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2024 (3) TMI 301 - AT - Income TaxAddition u/s 68 - bogus LTCG - share capital and share premium were merely paper credit entries - receipt of accommodation entries in lieu of commission paid - HELD THAT:- There is a concept of real income which has to be ascertained and taxed and not the hypothetical income which has never accrued to the assessee Except in these cases where statute expressly provides for taxing the income on deemed basis. This is further corroborated by the fact that the very first day during the course of recording statement u/s 132(4) of the Act Shri Bajrang Lal Agarwal have stated that he is engaged in providing accommodation entries in lieu of commission through the assessee meaning thereby that money did not belong to him as it is only pass through entity. The case of the assessee finds support from the decision of Coordinate Bench of Delhi in the case of ITO vs. M/s Angel Cement Pvt. Ltd [2021 (4) TMI 162 - ITAT DELHI] Since Shri Bajrang Lal Aggarwal was providing accommodation entries to either intermediaries or the ultimate beneficiaries through paper companies including the assessee and the assessee is only a conduit for channelizing the unaccounted funds of beneficiary companies, therefore, in our opinion, the order passed by the Ld. CIT(A) appears to be incorrect and cannot be sustained. Accordingly we set aside the order of ld. CIT(A) and direct the AO to delete the addition. However the AO is directed to assess the commission income on accommodation entries @ 20 paisa on Rs. 27,63,46,000/- which comes to Rs. 6,90,865/-. Consequently the Appeal of the assessee is party allowed. Addition of payment made under MOU while computing the income of the assessee - HELD THAT:- We find that undisputedly the assessee entered into MOU for transfer of land measuring 85.51 acres which belonged to Paul Brothers. Since the Paul brothers could not hand over the possession of the impugned land to the assessee due to on going legal disputes and therefore the assessee made payment only as advance on the date of signing of MOU on 31.03.2012. We note that Rs. 1,01,000/- was paid out of their personal sources and the same was covered in the disclosure of additional income made by them in the course of search proceedings. Therefore we are not in a position to concur with the findings of the Ld. CIT(A) on the upholding the assessment order on this issue. Consequently we set aside the order of Ld. CIT(A) on these cases and direct the AO to delete the addition. Unexplained cash credit - Deposits in bank account - HELD THAT:- We note that the deposit of money in the bank account of the assessee has been advanced by these individuals out of their personal sources and have been admitted as additional income and offered to tax in their respective returns of income filed in various assessment years as is evident from table A & B infra. We note that the said amount was assessed in various years in the hands of these individuals and therefore the action of Ld. CIT(A) in confirming this addition on account of unexplained cash credit cannot be sustained as the same stood offered to tax in their individual assessments and if confirmed, would result in taxing the same amount twice. Accordingly we set aside the order of Ld. CIT(A) and direct the AO to delete the said addition. Addition of expenses incurred in connection with the Renguni land - HELD THAT:- No separate addition can be made in the hands of the assessee on account of expenses/investments as stated above particularly when the same is offered by the above individuals in their respective assessments. Accordingly we set aside the order of the Ld. CIT(A) and direct the AO to delete the addition. The Ground no. 2 is accordingly allowed. Addition u/s 69B - payment made as unexplained investments - HELD THAT:- We observe that the said payment made by Sri Yogendra Kumar Agarwal to Sri Vivek Agarwal has been added on substantive basis in the hands of Sri Yogendra Kumar Agarwal in the assessment order framed u/s 153A. Therefore the impugned payment cannot be once again considered in the hands of the assessee company. In view of the above facts, we are inclined to set aside the order of Ld. CIT(A) on this issue and direct the AO to delete the addition. Consequently ground is allowed. Undisclosed investments u/s 69B - HELD THAT:- As the authorities below have not brought on record any evidence substantiating the fact that the consideration was paid outside the books of accounts. In the instant case the consideration for which the impugned land was purchased was fully accounted for in the books as asset and the outstanding part of the sales consideration was shown as liabilities. In view of this fact, we are not in a position to sustain the order passed by the Ld. CIT(A) on this issue and consequently we set aside the order of Ld. CIT(A) and direct the AO to delete the addition. The ground is allowed. Unexplained investment/purchases of land - HELD THAT:- The consideration payable to Sri Tarun Kanti Ghoshal was shown as outstanding and was duly shown in the liability side under the head current liabilities and therefore we are not in a position to approve the conclusion drawn by the authorities that the consideration was understated by the assessee whereas as a matter of fact there was no understatement of value of impugned land. Moreover the authorities below have not brought on record any evidence substantiating the fact that the consideration was paid outside the books of accounts. In the instant case the consideration for which the impugned land was purchased was fully accounted for in the books as asset and the outstanding part of the sales consideration was shown as liabilities. In view of this fact, we are not in a position to sustain the order passed by the Ld. CIT(A) on this issue and consequently we set aside the order of Ld. CIT(A) and direct the AO to delete the addition.
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