INCOME TAX OFFICER, WARD-2-2, JAIPUR V. M/S OM METAL REAL ESTATE PVT. LTD., JAIPUR

ITA 606/JPR/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6487 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 21-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA
• Assessee Lawyers: B V MAHESHWARI
• Keywords: Search and seizure; Document seized; Reason to believe; Documents seized; Reassessment proceedings
• Section: 143(3); 143(1); 147; 69; 148; 132

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 606/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 THE ITO, WARD-2(2), JAIPUR. CUKE VS. M/S OM METAL REAL ESTATE PVT. LTD., ROAD NO. 7, F-99-A, VKI AREA, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAACO9306J VIHYKFKHZ@ APPELL ANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI B.V. MAHESHWARI (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI VARINDER MEHTA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 25/10/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 17/01/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A), JAIPUR DATED 23.05.2017 FOR THE ASSESSMENT YEAR 2009-10 WHEREIN THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN DELETING THE AD DITION MADE U/S 69 ON ACCOUNT OF ON-MONEY PAYMENT OF RS. 9,25,00,00 0/-. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN NOT APPRECIATING TH E NOTING AT PAGE ITA NO. 606/JP/2017 ITO VS. M/S OM METAL REAL ESTATE PVT. LTD. 2 NO. 4 OF ANNEXURE A-1 SEIZED DURING SEARCH AND SEIZ URE ACTION CARRIED OUT IN SHIV VANI GROUP OF CASES AT THE RESI DENCE OF SH. RAMESH KUMAR SOMANI AT G-15/6, 2 ND FLOOR, MALVIYA NAGAR, NEW DELHI AND OFFICE OF SHIV VANI GROUP AT F-315, GROUN D FLOOR, LADO SARAI, NEW DELHI. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN NOT APPRECIATING TH E STATEMENT RECORDED BY INVESTIGATION WING, DELHI OF SHRI PADAM SINGHEE. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE COMPANY IS ONE OF THE SHAREHOLDERS AND HOLDS 25% EQUITY STAKE IN A NOTHER COMPANY BY NAME OF M/S OM METAL DEVELOPERS (P) LTD. M/S OM MET AL DEVELOPERS (P) LTD. HAD PURCHASED 10 ACRES OF LAND AT HYDERABA D. A SEARCH AND SEIZURE OPERATIONS WAS CONDUCTED IN THE CASE OF SHI V-VANI GROUP AT NEW DELHI U/S 132 OF THE ACT INCLUDING THE RESIDENC E OF SHRI RAMESH KUMAR SOMANI WHO IS ONE OF THE DIRECTORS IN ANOTHER SHAREHOLDER COMPANY OF M/S OM METAL DEVELOPERS (P) LTD. NAMELY, M/S METRO MANAGEMENT SERVICES (P) LTD. DURING THE COURSE OF S AID SEARCH, CERTAIN INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED RELAT ING TO PURCHASE OF LAND AT HYDERABAD BY M/S OM METAL DEVELOPERS (P) LT D. IT IS THE CASE OF THE REVENUE THAT AS PER SEIZED DOCUMENTS, 10 ACRE O F LAND WAS TO BE PURCHASED BY M/S OM METAL DEVELOPERS (P) LTD FOR A TOTAL CONSIDERATION OF RS. 55 CRORE INCLUDING EXPENSES TOWARDS BROKERAG E, REGISTRY AND OTHER EXPENSES AMOUNTING TO RS. 5 CRORE. SINCE THE SALE CONSIDERATION AS RECORDED IN THE SALE DEED EXECUTED BETWEEN THE S ELLERS AND M/S OM METAL DEVELOPERS (P) LTD AND REGISTERED WITH STAMP DUTY AUTHORITIES ON 23.04.2008 TALKS ABOUT SALE CONSIDERATION OF RS. 18 CRORE ONLY, THERE IS ON MONEY PAYMENT TO THE TUNE OF RS. 37 CRORE WHIC H IS PAID IN CASH ITA NO. 606/JP/2017 ITO VS. M/S OM METAL REAL ESTATE PVT. LTD. 3 OUTSIDE THE BOOKS OF ACCOUNTS AND THE SAID ON MONE Y PAYMENT HAS BEEN FUNDED BY THE SHAREHOLDERS OF M/S OM METAL DEV ELOPERS (P) LTD. THE ASSESSEE COMPANY BEING ONE OF THE SHAREHOLDER H AS THUS FUNDED THE ON-MONEY AMOUNTING TO RS. 9.25 CRORES TO THE EXTENT OF ITS SHAREHOLDING (25%) IN M/S OM METAL DEVELOPERS (P) L TD. 3. BASIS SUCH INFORMATION GATHERED DURING THE SEARC H AND BELIEF THAT INCOME TO THAT EXTENT HAS ESCAPED ASSESSMENT, THE A O INITIATED PROCEEDINGS U/S 147 OF THE ACT AND ISSUED NOTICE DA TED 10.04.2014 U/S 148 OF THE ACT. THE ASSESSING OFFICER REFERRED TO T HE SEIZED DOCUMENTS IN PARTICULARS PAGE 4 OF ANNEXURE A-1 AND COPY OF T HE AGREEMENT DATED 07.08.2006 AND HELD THAT THE ASSESSEE HAS MADE PAYM ENT OF RS. 9.25 CRORE ON ACCOUNT OF ON MONEY OF ITS 25% SHARES FO R PURCHASE OF LAND BY M/S OM METAL DEVELOPERS (P) LTD. DURING THE FINA NCIAL YEAR 2008-09 RELEVANT TO ASSESSMENT YEAR 2009-10 AND ADDITION TO WARDS UNDISCLOSED INVESTMENT OF RS. 9.25 CRORE WAS MADE TO THE TOTAL INCOME OF THE ASSESSEE U/S 69 OF THE ACT. 4. THE ASSESSING OFFICER WHILE MAKING THE SAID ADDI TION IN THE HANDS OF THE ASSESSEE COMPANY ALSO TOOK NOTE OF THE FACT THAT IN RESPECT OF ANOTHER SHAREHOLDER COMPANY NAMELY, M/S MAHESHWARI MEGA VENTURES LTD. WHICH WAS HOLDING 35% SHAREHOLDING IN M/S OM M ETAL DEVELOPERS (P) LTD. THE ITO, WARD-16(1), HYDERABAD HAS MADE SI MILAR ADDITION ON ACCOUNT OF ON MONEY PAYMENT IN RESPECT OF SAME TR ANSACTION TOWARDS PURCHASE OF THE AFORESAID LAND AT HYDERABAD BY M/S OM METAL DEVELOPERS (P) LTD WHILE PASSING THE ASSESSMENT ORD ER DATED 30.12.2011 U/S 143(3) OF THE ACT. ITA NO. 606/JP/2017 ITO VS. M/S OM METAL REAL ESTATE PVT. LTD. 4 5. THE ASSESSING OFFICER WHILE PASSING THE IMPUNGED ASSESSMENT ORDER ALSO TOOK NOTE OF THE CONTENTION OF THE ASSES SEE COMPANY THAT NO ADDITION HAS BEEN MADE BY THE CONCERNED ASSESSING O FFICER IN THE HANDS OF THE COMPANY WHICH HAS ACTUALLY PURCHASED THE LAN D I.E. M/S OM METAL DEVELOPERS (P) LTD. IN RESPECT OF SAID LAND T RANSACTION AND ALLEGED ON-MONEY PAYMENT. HOWEVER, THE SAID CONTENTION WAS REJECTED FOR THE REASON THAT THE ASSESSEE COMPANY HAS NOT FURNISHED COPY OF THE ASSESSMENT ORDER FOR A.Y. 2009-10 IN CASE OF M/S OM METAL DEVELOPERS (P) LTD. 6. BEFORE WE PROCEED TO THE FINDINGS OF THE LD. CIT (A) IN ASSESSEES OWN CASE, IT IS RELEVANT TO NOTE THE FACTS IN CASE OF M/S OM METAL DEVELOPERS (P) LTD. WHICH HAS ACTUALLY PURCHASED TH E LAND AT HYDERABAD AND HAS EXECUTED THE SALE DEED. IN THIS CASE, A NO TICE U/S 148 OF THE ACT WAS ISSUED BY DCIT 7(3)(1), MUMBAI ON 31.3.2016 TO M/S OM METAL DEVELOPERS (P) LTD. FOR A.Y. 2009-10 ON THE IDENTIC AL ISSUE OF ON MONEY PAYMENT TOWARDS PURCHASE OF LAND IN HYDERABA D. THE REASONS RECORDED FOR RE-OPENING THE ASSESSMENT PROCEEDINGS READ AS UNDER:- 1) IN THIS CASE, THE ASSESSEE FILED RETURN OF INCO ME FOR THE A.Y. 2009- 10 ON 30.09.2009 DECLARING TOTAL INCOME OF RS. 13,0 1,980/-. THE SAME WAS PROCESSED UNDER SECTION 143(1) OF THE I.T. ACT, 1961 ON 23.10.2010. IN THIS CASE, THERE IS NO SCRUTINY ASSE SSMENT FOR THE YEAR UNDER CONSIDERATION. 2) INFORMATION RECEIVED FROM INCOME TAX OFFICER, WA RD-2(2), JAIPUR, GATHERED/AVAILABLE IN THIS OFFICE. AS PER INFORMATI ON IT IS REVEALED THAT A SEARCH AND SEIZURE ACTION IN. CASE OF SHIV VANI GRO UP OF CASES WAS ITA NO. 606/JP/2017 ITO VS. M/S OM METAL REAL ESTATE PVT. LTD. 5 CONDUCTED ON 06.01.2011 BY THE INVESTIGATION WING, DELHI. DURING THE COURSE OF SEARCH AT THE RESIDENCE OF SHRI RAMESH KU MAR SOMANI (DIRECTOR OF M/S. METRO MANAGEMENT SERVICES PVT. LT D.) AT G-15/6, 2' FLOOR, MALVIYA NAGAR, NEW DELHI, AND OFFICE OF SHIV VANI GROUP AT F-315, GROUND FLOOR, LADO SARAI, NEW DELHI, SOME INCRIMINA TING DOCUMENTS WERE FOUND AND SEIZED. PAGE NO.135 TO 146 OF ANNEXU RE A-5 SEIZED FROM THE OFFICE OF SHIV VANI GROUP ARE THE AGREEMENT OF SALE MADE AND EXECUTED ON 07.08.2006 BY AND BETWEEN M/S. SUNITA P RASAD AND OTHERS (11 PARTIES AS VENDORS) AND M/S. OM METAL DEVELOPER S PVT. LTD.(VENDEE) FOR PURCHASE OF 20ACRES LAND AT HYDERABAD. OUT OF T HIS 20 ACRES LAND M/S. OM METAL DEVELOPERS PVT. LTD. HAS PURCHASED 10 ACRE S LAND FOR RS.20.3 CRORES AS RECORDED IN THE BOOKS OF ACCOUNTS AND SHO WN AS FIXED ASSET IN THE A.Y. 2009-10 I.E. ON 31.03.2009. AS PER NOTING WRITTEN ON PAGE 4 OF ANNEXURE A-1 SEI ZED FROM THE RESIDENCE OF SHRI R K. SOMANI AT G-15/6, 2ND FLOOR, MALVIYA NAGAR, NEW DELHI, 10 ACRES OF LAND AT HYDERABAD WAS PURCHASED BY M/S. OM METAL PVT. LTD. FOR RS.55 CRORES (INCLUDING EXPENSES) WHE REAS IN BALANCE SHEET, THE VALUE OF THIS 10 ACRES LAND HAS BEEN SHOWN AT O NLY RS.20.30 CRORES (INCLUDING OTHER EXPENSES). HOWEVER, AS PER REGISTE RED DEED DATED 12.02.2008 REGISTERED ON 23.04.2008, THE PROPERTIES SHOWN TO BE PURCHASED FOR RS.18 CRORES ONLY AND THE AMOUNT WAS GIVEN BY CHEQUE. AS PER NOTING WRITTEN ON PAGE IT IS CLEAR THAT 10 ACRE S OF LAND WAS PURCHASED FOR RS.55 CRORES AND AMOUNT OF RS.37 CRORES (55-18 CRORES) HAS BEEN PAID BY THE M/S. OM METAL DEVELOPERS PVT. LTD. IN CASH. 3) IN VIEW OF THE ABOVE, I HAVE REASON TO BELIEVE T HAT THE INCOME TO THE EXTENT OF RS. 37,00,00,000/- CHARGEABLE TO TAX FOR A.Y. 2009-10 HAS ESCAPED ASSESSMENT, AS THE ASSESSEE HAS FAILED TO D ISCLOSE FULLY AND ITA NO. 606/JP/2017 ITO VS. M/S OM METAL REAL ESTATE PVT. LTD. 6 TRULY ALL MATERIAL FACTS NECESSARY FOR ITS ASSESSME NT IN THIS CASE IN TERMS OF THE PROVISIONS OF SECTION 147 OF THE I.T. ACT. 7. THEREAFTER, THE ASSESSING OFFICER (DCIT-7(3)(1), MUMBAI) WHO HAD ISSUED NOTICE U/S 148 OF THE ACT TO M/S OM META L DEVELOPERS (P) LTD. HAS DROPPED THE REASSESSMENT PROCEEDINGS VIDE HIS ORDER DATED 24.12.2016 PASSED U/S 143(3) R.W.S. 147 OF THE ACT WHICH READS AS UNDER:- THE REOPENING PROCEEDINGS INITIATED BY ISSUANCE OF NOTICE U/S 148 OF THE I.T. ACT, 1961 DATED 31.03.2016 ARE HEREBY DROP PED. 8. HAVING DROPPED THE REASSESSMENT PROCEEDINGS IN C ASE OF M/S OM METAL DEVELOPERS (P) LTD WHICH WERE INITIATED ON TH E BASIS OF SAID SEIZED DOCUMENTS AS IN THE CASE OF THE ASSESSEE COM PANY, THE REVENUE HAS THUS ACCEPTED THE FACT THAT THE COMPANY WHICH H AS ACTUALLY PURCHASED THE LAND AT HYDERABAD THROUGH A REGISTERE D SALE DEED HAS NOT MADE ANY ON-MONEY PAYMENT OF RS 37 CRORES TOW ARDS THE PURCHASE OF THE SAID LAND. WHERE THE SAID FACT HAS BEEN ACCEPTED BY THE REVENUE, THE QUESTION OF FUNDING THE ON-MONEY B Y THE ASSESSEE COMPANY, BEING ONE OF THE SHAREHOLDERS IN M/S OM ME TAL DEVELOPERS (P) LTD. DOESNT ARISE FOR CONSIDERATION AND ON THI S GROUND ITSELF, THE IMPUNGED REASSESSMENT ORDER DESERVE TO BE SET-ASIDE . 9. AS WE HAVE NOTED ABOVE, IN CASE OF M/S MAHESHWA RI MEGA VENTURES LTD. WHICH IS ONE OF THE SHAREHOLDERS IN M /S OM METAL DEVELOPERS (P) LTD., SIMILAR ADDITION, AS IN THE CA SE OF THE ASSESSEE COMPANY, WAS MADE BY THE ASSESSING OFFICER VIDE HIS ORDER DATED ITA NO. 606/JP/2017 ITO VS. M/S OM METAL REAL ESTATE PVT. LTD. 7 30.12.2011 U/S 143(3) OF THE ACT WHEREIN HE HAS MAD E THE ADDITION ON ACCOUNT OF ON MONEY TOWARDS PURCHASE OF LAND AMOU NTING TO RS. 12,14,50,000/-. IN THE SAID MATTER, THE LD. CIT(A)- V, HYDERABAD VIDE ITS ORDER DATED 24.12.2012 HAS SINCE DELETED THE SAID A DDITION AND WHICH HAS SUBSEQUENTLY BEEN CONFIRMED BY THE COORDINATE B ENCH IN ITA NO. 367/HYD./2013 DATED 03.02.2017 AND THE RELEVANT FIN DINGS OF THE CO- ORDINATE BENCH ARE CONTAINED AT PARA 10 OF ITS ORDE R WHICH IS REPRODUCED AS UNDER:- 10. CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL FACTS ON RECORD. AS UNDERSTOOD FROM THE FACTS, DURING THE SU RVEY AN AGREEMENT OF SALE WAS FOUND IN THE BUSINESS PREMISES OF THE A SSESSEE, AS PER WHICH, M/S OMDPL PROPOSED TO BUY LAND FROM 11 VENDO RS. IN THE ABOVE COMPANY, THE ASSESSEE IS HOLDING 35% OF SHARES. IN A SEPARATE SEARCH PROCEEDINGS IN DELHI, SIMILAR AGREEMENT OF SALE WAS FOUND IN THE PREMISES OF M/S SHIV-VANI GROUP, WHICH IS HAVING IN TEREST IN M/S METRO MANAGEMENT SERVICES PVT. LTD. (MMSPL). M/S MMSPL IS HOLDING 65% SHARES IN M/S OMDPL. THE AO BROUGHT TO TAX THE ON M ONEY PAYMENT WHICH WAS MADE BY M/S OMDPL TO THE LAND OWNERS BASE D ON THE SHAREHOLDERS IN M/S OMDPL. AO FAILED TO APPRECIATE THAT COMPANY IS AN INDEPENDENT ENTITY AND DISTINCT PERSON. THE ACTION OF THE COMPANY WILL NOT HAVE ANY BEARING ON THE SHAREHOLDERS. AO HAS NO JURISDICTION TO CHARGE ANYTHING IN THE CASE OF ASSESSEE OVER THE DE ALINGS OF ANY OTHER PERSON. IT IS BROUGHT ON RECORD THAT ON MONEY WAS P AID IN THE DEALINGS BY M/S OMDPL TOWARDS THE PURCHASE OF LAND, IF AT AL L ANY ADDITION CAN BE MADE, IT CAN BE IN THE HANDS OF M/S OMDPL AND NO T IN THE HANDS OF THE ASSESSEE. IT IS MISCONCEIVED IDEA TO CHARGE PAY MENT OF ON MONEY ITA NO. 606/JP/2017 ITO VS. M/S OM METAL REAL ESTATE PVT. LTD. 8 TO THE SHAREHOLDERS OF THE COMPANY, IN WHICH COMPAN Y ENTERED IN THE TRANSACTION. WE CANNOT ACCEPT AND APPRECIATE THE AC TION OF THE AO. ACCORDINGLY, WE UPHOLD THE FINDINGS OF THE CIT(A) I N THIS REGARD AND DISMISS THE GROUND RAISED BY THE REVENUE. 10. THEREFORE, EVEN THE COORDINATE BENCH HAS NOT FO UND THE ADDITION OF ON-MONEY ACCEPTABLE IN HANDS OF M/S MAHESHWARI M EGA VENTURES LTD. WHICH IS ALLEGED TO BE PAID IN RESPECT OF THE SAME TRANSACTION OF PURCHASE OF LAND AT HYDERABAD. FOLLOWING THE DECISI ON OF THE CO- ORDINATE BENCH, SIMILAR ADDITION IN THE CASE OF THE ASSESSEE COMPANY DESERVE TO BE SET-ASIDE. 11. NOW COMING BACK TO THE FINDINGS OF THE LD. CIT (A) IN ASSESSEES OWN CASE, THE LD. CIT(A) HAS TAKEN NOTE OF THE DEVE LOPMENT IN CASE OF M/S OM METAL DEVELOPERS (P) LTD. AND M/S MAHESHWARI MEGA VENTURES LTD., AS WE HAVE NOTED ABOVE, AND HELD THAT EVEN IF IT IS PRESUMED THAT THE ON MONEY PAYMENT OF RS. 37 CRORE WAS PAID FOR P URCHASE OF LAND AT HYDERABAD, THEN ACTION IS TO BE TAKEN IN THE HANDS OF M/S OM METAL DEVELOPERS (P) LTD. AND NOT IN THE HANDS OF THE APP ELLANT AS M/S OM METAL DEVELOPERS (P) LTD. IS THE REGISTERED AND REA L OWNER OF THE LAND AT HYDERABAD AND NOT THE APPELLANT COMPANY. IT WAS FUR THER HELD BY LD. CIT(A) THAT THE COMPANY IS A SEPARATE LEGAL ENTITY HAVING INDEPENDENT EXISTENCE FROM ITS MEMBERS. FURTHER, THE LD. CIT(A) HELD THAT THE AO HAS NEITHER MADE ANY ENQUIRIES NOR BROUGHT ON RECOR D ANY MATERIAL WHICH MAY LEAD TO THE CONCLUSION THAT THE SHAREHOLD ER OF M/S OM METAL DEVELOPERS (P) LTD. INCLUDED THE APPELLANT HAS MADE ON-MONEY PAYMENT FOR PURCHASE OF THE LAND UNDER CONSIDERATIO N. IT WAS FURTHER ITA NO. 606/JP/2017 ITO VS. M/S OM METAL REAL ESTATE PVT. LTD. 9 HELD BY HIM THAT IT IS A TRITE LAW THAT SUSPICION, HOWEVER STRONG, IT CANNOT SUBSTITUTE THE EVIDENCE REQUIRED FOR MAKING THE ADDITION. THEREAFTER, REFERRING TO THE FOLLOWING FINDINGS OF THE LD. CIT(A) IN CASE OF M/S MAHESHWARI MEGA VENTURES LTD. (WHICH HAS SU BSEQUENTLY BEEN UPHELD BY THE COORDINATE BENCH AS WE HAVE NOTED ABO VE), HE HAS DELETED THE ADDITION STATING THAT THE FACTS OF THE CASE UNDER CONSIDERATION ARE SIMILAR WITH THE FACTS OF THE ABO VE REFERRED CASE OF M/S MAHESHWARI MEGA VENTURES LTD: 6.5 I HAVE GONE THROUGH THE ASSESSMENT ORDER AND T HE DETAILED WRITTEN SUBMISSIONS OF THE ASSESSEE. ORDINARILY, ANY FINDIN G OF THE ASSESSING OFFICER SHALL BE BASED ON THE MATERIAL HE POSSESSES AND CONCLUSION COULD BE DRAWN EMANATING FROM THE MATERIAL AVAILABL E. THE AVAILABLE MATERIAL SHOULD INDICATE THE COURSE OF CONCLUSION T HAT CAN BE DRAWN. HOWEVER, I FIND FROM THE ASSESSMENT ORDER THAT THE ASSESSING OFFICER HAD COME TO A CONCLUSION FIRST AND THEN BROUGHT IN THE AVAILABLE MATERIAL OF FIT INTO THE ALREADY DRAWN CONCLUSION-C ONCLUSION PRECEDING THE AVAILABLE MATERIAL. 6.6 I ALSO FOUND THAT WHATEVER MATERIAL WAS FOUND I N POSSESSION OF THE APPELLANT ABOUT THE LAND TRANSACTION WAS NOT CONSID ERED AS INCRIMINATING BUT THE MATERIAL FOUND FROM THE PREMI SES OF M/S SHIV-VANI GROUP AT NEW DELHI WAS FOUND TO BE INCRIMINATING AN D THE APPELLANT WAS CONFRONTED WITH SUCH MATERIAL FOUND AT NEW DELH I. AS CONTENDED BY THE APPELLANT, THIS MATERIAL HAS TO BE FIRST CLARIF IED FROM THE PARTIES DIRECTLY INVOLVED IN THE TRANSACTION, I.E., M/S OMD PL AND THE VENDORS. HOWEVER, NO EFFORT APPEARS TO HAVE BEEN MADE IN THI S DIRECTION. ANY ADVERSE CONCLUSION FROM A TRANSACTION AGAINST OUTSI DE PARTIES, IN ITA NO. 606/JP/2017 ITO VS. M/S OM METAL REAL ESTATE PVT. LTD. 10 WHATEVER WAY THESE OUTSIDE PARTIES WERE CONNECTED W ITH THE MAIN PARTIES CONCERNED TO THE TRANSACTION, SHOULD ORIGIN ATE FROM AN INDEPENDENT ENQUIRY BEING CARRIED OUT, WHICH WAS MI SSING IN THE CASE ON HAND. THE ASSESSING OFFICER HAD SIMPLY CONCLUDED THAT THE APPELLANT HAD PAID CONSIDERATION OUTSIDE BOOKS FOR PURCHASE O F LAND IN THE NAME OF A COMPANY, IN WHICH THEY HAD 35% STAKE HOLDING, ON THE BASIS OF SOME SCRIBING MADE BY OTHER PARTIES AND LINKING THE IR COMMON INTEREST/SHAREHOLDING RATIOS IN COMPANIES. NO MATER IAL EVIDENCE WAS BROUGHT OUT TO HOLD THAT THE APPELLANT HAD ACTUALLY INVESTED MONEY IN THE SHAREHOLDING OF M/S OMDPL OUTSIDE BOOKS OR ACTU ALLY PAID CONSIDERATION TO THE VENDORS OF LAND ON BEHALF OF M /S OMDPL. 12. THEREFORE, THE LD. CIT(A) HAS FOLLOWED THE FIND INGS IN CASE OF M/S OM METAL DEVELOPERS (P) LTD. WHEREIN THE PROCEEDING S WERE DROPPED AS THE ASSESSMENT STAGE ITSELF AND IN CASE OF M/S MAHE SHWARI MEGA VENTURES LTD. WHEREIN SIMILAR ADDITIONS WERE MADE U /S 69 OF THE ACT BY THE ASSESSING OFFICER AND THE COORDINATE BENCH HAS UPHELD THE DELETION. THEREFORE, WE DONOT NOT SEE ANY INFIRMITY IN THE SA ID ORDER PASSED BY THE LD CIT(A). 13. NOW, COMING TO THE TRANSACTION DOCUMENT I.E, SA LE DEED EXECUTED ON 12.02.2008, M/S OM METAL DEVELOPERS (P) LTD. HA S PURCHASED 10 ACRES OF LAND SITUATED AT HYDERABAD FOR A CONSIDERA TION OF RS. 18 CRORES. THE SAID AGREEMENT HAS BEEN DULY REGISTERED WITH TH E STAMP DUTY AUTHORITY AND STAMP DUTY HAS BEEN DULY PAID THEREOF . THE SAID SALE DEED HAS NOT BEEN DISPUTED BY THE REVENUE EITHER DU RING THE ASSESSMENT PROCEEDINGS OR IN THE COURSE OF PROCEEDI NGS BEFORE US. ITA NO. 606/JP/2017 ITO VS. M/S OM METAL REAL ESTATE PVT. LTD. 11 UNDER THE SAID AGREEMENT, THE LAND HAS BEEN PURCHAS ED BY M/S OM METAL DEVELOPERS (P) LTD. AND THE CONSIDERATION HAS BEEN DISCHARGED BY M/S OM METAL DEVELOPERS (P) LTD. THE TRANSACTION IS ALSO REFLECTED IN THE BOOKS OF ACCOUNTS OF M/S OM METAL DEVELOPERS (P ) LTD. THOUGH THE ASSESSMENT PROCEEDINGS IN CASE OF M/S OM METAL DEVE LOPERS (P) LTD. WERE REOPENED ALLEGING PAYMENT OF ON-MONEY IN RELAT ION TO SAID LAND TRANSACTION, HOWEVER, THE SAID REASSESSMENT PROCEED INGS WERE DROPPED AT THE ASSESSMENT STAGE ITSELF BY THE ASSESSING OFF ICER BY PASSING THE SPECIFIC ORDER DATED 24.12.2016. THE SAID FACT, TH EREFORE, CLEARLY DEMONSTRATE THAT THE TRANSACTION FOR PURCHASE OF 10 ACRES OF LAND WAS MADE FOR CONSIDERATION OF RS. 18 CRORES AND THE SAI D FACT HAS BEEN ACCEPTED BY THE REVENUE IN THE ASSESSMENT PROCEEDIN GS IN THE CASE OF THE COMPANY WHICH HAS ACTUALLY PURCHASED THE LAND. THEREFORE, THIS FACT ALONE IS SUFFICIENT TO SET ASIDE THE ORDER OF THE A SSESSING OFFICER. 14. NOW, COMING TO THE SEIZED DOCUMENT (PAGE 4, AN NEXURE A-1) SEIZED DURING SEARCH AND SEIZURE ACTION CARRIED OUT IN SHIV VANI GROUP OF CASES AT THE RESIDENCE OF SH. RAMESH KUMAR SOMAN I AT G-15/6, 2 ND FLOOR, MALVIYA NAGAR, NEW DELHI AND OFFICE OF SHIV VANI GROUP AT F-315, GROUND FLOOR, LADO SARAI, NEW DELHI, IT READS AS UN DER: NOTE 10 ACRE =50 CRORE EARLIER PAID =30 CRORE NOW PAID =20 CROE BROKERAGE+ REGISTRY+MISC. =5 CRORE 55 CRORE ITA NO. 606/JP/2017 ITO VS. M/S OM METAL REAL ESTATE PVT. LTD. 12 OM METALS DEVELOPERS (P) LTD.-REGISTRY FOR 10 ACRE YOUR SHARE IS 5% FOR 13 ACRE. EXCESS PAID BY YOU OUT OF 2.60 CRORE SHALL BE REFUNDED TO YOU BY MAHESHWARI WITHIN 2 MONTHS TILL THEN 15% SHARES HAVE BEEN WITHHOLD BY US. (SIGNATURE) 23/04/2008 15. AS PER THE ASSESSING OFFICER, FROM THE ABOVE NO TING SEIZED DURING THE COURSE OF SEARCH, IT IS CLEAR THAT THE RECONCIL IATION OF PAYMENT WAS MADE BETWEEN THE SHAREHOLDERS AFTER THE EXECUTION O F REGISTERED DEED. FURTHER, THE ASSESSING OFFICER NOTED THAT DURING TH E RECORDING OF STATEMENT OF MR. PADAM SINGHEE OF SHIV-VANI GROUP, HE HAS ACCEPTED THE FACT THAT PAGE 4 OF ANNEXURE A-1 WAS WRITTEN BY MR. S.K. JAIN, A REPRESENTATIVE OF M/S OM METAL DEVELOPERS (P) LTD. DURING DISCUSSION WITH MR. RAMESH KUMAR SOMANI, DIRECTOR OF M/S METRO MANAGEMENT SERVICES PVT. LTD. THE ASSESSING OFFICER FURTHER, N OTED THAT ON THE BASIS OF THE SAID NOTING, THE INVESTIGATION WING, DELHI H AS CONCLUDED THAT THE ON-MONEY FOR PURCHASE OF 10 ACRES OF LAND WAS PAID BY THE SHAREHOLDERS OF M/S OM METAL DEVELOPERS (P) LTD. AN D THE ASSESSEE COMPANY, BEING ONE OF THE SHAREHOLDERS IN M/S OM ME TAL DEVELOPERS (P) LTD., IT HAS PAID THE ON-MONEY TO THE EXTENT OF ITS SHAREHOLDING. 16. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE AB OVE FACTS AND CONTENTIONS SO ADVANCED BY THE ASSESSING OFFICER. HOWEVER, FOR VARIED REASONS, AS WE HAVE NOTED BELOW, WE ARE UNABLE TO A CCEDE TO THE SAID CONTENTIONS OF THE ASSESSING OFFICER. FIRSTLY, WE FIND THAT THE PERSON WHO HAS WRITTEN THE AFORESAID NOTING I.E, MR. S.K. JAIN HAS NOT BEEN ITA NO. 606/JP/2017 ITO VS. M/S OM METAL REAL ESTATE PVT. LTD. 13 EXAMINED BY THE REVENUE. SECONDLY, THE STATEMENT OF MR. PADAM SINGHEE WHO HAS VOUCHED FOR THE PARTICULARS OF THE SAID NOTINGS, HIS STATEMENT HAS ALSO NOT BEEN PRODUCED ON RECORD BY T HE REVENUE. THIRDLY, MR. RAMESH KUMAR SOMANI AT WHOSE PREMISES THE PARTICULAR PIECE OF DOCUMENT WAS FOUND, HE HAS NOT BEEN CONFRO NTED BY THE REVENUE AND EVEN HIS STATEMENT HAS NOT RECORDED. FU RTHER, THE SELLERS FROM WHOM THE LAND HAS BEEN PURCHASED BY M/S OM MET ALS DEVELOPERS PVT LTD AND WHO WOULD HAVE BEEN THE RECEPIENT OF SA ID ON-MONEY, THEIR STATEMENTS HAVE NOT BEEN RECORDED AND THERE IS NOTH ING ON RECORD WHICH SUGGEST THAT THEY HAVE ACCEPTED THE RECEIPT O F ON-MONEY BY M/S OM METALS DEVELOPERS PVT LTD OR THROUGH ITS SHAREHO LDERS. AS WE HAVE NOTED ABOVE, EVEN IN CASE OF M/S OM METALS DEVELOPE RS, THE REVENUE ITSELF, ON APPRECIATION OF THE SAID SEIZED DOCUMENT AND NOTING THEREON, HAS ACCEPTED THE FACT THAT THERE IS NO ON-MONEY PAY MENT IN RESPECT OF PURCHASE OF LAND. EVEN ON PERUSAL OF THE SAID NOTI NG OF THE SEIZED DOCUMENT, WE DO NOT FIND ANY MENTION OF THE ASSESSE E COMPANY. THEREFORE, WE FIND THAT THE ASSESSING OFFICER HAS S OLELY RELIED ON THE FINDINGS OF THE INVESTIGATION WING AND HAS NEITHER MADE ANY INDEPENDENT ENQUIRIES NOR BROUGHT ON RECORD ANY MAT ERIAL WHICH MAY LEAD TO THE CONCLUSION THAT ASSESSEE COMPANY HAS MA DE ON-MONEY PAYMENT FOR PURCHASE OF THE LAND UNDER CONSIDERATIO N. 17. THEREFORE, IN LIGHT OF THE ABOVE DISCUSSIONS AN D IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT BASIS THE SAID NOTING IN THE PAPER SEIZED DURING TH E COURSE OF SEARCH, THE ADDITION CANNOT BE MADE IN THE HANDS OF THE ASS ESSEE COMPANY. IN THE RESULT, GROUNDS TAKEN BY THE REVENUE ARE DISMIS SED. ITA NO. 606/JP/2017 ITO VS. M/S OM METAL REAL ESTATE PVT. LTD. 14 IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17/01/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 17/01/2019. *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- ITO, WARD-2(2), JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- M/S OM METAL REAL ESTATE PVT. LTD., JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 606/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR