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12-04-2019, Sushila Lakhotia, Section 153A, 132(4A), 292C, Tribunal Delhi

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2 months 1 week ago #9137 by amit
Section - 153A, 132(4A), 292C
Order Date - 12-04-2019
Favouring - Assessee
Court - Tribunal Delhi
Appellant - Sushila Lakhotia
Respondent - ACIT
Justice - T. S. KAPOOR AM & SUCHITRA KAMBLE JM
Citation - 419Taxpundit172
Appeal No. - ITA No. 770/DEL/2015
Asstt. Year - 2007-08

Order

PER : SUCHITRA KAMBLE, JM

These two appeals are filed by the assessees against the order dated 27/11/2014 passed by CIT(A)-XXVII, New Delhi for Assessment Year 2007-08 & 2006-07 respectively.

2. Though the issues are common in both the appeals we are dealing factual aspect and finding separately in each of the appeal. The grounds of appeal being ITA No. 770/DEL/2015 are as under:-

ITA No. 770/DEL/2015

1. That the Ld. CIT (Appeal) has erred in law and on facts in confirming the addition of Rs. 31,35,850/- as income from undisclosed sources which was added by the ACIT, Central Circle-9, New Delhi in as much as the entire addition is unwarranted, based on surmises and conjectures, without any basis, illegal and thus, requires to be deleted in toto.

2. That the Ld. CIT (Appeal) has erred in law and on facts in not appreciating that the addition of Rs. 31,35,850/- has been made without any positive & cogent evidence and rather on irrelevant facts

3. That the Ld. CIT (Appeal) has erred in law and on facts in not appreciating that the Ld. AO has not considered the evidences produced by the appellant which clearly establishes that no cash payment was made by the appellant.

4. That the impugned appellate order is arbitrary, illegal, bad in law and in violation of rudimentary principles of contemporary jurisprudence.”

3. Consequent to the search conducted in Aerens group of cases on 17.08.2011, a search and seizure operation u/s 132 of the I.T. Act, 1961 was also conducted at the premises of the assessee on 10.02.2012. The jurisdiction over the assessee was transferred from the ITO, Ward-23 (2), New Delhi toACIT, Central Circle-9, New Delhi, issued by the CIT, Delhi-VIII, New Delhi u/s 127 of the Act on 25/09/2013. Subsequently, a notice u/s 153A of the IT Act, 1961 was issued and served upon the assessee on 30.09.2013. In response to the same, the assessee stated that the return filed u/s 139(1) on 27.07.2007 be treated as the return filed in response to notice u/s 153A. Subsequently, statutory notices u/s 143(2) & 142(1) were issued and served upon the assessee. In response to the same, the Authorized Representative of the assessee attended the proceedings, on the dates fixed for hearing made written and oral statements and furnished the information documents accounts etc called for. Thereupon the assessment was completed in terms of an order u/s 153A read with Section 143(3) at a total income of Rs. 33,19,350/- as against the return income of Rs. 1,33,504/- wherein the Assessing Officer made an addition of Rs. 31,85,850/- on account of undisclosed income. In the course of search proceedings u/s 132 in cases of AEZ Group and excel sheet found in the form of hard disk which was found at the Corporate Office, AEZ Group at 301-303, Bakshi House, Nehru Place, New Delhi which was seized and marked as Annexure-A-27. On perusal of the above details,, the Assessing Officer found that the assessee invested a sum of Rs. 39,35,850/- in purchase of flat/space/land with M/s Nehru Vikas Minar, a concerned of AEZ Group. The Assessing Officer observed that out of the above amount of Rs. 39, 35,850/- a sum of Rs. 7,50,000/- was paid by cheque which is duly reflected in the balance sheet but no deals of the cash payment amounting to Rs. 31,85,850/- were available on record. According to the Assessing Officer no statutory explanation was furnished by the assessee except denial of the cash payment. Since the cash payment was approved on the basis of materials seized, the Assessing Officer opined that the assessee make the above cash payment out of the books of account and treated it as unexplained income of the assessee. However, before added back the same while notice dated 5/2/2014 along with copy of excel sheet. The Assessing Officer gave an opportunity to the assessee to furnish the reply. According to the Assessing Officer, the assessee filed reply narrated the history of the case without any merit to consider and extracted para 5 of the said reply and incorporated in the same in the assessment order as under:-

“Your honour merely on the basis of an impression which has been drawn by you based on one excel sheet found at the premises of third party no amount of addition can be made to our total income as cash investment in immovable property specially because not one single piece of evidence is available to prove our investment of alleged cash amount in the property.”

The Assessing Officer further observed that in the same excel sheet the name of one Sh. I.E. Soomar, E-405, Greater Kailash-ll, New Delhi also appeared at Sr. No. 39 who admitted that the cash investment of Rs.6.64 crores being made in the said project, and paid the taxes on the same. The Assessing Officer observed that the assessee failed to adduce an iota of evidence in respect of the cash investment of Rs.31,85,850/-. Therefore, in the light of the above discussion and the surrender made by Sh. I.E. Soomar on the basis of similar evidence, the Assessing Officer opined that the cash investment of Rs. 31,85,850/-made by the assessee was not disclosed by assessee in its books of account. Accordingly, the Assessing Officer added the amount of Rs. 31,85,850/-to the income of the assessee as income from undisclosed sources.

4. The Assessing Officer observed that in the same excel sheet name of one Shri I.E. Soomar.

5. Being aggrieved by the assessment order, the assessee filed appeal before the CIT (A). The CIT(A) dismiss the appeal of the assessee.

6. The Ld. AR subm tted that the present appeal of the assessee is assessed from o der of CIT(A) dated 27/11/2014 and related to Assessment Year 2007-08. Certain dates which goes to the root of matter are as under:-

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