DCIT, New Delhi V. M/s. GTM Builders and Promoters Pvt. Ltd., New Delhi

ITA 3797/DEL/2010

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 5221 (ITAT-DELHI)
• Duration Of Justice: 10 year(s) 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 04-07-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 09-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S KRISHNAN
• Keywords: Unexplained investment; Income from undisclosed sources; Search and seizure; Loose papers; Document seized; Share purchase agreement; Opportunity of cross examination; Application of stay; Question of law; Accommodation entries; Onus to prove; Documents seized; Reassessment proceedings; Set aside
• Section: 133A; 205; 195; 48; 13; 153; 22; 131; 68; 56

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SH. AMIT SHUKLA, JUDICIAL MEMBER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA NO. 3797/DEL/2010 : ASSTT. YEAR : 2006-07 DCIT, CENTRAL CIRCLE-12, NEW DELHI VS M/S GTM BUILDERS & PROMOTERS PVT. LTD., G-5, PUSHKAR ENCLAVE, OUTER RING ROAD, PACHIM VIHAR, NEW DELHI-110063 (APPELLANT) (RESPONDENT) PAN NO. AACCG2716R ITA NO. 3577/DEL/2010 : ASSTT. YEAR : 2006-07 & SA NO. 186/DEL/2020 : ASSTT. YEAR : 2006-07 M/S GTM BUILDERS & PROMOTERS PVT. LTD., G-5, PUSHKAR ENCLAVE, OUTER RING ROAD, PACHIM VIHAR, NEW DELHI-110063 VS ACIT, CENTRAL CIRCLE-12, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AACCG2716R ASSESSEE BY : SH. S. KRISHNAN, ADV. REVENUE BY : MS. SUNITA SINGH, CIT DR DATE OF HEARING: 11.01.2021 DATE OF PRONOUNCEMENT : 04.02.2021 ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEALS HAVE BEEN FILED BY THE ASSESSE E AND THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-I, NEW DELHI DATED 28.05.2010. ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 2 2. IN ITA NO. 3797/DEL/2010, FOLLOWING GROUNDS HAVE BEEN RAISED BY THE REVENUE: 1. THE ORDER OF THE LD. CIT(APPEALS) IS NOT CORREC T IN LAW AND FACTS. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS DELETING ADDITION OF RS. 2 CRORES TOWARDS UNEXPLAINED SHARE APPLICATION MONEY UNDER SECTION 68 OF INCOME TAX ACT 1961 WHEREAS THE ASSESSEE FAILED TO SUBSTANTIAT E GENUINENESS AND CREDITWORTHINESS OF THE SHARE CAPITAL SUBSCRIPTION. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS DELETING ADDITION OF 2 CRORES TOWARDS UNEXPLAINED SHARE APPLICATION MONEY EVENTHOUGH UNEXPLAINED INVESTMENT OF RS.7.43 CRORES WAS ADMITTED UNDER SECTION 132(4) OF THE INCOME TAX ACT, 1961 DURING SEARCH ON THIS ACCOUNT. 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS DELETING ADDITION OF RS. 2 CRORES TOWARDS UNEXPLAINED SHARE APPLICATION MONEY UNDER SECTION 68 OF INCOME TAX ACT 1961 WHEREAS THE INVESTMENT WAS MADE BY ENTRY OPERATORS AND BOGUS PARTIES AS INVESTIGATED DURING SEARCH AND ASSESSMENT PROCEEDINGS. 5. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 1,92,00,000/- TOWARDS UNEXPLAINED INCOME FROM SALE OF FLATS IN RESIDENTIA L SOCIETIES AS EVIDENCED FROM SEIZED DOCUMENTS WHILE HOLDING THAT THERE WAS NO PROOF OF PASSING OF MONEY TO THE ASSESSEE WHILE IGNORING THE FACT THAT PROCES S OF PASSING OF UNEXPLAINED MONEY IS CORROBORATED BY SEIZED DOCUMENTS AND AS SUCH HANDING OVER OF UNDISCLOSED TRANSACTIONS IS NOT REDUCED TO DOCUMENTATION. ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 3 6. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 1,92,00,000/- TOWARDS UNEXPLAINED INCOME FROM SALE OF FLATS IN RESIDENTIA L SOCIETIES AS EVIDENCED FROM SEIZED DOCUMENTS WHILE IGNORING THE PROVISIONS OF SECTION 132(4A) AND 292C OF INCOME TAX ACT 1961. 3. IN ITA NO. 3577/DEL/2010, FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESSEE: 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN T HE TOTAL ADDITION MADE AT RS. 5,45,70,000/- (CORRECT FIGURE RS.5,34,50,000/-) ON ACCOUNT OF SHARE APPLICATION MONEY, ALLEGING THAT THE APPELLANT HAS NOT FILED THE CONFIRMATIONS OF THE SHARE APPLICANTS AND GENUINENESS OF THE TRANSACTIONS HAVE NOT BEEN PROVED, IGNORING THE CLAIM OF THE APPELLANT THAT TH E APPELLANT HAS ARRANGED THE ADVANCES OF RS. 3.30 CRORES THROUGH ONE OF THE COMPANY M/S ARHA BUILDCON PVT. LTD. AS PER THE SEIZED DOCUMENTS ANNEXURE-I ALONGWITH THE INDEMNITY BOND WITH THE DEPARTMENT. THE ACTION OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS ARBITRARY, UNJUSTIFIED AND AGAINST THE PROVISIONS OF LAW. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND FACTS IN NOT APPRECIATED THE FACTS THAT THE APPELLANT COMPANY HAS ENGAGED THE COMPANY M/S ASHA BUILDERS (P) LTD ASSESSED UNDER PAN AAACK0604K WHO ARRANGED THE FUNDS FROM THE DIFFERENT PARTIES AT RS.3.30 CRORES AND OUT OF IT A N AMOUNT OF RS.2,20,50,000/- WAS REFUNDED/ADJUSTED TO SAME OF THE PARTIES WHICH WAS DULY REFLECTED IN THE BOOKS OF ACCOUNTS AS PER THE COPY OF CONFIRMATION IN THE FORM OF INDEMNITY BOND DATED 10.11.2006 EXECUTED BETWEEN THE SAID COMPANY BY THE APPELLANT WHICH IS PART OF THE SEIZED DOCUMENTS ANNEXURE A 17 PAGE 46-52 WITH THE DEPARTMENT. THEREFORE, THE ACTION THE COMMISSIONER OF INCOME TAX (APPEALS) IS ARBITRARY, UNJUSTIFIED AND AGAINST THE PROVISIONS OF LAW. ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 4 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND FACTS IN NOT APPRECIATING THE VARIOUS JUDGMENTS OF THE ITAT, HIGH COURT AND THAT OF HONBLE SUPREME COURT IN THE CASE OF LOVELY EXPORTS RELIED UPON BY THE APPELLANT WHICH SQUARELY APPLIES TO THE FACTS OF THE CASE AND THEREFORE, THE ACTION OF THE COMMISSIONER OF INCOME TAX (APPEALS) IS ARBITRARY, UNJUSTIFIED AND AGAINST THE PROVISION S OF LAW. 4. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND FACTS IN CONFIRMING THE TRANSACTION FOR INVESTMENT TOWARDS THE SHARE APPLICATION MONEY OF RS.400,000/- BY SHRI RAKESH KUMAR IN THE APPELLANT COMPANY IGNORING THE SUBMISSIONS OF THE APPELLANT, WHICH IS ARBITRARY, UNJUSTIFIED AND AGAINST THE PROVISIONS OF LAW. 5. WITHOUT PREJUDICE TO THE ABOVE THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND FACTS IN NOT APPRECIATING THAT ALL THE TRANSACTION OF RECEIPT OF ADVANCES WERE THROUGH ACCOUNT PAYEE CHEQUES AND MOST OF THE PARTIES WERE COMPANY INCORPORATED WITH THE REGISTRAR OF THE COMPANIES AND ARE EXISTING. THE ACTION OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS ARBITRARY, UNJUSTIFIED AND AGAINST THE PROVISIONS OF LAW. ITA NO. 3797/DEL/2010 AY 2006-07 (REVENUE) ITA NO. 3577/DEL/2010 AY 2006-07 (ASSESSEE) UNEXPLAINED SHARE APPLICATION MONEY- U/S 68: 4. A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT O N THE GTM GROUP OF COMPANIES CONTROLLED BY SHRI GAUTAM KUMAR AND HIS SON SHRI TUSHAR KUMAR. 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER REFERRED TO THE COPY OF SHARE APP LICATION MONEY ACCOUNT OF THE COMPANY FOR THE PERIOD 1.4.200 5 TO 31.3.2006 FOUND DURING THE COURSE OF SEARCH WHICH S HOWED ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 5 SHARE APPLICATION MONEY OF RS. 5,34,50,000/- IN THE NAMES OF VARIOUS PERSONS FROM WHOM SHARE APPLICATION MONEY W AS RECEIVED MARKED AS ANNEXURE A-127, PAGE 4. HE ALSO REFERRED TO PAGES 75 AND 76 OF ANNEXURE A-14 WHICH SHOWED DETAI LS OF THE CHEQUE PAYMENTS OF THE PARTIES. THE PARTIES FROM WH OM THE SHARE APPLICATION MONEY HAS BEEN RECEIVED WERE AS P ER ANNEXURE A-12, PAGE 4. THE AO OBSERVED THAT THE MON EY HAS BEEN RECEIVED FROM THE ABOVE PARTIES DURING THE PER IOD 30.12.2005 AND 15.1.2006, POST DATES CHEQUES SIGNED BY SHRI TUSHAR KUMAR DATED 20.1.2007 WERE ISSUED TO THESE P ARTIES RETURNING THEIR RESPECTIVE AMOUNTS WHICH WERE AS PE R ANNEXURE A-12, A-13, A-14 AND A-17. 6. THE APPELLANT WAS ASKED TO EXPLAIN THE ABOVE ENT RIES WITH EVIDENCE AND ALSO WHETHER ANY SHARE APPLICATION REG ISTER HAS BEEN MAINTAINED. THE APPELLANT EXPLAINED THAT THE M ONEY WAS ARRANGED FROM M/S ARHA BUILDCON PVT. LTD. AS THEY W ERE FINANCIERS AND MONEY ARRANGERS. DURING THE ASSESSME NT PROCEEDINGS, IT WAS SUBMITTED THAT THE SHARE CAPITA L, UNSECURED LOANS/ADVANCES RECEIVED FROM DIFFERENT PARTIES FOR DIFFERENT PROJECTS ARE FULLY ACCOUNTED FOR IN THE BOOKS AS PE R THE SUPPORTING DOCUMENTS IN THE FORM OF AGREEMENT (INDE MNITY BOND), LIST OF PARTIES, AMOUNT ADVANCED BY EACH PAR TY, MODE OF PAYMENT, POST DATED CHEQUES ETC. FOUND DURING THE C OURSE OF SEARCH. THE APPELLANT FURTHER SUBMITTED THAT THE MO NEY WAS ARRANGED FROM M/S ARHA BUILDCON PVT. LTD., WHO IS A REGULAR ASSESSEE WITH THE DEPARTMENT. 7. THE AO REFERRED TO THE STATEMENT OF ONE SHRI MAH ESH GARG WHO HAD INVESTED SHARE APPLICATION MONEY WITH THE A PPELLANT ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 6 AND WHO CONFIRMED THAT THESE COMPANIES WERE NOT CAR RYING OUT ANY GENUINE BUSINESS. HE FURTHER NOTICED THAT ANOTH ER COMPANY I.E. HILLRIDGE INVESTMENT WHO IS STATED TO HAVE INV ESTED MONEY WITH THE APPELLANT, WAS CONTROLLED BY ENTRY OPERATO RS VIRENDER JAIN AND S.K. JAIN. THE ASSESSING OFFICER, THEREFOR E, CONCLUDED THAT THIS COMPANY IS ALSO ENGAGED IN TAKING ACCOMMO DATION ENTRIES. 8. THE AO ALSO REFERRED TO THE INDEMNITY BOND ENTER ED INTO BETWEEN M/S ARHA BUILDCON AND GTM BUILDERS & PROMOT ERS LTD ON 10.11.2006 MARKED AS ANNEXURE A-17 PAGES 46 TO 5 2 WHICH SHOWED ADVANCE OF RS. 3.75 CRORES TO APPELLANT FOR 60 FLATS IN THE GTM FOREST AND HILLS AT DEHRADUN. THE BOND FURT HER STATES THAT GTM, LOOKING TO THE INCREASED VALUE OF PROPERT IES, HAS AGREED TO REPURCHASE THE FLATS FROM ARHA AT AN ADDI TIONAL COST OF RS. 2.97 CRORES AS WELL AS RS. 1 CRORE AS INTERE ST ON THE PRINCIPLE. AS PER THE BOND, THE MONEY IS TO BE PAID BACK AT THE LATEST BY FEBRUARY 2007. HE FURTHER FOUND THAT THER E WERE NO SHARE APPLICATION FORMS OR SHARE APPLICATION REGIST ER WHICH WERE FOUND AT THE TIME OF SEARCH. 9. FOR THESE REASONS AND VARIOUS OTHER REASONS DISC USSED IN THE ASSESSMENT ORDER AND ALSO FOR THE REASON THAT N O CONFIRMATION COULD BE FILED BY THE APPELLANT IN RES PECT OF THE SHARE APPLICATION MONEY, THE AO CONCLUDED THAT THE SHARE APPLICATION MONEY INVESTED IN GTM BUILDERS AND PROM OTERS BY THE VARIOUS COMPANIES ARE ONLY ENTRIES AND REPRESEN T THE UNDISCLOSED INCOME OF THE GROUP WHICH HAS BEEN SOUG HT TO BE ENTERED INTO THE BOOKS. ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 7 10. THE DETAILS OF AMOUNTS RECEIVED FROM VARIOUS PA RTIES IS AS BELOW: NAME AMOUNT ARHA BUILDCON LIMITED 10200000 ARHA BUILDCON (P) LIMITED 1600000 BIC CONSULTANTS (P) LTD 700000 CHINPURNI CREDIT & LEASING (P) LTD 1500000 CVH SEA LIFE LTD A/C 1700000 E - DYNAMICS SOLUTION PVT . LTD . 500000 ENPOL PVT . LTD . 1500000 FUNTIME ADVERTISING (P) LTD . 500000 FUNTIME TRAVEL PVT . LTD . 500000 GANGA INFIN (P) LTD . 800000 GARG FINVEST (P) LTD . 900000 HILIRIDGE INVESTMENT LTD . A/C 500000 K.R FINCAP (P) LTD . 800000 NISHANT FINVEST (P) LTD. 900000 PARTICULAR MANAGE FINANCE (P) LTD . 900000 PATHIK MERCHANDISE (P) LTD . 10000000 RAKESH KUMAR 400000 RIGHTWAY NETWORK PVT. LTD. A/C 2400000 SEHDEV KANDOL 650000 SHAILJA FINANCE LTD 10000000 SPARROW MARKETING (P) LTD 500000 SRI DINANATH LUHARI WALA SPINNING MILLS (P) LTD 700000 SRI NAWAS LEASING & FINANACE (P) LTD 900000 UNIQUE DIAGNOSTIC LTD A/C 500000 ZAFAR IQBAL ANSARI 2400000 ZIGMA TELECOM (P) LTD A/C 1500000 GRAND TOTAL 53450000 11. OUT OF THE ABOVE AMOUNT, THE LD. CIT (A) HAS DE LETED THE AMOUNTS RECEIVED FROM SHAILJA FINANCE LTD. OF RS.1,00,00,000/- PATHIK MERCHANDISE (P) LTD. OF RS.1,00,00,000/- AS THE ASSESSEE AND THE PARTIES COULD PROVIDE DOCUMENTS RELATING TO IDENTITY, ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 8 GENUINENESS AND CREDITWORTHINESS OF THE AMOUNTS REC EIVED ALONG WITH CONFIRMATIONS, ADDRESS, CHEQUE NUMBER AND PAN. 12. AGGRIEVED WITH THE ORDER OF THE LD. CIT (A), TH E REVENUE FILED APPEAL AGAINST DELETION OF RS.2 CR. AND THE A SSESSEE FILED APPEAL AGAINST THE CONFIRMATIONS OF THE REMAINING A MOUNTS OF RS.3,45,50,000/-. 13. BEFORE US DURING THE ARGUMENTS, THE LD. AR SUBM ITTED THAT THE ASSESSING OFFICER MAINLY RELIED UPON THE STATEM ENT RECORDED DURING THE SEARCH OPERATION AND ANY ADDITION HAS TO BE BASED ON THE SEIZED MATERIAL. IN THAT ASPECT, NO SEIZED MATE RIAL RELEVANT TO THE ADDITION HAS BEEN FOUND AND SEIZED BY THE RE VENUE. IT WAS ARGUED THAT THE AMOUNTS RECEIVED FROM M/S ARHA BUILDCON PVT. LTD. HAVE BEEN RECEIVED TO FINANCE THE PROJECT AND AGREEMENT HAS BEEN EXECUTED TO BUY BACK OF 60 FLATS AND THE AMOUNTS HAVE BEEN ALREADY RECEIVED BY M/S ARHA BUIL DCON PVT. LTD. THE SAID AMOUNTS HAVE BEEN RECEIVED BY M/S ARH A BUILDCON PVT. LTD. FROM VARIOUS PARTIES TO WHOM M/S ARHA BUI LDCON PVT. LTD. IN TURN PAYS THE INTEREST. REGARDING THE STATE MENT OF SHRI MAHESH GARG, IT WAS ARGUED THAT THE STATEMENT OF SH RI MAHESH GARG HAS NO RELEVANCE AS IT WAS RECORDED BEHIND THE BACK OF THE ASSESSEE AND NO OPPORTUNITY OF CROSS EXAMINATION OF SHRI MAHESH GARG OR HIS STATEMENT. IT WAS ARGUED THAT TH E STATEMENT OF SHRI MAHESH GARG WAS NOT RECORDED WITH REFERENCE TO THE SEARCH AND SEIZURE IN THE CASE OF THE ASSESSEE. IT WAS FURTHER ARGUED THAT WHEN THE LOANS HAVE BEEN REPAID AND HOU SES HAVE BEEN ALLOTTED, THE ALLEGATION OF THE ASSESSING OFFI CER THAT THE AMOUNTS CANNOT BE TREATED AS UNDISCLOSED INCOME. HE REFERRED TO PAGE NOS. 82 TO 150 OF THE PAPER BOOK. HE HAS RE FERRED TO ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 9 THE PAGE NOS. 152 & 153 OF THE PAPER BOOK TO PROVE THAT IN TOTAL THE ASSESSEE HAS RECEIVED RS.4,00,50,000/- FROM TOT AL OF 40 ENTITIES INCLUDING THE COMPANY ALLEGED BY THE REVEN UE DEPARTMENT. HE HAS ARGUED TAKING INTO THE ISSUES RE GARDING THE GENUINENESS OF THE AMOUNTS RECEIVED AND ARGUED THAT THE ASSESSING OFFICER HAS NOT RIGHTLY VERIFIED THE FACT S IN RIGHT PERSPECTIVE. 14. AGAINST THE ARGUMENTS OF THE LD. AR, THE DEPART MENTAL REPRESENTATIVE VEHEMENTLY ARGUED THAT THE BONAFIDES OF M/S ARHA BUILDCON PVT. LTD. HAVE NOT BEEN PROVED, THE E NTRY OPERATOR HAS GIVEN A UNDISPUTABLE STATEMENT REGARDI NG THE ENTRIES GIVEN TO THE ASSESSEE COMPANY HENCE THERE I S NO REASON TO DISBELIEVE HIS STATEMENT. COUPLED WITH THE FACTS THAT NO SHARE APPLICATION REGISTER HAS BEEN FOUND AT THE PR EMISES. THE LD. DR ARGUED THAT THE DISCRETE ENQUIRIES CONDUCTED BY THE INVESTIGATION WING DID NOT PROVE THE EXISTENCE OF M /S ARHA BUILDCON PVT. LTD. 15. THE LD. DR SUBMITTED THE ARGUMENTS SUCCINCTLY I N WRITING WHICH HAS BEEN REPRODUCED IN TOTO: LD. DRS SUBMISSION- SECTION 68 OF THE INCOME-TAX ACT, 1961 PROVIDES THA T, WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NA TURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT, I N THE OPINION OF THE ASSESSING OFFICER, SATISFACTORY, THE SUM SO CREDITE D MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE FOR THAT P REVIOUS YEAR. THE BURDEN OF PROOF IS HEAVILY CAST ON THE ASSESSEE. FI RST OF ALL, HE MUST ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 10 FURNISH AN EXPLANATION AS OTHERWISE THE CASH CREDIT WILL BE TREATED AS HIS INCOME. SECONDLY, THE EXPLANATION OFFERED MUST BE T O THE SATISFACTION OF THE ASSESSING OFFICER. IT IS BY NOW WELL-SETTLED TH AT WHAT ALL IS REQUIRED FROM THE ASSESSEE BY WAY OF EXPLANATION IS, (I) THA T HE MUST ESTABLISH THE IDENTITY OF THE PAYER; (II) THAT HE MUST PROVE THE CREDITWORTHINESS OF THE PAYER, AND (III) THAT HE MUST PROVE THE GENUINENESS OF THE TRANSACTION. IN THE CASE OF LOVELY EXPORTS (P) LTD [216 CTR 195 SC] IT WAS HELD THAT, IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE A SSESSEE COMPANY FROM ALLEGED BOGUS SHAREHOLDERS, WHOSE NAMES ARE GIVEN T O THE AO, THEN THE DEPARTMENT IS FREE TO PROCEED TO REOPEN THEIR INDIVI DUAL ASSESSMENTS IN ACCORDANCE WITH LAW, BUT IT CANNOT BE REGARDED AS U NDISCLOSED INCOME OF ASSESSEE COMPANY. THE HON'BLE JURISDICTIONAL HIGH C OURT IN I.T.A. NO. 665/2009 IN THE CASE OF CIT VS GOURDIN HERBALS INDIA L TD. ORDER DATED 17TH SEP. 2009 FOLLOWED THE JUDGMENT OF THE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. LOVELY EXPORTS PVT. LTD., 216 CTR 195 , AND HELD, THE ITAT HAS RIGHTLY HELD THAT THE ASSESSEE HAD DISCHARGED ITS BURDEN. IN CASE THOSE THREE COMPANIE S HAD RECEIVED CERTAIN CASH, WHICH WERE DEPOSITED IN THE BANK ACCOUNTS, IT WAS FOR THE INCOME TAX DEPARTMENT TO TAKE ACTION AGAINST THE SAID COMP ANIES.WE ARE, THEREFORE, OF THE OPINION THAT NO SUBSTANTIAL QUEST ION OF LAW ARISES FOR OUR CONSIDERATION IN THIS APPEAL, WHICH IS ACCORDINGLY DISMISSED.' [II] DISTINGUISHING THE DECISION IN LOVELY EXPORTS (SUPRA), THE FOLLOWING JUDICIAL VIEWS IN FAVOUR OF REVENUE ARE DISCUSSED B ELOW: (I) RECENTLY, IN THE CASE OF NAVODAYA CASTLE [56 TAXMANN.COM 18 (SC)] IT WAS HELD THAT, HONBLE HIGH COURT BY IMPUGNED O RDER HELD THAT CERTIFICATE OF INCORPORATION, PAN ETC., W ERE NOT SUFFICIENT FOR PURPOSE OF IDENTIFICATION OF SUBSCRIBER COMPANY WHEN THERE WAS MATERIAL TO SHOW THAT SUBSCRIBER WAS A PAPER CO MPANY AND NOT A GENUINE INVESTOR - WHETHER SPECIAL LEAVE PETI TION FILED AGAINST IMPUGNED ORDER WAS TO BE DISMISSED - HELD, YES. ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 11 (II) IN THE CASE OF CIT V. SOPHIA FINANCE LTD. 205 ITR 98 (DEL.) (F.B.) IT WAS HELD THAT, PROVISIONS OF S. 68 ARE APPLICAB LE EVEN TO SHARE APPLICATION MONEY AND IF ON ENQUIRY IT IS FOU ND THAT SHAREHOLDERS DO NOT EXIST, SUM CREDITED MAY BE TREA TED AS ASSESSEE'S INCOME. (III) IN THE CASE OF TITAN SECURITIES LTD. [357 ITR 184 (DEL)] IT WAS HELD THAT, WHERE ASSESSING OFFICER FOUND THAT SHARE APPLICANTS IN CASE OF ASSESSEE-COMPANY WERE ESTABLISHED ENTRY OPE RATORS GIVING ACCOMMODATION ENTRIES AND, THUS, HE ADDED AM OUNT PAID BY THEM TO ASSESSEE'S TAXABLE INCOME, TRIBUNAL WAS NOT JUSTIFIED IN DELETING SAID ADDITION WITHOUT PROPERLY EXAMININ G EVIDENCE BROUGHT ON RECORD BY ASSESSING OFFICER (IV) IN THE CASE OF N.R. PORTFOLIO PVT. LTD [87 DTR 0162 (DEL)] IT WAS HELD THAT MERELY FURNISHING NAMES, ADDRESSE S AND PAN PARTICULARS, OR RELYING ON ENTRIES IN A REGISTR AR OF COMPANIES WEBSITE, IF UPON VERIFICATION, OR DURING PROCEEDING S, AO CANNOT CONTACT SHARE APPLICANTS, OR THAT INFORMATION BECOM ES UNVERIFIABLE, OR THERE ARE FURTHER DOUBTS IN PURSUI T OF SUCH DETAILS, ONUS SHIFTS BACK TO ASSESSEE TO EXPLAIN SAME---YES. (V) ALSO IN THE CASE OF N.R. PORTFOLIO PVT LTD [96 DTR 0281 (DEL)] IT WAS HELD THAT, THE ONUS TO PROVE THE IDENTITY, C REDITWORTHINESS AND GENUINENESS OF THE TRANSACTION IS ON THE ASSESS EE AS THE FACTS ARE WITHIN THE ASSESSEES KNOWLEDGE. MERE PROD UCTION OF INCORPORATION DETAILS, PAN NOS. OR THE FACT THAT TH IRD PERSONS FILED RETURN IN CASE OF A PRIVATE LIMITED COMPANY MAY NOT BE SUFFICIENT WHEN SURROUNDING AND ATTENDING FACTS PREDICATE A CO VER UP. (VI) IN THE CASE OF MAF ACADEMY P. LTD. [361 ITR 02858 (DELHI)] IT WAS HELD THAT, MERE PRODUCTION OF INCORPORATION DETAILS, PAN NOS. OR RETURNS MAY NOT BE SUFFICIENT WHEN SURROUNDING AND ATTENDING FACTS PREDICATE COVER UP. IN PRESENT CASE, IT WAS STRANGE THAT ASSESSEE IN YEAR 2001 FEL T NEED OF OBTAINING AFFIDAVITS FROM PERSONS INVESTING IN SHAR ES TO CERTIFY GENUINENESS WHEN THERE WAS NO INQUIRY. SUCH FACT RA ISED SUSPICION ON GENUINENESS OF TRANSACTION. FURTHER SH ARES WERE PURCHASED AT LARGE PREMIUM AND THEN SOLD AT SUBSTAN TIAL LOSS IN SHORT SPAN OF TIME. ALSO ASSESSEE FAILED TO PRODUCE PERSONS WHO HAD INVESTED IN SHARES AND SHOW THAT THESE PEOPLE W ERE COMPLETELY UNRELATED TO ASSESSEE AND AS SUCH, ALL E NTRIES WERE MERELY ACCOMMODATION ENTRIES THUS, ASSESSEE HAD NOT DISCHARGED ONUS SATISFACTORILY AND ADDITIONS MADE B Y AO WERE ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 12 SUSTAINED ORDERS OF CIT (APPEALS) AND ITAT IN DELET ING ADDITION UNSUSTAINABLE-SUBSTANTIAL QUESTION OF LAW ANSWERED IN FAVOUR OF APPELLANT AND AGAINST THE RESPONDENT ASSESSEE-APPEA L ALLOWED. (VII) IN THE CASE OF TARIKA PROPERTIES INVESTMENT PVT LTD [221 TAXMAN 0014 (DEL)] IT WAS HELD THAT, HELD, FOLLOWING DECISION OF COORDINATE BENCH IN CIT VS. NR PORTFOLIO PVT. LTD AND CIT VS NOVA PROMOTERS AND FINLEASE PRIVATE LIMITED CASE (2012) 342 ITR 169 (DELHI), MERE PRODUCTION OF PAN NUMBER OR ASSESSMENT PARTICULARS SUBMITTED BY ASSESSEE DOE S NOT ESTABLISH IDENTITY OF A PERSON/INVESTORIDENTIFICATI ON OF A PERSON INCLUDES PLACE OF WORK, STAFF AND FACT THAT IT WAS ACTUALLY CARRYING ON BUSINESS AND FURTHER RECOGNITION OF SAID COMPANY /INDIVIDUAL IN EYES OF PUBLIC BANK STATEMENTS OF INVESTORS FURNISH ED BY ASSESSEE OMITTED TO SHOW THAT THERE WAS DEPOSIT OF CASH IMME DIATELY PRIOR TO ISSUANCE OF CHEQUES. EXTRACTS OF BANK STATEMENTS FURNISHED BY ASSESSEE WERE FOUND TO BE FABRICATED. ASSESSEE FAIL ED TO ESTABLISH CREDITWORTHINESS OF INVESTORS AND ALSO GENUINENESS OF TRANSACTIONORDERS OF CIT(A) AND ITAT WERE PERVERSE IN AS MUCH AS THEY HAD FAILED TO APPRECIATE FABRICATION IN BAN K STATEMENTS OF SHARE APPLICANTS THAT HAD BEEN FILED BY ASSESSEE. (VIII) IN THE CASE OF GLOBUS SECURITIES & FINANCE PVT LTD [224 TAXMAN 237 (DELHI)] IT WAS HELD THAT, ASSESSEES DIRECTORS, WHO HAD PURPORTEDLY MADE INVESTMENT IN SHARES WERE NOT RELATED OR KNOWN TO THEM. ASSESSEE HAD NO PROVEN GOOD PAST TRACK RECORD JUSTIFYING HEFTY PREMIUM, FOUR TIMES FACE VA LUE. ONLY CERTAIN PAPERS SHOWING THAT ASSESSEE HAD TAKEN CARE TO ENSURE LEGAL COMPLIANCES WERE PLACED ON RECORD. TRIBUNAL H AD NOT GIVEN DUE CREDENCE TO SURROUNDING CIRCUMSTANCES WHICH INC LUDED HUGE PREMIUM, CREDIT ENTRIES IN BANK ACCOUNTS BEFORE TRA NSFER OF MONEY TO ASSESSEE, FAILURE OF COMPANIES TO FILE DET AILS OF INVENTORIES AND FACT THAT ASSESSEE COMPANY HAD NOT CHARGED ANY PREMIUM EARLIER. THREE FACTUM IN ALL CASES WAS NOT ESTABLISHED BY ONLY SHOWING THAT TRANSACTION WAS THROUGH BANKING C HANNELS OR ACCOUNT PAYEE INSTRUMENT. SURROUNDING AND CORROBORA TIVE FACTUAL DETAILS WERE EQUALLY IMPORTANT AND JUSTIFY FURTHER PROOF OR DETAILS BEFORE IT IS HELD THAT ONUS IS DISCHARGED. THUS, MA TTER REMITTED TO TRIBUNAL FOR ENTIRE ISSUE TO BE DEALT AFRESH. (IX) IN THE CASE OF EMPIRE BUILTECH PVT LTD [366 ITR 110 (DELHI)] IT WAS HELD THAT, MERELY BECAUSE ASSESSEE HAD DISCL OSED THE IDENTITY OF THE INVESTORS, IT CANNOT BE SAID THAT B URDEN IMPOSED ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 13 UPON IT U/S 68 HAD BEEN DISCHARGED, PARTICULARLY WH EN INVESTORS NOT ONLY DID NOT SUBMIT ANY CONFIRMATION, BUT HAD C ONCEDEDLY REPORTED FAR LESS INCOME THAN THE AMOUNTS INVESTED. (X) IN THE CASE OF ONASSIS AXLES PRIVATE LIMITED [364 ITR 53 (DELHI)] IT WAS HELD THAT, HELD, BANK STATEMENT OF THREE COMPANIES FILED IN REMAND REPORT BEFORE CIT(A) SHOW S THAT ACCOUNTS DID NOT DISCLOSE LARGE VOLUME OF TRANSACTI ONS. CASH DEPOSITS WERE MADE INTO ACCOUNTS OF COMPANIES ON SA ME DAY OR ON PROXIMATE DAYS. PAY ORDERS GIVEN TO APPLY TO SHA RES WERE ISSUED FROM A FAR OFF BANK BRANCH IN NOIDA. THESE FA CTS, TOGETHER WITH SHARE APPLICANTS LACK OF RESOURCES AND INADEQU ATE SHARE CAPITAL, AS WELL AS AUTHORIZED AND SUBSCRIBED SHARE CAPITAL OF ASSESSEE I.E. RS.50 LAKH BEING THE AUTHORIZED CAPIT AL, AND PAID UP CAPITAL BEING RS.70 LAKH, AS AGAINST IT RESERVES BE ING OVER RS.2 CRORES, FOR REASON OF THE PREMIUM RECEIVED, SHOWED THAT SHARE MONEY TRANSACTION WAS DUBIOUS. AMOUNT RECEIVED BY A SSESSEE FALLS WITHIN MISCHIEF OF SECTION 68 AS UNEXPLAINED AMOUNTS. TRIBUNAL WAS JUSTIFIED IN HOLDING THAT AMOUNT RECEI VED BY ASSESSEE WAS BOGUS SHARE CAPITAL. ASSESSEES APPEAL DISMISSED. (XI) IN THE CASE OF FOCUS EXPORTS PVT. LTD. [111 DTR 0012 (DEL)] IT WAS HELD THAT, IF THE ASSESSEE OFFERS NO EXPLAN ATION ABOUT THE NATURE AND SOURCE OF CREDIT OF AMOUNTS IN THE BOOKS MAINTAINED BY IT OR THE EXPLANATION OFFERED IS NOT SATISFACTORY, THEN THE SUMS SO CREDITED CAN BE TREATED AS INCOME OF THE ASSESSEE FOR THAT PREVIOUS YEAR. (XII) IN THE CASE OF RATHI FINLEASE LTD (215 CTR 429 MP) IT WAS HELD THAT, THOUGH CONFIRMATION LETTERS WERE PRODUCE D, GENUINENESS OF SHARE APPLICATION MONEY RECEIVED BY ASSESSEE COMPANY CANNOT BE SAID TO HAVE BEEN ESTABLISHED SIN CE THE ALLEGED COMPANIES WHICH HAD PAID THE MONEY WERE FOU ND TO BE NON-EXISTENT AND THE AMOUNTS WERE PAID BY CHEQUES O N THE SAME DATE ON WHICH SUCH AMOUNTS WERE CREDITED TO THE BAN K ACCOUNTS OF THOSE COMPANIES FAILED TO DISCHARGE THE BURDEN, ADDITION U/S 68 UPHELD. (XIII) IN THE CASE OF KUNDAN INVESTMENT LTD (263 ITR 626 (CAL)) IT WAS HELD THAT, SINCE THE ASSESSEE DID NOT TAKE ANY STEPS TO OBTAIN CONFIRMATORY LETTERS FROM THE SUBSCRIBERS OF PUBLIC ISSUE QUOTA WHO DID NOT RESPOND TO THE ENQUIRY NOR ATTEMPTED TO PRODUCE SAID SUBSCRIBERS OR TO DISCLOSE THEIR INCOME-TAX FI LE NUMBERS SUBSCRIPTIONS SAID TO HAVE BEEN MADE BY SUCH SUBSCR IBERS TO THE ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 14 SHARES OF THE ASSESSEE-COMPANY CANNOT BE ACCEPTED A S GENUINE; IN THE ABSENCE OF ANY MATERIAL EXCEPT THE INCOME-TA X FILE NUMBERS, THE IDENTITY OF THE SUBSCRIBERS TO THE PRO MOTERS QUOTA AND THEIR CREDITWORTHINESS COULD NOT BE ESTABLISHED AND THE SUBSCRIPTION MADE BY THEM COULD NOT BE ACCEPTED AS GENUINE; HOWEVER, MATTER IS REMANDED TO THE TRIBUNAL FOR DEC IDING THE SAME AFRESH. (XIV) IN THE CASE OF KORLAY TRADING CO. LTD (232 ITR 820 (CAL)) IT WAS HELD THAT, MERELY FILING OF INCOME-TAX FILE NUM BER OF CREDITOR IS NOT ENOUGH TO PROVE THE GENUINENESS OF CASH CRED IT UNLESS THE CREDITOR IS IDENTIFIED AND HIS CREDITWORTHINESS IS ESTABLISHED. ADDITION JUSTIFIED. (XV) IN THE CASE OF SUMATI DAYAL (214 ITR 801 (SC)) IT WAS HELD THAT, APPLYING THE TEST OF HUMAN PROBABILITIES WAS RIGHT THAT THE ASSESSEE'S CLAIM ABOUT THE AMOUNT BEING HER WINNING S FROM RACES IS NOT GENUINE. (XVI) IN THE CASE OF POWER DRUGS LTD. (245 CTR 623 P & H) IT WAS HELD THAT, ASSESSEE-COMPANY HAVING FAILED TO ESTABL ISH THE IDENTITY AND CREDITWORTHINESS OF THE ALLEGED SHARE APPLICANTS AND THE GENUINENESS OF THE SHARE APPLICATION MONEY SHOW N BY IT, ADDITION UNDER S.68 WAS RIGHTLY UPHELD BY THE TRIBU NAL. (XVII) IN THE CASE OF NOVA PROMOTERS & FINLEASE (P) LTD (342 ITR 169 DEL) IT WAS HELD THAT ASSESSING OFFICER AFTER ISSUANCE OF SUMMONS NOT BEING SATISFIED BY THE EXPLANATIONS PRO VIDED HELD THAT THAT ASSESSEE WAS UNABLE TO PROVE THE GENUINEN ESS OF THE TRANSACTIONS WITH THE COMPANIES AND THAT IT ALSO PR OVED THAT THE ASSESSEE COMPANY HAD INTRODUCED ITS OWN MONIES THRO UGH NON- EXISTING COMPANIES USING THE BANKING CHANNEL IN THE SHAPE OF SHARE APPLICATION MONIES THERE IS NO EXPLANATION AS TO WHY THE DEPONENTS COULD NOT BE PRODUCED AND DID NOT APPEAR IN RESPONSE TO THE SUMMONS - THE MODUS OPERANDI INVOLVES RECEIP T BY THE ENTRY PROVIDERS OF EQUIVALENT AMOUNT OF CASH FROM T HE ASSESSEE SECTION 68 PLACES NO DUTY UPON ASSESSING OFFICER TO POINT TO THE SOURCE FROM WHICH THE MONEY WAS RECEIVED BY THE ASS ESSEE. ORDER OF TRIBUNAL SET ASIDE - QUESTION OF LAW ANSWE RED IN FAVOUR OF DEPARTMENT--YES. (XVIII) IN THE CASE OF AZEEM INVESTMENT PVT LTD (252 CTR 0217 DEL) IT WAS HELD THAT REASSESSMENT PROCEEDINGS WERE INI TIATED IN THE CASE OF THE ASSESSEE AFTER INFORMATION WAS RECE IVED FROM ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 15 DIRECTOR OF INVESTIGATION REGARDING BOGUS/ACCOMMODAT ION ENTRIES ALLEGEDLY PROVIDED BY DIFFERENT COMPANIES WHICH WER E MANAGED AND OPERATED BY MUKESH GUPTA AND RAJAN JASSAL. AO N OTICED THAT THESE COMPANIES HAD BEEN ISSUED SHARES BY THE APPEL LANT ASSESSEE. A QUESTION AROSE WHETHER THE SHARE APPLIC ATION MONEY RECEIVED WAS A GENUINE TRANSACTION TRIBUNAL AFTER N OTICING THE FACTS ON RECORD REMITTED THE MATTER BACK TO THE AO AND FELT THAT THE MATTER CANNOT BE DECIDED IN A SUPERFICIAL MANNE R, BY ONLY MAKING REFERENCE TO THE BANK ACCOUNT ENTRIES AND WH ETHER OR NOT THE ALLEGED SHAREHOLDERS WERE INCORPORATED COMPANIE S. HELD, THE TRIBUNAL ELUCIDATED THE RELEVANT FACTS AND GIVEN CO GENT AND GOOD REASONS WHY AN ORDER OF REMIT WAS NECESSARY AND REQ UIRED IN THE FACTS OF THE PRESENT CASE. WHETHER OR NOT AN ORDER OF REMAND IS JUSTIFIED AND REQUIRED DEPENDS ON FACTS OF EACH CAS E. AN ORDER OF THE REMIT HAS BEEN PASSED, WITH A DIRECTION TO COND UCT IN DEPTH INQUIRY, REACH AND RECORD CORRECT AND TRUE FINDING, WHICH DEPENDING UPON THE MATERIAL MAY EVENTUALLY EVEN GO IN FAVOUR OF THE ASSESSEE. ASSESSEES APPEAL DISMISSED. (XIX) IN THE CASE OF MAJOR METALS LTD (359 ITR 0450 (BOM)) IT WAS HELD THAT SETTLEMENT COMMISSION ADDITION UNDER SECTION 68 INTERFERENCE IN EXERCISE OF WRIT JURISDICTION ASSES SEE AN UNLISTED COMPANY WAS GIVEN HUGE LOAN OF RS. 6 CRORES BY TWO COMPANIES. LATER ON THESE COMPANIES WERE ALLOTTED 30,000 SHARE S EACH OF FACE VALUE 10 AT HUGE PREMIUM OF RS. 990. SETTLEMEN T COMMISSION HAS CONSIDERED ALL MATERIAL ON RECORD IN CLUDING MATERIAL WHICH HAD A BEARING ON THE CREDITWORTHINES S AND FINANCIAL STANDING OF THE ALLEGED SUBSCRIBING COMPA NIES TO THE SHARE CAPITAL OF THE ASSESSEE. NONE OF THE COMPANIE S WAS HELD TO HAVE A FINANCIAL STANDING OR CREDITWORTHINESS WHICH WOULD JUSTIFY MAKING OF SUCH A LARGE INVESTMENT OF RS. 6 CRORES A T A PREMIUM OF RS. 990 PER SHARE. ALLOTMENT OF SHARES HAS TAKEN PLACE IN PURSUANCE OF A PRIVATE PLACEMENT. VIEW WHICH HAS BE EN TAKEN BY THE SETTLEMENT COMMISSION IS CONSEQUENTLY BORNE OUT ON THE BASIS OF THE MATERIAL ON RECORD. COMMISSION HAS NOT PROCEEDED CONTRARY TO LAW OR ON THE BASIS OF NO EVIDENCE. THE RE IS NO PERVERSITY IN THE FINDINGS OF THE SETTLEMENT COMMIS SION. REAPPRECIATION OF FINDING OF FACTS NOT WARRANTED IN EXERCISE OF JUDICIAL REVIEW. ORDER OF THE SETTLEMENT COMMISSION UPHELD. (XX) IN THE CASE OF INDEPENDENT MEDIA PVT. LTD. (25 TAXMANN.COM 276 (DELHI)) IT WAS HELD THAT, FOR ADDITION U/S 68, AO NEED NOT ESTABLISH MONEY COMING FROM ASSESSE E'S COFFERS ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 16 - FOR MAKING ADDITION UNDER SECTION 68, IT IS NOT I NCUMBENT UPON AO TO ESTABLISH THAT MONEY HAD COME FROM ASSESSEE'S COFFERS. (XXI) IN THE CASE OF NEELKANTH ISPAT UDHYOG PVT LTD (81 DTR 0214) IT WAS HELD THAT, IN CASES WHERE THE EXPLANATION O FFERED BY THE ASSESSEE ABOUT THE NATURE AND SOURCE OF THE SUMS FOUND CREDITED IN THE BOOKS IS NOT SATISFACTORY THERE IS, PRIMA FACIE, EVIDENCE AGAINST THE ASSESSEE, VIZ., THE RECEIPT OF MONEY. THE BURDEN IS ON THE ASSESSEE TO REBUT THE SAME, AND, I F HE FAILS TO REBUT IT, IT CAN BE HELD AGAINST THE ASSESSEE THAT IT WAS A RECEIPT OF AN INCOME NATURE---YES. (XXII) IN THE CASE OF FROSTAIR P. LTD [92 DTR 393 (DEL)] IT WAS HELD THAT, SHARE APPLICATION MONEY, GENUINENESS OF THE T RANSACTION, REVENUE RECEIVED INFORMATION ALLEGING THAT ASSESSEE HAD ACCEPTED SHARE CAPITAL FROM COMPANIES ENGAGED IN PR OVIDING BOGUS ENTRIES IN THE FORM OF LOAN AND SHARE APPLICA TION MONEY TO INTERESTED PARTIES. ACCORDINGLY, THE AO CALLED FOR INFORMATION U/S 142 (1)ASSESSEE FILED A LIST OF 18 SHAREHOLDERS AND FELT THAT THE NATURE OF THE ASSESS COMPANY AND ITS BUSINESS WAS N OT SUCH AS TO ATTRACT A HUGE PREMIUM. AFTER TAKING INTO ACCOUNT V ARIOUS FACTORS, INCORRECT GIR/PAN NUMBER AND DESIGNATION OF THE CON CERNED AOS, WHO WERE SEIZED OF THE SHARE APPLICANT COMPANIES' R ETURNS; NONE OF THE SHAREHOLDERS EXISTED AT THE ADDRESSES GIVEN BY THE ASSESSEE; THE BOOKS OF ACCOUNTS OF THE SHARE APPLIC ANTS NOT BEING PRODUCED BEFORE HIM, THE AO HELD THAT AN INFERENCE COULD BE DRAWN THAT THE TRANSACTIONS WERE NOT GENUINE----YES . (XXIII) IN THE CASE OF RAJANI HOTELS LTD [79 DTR 185 (MAD)] IT WAS HELD THAT, SOME SHAREHOLDERS REFUSED HAVING APPLIED . DIRECTOR OF THE ASSESSEE COMPANY STATED THAT THEY WERE BENAMI I NVESTORS. PAYMENT TO AND FROM SHAREHOLDERS WERE IN CASH AND T HEREFORE THE CLAIM OF DIRECTOR IS REJECTED---- TO THAT EXTENT TR EATED AS UNEXPLAINED. X) IN THE CASE OF YOUTH CONSTRUCTION P VT LTD [357 ITR 197 (DELHI)] IT WAS HELD THAT, MERE PROOF OF IDE NTITY WITHOUT GENUINENESS AND CREDITWORTHINESS IS ENOUGH----NO. (XXIV) IN THE CASE OF ULTRA MODERN EXPORTS PVT. LTD [220 TAXMAN 165 (DELHI)] IT WAS HELD THAT INFORMATION THAT ASSESSEE FURNISHES WOULD HAVE TO BE CREDIBLE AND AT SAME TIME VERIFIABLE. FIVE SHARE APPLICANTS COULD NOT BE SERV ED AS NOTICES WERE RETURNED UNSERVED. ASSESSEES ABILITY TO SECUR E DOCUMENTS SUCH AS INCOME TAX RETURNS OF SHARE APPLICANTS AS W ELL AS BANK ACCOUNT PARTICULARS WOULD ITSELF GIVE RISE TO A CIR CUMSTANCE WHICH ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 17 AO IN THIS CASE PROCEEDED TO DRAW INFERENCES FROM A SSESSEE COMMENCED ITS BUSINESS AND IMMEDIATELY SOUGHT TO IN FUSE SHARE CAPITAL AT A PREMIUM RANGING BETWEEN RS.90-190 PER SHARE AND WAS ABLE TO GARNER A COLOSSAL AMOUNT OF RS.4.34 CRO RES. CIT (A) AND ITAT ERRED IN HOLDING THAT AO COULD NOT HAVE AD DED BACK SAID AMOUNT U/S 68----YES. [III] IN CONCLUSION, AS CAN BE SEEN FROM THE ABOVE SAID JUDGEMENTS, IT IS CLEAR THAT THE INITIAL ONUS IS UPON THE ASSESSEE TO PROVE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE PERSONS IN WHOSE NAME THE CREDIT ENTRY IS APPEARING BY WAY OF SHARE CAPITAL/PREMIUM, LOAN OR CREDITOR ETC. AFTER THAT THE ASSESSING OFFICER IS DUTY BOUND TO C HECK THE VERACITY OF THOSE DETAILS FILED AND THEREAFTER ARRIVE AT A CONC LUSION IN CONNECTION WITH THE GENUINENESS OF SHARE CAPITAL/PREMIUM. HOWEVER, THE RECENT JUDGEMENTS OF DIFFERENT HIGH COURTS IN THIS REGARD ARE QUITE DIFFERENT PARTICULARLY CONSIDERING THE FACTS OF EACH CASE. MO REOVER, RECENT JUDGEMENT IN THE CASE OF NAVODAYA CASTLE (SUPRA) HAS DISTINGUISHED THE POSITION OF LAW SETTLED IN THE CASE OF LOVELY EXPORTS (SUPRA). IN CIT V/S. NAVODAYA CASTLES (P) LTD. 109 DTR (DELHI HC) 109 (184) CERTIFICATE OF INCORPORATION, PAN ETC ARE RELEVANT FOR THE PURPOSE OF IDENTIFICATION, BUT HAVE THEIR LIMITATION WHEN THER E IS EVIDENCE AND MATERIAL TO SHOW THAT THE SUBSCRIBER WAS A PAPER CO MPANY AND NOT A GENUINE INVESTOR., MATTER IS REMANDED FOR RECONSIDE RATION. IN THE CASE OF NAVODAYA CASTLE [56 TAXMANN.COM 18 (SC)] , THIS IT WAS HELD- WHETHER SPECIAL LEAVE PETITION FILED AGAINST IMPUGN ED ORDER WAS TO BE DISMISSED - HELD, YES. [IV] GROUND NOS. 2, 3 AND 4 OF DEPARTMENT APPEAL ITA NO. 3797/DEL/2010 - THE FACTS BROUGHT OUT IN THE ASSESSMENT ORDER FOR A Y 2006-07 AND IN VIEW OF THE DISCUSSION OF ALL THE CASE LAWS CITED A BOVE, IT IS VERY CLEAR THAT THE AO HAS CORRECTLY MADE THE ADDITION U/S 68 OF THE INCOME TAX ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 18 ACT AND THE ADDITION SHOULD BE UPHELD. IN THE PRESE NT CASE, THE AO HAS CONDUCTED NECESSARY INVESTIGATIONS TO ARRIVE AT THE CONCLUSION THAT THE GENUINENESS OF THE TRANSACTIONS HAVE NOT BEEN PROVE D AND NEITHER HAVE THE SAME BEEN EXPLAINED. THE REVENUE RELIES UPON ALL THE FACTS AS DISCUSSED BY THE AO IN THE ASSESSMENT ORDER FOR AY 2006-07. HENCE, ON THE MERI TS OF THE CASE FOR AY 2006-07, THE LD. CIT(A) ERRED IN GIVING RELIEF TO T HE APPELLANT TO THE EXTENT OF RS 2 CRORES. THE RELIANCE IS PLACED ON THE ASSES SMENT ORDER FOR AY 2006-07 AND DISCUSSION IN PARAS [I], [II] AND [III] ABOVE. IT IS PRAYED THAT THE ADDITION OF RS 2 CRORES MADE BY THE AO SHOULD B E UPHELD. 16. HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PER USED THE MATERIAL AVAILABLE ON RECORD. 17. WE FIND THAT THE MAJOR REASONS CONSIDERED BY TH E ASSESSING OFFICER WHILE MAKING THE ADDITION ARE AS UNDER: 1. DISCLOSURE MADE BY THE DIRECTOR OF COMPANY 2. SEIZURE OF DETAILS OF CHEQUE PAYMENTS TO PARTIES AN D RECEIPT OF THE AMOUNTS. 3. STATEMENT OF SHRI MAHESH GARG RECORDED U/S 131 4. NON-COMPLIANCE TO THE DEPARTMENTAL NOTICES ISSUED T O M/S ARHA BUILDCON PVT. LTD. 5. SEIZURE OF INDEMNITY BOND ENTERED BETWEEN M/S ARHA BUILDCON AND THE ASSESSEE. 6. SEIZED MATERIAL SHOWING ARHA ENTRY 7.5L 7. SEIZURE OF POST DATED CHEQUE SIGNED BY THE DIRECTOR OF COMPANY AGAINST THE LOANS ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 19 M/S ARHA BUILDCON PVT. LTD. 18. THE ASSESSEE HAS RECEIVED AMOUNTS VARYING FROM RS.5 LACS TO RS.67 LAC FROM VARIOUS PERIODS FROM 07.12.2005 T O 25.02.2006 AND AN AMOUNTS HAVE BEEN REFUNDED FROM 27.04.2006 TO 19.05.2006 OF AMOUNTS VARYING FROM RS .5 LACS TO 30 LACS. THERE HAS BEEN AN AGREEMENT BETWEEN ARHA B UILDCON AND THE ASSESSEE REGARDING BOOKING OF 60 FLATS IN T HE PROJECT GTM FOREST AT DEHRADUN. THIS SHOWS THAT THERE HAVE BEEN DIRECT FINANCE ARRANGEMENTS BETWEEN THE M/S ARHA BUILDCON PVT. LTD. AND THE ASSESSEE. IN THE SEARCH & SEIZURE OPERATION , AN INDEMNITY BOND HAS BEEN SEIZED WHEREIN THE ARHA BUI LDCON HAS ARRANGED RS.3.75 CRORES FOR THE ASSESSEE AFTER CALC ULATION OF COST OF 60 FLATS EACH OF 1650 SQ. FT. @ RS.1100 PER SQ. FT. AS PER THE AGREEMENT, RS.2 CRORES IS TO BE PAID BEFORE 10. 12.2006 AND FROM THE RECORDS IT CAN BE FOUND THAT THE ASSESSEE HAS ALREADY PAID RS.67 LACS TILL 19.05.2006 WHICH GIVES A CREDE NCE TO THE RELIABILITY OF THE AGREEMENT. THE INDEMNITY BOND, T HE AMOUNTS RECEIVED AND PAID AGAINST THE BOOKINGS CANNOT BE SU SPECTED IN THE ABSENCE OF ANY OTHER CONTRARY FINDING BY THE RE VENUE. FROM THE RECORD, WE ALSO FIND THAT M/S ARHA BUILDCON PVT . LTD. HAS NOT COMPLIED TO THE SUMMONS ISSUED BY THE INVESTIGATION WING. REGARDING THE DISCRETE ENQUIRIES CONDUCTED BY THE A SSESSING OFFICER AT THE PREMISES, WE OBSERVE THAT THE ASSESS EE HAS NOT BEEN GIVEN ANY OPPORTUNITY TO THE ASSESSEE REGARDIN G THE DISCRETE ENQUIRIES CONDUCED AND ITS OUTCOME. THE SA ID LENDER HAS BEEN EXISTENCE FOR 10 YEARS AND ASSESSED TO TAX . WHILE MAKING THE ADDITION, THE ASSESSING OFFICER MENTIONS THAT THE ASSESSEE WAS NOT ABOVE TO PROVIDE ANY DETAILS OF CH EQUES THAT WAS ISSUED BY THE ASSESSEE AND HOW MANY OF THESE CH EQUES ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 20 HAVE ACTUALLY NOT BEEN PRESENTED FOR PAYMENT OR WHE THER ANY REAL PAYMENTS WERE EVER MADE. THE STATEMENT IS FAC TUALLY WRONG AS THE BANK STATEMENT OF THE ASSESSEE MAINTAI NED AT HDFC BANK A/C NO. 1322000007148, PALAM, NEW DELHI C LEARLY SHOWS THE AMOUNTS RECEIVED AND PAID WITH REGARD TO M/S ARHA BUILDCON PVT. LTD. HENCE, IN VIEW OF THE FACTS ARE UNABLE TO AGREE WITH THE CONTENTIONS OF THE LD. CIT (A). THE ADDITION ON THIS ACCOUNT IS DIRECTED TO BE DELETED. ADDITION ON ACCOUNT OF OTHER PARTIES: 19. THE ADDITION HAS BEEN MAINLY MADE MAINLY BASED ON THE STATEMENT OF SHRI MAHESH GARG. 20. WE HAVE GONE THROUGH THE STATEMENT AND ALSO THE LEDGER ACCOUNT AND THE BANK ACCOUNTS OF THE VARIOUS PARTIE S FROM WHOM THE AMOUNTS HAVE BEEN RECEIVED. IN THE CASE OF THE BIC CONSULTANTS PVT. LTD. WHILE THE AMOUNT OF RS.7 LACS HAS BEEN RECEIVED ON 31.12.2005, THE SAME HAS BEEN REFUNDED ON 17.11.2007. IN THE CASE OF CHINPURNI CREDIT & LEASI NG PVT. LTD., THE AMOUNT RECEIVED WAS RS.15 LACS ON 02.01.2006, T HE AMOUNT REPAID ON 15.09.2006 WAS TO THE TUNE OF RS.12.5 LAC S AND RS.2.5 LACS ON 19.09.2006. IN THE CASE OF CVH SEA L IFE LTD., THE AMOUNT RECEIVED HAS BEEN REFUNDED BY 24.09.2007. SI MILARLY, IN THE CASE OF E-DYNAMICS SOLUTION PVT. LTD., THE AMOU NT OF RS.5 LACS WHICH WAS RECEIVED ON 03.01.2006 HAS BEEN REFU NDED ON 19.09.2006. IN THE CASE OF ENPOL PVT. LTD., OUT OF THE AMOUNT RECEIVED OF RS.15 LACS AN AMOUNT OF RS.7 LACS HAS B EEN PAID BY 25.09.2006 AND AN AMOUNT OF RS.7 LACS HAS BEEN PAID ON 23.10.2007. IN THE CASE OF FUNTIME TRAVEL PVT. LTD ., THE ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 21 AMOUNT OF RS.5 LACS RECEIVED ON 03.01.2006 IS OUTST ANDING. SIMILARLY, THE AMOUNT RECEIVED ON 31.12.2005 FROM G ANGA INFIN PVT. LTD. AND THE GARG FINVEST PVT. LTD. HAS BEEN R EFUNDED ON 28.09.2006 AND BY 10.10.2006. SIMILAR IS THE CASE W ITH OTHER ENTITIES NAMELY, HILLRIDGE INVESTMENT LTD., THE PAY MENT RECEIVED IN JANUARY HAS BEEN REFUNDED IN SEPTEMBER 2006. SIMILARLY, IN THE CASE OF RAKESH KUMAR, THE AMOUNT RECEIVED OF RS.4 LACS IN JANUARY 2006 HAS BEEN REFUNDED ON 28.0 4.2006. THE SAME IS IN CASE OF SEHDEV KANDOL, RIGHTWAY NETW ORK PVT. LTD. THUS, WE FIND THAT EXCEPT SPARROW MARKETING PV T. LTD. OF RS.5 LACS, SDLW SPINNING MILLS PVT. LTD. AND SRI NA WAS LEASING & FINANCE PVT. LTD. TOTALING TO AN AMOUNT OF RS.21 LACS, THE REMAINING AMOUNTS HAVE BEEN EITHER REFUNDED WITHIN THE YEAR, WITHIN TWO YEARS OR ADJUSTED AGAINST THE BOOKINGS. UNDER THESE CIRCUMSTANCES, IT CANNOT BE SAID THAT THE AMOUNTS H AVE BEEN ACCOMMODATION ENTRIES SOLELY BASED ON THE STATEMENT OF SHRI MAHESH GARG. 21. WE FIND THAT THE ASSESSEE HAS NOT BEEN GIVEN OP PORTUNITY TO REBUT EVEN THE STATEMENT OF SHRI MAHESH GARG BY THE ASSESSING OFFICER. THE ASSESSING OFFICER HAS NOT IS SUED ANY SUMMONS OR MADE ANY ENQUIRIES WITH REGARD TO ANY OF THE PARTIES TO PROVE THAT THE AMOUNTS HAVE BEEN INFACT ROOTED THROUGH THESE ENTITIES. WE HAVE GONE THROUGH THE CA SE LAWS SUBMITTED IN JUDGMENTS RELIED UPON BY THE REVENUE. 22. IN THE CASE NR PORTFILIO, THE ASSESSING OFFICER HAS ISSUED SUMMONS VERIFIED THE PARTIES AND MADE THE ADDITION WHEREAS IN THIS CASE WE FIND THAT THE ASSESSING OFFICER HAS ME RELY RELIED ON THE STATEMENT OF SHRI MAHESH GARG ONLY. IN THE CASE OF MAF ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 22 ACADEMY PVT. LTD., THE SHARES WERE PURCHASED AT A L ARGE PREMIUM AND THEN SOLD AT SUBSTANTIAL LOSS IN SHORT SPAN OF TIME. THE ASSESSEE FAILED TO PRODUCE THE PARTIES AND THE PARTIES WERE COMPLETELY UNRELATED TO THE ASSESSEE WHEREAS IN THE INSTANT CASE THE AMOUNTS HAVE BEEN RECEIVED AND REPAID TO V ARIOUS PARTIES EVEN BEFORE THE DATE OF SEARCH AND IN SOME CASE AFTER THE SEARCH AND IN OTHER CASES AGAINST THE ALLOTMENT OF FLATS. THERE WAS NO PREMIUM INVOLVED IN THIS CASE EXCEPT T HAT IT IS A FINANCE ARRANGEMENT TO COMPLETE THE PROCESS OF CONS TRUCTION OF FLATS. IN THE CASE, NO SHARES HAVE ALLOTTED, THE AM OUNTS HAVE BEEN TAKEN ARE REFUNDED AND THE AGREEMENTS HAVE BEE N MADE TO BUY BACK THE FLATS. IN THE CASE OF GLOBAL SECURI TIES FINANCE PVT. LTD., THE ASSESSEE HAD NO PROVEN TRACK RECORD JUSTIFYING HEFTY PREMIUM OF FOUR TIMES THE FACE VALUE WHEREAS HERE IN THE INSTANT CASE THE FLATS HAVE BEEN SOLD @ RS.1100 PER SQ. FT. THE JUDGMENT IN THE CASE OF ONASSIS EXILES PVT. LTD. TH ERE WERE CASH DEPOSIT WHEREAS IN THE INSTANT CASE NO SUCH CASH DE POSIT COULD BE BROUGHT OUT BY THE REVENUE. WE HAVE PERUSED ALL THE OTHER CASES RELIED UPON BY THE REVENUE AND FIND THAT THE CASES ARE NOT APPLICABLE TO THE FACTS OF THE INSTANT CASE. IN THE CASE OF MAJOR METALS LTD., THERE HAS BEEN A PREMIUM OF RS.990/- W HEREAS IN THE INSTANT CASE THERE WAS NO PREMIUM AND NO SHARES HAVE BEEN ALLOTTED. THUS, WE FIND THAT WHILE A VALIANT ATTEMP T HAVE BEEN MADE BY THE LD. CIT DR, THERE HAS NOT BEEN ANY TANG IBLE FACTS TO TREAT THESE AMOUNTS U/S 68 ESPECIALLY WHEN THERE IS NO PREMIUM INVOLVED, THE PARTIES HAVE NOT BEEN INQUIRE D INTO REVENUE, ADDITION HAS BEEN MADE SOLELY ON THE BASIS OF SHRI MAHESH GARG, AMOUNTS HAVE REFUNDED AT VARIOUS INTER VALS OR ADJUSTED AGAINST THE BOOKINGS, WE HOLD THAT THE ACT ION OF THE ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 23 ASSESSING OFFICER CANNOT BE HELD TO BE VALID. APPEA L OF THE ASSESSEE ON THIS GROUND IS ALLOWED. 23. REGARDING THE APPEAL OF THE REVENUE, WE FIND TH AT THE LD. CIT (A) HAS DULY SATISFIED HIMSELF AS THE ASSESSEE AND THE PARTIES COULD PROVIDE DOCUMENTS RELATING TO IDENTIT Y, GENUINENESS AND CREDITWORTHINESS OF THE AMOUNTS REC EIVED ALONG WITH CONFIRMATIONS, ADDRESS, CHEQUE NUMBER AND PAN. HENCE, WE DECLINE TO INTERFERE WITH THE ORDER OF THE LD. C IT (A) ON THIS ISSUE. UNACCOUNTED INCOME FROM SALE OF FLATS IN COOPERATIV E SOCIETIES: ITA NO. 3797/DEL/2010 AY 2006-07 (REVENU E) 24. THE RELEVANT PART OF THE ASSESSMENT ORDER IS AS UNDER: 53. IN THE COURSE OF THE SEARCH OPERATION, VARIOUS INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED FROM THE VARIOUS PREMISES RELATING TO COOPERATIVE SOCIET IES IN GURGAON AND DWARKA. THESE INCLUDED COPIES OF APPLICATION FORMS ON THE LETTERHEAD OF THE SOCIETY REQUESTING FOR MEMBERSHIP, CORRESPONDENCE BETWEEN THE SOCIETIES AND THE MEMBERS REGARDING PAYMENT OF INSTALLMENTS, COPIES OF SHARE CERTIFICATE OF MEMBER S, CORRESPONDENCE BY MEMBERS WITH THE OFFICE BEARERS O F THE SOCIETY, COPIES OF CHEQUES PAID BY MEMBERS TO T HE SOCIETY, COPIES OF LETTERS REGARDING DISPUTES WITH THE OFFICE BEARERS OF THE SOCIETY, ETC. IN PARTICULAR T HESE DOCUMENTS WERE FOUND AND SEIZED FROM THE RESIDENCE OF SHRI MOHIT VOHRA WHO IS AN EMPLOYEE OF GTM GROUP AND RECENTLY HAS BEEN MADE ONE OF THE DIRECTORS OF THE FLAGSHIP COMPANY. IN HIS STATEMENT RECORDED DURING THE SEARCH AS WELL AS DURING POST SEARCH PROCEEDINGS, S HRI MOHIT VOHRA STATED THAT THESE PAPERS WERE HANDED OV ER TO HIM BY MR. TUSHAR KUMAR FOR FURTHER HANDING OVER TO SAME TO ONE MR. KANSAL AT SECTOR 56, GURGAON. HE EXPRESSED HIS IGNORANCE ABOUT THE NATURE OF THESE PAPERS AND DID NOT GIVE ANY FURTHER EXPLANATION. IN ADDITION TO THE ABOVE, SOME DOCUMENTS RELATING TO ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 24 COOPERATIVE SOCIETIES WERE ALSO FOUND FROM THE RESIDENCE OF SHRI TUSHAR KUMAR BHAQWANTI COOPERATIVE GROUP HOUSING SOCIETY, PLOT NO. 83, SECTOR 56, GURGAON (GTM ANANDA) 60. THIS SOCIETY WAS FORMED IN 1998 AND HAS BEEN FU LLY COMPLETED. THE INITIAL MEMBERSHIP OF THE SOCIETY WA S 40 MEMBERS BUT WAS SUBSEQUENTLY INCREASED TO 48 MEMBERS. DURING THE COURSE OF SEARCH AT THE RESIDEN CE OF SHRI MOHIT VOHRA VARIOUS DOCUMENTS WERE FOUND WHICH RELATED WITH THE BHAGWANTI COOPERATIVE GROUP HOUSING SOCIETY. 61. SHRI MOHIT VOHRA WAS ASKED ABOUT THESE PAPERS DURING THE COURSE OF SEARCH AT HIS RESIDENCE. HE WA S ASKED Q.1 I AM SHOWING YOU ANNEXURE A 1 1 TO 10, WHICH IS SEIZED FROM YOUR RESIDENCE DURING THE COURSE OF SEARCH. PLEASE GO THROUGH EACH PAGE OF THIS ANNEXUR E THOROUGHLY AND CAREFULLY, PLEASE TELL WHAT THEY ARE ABOUT? ANS. I HAVE GONE THROUGH EACH AND EVERY PAGE OF THI S ANNEXURE, BUT I FIND MYSELF UNABLE TO EXPLAIN THEM AND THEY ARE NOT RELATED TO MY DUTY, BUT I WAS ASKED TO HAND OVER THESE PAPERS TO MR. KANSAL, WHO RESIDES A T SECTOR 56, GURGAON BY SHRI TUSHAR KUMAR DIRECTOR AT M/S GTM BUILDERS AND PROMOTERS, G-5 PUSHKAR ENCLAVE NEW DELHI 63. Q.2. I AM SHOWING YOU ANNEXURE A 4 CONTAINING PAGES 1 TO 101, ANNEXURE A 5 CONTAINING PAGES 1 TO 62, ANNEXURE A 6 CONTAINING PAGES 1 TO 95, ANNEXURE A 7 CONTAINING PAGES 1 TO 109, ANNEXURE A 8 CONTAINING PAGES 1 TO 103 ANNEXURE A 9 CONTAINING PAGES 1 TO 159, ANNEXURE A 10 CONTAINING PAGES 1 TO 108 AND ANNEXURE A 1 CONTAINING PAGES 1 TO 170. PLEASE GO THROUGH THESE ANNEXURES CAREFULLY THOROUGH AND STAT E WHAT THEY ARE ALL ABOUT? ANS. I HAVE GONE THROUGH ANNEXURES A 4 TO A 11 THOROUGHLY AND CAREFULLY AND STATE THAT THE PAGES ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 25 CONTAINED IN THESE ANNEXURES WERE HANDED OVER ME YESTERDAY BY SHRI TUSHAR KUMAR DIRECTOR OF M/S GTM BUILDERS AND PROMOTERS PRIVATE LIMITED AT PUSHKAR ENCLAVE OUTER RING ROAD, PASCHIM VIHAR NEW DELHI FO R FURTHER HANDING TO ONE SHRI KANSAL AT SECTOR 56 GURGAON. THEREFORE I AM UNABLE TO THROW LIGHT ON PAPERS OF THESE ANNEXURES. Q.3. DURING THE COURSE OF SEARCH VARIOUS DOCUMENTS PERTAINING TO 1. M/S HARYANA CITIZENS COOPERATIVE GROUP HOUSING SOCIETY LTD 2. M/S BHAGWANTI COOPERATIVE GROUP HOUSING SOCIETY 3. SHRI GANESH COOPERATIVE GROUP HOUSING SOCIETY 4. SUKHMANY SAHIB REALTORS AND BUILDERS & DEVELOPERS LIMITED WERE FOUND. PLEASE STATE HOW YOU AND YOUR CONCERN EMPLOY ARE RELATED TO THEM? ANS. I DO NOT KNOW ANYTHING ABOUT THESE CONCERNS AN D ABOUT THE OWNERS OF OUR EMPLOYER M/S GTM BUILDERS & PROMOTERS PVT. LTD AND SARGAM ESTATE PRIVATE LIMITE D ONLY DIRECTORS OF THEM CAN TELL. IN THE QUESTIONNAIRE WHEN SHRI MOHIT VOHRA WAS ASKE D ABOUT THEM: A-5/ PAGES 36 TO 46 AND PAGE 62 THESE ARE HANDWRITT EN LOSE PAPERS AND RELATE TO (GEYSERS AND OTHER ELECTR ICAL FIXTURES TO BE FIXED IN FLATS OF VARIOUS PROJECTS. THE NAMES OF THE FLAT OWNERS AND THE FLAT NUMBERS ARE GIVEN ALONGSIDE. ON THE TOP OF THE PAGE THE NAME OF THE SOCIETY IS GIVEN AS GTM ANANDA, BHAGWANTI SOCIETY, PLOT 83, SECTOR 56 GURGAON OR GTM GARIMA , GH-1 HUDA SOCIETY, SECTOR 56, GURGAON. PLEASE EXPLA IN THE SAME. WHETHER YOU HAVE SHOWN THESE TRANSACTIONS IN YOUR BOOKS OF ACCOUNTS. HE REPLIED I EARLIER USED TO PROVIDE GEYSERS, ELECTRICAL FIXTU RES AND OTHER ITEMS IN VARIOUS SOCIETIES/HOUSING SCHEME S ON CONTRACT BASIS. I ALSO USED TO ASSIST IN GETTING LOANS ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 26 AS I WAS HAVING EXPERIENCE OF ARRANGING FINANCE HAV ING WORKED WITH A FINANCE COMPANY. THIS IS ONLY PROSPECTIVE LIST OF THE NAMES OF THE FLAT OWNERS AL ONG WITH THE FLAT NOS. FOR CONTACTS ETC. THERE IS NO TRANSACTION PERTAINING TO ME. 62. THE REPLY PROVIDED IS CLEARLY AN AFTERTHOUGHT A S THERE IS A CLEAR CONTRADICTION IN THE REPLY PROVIDE D BY SHRI MOHIT VOHRA. FURTHER WHEN HE WAS ASKED A-3/1-48 COPIES OF LETTERS RELATING TO PAYMENT OF INSTALLMENTS BY MEMBERS WHO HAVE BOOKED FLATS IN HARYANA CGHS LTD, ORIGINAL RECEIPTS ISSUED BY BHAGWANTI CGHS FOR PAYMENTS MADE BY MEMBERS. PLEASE EXPLAIN THE SAME. WHETHER YOU HAVE SHOWN THESE TRANSACTIONS IN YOUR BOOKS OF ACCOUNTS. HE REPLIED I WAS AN AUTHORIZED LOAN COORDINATOR OF LOAN PANDIT AND TRENDSETTERS FINANCE COMPANY VIDE THEIR LETTER DATED 10.01.2006 I WAS A MEDIATOR BETWEEN THE MENTIONED COMPANIES AND VARIOUS CLIENTS FOR DIFFERE NT HOUSING PROJECTS. THE CLIENTS IN VARIOUS HOUSING PROJECTS WOULD APPROACH ME FOR ARRANGING FINANCIAL ASSISTANCE OR I USED TO CONTACT THEM SO THAT I COUL D ARRANGE HOUSING LOANS FOR THEM AND THEY COULD PAY T HE OUTSTANDING AMOUNT FOR THEIR FLATS. THE PAPERS OF VARIOUS PARTIES/MEMBERS OF HOUSING SOCIETIES ETC. W ERE LYING WITH ME FOR THIS PURPOSE OR FOR ARRANGING SUP PLIES AS STATED IN ITEM 1 ABOVE. THERE IS NO TRANSACTION PERTAINING TO ME. WHEN THE SAME QUESTION WAS PUT TO M/S GTM BUILDERS AND PROMOTERS LTD: A-5/ PAGES 36 TO 46 AND PAGE 62 THESE ARE HANDWRITT EN LOOSE PAPERS AND RELATE TO GEYSERS AND OTHER ELECTR ICAL FIXTURES TO BE FIXED IN FLATS OF VARIOUS PROJECTS. THE NAMES OF THE FLAT OWNERS AND THE FLAT NUMBERS ARE GIVEN ALONGSIDE. ON THE TOP OF THE PAGE THE NAME OF THE SOCIETY IS GIVEN AS GTM ANANDA, BHAGWANTI SOCIETY, PLOT 83, SECTOR 56 GURGAON OR GTM GARIMA , GH-1 HUDA SOCIETY, SECTOR 56, GURGAON. PLEASE EXPLA IN ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 27 THE SAME. WHETHER YOU HAVE SHOWN THESE TRANSACTIONS IN YOUR BOOKS OF ACCOUNTS. THEY REPLIED THE DOCUMENTS MENTIONED IN THIS ITEM AND ALL SUBSEQUENT ITEMS HAVE NOT BEEN RECOVERED FROM OUR PREMISES BUT FROM THE PREMISES OF SHRI MOHIT VOHRA AND HE IS THE PROPER PERSON TO ANSWER THE QUERIES. WE MAY, HOWEVER, STATE THAT SHRI MOHIT VOHRA IS OUR EMPLOYEE AND, BESIDES WORKING FOR US, HE HAS BEEN DOING SEPARATE AND INDEPENDENT SIDE BUSINESS/MOONLIGHTING WITH WHICH WE ARE NOT CONCERNED. WE ARE TOLD BY SHRI MOHIT VOHRA THAT SOM E OF QUERIES IN THE QUESTIONNAIRE UNDER REPLY HAVE ALREADY BEEN REPLIED BY HIM IN HIS CASE AND WE REQU EST THAT THE REPLY ALREADY GIVEN BY HIM SHOULD MEET YOU R REQUIREMENT FROM US. WE REITERATE THAT WE HAVE NOTHING TO DO WITH THE SOCIETIES MENTIONED IN THE Q UERY AND NO TRANSACTION APPEARS AS SUCH IN OUR BOOKS OF ACCOUNTS. THIS REPLY MAY BE TAKEN INTO CONSIDERATIO N FOR SUBSEQUENT REPLIES PERTAINING TO SHRI MOHIT VOH RA ONLY FOR THE SAKE OF BREVITY. 64. IN ORDER TO SUBSTANTIATE THE INVOLVEMENT OF THE GTM GROUP AND ITS ASSOCIATES IN THE CONTROL OVER COOPERATIVE SOCIETIES, A SURVEY U/S 133A OF THE ACT WAS CONDUCTED ON M/S BHAGWANTI COOPERATIVE GROUP HOUSING SOCIETY ON 21-03-2007. 65. DURING THE COURSE OF SURVEY A STATEMENT OF SHRI VIDYASAQAR VISHNOI WHO WAS WORKING IN THE SOCIETY A S AN HONORARY MANAGER WAS RECORDED. HE WAS ASKED Q.7 PLEASE STATE HOW MANY MEMBERS OUT OF WHOLE 48 MEMBERS WERE INITIALLY THE MEMBERS OF THE SOCIETY? ANS. ONLY ONE MEMBER IS AT PRESENT THE MEMBER OF TH E SOCIETY WHO WAS INITIALLY MEMBER OF THE SOCIETY. AL L 47 MEMBERS ARE THE NEW MEMBERS. Q.8 PLEASE STATE THE NAMES OF THE MEMBERS INTRODUCE D BY M/S GTM OR SHRI TUSHAR KUMAR? ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 28 ANS. FOLLOWING MEMBERS HAVE BEEN INTRODUCED BY M/S GTM OR SHRI TUSHAR KUMAR:- NAME FLAT NO. 1. SH. RAJESH CHABBRA 502 BHAGWANTI CGH LTD. 2. MRS. ALKA GUPTA 505 BHAGWANTI CGH LTD. 3. MRS. RUCHI AGGARWAL 606 BHAGWANTI CGH LTD. 4 MR. S. RAJAN. 701 BHAGWANTI CGH LTD. 5. GROUP CPT. MODI LAI BHANDARI 801 BHAGWANTI CGH LTD. 6. WG. CDR. SUNIL CHAUDHERY 203 BHAGWANTI CGH LTD. 7. SH. JATIIN BAKSHI 804 BHAGWANTI CGH LTD. 8. SH. RAMAN DEEP SHARMA 803 BHAGWANTI CGH LTD. 9. SH. MANOJ DHAR 305 BHAGWANTI CGH LTD. 10. DR. MEENA GUPTA 706 BHAGWANTI CGH LTD. 11. SH. AMIT GUPTA 301 BHAGWANTI CGH LTD. 12. SH. P.S.MANIKANTAN 204 BHAGWANTI CGH LTD. 13. MRS. DEEPALI JAIN 402 BHAGWANTI CGH LTD. 14. SH. A.K. GOSWAMI 304 BHAGWANTI CGH LTD. 15. SH. SWAPRNIL DUBEY 705 BHAGWANTI CGH LTD. 16. SMT. SURBHI BHASIRA 504 BHAGWANTI CGH LTD. 17. SH. HITESH VADHWAN 604 BHAGWANTI CGH LTD. 18. WG.CDR. ARDHENDU DASS 702 BHAGWANTI CGH LTD. 19. SMT. SADHNA VERMA 501 BHAGWANTI CGH LTD. 20. SH. NEERAJ GROVER 806 BHAGWANTI CGH LTD. 21. MRS. BHAWNA GUPTA 302 BHAGWANTI CGH LTD. 22. MR. SAILESH AGGARWAL 205 BHAGWANTI CGH LTD. 23. SH. VIKAS KUMAR 202 BHAGWANTI CGH LTD. 24. SH. ANURAG SRIVASTAVA 503 BHAGWANTI CGH LTD. 25. MR. R.S. SAHU 406 BHAGWANTI CGH LTD. 26. DR. PREM LATA ABIYARAI 103 BHAGWANTI CGH LTD. 27. MRS. ROOPALI SHARMA 404 BHAGWANTI CGH LTD. 28. MR. SUDHANSHU BADANI 605 BHAGWANTI CGH LTD. 29. MR. DEERAJ JUNEJA 101 BHAGWANTI CGH LTD. 30. SH. JITENDER SINGH CHABBRA 31. WG. CDR. SANJAY SETH IT NEEDS TO BE MENTIONED HERE THAT ALL THE NAMES MATCH WITH THE 31 NAMES THAT ARE GIVEN IN THE REGIS TER WHICH WAS FOUND AND SEIZED FROM THE RESIDENCE OF SH RI TUSHAR KUMAR AND ANNEXURISED AS ANNEXURE A 1 ON WHICH GTM ANANDA IS WRITTEN. ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 29 FURTHER SHRI VISHNOI WAS ASKED Q 11 PLEASE STATE WHEN WERE THE MEMBERS PROVIDED BY M/S GTM/SH. TUSHAR KUMAR? ANS: THE MEMBERS WERE PROVIDED BY M/S GTM/ SH. TUSHAR KUMAR .W.E.F 11/03/2004. Q13: I AM SHOWING YOU THE PAGE NO. 26, 27, & 28 OF ANNEXURE A IMPOUND A SITE OFFICE OF THE SOCIETY I.E . PLOT NO. 83 SEC. 56 GURGAON. THESE PAPERS PERTAIN T O SH. RAJESH CHHABRA. SH. RAJESH CHHABRA HAS STATED THAT (1) RATION CARDS AT PAGE NO. 26, DOES NOT PERT AINS TO HIM. (2) SIGNATURE AT PAGE NO. 27 HAS NOT BEEN D ONE BY HIM. (3) ADDRESS WRITTEN AT PAGE NO. 28 IN BLUE INK ON PAGE 28 HAS NOT BEEN WRITTEN BY HIM AND DOES NOT PERTAINS TO HIM. PLEASE CLARIFY THE ABOVE FACTS? ANS: IN THIS CONNECTION I CLARIFY THAT ALL THE PAPE RS RELATING TO FORMATION OF MEMBERS OF THE SOCIETY I.E . APPLICATION FOR MEMBERSHIP, AFFIDAVITS, RATION CARD S AND OTHER DOCUMENTS WERE RECEIVED BY US FROM M/S GTM BUILDERS AND THE PROMOTERS, DWARKA WHICH WERE SENT BY HAND BY SH. TUSHAR KUMAR TO THE SOCIETY. I DO NO T KNOW ANYTHING ABOUT RATION CARD, AFFIDAVIT AND ADDR ESS WRITTEN ON THE APPLICATION FORM FOR MEMBERSHIP. THE AUTHENTICITY OF THESE DOCUMENTS IS KNOWN TO SH. TUSHAR KUMAR OF GTM BUILDERS AND PROMOTERS DWARKA. Q 15. PLEASE STATE ABOUT THE AGREEMENT BETWEEN THE SOCIETY AND M/S GTM BUILDERS AND PROMOTERS? ANS. THE SOCIETY WAS DESIROUS TO MAKE THE MEMBERS O F THE SOCIETY BUT THE SOCIETY WAS NOT GETTING THE SUFFICIENT MEMBERS. WE CONTACTED WITH THE CONTRACTO R OF THE SOCIETY TO PROVIDE THE MEMBERS TO THE SOCIET Y. WITHOUT MEMBERSHIP THE SOCIETY WAS UNDER THE RISK O F FAILURE. THE CONTRACTOR SUGGESTED US THE NAME OF GT M BUILDERS AND PROMOTERS ON THE CONDITIONS THAT THE VALUE OF THE FLATS WILL BE DECIDED AT HIGHER RATE I .E. 21 LACS INSTEAD OF 17 LACS WHICH WAS THE ACTUAL COST O F THE FLAT I.E. 17 LACS. ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 30 66. STATEMENT OF SH. RAJESH CHABRA OWNER OF FLAT NO . 502 RECORDED ON DATE OF SURVEY AT THE PREMISES OF T HE SOCIETY. Q 2. PLEASE STATE HOW YOU CAME TO KNOW ABOUT BHAGWANTI CGH LTD.? ANS. I SAW THE ADVERTISEMENT IN THE NEWSPAPER OF TH E SOCIETY FOR SALE OF FLATS IN THE SOCIETY. THE ADVERTISEMENT WAS GIVEN BY GTM GROUP. Q.3. PLEASE STATE AFTER SEEING THE ADVERTISEMENT IN THE NEWSPAPER TO WHOM YOU HAVE CONTACTED? ANS. AFTER SEEING THE ADVERTISEMENT OF THE SALE OF THE FLATS AT BHAGWANTI CGHS LTD. I CONTACTED SH. TUSHAR KUMAR WHO WAS PRESENT AT THE OFFICE OF THE GTM AT GURGAON. Q 5. WHAT WERE THE FORMALITIES THAT YOU WERE ASKED TO FULFILL AND WHO ASKED YOU TO COMPLETE THE FORMALITI ES TO PURCHASE THE FLAT AT THE SOCIETY BHAGWANTI CGHS LTD . PLEASE STATE IN DETAIL? ANS. WHEN I CONTACTED AT THE OFFICE OF THE GTM AT GURGAON, SH. TUSHAR KUMAR WAS PRESENT THERE. HE TOO K THE CHEQUE OF APPROXIMATELY RS. 50,000/- FOR BOOKIN G AMOUNT. HE ASKED ME TO FILL SOME FORMS OF THE SOCIE TY AND THE SAME WERE FULFILLED BY ME IN 2004. PURCHASE PRICE OF THE FLAT IS APPROX. RS. 21 LACS. 67. STATEMENT OF SH. RAMESH KUMAR WADHWAN OWNER OF FLAT NO. 604 RECORDED ON DATE OF SURVEY AT THE PREMISES OF THE SOCIETY. Q 1. PLEASE STATE FROM WHOM YOU HAVE PURCHASED THE FLAT NO. 604, IN THE SOCIETY AND WHEN PURCHASED? ANS. MY SON HAS PURCHASED THE ABOVE FLAT DURING MAY/JUNE 2004 THE NAME OF MY SON IS SH. HITESH WADHAWAN. THE FLAT WAS PURCHASED THROUGH SH. TUSHAR KUMAR. ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 31 68. STATEMENT OF SHRI ASHOK KUMAR S/O SHRI AMAR NATH PRESIDENT OF BHAGWANTI COOPERATIVE GROUP HOUSING SOCIETY Q 1. DURING THE COURSE OF SURVEY DATED 21.03.2007 STATEMENT OF SHRI VIDYA SAGAR VISHNOI HONORARY MANAGER OF THE SOCIETY WAS RECORDED, VIDE QUESTION NO. 8 HE HAS STATED THAT 31 MEMBERS TO THE SOCIETY WERE INTRODUCED BY GTM/TUSHAR KUMAR FURTHER VIDE ANSWER TO QUESTION NO. 13 REGARDING CERTAIN PAPERS PERTAINING TO SH. RAJESH CHHABRA HE SAID THAT THESE PAPERS WERE RECEIVED FROM GTM/TUSHAR KUMAR. KINDLY ACKNOWLEDGE THE SAME? ANS. YES IT IS CORRECT. Q. 2. ON THE BASIS OF THE ABOVE CAN IT BE CONCLUDED THAT THE CONTROL OF THE SOCIETY WAS WITH GTM/TUSHAR KUMAR? ANS. THE TECHNICAL LEGAL CONTROL IS WITH THE SOCIET Y ONLY HOWEVER GTM/TUSHAR KUMAR WAS CONTROLLING THE SOCIETY BY THE WAY OF INTRODUCING MOST OF THE MEMBERS, KEEPING THEIR RECORDS AND GIVING ADVERTISEMENT IN THE NAME OF SOCIETY. 69. DURING THE COURSE OF ASSESSMENT PROCEEDINGS SHRI TUSHAR KUMAR WAS ASKED DURING THE COURSE OF SURVEY ON BHAGWANTI COOPERATIV E GROUP HOUSING SOCIETY, THE STATEMENT OF SHRI VIDYASAGAR VISHNOI WAS RECORDED WHO IS THE HONORARY MANAGER IN THE SOCIETY. IN THE COURSE OF HIS STATEM ENT SHRI VISHNOI HAS STATED THAT 31 OF THE 48 MEMBERS I N THE SOCIETY WERE INTRODUCED BY SHRI TUSHAR KUMAR/GT M WHOSE NAMES ARE ALSO GIVEN BY HIM. THIS WAS DONE ON THE CONDITION THAT THE VALUE OF EACH FLAT WOULD BE DECIDED AT A HIGHER RATE I.E. RS 21 LAKHS INSTEAD O F RS 17 LAKHS WHICH WAS THE COST OF THE FLAT. THE DIFFER ENCE AMOUNT OF RS 4 LAKHS WAS TO BE SHARED BY SHRI TUSHA R KUMAR/GTM AND CONTRACTORS. HE FURTHER STATED THAT A LL THE DOCUMENTS RELATING TO THE MEMBERS INTRODUCED BY GTM WERE RECEIVED DIRECTLY FROM THE COMPANY AND WER E SENT DIRECTLY BY SHRI TUSHAR KUMAR. THE CHEQUES FOR THE PAYMENTS FOR PURCHASE OF THE FLATS WERE ALSO SE NT ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 32 BY GTM. THE STATEMENTS OF TWO OF THE MEMBERS/OCCUPANTS OF THE SOCIETY WERE ALSO RECORDED DURING THE COURSE OF SURVEY. SHRI RAMESH WADHAWAN, OWNER OF FLAT 604 STATED THAT ON MAKING ENQUIRIES A T THE CONSTRUCTION SITE OF THE SOCIETY IN 2004 THEY W ERE TOLD TO CONTACT SHRI TUSHAR KUMAR. AFTER MAKING CONTACT WITH HIM THEY BOOKED THE FLAT AND GAVE CHEQUES TO HIM. SUBSEQUENTLY ALL FURTHER CHEQUES WE RE SENT TO HIM AND THE LAST INSTALLMENT WAS PAID IN 20 05. THE OTHER MEMBER/OWNER SHRI RAJESH CHABRA IN HIS STATEMENT STATED THAT HE HAD SEEN THE ADVERTISEMENT FOR SALE OF FLATS IN THE SOCIETY WHICH HAD BEEN GIV EN BY THE GTM GROUP AND ACCORDINGLY HE CONTACTED SHRI TUSHAR KUMAR AND MADE THE CHEQUE PAYMENTS TO HIM. ALL FURTHER CHEQUE PAYMENTS IN THE NAME OF THE SOCI ETY WERE SENT TO SRI BALAJI & CO (GTM ANANDA) BY POST. PLEASE EXPLAIN THE ABOVE STATEMENTS AND PROVIDE DOCUMENTARY PROOF FOR THE SAME AND WHY ADDITION ON THIS HEAD SHOULD NOT BE MADE TO YOUR TOTAL INCOME. THE REPLY TO THE ABOVE QUERY WAS FURNISHED AS UNDER : I AM NOT AWARE OF THE STATEMENTS OF SHRI VIDYASAGAR VISHNOI, SHRI RAMESH WADHAWAN AND SHRI RAJESH CHABRA AND THE CONTEXT IN WHICH THESE WERE RECORDED AND WHEN. I REQUEST FOR SUPPLY OF COPIES OF THESE STATEMENTS AND ALLOWING ME AN OPPORTUNITY TO CROSS- EXAMINE THE PARTIES WHOSE STATEMENTS ARE RECORDED A T MY BACK. I MAY, HOWEVER, STATE HERE THAT WE HAD ALS O LEARNT ABOUT SOME ADVERTISEMENT BY SOME UNSCRUPULOUS/FRAUDULENT PERSONS/IMPOSTORS IN OUR NAMES FOR ENROLMENT IN HOUSING SCHEMES, BOOKING OF FLATS ETC. INCLUDING COOPERATIVE SOCIETIES. WE TOOK LEGAL ADVICE AND GAVE AN GENERAL NOTICE/ADVERTISEMENT IN LEADING NEWSPAPERS NAV BHARAT TIMES AND THE PIONEER DATED 3.9.2005 AND 2.9.2005 RESPECTIVELY TO MAKE THE GENERAL PUBLIC/ INNOCENT PERSONS AWARE OF MISUSE OF OUR NAMES AND TO BE VIGILANT AS WE HAD NOTHING TO DO WITH SUCH HOUSING SCHEMES, BOOKING OF FLATS ETC. A COPY OF THE ADVERTISEMENTS IS ENCLOSED FOR YOUR KIND PERUSAL. WE DENY THE ALLEGATIONS AND HAVI NG RECEIVED ANY SUCH AMOUNT AS ALLEGED. ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 33 70. NO COPY OF THE ADVERTISEMENT WAS PROVIDED TO TH E DEPARTMENT AS HAS BEEN GIVEN IN THE ANSWER. COPIES OF ALL THE STATEMENTS WERE PROVIDED TO THE ASSESSEE. H E FILED THE REPLY ON 19.12.2008 SAYING THAT ALL THE STATEMENTS ARE RECORDED AND ENQUIRIES MADE IN MY ABSENCE/BACK. THE MATERIAL BEING CITED HAS NOT BEEN SEIZED FROM US AND WE HAVE NOTHING TO DO WITH THE SAME. STILL, IF THE DEPARTMENT HAS ANY DOUBTS RELATING TO OUR BONAFIDES, WE HAVE REQUESTED THE DEPARTMENT TO CALL THE PERSONS IN PERSON AND CONFRO NT THEM TO US AND ALLOW US OPPORTUNITY OF CROSS-EXAMIN E THEM. WE AGAIN REITERATE AND CONFIRM TO YOUR GOOD S ELF THAT NO PAYMENT IN CASH OR THROUGH CHEQUE HAS EVER BEEN RECEIVED BY THE ASSESSEE FROM SOCIETY OR ANY CLIENT/CUSTOMERS OF THE SOCIETY. WE WERE EARLIER WORKING AS A PROPERTY DEALER/AGENT/BROKER IN VARIOUS PLACES LIKE DWARKA, GURGAON ETC. AND THE INCOME EARNED IS SHOWN IN THE RESPECTIVE CASE OF EACH ASSESSEE. YOU ARE THEREFORE REQUESTED TO CONSIDER AND ACCEPT MY SUBMISSIONS IN THE INTEREST OF JUSTICE. 71. THE SAME QUESTION WAS ALSO ASKED IN CASE EF GTM BUILDERS AND THE ASSESSEE HAS REPLIED THAT THE REPL Y MAY BE TREATED AS SAME AS IN CASE OF SH. TUSHAR KUMAR. 72. PAPERS WERE ALSO SEIZED FROM THE RESIDENCE OF S HRI TUSHAR KUMAR RELATING TO BHAGWANTI COOPERATIVE GROU P HOUSING SOCIETY. ANNEXURE A-4 OF PARTY A-3 HAS PAGE NO. 14. IT IS ON THE LETTERHEAD OF BHAGWANTI COOPERATIVE GROUP HOUSING SOCIETY AND IN THE MIDDLE IT IS WRITTEN GTM ANANDA (STYLISH COMFORT HOMES). THE LETTER IS ABOUT ESCALATION OF COST AND IS SIGNE D BY SRI ASHOK KUMAR (PRESIDENT) AND SRI R.K. HUDA (VICE PRESIDENT). 73. WHEN SRI TUSHAR KUMAR WAS QUESTIONED ABOUT THESE PAPERS HE REPLIED THE POSITION IS SAME AS IN THE CASE IN ITEM 46. SHR I ASHOK KUMAR WAS AN ACQUAINTANCE WHO HAD PERHAPS ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 34 COME TO SEEK ADVICE ON THE PROPOSED TRANSACTION AND LEFT A COPY OF HIS LETTER AT OUR PREMISES. IT HAS N O CONCERN WITH ME. 74. PAGE 13 IS PAPER SEIZED FROM THE RESIDENCE OF S HRI TUSHAR KUMAR AND IS ABOUT ESCALATION OF COST AT BHAGWANTI COOPERATIVE GROUP HOUSING SOCIETY SIGNED BY RUCHI AGGARWAL. WHEN SHRI TUSHAR KUMAR WAS ASKED ABOUT IT HE REPLIE D THAT: THE SEIZED PAPER IS SELF SPEAKING AND HAS NO CONCER N WITH ME. IT PERTAINS TO MRS. RUCHI AGGARWAL WHO HAS ACCEPTED ESCALATION OF COST OF SOCIETY FLAT. SHE WA S AN ACQUAINTANCE AND MAY HAVE LEFT A COPY OF LETTER INADVERTENTLY WITH ME. 75. TWO MORE LETTERS WERE FOUND AND SEIZED FROM THE RESIDENCE OF SHRI TUSHAR KUMAR WHICH WERE HAND WRITTEN AND WERE ABOUT THE ESCALATION OF COST IN TH E BHAGWANTI COOPERATIVE GROUP HOUSING SOCIETY. DURING THE ASSESSMENT PROCEEDINGS WHEN SHRI TUSHAR KUMAR WAS ASKED ABOUT THESE PAPERS THEN HE REPLIED THAT: IT DOES NOT RELATE TO ME AND THERE IS NO COMMERCIAL TRANSACTION AS SUCH. 76. WHEN THE SAME QUESTIONS WERE PUT UP TO THE COOPERATIVE SOCIETY AS: PAPERS HAVE BEEN SEIZED FROM THE PREMISES OF SH. TUSHAR KUMAR DURING THE COURSE OF SEARCH AT HIS PREMISES ANNEXURISED AS PARTY A-2, ANNEXURE A-3 PAG E NO. 52 AND 53 ARE LETTER RELATED TO ESCALATION OF C OST. KINDLY EXPLAIN THE SAME. THEY REPLIED THAT INITIALLY THE COST OF EACH FLAT WAS ESTIMATED IN TH E YEAR 2003 AT RS. 17 LAKHS AND RS. 21 LAKHS FOR CATEGORY A AND A I TYPES OF FLATS RESPECTIVELY (ON THE BASIS O F DETAILED ARCHITECTURAL/STRUCTURAL DRAWINGS, SPECIFICATIONS ETC. AND VIDE AGREEMENT ENTERED INTO BY ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 35 THE SOCIETY WITH THE CONTRACTOR IN THE YEAR 2003) A ND THE SAME WAS INFORMED TO THE MEMBERS. SINCE THERE WAS RISE IN THE PRICES OF STEEL, CEMENT, BRICKS AND ALSO OTHER MATERIAL OVER THE PERIOD, THE COST OF ESCALAT ION WAS WORKED OUT TO BE RS. 44,300, WHICH WAS DULY APPROVED BY THE MEMBERS IN THE AGM OF THE SOCIETY. THE COPY OF THE LETTERS FOUND DURING THE SURVEY BELONGS TO THE ESCALATION COST DULY ACCEPTED BY THE MEMBERS AND KEPT FOR THE RECORDS OF THE SOCIETY. 77. THE REPLY IS WRONG AS THE PAPERS WERE NOT FOUND DURING THE COURSE OF SURVEY BUT WERE FOUND AT THE RESIDENCE OF SHRI TUSHAR KUMAR AND NO EXPLANATION WHATSOEVER HAS BEEN GIVEN WHAT THESE PAPERS WERE DOING AT HIS RESIDENCE. WHEN QUESTION WAS PUT ABOUT THE LETTER AS PAPERS HAVE BEEN SEIZED FROM THE PREMISES OF SH. TUSHAR KUMAR DURING THE COURSE OF SEARCH AT HIS PREMISES ANNEXURISED AS PARTY A-2, ANNEXURE A-4 PAG E NO. 13 AND 14. PAGE 13 IS ABOUT ESCALATION OF COST AND 14 IS ON THE LETTER HEAD OF BHAGWANTI COOPERATIVE GROUP HOUSING SOCIETY ALSO WRITTEN GTM ANANDA SIGNE D BY ITS PRESIDENT, SH. ASHOK KUMAR AND VICE PRESIDEN T, SH. R.K. HUDA. PLEASE EXPLAIN THE SAME. THE ASSESSEE REPLIED THAT IT IS CLARIFIED THAT LETTER WAS ISSUED BY THE SOCIE TY TO ITS MEMBERS INFORMING THE COST OF FLAT. HOWEVER INSERTION OF THE WORDS GTM ANANDA (STYLISH COMFORT HOMES) ON THE TOP OF IT, WAS NOT IN THE KNOWLEDGE O F THE SOCIETY. FURTHER IN HIS REPLIES DATED 24.11.2008 A.R. OF THE BHAGWANTI COOPERATIVE GROUP HOUSING SOCIETY ACKNOWLEDGED THAT MEMBERS WERE INTRODUCED BY SHRI TUSHAR KUMAR. INTERESTINGLY A NEWSPAPER ARTICLE HAD APPEARED IN T HE INDIAN EXPRESS ON 11.08.2006 TITLED HOW GREEN IS T HE VALLEY. THE ARTICLE STATES THAT FOR THOSE WHO TRA VEL ON THE GURGAON-FARIDABAD ROAD, VALLEY VIEW ESTATE ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 36 MUST BE A FAMILIAR SIGHT. THE PROJECT SPREAD OVER 2 2 ACRES CONSISTS OF 14 TOWERS HOUSING SEPARATE SOCIET IES. ONE OF THE TOWERS, GTMS TOWER 11, IS BEING PROMOTE D BY SRI BALAJI & COMPANY WHICH HAS AN ISO 9001:2000 CERTIFICATION. THEY ALSO HAVE TD THEIR CREDIT SMALL ER PROJECTS IN GURGAON ANANDA AND GARIMA OF AROUND 40- 50 FLATS EACH. 79. WHEN SHRI TUSHAR KUMAR WAS CONFRONTED WITH THIS ARTICLE DURING HIS STATEMENT ON 13.03.2006 HE WAS ASKED Q. 7. I AM SHOWING YOU A PRINTOUT OF A NEWSPAPER ARTICLE OF INDIAN EXPRESS DATED 1-1.08.2006 WHICH S AYS THAT GTM PROJECTS ALSO INCLUDE ANANDA AND GARIMA IN GURGAON. WHAT DO YOU HAVE TO SAY? ANS. THE FACTS ARE INCORRECT. GTM HAS NOTHING TO DO WITH THE PROJECTS. WHEN THE A.R. OF BHAGWANTI COOPERATIVE GROUP HOUSIN G SOCIETY FURTHER ASKED WHY THE SOCIETY SHOULD NOT BE CONSIDERED AS THE BENAMI CONCERN OF G.T.M. BUILDERS THEN HE FILED THE REPLY SAYING THE SOCIETY CANNOT BE SAID A BENAMI CONCERN OF SHRI TUSHAR KUMAR/GTM SINCE IT IS A SEPARATE LEGAL ENTIT Y AND IS A REGISTERED SOCIETY UNDER THE HARYANA COOPERATIVE SOCIETIES ACT. THE SCOPE OF ITS ACTIVIT IES, OBJECTIVES IS GOVERNED BY ITS MEMORANDUM AND ARTICL ES OF THE ASSOCIATION AND NOTHING ELSE. THE SOCIETY TA KES ITS DECISIONS THROUGH ITS GOVERNING BODY, WHICH ARE GIVEN SUCH POWERS THROUGH GENERAL BODY. IT IS ALSO TO BE NOTED THAT ALL THE LEGAL, FINANCIA L DOCUMENTS RELATING TO THE SOCIETY, THE MINUTES OF I TS MEETINGS, ITS MEMBERS, ITS ACCOUNTS ETC. ARE KEPT W ITH THE SOCIETY AND NO ONE ELSE. THE MERE FACT THAT SOM E OF THE DOCUMENTS, INFORMATION PERTAINING TO ITS MEMBERS WERE FOUND AT THE PREMISES OF MR. TUSHAR KUMAR/GTM DID NOT MAKE IT A CONCERN OF MR. TUSHAR KUMAR/GTM. ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 37 FROM THE ABOVE IT IS CLEAR THAT THE SOCIETY IS AN INDEPENDENT LEGAL ENTITY AND IS NOT A BENAMI CONCER N OF MR. TUSHAR KUMAR/GTM. 80. THE REPLY OF THE A.R. OF BHAGWANTI COOPERATIVE SOCIETY CANNOT BE ACCEPTED. IT IS MORE THAN CLEAR T HAT GTM BUILDERS WERE CONTROLLING ALL THE AFFAIRS OF TH E SOCIETY AS THEY BROUGHT IN MEMBERS, THEY ESCALATED THE COST, AND THEY GAVE THE ADVERTISEMENT ON BEHALF OF THE SOCIETY AND ACCEPTED THE ESCALATED COST AS THE PROFIT. 81. FROM THE ABOVE FACTS IT IS CLEAR THAT THE SOCIE TY WAS MANAGED AND CONTROLLED BY THE GTM GROUP AND THE MAIN CONTACT PERSON WAS SHRI TUSHAR KUMAR. IT IS AL SO EVIDENT THAT FOR EACH OF THE 48 FLATS, GTM/TUSHAR KUMAR RECEIVED A SUM OF RS 4 LAKHS WHICH AMOUNTS TO A TOTAL PAYMENT OF RS. 1,92,00,000/- WHICH WAS RAIS ED BY THE ACTIVE CONNIVANCE OF GTM BUILDERS AND THE MEMBERS OF THE SOCIETY. THIS CLEARLY REPRESENTS THE UNDISCLOSED INCOME OF THE GROUP. AN ADDITION OF RS. 1,92,00,000/- ON THIS ACCOUNT IS BEING MADE PROTECTIVELY IN THE HANDS OF BHAGWANTI COOPERATIVE GROUP HOUSING SOCIETY AND SHRI TUSHAR KUMAR AND SUBSTANTIVELY IN THE HANDS OF M/S GTM BUILDERS IN T HE YEAR 2006-07 AS FINAL INSTALLMENT FOR PAYMENT WAS MADE IN THE YEAR 2005 WHICH IS CLEAR FROM THE STATEMENT OF SHRI ASHOK KUMAR PRESIDENT OF M/S BHAGWANTI COOPERATIVE GROUP HOUSING SOCIETY. MEMBERS WERE INTRODUCED IN VARIOUS YEARS BUT IT IS PRESUMED THAT ONLY WHILE PAYING THE FINAL INSTALLME NT THE CASH AMOUNT WOULD HAVE BEEN PAID TO SHRI TUSHAR KUMAR. HENCE THE ADDITION OF RS. 1,92,00,000/- IS BEING MADE IN THE YEAR 2006-07. 25. THE LD. CIT (A) DELETED THE ADDITION ON THE GRO UNDS THAT THERE IS NO EVIDENCE TO SHOW THAT ANY MONEY HAS PAS SED FROM THE SOCIETY TO THE ASSESSEE TOWARDS THE SALE OF FLA TS. ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 38 26. BEFORE US, THE REVENUE RELIED ON THE EXHAUSTIVE ORDER OF THE ASSESSING OFFICER AND THE LD. AR SUPPORTED THE ORDER OF THE LD. CIT (A). 27. HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PER USED THE MATERIAL AVAILABLE ON RECORD. 28. WE FIND THAT THE ASSESSING OFFICER HAS MADE ADD ITION ON THE FOLLOWING PREMISES: 1. DOCUMENTS PERTAINING TO THE SOCIETY HAVE BEEN FOUND WITH SHRI MOHIT VOHRA AND SHRI TUSHAR KUMAR, DIRECTORS O F THE COMPANY. 2. HELD THAT THE ASSESSEE HAS A ROLE IN MANAGEMENT OF THE GROUP HOUSES SOCIETIES. 3. HELD THAT THE ASSESSEE GROUP AND ITS ASSOCIATES HAV E CONTROLLED OVER THE COOPERATIVE SOCIETIES. 4. THE APPLICATION FOR MEMBERSHIP AND OTHER DOCUMENTS ARE BEING SENT TO THE SOCIETY MANAGER BY THE DIRECTORS OF THE ASSESSEE COMPANY. 5. THE ASSESSEE RECEIVED RS.4 LACS AGAINST EACH FLAT 6. SOME OF THE MEMBERS HAVE BEEN INTRODUCED BY SHRI TU SHAR KUMAR, THE DIRECTOR OF THE ASSESSEE COMPANY 29. WE FIND FROM THE RECORD THAT SHRI RAJESH CHHABR A OWNER OF FLAT NO. 502 HAS SUBMITTED THAT A CHEQUE OF RS.50,0 00/- WAS TAKEN BY SHRI TUSHAR KUMAR AND THE PURCHASE PRICE O F THE FLAT IS RS.21 LACS. TWO OTHER MEMBERS CONVEYED THAT THEY GA VE CHEQUES TO SHRI TUSHAR KUMAR. THE REVENUE DID NOT T AKE IT TO A LOGICAL CONCLUSION TO PROVE WHETHER THIS CHEQUE OF RS.50,000/- AND THE OTHER CHEQUE HAS BEEN DEPOSITED IN ANY OF T HE ANY OF ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 39 THE BANK ACCOUNTS BELONGING TO SHRI TUSHAR KUMAR. THE ASSESSING OFFICER HELD THAT (REPEATED), 30. IT IS ALSO EVIDENT THAT FOR EACH OF THE 48 FLAT S, GTM/TUSHAR KUMAR RECEIVED A SUM OF RS 4 LAKHS WHICH AMOUNTS TO A TOTAL PAYMENT OF RS. 1,92,00,000/- WHICH WAS RAISED BY TH E ACTIVE CONNIVANCE OF GTM BUILDERS AND THE MEMBERS OF THE S OCIETY. THIS CLEARLY REPRESENTS THE UNDISCLOSED INCOME OF T HE GROUP. AN ADDITION OF RS. 1,92,00,000/- ON THIS ACCOUNT IS BE ING MADE PROTECTIVELY IN THE HANDS OF BHAGWANTI COOPERATIVE GROUP HOUSING SOCIETY AND SHRI TUSHAR KUMAR AND SUBSTANTI VELY IN THE HANDS OF M/S GTM BUILDERS IN THE YEAR 2006-07 AS FI NAL INSTALLMENT FOR PAYMENT WAS MADE IN THE YEAR 2005 W HICH IS CLEAR FROM THE STATEMENT OF SHRI ASHOK KUMAR PRESID ENT OF M/S BHAGWANTI COOPERATIVE GROUP HOUSING SOCIETY. MEMBER S WERE INTRODUCED IN VARIOUS YEARS BUT IT IS PRESUMED THAT ONLY WHILE PAYING THE FINAL INSTALLMENT THE CASH AMOUNT WOULD HAVE BEEN PAID TO SHRI TUSHAR KUMAR. HENCE THE ADDITION OF RS . 1,92,00,000/- IS BEING MADE IN THE YEAR 2006-07. 31. FROM THE RECORD, WE FIND THAT SHRI TUSHAR KUMAR MIGHT HAVE PLAYED SOME ROLE BUT THE SOCIETY CONFIRMED THA T INITIALLY EACH FLAT WAS ESTIMATED IN THE YEAR 2003 AT RS.17 L ACS AND RS.21 LACS FOR CATEGORY A AND CATEGORY A1 TYPE OF F LATS. IT WAS ALSO CONFIRMED BY THE SOCIETY THAT SINCE THERE WAS A RISE IN THE PRICE OF STEELS, CEMENT AND BRICKS, THE COST ESCALA TION WAS WORKED OUT TO BE RS.44,800/- WHICH WAS DULY APPROVE D BY THE MEMBERS OF THE SOCIETY IN THE AGM. THE SOCIETY CANN OT BE SAID A BENAMI CONCERN OF SHRI TUSHAR KUMAR/GTM SINCE IT IS A SEPARATE LEGAL ENTITY AND IS A REGISTERED SOCIETY U NDER THE ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 40 HARYANA COOPERATIVE SOCIETY ACT. THE SCOPE OF ITS A CTIVITIES, OBJECTIVES IS GOVERNED BY ITS MEMORANDUM AND ARTICL ES OF THE ASSOCIATION AND NOTHING ELSE. THE SOCIETY TAKES ITS DECISIONS THROUGH ITS GOVERNING BODY WHICH ARE GIVEN SUCH POW ERS THROUGH GENERAL BODY. IT IS ALSO TO BE NOTED THAT A LL THE LEGAL, FINANCIAL DOCUMENTS RELATING TO THE SOCIETY, THE MI NUTES OF ITS MEETINGS, ITS MEMBERS, ITS ACCOUNTS ETC. ARE KEPT W ITH THE SOCIETY AND NO ONE ELSE. THE MERE FACT THAT SOME OF THE DOCUMENTS INFORMATION PERTAINING TO ITS MEMBERS WER E FOUND AT THE PREMISES OF MR. TUSHAR KUMAR/GTM DID NOT MAKE I T A CONCERN OF MR. TUSHAR KUMAR/GTM. FROM THE ABOVE IT IS CLEAR THAT THE SOCIETY IS AN INDEPENDENT LEGAL ENTITY AND IS NOT A BENAMI CONCERN OF MR. TUSHAR KUMAR/GTM. 32. ADVERTING TO THE EVIDENCES AS TO WHETHER THE AS SESSEE HAS RECEIVED RS.4 LACS FROM EACH OF 48 FLATS. WE DO NOT FIND ANY SUCH REFERENCE OR EVIDENCE GATHERED, COLLECTED OR I NVESTIGATED BY THE REVENUE. THE ADDITION MADE WAS ON THEORETICA L PREMISE ON THE BASIS OF PRESUMPTIONS. EVEN THE STATEMENT RE CORDED FROM THE MEMBERS OF THE SOCIETY DID NOT POINT TO ANY AMO UNT PAID TO THE ASSESSEE OR THE DIRECTOR IN HIS PERSONAL CAPACI TY. THE SOCIETY HAS ALSO CLARIFIED THAT AN AMOUNT OF RS.17 LACS EACH FOR CATEGORY A AND RS.21 LACS FOR CATEGORY A1 TYPE. THE COST ESCALATION OF RS.44,800/- HAS BEEN APPROVED IN THE AGM. THERE WAS ABSOLUTELY NO EVIDENCE OF PAYMENT OF RS.4 LACS BY EACH FLAT OWNER TO THE ASSESSEE. HENCE, THE ADDITION MADE BY THE AO CANNOT BE SUSTAINED. THE APPEAL OF THE REVENUE ON T HIS GROUND IS DISMISSED. ITA NOS. 3577 & 3797 /DEL/2010 & SA NO. 186 /DEL/2020 GTM BUILDERS & PROMOTERS PVT. LTD. 41 33. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED AND THAT OF THE ASSESSEE IS ALLOWED. 34. OWING TO THE DISPOSAL OF THE APPEAL OF THE REVE NUE AS WELL AS THE ASSESSEE, THE STAY APPLICATION NO. 186/DEL/2 020 IS TREATED AS REDUNDANT. ORDER PRONOUNCED IN THE OPEN COURT ON 04/02/2021. SD/- SD/- (AMIT SHUKLA) (DR. B. R. R. KUMAR) JUDICIAL MEMBER AC COUNTANT MEMBER DATED: 04/02/2021 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR