DCIT, CENTRAL CIRCLE, KARNAL vs. LATE SHRI SHIV KUMAR GARG (THROUGH SMT. SULOCHNA GARG L/H), DELHI

PER N.K. BILLAIYA, ACCOUNTANT MEMBER:-

Dated Declared income Decent Realtech Pvt Ltd 12.09.2009 Rs. 7,681/- Reliable Realtech Pvt Ltd 29.09.2009 NIL Shri Shiv Kumar Garg 08.05.2009 Rs. 9,27,787/- Jai Bhagwan Garg 28.07.2009 Rs. 4,90,756/-

“6.1 A search and seizure action u/s 132 of the Act was carried out in the cases of the above appellants on 05.02.2014. M/s Decent Realtech Pvt Ltd (hereafter referred as M/s Decent) and M/s Reliable Realtech Pvt Ltd( here after referred as M/s Reliable), group concerns having common directors, have purchased land measuring 25.3 acres (13.425 acre belonging to M/s Decent and 9.67 acres belonging to M/s Reliable) entered into a collaboration and got license as per letter of Intent dated 26.03.2008 from the Director, Town and Country Planning, Government of Haryana to develop a residential housing project (Antriksh Heights) in sector -84, Gurgaon jointly. Shri Jai Bhagwan Garg and Shri Shiv Kumar Garg were the directors/ share holders of M/s Decent and M/s Reliable. Shri Rajbir Singh Goyat and Shri Rakesh Yadav, directors of M/s Sanman Infrastructure Pvt Ltd (hereafter referred as M/s Sanman) and partners of M/s Antriksh Engineers Corporation (hereafter referred as M/s Antriksh) were also covered u/s 132 on 05.02.2014. During the search proceedings at the residential premise of Shri Rajbir Singh Goyat, two original and duly signed MOUS, one between the M/s Decent and M/s Sanman dated 26.04.2008 and the second MOU between M/s Reliable and M/s Antriksh dated 20.03.2008 were found and seized. The terms and conditions of both the MOUs were more or less similar. As per the MOU dated 26.04.2008 entered between M/s Decent and M/s Sanman, signed by Shri Jai Bhagwan Garg, Shri Rajbir Singh Goyat and Shri Rakesh Yadav in the presence of two witnesses and executed on the stamp paper, M/s Sanman has agreed to purchase development rights in respect of 50% of FSI (Floor Space Index) measuring 5,11,693 sq. ft. in the above residential housing project (M/s Antriksh Heights, Gurgaon) for total consideration of Rs. 39 crores @ 721/- per sq. ft. Similarly as per the MOU entered between M/s Reliable and M/s Antriksh, signed by Shri Jai Bhagwan Garg, Shri Rajbir Singh Goyat and Shri Rakesh Yadav in the presence of two witnesses and executed on the stamp paper, M/s Antriksh has agreed to purchase development rights in respect of 50% of FSI (Floor Space Index) measuring 3,68,762 sq. ft. in the above residential housing project (M/s Antriksh Heights, Gurgaon) for total consideration of Rs. 26,58,77,853/-@ 721/- per sq. ft.”

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6.4 On going through the seized documents vide Annexure A-5 (found and seized from the residence of Shri Rajbir Singh Goyat, which is the MOU dated 26.04.2008 between M/s Decent and M/s Sanman), it was found that it was containing details of cash receipts on the backside of page 36 on various dates from 12.05.2008 to 12.12.2008 for Rs. 2.86 crore; as part of consideration towards 50% of FSI. These receipts were in original handwriting and have been duly signed by Shri Shiv Kumar Garg, Similarly on further going through Annexure A-5 (found and seized from the residence of Shri Rajbir Singh Goyat, which is the MOU dated 20.03.2008 between M/s Reliable and M/s Antriksh), it was found that there were details of cash receipts on the backside of page 55 on various dates during the year under consideration for Rs. 4.95 crore, as part of consideration towards 50% FSI. These receipts were in original handwriting and have been duly signed by Shri Shiv Kumar Garg, These cash receipts are in addition to cash receipts of Rs. 80 lacs as mentioned in the MOU. Thus there were total cash receipts of Rs. 5.75 crore in case of M/s Reliable. Further from the perusal of page no. 69-71 of Annexure A-5 (supra), it was found that M/s Sanman has made payment of Rs. 38.50 crore (including cash payments of Rs. 2.86 crore) to M/s Decent during the year under consideration. Similarly from the perusal of page no. 69-71 of Annexure A-5

(supra), it was found that M/s Antriksh has made payment of Rs. 26 crore (including cash payments of Rs. 6.25 crore) to M/s Reliable during the year under consideration. Thus it was found that 50% of development rights in Antriksh Heights Project were transferred by M/s Decent and M/s Reliable to M/s Sanman and M/s Antriksh through the above MOUs. Various terms and condition of the said MOU have been complied with as discussed above. Thus the said MOUs have been acted upon by both the parties to effect sale of development rights in the said project.

6.5. However these amounts have been reflected on the liability side of balance sheets of M/s Decent and M/s Reliable under the head current liabilities (advances). Further it has been discussed by the AO in the assessment order that a separate bank account was opened in the name of M/s Reliable at Pitampura with Indian Bank on 10.04.2008 immediately after signing of the MOUs. The address of M/s Reliable in the said bank account has been shown as Flat No. 34 Pocket C-8, Sector-8, Rohini (Delhi) which was the office address of M/s Sanman and M/s Antriksh and it was being operated by Shri Rakesh Yadav and Shri Rajbir Singh Goyat. It is relevant to mention here that as per further understanding between M/s Decent and M/s Reliable, the complete project was executed by M/s Reliable. Further from the seized record, it was noticed that two balance sheets were being prepared separately by both the groups which were later merged at the end of the year and a consolidated balance sheet was prepared for the purpose of ROC and the Income Tax return in the name of M/s Reliable. Further as per Annexure A-1, page no. 169-176 seized from BN-57, Shalimar Bagh, New Delhi ( which was office address of the Garg group), It was found that there were two trial balances being prepared in respect of both parts of the project controlled by each group independently in the name of M/s Reliable. As per the data in the seized hard disk there were separate books of account prepared for each part of project by both the groups. Thus the AO reached to the inference that the MOUs have been acted upon in letter and spirit. It was further revealed from the seized record that M/s Sanman has entered into a MOU on 11.03.2008 with the Ministry of External Affairs Employees Welfare Society to construct and sell 300 flats in the Antriksh Heights Projects, Gurgaon in respect of which it has purchased FSI and all initial payments of Rs. 48.39 crore for this purpose were received by M/s Sanman from the said society. As discussed above Shri Shiv Kumar Garg, director of M/s Decent and M/s Reliable admitted in his statement recorded u/s 132(4) of the Act on 05.02.2014 and 07.03.2014 that they have divided 50% of the project between them and Shri Rakesh Kumar Yadav / Shri Rajbir Singh Goyat. Share holding of M/s Reliable and M/s Decent has been transferred proportionately with 5000 shares of M/s Decent were transferred by Shri Shiv Kumar Garg (3000) and Shri Jai Bhagwan Garg (2000 shares) at face value in favour of second group. Similarly 42,750 shares of M/s Reliable were transferred by various family members of the e Garg Garg family family i in favour of M/s Antriksh. However from the perusal of books of accounts of M/s Reliable, it was noted that the entire project was being shown in the books of M/s Reliable in-spite of the fact that sale of 50% of project rights in favour of M/s Sanman and M/s Antriksh, thus M/s Decent and M/s Reliable have not recognized any profit from the sale of 50% of the project [development rights] in their books of account by adopting colorable device.”

15. The Hon'ble Supreme Court in the case of Abhisar Buildwell [supra] has set at rest the entire quarrel revolving around the assessments devoid of incriminating material. The relevant findings read as under:

“In view of the above and for the reasons stated above, it is concluded as under: i) that in case of search under Section 132 or requisition under Section 132A, the AO assumes the jurisdiction for block assessment under section 153A; ii) all pending assessments/reassessments shall stand abated; iii) in case any incriminating material is found/unearthed, even, in case of unabated/completed assessments, the AO would assume the jurisdiction to assess or reassess the ‘total income’ taking into consideration the incriminating material unearthed during the search and the other material available with the AO including the income declared in the returns; and iv) in case no incriminating material is unearthed during the search, the AO cannot assess or reassess taking into consideration the other material in respect of completed assessments/unabated assessments. Meaning thereby, in respect of completed/unabated assessments, no addition can be made by the AO in absence of any incriminating material found during the course of search under Section 132 or requisition under Section 132A of the Act, 1961. However, the completed/unabated assessments can be re-opened by the AO in exercise of powers under Sections 147/148 of the Act, subject to fulfilment of the conditions as envisaged/mentioned under sections 147/148 of the Act and those powers are saved.

The question involved in the present set of appeals and review petition is answered accordingly in terms of the above and the appeals and review petition preferred by the Revenue are hereby dismissed. No costs.

It is required to be noted that the issue before the Allahabad High Court was, whether in case of completed/unabated assessments, the AO would have jurisdiction to re-open the assessments made under Section 143(1)(a) or 143(3) of the Act, 1961 and to re- assess the total income taking notice of undisclosed income even found during the search and seizure operation.

15.1 In view of the discussion hereinabove, once during search undisclosed income is found on unearthing the incriminating material during the search, the AO would assume jurisdiction to assess or reassess the total income even in case of completed/unabated assessments. Therefore, the impugned judgment(s) and order(s) passed by the High Court taking the view that the AO has the power to reassess the return of the assessee not only for the undisclosed income, which was found during the search operation but also with regard to material that was available at the time of original assessment does not require any interference. Under the circumstances, the aforesaid appeals preferred by the assessee – M/s Kesarwani Zarda Bhandar, Sahson, Allahabad deserve to be dismissed and are accordingly dismissed. In the facts and circumstances of the case, no costs.”

The Hon'ble High Court of Bombay in the case of Ashok Commercial Enterprises 154 Taxmann.com 144 was, inter alia, was seized with the following question :

(d) The question of whether any material found during course of proceedings under Section 132 of the Act in the case of Hubto Limited is incriminating or otherwise has to be tested based only on satisfaction note recorded by the Assessing Officer/s. The contents of said satisfaction note are the only item/material to be looked at in t regard and respondent cannot seek to augment, supplement or add materials recorded to support the claim that incriminating material H been found. Further respondent cannot refer to any other documents material to establish such a claim. We find support in (i) Ananta Landma Pvt. Ltd. (Supra) and (ii) Jainam Investments (Supra), where the Coun have held that the question of the Assessing Officer's jurisdiction undertake proceedings has to be tested/examined only on the basis reasons recorded at the time of issuing a notice under Section 148 of th Act seeking to reopen an assessment. These reasons cannot be improve upon and/or supplemented much less substituted by affidavit and/or or submission;”

“As regards ground No. (ii) that it is subsequent to the assessment proceedings it was noticed that the assessee had wrongly claimed the deduction under section 57 of the Act and that it went unnoticed by the Assessing Officer during the course of original assessment proceedings and hence, the jurisdictional requirement under section 147 of the Act has been fulfilled, that is not the case made out in the reasons to believe. As held In First Source Solutions Limited (supra), the reasons for reopening an assessment has to be tested/examined only on the basis of the reasons recorded at the time of issuing a notice under section 148 of the said Act seeking to reopen an assessment. These reasons cannot be improved upon and/or supplemented much less substituted by affidavit and/or oral submissions.”

“7. The law is now no more res integra that the reasons are required to be read as they were recorded by the Assessing Officer. No substitution or deletion is permissible. No additions can be made to those reasons. No Inference can be allowed to be drawn based on reasons not recorded. The reasons recorded should be clear and unambiguous and should not suffe from any vagueness. The reasons recorded by the Assessing Officer canno be supplemented by filing affidavit or making oral submission, otherwise the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches the court, on the strength o affidavit or oral submissions advanced. Admittedly, in the instant case the Assessing Officer has referred that the assessee had purchased immovable property valued of Rs. 1,80,60,000 on March 9, 2017 whereas the fact divergent. As such, the notice issued for initiation of reassessment proceeding does not have any legs to stand in the eye of law.”

Software 403 ITR 259 has held as under:

“23. This court concurs with the impugned order. In the present case, the Ld. AO has not explained steps taken by him to determine that the seized material belonged to the Assessee Firm. The satisfaction note has been prepared in a standard mechanical format and it does not provide any details about the books of accounts which allegedly belong to the Assessee Firm. Most importantly, a satisfaction note was not recorded by the AO of Sh. Narendra Kumar from whose premises the documents were seized. In light of the decision in Nikki Drugs and Chemicals Pvt. Ltd. it is now a settled proposition of law that even if the Assessing Officer for the person from whose premises the documents are seized is the same as the Assessing Officer for the person to whom the document belongs, separate satisfaction notes must be recorded. Here the AO‟s note nowhere reflects whether any document seized, on application of his mind, disclosed that it belonged to the assessee, and if so, its prima facie nature. Whilst an AO of the searched party and that of the individual under Section 153C may be the same, nevertheless at the stage of sending notice under Section 153C, the AO has to record a specific reason or reasons, why the material seized from the other person has a nexus to the assessee, to whom the notice under that provision is addressed. In this case, this never happened. Thus, for the previous years, the rule in Commissioner of Income Tax v Kabul Chawla 380 ITR 573 (Del), i.e., that in the absence of any incriminating materials, the previous years‟ assessments cannot be disturbed, applies.”

“Section 132(4A)(i) clearly stipulates that when inter alia any document is found in the possession or control of any person in the course of a search it may be presumed that such document belongs to such person. It is similarly provided in Section 292C(1)(i). In other words, whenever a document is found from a person who is being searched the normal presumption is that the said document belongs to that person. It is for the Assessing Officer to rebut that presumption and come to a conclusion or "satisfaction" that the document in fact belongs to somebody else. There must be some cogent material available with the Assessing Officer before he/she arrives at the satisfaction that the seized document does not belong to the searched person but to somebody else. Surmise and conjecture cannot take the place of "satisfaction".

1973 & 1974/DEL/2022 are allowed.

The order is pronounced in the open court on 30.11.2023 in the presence of both the rival representatives.