9911796707
TMI Blog2015 (1) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... iled declaring income of Rs. 10,15,899/-. The respondent company had surrendered undisclosed income of Rs. 2 crores during the course of search. In addition, disclosure of Rs. 2 crores in the name of Yogesh Gupta, Rs. 2 crores in the name of Rajiv Bahal and his family members, Rs. 9 crores in the name of Realtech Project Pvt. Ltd. and Realtech Construction (P) Ltd. was made. The aforesaid surrender is not in dispute and the amount has been brought to tax. 4. In the order passed under Section 153A of the Act, the Assessing Officer referred to the reply submitted by the assessee in response to the notice for violation of Section 269SS and 269T of the Act, wherein it was mentioned that during the period in question, the assessee had taken advance/loan on certain commitments for buying property, which after the property was sold, was returned with the commitment as agreed. In this way, the transaction of one property was cleared and the surplus fund so generated along with further requirement of funds as arranged on commitments deployed in another property and so on. The surplus income earned by the assessee was used in other properties. The Assessing Officer observed that the reply w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turned the money and, therefore, the amount returned had to be set off. In these circumstances, he directed deletion of principal amount i.e. Rs. 2.4 crores and Rs. 75 lacs (in all Rs. 3.15 crores). However, he sustained the addition made on account of interest of Rs. 28.35 crores by holding that the assessee must have paid interest on the loans and in view of Section 69C, payment of interest should be added to the declared income as unaccounted for interest paid. He however reduced the rate of interest from 20% as directed by the Assessing Officer to 18% per annum. 6. The Tribunal has, however, deleted the said addition recording the following reasons:- "25. From the above, it is evident that a detailed enquiry was made from Shri Yogesh Gupta in respect of various papers seized from him and in respect of not a single paper, he has stated that the noting on the paper is relating to borrowing by the assessee. In respect of each and every paper, he explained the nature of transaction and in most of the cases also explained the name of the group concern to which such paper belonged. In respect of only few papers i.e. page Nos.77 to 84 of the Annexure (see reply to question No.12), h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eased '00' (2 zeros) and made it 22,40,00,000/-. As per the Assessing Officer, the entry is for receipt of loan, though in the loose paper there is no such narration except date and amount. The Assessing Officer further presumes that the assessee has repaid the loan alongwith the interest and he presumed the rate of interest to be 20%. He made the addition in respect of such alleged repayment of loan with interest. The learned CIT(A) has deleted the addition with regard to repayment of loan on the ground that since loan amount itself was available with the assessee out of which this repayment was made, he reduced the interest. Thus, the addition is partly sustained by him. However, after considering the entire facts and arguments of both the sides, we find that the entire addition is based upon the presumption of the Assessing Officer. On the loose papers, there is noting of dates and amounts without any narration. The total of such amount is 22,40,000/-. The first presumption by the Assessing Officer is that it is not 22,40,000/- but 22,40,00,000/-.The second presumption is that the noting is relating to loan taken by the assessee. The third presumption is that the loan wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, their Lordships upheld the finding of the ITAT. In our opinion, the above observation of their Lordships of the Jurisdictional High Court in assessee's own case for AY 2000-01 to 2003-04 would be squarely applicable in the years under appeal also. In these years also, at the most, it can be the doubt of the Assessing Officer that unaccounted transactions are in the nature of the loan taken. However, the doubt or suspicion of the Assessing Officer is not enough to hold that the assessee had taken loan/deposit in cash. Moreover, in the years under appeal, the Assessing Officer made further presumptions that there was repayment of loan in cash though there is no such noting on the loose paper. In our opinion, the finding of the ITAT as well as Hon'ble Jurisdictional High Court in AY 2000-01 to 2003-04 would be squarely applicable to the years under appeal. We further hold that when it is not established that the assessee had taken loan or deposit, the question of further presumption that such loan or deposit was repaid during the year under consideration was without any basis or material on record. 26. In view of the above, we, respectfully following the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
