TMI Blog2016 (11) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... t : Shri Dipak Kumar Sinha For The Respondent : Shri Jigna Parekh ORDER Per Jason P. Boaz, A.M. This appeal by Revenue is directed against the order of the CIT(A)-33, Mumbai dated 24.02.2012 for A.Y. 2008-09. 2. The facts of the case, briefly, are as under: - 2.1 The assessee, an individual, filed her return of income for A.Y. 2008- 09 on 31.07.2008 declaring loss of ₹ 17,30,697/-. The case was subsequently taken up for scrutiny and completed under section 143(3) of the Income Tax Act, 1961 (in short 'the Act') vide order dated 28.12.2010, wherein the income of the assessee was determined at ₹ 1,94,19,483/- in view of the following additions: - (i) Unexplained cash credit under section 68 ₹ 2,05,22,380/- (ii) Unexplained cash deposit in Andhra Bank ₹ 1,5,000/- (iii) 10% interest income on bank deposits ₹ 77,800/- (iv) Unexplained source of investment in Reliance Mutual Fund ₹ 4,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee reiterated the submissions put forth before the learned CIT(A). According to the learned A.R. the assessee was staying alone in a rented premises after the death of her husband, as all her children were NRIs, married and settled abroad. After their father s death, the assessee s children decided to purchase a flat for their mother (i.e. Flat No. 406, Oberoi Springs, Goregaon (E), Mumbai from M/s. Oberoi Construction P. Ltd.) Since the assessee was a widow, staying alone, the children elicited the help of the assessee s sister Smt. Laxmi Bhatia to deal with the Builder in the purchase of the flat and it is for this reason that Smt. Bhatia s name was included as purchaser thereof, instead of the assessee, who is the actual purchaser. In these circumstances, the Builder refused to enter into any agreement with the assessee and instead, made a tripartite agreement between Smt. Bhatia, the assessee and itself , wherein the consideration for sale of the flat was shown at ₹ 1,51,84,152/- as against actual sale price of ₹ 88,72,500/- and the difference thereof was shown as payable. 5.2.2 It is submitted that both before the AO and learned CIT(A), the assessee had fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Deepa Hopchandani ₹ 84,14,092/- 4. Laxmi Bhatia ₹ 62,11,252/- Total addition under section 68 ₹ 2,05,22,380/- 5.3.2 The above addition under section 68 of the Act made by the AO in the context of the sources of investment in the purchase of flat No. 406, Oberoi Springs, Goregaon (E), Mumbai by the assessee, was deleted by the learned CIT(A) in the impugned order holding as under at paras 3.4 to 3.12 thereof: - 3.4 After going through all these facts and submissions made by the appellant I have come to understand the facts as under: (1) The appellant is a lady staying in a rented house alone whereas her children, all major, married are settled abroad and still having bank accounts in India as per the chart given below: S. No. Name Citizen of the country PAN Bank A/c in India `Whether return is filed for A.Y. 2008-09 1 Kama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he account number maintained by Deepa Hotchandani with HDFC Bank, Mulund Branch A/c. No. 00 151060009614N preferred and Bank of Baroda. Thus the initial booking was done by Smt. Laxmi Bhatia and that amount was also reimbursed by the appellant only from her joint account and then other payments appearing in the ledger account which are confirmed by the builder while issuing the letter of allotment were also made by appellant's daughter Deepa Hotchandani. It emerges that Smt. Laxmi Bhatia was only a facilitator for booking the flat. Same is evident from the details given in form of the chart for the payments received by builder through Mrs. Laxmi Bhatia with letter of allotment dated 18.5.2006. Sr. No. Cheque No./ date Amount Bank on which drawn Actually paid by 1 06270 13.04.2006 4,43,645/- HSBC, Mumbai Mrs. Vimla Gurnani by way of reimbursement 2 082147 12.05.2006 15,18,225/- Bank of Baroda Mrs. Dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akhs Eleven Thousand Two Hundred Fifty Two only), shall be paid by the purchaser to the confirming party within 30 days from the execution of these presents. 6. The purchaser/s shall pay to the Developer the balance consideration of ₹ 3,336,211/- (Rupees Thirty Three Lakhs Thirty Six Thousand Two Hundred and Eleven only) (in addition to all other amounts including amounts mentioned in clause 29 30 hereafter), in the following manner. 3.6. The letter of allotment also shows the actual consideration agreed with the parties was ₹ 88,72,900/- against which the amount of ₹ 55,36,689/- was received by the builder till date of agreement and balance ₹ 33,36,211/- only was payable. The appellant was asked the reason for sudden enhancement in the consideration amount of the flat reflected at ₹ 1,51,84,152/-. In response to the same appellant has brought to my attention to clause 4,5,6 on page 10 which have already been reproduced above. It is noted from the same that the builder has actually got ₹ 88,72,900/- only whereas enhanced price of the flat has been taken to make the agreement for the reason that he was entering into the agreement wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made by the appellant's children whose identity is not doubted as is evident from the passport that they are citizen of Spain and Singapore. Further the credit worthiness is not doubted as they are well settled and living with their respective families. Then coming to the transactions it is also not doubted that accounts are maintained in their account in India as NRI account from where all these cheques are issued. 3.9 Coming to the unexplained loans reflected in the name of Mrs. Laxmi Bhatia at ₹ 62,11,252/- it has actually never been taken and hence is not due and payable. It has come into the picture only for the reason that said investment in flat is being reflected at ₹ 1,59,58,232/- in place of actual amount payable and paid as per letter of allotment and in accordance with the registered agreement remains at ₹ 88,72,900/-. Thus there is an artificial increase of ₹ 63,11,252/- out of which ₹ 62,11,252/- is reflected in the name of Mrs. Laxmi Bhatia, Then Mrs. Laxmi Bhatia who has been shown as original purchaser of the property in the letter of allotment and letter of confirming party at the time of registering the agreement for p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , credit worthiness and the purpose of transactions for the amount appearing in the name of these persons cannot be doubted. It is noteworthy that this balance sheet was drawn during the course of assessment hearings only showing the same as it was never drawn being a case of individuals with no books of accounts maintained. It is also noteworthy that the appellant being an individual dealing only in share trading and not maintaining books of accounts has drawn the balance sheet during the assessment proceedings in order to match her assets and liabilities. In view of the fact that the amount shown in the following names are properly explained addition u/s.68 for these amount totaling to ₹ 2,05,22,380/- as below : Ms.Deepa Hopchandani, daughter : ₹ 84,14,092/- Kamal S. Sadhwani- Brother-in-law : ₹ 29,11,550/- Manju Kamal Sadhwani- Sister and : ₹ 29,85,486/- Laxmi Bhatia, Sister : ₹ 62,11,252/- Dilip Gurnani : ₹ 8,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned CIT(A) at para 3.4 of her order, after examining the bank statements of Mrs. Laxmi Bhatia vis-a-vis her ledger account, as it appeared in the books of account of the Builders, observed that the cheques issued by her to the Builders from her bank account for acquisition of the said flat were reimbursed by the assessee and her children, the details of which are at para 3.4(3)(ii) of CIT(A) order and extracted as under: - Sr. No. Cheque No./ date Amount Bank on which drawn Actually paid by 1 06270 13.04.2006 4,43,645/- HSBC, Mumbai Mrs. Vimla Gurnani by way of reimbursement 2 082147 12.05.2006 15,18,225/- Bank of Baroda Mrs. Deepa Hotchandani 3 816754 12.05.2006 7,00,000/- HDFC, Mumbai Mrs. Deepa Hotchandani Total 26,61,870/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessee and it is not the case of the AO that she had invested any amount in the purchase of the said property at any stage. The learned CIT(A) also observed that the affidavit of Mrs. Laxmi Bhatia reiterates the fact that she was only facilitator for the purchase of the said flat on behalf of the assessee, as the funds for purchase thereof were arranged through the assessee s and her close relatives and the entries in the bank account copies examined, corroborate the claim of the assessee. 5.3.7 In the factual matrix of the case, as discussed above, we concur with the factual findings of the learned CIT(A) that it has been established that the assessee s son, Dilip Gurnani; daughter Ms. Deepa Hotchandani; brother-in-law Shri Kamal S. Sadhwani and sister-in-law Smt. Manju Kamal Sadhwani, resident and carrying on business abroad, have invested their funds through their bank accounts maintained in India, in the purchase of the said flat. The identity of the investors; close family members and their creditworthiness has been established and the genuineness of the transactions cannot be doubted. We, therefore, uphold the finding of the learned CIT(A) in the impugned order t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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