SHRI SANJAY KUMAR SINHA,BHOPAL vs. THE DCIT CENTRAL-II, BHOPAL

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.

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.

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. 3

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.

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.

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 income Ld.A.O CIT(A) CIT(A) order A. 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

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.

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.

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;

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)

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.

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 Sinha, Rajiv Sharma & Manju Sharma IT(SS)No.150 to 170/Ind/2017 A.Y Date of filing of Return Due date for Status on date of u/s 139(1) issue of notice search u/s 143(2) 2007-08 Verification at (PAPER 30.09.2008 Return processed BOOK 46) 25.07.07 u/s 143(1). No (PB44) notice u/s 143(2) 2008-09 (PAPER BOOK-59) 30.09.2010 Return processed Date not clear (Max) u/s 143(1). No notice u/s 143(2) 2009-10 30.03.2010 (PAPER 30.09.2010 Return processed BOOK 70) u/s 143(1). No notice u/s 143(2) 2010-11 18.01.2011 (PAPER 30.09.2011 Return processed BOOK 83) u/s 143(1). No notice u/s 143(2) 2011-12 05.3.2012 (PAPER 30.09.2012 Return processed BOOK 93) u/s 143(1). No notice u/s 143(2)

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.

2007-08 to 2011-12, we find that the addition relating to

unaccounted credits in the bank account and unaccounted cash

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

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.

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

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

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

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

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.

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.

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).

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.

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.

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:-

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 25. The Salary Advance (Director) ledger is towards . (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. 32,50,769 44. 45.

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.

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).

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.No 46. 47. 48. Ref Description 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

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

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.

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.

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/-.

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.

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.

Assessment Year 2013-14.

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).

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

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.).

(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”.

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/-.

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.

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.

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.

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.

general in nature which needs no adjudication.

08 to 2011-12 are allowed, appeal for Assessment Year 2012-13

and Assessment Year 2013-14 are partly allowed for statistical

purposes.

& 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;

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.

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. 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 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.

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.

which needs no adjudication.

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

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).

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.

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.

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.

Year 2012-13. 38

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

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.

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.

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.

Sinha for Assessment Year 2013-14 vide ITA No.429/Ind/2017.

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.

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.

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.

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.

on account of unaccounted capital gains.

pressing this ground. We therefore confirm the addition of

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.

adjudication.

2007-08 to 2011-12 are allowed and for Assessment Year 2012-13

& 2013-14 are partly allowed for statistical purposes.

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 :-

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. 46

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. 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.

which needs no adjudication.

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).

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.

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.

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.

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.

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

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.

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.

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.

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

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.

2008-09 to 2011-12 are allowed and for Assessment Years 2012-13

to 2013-14 are partly allowed for statistical purpose.

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;

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. 56

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/- 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.

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

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.

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

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.

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.

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.

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.

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.

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.

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.

under;

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.

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

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