ACIT, NEW DELHI vs. YATINDER KUMAR GUPTA, NEW DELHI

PER R.K. PANDA, AM,

This appeal filed by the Revenue is directed against the

order dated 29.04.2015 of the learned CIT(A)-II, Agra, relating

to Assessment Year 2010-11.

2 ITA No.5695/Del/2015

reads as under:-

“1. The learned CIT(A) has erred in law and facts while deleting the addition of Rs.2,15,00,000/- made on account of unaccounted money was invested by the assessee for purchase of property in J.P. Green, Greater Nodia.” 3. Facts of the case, in brief, are that the assessee is an

individual and derives income from business, income from

house property and income from other sources. A search u/s

132(1) of the I.T. Act, was conducted on 17.09.2010 at the

premises of the Sharda Group of Agra including the premises of

the assessee in which certain documents and assets, etc. were

found and seized. In response to notice u/s 153A dated

17.01.2012, the assessee filed his return of income on

21.09.2012 declaring total income of Rs.19,47,520/-. During

the course of assessment proceedings, the AO noted that

certain papers marked as Annexure A-II in party A-I which

were seized relates to same property transaction which gives

calculation of payments made for purchasing a house. The AO

observed that as per this paper, a house was purchased in a

colony developed by Jaypee group. On enquiry being made

about the entries made in this paper, the assessee explained

3 ITA No.5695/Del/2015

before the AO in a reply filed on 29.03.2013 stating that one

person named Shri Rohit Gupta who had earlier booked one

residential property in Jaypee Greens, Greater Noida wanted to

sell the said property mentioned in the seized paper. All the

notings, in the seized paper are as per purchase terms agreed

by Shri Rohit Gupta. The broker informed to the assessee that

Shri Rohit Gupta was not in a position to pay further

instalments and hence, he wanted to transfer his allotment. As

per the assessee’s reply submitted before the AO, he contacted

the concerned person of Jaypee Greens, Greater Noida to

confirm whether the said property has been allotted to Shri

Rohit Gupta or not. He got it confirmed from Jaypee Greens

that the property was booked by Shri Rohit Gupta and he had

already paid Rs.1.65 crore and further amount due from him to

be paid immediately was approximately Rs.1.00 crore. Jaypee

Greens people informed that if the assessee wanted to transfer

the allotment in his favour, he had to pay Rs.1.65 crore to Shri

Rohit Gupta and Rs.1.00 crore to the company, Jaypee Greens,

Greater Noida. The assessee further mentioned in his reply filed

before the AO that he agreed to purchase the said property and

to pay Rs.1.65 crore to Shri Rohit Gupta. After payment to Shri

4 ITA No.5695/Del/2015

Rohit Gupta, his allotment was cancelled and the property was

booked in the name of Shri Pradeep Kumar Gupta jointly with

his wife Smt Seema Gupta by Jaypee Greens, Greater Noida

and total purchase amount finalized with Jaypee Greens was

Rs.5.85 crore out of which, Rs.1.65 crore was paid to Shri

Rohit Gupta from the bank account of Smt. Seema Gupta and

further Rs.1.00 crore was paid to Jaypee Green, Greater Noida

from the bank account of Smt. Seema Gupta and partly from

the bank account of Shri Pradeep Gupta. The assessee

mentioned in his reply to the AO that these payments are

verifiable from the bank statement filed by him. Thus, as per

the assessee, total payment made to acquire this property is

Rs.2.65 crore and the same is clear from the payment plan

letter issued by Jaypee Greens. The assessee also filed copy of

the provisional allotment letter and the payment plan issued by

Jaypee Greens, Greater Noida. It was clarified by the assessee

in his reply to the AO that he has not made any payment on

15.11.2009 and 01.11.2009. He further clarified that he has no

concern with the noting as mentioned in the impugned paper

and the same has been explained giving following facts:-

5 ITA No.5695/Del/2015

“(A) The property has been allotted in favour of Shri

Pradeep Kumar Gupta jointly with Smt. Seema Gupta

by Jay Pee Greens, Greater Noida as per their

provisional allotment letter dated 17.09.2012.

(B) The total purchase price for the said property as

per the provisional allotment letter is Rs.5.85 crore.

(C) The payment of Rs.2.65 crore was paid out of

Rs.5.85 crore and the balance amount is to be paid as

per the payment plan issued by Jay Pee Greens,

Greater Noida”

property as mentioned in the seized paper, the assessee

further emphasized in his reply that perusal of all the

documents conclusively proves that no payment over and

above Rs.2.65 crore has been made and hence, the notings

mentioned in the alleged seized papers cannot in any way be

related with the assessee. It was argued that Jaypee Greens

are the well established, well reputed and one of the biggest

builders and they do not charge any amount over and above

the amount as agreed for any particular transaction. The

assessee also replied that he does not know Shri Rohit Gupta

6 ITA No.5695/Del/2015

and Reeva Khetrpal. The broker only informed that the said

property was booked by Shri Rohit Gupta which he got

confirmed from Jaypee Green's before getting the property

allotted in his favour.

4.1. However, the AO was not satisfied with the reply

given by the assessee. He noted that as per assessee’s reply

total purchase price for the said property as per the

provisional allotment letter is Rs.5.85 crore while on paper this

was finalized at Rs.4.92 crore and then at Rs.5.65 crore. He

noted that the assessee has said in his reply that the property

has been allotted in favour of Pradeep Kumar Gupta jointly

with Smt. Seema Gupta by Jaypee Greens as per their

provisional allotment letter dated 17.09.2012 while as per

paper assessee has made payments till 15.11.2009 and

further the payment of Rs.1.65 crore was done on 01.10.2009.

Therefore, he concluded that considering the above dates of

payment, the house should be transferred on or near about

this date. As regards the name of Shri Rohit Gupta and Reeva

Khetrpal, the AO pointed out that both these names are

mentioned on these papers and the assessee has purchased

7 ITA No.5695/Del/2015

property from Shri Rohit Gupta but he is now denying about

knowing Shri Rohit Gupta and Reeva Khetrpal. The AO

examined the seized documents and was of the opinion that

this is a common practice of the assessee that he used the

word ‘A’ for accounted money and ‘B’ for unaccounted money.

The AO further discussed in the assessment order after

examination of the seized papers keeping in view his findings

that the word ’A’ & ‘B’ is mentioned in other papers found in

search that this is very clear that on first, Shri Rohit Gupta

finalized the deal of property with Jaypee for Rs.492.25 lakh in

which he paid to Jaypee at Rs.1.55 crore on 11.01.2008 and

Rs.10 lac on 31.10.2008. The AO further discussed in the

assessment order that the assessee purchased the property

from Mr. Rohit Gupta and Rs.1.65 crore was given as

accounted ‘A’ amount to him with premium of Rs.72.72 lac as

unaccounted ‘B’ amount. Therefore, total amount of Rs.237.72

lakhs were paid to Shri Rohit Gupta and rest amount is to be

paid is Rs.254.53 lakhs. The AO further discussed in the

assessment order that during transfer process, Jaypee

increased total amount to Rs.565 lakhs because of the

following reasons as mentioned in the seized papers.

8 ITA No.5695/Del/2015

10% penalty charges of Rs.492.25 lakhs = Rs.49.23 lakhs Golf Membership charge + sports membership =Rs.23.52 lakhs 5. After giving the above details of increase in the

price of the property purchased from Jaypee, the AO has held

that the amount of Rs.565 is divided in two parts, amount ‘A’

of Rs.350 lakhs and ‘B’ of Rs.215 lakhs. The AO has also

pointed out that because amount of Rs.165 lakhs was already

paid to Shri Rohit Gupta, therefore, rest amount is calculated

at Rs.185 Lakhs and in ‘B’ amount Rs.72.75 lakhs has already

been paid and rest amount of Rs.142.25 is paid on

01/11/2009 to the Jay Pee as per calculation mentioned on

paper. After examining the above mentioned facts from the

seized paper, the AO concluded that this is very clear that

amount of Rs.215 lakh mentioned as amount ‘B’ is

unaccounted income of the assessee and treated the same as

undisclosed. The AO accordingly made addition of Rs.2.15

Crore to the total income of the assessee.

elaborate arguments stating that the AO has made addition on

the basis of presumption and surmises without appreciating

9 ITA No.5695/Del/2015

that neither he purchased the property nor he made any

payment. Further, the allotment letter was not in the name of

the assessee or his wife. Although the seized papers were

found from the residence of the assessee but it is not related to

the assessee. The presumption drawn by the AO u/s 292C of

the Act is not supported by any corroborative evidence.

Further, the document found is not in the handwriting of the

assessee. It was submitted that the transaction took place for

a sum of Rs.5.50 Crores and out of the said amount a sum of

Rs.1.65 Crores was made to Mr. Rohit Gupta which was

already paid by him to the builder. Further, the price of the

property is more than the amount mentioned in the seized

document found and the entire payment were made by cheque

through banking channel and no unaccounted cash is

involved. The assessee filed the affidavit of the concerned

broker with request to admit the same under Rule 46A of I.T.

Rules and also requested the learned CIT(A) to examine the

broker to prove the correctness of the affidavit filed before him.

The learned CIT(A) after admitting the additional evidence filed

before him, examined the broker and also called for a remand

report from the AO. After considering the submission of the

10 ITA No.5695/Del/2015

assessee, the remand report of the AO and the rejoinder of the

assessee to such remand report, the learned CIT(A) deleted the

addition by observing as under:-

“5.10 I have examined all the details brought before me by Id. AR as well as the AO relating to the seized document in which certain recording has been made relating to purchase of a property under dispute. In order to decide the issue relating to alleged unexplained investment made by the assessee in the said property, I have decided to first examine the impugned seized document. This seized document is place as Annexure A-1 of this order. Looking to this seized document, total price of the property has been found to be mentioned as Rs.5.65 crore out of which, Rs, 3.5 crore is mentioned as ‘A’ and Rs. 2.15 is mentioned as ‘B’. Thus, total price of the property has come to Rs.5.65 crore. Out of the amount mentioned as ‘A’ at Rs.3.5 crore, payment of Rs.1.65 crore has been shown and against the balance amount of Rs.1.85 crore, Jaypee Greens, Greater Noida is written. On the basis of these notings made in the seized document, the AO concluded that out of Rs 3.5 crore mentioned as ‘A’ amount, Rs.1.65 crore is paid by cheque to Shri Rohit Gupta from whom property was purchased and balance Rs.1.85 crore was required to be paid to Jaypee Greens, Greater Noida. For ‘E3’ amount of Rs.2.15 crore, it has been concluded by the AO that the same has been paid in cash to the person from whom this property has been purchased as unaccounted payment and hence, he added this amount in the income of the assessee assuming that this payment has been made by the assessee (appellant). Now, these notings made in the seized document are required to be examined in the light of the factual position relating to this property. It is undisputed fact that this property is in the name of elder brother of assessee (Shri Pradeep Kumar Gupta and his wife Smt. Seema Gupta). This fact has also been told to the AO during the assessment proceeding. As far as the price of the property is concerned, i have found from the allotment letter issued by Jaypee Greens as well as the payment plan that total price of the property is Rs.5.85 crore. This fact has also been stated by the assessee to the AO during the assessment proceeding. The price of Rs.5.85 crore mentioned in allotment letter of Jaypee issued to Sri Pradeep Kumar Gupta and Smt. Seema Gupta is more than the amount of Rs.5.65 crore mentioned in the seized document. The AO has also not brought any evidence on the record to show thaTthe

11 ITA No.5695/Del/2015

value or the price of the impugned property is more than the amount of Rs.5.85 crore mentioned in the allotment letter issued by Jaypee Greens. The assessee(appellan.t) has very clearly shown by giving the details of cheques issued so far that total payment of Rs.2,67,57,500/- is made as per the details given below:-

Date Cheque No. Amount 1.10.2009 230832 issued from Syn 1,65,00,000 Bank of Smt. Seema Gupta 31.93.2012 778618 issued from 50,00,000/- Syn Bank of Pradeep Kumar Gupta 31.03.2012 230845 issued from 52,57,500/- Syn Bank of Smt. Seema Gupta 5.11 From the payment plan issued by Jaypee Greens, Greater Noida, it has been shown by the assessee(appellant) that total price of the property is Rs.5.85 crore out of which, Rs.2.65 crore has been paid including service tax and remaining amounting of Rs.3.20 crore is outstanding. 5.12 Considering the above details of price of the property and the payments made so far, I find that the possibility of any payment made in cash does not arise because price of the property itself is more than what is shown in the seized document out of which Rs.2.65 core have been paid in cheque and balance amount of Rs.3.20 crore are still shown outstanding in the payment plan of Jaypee Greens. The question of making payment in cash over and above the price of the property mentioned in the allotment letter arises only when it is proved that the value /price of the property is more than the price mentioned in the allotment letter. Neither seized document establishes that the price of the property is more than the price mentioned in the allotment letter nor the AO has brought any evidence on record to show that the price of the property is more than Rs.5.85 crore mentioned in the allotment letter. It is also important to note here that the property is not in the name of assessee(appellant) but it is in name of brother Shri Pradeep Kumar Gupta & Smt. Seema Gupta and so far all payments have been made by them. Therefore, possibility of making any unaccented investment in this property by the assessee(appellant) does not arise. The AO only argument is that though the property is in the name of Shri Pradeep Kumar Gupta and Smt. Seema Gupta but all the dealings have been made by the assessee and he is a key person for making this dealing. Therefore, irrespective of the fact whether property is in the name of Shri Pradeep Kumar Gupta and Smt.Seema

12 ITA No.5695/Del/2015

Gupta, as per the AO, unaccounted investment in cash to the extent of Rs.2.15 crore has been made by the assessee. If this argument of the AO is accepted that the unaccounted payment of Rs.2.15 crore in cash has been made by Shri Y.K. Gupta for purchase of the impugned property, the total price of impugned property would come to Rs.8 crore (Rs.5.85 crore +Rs.2.15 crore). However, no evidence has been brought on record by the AO showing that total price of the property or its value is asessed at Rs.8 crore. In fact the AO has not even disputed the total price of the property or its value shown in the allotment letter submitted by the assessee(appellant). Therefore, his argument of making of unaccounted payment in cash by the assessee to the extent of Rs.2.15 crore for purchasing this property has not been found to be convincing at all. His another argument of making of unaccounted investment by the assessee in the said property because he was involved in the deal irrespective of the fact that the property is in the name of his elder brother, has also not been found convincing. In this regard, I agree with the Id. AR as argued by him in the rejoinder that the argument of the AO that with regard to the property at Jaypee Greens, Greater Noida , the broker met Shri Y.K. Gupta and he does not know Shri P.K. Gupta, does not make any material difference as all the payments are made from the bank account of Shri P.K. Gupta and Smt. Seema Gupta and the property is also booked and allotted in the joint name of Shri Pradeep Kumar Gupta & Smt. Seema Gupta and all the documents and evidences in this regard, are already on record and show that this property belongs to them. It is also important to note here that there is nothing on record to show /proof that the cheques to Shri Rohit Gupta and further cheque to Jaypee Greens were given by Shri Y.K. Gupta. As regards to amount mentioned as ‘A’ & ‘B’ in the seized document and conclusion drawn by the AO that amount ‘B’ is paid in cash, I find that the Id. AR has correctly referred to decision of the Hon’ble ITAT Agra in the appeal of Sharda Educational Trust with regard to the paper seized from the residence of Shri Y.K. Gupta. In this decision, it has been held that in absence of any recovery of incriminating material against the assessee and any corroborative evidence during the course of search, the Hon’ble Tribunal was of view that various documents /list annexed with the impugned order is not admissible in evidence against the assessee. Therefore, the argument of AO that ‘B’ amount mentioned in seized document is payment in cash cannot be accepted because as I have already discussed that there is no possibility of making cash payment for purchase of this property in view of the fact that total price of the property as mentioned in the allotment letter of Jaypee Greens is more than what is mentioned in the seized document. Out of the

13 ITA No.5695/Del/2015

total price of Rs. 5.85 crore mentioned in the allotment letter, the payment made by the elder brother of the assessee and his wife totaling to Rs.2.65 crore has already been mentioned in the payment plan of Jaypee Greens and balance amount of Rs.3.20 is still shown outstanding. There is no evidence that the value of the property is more than Rs. 5.85 crore. Therefore, on the basis of the seized document, it is not proved that the amount ‘A’ mentioned as Rs.3.5 crore is cheque amount and Rs.2.15 crore mentioned as ‘B’ is cash amount. Therefore, considering all the above facts and circumstances of the case as discussed by me and taking into account the fact that the property is not in the name of the assessee(appellant), no addition can be made in the hand of the assessee treating Rs.2.15 crore as unaccounted investment made by the assessee(appellant). Therefore, I delete the addition of Rs.2.15 crore made in the assessment order. Accordingly, grounds taken in appeal disputing the addition of Rs.2.15 crore are allowed.”

Revenue is in appeal before the Tribunal.

Assessing Officer and submitted that the ld. CIT(A) was not

justified in deleing the addition without appreciating that

seized documents contains noting which clearly shows that

amount of Rs.2.15 lakhs is the unaccounted money given in

black. He accordingly submitted that the order of the learned

CIT(A) be set-aside and the order of the AO should be restored.

hand, strongly supported the order of the learned CIT(A).

14 ITA No.5695/Del/2015

Referring to the order of the AO as well as the learned CIT(A)

and the various pages of the paper book, he submitted that

the property is in the name of elder brother of the assessee

namely Shri Pradeep Kumar Gupta and his wife Smt. Seema

Gupta. The price of Rs.5.85 crores mentioned in allotment

letter of Jaypee Group issued to Shri Pradeep Kumar Gupta

and Smt. Seema Gupta is more than the amount o Frs.5.65

crores mentioned in the seized document. He submitted that

the AO has not brought any evidence on record to show that

the value or the price of the impugned property is more than

the amount of Rs.5.85 crores mentioned in the allotment letter

issued by Jaypee Greens. He submitted that the price of the

property itself is more than what is shown in the seized

documents out which Rs.2.65 crore have already been paid in

cheque and balance amount of Rs.3.20 crore are still shown

outstanding in the payment plan of Jaypee Greens. Therefore,

the possibility of any payment made in cash does not arise. He

submitted that neither the seized document establishes that

the price of the property is more than the price mentioned in

the allotment letter nor the AO has brought any evidence on

record to show that the price of the property is more than

15 ITA No.5695/Del/2015

Rs.5.85 crores mentioned in the allotment letter. He

submitted that the property is not in the name of the assessee

but it is in the name of elder brother Shri Pradeep Kumar

Gupta and Smt. Seema Gupta. Therefore, possibility of

making any unaccounted investment in this property by the

assessee does not arise. He submitted that if the argument of

the AO is accepted that the unaccounted payment of Rs.2.15

crore in cash has been made by the assessee for purchase of

the impugned property, the total price of the impugned

property would come to Rs.8 crore. However, no evidence has

been brought on record by the AO to show that the total price

of the property or its value is assessed at Rs.8 Crores. He

submitted that the AO has never disputed the total price of the

property or its value shown in the allotment letter submitted

by the assessee.

the property at Jaypee Greens, Greater Noida, the broker met

Shri Y.K. Gupta and he does not know Shri P.K. Gupta, does

not make any material difference as all the payments are made

from the bank account of Shri P.K. Gupta and Smt. Seema

16 ITA No.5695/Del/2015

Gupta and the property is also booked and allotted in the joint name of Shri Pradeep Kumar Gupta and Smt. Seema Gupta. Relying on the following decisions, the learned counsel for the assessee submitted that the order of the learned CIT(A) is fully justified and therefore, the grounds raised by the Revenue should be dismissed:-

i. CIT vs Praveen Juneja ITA No.56/2017 (Delhi High Court)

ii. CIT vs Praveen Juneja ITA No.57/2017 (Delhi High Court)

iii. Pr. CIT vs Umesh Ishrani [2019] 108 taxmann.com 437(Bom.)

iv. Pr. CIT vs Delco India (P) Ltd. [2016] 67 taxmann.com 357 (Del.)

v. Sharda Educational Trust vs CIT (C), Kanpur [2014] 43 taxmann.com 95 (Agra. Trib.)

17 ITA No.5695/Del/2015

as Annexure –A-1, the AO made addition of Rs.2.15 cores to

the total income of the assessee on the ground that the

amount mentioned as B-II, represents the unaccounted

income of the assessee for which he made the addition. We

find the learned CIT(A) deleted the addition, the reasons of

which have already been reproduced in the preceding

paragraphs. We do not find any infirmity in the order of the

learned CIT(A) deleting the addition so made. It is an

undisputed fact that the property was purchased in the name

of the elder brother of the assessee Shri Pradeep Kumar Gupta

and his wife Smt. Seema Gupta. The payments have been

made from their bank account and no amount has been paid

by the assessee. The price of Rs.5.85 Cores mentioned in

allotment letter of Jaypee issued to Shri Pradeep Kumar Gupta

and Smt. Seema Gupta is more than the amount of Rs.5.65

crores mentioned in the seized documents. The AO has not

brought any evidence on record to show that the value or the

price of the impugned property is more than the amount of

Rs.5.85 crores mentioned in the allotment letter, copy of

which is placed at page 7 to 10 of the paper book. We further

find merit in the argument of the learned counsel for the

18 ITA No.5695/Del/2015

assessee that when the price of the property itself is more than

what is shown in the seized documents out which Rs.2.65

crore have already been paid in cheque and balance amount of

Rs.3.20 crore are still shown outstanding in the payment plan

of Jaypee Greens, therefore, the possibility of any payment

made in cash does not arise. Further, neither the seized

document establishes that the price of the property is more

than the price mentioned in the allotment letter nor the AO

has brought any evidence on record to show that the price of

the property is more than Rs.5.85 crores mentioned in the

allotment letter. Since, the property is not in the name of the

assessee but is in the name of his elder brother Shri Pradeep

Kumar Gupta and Smt. Seema Gupta from whose bank

account payments have been made, therefore, we find force in

the argument of the learned counsel for the assessee that

possibility of making unaccounted investment in this property

by the assessee does not arise and addition, if any, could have

been made in the hands of brother of the assessee and his wife

but not in the hands of the assessee in the instant case. We

further find force in the argument of the learned counsel for

the assessee that if the argument of the AO that unaccounted

19 ITA No.5695/Del/2015

money of Rs.2.15 Cores in cash has been made by the

assessee for purchase of the impugned property then the total

price of the impugned property would come to Rs.8 crores

which is not possible in absence of any material to show that

the price of similar property in the said society is Rs.8 crores.

Further, no evidence has been brought on record by the AO

that total price of the property or its value is assessed at Rs.8

Crores. The AO has never disputed the total price of the

property or its value shown in the allotment letter submitted

by the assessee. Other argument of the AO that with regard to

the property at Jaypee Greens, Greater Noida, the broker met

Shri Y.K. Gupta and he does not know Shri P.K. Gupta in our

opinion does not make any material difference at all, since, all

the payments have been made from the bank account of Shri

P.K. Gupta and Smt. Seema Gupta and the property is also

booked and allotted in the joint name of Shri Pradeep Kumar

Gupta and Smt. Seema Gupta.

found from the residence of the assessee but it is not related to

the assessee and the transaction was relating to the purchase

20 ITA No.5695/Del/2015

of the property by elder brother of the assessee. The

presumption drawn by the AO u/s 292C of the Act is not

supported by any corroborative evidence. Entries reflected in

these papers were not represented by any evidence on record

that the assessee has paid any cash as alleged by the AO.

Pr. CIT vs Delco India (P) Ltd. (supra) has held that no addition

could be made u/s 68 of the Act on basis of loose papers

found during the search in assessee’s case indicating

assessee’s transaction with a company when assessee not only

clearly denied having any dealing with said company but also

produced all necessary details before the Assessing Officer to

make necessary enquiries and a letter from director of that

company conforming that said company did not have any

transaction with assessee.

13.1. We find an identical issue had come up before the

Mumbai Bench of the Tribunal in the case of Pr. CIT vs Umesh

Ishrani (supra). In that case, the assessee was a partner in

the firm. During the course of search, certain loose papers in

respect of purchase of shops were found and seized. On the

21 ITA No.5695/Del/2015

basis of loose papers, additions were made in the hands of the

individual partners and on protective basis in the hands of the

firm. While deleting such addition in case of the assessee, the

Tribunal noted that such loose papers nowhere show that any

payments were made by same partner and further no enquiry

was made with the seller of the shops or the developer. The

Tribunal, concluded that entries reflected in the loose papers,

were not corroborated with any other evidence on record. The

Hon’ble Bombay High Court upheld the order of the Tribunal

and dismissed the appeal filed by the Revenue.

Praveen Juneja (supra) has observed as under:-

“4. A search took place in the premises of the Respondent/Assessee pursuant to which certain documents were seized. The document on the basis of which the above addition was made was a piece of paper dated 24th November, 2003. It contained a hand-written figure of '8050'. In two columns it set out details of purportedly expenses on drive way, tennis court, garden lights etc. in the left column totalling '9.45' and some other expenses relating to the architect, wooden fittings, bathroom fittings, etc. in the right column totaling '13.45'. 5. The explanation offered by the Assessee was that he was a director of Omaxe Ltd., a company in the construction business. He sought to explain that the said paper containing estimates in relation to the Omaxe Plaza project of the company was with him in that capacity. The CIT (A) rejected the above explanation on the ground that seized document nowhere contained the name Omaxe Ltd. Since the said

22 ITA No.5695/Del/2015

document had been seized from the residence of Assessee, the CIT (A) drew a presumption under Section 292C of the Act was that it belonged to him. Further, the CIT(A) proceeded on the basis that the figure of '8050' was in fact Rs. 80,50,000 and constituted the unexplained income of the Assessee since the Assessee had not submitted any evidence like a confirmation letter or any other document to show that expenditure related to Omaxe Ltd. 6. The ITAT in the impugned order noted that the document was “silent as to the payer and payee of the amount in question nor does it disclose that the payment was made by cheque or cash nor it is proved that the document is in the handwriting of assessee or at least bears his signatures. 7. In the considered view of the Court, the addition of Rs.80,50,000 merely on the basis of a single document without making any further enquiry was not justified. No attempt was made by the AO to find out if in fact it constituted estimates relating the construction of project of Omaxe Ltd. 8. In the circumstances, the impugned order of the ITAT suffers from no legal infirmity and does not give rise to any substantial question of law.” 15. Since, in the instance case, the property was in the

name of elder brother of the assessee namely Shri Pradeep

Kumar Gupta and his wife Smt. Seema Gupta, the price of

Rs.5.85 Cores mentioned in allotment letter is more than the

amount of Rs.5.65 crores mentioned in the seized documents

and considering the fact that the document found in the

premises of the assessee does not relate to him but his brother

and his wife and further considering the fact that the entire

payment has been made through banking channels by his

brother and his wife, therefore, in view of the detailed

discussion by the learned CIT(A) while deleting the addition,

23 ITA No.5695/Del/2015

we do not find any infirmity in the same. Accordingly, the

order of the learned CIT(A) is upheld and the ground raised by

the Revenue is dismissed.

dismissed.

Order was pronounced in the open court on 15/07/2021.

Sd/- Sd/- [SUCHITRA KAMBLE] [R.K.PANDA] JUDICIAL MEMBER ACCOUNTANT MEMBER Delhi; Dated: 15/07/2021. P.S f{x~{tÜ? f{x~{tÜ? fÜA f{x~{tÜ? f{x~{tÜ? fÜA fÜA P.S fÜA P.S P.S Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR

Asst. Registrar, ITAT, New Delhi