Smt Anjana Sinha, Bhopal vs The Dcit Central-Ii, Bhopal on 15 February, 2019

[Cites 28, Cited by 4]

Income Tax Appellate Tribunal - Indore

Smt Anjana Sinha, Bhopal vs The Dcit Central-Ii, Bhopal on 15 February, 2019

Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma
IT(SS)No.150 to 170/Ind/2017

                 आयकर अपील य अ धकरण, इंदौर  यायपीठ, इंदौर
         IN THE INCOME TAX APPELLATE TRIBUNAL,
                  INDORE BENCH, INDORE
      BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER
     AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER

     IT(SS) No.150 to 155/Ind/2017 & ITA No.428/Ind/2017
              Assessment Years 2007-08 to 2013-14

 Sanjay Kumar Sinha,                                   DCIT (Central)-II,
 B-77, Alkapuri,                                Vs.    Bhopal
 Bhopal
 (Appellant)                                           (Respondent )
 PAN No.ANLPS8307G

       IT(SS) No.156 to 161/Ind/2017 ITA No.429/Ind/2017
               Assessment Years 2007-08 to 2013-14

 Anjana Sinha,                                         DCIT (Central)-II,
 B-77, Alkapuri,                                Vs.    Bhopal
 Bhopal
 (Appellant)                                           (Respondent )
 PAN No.AHBPS5921Q

     IT(SS) No.162 to 166/Ind/2017 & ITA No.430/Ind/2017
             Assessment Years 2008-09 to 2013-14

 Rajeev Sharma,                                        DCIT (Central)-II,
 Flat No.209, Soumya Enclave, Vs.                      Bhopal
 Chuna Bhatti, Bhopal
 (Appellant)                                           (Respondent )
 PAN No.AHBPS5924M




                                                                            1
 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma
IT(SS)No.150 to 170/Ind/2017

     IT(SS) No.167 to 170/Ind/2017 & ITA No.427/Ind/2017
             Assessment Years 2009-10 to 2013-14

 Smt. Manju Sharma,                                    DCIT (Central)-II,
 Flat No.209, Soumya Enclave, Vs.                      Bhopal
 Chuna Bhatti, Bhopal
 (Appellant)                                           (Respondent )
 PAN No.ASIPS3941G


 Revenue by                                   Smt. Ashima Gupta, CIT
 Assessee by                                  S/Shri Ashish Goyal &             N.D.
                                              Patwa, Advocates
 Date of Hearing                              08.01.2019
 Date of Pronouncement                        15.02.2019



                                        ORDER

PER BENCH The above captioned bunches of 25 appeals filed at the instance of the assessee's pertaining to Assessment Year 2007-08 to 2013-14 are directed against the orders of Ld. Commissioner of Income Tax (Appeals)-3 (in short 'Ld.CIT(A)'], Bhopal dated 02.05.2017,28.4.2017, 21.4.2017 and 20.4.2017 which are arising out of the order u/s 153A r.w.s 143(3) of the Income Tax Act 1961(In short the 'Act') dated 18.03.2015 and 28.1.2015 framed by DCIT(Central) & DCIT (Central)-II, Bhopal. 2 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

2. As most of the issues raised are common and relating to the same group of cases these cases were heard together and are being disposed off by this common order for sake of convenience and brevity.

3. We will first take up appeals No. IT(SS)150 to 155/Ind/2017 & ITA No.428/Ind/2017 in the case of Shri Sanjay Kumar Sinha where following grounds are raised;

Assessment Year 2007-08 On the facts and in the circumstances of the case :-

1. Ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition of Rs.35,17,199/- on account of alleged unaccounted credits in bank account u/s 69 of the Act.

4. That the ld.CIT(A) erred in sustaining the addition on account of unaccounted cash deposit of Rs.1,71,700/-.

5. That the ld CIT(A) erred in sustaining the addition of Rs.12,00,000/- on account of deemed dividend u/s 2(22)(e) of the Income Tax Act, 1961.

6. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

The appellant craves leave to add, amend or modify any of the grounds of appeal.

Assessment Year 2008-09 On the facts and in the circumstances of the case :-

1. Ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition of Rs.25,99,548/- on account of alleged unaccounted credits in bank account u/s 69 of the Act.

4. That the ld.CIT(A) erred in sustaining the addition on account of unaccounted cash deposit of Rs.5,82,000/-.

5. That the ld CIT(A) erred in sustaining the addition of Rs.9,01,312/- on account of deemed dividend u/s 2(22)(e) of the Income Tax Act, 1961.

6. That the ld CIT(A) erred in sustaining the addition on account of alleged undisclosed perquisites as undisclosed receipts of Rs.3,61,666/- u/s 17(2)(iii) of the Income Tax Act.

7. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B. The appellant craves leave to add, amend or modify any of the grounds of appeal.

Assessment Year 2009-10 On the facts and in the circumstances of the case :-

1. Ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition of Rs.12,50,000/- on account of alleged unaccounted credits in bank account u/s 69 of the Act.

4. That the ld.CIT(A) erred in sustaining the addition on account of unaccounted cash deposit of Rs.3,00,000/-.

5. That the ld CIT(A) erred in sustaining the addition of Rs.18,34,187/- on account of deemed dividend u/s 2(22)(e) of the Income Tax Act, 1961.

6. That the ld CIT(A) erred in sustaining the addition on account of alleged undisclosed perquisites as undisclosed receipts of Rs.3,89,300/- u/s 17(2)(iii) of the Income Tax Act.

7. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

The appellant craves leave to add, amend or modify any of the grounds of appeal.

4 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 Assessment Year 2010-11 On the facts and in the circumstances of the case :-

1. The ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition of Rs.3,65,000/- on account of alleged unaccounted credits in bank account u/s 69 of the Act.

4. That the ld.CIT(A) erred in sustaining the addition on account of unaccounted cash deposit of Rs.3,34,200/-.

5. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

The appellant craves leave to add, amend or modify any of the grounds of appeal.

Assessment Year 2011-12 On the facts and in the circumstances of the case :-

1. The ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition on account of unaccounted cash deposit of Rs.20,000/-..

4. That the ld.CIT(A) erred in sustaining the addition of Rs.3,00,000/- on account of deemed dividend u/s 2(22)(e) of the Income Tax Act, 1961.

5. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

The appellant craves leave to add, amend or modify any of the grounds of appeal.

Assessment Year 2012-13 On the facts and in the circumstances of the case :-

1. Ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition of Rs.5,00,000/- on account of alleged unaccounted credits in bank account u/s 69 of the Act.

4. That the ld CIT(A) erred in sustaining the addition of Rs.32,50,769/- on account of deemed dividend u/s 2(22)(e) of the Income Tax Act, 1961.

5. That the ld CIT(A) erred in sustaining the addition of Rs.63,50,000/- on account of alleged un accounted investment u/s 69 of the act..

6. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B. The appellant craves leave to add, amend or modify any of the grounds of appeal.

Assessment Year 2013-14 On the facts and in the circumstances of the case :-

1. Ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition of Rs.30,51,950/- on account of alleged unaccounted credits in bank account u/s 69 of the Act.

4. That the ld CIT(A) erred in sustaining the addition on account of unaccounted cash deposit of Rs.5,30,000/-

5. That the ld CIT(A) erred in sustaining the addition of Rs.8,42,000/- on account of deemed dividend u/s 2(22)(e) of the Income Tax Act,1961.

6. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

The appellant craves leave to add, amend or modify any of the grounds of appeal.

4. The brief facts of the case are that the assessee Shri Sanjay Kumar Sinha is one of the Director of Soumya Homes Pvt. Ltd which is engaged in the business of real estate developer and builder. Search u/s 132 of the Act was carried out on 30.11.2012 6 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 at the business premises of the company as well as at the residential premises of the Directors including the assessee. Notice u/s 153A of the Act were issued to file return of income for Assessment Years 2007-08 to 2013-14 and the same were filed. Assessee had already filed regular return of income u/s 139 of the Act for Assessment Years 2007-08 to 2011-12 before the date of search. After considering the submissions made by the assessee during the course of assessment proceedings Learned Assessing Officer (In Short Ld.A.O) completed the assessment for the seven years after making various additions which were challenged before Ld. CIT(A) and assessee got part relief. Following chart shows the details of return of income, various additions made by Ld.A.O, Relief given by Ld.CIT(A) and additions challenging before the Tribunal:-

             Returned       Addition by      Relief by         Income after
       A.    income         Ld.A.O           CIT(A)            CIT(A) order
Y
2007-08       4,48,025        57,99,832           9,10,933        38,88,899
2008-09       9,90,120        45,18,651             74,125        44,44,526
2009-10      21,93,050        51,70,682             74,300        37,73,487
2010-11      21,11,270         6,99,200                  -         6,99,200
2011-12      18,47,310         3,20,000                  -         3,20,000
2012-13      42,01,330      1,01,10,769                  -      1,01,00,769
2013-14      50,01,710        44,61,950             38,000        44,23,950




                                                                              7

Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

5. Ground No. 1 raised in appeal for Assessment Year 2007-08 to 2013-14 is general in nature and therefore needs no adjudication.

6. Ground No. 2 has been raised commonly for Assessment Year 2007-08 to 2013-14 by which assessee has challenged the additions being not based on any incriminating material found during the course of search.

7. At the outset Ld. Counsel for the assessee referring and relying on the judgment of Hon'ble High Court of Delhi in the case of CIT (Central)-III vs. Kabul Chawla (2016) 380 ITR 573 (Delhi) submitted that during the search proceeding at the assessee's premises no incriminating material was found. The additions made for Assessment Year 2007-08 to 2011-12 are merely on the basis of information available with the Assessing Officer during the course of search proceedings and there is no link of any seized material with these additions. He further submitted that as the assessment proceedings for Assessment Year 2007-08 to 2011-12stands abated as on the date of search no addition was called for. Ld. Counsel for the assessee also relied on following three judgments; 8 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

(i) CIT Vs Continental warehousing 374 ITR 645 (Bom)

(ii) Om Shakthy Agencies(Mad) 157 ITD 1062 (Trib-Chennai)

(iii) CIT Vs. Lata Jain (2016) 384 ITR 543 (Del)

8. Per contra Ld. Departmental Representative vehemently argued and supported the orders of lower authorities and also contended that documents were found at the business premises of Soumya Homes Pvt. Ltd and they related to the assessee also.

9. We have heard rival contentions and perused the records placed before us and carefully gone through the judgments referred and relied by the Ld. Counsel for the assessee. In the common issue raised by the assessee in Ground No. 2 for Assessment Year 2007- 08 to 2013-14, it is contended that in absence of any incriminating material no addition was called for in the assessment years which were not pending as on the date of search. The details of return filed u/s 139 of the Act and due date of issuance of notice u/s 143(2) for Assessment Years 2007-08 to 2011-12 is mentioned below;

Sanjay Kumar Sinha,Anjana IT(SS)No.150 to 170/Ind/2017 A.Y Date of filing of Return u/s 139(1) 2007-08 Verification at (PAPER BOOK 46) 25.07.07 (PB44) 2008-09 (PAPER BOOK-59) Date not clear 2009-10 Sinha, Rajiv Sharma & Manju Sharma Due date for Status on date of issue of notice search u/s 143(2) 30.09.2008 Return processed u/s 143(1). No notice u/s 143(2) 30.09.2010 Return processed (Max) u/s 143(1). No notice u/s 143(2) id="a_34">30.03.2010 (PAPER 30.09.2010 Return processed u/s 143(1). No notice u/s 143(2) id="a_36">18.01.2011 (PAPER 30.09.2011 Return processed u/s 143(1). No notice u/s 143(2) 30.09.2012 Return processed u/s 143(1). No notice u/s 143(2)

10. The above chart shows that for Assessment Year 2007-08 to 2011-12 the due date of issue of notice u/s 143(2) of the Act for the respective assessment years stood expired as on the date of search i.e. 30.11.2012 and therefore the case for Assessment Years 2007- 08 to 2011-12 would fall in the category of non abated assessment and the additions could be made only in respect of evidence of unaccounted income found during the course of search.

11. From going through the additions made for Assessment Years 2007-08 to 2011-12, we find that the addition relating to unaccounted credits in the bank account and unaccounted cash 10 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 deposits were made on the basis of bank account details called for during the course of assessment proceedings and it is an admitted fact that these bank accounts were disclosed in the regular return of income filed by the assessee. Similarly deemed dividend u/s 2(22)(e) of the Act were for the transactions for the properties purchased by the assessee from regular source of income. In the similar fashion the undisclosed perquisite were made by the Ld.A.O on the basis of salary details vis-à-vis ledger account of the assessee in the books of Soumya Homes Pvt. Ltd. This shows that the additions made for Assessment Year 2007-08 to 2011-12 emerges out of the details and documents called during the course of assessment proceedings and no mention has been made by the Ld.A.O about any incriminating material found during the course of search at the premises of the assessee which could have live link with the additions made. In these given facts there remains no dispute that the additions for Assessment Year 2007-08 to 2011-12 have been made in absence of any incriminating material found during the course of search u/s 132 of the Act and as the regular returns for Assessment Year 2007-08 to 2011-12 have been filed by 11 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 the assessee u/s 139(1) of the Act, the due date for issuance of notices u/s 142 of the Act stood expired as on the date of search.

12. Hon'ble High Court of Delhi in the case of CIT (Central)-III V/s Kabul Chawla (supra) adjudicating the similar issue relating to the addition made in the assessment u/s 153A of the Act in absence of any incriminating material held in favour of the assessee by giving summary of decisions as well as holding that no additions could have been made to the income already assessed since no incriminating material was unearthed by observing as follows:-

Summary of the legal position

37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under:

i. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise.

iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax".

iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other 12 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material."

v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings.

vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO.

vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment.

Conclusion

38. The present appeals concern AYs, 2002-03, 2005-06 and 2006-07.On the date of the search the said assessments already stood completed.

Since no incriminating material was unearthed during the search, no additions could have been made to the income already assessed.

13. On examining the facts of the instant case in light of the above judgment we are of the considered view that Ld.A.O was not justified in making the additions for Assessment Year 2007-08 to 2011-12 in absence of any incriminating material found during the course of search and the impugned additions are based on the details of documents called from the assessee during the course of assessment proceedings which were regularly disclosed in the 13 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 return of income. In the result this common issue raised in Ground No.2 of the assessee's appeal for Assessment Years 2007-08 to 2011-12 are allowed and Ground No.2 for Assessment Years 2012- 13 & 2013-14 stands dismissed.

13. As we have already deleted the additions for Assessment Year 2007-08 to 2011-12 by allowing Ground No.2 raised by the assessee, the other grounds raised on merits of the case for various additions made for Assessment Year 2007-08 to 2011-12 becomes infructuous and thus liable to be dismissed as infructuous.

14. Now we take up ITA (SS) 150/Ind/2007 in the case of Shri Sanjay Kumar Sinha for Assessment Year 2012-13. Apropos Ground No.3 in which the assessee has challenged the finding of Ld. CIT(A) confirming the addition of Rs.5,00,000/- on account of alleged unaccounted credits in bank accounts u/s 69 of the Act. Facts in brief are that in compliance to the questionnaire u/s 142(1) dated 14.7.2014 assessee was asked to furnish the narration of the debit and credit entries reflected in the bank account. As on 1.6.2011 there was a credit from M/s. Soumya Homes Pvt. Ltd, 14 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 assessee was unable to explain the source and accordingly the assessment made by Ld.A.O was confirmed by Ld.CIT(A).

15. Now the assessee is in appeal before the Tribunal.

16. We have heard rival contentions and perused the records placed before us. From going through the written submissions filed by the assessee as well as ledger account in the name of the assessee being Director in the books of M/s. Soumya Homes Pvt. Ltd placed at Page 41 to 45 of the written synopsis, we find that on 1.6.2011 advance salary was given by M/s. Soumya Homes Pvt. Ltd to its three Directors namely Shri Sanjay Kumar Sinha, Shri Rajeev Sharma and Smt. Anjana Sinha for total of Rs.15,00,000/- divided into three parts i.e. Rs.5,00,000/- each. Thus the amount of Rs.5,00,000/- has been received by the assessee against the salary as a Director which has been disclosed in the regular return of income. Therefore the alleged transaction being duly explained no addition was called for u/s 69 of the Act. In the result ground No.3 of the assessee is allowed.

15 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

17. Now we take up Ground No.4 for Assessment Year 2012-13 which relates to the addition of Rs.32,50,769/- made by the Ld.A.O as the deemed dividend u/s 2(22)(e) of the Act confirmed by Ld. CIT(A) for various amounts received during the year from M/s. Soumya Homes Pvt. Ltd of which the assessee is the Director.

18. We have heard rival contentions and perused the records placed before us. It has been the consistent stand of the assessee that the alleged amount of Rs.32,50,769/- received in parts during the year majorly includes amount received towards salary from M/s. Soumya Homes Pvt. Ltd as well as receipts towards share of joint venture project which stands duly disclosed in the regular books of accounts of M/s. Soumya Homes Pvt.Ltd and the same are verifiable from the documents found during the course of search, In the following chart the Ld. Counsel for the assessee has given the reference of date of transaction, amount along with reference of the page number of the paper book, source of amount received and related document which could prove that the amount received is in lieu of joint venture as well as Director salary:- 16

Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 Date Amount 10. Submission 11. Documents 09.05.2011 . 3,65,769 . This is the share of . The Joint venture agreement and JV

13. (PB 162) JV project account/ledger PB 208 maintained in receipt.(As books of SHPL.

explained earlier) . 14.09.2011 . 5,00,000 . This is towards . The Salary Advance (Director) ledger . (PB162, Salary advance to in books of Soumya Homes is back) appellant from M/s annexed along with this synopsis at SHPL. Pg. No 43 & 46. This has been offered as salary in return.

  . 04.10.2011     . 4,00,000    . This      is     towards
                                                          25. The Salary Advance (Director) ledger
                   . (PB162,        salary                       in   books   of    Soumya      Homes   is
                    back)                                        annexed along with this synopsis at
                                                                 Pg no 42.
                                                                . This has been offered as salary in
                                                                 return.
  . 13.12.2011     . 15,45,000   . Rs. 13,76,127/- is . JV account                 (PB 216) and Salary
                   . (PB163         towards receipt of           Payable (Director) ledger in books of
                    back)           JV Project. And Rs.          Soumya Homes is annexed along with
                                    1,68,873/-             is    this Synopsis at Pg. No 48.
                                    towards       salary   in
                                    capacity of director.
  . 12.01.2012     . 3,20,000    . This is the share of . The Joint venture agreement (PB
                   . (PB163)        JV               project     209-215) and JV account/ledger on
                                    receipt.(As                  (PB 216) maintained in books of
                                    explained earlier)           SHPL.
  . 22.02.2012     . 1,20,000    . This      is     towards . The Ledger of salary in books of SHPL
                   . (PB163)        salary                       is annexed along with this Synopsis
                                                                 at Pg. No.48
42. Total        43. 32,50,76944.                          45.

19. The above submissions and related documents mentioned by the Ld. Counsel for the assessee primarily show that the alleged amount is not coming under the purview of deemed dividend but 17 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 still as there is no specific finding by both the lower authorities discussing about these document, we find it appropriate to set aside this issue of deemed dividend for Assessment Year 2012-13 to the file of Ld.A.O for necessary verification after giving sufficient opportunity of being heard to the assessee in order to place documents in support of its contention that the alleged amount of Rs.32,50,769/- is not taxable as deemed dividend but it is a part of amount received against the advance salary and share of joint venture project. Thus Ground No.4 for Assessment Year 2012-13 is allowed for statistical purposes.

20. Now we take up Ground No.5 relating to addition of Rs.63,50,000/- on account of unaccounted investment u/s 69 of the Act. Brief facts are that during the course of search original deeds in the name of persons other than the assessee namely Smt. Vinita Parashar (value of property Rs.17,50,000/-) Shri G.P. Sinha and Shri Shailendra Kumar Sinha (property value at Rs.46 lakhs) were found. As the original sale deeds were found in the possession of the appellant just for this reason the investment in the immoveable properties were treated as unaccounted investment u/s 18 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 69 of the Act even when the notice issued u/s 133 of the Act to all the purchasers of the property were duly received and replied accepting the ownership of the properties. Assessee failed to get any relief from Ld. CIT(A).

21. Now the assessee is in appeal before the Tribunal.

22. We have heard rival contentions and perused the records placed before us. Assessee has challenged the addition of Rs.63,50,000/- on account of unaccounted investment u/s 69 of the Act made by the Ld.A.O on the strength of documents seized during the course of search in the shape of sale deeds which were purchased by different persons. For sake of clarifications details of the seized document, description of the property, name of the purchaser and amount paid by the purchaser is mentioned below;

 Sr.No46.         Ref                47.         Description                     48.     Name           of

                                                                                    Purchaser

11     . FS-5, LPS 1/1, Pg 62- . Sale Deed between M/s Fortune . Shri G P Sinha, R/O
                                        Soumya         Housing        Office    at 58,   Soumya   Estate,
        93

Fortune House, Plot No. 157, Khajuri kalan, Bhopal.

50. (PB 273-298) Zone-I , MP Nagar Bhopal 19 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 through its partner Shri Sameer Gupta S/o Shri Ajay Mohgaonkar S/o S. W. Mohgaonkar & Soumya Homes Pvt. Ltd. 69/A, Zone-2, M.P. Nagar, Bhopal though Director Shri Sanjay Kumar Sinha S/O Shri R.P. Sinha (Seller) and the purchaser is Shri G.P. Sinha S/O Late Shri Y.N. Shina R/O 58, Soumya Estate, Khajuri Kalan, Bhopal (M.P.) purchasing one freehold residential Plot no. C-57 Plot area 1158 Sq. ft. Situated at Tulip Greens, Gram Mahabadia, teshil Huzur, Distt. Bhopal for total sale consideration of Rs. 1082600/-

dated 31.03.2012.

2. . FS-5 as per LPS- 1/2, Sale Deed between M/s Fortune Shri Shailendra Kr.

                                       Soumya Housing Office at                     Sinha S/o Shri Ram
      page No. to 21
                                       Fortune House, Plot No. 157,                 Dayal Shina and Smt.
     54.         (PB 253-261)
                                       Zone-I , MP Nagar Bhopal                     Neelam Sinha W/o vill.
                                       through its partner Shri Sameer              & post suitha dost.

Gupta S/o Shri Ajay Mohgaonkar Patna state Bihar. S/o S. W. Mohgaonkar & Shri Sameer Gupta S/o Shri S.C. Gupta R/o 31-A, B.D.A. Colony, Koh-e-fiza, Bhopal (seller) and the purchaser's are Shri Shailendra Kr. Sinha S/O Shri Ram Dayal 20 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 SInha and Smt. Neelam Shina W/O Shri Shailendra Shina R/O Vill. & post, suita Distt. Patna state Bihar of free hold residential plot No. C-60 area 1156 Sq. Ft.

Situated at Tulip Greens, Gram Mhabadia, Tehsil Huzur, Distt.

Bhopal for total Sale consideration of Rs. 1082600/-

dated 7.1.2012.

3. FS- 5 as per LPS - 1/2, page Sale Deep between M/S Fortune Shri Shailendra Kr.

Number 22 to 44 Soumya Housing office at Fortune Sinha S/oShri Ram

55. (PB 245-252) House, plot No. 157, Zone-I, MP Dayal Shina and Smt. Nagar Bhopal thought its partners Neelam Sinha W/o vill. Shri Ajay Mohgaonkar S/o Shri & post suitha dost.

S.W. Mohgaonkar and Shri Patna state Bihar. Sameer Goupta S/o Shri S.C. Gupta R/o 31-A, B.D.A. colony, Koh-e-fiza, Bhopal (seller) and the purchaser's are Shri Shailendra Kr. Sinha S/o Shri Ram Dayal Sinha and Smt. Neelam Shina W/o Shri Shailendra Sinha R/o Vill. & post Suitha Distt. Ptana State Bihar of free Hold residential plot No. C-58 area 1156 Sq.ft.

Situated at Tulip Greens, Gram Mahabadia, Tehsil Hurzu, Distt, Bhopal for total of Rs. 1082600/-

dated 7.1.2012.

21 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

44. FS-5 as per LPS- 1/2, Sale Deep between M/S Fortune Shri Shailendra Kr.

page no. 42 to 62
Soumya Housing office at Sinha S/o Shri Ram
56. (PB 262-269)
Fortune House, plot No. 157, Dayal Shina and Smt.
Zone-I, MP Nagar Bhopal Neelam Sinha W/o vill.
thought its partners Shri Ajay & post suitha dost.
Mohgaonkar S/o Shri S.W. Patna state Bihar.
Mohgaonkar and Shri Sameer
Goupta S/o Shri S.C. Gupta R/o
31-A, B.D.A. colony, Koh-e-fiza,
Bhopal (seller) and the
purchaser's are Shri Shailendra
Kr. Sinha S/o Shri Ram Dayal
Sinha and Smt. Neelam Shina
W/o Shri Shailendra Sinha R/o
Vill. & post Suitha Distt. Ptana
State Bihar of free Hold
residential plot No. C-61 area
1156 Sq.ft. Situated at Tulip
Greens, Gram Mahabadia, Tehsil
Hurzu, Distt, Bhopal for total of
Rs. 1082600/- dated 7.1.2012.

23. Apart from the above four properties one more property in the name of Smt. Vinita Parashar, the sale deed of which was found during the course of search at LPS-20, FS-4 for the purchase of property worth Rs.17,50,000/-.

22 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

24. On examining the details we observe that the properties are in the name of Shri G.P. Sinha who is the father in law of the assessee and Mr. Shailendra Kumar Sinha who is the sister-in-laws husband of the assessee are close relatives. The father-in-law is very old and brother in law is Non Resident Indian. We find that payment for acquiring this properties have been made through account payee cheque by Mr. G.P. Sinha, Shailendra Kumar Sinha respectively and the transactions are duly accounted in the books of accounts of M/s. Soumya Homes Pvt. Ltd. Complete details of bank account of Shri G.P. Sinha are fully explained and the investment are on the record with the revenue authorities. Assessment u/s 153C r.w.s. 153A of the Act was completed in the case of Shri Shailendra Kumar Sinha wherein the investment and return of income were accepted. Thus it is undisputed that the purchase consideration in the alleged immoveable properties have been paid by the respective persons in whose name the property has been registered and their source of income is not doubted as Mr. G.P. Sinha is a retired person who paid the amount out of the accumulated savings and Mr. Shailendra Kumar Sinha has paid amount out of the disclosed source of income earned from outside India. Therefore the allegation 23 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 of the revenue authorities that the investment of Rs.46 lakh in the properties in the name of Shri G.P. Sinha and Shri Shailendra Kumar Sinha is unaccounted investment of the assessee seems baseless as all the evidences are on record which clearly prove that the owners of the properties have paid consideration for acquiring deed and there is no evidence to show that the alleged investment in the properties has been made by the assessee. Therefore addition for unaccounted investment of Rs.46,00,000/- u/s 69 of the Act stands deleted.

25. As far as the property of Smt. Vinita Parashar is concerned it is true that the original sale deed was seized from the residence of the appellant but in response to the summon issued to Smt. Vinita Parashar, her father namely Shri Shriram Choudhary appeared and stated that he is an employee of State Government and has sold one plot admeasuring 2400 sq.ft at Kolar road and receipt from sale of the plot was invested in the property in the name of daughter. The document related to this purchase was duly executed but was pending for registration and the document seized was a normal business document found at the Directors residence. 24 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 No other connection was established between the assessee and Smt. Vinita Parashar. Shri Shriram Choudhary has categorically accepted that the investment has been made by him in the name of his daughter from his own fund received from sale of plot at Kolar Road. Therefore when all the details of the purchaser were with the Ld.A.O and these persons appeared before the Ld.A.O there was no estoppels on his part to make necessary verification as well as investigation if any required from Shri Shriram Choudhary. In the given facts and circumstances there is no iota of evidence which could prove that investment of Rs.17,50,000/- in the property in the name of Smt. Vinita Parashar is an unaccounted investment by the assessee and thus deserves to be deleted. We accordingly allow Ground No.5 raised by the assessee and delete the addition of Rs.63,50,000/- made for unaccounted investment u/s 69 of the Act.

26. Now we take up assessee's appeal No. ITA/Ind/2017 for Assessment Year 2013-14.

25 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

27. Apropos Ground No.3 wherein addition of Rs.30,51,950/- u/s 69 of the Act for unaccounted credits in bank account made by Ld.A.O and sustained by Ld.CIT(A) is concerned, brief facts are that during the course of search at the residential premises of Shri Rajeev Sharma who is one of the Director of M/s Soumya Homes Pvt. Ltd document LPS-1, page No. 25 was seized which shows some calculations. On this piece of documents against the figure of Rs.30,51,949/- shown balance, amount of Rs.20 lakhs with a particular of word "SS" was reduced and remaining amount of Rs.10,51,949/- was shown. Mr. Rajeev Sharma denied to have any information about this paper. Ld.A.O treated the word "SS" being referred to Mr. Sanjay Sinha and made the addition of Rs.30,51,949/- as unexplained transaction. Assessee failed to get any relief by Ld.CIT(A).

28. Now the assessee is in appeal before the Tribunal.

29. We have heard rival contentions and perused the records placed before us and also carefully gone through the judgment relied and referred by the assessee in his written submissions. The 26 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 issue raised in this Ground No.3 for the Assessment year 2013-14 relates to the addition of Rs.30,50,950/- for alleged unaccounted transaction. The basis of addition was a piece of document found at the residential premises of Mr. Rajeev Sharma who is also the Director of M/s. Soumya Homes Pvt.Ltd. On this piece of document following information was mentioned;

       Balance        30,51,949

       S.S            20,00,000

                      10,51,949

30. The above referred seized document was not found in the possession of the assessee. Mr. Rajeev Sharma denied to have any information about this paper. The addition for this amount has also been made in the hands of Shri Rajeev Sharma and treated it to be as unaccounted transaction of Shri Sanjay Sinha. There is no mention of any date and particular of transaction on this seized document. Name of the assessee is not appearing but just a word "SS" is appearing. It is a well settled in law that the loose papers and documents cannot possibly be construed as books of account regularly kept in the course of business. Such evidence would, 27 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 therefore, be outside the purview of Section 34 of the Evidence Act, 1972. Hon'ble Apex Court in the case of Central Bureau of Investigation Vs. V.C. Shukla (1988) 8 SSC 410 and Chuharmal Vs. Commissioner of Income Tax (1988) 172 250 38 Taxmann 190 (SC) has held that "revenue cannot be justified in resting its case on the loose papers, diary and documents found from third party if such documents contained narrations of transactions with the assessee". The above view of Hon'ble Apex Court was followed in the case of Shree Parshwanath Construction 24 ITJ 409 (Trib. Indore) and in the case of Addl. CIT V/s Lata Mangeshkar 97 ITR 696 (Bom.).

31. It was also settled law in the case of Amarjit Singh Bakshi (HUF) Vs. ACIT (2003) 86 ITD 13 (Delhi) held that "the document in question was not recovered from assessee's premises and assessee was not allowed any opportunity of cross examination and further hence the testimony was not delivered, it could not be said that there was any iota of evidence to support revenue's case that a huge figure over and above figure booked in books and accounts changed hands between parties and therefore no addition could be made based on such document in hands of assessee".

28 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

32. Similarly in the case of Pradeep Amrutlal Runwal Vs. TRO-3, Pune (2014) 47 taxmann.com 293 it was held that "presumption u/s 132(4A) is available only in respect of the person from whom the paper is seized. It could not be applied against a third party and hence, no addition could be made on the basis of the evidence found with third party".

33. In light of above judgments as well as in the given facts and circumstances of the case we find no justification for addition of Rs.30,51,950/- for the alleged unaccounted transactions in the hands of the assessee as the seized document was found at the residence of third party i.e. Mr. Rajeev Sharma and no particular of the transaction with date was mentioned nor there was any direct connection with the assessee, therefore such addition seems to be made merely on suspicion and devoid of any corroborative evidence which could prove the alleged additions of the Ld.A.O. We accordingly allow Ground No.3 of assessee's appeal for Assessment Year 2013-14 and delete the addition of Rs.30,51,950/-. 29 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

34. Apropos Ground No.4 for the addition of unaccounted cash deposits of Rs.5,30,000/-, brief facts are that in the assessment proceedings when details of bank account was called for. Ld.A.O while examining the bank account observed that there were various cash deposits. Ld.A.O was not satisfied with the explanations and thus made the addition of Rs.5,68,000/- to the total of unexplained cash deposits. When the matter was carried before Ld.CIT(A) Rs.38,000/- was deleted and thus for the remaining of Rs.5,30,000/- was in appeal before the Tribunal.

35. At the outset Ld. Counsel for the assessee showing the cash flow statement placed at page 32 to 33 of the synopsis submitted that there were regular withdrawal from Axis Bank as well as deposits and except for negative peak cash balance of Rs.81,420/- at the close of October, 2007 there was sufficient cash balance in the hands of the assessee which could explain the source of cash deposits. The Ld. Counsel therefore requested to set aside the issue to the file of the Ld.A.O for necessary verification. Ld. Departmental Representative did not opposed to this request. 30 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

36. We have heard rival contentions and perused the records placed before us. The alleged addition of Rs.5,30,000/- challenged by the assessee in Ground No.4 for Assessment Year 2013-14 for not explaining the addition of the cash deposit in the bank account held with Axis Bank. The cash flow statement have been filed by the assessee. As on 1.4.2012 the opening cash in hand shown as Rs.43,84,311/-. Primarily this figure supports the contention of the assessee. However as these details were not placed before the lower authorities, we deem it appropriate to set aside the issue for unaccounted cash deposits of Rs.5,30,000/- to the file of Ld.A.O for necessary verification after providing sufficient opportunity of being heard to the assessee in order to file the cash flow statement. In the result Ground No.4 raised by the assessee for Assessment Year 2013-14 is allowed for statistical purposes.

37. Apropos Ground No.5 relating to addition of Rs.8,42,000/- on account of deemed dividend u/s 2(22)(e) of the Act, we observe that similar issue has been dealt by us for Assessment Year 2012-13 and applying the same reason and decision taken by us we set aside this issue also to the file of Ld.A.O to verify the detail of 31 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 amount of Rs.2,01,000/- and Rs.6,41,000/- received on 02.06.2012 30.03.2013 respectively towards amount due to the appellant against joint venture agreement for the cost of land. Necessary details have been filed before us at paper book page 113 to 116 and paper book page 219. Accordingly Ground No.5 for the Assessment Year 2013-14 is allowed for statistical purposes.

38. Other grounds in the case of Shri Sanjay Kumar Sinha are general in nature which needs no adjudication.

39. In the result appeal of the assessee for Assessment Year 2007- 08 to 2011-12 are allowed, appeal for Assessment Year 2012-13 and Assessment Year 2013-14 are partly allowed for statistical purposes.

40. Now we will take up appeals No. IT(SS)156 to 161/Ind/2017 & ITA No.429/Ind/2017 in the case of Smt. Anjana Sinha for Assessment Year 2007-08 to 2013-14 wherein following grounds are raised;

32 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 Assessment Year 2007-08 On the facts and in the circumstances of the case :-

1. Ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition of unaccounted cash deposit of Rs.40,000/-

4. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

The appellant craves leave to add, amend or modify any of the grounds of appeal.

Assessment Year 2008-09 On the facts and in the circumstances of the case :-

1. Ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition on account of unaccounted cash deposit of Rs.69,000/- (wrongly written by CIT(A) as Rs.32,000/-) out of total cash deposit of Rs.1,01,000/- That the ld.CIT(A) erred in sustaining the addition on account of unaccounted cash deposit of Rs.5,82,000/-.

4. That the ld CIT(A) erred in sustaining the addition of Rs.65,000/- on account of deemed dividend u/s 2(22)(e) of the Income Tax Act, 1961.

5. That the ld CIT(A) erred in sustaining the addition on account of alleged undisclosed perquisites as undisclosed receipts of Rs.3,61,666/- u/s 17(2)(iii) of the Income Tax Act.

6. That the ld.CIT(A) erred in making addition of Rs.2,90,000/- on account of alleged unaccounted credits in bank account u/s 69 of the Act.

7. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

The appellant craves leave to add, amend or modify any of the grounds of appeal.

33 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 Assessment Year 2009-10 On the facts and in the circumstances of the case :-

1. Ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld CIT(A) erred in sustaining the addition of Rs.14,50,2777/-

on account of deemed dividend u/s 2(22)(e) of the Income Tax Act, 1961.

4. That the ld CIT(A) erred in sustaining the addition on account of alleged undisclosed perquisites as undisclosed receipts of Rs.25,23,800/- u/s 17(2)(iii) of the Income Tax Act.

5. That the ld.CIT(A) erred in sustaining the addition of Rs.15,03,562/- on account of alleged unaccounted credits in bank account u/s 69 of the Act.

6. That the ld.CIT(A) erred in sustaining the addition of Rs.2,72,637/- on account of alleged booking of unaccounted business loss.

Assessment Year 2010-11 On the facts and in the circumstances of the case :-

1. The ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition on account of unaccounted cash deposit of Rs.25,000/-..

4. That the ld.CIT(A) erred in sustaining the addition of Rs.7,530/- on account of deemed dividend u/s 2(22)(e) of the Income Tax Act, 1961.

5. That the ld.CIT(A) erred in sustaining the addition of Rs.4,98,330/- on account of alleged booking of unaccounted business looses.

6. That the ld.CIT(A) erred in sustaining the addition of Rs.9,992/- on account of unaccounted investments.

7. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 The appellant craves leave to add, amend or modify any of the grounds of appeal.

Assessment Year 2011-12 On the facts and in the circumstances of the case :-

1. The ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition on account of unaccounted cash deposit of Rs.20,000/-..

4. That the ld.CIT(A) erred in sustaining the addition of Rs.11,00,000/- on account of alleged unaccounted credits in bank account u/s 69 of the act.

5. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

The appellant craves leave to add, amend or modify any of the grounds of appeal.

Assessment Year 2012-13 On the facts and in the circumstances of the case :-

1. Ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld CIT(A) erred in sustaining the addition of Rs.4,00,622/- on account of deemed dividend u/s 2(22)(e) of the Income Tax Act, 1961.

4. That the ld CIT(A) erred in sustaining the addition oon account of alleged undisclosed perquisites as undisclosed receipts of Rs.1,05,100/- u/s 17(2)(iii) of the Income Tax Act.

5. hat the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

The appellant craves leave to add, amend or modify any of the grounds of appeal.

35 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 Assessment Year 2013-14 On the facts and in the circumstances of the case :-

1. Ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld CIT(A) erred in sustaining the addition on account of unaccounted cash deposit of Rs.1,55,000/-

4. That the ld CIT(A) erred in sustaining the addition of Rs.1,70,352/- on account of deemed dividend u/s 2(22)(e) of the Income Tax Act,1961.

5. That the ld CIT(A) erred in making addition of Rs.3,00,000/- on account of alleged unaccounted credits in bank account u/s 69 of the act.

6. That the ld CIT(A) erred in making addition of Rs.5,46,800/- on account of undisclosed cap[ital gains.

7. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

The appellant craves leave to add, amend or modify any of the grounds of appeal.

41. Ground No.1 raised in these appeals are general in nature which needs no adjudication.

42. Ground No.2 has been raised by the assessee raising common ground that additions were not based on incriminating material found during the course of search. We have dealt this issue while adjudicating the issue of Shri Sanjay Kumar Sinha wherein we have deleted the addition for Assessment Year 20017-08 to 2011-12 after observing that in absence of any incriminating material found during the course of search and as the date of issuance of notices 36 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 u/s 143(2) of the Act stood expired, no addition was called for in the assessment completed u/s 153A of the Act in view of the judgment of Hon'ble High Court of Delhi in the case of CIT (Central)-III V/s Kabul Chawla (2016) 380 ITR 573 (Delhi).

43. In the instant case also the facts remains same. Return of income for Assessment Ye1r 2007-08 to 2011-12 stands filed as per the provisions of Section 139 of the Act. Date of search was 30.11.12. The last date for issuance of notice u/s 143(2) of the Act for Assessment Year 2011-12 was 30.9.2012, thus it remains undisputed that before the date of search due date for issuance of notice u/s 143(2) of the Act stood expired for Assessment Year 2007-08 to Assessment Year 2011-12. Further from perusal of the assessment order for Assessment Year 2007-08 to 2011-12, we find that the additions have been made for cash deposit, deemed dividend, undisclosed perquisites, unaccounted credit in bank, booking of bogus loss, unaccounted investment u/s 69 of the Act. And unaccounted Capital Gains. No live link have been established by the Ld.A.O for making these additions with any incriminating material found during the course of search. The additions have 37 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 been made merely on the basis of details called for in the course of regular assessment proceedings.

44. We, therefore in the given facts and circumstances of the case and respectfully following the judgment of Hon'ble High Court of Delhi in the case of CIT (Central)-III Vs, Kabul Chawla (supra) are of the considered view that no addition was called for in the case of the assessee Smt. Anjana Sinha for Assessment Year 2007-08 to 2011-12 being made in absence of any incriminating material. We accordingly allow Ground No.2 for Assessment Year 2007-08 to 2011-12 and delete all the additions made therein and dismiss Ground No.2 for Assessment Year 2012-13 to 2013-14.

45. Since we have allowed Ground No.2 for Assessment Year 2007-08 to 2011-12 all other grounds for 2007-08 to 2011-12 becomes infructous and merely academic in nature and therefore needs no adjudication.

46. Now we take up Appeal No. 161/Ind/2017 for Assessment Year 2012-13.

38 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

47. Apropos Ground No.3 relating to addition of Rs.4,00,622/- on account of deemed dividend u/s 2(22)(e) of the Act. Ld. Counsel for the assessee has given the complete details of explanation of alleged amount. We find that the assessee Smt. Anjana Sinha is drawing salary from M/s. Soumya Homes Pvt. Ltd. Rs.2,50,000/- is alleged to have been received as salary Rs.1,42,414/- is claimed to be income tax refund and Rs.8,082/- miscellaneous receipts. Primarily it shows that the alleged amount is not coming under the category of deemed dividend but still being fair to both the parties we set aside the issue to the file of Ld.A.O to make necessary verification of the details to be provided by assessee after being provided reasonable opportunity of being heard. Ground No.3 of the assessee for Assessment Year 2012-13 is thus allowed for statistical purposes.

48. Apropos Ground No.4 for the addition on account of alleged undisclosed perquisite as undisclosed receipts of Rs.1,05,100/- u/s 17(2)(iii) of the Act, brief facts of the case are that during the course of search proceedings it was noticed that the assessee purchased 39 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 some properties from M/s. Soumya Homes Pvt.Ltd. During the year Plot No.51, Soumya Estate, Bhopal were purchased for consideration of Rs.18,50,000/-. Stamp duty valuation was Rs.19,15,100/-. Difference of Rs.1,05,100/- was added to the income of the assessee as undisclosed perquisite.

49. We have given thoughtful consideration to this issue and observe that while adjudicating the ground raised in the case of M/s Soumya Homes Pvt. Ltd vide ITA (SS)No. 124 to 129/Ind/2017, ITA(SS) No.141 to 146/Ind/2017, ITA (SS) No.317/Ind/2017 & ITA(SS) No.342/Ind/2017 wherein the additions were made in the hands of M/s. Soumya Homes Pvt.Ltd for difference between the stamp duty valuation and purchase consideration. While deciding the issue in that case we have held that the transaction have been carried out at fair market value as lower rates for the properties were charged to the other customers in comparison to those charged to the Director or the relatives and thus the purchase consideration paid by the plot owners was accepted and the addition was deleted. We also held that the provisions of Section 50C of the Act are not applicable on the sale of stock in trade for 40 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 the transactions entered during the year under appeal. In view of our above decision, we are inclined to hold that no addition of Rs.1,05,100/- was called for in the hands of the assessee as undisclosed perquisite. Thus Ground No.4 of the assessee's appeal for Assessment Year 2012-13 is allowed.

50. Now we take up assessee's appeal in the case of Smt. Anjana Sinha for Assessment Year 2013-14 vide ITA No.429/Ind/2017.

51. Apropos Ground No.3 addition for unaccounted cash deposit of Rs.1,55,000/-, request has been made by Ld. Counsel for the assessee to set aside the issue to the file of Ld.A.O for carrying out necessary verification after perusal of the cash flow statement furnished by the assessee placed at Page 506 of the paper book. Ld. Departmental Representative did not oppose this request.

52. We therefore in the given facts and circumstances of the case observe that the month wise cash withdrawal and cash deposit statement from Axis Bank and HDFC Bank is filed and the claim of the assessee that she had sufficient cash balance to explain the 41 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 deposit of Rs.1,55,000/- needs to be set aside to the file of Ld.A.O for necessary verification who shall examine the details to be filed by the assessee on being provided sufficient opportunity of being heard. Therefore Ground No.3 is allowed for statistical purposes.

53. Apropos Ground No.4 which relates to addition of Rs.1,70,352/- on account of deemed dividend u/s 2(22)(e) of the Act, on perusal of the submissions made by Ld. Counsel for the assessee and also after going through the records placed before us and statements of Ld. Departmental Representative we find that entitlement of total salary as on 31.3.2012 is Rs.1,90,720/- and the alleged amount of Rs.1,73,352/- is received against the outstanding receivable amount. Further total salary due on 31.3.2013 is Rs.23,368/- (Rs.1,90,720 (-) Rs.1,73,352/-). Therefore there remains no basis for the addition of Rs.1,73,352/- on account of deemed dividend u/s 2(22)(e). Ground No.4 of the appeal of the assessee is allowed.

54. Apropos Ground No.5 for the addition of Rs.3,00,000/- on account of alleged unaccounted credits in the bank. It is contended 42 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 that this amount is loan taken from the assessee's father in law Shri R.P. Sinha. The bank statement of Shri R.P. Sinha is filed at paper book page 228. Ld. CIT(A) did not delete the addition for the alleged amount and confirmed it. It is also noticed that Shri R.P. Sinha was available during the course of search as well as during the course of assessment. In these given facts the claim of the assessee that Rs.3,00,000/- has been received from Shri R.P. Sinha could be verified by the Ld.A.O in order to satisfy about the source of the credit entry in the bank account which is claimed to have been received from the bank account of Shri R.P. Sinha for necessary verification with the assistance of the assessee, after providing him necessary opportunity of being heard. Ground No. 5 of the assessee is allowed for statistical purpose.

55. Ground No.6 is raised against the additions of Rs.5,46,800/- on account of unaccounted capital gains.

56. At the outset Ld. Counsel for the assessee requested for not pressing this ground. We therefore confirm the addition of 43 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 Rs.5,46,800/- and dismiss ground No.6 for Assessment Year 2013-14 as not pressed.

57. The other grounds are general in nature which needs no adjudication.

58. In the result the appeals of the assessee for Assessment Year 2007-08 to 2011-12 are allowed and for Assessment Year 2012-13 & 2013-14 are partly allowed for statistical purposes.

59. Now we will take up appeals No. IT(SS)162 & 150/Ind/2017 in the case of Shri Rajeev Sharma for Assessment Year 2008-09 to 2013-14. The assessee has raised following grounds; Assessment Year 2008-09 On the facts and in the circumstances of the case :-

1. Ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition of unaccounted cash deposit of Rs.99,000/-

4. That the ld CIT(A) erred in sustaining the addition on account of alleged undisclosed perquisites as undisclosed receipts of Rs.3,61,666/- u/s 17(2)(iii) of the Income Tax Act.

Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

5. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B. The appellant craves leave to add, amend or modify any of the grounds of appeal.

Assessment Year 2009-10 On the facts and in the circumstances of the case :-

1. Ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition of unaccounted cash deposit of Rs.2,50,000/-

4. That the ld CIT(A) erred in sustaining the addition on account of alleged undisclosed perquisites as undisclosed receipts of Rs.3,89,300/- u/s 17(2)(iii) of the Income Tax Act.

5. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

The appellant craves leave to add, amend or modify any of the grounds of appeal.

Assessment Year 2010-11 On the facts and in the circumstances of the case :-

1. Ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld CIT(A) erred in sustaining the addition of Rs.34,353/- on account of deemed dividend u/s 2(22)(e) of the Income Tax Act, 1961.

4. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

The appellant craves leave to add, amend or modify any of the grounds of appeal.

Assessment Year 2011-12 On the facts and in the circumstances of the case :- 45

Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

1. The ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition on account of unaccounted cash deposit of Rs.78,000/-..

4. That the ld.CIT(A) erred in sustaining the addition of Rs.33,662/- on account of deemed dividend u/s 2(22)(e) of the Income Tax Act, 1961.

5. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

The appellant craves leave to add, amend or modify any of the grounds of appeal.

Assessment Year 2012-13 On the facts and in the circumstances of the case :-

1. The ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition on account of unaccounted cash deposit of Rs.2,67,100/-

4. That the ld.CIT(A) erred in sustaining the addition of Rs.13,42,709/- on account of deemed dividend u/s 2(22)(e) of the Income Tax Act, 1961.

5. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

The appellant craves leave to add, amend or modify any of the grounds of appeal.

Assessment Year 2013-14 On the facts and in the circumstances of the case :-

1. Ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld CIT(A) erred in sustaining the addition on account of unaccounted cash deposit of Rs.3,99,000/-

4. That the ld CIT(A) erred in sustaining the addition of Rs.30,51,950/- on account of alleged transactions with Shri Sanjay Sinha.

Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

5. That the ld CIT(A) erred in sustaining the addition of Rs.4,67,450/- on account of cash found during search and treating that as unexplained cash.

60. Ground No.1 raised in these appeals are general in nature which needs no adjudication.

61. Ground No.2 has been commonly raised by the assessee for Assessment Year 2008-09 to Assessment Year 2013-14 challenging the addition as they were not based on incriminating material found during the course of search. We have dealt this issue while adjudicating the issue of Shri Sanjay Kumar Sinha wherein we have deleted the addition for Assessment Year 2008-09 to 2011-12 after observing that in absence of any incriminating material found during the course of search and the date of issuance of notices u/s 143(2) of the Act stood expired, no addition was called for in the assessment completed u/s 153A of the Act in view of the judgment of Hon'ble High Court of Delhi in the case of CIT (Central)-III V/s Kabul Chawla (2016) 380 ITR 573 (Delhi).

47 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

62. In the instant case also the facts remains same. Return of income for Assessment Year 2008-09 to 2011-12 stands filed as per the provisions of Section 139 of the Act. Date of search was 30.11.12. The last date for issuance of notice u/s 142 for Assessment Year 2011-12 was 30.9.2012 thus it remains undisputed that before the date of search due date for issuance of notice u/s 143(2) of the Act stood expired. Further from perusal of the assessment order for Assessment Year 2008-09 to 2011-12, we find that the additions have been made for cash deposit, undisclosed perquisites, deemed dividend, unaccounted transaction and unaccounted cash found. No live link have been established by the Ld.A.O for making these additions with any incriminating material found during the course of search. The additions have been made merely on the basis of details called for in the course of regular assessment proceedings.

63. We, therefore in the given facts and circumstances of the case and respectfully following the judgment of Hon'ble High Court of Delhi in the case of CIT (Central)-III Vs, Kabul Chawla (supra) are of the considered view that no addition was called for in the case of 48 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 the assessee for Assessment Year 2008-09 to 2011-12 in absence of any incriminating material. We accordingly allow Ground No.2 for Assessment Year 2008-09 to 2011-12 and dismiss Ground No.2 for Assessment Year 2012-13 to 2013-14. Since we have allowed Ground No.2 for Assessment Year 2008-09 to 2011-12 and delete the addition made therein, all other grounds for 2008-09 to 2011- 12 becomes infructous and merely academic in nature and therefore needs no adjudication.

64. Now we take up Appeal No.150/Ind/2017 for Assessment Year 2012-13. Apropos Ground No.3 relating to un accounted cash deposit of Rs.2,67,100/-, Ld. Counsel for the assessee requested to setting aside the issue for verification of cash flow statement contending that there was sufficient cash in hand to explain the source of cash deposits. The month wise cash withdrawal and deposit statement from Axis Bank and Indian Overseas Bank is placed at page No.18-20 of the synopsis. We accordingly set aside the issue and direct the Ld. A.O to verify the working of the cash flow statement and in case there is sufficient cash in hand with the assessee at various dates of cash deposits then no addition should 49 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 be made. Necessary opportunity of being heard should be made available to the assessee to file the cash flow statement. We therefore set aside the issue to the file of Ld.A.O. Accordingly Ground No.3 of the assessee's appeal is set aside for statistical purposes.

65. Apropos Ground No.4 pertaining to deemed dividend u/s 2(22)(e) of the Act at Rs.13,42,709/-, we have gone through the records as well as the statements made by the Ld. Counsel for the assessee before us. It is contended that as on 31.3.2011 the outstanding salary is Rs.1,06,492/- and during financial year 2011- 12 (Assessment Year 2012-13) the salary receivable during the year is Rs.13,02,500/- which makes total amount payable to Rs.23,62,992/-. Against this figure it is claimed that Rs.26,45,209/- has been paid which interalia includes the alleged amount of Rs.13,42,709/- and thus remains net debit balance of Rs.2,82,217/-. We have gone through these details and find that the additions u/s 2(22)(e) of the Act is not justifiable in the present circumstances because payments received by the assessee M/s. Soumya Homes Pvt. Ltd are part of the regular salary transactions 50 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 entered into ordinary process of business. The outstanding debit of Rs.2,81,217/- in no way could be termed as a loan because there are regular transactions of monthly salary and payments against it and the balance at the close of the month in the year gets it changed. Debit balance of Rs.2,82,217/- could not be categorized as loan to the assessee rather it is a balance of the current account between the company i.e. M/s. Soumya Homes Pvt. Ltd and the assessee, relating to the salary payable and therefore no addition was called for u/s 2(22)(e) of the Act. Therefore Ground No.4 of the assessee for Assessment Year 2012-13 is allowed.

66. Now we take up Ground No.3 for Assessment Year 2013-14. Apropos Ground No.3 relates to unaccounted cash deposit of Rs.3,99,000/-. As observed earlier this issue also needs to be set aside to the file of Ld.A.O for verification about the availability of cash in hand on the date of deposit of cash in bank after going through the cash flow statement filed at page 18-20 of the synopsis showing the cash withdrawal and cash deposited in Axis Bank and Indian Overseas Bank. Thus this ground is allowed for statistical purposes.

51 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

67. Now we take up Ground No.4 for the addition of unaccounted transaction of Rs.30,51,950/-. This addition was made on the basis of loose sheet LPS-1 page 1 to 25 consisting the hand written papers found from the residential premises of the assessee which had following particulars;

       Balance               30,51,949

       S.S.                  20,00,000

                             10,51,949

68. This issue came before us in the case of Shri Sanjay Kumar Sinha and we have deleted the addition holding it to have been made merely on suspicion and devoid of any corroborative evidence which could prove the alleged additions of the Ld.A.O. Ld.A.O made this addition of Rs.30,51,950/- in the hands of Shri Rajeev Sharma also which was confirmed by Ld.CIT(A). Now the assessee is in appeal before us.

69. We have heard rival contentions and perused the records placed before us. The loose paper appearing in LPS-1 page No.25 seized from the assessee's premises was the basis of the addition of unaccounted transaction of Rs.30,51,950/-. Assessee failed to give 52 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 any information about this document and also stated that it has not been written by him. There was no evidence to prove that it is in appellant's handwriting. We observe that during the search no evidence of any personal bilateral transactions between the families of Directors was found and the document not in the hand writing. Charge can be leveled on the assessee only when the document itself is a speaking one. Assessee by itself or in the company of other material found on investigation and/ or in the search for the document should be clear and unambiguous. Firstly it should be clear about the transaction/event which attracts the levy, secondly the person on whom the levy is to be imposed and who is obliged to pay the tax, thirdly assessment year in which charge of income tax is levied, fourth whether any taxable income arises from the transactions. In absence of all these characteristics the document becomes a dumb document. Ratio laid down in the case of CIT V/s Girish Chaudhary (2007) 163 taxman 608/((2008) 296 ITR 619 (Delhi) that no charge could be levied on the basis of dumb document.

53 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

70. In the instant case the alleged document is not speaking of any transaction as to whether it is credit entry or purchase entry or outstanding balance. No date and name is mentioned Revenue authorities miserably failed to make any correlation between assessee and the seized document. Therefore in our view alleged document is a dumb document on the basis of this no addition could be made. Therefore Ground No.4 for the Assessment Year 2013-14 is allowed and addition of Rs.30,51,950/- is deleted.

71. Apropos Ground No.5 for the addition of Rs.4,67,450/- on account of cash found during the course of search and treating it as unexplained cash found, brief facts are that the cash of Rs.8,52,400/- was found at the residential premises of Shri Rajeev Sharma and Rs.3,00,000/- found in the locker No.21 of Canara Bank. Out of these amount addition of Rs.4,67,450/- has been sustained by Ld. CIT(A). Ld. Counsel for the assessee has requested to set aside the issue to the file of Ld.A.O to verify the cash balance on the date of search on the basis of cash flow statement filed at page 18-20 of the synopsis. Ld. Departmental Representative did not opposed.

54 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

72. We have heard rival contentions and perused the records placed before us. It is contended that as on date of search cash balance with the assessee was Rs.35,85,857/- which covers the alleged addition of Rs.4,67,450/-. This facts needs to be verified by the Ld.A.O from the cash flow statement to be filed by the assessee and if the same is found to be correct then the addition of Rs.4,67,450/- may be deleted. Accordingly Ground No.5 of the assessee for Assessment Year 2013-14 is allowed for statistical purposes.

73. In the result the appeals of the assessee for Assessment Year 2008-09 to 2011-12 are allowed and for Assessment Years 2012-13 to 2013-14 are partly allowed for statistical purpose.

74. Now we will take up appeals in the case of Smt. Manju Sharma, Bhopal for Assessment Year 2009-10 to 2013-14 vide appeal No. IT(SS)167 to 170/Ind/2017 & ITA No.427/Ind/2017 The assessee has raised following grounds; 55 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 Assessment Year 2009-10 On the facts and in the circumstances of the case :-

1. Ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition of alleged undisclosed receipts of Rs.6,31,240/- from M/s. Soumya Homes Pvt. Ltd..

4. That the ld.CIT(A) erred in sustaining the addition of alleged undisclosed perquisites of Rs.10,46,700/- u/s 72(2)(iii) of the Income Tax Act.

5. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

The appellant craves leave to add, amend or modify any of the grounds of appeal.

Assessment Year 2010-11 On the facts and in the circumstances of the case :-

1. Ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition of alleged undisclosed receipts of Rs.4,32,328/- from M/s. Soumya Homes Pvt. Ltd.

4. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

The appellant craves leave to add, amend or modify any of the grounds of appeal.

Assessment Year 2011-12 On the facts and in the circumstances of the case :-

1. The ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled. 2 That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

3. That the ld.CIT(A) erred in sustaining the addition on account of unaccounted cash deposit of Rs.40,000/-.

4. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B. The appellant craves leave to add, amend or modify any of the grounds of appeal.

Assessment Year 2012-13 On the facts and in the circumstances of the case :-

1. The ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld.CIT(A) erred in sustaining the addition on account of unaccounted cash deposit of Rs.1,00,000/-

4. That the ld.CIT(A) erred in sustaining the addition of alleged undisclosed receipts of Rs.1,63,376/- from M/s. Soumya Homes Pvt. Ltd

5. That the ld.CIT(A) erred in sustaining the addition of alleged undisclosed perquisites of Rs.2,13,600/- u/s 72(2)(iii) of the Income Tax Act.

6. That the ld.CIT(A) erred in sustaining the addition of alleged undisclosed capital gains of Rs.6,57,820/-.

7. That the ld CIT(A) erred in not directing A.O to consider provisions of 234B (3) before calculating interest u/s 234B.

The appellant craves leave to add, amend or modify any of the grounds of appeal.

Assessment Year 2013-14 On the facts and in the circumstances of the case :-

1. Ld. CIT(A) was not justified in sustaining the assessment order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.

2. That the additions are illegal and bad in law as they are not based on any incriminating material found during the course of search.

3. That the ld CIT(A) erred in sustaining the addition on account of unaccounted cash deposit of Rs.70,000/-

4. That the ld.CIT(A) erred in sustaining the addition of alleged undisclosed capital gains of Rs.16,39,600/-.

Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017

5. That the ld.CIT(A) erred in sustaining the addition of alleged undisclosed cash found amounting to Rs.7,26,200/-

75. Ground No.1 for Assessment Year 2009-10 to Assessment Year 2013-14 are general in nature which needs no adjudication. As regards for Assessment Year 2009-10 to 2013-14 are concerned, as decided by us in the case of other assessee's in the preceding para, in the similar way the common ground No.2 has been raised for Assessment Year 2009-10 to Assessment Year 2013-14 contending that in absence of any incriminating material found during the course of search no addition could be made in assessment u/s 153A/153C of the Act. From the perusal of the records and submissions made by the assessee, we find that regular returns u/s 139 of the Act were filed on 30.3.2010, 4.1.2011 and 5.3.2012 for Assessment Year 2009-10 to Assessment Year 2011-12 and due date for issuance of notice u/s 143(2) of the Act was 30.9.2010, 30.9.2011 and 30.9.2012 for Assessment Year 2009-10 to 2011-12 respectively. The date of search was 30.11.2012. Therefore in view of the judgment of Hon'ble High 58 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 Court of Delhi as held in the case of CIT (Central)-III V/s Kabul Chawla (2016) 380 ITR 573 (Delhi) all additions for Assessment Year 2009-10 to 2011-12 could have been made only if there is any incriminating material found during the course of search which have its nexus with the additions made. However from perusal of the grounds as well as assessment order we observe that additions have for unaccounted cash deposit, undisclosed receipt from Soumya Homes Pvt. Ltd, undisclosed perquisite u/s 17(2)(iii) of the Act, undisclosed capital gains have its nexus from the details called during the course of assessment proceedings u/s 153A and there is no finding of Ld.A.O about the incriminating material found for these three assessment years.

76. We therefore taking the consistent view allow this common issue raised by the assessee for Assessment Year 2009-10 to Assessment Year 2011-12 and delete the additions for Assessment Year 2009-10 to 2011-12 as they were made in absence of any incriminating material. All other grounds for 2009-10 to 2011-12 becomes infructous and merely academic in nature and therefore 59 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 needs no adjudication. However Ground No.2 for Assessment Year 2012-13 & Assessment Year 2013-14 are dismissed.

77. Now we take up ground raised for Assessment Year 2012-13. Vide Appeal No.170/Ind/2017. Ground No.3 is raised against the addition for unaccounted cash deposit at Rs.1,00,000/-. We find that similar ground has adjudicated in the same group in preceding paras in these bunch of appeals. In the instant case also assessee has filed cash withdrawal and cash deposit statement for Axis Bank and Indian Overseas Bank annexed at page 17-18 of written synopsis and it is claimed that the assessee had sufficient cash in hand to explain the cash deposited in the bank accounts disclosed in the regular return of income. We therefore set aside this issue to the file of Ld. A.O for necessary verification and if satisfied may delete the addition. This ground is allowed for statistical purposes.

78. Apropos to Ground No.4 for undisclosed receipt of Rs.1,63,376/- from Soumya Homes Pvt. Ltd it has been contended before us that the alleged amount is not undisclosed receipts as it was received in connection with the salary account held by the 60 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 assesseein the books of M/s. Soumya Homes Pvt.Ltd. We find that as on 1.4.2011 the opening balance Rs.1,76,264/- salary payable, salary payable during the year was Rs.11,91,100 and the amount paid during the year was Rs.9,42,349/- which left a closing balance of Rs.4,25,015/- as on 31.3.2012. On the contrary the working given by the Ld.A.O contains certain irregularities as the figures taken in the working are not correct. Therefore this issue needs to set aside to the file of Ld.A.O to make a fresh working inconsonance with the correct calculation of the salary account filed by the assessee. Accordingly Ground No.4 is allowed for statistical purposes.

79. Apropos Ground No.5 for the addition for undisclosed perquisite u/s 17(2)(iii) of the Act at Rs.2,13,600/-, we find that the similar issue was raised in the case of other members of the same group for alleged difference between the purchase consideration and the stamp duty valuation. We have decided this issue in the case of M/s Soumya Homes Pvt. Ltd vide ITA (SS)No. 124 to 129/Ind/2017, ITA(SS) No.141 to 146/Ind/2017, ITA (SS) No.317/Ind/2017 & ITA(SS) No.342/Ind/2017 holding that the 61 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 transaction carried out by M/s. Soumya Homes Pvt Ltd were at the fair market price and there no undue benefit given by the company to its Directors/employees in selling the properties vis-à-vis the rates charged with other customers. We therefore applying the decision as discussed in the preceding para delete the addition of Rs.2,13,600/- by holding that no addition was called for towards perquisite u/s 17(2)(iii) of the Act for the flats purchased by the assessee on 29.3.2012. In the result ground No.5 is allowed.

80. Apropos Ground No.6 for the additions towards undisclosed capital gain at Rs.6,57,820/-, at the outset Ld. Counsel for the assessee requested for non pressing this ground and therefore this ground is dismissed as not pressed and the addition for Rs.6,57,820/- is confirmed.

81. Now we take up ground raised for Assessment Year 2013-14 Vide Appeal No.427/Ind/2017. Ground No.3 & 5 is raised against the addition for unaccounted cash deposit and unexplained cash at Rs.70,000/- and Rs.7,26,200/- respectively. We find that similar ground has been adjudicated in the same group in preceding paras 62 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 in these bunch of appeals. In the instant case also assessee has filed cash withdrawal and cash deposit statement for Axis Bank and Indian Overseas Bank annexed at page 17-18 of written synopsis and it is claimed that the assessee had sufficient cash in hand to explain the cash deposited in the bank accounts and cash found at the time of search. We therefore set aside these issues to the file of Ld. A.O for necessary verification of cash flow statement and to decide accordingly. Accordingly Ground No.3 and Ground No.5 are allowed for statistical purposes.

82. Apropos Ground No.4 for the additions towards undisclosed capital gain at Rs.16,39,600/-, at the outset Ld. Counsel for the assessee requested for not pressing this ground and therefore this ground is dismissed as not pressed and addition of Rs.16,39,600/- is confirmed.

83. In the result the appeals of the assessee are disposed off as under;

63 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 Shri Sanjay Kumar Sinha S.No. Appeal No. Assessment Year Result 1 IT(SS) No.150 to 2007-08 to 2011- Allowed 154/Ind/2017 12 2 IT(SS)No.155/Ind/2017 2012-13 Partly allowed for statistical purpose.

3 ITA No.428/Ind/2017 2013-14 Partly allowed

for statistical purpose.

Smt. Anjana Sinha
1          IT(SS)         No.156          to 2007-08 to 2011- Allowed
           160/Ind/2017                        12
2          IT(SS)          No.161/Ind/ 2012-13                   Partly allowed
           2017                                                  for   statistical
                                                                 purpose.
3           -                                  2013-14           Partly allowed
                                                                 for   statistical
                                                                 purpose.
Shri Rajeev Sharma

1          IT(SS)         No.162          to 2008-09 to 2011- Allowed
           165/Ind/2017                        12
2          IT(SS)          No.166/Ind/ 2012-13                   Partly allowed
           2017                                                  for   statistical
                                                                 purpose.


                                                                                64

Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 3 - 2013-14 Partly allowed for statistical purpose.

Smt. Manju Sharma
1          IT(SS)         No.162          to 2009-10 to 2011- Allowed
           164/Ind/2017                        12
2          IT(SS)          No.165/Ind/ 2012-13                       Partly allowed
           2017                                                      for   statistical
                                                                     purpose.
3          ITANo.427/Ind/2017                  2013-14               Partly allowed
                                                                     for   statistical
                                                                     purpose.

The order pronounced in the open Court on 15.02.2019 Sd/- Sd/-

               ( KUL BHARAT)                                   (MANISH BORAD)
         JUDICIAL MEMBER                                ACCOUNTANT MEMBER
 दनांक /Dated : 15 February, 2019

/Dev

Copy to: The Appellant/Respondent/CIT concerned/CIT(A) concerned/ DR, ITAT, Indore/Guard file.

By Order, Asstt.Registrar, I.T.A.T., Indore 65 Sanjay Kumar Sinha,Anjana Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 66

Legal Document View

Unlock Advanced Research with PRISMAI

Income Tax Appellate Tribunal - Indore

Smt Anjana Sinha, Bhopal vs The Dcit Central-Ii, Bhopal on 15 February, 2019