TMI Blog2014 (2) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... th the assessee independently through their replies filed u/s. 133(6) of the IT Act - the assessee genuinely entered into the transaction with the buyers – order of the CIT(A) set aside and the addition of 30 lacs deleted – Decided in favour of Assessee. - ITA No. 197/Agra/2013 - - - Dated:- 31-1-2014 - Shri Bhavnesh Saini And Shri Pramod Kumar,JJ. For the Appellant : Shri K. C. Agarwal, Advocate For the Respondent : Shri Atheshan Ansari, Jr. DR ORDER Per Bhavnesh Saini, J.M. This appeal by the assessee is directed against the order of ld. CIT(A)-I, Agra dated 22.02.2013 for the assessment year 2009-10, challenging the addition of Rs.30 lacs deposited in the bank account. 2. The facts of the case are that the AO determined the assessed income at Rs.37,55,680/- as against the returned income of Rs.7,55,680/- after making addition of Rs.30 lacs u/s. 69A of the IT Act. During the course of assessment proceedings, the AO found that a sum of Rs.30 lacs was deposited in the bank account of the assessee maintained with Oriental Bank of Commerce (OBC) on 31.01.2009. On requiring the assessee to explain the source of the cash deposit of Rs.30 lac, it has been replie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra in favour of Shri Sobran Singh, Smt. Shivdhara and Shri Vijay Bhan Singh respectively. Rs.1,00,000/- was refunded in cash to Shri Sobran Singh. The certificate issue by the bank regarding payment through clearing from the account of the assessee in favour of the purchasers were also filed. All the purchasers who have given advance to the assessee have filed their affidavits before the AO confirming the advance given by them and receiving back through account payee cheques on cancellation of the sale agreement. The statement of Shri Sobran Singh was recorded by the AO who has confirmed the deal with the assessee along with other sharers. The AO also verified from the bank account that all the money have been refunded to the respective parties, therefore, parties exist and their creditworthiness also proved. All the parties are agriculturists and have agricultural land. They have advanced money for purchase of land. Therefore, it was their outlook from where they have arranged the money. All of them admitted the transactions with the assessee and refund of money through cheques. The AO at page 2 of the assessment year also admitted that on 08.11.2008, the closing balance in the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to examine the veracity of the claim of the assessee. The ld. CIT(A) also noted that though amounts were returned through cheques to the purchasers, but the amounts were withdrawn in cash after routing such amounts mostly through bank account of Shri Sushil Chand Yadav, who is husband of Smt. Shivdhara. The ld. CIT(A), therefore, found that the surrounding circumstances would prove that the transaction was not genuine. The ld. CIT(A) also examined the case of each purchaser separately and found that the assessee has not been able to prove creditworthiness of all the three purchasers and therefore, the transaction was not found genuine and claim of assessee was dismissed. 5. The ld. counsel for the assessee reiterated the submissions made before the authorities below and submitted that the assessee has received advance against sale of her property which is not in dispute. Copy of Khasra Khatoni of land holding by the assessee is filed at page 52 of the paper book. Copy of the bank account of the assessee is filed at page 50. He has submitted that all the purchasers were produced before the AO and their statements on oath were recorded in which they have confirmed the transaction w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired money is not acceptable to Assessing Officer, it cannot be presumed that deposits made by such creditors are moneys of assessee itself-Held, yes- Whether in order to fasten liability on assessee by including such credits as its incomes from unexplained sources, a nexus has to be established by revenue that sources of creditors' deposit flow from assessee -Held, yes" (iii). The decision of Rajasthan High Court in the case of Lubh Chand Bohra Vs. Income-tax Officer, 189 Taxman 141, in which it was held- "Section 68 of the Income-tax Act, 1961- Cash credits -Whether where amounts found as cash credits in assessee's account books had been advanced by lenders by account payee cheques; identify of creditors had been established; their confirmations were available and they had also confirmed credits by making statements on oath, it could be said that assessee had discharged burden of proving identify and genuineness of transactions; so far as creditors' capacity to advance money to assessee was concerned, it was not a matter which would require assessee to establish, as that would amount to calling upon him to establish source of source - Held, yes (iv). The decision of M.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands of assessee company source of such money was fully explained, addition made by Assessing Officer was not justified - Held, yes. 6. He has also relied upon the decision of the Supreme Court in the case of Daulat Ram Rawatmull, 87 ITR 349, in which it was held that the onus to prove that the apparent was not real was on the party, who claimed that the amount of fixed deposit receipt belongs to the respondent firm even though the receipt was issued in the name of B, the burden lay on the department to prove that the respondent was the owner of the amount despite the fact that the receipt was in name of B. On the other hand, the ld. DR merely relied upon the order of the ld. CIT(A). 7. We have considered the rival submissions and the material available on record. The assessee made a deposit of Rs.30 lacs in her bank account with Oriental Bank of Commerce on 31.01.2009. The assessee explained that the amount of Rs.31 lacs in cash was received by her as advance against the sale of agricultural land situated at village Bainpur from three persons mentioned above. It is not in dispute that the assessee owned the agricultural land at village Bainpur and copy of Khasra Khatoni in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enuine transaction executed between the parties. The buyers in their affidavits have confirmed giving of advance to the assessee for purchase of property, which was returned on cancellation of the deal by cheques Nos. 239055, 239056 and 239057 dated 25.05.2010. The amount refunded by the assessee through her bank account with Oriental Bank of Commerce is entered into her same bank account in which the assessee made deposit of Rs.30 lacs in cash. The refunded amount is also credited in the bank account of the respective buyers. The bank has also confirmed the receipt of transfer entry in the accounts of the buyers. The copies of bank accounts of the buyers filed in the paper book also support the version of the assessee that they were men of means and have creditworthiness to give advance money to the assessee. On examination of their bank accounts, we find that several transactions through banking channel were carried out in their bank accounts in several lacs to prove that they were regularly getting the amounts on clearance and were withdrawing. In the case of Sobran Singh, copy of sale deed dated 01.06.2007 is also filed to show that prior to the transaction with the assessee, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the version of the assessee that she has received Rs.31 lacs from three buyers as advance money for sale of her property. Thus, the assessee has been able to prove that it was not unaccounted money of the assessee. We may rely upon the order of ITAT, Ahmedabad 'A' Bench in the group cases of DCIT vs. Shri Ravindra M. Agarwal and others in ITA No. 1725/Ahd./2008 and others dated 28.01.2011. In this case while deciding the appeal of the assessee in ITA No. 1821/Ahd./2008, similar issue was considered that advance in the form of cash amount have been shown as receipts from number of parties all residents of New Delhi towards proposed site of flats in city of Jaipur in the residential scheme stated to have been floated by the assessee in the names of Sunder Nagar Scheme and Radha Vihar Scheme. The assessee in this case filed all the affidavits of the depositors confirming the transactions with the assessee, copies of IT returns to show their source of income. The allotment of flats and refund of amount letters were also filed. All the depositors have also confirmed their transactions with the assessee independently through their replies filed u/s. 133(6) of the IT Act. It was found tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
