SMT. ROSY DABAS,NEW DELHI vs. DCIT, NEW DELHI

PER SAKTIJIT DEY, JM:

This is an appeal by the assessee against order dated

21.03.2014 of learned Commissioner of Income Tax (Appeals)-

XXXII, New Delhi, pertaining to assessment year 2007-08.

by the Tribunal vide order dated 22.01.2018. However,

subsequently, the appeal order was recalled vide order passed in

M.A. No. 156/Del/2018, dated 27.10.2021.

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as canvassed through the additional ground as well as ground no.

2 of the main ground, is regarding validity of the additions made

in absence of any incriminating material found in course of

search and seizure operations.

resident individual. On 01.06.2006, a search and seizure

operation was conducted in case of the assessee. In pursuance to

such search and seizure operation, assessment proceeding for the

impugned assessment year was initiated and assessment order

was passed on 31.12.2008 determining the total income at

Rs.2,41,260/-. Subsequently, one more search and seizure

operation under section 132 of the Act was carried out in case of

Dabas Group of cases on 14.09.2010, wherein, the assessee was

also covered. In pursuance to such search and seizure operation,

proceedings under section 153A were initiated against the

assessee. In course of assessment proceeding, the Assessing

Officer, based on materials on record, found that during the year

under consideration the assessee had purchased a plot of land

bearing no.81/42 at West Punjabi Bagh, Delhi for a total

consideration of Rs. 3 crores. The aforesaid amount was paid

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through cheques issued by Sh. Subhash Dabas, being proprietor

of M/s. Tirupati Construction Company. He further noticed that

on such transaction, stamp duty expenses of Rs.18 lakhs were

incurred. However, no details of such expenses were furnished by

the assessee. Thus, he added back the stamp duty expenses of

Rs.18 lakhs and a further amount of Rs.40,000/-, being the deed

writing expenses and court expenses. Thus, he made a total

addition of Rs.18,40,000/-. Besides, the Assessing Officer added

back an amount of Rs.45 lakhs towards unexplained expenditure

on construction of house property. The additions so made were

also sustained by learned Commissioner (Appeals).

disputed additions made by the Assessing Officer are not with

reference to any incriminating material found as a result of the

search and seizure operation conducted in case of the assessee.

He submitted, the materials relating to the disputed additions,

were found in the earlier search and seizure operation conducted

in case of the assessee on 01.06.2006. He submitted, in course of

search and seizure operation, assessee’s husband, Sh. Subhash

Dabas, already declared additional income of Rs.3 crores relating

to purchase of plot. Therefore, while completing the assessment,

4 ITA No. 4170/Del/2014 AY : 2007-08

no further addition was made at the hands of the assessee. In this

context, he drew our attention to the original assessment order

dated 31.12.2008 passed in case of the assessee for the impugned

assessment year.

Assessing Officer has made the additions, were found in the

earlier search and seizure operation, they could not have been

utilized for making addition in the assessment order passed

under section 153A of the Act in pursuance to the fresh search

and seizure operation. In support of such contention, learned

counsel for the assessee relied upon the decision of the Hon’ble

Delhi High Court in case of CIT vs. Kabul Chawla (2016) 380 ITR

0573 (Del).

learned Departmental Representative submitted, assessee’s

version that an amount of 3,50,00,000/- was offered at the hands

of Sh. Subhash Dabas, assessee’s husband and his proprietor-

ship concern, M/s. Tirupati Construction Compan, in course of

earlier search and seizure operation related proceeding was found

to be incorrect as learned Commissioner (Appeals) has recorded a

categorical factual finding that this surrendered amount of

5 ITA No. 4170/Del/2014 AY : 2007-08

Rs.3,50,00,000/- was never disclosed in the return of income

filed by the concerned parties. Thus, he submitted, there is no

evidence that the additions made in the impugned assessment

order were subject matter of earlier search and seizure operation

and the assessment order passed in pursuance there to.

materials on record. The primary contention of the assessee is,

the additions of Rs.18,40,000/- and Rs. 45,00,000/- made in the

impugned assessment order are not based on any incriminating

materials found in course of search and seizure operation, in

pursuance to which, proceeding under section 153A of the Act

was initiated. It is the say of the assessee that incriminating

materials, if at all, were found relating to purchase of plot, they

were found in course of the first search and seizure operation

conducted on 01.06.2006 and nothing was found in the second

search and seizure operation conducted on 14.09.2010. Though,

to be fair to the assessee, a reading of the impugned assessment

order does not reveal any factual finding of the Assessing Officer

that the additions made of Rs.18,40,000/- and 45,00,000/- are

with reference to any incriminating material found as a result of

search and seizure operation conducted on 14.09.2010, however,

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assessee’s version cannot also be accepted to be conclusive. This

is so, because, the assessee has failed to establish that the

alleged surrender of Rs.3,50,00,000/- was with reference to the

transaction relating to purchase of plot. We are expressing such

view looking at the extracted portion of the statement recorded

under section 132(4) of the Act from Sh. Subhash Dabas on

01.06.2006, as, reproduced in paragraph 8.1 of Commissioner

(Appeals) order. The relevant question and answer do not refer to

the purchase of plot, rather, it is in the context of cash

transaction with different parties. Therefore, assessee’s version

that the materials/information relating to purchase of plot was

found in the earlier search and seizure operation cannot be

accepted at face value. However, considering the fact that the

Assessing Officer has not mentioned in clear terms that the

additions made by him are with reference to any incriminating

material found as a result of search and seizure operation

conducted under section 132 of the Act on 14.09.2010, we are

inclined to restore the issue relating to the disputed additions to

the file of the Assessing Office for de novo adjudication after

considering assessee’s claim that such additions are not based on

any incriminating material found as a result of search and seizure

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operation conducted on 14.09.2010. After ascertaining the real

factual position qua assessee’s claim, the Assessing Officer may

decide the issue by applying the ratio laid down by the Hon’ble

Delhi High Court in case of CIT Vs. Kabul Chawla (supra).

statistical purposes.

Order pronounced in the open court on 22nd April, 2022

Sd/- Sd/- (G.S. PANNU) (SAKTIJIT DEY) PRESIDENT JUDICIAL MEMBER

Dated: 22nd April, 2022. RK/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi