Sushila Lakhotia, New Delhi V. ACIT, New Delhi

ITA 770/DEL/2015

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8405 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 09-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Assessee Lawyers: MANJU YADAV
• Keywords: Income from undisclosed sources; Search and seizure; Document seized; Question of law; Documents seized
• Section: 143(3); 142(1); 153A; 69; 132

Judgement Text

1 ITA NOS. 770/DEL/2015 & 938/DEL/2015 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI T. S. KAPOOR, ACCOUNTANT ME MBER AND MS SUCHITRA KAMBLE, JUDIC IAL MEMBER ITA NO. 770/DEL/2015 ( A. Y 2007-08) SUSHILA LAKHOTIA S-228, GREATER KAILSAH-II NEW DELHI AAAPL0618H (APPELLANT) VS ACIT CENTRAL CIRCLE-9, NEW DELHI (RESPONDENT) ITA NO. 938/DEL/2015 ( A.Y 2006-07) SUBHASH CHANDRA HUF S-228, GREATER KAILSAH-II NEW DELHI AABHS0848D (APPELLANT) VS ACIT CENTRAL CIRCLE-9, NEW DELHI (RESPONDENT) APPELLANT BY SH. P. C. YADAV & SMT. MANJU YADAV, ADV RESPONDENT BY SH. S. S. RANA, CIT, DR ORDER PER SUCHITRA KAMBLE, JM THESE TWO APPEALS ARE FILED BY THE ASSESSEES AGAINS T THE ORDER DATED 27/11/2014 PASSED BY CIT(A)-XXVII, NEW DELHI FOR AS SESSMENT YEAR 2007-08 & 2006-07 RESPECTIVELY. DATE OF HEARING 09.04.2019 DATE OF PRONOUNCEMENT 12.04.2019 2 ITA NOS. 770/DEL/2015 & 938/DEL/2015 2. THOUGH THE ISSUES ARE COMMON IN BOTH THE APPEALS WE ARE DEALING FACTUAL ASPECT AND FINDING SEPARATELY IN EACH OF TH E APPEAL. THE GROUNDS OF APPEAL BEING ITA NO. 770/DEL/2015 ARE AS UNDER:- ITA NO. 770/DEL/2015 1. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON F ACTS IN CONFIRMING THE ADDITION OF RS. 31,35,850/- AS INCOME FROM UNDISCLO SED SOURCES WHICH WAS ADDED BY THE ACIT, CENTRAL CIRCLE-9, NEW DELHI IN A S MUCH AS THE ENTIRE ADDITION IS UNWARRANTED, BASED ON SURMISES AND CONJ ECTURES, WITHOUT ANY BASIS, ILLEGAL AND THUS, REQUIRES TO BE DELETED IN TOTO. 2. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON F ACTS IN NOT APPRECIATING THAT THE ADDITION OF RS. 31,35,850/- HAS BEEN MADE WITHOUT ANY POSITIVE & COGENT EVIDENCE AND RATHER ON IRRELEVANT FACTS. 3. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE LD. AO HAS NOT CONSIDERED THE EVIDENCES PR ODUCED BY THE APPELLANT WHICH CLEARLY ESTABLISHES THAT NO CASH PAYMENT WAS MADE BY THE APPELLANT. 4. THAT THE IMPUGNED APPELLATE ORDER IS ARBITRARY, IL LEGAL, BAD IN LAW AND IN VIOLATION OF RUDIMENTARY PRINCIPLES OF CONTEMPORARY JURISPRUDENCE. 3. CONSEQUENT TO THE SEARCH CONDUCTED IN AERENS GRO UP OF CASES ON 17.08.2011, A SEARCH AND SEIZURE OPERATION U/S 132 OF THE I.T. ACT, 1961 WAS ALSO CONDUCTED AT THE PREMISES OF THE ASSESSEE ON 1 0.02.2012. THE JURISDICTION OVER THE ASSESSEE WAS TRANSFERRED FROM THE ITO, WAR D-23 (2), NEW DELHI TO ACIT, CENTRAL CIRCLE-9, NEW DELHI, ISSUED BY THE CI T, DELHI-VIII, NEW DELHI U/S 127 OF THE ACT ON 25/09/2013. SUBSEQUENTLY, A NOTI CE U/S 153A OF THE IT ACT, 1961 WAS ISSUED AND SERVED UPON THE ASSESSEE ON 30. 09.2013. IN RESPONSE TO THE SAME, THE ASSESSEE STATED THAT THE RETURN FILED U/S 139(1) ON 27.07.2007 BE TREATED AS THE RETURN FILED IN RESPONSE TO NOTICE U /S 153A. SUBSEQUENTLY, 3 ITA NOS. 770/DEL/2015 & 938/DEL/2015 STATUTORY NOTICES U/S 143(2) & 142(1) WERE ISSUED A ND SERVED UPON THE ASSESSEE. IN RESPONSE TO THE SAME, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE ATTENDED THE PROCEEDINGS, ON THE DATES FIX ED FOR HEARING MADE WRITTEN AND ORAL STATEMENTS AND FURNISHED THE INFORMATION D OCUMENTS ACCOUNTS ETC CALLED FOR. THEREUPON THE ASSESSMENT WAS COMPLETED IN TERMS OF AN ORDER U/S 153A READ WITH SECTION 143(3) AT A TOTAL INCOME OF RS. 33,19,350/- AS AGAINST THE RETURN INCOME OF RS. 1,33,504/- WHEREIN THE ASS ESSING OFFICER MADE AN ADDITION OF RS. 31,85,850/- ON ACCOUNT OF UNDISCLOS ED INCOME. IN THE COURSE OF SEARCH PROCEEDINGS U/S 132 IN CASES OF AEZ GROUP AN D EXCEL SHEET FOUND IN THE FORM OF HARD DISK WHICH WAS FOUND AT THE CORPOR ATE OFFICE, AEZ GROUP AT 301-303, BAKSHI HOUSE, NEHRU PLACE, NEW DELHI WHICH WAS SEIZED AND MARKED AS ANNEXURE-A-27. ON PERUSAL OF THE ABOVE DETAILS, , THE ASSESSING OFFICER FOUND THAT THE ASSESSEE INVESTED A SUM OF RS. 39,35 ,850/- IN PURCHASE OF FLAT/SPACE/LAND WITH M/S NEHRU VIKAS MINAR, A CONCE RNED OF AEZ GROUP. THE ASSESSING OFFICER OBSERVED THAT OUT OF THE ABOVE AM OUNT OF RS. 39, 35,850/- A SUM OF RS. 7,50,000/- WAS PAID BY CHEQUE WHICH IS D ULY REFLECTED IN THE BALANCE SHEET BUT NO DEALS OF THE CASH PAYMENT AMOU NTING TO RS. 31,85,850/- WERE AVAILABLE ON RECORD. ACCORDING TO THE ASSESSI NG OFFICER NO STATUTORY EXPLANATION WAS FURNISHED BY THE ASSESSEE EXCEPT DE NIAL OF THE CASH PAYMENT. SINCE THE CASH PAYMENT WAS APPROVED ON THE BASIS OF MATERIALS SEIZED, THE ASSESSING OFFICER OPINED THAT THE ASSESSEE MAKE TH E ABOVE CASH PAYMENT OUT OF THE BOOKS OF ACCOUNT AND TREATED IT AS UNEXPLAIN ED INCOME OF THE ASSESSEE. HOWEVER, BEFORE ADDED BACK THE SAME WHILE NOTICE DA TED 5/2/2014 ALONG WITH COPY OF EXCEL SHEET. THE ASSESSING OFFICER GAVE AN OPPORTUNITY TO THE ASSESSEE TO FURNISH THE REPLY. ACCORDING TO THE ASSESSING O FFICER, THE ASSESSEE FILED REPLY NARRATED THE HISTORY OF THE CASE WITHOUT ANY MERIT TO CONSIDER AND EXTRACTED PARA 5 OF THE SAID REPLY AND INCORPORATED IN THE SA ME IN THE ASSESSMENT ORDER AS UNDER:- YOUR HONOUR MERELY ON THE BASIS OF AN IMPRESSION WHICH HAS BEEN DRAWN BY YOU BASED ON ONE EXCEL SHEET FOUND AT THE PREMISES OF THIRD PARTY NO AMOUNT OF ADDITION CAN B E MADE TO OUR TOTAL INCOME AS CASH INVESTMENT IN IMMOVABLE PR OPERTY 4 ITA NOS. 770/DEL/2015 & 938/DEL/2015 SPECIALLY BECAUSE NOT ONE SINGLE PIECE OF EVIDENCE IS AVAILABLE TO PROVE OUR INVESTMENT OF ALLEGED CASH AMOUNT IN T HE PROPERTY. THE ASSESSING OFFICER FURTHER OBSERVED THAT IN THE SAME EXCEL SHEET THE NAME OF ONE SH. I.E. SOOMAR, E-405, GREATER KAILASH-LL, NEW DELHI ALSO APPEARED AT SR. NO. 39 WHO ADMITTED THAT THE CASH INVESTMENT OF RS.6.64 CRORES BEING MADE IN THE SAID PROJECT, AND PAID THE TAXES ON THE SAME . THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE FAILED TO ADDUCE AN IOTA OF EVIDENCE IN RESPECT OF THE CASH INVESTMENT OF RS.31,85,850/-. THEREFORE, IN TH E LIGHT OF THE ABOVE DISCUSSION AND THE SURRENDER MADE BY SH. I.E. SOOMA R ON THE BASIS OF SIMILAR EVIDENCE, THE ASSESSING OFFICER OPINED THAT THE CAS H INVESTMENT OF RS. 31,85,850/-MADE BY THE ASSESSEE WAS NOT DISCLOSED B Y ASSESSEE IN ITS BOOKS OF ACCOUNT. ACCORDINGLY, THE ASSESSING OFFICER ADDED T HE AMOUNT OF RS. 31,85,850/-TO THE INCOME OF THE ASSESSEE AS INCOME FROM UNDISCLOSED SOURCES. 4. THE ASSESSING OFFICER OBSERVED THAT IN THE SAME EXCEL SHEET NAME OF ONE SHRI I.E. SOOMAR. 5. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT (A). THE CIT(A) DISMISS THE APPEAL OF THE ASSESSEE. 6. THE LD. AR SUBMITTED THAT THE PRESENT APPEAL OF THE ASSESSEE IS ASSESSED FROM ORDER OF CIT(A) DATED 27/11/2014 AND RELATED TO ASSESSMENT YEAR 2007-08. CERTAIN DATES WHICH GOES TO THE ROOT OF MATTER ARE AS UNDER:- DATE EVENT REMARK IF ANY 25.07.200 7 ORIGINAL RETURN OF INCOME HAS BEEN FILED BY THE ASSESSEE. TOTAL INCOME DECLARED IS RS. 1,33,504/-. NO NOTICE OF 143(2) WAS ISSUED IN STIPULATED TIME AND HENCE THE RETURN WAS NOT PENDING. 17.08.2011 A SEARCH AND SEIZURE ACTION WAS CONDUCTED ON THE PREMISES OF AEZ GROUP. ALLEGED DOCUMENT SHOWING INVESTMENT OF RS 39,35,850/- HAS BEEN FOUND IN THIS 5 ITA NOS. 770/DEL/2015 & 938/DEL/2015 THE ASSESSEE IS AN INDIVIDUAL, FILED HER RETURN OF INCOME ON 27/7/2007. THE TIME LIMIT FOR ISSUANCE OF NOTICE U/S 143(2) WA S EXPIRED ON 31 ST JULY, 2008. ON 17/8/2011, A SEARCH AND SEIZURE ACTION HAS UNDER TAKEN IN THE CASE OF AEZ GROUP DURING THE SEARCH. IT IS ALLEGED THAT THE AS SESSEE INVEST AN AMOUNT OF RS. 39,35,850/- VIA CASH IN NEHRU VIKAS MINAR. THE REAFTER A SEARCH ACTION WAS ALSO THEREAFTER, A SEARCH ACTION WAS ALSO UNDER TAKEN IN THE CASE OF ASSESSEE ON 10.02.2012. HOWEVER, NO EVIDENCE SUPPOR TING THE CASE OF REVENUE VIS-A-VIS INVESTMENT IN CASH IN INDRAPURARN HABITAT E CENTER WAS FOUND. AO ISSUED NOTICE TO THE ASSESSEE ASKING THE SOURCE OF ALLEGED INVESTMENT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE EXPLAINED THAT ASSESSEE HAD NOT INVESTED ANYTHING IN THE ALLEGED PROPERTY. HOWEVER, THE ASSESSING OFFICER RELIED UPON THE CONFESSION OF SOME I.E. SOO MAR AND MADE THE ADDITION IN THE HANDS OF THE ASSESSEE. THE ASSESSEE FILED AP PEAL BEFORE THE CIT (A) AND ARGUED THAT NO ADDITION CAN BE MADE AS NO INCRIMINA TING MATERIAL WAS FOUND IN THE SEARCH OF ASSESSEE. HOWEVER, THE CIT (A) SUSTAI NED THE ADDITION. THE LD. AR SUBMITTED THAT NO ADDITION CAN BE MADE IN ABSENCE O F ANY INCRIMINATING DOCUMENT UNEARTHED DURING SEARCH. THE LD. AR FURTHE R SUBMITTED THAT IN ONE SIMILAR MATTER NAMELY IN THE CASE OF SUBHASH KHATTA R A SIMILAR ADDITION OF RS 3,21,00,000/- WAS MADE BY THE REVENUE. IN THAT CASE ALSO TWO SEARCHES WERE CONDUCTED ONE AT AEZ GROUP ON 17.08.2011 AND ONE AT MR SUBHASH KHATTAR ON 10.02.2012. THIS ADDITION WAS ALSO MADE IN RESPECT OF SEARCH 10.02.2012 A SEARCH AND SEIZURE ACTION IN THE CASE OF THE ASSESSEE WAS CONDUCTED WHERE NO INCRIMINATING DOCUMENT WAS FOUND SUBMISSIONS BEFORE THE CIT(A) AT PAGE NO-12 PARA 27(B) OF THE ACT. FINDING OF CIT(A) THAT NO INCRIMINATING DOCUMENT WAS FOUND IN ASSESSEE SEARCH IS AT PAGE NO-13- 30.09.2013 NOTICE UNDER SECTION 153A OF THE ACT WAS ISSUED AND ASSESSEE FILED ITS ROI AS ORIGINALLY FILED PARA 6.1.2 6 ITA NOS. 770/DEL/2015 & 938/DEL/2015 INVESTMENT IN INDRAPURAM HABITAT CENTER GZIABAD AND ON THE BASIS OF CONFESSION OF SHRI I.E.SOOMAR. THE SUBHASH KHATTAR FILED APPEAL BEING ITA NO. 902/DEL/2015 BEFORE THE TRIBUNAL AND TRIBUNAL H ELD THAT NO ADDITION UNDER SECTION 153A OF THE ACT CAN BE MADE IN ABSENC E OF ANY INCRIMINATING DOCUMENTS FOUND IN SEARCH. THE TRIBUNAL ALSO NOTED THAT MERELY BECAUSE SOME THIRD PARTY HAS SURRENDERED SOME AMOUNT IN HIS HAND S THAT DOES NOT MEAN THAT SUCH SURRENDER BINDS ALL OTHER INDEPENDENT ASS ESSEES. THE LD. AR SUBMITTED THAT ALL THESE ASPECTS HAVE BEEN CONSIDER ED BY THE TRIBUNAL IN ITS ORDER DATED 30.06.2016. THE LD. AR FURTHER SUBMITTE D THAT ORDER OF THE TRIBUNAL HAS NOW BEEN AFFIRMED BY THE HIGH COURT IN ITA NO 60 OF 2017. THE LD. AR FURTHER SUBMITTED THAT WHILE DECIDING THE CA SE OF SUBHASH KHATTAR, HONBLE HIGH COURT DECIDED THE ISSUE AFTER FRAMING THE QUESTION OF LAW AND AFTER TAKING COGNIZANCE OF ITAT ORDER EVIDENCING TH E DATES OF SEARCH AND INVESTMENT IN PROJECTS OF AEZ. THE LD. AR SUBMITTED THAT RECENTLY A BENCH OF THE TRIBUNAL, DELHI BENCH IN THE CASE OF ASHA RANI LAKHOTIYA, WHICH BELONGS TO SAME GROUP, FOLLOWING THE VERDICT OF HONBLE DELHI HIGH COURT ALLOWED THE APPEAL OF THE ASSESSEE, THEREIN. THUS, THE LD. AR S UBMITTED THAT THE ISSUE IS SQUARELY COVERED BY THE JUDGMENT OF HONBLE DELHI H IGH COURT AND HENCE NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE. 7. THE LD. DR SUBMITTED THAT DURING THE COURSE OF S EARCH EXCEL SHEET WAS FOUND IN THE FORM OF HARD DISK AS ANNEXURE A-32 FIL ED NAME DP CORRECTION SHEET. XLS CONTAINED DETAILS OF SALES STATUS OF IT S FLAT AT INDIRAPURAM HABITAT CENTRE. AS PER THESE SEIZED DOCUMENTS, THE ASSESSE E HAD MADE PAYMENT OF RS.31,85,850/- IN CASH AND RS. 7,50,000/- BY CHEQUE . THE LD. DR FURTHER SUBMITTED THAT THE ASSESSEE FAIL TO DISCHARGE ITS O NUS FOR RECONCILIATION OF ENTRIES IN THE SEIZED DOCUMENT WITH ITS BOOKS OF AC COUNTS AS WELL AS RETURN OF INCOME AS REQUIRED BY PROVISIONS OF SECTION 132(4A) AND 292C OF INCOME TAX ACT. MERE DENIAL OF CASH PAYMENT DOES NOT ABSOLVE THE ASSESSEE OF THE RESPONSIBILITY CAST UPON HER. IN THE SAME EXCEL S HEET, NAME OF SH. I.E.SOOMAR (NAME APPEARING AT SERIAL NO. 39) WHO ADMITTED THE CASH INVESTED AMOUNTING TO 7 ITA NOS. 770/DEL/2015 & 938/DEL/2015 RS. 6.64 CRORES AND PAID TAXES ON THE SAID AMOUNT. AS PER PARA 6.1 OF ORDER OF THE CIT(A), ANNEXURE A-27 WAS ALSO SEIZED FROM CORP ORATE OFFICE OF AEZ GROUP. CHEQUE PAYMENTS MADE BY THE LAKHOTIA FAMILY AS REFL ECTED IN THE FILE NAMED DP. CORRECTION SHEET.XLS AND DOWN PAYMENT BOOKIN G DETAILS. XLS MATCHED EXACTLY WITH THE CHEQUES PAID IN THE NAME OF EACH F AMILY MEMBER OF LAKHOTIA FAMILY. THUS, THE LD. DR SUBMITTED VARIOUS DECISION S WITH REGARD TO PRESUMPTION OF ENTRIES FOUND RECORDED IN BOOKS OF A CCOUNT SEIZED DURING SEARCH AS PER SECTIONS 132(4A) & 292C OF I.T. ACT. THE LD. DR THOUGH RELIED UPON THESE DECISION COULD NOT CONTROVERT THE DECISI ON OF THE HONBLE HIGH COURT IN CASE OF SUBHASH KHATTAR. 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL THE RECORDS. IT IS PERTINENT TO NOTE THAT IN PRESENT CASE ON 17.08.201 1, A SEARCH AND SEIZURE ACTION HAS UNDERTAKEN IN THE CASE OF AEZ GROUP DURI NG THIS SEARCH IT IS ALLEGED THAT THE ASSESSEE INVESTED AN AMOUNT OF RS 39,35,85 0/-VIA CASH IN M/S NEHRU VIKAS MINAR LTD. THEREAFTER, A SEARCH ACTION WAS AL SO UNDERTAKEN IN THE CASE OF ASSESSEE ON 10.02.2012. HOWEVER, NO EVIDENCE SUPPOR TING THE CASE OF REVENUE VIS-A-VIS INVESTMENT IN CASH IN INDRAPURARN HABITAT E CENTER WAS FOUND. AO ISSUED NOTICE TO THE ASSESSEE ASKING THE SOURCE OF ALLEGED INVESTMENT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE EXPLAINED THAT ASSESSEE HAD NOT INVESTED ANYTHING IN THE ALLEGED PROPERTY. HOWEVER, THE ASSESSING OFFICER RELIED UPON THE CONFESSION OF SOME I.E. SOO MAR AND MADE THE ADDITION IN THE HANDS OF THE ASSESSEE. THE SAID CONFESSION A ND THE SAID GROUP SEARCH IS ALREADY TAKEN INTO ACCOUNT IN CO-INVESTORS CASE BY THIS TRIBUNAL. THE TRIBUNAL HAS ALLOWED THE APPEAL OF THE CO-INVESTOR WHICH IS MENTIONED IN THE PROCEEDINGS OF THE PRESENT ASSESSEE (SUBHASH KHATTA R VS. ACIT A.Y. 2006-07 ITA NO. 902/DEL/2015 ORDER DATED 30/06/2016). THE HONBLE TRIBUNAL HELD IN PARA 8 AS UNDER: 8. CONSIDERING THE ABOVE SUBMISSIONS, WE FIND THAT THE LEARNED CIT(APPEALS) HAS UPHELD THE ADDITION IN QUESTION MAINLY ON THE B ASIS OF (I) THE DETAILS 8 ITA NOS. 770/DEL/2015 & 938/DEL/2015 WRITTEN ON THE HARD DISC FOUND DURING THE COURSE OF SEARCH FROM THE PREMISES AERENS GROUP, WHEREIN PAYMENT THROUGH CHEQUE AND CA SH HAVE BEEN MENTIONED AGAINST THE NAME OF ASSESEE AT SR. NO. 32 ; SHRI I. E. SOOMAR APPEARING AT SR. NO. 39 OF THE SAID HARD DISC HAD A DMITTED THE CASH INVESTMENT OF RS.6.64 CRORES BEING MADE IN THE SAID PROJECT AND HAD PAID THE TAXES ON THE SAME; (III) THE SAID HARD DISC CANNOT BE RELIED UPON IN PART AS THE ASSESSEE HAS ADMITTED THE PAYMENT THROUGH CHEQUE BU T DENIED THE CASH PAYMENT SHOWN THEREIN ETC. IN OUR VIEW, A HUE ADDI TION OF RS.3,21,00,000/- CANNOT BE MADE IN A CASUAL MANNER WITHOUT HAVING CO RROBORATIVE EVIDENCE IN SUPPORT. IT IS A PREVAILING PRACTICE IN THE DEALIN GS OF IMMOVABLE PROPERTIES THAT CASH AMOUNT, IF ANY, OUT OF THE AGREED CONSIDE RATION IS PAID DURING THE COURSE OF EXECUTION/REGISTRATION OF THE SALE DEED A ND ADMITTEDLY IN THE PRESENT CASE NO SALE DEED OR OTHER MODE OF TRANSFER HAS BEEN EFFECTED. MERELY BECAUSE NAME OF THE ASSESSEE IS APPEARING IN THE SA ID HARD DISC AND AMONGST OTHER INVESTORS ARE INVESTOR SHRI I. E. SOO MAR APPEARING IN THE SAID HARD DISC HAS ADMITTED PAYMENT OF CASH AMOUNT, CANN OT BE A BASIS FOR ARRIVING AT A DEFINITE CONCLUSION, IN ABSENCE OF CO RROBORATIVE EVIDENCE IN SUPPORT, THAT THE ASSESSEE HAD ALSO PAID THE AMOUNT OF RS.3,21,00,000/- IN CASH. THE HONBLE JURISDICTIONAL HIGH COURT OF DEL HI IN THE CASE OF CIT VS. PREM PRAKASH NAGPAL (SUPRA) WHEREIN ASSESSING OFFIC ER HAD MADE CERTAIN ADDITIONS U/S 69 OF THE ACT ON THE BASIS OF THE DOC UMENTS FOUND DURING SEARCH AT A PLACE OF THIRD PARTY WHICH INDICATED THAT ASSE SSEE HAD PURCHASED A PLOT BY PAYING CONSIDERATION IN CASH, IT WAS HELD BY THE HONBLE HIGH COURT THAT THE ASSESSING OFFICER COULD NOT PROVE BY EVIDENCE T HAT SAID DOCUMENTS BELONGED TO THE ASSESSEE AND THAT ANY ON MONEY TRAN SACTION HAD TAKEN PLACE. THE DOCUMENTS AT THE BEST ONLY SHOWED TENTATIVE/PRO JECTED PURCHASE CONSIDERATION HELD THE HONBLE HIGH COURT. AGAIN, IN THE CASE OF CIT VS. ALPHA IMPACT PVT. LTD (SUPRA), THE HONBLE BOMBAY HIGH COURT HAS BEEN PLEASED TO HOLD THAT ADDITION TO ASSESSEES INCOME IN RESPECT OF ADDITIONAL SALES CONSIDERATION RECEIVED IN SALE OF LAND MERELY ON THE BASIS OF EMAIL RECOVERED DURING THE COURSE OF SEARCH ACTION AT THE PREMISES OF ANOTHER PERSON 9 ITA NOS. 770/DEL/2015 & 938/DEL/2015 AND THERE BEING NO INDEPENDENT MATERIAL AVAILABLE S UPPORTING SUCH ADDITION, WAS NOT JUSTIFIED. BESIDES, WE ALSO FIND SUBSTANCE IN THE CONTENTION OF THE LEARNED AR THAT ASSESSMENT U/S153A OF THE ACT IN AB SENCE OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AT THE P REMISES OF THE ASSESSEE AND IN ABSENCE O ABATEMENT OF ASSESSMENT ON THE DAT E OF SEARCH, CANNOT BE MADE IN THE PRESENT CASE AS PER THE ABOVE CITED DEC ISIONS INCLUDING THE DECISION OF HONBLE JURISDICTIONAL DELHI HIGH COURT IN THE CASE OF CIT VS KABUL CHAWLA (SUPRA). UNDER THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN ASSUMING JUR ISDICTION U/S 153A AND AUTHORITIES BELOW ERE ALSO NOT JUSTIFIED IN MAKING AND SUSTAINING THE ADDITION IN QUESTION MERELY ON THE BASIS OF A HARD DISC FOUN D DURING THE COURSE OF SEARCH AT THE PREMISES OF AERENS GROUP WITHOUT ANY CORROBORATIVE EVIDENCE IN SUPPORT. WE THUS HOLD THAT THE ASSESSEE/APPELLANT SUCCEEDS ON BOTH THE ABOVE ISSUES, I.E. ON VALIDITY OF ASSUMPTION OF JUR ISDICTION U/S153A AND THE ADDITION IN QUESTION. THE GROUNDS INVOLVING THE AB OVE ISSUES ARE ACCORDINGLY ALLOWED. 9. IN RESULT, APPEAL IS ALLOWED. THE SAME WAS CONFIRMED BY THE HONBLE DELHI HIGH CO URT VIDE ORDER DATED 25/7/2017. THUS, THE ISSUE RAISED IN THE PRESENT A PPEAL IS ALREADY COVERED IN CO-INVESTORS CASE. 9. IN RESULT, APPEAL OF THE ASSESSEE BEING ITA NO. 770/DEL/2015 IS ALLOWED. 10. NOW WE ARE TAKING UP ITA NO. 938/DEL/2015. THE GROUNDS OF APPEAL ARE AS UNDER: 1. TH AT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FAC TS IN CONFIRMING DIE ADDITION OF RS. 25,20,884/- AS INCOME FROM UNDISCLO SED SOURCES WHICH WAS ADDED BY THE ACIT, CENTRAL CIRCLE-9, NEW DELHI IN A S MUCH AS THE ENTIRE ADDITION IS UNWARRANTED, BASED ON SURMISES AND CONJ ECTURES, WITHOUT ANY BASIS, ILLEGAL AND THUS, REQUIRES TO BE DELETED IN TO TO. 10 ITA NOS. 770/DEL/2015 & 938/DEL/2015 2. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE ADDITION OF RS. 25,20,884/- HAS BEEN MADE WITHOUT ANY POSITIVE 86 COGENT EVIDENCE AND RATHER ON IRRELEVANT FACTS. 3. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE LD. AO HAS NOT CONSIDERED THE EVIDENCES PR ODUCED BY THE APPELLANT WHICH CLEARLY ESTABLISHES THAT NO CASH PAYMENT WAS MADE BY THE APPELLANT. 4. THAT THE IMPUGNED APPELLATE ORDER IS ARBITRARY, IL LEGAL, BAD IN LAW AND IN VIOLATION OF RUDIMENTARY PRINCIPLES OF CONTEMPORARY JURISPRUDENCE. 11. CONSEQUENT TO THE SEARCH CONDUCTED IN AERENS GR OUP OF CASES ON 17.08.2011, A SEARCH AND SEIZURE OPERATION U/S 132 OF THE INCOME TAX ACT, 1961 WAS ALSO CONDUCTED AT THE PREMISES OF THE ASSE SSEE ON 10.02.2012. THE CASE OF THE ASSESSEE WAS CENTRALIZED VIDE ORDER ISS UED BY THE COMMISSIONER OF INCOME TAX, DELHI-VIII, NEW DELHI, U/S 127 OF THE I NCOME TAX ACT, 1961 ON 25.09.2013 AND THE JURISDICTION OVER THE ASSESSEES CASE WAS ASSIGNED TO THE PRESENT ASSESSING OFFICER, CENTRAL CIRCLE- 9, NEW D ELHI. THEREAFTER, A NOTICE U/S 153A OF THE IT ACT, 1961 WAS ISSUED AND SERVED UPON THE ASSESSEE ON 30.09.2013. IN RESPONSE TO THE SAME, IT WAS STATED THAT THE RETURN FILED U/S 139(1) ON 25.07.2006 BE TREATED AS THE RETURN FILED IN RESPONSE TO NOTICE U/S 153A. SUBSEQUENTLY, STATUTORY NOTICES U/S 143(2) AN D 142(1) WERE ISSUED AND SERVED UPON THE ASSESSEE. IN RESPONSE TO THE SAME, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE ATTENDED THE ASSESSM ENT PROCEEDINGS AND FURNISHED THE REQUISITE INFORMATION, DOCUMENTS, ACC OUNTS ETC. THEREUPON, THE ASSESSMENT WAS COMPLETED IN TERMS OF AN ORDER U/S 1 53A READ WITH SECTION 143(3) AT A TOTAL INCOME OF RS.26/19/064/-/- AS AGA INST THE RETURNED INCOME OF RS.98,180/-, WHEREIN THE ASSESSING OFFICER MADE AN ADDITION OF RS.25,20,884/- ON ACCOUNT OF UNDISCLOSED INCOME. IN THE COURSE OF SEARCH PROCEEDINGS U/S 132 IN CASES OF AEZ GROUP, AN EXCEL SHEET IN THE FORM O F HARD DISK WAS FOUND AT THE CORPORATE OFFICE OF AEZ GROUP AT 301-303, BAKSHI HO USE, NEHRU PLACE, NEW DELHI WHICH WAS SEIZED AND MARKED AS ANNEXURE A-32. ON PERUSAL OF THE ABOVE DETAILS THE ASSESSING OFFICER FOUND THAT THE ASSESS EE INVESTED A SUM OF RS.32,70,884/- FOR PURCHASE OF FLAT / SPACE / LAND WITH M/S INDIRAPURAM 11 ITA NOS. 770/DEL/2015 & 938/DEL/2015 HABITAT CENTRE, A CONCERN OF AEZ GROUP. THE ASSESSI NG OFFICER OBSERVED THAT OUT OF THE ABOVE AMOUNT OF RS.32,70,884/- THE ASSES SEE PAID A SUM OF RS.7,50,000/- BY CHEQUE WHICH WAS DULY REFLECTED TH E BALANCE SHEET BUT NO DETAILS OF THE CASH PAYMENT AMOUNTING TO RS.25,20,8 84/- WERE AVAILABLE RECORD. ACCORDING TO THE ASSESSING OFFICER NO SATIS FACTORY EXPLANATION WAS ALSO FURNISHED BY THE ASSESSEE EXCEPT DENIAL OF THE CASH PAYMENT. SINCE THE CASH PAYMENT WAS PROVED ON BASIS OF MATERIAL SEIZED, THE ASSESSING OFFICER OPINED THAT THE ASSESSEE MADE THE ABOVE CASH PAYMENT OUT O F THE BOOKS OF ACCOUNT AND TREATED IT AS UNEXPLAINED INCOME OF THE ASSESSE E. HOWEVER, BEFORE ADDING BACK THE SAME, VIDE NOTICE DATED 5.02.2014, THE ASS ESSING OFFICER GAVE AN OPPORTUNITY TO THE ASSESSEE TO FURNISH A REPLY. ACC ORDING TO THE ASSESSING OFFICER, THE ASSESSEE FILED REPLY NARRATING THE HIS TORY OF THE CASE WITHOUT ANY MERIT TO CONSIDERED AND EXTRACTED PARA 5 OF THE SAI D REPLY AND INCORPORATED IN THE SAME IN THE ASSESSMENT ORDER AS UNDER: YOUR HONOUR MERELY ON THE BASIS OF AN IMPRESSION W HICH HAS BEEN DRAWN BY YOU BASED ON ONE EXCEL SHEET FOUND AT THE PREMISES OF THIRD PARTY NO AMOUNT OF ADDITION CAN BE MADE TO OUR TOTA L INCOME AS CASH INVESTMENT IN IMMOVABLE PROPERTY SPECIALLY BECAUSE NOT ONE SINGLE PIECE OF EVIDENCE IS AVAILABLE TO PROVE OUR INVESTMENT OF ALLEGED CASH AMOUNT IN THE PROPERTY. THE ASSESSING OFFICER FURTHER OBSERVED THAT IN THE SAME EXCEL SHEET THE NAME OF ONE SH. I.E. SOOMAR, E-405, GREATER KAILASH-LL, NEW DELHI ALSO APPEARED AT SR. NO. 39 WHO ADMITTED THAT THE CASH INVESTMENT OF RS.6.64 CRORES BEING MADE IN THE SAID PROJECT, AND PAID THE TAXES ON THE SAME. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE FAILED TO ADDUCE AN IOTA OF EVIDENCE IN RESPECT OF THE CASH INVESTMENT OF RS.25,20,884/-. T HEREFORE, IN THE LIGHT OF THE ABOVE DISCUSSION AND THE SURRENDER MADE BY SH. I.E. SOOMAR ON THE BASIS OF SIMILAR EVIDENCE, THE ASSESSING OFFICER OPINED THAT THE CASH INVESTMENT OF RS.25,20,884/- MADE BY THE ASSESSEE WAS NOT DISCLOS ED BY ASSESSEE IN ITS BOOKS OF ACCOUNT. ACCORDINGLY, THE ASSESSING OFFICE R ADDED THE AMOUNT OF RS.25,20,884/- TO THE INCOME OF THE ASSESSEE AS INC OME FROM UNDISCLOSED 12 ITA NOS. 770/DEL/2015 & 938/DEL/2015 SOURCES. 12. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE AS SESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 13. THE LD. AR SUBMITTED THAT THE PRESENT APPEAL OF THE ASSESSEE IS ARISING FROM THE ORDER OF CIT(A) DATED 27.11.2014 AND RELAT ES TO AY 2006-07. THE ASSESSEE IS A HUF AND FILED ITS ORIGINAL RETURN ON 25.07.2006. THE RETURN FILED BY THE ASSESSEE WAS SELECTED FOR SCRUTINY AND THEN ASSESSMENT UNDER SECTION 143(3) WAS FRAMED. ON 17.08.2011, A SEARCH AND SEIZ URE ACTION HAS UNDERTAKEN IN THE CASE OF AEZ GROUP DURING THIS SEA RCH IT IS ALLEGED THAT THE ASSESSEE INVESTED AN AMOUNT OF RS 32,70,884/-VIA CA SH IN M/S INDRAPURARN HABITAT CENTER PVT. LTD. THEREAFTER, A SEARCH ACTIO N WAS ALSO UNDERTAKEN IN THE CASE OF ASSESSEE ON 10.02.2012. HOWEVER, NO EVIDENC E SUPPORTING THE CASE OF REVENUE VIS-A-VIS INVESTMENT IN CASH IN INDRAPURARN HABITATE CENTER WAS FOUND. AO ISSUED NOTICE TO THE ASSESSEE ASKING THE SOURCE OF ALLEGED INVESTMENT. DURING THE COURSE OF ASSESSMENT PROCEED INGS, THE ASSESSEE EXPLAINED THAT ASSESSEE HAD NOT INVESTED ANYTHING I N THE ALLEGED PROPERTY. HOWEVER, THE ASSESSING OFFICER RELIED UPON THE CONF ESSION OF SOME I.E. SOOMAR AND MADE THE ADDITION IN THE HANDS OF THE ASSESSEE. THE ASSESSEE FILED APPEAL BEFORE THE CIT (A) AND ARGUED THAT NO ADDITION CAN BE MADE AS NO INCRIMINATING MATERIAL WAS FOUND IN THE SEARCH OF ASSESSEE. HOWEV ER, THE CIT (A) SUSTAINED THE ADDITION. THE LD. AR SUBMITTED THAT NO ADDITION CAN BE MADE IN ABSENCE OF ANY INCRIMINATING DOCUMENT UNEARTHED DURING SEARCH. THE LD. AR FURTHER SUBMITTED THAT IN ONE SIMILAR MATTER NAMELY IN THE CASE OF SUBHASH KHATTAR A SIMILAR ADDITION OF RS 3,21,00,000/- WAS MADE BY TH E REVENUE. IN THAT CASE ALSO TWO SEARCHES WERE CONDUCTED ONE AT AEZ GROUP O N 17.08.2011 AND ONE AT MR SUBHASH KHATTAR ON 10.02.2012 . THIS ADDITION WAS ALSO MADE IN RESPECT OF INVESTMENT IN INDRAPURAM HABITAT CENTER GZIABAD AND ON THE BASIS OF CONFESSION OF SHRI I.E.SOOMAR. THE SUBHASH KHATTAR FILED APPEAL BEING ITA NO. 902/DEL/2015 BEFORE THE TRIBUNAL AND TRIBUNAL HELD THAT NO 13 ITA NOS. 770/DEL/2015 & 938/DEL/2015 ADDITION UNDER SECTION 153A OF THE ACT CAN BE MADE IN ABSENCE OF ANY INCRIMINATING DOCUMENTS FOUND IN SEARCH. THE TRIBUN AL ALSO NOTED THAT MERELY BECAUSE SOME THIRD PARTY HAS SURRENDERED SOME AMOUN T IN HIS HANDS THAT DOES NOT MEAN THAT SUCH SURRENDER BINDS ALL OTHER I NDEPENDENT ASSESSEES. THE LD. AR SUBMITTED THAT ALL THESE ASPECTS HAVE BEEN C ONSIDERED BY THE TRIBUNAL IN ITS ORDER DATED 30.06.2016. THE LD. AR FURTHER S UBMITTED THAT ORDER OF THE TRIBUNAL HAS NOW BEEN AFFIRMED BY THE HIGH COUR T IN ITA NO 60 OF 2017. THE LD. AR FURTHER SUBMITTED THAT WHILE DECIDING TH E CASE OF SUBHASH KHATTAR, HONBLE HIGH COURT DECIDED THE ISSUE AFTER FRAMING THE QUESTION OF LAW AND AFTER TAKING COGNIZANCE OF ITAT ORDER EVIDENCING TH E DATES OF SEARCH AND INVESTMENT IN PROJECTS OF AEZ. THE LD. AR SUBMITTED THAT RECENTLY A BENCH OF THE TRIBUNAL, DELHI BENCH IN THE CASE OF ASHA RANI LAKHOTIYA, WHICH BELONGS TO SAME GROUP, FOLLOWING THE VERDICT OF HONBLE DELHI HIGH COURT ALLOWED THE APPEAL OF THE ASSESSEE, THEREIN. THUS, THE LD. AR S UBMITTED THAT THE ISSUE IS SQUARELY COVERED BY THE JUDGMENT OF HONBLE DELHI H IGH COURT AND HENCE NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE. 14. THE LD. DR SUBMITTED THAT DURING THE COURSE OF SEARCH, EXCEL SHEET WAS FOUND IN THE FORM OF HARD DISK AS X ANNEXURE A-32 F ILE NAME DP.CORRECTION SHEET.XLS CONTAINING DETAILS OF SALES STATUS OF IT S FLAT AT INDIRAPURAM HABITAT CENTRE. AS PER THIS SEIZED DOCUMENT, THE ASSESSEE H AD MADE PAYMENT OF RS. 25,20,884 IN CASH & RS. 7,50,000 BY CHEQUE. THE LD. DR FURTHER SUBMITTED THAT THE ASSESSEE FAILED TO DISCHARGE ITS ONUS FOR RECONCILIATION OF ENTRIES IN THE SEIZED DOCUMENT WITH ITS BOOKS OF ACCOUNT AS WELL A S RETURN OF INCOME AS REQUIRED BY PROVISIONS OF SECTION 132(4A) AND 292C OF INCOME TAX ACT. MERE DENIAL OF CASH PAYMENT DOES NOT ABSOLVE THE ASSESSE E OF THE RESPONSIBILITY CAST UPON IT. IN THE SAME EXCEL SHEET, NAME OF SH. I.E.S OOMAR (NAME APPEARING AT SERIAL NO. 39) WHO ADMITTED THE CASH INVESTED AMOUN TING TO RS. 6.64 CRORES AND PAID TAXES ON THE SAID AMOUNT. AS PER PARA 6.1 OF O RDER OF THE CIT(A), ANNEXURE A-27 WAS ALSO SEIZED FROM CORPORATE OFFICE OF AEZ G ROUP. CHEQUE PAYMENTS MADE BY THE LAKHOTIA FAMILY AS REFLECTED IN THE FIL E NAMED DP.CORRECTION 14 ITA NOS. 770/DEL/2015 & 938/DEL/2015 SHEET.XLS AND DOWN PAYMENT BOOKING DETAILS. XLS MATCHED EXACTLY WITH THE CHEQUES PAID IN THE NAME OF EACH FAMILY MEMBER OF L AKHOTIA FAMILY. THUS, THE LD. DR SUBMITTED VARIOUS DECISIONS WITH REGARD TO P RESUMPTION OF ENTRIES FOUND RECORDED IN BOOKS OF ACCOUNT SEIZED DURING SE ARCH AS PER SECTIONS 132(4A) & 292C OF I.T. ACT. THE LD. DR THOUGH RELIE D UPON THESE DECISIONS COULD NOT CONTROVERT THE DECISION OF THE HONBLE HI GH COURT IN CASE OF SUBHASH KHATTAR. 15. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL THE RECORDS. IT IS PERTINENT TO NOTE THAT IN PRESENT CASE ON 17.08.201 1, A SEARCH AND SEIZURE ACTION HAS UNDERTAKEN IN THE CASE OF AEZ GROUP DURI NG THIS SEARCH IT IS ALLEGED THAT THE ASSESSEE INVESTED AN AMOUNT OF RS 32,70,88 4/-VIA CASH IN M/S INDRAPURARN HABITAT CENTER PVT. LTD. THEREAFTER, A SEARCH ACTION WAS ALSO UNDERTAKEN IN THE CASE OF ASSESSEE ON 10.02.2012. H OWEVER, NO EVIDENCE SUPPORTING THE CASE OF REVENUE VIS-A-VIS INVESTMENT IN CASH IN INDRAPURARN HABITAT CENTER WAS FOUND. AO ISSUED NOTICE TO THE A SSESSEE ASKING THE SOURCE OF ALLEGED INVESTMENT. DURING THE COURSE OF ASSESSM ENT PROCEEDINGS, THE ASSESSEE EXPLAINED THAT ASSESSEE HAD NOT INVESTED A NYTHING IN THE ALLEGED PROPERTY. HOWEVER, THE ASSESSING OFFICER RELIED UPO N THE CONFESSION OF SOME I.E. SOOMAR AND MADE THE ADDITION IN THE HANDS OF T HE ASSESSEE. THE SAID CONFESSION AND THE SAID GROUP SEARCH IS ALREADY TAK EN INTO ACCOUNT IN CO- INVESTORS CASE BY THIS TRIBUNAL. THE TRIBUNAL HAS ALLOWED THE APPEAL OF THE CO- INVESTOR WHICH IS MENTIONED IN THE PROCEEDINGS OF T HE PRESENT ASSESSEE (SUBHASH KHATTAR VS. ACIT A.Y. 2006-07 ITA NO. 902/ DEL/2015 ORDER DATED 30/06/2016). THE HONBLE TRIBUNAL HELD IN PARA 8 A S UNDER: 8. CONSIDERING THE ABOVE SUBMISSIONS, WE FIND THAT THE LEARNED CIT(APPEALS) HAS UPHELD THE ADDITION IN QUESTION MA INLY ON THE BASIS OF (I) THE DETAILS WRITTEN ON THE HARD DISC FOUND DURING THE COURSE OF SEARCH FROM THE PREMISES AERENS GROUP, WHEREIN PAYM ENT THROUGH CHEQUE AND CASH HAVE BEEN MENTIONED AGAINST THE NAM E OF ASSESEE AT 15 ITA NOS. 770/DEL/2015 & 938/DEL/2015 SR. NO. 32; SHRI I. E. SOOMAR APPEARING AT SR. NO. 39 OF THE SAID HARD DISC HAD ADMITTED THE CASH INVESTMENT OF RS.6.64 CR ORES BEING MADE IN THE SAID PROJECT AND HAD PAID THE TAXES ON THE SAME ; (III) THE SAID HARD DISC CANNOT BE RELIED UPON IN PART AS THE ASSESSEE HAS ADMITTED THE PAYMENT THROUGH CHEQUE BUT DENIED THE CASH PAYMENT SHOWN THEREIN ETC. IN OUR VIEW, A HUE ADDITION OF RS.3,21,00,000 /- CANNOT BE MADE IN A CASUAL MANNER WITHOUT HAVING CORROBORATIVE EVIDEN CE IN SUPPORT. IT IS A PREVAILING PRACTICE IN THE DEALINGS OF IMMOVAB LE PROPERTIES THAT CASH AMOUNT, IF ANY, OUT OF THE AGREED CONSIDERATIO N IS PAID DURING THE COURSE OF EXECUTION/REGISTRATION OF THE SALE DEED A ND ADMITTEDLY IN THE PRESENT CASE NO SALE DEED OR OTHER MODE OF TRANSFER HAS BEEN AFFECTED. MERELY BECAUSE NAME OF THE ASSESSEE IS APPEARING IN THE SAID HARD DISC AND AMONGST OTHER INVESTORS ARE INVESTOR SHRI I. E. SOOMAR APPEARING IN THE SAID HARD DISC HAS ADMITTED PAYMEN T OF CASH AMOUNT, CANNOT BE A BASIS FOR ARRIVING AT A DEFINITE CONCLU SION, IN ABSENCE OF CORROBORATIVE EVIDENCE IN SUPPORT, THAT THE ASSESSE E HAD ALSO PAID THE AMOUNT OF RS.3,21,00,000/- IN CASH. THE HONBLE JU RISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF CIT VS. PREM PRAKASH NAGPAL (SUPRA) WHEREIN ASSESSING OFFICER HAD MADE CERTAIN ADDITION S U/S 69 OF THE ACT ON THE BASIS OF THE DOCUMENTS FOUND DURING SEAR CH AT A PLACE OF THIRD PARTY WHICH INDICATED THAT ASSESSEEE HAD PURC HASED A PLOT BY PAYING CONSIDERATION IN CASH, IT WAS HELD BY THE HO NBLE HIGH COURT THAT THE ASSESSING OFFICER COULD NOT PROVE BY EVIDE NCE THAT SAID DOCUMENTS BELONGED TO THE ASSESSEE AND THAT ANY ON MONEY TRANSACTION HAD TAKEN PLACE. THE DOCUMENTS AT THE BEST ONLY SHOWED TENTATIVE/PROJECTED PURCHASE CONSIDERATION HELD THE HONBLE HIGH COURT. AGAIN, IN THE CASE OF CIT VS. ALPHA IMPACT PVT. LTD. (SUPRA), THE HONBLE BOMBAY HIGH COURT HAS BEEN PLEASED TO HOLD THAT ADDITION TO ASSESSEES INCOME IN RESPECT OF ADDITIONAL SALES CO NSIDERATION RECEIVED IN SALE OF LAND MERELY ON THE BASIS OF EMAIL RECOVE RED DURING THE COURSE OF SEARCH ACTION AT THE PREMISES OF ANOTHER PERSON AND THERE 16 ITA NOS. 770/DEL/2015 & 938/DEL/2015 BEING NO INDEPENDENT MATERIAL AVAILABLE SUPPORTING SUCH ADDITION, WAS NOT JUSTIFIED. BESIDES, WE ALSO FIND SUBSTANCE IN THE CONTENTION OF THE LEARNED AR THAT ASSESSMENT U/S153A OF THE ACT IN AB SENCE OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH AT THE PREMISES OF THE ASSESSEE AND IN ABSENCE O ABATEMENT OF ASSESSMENT ON THE DATE OF SEARCH, CANNOT BE MADE IN THE PRESEN T CASE AS PER THE ABOVE CITED DECISIONS INCLUDING THE DECISION OF HON BLE JURISDICTIONAL DELHI HIGH COURT IN THE CASE OF CIT VS KABUL CHAWLA (SUPRA). UNDER THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ASSE SSING OFFICER WAS NOT JUSTIFIED IN ASSUMING JURISDICTION U/S 153A AND AUTHORITIES BELOW ERE ALSO NOT JUSTIFIED IN MAKING AND SUSTAINING TH E ADDITION IN QUESTION MERELY ON THE BASIS OF A HARD DISC FOUND DURING THE COURSE OF SEARCH AT THE PREMISES OF AERENS GROUP WITHOUT ANY CORROBORAT IVE EVIDENCE IN SUPPORT. WE THUS HOLD THAT THE ASSESSEE/APPELLANT SUCCEEDS ON BOTH THE ABOVE ISSUES, I.E. ON VALIDITY OF ASSUMPTION OF JURISDICTION U/S153A AND THE ADDITION IN QUESTION. THE GROUNDS INVOLVIN G THE ABOVE ISSUES ARE ACCORDINGLY ALLOWED. 9. IN RESULT, APPEAL IS ALLOWED. THE SAME WAS CONFIRMED BY THE HONBLE DELHI HIGH CO URT VIDE ORDER DATED 25/7/2017. THUS, THE ISSUE RAISED IN THE PRESENT A PPEAL IS ALREADY COVERED IN CO-INVESTORS CASE. 16. IN RESULT, APPEAL OF THE ASSESSEE BEING ITA NO. 938/DEL/2015 IS ALLOWED. 17. IN RESULT, BOTH THE APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH APRIL, 2019 . SD/- SD/- (T. S. KAPOOR) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12/04/2019 R. NAHEED 17 ITA NOS. 770/DEL/2015 & 938/DEL/2015 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 09.04.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 10.04.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 1 2 .04.2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 1 2 .04.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 1 2 .04.2019 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER