Mr. Braham Arenja, New Delhi V. ACIT, New Delhi

ITA 2578/DEL/2015

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0053 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2006-2007
• Appeal Filed On: 01-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Tax effect
• Section: 143(3); 153A; 69; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH A AA A : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND PRESIDENT AND PRESIDENT AND PRESIDENT AND SMT. BEENA PILLAI SMT. BEENA PILLAI SMT. BEENA PILLAI SMT. BEENA PILLAI, JUDICIAL , JUDICIAL , JUDICIAL , JUDICIAL MEMBER MEMBER MEMBER MEMBER ITA NO ITA NO ITA NO ITA NO . .. . 2578 2578 2578 2578 /DEL/201 /DEL/201 /DEL/201 /DEL/201 5 55 5 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2006 2006 2006 2006 - -- - 0 00 0 7 77 7 BRAHAM ARENJA BRAHAM ARENJA BRAHAM ARENJA BRAHAM ARENJA C/O. M/S C/O. M/S C/O. M/S C/O. M/S ROHIT MALIK & ASSOCIATES, ROHIT MALIK & ASSOCIATES, ROHIT MALIK & ASSOCIATES, ROHIT MALIK & ASSOCIATES, 1403, C 1403, C 1403, C 1403, CHIRANJIV TOWER, 43, HIRANJIV TOWER, 43, HIRANJIV TOWER, 43, HIRANJIV TOWER, 43, NEHRU PLACE, NEW DELHI NEHRU PLACE, NEW DELHI NEHRU PLACE, NEW DELHI NEHRU PLACE, NEW DELHI PAN :AADPA1953D PAN :AADPA1953D PAN :AADPA1953D PAN :AADPA1953D VS. VS. VS. VS. ACIT, CENTRAL CIRCLE ACIT, CENTRAL CIRCLE ACIT, CENTRAL CIRCLE ACIT, CENTRAL CIRCLE - -- - 18 1818 18 NEW DELHI NEW DELHI NEW DELHI NEW DELHI (APPELLANT) (RESPONDENT) ITA NO ITA NO ITA NO ITA NO .2579/DEL/2015 .2579/DEL/2015 .2579/DEL/2015 .2579/DEL/2015 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2006 2006 2006 2006 - -- - 07 0707 07 BRINDA ARENJA BRINDA ARENJA BRINDA ARENJA BRINDA ARENJA C/O. M/S ROHIT C/O. M/S ROHIT C/O. M/S ROHIT C/O. M/S ROHIT MALIK & ASSOCIATES, 1403, MALIK & ASSOCIATES, 1403, MALIK & ASSOCIATES, 1403, MALIK & ASSOCIATES, 1403, CHIRANJIV CHIRANJIV CHIRANJIV CHIRANJIV TOWER, 43, NEHRU TOWER, 43, NEHRU TOWER, 43, NEHRU TOWER, 43, NEHRU PLACE, NEW DELHI PLACE, NEW DELHI PLACE, NEW DELHI PLACE, NEW DELHI PAN : PAN : PAN : PAN :ACAPA1368D ACAPA1368D ACAPA1368D ACAPA1368D VS. VS. VS. VS. ACIT, CENTRAL CIRCLE ACIT, CENTRAL CIRCLE ACIT, CENTRAL CIRCLE ACIT, CENTRAL CIRCLE - -- - 18 1818 18 NEW DELHI NEW DELHI NEW DELHI NEW DELHI (APPELLANT) (RESPONDENT) ITA NO ITA NO ITA NO ITA NO.2580/DEL/2015 .2580/DEL/2015 .2580/DEL/2015 .2580/DEL/2015 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2006 2006 2006 2006 - -- - 07 0707 07 BRAHAM ARENJA (HUF) C/O. BRAHAM ARENJA (HUF) C/O. BRAHAM ARENJA (HUF) C/O. BRAHAM ARENJA (HUF) C/O. M/S ROHIT MALIK & ASSOCIATES, M/S ROHIT MALIK & ASSOCIATES, M/S ROHIT MALIK & ASSOCIATES, M/S ROHIT MALIK & ASSOCIATES, 1403, CHIRANJIV T 1403, CHIRANJIV T 1403, CHIRANJIV T 1403, CHIRANJIV TOWER, 43, OWER, 43, OWER, 43, OWER, 43, NEHRU PLACE, NEW DELHI NEHRU PLACE, NEW DELHI NEHRU PLACE, NEW DELHI NEHRU PLACE, NEW DELHI PAN :AAEHB0364A PAN :AAEHB0364A PAN :AAEHB0364A PAN :AAEHB0364A VS. VS. VS. VS. ACIT, CENTRAL CIRCLE ACIT, CENTRAL CIRCLE ACIT, CENTRAL CIRCLE ACIT, CENTRAL CIRCLE - -- - 18 1818 18 NEW DELHI NEW DELHI NEW DELHI NEW DELHI (APPELLANT) (RESPONDENT) ITA NO ITA NO ITA NO ITA NO . .. . 3274 3274 3274 3274 /DEL/2015 /DEL/2015 /DEL/2015 /DEL/2015 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 20 2020 20 12 1212 12 - -- - 13 1313 13 THE ACIT, CENTRAL CIRCLE THE ACIT, CENTRAL CIRCLE THE ACIT, CENTRAL CIRCLE THE ACIT, CENTRAL CIRCLE - -- - 18, 18, 18, 18, JHANDEWALAN, NEW DELHI JHANDEWALAN, NEW DELHI JHANDEWALAN, NEW DELHI JHANDEWALAN, NEW DELHI VS. VS. VS. VS. SMT. BRINDA AREN SMT. BRINDA AREN SMT. BRINDA AREN SMT. BRINDA AREN JA, N JA, N JA, N JA, N - -- - 51, 51, 51, 51, PANCHSHEEL PARK, NEW DELHI PANCHSHEEL PARK, NEW DELHI PANCHSHEEL PARK, NEW DELHI PANCHSHEEL PARK, NEW DELHI PAN : PAN : PAN : PAN :ACAPA1368D ACAPA1368D ACAPA1368D ACAPA1368D (APPELLANT) (RESPONDENT) 2 ITA NO ITA NO ITA NO ITA NO. .. .3113 3113 3113 3113/DEL/2015 /DEL/2015 /DEL/2015 /DEL/2015 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2012 2012 2012 2012- -- -13 1313 13 THE ACIT, CENTRAL CIRCLE THE ACIT, CENTRAL CIRCLE THE ACIT, CENTRAL CIRCLE THE ACIT, CENTRAL CIRCLE - -- - 18, 18, 18, 18, JHANDEWALAN, NEW DELHI JHANDEWALAN, NEW DELHI JHANDEWALAN, NEW DELHI JHANDEWALAN, NEW DELHI VS. VS. VS. VS. SMT. BRINDA ARENJA, N SMT. BRINDA ARENJA, N SMT. BRINDA ARENJA, N SMT. BRINDA ARENJA, N - -- - 51, 51, 51, 51, PANCHSHEEL PARK, NEW DEL PANCHSHEEL PARK, NEW DEL PANCHSHEEL PARK, NEW DEL PANCHSHEEL PARK, NEW DELHI HIHI HI PAN :ACAPA1368D PAN :ACAPA1368D PAN :ACAPA1368D PAN :ACAPA1368D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SATYEN SETHI, ADV RESPONDENT BY : SMT. SUNITA SINGH , CIT - DR. ORDER ORDER ORDER ORDER PER PER PER PER BENCH BENCH BENCH BENCH : :: : ITA NO. 2578/DEL/2015 ITA NO. 2578/DEL/2015 ITA NO. 2578/DEL/2015 ITA NO. 2578/DEL/2015 THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XXVII, NEW DELHI DATED 20 TH JANUARY, 2015 FOR THE AY 2006-07. 2. IN THIS APPEAL, THE FOLLOWING GROUNDS ARE RAISED BY THE ASSESSEE READS AS UNDER:- 1. THAT THE SEARCH U/S 132 CONDUCTED AT THE PREMIS ES OF THE APPELLANT ON 10.2.2012 WAS WITHOUT JURISDICTION AND NOT BASED ON ANY INCRIMINATING MATERIAL ON RECORD. THEREFORE, TH E PROCEEDINGS INITIATED U/S 153A WERE VOID ABINITIO. THE CONSEQUE NT ASSESSMENT U/S 153A READ WITH 143(3) BEING ILLEGAL, ERRONEOUS AND WITHOUT JURISDICTION, DESERVES TO BE QUASHED. 2. A) THAT THE APPELLANT HAD RECORDED THE ENTIRE A MOUNT OF INVESTMENT OF RS. 1,50,00,000/- PAID FOR PURCHASE O F SPACE AT INDIRAPURAM HABITAT CENTRE IN HIS BOOKS OF ACCOUNTS . THE CIT(APPEALS) WENT WRONG ON FACTS AND IN LAW IN SUST AINING THE ADDITION MADE BY THE ASSESSING OFFICER OF A SUM OF RS. 1,77,00,000/- AS UNDISCLOSED AMOUNT EXPENDED FOR MA KING THE INVESTMENT WHICH HAS NOT BEEN RECORDED IN HIS BOOKS OF ACCOUNTS, BASED ON AN EXCEL SPREADSHEET WHICH HAS NO EVIDENTI ARY VALUE. B) THE CONSEQUENT ADDITION OF RS. 1,77,00,000/- MA DE BY THE ASSESSING OFFICER AND SUSTAINED BY LD. CIT(A) BEING ILLEGAL, ERRONEOUS AND WITHOUT JURISDICTION, DESERVES TO BE DELETED. 3 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AME ND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE O F THE HEARING OF THE APPEAL. 3. AT THE TIME OF HEARING BEFORE US, IT IS POINTED OUT BY THE LEARNED COUNSEL THAT THIS ISSUE IS SQUARELY COVERED BY THE ITAT IN THE CASE OF SUBHASH KHATTAR IN ITA NO. 902/DEL/2015 WHICH IS UP HELD BY THE HONBLE JURISDICTIONAL HIGH COURT IN ITA NO. 60/201 7 VIDE ORDER DATED 25 TH JULY, 2017. HE STATED THAT DURING THE COURSE OF SE ARCH PROCEEDINGS IN THE PREMISES OF AERENS GROUP, CERTAIN MATERIAL W AS FOUND AND SEIZED WHICH WAS MARKED AS ANNEXURE-A-32 WHEREIN TH E DETAILS OF SALES STATUS OF INDIRAPURAM HABITAT CENTRE WERE FOU ND SHOWING THE NAME OF VARIOUS PERSONS WHICH INCLUDED THE ASSESSEE IN THE PRESENT APPEAL AS WELL AS MR. SUBHASH KHATTAR. THE ASSESSIN G OFFICER IN THE CASE OF SUBHASH KHATTAR HAD MADE THE ADDITION ON TH E BASIS OF SAID ANNEXURE-A-32 IN RESPECT OF CASH COMPONENT NOTED TH EREIN. THE ADDITION WAS SUSTAINED BY THE LEARNED CIT(A) BUT WH EN THE MATTER REACHED TO ITAT, THE ITAT DELETED THE ADDITION WITH THE FOLLOWING FINDING:- 8. CONSIDERING THE ABOVE SUBMISSIONS, WE FIND THAT THE LEARNED CIT(APPEALS) HAS UPHELD THE ADDITION IN QUE STION MAINLY ON THE BASIS OF (I) THE DETAILS WRITTEN ON T HE HARD DISC FOUND DURING THE COURSE OF SEARCH FROM THE PREMISES AERENS GROUP, WHEREIN PAYMENT THROUGH CHEQUE AND CASH HAVE BEEN MENTIONED AGAINST THE NAME OF ASSESSEE AT SR. NO.32 , SHRI I.E.SOOMAR APPEARING AT SR. NO. 39 OF THE SAID HARD DISC HAD ADMITTED THE CASH INVESTMENT OF RS. 6.64 CRORES BEI NG MADE IN THE SAID PROJECT AND HAD PAID THE TAXES ON THE S AME; (III) THE SAID HARD DISC CANNOT BE RELIED UPON IN PART AS THE ASSESSEE HAS ADMITTED THE PAYMENT THROUGH CHEQUE BU T DENIED THE CASH PAYMENT SHOWN THEREIN ETC. IN OUR V IEW, A HUGE ADDITION OF RS.3,21,00,000 CANNOT BE MADE IN A CASUAL MANNER WITHOUT HAVING CORROBORATIVE EVIDENCE IN SUP PORT. IT IS A PREVAILING PRACTICE IN THE DEALINGS OF IMMOVEA BLE PROPERTIES THAT CASH AMOUNT, IF ANY, OUT OF THE AGR EED CONSIDERATION IS PAID DURING THE COURSE OF EXECUTION/REGISTRATION OF THE SALE DEED AND ADMITTE DLY IN THE PRESENT CASE NO SALE DEED OR OTHER MODE OF TRANSFER HAS BEEN EFFECTED. MERELY BECAUSE NAME OF THE ASSESSEE IS AP PEARING IN THE SAID HARD DISC AND AMONGST OTHER INVESTORS A RE INVESTOR SHRI I.E. SOOMAR APPEARING IN THE SAID HARD DISC HA S ADMITTED PAYMENT OF CASH AMOUNT, CANNOT BE A BASIS FOR ARRIV ING AT A DEFINITE CONCLUSION, IN ABSENCE OF CORROBORATIVE EV IDENCE IN 4 SUPPORT, THAT THE ASSESSEE HAD ALSO PAID THE AMOUNT OF RS.3,21,00,000 IN CASH. THE HONBLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF CIT VS. PREM PRAKASH NAGPAL (SUPRA) WHEREIN ASSESSING OFFICER HAD MADE CERTAIN ADDITION S UNDER SEC. 69 OF THE ACT ON THE BASIS OF THE DOCUMENTS FO UND DURING SEARCH AT A PLACE OF THIRD PARTY WHICH INDICATED TH AT ASSESSEE HAD PURCHASED A PLOT BY PAYING CONSIDERATION IN CAS H, IT WAS HELD BY THE HONBLE HIGH COURT THAT THE ASSESSING O FFICER COULD NOT PROVE BY EVIDENCE THAT SAID DOCUMENTS BEL ONGED TO THE ASSESSEE AND THAT ANY ON MONEY TRANSACTION HAD TAKEN PLACE. THE DOCUMENTS AT THE BEST ONLY SHOWED TENTATIVE/PROJECTED PURCHASE CONSIDERATION HELD THE HON'BLE HIGH COURT. AGAIN, IN THE CASE OF CIT VS. ALPHA IMP ACT PVT. LTD. (SUPRA), THE HON'BLE BOMBAY HIGH COURT HAS BEE N PLEASED TO HOLD THAT ADDITION TO ASSESSEES INCOME IN RESPECT OF ADDITIONAL SALES CONSIDERATION RECEIVED IN SALE OF LAND MERELY ON THE BASIS OF EMAIL RECOVERED DURING THE C OURSE OF SEARCH ACTION AT THE PREMISES OF ANOTHER PERSON AND THERE BEING NO INDEPENDENT MATERIAL AVAILABLE SUPPORTING SUCH ADDITIONS, WAS NOT JUSTIFIED. BESIDES, WE ALSO FIND SUBSTANCE IN THE CONTENTION OF THE LEARNED AR THAT ASSESSMENT UN DER SEC. 153 A OF THE ACT IN ABSENCE OF INCRIMINATING MATERI AL FOUND DURING THE COURSE OF SEARCH AT THE PREMISES OF THE ASSESSEE AND IN ABSENCE OF ABATEMENT OF ASSESSMENT ON THE DA TE OF SEARCH, CANNOT BE MADE IN THE PRESENT CASE AS PER T HE ABOVE CITED DECISIONS INCLUDING THE DECISION OF HONBLE J URISDICTIONAL DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWL A (SUPRA). UNDER THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT TH E ASSESSING OFFICER WAS NOT JUSTIFIED IN. ASSUMING JU RISDICTION UNDER SECTION 153 A AND AUTHORITIES BELOW WERE ALSO NOT JUSTIFIED IN MAKING AND SUSTAINING THE ADDITION IN QUESTION MERELY ON THE BASIS OF A HARD DISC FOUND DURING THE COURSE OF SEARCH AT THE PREMISES OF AERENS GROUP WITHOUT ANY CORROBORATIVE EVIDENCE IN SUPPORT. WE THUS HOLD THA T THE ASSESSEE/APPELLANT SUCCEEDS ON BOTH THE ABOVE ISSUE S I.E. ON VALIDITY OF ASSUMPTION OF JURISDICTION UNDER SEC. 1 53A AND THE ADDITION IN QUESTION. THE GROUNDS INVOLVING THE ABO VE ISSUES ARE ACCORDINGLY ALLOWED. 4. THE REVENUE FILED APPEAL AGAINST THE ABOVE DECIS ION OF THE ITAT VIDE ITA NO. 60/2017, THE HONBLE JURISDICTIONAL HI GH COURT VIDE ORDER DATED 25.7.2017 UPHELD THE DECISION OF THE ITAT WIT H THE FOLLOWING FINDING:- 7. A QUESTION WAS POSED TO THE LEARNED COUNSEL FOR THE REVENUE WHETHER IN THE PRESENT CASE ANYTHING INCRIM INATING HAS BEEN FOUND WHEN THE PREMISES OF THE ASSESSEE WAS SE ARCHED. THE ANSWER WAS IN THE NEGATIVE. THE ENTIRE CASE AGA INST THE ASSESSEE WAS BASED ON WHAT WAS FOUND DURING THE SEA RCH OF THE PREMISES OF THE AEZ GROUP. IT IS THUS APPARENT ON T HE FACE OF IT, 5 THAT THE NOTICE TO THE ASSESSEE UNDER SECTION 153 A OF THE ACT WAS MISCONCEIVED SINCE THE SO-CALLED INCRIMINATING MATERIAL WAS NOT FOUND DURING THE SEARCH OF THE ASSESSEE'S PREMI SES. THE REVENUE COULD HAVE PROCEEDED AGAINST THE ASSESSEE O N THE BASIS OF THE DOCUMENTS DISCOVERED UNDER ANY OTHER PROVISI ON OF LAW, BUT CERTAINLY, NOT UNDER SECTION 153 A. THIS GOES T O THE ROOT OF THE MATTER. 8. CONSEQUENTLY, THE IMPUGNED ORDER OF THE ITAT CALLS FOR NO INTERFERENCE OF THIS COURT. THE QUESTION FRAMED BY THIS COURT ON 7HL FEBRUARY, 2017 IS ANSWERED IN NEGATIVE, THAT IS , IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 5. HE STATED THAT IN THE CASE OF THE ASSESSEE ALSO, THE ADDITION HAS BEEN MADE UNDER SECTION 153A ON THE BASIS OF SAME A NNEXURE A-32 AND THEREFORE, THE ABOVE DECISION OF HONBLE ITAT A S WELL AS JURISDICTIONAL HIGH COURT WOULD BE SQUARELY APPLICA BLE. THE LEARNED DR ON THE OTHER HAND RELIED UPON THE ORDERS OF THE AUT HORITIES BELOW. 6. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. FROM THE READING OF PARA 6.1.7 OF THE ORDER OF THE LEARNED CIT(A), IT IS EVI DENT THAT THE LEARNED CIT(A) HAS RECORDED A FINDING WHICH IS REPRODUCED B ELOW FOR READY REFERENCE THAT THE FACTS OF THE ASSESSEES CASE ARE SIMILAR TO THE FACTS OF SHRI SUBHASH KHATTAR AND IN FACT HE DISMISSED TH E ASSESSEES APPEAL FOLLOWING HIS OWN DECISION IN THE CASE OF SH RI. SUBHASH KHATTAR WHICH READS AS UNDER:- 6.1.7. A REFERENCE TO THE SEIZED MATERIAL, AS MENTIONED IN THE ABOVE PARAGRAPHS IS MADE TO PORTRAY THAT THE CASH T RANSACTIONS (PAYMENTS & RECEIPTS) IS FOUND TO BE A NORMAL FEATU RE, THE WAY OR MANNER IN WHICH THE APPELLANT CONDUCTS HIS BUSIN ESS AFFAIRS. THEREFORE, DENIAL OF CASH PAYMENT TO THE EXTENT OF RS. 1.77 CRORES TO THE BUILDER FOUND RECORDED ON THE EXCEL S HEET FORTIFIES THE PROBABILITY OF INVESTMENT MADE IN CASH. IN THE CASE OF THE APPELLANT, PAYMENT IS NOT A RANDOM EVENT BUT REPEAT ED IN SEVERAL INSTANCES, THE SEQUENCE OF EVENTS EXHIBITIN G CERTAIN PATTERN, WHICH CAN BE PREDICTED. I FIND THAT CHEQUE PAYMENTS ARE FOUND RECORDED IN THE BOOKS OF ACCOUNTS, BUT TH E CASH PAYMENT IS NOT ACCEPTED. THIS IS THE CASE OF NOT ON LY THE APPELLANT, BUT ALSO THE FACTS ARE SIMILAR IN ALL TH E CASES WHOSE NAMES ARE FOUND RECORDED ON THIS EXCEL SHEET. IN CA SE OF SH. SUBHASH KHATTAR AND LAKHOTIA GROUP OF CASE, PERTAIN ING TO THE AMOUNTS FOUND RECORDED ON D.P. CORRECTION SHEET.XLS , THE 6 ASSESSING OFFICER MADE ADDITION TO THE EXTENT OF CA SH INVESTMENT MADE IN INDIRAPURAM HABITAT CENTRE. IN A PPEAL, THE ADDITION MADE BY THE ASSESSING OFFICER IS CONFIRMED BY ME VIDE ORDERS PASSED ON 27.11.2014, IN BOTH THE ABOVE CASE S. THE ASSESSING OFFICER REASONED OUT TO PROVE THE FACT. T HERE MAY NOT BE A DIRECT EVIDENCE GATHERED BY THE ASSESSING OFFI CER FOR CASH INVESTMENT MADE BY THE APPELLANT, BUT A PROBABLE CO NCLUSION FROM THE CIRCUMSTANCES ARE SO STRONG THAT THERE IS LITTLE DOUBT AS TO A VITAL FACT. PREPONDERANCE OF THE EVIDENCE WH ICH BECAME ESSENTIAL IN THIS CASE. THE ESSENTIAL FACTS ARE SIM ILAR IN ALL THE CASE, AND THE APPELLANT IS LIKELY TO LOOSE, AS THE ESSENTIAL FACT WHICH IS VITAL TO THE CASE I.E. INVESTMENT IN CASH IS PROVEN OR ADMITTED BY ONE OF THEM. THERE IS A RELEVANCY OF FA CTS FORMING PART OF THE SAME TRANSACTIONS. 7. THUS, ADMITTEDLY THE FACTS IN THE CASE OF THE AS SESSEE AS WELL AS SHRI SUBHASH KHATTAR ARE IDENTICAL. THE APPEAL OF S HRI SUBHASH KHATTAR IS DECIDED IN HIS FAVOUR BY THE ITAT IN ITA NO. 902 /DEL/2015 WHICH IS UPHELD BY THE HONBLE JURISDICTIONAL HIGH COURT. TH E RELEVANT PORTION OF BOTH THE ABOVE ORDERS ARE REPRODUCED ABOVE IN TH IS ORDER. IN VIEW OF THE ABOVE, WE RESPECTFULLY FOLLOWING THE ABOVE I TAT AS WELL AS HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SH RI SUBHASH KHATTAR (SUPRA) HOLD THAT THE ADDITION OF RS. 1,77,00,000/- MADE BY THE ASSESSING OFFICER, UNDER SECTION 153A, IN THE CASE OF THE ASSESSEE ON THE BASIS OF SEIZED DOCUMENT IN THE CASE OF AERENCE GROUP IS NOT SUSTAINABLE. ACCORDINGLY, THE ADDITION MADE BY THE ASSESSING OFFICER AND UPHELD BY THE LEARNED CIT(A) IS DELETED AND ASS ESSEES APPEAL IS ALLOWED. ITA NO. 2579/DEL/2015 ITA NO. 2579/DEL/2015 ITA NO. 2579/DEL/2015 ITA NO. 2579/DEL/2015 ITA NO. 2580/DEL/2015 ITA NO. 2580/DEL/2015 ITA NO. 2580/DEL/2015 ITA NO. 2580/DEL/2015 8. IN THESE TWO APPEALS ALSO THE ADDITIONS HAVE BEE N MADE ON THE BASIS OF SAME ANNEXURE-A-32 AMOUNTING TO RS. 90,00, 000/- AND RS. 60,00,000/- RESPECTIVELY. BOTH THE PARTIES ADMITTED THAT THE FACTS IN THESE TWO CASES ARE IDENTICAL TO THE FACTS IN THE C ASE OF MR. BRAHAM ARENJA IN ITA NO. 2578/DEL/2015. FOR THE DETAILED D ISCUSSION ABOVE IN THE CASE OF BRAHAM ARENJA, WE DELETE THE ADDITIONS IN THESE TWO CASES ALSO. 7 ITA NO. ITA NO. ITA NO. ITA NO. 3274 3274 3274 3274/DEL/2015 /DEL/2015 /DEL/2015 /DEL/2015 9. IN THIS APPEAL, THE ONLY GROUND RAISED IS AGAINS T THE DELETION OF ADDITION OF RS. 36,04,087/- UNDER SECTION 69A OF TH E INCOME TAX ACT ON ACCOUNT OF UNEXPLAINED INVESTMENT IN JEWELLERY. ADMITTEDLY THE TAX EFFECT IN THIS APPEAL IS BELOW RS. 20 LAC AND THERE FORE CIRCULAR NO. 3/2018 DATED 20 TH JULY, 2018 AS AMENDED VIDE LETTER DATED F.NO. 279/MISC. 142/2007-ITJ (PT) DATED 20 TH JULY, 2018 WOULD BE SQUARELY APPLICABLE. RESPECTFULLY APPLYING THE SAME, WE DISM ISS THE REVENUES APPEAL. ITA NO. ITA NO. ITA NO. ITA NO. 3113 3113 3113 3113/DEL/2015 /DEL/2015 /DEL/2015 /DEL/2015 10. IN THIS APPEAL, THE FOLLOWING GROUNDS ARE RAISE D:- 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 6, 00,000/- ON ACCOUNT OF CASH PAYMENT OF THE ASSESSEE. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 26 ,59,000/- ON ACCOUNT OF CASH FOUND AND SEIZED OF THE ASSESSEE. 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS E RRED IN LAW AND ON FACTS IN RESTRICTING THE ADDITION TO RS. 50,000/- AS AGAINST RS. 1,00,000/- ON ACCOUNT OF UNEXPLAINED EX PENDITURE IN PURCHASE OF FOREIGN LIQUOR OF THE ASSESSEE. 4. (A) THE ORDER OF THE LD. CIT(APPEALS) IS ERRONEOUS AND NOT TENABLE IN LAW AND ON FACTS. (B) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AME ND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURS E OF THE HEARING OF THE APPEAL. 11. THUS THE TOTAL DELETION MADE BY THE CIT(A) IS R S. 33,09,000/-. ADMITTEDLY THE TAX EFFECT IN THIS APPEAL IS BELOW R S. 20 LAC AND THEREFORE CIRCULAR NO. 3/2018 DATED 20 TH JULY, 2018 AS AMENDED VIDE LETTER DATED F.NO. 279/MISC. 142/2007-ITJ (PT) DATE D 20 TH JULY, 2018 WOULD BE SQUARELY APPLICABLE. RESPECTFULLY APPLYING THE SAME, WE DISMISS THE REVENUES APPEAL. 8 12. IN THE RESULT, ASSESSEES APPEALS ARE ALLOWED W HILE REVENUES APPEALS ARE DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 12.12.2018 . SD/- SD/- ( (( ( BEENA PILLAI BEENA PILLAI BEENA PILLAI BEENA PILLAI ) )) ) (G.D. AGRAWAL (G.D. AGRAWAL (G.D. AGRAWAL (G.D. AGRAWAL ) )) ) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 12.12.2018 SH COPY FORWARDED TO: - 1. APPELLANT : 2. RESPONDENT : 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR DATE INITIAL 1. DRAFT DICTATED ON 10.12.2018 PS 2. DRAFT PLACED BEFORE AUTHOR PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/ AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 11. DATE OF UPLOADING 12.12.2018