Rajender Sharma, New Delhi V. DCIT, Noida

ITA 3434/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4857 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 31-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSHMA SINGH
• Keywords: Unexplained investment; Search and seizure; Document seized; Documents seized; TDS
• Section: 153A; 43; 131; 69; 6; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER I.T.A. NO.3434/DEL/2017 ASSESSMENT YEAR: 2011-2012 RAJENDER SHARMA, C/O RAVI GUPTA, ADVOCATE, E 6A, KAILASH COLONY NEW DELHI. VS. DCIT, CENTRAL CIRCLE, NOIDA. TAN/PAN: AAIPS5983J (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI P.C. YADAV, ADV. RESPONDENT BY: SMT. SUSHMA SINGH, CIT-D.R. DATE OF HEARING: 19 08 2021 DATE OF PRONOUNCEMENT: 28 09 2021 O R D E R PER AMIT SHUKLA, JM THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 31.03.2017, PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-IV, KANPUR FOR THE QUANTUM OF ASSESSMENT PASSED U/S.153A FOR THE ASSES SMENT YEAR 2011-12. 2. THE FACTS IN BRIEF ARE THAT SEARCH AND SEIZURE A CTION WAS CARRIED OUT U/S. 132(4) ON 09.04.2012 IN THE CASE O F ASSESSEE. ACCORDINGLY, NOTICE U/S.153A WAS ISSUED FOR FILING OF RETURN OF INCOME WHICH WAS DULY COMPLIED WITH. DURING THE COU RSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS CONFRONTED WITH THE SEIZED DOCUMENT AT PAGE NO. 24, ANNEXURE A-21 PART I.T.A. NO.3434/DDN/2017 2 NO. ANR-01 WHEN THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO GIVE THE EXPLANATION UNDER FOLLOWING ISSUE:- 21. PLEASE FILE THE DETAILS OF H. NO. D-135, SECTO R-40, NOIDA. DURING THE COURSE OF SEARCH A NOTE PAD WAS SEIZED AT ANNEXURE A-21, AND IT IS OBSERVED THAT AS PER PAGE NO.24 A PAYMENT OF RS.1.5 CRORES AS PER YOUR BOOKS OF ACCOU NTS, FAILING WHICH, IT WILL BE TREATED AS YOUR UNACCOUNT ED INVESTMENT AND ADDED BACK TO YOUR INCOME WITHOUT AN Y FURTHER REFERENCE TO YOU. I PROPOSE AN ADDITION OF RS.1.5 CRORES. PROPOSED ADDITION RS.1.5 CRORES . 3. IN COMPLIANCE THEREOF, THE ASSESSEE SUBMITTED TH AT THE ENTIRE SEIZED ANNEXURE PERTAINS TO HIS SON, MR. AKA SH SHARMAS BUSINESS WHO WAS AS A REAL ESTATE AGENT. T HE DIARY WHICH IS THE PART OF THE SEIZED ANNEXURE BELONGS TO MR. AKASH SHARMA WHO IS MAINTAINING AND RECORDING ALL THE DET AILS OF THE PROSPECTIVE BUYERS/SELLERS IN AND AROUND NOIDA ALONG WITH THEIR EXPECTATION. THE SAID REPLY FOR THE SAKE OF READY REFERENCE IS REPRODUCED HEREUNDER: 19. AS FAR AS THE DETAILS OF RS. 1.5 CRORE WRITTE N IN PAGE NO. 24 OF SEIZED DOCUMENT, ANNEXURE - A-21, IS CONCERNE D, THIS ENTIRE ANNEXURE PERTAINS TO HIS SON MR. AKASH SHARMAS BUS INESS WHO WAS RUNNING HIS BUSINESS AS A REAL ESTATE AGENT. IT IS MERELY A DIARY THAT MR. AKASH SHARMA MAINTAINED TILL 2006-07 AND RECORDED ALL DETAILS OF PROSPECTIVE BUYERS / SELLER S OF VARIOUS IMMOVABLE PROPERTIES IN AND AROUND NOIDA ALONG WITH THEIR EXPECTATION. AS A REAL ESTATE AGENT HE WAS REQUIRED TO SUGGEST VARIOUS PERMUTATIONS AND COMBINATIONS TO THEIR CUST OMERS FOR TIMELY EXECUTION OF THEIR TRANSACTIONS. ACCORDINGLY THIS SUM OF I.T.A. NO.3434/DDN/2017 3 RS. 1.5 CRORES WRITTEN IN THAT DIARY WAS MERELY A P ROPOSAL SUGGESTED TO A CUSTOMER FOR HIS OUTFLOW AND IS NOT RELATED TO ASSESSEES INCOME AT ALL. 20. AS THE ASSESSEE AND HIS SON IS ALREADY ENGAGED IN REAL ESTATE BUSINESS, THEY HAVE AMPLE KNOWLEDGE OF CONST RUCTION AND GOOD CONNECTIONS WITH SUPPLIERS OF BUILDING MATERIA L. ACCORDINGLY THE QUESTION OF GETTING CONSTRUCTION DONE ON CONTRA CTUAL BASIS TO THIRD PARTY DOES NOT ARISE AT ALL. THEREFORE, STATE MENT GIVEN BY THE THIRD PARTY REGARDING PAYMENT TO HIM FOR RS. 1. 75 CRORES IN CASH FOR RENOVATION OF RESIDENTIAL HOUSE PROPERTY A T D-135, SECTOR-40, NOIDA. FURTHER NOTE THAT TOTAL AREA CONS TRUCTED ON THE SAID PLOT IS 253.81 SQ. MTR. AND IF WE GO FOR CONST RUCTION THROUGH CONTRACTOR ALSO THE ESTIMATED COST CAN BE WORKED OU T TO RS. 37, 90, 682.22 ONLY EVEN AS PER CPWD APPROVED RATES. BE SIDES THIS PROPERTY WAS PURCHASED BY THE ASSESSEE ON WHICH THE CONSTRUCTION WAS ALREADY THERE AND THE SAME IS EVID ENT FROM THE COPY OF TITLE DEED OF THE HOUSE. ACCORDINGLY THE CO NSTRUCTION TAKEN PLACE AT THE PREMISES BY THE ASSESSEE WAS MER ELY A RENOVATION OF BUILDING AND FURNISHING ON WHICH THE ASSESSEE HAD INCURRED A TOTAL SUM OF NEAR ABOUT-60 LAKHS WHICH I S DULY ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS. THE ASSESSE E, HIS SON MR. AKASH SHARMA AND HIS WIFE MRS. SABITA SHARMA HA D JOINTLY TAKEN A HOME LOAN FOR RS. 40,00,000/- FOR THE RENOV ATION AND FURNISHING OF THE SAID HOUSE. A COPY OF REPAYMENT S CHEDULE OF HOME LOAN IS ENCLOSED HEREWITH FOR YOUR KIND PERUSA L. 21. AS FAR AS THE PURCHASE OF AGRICULTURAL LAND FO R RS. 4.60 CRORES IS CONCERNED, THE LAND IS OWNED BY M/S CHEAP HOUSING PRIVATE LIMITED WHERE THE ASSESSEE OR HIS FAMILY ME MBERS ARE HOLDING ONLY 3.47% SHARES. REST OF THE SHARES ARE B EING HOLD BY I.T.A. NO.3434/DDN/2017 4 ASSESSEES ELDER BROTHER. AS FAR AS ANY TRANSACTION AGAINST THIS SET PIECE OF LAND IS CONCERNED, THE ASSESSEE AND I TS FAMILY MEMBERS ARE NOT RELATED AT ALL. 4. HOWEVER, THE LD. ASSESSING OFFICER REJECTED THE ASSESSEES CONTENTION THAT SEIZED ANNEXURE PERTAINS TO HIS SON , SHRI AKASH SHARMAS BUSINESS, WHO HAS ALSO TABULATED THE AMOUNT MENTIONED IN THE SEIZED DOCUMENTS AND MADE T HE ADDITION IN THE FOLLOWING MANNER: THE ABOVE SEIZED DOCUMENT IS CLEAR IN TERMS OF CAS H OF RS.1.5 CRORES, WHICH IS AS FOLLOWS: RS.72,00,000/- CASH RS.10,50,000/- CASH RS.5,00,000/- CHEQUE (NOT EXPLAINED BY ASSESSEE) RS.50,00,000/- CASH RS.6,50,000/- CASH RS.6,00,000/- CASH TOTAL RS.1,50,00,000/- THEREFORE, AS PER THIS SEIZED DOCUMENT UNDISCLOSED INVESTMENT OF RS. 1.5 CRORES MADE IN CASH FOR PURCHASE OF H. N O. D-135, SECTOR - 40 NOIDA IN AUGUST, 2010 BY THE ASSESSEE A ND HIS WIFE SMT. SABITA SHARMA. SINCE, ASSESSEE HAS RIOT E XPLAINED THIS DOCUMENT, I AM LEFT WITH NOT ALTERNATIVE BUT T O APPLY THE PROVISIONS OF SECTION 292C OF IT ACT AND ADD BACK T HE UNEXPLAINED INVESTMENT BF RS. 1.5 CRORES U/S. 69 OF IT ACT IN THE INCOME OF THE ASSESSEE. ADDITION RS.1,50,00,000/- 5. BEFORE THE LD. CIT (A), THE ASSESSEE HAD FILED A VERY DETAILED SUBMISSION WHICH HAS BEEN INCORPORATED IN THE I.T.A. NO.3434/DDN/2017 5 IMPUGNED APPELLATE ORDER, ON WHICH LD. CIT (A) CALL ED FOR THE REMAND REPORT ALSO. ONE VERY IMPORTANT FACT WHICH I S EMERGING FROM THE REMAND REPORT IS THAT, ASSESSEES SON, SHRI AKASH SHARMA WAS ALSO EXAMINED AND HIS STATEMENT WA S RECORDED U/S.131, WHEREIN HE HAS ADMITTED THAT DIAR Y BELONGS TO HIM AND THE TRANSACTION PERTAINS TO HIS BUSINESS OF SALE AND PURCHASE OF THE PROPERTY AS COMMISSION AGENT. S INCE, HE WAS ALSO SUBJECTED TO SEARCH AND RESIDING AT THE SA ME PREMISES WITH HIS FATHER, ASSESSMENT U/S.153A WAS A LSO MADE IN HIS CASE INCLUDING THE IMPUGNED ASSESSMENT YEAR 2011-12. THE RELEVANT OBSERVATION MADE BY THE ASSES SING OFFICER IN THE REMAND REPORT WHICH IS INCORPORATED AT PAGE 7 AND 8 OF THE APPELLATE ORDER ARE AS UNDER: THOUGH, AS CLAIMED THIS DIARY BELONGS TO SH. AKASH SHARMA AND TO ASCERTAIN THIS FACT THE UNDERSIGNED HAS EXAM INED HIM ON STATEMENT U/S 131 OF THE ACT AND HE ADMITTED THAT T HE DIARY BELONGS TO HIM AND THE TRANSACTIONS PERTAINS TO HIS BUSINESS OF SALE AND PURCHASE OF PROPERTY AS COMMISSION AGENT. AS PER HIS STATEMENT PAGE NO. 24 OF ANNEXURE A-2 IS RELATED WI TH ONE OF THE CLIENT M/S RASHI WEARS PVT. LTD. AND M/S DENZ ENTER PRISES PVT. LTD. TO MATERIALIZED THIS - TRANSACTION AN AMOUNT O F RS. 75,000/- WAS RECEIVED AS COMMISSION/ BROKERAGE IN CASH AND S AME HAS BEEN CLAIMED TO BE DISCLOSED IN ITR FOR A.Y. 2012-1 3. NO EVIDENCE REGARDING THE RECEIPT OF RS. 75,000/- WAS PRODUCED TO DEMONSTRATE THAT THE ASSESSEE HAS ACTUALLY RECEIVED THE BROKERAGE. NO DETAILS OF TDS DEDUCTED BY THE COMPAN Y WAS FURNISHED OR CLAIMED BY THE ASSESSEE. IT IS MANDATO RY TO DEDUCT TDS ON PAYMENTS MADE ON ACCOUNT OF COMMISSION/BROKE RAGE I.T.A. NO.3434/DDN/2017 6 U/S 194H OF THE ACT, 1961. IN THE BANK STATEMENT, O NLY CASH DEPOSIT OF RS-.75,000/- IS APPEARING. FURTHER, FROM THE PERUSAL OF ITR FOR THE A.Y. 2012-13 IT WAS FOUND THAT ASSESSEE HAS SHOWN RS.3,28,014/- AS INCOME FROM BUSINESS AND PROFESSIO N. SH. AKASH SHARMA S/O ASSESSEE WAS ALSO ASSESSED II/S 15 3A T AND INCOME FORM BUSINESS AND PROFESSION (COMMISSION/BRO KERAGE FROM SALE) DECLARED ARE AS UNDER: A.Y. AMOUNT 2007-08 84,722/- 2008-09 1,29,432/- 2009-10 1,92,552/- 2010-11 3,02,738/- 2011-12 1,19,260/- 2012-13 3,28,014/- 2013-14 86,831/- PRIMA FACIE, FROM THE PERUSAL OF THE CONTENTS OF TH E DIARY, IT APPEARS A BUSINESS DIARY RELATED WITH REAL ESTATE B UT, NOTHING ON THE RECORDS SHOW THAT THE DIARY BELONGS TO AKASH SH ARMA & THE RECEIPTS SHOWN IN THE YEARS AS STATED ABOVE HAS BEE N EARNED / DERIVED FROM THE BUSINESS OF THE REAL ESTATE. NO DE TAILS OF INCOME/EXPENDITURE RELATING TO HIS BUSINESS OF REAL ESTATE SUCH AS OFFICE EXPENSE AND EXPENSES ON ACCOUNT OF ADVERT ISEMENT ETC. HAS BEEN FURNISHED. NO PRIMARY EVIDENCES WERE ADDUC ED EITHER AT THE TIME OF ASSESSMENT TO ESTABLISH THE FACT THA T THE ASSESSEE HAS BEEN ENGAGED IN THE BUSINESS OF REAL ESTATE AS BROKER. 6. LD. CIT(A) HAS CONFIRMED THE SAID ADDITION ON TH E FOLLOWING REASONS. I.T.A. NO.3434/DDN/2017 7 5.1 I DO NOT AGREE WITH THE CONTENTION OF T HE APPELLANT BECAUSE OF FOLLOWING REASONS' 1. THE SEIZED DOCUMENTS WERE SEIZED FROM PREMISES OF APPELLANT DURING SEARCH AND SEIZURE ACTION. THEREFORE, THERE IS BASIC PRESUMPTION THAT IT BELONGS TO APPELLANT. 2. FROM SEIZED PAPER, IT IS AMPLY CLEAR ON THE JOT TING ON THE SEIZED PAPER THAT IT IS ABOUT DIFFERENT STAGES OF P AYMENT OF RS. 1.5 CRORE IN CASH AS WELL AS THROUGH CHEQUES. 3. IN THE SUBMISSION OF APPELLANT, HE HAS STATED T HAT IT IS BUSINESS DIARY AND IT RECORDS ONLY THE NOTING ABOUT PROSPECTIVE BUYERS TILL YEAR 2006-07. NOW, THE QUESTION ARISES, IF IT RECORDS NOTING ONLY UP TO 2006-07, HOW IT CAN BE RELATED TO M/S. DENZ ENTERPRISES, IN WHOSE CASE, TRANSFER DEED OF LEASE HOLD RIGHTS, HAS BEEN DOCUMENTED ONLY ON 18.08.2011. MOREOVER, T HIS TRANSFER DEED OF LEASE HOLD RIGHTS IS ENTERED ONLY ON STAMP OF RS. 100/- THE PLEA OF THE APPELLANT IT BELONGS TO SHRI AKASH SHARMA IS ONLY AN AFTERTHOUGHT AND WITHOUT ANY COGENT EVIDENC E. IN VIEW OF THE ABOVE, I DO NOT FIND FORCE IN THE CONTENTION OF THE APPELLANT. THE CASES RELIED UPON BY THE APPELLANT ARE ON THEIR OWN FOOTING AND DISTINGUISHABLE ON FACTS. THEREFORE, THESE ARE NOT APPLICABLE TO THE PRESENT CASE AND THE ADDITION OF RS.1,50,00, 000/- IS CONFIRMED. 7. BEFORE US, LD COUNSEL SUBMITTED THAT, FIRST OF A LL, THE SEARCH AND SEIZURE ACTION WAS CONDUCTED IN THE CASE S OF THE ASSESSEE AND HIS SON ON THE SAME DATE I.E. 09.04.20 12, WHICH IS EVIDENT FROM THE COPY OF THE PANCHNAMA, PLACED A T PAGES 34 TO 37 OF THE PAPER, WHICH CLEARLY SHOWS THAT THE RE WAS A I.T.A. NO.3434/DDN/2017 8 JOINT SEARCH WARRANT IN THE NAME OF THE ASSESSEE AND HIS SON AT THE SAME PREMISES, HOUSE NO.D-135, SECTOR-40, NO IDA WHICH WAS IN THE NAME OF SHRI RAJINDER SHARMA, SHRI AKASH SHARMA. AND IN ANOTHER PANCHNAMA ALSO BOTH THE NAM ES WERE APPEARING. THUS, WHEN THE ASSESSEES SON HAS CATEGORICALLY ADMITTED THAT THE DIARY BELONGS TO HI M, THEN THERE WAS NO OCCASION TO DRAW ANY INFERENCE IN THE CASE OF THE ASSESSEE. HE FURTHER SUBMITTED THAT FROM THE BARE P ERUSAL OF THE SEIZED DOCUMENT, A COPY OF WHICH HAS BEEN PLACE D AT PAGES 58 OF THE PAPER BOOK, IT CAN BE SEEN THAT IT IS A DUMP DOCUMENT AND NOWHERE THE ASSESSING OFFICER AND LD. CIT(A) HAS TRIED TO CORRELATE THE ALLEGED FIGURES MENTIONE D IN THE DOCUMENTS WITH THE PROPERTY OF THE ASSESSEE SITUATE D AT NOIDA, IGNORING THAT THE SAID PROPERTY WAS PURCHASE D BY ASSESSEE ON 12.08.2020 BY WAY OF REGISTERED SALE DE ED AND THE SALE CONSIDERATION AS MENTIONED AT PAGE NO.60 I S ACCEPTED BY THE ASSESSING OFFICER AND LD. CIT(A) AS CORRECT. HE SUBMITTED THAT BOTH THE AUTHORITIES BELOW HAVE FAIL ED TO APPRECIATE THAT NO UNDERHAND DEALING DOCUMENT WAS F OUND IN SEARCH WHICH WOULD SHOW THAT ASSESSEE HAS PAID OVER AND ABOVE THE PRICE MENTIONED IN REGISTERED SALE DEED. FURTHER, FROM DAY ONE ASSESSEE HAS BEEN EXPLAINING THAT THE ALLEGED DOCUMENTS BELONGS TO THE BUSINESS OF HIS, WHO WAS A LSO SEARCHED BY DEPARTMENT AND WHO WAS LIVING WITH ASSE SSEE AT THE SAME ADDRESS AND IN WHOSE CASE THE ASSESSMENTS WERE FRAMED UNDER SECTION 153A OF THE ACT. HE SUBMITTED THAT COPY OF PANCHNAMA AND ORDERS OF ASSESSMENT U/S 153A WOUL D I.T.A. NO.3434/DDN/2017 9 PROVE BEYOND DOUBT THAT SON OF THE ASSESSEE WAS SEA RCHED BY THE REVENUE AND HIS STATEMENT WAS ALSO RECORDED BY REVENUE, WHEREIN HE HAS ADMITTED THAT THE IMPUGNED DOCUMENT BELONG TO HIS BUSINESS AND HAS ALSO EXPLAINED THE DEAL TO WHICH THIS DOCUMENT PERTAINED. HOWEVER THE AO AND CIT (A), WIT HOUT APPRECIATING THAT PROVISION OF SECTION 292C ARE EQU ALLY APPLICABLE IN THE CASE OF SON ALSO SUSTAINED THE AD DITION WITHOUT ANY REASON IN THE HANDS OF THE ASSESSEE. 8. LD. COUNSEL FURTHER SUBMITTED THAT IT IS A SETTL ED POSITION OF LAW THAT LOOSE SHEETS FOUND DURING THE COURSE OF SEARCH ARE NOT BOOKS OF ACCOUNTS OF THE ASSESSEE AN D HENCE NO RELIANCE CAN BE PLACED ON THESE SHEETS UNLESS TH EY ARE CORROBORATED WITH INDEPENDENT MATERIAL. IT IS SUBMI TTED THAT HERE THE CASE OF THE REVENUE. HE FURTHER SUBMITTED THAT SECTION 132(4A) EMPOWERS AN OFFICER TO PRESUME THAT CONTENTS OF BOOKS OF SUCH BOOKS OF ACCOUNT AND OTHER DOCUMEN TS ARE TRUE. IN THIS REGARD, IT IS SUBMITTED THAT IT IS NO W WELL SETTLED LAW BY THE HONBLE APEX COURT IN THE CASE OF CIT VS P.R. METRANI REPORTED IN 287 ITR 0209 (SC) THAT PRESUMPTION UNDER SECTIONS 132(4A) IS A REBUTTABLE PRESUMPTION AND THE SAME IS NOT AVAILABLE FOR THE PURPOSE OF FRAMING AS SESSMENT. IT IS SUBMITTED THAT PERUSAL OF THE SEIZED DOCUMENT S WOULD SHOW THAT THESE ARE NO BOOKS OF ACCOUNTS OR NOT FAL L UNDER THE DEFINITION OF OTHER DOCUMENTS ALSO. THESE ARE DUMP DOCUMENTS ONLY. HE ALSO RELIED UPON VARIOUS JUDGMENT S TO CONTEST THAT THESE ARE MERELY DUMP DOCUMENTS AND CA NNOT BE USED AGAINST THE ASSESSEE. I.T.A. NO.3434/DDN/2017 10 9. ON THE OTHER HAND, LD. DR STRONGLY RELIED UPON T HE ORDER OF THE ASSESSING OFFICER AND LD. CIT(A) AND ALSO RE LIED UPON CATENA OF JUDGMENTS. THE LIST OF WHICH ARE AS UNDER: 1. CIT VS. NARESH KUMAR AGGARWALA [2011] 9 TAXMANN. COM 249 (DELHI)/[2011] 198 TAXMAN 194 (DELHI)/[2011 ] 331 ITR 510 (DELHI) 2. MAHABIR PRASAD RUNGTA VS. CIT (2014) 43 TAXMANN.COM 328 (JHARKHAND)/[2014] 266 CTR 175 (JHARKHAND) 3. BHAGHEERATHA ENGINEERING LTD. VS. ACIT [2017] 79 TAXMANN.COM 325 (KERALA)/[2015] 379 ITR 244 (KERALA)/[2016] 280 CTR 209 (KERALA) 4. ASHOK KUMAR VS. CIT [2016] 69 TAXMANN.COM 129 (PATNA)/[2016] 239 TAXMAN 436 (PATNA)/[2016] 386 IT R 342 (PATNA)/[2016] 290 CTR 450 (PATNA) 5. BALDEV RAJ VS. CIT [2010] 2 TAMANN.COM 335 (PUNJ AB & HARYANA) 6. CIT VS. SONAL CONSTRUCTION [2012-TIOL-851-HC- DEL-IT] (DELHI) 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PE RUSED THE RELEVANT MATERIAL PLACED ON RECORD. THE ENTIRE ADDITION HAS BEEN MADE ON THE GROUND THAT THE SEIZED DOCUMEN T AT PAGE NO.24 ANNEXURE A-21 PART NO. ANR-01 WHICH WAS A PART OF DIARY WAS FOUND FROM THE RESIDENTIAL PREMIS ES OF THE ASSESSEE, THEREFORE, THE CASH TRANSACTION MENTIONED THEREIN BELONGS TO THE ASSESSEE, AND THEREFORE, PRESUMPTION HAS BEEN I.T.A. NO.3434/DDN/2017 11 DRAWN U/S. 132(4A) AND 292C. WE ARE UNABLE TO APPRE CIATE THE REASONING GIVEN BY THE ASSESSING OFFICER AND LD . CIT (A), AS TO HOW THE PRESUMPTION U/S. 132(4A) AND 292C HAS BEEN DRAWN AGAINST THE ASSESSEE, ONCE IT IS A MATTER OF FACT THAT FROM DAY ONE THE ASSESSEE HAS BEEN CONTENDING THAT THESE SEIZED DOCUMENTS BELONGS TO HIS SON, MR. AKASH SHAR MA WHICH PERTAINS TO HIS BUSINESS OF REAL ESTATE AGENT . NOT ONLY THAT, THERE WAS A JOINT SEARCH WARRANT IN THE NAME O F SHRI RAJINDER SHARMA AND SHRI AKASH SHARMA ON THE SAME PREMISES IN WHICH THE SAID DOCUMENT WAS FOUND, THEN HOW THE PRESUMPTION HAS BEEN DRAWN THAT IT BELONGS TO T HE ASSESSEE WHEN THE OTHER PERSON SEARCHED HAS HIMSELF OWNED UP THE DOCUMENT AND HAS GIVEN HIS EXPLANATION. THER E IS NO REASON AS TO WHY THIS DOCUMENT WHICH HAS BEEN DENIE D BY THE ASSESSEE AND ACCEPTED BY THE OTHER SEARCHED PER SON, ADVERSE INFERENCE HAS BEEN DRAWN IN THE CASE OF THE ASSESSEE AND PRESUMPTION IS MADE IN TERMS OF SECTION 132(4A) AND SECTION 292C. NOT ONLY THAT, AS INCORPORATED ABOVE THE ASSESSEES SON SHRI AKASH SHARMA WAS ALSO SUBJECTED TO ASSESSMENT U/S.153A, THAT MEANS NO ADVERSE INFERENC E HAS BEEN DRAWN DESPITE MR. AKASH SHARMA HAS OWNED UP TH AT THESE DOCUMENT BELONGS TO HIM. SIMPLY BECAUSE THE H OUSE IS REGISTERED IN THE NAME OF HIS FATHER, I.E., ASSESSE E, IT DOES NOT LEAD TO INFERENCE THAT DOCUMENT WHICH PERTAIN TO SO N RESIDING IN THE SAME PREMISES BELONGS TO THE ASSESSEE. WITHO UT GOING INTO THE MERITS OF THE EXPLANATION GIVEN AND ALSO W HETHER IT IS IN NATURE OF THE DUMP DOCUMENT OR NOT BECAUSE THE V ERY I.T.A. NO.3434/DDN/2017 12 PREMISE OF DRAWING AN ADVERSE PRESUMPTION AGAINST T HE ASSESSEE IS NOT TENABLE AND WE HOLD THAT ADDITION I S UNSUSTAINABLE IN THE HANDS OF THE ASSESSEE. 11. IN VIEW OF AFOREMENTIONED FACTS THAT ASSESSE ES SON WAS ALSO COVERED UNDER THE SEARCH IN THE SAME PREMISES AND THE DOCUMENT FOUND FROM THE SAID PREMISES HAS BEEN CATEGORICALLY OWNED BY HIS SON, SHRI AKASH SHARMA W HO HAS GIVEN HIS EXPLANATION, THEN INSTEAD OF DRAWING ANY INFERENCE IN HIS ASSESSMENT U/S.153A, NO PRESUMPTION HAS BEEN MADE IN THE CASE OF THE ASSESSEE. THUS, ONCE THIS DOCUME NT DOES NOT BELONG TO THE ASSESSEE NOR THERE IS ANY MENTION OF ANY NAME OF THE SEIZED DOCUMENT, PRESUMPTION U/S. 132(4 A) AND SECTION 292C CANNOT BE MADE AGAINST THE ASSESSEE. ACCORDINGLY, NO ADDITION BASED ON THE SAID SEIZED D OCUMENT CAN BE MADE AND SAME IS DIRECTED TO BE DELETED. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ABOVE DECISION WAS ANNOUNCED ON CONCLUSION OF VIRTU AL HEARING IN THE PRESENCE OF BOTH THE PARTIES ON 28 TH SEPTEMBER, 2021 SD/- SD/- [ANIL CHATURVEDI] [AMIT SHUKLA] [ACCOUNTANT MEMBER] JUDICIAL MEMBER DATED: 28/09/2021 PKK: