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2025 (6) TMI 1485 - AT - Income TaxUnexplained cash credit - Nature of transaction - cash consideration for purchase of property Or loan secured by mortgage - two distinct transactions - cash payment mentioned is a typographical error - Incriminating material found in search and seizure operation - Addition made under sections 68 and 69 r.w.s.115 BBE - cash payment mentioned in the exchange agreement of sale to mortgage the alternative property and released the original document of first mortgaged property - HELD THAT - From the discussion it is undisputedly clear that the amount mentioned in the document as sale consideration paid in cash is the same loan given in the year 2013 by cheque and therefore this is not a co-incidence as the previous document executed on the same date mentioned about a further right of 30, 130 square feet super built-up area in Shriram Sameeksha . It is important to note that 35 apartments/units with cumulative area of 30, 130 square feet were already attached by the Income tax Department vide order under section 281B of the Act dated 13.04.2015 and when the property itself is attached by the Department any further transaction would become ab initio void and no one would pay any consideration for the attached property as this would go as a void transaction under section 281B of the Act. Therefore the reasons given by the Assessing Officer that the subsequent exchange agreement of sale dated 07.03.2016 is altogether a different transaction is devoid of merit and cannot be accepted. Further the document executed on the same day gives a different narration of events and the assessee was only trying to secure capital by executing such a document in return of original papers and thus creating a charge in anticipation that demand raised by the Department would not be equal to the charge of the value of the property. The veracity of the document cannot be doubted going by the contents of the document where it is very clear that appellant-firm has created a pressure on the borrower by putting a condition of the refund of the loan amount within 03 months so that the borrower resolves it s disputes as soon as possible with the Department who had made the attachment otherwise the charge of the appellant-firm turns into Title though to an extent disputed one in view of attachment by the Department. From the sequence of the events it is undisputedly clear that amount referred to in exchange of agreement of sale dated 07.03.2016 that it has paid sale consideration of Rs. 6 crore is nothing but same amount of loan given in cheque in the year 2013 and further it is only a typographical error while entering into agreement and therefore in our considered view the Assessing Officer is erred in making addition towards consideration of Rs. 6 crore under section 68 and 69 of the Act. The learned CIT(A) after considering the relevant facts has rightly deleted the addition made by the Assessing Officer. Thus we are inclined to uphold the order of the learned CIT(A) and dismiss the appeal filed by the Revenue. In the result appeal of the Revenue is dismissed.
The core legal questions considered in this appeal relate to the validity and characterization of a Rs. 6 crore transaction recorded in an exchange agreement of sale found during a search and seizure operation. Specifically, the issues are:
1. Whether the Rs. 6 crore mentioned as cash payment in the exchange agreement of sale dated 20.03.2016 is an unexplained cash credit attracting addition under sections 68 and 69 of the Income Tax Act, 1961. 2. Whether the transaction recorded in the exchange agreement of sale is a distinct sale transaction or a typographical error representing an earlier loan transaction secured by mortgage. 3. Whether the Assessing Officer was justified in making additions on the ground that the exchange agreement was a separate transaction involving cash consideration, disregarding the assessee's explanation of loan and mortgage transactions. 4. The effect and applicability of provisional attachment under section 281B of the Income Tax Act on the property involved and its impact on the validity of the transaction. Issue-wise Detailed Analysis Issue 1 & 2: Nature of Rs. 6 crore transaction - cash consideration or loan secured by mortgage The relevant legal framework includes sections 68 and 69 of the Income Tax Act, which deal with unexplained cash credits and investments, and section 281B concerning attachment of property during tax proceedings. The Assessing Officer relied on the seized exchange agreement of sale dated 20.03.2016, which recorded a sale of 35 apartment units from the vendor's share to the assessee for Rs. 6 crore paid in cash. The AO contended that this was a fresh cash transaction unexplained in the books of account, warranting addition. The assessee, supported by sworn statements recorded under section 131, contended that the Rs. 6 crore cash payment mentioned in the exchange agreement was a typographical error. The actual transaction was a loan of Rs. 6 crore given by cheque in 2013, secured by a simple mortgage deed on property. The exchange agreement was executed subsequently to substitute the mortgage property because the original property was attached by the Income Tax Department under section 281B. The exchange agreement was thus a formality to protect the assessee's capital and did not involve any fresh cash payment. The Court examined the mortgage deed dated 06.02.2013 and the exchange agreement dated 07.03.2016, noting that the loan of Rs. 6 crore was given by cheque and interest income was accounted for and offered to tax in subsequent years. The Court also considered the attachment order under section 281B, which rendered any transaction on the attached property void ab initio, making it commercially unreasonable for the assessee to pay fresh cash consideration for attached property. The Court found that the exchange agreement was executed to replace the original mortgage property with alternative property units and that the mention of cash payment was an inadvertent typographical error. The Court emphasized the consistency of the parties' sworn statements and documentary evidence supporting the loan transaction and mortgage arrangement rather than a separate cash sale. Issue 3: Justification of Assessing Officer's addition under sections 68 and 69 The Assessing Officer rejected the assessee's explanation on the ground that the exchange agreement did not mention the earlier loan transaction and that the transaction was distinct. The AO also pointed out that the attachment order under section 281B made it illogical for the assessee to enter into the exchange agreement as claimed. The Court, however, held that the AO's reasoning was flawed. The Court noted that the exchange agreement and the mortgage deed were executed on the same date and were interlinked documents forming a continuous transaction. The Court observed that the AO failed to appreciate the commercial realities and the legal effect of attachment under section 281B, which made the original mortgage property unavailable, necessitating substitution through the exchange agreement. The Court found the AO's reliance on the absence of explicit mention of the loan in the exchange agreement as insufficient to disbelieve the assessee's consistent explanations and documentary evidence. The Court held that the addition under sections 68 and 69 was not justified as the Rs. 6 crore was neither an unexplained cash credit nor a fresh investment but a typographical error reflecting an earlier loan transaction. Issue 4: Impact of provisional attachment under section 281B on transaction validity The attachment order under section 281B was a crucial factor. The Court noted that the property originally mortgaged was attached by the Income Tax Department, rendering any sale or transfer of that property void under the said section. Therefore, the exchange agreement was executed to substitute the security by transferring alternative property units to the assessee. The Court reasoned that no prudent party would pay fresh cash consideration for property under attachment, and thus the explanation that the Rs. 6 crore was a loan amount and the exchange agreement was a security substitution was commercially and legally plausible. The Court rejected the AO's view that the transaction was a fresh sale with cash payment, given the attachment and the circumstances. Competing Arguments and Treatment The Revenue argued that the exchange agreement was a distinct transaction involving cash consideration, unsupported by any loan agreement reference, and thus warranted addition under sections 68 and 69. The Revenue also contended that the CIT(A) erred in deleting the addition without proper appreciation of facts. The assessee maintained that the cash payment reference was a typographical error, supported by sworn statements and consistent documentary evidence of loan and mortgage transactions predating the exchange agreement. The assessee argued that the exchange agreement was executed to substitute security due to attachment under section 281B, not to effect a fresh sale. The Court found the assessee's explanation credible and supported by evidence, and rejected the Revenue's arguments as lacking merit and inconsistent with the facts and legal provisions. Conclusions The Court concluded that the Rs. 6 crore mentioned as cash payment in the exchange agreement was a typographical error and represented the loan amount given in 2013 by cheque. The exchange agreement was executed to substitute the mortgage security due to attachment under section 281B. The addition under sections 68 and 69 was therefore unwarranted and rightly deleted by the CIT(A). The appeal filed by the Revenue was dismissed. Significant Holdings The Court preserved the following crucial legal reasoning verbatim from the CIT(A)'s order: "The amount mentioned is Rs. 6 crores in the document which is the same as loan outstanding and this is not a coincidence as the previous document executed on the same date mentions about a further right of 30,130 S.ft." "It is important to note that the 35 apartment units with a cumulative area of 30,130 S.ft are also attached by the Income Tax department vide order u/s 281B dated 13.04.2015 and when the property itself is attached by the Income tax department and which is an undisputed fact, any such transaction would become ab initio void and no one would pay any consideration for the attached property as this would go as a void transaction under section 281 of the IT Act." "The appellant earlier had a security which was kind of messed up with the attachment by the IT department, and in these circumstances, either the appellant would fight a legal battle with the department regarding its first charge or tries to be wise in the given scenario and convert its secured advance into a purchase consideration to safeguard itself. It will be completely out of line in any business parlance or sense to pay a further identical amount of Rs. 6 crores, that too in cash, for a property attached by the IT department and be liable for other penalties. It is clear that the appellant was only trying to secure its loan." The core principles established are:
Final determinations:
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