Principal Commissioner Of Income Tax-I, New Central Revenuebuilding, Statue Circle, Jaipur (Raj v. M/S Om Metal Real Estate Pvt. Ltd., Road

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 85/2019 Principal Commissioner Of Income Tax-I, New Central RevenueBuilding, Statue Circle, Jaipur (Raj) ----Appellant Versus M/s Om Metal Real Estate Pvt. Ltd., Road No. 7, F-99-A, VKIArea, Jaipur ----Respondent For Appellant(s) : Mr. Anuroop Singhi HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMAJudgment 20/07/2019 1.The Revenue claims to be aggrieved by an order of theIncome Tax Appellate Tribunal (ITAT), whereby the CIT(A)’s order,was affirmed and that of the Assessing Officer(AO) bringing to taxthe amounts to the tune of about `9.25 crores for the AssessmentYear 2009-10, was set aside. The assessee was subjected tosearch alleging fresh information which amounted to tangiblematerial, and reasonable relief under Section 147 of the IncomeTax Act. Previously concluded assessment was re-opened underSection 147- by notice dated 10.04.2014. The Assessing Officerreferred to certain documents seized in search proceedingsrelating to another company and the copy of the agreement dated07.08.2006, stating that the assessee had paid `9.25 crores onaccount of on-money of its 25% share for purchase of land by M/sOm Metals Developers (P) Ltd. during the Financial Year 2008-09(relevant to the Assessment Year 2009-10). The AO made anaddition under Section 69 of the Act. The AO also took note of thefact that in respect of another share holder company, M/sMaheshwari Mega Ventures Ltd., which held 35% share in M/s OmMetals Developers (P) Ltd., the similar addition had been made due to its on-money payment towards same transaction of M/sOm Metals Developers (P) Ltd. The CIT(A), to whom the assesseeapproached, took note of the development in M/s Om MetalsDevelopers (P) Ltd. as well as M/s Maheshwari Mega VenturesLtd., and held that even it was presumed that on-money paymentof `37 crores was towards purchase of land at Hyderabad, thenaction was to be taken against M/s Om Metals Developers (P) Ltd.and not in the hands of the assessee. The CIT(A) also analysedthe involvement of M/s Maheshwari Mega Ventures Ltd.. 2.After an overall scrutiny and analysis of thecircumstances and the documents, the CIT(A) set aside theamounts added in the hands of the assessee. The ITAT afterconsidering all the circumstances and re-appreciating the material,has affirmed the CIT(A)’s order holding as follows:- 2.After an overall scrutiny and analysis of thecircumstances and the documents, the CIT(A) set aside theamounts added in the hands of the assessee. The ITAT afterconsidering all the circumstances and re-appreciating the material,has affirmed the CIT(A)’s order holding as follows:- 16. We have given a careful consideration tothe above facts and contentions so advanced by theAssessing officer. However, for varied reasons, aswe have noted below, we are unable to accede tothe said contentions of the Assessing officer. Firstly,we find that the person who has written theaforesaid noting i.e, Mr. S.K. Jain has not beenexamined by the Revenue. Secondly, the statementof Mr. Padam Singhee who has vouched for theparticulars of the said notings, his statement hasalso not been produced on record by the Revenue.Thirdly, Mr. Ramesh Kumar Somani at whosepremises the particular piece of document wasfound, he has not been confronted by the Revenueand even his statement has not recorded. Further,the sellers from whom the land has been purchasedby M/s Om Metals Developers Pvt Ltd and whowould have been the recipient of said on-money,their statements have not been recorded and thereis nothing on record which suggest that they haveaccepted the receipt of on-money by M/s Om MetalsDevelopers Pvt Ltd or through its shareholders. Aswe have noted above, even in case of M/s OmMetals Developers, the Revenue itself, onappreciation of the said seized document and notingthereon, has accepted the fact that there is no on-money payment in respect of purchase of land. Evenon perusal of the said noting of the seizeddocument, we do not find any mention of theassessee company. Therefore, we find that theassessing officer has solely relied on the findings ofthe Investigation Wing and has neither made anyindependent enquiries nor brought on record any material which may lead to the conclusion thatassessee company has made on-money payment forpurchase of the land under consideration.” 3.We have considered the submissions of the Revenue;the findings of the Appellate Commissioner and ITAT are entirelyfactual. No substantial question of law arises. 4.The appeal is dismissed. (SANJEEV PRAKASH SHARMA),J (S. RAVINDRA BHAT),CJ KAMLESH KUMAR /s-425