9911796707
TMI Blog2015 (7) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... tative. In brief its grievance revolves around a single issue i.e the ld. CIT(A) has erred in deleting the addition of Rs. 81 lacs and Rs. 1,62,50,000/- which were added by the AO with the aid of section 68 in AY 2007-08 & 2006-07 respectively. 3. The facts on all vital points are common in both the Assessment Years. The ld. CIT(A) has passed the order in AY 2007- 08 on 20th January, 2011 and this order has been followed in AY 2006-07. Therefore, for the facility of reference we are taking up the facts from AY 2007-08. The brief facts of the case are that the assessee has filed returns of income on 11/10/2006 and 19/03/2008 declaring total income at Rs. 1,04,98,191 and NIL in AY 2006-07 and 2007-08 respectively. The case of the assessee wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. AO further observed that upto 18.12.2009 no one had attended on behalf of the assessee, therefore, he issued summons under section 131 of the Income-tax Act to the investors. The summons could not be served upon the investors by the process server and he reported that the addresses submitted by the assessee are incomplete. The AO vide notice dated 22.12.2009 confronted the assessee as to why these advances be not treated as unexplained credits of the assessee. In response to the notice it was contended by the assessee that section 68 is not applicable on these advances because these were received by the assessee as advance booking amount in the ordinary course of business. The assessee has submitted confirmations from all the persons, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as under :- "6. Decision I have considered the contents of the assessment order, remand report and the submissions of the appellant. The addition of trade advance made by the A.O. is not approved due to following reasons: i. All the deposits which have been added by the A.O. are in the nature of trade advance because these amounts of advance were received by the appellant as booking advance against the future sale of the plots. These advances cannot be said to be loans taken by the appellant. Hence, restrict rules of cash credit as envisaged in the provision of sec. 68 of the Act cannot be applied (see the case law quoted by the appellant in his submissions). ii. The appellant had furnished all the customers' details like name, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he A.O. should have verified these transactions with the related banks and should have made further inquiries in this regard which he has failed to do so. iv. In most of the cases the customers are filing their return on regular basis. During the appellate proceedings the appellant has produced the copy of the returns of income for A.Y. 2009-10 for verification in its support. v. It is not the case of the revenue where any evidence has been brought on the record which even remotely indicates that the money originally belonged to the appellant and it had returned back to the appellant again. vi. Other case laws mentioned by the appellant are also not in support of the action taken by the A.O. vii. The appellant's submissions about it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed on record copy of the ledger account of all these parties and submitted that during the assessment proceedings these facts were brought to the notice of AO. The ledger account of all the parties has also been placed on page nos.246 to 297 of the Paper Book. The bank statement is available on pages 298 to 390. The list of booking amount is available on page 316. On the strength of Hon'ble Gujarat High Court in the case of CIT vs. Ayachi Chandrashekhar Narsangji reported in 221 taxman 146 (Gujarat) he contended that once the assessee has repaid the alleged loan and the department has accepted the repayment then, its genuineness would not be doubtful. The ld. counsel for the assessee submitted that repayment was made upto 31st March, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t payee cheques. The assessee has produced copies of income-tax returns as well as PAN of the investors. Therefore, as far as the creditworthiness is concerned there is no dispute. Similarly the amounts have been received through account payee cheques. It is to be assumed that transactions are genuine unless proved otherwise by the AO. The solitary grievance of the AO is that he has tried to serve the notice upon the investors but failed to serve. In this connection it is pertinent to note that in AY 2007-08 effort was made by the AO after 18.12.2009 and before 22.12.2009, because he passed the assessment order on 31.12.2009. The list of the customers is available on pages 318 to 322 of the Paper Book. All the customers are from Surat but a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
