TMI Blog2012 (11) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... to make the addition without any just cause – In favor of assessee Addition on account of unexplained cash deposits in the bank accounts – Held that:- cash deposits on various dates in the bank account of the assessee company are duly recorded in the regular books of accounts even prior to the search. The books of accounts of the assessee have not been disputed by the AO. All the cash deposits were found to have been made out of the cash balances available in the books of accounts on the date of the deposit in the bank. Since the book entries are not in dispute, therefore, there is no need to file separate cash flow statement as is argued by the learned DR because the book entries explaining the availability of the cash with the assessee company on the date of bank deposits would be more significant and relevant as against cash flow statement - AO has not brought any adverse material against the assessee on record to prove that the assessee utilized or spent the amount of withdrawal in any specific item – In favor of assessee Addition on account of unaccounted income of Radhe Acre I & II Schemes – Held that:- Complete details of the sales of the plot from 15.3.1996 to 31.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... included the following: (a) Unaccounted investment for acquiring Development Rights in Shela land Rs. 20,55,86,000 (b) Amounts received from Members for booking of plots as per Annexures A-29 and A-30 forming part of the seized material Rs. 99,35,200 (c) Amount received from Paresh Chimanlal Shah in the absence of confirmation from the above person Rs. 4,00,000 4. The assessee filed appeal to the ITAT against the block assessment order which came to be disposed of by the Tribunal vide order dated 15.01.1999 in IT(SS)A No. l03/Ahd/1997. Regarding principles for determining undisclosed income in a block assessment, the Hon ble Tribunal recorded the preliminary finding at Para 2 of its order, relevant part of which is reproduced below: "Before going into the merits of the case we must first point out that the search was conducted on 14.3.1996 relating to the asst. year 1996-97 and entire undisclosed income was included in the same assessment year. It cannot be disputed that the return of income was not due when the search was conducted. Therefore, the entries in the books of account as well as other documents found at the time of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he deposition of Ashish taken on 15.3.1996 where he has repeatedly stated that only 7 lacs sq. yds. were taken possession of by payment of Rs.8 crores and Rs.7.5 crores for section No.1 and sector NO.2 respectively. He also reiterated that sector No. 3 would be taken possession of after 1 and 2 sectors are taken possession of. Taking the totality of the circumstances, we are of the opinion that both as regards the area as well as the amount of payment of the relevant time determined by the department has not been correctly determined by the AO. However, as we have deleted the addition deducting the expenditure u/s. 37 from the income estimated u/s. 69C the entire addition is deleted. 9. A question may arise, if there was an acquisition of any asset why the same should not be added to compute the taxable income of the assessee as stock-in-trade. There is fallacy in this question or proposition. The audition itself was made because there was acquisition of stock-in-trade and the source of acquisition was unexplained. As a matter of fact if the asset has to be added to the income of the assessee from unexplained sources then there was no necessity of amending sec. 69C stating that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, the Assessing Officer issued show cause notices to the assessee during the course of the regular assessment proceedings calling upon the assessee to explain as to why the aforesaid additions be not made on the basis of the discussion already given in the block assessment order. The relevant portion from the block assessment order has been reproduced by the Assessing Officer on pages 19 to 24 of his order. Since this discussion forms the very basis for the additions of Rs.99,35,2000/- and Rs.4,00,000/-, it would be appropriate to reproduce the same hereunder: 14. It was detected from the loose paper file Annexure-A 29 A-30 seized from the office premises of the assessee which contains the allotment letters of Radhe Acres 2 schemes, that on a number of allotment letters, the address of the alleged allotments has been deliberately omitted. In other, words, the alleged allotments have been issued on record without address of the persons concerned. 15. During the course of search, the statement of Shri Ashish P. Patel was recorded on 14-03-1996 wherein he has questioned about the number of plots booked in the names of Shri Virendra Patel, Shri Mukesh M. Patel and Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,00,000 Nimesh 467- 5000 x 200 1,00,000 Naresh 181- 750 x 200 1,50,000 1750 sq.yds x 200 = Check Rs.3,50,000/- 1750 x 350 Cash Rs.6,12,5007- These hand writing is not mine. One portion of the paper is Xerox ink and other portion is in blue pen. Q.9 Whether any plot has been allotted in the name of Minavi, Nimesh and Naresh in the scheme Radhe Acre? Ans. Yes, I have allotted plots to Shri Naresh Patel, Nimesh Patel and Minavi Patel. Q.No.10 Please give the name and address of the person who have booked plots narrated in Q. No.2 above? Ans. Shri Naresh B. Patel has booked these plots in various names address is 481/20 Satyagrah Chhavani, Q.pp. ISRO, Satellite Road, Ahmedabad -54. 15.1 In view of the above, a notice u/s.131 of the IT. Act was issued to Shri Naresh B. Patel. In response thereof Shri Naresh B. Patel appeared on 17-02-1997 along with his A.R. and stated on oath that he had booked only 4 plots in the name of following persons. 1. Shri Naresh Patel 2. Shri Minak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on money to the tune of Rs.45.95 from him. However, the assessee has not come out with convincing evidences to prove the point that Shri Naresh B. Patel in fact booked 11 plots as the Managing Director of the Company Shri Ashish P. Patel disclosed in his statement dated 14.03,1996 referred to above. 15.6 A list of alleged members in whose names bookings on plots were made has been prepared from the Annexure 'A' 29 30 seized from the office premises of the assessee the names, persons is reflected as under: Plage No. Name Plot No. Amoun (Rs.) A-30 -1 Virendra A. Patel 186 1,98,000 2. Rita A Patel 305 1,93,600 3. Rita A. Patel 333 1,93,600, 4. Ajay M. Patel 335 1,93,600 5. Ajay M. Patel 251 1 ,93,600 6. Niruta M. Patel 241 1,93,600 7. Niruta M. Patel 422 2,00,000 8. Ananta T. Patel 418 2,06,600 9. Ananta T. Patel 417 2,00,000 10. Ananta T. Patel 416 2,00,000 11. Ana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee was asked to give confirmation accounts from the parties with whom such transactions were carried out. " 16.1 In response to thereof the assessee vide its letter dated 25.3.1997 has filed details in this regard, however, confirmation accounts from the person has not been filed. In view of this the cash amount of Rs.4,00,000/- accepted from Pareshkumar Chimanlal Shah being unexplained credit brought in the books of accounts through cash, will be added in the income of the assessee in the previous year relevant to Assessment year 1996-97 in terms of the provisions of section 68 of the Act. (Addition of Rs. 4,00,000/-)" 8. During the course of the assessment proceedings the assessee before the Assessing Officer dated 12.2.1999, contending that the Hon'ble Tribunal did not give any directions that the aforesaid two additions are to be made in the regular assessment for A.Y. 1996-97 and that the only observation made by the Hon'ble Tribunal was that these amounts which are duly accounted in the books of account even prior to the date of search could be considered during the regular assessment proceedings. It was, therefore, requested by the assessee that the basis for making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el in response to which he appeared before the Assessing Officer and stated that he had booked only four plots in the following names: (1) Naresh Patel (2) Minakshi Patel (3) Nimish Patel (4) Shefali Patel 10. During the course of the assessment proceedings the Assessing Officer intimated the assessee regarding the statement given by Shri Naresh B. Patel and the assessee filed a reply dated 27.3.1997. In this reply stated that all the payments were received through account payee cheques. It was also stated by the assessee that the bookings made by Shri Naresh B. Patel are established from the relevant seized papers showing the bookings made by him and the amounts paid by him. The Assessing Officer did not accept these arguments and he concluded that as per the discussion given in the block assessment order the addition of Rs.99,35,200/- was required to be made. He has given the details at page 23 of his order on the basis of the seized annexure A-29 and A-30. In these details the names of the persons booking the plots, plot numbers and the amounts received are mentioned. With regard to the addition of Rs.4,00,000/- also the submissions made by the assessee did not find an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 85 on 8-6-1995. This was acknowledged by way of receipt issued by those two person. The appellant submits a copy of their affidavits duly sworn in dated 11-2-1999 which was also submitted to the A.O. along with their copies of order u/s.143(1)(a) for A.Y. 1996-97 and their bank statement wherefrom they had withdrawn the amount deposited with the appellant. These details were filed with the A.O. vide letter dated 12-2-1999. Thus there is no justification for holding that this amount was unexplained receipt and cash credit in the hands of the appellant." 12. The learned CIT(A) considering the explanation of the assessee in the light of the material on record and findings of the AO, deleted all the additions. His findings in appellate order from Para 15 to Para 21 are reproduced as under: 15. I have carefully considered the relevant facts and have gone through block assessment order, the Tribunal's Order as also the reasoning given by the Assessing Officer in the assessment order which is based on the discussions given in the block assessment order. In my view, these two additions made by the Assessing Officer are without any justification. The statement given Shri Ashish Patel, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tails were filed before the Assessing Officer. Copy of joint account of Paresh Chimanlal Shah and Pinakin Chimanlal Shah was filed before the Assessing Officer along with copy of receipt issued to them. The aforesaid two persons paid the amount of Rs.4,00,000 but vide letter dated 8.6.1995 requested for cancellation of booking and accordingly the booking was cancelled and the amount of Rs.4,00,000 was repaid by cheque No. 722485 dated 3.6.19095 drawn on Dena Bank. The assessee also filed affidavits of the two persons before the Assessing Officer wherein they have confirmed the above mention facts. Copy of their bank account was also filed from where the amount of Rs.4,00,000 was withdrawn for depositing with the assessee company. I have gone through the facts and in my view, having regard to the conclusive evidence supporting genuineness of the transaction of Rs.4,00,000, there is no basis for the addition, therefore the same is deleted. 17. Coming to the addition of Rs.13,60,00,523, the only basis provided by the Assessing Officer for this addition is the observation of the Hon'ble Tribunal to the effect that the payment of on money for acquiring development rights was in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt arising out of development agreement submissions of the assessee before him was that the observation of the Tribunal related to the deduction and set off of unexplained expenditure given by the ITAT the source of which is on money the receipt then if the subsequent on money receipt are there the same should be added in full. However, if the company incurs any expenditure and the genuineness of the same is established, then to that extent the income would be reduced. Thus the finding of the Tribunal was related to unexplained expenditure. The A.O. has, however, in para 7.5 observed that the submissions are not acceptable. It is stated by him that the ITAT had held that any receipt arising out of development agreement will be taxed in toto. In so far as unaccounted receipts are concerned the same were already considered in the block assessment. According to him the amount of Rs.13.60 crores shown in the balance sheet is to be taxed as per the directions of the ITAT. It is also observed by him that the decision of the ITAT has not been accepted by the department and writ petition has been filed before High Court and the decision of the ITAT has been interim stay. Thus this amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This amount is separately shown as debit to the account of Society. A copy of account was handed over to the A.O. vide letter dated 24-2-1999. The appellant had also billed Rs.4,74,13,254/- to the society towards development charges/expenses as per the bill which is also standing to the debit of the society. 11.7 Even the observation of the A.O. with reference to ITAT are considered, the same were in respect of Radhe Acre 1 2 Scheme and not with reference to Thirthdham Society, both are different schemes. As stated above the appellant ha already made payment of the amount of Rs.4.44 crores and also debited bill of Rs.4.74 crores to the Shela Society and thus the payment made to the society as per the books is more than the amount received from members towards booking. As such there is no question of taxing this amount on the ground that it is income and as per directions of the Tribunal it is taxable in the hands of the appellant. 11.8 Thus the amount so paid to the society and the amount receivable towards bill which are debited to society are required to be considered against the amount of Rs.7.79 crores received from members on behalf of society and thus the amount is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are collected by the appellant on behalf of the concerned society and are, therefore, to be passed on to the society as per the agreement. Receipts at (b) above are to be retained by the assessee to be adjusted against development expenditure. Thus, whatever amount is received and is accounted in the books of account eventually goes into the computation of total income as per the terms and conditions of the Agreement entered into by the assessee company with the Shantinagar Shela or Tirthdham Society. It is also notable that the entire amount is split into the following receipts: (a) Shantinagar Shela land Rs. 7,79,89,273 (b) Tirthdham Society land Rs. 5,80,11,250 Rs.13,60,00,523 20. The appellant has compiled complete details of the above payments at pages 240 to 247 of the Paper Book filed during the course of these proceedings. These details were already made available to the Assessing Officer. From the above it may be seen that the nature of receipts are not at all attributable to the on-money paid in respect of Shela lajnd. As matter of fact, as per the details filed and mentioned in the supervisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the submissions made before the authorities below and submitted that the receipts are recorded properly in the books of accounts and substantial were through cheques. Allotments of the plots were made and since assessee is in the business of land development and construction, therefore, the receipts would be the sales of the assessee and after reducing the expenditure income would be shown. He has submitted that cash is already offered in the block assessment, therefore, same cannot be considered in the regular assessment. The sale consideration cannot be added u/s 68 of the IT Act. He has submitted that as regards the addition of Rs.13,60,00,523/-, the matter was considered on merits by the Tribunal in IT(SS)A No.103/Ahd/1997 and vide order dated 15-01-1999 addition was deleted on merit. He has referred to relevant paragraphs of the order (PB-255 to 261). He has submitted that the order of the Tribunal is confirmed by the Hon ble Gujarat High Court in Tax Appeal No.171/1999 dated 01-04- 2009 (PB-276) and referred to relevant paragraphs of the order at PB-298 and 299. He has, therefore, submitted that the similar addition deleted by the Tribunal and confirmed by the Hon ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id to the parties through cheque on cancellation of the booking. The learned CIT(A) was of the view that there is no basis for adding this amounts u/s 68 of the IT Act. As regards the addition of Rs.13,60,00,523/-, it was found that the entire receipts have been recorded in the books of accounts for booking of the plots which was received from various persons. The receipts pertained to cost of the land and development charges. None of the receipts were found to be attributable to on-money in respect of Shela Land or others. The learned CIT(A) further found that the receipt of Rs.99,35,200/- formed part of overall amount of Rs.13.06 Croers and as such it was double addition. The revenue is not in appeal against this findings of the learned CIT(A) for double addition and even, no argument has been made in this regard during the course of arguments before us. Thus, the finding of fact recorded by the learned CIT(A) of double addition to that extent remained unchallenged and as such cannot be interfered at this stage. The overall consideration of the facts and material on record clearly justify the findings of the learned CIT(A) for deleting the entire addition. Since the assessee reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bank accounts as well as cash deposits therein. At pages 11 and 12 of his order the Assessing Officer has incorporated details of cash deposits and cash withdrawals. The Assessing Officer asked the assessee to explain the need for abnormally high cash withdrawals. The assessee filed a letter dated 24.2.1999 making the following submissions: "It is submitted that the assessee company's main object was to construct and develop the various lands. Sometimes it happens that the seller/the land owner or some brokers used to approach us at the office premises of the company to sell the land. In that case, the person normally asks for the sales consideration to be paid in cash as per his needs. Likewise, we also search for some opportunity to invest in the properties if the deal appears favourable. For this purpose, the assessee company kept further cash balance in the regular books of account by making the withdrawals. The same was utilized as per entries made in books of account." 17. The Assessing Officer rejected the explanation given by the assessee as per the detailed discussions given by him on pages 12 to 18 of his order. To sum up, the Assessing Officer proceeded on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther, Assessee Company gave advances to Nila Associates and Parikh Associates. 18. After emphasizing the above mentioned points the Assessing Officer made the addition with the following concluding remarks: "The point to be emphasized here from discussion at (a) to (i) above is that there has been a number of investment made by the assessee and its Managing Director during the year where huge cash payments have been made. The cash withdrawals made by the assessee, therefore, have been utilized towards acquiring such interest or incurring expense and not for depositing the same in the bank account. 6.8 In so far as the source of huge deposit of cash payment is concerned it is found that assessee has been collecting on-money at the rate of up to Rs.350 per sq, yard on sale of plot in Radhe Acre I II. It is clear from the statement of Shri Asnish P. Patel wherein he has stated that on-money of Rs.12.8 crore was received. As per the assessment order of block period of assessee it is seen that the admitted receipt of Rs.12.8 crore of onmoney collected by the assessee was net found to be correct. As against the sale of 4.7 lacs of Sq. yard stated by assessee's Managing Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the observations of A.O. in Para (d) above are also not justified. (d) In so far as cash found at the time of search as against the-cash balance as per cash book on the date of search is concerned, it may be noticed that such cash balance was as per cash book which was written prior, to the date of search and no defect was found in the cash book. The search party/departmental authorities even on making detailed enquiry, and while receding the statement of the director of appellant and other persons did not question about the difference in the physical cash found and the cash balance as per cash book. This itself shows that they were not having any doubt about the cash balance as per cash book and the lesser cash found at the time of search. (e) In so far as the observation of A.O. in Para (f) above are concerned, there is no evidence that cash withdrawn on a particular date was utilized for- any purpose and was not available which was referred in the cash balance as per cash book. The said observations are made only on presumptions and do not justify the assumption of the assessing officer that cash balance was not available. (f) It is submitted that the additional amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be independently subject to scrutiny by the appellate authorities. In the block assessment the Assessing Officer proceeded on the basis that the assessee company acquired development rights in 11.11 lac sq yds. of land. On the other hand, the Hon'ble Tribunal recorded a finding of fact that the assessee had actually acquired development rights in approximately 7 lac sq. yds. of land. However, the finding of the Tribunal is subject matter of writ petition filed by the Department before the Hon'ble High Court and nothing more can be said on this issue. The most important fact is that all the transaction, either withdrawals or deposits are duly reflected in the books of account regularly maintained by the assessee which were available even at the time of search. In my view, when sufficient cash balance is available in the cash book and the bank deposits have come out of such cash balances, it would be far-fetched to assume that the cash balance is inflated and the same was actually not available with the assessee company. The observation of the Assessing Officer that at the time of search cash actually found was much less than the cash balance reflected in the cash book does not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement was filed in this regard. On the other hand, the learned Counsel for the assessee reiterated the submissions made before the authorities below and submitted that the amount of withdrawals was not utilized by the assessee elsewhere. It was available to the assessee for deposit. Complete details are recorded in the regular books of accounts. Search is conducted on 14-03-1996 i.e. almost at the end of the financial year and all the entries were recorded in the books of accounts which have not been disputed by the AO. He has relied upon the decision of the Hon ble Gujarat High Court in the case of Pipushkumar O. Desai Vs CIT, 247 ITR 568 in which it was held as under: Held, that since the assessee had given sufficient details with regard to the sources from which the jewellery was purchased and with regard to the cash inflow and since the Tribunal had not considered the genuineness of the relevant statements and documents pertaining to the same, the addition of Rs.12,728 to the income of the assessee was not justified. 22. We have considered rival submissions and material on record. It is not in dispute that cash deposits on various dates in the bank account of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how that the amount was utilized by the assessee for the HUF in any other manner than the one which was represented by the assessee, the onus lay on the department to show that the explanation offered by the assessee should not be accepted. Considering the facts of the case noted above in the light of the findings of the learned CIT(A) we are of the view the learned CIT(A) on proper appreciation of facts and entries contained in the books of accounts rightly deleted the addition. The AO has not brought any adverse material against the assessee on record to prove that the assessee utilized or spent the amount of withdrawal in any specific item. The findings of the AO are based on mere presumption which could not take place of legal proof. We, therefore, do not find any merit in this ground of appeal of the revenue. The same is accordingly dismissed. 23. On ground No. 6, revenue challenged the deletion of addition of Rs.13,23,000/- made on account of unaccounted income of Radhe Acre I II Schemes. 24. This issue has been dealt with by the Assessing Officer at pages 7 to 10 of his order. Referring to the seized Annexure A-30, the Assessing Officer has stated that this file co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income on sale of plots in Radhe Acres - 1 2." 25. The assessee before the learned CIT(A) made the following submissions; "10.4 The appellant in this connection submits that the statement of Ashish Patel or the seized material referred to by the A.O. were relating to the period prior to 14-3- 1996. It cannot be applied generally for the subsequent period unless there is such evidence that the appellant had obtained/received any unaccounted money after the date of search also. In the circumstances there is no justification for presumption of receipt of on money on the basis of the seized material and the statement based on such seized material which relate to the period prior to the date of search. In so far as the sale of land of 3730 sq. yds. During the period from 16-3-1996 to 31-3-1996 is concerned, the details of sale were given vide letter dated 17-2-1999. Copy of such details is enclosed. It may be seen from the details that the sale rate is of Rs.400/- per sq. yds. which is received by cheque. This itself shows that after the date of search in the absence of any proof of receipt of unaccounted money towards sale of land and the payment as above having been receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove any on money received by the assessee in post search period. Addition is made on presumption only. 28. We have considered the rival submissions. The AO merely on the basis of block assessment order assumed that in the post search period also assessee has received on money. No evidence or material was brought on record by the AO to support his assumption. Merely on the basis of assumption no such addition could be made against the assessee. This ground has no merit and is accordingly rejected. 29. On ground No.7, revenue challenged the deletion of addition of Rs.56,19,870/- being interest expenditure claimed by the assessee. This issue has been dealt with by the Assessing Officer at Para 4 of his order. The Assessing Officer has stated that the assessee company made several interest free advances during the year. At pages 5 and 6 of his order the Assessing Officer has given three lists of such interest free advances, totals being as under :- (a) Rs. 1,35,36,813 (b) Rs. 95,40,095 (c) Rs. 1.34,83,168 Rs. 3.65.60.076 The assessee during the year paid interest to banks out of which a sum of Rs.56,19,870/- whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ached. Apart from the above, as observed by the A.O. the appellant is having huge interest free funds at its disposal by way of share capital and by way of sale of plots/booking of plots on which no interest has been paid. There is evidence with the A.O. that any borrowed funds on which interest had been paid has ever been diverted for alleged interest free advances. In the absence of any such nexus established by the A.O and in particular when the appellant is having huge funds available with it which is accepted by the A.O. himself, there is no justification for disallowance of interest in the above manner. This may be appreciated in view of the fact that the finance on which interest is paid is always used for the purpose of business. It may be appreciated that interest free fund available with the appellant is far in excess of the alleged interest free advances. In the circumstances there was no justification for such disallowance. This may be appreciated in view of the following: (a) In the case of Harrison Malayalam Ltd. - ITAT Cochin (19 SOT 363) observed as under. "In this ease also, there is no identity of the funds invested by the assessee. Moreover, from the reserv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is observed that the interest free fund available with assessee was more than Rs.63 crores. which far exceeded the interest free advance of Rs.51 lakhs and there being no nexus between interest bearing loans taken by the assessee and interest free advances given by it and therefore A.O. was not justified in disallowing interest relatable to interest free advances. e) The Supreme Court decision in the case of Munjal Sales Corporation 298 ITR 298. 8.3 Without prejudice to the above, it may be seen that the alleged interest free advances referred to by the A.O. are representing-the following amounts: i) Loans given during the year - Rs.1,35,36,813/- ii) Advances for proposed projects - Rs. 95,40,095/- iii) Non interest bearing advances/loans - Rs.1,34,83,168/- The appellant submits that the above amounts do not represent any loan advanced by the appellant but it is representing payments made towards projects of the appellant and are thus in the nature of payments for business and hence there is no justification for holding that it is representing interest free loans given by the appellant for non-business consideration. The disallowance made on such grounds, therefore, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hantinagar Shela Society for which the development work was asked to the appellant. Taraben Baldevbhai Patel 8,95,000 Payment towards land of Shantinagar Shela Society for which the development work was asked to the appellant. Gujarat Police Coop. Housing Society 51,813 For project of Tirthdharn Society. Hemraj Kamdar, Assocites 2,00,000 Advance payment of architect for Shantinagar Shela Society Thus the above payments are made towards projects and it does not represent any interest free loans given for nonbusiness purpose. (b) In so far as the amount of Rs.95.40 lakh paid to Nila Members Association and Shri Parikh Association, details contained in assessment order itself shows that the amount represents project advance. As such it cannot be considered as interest free loans. (c) In, so far as the amount of Rs. 1,34,18,168/- referred to on page 6 of the assessment order are considered, the appellant has to first of all submit that majority of these amounts ate also covered in the list of Rs.1,35,36,813/- referred to in (a) above. Thus there is duplication of considering this amount as interest tree advanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the extent of Rs.56,19,870/-. As per the Assessing Officer's own version, the assessee company had huge interest free funds of its own which were more than sufficient to coyer any interest free advances made by the assessee. No nexus has been established between the interest bearing borrowed funds and the interest free advances. The Assessing Officer has merely assumed, without any basis whatsoever, that the funds borrowed from the banks were not used for business purposes. Further, as explained by the appellant in the submissions reproduced above, even the so-called interest free advances have been made by the assessee for business purposes and the surplus funds have been invested by the assessee which has yielded gross interest income of Rs.1,88,29,652/-. The legal position is very clear, on this issue as explained by the appellant in the written submissions. I hold that considering the facts and the legal position the disallowance made by the Assessing Officer is without any justification. Accordingly, the disallowance of Rs.66,19,870/- is deleted. 32. The learned DR relied upon the order of the AO and submitted that it is for the assessee to prove that interest was paid for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Torrent Financiers Ltd. relied upon by the learned CIT(A) in the appellate order. He has also submitted that AO has also failed to note that the assessee has shown net interest income of Rs.1,31,60,095/- (PB-94) after deducting the interest expenses of Rs.56,69,557/-. Therefore, addition is absolutely unjustified. 33. We have considered the rival submissions and material on record and do not find any justification to interfere with the order of the learned CIT(A). The Hon ble Supreme Court in the case of Munjal Sales Corporation, 298 ITR 298 held as under: Held also, that since the opening balance of the profits of the assessee firm as on April 1, 1994, was Rs.1.91 crores, and the profits were sufficient to cover the loan given to a sister concern of Rs. 5 lakhs only, the Appellate Tribunal ought to have held that the loan given was from the assessee s own funds. Considering the facts of the case in the light of the findings of the learned CIT(A) it is clear that assessee has net surplus interest income after deducting the interest expenses disallowed by the AO. The assessee company had huge interest free funds of its own which were sufficient to cover any alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X
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