28-02-2018 DATE OF PRONOUNCEMENT : 16-03-2018 O R D E R PER R. K. PANDA, AM : THE ABOVE TWO APPEALS FILED BY THE ASSESSEE ARE DIR ECTED AGAINST THE COMMON ORDER DATED 05.01.2015 OF THE CIT(A)- 30, NE W DELHI RELATING TO ASSESSMENT YEARS 2005-06 AND 2006-07 RESPECTIVELY. FOR THE SAKE OF CONVENIENCE, BOTH THE APPEALS WERE HEARD TOGETHER A ND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2 ITA NOS.2413 & 2414/DEL/2015 ITA NO.2413/DEL/2015 (A.Y. 2005-06) : 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND DERIVES INCOME FROM SALARY AND OTHER SOURCES. A SE ARCH U/S 132 OF THE INCOME TAX ACT, 1961 WAS CONDUCTED AT THE RESIDENTIAL PREM ISES OF THE ASSESSEE AT E-47, GROUND FLOOR, GREATER KAILASH-II, NEW DELHI ON 22.0 9.2005. IN RESPONSE TO THE NOTICE U/S 153A WHICH WAS ISSUED ON 15.05.2006, THE ASSESSEE FILED RETURN OF INCOME ON 14.09.2007 DISCLOSING TOTAL INCOME OF RS. 20,78,558/-. THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT P ROCEEDINGS OBSERVED THAT CERTAIN DOCUMENTS WERE FOUND AND SEIZED FROM THE RE SIDENTIAL PREMISES OF THE ASSESSEE AT THE TIME OF SEARCH. AS PER ANNEXURE-2 & ANNEXURE-8 SEVERAL DOCUMENTS PERTAINING TO VARIOUS PAYMENTS AND VARIOU S RECEIPTS ON ACCOUNT OF BYCULLA RESIDENCE WERE FOUND. ON BEING QUESTIONED BY THE ASSESSING OFFICER, IT WAS EXPLAINED THAT THE PAPERS WHICH RELATE TO BY CULLA ACCOUNT MAINLY RELATES TO VARIOUS ESTIMATES OR THE MONEY RECEIVED OR SPENT ON VARIOUS PROJECTS OF OMAXE. IT WAS EXPLAINED THAT SINCE THE ASSESSEE WA S IN CHARGE OF THE VARIOUS PROJECTS, SOME OF THE INTERIOR DECORATOR WHO HAD EA RLIER WORKED IN ANY MOTI MAHAL APPROACHED HIM FOR DOING THE WORK IN OMAXE RE LATING TO INTERIOR FURNISHING AND HAVE SUBMITTED VARIOUS PLANS, ESTIMA TES AND DETAILS OF THEIR EARLIER WORK DONE IN MOTI MAHAL AND OTHER PLACES. IT WAS EXPLAINED THAT THE SAME IS PART OF WORKING PAPERS OR LEFT OUT PAPERS O F VARIOUS TIMES WHILE WORKING WITH THE OMAXE AND IT COMPLETELY RELATES TO THE OMA XE. IT WAS EXPLAINED THAT 3 ITA NOS.2413 & 2414/DEL/2015 THE ASSESSEE BEING A SENIOR PERSON IN THE ORGANIZAT ION AS A DIRECTOR FINANCE LEVEL USED TO FINALIZE NUMBER OF CONTRACTS, SUPPLIE RS FOR THE VARIOUS PROJECTS, CONSULTANTS, INTERIOR DECORATORS ETC. THE ASSESSEE ALSO COMPLETELY DENIED THAT HE OWNS ANY PROPERTY AT BYCULLA. HOWEVER, THE ASSESSI NG OFFICER WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE. ACCORD ING TO HIM, REPLY GIVEN BY THE ASSESSEE IS VERY GENERAL IN NATURE AND NO EVIDE NCE WAS BROUGHT ON RECORD TO DISPROVE THAT THE PAPERS PERTAIN TO OMAXE GROUP. R EJECTING THE VARIOUS EXPLANATIONS GIVEN BY THE ASSESSEE, THE ASSESSING O FFICER MADE ADDITION OF RS.15,91,000/- TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF BYCULLA PROPERTY. 3. SIMILARLY ON PERUSAL OF ANNEXURE-2 PAGE 56, THE ASSESSING OFFICER OBSERVED THAT THERE IS A RECEIPT OF RS.3 LAKHS. ON BEING QUESTIONED BY THE ASSESSING OFFICER, IT WAS SUBMITTED THAT THE DOCUME NT DOES NOT RELATE TO THE ASSESSEE AND IT WAS SUBMITTED THAT SINCE THE ASSESS EE WAS DIRECTOR FINANCE OF OMAXE AND THE COMPANY WAS IN REAL ESTATE BUSINESS T HE SAME WAS IN RESPECT OF THEIR TRANSACTION. HOWEVER, NOT BEING SATISFIED WI TH THE EXPLANATION GIVEN BY THE ASSESSEE, THE ASSESSING OFFICER MADE ADDITION O F RS.3 LAKHS TO THE TOTAL INCOME OF THE ASSESSEE ON THE GROUND THAT THE RECEI PT WAS FOUND FROM THE RESIDENTIAL PREMISES OF THE ASSESSEE AND THE ONUS W AS ON HIM TO EXPLAIN THE SAME. SINCE THE ASSESSEE FAILED TO DISCHARGE THE O NUS CAST ON HIM, THEREFORE, THE AMOUNT WAS ADDED TO THE INCOME OF THE ASSESSEE BY T HE ASSESSING OFFICER AS 4 ITA NOS.2413 & 2414/DEL/2015 UNEXPLAINED. THE ASSESSING OFFICER FURTHER NOTED T HAT AS PER ANNEXURE-5, PAGE 122, SOME HANDWRITTEN PAPERS CONTAINING SOME ACCOUN TS WERE FOUND. ON BEING QUESTIONED BY THE ASSESSING OFFICER, IT WAS SUBMITT ED THAT THE SAME RELATES TO SOME PRESENTATION/ESTIMATES IN RESPECT OF SOME WORK RELATING OMAXE PLAZA. IT WAS SUBMITTED THAT THE PERSON WHO WORKED IN SOME OF THE MOTI MAHAL RESTAURANT MAY HAVE LEFT THE PAPER. THE ASSESSEE C OMPLETELY DENIED THE OWNERSHIP OF SUCH HANDWRITTEN PAPER. HOWEVER, THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSE E. HE HELD THAT SINCE THE PAPER WAS FOUND FROM THE PREMISES OF THE ASSESSEE A ND THE ASSESSEE WAS UNABLE TO EXPLAIN THE NATURE AND SOURCE OF AMOUNT MENTIONE D THEREIN, THEREFORE, HE IS LIABLE FOR THE SAME. HE ACCORDINGLY MADE ADDITION OF RS.4,02,000/- TO THE TOTAL INCOME OF THE ASSESSEE. THUS, IN EFFECT THE ASSESS ING OFFICER MADE ADDITION OF RS.22,93,000/- TO THE TOTAL INCOME OF THE ASSESSEE AND DETERMINED THE INCOME AT RS.43,71,558/-. 4. IN APPEAL, THE LD. CIT(A) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. 5. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUND S OF APPEAL :- 1. THE LD. CIT (A) HAS GROSSLY ERRED ON FACTS AS W ELL AS IN LAW IN UPHOLDING THE ASSESSMENT ORDER WHICH IS ILLEGAL AND AGAINST THE P RINCIPLES OF NATURAL JUSTICE. 2. THE LD. CIT (A) HAS GROSSLY ERRED ON FACTS AS WE LL AS IN LAW IN HOLDING THAT THE ASSESSING OFFICER HAS GIVEN REASONABLE OPPORTUNITY BEFORE MAKING ADDITION. 3. THE LD. CIT (A) HAS GROSSLY ERRED ON FACTS AS WE LL AS IN LAW IN NOT IGNORING THE CORRESPONDENCE OF LD. AO WITH M/S OMAXE CONSTRUCTIO NS LTD. WHICH WAS USED 5 ITA NOS.2413 & 2414/DEL/2015 AGAINST THE APPELLANT THOUGH THE SAME WAS NEVER CON FRONTED TO THE APPELLANT. 4. THE LD. CIT (A) HAS GROSSLY ERRED ON FACTS AS WE LL AS IN LAW IN CONFIRMING THE ADDITION OF RS. 3,00,000/- ON ACCOUNT OF THE SEIZED DOCUMENT. 5. THE LD. CIT (A) HAS GROSSLY ERRED ON FACTS AS WE LL AS IN LAW IN CONFIRMING THE ADDITION OF RS. 4,02,000/- ON ACCOUNT OF THE SEIZED DOCUMENT. 6. THE LD. CIT (A) HAS GROSSLY ERRED ON FACTS AS WE LL AS IN LAW IN CONFIRMING THE ADDITION OF RS. 15,91,000/- ON ACCOUNT OF THE SEIZE D DOCUMENT. 7. THE LD. CIT (A) HAS GROSSLY ERRED ON FACTS AS WE LL AS IN LAW IN MAKING ADDITION OF RS. 22,93,000/- U/S 69C WITHOUT ANY EVI DENCE OF EXPENDITURE HAVE BEEN INCURRED. 8. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY AND WITHDRAW ANY GROUND OF APPEAL BEFORE OR DURING THE APPELLATE PROCEEDINGS. 6. LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET STRON GLY CHALLENGED THE ORDER OF THE LD. CIT(A) IN UPHOLDING THE VARIOUS ADDITIONS M ADE BY THE ASSESSING OFFICER. 7. SO FAR AS ADDITION OF RS.3,00,000/- IS CONCERNED , HE SUBMITTED THAT RECEIPT OF RS.3,00,000/- BY THE ASSESSING OFFICER ON THE BA SIS OF A PIECE OF PAPER IN WHICH THE NAME IS NOT LEGIBLE AND THE DOCUMENT DOES NOT MENTION THE NAME OF THE ASSESSEE IS NOT JUSTIFIED. HE SUBMITTED THAT T HE DOCUMENT DOES NOT INDICATE THE PAYMENT OF RS.3,00,000/- BY THE ASSESSEE AND TH E SAME IS NOT IN THE HANDWRITING OF THE ASSESSEE. FURTHER, THE DOCUMENT DOES NOT INDICATE THE PURPOSE OF PAYMENT I.E. WHETHER IT IS FOR GOODS SUP PLIED OR SERVICES RENDERED OR LOAN OR ADVANCE ETC. THE DATE ON THE DOCUMENT IS N OT CLEAR BUT IT APPEARS TO BE 04.03.2002 AND, THEREFORE, THE DOCUMENT DOES NOT PE RTAIN TO ASSESSMENT YEAR 2005-06. FURTHER, THE DOCUMENT DOES NOT INDICATE T HE IDENTIFICATION OF THE RECIPIENT BY WAY OF NAME, ADDRESS, PHONE NO., PAN E TC. AND IT SIMPLY HAS SOME SIGNATURE ONLY. 6 ITA NOS.2413 & 2414/DEL/2015 8. SO FAR AS DOCUMENT REGARDING ADDITION OF RS.4,02 ,000/- IS CONCERNED, HE SUBMITTED THAT THE DOCUMENT DOES NOT HAVE ANY DATE, THEREFORE, IT CANNOT BE SAID THAT IT PERTAINS TO FINANCIAL YEAR 2004-05. FURTHE R, THE DOCUMENT HAS SIMPLY SOME JOTTINGS OF CERTAIN FIGURES AND DOES NOT MENTI ON THE NAME OF THE ASSESSEE. THE DOCUMENT DOES NOT INDICATE WHETHER THE FIGURES ARE FOR RECEIPT OR PAYMENT AND IS NOT IN THE HANDWRITING OF THE ASSESSEE. IT DOES NOT INDICATE THE MODE OF PAYMENT, IF ANY, I.E. WHETHER IN CASH OR BY CHEQUE. THE DOCUMENT DOES NOT MENTION THE PURPOSE OF THE PAYMENT. IT DOES NOT IN DICATE THE IDENTIFICATION OF THE PAYER/PAYEE, IF ANY, BY WAY OF NAME, ADDRESS, P HONE NO., PAN ETC. AND THE DOCUMENT DOES NOT SAY THAT THE FIGURES ARE IN LAKH. 9. SO FAR AS ADDITION OF RS.15,91,000/- IN RESPECT OF BYCULLA PROPERTY IS CONCERNED, HE SUBMITTED THAT THE ASSESSEE DOES NOT HAVE ANY RESIDENCE IN BYCULLA NOR THIS DOCUMENT INDICATES THAT PAYMENTS W ERE RECEIVED BY THE ASSESSEE. FURTHER, THE DOCUMENT WAS NOT IN THE HAN DWRITING OF THE ASSESSEE AND IT DOES NOT INDICATE THE IDENTIFICATION OF THE RECI PIENT BY WAY OF NAME, ADDRESS, PHONE NO. AND PAN ETC. FURTHER, THE DOCUMENT DOES NOT BEAR ANYBODYS SIGNATURE. HE SUBMITTED THAT THIS IS A ROUGH PAPER ON WHICH RECEIPT OF SOME PAYMENTS HAVE BEEN JOTTED DOWN. HE SUBMITTED THAT SIMILAR ADDITION WAS MADE BY THE ASSESSING OFFICER ON THE BASIS OF SOME ROUGH DOCUMENTS IN THE CASE OF ASSESSEE DURING THE ASSESSMENT YEARS 2003-04 AND 20 04-05 AND THE TRIBUNAL 7 ITA NOS.2413 & 2414/DEL/2015 VIDE ITA NO.3031/DEL/2012 AND ITA NO.3032/DEL/2012 ORDER DATED 29.07.2016 HAS DELETED ALL SUCH ADDITIONS. 10. RELYING ON VARIOUS DECISIONS, HE SUBMITTED THAT IF AN INCOME NOT EARNED BY ASSESSEE IS TO BE ASSESSED IN THE HANDS OF THE A SSESSEE, THE BURDEN TO ESTABLISH THAT SUCH INCOME IS CHARGEABLE TO TAX IS ON THE ASS ESSING OFFICER. FOR THE PURPOSE OF RESORTING TO THE DEEMING PROVISIONS, DUM B DOCUMENTS OR DOCUMENTS WITH NO CERTAINTY HAVE NO EVIDENTIARY VALUE. FURTH ER, UNCORROBORATED LOOSE PAPERS CANNOT BE TAKEN AS THE SOLE BASIS FOR DETERM INATION OF UNDISCLOSED INCOME. HE ALSO RELIED ON THE FOLLOWING DECISIONS :- (I) ACIT VS. SHARAD CHAUDHARY, (2014) 108 DTR (DEL ) (TRIB) 201. (II) BANSAL STRIPS (P) LTD. & ORS. VS. ACIT, (2006 ) 99 ITD 177 (DEL). (III) ASHWANI KUMAR VS. ITO, (1992) 42 TTJ (DEL) 6 44. (IV) N.K. MALHAN VS. DCIT, (2004) 91 TTJ (DEL) 938 . (V) CIT VS. GIRISH CHAUDHARY, (2008) 296 ITR 619 ( DEL). (VI) CIT VS. BABU MOHAN LAL ARYY SMARAK EDUCATIONAL TRUST, 2013 (11) TMI 664 (ALL). (VII) ACIT VS. BULDANA URBAN COOPERATIVE CREDIT SOC IETY LTD., (2013) 85 DTR (NAG) (TRIB) 410. (VIII) CIT VS. B. M. TRANSPORT, 2010-TIOL-578-HC-AH M-IT. 11. HE SUBMITTED THAT THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE HAS BEEN UPHELD BY THE HONBLE JURISDICTIONAL HIGH COUR T AND THE APPEAL FILED BY 8 ITA NOS.2413 & 2414/DEL/2015 THE REVENUE IS DISMISSED. HE ACCORDINGLY SUBMITTED THAT THIS BEING A COVERED MATER IN FAVOUR OF THE ASSESSEE ON THE BASIS OF THE SAID LOOSE DOCUMENTS, THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFIC ER AND UPHELD BY THE LD. CIT(A) IS LIABLE TO BE DELETED. 12. LD. DR ON THE OTHER HAND HEAVILY RELIED ON THE ORDER OF THE LD. CIT(A). SHE SUBMITTED THAT WHEN THE DOCUMENTS WERE FOUND AN D SEIZED FROM THE RESIDENCE OF THE ASSESSEE, THE ONUS IS ON THE ASSES SEE TO EXPLAIN THE NATURE OF SUCH DOCUMENTS AND ALSO TO EXPLAIN THE NATURE OF RE CEIPT AND PAYMENT AS MENTIONED THEREIN. SINCE THE ASSESSEE IN THE INSTA NT CASE HAS FAILED TO DISCHARGE THE ONUS CAST ON HIM, THEREFORE, THE ORDER OF THE L D. CIT(A) UPHOLDING THE ADDITION MADE BY THE ASSESSING OFFICER IS FULLY JUS TIFIED. 13. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE PAPER B OOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECI SIONS CITED BEFORE US. WE FIND DURING THE SEARCH AT THE PREMISES OF THE ASSES SEE CERTAIN PAPERS RELATING TO BYCULLA PROPERTY WERE FOUND AND SEIZED AS PER ANNEX URE-2 & ANNEXURE-8. SIMILARLY, PAPER CONTAINING RECEIPT OF RS.3,00,000/ - WAS FOUND AT PAGE 56 OF ANNEXURE-2. FURTHER PAGE 122 OF ANNEXURE-5 CONTAIN ING SOME AMOUNTS AS PER HANDWRITING WAS ALSO FOUND THE TOTAL OF WHICH COMES TO RS.4,02,000/-. IN ABSENCE OF ANY PROPER EXPLANATION BY THE ASSESSEE, THE ASSESSING OFFICER MADE ADDITION OF THE ABOVE AMOUNTS TOTALING TO RS.22,93, 000/- WHICH HAS BEEN UPHELD 9 ITA NOS.2413 & 2414/DEL/2015 BY THE LD. CIT(A). IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE PAPERS DO NOT BELONG TO THE ASSESSEE AND THEY P ERTAIN TO THE OMAXE PLAZA OF WHICH THE ASSESSEE IS DIRECTOR FINANCE. IT IS HIS SUBMISSION THAT THE ASSESSEE DOES NOT OWN ANY PROPERTY AT BYCULLA AND THE PAPERS DO NOT CONTAIN HIS NAME OR HIS SIGNATURE NOR THESE PAPERS ARE IN HIS OWN HANDW RITING. IT IS ALSO HIS SUBMISSION THAT PAGE 56 OF ANNEXURE-2 DATED 04.03.2 002 PERTAINS TO ASSESSMENT YEAR 2005-06 AND DOES NOT PERTAIN TO THIS ASSESSMEN T YEAR. IT IS ALSO HIS SUBMISSION THAT IDENTICAL ADDITION WAS DELETED BY T HE TRIBUNAL IN ASSESSEES OWN CASE WHICH HAS BEEN UPHELD BY THE HONBLE JURISDICT IONAL HIGH COURT. 14. WE FIND MERIT IN THE ABOVE SUBMISSION OF THE LD . COUNSEL FOR THE ASSESSEE. WE FIND IDENTICAL ADDITION WAS MADE IN THE HANDS OF THE ASSESSEE ON THE BASIS OF SUCH LOOSE PAPERS FOUND FROM HIS PREMISES IN ASSESS MENT YEAR 2003-04 AND 2004-05. THE ADDITION MADE BY THE ASSESSING OFFICE R WAS UPHELD BY THE LD. CIT(A). ON FURTHER APPEAL BY THE ASSESSEE, THE TRI BUNAL DELETED THE ADDITION MADE BY THE ASSESSING OFFICER BY OBSERVING AS UNDER :- 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE S OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS RELIED UPON AND ORDERS P ASSED BY THE REVENUE AUTHORITIES BELOW IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES O F THE CASE. 5. LD. AR FOR THE ASSESSEE CHALLENGING THE IMPUGNED ORDER CONTENDED INTER ALIA THAT NONE OF THE LOOSE PAPER RECOVERED FROM THE RES IDENTIAL PREMISES OF THE OMAXE LIMITED BEARS HIS SIGNATURES, HANDWRITING, ADDRESS OF THE ASSESSEE, DATE, ETC.; THAT NONE OF THE PAPER WAS RECOVERED FROM THE POSSESSION OF THE ASSESSEE; THAT NO HOUSE BELONGING TO THE ASSESSEE HAS BROUGHT ON RECORD BY THE AO AS ALLEGED IN THE LOOSE PAPER; THAT THE LOOSE PAPER EVEN DOES NOT PERTAIN T O THE PERIOD UNDER ASSESSMENT; THAT THERE IS NO ENTRY IN THE BOOKS OF ACCOUNT OF THE AS SESSEE PERTAINING TO THE PAYMENT MADE BY CHEQUE IN QUESTION; THAT OPPORTUNITY OF BEI NG HEARD HAS NOT BEEN PROVIDED TO THE ASSESSEE DURING ASSESSMENT PROCEEDINGS AND RELI ED UPON THE JUDGMENTS CITED AS CIT VS. VIVEK AGGARWAL 2015- TIOL-459-HC-DEL-IT, BANSAL STRIPS (P) LTD. & 10 ITA NOS.2413 & 2414/DEL/2015 ORS. VS. ACIT (2006) 99 ITD 177 (DEL.), ASHWANI KUM AR VS. ITO (1992) 42 TTJ (DEL) 644 AND N.K. MALHAN VS. DCIT (2004) 91 TTJ (DEL) 93 8. HOWEVER, ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY AO/ CIT(A). 6. UNDISPUTEDLY, SEIZED DOCUMENTS PERTAIN TO ADDITI ON OF RS.98,16,450/- QUA THE AY 2003-04 ARE AVAILABLE AT PAGES 1 TO 4 OF THE PAP ER BOOK FILED BY THE ASSESSEE; THAT SEIZED DOCUMENTS PERTAINING TO ADDITION OF RS.95,27 ,126/- QUA THE AY 2004-05 ARE AVAILABLE AT PAGES 1 TO 3 OF THE PAPER BOOK FILED B Y THE ASSESSEE; THAT SEIZED DOCUMENT, AVAILABLE AT PAGES 1 TO 4 QUA AY 2003-04 AND PAGES 1 TO 3 QUA AY 2004- 05, DO NOT BEAR NAME, ADDRESS, SIGNATURES AND HANDW RITING OF THE ASSESSEE. 7. IN THE BACKDROP OF THE AFOREMENTIONED FACTS AND CIRCUMSTANCES, UNDISPUTED FACTS AND CONTENTIONS RAISED BY THE PARTIES, THE FI RST QUESTION ARISES FOR DETERMINATION IS :- 'AS TO WHETHER ADDITION MADE BY AO AND AFFIRMED BY CIT (A) AT RS.98,16,450/- AND RS.95,27,126/- QUA AYS 2003-04 A ND 2004-05 RESPECTIVELY ON THE BASIS OF LOOSE PAPER RECOVERED DURING SEARCH AND SEIZURE OPERATION CONDUCTED AT THE RESIDENTIAL PREMISES OF M/S. OMAXE LIMITED ON 22.09.2005 IS NOT SUSTAINABLE AS ALLEGED BY THE ASSESSEE.' 8. BARE PERUSAL OF THE ASSESSMENT ORDERS AND IMPUGN ED ORDERS PASSED BY CIT (A) SHOWS THAT DOCUMENTS SEIZED DURING SEARCH AND SEIZU RE APPARENTLY GOES TO PROVE THAT THE ASSESSMENTS IN THESE CASES HAVE BEEN MADE BY TH E AO AND AFFIRMED BY THE CIT (A) ON THE BASIS OF SUSPICION, WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW FOR THE FOLLOWING REASONS :- I. THAT THE FIRST DOCUMENT LYING AT PAGE 1 OF THE P APER BOOK ON THE BASIS OF WHICH ADDITION OF RS.5,00,000/- HAS BEEN MADE IS CA TEGORIC ENOUGH TO DISCLOSE THAT ONE K.L. BHATIA, S/O LAL CHAND BHATIA HAS TAKE N INTEREST FREE LOAN OF RS.5,00,000/- FROM THE ASSESSEE WHICH HAS BEEN TRAC ED TO THE CHEQUE NO.268868 HAVING BEEN PAID BY M/S. BHA ASSOCIATES P VT. LTD. TO M/S. LANDMARK ESTATE PVT. LTD. BEING THE SALE PROCEEDS F OR PURCHASE OF SHOP IN NEW FRIENDS COLONY; II. THAT THE AO AS WELL AS CIT (A) HAVE REJECTED TH E CONTENTION MERELY ON THE GROUND THAT THE CHEQUE NUMBER GIVEN BY THE ASSESSEE IS 26888 WHEREAS CHEQUE NO RELIED UPON BY ASSESSEE IS 268868. TO OUR MIND, THIS IS A TYPOGRAPHICAL ERROR IN WRITING THE CHEQUE NUMBER WHICH SHOULD HAV E BEEN VERIFIED BY THE AO FROM THE DEBIT CREDIT ENTRIES MAINTAINED BY THE RES PECTIVE BANKS. SO, THIS ADDITION IS NOT SUSTAINABLE; III. THAT ADDITION OF RS.40,85,000/- ON THE BASIS O F LOOSE DOCUMENT, AVAILABLE AT PAGE 3 OF THE PAPER BOOK PERTAINING TO AY 2003-04, IS AN ESTIMATE OF HOUSE CONSTRUCTION OF 4800 SQ.FT. @ RS.1,100/-. BUT THIS PAPER DOES NOT INDICATE THE LOCATION OF THE HOUSE UNDER CONSTRUCTION NOR DOES T HIS BEAR THE SIGNATURES AND HANDWRITING OF THE ASSESSEE. MORE SO, NO SUCH HOUSE HAS BEEN LOCATED BY THE AO BELONGING TO THE ASSESSEE HAVING BEEN CONSTRUCTE D DURING THE YEAR UNDER ASSESSMENT NOR DOES IT INDICATE IF THE AMOUNT WAS PAID BY WAY OF CHEQUE OR CASH. SO, THIS ADDITION IS AGAIN MADE BY THE AO ON THE BASIS OF SUSPICION WITHOUT COLLECTING EVIDENCE, HENCE NOT SUSTAINABLE; IV. THAT ADDITION OF RS.49,00,000/- ON THE BASIS OF LOOSE DOCUMENT, AVAILABLE AT PAGE 4 OF THE PAPER BOOK PERTAINING TO AY 2003-04, IS MADE UNDER THE HEAD 'EXTRAS NOT INCLUDED IN BASIS CONSTRUCTION'. AGAIN, THIS PAPER DOES NOT INDICATE IF IT PERTAINS TO THE ASSESSEE NOR THE ADD RESS AND LOCATION OF THE 11 ITA NOS.2413 & 2414/DEL/2015 PROPERTY IS MENTIONED THEREIN NOR SUCH PROPERTY HAS BEEN LOCATED BY THE AO DURING THE ASSESSMENT PROCEEDINGS. THE AO HAS ALSO NOT BROUGHT ON RECORD ANY FORENSIC EVIDENCE TO PROVE THE HANDWRITING OF T HE LOOSE PAPER RELIED UPON BY HIM TO MAKE THE ADDITION, WHICH IS EXCLUSIVELY M ADE ON THE BASIS OF SUSPICION AND GUESSWORK. EVEN NO CORROBORATIVE MATE RIAL HAS BROUGHT ON RECORD BY THE AO TO SUBSTANTIATE THE ADDITION NOR T HE CIT (A) HAS CALLED FOR ANY REMAND REPORT SEEKING CORROBORATIVE EVIDENCE, I F ANY; V. THAT SIMILAR IS THE FATE OF THE ADDITION OF RS.3 ,31,450/- MADE BY THE AO QUA AY 2003-04 ON THE BASIS OF PAPER/BILL, AVAILABLE AT PAGE 2 OF THE PAPER BOOK, AS IT DOES NOT BEAR THE NAME OF THE ASSESSEE BEING A PURCHASER NOR DOES AO BROUGHT ON RECORD ANY EVIDENCE BY MAKING VERIFICATI ON QUA INVOICE NO.162133 IF ISSUED BY JOHNSON, WHEREIN IT IS CATEGORICALLY M ENTIONED THAT THE PAYMENT HAS BEEN RECEIVED BY WAY OF CHEQUE. AO HAS ALSO NOT TRACED THE CHEQUE AS TO MAKING THE PAYMENT OF THE AFORESAID AMOUNT FORM THE ISSUING AGENCY OF THE INVOICE IN QUESTION; VI. THAT EVEN OTHERWISE, THE AO HAS ALSO NOT BROUGH T ON RECORD ANY MATERIAL TO PROVE THAT THE ASSESSEE WAS IN CONSCIOUS POSSESSION OF AFORESAID DOCUMENTS ON THE BASIS OF WHICH ADDITION HAS BEEN MADE RATHER VA GUELY STATED THAT THE DOCUMENT/PAPERS WERE RECOVERED FROM THE HOUSE OF AS SESSEE. VII. THAT DESPITE DENIAL OF THE ASSESSEE THAT THE L OOSE PAPERS DO NOT BELONG TO HIM IN ANY MANNER, AO INVOKED THE DEEMING PROVISION S WITHOUT COLLECTING ANY CORROBORATIVE EVIDENCE; VIII. THAT THE AO HAS MADE ADDITION OF RS.1,00,000/ - QUA AY 2004-05 AS UNEXPLAINED EXPENDITURE U/S 69 OF THE ACT ON THE BA SIS OF PAPER/DOCUMENT, AVAILABLE AT PAGE 1 OF THE PAPER BOOK -B. BARE PERU SAL OF THE PAPER SHOWS THAT THE SAME DOES NOT BEAR THE NAME OF THE ASSESSEE NOR IT IS IN THE HANDWRITING OF ASSESSEE NOR DOES IT EXPLAIN THE PURPOSE OF MAKING AND RECEIVING PAYMENT. MERELY ON THE BASIS OF THIS DOCUMENT, ADDITION CANN OT BE MADE AS THE SAME IS NOT SUBSTANTIATED WITH ANY EVIDENCE; IX. THAT THE AO HAS MADE ANOTHER ADDITION OF RS.3,3 1,450/- ON THE BASIS OF A SEIZED DOCUMENT, AVAILABLE AT PAGE 2 OF THE PAPER B OOK-B. PERUSAL OF THE DOCUMENT, AVAILABLE AT PAGE 2 OF PAPER BOOK - B, AP PARENTLY SHOWS THAT THE DOCUMENT CONTAINS THE FIGURE OF RS.50,000/- STATED TO HAVE RECEIVED AS RENT BUT AGAIN THIS DOCUMENT IS BEREFT OF NAME OF THE RECIPI ENT, DESCRIPTION OF THE RENTED PROPERTY AND AS TO WHO IS THE PAYEE OF THE A MOUNT IN QUESTION. STRANGELY ENOUGH, ON THE BASIS OF SEIZED DOCUMENT/P APER SHOWING THE AMOUNT OF RS.50,000/- THE ADDITION OF RS.3,31,450/- HAS BE EN MADE BY THE AO ON THE BASIS OF WHIMS AND FANCIES AND THEREAFTER THE LD. C IT (A) HAVE FURTHER PERPETUATED THE ERROR COMMITTED BY AO WITHOUT INSIS TING UPON ANY COGENT MATERIAL TO SUSTAIN THE ADDITION; X. THAT ON THE BASIS OF SEIZED DOCUMENT, AVAILABLE AT PAGE 3 OF PAPER BOOK - B, AO MADE AN ADDITION OF RS.80,50,000/- BY MERELY STA TING THAT THE ARGUMENT ADDRESSED BY ASSESSEE IS NOT ACCEPTABLE. FOR THE SA KE OF REPETITION, IT IS AGAIN REITERATED THAT THIS DOCUMENT IS SILENT AS TO THE P AYER AND PAYEE OF THE AMOUNT IN QUESTION NOR DOES IT DISCLOSE THAT THE PAYMENT W AS MADE BY CHEQUE OR CASH NOR IT IS PROVED THAT THE DOCUMENT IS IN THE HANDWR ITING OF ASSESSEE OR AT LEAST BEARS HIS SIGNATURES. SO, WE ARE OF THE CONSIDERED VIEW THAT THE ADDITION OF RS.80,50,000/- ON THE BASIS OF THIS DOCUMENT IS ALS O NOT SUSTAINABLE. 12 ITA NOS.2413 & 2414/DEL/2015 9. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, ADDITI ONS MADE BY THE AO AND AFFIRMED BY THE LD. CIT (A) VIDE IMPUGNED ORDERS AR E NOT SUSTAINABLE IN THE EYES OF LAW, HENCE HEREBY DELETED AND CONSEQUENTLY, BOTH TH E APPEALS FILED BY THE ASSESSEE STAND ALLOWED. 15. WE FIND WHEN THE REVENUE CHALLENGED THE ORDER O F THE TRIBUNAL, THE HONBLE HIGH COURT VIDE ITA NO.57/2017 ORDER DATED 14.07.2017 DISMISSED THE APPEAL FILED BY THE REVENUE. THE RELEVANT OBSERVAT ION OF THE HONBLE HIGH COURT READS AS UNDER :- 5. THE ITAT IN THE IMPUGNED ORDER NOTED THAT THE S AID DOCUMENT 'DOES NOT INDICATE IF IT PERTAINS TO THE ASSESSEE NOR THE ADD RESS AND LOCATION OF THE PROPERTY IS MENTIONED THEREIN NOR SUCH PROPERTY HAS BEEN LOCATE D BY THE AO DURING THE ASSESSMENT PROCEEDINGS. THE AO HAS ALSO NOT BROUGHT ON RECORD ANY FORENSIC EVIDENCE TO PROVE THE HANDWRITING OF THE LOOSE PAPE R RELIED UPON BY HIM TO MAKE THE ADDITION, WHICH IS EXCLUSIVELY MADE ON THE BASIS OF SUSPICION AND GUESSWORK. EVEN NO CORROBORATIVE MATERIAL HAS BROUGHT ON RECORD BY THE AO TO SUBSTANTIATE THE ADDITION NOR THE CIT(A) HAS CALLED FOR ANY REMAND REPORT SEE KING CORROBORATIVE EVIDENCE, IF ANY.' 6. IN THE CONSIDERED VIEW OF THE COURT, THE ADDITIO N OF RS. 49 LAKHS TO THE RETURNED INCOME OF THE ASSESSEE WAS BASED ON SURMIS ES AND CONJECTURES AND THAT TOO ON THE BASIS OF A SINGLE DOCUMENT WITHOUT MAKING AN Y FURTHER ENQUIRY. NO ATTEMPT WAS MADE BY THE AO TO FIND OUT IF IN FACT IT CONSTITUTE D THE CONSTRUCTION EXPENSES OF ANY PROJECT OF THE AFOREMENTIONED COMPANY OF WHICH THE ASSESSEE WAS A DIRECTOR. 16. SINCE THE ASSESSEE IN THE INSTANT CASE WAS ALSO DENYING FROM THE VERY BEGINNING THAT THE ASSESSEE DOES NOT OWN ANY PROPER TY AT BYCULLA AND DOCUMENTS RELATING TO ADDITION OF RS.3,00,000/- AND RS.4,02,000/- DO NOT MENTION THE NAME OF THE ASSESSEE NOR ARE IN THE HAN DWRITING OF THE ASSESSEE, THEREFORE, FOLLOWING THE DECISION OF THE TRIBUNAL I N ASSESSEES OWN CASE ON THE BASIS OF SIMILAR SEIZED PAPERS WHICH HAS BEEN UPHEL D BY THE HON'BLE HIGH COURT AND IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE, WE ARE OF THE 13 ITA NOS.2413 & 2414/DEL/2015 CONSIDERED OPINION THAT THE ADDITION MADE BY THE AS SESSING OFFICER AND UPHELD BY THE LD. CIT(A) IS NOT JUSTIFIED. ACCORDINGLY, T HE SAME IS DIRECTED TO BE DELETED. THE GROUNDS RAISED BY THE ASSESSEE ARE AC CORDINGLY ALLOWED. ITA NO.2414/DEL/2015 (A.Y. 2006-07) : 17. AFTER HEARING BOTH THE SIDES, WE FIND THE GROUN DS RAISED BY THE ASSESSEE IN THE IMPUGNED APPEAL ARE IDENTICAL TO THE GROUNDS RA ISED IN ITA NO.2413/DEL/2015. WE HAVE ALREADY DECIDED THE ISSU E AND THE GROUNDS RAISED BY THE ASSESSEE HAVE BEEN ALLOWED. FOLLOWING SIMIL AR REASONING, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 18. IN THE RESULT, BOTH THE APPEALS FILED BY THE AS SESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH MARCH, 2018. SD/- SD/- (BEENA A. PILLAI) (R. K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 16-03-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI