THE ACIT, Central-2, Indore V. M/s. Silver Realities & Infrastructure Pvt. Ltd., Indore

ITSSA 260/IND/2016

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4150 (ITAT-INDORE)
• Duration Of Justice: 4 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 25-02-2021
• Assessment Year: 2011-2012
• Appeal Filed On: 08-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJIB JAIN
• Assessee Lawyers: C P RAWKA; VENUS RAWKA CAS
• Keywords: Search and seizure; Loose papers; Document seized; Documents seized
• Section: 143(3); 153A; 201; 143(2); 191; 64; 13; 153; 22; 132

Judgement Text

SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI RAJPAL YADAV HON'BLE VICE PRESIDENT AND SHRI MANISH BORAD, ACCOUNTANT MEMBER (VIRTUAL HEARING) IT(SS)A NOS.259 TO 269/IND/2016 & ITA NO.1330/IND/2016 ASSESSMENT YEARS: 2010-11 TO 2013-14 ACIT, CENTRAL - 2 INDORE / VS. M/S. SILVER REALITIES & INFRASTRUCTURE PVT. LTD., INDORE (APPELLANT) (RESPONDENT) P.A. NO. A AJCS 3841 D APPELLANT BY SHRI RAJIB JAIN , CIT - DR RESPONDENT BY S/SHR I C.P. RAWKA & VENUS RAWKA, CAS DATE OF HEARING: 01.09.2021 DATE OF PRONOUNCEMENT: 30.09.2021 / O R D E R PER MANISH BORAD: THE ABOVE CAPTIONED APPEALS AT THE INSTANCE OF REV ENUE ARE DIRECTED AGAINST THE COMMON ORDER OF LD. COMMISSION ER OF INCOME TAX(APPEALS)-III, [IN SHORT CIT(A)], INDOR E DATED 28.09.2016 PASSED IN COMMON ASSESSMENT ORDER U/S SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 2 153A/143(3) DATED 26.3.2015. IN THESE APPEALS, THE REVENUE HAS RAISED THE GROUNDS OF APPEALS AS UNDER: GROUNDS OF APPEAL IN IT(SS)A NO.259/IND/2016 (A.Y. 2010-11) 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE AO OF RS .7,46,83,600/- ON ACCOUNT OF UNDISCLOSED RECEIPTS OF ON-MONEY RE CEIVED FROM SALE OF FLATS WITHOUT APPRECIATING THE FACTS AND EV IDENCES BROUGHT INTO LIGHT BY THE A.O. DURING ASSESSMENT PROCEEDING . GROUNDS OF APPEAL IN IT(SS)A NO.260/IND/2016 (A.Y. 2011-12) 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE AO OF RS.12,03,50,000/- ON ACCOUNT OF UNDISCLOSED RECEIPT S OF ON- MONEY RECEIVED FROM SALE OF FLATS WITHOUT APPRECIA TING THE FACTS AND EVIDENCES BROUGHT INTO LIGHT BY THE A.O. DURING ASSESSMENT PROCEEDING. GROUNDS OF APPEAL IN IT(SS)A NO.261/IND/2016 (A.Y. 2012-13) 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE AO OF RS.49,58,74,800/- ON ACCOUNT OF UNDISCLOSED RECEIPT S OF ON- MONEY RECEIVED FROM SALE OF FLATS WITHOUT APPRECIA TING THE FACTS AND EVIDENCES BROUGHT INTO LIGHT BY THE A.O. DURING ASSESSMENT PROCEEDING. 2. GROUNDS OF APPEAL IN ITA NO.1330/IND/2016 (A.Y. 201 3-14) 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE AO OF RS.39,10,91,600/- ON ACCOUNT OF UNDISCLOSED RECEIPT S OF ON- MONEY RECEIVED FROM SALE OF FLATS WITHOUT APPRECIA TING THE FACTS AND EVIDENCES BROUGHT INTO LIGHT BY THE A.O. DURING ASSESSMENT PROCEEDING. 2. THE ONLY ISSUE INVOLVED IN THE PRESENT APPEALS R ELATE TO DELETION OF THE ADDITIONS MADE BY THE ASSESSING OFF ICER ON ACCOUNT OF UNDISCLOSED RECEIPTS OF ON-MONEY RECEI VED SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 3 FROM SALE OF FLATS. AS ALL FOUR APPEALS RELATE TO THE SAME ASSESSEE AND THE ISSUE RAISED IS COMMON, THE SAME W ERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR SAKE OF CONVENIENCE AND BREVITY. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECORDS ARE THAT THE ASSESSEE CO. CONSTRUCTED A ND SOLD RESIDENTIAL UNITS AND COMMERCIAL SPACE IN THE SILVE R SPRING TOWNSHIP SPREAD OVER 139 ACRES SITUATED AT THE BYPA SS, A.B. ROAD, INDORE. DURING SEARCH AND SEIZURE ACTION ON T HE JHAVERI GROUP, CERTAIN DOCUMENTS REGARDING THE RECEIPT OF ON-MONEY WERE FOUND AND SEIZED IN RESPECT OF THE PROJECT SI LVER MANSION AND SILVER MANSION EXTENSION DEVELOPED BY THE JHA VERIES SHOWING THE SALE OF PLOTS IN BOTH THESE PROJECTS @1 500/- PER SQ. FT. THE ASSESSING OFFICER RELIED ON THESE EVIDENCES . THE POST SEARCH ENQUIRIES WERE CONDUCTED IN THE FOLLOWING PR OJECTS: - A. SHIKHARJI PROJECT DEVELOPED BY ANOTHER MEMBER O F THE JHAVERI GROUP, SMT. KOMAL JHAVERI. B. M/S. AJITNATH REALITY P. LTD. C. M/S. PADAMPRABHU INFRASTRUCTURE P. LTD. IN THE POST SEARCH ENQUIRIES CONDUCTED IN THE ABOVE CASES, SOME OF THE PURCHASERS OF THE PLOTS ADMITTED THAT THEY H AVE PAID ON- MONEY FOR PURCHASE OF THE PLOTS. THUS, THE ASSESSI NG OFFICER NOTED THAT THE ASSESSEE CO. DID NOT SHOW CORRECT RE CEIPTS IN THE SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 4 BOOKS OF ACCOUNT AND FORMED THE VIEW THAT THE RATE OF THE CONSTRUCTED HOUSING UNITS IN THE ASSESSEES PROJECT S CANNOT BE LESS THAN RS.1500/- PER SQ. FT. I.E. THE RATE AT WH ICH DEVELOPED PLOTS WERE SOLD IN SILVER MANSION AND SILVER MAN SION EXTENSION PROJECTS. THE ASSESSING OFFICER, REFERRI NG TO THE SUMMONS ISSUED TO SOME SHRI RAMESH CHANDRA GUPTA, G ARIMA CHELANI AND KOKILA CHELANI, TOOK THE AVERAGE SALE P RICE AS PER BOOKS OF ACCOUNT TO BE RS.1100 PER SQ. FT. AND ESTI MATED THAT RS.400 PER SQ. FT. WAS SUPPRESSED AND COMPUTED THE ON-MONEY AT RS.7,46,83,600/-, RS.12,03,50,000/-, RS.49,58,74,800/- AND RS.39,10,91,600/- FOR THE ASSESSMENT YEARS 2010-11 TO 2013-14, RESPECTIVELY. 3. BEING AGGRIEVED, THE ASSESSEE FILED APPEALS FOR ALL THE ASSESSMENT YEARS UNDER CONSIDERATION BEFORE THE LD. CIT(A) AND THE LD. CIT(A), HAVING GONE THROUGH FACTS AND CIRCU MSTANCES OF THE CASE IN THE LIGHT OF JUDICIAL PRONOUNCEMENTS AS NOTED IN THE IMPUGNED ORDER, DELETED THE ADDITIONS MADE BY THE A SSESSING OFFICER. SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 5 4. BEING AGGRIEVED, THE REVENUE IS IN APPEALS BEFOR E THIS TRIBUNAL FOR ALL THE PRESENT ASSESSMENT YEARS. 5. THE LD. CIT-DR RELIED UPON THE ORDER OF THE ASSE SSING OFFICER. PER CONTRA, THE LD. COUNSEL FOR THE ASSESS EE REFERRED AND RELIED ON THE FINDINGS OF LD. CIT(A) AND SUBMITTED THAT THE ADDITIONS BASED ON THE DOCUMENTS FOUND DURING SEARC H WERE NOT RELATED TO ASSESSEE COMPANY AS ALL THE GROUP CONCER NS OF JHAVERI GROUP ARE ENGAGED IN THE BUSINESS OF DEVELOPMENT OF LAND AND SALE THEREOF AFTER PLOTTING, WHEREAS, THE ASSESSEE COMPANY HAS NOT SOLD A SINGLE INCH OF LAND. ITS MAIN AND CORE BUSINESS IS TO CONSTRUCT RESIDENTIAL AND COMMERCIAL UNITS. THE SEI ZURE MADE IN OTHER CASES HAS NO BEARING WHATSOEVER IN THE ASSESS EES CASE. LEARNED COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THA T THE ASSESSING OFFICER REFERRED TO THE SUMMONS ISSUED TO SOME SHRI RAMESH CHANDRA GUPTA, GARIMA CHELANI AND KOKILA CHE LANI. HOWEVER, THE ASSESSEE HAS NO BUSINESS TRANSACTIONS WITH THESE PERSONS. FURTHER, NO SINGLE INCRIMINATING DOCUMENT PERTAINING TO ASSESSEE WAS FOUND/SEIZED FROM THE SAID PREMISES. T HE OPERATION UNDER SECTION 132 WAS SIMULTANEOUSLY CARRIED OUT IN THE PROJECT OFFICE OF THE COMPANY AND THERE ALSO, NO INCRIMINAT ING DOCUMENT WAS FOUND OR SEIZED. SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 6 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFULL Y PERUSED THE RECORDS PLACED BEFORE US. WE FIND THAT THE LD. CIT-DR, EXCEPT PLACING HIS RELIANCE ON THE FINDINGS OF THE ASSESSI NG OFFICER, COULD NOT BRING ANY CORROBORATIVE MATERIAL ON RECORD TO JU STIFY THE ADDITIONS MADE BY THE ASSESSING OFFICER. WE FIND TH AT ASSESSEE IS A PRIVATE LIMITED COMPANY INCORPORATED BY SHRI MUKE SH JHAVERI AND SHRI ABHISHEK JHAVERI ON 27.09.2005 AND ENGAGED IN THE BUSINESS OF CONSTRUCTION OF RESIDENTIAL AND COMMERC IAL UNITS AND SALE THEREOF OF APARTMENT, ROW HOUSES, BUNGALOWS AN D SHOPS. SEARCH & SEIZURE OPERATIONS U/S 132 WERE CARRIED OU T ON 21.09.2012 ON THE BUSINESS AS WELL AS RESIDENTIAL P REMISES OF THE JHAVERI GROUP OF INDORE OF WHICH ASSESSEE COMPANY I S A PART. NOTICES U/S 153A WERE ISSUED AND IN COMPLIANCE TO T HE SAME, ASSESSEE FILED RETURNS FOR RESPECTIVE YEARS U/S 153 A. NOTICES U/S 143(2) WERE ISSUED ON 25.06.2014 ALONG WITH THE QUE STIONNAIRE U/S 142(1). ALL THE NOTICES AND HEARINGS WERE DULY COMPLIED BY ASSESSEE FROM TIME TO TIME ALONG WITH THE BOOKS OF ACCOUNTS, BANK STATEMENTS AND OTHER DOCUMENTS WHICH WERE PROD UCED BEFORE THE ASSESSING OFFICER. AFTER COMPLETING THE ASSESSMENT PROCEEDINGS U/S 153A R.W.S. 143(3), THE ASSESSING O FFICER PASSED ASSESSMENT ORDER WHEREBY HE MADE THE FOLLOWING ADDI TIONS:- SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 7 A.Y. AMOUNT 2010 - 11 RS. 7,46,83,600/ - 2011 - 12 RS. 12,03,50,000/ - 2012 - 13 RS. 63,22,72,745/ - 2013 - 14 RS. 63,82,56,646/ - 7. WE FIND THAT THE LD. CIT(A) HAVING GONE THROUGH THE FACTS AND SUBMISSIONS THEREOF IN THE LIGHT OF THE JUDICIAL PRONOUNCEMENTS DELETED THE ADDITIONS OBSERVING AS U NDER: 5.1 I HAVE GONE THROUGH THE ASSESSMENT ORDER AND T HE SUBMISSIONS MADE BY THE APPELLANT. THE APPELLATE CO MPANY HAS CONSTRUCTED AND SOLD RESIDENTIAL UNITS AND COMMERCI AL SPACE IN THE SILVER SPRING TOWNSHIP SPREAD OVER 139 ACRES SITUAT ED AT THE BYPASS, A.B. ROAD, INDORE. DURING THE SEARCH AND SE IZURE ACTION ON THE JHAVERI GROUP CERTAIN INCRIMINATING DOCUMENT S REGARDING THE RECEIPT OF ON MONEY WERE FOUND AND SEIZED IN RESPECT OF THE PROJECTS SILVER MANSION AND SILVER MANSION EXTEN SION DEVELOPED BY THE JHAVERIES SHOWING THE SALE OF PLOTS IN THE S AID TWO PROJECTS @ RS. 1500/- PER SQ. FT. THE ASSESSING OFFICER HAS RELIED ON THIS EVIDENCE SEIZED IN RESPECT OF THE PROJECTS SILVER MANSION AND SILVER MANSION EXTENSION AND THE POST SEARCH ENQU IRIES CONDUCTED IN RESPECT OF THE FOLLOWING PROJECTS:- (I) SHIKHARJI PROJECT DEVELOPED BY ANOTHER MEMBER OF THE JHAVERI GROUP, SMT. KOKILA JHAVERI. (II) M/S AJITNATH REALITY PVT. LTD. (III) M/S PADMAPRABHU INFRASTRUCTURE PVT. LTD. IN THE POST SEARCH ENQUIRIES CONDUCTED IN THE ABOVE CASES SOME OF THE PURCHASERS OF THE PLOTS ADMITTED THAT THEY HAVE PAID ON MONEY FOR PURCHASE OF THE PLOTS. THE ASSESSING OFFICER HE LD THAT ON THE BASIS OF EVIDENCES SEIZED IN RESPECT OF SILVER MAN SION AND SILVER MANSION EXTENSION PROJECTS AND THE POST SEARCH EVI DENCES GATHER REGARDING ACCEPTANCE OF ON MONEY BY THE JHAVERI GRO UP IN ITS VARIOUS PROJECTS, THE ASSESSEE COMPANY HAS NOT SHOW N CORRECT RECEIPTS IN ITS BOOKS OF ACCOUNTS. THE ASSESSING OF FICER TOOK THE VIEW THAT THE RATE OF THE CONSTRUCTED HOUSING UNITS IN THE ASSESSEE'S PROJECT CANNOT BE LESS THAN RS. 1500/- P ER SQ. FT., THE RATE AT WHICH DEVELOPED PLOTS HAVE BEEN SOLD IN SI LVER MANSION AND SILVER MANSION EXTENSION PROJECTS. THE ASSESS ING OFFICER TOOK THE AVERAGE SALE PRICE AS PER THE BOOKS OF ACCOUNTS TO BE RS. 1100/- PER SQ. FT. AND ESTIMATED THAT RS. 400/- PER SQ. FT. HAS BEEN SUPPRESSED AND MADE THE YEAR WISE COMPUTATION OF TH E ON MONEY AS UNDER:- SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 8 A.Y. BOOKED AREA (IN SQ. FT.) TOTAL RECEIPTS AS PER ASSESSEE @RS.1100/SQ.FT. ACTUAL RECEIPTS @RS.1500/SQ.FT. UN MONEY RECEIVED (COL.3 - COL.2) (1) ( 2 ) (3) (4) 2010 - 11 186709 20,53,79,900 28,00,63,500 7,46,83,600 Z011 - 12 300875 33,09,62,500 45,13,12,500 12,03,50,000 2012 - 13 1239687 1,36,36,55,700 1,85,95,30,500 49,58,74,800 Z013 - 14 977729 1,07,55,01,900 1,46,65,93,500 39,10,91,600 2,97,54,99,998 4,05,74,99,997 1,08,19,99,996 THE APPELLANT COMPANY WAS STARTED BY THE JHAVERIS O N 27/09/2005. IN NOVEMBER, 2005 FIRE CAPITAL FUND OF MAURITIUS INVESTED IN THE APPELLANT COMPANY AND ACQ UIRED 49% SHARES. THEREFORE, IT IS EVIDENT THAT THE APPEL LANT COMPANY DOES NOT WHOLLY BELONG TO THE JHAVERI GROUP . THE SECOND POINT TO BE CONSIDERED IS THAT THE APPELLANT COMPANY HAS DEVELOPED THE PROJECT SILVER SPRING TOWNSHIP WHICH HAS MULTIPLE HOUSING OPTIONS OF 2, 3, 4 AND 5 BEDRO OM UNITS, 3 TYPES OF VILLAS, TOWN HOUSES, TERRACE COTT AGES, DUPLEXES AND COMMERCIAL UNITS. ON THE OTHER HAND AL L THE PROJECTS OF THE JHAVERI GROUP ARE IN RESPECT OF DEV ELOPMENT OF LAND AND SALE OF PLOTS. THE ASSESSING OFFICER HA S RELIED ON THE EVIDENCES FOUND AND SEIZED IN RESPECT OF THE S ILVER MANSION AND SILVER MANSION EXTENSION PROJECTS AN D THE POST SEARCH ENQUIRIES CONDUCTED IN RESPECT OF VARIO US PROJECTS OF THE JHAVERI GROUP WHICH ARE FOR DEVELOP MENT OF LAND AND SALE OF PLOTS. IN THE APPEAL PROCEEDINGS THE APPELLANT POINTED OUT THAT THE ASSESSING OFFICER HAS ADOPTED THE AVERAGE RATE OF RS. 1100/- PER SQ. FT. ON THE APPROXIMATE FIGURE OF TOT AL AREA SOLD/BOOKED OF 27 LACS SQ. FT. UPTO 31/03/2013 WHIC H IS NOT AS PER THE ACTUAL SALES DECLARED IN THE P&L ACCOUNT BY THE APPELLANT IN A.YS 2010-11 TO 2013-14 AND THIS ITSEL F MAKES IT EVIDENT THAT THE ADDITIONS HAVE BEEN MADE WITHOU T EXAMINING THE ACTUAL DETAILS SUBMITTED TO THE ASSES SING OFFICER. THE APPELLANT ALSO SUBMITTED THE DETAILS FOR A.YS 2 010-11 TO 2013-14 REGARDING THE SALE PRICE OF THE VARIOUS CATEGORIES OF SALES MADE I.E. ROW HOUSES, APARTMENT S, SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 9 TERRACE COTTAGE, TOWN HOUSE ETC.; THE BUILT UP AREA AND THE CIRCLE RATES FOR THE DIFFERENT CATEGORIES. IT IS SE EN THAT THE APPELLANT HAS NOT BOOKED ANY SALE BELOW THE RATES PRESCRIBED BY THE CIRCLE RATE OF AUTHORITY I.E. SUB -REGISTRAR OF INDORE. THE DETAILS ARE AS UNDER :- FINANCIAL YEAR 2009-10 PRODUCT NAME SALE VALUE GUIDELINE VALUE SIZE VILLA RUBY 1.00 TO 1.21 CRORE 5770445/- PLOT 4500 S Q. FT. AND BUILT UP 4456 SQ. FT. VILLA PEARL 66.5 LACS 3547998/- PLOT 2700 SQ. FT. AND BUILT UP 2893 SQ. FT MID-RISE APARTMENTS 41.5 LACS 2329680/- 2089 SQ. FT . BUILT UP AREA TERRACE COTTAGE 61 LACS 3514200/- 3386 SQ. FT. BUIL T UP (1667 SQ. FT. SOLD OUT) TOWN HOUSE 55 LACS 2579650/- PLOT 1635 SQ. FT. AND BUILT UP 2539 SQ. FT. FLATS RS. 1700/- PER SQ. FT. RS. 1115 PER SQ. FT. - FINANCIAL YEAR 2010-11 PRODUCT NAME SALE VALUE GUIDELINE VALUE SIZE VILLA RUBY 1.00 - 1.21 CRORE 5979553/- PLOT 4500 SQ . FT. AND BUILT UP 4456 SQ. FT. VILLA PEARL 66.5 LACS 3673463/- PLOT 2700 SQ. FT. AND BUILT UP 2893 SQ. FT MID-RISE APARTMENTS 41.5 LACS 2523820/- 2089 SQ. FT . BUILT UP AREA TERRACE COTTAGE 61 LACS 3807050/- 3386 SQ. FT. BUIL T UP TOWN HOUSE 60 LACS 2655618/- PLOT 1635 SQ. FT. AND BUILT UP 2539 SQ. FT. FLATS 1700/- PER SQ. FT. 1208/- PER SQ. FT. - FINANCIAL YEAR 2011-12 PRODUCT NAME SALE VALUE GUIDELINE VALUE SIZE VILLA RUBY 1.10 - 1.35 CRORE 7010997/- PLOT 4500 SQ . FT. AND SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 10 BUILT UP 4456 SQ. FT. VILLA PEARL 85 LACS 4306618/- PLOT 2700 SQ. FT. AND BUILT UP 2893 SQ. FT MID-RISE APARTMENTS 50 LACS 2912100/- 2089 SQ. FT. BUILT UP AREA TERRACE COTTAGE 61 LACS 4392750/- 3386 SQ. FT. BUIL T UP TOWN HOUSE SOLD OUT 3110884/- PLOT 1635 SQ. FT. AND BUILT UP 2539 SQ. FT. FLATS 1875/- PER SQ. FT. 1394/- PER SQ. FT. - FINANCIAL YEAR 2012-13 PRODUCT NAME SALE VALUE GUIDELINE VALUE SIZE VILLA RUBY 1.20 - 1.51 CRORE 666U WE/- PLOT 4500 SQ. TT. AND BUILT UP 4456 SQ. FT. VILLA PEARL 65 LACS 5316166/- PLOT 2700 SQ. FT. AND BUILT UP 2893 SQ. FT MID-RISE APARTMENTS 50 LACS 3882800/- 2089 SQ. FT. BUILT UP AREA I ERRACE COTTAGE B1 LACS 3098600/- PLOT 1635 SQ. FT. AND BUILT UP 2539 SQ. FT. I OWN HOUSE SOLD OUT 3794074/- -----DO---- I-IATS Z500/- PER SQ. FT. 1858/- PER SQ. FT. AT THIS STAGE, BEFORE DRAWING A FINAL CONCLUSION, I T IS RELEVANT AND NECESSARY TO CONSIDER THE RATIOS OF TH E FOLLOWING DECISIONS. THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF CIT VS. ANIL BHALLA (2010) 322 ITR 191 (DEL.) OBSERVED THAT NO INDEPENDENT MATERIAL OR EVIDENCE HAD BEEN BROUGHT O N RECORD BY THE AO TO ESTABLISH THAT THE NOTINGS/JOTT INGS RECORDED ON THE LOOSE SHEET OR PAPER REPRESENTED AN UNACCOUNTED TRANSACTION, THEN THE EXPLANATION OF TH E ASSESSEE SHOULD BE ACCEPTED. IN THIS SITUATION, THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE LOOSE SHEET OR DOCUME NT DOES NOT REPRESENT ANY INVESTMENT OR EXPENDITURE OVER AN D ABOVE THE BOOKS OF ACCOUNTS OF THE ASSESSEE OUT OF INCOME ALLEGED TO BE EARNED FROM UNACCOUNTED SOURCES. SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 11 T HE HON'BLE ITAT HYDERABAD B BENCH IN THE CASE OF DCIT VS. M. AJA BABU FOLLOWING THE DECISION OF HON'BLE HIGH COURT OF DELHI IN THE CASE OF CIT VS. ANIL BHALLA ( SUPRA), CIT VS. DINESH JAIN (HUF) 211 TAXMAN 23 (DEL) AND CIT V S. JAIPAL AGGARWAL 212 TAXMAN 1 (DEL), ITAT MUMBAI IN THE CASE OF ACIT VS. JP MORGAN INDIA PVT. LTD. 46 SOT 250(MUMBAI), HELD THAT THE ADDITION MADE BY THE AO BASED ON THE LOOSE PAPER, WHICH IS NOT A CONCLUSIVE EVIDENCE AND THEREFORE, THE SAME IS NOT SUFFICIENT FOR MAKING THE ADDITION. THE TRIBUNAL ALSO HELD THAT NO ADDITION CAN BE MADE ON THE BASIS OF DUMB DOCUMENT/NOTEBOOK/LOOSE SLIPS IN ABSENCE OF ANY OTH ER MATERIAL TO SHOW THAT THE ASSESSEE HAS MADE INVESTMENT IN LAND. THE RELEVANT OBSERVATIONS AND FINDINGS OF THE TRIBUNAL IN THIS CASE READ AS UNDER:- 17 WE HAVE HEARD THE ARGUMENTS OF BOTH THE PADIES, PERUSED THE RECORD AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IN THIS CASE, THE ADDITION WAS MADE BY THE AO BASED ON THE LOOSE PAPER AND THE SAME, IN OUR VIEW, CANNOT BE CONSIDERED AS CONCLUSI VE EVIDENCE. AS HELD BY THE CIT(A) IN THE IMPUGNED ORDER EXCEPT RELYING , THE NOTINGS IN THE LOOSE SLIPS, NO ATTEMPT HAS BEEN MADE TO CORROBORAT E THE NOTINGS WITH INDEPENDENT EVIDENCE. THE PARTIES TO THE TRANSACTI ON PARTICULARLY THE VENDOR HAS NOT EXAMINED. IN EVERY TRANSACTION THERE IS A CIRCLE CONCERNING TWO PADIES. /T IS NOT KNOWN WHETHER THE VENDOR HAS DISCLOSED THE CONSIDERATION AS NOTED IN THE DIARY. THEREFORE, MERELY ON THE BASIS OF PRESUMPTION AND SOME CORROBORATED NOTINGS ADDITIONS CANNOT BE MADE. IN OUR OPINION, THE DELETION OF ADDITION BY THE CIT (A) IS JUSTIFIED AND NO INTERFERENCE IS CALLED FOR IN THE ORDER OF THE CIT( A). THE FOLLOWING CASES SUPPOD THE ACTION OF THE CIT(A): 1. CIT VS. ANIL BHALLA [2010) 322 ITR 191 (DEL.) - WHE REIN HELD THAT THE NOTINGS RECORDED ON THE LOOSE SHEET OF PAPER DO NOT REPRESENT ANY EXPENDITURE INCURRED BY THE ASSESSEE DIRECTOR AND T HAT THE ENTRIES RELATED TO THE COMPANY IN AS MUCH AS THE ASSESSEE C OULD EXPLAIN FROM THE BOOKS OF THE COMPANY THAT THESE PR OJECTS WERE UNDEDAKEN BY IT, AND UPHELD THE DELETION OF THE IMP UGNED ADDITION UNDER S. 69C, FINDINGS ARRIVED AT BY THE TRIBUNAL ARE PURE FINDINGS OF FACTS AND THE SAME DO NOT WARRANT ANY INTERFERENCE. 2. ACIT VS. J.P. MORGAN INDIA (P) LTD. [2011J 46 SOT 2 50 (MUM) 3. CIT VS. DINESH JAIN HUF[2012) 211 TAXMAN 23 (DELHI) 4. CIT VS. JAIPAL AGGARWAL [2013J 212 TAXMAN 1 (DELHI) - WHEREIN IT WAS HELD THAT DUMB DOCUMENTS SEIZED, I.E. FROM W HICH NOTHING COULD BE CLEARLY UNDERSTOOD, CANNOT FORM A JUSTIFIED BASE FOR MAKING ADDITIONS TO INCOME OF THE ASSESSEE. SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 12 17.1 IN VIEW OF THE ABOVE DISCUSSION, WE ARE OF THE VIEW THAT THE ADDITION MADE BY THE ASSESSING OFFICER BASED ON THE LOOSE PA PER, WHICH IS NOT A CONCLUSIVE EVIDENCE AND, THEREFORE, THE SAME IS NOT SUFFICIENT TO MAKE THE ADDITION. IN OUR OPINION, NO ADDITION CAN BE MADE O N THE BASIS OF DUMB DOCUMENTS/NOTE BOOK/LOOSE SLIPS IN THE ABSENCE OF A NY OTHER MATERIAL TO SHOW THAT THE ASSESSEE HAS MADE INVESTMENTS IN LAND . NOTING ON THE NOTE BOOK/DIARY/LOOSE SHEETS ARE REQUIRED TO BE SUPPODED /CORROBORATED BY OTHER EVIDENCE AND SHOULD ALSO INCLUDE THE STATEMEN T OF A PERSON WHO ADMITTEDLY IS A PADY TO THE NOTING AND STATEMENT FR OM ALL THE PERSONS WHOSE NAMES THERE ON THE NOTE BOOK/LOOSE SLIPS AND THEIR STATEMENTS TO BE RECORDED AND THEN SUCH STATEMENT UNDOUBTEDLY SHO ULD BE CONFRONTED TO THE ASSESSEE AND HE HAS TO BE ALLOWED TO CROSS E XAMINE THE PADIES. THE VENDOR HAS NOT EXAMINED IN THIS CASE. THEREFORE , WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) IN DIRECTING T HE ASSESSING OFFICER TO DELETE THE ADDITION MADE ON THE BASIS OF LOOSE PAPE R AND THE ORDER OF THE CIT(A) IS HEREBY UPHELD DISMISSING THE GROUNDS RAIS ED BY THE REVENUE ON THIS ISSUE. 18. AS A RESULT APPEAL IN ITA NO. 1756/HYD/2012 IS DISMISSED. HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. ATAM VALVES (P) LTD. (2011) 332 ITR 468 (P&H) H ELD THAT WHEN THE LOOSE PAPERS DID NOT RELATE TO CERTAIN PAY MENTS DURING THE RELEVANT PERIOD IN QUESTION, THEN IN ABS ENCE OF ANY SUPPORTING MATERIAL OR EVIDENCE, THESE LOOSE SH EETS BY ITSELF WERE NOT FOUND TO BE SUFFICIENT ENOUGH FOR M AKING A SUSTAINABLE AND JUSTIFIED ADDITION. ITAT DELHI E BENCH IN THE CASE OF ATUL KUMAR JAIN (1999) 64 TTJ 786 (DELHI) VS. DCIT HELD THAT WHEN THE SEIZ ED PAPERS HAVE BEING NOT CORROBORATED BY ANY INDEPENDE NT EVIDENCE IT CANNOT BE CONSIDERED AS A RELIABLE DOCU MENT OR ACCEPTABLE PIECE OF EVIDENCE AS A PROOF OF INVESTME NT IN THE HOUSE PROPERTY AND THEREFORE, THESE KIND OF DOCUMENTS/PAPERS ARE LIABLE TO BE IGNORED AND ADDIT ION MADE ON THE BASIS OF SUCH DOCUMENT IS NOT SUSTAINAB LE AND IN ACCORDANCE WITH LAW. IN CIT V/S KULWANT RAI (2007) 291 ITR 36 (DEL) THE RULING OF THE SUPREME COURT IN DHAKESWARI COTTON MILLS LTD . V. CIT (1954) 26 ITR 775 (SC) WAS RELIED UPON. THE SUP REME COURT HELD THAT EVEN THOUGH INCOME TAX AUTHORITIES INCLUDING THE ASSESSING OFFICER HAS UNFETTERED DISC RETION AND NOT STRICTLY BOUND BY THE RULES AND PLEADINGS A S WELL AS MATERIALS ON RECORD AND IS LEGITIMATELY ENTITLED TO ACT ON THE MATERIAL WHICH MAY NOT BE ACCEPTED AS EVIDENCE, NEVERTHELESS SUCH DISCRETION DOES NOT ENTITLE THEM TO MAKE SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 13 A PURE GUESS AND BASE AN ASSESSMENT ENTIRELY UPON I T WITHOUT REFERENCE TO ANY MATERIAL OR EVIDENCE AT AL L. GIVEN THE ABOVE STATE OF LAW THE DELHI HIGH COURT STATED THAT IT HAS NO HESITATION IN SO CONCLUDING, SINCE THE DOCUM ENT SEIZED WAS BOTH UNDATED AND UNSIGNED AND EVEN TAKEN AT FACE VALUE DID NOT LEAD TO FURTHER ENQUIRY ON BEHAL F OF THE AO. ITAT, HYDERABAD IN ITA 329/HYD/2012 DATED 04.01.201 4 IN THE CASE OF DCIT VS. SHRI BABU RAO WHERE IN PARA 26 TO 29 HELD THUS:- 26. IT IS CLEAR FROM THE ABOVE PROVISIONS OF SECTI ON 153A THAT THE INCOME OF THE ASSESSEE IN CASE OF A PERSON WHERE SEARCH IS INITIATED U/S. 132, THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY ASSETS A RE REQUISITIONED U/S. 132A, THE ASSESSING OFFICER AFTER ISSUE OF A NOTICE TO FURNISH INCOME OF THE ASSESSEE IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN 6 ASSESSMENT YEAR IMMEDIATELY PRECEDING THE ASSESSMEN T YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED OR REQUISITION MADE, THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH 6 ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR REL EVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED OR REQUI SITIONED, AS THE CASE MAY BE, ON BRINGING ON RECORD THE MATERIAL TO SHOW THAT THERE IS UNDISCLOSED INCOME OF THE ASSESSEE. IN OTHER WORDS, THERE SHOULD BE MATERIAL ON RECORD TO SHOW THAT THE INCOME IS ASSESSED ON THE BASIS OF MATERIAL/ EVIDENCE IN HANDS OF THE ASSESSING O/NICE R. 27. BEING SO, IN OUR OPINION, GUESS WORK IS NOT POSSIBL E IN CASE OF SEARCH ASSESSMENT FRAMED U/S. 143(3) OR U/S. 153A OF THE ACT WITHOUT ANY PROPER MATERIAL. THE AO SHALL HAVE THE BASIS FO R ASSUMING THAT THE EXPENDITURE INCURRED BY THE ASSESSEE IS OUT OF UNDI SCLOSED INCOME. IT IS NOT PERMISSIBLE TO ASSESS THE UNDISCLOSED INCOME IN THE ABSENCE OF ANY OTHER EVIDENCE ON ARBITRARY BASIS. THE UNSUBSTANTIATED LOOSE SHEETS CANNOT BE CONSIDERED AS A CONCLUSIVE EVIDENCE TO MAKE ANY ADDITION TOWARDS UNDISCLOSED INCOME. IT WAS HELD BY THE SUPR EME COUD IN THE CASE OF CBI VS. V.C. SHUKLA (1998) 3 SCC 410 THAT FILE CON TAINING LOOSE SHEETS OF PAPERS ARE NOT BOOKS AND HENCE ENTRIES THEREIN ARE NOT ADMISSIBLE U/S. 34 OF THE EVIDENCE ACT, 1872. 28. IN THE PRESENT CASE, THE SEIZED MATERIAL (TWO NOTE BOOKS) MARKED AS KBR/A/02 AND KBR/A/04 WHEREIN CERTAIN ENTRIES AR E FOUND RECORDING VARIOUS TRANSACTIONS PERTAINING TO THE ASSESSEE. THESE ENTRIES IN THE NOTEBOOK ARE UNSUBSTANTIATED AND ON THAT BASIS THE AO REACHED TO THE CONCLUSION THAT THE FIGURES MENTIONED THEREI N ARE TO BE READ BY ADDING 3 ZEROS AND THEREBY HE CAME TO CONCLUDE THAT THERE IS UNDISCLOSED INCOME IN THESE 6 ASSESSMENT YEARS. IN OUR OPINION, THE DOCUMENT RECOVERED DURING THE COURSE OF SEARCH WAS A DUMB DOCUMENT SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 14 AND LED NOWHERE. THE CIT(A) RIGHTLY CAME TO THE CON CLUSION THAT IT CANNOT BE ACTED UPON AND DELETED THE ADDITION. 29. OTHER THAN THE LOOSE PAPER, THE AO HAS NOT BROUGHT ON RECORD ANY CORROBORATIVE MATERIAL OR EVIDENCE TO SHOW THAT THE INFERENCE MADE BY HIM IS CORRECT. THE CIT(A) AFTER TAKING THE TOTALITY OF THE CIRCUMSTANCES INTO CONSIDERATION CAME TO THE CONCLUSION THAT THE ADDIT ION MADE BY THE AO IS NOT JUSTIFIED AND THE ARGUMENT PUT FORTH BY THE ASS ESSEE IS SUPPORTED BY DOCUMENTARY EVIDENCE. THIS WAS NOT A CASE WHERE REL EVANT EVIDENCE HAD BEEN IGNORED BY THE CIT(A) AND THEIR RELEVANT EVIDENCE HAS BEEN TAKEN INTO CONSIDERATION. THE ONLY TEST THAT WAS REQUIRED TO BE APPLIED WAS WHETHER ON THE FACTS FOUND AND THE STATE OF EVIDENC E ON RECORD, THE CONCLUSION ARRIVED AT BY THE CIT(A) WAS ONE WHICH COULD BE ARRIVED BY A REASONABLE PERSON PROPERLY INFORMED IN LAW. APPLYING THIS TEST, IT COULD NOT BE SAID THAT THE DECISION RECORDED BY THE CIT(A) ONE WHICH COULD NOT HAVE BEEN ARRIVED AT BY A REASONABLE PERSON PRO PERLY INFORMED IN LAW CONSIDERING THE STATE OF EVIDENCE ON RECORD. HENCE, IN OUR CONSIDERED OPINION, THE CIT(A) HAS REACHED A CORRECT CONCLUSION IN DELETING THE ADDITION MADE BY THE AO ON THE BASIS OF LOOSE SHEET S. THE HON'BLE ITAT JABALPUR IN THE CASE OF ACIT VS. S ATYAPAL (2007) 295 ITR (AT) 352 (JAB.) HELD AS UNDER:- THE CRUX OF THESE DECISIONS IS THAT A DOCUMENT FOU ND DURING THE COURSE OF SEARCH MUST BE A SPEAKING ONE AND WITHOUT ANY SE COND INTERPRETATION, MUST REFLECT ALL THE DETAILS ABOUT THE TRANSACTIONS OF THE ASSESSEE IN THE RELE VANT ASSESSMENT YEAR. ANY GAP IN THE VARIOUS C OMPONENTS AS MENTIONED IN SECTION 4 OF THE INCOME TAX ACT MUST B E FILLED UP BY THE ASSESSING OFFICER THROUGH INVESTIGATIONS AND CORREL ATIONS WITH THE OTHER MATERIAL FOUND EITHER DURING THE COURSE OF THE SEAR CH OR ON INVESTIGATION. AS A RESULT, WE HOLD THAT DOCUMENT NO. 7 IS A NON- SPEAKING DOCUMENT. HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. S.M . AGRAWAL 293 ITR 043 (DEL) HELD THAT UNLESS AND UNTI L THE CONTENTS OF THE DOCUMENT ARE PROVED AGAINST THE PER SON, THE POSSESSION OF THE DOCUMENT OR HANDWRITING OF TH AT PERSON ON SUCH DOCUMENT BY ITSELF COULD NOT PROVE T HE CONTENTS OF THE DOCUMENT. IT WAS FURTHER HELD THAT THE DOCUMENT RECOVERED DURING THE COURSE OF SEARCH FROM THE ASSESSEE WAS HELD TO BE DUMB DOCUMENT AND THE ADDIT ION ON THE BASIS OF THE SAME IS NOT SUSTAINABLE. THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. VATIKA LANDBASE (P.) LTD. (2016) 383 ITR 320 (DEL) HELD TH AT THE ADDITION MADE BY THE ASSESSING OFFICER ON THE BASIS OF DOCUMENTS FOUND AND SEIZED FROM THE COMPUTER OF AN EMPLOYEE OF THE ASSESSEE COMPANY SHOWING THAT THE R ATE OF SALE OF FLOOR SPACE IN COMMERCIAL WAS HIGHER THAN T HE RATE SHOWN BY THE ASSESSEE WAS NOT SUSTAINABLE AS THE RA TES SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 15 MENTIONED IN THE SEIZED DOCUMENTS DID NOT REPRESENT ANY COMPLETED OR MATERIALIZED TRANSACTION. MOREOVER, TH E ASSESSING OFFICER DID NOT MAKE ANY ENQUIRY FROM THE SAID EMPLOYEE OR FROM THE BUYERS OF FLATS IN RESPECT OF ACTUAL PRICE PAID BY THEM. THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. VED PRAKASH CHOUDHARY (2008) 305 ITR 245 (DEL) HAS HELD THAT IN THE ABSENCE OF CORROBORATIVE MATERIAL, THE ADDIT ION MADE ON THE BASIS OF SKETCHY DOCUMENT WHICH WAS UNPROVED CANNOT BE SUSTAINED IN LAW. THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. VIVEK AGRAWAL (2015) 231 TAXMAN 392 (DEL) HAS HELD THAT U NLESS THE AMOUNTS STATED THE DOCUMENT WERE ACTUALLY PAID IT CANNOT BE PRESUMED THAT THE AMOUNT MENTIONED IN THE SALE DEED WAS NOT CORRECT. THE HON'BLE M.P. HIGH COURT IN THE CASE OF CIT VS. KANTILAL PRABHUDAS PATEL (2008) 296 ITR 568 (MP) HAS HELD TH AT THE ADDITION CANNOT BE MADE ON GUESS WORK OR ESTIMATES. ON CAREFUL CONSIDERATION OF THE ENTIRE MATERIAL PLA CED BEFORE ME, INTER ALIA THE ASSESSMENT ORDER AND THE SUBMISSIONS MADE IN THE APPEAL PROCEEDINGS, IT IS S EEN THAT THE ASSESSING OFFICER HAS SIMPLY PROCEEDED TO MAKE ADDITIONS ON THE BASIS OF THE DOCUMENTS FOUND AND S EIZED IN RESPECT OF THE SILVER MANSION AND SILVER MANSION EXTENSION PROJECTS AND THE POST SEARCH ENQUIRIES CONDUCTED IN RESPECT OF VARIOUS PROJECTS OF THE JHA VERI GROUP. NO INCRIMINATING DOCUMENT WAS FOUND AND SEIZ ED DURING THE COURSE OF THE SEARCH SHOWING THE RECEIPT OF ON MONEY FOR THE SILVER SPRING TOWNSHIP PROJECT OF T HE APPELLANT COMPANY. NO EFFORT HAS BEEN MADE BY THE ASSESSING OFFICER OF MAKING ANY INVESTIGATION OR IN QUIRY TO SUBSTANTIATE HIS THEORY OF SUPPRESSION OF SALES. TH E ASSESSING OFFICER HAS ESTIMATED THE UNACCOUNTED SAL E CONSIDERATION @ RS. 400/- PER SQ. FT. BUT HAS NOT B ROUGHT OUT ANY CORROBORATIVE MATERIAL TO SHOW THAT THE INF ERENCE MADE BY HIM IS CORRECT AND SUSTAINABLE. IT IS ALSO VERY PERTINENT TO NOTE THAT THE APPELLANT COMPANY IS NOT WHOLLY OWNED BY THE JHAVERIS AND ITS NATURE OF BUSINESS IS DIFFERENT FROM THAT OF THE OTHER PROJECTS OF JHAVER IS AND THE ASSESSING OFFICER HAS NOT DISPUTED THIS FACT. THERE FORE, TO ESTIMATE THE ADDITIONS ON THE BASIS OF INCRIMINATIN G DOCUMENTS FOUND IN THE OTHER PROJECTS OF THE JHAVER I GROUP IS NOT AN ACCEPTABLE, SUSTAINABLE AND JUSTIFIED APP ROACH. SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 16 IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE DISCUSSIONS IN THE PRECEDING PARAGRAPHS, THE ADDITI ON OF RS. 7,46,83,600/-, RS. 12,03,50,000/-, RS. 49,58,74,800 /- AND RS. 39,10,91,600/- MADE FOR A.YS 2010-11, 2011-12, 2012 -13 AND 2013-14 RESPECTIVELY ON ACCOUNT OF UNDISCLOSED RECE IPTS IS HEREBY DELETED. GROUND NOS. 1,2,3,4 AND 5 FOR A.YS 2010-11, 2011-12, 2012-13 AND 2013-14 ARE ALLOWED. 8. ON GOING THROUGH THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE FIND THAT THE ENTIRE PROCEDURE OF ADDITIONS IN ASSESSEES CASE WAS BASED ON THE DOCUMENTS FOUND DU RING SEARCH WHICH RELATED TO OTHER GROUP COMPANIES NAMED SILVER MANSION, SILVER MANSION EXTENSION AND HAVE NO ANY RELEVANCE OR RELATION WITH THE ASSESSEE CO. AS NONE OF THE CONCERNS, BELO NGING TO JHAVERI GROUP, HAVE THE LINE OF BUSINESS IN WHICH T HE ASSESSEE COMPANY DEALS. WE FIND THAT ALL THE GROUP CONCERNS OF JHAVERI GROUP ARE ENGAGED IN THE BUSINESS OF DEVELOPMENT OF LAND AND SALE THEREOF AFTER PLOTTING, WHEREAS, THE ASSESSEE COMPANY HAS NOT SOLD A SINGLE INCH OF LAND. ITS MAIN AND CORE BUSINESS IS TO CONSTRUCT RESIDENTIAL AND COMMERCIAL UNITS. THE UNI TS ARE IN THE SHAPE OF APARTMENT, ROW HOUSES, BUNGALOWS AND SHOPS . LEARNED COUNSEL FOR THE ASSESSEE EXPLAINED THAT THE RATE FI XED FOR THE PURPOSE OF SALE IS AS PER THE DEAL STRUCK BY THE AS SESSEE WITH THE PROSPECTIVE BUYER AND WHICH IS IN UNIT OF PER SQ FE ET AND FOR THE PURPOSE OF CALCULATION OF SALEABLE AREA, INGREDIENT S OF SPACE SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 17 UTILIZED IN THE CONSTRUCTION OF COMMON AREA, ROADS, CLUBS, GARDENS, STAIRCASES AND PARKING ETC. ARE APPORTIONE D IN THE NUMBER OF UNIT. RESULTANTLY, A CUSTOMER IS REQUIRED TO PAY 30% MORE THAN THE CARPET AREA BOUGHT BY HIM. THE ASSESS ING OFFICER WRONGLY ESTIMATED RATE PER SQUARE FEET, BY COMPARIN G THE RATES ADOPTED IN THE ADJOINING TOWNSHIP, SILVER MANSION, IS A PROJECT OF JHAVERI GROUP, TOTALLY DISJOINT WITH THE ASSESSEE COMPANY. THE SAID PROJECT, DEALS IN THE SALE OF PLOT ONLY. THERE FORE, THE COMPARISON MADE BY THE ASSESSING OFFICER IS BASELES S. FURTHER, THE ASSESSING OFFICER ELABORATED, THE SEIZURE MADE, IN OTHER CASES OF JHAVERI GROUP WHICH HAS NO BEARING IN THE ASSESS EES CASE BUT THE ASSESSING OFFICER WITHOUT ESTABLISHING THE RELE VANCE BY BRINGING ANY COGENT MATERIAL MADE THE ADDITIONS. S IMILARLY, SOME ENQUIRES CONDUCTED IN THE CASES OF SHIKHARJI, A JITNATH REALITY PVT. LTD. AND PADMAPRABHU INFRASTRUCTURE PV T. LTD. WERE IRRELEVANT AS IS EVIDENT FROM THE COMPUTATION OF IN COME OF THE ASSESSEE. EVEN OTHERWISE, THE ISSUE OF M/S SHIKHARJ I IS BEFORE THE SETTLEMENT COMMISSION AND THEREFORE, THE COMPARING THE CASE OF SHIKARJI WITH THAT OF ASSESSEE IS UNJUSTIFIED. WE FIN D THAT THE ASSESSING OFFICER FAILED TO PINPOINT A SINGLE MISTA KE IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE. HE COULD NO T PIN-POINT SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 18 ANY ENQUIRY MADE IN THE ASSESSEES CASE FROM WHICH ADVERSE INFERENCE COULD BE DRAWN. HE DID NOT CONDUCT ANY EN QUIRY IN THE ASSESSEES CASE WHICH IS APPARENT FROM THE FACT THA T NO SUCH DETAILS OF ENQUIRY HAVE BEEN INCORPORATED IN THE AS SESSMENT ORDER. WE FIND THAT THE ASSESSEE FILED COMPLETE DET AILS BEFORE THE ASSESSING OFFICER IN RESPECT OF SALE AND ALSO THE D ETAILS PRODUCT- WISE OF PHASE ONE & TWO. WE FIND THAT THE ASSESSEE S BOOKS OF ACCOUNTS ARE AUDITED AND NO ANY INCRIMINATING DOCUM ENT WERE FOUND RELATING TO THE ASSESSEE COMPANY DURING THE C OURSE OF SEARCH AND NO ANY DEFECT TO THE MAINTENANCE OF THE BOOKS OF ACCOUNTS WERE NOTICED BY THE SEARCH TEAM AND THE AS SESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS . THEREFORE, WE ARE OF THE VIEW THAT THE ADDITIONS MADE WERE UNC ALLED FOR. OUR VIEW IS SUPPORTED BY THE RATIO LAID DOWN IN THE FOL LOWING JUDICIAL PRONOUNCEMENTS: 1. ANURAG DALMIA VS DCIT (2018) 52 CCH 106 (DEL TRIBUN AL); 2. COMMISSIONER OF INCOME TAX VS. KABUL CHAWLA, HIGH COURT OF DELHI, (2016) 380 ITR 0573 (DELHI) 3. PRINCIPAL COMMISSIONER OF INCOME TAX & ORS. VS. MEE TA GUTGUTIA PROP. FERNS 'N' PATELS & ORS., HIGH COURT OF DELHI, (2017) 395 ITR 0526 (DELHI) 4. PRINCIPAL COMMISSIONER OF INCOME TAX VS. KURELE PAPER MILLS P. LTD., HIGH COURT OF DELHI, (2016) 38 0 ITR 0571 (DELHI) 5. PRINCIPAL COMMISSIONER OF INCOME TAX & ORS. VS. BEST INFRASTRUCTURE (INDIA) PVT. LTD. & ORS., HIGH COURT OF DELHI, (2017) 397 ITR 0082 (DELHI) SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 19 6. COMMISSIONER OF INCOME TAX VS. GURINDER SINGH BAWA, HIGH COURT OF BOMBAY, (2016) 386 ITR 0483 (BO M) 7. PRINCIPAL COMMISSIONER OF INCOME TAX VS. SAUMYA CONSTRUCTION P. LTD., HIGH COURT OF GUJARAT, (2016) 387 ITR 0529 (GUJ) 8. PRINCIPAL COMMISSIONER OF INCOME TAX VS. DHARAMPAL PREMCHAND LTD., HIGH COURT OF DELHI, (201 7) 99 CCH 0202 DELHC 9. SO FAR AS THE ASSESSING OFFICERS OBSERVATIONS I N RESPECT OF THE SUMMONS ISSUED TO SOME SHRI RAMESH CHANDRA GUPT A, GARIMA CHELANI AND KOKILA CHELANI ARE CONCERNED, WE FIND THAT THE ASSESSING OFFICER COULD NOT BRING ANY COGENT MA TERIAL TO ESTABLISH THAT THE ASSESSEE HAS BUSINESS TRANSACTIO NS WITH THESE PERSONS. THEREFORE, THE OBSERVATIONS ARE BASELESS. FURTHER, SO FAR AS THE ASSESSING OFFICERS OBSERVATION IN RESPECT O F PLACING A FIGURE OF RS. 1500/- PER SQUARE FEET IS CONCERNED, WE FIND THAT THE LEARNED COUNSEL FOR THE ASSESSEE EXPLAINED THAT M/S SILVER REALITIES AND INFRASTRUCTURE PVT. LTD WAS INCORPORA TED BY SHRI MUKESH JHAVERI AND ABHISHEK JHAVERI ON 27.09.2005 AND LATER ON IN NOV 2005, FIRE CAPITAL FUND BELONGING TO REPU BLIC OF MAURITIUS JOINED HANDS WITH JHAVERIS. RESULTANTLY, 51% SHARES ARE HELD BY JHAVERIS AND 49% BY FIRE CAPITAL FUND. THE INVESTMENT MADE BY FIRE CAPITAL FUND IS FROM US INV ESTORS ROUTED THROUGH MAURITIUS. THEREFORE, THE OBSERVATIO NS MADE BY SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 20 THE ASSESSING OFFICER ARE NOT JUSTIFIED AS THE ASSES SEE CO. DOES NOT BELONG TO JHAVERI GROUP ACCORDINGLY. AS EXPLAIN ED ABOVE, WE FIND THAT THE ASSESSEE STARTED ITS PROJECTS BEING I NCORPORATED BY SHRI MUKESH JHAVERI AND ABHISHEK JHAVERI ON 27.09.2 005, WHEREAS THE SEIZED DOCUMENTS RELATING TO SEARCH & S EIZURE OPERATIONS U/S 132 CARRIED OUT ON 21.09.2012 ON THE BUSINESS AS WELL AS RESIDENTIAL PREMISES OF THE OTHER GROUP CON CERNS/PROJECTS NAMED SILVER MANSION, SILVER MANSION EXTENSION. THU S, IT IS CLEAR THAT THE ASSESSEES PROJECTS ARE RELATING TO MUCH PRIOR PERIOD TO THE PERIOD OF THE PROJECTS OF SILVER MANS ION, SILVER MANSION EXTENSION AS THE DATE OF SEARCH IS 21.09.20 12. THEREFORE, THE OBSERVATIONS MADE BY THE ASSESSING O FFICER ARE NOT JUSTIFIED AS THE PROJECTS OF THE ASSESSEE CO. HAVE N OTHING TO DO WITH THE PROJECTS OF THE SILVER MANSION, SILVER MAN SION EXTENSION. FURTHER, WE FIND THAT THE ASSESSING OFFI CER MADE THE ADDITION OF RS.37,07,335/- ON THE BASIS OF THE AFOR ESAID SEIZED DOCUMENT AND THE SAME HAS BEEN OWNED UP BY SHRI MUK ESH JHAVERI AND SHRI ABHISHEK JHAVERI IN 50:50 RATIO AN D PAID DUE TAXES WHICH HAS BEEN ACCEPTED BY THE SETTLEMENT COM MISSION VIDE ORDER DATED 22.8.2016. THEREFORE, THE LD. CIT( A) HAD DELETED THE ADDITION OF RS.37,07,335/-. THUS, WE FIND THAT THE TAX IN SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 21 RESPECT OF THE SEIZED DOCUMENT HAS BEEN PAID AND TH E SEIZED DOCUMENT HAS NO RELEVANCE SO FAR AS THE CASE OF THE PRESENT ASSESSEE IS CONCERNED. 10. ON CONSIDERATION OF ABOVE FACTS AND DISCUSSION THEREOF IN THE LIGHT OF THE JUDICIAL PRONOUNCEMENTS (SUPRA), W E FIND THAT NO SINGLE INCRIMINATING DOCUMENT PERTAINING TO ASSESSE E WAS FOUND FROM THE PREMISES OF OTHER CONCERNS AS NARRATED ABO VE SHOWING THAT ANY ON-MONEY WAS RECEIVED BY THE ASSESSEE. F URTHER, THE OPERATION UNDER SECTION 132 WAS SIMULTANEOUSLY CARR IED OUT IN THE PROJECT OFFICE OF THE COMPANY AND THERE ALSO NO INCRIMINATING DOCUMENT WAS FOUND OR SEIZED AS IS EVIDENT FROM THE CONTENTS OF THE ASSESSMENT ORDER ITSELF WHICH SHOW NO REFERENCE TO INCRIMINATING DOCUMENTS OR UNDISCLOSED ASSETS BEFOR E MAKING ANY ADDITION FOR ALLEGED ON-MONEY. BEFORE US, LD. CIT-DR COULD NOT CONTROVERT THE FINDINGS OF THE LD. CIT(A) BY BR INGING ANY CONTRARY MATERIAL ON RECORD . ACCORDINGLY, WE DO NO T FIND ANY REASON TO INTERFERE WITH THE FINDINGS RECORDED BY T HE LD. CIT(A). THE SAME IS CONFIRMED. THUS, THE ONLY ISSUE RAISED IN THE APPEALS OF THE REVENUE FOR THE ASSESSMENT YEARS 2010-11 TO 2013- 14, RESPECTIVELY, IS DISMISSED. SILVER REALTY SS 259, 260, 261 AND ITA 1330 OF 2016 22 FINALLY, THE APPEALS FILED BY THE REVENUE I.E. IT( SS)A NOS.259 TO 261/IND/2016 AND ITA NO.1330/IND/2016 AR E DISMISSED. ORDER WAS PRONOUNCED AS PER RULE 34 OF I.T.A.T., RU LES 1963 ON 30.09.2021. SD/- (RAJPAL YADAV) SD/- (MANISH BORAD) VICE - PRESIDENT ACCOUNTANT MEMBER INDORE; DATED : 30/09/2021 !VYAS! COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE