DCIT CEN CIR 8(4), MUMBAI V. PECCADILY ESTATE P. LTD, MUMBAI

ITA 4029/MUM/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5369 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 13-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AWUNGSHI GIMSON
• Keywords: Business income; Income from undisclosed sources; Loose papers; Document seized; Block assessment; Retraction; Documents seized
• Section: 271(1)(c); 143(3); 153A; 132; 15; 139

Judgement Text

1 ITAS 4030-4032 & 4029 & 4027/MUM/2016 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C, MUMBAI BEFORE SHRI G MANJUNATHA (ACCOUNTANT MEMBER) AND SHRI RAVISH SOOD (JUDICIAL MEMBER) ITA NO.4030/MUM/2016 - 2010-11 ITA NO.4031/MUM/2016 - 2009-10 ITA NO.4032/MUM/2016 - 2011-12 DCIT, CENT.CIR.8(4), MUMBAI VS SITARA BUILDERS PVT LTD GOVARDHAN BLDG NO.2, DR PAREKH ROAD, PRARTHANA SAMAJ, MUMBAI PAN : AABCS4975L APPELLANT RESPONDEDNT ITA NO.4029/MUM/2016 - 2011-12 DCIT, CENT.CIR.8(4), MUMBAI VS M/S PECCADALLY ESTA TE PVT LTD GOVARDHAN BLDG NO.2, DR PAREKH ROAD, PRARTHANA SAMAJ, MUMBAI AAECP3575N APPELLANT RESPONDEDNT ITA NO.4027MUM/2016 - 2011-12 DCIT, CENT.CIR.8(4), MUMBAI VS M/S MINDSET ESTATE PVT LTD GOVARDHAN BLDG NO.2, DR PAREKH ROAD, PRARTHANA SAMAJ, MUMBAI PAN : AAFCM3426Q APPELLANT RESPONDEDNT REVENUE BY SHRI AWUNGSHI GIMSON ASSESSEES BY SHRI VIJAY MEHTA 2 ITAS 4030-4032 & 4029 & 4027/MUM/2016 DATE OF HEARING 17-05-2019 DATE OF PRONOUNCEMENT 31-05-2019 O R D E R PER G MANJUNATHA, AM : THIS BUNCH OF 5 APPEALS FILED BY THE REVENUE IN RE SPECT OF THREE DIFFERENT ASSESSEES ARE DIRECTED AGAINST SEPARATE, BUT IDENTI CAL ORDERS OF CIT(A)-47, MUMBAI, DATED 28-03-2016 AND 30-06-2016 AND THEY PE RTAIN TO AY 2009-10, 2010-11 AND 2011-12. SINCE FACTS ARE IDENTICAL AND ISSUES ARE COMMON, FOR THE SAKE OF CONVENIENCE, THESE APPEALS WERE HEARD TOGET HER AND ARE DISPOSED OF BY THIS CONSOLIDATED ORDER. 2. THE REVENUE HAS, MORE OR LESS, RAISED COMMON GRO UNDS OF APPEAL IN ALL FIVE APPEALS. THEREFORE, FOR THE SAKE OF BREVITY, GROUNDS OF APPEAL RAISED FOR AY 2009-10 IN ITA NO.4031/MUM/2016 ARE REPRODUCED BELO W:- 1) 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID CIT(A) ERRED IN DELETING THE ADDITION OF ON-MONEY O F RS. 3,90,53,280/- RECEIVED ON SALE OF FLATS RELYING ON THE OBSERVATION AND DECISI ON IN THE CASE OF ACIT VS. JANAK RAJ CHAUHAN (102 TTJ 316) (AMRITSAR) AND MAHESHWARI INDUSTRIES VS. ACIT (148 TAXMAN 74(JODH.) (MAG)) WITHOUT APPRECIATING THE FA CTS THAT THE ADDITION WAS MADE ON THE BASIS OF THE STATEMENT OF THE DIRECTOR SHRI HARESH MOHANALAL MEHTA AND THREE KEY EMPLOYEES OF THE ASSESSES GROUP NAMELY MS. CHAULA JOSHI (SALES AND MARKETING EXECUTIVE OF ROHAN GROUP) AND MR. VIJAY JASANI (ACC OUNTANT OF THE ROHAN GROUP) AND ALSO OF MR. PARESH PANCHLOTIYA (OFFICE ASSISTANT/LIAISON OFFICER) DURING THE COURSE OF SEARCH. THE CIT(A) FU RTHER FAILED TO APPRECIATE THAT THE ROHAN GROUP HAD BEEN SEARCHED EARLIER TOO ON 10 .08.2006 AND EVEN DURING THE COURSE OF THAT SEARCH, THE SAME MS. CHAULA JOSH I HAD ADMITTED TO THE FACT THAT THE GROUP EXECUTED SALES DEED BY ACCEPTING ON MONEY IN CASH WHICH WAS OVER AND ABOVE THE AGREEMENT PRICE. 3 ITAS 4030-4032 & 4029 & 4027/MUM/2016 3. THE BRIEF FACTS OF THE CASE EXTRACTED FROM ITA N O.4031/MUM/2016 ARE THAT ROHAN GROUP OF ENTITIES, ALONG WITH DIRECTORS, FAMILY MEMBERS AND RELATED PARTIES WAS SUBJECTED TO SEARCH & SEIZURE ACTION U/ S 132 OF THE I.T. ACT, 1961 ON 26-05-2011. THE ASSESSEE IS ALSO ASSOCIATED WIT H THE SAID GROUP AND SEARCH ACTION WAS CARRIED OUT ON ITS REGISTERED OFFICE LOC ATED AT GOVARDHAN BLDG NO.2, DR PAREKH ROAD, PRARTHANA SAMAJ, MUMBAI. CONSEQUEN T TO SEARCH, THE CASE OF THE ASSESSEE WAS CENTRALISED AND ACCORDINGLY, DCIT, CENT.CIR.47, MUMBAI ISSUED NOTICE U/S 153C OF THE I.T. ACT, 1961 DATED 28-03-2013 WHICH WAS DULY SERVED ON THE ASSESSEE. IN RESPONSE TO THE NOTICE, THE ASSESSEE FILED RETURN OF INCOME ON 21-10-2013 DECLARING INCOME AT RS.77,79,1 19. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143(2) AND 142 (1) OF THE ACT, WERE ISSUED. IN RESPONSE TO NOTICE, THE AUTHORISED REPRESENTATIV E OF THE ASSESSEE APPEARED FROM TIME TO TIME AND FILED VARIOUS DETAILS, AS CAL LED FOR. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPMENT AND HAS UNDERTAKEN THE PROJECT, NAMED MOKSH PLAZA AT BORI VALI DURING THE YEAR UNDER CONSIDERATION. THE AO FURTHER NOTED THAT DURING THE COURSE OF SEARCH, UNACCOUNTED CASH, JEWELLERY AND INCRIMINATING DOCUM ENTS INDICATING SUPPRESSION OF SALES, ETC. WERE FOUND AND SEIZED AS PER PANCHANAMA PREPARED. IN THE COURSE OF SEARCH PROCEEDINGS, STATEMENT OF L ATE SHRI JITENDRA MEHTA 4 ITAS 4030-4032 & 4029 & 4027/MUM/2016 (DEMISED SUBSEQUENT TO SEARCH) WAS RECORDED ON OATH U/S 132(4) OF THE ACT, ON 27-05-2011, WHERE HE HAD ADMITTED UNDISCLOSED IN COME OF RS.100 CRORES IN RESPECT OF VARIOUS ENTITIES OF ROHAN GROUP. HE HAD ALSO RECONFIRMED THE SAID DISCLOSURE IN HIS STATEMENT RECORDED ON 22-07-2011 AND ALSO FILED ENTITY WISE BREAK UP OF SUCH DISCLOSURE. THE AO FURTHER OBSERV ED THAT DURING THE COURSE OF SEARCH PROCEEDINGS, STATEMENT OF SHRI HARESH M MEHT A, DIRECTOR OF M/S ROHAN DEVLOPERS PVT LTD WAS RECORDED ON OATH U/S 132(4) O N 04-06-2011 WHEREIN HE HAD ADMITTED THAT ROHAN GROUP WAS INDULGING IN ACCE PTING ON-MONEY @30% OVER AND ABOVE THE REGISTERED VALUE IN SALE DEEDS F ROM THE CUSTOMERS ON SALE OF RESIDENTIAL / COMMERCIAL PREMISES. FURTHER, THE STATEMENT OF MS. CHAULLA G JOSHI, SALES AND MARKETING EXECUTIVE OF THE GROUP E NTITIES WAS RECORDED ON OATH U/S 132(4) ON 26-05-2011 WHERE SHE HAD ADMITTE D THAT THE DIRECTORS OF THE COMPANY HAVE ACCEPTED ON-MONEY ON SELLING RESID ENTIAL FLATS / COMMERCIAL PREMISES. SIMILARLY, STATEMENT OF SHRI VIJAY JASAN I, ACCOUNTANT OF THE GROUP WAS RECORDED ON 26-05-2011 WHERE HE HAD ADMITTED TH AT ON-MONEY HAS BEEN COLLECTED FROM A BUYER WHICH IS OVER AND ABOVE THE VALUE MENTIONED IN THE SALE DEEDS AND THE SAME IS OUTSIDE BOOKS OF ACCOUNT . LIKEWISE, STATEMENT OF SHRI PARESH PANCHLOTIYA, LIAISONING OFFICER / OFFIC E ASSISTANT WAS ALSO RECORDED U/S 132(4) OF THE ACT, ON 26-05-2011 WHEREIN HE ADM ITTED THAT THE GROUP WAS 5 ITAS 4030-4032 & 4029 & 4027/MUM/2016 INDULGING IN COLLECTION OF ON-MONEY FROM SALES OVER AND ABOVE THE VALUE MENTIONED IN REGISTERED DOCUMENTS. 5. DURING ASSESSMENT PROCEEDINGS, THE AO, ON THE BA SIS OF STATEMENTS OF DIRECTOR AND EMPLOYEES OF THE GROUP, CALLED UPON TH E ASSESSEE TO EXPLAIN AS TO WHY INCOME TOWARDS COLLECTION OF ON-MONEY FROM SALE OF PROPERTIES SHALL NOT BE ESTIMATED @30% ON TOTAL SALES DECLARED FOR THE Y EAR UNDER CONSIDERATION. IN RESPONSE TO SHOW CAUSE NOTICE, THE ASSESSEE, THR OUGH ITS AUTHORISED REPRESENTATIVE, VIDE LETTER DATED 13-01-2014 SUBMIT TED THAT DURING THE COURSE OF SEARCH, NO INCRIMINATING MATERIAL / EVIDENCE WAS FOUND WHICH INDICATED RECEIPT OF ON-MONEY FROM SALES OVER AND ABOVE REGIS TERED VALUE MENTIONED IN DOCUMENTS IN CASE OF THE ASSESSEE. THEREFORE, BASE D ON THE STATEMENT OF CERTAIN PERSONS, ESTIMATING INCOME TOWARDS COLLECTI ON OF ON-MONEY, THAT TOO, IN ABSENCE OF EVIDENCE COLLECTED DURING THE COURSE OF SEARCH IS INCORRECT. THE ASSESSEE FURTHER SUBMITTED THAT SHRI HARESH M MEHTA IS NOT AUTHORISED TO LOOK AFTER SALES OF ASSESSEE GROUP. THEREFORE, THE STAT EMENT GIVEN BY HIM DURING THE COURSE OF SEARCH CANNOT BE CONSIDERED AS RELEVA NT TO ASSESSEES CASE BECAUSE WHEN A PERSON IS NOT AUTHORISED TO LOOKAFTE R THE BUSINESS OF THE ASSESSEE, HE IS NOT AWARE OF THE FACTS. THEREFORE, UNLESS THERE IS CORROBORATIVE EVIDENCE ON RECORD TO PROVE THAT THE ASSESSEE HAS C OLLECTED ON-MONEY FROM SALES, THERE CANNOT BE ANY ESTIMATION BY EXTRAPOLAT ING DOCUMENTS FOUND 6 ITAS 4030-4032 & 4029 & 4027/MUM/2016 DURING THE COURSE OF SEARCH IN SOME OTHER CASES OR STATEMENT OF PERSONS, WHO IS / ARE NOT AUTHORISED TO GIVE SUCH STATEMENTS. T HE ASSESSEE FURTHER SUBMITTED THAT THE PERSONS, WHO GAVE THE STATEMENT HAVE FILED THE RETRACTION AND ALSO EXPLAINED UNDER WHAT CIRCUMSTANCE THEY WER E COMPELLED TO GIVE STATEMENTS OF ADMISSION EVEN THOUGH THERE IS NO REF ERENCE TO ANY INCRIMINATING MATERIAL FOUND WHICH INDICATED COLLEC TION OF ON-MONEY. IN THIS REGARD, HE RELIED UPON VARIOUS JUDICIAL PRECEDENTS INCLUDING THE INSTRUCTION ISSUED BY CBDT DATED 10-03-2003 WHERE IT WAS DIRECT ED THAT NO ADDITION CAN BE MADE UNLESS THE SAME IS CORROBORATED BY ANY MATE RIAL BROUGHT ON RECORD. 6. THE AO, AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND ALSO BY TAKING NOTE OF THE STATEMENTS RECORDED FROM THE DIR ECTOR AND EMPLOYEES OF GROUP, CAME TO THE CONCLUSION THAT THE ASSESSEE HAS COLLECTED ON-MONEY OF 30% OVER AND ABOVE THE VALUE SHOWN IN THE REGISTERE D DOCUMENTS AND ACCORDINGLY, ESTIMATED UNDISCLOSED INCOME FROM SALE OF FLATS @30% ON SALES DECLARED FOR THE YEAR UNDER CONSIDERATION. THE AO FURTHER OBSERVED THAT ALTHOUGH THE ASSESSEE CLAIMS THAT NO INCRIMINATING MATERIAL PERTAINING TO THE ASSESSEE WAS FOUND AND SEIZED DURING THE COURSE OF SEARCH, BUT FACT REMAINS THAT DURING THE COURSE OF SEARCH ENORMOUS DETAILS R EGARDING UNACCOUNTED INCOME, SUPPRESSION OF SALES AND CASH WAS SEIZED FR OM THE GROUP WHICH CLEARLY INDICATED THAT THE GROUP WAS INDULGING IN RECEIPT O F ON-MONEY OVER AND ABOVE 7 ITAS 4030-4032 & 4029 & 4027/MUM/2016 THE VALUE SHOWN IN THE SALE DEED. HE, FURTHER, OBS ERVED THAT THIS WAS FURTHER SUPPORTED BY THE STATEMENT OF EMPLOYEES WHERE THEY HAVE ADMITTED THAT THE GROUP IS INDULGING IN RECEIPT OF ON-MONEY AND HENCE , THERE IS NO MERIT IN THE CLAIM OF THE ASSESSEE THAT NOTHING ON RECORD TO IND ICATE RECEIPT OF ON-MONEY FROM SALES. ACCORDINGLY, HE REJECTED THE ARGUMENTS OF THE ASSESSEE AND ESTIMATED 30% OF TOTAL SALES DECLARED FOR THE YEAR TOWARDS ON-MONEY AND MADE ADDITION TO THE RETURNED INCOME. THE RELEVANT FINDINGS OF THE AO ARE AS UNDER:- 7.38 THE ASSESSEE HAS SUBMITTED THAT THE SEIZED MA TERIAL PERTAINS TO ONLY FEW FLATS/ PROJECTS. THE ASSESSEE HAS SUBMITTED THA T NO EVIDENCE IS FOUND IN THE COURSE OF SEARCH WITH RESPECT TO SALES IN THE O THER PROJECTS. AFTER CAREFUL CONSIDERATION OF THE FACTS OF THE CASE AND THE SUBM ISSIONS OF THE ASSESSEE IT IS SEEN THAT THE CONTENTION OF THE ASSESSEE THAT TH E INCOME SHOULD NOT BE EXTRAPOLATED TO THE OTHER PROJECTS AND THE OTHER GR OUP COMPANIES IS NOTHING BUT AN EYE WASH. IT IS OBSERVED THAT THE ASSESSEE I S ONLY HARPING UPON ITS ARGUMENT THAT THERE IS NO EVIDENCE TO ESTABLISH THA T ON MONEY IS RECEIVED IN OF ITS OTHER PROJECTS. 7.39 THE CONTENTIONS OF THE ASSESSEE CANNOT BE ACCE PTED AS THERE IS NO REASON AS TO WHY THE ASSESSEE WOULD CHARGE ON MONEY IN ONE PROJECT AND NOT IN THE OTHER. MORE SO, IN THE STATEMENT GIVEN B Y MR, HARESH MOHANLAL MEHTA, DIRECTOR OF ROHAN DEVELOPERS PVT. LTD., HE H AS CLEARLY STATED THAT THE GROUP IS ACCEPTING ON MONEY ON SALES. THUS, THE REM ARK AND OBSERVATIONS FOR RECEIPT OF ON MONEY ARE FOR THE GROUP AS A WHOLE AN D NOT INDIVIDUAL PROJECT. IT IS VERY OBVIOUS THAT IF THE ASSESSEE IS INVOLVED IN ACCEPTING CASH IN ONE PROJECT THEN DEFINITELY HE WOULD BE DOING THE SAME FOR ALL THE PROJECTS. IN THE BACKDROP OF THE SEIZED MATERIAL, IT IS ALSO OBSERVE D THAT THE ASSESSEE HAS FAILED TO CONVINCINGLY ESTABLISH THAT NO ON MONEY W AS ACCEPTED ON SALES, ACCORDINGLY, I HOLD THAT THE INCOME WITH RESPECT TO RECEIPT OF ON MONEY TO THE EXTENT OF 30% OF SALES NEEDS TO BE ADDED IN ALL THE PROJECTS OF THE COMPANY FOR ALL THE YEARS. 7.40 DURING THE YEAR CONSIDERATION, THE SALES MADE BY THE COMPANY IS RS. 13,01,77,600/- AND 30% ON ACCOUNT OF ON MONEY ON TH E ABOVE WORKS OUT TO RS.3,90,53,280/-. THEREFORE, IN VIEW OF THE OBSERVA TIONS MADE, I AM ADDING THE INCOME ON ACCOUNT OF ON MONEY TO THE TUNE OF RS . 3,90,53,28Q/-. PENALTY 8 ITAS 4030-4032 & 4029 & 4027/MUM/2016 PROCEEDINGS U/S. 271(1)(C) OF THE ACT ARE SEPARATEL Y INITIATED FOR CONCEALMENT OF INCOME AND FURNISHING INACCURATE INCOME. 7. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), THE ASSESSEE CHALLENGED THE ADDITION MADE BY THE AO TOWARDS ESTIMATION OF ON-MONEY ON SA LES ON THE GROUND THAT WITHOUT REFERENCE TO INCRIMINATING MATERIAL FOUND A S A RESULT OF SEARCH, NO ADDITION COULD BE MADE IN ASSESSMENTS FRAMED U/S 15 3C OF THE INCOME-TAX ACT, 1961. THE ASSESSEE FURTHER CONTENDED THAT UNLESS TH E AO ARRIVE AT A SATISFACTION WITH REFERENCE TO INCRIMINATING MATERI AL FOUND AS A RESULT OF SEARCH, THE PROCEEDINGS U/S 153C CANNOT BE INITIATE D. THEREFORE, IN ABSENCE OF ANY MATERIAL FOUND AS A RESULT OF SEARCH AND ALSO N EXUS BETWEEN INCRIMINATING MATERIAL WITH SATISFACTION, THE PROCEEDINGS INITIA TED U/S 153C IS VOID AB INITIO AND LIABLE TO BE QUASHED. INSOFAR AS ADDITION MADE BY THE AO TOWARDS ESTIMATION OF ON-MONEY FROM SALES, THE ASSESSEE SUB MITTED THAT ALTHOUGH THE AO HAS STATED THAT THERE ARE INCRIMINATING MATERIAL S SEIZED WHICH IS MARKED AS ANNEXURE A-1, BUT ON PERUSAL OF THE SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH CLEARLY INDICATES THAT THOSE PAPERS DID NOT BELONG TO THE ASSESSEE AND THEREFORE, BASED ON MATERIAL WHICH IS NOT BELONGING TO THE ASSESSEE, NO ADDITION COULD BE MADE IN THE HANDS OF THE ASSESSEE TOWARDS ON-MONEY UNLESS THE AO ESTABLISHES WITH COGENT MATERIALS THAT THE A SSESSEE IS INDULGING IN RECEIPT OF ON-MONEY. THE ASSESSEE FURTHER SUBMITTE D THAT THE DOCUMENTS 9 ITAS 4030-4032 & 4029 & 4027/MUM/2016 RELIED UPON BY THE AO IS NOTHING BUT DUMB DOCUMENTS WHERE NOTHING HAS BEEN RECORDED EXCEPT THE RATES PERTAINING TO SALE OF FLA TS. FURTHER, THE CONTENTS OF SEIZED MATERIAL MENTIONED ON PAGE 114 NEITHER RELAT ED TO THE ASSESSEE NOR ANYTHING WRITTEN ABOUT RECEIPT OF ON-MONEY. ALTHO UGH, THE AO HAS RELIED UPON STATEMENTS OF SHRI HARESH M MEHTA, DIRECTOR AN D OTHER EMPLOYEES OF THE GROUP, BUT FACT REMAINS THAT NOWHERE IN THE STATEME NT, THEY HAVE INDICATED THE NAME OF THE ASSESSEE AND COLLECTION OF ON-MONEY FROM SALE OF FLATS. FURTHER, THE PERSONS, WHO GAVE THE STATEMENT HAVE R ETRACTED THEIR STATEMENTS BY FILING AFFIDAVIT AND ALSO EXPLAINED THE CIRCUMST ANCES UNDER WHICH THEY GAVE ADMISSION IN THE STATEMENT RECORDED U/S 132(4). TH E ASSESSEE HAS ALSO EXPLAINED THE SEIZED MATERIALS FOUND N THE POSSESSI ON OF SHRI HARESH M MEHTA, AS PER WHICH, NONE OF THE SEIZED MATERIAL PERTAINED TO BUSINESS OF THE ASSESSEE OR RECEIPT OF ON-MONEY, RATHER, ALL SEIZED PAPERS R ELATED TO PERSONAL AFFAIRS OF SHRI HARESH M MEHTA. THEREFORE, IN ABSENCE OF ANY MATERIAL FOUND AS A RESULT OF SEARCH, WHICH SUGGESTS RECEIPT OF ON-MONEY, ESTI MATION OF ON-MONEY @30% ON SALES DECLARED FOR THE YEAR IS TOTALLY INCORRECT . 8. THE LD.CIT(A), AFTER CONSIDERING RELEVANT SUBMIS SIONS OF THE ASSESSEE AND ALSO BY RELYING UPON VARIOUS JUDICIAL PRECEDENT S INCLUDING DECISION OF ITAT, SPECIAL BENCH IN THE CASE OF ALL CARGO GLOBAL LOGIS TICS VS DCIT I.T.A NOS. 5018 TO 5022 & 5059/M/10 HELD THAT IT WAS CLEAR FROM THE RECORDS THAT NECESSARY 10 ITAS 4030-4032 & 4029 & 4027/MUM/2016 FREE CONDITION TO ISSUE NOTICE U/S 153C IS THAT MON EY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT BELONGING TO A PERSON OTHER THAN THE PERSON SEARCHED, SHOULD HAVE BEEN SEIZED O R REQUISITIONED. FURTHER, AS PER CIRCULAR NO.24/2015(F.NO.279-MISC-140-2015-I TJ), THE ISSUE OF SATISFACTION OF THE AO THROUGH RECORDING OF A SATIS FACTION HAS ALSO BEEN CLARIFIED TO BE MANDATORY. IN THE INSTANT CASE, ON PERUSAL OF THE IMPUGNED ORDER INDICATES THAT EXCESS AMOUNT OF RS.25,86,687 WAS FOUND AT 112-122, HIRA BHAVAN, RAJARAM MOHAN ROY ROAD, PRARTHANA SAMAJ, MU MBAI, BUT THE ASSESSEE EXPLAINED THAT THE SAID AMOUNT WAS ACTUALL Y SEIZED FROM THE RESIDENTIAL PREMISES OF LATE SHRI JITENDRA MEHTA, D IRECTOR AND HE HAD DULY ADMITTED SAID AMOUNT IN HIS INDIVIDUAL CAPACITY. E XCEPT THIS, THERE IS NOTHING ON RECORD FOR THE IMPUGNED YEAR TO SAY THAT ANY MON EY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT BELONGING TO THE ASSESSEE WAS SEIZED OR REQUISITIONED AS A RESULT OF SEARCH. FURTHER, WITH REGARD TO THE SEIZED PAPER ON PAGE 114, ANNEXURE A-1 ON PERUSAL O F THE SAME SHOWS THAT THERE IS NO MENTION OF THE ASSESSEE COMPANY OR THE PROJECT UNDERTAKEN BY THE ASSESSEE. DURING THE YEAR UNDER CONSIDERATION, AS OBSERVED BY THE AO IN THE IMPUGNED ASSESSMENT ORDER, THE ASSESSEE COMPANY HAS EXECUTED THE PROJECT NAME MOKSH PLAZA AND THIS NAME DID NOT FIND MENTI ON ON PAGE 114 OF ANNEXURE A-1. THUS, IT IS VERY CLEAR FROM THE ABOV E FACTS THAT SEIZED PAPER 11 ITAS 4030-4032 & 4029 & 4027/MUM/2016 FOUND DURING THE COURSE OF SEARCH CANNOT BE CONSIDE RED BELONGING TO THE ASSESSEE. HE FURTHER OBSERVED THAT IN THIS CASE, T HE ASSESSEE HAS FILED ITS ORIGINAL RETURN OF INCOME U/S 139 ON 30-09-2009. T HE RETURN WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT WAS COMPLETED U/S 143(3 ) ON 31-12-2009. THE SEARCH U/S 132 OF THE ACT, ON ROHAN GROUP WAS CARRI ED OUT ON 26-05-2011. FROM THE ABOVE, IT IS CLEAR THAT THE ASSESSMENT FOR THE AY 2009-10 IS UNABATED AS ON THE DATE OF SEARCH, BECAUSE THE PROCEEDING U/ S 143(3) HAS BEEN CONCLUDED MUCH BEFORE THE DATE OF SEARCH AND ALSO T HERE WAS NO PROCEEDING OF WHATSOEVER IS PENDING FOR THE YEAR UNDER CONSIDERAT ION. THUS, THE CASE OF THE ASSESSEE CANNOT BE SAID TO BE ONE WHERE ASSESSMENT PROCEEDINGS HAD BEEN ABATED. ONCE THE ASSESSMENT PROCEEDINGS HAVE BEEN UNABATED, IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND AS A RESULT OF SEA RCH OR SATISFACTION QUA INCRIMINATING MATERIAL, NO ADDITION COULD BE MADE I N THE ASSESSMENT FRAMED U/S 153C OF THE ACT. THEREFORE, BY FOLLOWING THE D ECISION OF ITAT, SPECIAL BENCH IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD VS DCIT (SUPRA) AND ALSO THE DECISION OF HONBLE BOMBAY HIGH COURT WHERE THE APP EAL FILED BY THE DEPARTMENT HAS BEEN DISMISSED BY THE COURT, HELD TH AT THE AO HAS MADE ADDITION TOWARDS ESTIMATION OF ON-MONEY WITHOUT THE RE BEING ANY INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH; CONSEQUENTLY, THE ADDITION MADE BY THE AO CANNOT BE SUSTAINED. HE, ACCORDINGL Y, DELETED ADDITION MADE 12 ITAS 4030-4032 & 4029 & 4027/MUM/2016 BY THE AO TOWARDS ESTIMATION OF ON-MONEY. THE RELE VANT FINDINGS OF THE LD.CIT(A) ARE AS UNDER:- 5.1 IN GROUNDS NO.L AND2 THE APPELLANT HAS CHALLENGED THE VALIDITY OF THE IMPUGNED ORDER PASSED U/S 153C AS BEING BAD IN LAW. THE APPELLANT HAS ARGUED THAT AS PER THE PROVISIONS OF SECTION 15 3C, THE AO IS REQUIRED TO BE 'SATISFIED' THAT THE SEIZED MATERIAL INDICATI NG UNDISCLOSED INCOME PERTAINS TO THE 'OTHER PERSON'. IT IS EMPHASISED TH AT PROCEEDINGS CAN ONLY BE INITIATED WHERE THE AO IS SATISFIED THAT ANY MON EY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED IS BELONGING TO A PERSON OTHER THAN THE PERSON SEARCHE D. AS PER THE APPELLANT, IN THE INSTANT CASE, THERE WAS NO SUCH S EIZURE OR REQUISITION. THE APPELLANT HAS FURTHER CHALLENGED THE IMPUGNED O RDER AS NULL AND VOID FOR THE REASON THAT THE ADDITION WAS MADE TO THE RE TURNED INCOME OF THE APPELLANT DESPITE THE ABSENCE OF ANY INCRIMINATING MATERIAL YIELDED BY THE SEARCH AND AS THE ASSESSMENT FOR THE YEAR UNDER CON SIDERATION HAD NOT ABATED, THE ADDITIONS MADE WERE UNSUSTAINABLE. FOR THESE > VT FEASONS IT IS SUBMITTED THAT THE VERY ISSUANCE OF NOTICE U/S 153C IS BAD IN LAW. VJHESUBMISSIONS MADE BY THE APPELLANT IN THIS REGA RD ARE AS FOLLOWS: '9. IN THIS REGARD, AT THE OUTSET, WE WOULD LIKE TO DRA W YOUR HONOUR'S KIND ATTENTION TO THE PROVISIONS OF SECTION 153C OF THE ACT WHICH READS AS UNDER: '153C. (1) [NOTWITHSTANDING ANYTHING CONTAINED IN S ECTION 139. SECTION 147. SECTION 148. SECTION 149. SECTION 151 AND SECTION 153. WHERE THE ASSESSING OFFICER IS SATISFIED THAT, - (A) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING, SEIZED OR REQUISITIONED, BELONGS TO; OR (B) ANY BOOKS OF ACCOUNT OR DOCUMENTS, SEIZED OR RE QUISITIONED, PERTAINS OR PERTAIN TO, OR ANY INFORMATION CONTAINED THEREIN, R ELATES TO, A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTI ON 153A. THEN, THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS, SEIZED OR REQUISITI ONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTH ER PERSON] [AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSO N AND ISSUE NOTICE AND ASSESS OR REASSESS THE INCOME OF THE OTHER PERSON IN ACCORDAN CE WITH THE PROVISIONS OF SECTION 153A. IF, THAT ASSESSING OFFICER IS SATISFIED THAT THE BO OKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED HAVE A BEARING ON THE DETERMINATION OF THE TOTAL INCOME OF SUCH OTHER PER SON FOR THE RELEVANT ASSESSMENT YEAR OR YEARS REFERRED TO IN SUB SECTION (1) OF SECTION 153A1' (EMPHASIS SUPPLIED) 10. ON PLAN READING OF THE ABOVE, IT MAY PLEASE BE NOTED THAT AS PER THE PROVISIONS OF SECTION 153C OF THE ACT, PROCEEDINGS CAN BE INIT IATED ON THE OTHER PERSON, ONLY UPON SATISFACTION OF THE FOLLOWING PRE-REQUISITES: THE AO MUST BE SATISFIED- A. THAT MONEY, BULLION, JEWELLERY OR OTHER VALUAB LE ARTICLE OR THING FOUND IN THE COURSE OF SEARCH BELONGS TO A PERSON OT HER THAN THE PERSON SEARCHED, OR B. THAT THE BOOKS OF ACCOUNTS OR DOC UMENTS SEIZED OR ACQUISITIONED BELONGS TO A PERSON OTHER THAN THE PERSON REFERRED IN SECTI ON 153A (I.E., PERSON SEARCHED) AND C. THAT THE ABOVE CONSISTS OF UNDIS CLOSED INCOME OF THE OTHER PERSON. 13 ITAS 4030-4032 & 4029 & 4027/MUM/2016 IT MAY PLEASE BE NOTED THAT BEFORE PROCEEDING WITH INITIATING PROCEEDINGS U/S. 153C OF THE ACT, THE AO HAS TO BE THOROUGHLY SATISFIED T HAT THE SEIZED MATERIAL INDICATING ESCAPED INCOME PERTAINS TO THE OTHER PERSON (I.E. O THER THAN THE SEARCHED PARTY). 11. IN THIS REGARD, AT THE OUTSET, IT IS SUBMITT ED THAT NO INCRIMINATING MATERIAL WHATSOEVER (IN THE FORM OF MONEY, BULLION, JEWELLER Y, BOOKS OF ACCOUNT DOCUMENT SEIZED, ETC.) HAS BEEN FOUND, TO SUGGEST ANY CONCEA LED PARTICULARS OF INCOME PERTAINING TO THE APPELLANT COMPANY. FURTHER, PROCE EDINGS U/S 153C OF THE ACT CAN BE INITIATED BY THE AO UPON COMPLETE SATISFACTI ON THAT THE SEIZED MATERIAL BELONGS TO THE APPELLANT AND THAT INCOME HAS NOT BE EN DISCLOSED THEREON. THUS, ONLY ON FULFILMENT OF ALL OF THE AFOREMENTIONED PRE REQUISITES, THE AO CAN INITIATE PROCEEDINGS U/S 153C OF THE ACT. HOWEVER, IN THE PR ESENT CASE NONE OF THE PRE- REQUISITES WERE FULFILLED BY THE AO SO AS TO JUSTIF Y INITIATION OF PROCEEDINGS U/S 153C OF THE ACT. 12. THUS, YOUR HONOUR MAY NOTE THAT THE VERY ISS UANCE OF NOTICE UNDER SECTION 153C OF THE ACT IS BAD IN LAW AND VOID AB INITIO. I N LIGHT OF THE ABOVE DISCUSSION, WE PRAY BEFORE YOUR HONOUR THAT THE NOTICE ISSUED A ND CONSEQUENTIAL ORDER PASSED BY THE AO U/S 143(3) R.W.S. 153C IS BAD IN L AW AND IS REQUIRED BE QUASHED.' 5.1.1 I HAVE CONSIDERED THE CONTENTIONS OF THE APPE LLANT. AS REGARDS THE ASPECT OF ISSUE OF NOTICE U/S 153C IS CONCERNED, IT IS CLEAR THAT THE NECESSARY THE PRE-CONDITION TO ISSUE OF NOTICE U/S 153C IS THAT MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NG OR BOOKS OF ACCOUNT BELONGING TO A PERSON OTHER THAN THE PERSON SEARCHE D SHOULD HAVE BEEN SEIZED OR REQUISITIONED. ALSO AS PER CIRCU|AR NO.24/2015 (F.NO.279/MISC./140 /2015/ITJ), THE ISSUE OF SATISF ACTION OF THE AO THROUGH RECORDING OF A SATISFACTION NOTE HAS ALSO BEEN C!AR IFIED TO BE MANDATORY. 5.1.2 - IN THE INSTANT CASE, PERUSAL OF THE IMPUGNED ORDER INDICATES THAT EXCESS CASH OF RS.25,86,687/- WAS FOUND AT 112 -122, HIRA BHAWAN, RAJA RAM MOHAN ROY ROAD, PRARTHANA SAMAJ AND RS.8,50,000/- A ND UNEXPLAINED JEWELLERY FOUND AT M/S GOODWILL PROPERTIES, 26-27-2 8 FLOOR, PENTHOUSE, SHIV TAPI APARTMENTS, GAMDEVI. IN THIS REGARD, THE APPELLANT HAS CLARIFIED THAT THE AMOUNT OF RS. 8,50,000/R WAS ACTUALLY SEIZ ED FROM THE RESIDENTIAL PREMISES OF LATE SHRI JITENDRA MEHTA, DIRECTOR, AS DULY REFLECTED IN THE PANCHNAMA AND HAS BEEN OFFERED TO TAX BY HIM. IT IS FURTHER SEEN THAT THE PREMISES OF THE APPELLANT COMPANY ARE II, 2 ND FLOOR, GOVERDHAN BUILDING, 12-14 DR. PAREKH STREET, PRARTHANA SAMAJ, MUMBAI-40 0004. THERE IS NO MENTION IN THE IMPUGNED ORDER TO SHOW THAT ANY MONE Y, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCO UNT BELONGING TO THE APPELLANT WAS SEIZED OR REQUISITIONED AS A RESULT OF THE SEARCH. 5.1.3 WITH REGARD TO THE SEIZED PAPER AT PAGE 114, ANNEXURE A-L, FOUND AND SEIZED FROM 112-122, HIRA BHAWAN, RAJA RAM MOHA N ROY ROAD, PRARTHANA SAMAJ (REFERRED BY THE AO ON PAGE 12 OF T HE IMPUGNED ORDER), PERUSAL OF THE SAME SHOWS THAT THERE IS NO MENTION OF THE APPELLANT COMPANY OR THE PROJECT UNDERTAKEN BY IT ON THE SAID PAGE. DURING THE YEAR UNDER CONSIDERATION, AS OBSERVED BY THE AO IN THE I MPUGNED ORDER, THE APPELLANT COMPANY HAS EXECUTED THE PROJECT NAMED MO KSH PLAZA WHICH NAME DOES NOT FIND MENTION ON PAGE 114, ANNEXURE-AL . PERUSAL OF THE SAID DOCUMENT AT PAGE 114 REVEALS THAT THE PROJECTS LISTED ON IT ARE NAMELY SIDDHESH DARSHAN; MAYURESH APARTMENTS; LIFESCAPES K SHITIJ; SIDDHESH 14 ITAS 4030-4032 & 4029 & 4027/MUM/2016 JYOTI. IN THE SUBMISSIONS MADE IN APPEAL, IT IS STA TED THAT THESE PROJECTS ARE UNDERTAKEN BY THE FOLLOWING ENTITIES: NAME OF PROJECT ENTITY OF ROHAN GROUP SIDDHESH DARSHAN MERIDIAN CONSTRUCTION PRIVATE LIMITED MAYURESH APARTMENT ROHAN DEVELOPERS PRIVATE LIMITED LIFESCAPES KSHITIJ ROXINA REAL ESTATE PRIVATE LIMITED SIDDHESH JYOTI MANAV BUILDERS PRIVATE LIMITED THUS, IT CANNOT BE CONCLUDED THAT THE SEIZED PAPER MAKES ANY MENTION OF THE APPELLANT COMPANY OR THE PROJECT UNDERTAKEN BY IT DURING THE YEAR AND AS SUCH THIS DOCUMENT CANNOT BE TAKEN AS INCRIMINAT ING MATERIAL WITH REFERENCE TO THE APPELLANT. 5.1.4 AS PER THE IMPUGNED ORDER, THE APPELLANT FILE D ITS ORIGINAL RETURN OF INCOME U/S 139 ON 30.09.2009 DECLARING TOTAL INCOME AS RS.78,71,430/-. THE RETURN WAS SELECTED FOR SCRUTINY AND ASSESSMENT U/S 143(3) WAS COMPLETED VIDE ORDER DATED 31.12.2008 ACCEPTING THE RETURNED INCOME. THE SEARCH U/S 132 ON THE ROHAN GROUP WAS CARRIED O UT ON 26.05.2011. THEREAFTER RETURN FOR THE SAME YEAR WAS FILED IN RE SPONSE TO NOTICE U/S 153C ON 21.10.2013 DECLARING INCOME AT RS.77,79,190 /-. AS NOTED EARLIER, THE ORIGINAL ASSESSMENT PROCEEDINGS STOOD 5.1.5 IN THE DECISION OF THE SPECIAL BENCH IN THE C ASE OF ALL CARGO GLOBAL LOGISTICS LTD. THE SCOPE OF ASSESSMENT U/S 153A WAS ELUCIDATED AS UNDER: '53. THE QUESTION NOW IS - WHAT IS THE SCOPE OF ASSESSME NT OR REASSESSMENT OF TOTAL INCOME U/S 153A (1) (B) AND THE FIRST PROVISO? WE A RE OF THE VIEW THAT FOR ANSWERING THIS QUESTION, GUIDANCE WILL HAVE TO BE SOUGHT FROM SECTION 132(1). IF ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS RELEVANT TO THE ASSESSME NT HAD NOT BEEN PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT AND FOUND IN THE COURSE OF SEARCH IN OUR HUMBLE OPINION SUCH BOOKS OF ACCOUNT OR OTHER DOCUMENTS HA VE TO BE TAKEN INTO ACCOUNT WHILE MAKING ASSESSMENT OR REASSESSMENT OF TOTAL IN COME UNDER THE AFORESAID PROVISION. SIMILAR POSITION WILL OBTAIN IN A CASE W HERE UNDISCLOSED INCOME OR UNDISCLOSED PROPERTY HAS BEEN FOUND AS A CONSEQUENC E OF SEARCH. IN OTHER WORDS, HARMONIOUS INTERPRETATION WILL PRODUCE THE FOLLOWIN G RE SUITS :- (A) IN SO FAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE ORIGINAL ASSESSMENT AND ASSESSMENT U/S 153A MERGE INTO ONE A ND ONLY ONE ASSESSMENT FOR EACH ASSESSMENT YEAR SHALL BE MADE SEPARATELY ON TH E BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT O N THE RECORD OF THE AO, (B) IN RESPECT OF NON-ABATED ASSESSMENTS, THE ASSES SMENT WILL BE MADE ON THE BASIS OF BOOKS OF ACCOUNT OR OTHER DOCUMENTS NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT BUT FOUND IN THE COURSE OF SEARCH, AND U NDISCLOSED INCOME OR UNDISCLOSED PROPERTY DISCOVERED IN THE COURSE OF SE ARCH.' 15 ITAS 4030-4032 & 4029 & 4027/MUM/2016 THUS THE SPECIAL BENCH HELD THAT IN CASES WHERE THE RE HAS NOT BEEN ANY ABATEMENT OF ASSESSMENT, IN ADDITION TO THE INCOME THAT HAD ALREADY BEEN ASSESSED, THE ASSESSMENT U/S 153A SUBSEQUENT TO SEA RCH WOULD BE MADE ON THE BASIS OF INCRIMINATING MATERIAL, WHICH IN TH E CONTEXT OF RELEVANT PROVISIONS MEANS BOOKS OF ACCOUNT AND OTHER DOCUMEN TS FOUND IN THE COURSE OF THE SEARCH BUT NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT AS WELL AS UNDISCLOSED INCOME OR PROPERTY DISCLOSED IN THE COURSE OF THE SEARCH. THE DECISION OF THE SPECIAL BENCH WAS CHALL ENGED BY THE DEPARTMENT BEFORE THE JURISDICTIONAL HIGH COURT AND VIDE ORDER ITA NO.523 OF 2013 DATED 21.04.2015, THE HON'BLE COURT UPHELD THE VIEW TAKEN BY THE SPECIAL BENCH. THE PRINCIPLE ENUNCIATE D REGARDING THE SCOPE OF ASSESSMENT U/S 153A EXTENDS TO ASSESSMENTS COMPL ETED U/S 153C ALSO, INASMUCH AS THE LINK TO INCRIMINATING MATERIA L IS NECESSARY FOR ADDITION TO BE MADE IN A NON-ABATED ASSESSMENT. 5.1.6 AS DISCUSSED EARLIER, IN THE INSTANT CASE, TH E IMPUGNED ORDER DOES NOT SHOW THAT ANY DOCUMENT, MONEY, BULLION, ETC. WA S SEIZED OR REQUISITIONED IN THE CASE OF THE APPELLANT. NEITHER IS THERE ANY INDICATION OF THE SATISFACTION OF THE AO THAT ANY SUCH ITEM SEIZE D OR REQUISITIONED SPECIFICALLY BELONGED TO THE APPELLANT COMPANY. THE ONLY DOCUMENT THAT IS REFERRED TO IN THE ASSESSMENT ORDER, IS THE SEIZED PAPER AT PAGE 114, ANNEXURE A-L, FOUND AND SEIZED FROM 112-122, HIRA B HAWAN, RAJA RAM MOHAN ROY ROAD, PRARTHANA SAMAJ, WHICH IS NOT THE A PPELLANT'S PREMISE. ALSO, AS DISCUSSED IN PARA 5.1.3, THE SAID PAPER DO ES NOT MAKE ANY MENTION OF THE APPELLANT COMPANY OR THE PROJECT UND ERTAKEN BY IT. THE STATEMENTS OF VARIOUS PARTIES RECORDED DURING THE S EARCH WERE SUBSEQUENTLY WITHDRAWN THROUGH FILING OF AFFIDAVITS . EVEN OTHERWISE, THE IMPUGNED ORDER DOES NOT SHOW THAT THESE STATEMENTS MADE ANY SPECIFIC MENTION OF THE APPELLANT COMPANY OR OF THE PROJECT CARRIED OUT BY IT IN THIS YEAR AND ANY UNDISCLOSED INCOME RELATED THERETO. TH EREFORE CONSIDERING THE FACTS OF THE CASE AND THE JUDICIAL PRONOUNCEMEN TS CITED ABOVE, IT IS EVIDENT THAT THE IMPUGNED ASSESSMENT IS NOT BASED O N ANY INCRIMINATING MATERIAL PERTAINING TO THE APPELLANT SEIZED \ DURING THE SEARCH. SIMILARLY, THE IMPUGNED ORDER DOES NOT REFLECT ANY FINDING EMA NATING FROM THE SEARCH THAT HAS LED TO THE DISALLOWANCES ON ACCOUNT OF CONVEYANCE CHARGES OR TELEPHONE EXPENSES. THEREFORE THESE ADDI TIONS CAN ALSO NOT BE TAKEN TO BE BASED ON SEIZED MATERIAL. GROUNDS NO.L TO 3, RAISED BY THE APPELLANT ARE THEREFORE ALLOWED. 9. INSOFAR AS ADDITION MADE TOWARDS ESTIMATION OF O N-MONEY ON MERIT, THE LD.CIT(A), BY FOLLOWING CERTAIN JUDICIAL PRECED ENTS, INCLUDING THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS UTT AMCHAND JAIN REPORTED IN 320 ITR 554 (BOM) HELD THAT THE STATEMENTS RELIED U PON BY THE AO INCLUDING 16 ITAS 4030-4032 & 4029 & 4027/MUM/2016 DIRECTOR AND EMPLOYEES OF THE GROUP CANNOT BE SAID TO HAVE PROVIDED SUFFICIENT EVIDENCE OF ON-MONEY TRANSACTIONS IN RESPECT OF THE ASSESSEE COMPANY. FURTHER, THE LOOSE PAPER ON WHICH THE AO HAS PLACED HEAVY RELIANCE ALSO DOES NOT REFLECT THE NAME OF THE ASSESSEE OR ITS PROJECT . THUS, ON THE FACTS OF THE INSTANT CASE AND AFTER DUE CONSIDERATION OF THE JUD ICIAL PRECEDENTS, THE ADDITION OF ON-MONEY OF RS.3,90,53,280 WAS DELETED. THE RELEVANT FINDINGS OF THE CIT(A) ARE AS UNDER:- 5.2.9 THE AO HAS ALSO HELD THAT CIRCUMSTANTIAL EVIDENCE O F CASH AND UNEXPLAINED JEWELLERY FOUND DURING THE SEARCH SHOWE D SUPPRESSION OF SALES. IN THIS REGARD IT IS NOTED THAT CASH OF RS.2 5,86,687/- WAS SEIZED FROM 112-122 HIRA BHAWAN WHICH WAS COMMON PREMISES FOR 4 ENTITIES OF THE APPELLANT GROUP I.E. M/S ROHAN LIFESCAPES, M/S ROHA N DEVELOPERS, M/S GOODWILL PROPERTIES AND M/S SILVER ARCH. DURING THE APPEAL PROCEEDINGS, THE APPELLANT SUBMITTED THAT TOTAL CASH FOUND FROM THE VARIOUS PREMISES OF GROUP CONCERNS/DIRECTORS ETC. WAS RS.1,35,00,000/- AND THAT FROM THIS SUM, AN AMOUNT OF RS. 1,09,13,313/- WAS RECONCILED WITH THE BOOKS OF ACCOUNTS OF THE CONSTITUENT COMPANIES, DIRECTORS ETC. OF THE GROUP (REFER LETTER DATED 24.10.2013 SUBMITTED DURING THE COURSE OF ASSESSMEN T OF M/S ROHAN DEVELOPERS PRIVATE LIMITED.). THE BALANCE AMOUNT OF RS. 25,86,687/- IS STATED TO HAVE BEEN OFFERED AS UNDISCLOSED INCOME I N THE HANDS OF M/S ROHAN DEVELOPERS PRIVATE LIMITED FOR A.Y. 2012-13. THIS RECONCILIATION HAS NOT BEEN REJECTED OR CONTRADICTED BY THE AO. 5.2.10 WITH REFERENCE TO CARRYING OUT OF PROCEEDINGS AGAIN ST CONCERNED PERSONS, THE MATERIALITY, RELEVANCE , ADMISSIBILITY OR WEIGHT OF RETRACTED STATEMENTS HAS BEEN EXAMINE D BY VARIOUS COURTS. WHILE IT IS TRUE THAT RETRACTION ITSELF DOES NOT PR OVIDE AN IMPENETRABLE SHIELD TO THE CONCERNED PERSON, IT IS ALSO EQUALLY TRUE TH AT A STATEMENT PER SE, BY ITSELF IS NOT CONCLUSIVE EVIDENCE. IN THIS REGARD, IN THE DECISION RENDERED IN THE CASE OF ACIT VS JANAK RAJ CHAUHAN 102 TTJ 316 ( AMRITSAR)}, THE TRIBUNAL HELD THAT ADMISSION MADE AT THE TIME OF - ' SEARCH IS IMPORTANT BUT NOT CONCLUSIVE. IN THE DECISION RENDERED IN THE CASE OF MAHESHWARI INDUSTRIES VS ACIT {148 TAXMAN 74 (JODH) (MAG)}, THE TRIBUNAL HELD THAT ADDITIONS SHOULD BE CONSIDERED O N MERITS RATHER THAN ON THE BASIS OF SURRENDER MADE BY AN ASSESSEE. IN THE DECISION RENDERED IN THE CASE OF SURINDER PAL VERMA V. ASSTT. CIT [2004] 89 ITD 129 (CHD.) (TM)THE TRIBUNAL OBSERVED AS FOLLOWS: 17 ITAS 4030-4032 & 4029 & 4027/MUM/2016 'IT IS WELL KNOWN FACT THAT THE CONFESSIONAL STATEM ENTS MADE DURING THE SEARCH ARE OFTEN VULNERABLE ON THE GROUND THAT THE PERSONS GIVING SUCH STATEMENTS REMAIN UNDER GREAT MENTAL STRAIN AND STR ESS, THEY ALSO DO NOT HAVE THE AVAILABILITY OF RELEVANT DETAILS, DOCUMENT S AND BOOKS OF ACCOUNT AT THE TIME OF GIVING SUCH STATEMENTS IN THE ABSENCE O F WHICH PRECISE INFORMATION RELATING TO THE MODE OF UTILIZATION OF SUCH INCOME AND THE YEAR OF SUCH INVESTMENT CANNOT BE CORRECTLY FURNISHED. T HE ASSESSEES ARE, THEREFORE, ENTITLED TO MODIFY/CLARIFY THE STATEMENT S AFTER VERIFYING THE NECESSARY DETAILS FROM THE RELEVANT RECORDS AT LATE R POINT OF TIME.' 5.2.11 IN THE DECISION RENDERED IN THE CASE OF CIT VS K.BH UVANENDRA & OTHERS REPORTED AT 303 ITR 235, THE COURT HELD THAT THE STATEMENT OF ASSESSEE WHICH WAS NOT RELATABLE TO SEIZED MATERIAL AND WHICH WAS SUBSEQUENTLY RETRACTED COULD NOT BE A BASIS FOR MAK ING ANY ADDITION IN BLOCK ASSESSMENT. IN THIS CASE, THE ASSESSEE'S WIFE AND SONS HAD PURCHASED A PROPERTY. DURING THE STATEMENT RECORDED DURING THE SEARCH, THE ASSESSEE ADMITTED TO PAYMENT OF ON-MONEY. HOWEV ER THE STATEMENT WAS SUBSEQUENTLY RETRACTED. ADDITION WAS HOWEVER, M ADE BY THE AO ON THE BASIS OF THE STATEMENT. THE COURT OBSERVED THAT NO MATERIAL WAS FOUND DURING THE COURSE OF SEARCH TO INDICATE TRANSACTION OF ON-MONEY, THAT THE STATEMENT RECORDED FROM THE ASSESSEE WAS SUBSEQUENT LY RETRACTED AND REBUTTED AND THAT THE REGISTERED SALE DEED DID NOT SHOW ANY PAYMENT MORE THAN WHAT WAS DISCLOSED. THE COURT FURTHER HELD THA T ADDITION COULD NOT BE MADE ON THE BASIS OF THE STATEMENT WHEN IT WAS NOT RELATABLE TO SEIZED MATERIAL AND WHERE THE REVENUE HAD NOT BROUGHT ON R ECORD ANY MATERIAL TO SHOW THAT ON-MONEY HAD BEEN PAID. 5.2.12 IN THE DECISION RENDERED IN THE CASE OF CIT VS UTTA MCHAND JAIN REPORTED AT 320 ITR 554 (BOM), THE HON'BLE COURT HE LD THAT A RETRACTED CONFESSION CAN BE RELIED UPON ONLY IF THERE IS INDE PENDENT AND COGENT EVIDENCE TO CORROBORATE THE STATEMENT. 9.2.13 THEREFORE, IN LIGHT OF THE DETAILED DISCUSSI ON IN THE PRECEDING PARAGRAPHS, THE STATEMENTS RELIED UPON BY THE A.O. CANNOT BE SAID TO HAVE PROVIDED SUFFICIENT EVIDENCE OF ON-MONEY TRANSACTIO NS WITH REGARD TO THE APPELLANT COMPANY. AS DISCUSSED EARLIER, THE SINGLE SHEET OF PAPER ON WHICH THE AO HAS PLACED RELIANCE ALSO DOES NOT REFL ECT THE NAME OF THE APPELLANT OR ITS PROJECT. THUS ON THE FACTS OF THE INSTANT CASE AND AFTER DUE CONSIDERATION OF THE JUDICIAL PRONOUNCEMENTS CITED ABOVE, THE ADDITION OF ON MONEY OF RS.3,90,53,280/- IS DELETED AND THE GRO UNDS RAISED BY THE APPELLANT ARE ALLOWED. 10. AGGRIEVED BY THE ORDER OF LD.CIT(A), THE REVENU E IS IN APPEAL BEFORE US. 11. THE LD.DR SUBMITTED THAT THE LD.CIT(A) WAS ERRE D IN DELETING THE ADDITION OF ON-MONEY RECEIVED ON SALE OF FLATS BY R ELYING ON THE DECISION OF ITAT, AMRITSAR BENCH IN THE CASE OF ACIT VS JANAKRA J CHAUHAN AND THE DECISION 18 ITAS 4030-4032 & 4029 & 4027/MUM/2016 OF JODHPUR BENCH IN THE CASE OF MAHESHWARI INDUSTRI ES VS ACIT 148 TAXMAN 74 WITHOUT APPRECIATING THE FACTS THAT THE ADDITION WA S MADE ON THE BASIS OF STATEMENT OF THE DIRECTOR, SHRI HARESH M MEHTA AND THREE KEY EMPLOYEES OF THE GROUP DURING THE COURSE OF SEARCH. THE LD.CIT( A) FURTHER FAILED TO APPRECIATE THAT ROHAN GROUP HAD BEEN SEARCHED EARLI ER TOO, ON 10-08-2010 AND DURING THE COURSE IT WAS FOUND THAT, THE SAME M S CHAULA JOSHI HAD ADMITTED TO THE FACT THAT THE GROUP EXECUTED SALE D EED BY ACCEPTING ON-MONEY IN CASH WHICH WAS OVER AND ABOVE THE AGREEMENT PRIC E. THE LD.DR FURTHER SUBMITTED THAT THE AO HAS BROUGHT OUT CLEAR FACTS T O THE EFFECT THAT THERE ARE CERTAIN INCRIMINATING MATERIAL FOUND DURING THE COU RSE OF SEARCH THROW LIGHT ON THE MODUS OPERANDI OF THE ASSESSEE GROUP, AS PER WH ICH, THE ASSSESSEE GROUP WAS INDULGING IN RECEIPT OF ON-MONEY OVER AND ABOVE THE REGISTERED VALUE SHOWN IN THE DOCUMENTS. THIS FACT WAS FURTHER STRE NGTHENED BY THE STATEMENT OF DIRECTOR AND EMPLOYEES. THE LD.CIT(A) WITHOUT A PPRECIATING THESE FACTS, DELETED ADDITION MADE BY THE AO, THAT TOO, ON TECHN ICAL GROUNDS THAT THERE IS NO NEXUS BETWEEN INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH AND SATISFACTION OF THE AO OTHER THAN THE AO, WHO HAS C OMPLETED THE ASSESSMENT WITHOUT APPRECIATING THE FACT THAT THAT THERE IS A CLEAR NEXUS BETWEEN INCRIMINATING MATERIALS FOUND DURING THE COURSE OF SEARCH AND SATISFACTION AND HENCE, THE PROCEEDINGS U/S 153C HAS BEEN VALIDLY IN ITIATED. 19 ITAS 4030-4032 & 4029 & 4027/MUM/2016 12. THE LD.AR FOR THE ASSESSEE, ON THE OTHER HAND, SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF ITAT, MUMBAI BENCH IN THE CASE OF M/S SILVER ARCH BUILDER & PROMOTERS PVT LTD IN ITA NO.4024/MUM/2016 WHERE THE TRIBUNAL, AFTER CONS IDERING RELEVANT FACTS AND ALSO IN THE CONTEXT OF SAME SEARCH CONDUCTED ON ROHAN GROUP, CAME TO THE CONCLUSION THAT IN ABSENCE OF ANY INCRIMINATING MAT ERIAL FOUND AS A RESULT OF SEARCH, NO ADDITION COULD BE MADE IN ASSESSMENT U/S 153C OF THE ACT. THE LD.AR FURTHER SUBMITTED THAT THE TRIBUNAL HAS RIGHT LY APPRISED THE FACTS IN THE LIGHT OF DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS CONTINENTAL WAREHOUSING CORPORATION (NAVA SHEVA) LT D 374 ITR 645(BOM) WHERE IT WAS CATEGORICALLY HELD THAT NO ADDITION CO ULD BE MADE IN ASSESSMENT FRAMED U/S 153A / 153C IN ABSENCE OF INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH, IN UNABATED / CONCLUDED ASSESSMENTS. IN THIS CASE, THE ASSESSMENT FOR THE AY 2009-10 IS UNABATED AS ON THE DATE OF SE ARCH, BECAUSE THE SEARCH U/S 132 OF THE ACT WAS CARRIED OUT ON 26-05-2011 AN D BY THAT TIME THE ASSESSMENT FOR AY 2009-10 HAD BEEN COMPLETED U/S 14 3(3) ON 31-12-2009. INSOFAR AS ASSESSMENT YEARS 2010-11 AND 2011-12, BO TH THE ASSESSMENTS ARE UNABATED, BECAUSE THE ASSESSMENTS HAVE BEEN FRAMED U/S 153C ON THE BASIS OF NOTICE ISSUED U/S 153C DATED 28-03-2013. AS PER TH E PROVISO TO SECTION 153C, IN CASE OF SUCH OTHER PERSON, THE REFERENCE TO THE DATE OF INITIATION OF THE 20 ITAS 4030-4032 & 4029 & 4027/MUM/2016 SEARCH U/S 132 OR MAKING OF REQUISITION U/S 132A IN THE SECOND PROVISO TO SUB SECTION (1) OF SECTION 153A SHALL BE CONSTRUED AS R EFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS O R ASSETS SEIZED OR REQUISITIONED BY THE AO HAVING JURISDICTION OVER SU CH OTHER PERSON. IN THIS CASE, ON THE BASIS OF NOTICE ISSUED BY THE AO HAVIN G JURISDICTION OVER THE ASSESSEE U/S 153C ON 28-03-2013 DOES NOT SPECIFY AN YTHING ABOUT RECEIPT OF DOCUMENTS. THEREFORE, IN ABSENCE OF ANY SPECIFIC D ATE ON WHICH THE AO RECEIVED THE DOCUMENTS, THE ONLY CONCLUSION THAT CA N BE DRAWN IS THAT THE AO OF SUCH OTHER PERSON, OTHER THAN THE SEARCHED PERSO N HAS TAKEN OVER THE POSSESSION OF THE SEIZED DOCUMENT ON THE DATE ON WH ICH NOTICE U/S 153C HAD BEEN ISSUED, I.E. ON 28-03-2013. IF, SAID DATE IS CONSIDERED AS THE DATE OF SEARCH, AS PER THE PROVISO PROVIDED U/S 153C, THEN THE ASSESSMENT FOR AYS 2010-11 AND 2011-12 ARE UNABATED, BECAUSE THE TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) WAS EXPIRED ON 30-09-201,1 WHEREAS THE A O HAS RECEIVED BOOKS OF ACCOUNT AND OTHER MATERIALS ON 28-03-2013. THEREFO RE, THE ASSESSMENTS FOR AYS 2010-11 2011-12 ARE UNABATED, CONSEQUENTLY, ADD ITION COULD NOT BE MADE IN ABSENCE OF ANY INCRIMINATING MATERIALS. IN THIS REGARD, HE RELIED UPON THE DECISION OF ITAT, DELHI BENCH IN THE CASE OF ACIT V S INLAY MARKETING PVT LTD (2015) 167 TTJ (DEL) 273. THE LD.AR FURTHER SUBMIT TED THAT EVEN ASSUMING FOR A MOMENT, THE ASSESSMENTS FOR AYS 2010-11 AND 2011- 12 ARE ABATED, IF THE 21 ITAS 4030-4032 & 4029 & 4027/MUM/2016 DATE OF SEARCH IS CONSIDERED, THEN THE WHOLE PROCEE DINGS INITIATED U/S 153C IS NULL AND VOID, BECAUSE THE CONDITION PRECEDENT FOR ISSUE OF NOTICE U/S 153C IS THAT THE SEIZED DOCUMENT MUST BELONG TO THE THIRD P ARTY, BUT THERE IS NOTHING ON RECORD TO INDICATE THAT THERE WAS ANY REFERENCE TO SEIZED MATERIAL IN THE SATISFACTION RECORDED BY THE AO AND HENCE, THE ENTI RE PROCEEDINGS TAKEN U/S 153C BECOMES NULL AND VOID. IN THIS REGARD, HE REL IED UPON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS ARP IT LAND PVT LTD (2017) 393 ITR 276 (BOM). HE ALSO RELIED UPON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF ARN INFRASTRUCTURE INDIA LTD VS ACIT (2 017) 394 ITR 569 (DEL). 13. INSOFAR AS ADDITION MADE TOWARDS ESTIMATION OF N-MONEY, THE LD.AR SUBMITTED THAT THERE IS NO IOTA OF EVIDENCE WITH TH E AO TO INDICATE THAT THE ASSESSEE IS INDULGING IN COLLECTION OF ON-MONEY OVE R AND ABOVE WHATEVER STATED IN REGISTERED DOCUMENTS TOWARDS SALE OF FLAT S. THOUGH, THE AO HAS REFERRED TO PAGE 114 OF ANNEXURE A-1, BUT ON PERUSA L OF THE SAID DOCUMENT IT IS VERY CLEAR THAT NEITHER THE ASSESSEES NAME IS MENT IONED IN SAID DOCUMENT NOR THE PROJECT UNDERTAKEN BY THE ASSESSEE. IN FACT, S AID DOCUMENT PERTAINS TO OTHER GROUP COMPANIES AND PROJECTS EXECUTED BY THEM . THEREFORE, THE SAME CANNOT BE CONSIDERED AS INCRIMINATING MATERIAL, WHI CH THROW LIGHT ON RECEIPT OF ON-MONEY IN THE CASE OF ASSESSEE. THE LD.AR FURTHE R SUBMITTED THAT ALTHOUGH THE AO HAS TAKEN NOTE OF STATEMENT RECORDED FROM DI RECTOR AND OTHER KEY 22 ITAS 4030-4032 & 4029 & 4027/MUM/2016 EMPLOYEES OF GROUP, BUT NONE OF THEM TOOK THE NAME OF THE ASSESSEE IN THE STATEMENT RECORDED U/S 132(4) NOR DID ANY REFERENCE TO SEIZED MATERIAL FIND AS A RESULT OF SEARCH. FURTHER, THE ASSESSEE HAS FILE D RETRACTION STATEMENT FILED BY THEM ALONGWITH THEIR AFFIDAVITS, WHERE THEY HAVE CA TEGORICALLY DENIED OF HAVING RECEIVED ON-MONEY BY THE ASSESSEE AND ALSO EXPLAINE D UNDER WHAT CIRCUMSTANCE THEY WERE COMPELLED TO GIVE ADMISSION OF RECEIPT OF ON-MONEY. THEREFORE, IN ABSENCE OF ANY MATERIAL FOUND AS A RE SULT OF SEARCH, MAKING ESTIMATION TOWARDS RECEIPT OF ON-MONEY, MORE PARTIC ULARLY ON ADHOC BASIS BY EXTRAPOLATION OF DOCUMENTS FOUND IN SOME OTHER CASE S, IS ARBITRARY AND INCORRECT. THE LD.CIT(A), AFTER CONSIDERING RELEVA NT FACTS HAS RIGHTLY DELETED ADDITION MADE BY THE AO TOWARDS ESTIMATION OF ON-MO NEY AND HIS ORDER SHOULD BE UPHELD. 14. WE HAVE HEARD BOTH THE PARTIES, PERUSED MATERIA LS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW, A LONG WITH CASE LAWS CITED BY THE LD.AR FOR THE ASSESSEE. THE SOLITARY ISSUE THAT NEEDS TO BE RESOLVED IN THIS BUNCH OF APPEAL IS ADDITION MADE BY THE AO TOW ARDS ON-MONEY IN CASH ON SALE OF FLATS. THE AO HAS ESTIMATED 30% ON TOTAL S ALES DECLARED BY THE ASSESSEE FOR THE RELEVANT FINANCIAL YEAR TOWARDS RECEIPT OF ON-MONEY IN CASH OVER AND ABOVE NORMAL SALES DECLARED IN THE BOOKS OF ACCOUNT ON THE BASIS OF STATEMENT RECORDED FROM SHRI HARESH M MEHTA, DIRECTOR OF M/S ROHAN DEVELOPERS PVT LTD 23 ITAS 4030-4032 & 4029 & 4027/MUM/2016 AT THE TIME OF SEARCH U/S 132(4) OF THE ACT. THE A O HAD ALSO TAKEN SUPPORT FROM STATEMENT OF CERTAIN KEY EMPLOYEES, WHO LOOKED AFTER DAY TODAY AFFAIRS OF THE ASSESSEE GROUP. ACCORDING TO THE AO, THE CO NTENTION OF THE ASSESSEE CANNOT BE ACCEPTED THAT THERE IS NO EVIDENCE TO EST ABLISH THAT ON-MONEY IS RECEIVED IN RESPECT OF ITS PROJECTS, BECAUSE THE ST ATEMENT OF DIRECTOR AND OTHER EMPLOYEES THREW LIGHT ON THE MODUS OPERANDI OF THE ASSESSEE GROUP, AS PER WHICH, THE GROUP WAS INDULGING IN RECEIPT OF ON-MON EY ON SALES WHICH IS 30% OVER AND ABOVE THE NORMAL SALES PRICE DECLARED IN T HE REGISTERED DOCUMENT. THE AO, FURTHER, OBSERVED THAT THIS FACT IS FURTHER STRENGTHENED BY ENORMOUS MATERIAL FOUND DURING THE COURSE OF SEARCH, INCLUDI NG CASH SEIZED FROM PREMISES OF THE GROUP AND OTHER ASSETS. THE ASSESS EE HAD ALSO ADMITTED RS.100 CRORE UNDISCLOSED INCOME IN VARIOUS GROUP CO MPANIES NAME ON THE BASIS OF INCRIMINATING MATERIAL FOUND AS A RESULT O F SEARCH AND ALSO TO COVER UP ANY ERRORS / OMISSIONS / DISCREPANCIES, ETC. THERE ARE CERTAIN SPECIFIED SEIZED MATERIALS, WHICH CLEARLY INDICATED UNDISCLOSED INCO ME. THEREFORE, HE CAME TO THE CONCLUSION THAT THERE IS NO MERIT IN THE ARGUME NTS OF THE ASSESSEE THAT THERE IS NO EVIDENCE TO ESTABLISH RECEIPT OF ON-MON EY. THE AO FURTHER OBSERVED THAT WHEN THE MATERIAL GATHERED DURING THE COURSE OF SEARCH COUPLED WITH STATEMENT OF DIRECTORS CLEARLY ESTABLISHED THE FACT OF RECEIPT OF ON-MONEY, IT IS VERY ESSENTIAL TO INFER THAT THE GROUP AS A W HOLE WAS INDULGING IN THIS KIND 24 ITAS 4030-4032 & 4029 & 4027/MUM/2016 OF MODUS OPERANDI AND ACCORDINGLY HE ESTIMATED 30% ON TOTAL SALES DECLARED FOR THE YEAR TOWARDS ON-MONEY RECEIPT AND MADE ADDI TION TO THE TOTAL INCOME. 15. THE FACTS WITH REGARD TO DECLARATION OF UNDISCL OSED INCOME IN VARIOUS GROUP COMPANIES NAMES TOWARDS OMISSIONS / ERRORS, E TC. ARE NOT DISPUTED. IT IS ALSO NOT IN DISPUTE THAT DURING THE COURSE OF SEARC H CASH AND OTHER UNACCOUNTED INCOME PERTAINING TO THE GROUP WAS FOUN D AND SEIZED. BUT, THE AO, NOWHERE IN HIS ASSESSMENT ORDER, HAD BROUGHT OU T FACTS TO THE EFFECT THAT THE SEIZED MATERIAL FOUND DURING THE COURSE OF SEAR CH HAS A DIRECT NEXUS WITH THE ASSESSEE AND ITS PROJECT CARRIED OUT DURING THE YEAR UNDER CONSIDERATION. ALTHOUGH, THE AO HAS REFERRED TO THE SEIZED MATERIA L PAGE 114 OF ANNEXURE A- 1, TO ARGUE THAT THERE ARE SEIZED MATERIALS, WHICH INDICATED COLLECTION OF ON- MONEY FROM SALE OF FLATS, BUT THE ASSESSEE HAS REBU TTED THE ALLEGATION OF THE AO WITH NECESSARY EVIDENCE AND ALSO PROVED THAT SEI ZED MATERIAL PAGE 114 OF ANNEXURE A-1 IS NOTHING TO DO WITH BUSINESS ACTIVIT Y OF THE ASSESSEE AND ITS PROJECT UNDERTAKEN DURING THE YEAR. INSOFAR AS SEI ZURE OF CASH DURING THE COURSE OF SEARCH AT NO.112 122, HIRA BHAVAN, RAJA RAM MOHAN ROY ROAD, PRARTHANA SAMAJ, MUMBAI, THE ASSESSEE MADE IT CLEAR THAT SAID AMOUNT HAS BEEN SEIZED FROM THE RESIDENCE OF SHRI JITENDRA MEH TA, DIRECTOR AND THIS FACT HAS BEEN REFLECTED IN THE PANCHANAMA DRAWN DURING T HE COURSE OF SEARCH AND ALSO THE SAME HAS BEEN DISCLOSED TO TAX IN HIS INDI VIDUAL CAPACITY. AS REGARDS 25 ITAS 4030-4032 & 4029 & 4027/MUM/2016 STATEMENT OF DIRECTOR, SHRI HARESH M MEHTA AND OTHE R EMPLOYEES OF THE GROUP, THE ASSESSEE HAS FILED RETRACTION STATEMENTS ALONGW ITH AFFIDAVITS FILED BY THEM BEFORE THE AO AND ALSO EXPLAINED UNDER WHAT CIRCUMS TANCE THEY HAVE GIVEN ADMISSION IN THE STATEMENT RECORDED U/S 132(4) OF T HE ACT. THE ASSESSEE ALSO MADE IT CLEAR THAT NEITHER SHRI HARESH M MEHTA, DIR ECTOR, NOR THE EMPLOYEES FROM WHOM STATEMENTS WERE RECORDED U/S 132(4) WERE EVER AUTHORISED TO CONCLUDE SALES IN RESPECT OF ITS PROJECTS. THEREFO RE, ON THE BASIS OF THEIR STATEMENTS RECORDED DURING THE COURSE OF SEARCH, NO ADVERSE INFERENCE COULD BE DRAWN AGAINST THE ASSESSEE REGARDING RECEIPT OF ON-MONEY BY EXTRAPOLATION OF SEIZED MATERIAL FOUND DURING THE COURSE OF SEARC H WHICH BELONGED TO SOME OTHER CONCERNS. 16. HAVING DELIBERATED AT LENGTH ON THE ARGUMENTS O F BOTH SIDES, WE FIND THAT ALTHOUGH THE AO HAS TRIED TO ESTABLISH NEXUS B ETWEEN INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND OTHE R UNDISCLOSED ASSET TO THE ASSESSEE, BUT HE HAS FAILED TO PROVE THE NEXUS BETW EEN SEIZED MATERIALS AND BUSINESS ACTIVITY OF THE ASSESSEE AND ALSO RECEIPT OF ON-MONEY. UNLESS, THE AO HAS BROUGHT OUT SOME COGENT MATERIALS OR EVIDENCES WHICH ESTABLISH RECEIPT OF ON-MONEY FROM SALE OF FLATS, NO ADDITION COULD BE M ADE, THAT TOO, ON ADHOC ESTIMATION OF ON-MONEY ON THE BASIS OF REGULAR SALE S DECLARED BY THE ASSESSEE. WE FURTHER NOTE THAT ALTHOUGH THE AO HAS PLACED HIS RELIANCE ON THE STATEMENT 26 ITAS 4030-4032 & 4029 & 4027/MUM/2016 OF MR. HARESH M MEHTA RECORDED ON 05-06-2011, BUT O N PERUSAL OF AFFIDAVIT OF SHRI HARESH M MEHTA DATED 11-02-2014, IT IS SEEN TH AT REFERENCE TO ON-MONEY IS MADE BY SHRI HARESH M MEHTA ONLY IN THE ANSWER T O QUESTION NO.12 AND THAT SUCH REFERENCE IS GENERAL INASMUCH AS SHRI HARESH M MEHTA STATED THAT HE LOOKED AFTER PROJECT CLEARANCE AND TENANT ASSOCIATI ON MATTER AND THAT THESE AREAS REQUIRED LOT OF CASH WHICH WAS SPENT THROUGH ON-MONEY TAKEN IN CASH ON SALE OF FLATS. EVEN IN RESPECT OF STATEMENTS OF EM PLOYEES OF GROUP, NOWHERE THEY HAVE SPECIFICALLY ATTRIBUTE THE NAME OF THE AS SESSEE WITH REFERENCE TO RECEIPT OF ON-MONEY WHILE ANSWERING QUESTIONS TO ST ATEMENT RECORDED DURING THE COURSE OF SEARCH. ALL ALONG THE DIRECTOR AS WE LL AS THE EMPLOYEES MADE A GENERAL STATEMENT ABOUT RECEIPT OF ON-MONEY WITH RE FERENCE TO A QUESTION POSED BY THE INVESTIGATION WING WITHOUT ANY REFEREN CE TO PARTICULAR SEIZED MATERIAL FOUND AS A RESULT OF SEARCH. SIMILARLY, T HE AO HAS TAKEN CIRCUMSTANTIAL EVIDENCE OF CASH AND UNEXPLAINED JEWELLERY FOUND DU RING THE COURSE OF SEARCH TO ARGUE THAT THE ASSESSEE IS IN THE HABIT OF SUPPR ESSION OF SALES BY SHOWING UNDER VALUATION WHICH WAS USED IN ITS BUSINESS, BUT ON PERUSAL OF CASH AND OTHER ASSETS FOUND DURING THE COURSE OF SEARCH IT W AS VERY CLEAR THAT THE CASH WAS FOUND FROM 112-122, HIRA BHAVAN, RAJARAM MOHAN ROY ROAD, PRARTHANA SAMAJ, MUMBAI, WHICH WAS COMMON PREMISES FOR FOUR E NTITIES OF THE ASSESSEE GROUP AND THAT THE TOTAL CASH FOUND FROM VARIOUS PR EMISES WAS ALMOST 27 ITAS 4030-4032 & 4029 & 4027/MUM/2016 EQUIVALENT TO CASH BALANCE MAINTAINED IN THE BOOKS OF ACCOUNT. ALTHOUGH, THERE IS A DIFFERENCE OF CASH BALANCE OF RS.25,86,6 87, THE SAME HAS BEEN OFFERED TO TAX IN THE HANDS OF DIRECTORS AND ALSO M/S ROHAN DEVELOPERS PVT LTD. NEITHER THE PANCHANAMA DRAWN DURING THE COURS E OF SEARCH NOR THE STATEMENT RECORDED DURING SEARCH INDICATED THAT CAS H AND OTHER UNACCOUNTED ASSETS FOUND DURING THE COURSE OF SEARCH BELONGED T O THE ASSESSEE. THE LD.AO HAS EVEN FAILED TO ESTABLISH NEXUS BETWEEN INCRIMIN ATING MATERIALS FOUND DURING THE COURSE OF SEARCH TO THE BUSINESS OF THE ASSESSEE. UNLESS THERE IS A DIRECT NEXUS BETWEEN INCRIMINATING MATERIAL FOUND D URING THE COURSE OF SEARCH COUPLED WITH STATEMENT RECORDED FROM THE DIRECTOR A ND EMPLOYEES OF THE GROUP, MERELY ON THE BASIS OF ADMISSION OF CERTAIN PARTIES, THAT TOO, AFTER RETRACTION OF SUCH STATEMENTS BY THE PARTIES, ADDIT ION CANNOT BE MADE TOWARDS RECEIPT OF ON-MONEY ON ADHOC BASIS TAKING A CLUE FR OM STATEMENT OF THOSE PERSONS. NO DOUBT, ESTIMATION IS POSSIBLE IN ASSES SMENT PROCEEDINGS PROVIDED THE AO IS HAVING SUFFICIENT INFORMATION WITH HIM RE GARDING SUPPRESSION OF SALES OR RECEIPT OF ON-MONEY. IN A CASE, WHERE THE DEPAR TMENT IS IN POSSESSION OF MATERIAL REGARDING SUPPRESSION OF SALES OR RECEIPT OF ON-MONEY FOR PART OF A PERIOD, THEN FOR THE REMAINING PERIOD, THE AO MAY G O FOR ESTIMATION BY TAKING INTO ACCOUNT VARIOUS PARAMETERS INCLUDING CERTAIN D EGREE OF ESTIMATION. BUT, THEN THIS CANNOT BE EXTENDED OR ENLARGED TO THE EXT ENT OF EXTRAPOLATION OF 28 ITAS 4030-4032 & 4029 & 4027/MUM/2016 INFORMATION TO ANOTHER ASSESSEE, THOUGH THE SAME BE LONGS TO ONE GROUP, UNLESS THERE IS SPECIFIC MATERIAL IN THE POSSESSION OF THE AO WITH REGARD TO SUPPRESSION OF SALES OR RECEIPT OF ON-MONEY. FURTH ER, STATEMENT RECORDED DURING THE COURSE OF SEARCH INCLUDING CONFESSION MA Y BE A BEST PIECE OF EVIDENCE, BUT THAT BY ITSELF WOULD NOT BE CONCLUSIV E EVIDENCE UNLESS SUCH STATEMENT IS FURTHER SUPPORTED BY EVIDENCE IN THE F ORM OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. THE AO BEFORE ESTIMATING INCOME HAS TO BRING ON RECORD SOME COGENT MATERIALS TO JUS TIFY HIS ACTION. IN THIS CASE, ON PERUSAL OF FACTS AVAILABLE ON RECORD, IT IS ABUN DANTLY CLEAR THAT NOWHERE THE AO LINKED THE SEIZED MATERIAL FOUND DURING THE COUR SE OF SEARCH TO THE INCOME ESTIMATED TOWARDS ON-MONEY RECEIVED FROM SALE OF FL ATS. WHILE IT IS TRUE THAT RETRACTION BY ITSELF DOES NOT PROVIDE AN IMPENETRAB LE SHEILD TO THE CONCERNED PERSON, BUT IT IS ALSO EQUALLY TRUE THAT A STATEMEN T PER SE BY ITSELF IS NOT CONCLUSIVE EVIDENCE. THIS LEGAL PROPOSITION IS FOR TIFIED BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS S KADER KHAN SONS (2013) 352 ITR 480(SC) WHERE IT WAS CATEGORICALLY HELD THAT ADMISS ION IS A BEST PIECE OF EVIDENCE, BUT THAT BY ITSELF IS NOT A CONCLUSIVE EV IDENCE UNLESS IT IS SUPPORTED BY FURTHER EVIDENCE IN THE FORM OF INCRIMINATING MA TERIALS. THIS LEGAL PROPOSITION IS FURTHER FORTIFIED BY THE DECISION OF ITAT, AMRITSAR BENCH IN THE CASE OF ACIT VS JANAKRAJ CHAUHAN (SUPRA) WHERE IT W AS HELD THAT ADMISSION AT 29 ITAS 4030-4032 & 4029 & 4027/MUM/2016 THE TIME OF SEARCH IS IMPORTANT, BUT NOT CONCLUSIVE . THE TRIBUNAL FURTHER HELD THAT ADDITION SHOULD BE CONSIDERED ON MERITS, RATHE R THAN ON THE BASIS OF SWORN STATEMENT MADE BY THE ASSESSEE. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS UTTAMCHAND JAIN (SUPRA) HAD CONS IDERED THE ADMISSION AND SUBSEQUENT RETRACTION OF THE ASSESSEE AND HELD THAT A RETRACTED CONFESSION CAN BE RELIED UPON ONLY IF THERE IS INDEPENDENT AND COG ENT EVIDENCE TO CORROBORATE THE STATEMENT. IN THIS CASE, THE AO HAS FAILED TO B RING ANY CORROBORATIVE EVIDENCE TO SUPPORT THE STATEMENT OF DIRECTORS AS W ELL AS EMPLOYEES IN ORDER TO SUPPORT HIS ACTION OF ESTIMATION OF ON-MONEY ON SALES DECLARED BY THE ASSESSEE FOR THE RELEVANT FINANCIAL YEARS. THEREFO RE, WE ARE OF THE CONSIDERED VIEW THAT THE AO WAS ERRED IN ESTIMATING ADHOC ON-M ONEY RECEIVED FROM SALE OF FLATS ON THE BASIS OF STATEMENT OF SOME EMPLOYEE S EVEN AFTER SUCH STATEMENT HAS BEEN RETRACTED AND ALSO NOTHING ON RE CORD TO INDICATE THAT THE ASSESSEE IS IN RECEIPT OF ON-MONEY. 17. COMING TO THE LEGAL ARGUMENT TAKEN BY THE ASSES SEE IN THE LIGHT OF CERTAIN JUDICIAL PRECEDENT, INCLUDING THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CONTINENTAL WAREHOUSING CORPOR ATION (NAVA SHEVA) VS CIT (SUPRA). NO DOUBT, IF WE CONSIDER THE DATE OF SEAR CH, I.E. ON 26-05-2011, THE ASSESSMENT FOR AY 2009-10 IS UNABATED, BECAUSE THE ASSESSMENT FOR THE IMPUGNED ASSESSMENT IS COMPLETED U/S 143(3) ON 31-1 2-2009 AND FURTHER, NO 30 ITAS 4030-4032 & 4029 & 4027/MUM/2016 PROCEEDINGS OF WHATSOEVER WAS PENDING AS ON THE DAT E OF SEARCH. THIS FACT HAS BEEN CATEGORICALLY ACCEPTED BY THE LOWER AUTHORITIE S. THEREFORE, ONCE AN ASSESSMENT IS UNABATED AS ON THE DATE OF SEARCH, IT IS A SETTLED LAW THAT NO ADDITION CAN BE MADE IN ABSENCE OF ANY INCRIMINATIN G MATERIAL FOUND AS A RESULT OF SEARCH. THIS LEGAL POSITION IS CONSIDERE D BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CONTINENTAL WAREHOUSING CORPOR ATION (NAVA SHEVA) LTD VS CIT (SUPRA), WHERE IT WAS HELD THAT IN ABSENCE OF A NY SEIZED MATERIAL, NO ADDITION CAN BE MADE IN RESPECT OF UNABATED ASSESSM ENT WHICH BECOMES FINAL AS ON THE DATE OF SEARCH. THIS LEGAL PROPOSITION I S FURTHER SUPPORTED BY THE DECISION OF THE DIVISION BENCH OF HONBLE BOMBAY HI GH COURT IN THE CASE OF MURLI AGRO PRODUCTS LTD 2014) 49 TAXMAN.COM 172. F URTHER, THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS KABUL CHAWLA (2016 ) 380 ITR 573 (DEL) HAS CONSIDERED AN IDENTICAL ISSUE AND HELD THAT UNLESS THERE IS AN INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH, NO ADDITION C OULD BE MADE IN RESPECT OF ASSESSMENTS THAT HAVE BECOME UNABATED / CONCLUDED A S ON THE DATE OF SEARCH. IN THIS CASE, THERE IS NO DOUBT OF WHATSOEVER WITH REGARD TO THE REFERENCE OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH TO ADDITION MADE BY THE AO WITH REGARD TO THE ESTIMATION OF 30% ON-MONE Y ON TOTAL SALES DECLARED BY THE ASSESSEE. THEREFORE, WE ARE OF THE CONSIDER ED VIEW THAT EVEN ON THIS COUNT, THE ADDITION MADE BY THE AO TOWARDS ESTIMATI ON OF ON-MONEY FOR AY 31 ITAS 4030-4032 & 4029 & 4027/MUM/2016 2009-10 CANNOT BE SUSTAINED. INSOFAR AS ASSESSMENT YEARS 2010-11 AND 2011- 12, THE ASSESSMENTS FOR THESE ASSESSMENT YEARS HAVE BEEN COMPLETED U/S 153C OF THE INCOME-TAX ACT, 1961. THE AO HAS ISSUED NOT ICE U/S 153C ON 28-03- 2013. THE PROVISO PROVIDED TO SECTION 153C STATES THAT IN CASE OF SUCH OTHER PERSON, THE REFERENCE TO THE DATE OF INITIATION OF THE SEARCH U/S 132 OR MAKING OF REQUISITION U/S 132 IN THE SECOND PROVISO TO SUB SECTION (1) OF SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECE IVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSET SEIZED BY THE AO HAVING JURIS DICTION OVER SUCH OTHER PERSON. THE ARGUMENTS OF THE LD.AR FOR THE ASSESSE E IS THAT IN ABSENCE OF ANY SPECIFIC DATE ON WHICH THE ASSET OR OTHER BOOKS OF ACCOUNT REQUISITIONED BY THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON, THEN ONLY CONCLUSION THAT CAN BE DRAWN IS THAT THE AO OF SUCH OTHER PERSON OTHER THA N SEARCHED HAS TAKEN OVER THE POSSESSION OF THE SEIZED DOCUMENT ON THE DATE O N WHICH HE RECORDED HIS SATISFACTION AS REQUIRED U/S 153C OR THE DATE ON WH ICH NOTICE U/S 153C HAS BEEN SERVED ON THE ASSESSEE. WE FIND THAT IF THE DA TE OF SEARCH IS CONSIDERED, THEN ASSESSMENT FOR AY 2010-11 AND 2011-12 ARE ABAT ED, BECAUSE THE DUE DATE FOR ISSUE OF NOTICE U/S 143(2) IS EXPIRES ON 3 0-09-2012 WHICH AFTER THE DATE OF SEARCH. IF YOU CONSIDER DATE OF ISSUE OF NO TICE U/S 153C, I.E. 28-3-2013, THEN ASSESSMENT FOR AY 2010-11 AND 2011-12 ARE UNAB ATED, BECAUSE THE DUE DATE OF ISSUE OF NOTICE U/S 153C WAS EXPIRED ON 30- 09-2012 WHICH BEFORE THE 32 ITAS 4030-4032 & 4029 & 4027/MUM/2016 DATE OF SEARCH. BUT, IN THIS CASE, THERE IS NO CLAR ITY WITH REGARD TO DATE OF RECEIPT OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUME NTS OR ASSET SEIZED BY THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON. IN A BSENCE OF SUCH DATE, NO PRESUMPTION AS TO DATE OF ISSUE OF NOTICE U/S 153C CANNOT BE CONSIDERED AS DATE OF RECEIPT OF ASSETS AND BOOKS BY THE AO HAVIN G JURISDICTION OVER PERSON OTHER THAN THE PERSON SEARCHED, EVEN THOUGH THE COO RDINATE BENCH OF ITAT, DELHI HAS RESORTED TO DEEMING CONCLUSION. BUT, FACT REMAINS THAT, ASSUMING FOR A MOMENT, THE ASSESSMENT FOR AY 2010-11 AND 2011-12 ARE ABATED, STILL THE PRIMARY PRECONDITION FOR INITIATION OF PROCEEDINGS U/S 153C REMAINS APPLICABLE AND THAT PRECONDITION OF SEIZURE OR REQUISITION OF MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT BELONGING TO THE ASSESSEE, OTHER THAN THE PERSON IS ESSENTIAL BEFORE INITIATIO N OF PROCEEDINGS U/S 153C OF THE ACT. IN THIS CASE, THERE WAS NOTHING ON RECORD TO INDICATE THAT THE AO WAS IN POSSESSION OF ANY MONEY, BULLION, JEWELLERY OR OTHE R VALUABLE ARTICLE WHICH WAS FOUND AND SEIZED DURING THE COURSE OF SEARCH. THER EFORE, IN TERMS OF SECTION 153C OF THE ACT, THE PROCEEDINGS U/S 153C COULD BE INITIATED AGAINST A PARTY ONLY IF THE DOCUMENT SEIZED DURING THE SEARCH AND S EIZURE PROCEEDINGS OF ANOTHER PERSON BELONGING TO THE ASSESSEE CONCERNED. THE REQUIREMENT OF SECTION 153C COULD NOT HAVE BEEN IGNORED. THE DEPA RTMENT HAD TO STRICTLY COMPLY WITH SECTION 153C. UNLESS, THE AO HAS ARRIV ED AT A SATISFACTION WITH 33 ITAS 4030-4032 & 4029 & 4027/MUM/2016 REFERENCE TO MATERIAL FOUND DURING THE COURSE OF SE ARCH AND NON SATISFACTION OF THE CONDITION PRECEDENT QUA SEIZED MATERIAL BELONGI NG THIRD PARTY WAS A JURISDICTION ISSUE AND NON SATISFACTION THEREOF WOU LD MAKE THE ENTIRE PROCEEDINGS TAKEN THEREUNDER NULL AND VOID. THIS L EGAL PROPOSITION IS FORTIFIED BY THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. ARPIT LAND PVT LTD (SUPRA), WHERE IT WAS CATEGORICALLY HELD T HAT NON SATISFACTION OF THE CONDITION PRECEDENT WITH SEIZED DOCUMENT MUST BELON G TO THE THIRD PARTY WAS A JURISDICTIONAL ISSUE AND NON SATISFACTION THEREOF MADE THE ENTIRE PROCEEDINGS TAKEN THEREUNDER NULL AND VOID. THE HONBLE SUPREM E COURT HAS DISMISSED SLP FILED BY THE DEPARTMENT AGAINST THE DECISION OF HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS ARPIT LAND PVT LTD (SUPRA) IN SL P (C) 1628/2018, WHERE THE HONBLE COURT UPHELD THE FINDINGS OF THE HONBLE BO MBAY HIGH COURT THAT THE CONDITION PRECEDENT FOR INVOCATION OF SECTION 153C IS THAT THE SEIZED MATERIAL / DOCUMENT MUST BELONG TO THIRD PARTY WAS A JURISDICT IONAL ISSUE AND FAILURE TO SATISFY IT MADE THE ENTIRE PROCEEDINGS TAKEN U/S 15 3C NULL AND VOID. THE HONBLE DELHI HIGH COURT IN THE CASE OF ARN INFRAST RUCTURE INDIA LTD VS ACIT (SUPRA) HAD CONSIDERED AN IDENTICAL ISSUE AND HELD THAT THE REQUIREMENT OF SECTION 153C OF THE ACT CANNOT BE IGNORED AT THE AL TAR OF SUSPICION. THE REVENUE HAS TO STRICTLY COMPLY WITH SECTION 153C OF THE ACT. NON SATISFACTION OF THE CONDITION PRECEDENT WHICH THE SEIZED DOCUMENT M UST BELONG TO THE 34 ITAS 4030-4032 & 4029 & 4027/MUM/2016 RESPONDENT ASSESSEE IS A JURISDICTIONAL ISSUE AND N ON SATISFACTION THEREOF WOULD MAKE THE ENTIRE PROCEEDINGS TAKEN THEREUNDER NULL A ND VOID. FURTHER, THE HONBLE SUPREME COURT IN THE CASE OF CIT VS SINGHAD TECHNICAL EDUCATION SOCIETY 397 ITR 344 (SC) HAS CONSIDERED AN IDENTICA L ISSUE AND HELD THAT WHERE INCRIMINATING MATERIAL WAS FOUND IN THE COURSE OF S EARCH, BUT WAS NOT RELATED TO THE CONCERNED YEARS AND HENCE, ADDITION FOR THOS E YEARS COULD NOT BE MADE IN THE ASSESSMENT ORDER PASSED U/S 153A OF THE ACT. 18. IN THIS CASE, IT IS ABUNDANTLY CLEAR THAT THERE IS NOTHING ON RECORD TO INDICATE THAT THERE IS A REFERENCE TO SEIZED MATERI AL FOUND DURING THE COURSE OF SEARCH VIS-A-VIS ADDITION MADE BY THE AO TOWARDS ES TIMATION OF 30% ON-MONEY ON TOTAL SALES DECLARED FOR THE YEAR. THE LD.CIT(A ), AFTER CONSIDERING ALL THESE ASPECTS, HAS RIGHTLY COME TO THE CONCLUSION THAT TH E ADDITION MADE BY THE AO CANNOT BE SUSTAINED EITHER ON JURISDICTIONAL ISSUE OR ON MERITS. HENCE, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO REASON TO I NTERFERE WITH THE FINDINGS OF THE LD.CIT(A) INSOFAR AS DELETION OF ADDITION MADE BY THE AO TOWARDS ESTIMATION OF ON-MONEY @30% ON SALES DECLARED BY TH E ASSESSEE FOR THE RELEVANT ASSESSMENT YEARS. HENCE, WE ARE INCLINED TO UPHOLD THE FINDINGS OF LD.CIT(A) AND DISMISS THE APPEAL FILED BY THE REVEN UE. 19. IN THE RESULT, APPEAL FILED BY THE REVENUE IN I TA. N0. 4030/MUM/2016 FOR AYS 2010-11, ITA NO. 4031/MUM/2016 FOR AY 2009- 10 AND ITA NO. 35 ITAS 4030-4032 & 4029 & 4027/MUM/2016 4032/MUM/2016 FOR AY 2011-12 IN CASE OF M/S SITARA BUILDERS PVT LTD ARE DISMISSED. ITA NOS 4027/MUM/2016 AND 4029/MUM/2016 20. THE FACTS AND ISSUES INVOLVED IN THESE TWO APPE ALS FILED BY THE REVENUE ARE IDENTICAL TO THE FACTS AND ISSUES WHICH WE HAVE ALREADY CONSIDERED IN ITA NOS.4030 TO 4032/MUM/2016 IN CASE OF SITARA BUILDER S PVT LTD. THE REVENUE HAS CHALLENGED ONLY ISSUE IN THESE TWO APPEALS IS D ELETION OF ADDITION MADE BY THE AO TOWARDS ESTIMATION OF ON-MONEY ON THE BASIS OF STATEMENT RECORDED FROM THE DIRECTOR AND OTHER EMPLOYEES OF THE ASSESS EE GROUP. WE HAVE ALREADY CONSIDERED AN IDENTICAL ISSUE IN ITA NOS.40 30 TO 4032/MUM/2016 IN CASE OF SITARA BUILDERS PVT LTD. THE REASONS GIVEN BY US IN PRECEDING PARAGRAPH SHALL MUTATIS MUTANDIS APPLY TO THESE APPEALS ALSO. THEREFORE, FOR THE DETAILED REASONS GIVEN BY US IN THE PRECEDING PARAGRAPHS, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO ERROR IN THE FINDINGS RECORDE D BY THE LD. CIT(A) WHILE DELETING ADDITION MADE BY THE AO TOWARDS ESTIMATION OF ON-MONEY @30% ON TOTAL SALES DECLARED FOR THE YEAR UNDER CONSIDERATI ON. HENCE, WE ARE INCLINED TO UPHOLD THE ORDER OF LD.CIT(A) AND DISMISS THE AP PEALS FILED BY THE REVENUE. 21. IN THE RESULT, APPEALS FILED BY THE REVENUE IN ITA NO. 4029/MUM/2016 FOR AY 2011-12 IN CASI E OF M/S PECCADALLY ESTATE PVT LTD AND ITA NO. 4027/MUM/2016 FOR AY 2011-12 IN CASE OF M/S MINDSET ESTATE PVT LTD ARE DISMISSED. 36 ITAS 4030-4032 & 4029 & 4027/MUM/2016 22. AS A RESULT, ALL THE APPEALS FILED BY THE REVEN UE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31- 05-2019. SD/- SD/- (RAVISH SOOD) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 31 ST MAY, 2019 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI