Shri Yathartha Vashishth, Faridabad V. DCIT, New Delhi

ITA 3870/DEL/2016

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 9901 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 01-07-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Unexplained cash credit; Principle of natural justice; Period of limitation; Non compliance; Assessment record
• Section: 143(3); 2(22)(e); 133(6); 143(2); 13; 68; 27; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI B.R.R. KUMAR, ACCOUNTANT MEMBER I.T.A. NO.3870/DEL/2016 ASSESSMENT YEAR: 2012-13 SHRI YATHARTHA VASHISHTH, PROP. M/S. YATHARTH CONSTRUCTIONS, 416, SECTOR 21B, FARIDABAD. VS. DY. CIT, CIRCLE-63(1), NEW DELHI. TAN/PAN: AEHPV 1649H (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI KAPIL GOEL, ADV. RESPONDENT BY: SHRI S.S. RANA, CIT-D.R. DATE OF HEARING: 19 09 2019 DATE OF PRONOUNCEMENT: 16 12 2019 O R D E R PER AMIT SHUKLA, JM THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 26.04.2016, PASSED BY LD. CIT (APPEALS), NEW DELHI FOR THE QUANTUM OF ASSESSM ENT PASSED U/S.144/143(3) FOR THE ASSESSMENT YEAR 2012- 13. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING GROUND: 1 . THAT HAVING REGARD TO FACTS AND CIRCUMSTANCES OF TH E CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN UPHOLD ING THE VALIDITY OF THE ASSESSMENT PROCEEDINGS AND OF THE A SSESSMENT FRAMED IN THE CASE UNDER SECTION 144/ 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT), EVEN THOUGH THE MANDATORY NO TICE U/S 143(2) WAS NOT SERVED ON THE ASSESSEE. I.T.A. NO.3870/DEL/2016 2 2. THAT HAVING REGARD TO FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN UPHOLD ING THE VALIDITY OF THE ASSESSMENT PROCEEDINGS AND OF THE A SSESSMENT FRAMED IN THE CASE THAT TOO UNDER SECTION 144/ 143( 3) OF THE ACT WITHOUT CONSIDERING THE MATERIAL ON RECORD AND MORE-SO WHEN THE ASSESSMENT ORDER WAS PASSED WITHOUT FOLLOW ING PRINCIPLES OF NATURAL JUSTICE AND ON THE BASIS OF M ATERIAL COLLECTED AT THE BACK OF THE ASSESSEE BUT NEVER CON FRONTED TO THE ASSESSEE. 3. THAT HAVING REGARD TO FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING ADDITION OF RS. 17,91,73,500/- (INSTEAD OF ADDITION OF RS. 17,91,00,000/- MADE IN ASSESSMENT), BEING MONEY REC EIVED IN BANK ACCOUNT OF THE ASSESSEE DURING THE IMPUGNED YE AR, AS ALLEGED UNEXPLAINED CREDIT UNDER SECTION 68 OF THE ACT. 4. THAT HAVING REGARD TO FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.17,91,73,500/- ON ACCOUNT OF AMO UNT RECEIVED FROM M/S SAMAYAK PROJECTS LTD. DURING THE IMPUGNED YEAR AS INCOME GENERATED BY THE ASSESSEE WITHOUT APPRECIATING CORRECT FACTS OF THE CASE. 5. THAT IN ANY VIEW OF THE MATTER AND IN ANY CASE, THE ACTION OF LD. CIT (A) IN CONFIRMING THE ADDITION OF RS. 17,91,73,500/- IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES, BEING A CASE OF DOUBLE TAXATION WHER E THE IMPUGNED AMOUNT HAS ALREADY BEEN TAXED IN THE HANDS OF THE REAL VENDORS AND THE IMPUGNED MONEY RECEIVED BY THE ASSESSEE HAS ALREADY BEEN OFFERED TO TAX IN A.Y. 20 13-14 AS SALE CONSIDERATION FOR SALE OF SHARES. I.T.A. NO.3870/DEL/2016 3 6. THAT HAVING REGARD TO FACTS AND CIRCUMSTANCES O F THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THE AMOUNT OF RS.35,91,73,500/- AS TAXABLE INCOME OF TH E ASSESSEE ON ACCOUNT OF ALLEGED EXTINGUISHMENT OF RI GHT OVER THE PROPERTY AND MORE-SO WITHOUT APPRECIATING THE CORRE CT FACTS OF THE CASE AND THE SUCH ORDER PASSED WAS BEYOND JURIS DICTION. 7. THAT HAVING REGARD TO FACTS AND CIRCUMSTANCES O F THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN NOT DELETING THE ADDITION OF RS.2,84,88,000/-, ADDED AS ALLEGED UNEXPLAINED CASH CREDITS ON ACCOUNT OF CASH DEPOSIT ED IN BANK ACCOUNT OF THE ASSESSEE DURING THE IMPUGNED YEAR AN D HAS FURTHER ERRED IN NOT DECIDING THE MATTER AND SETTIN G ASIDE PART OF THE MATTER FOR VERIFICATION BY THE ASSESSING OFF ICER. 8. THAT HAVING REGARD TO FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN NOT DELETING THE ADDITION OF RS.45,00,000/-, ADDED AS ALLEGED UN EXPLAINED CASH CREDITS ON ACCOUNT OF WORK CONTRACT RECEIPTS U /S 194C, AND WHICH HAD ALREADY BEEN DISCLOSED IN THE RETURN OF INCOME BY THE ASSESSEE, AND HAS FURTHER ERRED IN NOT DECID ING THE MATTER AND SETTING ASIDE THE MATTER FOR VERIFICATIO N BY THE ASSESSING OFFICER. 9. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, ALTE R OR AMEND THE GROUNDS OF APPEAL AT ANY STAGE AND ALL TH E GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 2. THE FACTS IN BRIEF ARE THAT, ASSESSEE HAS FILED ITS RETURN OF INCOME ON 30.09.2012 DECLARING TOTAL INCOME OF RS.20,18,440/-. THE SAID RETURN WAS ALSO PROCESSED U/S. 143(1). LATER ON, THE ASSESSEES CASE WAS SELECTED FOR I.T.A. NO.3870/DEL/2016 4 COMPULSORY SCRUTINY ON THE BASIS OF INFORMATION REC EIVED FROM ADIT (INV.)-I, FARIDABAD. THE CONTENT OF SUCH INFORMATION AS INCORPORATED IN THE ASSESSMENT ORDER READS AS UNDER: I NFORMATION HAS BEEN RECEIVED FROM THE OFFICE OF THE ADIT (INV.)-1, FARIDABAD, VIDE LETTER NO.ADIT/INV-1/FBD/ 2013- 14/792 DATED 01.08.2013, REGARDING THE TAX IMPLICAT IONS OF CERTAIN TRANSACTIONS INVOLVING M/S. ARAVALI HEIGHTS INFRATECH P LTD., M/S SRP BUILDERS LTD. AND SH. YATHARTHA VASHI SHTHA (PROP. M/S YATHARTHA CONSTRUCTIONS). (REFER F/A). A S PER PAN JURISDICTION, ONLY THE LAST NAMED PERSON IS ASSESSE D TO TAX IN WARD-38(3), NEW DELHI. BRIEFLY, THE FACTS ARE AS UNDER:- I. DURING THE COURSE OF INVESTIGATIONS BY ADIT (INV )-1, FARIDABAD, IT CAME TO LIGHT THAT THERE WAS A PIECE OF LAND MEA SURING 8.395 ACRES IN SEC-91, GURGAON IN THE BOOKS OF M/S ARAVAL I HEIGHTS INFRATECH P LTD. AND 6.017 ACRES IN THE BOOKS OF M/ S SRP BUILDERS LTD. BOTH THESE COMPANIES HAD GOT JOINT LI CENSE FROM DIRECTORATE OF TOWN & COUNTRY PLANNING, HARYANA, FO R CONSTRUCTION/DEVELOPMENT OF A GROUP HOUSING COMPLEX ON THE JOINT LAND MEASURING 14.412 ACRES. II. SH. YATHARTHA VASHISHTHA (PROP. M/S YATHARTHA CONSTRUCTIONS) OBTAINED 100% CONTROL IN BOTH COMPAN IES BY PURCHASING SHARES OF THESE TWO COMPANIES FROM EXIST ING SHARE HOLDERS VIDE MOU DATED 25.06.2010. III. M/S ARAVALI HEIGHTS INFRATECH P. LTD., M/S SRP BUILDERS LTD. AND SH. YATHARTHA VASHISHTHA (PROP. M/S YATHARTHA CONSTRUCTION) ENTERED INTO FURTHER AGREEMENT WITH M /S SAMYAK I.T.A. NO.3870/DEL/2016 5 PROJECT P. LTD. ON 09.09.2010. UNDER THIS AGREEMENT , THE FIRST THREE ENTITIES SOLD CONSTRUCTION/DEVELOPMENT/OWNERS HIP RIGHTS IN THE LAND TO THE LAST NAMED ENTITY FOR A CONSIDER ATION OFRS.80.15 CRORES. IV. THE ABOVE AGREEMENT WAS FURTHER MODIFIED ON 29. 09.2011 ACCORDING TO WHICH ALL RIGHTS IN THE LAND WERE TRAN SFERRED BY THE ENTITIES TO M/S. SAMYAK PROJECT P. LTD. FOR A CONSI DERATION OF RS.82.07 CRORES. V. SH.YATHARTHA VASHISHTHA (PROP. M/S. YATHARTHA CONSTRUCTIONS) WAS ALSO REPORTED TO HAVE RECEIVED R S.35.91 CRORES FROM M/S. SAMYAK PROJECT P. LTD. AGAINST TRA NSFER OF DEVELOPMENT, RIGHTS IN FAVOUR OF THE LATTER. HE AMOUNT OF ?35.91 CRORES RECEIVED BY M/S YATHARTHA CONSTRUCTIONS FROM M/S SAMYAK PROJECT P. LTD. IS PRIMA FACIE TAXABLE IN THE HANDS OF THE FORMER AS INCOME FROM THEIR SOURCES. THE ISSUE OF DEEMED D IVIDEND U/S 2(22)(E) OF THE J.T. ACT HAS ALSO TO BE CONSIDERED IN THE HANDS OF THIS ASSESSEE AS HE HAS RECEIVED CONSIDERATION FROM M/S SAMYAK PROJECT P LTD. ON BEHALF OF M/S ARAVALI HEIG HTS INFRATECH P. LTD. AND M/S SRP BUILDERS LTD. VI THE ADIT SUGGESTED A DETAILED EXAMINATION OF THE MATTER IN THE HANDS OF THIS ASSESSEE, I.E. SH. YATHARTHA VASH ISHLHA (PROP. M/S YATHARTHA CONSTRUCTIONS), VIII. A PERUSAL OF THE PAYMENTS RECEIVED BY M/S YAT HARTHA CONSTRICTIONS FROM M/S SAMYAK PROJECT P. LTD. (ANNE XURE A-I OF THE LETTER OF ADIT) REVEAL THAT A SUM OF RS.18 CROR E WAS RECEIVED BY THE FORMER DURING F.Y. 2010-11 WHEREAS SUM OF RS .17.91 CRORES WAS RECEIVED DURING THE F.Y.2011-12. I.T.A. NO.3870/DEL/2016 6 IX. THE ASSESSEE HAS FILED RETURN FOR A. Y.2012-13 ON 30.09.2012 DECLARING INCOME OF RS.20,18,440/- (REFE R F/B). THE ASSESSEE IS REPORTEDLY FOLLOWING CASH SYSTEM OF ACC OUNTING AS PER INFORMATION DISCLOSED IN THE RETURNS OF INCOME. 3. ACCORDINGLY, ASSESSING OFFICER ISSUED NOTICE U/S . 143(2) ON 24.09.2013 WHICH AS PER HIM WAS SERVED UPON THE ASSESSEE WITHIN THE STATUTORY TIME LIMIT. LATER ON, THE CASE WAS TRANSFERRED TO CIRCLE-63(1), NEW DELHI AND THER EAFTER ANOTHER NOTICE U/S. 143(2) WAS ISSUED ON 02.02.2015 . HOWEVER, AS PER THE ASSESSING OFFICER NONE OF THE N OTICES WERE COMPLIED WITH NOR ANY REPLY WAS FILED. THE ASS ESSING OFFICER ALSO ISSUED A SHOW CAUSE NOTICE U/S. 271(1) (B) FOR NON COMPLIANCE. HOWEVER, AGAIN NO COMPLIANCE WAS MADE. FINALLY, THE ASSESSING OFFICER ISSUED SHOW CAUSE NO TICE TO THE ASSESSEE TO SUBMIT THE REPLY, THE CONTENT OF THE NO TICE HAS BEEN INCORPORATED IN PAGE 2 OF THE ASSESSMENT ORDER . HOWEVER, AGAIN NO SUCH COMPLIANCE WAS MADE. 4. THE ASSESSEE IS AN INDIVIDUAL AND PROPRIETOR OF M/S. YATHARTHA CONSTRUCTIONS ENGAGED IN THE BUSINESS OF CIVIL CONTRACTOR AND DEVELOPING OF GROUP HOUSING COMPLEX. ON THE INFORMATION RECEIVED FROM THE INVESTIGATION WING AS INCORPORATED ABOVE, THE ASSESSING OFFICER OBSERVED THAT ASSESSEE HAD RECEIVED SUM OF RS.17.91 CRORES FROM M /S. SAMYAK PROJECT PVT. LTD. AND THE PAYMENT OF THE SAI D AMOUNT HAS ALSO BEEN CONFIRMED BY SHRI S.K. JAIN, THE DIRE CTOR OF M/S. SAMYAK PROJECT PVT. LTD., DURING HIS STATEMENT ON OATH IN RESPONSE TO SUMMONS ISSUED U/S.131 BEFORE THE AD IT I.T.A. NO.3870/DEL/2016 7 (INV.) ON 16.04.2012 AND 24.12.2012. THE STATEMENT HAS BEEN INCORPORATED IN THE ASSESSMENT ORDER AND ALSO IN TH E IMPUGNED APPELLATE ORDER. FROM THE MATERIAL AND INF ORMATION RECEIVED AND FROM THE STATEMENT, THE ASSESSING OFFI CER CONCLUDED THAT THE AMOUNT OF RS.17.91 CRORE RECEIVE D FROM M/S. SAMYAK PROJECTS PVT. LTD. WHICH HAS BEEN DULY CONFIRMED BY THE DIRECTOR OF THE SAID COMPANY HAS N OT BEEN OFFERED AS TAXABLE INCOME BY THE ASSESSEE NOR ANY EXPLANATION WAS FILED. ACCORDINGLY, HE TREATED THE SAID AMOUNT AS UNEXPLAINED CASH CREDIT WHICH HAS BEEN AD DED U/S.68. 5. FURTHER, ASSESSING OFFICER NOTED FROM THE INDIVI DUAL TRANSACTION STATEMENT DOWNLOADED FROM THE AST THAT AN AMOUNT OF RS.2,84,88,000/- WAS DEPOSITED IN THE ACC OUNT OF YATHARTHA CONSTRUCTION IN CASH AND FURTHER SUM OF R S.45 LAC RECEIVED FROM M/S. ARAVALI HEIGHTS INFRATECH PVT. L TD. AS PAYMENT RELATING TO FALLING U/S.194C WAS NOT SHOWN AS A TAXABLE INCOME OF THE ASSESSEE. ACCORDINGLY, ASSESS ING OFFICER ADDED BOTH AMOUNT AND MADE ADDITION OF RS.3,29,88,0 00/-. ACCORDINGLY, THE ASSESSMENT WAS COMPLETED ON AN INC OME OF RS.21,42,21,440/-. 6. BEFORE THE LD. CIT (A), THE ASSESSEE HAD CHALLEN GED THE NON SERVICE OF NOTICE U/S 143(2), DATED 24.09.2013. LD. CIT (A) ON PERUSAL OF THE ASSESSMENT RECORD NOTED THAT THE NOTICE U/S 143(2) WAS SENT TO THE ASSESSEE ON THE ADDRESS GIVEN ON I.T.A. NO.3870/DEL/2016 8 THE RETURN OF INCOME FILED BEFORE THE ASSESSING OFF ICER WHICH WAS AS UNDER:- SHRI YATHARTH VASHISTH, PROP. M/S. YATHARTH CONSTRUCTIONS 152, 2 ND FLOOR, MOHAN BHAWAN, SARAI JULENA, DELHI. THE ASSESSEES SUBMISSION WAS THAT HE HAD SUBMITTED A LETTER DATED 05.07.2013 BEFORE THE ASSESSING OFFICER ABOUT THE INTIMATION OF CHANGE OF ADDRESS. THIS ASSERTION OF ASSESSEE HAS BEEN REBUTTED BY THE LD. CIT (A) ON THE GROUND THAT ASSESSEE HAD FILED HIS RETURN OF INCOME FOR THE ASS ESSMENT YEAR 2013-14, I.E., FOR THE SUBSEQUENT YEAR ON 30.0 9.2013 GIVING THE SAME ADDRESS WHICH IS AFTER 05.07.2013 A ND THEREFORE, THE CLAIM OF THE ASSESSEE THAT HE HAS GI VEN INTIMATION OF CHANGE OF ADDRESS IS NOT TENABLE. APA RT FROM THAT, LD. CIT(A) HAS ALSO GIVEN A FINDING OF FACT T HAT ASSESSEE HAS NEVER PRODUCED ANY SUCH LETTER STATED TO BE FIL ED ON 05.07.2013 BEFORE HIM, INFORMING THE ASSESSING OFFI CER ABOUT THE CHANGE OF ADDRESS. THUS ON THIS BASIS OF MATERIAL ON RECORD HE DISMISSED THE ASSESSEES OBJECTION ABO UT NON SERVICE OF NOTICE U/S. 143(2). 7. BEFORE THE LD. CIT (A), ON MERITS, THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS DECLARED HIS INCOME U/S.44AD AS HE DID NOT MAINTAIN ANY BOOKS OF ACCOUNT, AND THEREFOR E, PROVISION OF SECTION 68 CANNOT BE APPLICABLE. FROM THE DOCUMENTS RELIED UPON BY THE INVESTIGATION WING, IT WAS I.T.A. NO.3870/DEL/2016 9 SUBMITTED THAT FOLLOWING FACTS ARE APPARENT FROM TH E RECORDS WHICH NEEDS TO BE CONSIDERED:- ATTENTION OF YOUR GOOD-SELF IS DRAWN TOWARDS AGREE MENT DATED 29/09/2011, WHEREBY THE TERMS OF AGREEMENT DATED 09/09/2010 HAD BEEN CONSOLIDATED AND CLARIFIED IN D ETAIL. FROM PAGE 3 TO 5 OF THE SAID AGREEMENT AND (PAPE R BOOK PAGE NO. 28-30), IT MAY PLEASE BE SEEN THAT SUBJECT MATT ER OF THE AGREEMENT IS A REAL ESTATE PROJECT WHICH WAS OWNED BY M/S ARAVALI HEIGHTS INFRATECH PRIVATE LIMITED AND M/S S RP BUILDERS LIMITED. FURTHER FROM PAGE 1 AND 2 OF THE AGREEMENT DATED 29/09/2011 (PAPER BOOK PAGE NO. 26-27), IT MAY PLEA SE BE SEEN THAT FIRST 3 PARTIES HAS BEEN DESCRIBED AS OWN ERS, WHEREAS THE ASSESSEE HAS BEEN DESCRIBED AS A CONFIRMING PAR TY. FROM PAGE 7 (PAPER BOOK PAGE NO. 32) FIRST TERM, IT CAN BE SEEN THAT THESE OWNERS HAD TRANSFERRED FSI IN THEIR PROJECT TO M/S SAMYAK PROJECTS PVT. LTD. FROM THE ABOVE, IT IS ABSOLUTELY CLEAR THAT MONEY I N QUESTION THAT HAD BEEN PAID BY M/S SAMYAK PROJECTS PVT. LTD. HAD COME AGAINST SALE OF THE PROJECT BY THE OWNERS AND NOT B Y THE ASSESSEE. IN THESE CIRCUMSTANCES LIABILITY TO PAY T AX IS ON THE OWNERS. FOR THE REASONS CONTAINED IN THE FIRST PARA OF PA GE 6 OF AGREEMENT (PAPER BOOK PAGE NO. 31) READ WITH AGREEM ENT DATED 25/06/2010 (PAPER BOOK PAGE NO. 9- 15), THE ASSESSE E WAS MERELY A CONFIRMATORY PARTY IN THE DEAL AND WAS REP OSITORY OF THE FUNDS RECEIVED BY HIM ON BEHALF OF THE OWNERS O F THE PROJECT' I.T.A. NO.3870/DEL/2016 10 THE ASSESSEE HAD ACQUIRED A RIGHT TO OBTAIN CONTROL IN THESE PROJECT-OWNING COMPANIES SUBJECT TO CERTAIN CONDITI ONS. HE, THEREFORE, COULD HAVE BEEN A VITAL FIGURE HAD HE OB TAINED SUCH CONTROL PRIOR TO COMPLETION OF PROJECTS AND WHICH C OULD HAVE BEEN DETRIMENTAL TO THE INTEREST OF THE BUYER, VIZ., M/S SAMYAK PROJECTS PVT LTD. HE WAS MADE CONFIRMATORY PARTY JU ST TO MORALLY AND LEGALLY BOUND THE ASSESSEE FOR SMOOTH EXECUTION OF AGREEMENT. ON THE OTHER HAND, THE ASSESSEE WAS TO OBTAIN THE SHARES/CONTROL OVER THESE COMPANIES. THE IMPUGNED P ROJECT CONSISTED OF A GREAT VALUE IN THE COMPANY. IT IS AL SO SUBMITTED THAT THE ASSESSEE HAD NOT OBTAIN CONTROL OVER THE C OMPANIES AS YET SINCE THE SHARES WERE NOT TRANSFERRED IN HIS NA ME. IN SUCH A SITUATION, THE DIRECTORS/SHAREHOLDERS IN CONTROL OF THESE COMPANIES WOULD HAVE HAD A FREE RUN IF MONEY WAS AL LOWED TO BE LYING IN THE ACCOUNT OF THESE COMPANIES. TO SECURE HIS OWN INTEREST THE ASSESSEE RECEIVED A PART OF THE MONEY FROM M/S SAMYAK PROJECTS PVT. LTD. HOWEVER, I T MAY PLEASE BE SEEN THAT THE MONEY AND THE RECEIPT IT RE PRESENTED DID NOT BELONG TO THE ASSESSEE PER SE, BUT WERE THE INC OME OF THESE COMPANIES ONLY. FURTHER, IT MAY BE SEEN THAT THE ASSESSEE HAD PAI D AN AMOUNT OF RS. 17.12 CRORES TO THESE LAND OWNERS OUT OF THI S SUM OF RS. 35.91 CRORE. FURTHER, LATER THE ASSESSEE HAD ALSO PURCHASED AN D SOLD THE SHARES OF THESE TWO COMPANIES TO M/S SAMYAK PROJECT S PVT. LTD. AN AGREEMENT TO THIS EFFECT WAS ENTERED INTO ON 29/ 09/2011 ITSELF I.E. THE VERY DATE ON WHICH M/S ARAVALI HEIG HTS INFRATECH PRIVATE LIMITED AND M/S SRP BUILDERS LIMITED TRANSF ERRED THEIR I.T.A. NO.3870/DEL/2016 11 PROJECT TO M/S SAMYAK PROJECTS PVT. LTD. OUT OF THI S RS. 35.91 CRORE, THE ASSESSEE HAD ADJUSTED RS. 18.35 CRORE AG AINST SALE OF THESE SHARES TO M/S SAMYAK PROJECTS PVT. LTD. THIS DEAL WAS COMPLETED IN AUGUST NEXT YEAR AND CAPITAL GAIN TAX HAD BEEN PAID NEXT YEAR. THE RELEVANT DOCUMENTS IN THIS REGA RD ARE ALSO ATTACHED IN PAPER BOOK, SHOWING THE TRANSFER OF THE SE SHARES TO M/S SAMYAK PROJECTS PVT. LTD. AND RS. 18.35 CRORES AS SALE CONSIDERATION AGAINST SALE OF THESE SHARES. THUS, THE NATURE OF THIS RECEIPT OF RS.35.91 CRORE IS ALSO CLEARLY ESTABLISHED IN THE HANDS OF THE ASSESSEE AND CANNOT BE ADDED AS TAXABLE INCOME OF THE ASSESSEE. 8. LD. CIT (A) AFTER CONSIDERING THE SUBMISSIONS AN D ON PERUSAL OF THE FACTS AND MATERIAL ON RECORD, HAVE G IVEN FOLLOWING FINDINGS OF FACT: 1. THAT THE APPELLANT HAD RECEIVED AN AMOUNT OF RS. 17.91 CRORE FROM M/S SAMYAK PROJECTS LTD DURING THE YEAR UNDER CONSIDERATION. 2. THAT M/S ARAVALI HEIGHTS INFRATECH PVT LTD, SH VIKRAM SINGH, AND M/S SRP BUILDERS ARE OWNERS OF TOTAL OF 115 KAN ALS AND 6 MARLAS (APPRPX.14.412 ACRES) LAND AT RESIDENTIAL SE CTOR 91 OF GURGAON- MANESAR URBAN MASTER PLAN 2021. 3. THAT SH VIKRAM SINGH HAD RELINQUISHED HIS PART OF THE LAND TO M/S ARAVALI HEIGHTS INFRATECH P LTD AND M/S SRP BUI LDERS LIMITED FOR A CONSIDERATION OF RS.3.11 CRORE. 4. THAT M/S SRP BUILDERS AND M/S ARAVALI HEIGHTS I NFRATECH PVT LTD HAD ENTERED INTO AN AGREEMENT WITH M/S YATHARTH CONSTRUCTION VIDE AN MOU DATED 25/06/2010 WHERE IN M/S I.T.A. NO.3870/DEL/2016 12 YATHARTH CONSTRUCTION WOULD ACQUIRE THE RIGHT TO DE VELOP THE SAID LAND ALONG WITH PURCHASE OF SHARES RESULTING I N GRADUAL 100% CONTROL IN M/S SRP BUILDERS LTD AND M/S ARAVAL I HEIGHTS INFRATECH P LTD. . 5. THAT AS PER MOU, AN AMOUNT OF RS.55.68 CR WOULD BE GIVEN BY M/S YATHARTH CONSTRUCTION TO THE VENDORS. 6. THAT AS PART OF MOU, M/S YATHARTH CONSTRUCTION HAD PAID AN AMOUNT O F RS. 12.42 CRORE TO THE VENDORS ON 25/06/2010. 7. THAT ON 09/09/2010, AN AGREEMENT WAS SIGNED BET WEEN M/S YATHARTH CONSTRUCTION AND THE VENDORS (I.E M/S ARAVALI HEIGHTS INFRATECH P. LTD, SH VIKRAM SINGH AND M/S S RP BUILDERS LIMITED) WHEREIN, M/S YATHARTH CONSTRUCTION AGREED TO RELINQUISH HIS RIGHTS OVER THE LAND PROPERTY IN FAVOUR OF THE VENDORS AT A TOTAL OF CONSIDERATION OF RS.80,15,40,000/-. AS FIR ST INSTALLMENT OF THE PAYMENT, THE VENDORS HAVE PAID AN AMOUNT OF RS.14 CRORE TO M/S YATHARTH CONSTRUCTION ON 3RD, 6TH AND 9TH SE PTEMBER, 2010. 8. THAT ON 29TH SEPTEMBER, 2011, AN AGREEMENT WAS S IGNED BETWEEN M/S ARAVALI HEIGHTS INFRATECH P. LTD, M/S S RS BUILDERS LIMITED AND SH VIKRAM SINGH AS FIRST, SECOND AND 3R D PARTY (COLLECTIVELY REFERRED AS OWNERS), M/S YATHARTH C ONSTRUCTION AS CONFIRMING/FOURTH PARTY ON ONE SIDE AND M/S SAMYAK PROJECTS PVT. LIMITED AS THE PARTY OF THE SECOND PART ON THE OTHER SIDE. THAT THE OWNERS AND THE CONFIRMING PARTY HAD AGREED TO TRANSFER THEIR INTEREST IN THE LAND PROPERTY TO M/S SAMYAK P ROJECTS LIMITED FOR A TOTAL CONSIDERATION OF RS.82,07,39,54 0/-. 9. THAT IN THE ENTIRE DEAL M/S YATHARTH CONSTRUCTIO N HAS GOT AN AMOUNT OF RS.35,91,73,500/- FROM M/S SAMYAK PROJECT S LIMITED. OUT OF THE ABOVE MENTIONED AMOUNT M/S YATH ARTH I.T.A. NO.3870/DEL/2016 13 CONSTRUCTION HAD GOT AN AMOUNT OF RS.17,91,73,500/- DURING THE YEAR UNDER CONSIDERATION. THAT THE APPELLANT WAS NO T THE OWNER OF THE PROPERTY IN QUESTION. 2. THAT HE ENTERED INTO A DEVELOPMENT AGREEMENT WI TH THE OWNERS AND GOT THE RIGHT TO DEVELOP THE PROPERTY. T HE SAME RIGHT HE HAS SOLD IT BACK TO THE OWNER. THEREAFTER THE OW NERS AND THE APPELLANT HAS TRANSFERRED THE RIGHT TO M/S SAMYAK P ROJECTS LIMITED. AND IN THE PROCESS, THE APPELLANT GOT AN A MOUNT OF RS.35,91,73,500/-. OUT OF THE ABOVE MENTIONED AMOUN T M/S YATHARTH CONSTRUCTION HAD GOT AN AMOUNT OF RS.17,91 ,73,500/- DURING THE YEAR UNDER CONSIDERATION. 9. ON THE ANALYSIS OF THE AFORESAID FACTS AND MATER IAL ON RECORD, LD. CIT (A) HELD THAT ASSESSEE HAS EARNED A N INCOME OF RS.17,91,73,500/- DURING THE YEAR UNDER CONSIDER ATION AND ASSESSEES CLAIM THAT IT HAS GOT THE RIGHT OVER THE SHAREHOLDING OF M/S. ARAVALI HEIGHTS AND SRP BUILDE RS LTD. WHICHHAS BEEN STATED TO BE SOLD TO M/S. SAMYAK PROJ ECTS PVT. LTD. IN SUBSEQUENT YEAR AND THEREFORE, THE SAID AM OUNT CAN BE ONLY TAXED AS CAPITAL GAIN, IS DEVOID OF ANY LOG IC AND MERITS. HE FURTHER HELD THAT THERE IS NO DENYING FA CT THAT ASSESSEE HAS GENERATED AN INCOME OF RS.35,91,73,500 /- IN THE ENTIRE CHAIN OF TRANSACTION AND THE INCOME SO G ENERATED IS REQUIRED TO BE BROUGHT TO TAX AND WHAT ASSESSEE IS CLAIMING IS MERELY THE APPLICATION OF SUCH INCOME WHICH HAS BEE N INVESTED IN SUCH SHARES, LATER ON SOLD TO M/S. SAMY AK PROJECTS LTD. THE INCOME GENERATED OUT OF SUCH SHAR E TRANSFER IS TO BE TAXED UNDER THE HEAD CAPITAL GAIN. HOWEV ER, THE I.T.A. NO.3870/DEL/2016 14 ASSESSEES CLAIM THAT AMOUNT OF RS.35,91,73,500/- I S IN THE NATURE OF ADVANCE IS DIVORCED FROM THE FACTS AND IS NOT BORNE OUT FROM ANY MATERIAL ON RECORD. THE AMOUNT RECEIVE D FROM M/S. SAMYAK PROJECTS LTD. IS ON ACCOUNT EXTINGUISHM ENT OF HIS RIGHT OVER THE PROPERTY AGREEMENT OF THE ASSESS EE HAS ENTERED INTO PREVIOUSLY WITH THE ORIGINAL OWNER OF THE LAND AND THE SAID AMOUNT IS FULL AND FINAL PAYMENT. SINC E THE ASSESSEE WAS NEVER THE OWNER OF THE LAND, HENCE, TH E ENTIRE AMOUNT HE GOT IN THE DEAL AS CONFIRMING PARTY IS RE QUIRED TO BE TAXED IN HIS HAND. THEREFORE, ASSESSING OFFICER IS JUSTIFIED IN TAXING THE AMOUNT OF RS.17,91,73,500/-. 10. REGARDING ADDITION OF RS.2,84,88,000/- ASSESSEE STATED THAT AMOUNT DEPOSITED IN THE BANK ACCOUNT WAS ONLY RS. 1,67,84,000/- AND NOT RS.2,84,88,000/- AND THE DETA ILS OF SUCH DEPOSITS HAVE NOT BEEN MADE AVAILABLE. IT WAS FURTHER SUBMITTED THAT ASSESSEE HAS WITHDRAWN SUM OF RS.1,67,96,450/- FROM HIS BANK ACCOUNT DURING THE Y EAR AND OUT OF THAT AMOUNT OF RS.1,64,84,000/- HAS BEEN DEP OSITED. THE SOURCE OF THE SAID DEPOSIT WAS RECEIVED BY ASSE SSEE FOR A SUM OF RS.1 CRORE FROM M/S. SAMYAK PROKJECTS PVT. L TD. IN THE IMMEDIATELY PRECEDING YEAR IN CASH WHICH IS INC LUDED IN RS.35.91 CRORE AND ASSESSEE HAS ALSO WITHDRAWN RS.2 .53 CRORE, AND THEREFORE, THERE WAS A SUFFICIENT SUM AV AILABLE WITH THE ASSESSEE. THE LD. CIT(A) HELD THAT NONE OF THE SUBMISSIONS AND EXPLANATION OF THE ASSESSEE ARE SUP PORTED BY ANY EVIDENCE AND IS MERELY A BLANK STATEMENT THA T THE CASH DEPOSITS ARE FROM THE CASH WITHDRAWAL MADE EAR LIER AND I.T.A. NO.3870/DEL/2016 15 ACCORDINGLY HE HAS CONFIRMED THE ADDITION OF RS.1,67,84,000/- INSTEAD OF RS.2,84,88,000/-. 11. LASTLY, WITH REGARD TO THE ADDITION OF RS.45 LA CS, HE DIRECTED THE ASSESSING OFFICER TO VERIFY THE COMPUT ATION OF INCOME FILED AND GIVE RELIEF IF THE AMOUNT HAS ALRE ADY BEEN OFFERED TO TAX. 12. BEFORE US, LD. COUNSEL FOR THE ASSESSEE, MR. KA PIL GOEL CHALLENGING THE VALIDITY OF THE ASSESSMENT ORDER ON THE GROUND THAT NOTICE U/S 143(2) ISSUED ON 24.09.2013 WAS NEVER SERVED UPON THE ASSESSEE WITHIN THE STIPULATE D PERIOD, THEREFORE, ASSESSMENT COULD NOT HAVE BEEN COMPLETED U/S.143(3) AND CONSEQUENTLY, ENTIRE ADDITION NEEDS TO BE QUASHED. IN THE COURSE OF HIS ARGUMENT, HE SUBMITTE D THAT THE ASSESSEE AFTER FILING OF RETURN OF INCOME ON 30 .09.2013 HAD FILED A LETTER DATED 5 TH JULY, 2013 INTIMATING THE ASSESSING OFFICER THAT ASSESSEE HAS SHIFTED HIS OFF ICE TO, HOUSE NO. 416, SECTOR 21-B, FARIDABAD, HARYANA. HE ALSO POINTED OUT THAT THE SAID LETTER BEARS THE ACKNOWLEDGEMENT STAMP OF THE ASSESSING OFFICER ALSO . HE FURTHER POINTED OUT THAT THIS OBJECTION LETTER WAS ALSO PART OF THE SUBMISSION BEFORE THE LD. CIT (A) AND LD. CIT(A ) HAS WRONGLY HELD THAT NO SUCH INTIMATION WAS GIVEN TO T HE ASSESSING OFFICER. ONCE ASSESSEE HAS INTIMATED THE CHANGE THE ADDRESS THEN IT WAS INCUMBENT UPON THE ASSESSIN G OFFICER TO SERVE THE NOTICE ON THE CHANGE OF ADDRES S OF THE ASSESSEE. HE ALSO FILED THE COPY OF THE NOTICE DATE D I.T.A. NO.3870/DEL/2016 16 24.09.2013 WHICH HAS BEEN PLACED IN THE PAPER BOOK AT PAGE 2 AND THE DISPATCH REGISTER OBTAINED FROM DEPARTMEN T THROUGH RTI POINTING OUT THAT THE NOTICE WAS SENT O N THE OLD ADDRESS MENTIONED AS 152, 2 ND FLOOR, MOHAN BHAWAN, SARAI JUNEGA, DELHI 25 . HOWEVER, THERE IS NO SERVICE RECORD THAT THE SAID NOTICE WAS SERVED UPON THE ASSESSEE. HE FU RTHER POINTED OUT THAT ALL THE NOTICES SENT BY THE ASSESS ING OFFICER HAVE BEEN SENT ON THE OLD ADDRESS INCLUDING THE SEC OND NOTICE U/S. 143(2). HENCE, IN ABSENCE OF ANY VALID SERVICE OF NOTICE, THE ASSESSMENT RECORD IS BAD IN LAW AND IN SUPPORT HE STRONGLY RELIED UPON JUDGMENT OF HONBLE SUPREME COU RT IN THE CASE OF ACIT & ANR. VS. HOTEL BLUE MOON AS REPORTED IN (2010), 321 ITR 362 (SC) AND FOLLOWING OTHER DECISIONS:- 1. DELHI HIGH COURT IN THE CASE OF VEENA DEVI KARN ANI VS. ITO IN WP(C) 7540/2018 ORDER DATED 14.09.2018. 2. BENGALURU HIGH COURT IN THE CASE OF NITTUR VASAN TH KUMAR MAHESH, ORDER DATED 11.04.2019 3. BOMBAY HIGH COURT IN THE CASE OF HARJEET SURAJPR AKASH GIROTRA, ORDER DATED 16.07.2019. 4. PUNE ITAT B BENCH IN THE CASE OF ANIL KISANLAL M ARDA, ORDER DATED 01.07.2019. 13. ON MERITS, HE SUBMITTED THAT FIRST OF ALL, THE MATERIAL GATHERED BY THE ADIT WING WAS NEVER SUPPLIED BY THE ASSESSEE IN THE FINAL SHOW NOTICE ISSUED U/S.144, A ND THEREFORE, SUCH MATERIAL CANNOT BE USED AGAINST THE ASSESSEE. HE FURTHER SUBMITTED THAT THOUGH THE SHOW CAUSE I.T.A. NO.3870/DEL/2016 17 NOTICE ISSUED U/S.144 WAS SERVED UPON THE ASSESSEE ON 02.03.2015 AND ASSESSMENT ORDER HAS BEEN PASSED SHO RTLY THEREAFTER, THAT IS, ON 10.03.2015 WITHOUT GIVING P ROPER OPPORTUNITY. HENCE, THERE IS VIOLATION OF PRINCIPLE S OF NATURAL JUSTICE. ON MERITS, HE RELIED UPON THE SUBM ISSION AND EXPLANATION GIVEN BY THE ASSESSEE BEFORE THE LD . CIT (A) WHICH HAS BEEN INCORPORATED ABOVE. 14. LD. CIT-DR, MR. S.S. RANA ON BEHALF OF THE REVE NUE REBUTTING THE CONTENTION RAISED BY THE ASSESSEE SUB MITTED THAT, IT IS AN UNDISPUTED FACT THAT THE NOTICE U/S. 143(2) WAS ISSUED ON 24.09.2013 AND IT WAS SENT THROUGH SPEED POST ON THE ADDRESS MENTIONED IN THE RETURN OF INCOME FI LED BY THE ASSESSEE WITHIN THE STATUTORY TIME LIMIT. HE HA D ALSO ENCLOSED THE COPY OF ORDER SHEET ENTRIES AND THE DE TAILS OF NOTICE SENT ALONG WITH SPEED POST NUMBER AND THE AD DRESS ON WHICH THE NOTICE WAS ISSUED. HE ALSO ANNEXED THE COPY OF NOTICE U/S. 143(2) ALONGWITH THE PROOF OF SENDIN G THE NOTICE BY SPEED POST NO. ED444. HE FURTHER POINTED OUT THAT THE ASSESSEE BEFORE THE LD. CIT(A) HAS FAILED TO PRODUCE THE LETTER DATED 05.07.2013; AND NOT ONLY T HAT, IN THE ASSESSMENT RECORD ALSO THERE IS NO SUCH LETTER FILED BY THE ASSESSEE. IN SUPPORT OF HIS AVERMENT, HE HAS AL SO PRODUCED THE ASSESSMENT RECORDS. ANOTHER GLARING FA CT AS CULLED OUT FROM THE ASSESSMENT RECORDS, HE POINTED OUT THAT SO CALLED ACKNOWLEDGEMENT SEAL GIVEN IN THE AL LEGED LETTER IS FAKE OR NON GENUINE. THIS HE TRIED TO EST ABLISH FROM I.T.A. NO.3870/DEL/2016 18 THE ASSESSMENT RECORD THAT THE ASSESSING OFFICERS SEAL APPEARING IN ALL THE NOTICES SENT DURING THE SAME P ERIOD WAS A ROUND SEAL AND THE SEAL WHICH IS THE SAID LET TER OF ASSESSEE IS A RECTANGULAR SHAPE AND DOES NOT APPEAR ANY EMBLEM OR DIARY NUMBER OR ANY ACKNOWLEDGEMENT. THUS , AUTHENTICITY OF THIS SEAL IS IN SERIOUS DOUBTS. HEN CE, THIS SO CALLED LETTER DATED 05.07.2013 INTIMATING THE CHANG E OF ADDRESS TO THE ASSESSING OFFICER IS NOTHING BUT AFTERTHOUGHT. EVEN WITHOUT PREJUDICE, HE SUBMITTED THAT, IF THE ASSESSEE IS CLAIMING THAT HE HAS FILED SUCH LET TER BEFORE THE ASSESSING OFFICER INTIMATING THE ADDRESS, THEN HOW POST THAT LETTER THE ASSESSEE HAS FILED THE RETURN OF IN COME FOR THE ASSESSMENT YEAR 2013-14 ON 30.09.2013 WHEREIN ASSESSEE HIMSELF HAS MENTIONED THE SAME ADDRESS. TH IS RETURN HAS BEEN FILED AFTER SO CALLED INTIMATION LE TTER DATED 05.07.2013. FURTHER, EVEN IN THE NOTICE ISSUED TO T HE HDFC U/S 133(6) THE REPLY OF WHICH WAS RECEIVED ON 19.10 .2015, THE ADDRESS IN THE BANK ACCOUNT OF THE ASSESSEE WAS EXACTLY THE SAME AS MENTIONED IN THE NOTICE U/S.143 (2). THUS, NOT ONLY THE ASSESSEES CLAIM IS FALSE BUT AL SO MALA FIDE . HE FURTHER SUBMITTED THAT THE NOTICE U/S. 143(2) GENERATED BY THE DEPARTMENT ON THE BASIS OF THE ADD RESS OF THE ASSESSEE GIVEN IN PAN DATA BASE AND PAN DATA SH OWED THE SAME ADDRESS. IN SUPPORT OF HIS ARGUMENT, HE RE LIED UPON THE FOLLOWING TWO JUDGMENTS OF THE HONBLE JURISDICTIONAL HIGH COURT:- I.T.A. NO.3870/DEL/2016 19 1. IN CIT VS MADHSY FILMS (P.) LTD . (2008) 301 ITR 69 (DELHI), THE HONBLE DELHI HIGH COURT HELD THAT, WHERE NOTICE ISSUED TO ASSESSEE UNDER SECTION 143(2) HAD BEEN DISPATCHED BY SPEED POST AT ITS ADDRESS AS PER ITS RETURN AND SAME HAD NOT BEEN RECEIVED BACK, IT COULD BE PRESUMED THAT IT HAD REACHED ASSESSEE, PARTICULARLY WHEN NO AFFIDAVIT HAD BEEN FILED BY ASSESSEE TO EFF ECT THAT NOTICE WAS NOT RECEIVED BY IT. 2. CIT VS. YAMU INDUSTRIES LTD 306 ITR 309 (DELHI), WHERE HONBLE DELHI HIGH COURT HELD THAT WHERE NOTI CE UNDER SECTION 143(2) SENT BY REGISTERED POST AT COR RECT ADDRESS OF ASSESSEE HAD NOT BEEN RECEIVED BACK UNSERVED WITHIN PERIOD OF THIRTY DAYS OF ITS ISSU ANCE, THERE WAS A PRESUMPTION UNDER LAW THAT SAID NOTICE HAD BEEN DULY SERVED UPON ASSESSEE WITHIN PERIOD OF LIMITATION. 15. ON MERITS, HE STRONGLY RELIED UPON THE ORDER OF THE LD. CIT (A) AND SUBMITTED THAT THE INVESTIGATION WING H AS GIVEN A VERY CATEGORICAL INFORMATION AND THERE WAS A STAT EMENT ON OATH CONFIRMED BY SHRI S.K. JAIN DIRECTOR OF M/S . SAMYAK PROJECTS LTD. THAT HE HAS GIVEN THE SAID MON EY TO THE ASSESSEE AND THE SAID MONEY HAS NOT BEEN DISCLO SED IN THE RETURN OF INCOME, THEREFORE, THE ASSESSING OFFI CER IS JUSTIFIED IN MAKING THE ADDITION U/S.68. FURTHER, I N SUPPORT, HE RELIED UPON THE FOLLOWING JUDGMENTS:- I.T.A. NO.3870/DEL/2016 20 1. PCIT VS. NRA IRON & STEEL P. LTD., (2019) 412 I TR 161 (SC) 2. PCIT VS. NDR PROMOTERS PVT. LTD., (2019) 410 ITR 379 (DELHI) 3. PRATHAM TELECOM INDIA PVT. LTD. VS. DCIT, (2018- TIOL- 1983-HC-MIM-IT. 4. J J DEVELOPMENT PVT. LTD. VS. CIT (2018-TIOL-395 -SC- IT) 5. CIT VS. NIPUN BUILDERS & DEVELOPERS P. LTD., 350 ITR 407. 6. CIT VS. NOVA PROMOTERS & FINLEASE P. LTD., 342 I TR 169. 16. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL PLACED ON RECORD. THE ASSESSEE HA S FILED HIS RETURN OF INCOME ON 30.09.2013 WHEREIN THE FOLL OWING ADDRESS WAS MENTIONED:- SHRI YATHARTH VASHISTH, PROP. M/S. YATHARTH CONSTRUCTION, 152, 2 ND FLOOR, MOHAN BHAWAN, SARAI JULENA, DELHI. THE SAID ADDRESS WAS ALSO THERE IN THE PAN DATA BASE OF THE ASSESSEE. IN CASE, THERE IS A CHANGE IN ADDRESS THEN IT IS INCUMBENT UPON THE ASSESSEE U/S. 139A (5)(D) OF THE INCOME TAX ACT TO INTIMATE THE ASSESSING OFFICER CH ANGE OF ADDRESS OR THE NAME OR THE NATURE OF BUSINESS ON TH E BASIS OF WHICH PAN WAS ALLOTTED TO HIM. IF THERE IS NO SU CH INTIMATION THEN ANY NOTICES SENT ON THE ADDRESS MEN TIONED IN THE RETURN OF INCOME HAS TO BE TREATED AS THE CO RRECT ADDRESS. THE ENTIRE CASE OF THE LD. COUNSEL HINGES UPON THE I.T.A. NO.3870/DEL/2016 21 FACT THAT THE ASSESSEE VIDE LETTER DATED 5 TH JULY, 2015 HAS INTIMATED THE ASSESSING OFFICER FOR THE CHANGE OF A DDRESS. THE SCANNED COPY OF THE SAID LETTER IS INCORPORATED HEREUNDER: 17. IT HAS BEEN SUBMITTED BEFORE US THAT THE SAID L ETTER WAS ALSO MENTIONED IN THE SUBMISSIONS MADE BEFORE THE L D. CIT (A), AND THEREFORE, ONCE INTIMATION HAS BEEN GIVEN TO THE ASSESSING OFFICER, THEN IT WAS INCUMBENT UPON THE A SSESSING I.T.A. NO.3870/DEL/2016 22 OFFICER TO SERVE THE NOTICE ON THE CHANGE OF ADDRES S. HOWEVER, THE AVERMENTS MADE BY THE LD. COUNSEL ON THE FACE O F THE ASSESSMENT RECORDS, DOES NOT APPEAL TO US FOR THE R EASON THAT:- FIRSTLY, IT HAS BEEN HELD BY THE LD. CIT (A) THAT D URING THE COURSE OF THE APPELLATE PROCEEDINGS THAT THIS LETTE R WAS NEVER SHOWN NOR FILED BEFORE HIM, WHICH IS CLEAR FR OM HIS FINDING GIVEN AT PAGE 8 OF HIS ORDER WHICH READS AS UNDER: THE APPELLANT HAS CLAIMED THAT IT HAS SUBMITTED A LETTER DATED 05/07/2013 ABOUT THE CHANGE OF ADDRESS. HOWEV ER, I HAVE FOUND THAT THE APPELLANT HAD FILED ITS RETURN OF INCOME FOR A.Y 2013-14 ON 30/09/2013 GIVING THE SAME ADDRESS I .E. 152, 2ND FLOOR, MOHAN BHAWAN, SARAI JULENA, DELHI-1 10025. THEREFORE THE APPELLANTS CLAIM THAT IT HAS CHANGED ITS ADDRESS FROM 152, 2ND FLOOR, MOHAN BHAWAN, SARAI JU LENA , DELHI-110025 IS NOT TENABLE. FURTHER, THE APPELLANT HAS ALSO FAILED TO PRODUCE ANY SUCH LETTER THAT IT HAS CLAIMED TO HAVE FILED BEFORE THE A.O ON 05/07/2013 INFORMING HIM ABOUT THE CHANGE OF ADDRESS . IN VIEW OF THE OBVIOUS CONTRADICTION IN THE APPELLANTS CLAIM, I FIND NO MERIT IN THE ARGUMENT OF THE APPELLANT IN NOT RECEI VING THE NOTICES WHEN IT WAS SERVED AT THE ADDRESS GIVEN IN THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION AS ALSO THE SAME ADDRESS AS MENTIONED IN THE SUBSEQUENT YEARS RETUR N. APPELLANT HAS HIMSELF ADMITTED THAT IT DID RECEIVE SHOW CAUSE NOTICE SENT BY THE A.O ON THE SAME ADDRESS BEFORE A SSESSING THE INCOME UNDER SECTION 144 OF THE ACT. ON FACTS A ND CIRCUMSTANCES OF THE CASE, THE APPELLANTS GROUNDS OF APPEAL ON THESE ISSUES ARE DISMISSED. I.T.A. NO.3870/DEL/2016 23 NOT ONLY THAT, EVEN THE ASSESSMENT RECORDS WHICH HA S BEEN PRODUCED BEFORE US BY THE LD. CIT-DR, NO SUCH LETTER IS THERE ON RECORD. THE AFORESAID FINDING OF THE LD . CIT (A), THUS GETS CORROBORATED THAT THERE WAS NO SUCH LETTE R IN EXISTENCE IN THE FILE OF THE DEPARTMENT. ANOTHER PECULIAR FACT WHICH HAS BEEN POINTED OUT BY THE LD. CIT-DR IS THAT THE SEAL OF OFFICE OF ITO, WARD- 38(3) IS ENTIRELY DIFFERENT FROM THE SEAL OF THE SAME OFFICE AVAILABLE ON ASSESSMENT RECORD WHICH IS A ROUND SEAL WITH ASH OK EMBLEM AND SUCH A SEAL IS APPEARING IN MOST OF THE NOTICES AND IN THE ASSESSMENT FOLDERS; AND THERE IS NO SUCH RECTANGULAR SEAL WHICH IS APPEARING IN THE LET TER DATED 5 TH JULY 2013. MOREOVER, IF ANY OFFICIAL SEAL IS STAMPED FOR ACKNOWLEDGING THE RECEIVING OF DAK OR LETTER, THEN THERE IS ALWAYS A DIARY NUMBER OR ACKNOWLEDGEM ENT NUMBER WHICH IS TOO ABSENT IN THE SAID SEAL. LASTLY, IF ASSESSEE HAS INTIMATED THE CHANGE OF ADD RESS ON 5 TH OF JULY 2013, THEN WHY ASSESSEE HAS FILED HIS RETU RN OF INCOME FOR THE A.Y. 2013-14 ON 30/09/2013 GIVING THE SAME ADDRESS. THIS GOES TO SHOW THAT THIS LETTER OF INTIMATION IS AFTER THOUGHT. ACCORDINGLY, THE CLAIM OF THE ASSESSEE IS NOT ON LY FALLACIOUS BUT ALSO SPURIOUS, HENCE, THE EXPLANATION THAT THE CHANGE OF ADDRESS WAS INTIMATED TO THE ASSESSING OFFICER IS I NCORRECT AND SAME IS REJECTED. I.T.A. NO.3870/DEL/2016 24 18. IT IS A WELL SETTLED LAW THAT IF A NOTICE H AS BEEN SPENT THROUGH REGISTERED POST OR SPEED POST ON THE ADDRES S MENTIONED BY THE ASSESSEE IN THE RETURN OF INCOME W HICH IS AS PAN DATA BASE, THEN IN TERMS OF SECTION 27 OF TH E GENERAL CLAUSES ACT, 1987, SERVICE IS DEEMED TO HAVE BEEN A FFECTED UNLESS THE CONTRARY IS PROVED. THOUGH, THIS PRESUMP TION U/S.27 OF THE GENERAL CLAUSES ACT IS REBUTTAL PRESU MPTION BUT IN ABSENCE OF ANY PROOF TO THE CONTRARY, THERE IS A STRONG PRESUMPTION OF A PROPER SERVICE OF NOTICE. HERE, IN THIS CASE, THE RECORD SHOWS THAT THE NOTICE HAS BEEN SENT THRO UGH SPEED POST BY THE ASSESSING OFFICER AND THE DISPATCH REGI STER SHOWS A BULK SPEED POST OF VARIOUS NOTICES SENT TO VARIOU S ASSESSEES ON THE SAME DATE MENTIONING THE SPEED PO ST SENT FROM THE OFFICE OF THE ITO, WARD-38(3) WHICH IS 902 -96 AND THE ED NUMBER HAS BEEN MENTIONED AS 440. ONCE A NOT ICE HAS BEEN SENT ON A PROPER ADDRESS AND SAID NOTICE H AS NOT RETURNED BACK, THEN IT IS DEEMED TO HAVE BEEN AFFEC TED IN TIME TO THE ASSESSEE. THE HONBLE JURISDICTIONAL HIGH CO URT IN THE CASE OF CIT VS. MADHSY FILMS PVT. LTD AS REPORTED IN (2008) 301 ITR 69 (DEL.), IN THE CONTEXT OF NOTICES ISSUED U/S. 143(2) HELD THAT, WHERE NOTICE HAS BEEN ISSUED TO T HE ASSESSEE U/S.143(2) AND HAS BEEN SENT BY THE SPEED POST ON THE GIVEN ADDRESS AS PER THE RETURN OF INCOME AND I F THE SAME HAS NOT BEEN RECEIVED BACK, THEN IT IS PRESUMED THA T IT HAS REACHED THE ASSESSEE. SIMILAR VIEW HAS BEEN TAKEN I N THE CASE OF CIT VS. YAMU INDUSTRIES LTD. AS REPORTED IN (2008) 306 ITR 309 (DEL) . ACCORDINGLY, WE HOLD THAT HERE IN THIS CASE I.T.A. NO.3870/DEL/2016 25 NOTICE HAS NOT ONLY BEEN SENT ON THE ADDRESS MENTIO NED IN THE RETURN OF INCOME BUT ALSO BEEN DULY SERVED UNDE R THE LAW WITHIN STATUTORY TIME LIMIT AND ACCORDINGLY THE GRO UND RAISED BY THE ASSESSEE IS DISMISSED. 19. ON MERITS OF THE ADDITION, WE FIND THAT HERE IN THIS CASE DURING THE INVESTIGATION PROCEEDINGS IT WAS FOUND T HAT THERE WAS A PIECE OF LAND MEASURING 8.395 ACRES IN SEC-91 , GURGAON IN THE BOOKS OF M/S ARAVALI HEIGHTS INFRATE CH P LTD. AND 6.017 ACRES IN THE BOOKS OF M/S SRP BUILDERS LT D. BOTH THESE COMPANIES HAD GOT JOINT LICENSE FROM DIRECTORA TE OF TOWN & COUNTRY PLANNING, HARYANA, FOR CONSTRUCTION/ DEVELOPMENT OF A GROUP HOUSING COMPLEX ON THE JOINT LAND MEASURING 14.412 ACRES. SRI YATHARTHA VASHISHTHA (P ROP. M/S YATHARTHA CONSTRUCTIONS) OBTAINED 100% CONTROL IN BOTH COMPANIES BY PURCHASING SHARES OF THESE TWO COMPANI ES FROM EXISTING SHARE HOLDERS VIDE MOU DATED 25.06.20 10. M/S ARAVALI HEIGHTS INFRATECH P. LTD.; M/S SRP BUILDERS LTD.; AND SRI YATHARTHA VASHISHTHA (PROP. M/S YATHARTHA CONST RUCTION) ENTERED INTO FURTHER AGREEMENT WITH M/S SAMYAK PROJ ECT P. LTD. ON 09.09.2010. UNDER THIS AGREEMENT, THE FIRST THREE ENTITIES SOLD CONSTRUCTION/DEVELOPMENT/OWNERSHIP RI GHTS IN THE LAND TO THE LAST NAMED ENTITY FOR A CONSIDERATI ON OF RS.80.15 CRORES. THE ABOVE AGREEMENT WAS FURTHER MO DIFIED ON 29.09.2011 ACCORDING TO WHICH ALL RIGHTS IN THE LAND WERE TRANSFERRED BY THE ENTITIES TO M/S. SAMYAK PROJECT P. LTD. FOR A CONSIDERATION OF RS.82.07 CRORES. ASSESSEE WAS AL SO REPORTED TO HAVE RECEIVED RS.35.91 CRORES FROM M/S. SAMYAK I.T.A. NO.3870/DEL/2016 26 PROJECT P. LTD. AGAINST TRANSFER OF DEVELOPMENT RIG HTS IN FAVOUR OF THE LATER. THUS, THE AMOUNT OF RS. 35.91 CRORES RECEIVED BY M/S YATHARTHA CONSTRUCTIONS FROM M/S SA MYAK PROJECT P. LTD. IS NOT ANY KIND OF ADVANCE AS CLAIM ED BY THE ASSESSEE BUT TAXABLE RECEIPTS, AS ASSESSEE HAS RECE IVED THE AMOUNT ON ACCOUNT OF EXTINGUISHMENT OF RIGHTS EMANA TING FROM THE AGREEMENT ENTERED PREVIOUSLY WITH ORIGINAL OWNER. IN FACT ASSESSEE WAS NEVER THE OWNER OF THE PROPERTY B UT HAS RECEIVED THE AMOUNT ONLY AS CONFIRMING PARTY WHICH IS PRIMA FACIE TAXABLE IN THE HANDS OF THE ASSESSEE AS INCOM E FROM THEIR SOURCES. 20. FURTHER, FROM THE PERUSAL OF THE PAYMENT RECEI PTS OF M/S. YATHARTHA CONSTRUCTIONS FROM M/S. SAMYAK PROJE CTS PVT. LTD., IT IS EVIDENT THAT SUM OF RS.1 CRORE WAS RECEIVED BY THE ASSESSEE DURING THE FINANCIAL YEAR 2010-11 AND BALANCE SUM OF RS.17.91 CRORE WAS RECEIVED DURING THE FINAN CIAL YEAR 2011-12. IN THE STATEMENT RECORDED ON OATH OF SHRI S.K. JAIN, DIRECTOR OF THE SAMYAK PROJECTS LTD., HE HAS CATEGO RICALLY STATED THAT THE MONEY WAS GIVEN TO THE ASSESSEE AS CONFIRMING PARTY AND IS NOT IN THE NATURE OF ADVANC E. FOR THE SAKE OF READY REFERENCE THE RELEVANT PORTION OF STA TEMENT IS INCORPORATED HEREIN BELOW: Q6. I AM SHOWING YOU AGREEMENT DATED29.09,2011 BE TWEEN I) ARAVALI HEIGHT INFRATECH PVT. LTD. 2) VIKARM SIN GH 3) SRP BUILDERS LTD.-REFERRED AS FIRST PART OR OWNER & YAT HARTH CONSTRUCTION-REFERRED AS CONFIRMING PARTY & SAMAYAK PROJECTS PVT. LTD. KINDLY EXPLAINS MAJOR HIGHLIGHTS OF THIS AGREEMENT. I.T.A. NO.3870/DEL/2016 27 ANS. BEFORE THIS, I WOULD LIKE TO DRAW YOUR ATTENTI ON TO AGREEMENT DATED 09.09.2010 BETWEEN THE ABOVE MENTIO NED PARTIES (COPY SUBMITTED). AS PER CLAUSE 7 & 8 READ WITH CLAUSE 2B OF THIS AGREEMENT SAMAYAK PROJECTS PVT. LTD. WAS GIVEN THE RIGHT TO COMMENCE GROUND WORK ON THE LAND IN QUESTI ON AT THE COST & EXPENSES OF/SAMAYAK PROJECTS PVT. LID. AS FA R AS I REMEMBER DETAIL OF PAYMENT SCHEDULE AS PER CLAUSE 2 B OF THIS AGREEMENT WAS MADE BY 31.03.2011 (PART OF RECORD WI LL BE SUBMITTED). IT IS ALSO REFLECTED IN THE BALANCE SHE ET OF SAMAYAK AS ON 3J.03.2011. Q 7. AS PER CLAUSE 7 & 8 OF AGREEMENT DATED 9TH SEP , 2010, YOU WERE GIVEN RIGHT TO COMPLETE GROUND WORK ON THE LAND ADMEASURING, 14.412 ACRES. KINDLY EXPLAIN IN WHICH SHAPE THE ABOVE LAND WAS GIVEN TO YOU. ANS. THE LAND GIVEN WAS PLAIN/RAW LAND HAVING NO EX CAVATION IN ANY PART OF THE LAND. NO BOUNDARY WALL WAS CONST RUCTED EXCEPT SMALL CEMENTED POLES ON PERIPHERY OF THE LAN D FOR IDENTIFICATION, IT WAS ALSO AGREED AS PER CLAUSE NO . 7&8 OF AGREEMENT DATED 09.09.2010, THAT ALL WORKS HAS TO B E DONE ON THE SAID LAND BY SAMAYAK PROJECTS PVT. LTD. (REFERR ED AS RECORD PARTY) AFTER THE PAYMENT MADE IN CLAUSE 2 B (IT IS ON PAYMENT MADE UP TO 31.03.2011, AS PER RECORD). THUS NO WORK WAS DONE ON SAID LAND OF WHATSOEVER NATURE BY FIRST PAR TY & CONFIRMING PART/RECORDED OWNER (AS PER AGREEMENT DA TED 09.09.2010). IT IS ALSO BROUGHT TO YOUR KNOWLEDGE T HAT AS PER CLAUSE NO. 9 OF AGREEMENT DATED 09.09.2010, THE FIR ST PARTY AND THE CONFIRMING PARTY HAVE ALSO GIVEN TO SAMAYAK OR ITS NOMINEE RIGHT TO BOOK/ALLOT/SOLE OF BUILT UP AREA. BY CLAUSE 14 OF AGREEMENT DATED 09.09.2010 SAMAYAK PROJECTS PVT. LTD. WAS GIVEN FULL RIGHT TO NOMINATE OR ASSIGN THIS AGR EEMENT IN FAVOUR OF ANY PARTY. Q 8. AS PER AGREEMENT DATED 29.09.2011 SCHEDULE-L ( DETAIL OF PAYMENTS SO FAR M/S.SAMAYAK PROJECTS PVT. HAS TO MA DE PAYMENT OF RS. 82,07,39,540/-. KINDLY EXPLAIN WHETH ER ANY OBLIGATIONS WERE THERE ON THE PART OF I' PARTY (I.E . ARAVALL HEIGHTS INFRATECH PVT. LTD.), VIKARM SINGH, SRP BUI LDERS LTD & YATHARTH CONSTRUCTION TOWARD THE LIABILITY) SAID LA ND (WITH I.T.A. NO.3870/DEL/2016 28 REGARD TO EXPENDITURE OF ACRES APPROX SITUATED IN S EC-91, MANESAR, GURGAON. ANS. AS PER AGREEMENT DATED 29.09.2011 BETWEEN THE ABOVEMENTIONED PARTIES, THE FIRST PARTY MENTIONED I N QUESTION 8 HAD TO EXECUTE SALE DEED FOR TRANSFER OF TITLE AFTE R GETTING REQUISITE PERMISSION FROM CONCERNED AUTHORITIES. BE SIDE THIS THE FIRST PARTY HAD NO OTHER OBLIGATION TOWARDS LAND. Q 9. WHEN WAS MOU FOR COLLABORATION/AGREEMENT ON LA ND ADMEASURING APPROX. 14 ACRES, SEC-91, MANESAR, GURG AON WAS DONE BY SAMAYAK PROJECTS PVT. LTD. ANS. MOU FOR COLLABORATION WAS ENTERED INTO IN THE MONTH OF JANUARY, 2011 BETWEEN SAMAYAK PROJECTS PVT. LTD & A NSAL API. Q 10. KINDLY SPECIFY WHAT IS THE PRESENT STATUS OF LAND ADMEASURING 14 ACRES, SEC-91, MANESAR, GURGAON AS O N DATE. ANS. TO THE BEST OF MY KNOWLEDGE ON SOME PART OF LA ND THERE IS SOME GRASS AND LITTLE PIT OF GROUND IMPROVEMENT BY THE DEVELOPER. Q.11 . AS PER SCHEDULE-1 OF AGREEMENT DATED 29.09.2 011 SAMAYAK PROJECTS PVT. LTD. WAS SUPPOSED TO MAKE PAY MENT OF RS. 82,07,39,540/-, KINDLY SPECIFY WHETHER ALL THE PAYMENTS HAVE BEEN MADE BY SAMAYAK TO THE PARTIES OF AGREEME NT. ANS. SAMAYAK PROJECTS PVT. LTD. HAS MADE PAYMENT OF 82,45,74,329/- UPTO DATE. I AM PROVIDING YOU CERTIF ICATE DATED 15.12.2012 FROM C.A. SHOWING DETAILS OF PAYMENT MAD E AGAINST THIS AGREEMENT. STATEMENT DATED 24.12. 2012: Q.7. PLEASE EXPLAIN WHETHER PAYMENT FOR ACQUIRING L AND RIGHT IN RESPECT OF LAND MEASURING 14.41 ACRES SITUATED AT S ECTOR-91 GURGAON HAS BEEN PAID IN FULL AND FINAL MANNER, IF YES PHASE GIVE THE DETAILS WITH EVIDENCE? ANS. WE HAVE MADE FULL AND FINAL PAYMENT IN LIEU OF THE LAND RIGHTS ACQUIRED FROM THE M/S ARAVALI HEIGHTS INFRAS TRUCTURE PVT. LTD. M/S YATHARTH CONSTRUCTORS A M/S SRP BUILDERS P VT. LTD. AND SH. VIKRAM SINGH. THE DETAIL OF PAYMENT HAVE BE EN DULY I.T.A. NO.3870/DEL/2016 29 MENTIONED IN AGREEMENT DOTED 25.09.2012 AND COPY FO R THE SAME IS GIVEN TO YOU. Q.8 PLEASE EXPLAIN WHETHER POSSESSION OF THE PLOT S ITUATED AT 91, CURGAON ACQUIRED FROM ABOVE SALE' PARTIES HAVE BEEN TAKEN BY YOU OR YOUR COMPANY. IF YES PLEASE FURNISH THE E VIDENCE OF SAME INCLUDING A POSSESSION LETTER? ANS. WE HAVE TAKEN THE POSSESSION OF ABOVE SAID FON D FOR CARRYING OUT GROUND WORK AFTER MAKING THE PAYMENT O F RS. 40 CRORES IN TERMS OF AGREEMENT DOTED 9.9.2010 BUT COU LD NOT TAKEN THE FULL AND FINAL POSSESSION TILL THE 29,09. 2011 BECAUSE OF THE PART PAYMENT. HOWEVER, WE HAVE TAKEN THE FUL L AND FINAL POSSESSION FOR ALL PURPOSE ON 29.09.2011 VIDE POSSE SSION LETTER DATED NIL AND AS PER AGREEMENT DATED 29.09.2011 AFT ER MAKING THE COMPLETE PAYMENT OF RS. 82.45 CRORES INC LUDING PDC CHEQUES. Q,9 PLEASE EXPLAIN WHETHER YOU HAVE DONE ANY IMPROV EMENT AFTER TAKING FULL AND FINAL POSSESSION OVER THE ABO VE SAID PLOT IN TERM OF LEVELING OF LAND, BOUNDARY WALL AND ANY OTHER DEVELOPMENT/CONSTRUCT WHAT SO EVER, IF YES, PLEASE GIVE THE DETAILS OF THE TOTAL INVESTMENT MADE THEREAFTER? ANS. WE HAVE NOT MADE ANY INVESTMENT/IMPROVEMENT OV ER THE PLOT OF LAND. HOWEVER WE HAD ENTERED INTO AN AGREEM ENT WITH JMD LTD. FOR DOING DEVELOPMENT AND CONSTRUCTORS THR OUGH AGREEMENT DATED SEPTEMBER, 2010. THEY HAVE STARTED LITTLE DIGGING WORK BUT DUE TO CERTAIN DISPUTE THE AGREEME NT WAS CANCELLED WITH THEM IN THE MONTH OF APRIL, 2011. TH E COPY OF THE BOTH AGREEMENT WILL BE SUBMITTED TO YOU. HOWEVE R WE AGAIN ENTERED INTO MOU WITH M/S ANSAL PROPERTIES & INFRASTRUCTURE PVT. LTD. FOR THE DEVELOPMENT AND CO NSTRUCT OF PROJECT NEARLY IN APRIL, MAY, 2011 AND THEY HAVE ST ARTED DEVELOPMENT WORK ON (BOUNDARY WALL & GROUND WORK) T HE LAND. OFF COURSE WE HAVE ENTERED INTO AN AGREEMENT WITH THESE COMPANIES AFTER TAKING DUE POSSESSION OF GROUND WOR K IN TERMS OF AGREEMENT DATED 09. V9.2009.09.2010. HOWEVER, WE HAVE TAKEN THE FINAL POSSESSION FROM M/S ARAVALI HEIGHTS . SRR, YATHARTHA CONSTRUCTOR AND SHRI VIKRAM SINGH FOR OIL PURPOSE ON 29.09.2011 I.T.A. NO.3870/DEL/2016 30 Q.1O PLEASE EXPLAIN YOU HAVE HANDED OVER POSSESSION TO M/S JMD LIMITED FOR DEVELOPMENT AND CONSTRUCTOR OF THE LAND. IF YES, PLEASE FURNISH THE EVIDENCE? ANS. YES WE HAVE GIVEN POSSESSION FOR GROUND WORK T O M/S JMO LTD THROUGH AGREEMENT MODE IN THE MONTH OF SEPT EMBER, 2010. Q.11. PLEASE EXPLAIN WHETHER YOU HAVE RECEIVED ANY PAYMENT FROM M/S JMD LTD, ANS. YES WE HAVE RECEIVED RS. 16 CR. OUT OF 63 CROR ES (APPROX.) Q13. PLEASE EXPLAIN WHETHER M/S ARAVALI HEIGHTS INF RATECH PVT. LTD., M/S SRR BUILDERS LED. M/S YATHARTH CONSTRUCTI ON AND SH. VIKRAM SINGH HAVE MADE ANY GENERAL POWER AND AT TORNEY IN FAVOUR OF YOU. IF YES GIVE THE COPY OF THE SAME AND STATE THE EXACT STATUS OF GPA AS ON THE DATE? ANS. L3. YES THE ABOVE REFERRED PERSONS THROUGH THE IR AUTHORIZED SIGNATORY HAVE MADE GPA IN FAVOUR OF ME ON 29.09.2GIL DULY REGISTERED WITH THE SUB-REGISTRAR O F NOIDA AUTHORITY FOR OIL PURPOSE INCLUDING DEVELOPMENT AND CONSTRUCTOR SALE OF FLATS, SALE OF LAND ETC. THE GPA IS STILL A CTIVE TILL DATE. THE SAME WAS AGAIN AFFIRMED BY THE AGREEMENT DATED 25.08,2012. THUS THE GENERAL POWER OF ATTORNEY IS S TAND VALID IN MY FAVOUR. Q14. PLEASE EXPLAIN WHETHER YOU HAVE HANDED OVER TH E PHYSICAL POSSESSION OVER THE, LAND FOR DEVELOPMENT AND CONSTRUCTOR TO M/S ANSAL PROPERTIES AND INFRASTRUCT URE LTD. IF YES, PLEASE FURNISH THE EVIDENCE FOR THE SAME? ANS. YES, WE HAVE HANDED OVER THE PHYSICAL POSSESSI ON TO THEM FOR DEVELOPMENT AND CONSTRUCT OF THE LAND AND THEY ARE CARRYING OUT DEVELOPMENT ACTIVITIES ON THE PLOT OF LAND. SO FAR, THEY HAVE COMPLETED BOUNDARY WALL AROUND THE PLOT O F LAND AND DONE SOME GROUND WORK. Q15 PLEASE EXPLAIN THE NATURE AND TERMS AND CONDITI ONS OF AGREEMENT MADE WITH M/S AMOL PROPERTIES AND INFRAST RUCTURE LTD. (API)? I.T.A. NO.3870/DEL/2016 31 ANS. WE ARE ENTERED INTO MOU WITH API FOR THE DEVEL OPMENT AND CONSTRUCTOR OF THE PAYMENT FOR RESIDENTIAL APAR TMENT IN ORE AND REVENUE SAVING BASIS WE HAVE RECEIVED APPROX. R S.95 CRORES. SO FAR FROM API TILL TODAY AS PER MOU FROM WE WILL RECEIVED 34.5% SHARE IN THE REVENUE RECEIVED FROM S ALE OF THE PROJECT IF SOME PORTION OF BUILT-UP AREA REMAIN UNS OLD TURN SAME SHARE OF 34.5%OF TOTAL REMAINING ON SATED ARE WILL REMAIN WITH ME. Q16. PLEASE EXPLAIN AT WHAT CAPACITY IN WHAT SHAPE YOU HAVE RECEIVED RS. 95 CRORES FROM API? ANS. I HAVE RECEIVED OF RS. 95 CRORES OUT OF 34.5% OUT OF MY SHARE FROM API AS ADVANCE AND SECURITY. Q17. PLEASE EXPLAIN WHETHER ANY COURT PROCEEDINGS A RE UNDERGOING WITH DIRECTOR OF THE COMPANY MR. VASHISH T? ANS. YES MR. S.K. VASISHT HAS FILED CRIMINAL CASE A GAINST ME AT NOIDA FOR ROBBERY OF RS. 9000/- AND SNATCHING OF AT M CARD AS PER FIR. THE PAPER BOOK (FIR) AND OTHER RELEVANT PAPERS/DOCUMENTS WILL BE SUBMITTED TO YOU. WE HAVE FILED APPLICATION BEFORE HONBLE HIGH COURT ALLAHABAD UND ER SECTION 482 FOR QUASHING THE FALSE ALLEGATION CHARGE SHEET AGAINST ME. Q. NO. 18. PLEASE EXPLAIN WHETHER ANY PROCEEDINGS H AVE BEEN FILED AGAINST YOU AT GURGAON COURT ( IN ANY COURT) ? ANS. MR. S. K. VASHIST HAS FILED A SUIT IN THE GURG AON COURT FOR DEMAND OF SOME AMOUNT (RS. FIVE CRORES ) AGAINST SA LE OF THE PLOT SITUATED AT SECTOR 91, GURGAON AND SOME HAS BE EN REFERRED BY THE HONBLE COURT FOR ARBITRATION TO DE LHI BEFORE THREE ARBITRATORS APPROVED BY US ON AGREED BASIS NA MELY JUSTICE R.S. SODI, JUSTICE KULSHRET AND HONBLE JUS TICE ARUN KUMAR. Q.20 PLEASE EXPLAIN WHETHER THERE IS ANY DISPUTE OV ER THE POSSESSION OVER THE LAND SITUATED AT SECTION-91, GU RGAON, ACQUIRED FROM ARAVALI AND OTHER? IF YES GIVE THE CO MPLETE PARTICULARS AND COPY OF DISPUTE FILED IN ANY COURT. ANS. THERE IS NO DISPUTE ON POSSESSION OF AFORESAID LAND NEIGHBOR BETWEEN US NOR ANY COURT. AS I HAVE ALREAD Y STATED AND EXPLAIN ABOVE THAT WE HAVE ALREADY OVER AND FUL L AND FINAL I.T.A. NO.3870/DEL/2016 32 POSSESSION FROM ARAVALI AND OTHER COMPANIES ON 29.0 9.2011 AS PER AGREEMENT I AM SUBMITTING THE COPY OF POSSES SION LETTER DULY SIGNED BY THEM IN SUPPORT OF THE SAME APART FR OM THE AGREEMENT DATED 29.09.2011. I ALSO EXPLAIN EARLIER THAT POSSESSION FROM GROUND WORK LAND ALREADY BEEN WITH US W.E.F. FIRST WEEK OF FEBARUARY,2011 ON PAYMENT OF RS.40 CR ORES PAID BY US AS PER AGREEMENT DATED 09.09.2012. Q. NO.22 PLEASE EXPLAIN WHETHER M/S.ARAVALI HEIGHTS INFRASTRUCTURE PVT. LTD., M/S. SRP BUILDERS LTD., M /S. YATHARATH CONSTRUCTION AND SH. VIKARAM SINGH HAS TAKEN BACK P ASSION OF ABOVE SAID PLOT OF LAND SITUATED IN SECTOR- 91, GUR GAO AFTER EXECUTING GPA IN FAVOUR OF YOU AND AFTER ENTERING I NTO AGREEMENT ON 09.09.2010? IF YES PLEASE GIVE THE COM PETE PARTICULARS ?. ANS. NO, WE NEVER GIVEN PASSION BACK TO M/S. ARAVAL I HEIGHTS AND INFRASTRUCTURE PVT. LTD AND OTHER MENTIONED ABO VE OF PLOT OF LAND SITUATED AT SECTOR-91 GURGAON AFTER TAKING POS SESSION FROM THEM FIRST TIME IN THE FIRST WEEK OF FEB.2011 AFTER MAKING PAYMENT OF RS.40 CRORES AS TERMS AND CONDITION OF A GREEMENT DATED 09.09.2010 . EVEN THEY ALSO DID NOT ASK AND C HALLENGED THE PASSION GIVEN TO US IN THE FIRST WEEK OF FEB.20 13. Q.23 PLEASE EXPLAIN WHETHER M/S. ARAVALI HEIGHTS INFRASTRUCTURE PVT. LTD., AND OTHER PERSONS MENTION ABOVE HAVE INCURRED ANY EXPENDITURE AND MADE ANY IMPROVEMENT O N THE ABOVE SAID PLOT OF LAND AFTER ENTERING INTO AGREEME NT FIRST TIME WITH YOU ON 9.9.2010 AND AFTER EXECUTING GPA IN FAV OUR OF YOU ON 29.10.2011?? IF YES, PLEASE GIVE THE DETAILS OF EXPENDITURE INCURRED OR IMPROVEMENT MADE, IF ANY. ANS. NO THE ABOVE MENTIONED PARTIES NAMELY M/S. ARA VALI HEIGHTS INFRASTRUCTURE PVT. LTD AND OTHER COMPANIES HAVE INCURRED ANY EXPENSES ON THE IMPROVEMENT AND DEVELO PMENT ON THE ABOVE SAID PLOT AFTER ENTERING INTO AGREEMEN T WITH US ON 9.9.2010 AND THEREFORE. THE TERMS AND CONDITION OF ALL THE FOUR AGREEMENT MADE WITH THEM FROM TIME TO TIME HAVE NOT ALLOWED THEM AND NO OBLIGATION TO CARRY OUT ANY ACTIVITIES OF DEVELOPMENT AND IMPROVEMENT INCLUDING CONSTRUCTION THEREON. I CATEGORICALLY CLEARLY THAT WHETHER, IMPROVEMENT ON GROUND I.T.A. NO.3870/DEL/2016 33 WORK AND CONSTRUCTION OF BOUNDARY WALL HAVE BEEN MA DE OVER THE ABOVE SAID PLOT LAND ONLY BY M/S.ANSAL PROPERTI ES INFRASTRUCTURE LTD. LTD. ( AP-I) AFTER ENTERING INT O MOU WITH THEM. Q.24 PLEASE EXPLAIN WHETHER AGREEMENTS ENTERED WITH M/S.ARAVALI HEIGHTS INFRASTRUCTURE PVT. LTD AND OTH ER PERSONS AND POSSESSION LETTER ISSUED IN FAVOUR OF YOU AND G PA EXECUTED IN FAVOUR OF YOU BY THEM ARE SUBJECT MATTE R OR ANY DISPUTE BEFORE ANY COURT OF LAW. IF YES, PLEASE GIV E THE EVIDENCE OF THEM? ANS. NO, NO COURTS PROCEEDINGS ARE PENDING IN ANY C OURT OF LAW IN RESPECT OF AGREEMENT, GPA AND POSSESSION LETTER ISSUED /SIGNED IN FAVOUR OF US BY THEM. HOWEVER A CASE FIL ED AGAINST ME BY IN SHRI S.K. VASANT IN GURGAON COURT FOR CLAI M OF RS.5 CRORE WHICH HAS NO RELEVANCE WITH THESE DOCUMENTS) I STATED ABOVE THAT THIS MATTER GIVE /REFERRED TO THE ARBITR ATOR, DELHI. HOWEVER, DURING THE PENDENCY OF ARBITRATOR PROCEEDI NG WE BOTH THE PARTIES HAVE RESOLVED THE MATTER OUT OF THE ARB ITRATOR/COURT AND ENTERED INTO AGREEMENT FINALLY ON 25.08.2012 AN D THE COPY OF SAME HAS ALREADY BEEN SUBMITTED TO ARBITRATOR CO URT AND TO YOUR GOODSELF IT IS FURTHER STATED THAT AGREEMENT, GPA AND POSSESSION WERE NEVER CHALLENGED IN ANY COURT OF LA W BY THEM. 21. IN THE LIGHT OF THESE CATEGORICAL INFORMATION A ND MATERIAL IT IS CLEAR THAT ASSESSEE GOT THE MONEY AS CONFIRMI NG PARTY AND NOT ON BEHALF OF SOMEONE ELSE OR AS SOME KIND O F ADVANCE. IT FAIRLY EVIDENT FROM THE RECORDS THAT AS SESSEE HAS RECEIVED THE AMOUNT OF RS.17.91 CRORE FROM M/S. SAM YAK PROJECTS PVT. LTD. WHICH IS NOTHING BUT INCOME OF T HE ASSESSEE, BECAUSE M/S. ARAVALI HEIGHTS INFRATECH P. LTD. HAD ENTERED INTO AN AGREEMENT WITH M/S. YATHARTHA CONSTRUCTIONS VIDE MOU WHERE M/S. SAMYAK PROJECTS L TD. ACQUIRE THE RIGHT TO DEVELOP THE SAID LAND ALONG WI TH PURCHASE I.T.A. NO.3870/DEL/2016 34 OF SHARE RESULTING IN 100% CONTROL IN BOTH THE COMP ANIES. AS PER THE MOU AMOUNTING TO RS.55.68 CRORE WOULD BE GI VEN TO M/S. YATHARTHA CONSTRUCTIONS AND PART OF THE SAME A MOUNT WAS ALSO PAID. LATER ON 9.9.2010 AGREEMENT WAS SIGN ED BETWEEN M/S. YATHARTHA CONSTRUCTION AND THE VENTURE S WHEREIN M/S. YATHARTHA CONSTRUCTIONS AGREED TO RELI NQUISH HIS RIGHT OVER THE LAND PROPERTY IN FAVOUR OF THE V ENTURE AT THE TOTAL CONSIDERATION OF RS.80,15,40,000/- AND EVEN T HE FIRST INSTALLMENT WAS PAID ON SEPTEMBER, 2010. LATER ON 2 9 TH SEPTEMBER, 2011 AN AGREEMENT WAS SIGNED BETWEEN BOT H THE PARTIES, ARAVALI HEIGHTS, SRS BUILDERS LTD. AND M/S . SAMYAK PROJECTS LTD. AS FIRST AND SECOND PARTY M/S. YATHAR THA CONSTRUCTIONS WAS A CONFIRMING PARTY ON ONE SIDE AN D M/S. SAMYAK PROJECTS LTD ON THE OTHER SIDE WHEREIN THE O NUS IN THE CONFIRMING PARTY HAD AGREED TO TRANSFER THE INT EREST IN LAND TO M/S. SAMYAK PROJECTS LTD. TO A TOTAL CONSID ERATION OF RS.81.88 CRORES. THUS, IN THE ENTIRE DEAL ASSESSEE GETS AN AMOUNT OF RS.35,91,73,500 WHICH DEFINITELY IS AN IN COME OF THE ASSESSEE WHICH HAS NOT BEEN SHOWN. THUS, THE FI NDING ARRIVED BY THE LD. CIT (A) CANNOT BE TINKERED AND A CCORDINGLY THIS ISSUE IS DECIDED AGAINST THE ASSESSEE AND THE GROUNDS RAISED ON THIS ISSUE ARE DISMISSED. 22. LASTLY, ON THE ISSUE OF RS. 1,67,84,000/- ON AC COUNT OF DEPOSITS IN ACCOUNTS OF THE ASSESSEE, NEITHER ANY E VIDENCE HAS BEEN FILED BEFORE THE AUTHORITIES BELOW IN SUPP ORT OF ANY CASH WITHDRAWAL WHICH HAS BEEN CLAIMED TO HAVE BEEN RE- DEPOSITED NOR ANY PROPER SUPPORTING DOCUMENTS OR TH E I.T.A. NO.3870/DEL/2016 35 EXPLANATION ABOUT THE SOURCE OF DEPOSIT HAS BEEN FI LED. IN ABSENCE OF ANY REBUTTAL OR EXPLANATION, THE AMOUNT OF DEPOSITS OF RS. 1,67,84,000/- HAS RIGHTLY BEEN TAXE D AS UNEXPLAINED. LD. CIT (A) HAS OBSERVED THAT THE ASSE SSEE HAS NOT BEEN ABLE TO PROVIDE ANY EVIDENCE IN SUPPORT OF HIS CLAIMS AND MERELY GIVING A GENERALIZED STATEMENT THAT THE CASH DEPOSITS ARE FROM THE CASH WITHDRAWAL MADE EARLIER IS NOT SUFFICIENT EVIDENCE. THE ASSESSEE HAS NOT BEEN ABLE TO CORRELATE THE CASH WITHDRAWN AND SUBSEQUENT DEPOSIT S. IN ABSENCE OF ANY COGENT REASON AND EVIDENCE, THE AUTH ORITIES BELOW ARE JUSTIFIED IN HOLDING CASH DEPOSITS AS UNE XPLAINED. ACCORDINGLY, THIS GROUND IS ALSO DISMISSED. 23. LASTLY, ON THE ISSUE OF SUM OF RS.45 LACS, LD. CIT(A) HAS ALREADY DIRECTED THE ASSESSING OFFICER TO VERIFY FR OM THE COMPUTATION OF INCOME FILED ALONGWITH THE RETURN OF INCOME WHETHER THE SAME HAS BEEN OFFERED TO TAX OR NOT. AC CORDINGLY, THE APPEAL OF THE ASSESSEE IS DISMISSED. NO INTERFE RENCE IS CALLED FOR ON SUCH DIRECTION. 24. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH DECEMBER, 2019. SD/- SD/- [B.R.R. KUMAR [AMIT SHUKLA] [ACCOUNTANT MEMBER] JUDICIAL MEMBER DATED: 16 TH DECEMBER, 2019 I.T.A. NO.3870/DEL/2016 36 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR DATE 1. DRAFT DICTATED ON 2. DRAFT PLACED BEFORE AUTHOR 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE COMES BACK TO PS/SR. PS 8. UPLOADED ON 9. FILE SENT TO THE BENCH CLERK 10. DATE ON WHICH FILE GOES TO THE AR 11. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 12. DATE OF DISPATCH OF ORDER.