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 Revenue Building, Statue Circle, Jaipur (Raj) Appellant Versus M/s Om Metal Real Estate Pvt. Ltd., Road No. 7, F-99-A, VKI Area, Jaipur Respondent For Appellant(s) : Mr. Anuroop Singhi HON'BLE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Judgment 20/07/2019 1. Revenue claims to be aggrieved by order of Income Tax Appellate Tribunal (ITAT), whereby CIT(A) s order, was affirmed and that of Assessing Officer(AO) bringing to tax amounts to tune of about `9.25 crores for Assessment Year 2009-10, was set aside. assessee was subjected to search alleging fresh information which amounted to tangible material, and reasonable relief under Section 147 of Income Tax Act. Previously concluded assessment was re-opened under Section 147- by notice dated 10.04.2014. Assessing Officer referred to certain documents seized in search proceedings relating to another company and copy of agreement dated 07.08.2006, stating that assessee had paid `9.25 crores on account of on-money of its 25% share for purchase of land by M/s Om Metals Developers (P) Ltd. during Financial Year 2008-09 (relevant to Assessment Year 2009-10). AO made addition under Section 69 of Act. AO also took note of fact that in respect of another share holder company, M/s Maheshwari Mega Ventures Ltd., which held 35% share in M/s Om Metals Developers (P) Ltd., similar addition had been made (2 of 3) [ITA-85/2019] due to its on-money payment towards same transaction of M/s Om Metals Developers (P) Ltd. CIT(A), to whom assessee approached, took note of development in M/s Om Metals Developers (P) Ltd. as well as M/s Maheshwari Mega Ventures Ltd., and held that even it was presumed that on-money payment of `37 crores was towards purchase of land at Hyderabad, then action was to be taken against M/s Om Metals Developers (P) Ltd. and not in hands of assessee. CIT(A) also analysed involvement of M/s Maheshwari Mega Ventures Ltd.. 2. After overall scrutiny and analysis of circumstances and documents, CIT(A) set aside amounts added in hands of assessee. ITAT after considering all circumstances and re-appreciating material, has affirmed CIT(A) s order holding as follows:- 16. We have given careful consideration to above facts and contentions so advanced by Assessing officer. However, for varied reasons, as we have noted below, we are unable to accede to said contentions of Assessing officer. Firstly, we find that person who has written aforesaid noting i.e, Mr. S.K. Jain has not been examined by Revenue. Secondly, statement of Mr. Padam Singhee who has vouched for particulars of said notings, his statement has also not been produced on record by Revenue. Thirdly, Mr. Ramesh Kumar Somani at whose premises particular piece of document was found, he has not been confronted by Revenue and even his statement has not recorded. Further, sellers from whom land has been purchased by M/s Om Metals Developers Pvt Ltd and who would have been recipient of said on-money, their statements have not been recorded and there is nothing on record which suggest that they have accepted receipt of on-money by M/s Om Metals Developers Pvt Ltd or through its shareholders. As we have noted above, even in case of M/s Om Metals Developers, Revenue itself, on appreciation of said seized document and noting thereon, has accepted fact that there is no on- money payment in respect of purchase of land. Even on perusal of said noting of seized document, we do not find any mention of assessee company. Therefore, we find that assessing officer has solely relied on findings of Investigation Wing and has neither made any independent enquiries nor brought on record any (3 of 3) [ITA-85/2019] material which may lead to conclusion that assessee company has made on-money payment for purchase of land under consideration. 3. We have considered submissions of Revenue; findings of Appellate Commissioner and ITAT are entirely factual. No substantial question of law arises. 4. appeal is dismissed. (SANJEEV PRAKASH SHARMA),J (S. RAVINDRA BHAT),CJ KAMLESH KUMAR /s-425 Principal Commissioner of Income-tax-I, Jaipur v. Om Metal Real Estate Pvt. Ltd