ACIT ( Central )- 1, Indore V. Amaltas Hotels Pvt. Ltd., Indore

ITSSA 102/Ind/2021

AI Insights

The case involves two appeals by the revenue against Amaltas Hotels Pvt. Ltd. concerning the assessment years 2016-17 and 2018-19. The appeals were based on the additions made by the AO under sections 69 and 69A of the Income-tax Act, 1961, which were later deleted by the CIT(A). The revenue challenged the CIT(A)'s decision, arguing that the additions were justified based on the documents seized during a search operation. However, the Tribunal found that the additions were not substantiated by concrete evidence and were based on mere assumptions. The Tribunal also noted that the property in question was purchased for a lesser amount than alleged by the AO, and the transactions were properly recorded in the books of account.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 130584 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-04-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 15-12-2022
• Assessment Year: 2018-2019
• Appeal Filed On: 22-03-2021
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Capital asset; Loose papers; Document seized; Question of law; Fair market value; Corroborative evidences; Onus to prove; Documents seized; TDS
• Section: 69; 132; 143(3); 133A; 205; 250; 69A; 64; 113; 43; 48; 73; 72; 13; 119; 22

Judgement Text

Page 1 of 28 आयकर अपीलीय अिधकरण, इंदौर ायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER (Conducted through Virtual Court) IT(SS)A No.101 & 102/Ind/2021 Assessment Year: 2016-17 & 2018-19 ACIT(Central)-1 Indore बनाम/ Vs. Amaltas Hotels Pvt. Ltd. 2, R.K. Puram Colony A.B. Road, Indore (Appellant / Assessee) (Respondent / Revenue) PAN: AABCA 4859 K Assessee by Shri Manjit Sachdeva and Avinash Gaur, ARs Revenue by Shri P.K. Mishra, CIT-DR Date of Hearing 07.02.2023 Date of Pronouncement 28.04.2023 आदेश / O R D E R Per B.M. Biyani, A.M.: Feeling aggrieved by appeal-order dated 03.09.2020 passed by learned Commissioner of Income-Tax (Appeals)-3, Bhopal [“Ld. CIT(A)”], which in turn arises out of assessment-order dated 17.12.2019 passed by learned ACIT, Central-1, Indore [“Ld. AO”] u/s 153A/143(3) of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2016-17 and u/s 143(3) for AY 2018- 19, the revenue has filed these two appeals. 2. Heard the learned Representatives of both sides at length and case- records perused. 3. The registry has informed that that present appeals are filed after a delay of 113 / 144 days and therefore time-barred. The Ld. DR prayed that ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 2 of 28 the delay has occurred due to Covid-19 Pandemic. The Ld. DR further placed reliance on the order of Hon’ble Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020 read with Misc. Applications, by which suo motu extension of the limitation-period for filing of appeals w.e.f. 15.03.2020 under all laws has been granted and hence there is no delay in fact. We confronted the Ld. AR who agreed to the submission of Ld. DR. In view of this, the appeal is proceeded with for hearing, there being no delay. 4. Briefly stated the facts giving rise to present-appeals are such that a search u/s 132 was conducted on 23.03.2018 upon one “Amaltas Group” of which assessee is also a part, pursuant to which assessments of 7 years, i.e. AY 2012-13 to 2018-19 were framed u/s 153A/143(3). However, presently in these appeals, we are concerned with 2 assessment-years, namely AY 2016-17 and 2018-19. While completing assessment of AY 2016-17, Ld. AO made an addition of Rs. 26,00,00,000/- u/s 69 on account of undisclosed investment in property. Further, in AY 2018-19, the AO made an addition of Rs. 85,30,540/- u/s 69A on account of unexplained money. Aggrieved by additions so made, the assessee went in first-appeal and succeeded. Now, the revenue has come before us in the captioned appeals. Since these appeals emanate from common assessment/first-appeal orders, at the request of parties, we have heard these appeals together and dispose of by this consolidated order. IT(SS)A No. 101/Ind/2021 - AY 2016-17: 5. In this appeal, the revenue has raised following ground and challenged CIT(A)’s action of deleting the addition of Rs. 26,00,00,000/- u/s 69 made by AO on account of unexplained investment in property: “(1) On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law in deleting the addition of Rs. 26,00,00,000/- made by the Assessing Officer on account of purchase of Hotel as unexplained investment u/s 69 of the Income-tax Act, 1961.” 6. The AO made this addition on the basis of following: ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 3 of 28 (i) During the course of search conducted on 23.03.2018 at assessee’s premise at 2, R.K. Puram, Indore, one loose-paper marked as “LPS- 3(PO)-Page-25” was seized, which is scanned at Page No. 8 of the assessment-order and reproduced below: Based upon this document, the AO inferred that the assessee purchased a property called “Hotel Traventino, Delhi” for Rs. 26 crore and the brokerage cost was Rs. 26 lakh (Rs. 5 lakh + 13 lakh + 4 lakh + 4 lakh). A simultaneous survey u/s 133A was also conducted on 24.03.2018 at Delhi premise of impugned hotel where it was found that the assessee had executed a purchase-deed of property for Rs. 12 crore from one Smt. Rama Arora on 08.04.2015. From these evidences, the AO framed a view that the assessee purchased property for Rs. 26 crore but the same was registered for Rs. 12 crore only; the difference of Rs. 14 crore was paid in cash from undisclosed sources. By gathering graphic details from internet, the AO also found that the ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 4 of 28 name of hotel was changed from “Hotel Traventino” to “Hotel Amaltas International” after purchase (Para No. 9.3 of assessment-order). When the AO confronted assessee in this regard, the assessee filed a reply dated 13.12.2019 (copy placed at Page No. 22 to 24 of the Paper- Book) and explained that the assessee was approached by a broker named “V.P. Singh” for deal of “Hotel Traventino” for Rs. 26 crore but the assessee made a counter proposal of Rs. 20 crore and also issued a cheque of Rs. 5 lakh to V.P. Singh towards brokerage, subject to the condition that the cheque shall be presented for payment upon finalization of deal. But the deal could not be materialized and as a result neither the hotel was purchased nor any brokerage was paid (the impugned cheque was not encashed). The assessee also submitted a confirmatory affidavit jointly averred by Shri V.P. Singh (and his associated other brokers) to AO. It was further submitted that the “Hotel Traventino” is still in possession of the owners and being operated by them. It was also submitted that subsequently the assessee purchased smaller hotel for Rs. 12 crore from Smt. Rama Arora and the consideration of Rs. 12 crore was paid through cheques and duly recorded in the books of account. The assessee requested Ld. AO that there was no deal of Rs. 26 crore as alleged and hence no addition was called for. However, the AO was not satisfied with the submission of assessee. The AO made an observation that if the deal was not finalized, why a cheque of Rs. 5 lakh was issued to broker since brokerage is paid only after finalization of deal. AO also noted that no prudent person would make payment of brokerage before the actual execution of deal. (ii) Then, the AO deputed Inspector of department to make enquiries in the matter. The inspector visited the hotel premise at Delhi and submitted report dated 22.10.2018 which is scanned on Page No. 11 and 12 of assessment-order. After considering report of inspector, the ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 5 of 28 AO made following conclusion which is noted on Page No. 13 of assessment-order: “From the above report it is inferred that at the address 4, 5 & 6 Green Park, previously one hotel named Le Traventino was functioning. All the three plots 4,5 & 6 are adjoining to each other. One of the building/structure situated at 6, Green Park was purchased by the assessee concern and the name of this part of the hotel was changed to Hotel Amaltas International. Hotel Le Traventino remained at plot 4,5, Green Park with the original owners. Thus it can be concluded that part of Hotel Traventino has been purchased by the assessee.” Thus, based on inspector-report, the AO concluded that originally there was one hotel called “Traventino” at the address 4, 5 & 6, Green Park, Delhi out of which the assessee purchased a part namely 6, Green Park; other parts namely 4 & 5, Green Park remained with original owners. (iii) Thereafter, the AO made a reference u/s 142A to Departmental Valuation Officer (DVO) for finding valuation of 6, Green Park, Delhi. Before DVO, the assessee raised twin-objections, viz. (i) the impugned property being 6, Green Park as mentioned in the registered sale-deed was purchased by assessee as such from the seller and after purchase no construction was done by assessee; and (ii) the Registrar of Stamps had already valued 6, Green park at Rs. 8,37,90,937/- whereas the assessee purchased the same for Rs. 12,00,00,000/- which was much higher. In such a scenario, the valuation of property was not required. The DVO informed this objection of assessee to AO vide letter dated 05.06.2018 and the AO closed the matter of valuation with the noting in assessment-order that the assessee has not extended necessary co- operation to DVO which raised a suspicion in the matter. (iv) In Para No. 9.6, the AO observed that from the bank statement of assessee, it is found that the assessee had also made demand-drafts of Rs. 14.65 crore (AR submits that correct figure is Rs. 14.50 ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 6 of 28 crore). The AO noted “From the ledger account submitted by the assessee during post search proceedings, it is seen that total payment of Rs. 26.65 Cr (correct figure would be Rs. 26.50 crore) has been made to Smt. Rama Arora, the seller of the property. There is no explanation regarding the payment of Rs. 26.65 Crore (correct figure would be Rs. 26.50 crore) in the first place if only Rs. 12 crore was to be paid.” (v) Finally, Ld. AO concluded that the assessee had purchased a part of the property for Rs. 26 crore, out of which Rs. 12 crore was paid through cheque and balance Rs. 14 crore was paid through cash. Ld. AO also observed that the assessee has not given any explanation regarding Rs. 12 crore paid through cheque. Ultimately, the AO made addition of entire 26 crore as undisclosed investment u/s 69. 7. During first-appeal Ld. CIT(A), however, deleted the entire addition by observing and holding thus: “4.1.1. I have considered the facts of the case, plea raised by the appellant and findings of the AO. On perusal of the assessment order and written submission filed by the appellant, it was found that facts of the case are either mis-represented or not represented completely by the AO. Therefore, I find it appropriate to discuss the facts of the case first. The appellant before the AO as well as before me for explaining true and correct facts of the case stated that one property broker Mr VP Singh along with his two acquaints Shri Rajkumar Upadhyay and Shri Akhilesh Pal approached group of the appellant and made a proposal for purchase of a big hotel in the name of Hotel Traventino situated at 4 & 5 Green park, New Delhi for a total consideration of Rs. 26 crores. Since, the price was on higher side the deal was negotiated for Rs. 20 crores and a token amount of Rs. 5 lakhs was given to Shri VP Singh subject to the condition that the cheque shall be realized only when deal was materialized. However, the deal did not materialized and the said cheque was never presented for clearance. However, the appellant thereafter, found another but smaller property adjacent to the earlier proposed property located at 6, Green park, New Delhi. The new property was purchased from Mrs Rama Arora for sale consideration of Rs. 12 crores and stamp duty of Rs. 72 lakhs was also paid. The appellant has brought to my notice that entire property located at 4, 5 & 6, Green Park, Delhi was not purchased, however, property situated at 6, green park, Delhi was only purchased. The AO during the course of assessment proceedings deputed an Inspector of Income Tax to extract key facts of the deal made by the appellant from adjacent neighbors of the ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 7 of 28 appellant's property. The inspector in his report stated that he visited area nearby 4, 5 and 6 Green Park, New Delhi and enquired about the Hotel Le Travetino opp. Sukhmani Hospital. During field enquiry it was found that there were two hotels running on 4,5 and 6 Green Park one on the name of Tryfena and second on the name of Hotel Amaltas International respectively. Further, there were two small entrance and 1 main entrance with reception in hotel Tryfena which was previously known as Hotel le Travetino and 1 entrance cum reception in hotel Amaltas International and both hotels are booking its rooms separately and internally these are not connected however the construction of both hotels are same from outside. The Inspector visited the hotel Tryfena and meet with Mr. Sashi Ranjan Kumar (Mob. No. 9310077000) building caretaker of hotel Tryfena. On enquiry it was found that during the year 2014 one of the partner Mrs. Rama Arora wife of Shri Subhash Arora sold her share ie. the building structure situated on 6, Green Park, New Delhi which is now known as hotel Amaltas Intemational Mr Sashi Ranjan further told that al the properties i.e. 4,5 and 6 Green Park are held by three different persons i.e. the owner of 4, Green Park is Mrs. Ansul Arora and 5 Green Park is Mr. Subhash Arora and 6, Green Park was purchased by Amaltas Group. Mr Sashi Ranjan after providing key information provided a copy of lease deed in the favour of Shri Bhim Singh for 5 years given by Shri Subhash Arora. Further, Mr. Bhim Singh taken this hotel ie. 4 & 5 Green Park on lease for 05 years in the month of Mar 2018 then he changed the name of this hotel from Le Traventino to Hotel Try Fena. After enquiries from Mr. Sashi Ranjan, the Inspector of Income Tax enquired from Shri Nitish Kumar Verma (Mob. No. 9810805283) Manager Hotel Tryfena. He told that the owner of this Hotel Tryfena, 4 & 5 Green Park is Shri Bhim Singh who has taken this hotel on lease form Shri Subhash Arora and Mrs. Ansul Arora for 05 years on rental basis of Rs. 7.5 lakhs per month and paying rent to Mr. & Mrs. Arora through cheque. In support he has provided a copy of bank statement of Axis Bank A/c 918020022391195 for the period from 01.09.2018 to 14.09.2018 in which on 07.09.2018 Rs. 8.10 lakh paid to Shri Subhash Arora vide cheque No. 233661. On perusal of the bank statement the Inspector asked Mr Verma, if agreement was made on Rs. 7.5 lakh then why Hotel TryFeena is paying 8.10 lakh to Mr. Subhash Arora. In reply Mr Verma stated that the rent is Rs. 7.5 lakh/PM + 18% GST is 1.35 lakh - 10% TDS of Rs. 75000/- which comes to Rs. 8.10 lakh further he told that since they are paying GST therefore, during filing of GST return they claimed input credit for the same. The Inspector further enquired about Mr. Bhim Singh and it was found that he is out of Delhi. However, a telephonic call was made to Mr Bhim Singh and he was asked about having any relation with Shri Suresh Singh Bhadoria. Mr. Bhim Singh replied that he don't know any Mr. Suresh Singh Bhadoria. The AO while passing the assessment order has neglected all these key details gathered from field enquiry by the Inspector of Income Tax. 4.1.2 The AO thereafter, referred the property purchased by appellant located at 6 Green Park, Delhi for valuation to DVO. The DVO in compliance issued ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 8 of 28 letter dated 04.05.2019 to 16.05.2019 requiring assessee to file details of construction and investment made in the Hotel building located at 6, Green Park, Delhi. The appellant in reply on 24.05.2019 submitted that the property was constructed by seller and no further construction was done by appellant. The DVO thereafter, vide letter F No DVO/ND/IT- 01/142A/2018-19/32 dated 05.06.2019 requires the AO to advise DVO in view of the submission of assessee. The AO in view of the said letter held that the assessee did not cooperate with the DVO for valuation of the property. However, the assessee has duly complied the letters of DVO. 4.1.3 At the outset, let me admit upfront that there is no direct and cogent evidence to support the finding of AO that appellant purchased the impunged property for Rs. 26 crores by making alleged cash payment of Rs. 14 crores and cheque payment of Rs. 12 crores and the same represent 'unaccounted investment' of the appellant. After taking the entire factual matrix and evidence/material on record inter alia after analysing the field enquiry of the Inspector of Income Tax, I reach to conclusion that impunged addition was made on the basis of assumption, presumption and conjuctures which neither sustainable on facts nor in law. My findings on the issue under consideration are base on the various conclusions drawn by me which have been discussed in the forthcoming paras under various broad headings. [A] Additions based on 'dumb documents' are not sustainable: The AO has reached to conclusion that appellant paid purchase consideration of Rs. 20 crores based on a documents seized from the premises located at 2 RK Puram AB Road, Indore. This document and its evidentiary value has been discussed as follows:- (i) Pg no 25 of AO-3/LPS-3: This document has been scanned on page 8 of assessment order. On a plain and cursory look would make it amply clear that this paper is relating to "Hotel Traventino, Delhi'. Appellant has argued that a proposal was brought for consideration by a broker Shri VP Singh along with his two partners. The proposal was for purchase of hotels located in Greens Park, Delhi for sale consideration of Rs. 26 crores. Since the price was on higher side the deal was negotiated at Rs. 20 crores and a token amount of Rs. 5 lakhs was paid to the broker with condition that the cheque will be realized after the deal is materialized. The deal eventually did not materialized and the cheque was never presented by Shri VP Singh. An affidavit dated 25.09.2018 has been filed by the brokers confirming the said facts. Thus, the loose paper under consideration is nothing but dumb document and cannot be used against the assessee being. This loose paper as per AO is incriminating paper mentioning details of the deal, however, this 'proposal' is on plain paper, not having signature of any person/party, date of execution, description of land, name and address of parties (proposer and acceptor) etc. In short this proposal is not a legally enforceable document. The question which need to be answered as to whether this paper/document can be made a valid basis to infer that assessee has paid sum of Rs. 26 crores for purchase of the said property as ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 9 of 28 inferred by the AO on the basis of this paper. This document merely speaks of name of a hotel with value Rs. 26 crores however, other details of property are completely missing. This is sufficient to accept me the contention of the appellant that no such proposal was actually executed by the assessee and proposal remained only on paper and seized paper represents a "dumb document'. In view of all these facts and circumstances, I fully agree with the appellant that Pg no 25 of AO-3/LPS-3 cannot be used as legally admissible evidence to determine the purchase price of property at Rs. 26 crores on assumption and presumption basis. Conclusion drawn by AO on the basis of loose paper is devoid of any merits and hence not acceptable. This is settled legal position that any 'dumb document' cannot be used as an evidence to draw an adverse inference against the assessee. Case laws supporting this proposition are as under:- ACIT Vs. Satyapal Wassan (2007) 295 ITR (AT) 352 (Jabalpur) Held that "the crux of these decisions is that a document found during the course of search must be a speaking one and without any second interpretation, must reflect all the details about the transactions of the assessee in the relevant assessment year. Any gap in the various components as mentioned in section 4 of the Income Tax Act must be filled up by the Assessing Officer through investigations and correlations with the other material found either during the course of the search or on the investigation. As a result, we hold that document No.7 is a non-speaking document." Most important ratio laid down in the said judgment is that "impugned document" must be speaking one and without any second interpretation and must reflect all the details about transactions of the assessee and the relevant assessment year. In the instant case, such vital details viz. Dates of transaction & payment, names of parties and their acknowledgement to transaction i.e. their signature are conspicuously missing. Absence of these vital details is making the notings as "deaf & dumb document". The onus was solely on the AO to fill such vital gaps by bringing positive evidence on record and prove the allegation about alleged "on-money" payment by the assessee to sellers, which he utterly failed to do so. Rakesh Goyal Vs. ACIT (2004) 87 TTJ (Del) 151- The findings of Hon'ble Tribunal was as under:- "20.1 After perusing the findings of the CIT(A) and the submissions of both the parties, we do not find any infirmity in these findings. Firstly the finding of the CIT(A) has not been controverted by the learned Departmental Representative by filing any positive evidence. The copies of the pages found from the possession of the assessee are placed in the paper book and after going through these papers, we find that these are simply deaf and dumb documents and they cannot be considered for making any addition. This is a settled principle of law that any document or entry recorded in those documents should be corroborated with positive evidence. Here in the present ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 10 of 28 case nothing has been corroborated or proved that assessee was dealing in money lending business." Mohan Foods Ltd Vs. DCIT (2010) 123 ITD 590 (Del) - Held that -- although the contents of the relevant seized documents show that the amounts mentioned therein relate to some expenditure, in the absence of any other evidence found during the course of search or brought on record by the AO to show that the said expenditure was actually incurred by the assessee, the same cannot be added to the undisclosed income of the assessee by invoking the provisions of s. 69C-Assessee explained that the said entries represented estimates made by its employees in respect of proposed expenditure-There is no evidence on record to rebut/controvert the said explanation- Additions not sustainable CIT VS. S M Agarwal (2007) 293 ITR 43 (Del) - Held that - "In this case the department seized documents "Annexure A-28 p. 15. - gives the details of certain handwritten monetary transactions which shows that the assessee had given a loan of Rs. 22.5 lacs on interest and earned interest income of Rs. 3.55 lacs on it. The Tribunal hold this document as dumb document. The relevant findings of the Tribunal as mentioned in the above order is as under- "We have ourselves examined the contents of the document and are unable to draw any clear and positive conclusion on the basis of figures noted on it. The letters 'H.S.. 'T.2' and 'D-Shop' cannot be explained and no material has been collected to explain the same. Likewise, the figures too are totally unexplained and on the basis of notings and jottings, it cannot be said that these are the transactions camed out by the assessee for advancing money or for taking money. Thus, in our opinion, this is a dumb document." Hon'ble High Court confirmed the findings of the Tribunal and relevant findings was as under- "12. It is well settled that the only person competent to give evidence on the truthfulness of the contents of the document is the writer thereof. So, unless and until the contents of the document are proved against a person, the possession of the document or handwriting of that person, on such document by itself cannot prove the contents of the document. These are the findings of fact recorded by both the authorities i.e. CIT(A) and the Tribunal." "15. Similarly, in the present case, as already held above, the documents recovered during the course of search from the assessee are dumb documents and there are concurrent findings of CIT(A) and the Tribunal to this effect. Since the conclusions are essentially factual, no substantial question of law arises for consideration". Jayantilal Patel Vs. ACIT & Ors (1998) 233 ITR 588 (Raj)- Held that - ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 11 of 28 "During search at the residence of Dr. Tomar, the Department official found a slip containing some figures. This piece of paper claimed to have been recovered at the time of search contains figures under two columns. In one column, the total of these figures comes to Rs. 17.25,000 from 31st May, 1989, to 8th Dec., 1989, and in the other column, the total of these figures comes to Rs. 22,12,500. An addition of Rs. 22,12,500 on the basis of figures on a small piece of paper in respect of purchase of Plot No. B-4, Govind Marg, Jaipur was made by the AO. This plot B-4, Govind Marg, Jaipur, has been purchased jointly by Dr. Tomar, Dr. Mrs. Tomar and B.S. Tomar, HUF, Held that no addition on account of entries on a piece of paper which is claimed to have been found at the time of search, can be made, treating the figures as investment for purchase of plot No. B-4, Govind Marg, Jaipur in the hands of Dr. Tomar, Dr. Mrs. Tomar and B.S. Tomar HUF." Ashwani Kumar Vs. ITO (1992) 42 TTJ (Del) 644: Hon'ble Tribunal in this case has discussed at length the applicability of provision of Sec. 132 (4A) when seized from possession of assessee. Here in the present case, even loose papers were not seized from the possession of the assessee but from other premises. So, legally speaking provision of Sec. 132 (4A) cannot be invoked against the assessee. Moreover, since these loose papers are in the nature of "deaf & dumb" document, onus was on revenue to collect necessary evidence which may provide an acceptable narration to entries on loose papers. Hon'ble tribunal has Held that - "In order to attract the presumption under s. 132(4A), the first requirement is that the document should be found in possession or control of the assessee. In this case the Revenue has been saying that the document was found inside the shop of the assessee. However, there is nothing in the orders of the authorities below to show that the slip was in possession and control of the assessee. Everything physically present inside the shop of a person may not be in that person's control and possession. For proving possession it is necessary to show that the person concerned had the intentio possessendi. In this case nothing of that sort is pointed out by the authorities below. Then, for presuming that the contents of the books of account or document are true, the document must be speaking one. In this case the slip said to have been recovered by the Revenue, does not contain any narration in respect of the various figures noted therein. The slip does not indicate whether the figures referred to quantities of money or to quantities of goods and whether one side, and if so, which side represents receipts which side represented outgoings. Thus, is, thus, a dumb document and as the orders of the authorities below would show they have merely added the total of the right side of the slip without supplying the figures any language to indicate their meanings. In the case of such a dumb document, the provisions of s 132(4A) do not permit anyone to presume that the total of the figures of right side of the slip represents the assessee's income. The presumption at the most is attracted to the figures and a further presumption that they represent the income of the assessee is not permissible under s. 132(4A). When a dumb document, like the present slip, is recovered and the Revenue wants to make use of it, it is the duty of the Revenue to collect necessary evidence which may provide an ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 12 of 28 acceptable narration to the various entries. The evidence collected should be such that any reasonable man would accept the hypothesis advanced by the Revenue that the figures written on the right side of the slip represent incomes earned by the assessee. It was conceded that no such evidence has been brought on record. Further, the Revenue has given no adjustment to the entries on the left side of the slip. Therefore, the slip in question did not indicate that the figures represents receipt of income to that extent by the assessee and it was not permissible to the Revenue without procuring any evidence to support such a hypothesis that the entries record the income of the assessee and to presume such assumed narration of the entries to be true. Therefore, the additions cannot be sustained and they are hereby deleted. NK Malhan Vs. DCIT (2004) 91 TTJ (Del) 938- Held that- "We have perused the aforesaid explanation and the seized document placed at assessee's paper book-l pp. 48 and 50. The document does not state of any date or the year against the entries written therein. It does not show whether the assessee has made or received any payment. It also cannot be deciphered from the said documents that the entries therein pertain to the block period. The AO also did not bring on record any material to show that any investment has been made by the assessee in any chit fund company or otherwise. The document found and seized might raise strong suspicion, but it could not be held as conclusive evidence without bringing some corroborative material on record. The document contained only the rough calculations and was silent about any investment. On the basis of such a dumb document, it cannot be said that there were investments made in fact by the assessee. Heavy onus lay upon the Revenue to prove that the document gives rise to undisclosed investment by the assessee. This onus has not been discharged. Accordingly no addition of undisclosed income could be made on the basis of such a document. Such a view has also been entertained by the Hon'ble Allahabad High Court in CIT vs. Dayachand Jain Vaidya (1975) 98 ITR 280 (All). The addition so made, therefore, is directed to be deleted." Further, Ld AR of the assessee has also placed reliance on the following case laws:- Stanamsingh Chhabra vs. Dy. CIT (2002) 74 TTJ (Lucknow) 976: None of the loose papers seized are in the hand writing of the assessee. There is some jotting by pencil in some coded form on the loose papers made by the surveyed person or some other person. Moreover, no entries are supported by any corroborative evidence; such loose papers can not be called even the documents as they are simply the rough papers to be thrown in the waste paper basket. In this connection, the assessee relies upon the court decisions. CIT Vs. Chandra Chemouse P. Ltd. (2008) 298 ITR 98 (Raj.): it is held that - ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 13 of 28 (i) Additions can be made only when evidence is available as a result of search or a requisition of books of accounts or documents and other material. However additions cannot be made on the basis of inferences. (ii) No facts were available to AO after search and inference of AO did not fall within the scope of Section 158BB. (iii) Deletion of additions made by Tribunal of assumed undeclared payments made for purchase of property was on basis of facts. Ashwani Kumar V. ITO (1991) 39 ITD 183 (Del) and Daya Chand V. CIT (2001) 250 ITR 327 (Del) and S.P. Goel V. DCIT (2002) 82 ITD 85 (Mum.) Nine out of 19 slips found were without any name or amount and therefore were dumb documents and no adverse inference could be drawn. Further, in numerous other case laws courts have consistently upheld the view that no addition could be made in the hands of the assessee on the basis of the dumb loose papers seized during search, in absence of any corroborative material to show payment of any undisclosed consideration by the assesssee towards purchase of land. Some of the case laws are as under:- (i)MM Financiers (P) Ltd Vs. DCIT (2007) 107 TTJ (Chennai) 2000 Held that "no addition could be made in the hands of assessee on the basis of the dumb loose slips seized from his residence, in the absence of any corroborative material to show payment of any undisclosed consideration by the assessee towards purchase of land". (ii)Monga Metals (P) Ltd Vs. ACIT 67 TTJ 247 (All. Trib)- Holding that Revenue has to discharge its burden of proof that the figures appearing in the loose papers found from assessee's possession constitute undisclosed income. [In the present case, loose papers were not even seized from assessee's possession]. (iii) Pooja Bhatt Vs. ACIT (2000) 73 ITD 205 (Mum. Trib) Held that where document seized during search was merely a rough noting and not any evidence found that actual expenditures were not recorded in books of account, additions not justified. [In the instant case, similarly no other corroborative evidence was found in search to prove that details/figures mentioned in notings on page 117 to 119 of A/1 represent 'on money' payments by the assessee). (iv) Atual Kumar Jain Vs. DCIT (2000) 64 TTJ (Del.Trib) 786- Held that additions based on chit of paper, surmises, conjectures etc could not be sustained in the absence of any corroborative evidence supporting it. [Similarly in present case, neither either parties have admitted ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 14 of 28 payment/receipt of 'on money' nor any corroborative evidence was seized to support the findings of the AOJ. (v)SK Gupta Vs. DCIT (1999) 63 TTJ (Del.Trib) 532 Held that "that additions made on the basis of torn papers and loose sheets cannot be sustained as same do not indicate that any transaction ever took place and does not contain any information in relation to the nature and party to the transaction in question." (vi) Jagdamba Rice Mills Vs. ACIT (2000) 67 TTJ (Chd) 838 Held that "No addition can be made on dump documents". [B] Purchase transaction through banking channel and properly reflected in books: It has been explained that assessee company has purchased hotel located at 6, green park, Delhi for sale consideration of Rs. 12 crores. Against this 120 bank drafts of Rs. 9,90,000/- each amounting to Rs. 11,88,00,000/- of Bank of India, Index Medical College, Indore were paid. Further TDS @ 1% amounting to Rs. 12,00,000/- was also deducted. Further, registry charges of Rs. 72,00,000/- were alsopaid by appellant company. Ld AR has vehemently challenged that all the transactions of purchase of land are duly reflected in the regular books of accounts of the firm. However, the AO has alleged that appellant failed to explain source of investment in the said property amounting to Rs. 12 crores. Such vague allegation of the AO reflects that the AO has not perused books of accounts of the appellant. I have perused the ledger account filed by the appellant which speaks that sum of Rs.11.88 crores was transferred from M/s Amaltas Educational Welfare Society (In short AEWS). Further, AEWS has received the said sum from Index Medical College. All the details are fully recorded in books of account of the appellant and the books of account of the appellant have been accepted by the AO. Thus, appellant has successfully demonstrated that source of investment in purchase of impunged property. This is important to note that all the relevant details/evidences were also filed before the AO during assessment proceedings who did not take any adverse inference of the same. Thus, no adverse view can be taken in the case of appellant firm when transaction has been properly reflected in its books with source of money properly explained. [C] Prevailing market rate not in consonance with estate of AO: It is well known that market rate of any property transaction can be best captured by real-life transactions where rate is determined by the free will and bargaining powers of buyers/sellers acting in free market situation or by the rates determined by the stamp valuation authorities. As culled out from the registered sale deed the market vale of the property was at Rs. 8,37,90,937/- and appellant has purchased the property at Rs. 12,00,00,000/- . The ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 15 of 28 prevailing guideline value at the relevant time does not support the sale value estimated by the AO @ Rs. 26 crores at the relevant time. Following analysis is self evident to establish the unsustainability of very high-pitched estimate made by the AO for making such huge addition. [D] Onus of proof on revenue: The AO has made the allegation against the assessee comapny that it had made unexplained investment of Rs. 26,00,00,000/- in AY 2016-17 by making payment partly by cheque and partly by CASH. In absence of any admission by any partner on behalf of firm or by any of the sellers or any incriminating document/paper to establish that assessee company paid cash to the tune of Rs. 14 crore to the sellers against the presumed sale consideration of Rs. 26 crores no addition can be made to the income of the appellant. It is settled legal position that onus of proof is on the person who makes any allegation and not on the person who has to defend. As per legal maxim "affairmanti non neganti incumbit probation" means burden of proof lies upon him who affirms and not upon him who denies. Similarly as per doctrine of common law "incumbit probation qui digit non qui negat" i.e. burden lies upon one who alleges and not upon one who deny the existence of the fact. It is manifestly clear that except making allegation of payment of 'on money' or say payment of entire consideration by cash whereas cheque payments are properly reflected in the books, the AO has not brought any cogent evidence to substantiate his allegation. Hence, the AO has failed to discharged his onus of proof especially when addition has been made under "deeming fiction" enshrine in section 69 of the Act. In view of this lacune on the part of AO, impunged addition is legally not sustainable. As held in the case of CIT v/s KP Varghese 131 ITR 574 (SC) by Hon'ble Apex Court in absence of evidence that actually assessee paid more amount than declared in registered deed, no addition can be made. In the case of Bansal Strips (P) Ltd & Ors Vs. ACIT (2006) 99 ITD 177 (Del) it has been held that :- "If an income not admitted by assessee is to be assessed in the hands of the assessee, the burden to establish the such income is chargeable to tax is on the AO. In the absence of adequate material as to nature and ownership of the transactions, undisclosed income cannot be assessed in the hands of the assessee merely by arithmetically totally various figures jotted down on loosed document". In this present case also the assesseee (buyer) as well as sellers have denied about 'on money' transactions, and AO failed to discharge his burden of bringing corroborative evidence, hence ratio is squarely applicable. [E] No proof relating to cash payment: This is an undisputed fact that neither any incriminating material was found or seized during search proceedings nor the seller party or purchaser party has ever admitted in their statements about payment of purchase/receipt consideration with regard to impunged property for Rs. 26 crores assumed by the AO. In absence of any corroborative evidence to prove that there was any exchange of money by CASH between buyer and seller over and above the ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 16 of 28 consideration shown in the registered deed, AO has no locus to assume that some "on-money" must have been was paid that to in cash despite having no corroborative evidences to support his finding. Hon'ble Supreme Court in the case of CIT v/s KP Varghese (SC) 131 ITR 594 has held that:- "Accordingly, if the revenue seeks to bring a case within section 52(2), it must show not only that the fair market value of the capital asset as on the date of the transfer exceeds the full value of the consideration declared by the assessee by not less than 15 per cent of the value so declared, but also that the consideration has been understated and the assessee has actually received more than what is declared by him. There are two distinct conditions which have to be satisfied before sub-section (2) can be invoked by the revenue and the burden of showing that these two conditions are satisfied rests on the revenue. This burden may be discharged by the revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has not correctly declared or disclosed the consideration received by him and there is understatement of concealment of the consideration in respect of the transfer." [H] Addition is not sustainable made on assumption, presumption basis is not sustainable: As discussed in foregoing paras there is absolutely no corroborative evidence or incriminating material to infer that a sum of Rs. 26 crores was paid for purchasing the property under consideration. It is manifestly clear that the AO has made the addition of Rs. 26.00 cr in AY 2016-17 merely on assumption, presumption and conjecture basis. It is settled law that the AO cannot make any addition merely on basis of suspicion, however strong it may be. The AO is not justified in presuming certain facts without having anything to corroborate. Hon'ble Supreme Court in the case of Dhakeshwari Cotton Mills Ltd. v/s CIT (1954) 26 ITR 775 (SC) has held that although strict rules of evidence Act do not apply to income tax proceedings, still assessment cannot be made on the basis of imagination and guess work. It has been held in the case of Umacharan Saha & Bros co. v/s CIT 37 ITR 21 (SC) that suspicion, however strong cannot take place of evidence. Similar views have been expressed by Apex court in the case of Dhiraj Lal Girdharilal v/s CIT (1954) 26 ITR 736 (SC). Conclusion:- In view of above discussion inter alia facts of this case, I reach to the conclusion that in absence of any corroborative evidence, statement of seller or buyer, the allegation of the AO that appellant company had paid sum of Rs. 26 crores is not found tenable. Documents found/seized during search are 'dumb documents' and mere proposals for development of impugned property. From data obtained and spot enquiry done, it is proved that entire property was not purchased by the appellant, only a part of the property was purchased by appellant. The actual purchase consideration paid by cheque and duly reflected in the books of the appellant firm for which sources have been explained. Notwithstanding the above findings, it is important to note that all ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 17 of 28 the broker whose names are mentioned on the impunged loose papers have filed an affidavit stating that the proposed deal did not materialized. 4.1.4 In view of the above discussion, addition made by the AO amounting to Rs.26,00,00,000/- is deleted. Therefore appeal on these grounds is allowed.” 8. Before us, Ld. DR strongly supported the assessment-order and opposed the order of first-appeal. Ld. DR raised following contentions: (i) Drawing our attention to the seized document “LPS-3(PO)-Page-25”, it is submitted that the document clearly demonstrates the consideration of Rs. 26 crore and brokerage of Rs. 26 lakh (Rs. 5 lakh + 13 lakh + 4 lakh + 4 lakh). He submitted that the document itself mentions ½% at Rs. 13 lakh, thus mathematical interpolation at 1% of Rs. 26 crore exactly come to Rs. 26 lakh; therefore the brokerage of Rs. 26 lakh corroborates with the consideration of Rs. 26 crore in clear and unambiguous terms. He also submits that the document is signed by brokers. Drawing our attention to Page No. 17 of assessment-order, it is submitted that the assessee has himself filed a Ledger A/c of Smt. Rama Arora wherein a total payment of Rs. 14.50 Crore + Rs. 12 crore; aggregating to Rs. 26.50 crore has been shown. Thus, according to Ld. DR, the seized document is fully corroborated and can’t be said to be a dumb document as held by CIT(A). (ii) It is further submitted that the seized-document itself reveals that brokerage of Rs. 5 lakh had been paid. He submitted that nobody will pay a single penny towards brokerage unless the deal has actually materialized. (iii) Drawing our attention to Para No. 9.5 of the assessment-order, he submitted that during assessment-proceeding, the AO also made a reference to the Departmental Valuation Officer (DVO) for valuation of investment made by assessee so that the true quantum of investment ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 18 of 28 can be ascertained for the purpose of section 69 but the assessee did not co-operate with DVO. (iv) With these submissions, Ld. DR argued that the assessee actually made investment of Rs. 26 crore and not Rs. 12 crore. Then, Ld. DR also submitted that though the assessee claims that out of Rs. 26 crore, Rs. 12 crore was paid by cheque but the assessee has not substantiated the source of Rs. 12 crore also. Therefore, according to Ld. DR, the AO has rightly added the entire investment of Rs. 26 crore as unexplained u/s 69; his action must be upheld. 9. Per contra, Ld. AR vehemently supported the order of first-appeal. Ld. AR raised following contentions: (i) It is submitted that the AO has not understood the case of assessee properly although the assessee had brought real factual matrix to the knowledge of AO during assessment-proceeding vide letter dated 13.12.2019 itself. The fact is one broker called V.P. Singh approached assessee for a deal of “Hotel Traventino” situated over 4, 5 & 6, Green Park, Delhi for Rs. 26 crore but the assessee made a counter proposal of Rs. 20 crore and issued a cheque of Rs. 5 lakh to V.P. Singh subject to the condition that the cheque shall be presented for payment upon finalization of deal. But the deal did not materialize and the cheque of 5 lakh was also not presented for payment. Subsequently the assessee purchased a smaller hotel namely 6, Green Park, which is actually a part of the same “Hotel Traventio” for Rs. 12 Crore from one of co- owners, Smt. Rama Arora. After purchase, the assessee re-named his part as “Hotel Amaltas International”. (ii) It is further submitted that the AO himself deputed the departmental Inspector who submitted Report which is also scanned on Page No. 11 to 12 of the order. Ld. AR read over the contents of the report line by line to show that the Inspector has himself accepted that (i) there are ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 19 of 28 two adjacent hotels being carried on, one named “Tryfena” and other named “Amaltas International”, at 4, 5 and 6, Green Park, Delhi; (ii) both hotels have 1 main entrance and 2 small entrances; originally the name of all building was “Hotel Le Travetino”; (iii) in the year 2014, one of the partners Smt. Rama Arora sold her share i.e. the building situated on 6, Green Park, Delhi which was thereafter known as “Hotel Amaltas International”; (iv) that the hotel situated at 4 & 5 had changed its names from “Traventino” to “Potala” to “Tryfena”, presently named as “Tryfena” is being carried on by Shri Bhim Singh who had taken the same on lease of 5 years from Mrs. Ansul Arora and Mr. Subhash Arora. The inspector also enclosed copies of visiting cards of both hotels. Ld. AR submitted that the Inspector-Report itself accepts and support’s the assessee’s version that the hotel “Traventino/Tryfena” and “Amalatas International” are two independent hotels, though side by side, and the assessee is owner only of 6, Green Park, Delhi and not of 4 and 5, Green Park, Delhi. Ld. AR submitted that based on inspector-report, the AO has himself accepted this factual position on Page No. 13 of assessment-order (already re-produced earlier in this order and being repeated once again for a quick reference): “From the above report it is inferred that at the address 4, 5 & 6 Green Park, previously one hotel named Le Traventino was functioning. All the three plots 4,5 & 6 are adjoining to each other. One of the building/structure situated at 6, Green Park was purchased by the assessee concern and the name of this part of the hotel was changed to Hotel Amaltas International. Hotel Le Traventino remained at plot 4,5, Green Park with the original owners. Thus it can be concluded that part of Hotel Traventino has been purchased by the assessee.” Ld. AR pointed out that having accepted this, the AO himself referred valuation of only 6, Green Park to DVO u/s 142A and not the valuation of 4 & 5, Green Park. ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 20 of 28 Thus, Ld. AR made a strong submission that the factual matrix as explained by assessee to AO is fully corroborated by inspector’s report. (iii) Regarding valuation by DVO, our attention is drawn to Page No. 15 of the assessment-order where a copy of the letter dated 24.05.2018 filed by assessee to DVO is placed. Referring to same, Ld. AR submitted that the assessee apprised twin-facts to DVO, namely (i) the impugned property consisting of land and building as mentioned in the registered sale-deed was purchased by assessee as such from seller and after purchase no construction was done by assessee; and (ii) the Registrar of Stamps had valued property at Rs. 8,37,90,937/- whereas the assessee purchased the same for Rs. 12,00,00,000/- which was much higher. In such a scenario, the valuation of property was not required. Ld. AR submitted that the objection of assessee was very much legal and valid. Ld. AR submitted that a legal and valid objection can’t be termed as non-cooperation. (iv) Regarding payment of Rs. 14.50 crore appearing in the Ledger A/c of Smt. Rama Arora, Ld. AR submitted that the AO has mentioned half of the story. Referring to the copy of Ledger A/c placed at Page No. 25 of the Paper-Book, Ld. AR submitted that there is a payment entry of Rs. 14.50 crore on 10.03.2015 but at the same time there is also a refund-entry of Rs. 14.50 on 14.03.2015 in the A/c of Smt. Rama Arora. He submitted that the AO has talked about payment but deliberately not talked about refund. Ld. AR submitted that the entire property was owned by Smt. Rama Arora and two other owners (Shri Subash Arora and Mrs. Ansul Arora) and the payment/refund of Rs. 14.50 crore made to Smt. Rama Arora is a part of same factual matrix as submitted by assessee i.e. initially there was a proposal to purchase entire property of Hotel Traventino and it is for that reason that the assessee made a payment of Rs. 14.50 crore to Smt. Rama Arora, one of the co-owners of property, but when the proposal could ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 21 of 28 not materialize, the assessee received immediately received refund. Therefore, ultimately, there was no payment of Rs. 14.50 crore. (v) With regard to investment of Rs. 12 crore (paid by cheque), the AR submitted that assessee made a payment of Rs. 11,88,00,000/- through various demand-drafts (Rs. 2,50,00,000/- on 31.03.2015 + Rs. 9,38,00,000/- on 03.04.2015); deducted TDS of Rs. 12,00,000/- under the provisions of Income-tax; and thereafter sale-deed was executed on 08.04.2015. He submitted that the assessee filed a copy of bank-statement to AO during assessment-proceeding (copy placed at Page No. 56 of Paper-Book) which clearly revealed that Amaltas Educational Welfare Society (AEWS) transferred equivalent sums to assessee and by utilizing those funds, the assessee made payments to Smt. Rama Arora. Ld. AR further submitted that AEWS was also a part of the same search and the case of AEWS was also centralized with the same AO. Ld. AR also submitted that the investment of Rs. 12,00,00,000/- is fully recorded in the books of account of assessee produced before AO. Therefore, to say that the assessee has not substantiated the investment of Rs. 12,00,00,000/- is a mere allegation far from fact. (vi) With these submissions, Ld. AR argued that the AO has wrongly made an addition of Rs. 26 crore to assessee’s income but the CIT(A) has correctly appreciated the facts and after due consideration deleted the same. Ld. AR prayed to uphold the order of CIT(A). 10. In Rejoinder, Ld. DR submitted that the department does not have any quarrel with purchase of 6, Green Park, Delhi. He submitted that in fact the department’s case is that the assessee purchased 6, Green Park, Delhi for Rs. 26 crore and not the entire property consisting of 4, 5 and 6, Green Park. Replying to this, Ld. AR submitted that the valuation of 6, Green Park, Delhi by Registrar of Stamps was Rs. 8,37,90,937/- and the assessee has ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 22 of 28 purchased for Rs. 12,00,00,000/- which is already much higher (about 143%); it is totally irrational to assume that 6, Green Park can have value of Rs. 26 crore. Ld. AR re-iterated that throughout the proceeding, the assessee has made it known to AO that there was a proposal for purchase of entire property for Rs. 26 crore but the same could not materialize and ultimately there was purchase of a smaller portion, namely 6, Green Park, for Rs. 12 crore but the authorities have proceeded and concluded on mere assumption, presumption and conjecture rather than accepting factual submission of assessee. 11. We have considered rival submissions of both sides and perused the material held on record including the orders of lower-authorities. After a careful consideration, first of all we observe that the impugned document “LPS-3(PO)-Page-25” was seized from assessee and the assessee has nowhere disowned the same. In fact, the assessee has explained the contents of document, namely Rs. 26 crore mentioned in the document was for a proposed deal; the payment of Rs. 5 lakh mentioned in the document was made to Mr. V.P. Singh (and his associate brokers) through cheque but the cheque was not encashed because the deal could not be effected. Therefore, we do not agree with the conclusion taken by Ld. CIT(A) that the seized document was a ‘dumb document’. However, going forward to other aspects of the issue, we find that the assessee has very clearly explained to AO that initially a proposal came to assessee for Rs. 26 crore for property but the assessee made a counter proposal for Rs. 20 crore and also issued a cheque of Rs. 5 lakh to broker. But, however, the deal could not be effected. The assessee also explained that the cheque of Rs. 5 lakh was given to broker with the condition to present for payment after finalization of deal but since the deal could not be finalised, the cheque was never presented/ encashed. We find that the factum of proposed deal, non-finalisation of deal, and non-presentation/non-encashment of cheque are very much proved by assessee by submitting a joint affidavit of the brokers placed at Page No. 45 ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 23 of 28 to 46 of the Paper-Book. We also find that it is not a case of department that the impugned cheque of Rs. 5 lakh was en-cashed; therefore the assessee’s claim that brokerage was not paid is well substantiated and can’t be questioned at all. Going further, we find substance in the submission of Ld. AR that initially the assessee paid a sum of Rs. 14.50 crore to Smt. Rama Arora (one of the co-owners) but the same was refunded because the proposed deal of entire property consisting of 4, 5 and 6, Green Park could not be done. Thereafter, the assessee paid a sum of Rs. 12 crore to Smt. Rama Arora towards a new deal of her own share in the premise namely 6, Green Park. We further observe that the departmental Inspector, deputed by AO, has also confirmed that (i) there are two adjacent hotels being carried on, one named “Tryfena” and other named “Amaltas International”, at 4, 5 and 6, Green Park, Delhi; (ii) both hotels have 1 main entrance and 2 small entrances; originally the name of all building was “Hotel Le Travetino”; (iii) in the year 2014, one of the partners Smt. Rama Arora sold her share i.e. the building situated on 6, Green Park, Delhi which was thereafter known as “Hotel Amaltas International”; (iv) that the hotel situated at 4 & 5, Green Park, named as “Hotel Le Traventino” is being carried on by Shri Bhim Singh who had taken the same on lease of 5 years from Mrs. Ansul Arora and Mr. Subhash Arora. These reporting made by Inspector clearly reveal that the assessee purchased only 6, Green Park and other portion namely 4 & 5 of the same premise belonged to other owners. The report very categorically confirms that originally the entire property was “Hotel Traventino”, but subsequently a part of it namely 6, Green Park was re- named as “Hotel Amaltas International”. Thus, all these factors are in alignment to support the assessee’s explanation that the assessee, though made efforts to purchase full-sized property for Rs. 26 crore but ultimately ended-up with purchasing only a portion of the same for Rs. 12 crore. We also note that the department (even Ld. DR) undisputably agrees that the assessee has purchased only 6, Green Park and not 4&5, Green Park. When it is so, we also find much substance in the submission of Ld. AR that 6, ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 24 of 28 Green Park was valued by Registrar of Stamps at Rs. 8,37,90,937/- and the assessee has already purchased the same for Rs. 12,00,00,000/- which is much higher (about 143%); then by no stretch of imagination it can be accepted that the assessee had purchased 6, Green Park for Rs. 26 crore. Therefore also, it is a mere conjecture and surmise to say that 6, Green Park was purchased by assessee for Rs. 26 crore. We further observe that the AO has not found any document by which it can be observed that there was in fact a cash-payment of Rs. 14 crore made by assessee. We also observe that the twin-objections raised by assessee before DVO were legal and valid and that is why, perhaps, the AO did not insist for valuation and closed the matter although he termed the assessee’s objections as non-cooperation. That brings us to conclude that the assessee has purchased 6, Green Park for Rs. 12 crore by cheque as disclosed in registered-deed. Now, with regard to the investment of Rs. 12 crore by cheque, we find that a payment of Rs. 11,88,00,000/- was made through various demand-drafts (Rs. 2,50,00,000/- on 31.03.2015 + Rs. 9,38,00,000/- on 03.04.2015) after deducting deducted TDS of Rs. 12,00,000/- under the provisions of Income- tax. On perusal of bank-statement filed by assessee to AO, we observe that Amaltas Educational Welfare Society (AEWS) transferred equivalent sums to assessee and by utilizing those funds, the assessee made payments to Smt. Rama Arora. We also find weightage in the submission of Ld. AR further submitted that AEWS was also a part of the same search and the case of AEWS was also centralized with the same AO; hence there can’t be any doubt with respect to AEWS or funds received from AEWS. We also take note of assessee’s submission that the investment of Rs. 12,00,00,000/- is fully recorded in the books of account of assessee produced before AO. Thus, after analysis of entire set of facts, we are of the considered view that the Ld. CIT(A) has rightly concluded that the addition has been made on mere assumption, presumption and conjecture without any cogent material. We countenance the view taken by Ld. CIT(A) and uphold this action. Hence, the revenue does not have any strength in this appeal and fails. ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 25 of 28 IT(SS)A No. 102/Ind/2021 - AY 2018-19: 12. In this appeal, the revenue has raised following ground and challenged the CIT(A)’s action of deleting the addition of Rs. 85,30,540/- made by AO u/s 69A on account of unexplained money: “(1) On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law in deleting the addition of Rs. 85,30,540/- made by the Assessing Officer on account of cash found/seized as unexplained money u/s 69A of the Income-tax Act, 1961.” 13. Facts apropos to this issue are such that during the course of search- proceeding, the authorities found/seized physical cash of Rs. 85,30,540/- from assessee’s premise. Thereafter, during the course of assessment- proceeding, when the AO confronted the assessee to explain the source of cash, the assessee submitted vide letter dated 17.12.2019 (copy placed at Page No. 10 to 21 of Paper-Book) that the impugned cash was related to fee- receipts of “Index Medical College” for admission of students. The assessee also submitted that this fact was also confirmed by Mr. Rajesh Shah, manager, in his statement recorded on 23.03.2018. It was further submitted that the impugned office from where the cash was seized was a centrally located city-office of assessee-group wherein the cash belonging to “Index Medical College” has been kept for the reason of safety. However, Ld. AO did not accept assessee’s submission and made addition. 14. During first-appeal, Ld. CIT(A), however, deleted the addition by observing and holding thus: “I have considered the facts of the case, plea raised by the appellant and findings of the AO. The appellant before me has claimed that the said amount has been shown by M/s Mayank Welfare Society in application filed before ITSC u/s 245C of the Act. The appellant has also filed copy of order passed by Hon'ble ITSC u/s 245D(1) of the Act. the relevant extract of the order of Hon'ble ITSC is as under:- XXX (not reproduced for the sake of brevity) 4.2.2. Thus, it is evidently clear that the said cash has been declared before Hon’ble ITSC and due taxes have been paid. Further, addition made by the AO ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 26 of 28 is nothing but double taxation. In view of the order of Hon’ble ITSC (Supra) the addition made by the AO amounting to Rs. 85,30,540/- is deleted. Therefore, appeal on this ground is allowed.” 15. During hearing before us, Ld. AR submitted that impugned cash- balance has already been a part of disclosure in settlement-application by “Mayank Welfare Society”; hence the CIT(A) has rightly held that any addition in the hands of assessee shall amount to double addition. At that juncture, there was a confusion that in the statements recorded or during assessment-proceeding, the assessee had explained that the seized-cash belonged to “Index Medical College” whereas in the settlement-commission, it was disclosed in the hands of “M/s Mayank Welfare Society”. In reply, Ld. AR submitted that “Index Medical College” is a unit owned and run by “M/s Mayank Welfare Society”. Thus, “Index Medical College” and “Mayank Welfare Society” are one and same but for income-tax purposes, the person/assessee is “M/s Mayank Welfare Society” and that is why the disclosure in settlement had to be made in the name of “M/s Mayank Welfare Society”. The Bench directed the Ld. AR to file a written-clarification on this aspect, which the Ld. AR filed on 15.02.2023 acknowledged by ITAT, Office through Inward Entry No. 1721. The written-note is held on record in which the Ld. AR has confirmed this fact. In this view of matter, we rest our decision on a clear finding made by Ld. CIT(A) that the impugned cash balance has already been declared before Settlement-Commission and further addition in the hands of present assessee would be a double taxation. We agree that there can’t be double taxation of same amount/ income. Therefore, we do not find any valid reason to interfere with the view taken by Ld. CIT(A). The revenue fails in this appeal ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 27 of 28 16. Resultantly, both appeals of revenue are dismissed. Order pronounced as per Rule 34 of I.T.A.T. Rules, 1963 on 28/04/2023. Order pronounced in the open court on ....../....../2023. Sd/- Sd/- (SUCHITRA KAMBLE) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER Indore िदनांक /Dated : 28.04.2023 Patel/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Sr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore ACIT Vs. Amaltas Hotels Pvt. Ltd. IT(SS)A No. 101 & 102/Ind/2021 Assessment year 2016-17 & 2018-19 Page 28 of 28 1. Date of taking dictation 2. Date of typing & draft order placed before the Dictating Member 3. Date on which the approved draft comes to the Sr. P.S./P.S. 4. Date on which the approved draft is placed before other Member 5. Date on which the fair order is placed before the Dictating Member for pronouncement 6. Date on which the file goes to the Bench Clerk 7. Date on which the file goes to the Head Clerk 8. Date on which the file goes to the Assistant Registrar for signature on the order 9. Date of dispatch of the Order