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

It is necessary to observe, this appeal was earlier disposed of 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.

Be that as it may, the preliminary grievance of the assessee, 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.

Briefly the facts relating to this issue are, the assessee is a 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 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).

Learned counsel appearing for the assessee submitted, the 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, since the materials based on which the 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).

Opposing the contention of learned counsel for the assessee, 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 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.

We have considered rival submissions and perused the 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, 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 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).

With the aforesaid observations, grounds are allowed for statistical purposes.

In the result, the appeal is allowed for statistical purposes.