ACIT, NEW DELHI vs. SH. GULSHAN KUMAR SETHI, DELHI

the assessment order, the assessee had sold property bearing No. C-l, Sector -65, Noida, to M/s. Coastal Projects Ltd. The Assessee’s counsel submitted before the Ld. CIT(A) that assessee had never owned the above property but the above property continues to belong to the same company. The assessee had filed a copy of the e-filed income tax return of the above Company for Assessment Year 2010-11 and as per the same, the Company’s Permanent Account Number is AABCH8051J and assessed by ITO, Ward 12(4), Delhi. Copy of the seized document No. 18 mentions the name of the Company differently as M/s. Birds Software Pvt. Ltd. and the relevant portion is as follows:-

Name of the Company: Birds Software Pvt. Ltd. - The sale procedure shall be through Company transfer in the name of the buyer as happened in previous transaction.

6.3 After perusing the aforesaid details, it reveals that it was a transfer of Company and not the transfer of the property as stated by the Assessing Officer in the assessment order. The assessment order is also silent regarding the date of the transfer or about any document indicating the transfer of the above property. The assessment order mentions that sale consideration was paid by cheque and also by cash. But there is no mention about the date of the cheque or about the recipient of cheque for Rs. 70,00,000/-. The Assessing Officer had completed the assessment on the presumption that the assessee is the owner of the property based on the seized documents No. 18, which mentions as follows:- “Owner’s name is Mr. Gulshan. The names of other Directors of the said Company shall be known later.”

6.4 After perusing the aforesaid details, it is observed that the assessee Sh. Gulshan was one of the Directors and there is no mention in the assessment order about the other Directors of the Company which proposed to sell property to M/s Coastral Project Pvt. Ltd. However, during the appellate proceedings, the AR of the assessee stated that the assessee ceased to be the Director of the above Company M/s. Humming Birds Solution Pvt. Ltd. w.e.f. 16.03.2007. The assessee also filed a copy of Form No. 32 filed before the Registrar of companies indicating that he had resigned as a Director of the above Company from 15.03.2007. The audited Balance Sheet of the above Company M/s. Humming Birds Solution Pvt. Ltd. for the year ending 31.03.2010 filed before the Ld. CIT(A) which indicates the names of the Directors as Sandeep Malik and Veena Malik, but the Assessing Officer is either not aware of these Directors or even if aware, had not carried out any enquiries on their sources of income. It appears that the Assessing Officer presumed that the assessee had received the entire consideration of Rs. 6,45,00,000/-, though the seized document only indicates that there was some negotiations for the sale of property bearing No. Sector-65, Noida and there is no indication in it of any definite transaction. There is no mention in the assessment order about the date of sale or any detail regarding the sale transaction. The seized document also indicates the possibility of M/s.

Coastal Projects Ltd. acquiring the Company M/s. Humming Birds Solution Pvt. Ltd. which had the property at C-l, Sector-65, Noida. Since it is clearly mentioned in the assessment order that Rs. 70,00,000/- of the consideration was paid by cheque, the Assessing Officer should have at least traced this cheque payment. If there was evidence that the cheque of Rs. 70,00,000/- was received by the assessee Sh. Gulshan Kumar Sethi, then there was some basis for considering that the assessee had received the entire sale consideration of Rs. 6,45,00,000/- for transferring the property either through a sale deed or through the outright transfer of the shares of the Company. In the absence of any such concrete evidence, the addition of Rs. 6,45,00,000/- on the assessee is based only on assumptions and thus, not sustainable. Also as per the assessment order, Sh. Subbineni Surendra of M/s. Coastal Projects Ltd. had admitted the payment of Rs. 6,45,00,000/- to Sh. Gulshan Kumar as per letter dated 17.3.2015 of DCIT, Central Circle 2(2), Hyderabad, which the Ld. CIT(A) has verified with the assessment records and there is nothing in the above letter dated 17.3.2015 to indicate that the assessee had received Rs. 6,45,00,000/- from M/s. Coastal Projects Ltd.. Even the Assessing Officer had failed to carry out any enquiries to find out the actual recipient / recipients of Rs. 6,45,00,000/- from M/s. Coastal Projects Ltd before adding the above sum as assessee’s undisclosed income. In the absence of any concrete evidence, to indicate that the assessee had received the sum of Rs. 6,45,00,000/- from M/s. Coastal Projects Ltd., Ld. CIT(A) has rightly deleted the addition of Rs. 6,45,00,000/- made by the Assessing Officer, which does not need any interference on our part, hence, we uphold the order of the Ld. CIT(A) on this issue and dismiss the ground raised on the merits of the case.

In the result, the Revenue’s Appeal stands dismissed 7.

Order pronounced on 18/04/2019.