9911796707
TMI Blog2018 (6) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the order of the CIT(A) on the above ground be set aside and that of the AO be restored, 3. Brief facts in this case are as under: In this case, the Assessing Officer noted from the perusal of the bank statement of the assessee maintained with Oriental Bank of Commerce and ING Vysya Bank, Bandra Branch that there are three credits appearing in the said account which were not reconciled with the return of income filed by the assessee as well as the submissions made from time to time during the assessment proceedings. In the submissions, the assessee had claimed that out of such credits, Rs. 1,20,00,000/- was received on account of flat cancellation and others were loan refunds which were given in the earlier years. The Assessing Officer noted that no detail/evidence to establish such claims was submitted despite ample opportunities. Accordingly, the Assessing Officer gave notice to the assessee to explain the credits in his bank account as under: 1. Oriental Bank of Commerce dated 29.08.2001 Rs.1,20,00,000/- 2. ING Vysya Bank dated 17.08.2001 Rs.2,00,000/- 3. ING Vysya Bank dated 23.01.2002 Rs.2,02,72,000/- 4. As regards the credit of Rs. 1,20,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank. The said amount was received back from the said party and deposited with Vysya Bank. Assessee has asked to the said party to give confirmation but it will take some time to received from them as matter is very old. 13) You have asked my client for to explain deposit of Rs. 2,02,72,000/- on 23-01- 2002 in Vysya Bank. It is submitted that on 21-12-2001 sum of Rs. 2,02,71,670/-was issued in favour of Raj Bastani by issue of cheque No. 87082 drawn ING Vyasa Bank. I am enclosing herewith Xerox copy of bank statement reflecting ' the payment of said amount wherein name of Raj Bastani is duly reflected. The said' amount was received back from him on 23-01-2002 and deposited with Vysya Bank. Assessee has asked Shri Raj Bastani to give confirmatory letter but it will take few days as matter is very old. 14) No adverse inference be drawn for non-submission of confirmatory letter on 23-12-2009. 5. Considering the above submissions, the Assessing Officer noted that the relevant MOU for the flat purchased of Flat Nos. 1301 and 1302 as claimed by the assessee was not produced. The claim of the assessee that the said sum was received from Shri Shahrukh Khan was verified u/s. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Mr. Saigal regarding the receipt of Rs. 1,20,00,000/- nor there is any details on records which may enable this office to conduct independent enquiries. The claim of the AR of the assessee that the said transaction with Shri Saigal were from FY 2000-01 and therefore the assessee was not liable for maintaining details for the same is also not acceptable. If, as per the claim of the assessee, the amount of Rs. 1,20,00,000/- was paid to Shri Saigal for flat purchase, then the relevant entry for the same must have been passed in the balance sheet of the assessee as on 01-04-2002'on the asset .side as advance for flat. Therefore, the assessee was liable to maintain details/evidences for such-entry that was passed in his books during the previous year . relevant to the current year. 6.3 The amount paid by the assessee on account of flat booking to M/s Trambak Ploypack (P) Limited was refunded as per the confirmation filed. There is no details/evidences of any other flat booking made by the assessee for which an amount, of Rs. 1,20,00,000/- was received by the assessee which has been claimed as cancellation of. flat booking. In the absence of any details as discussed above, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) agreed to pay back Rs. 1.20.00,000/- to the assessee which was paid by the assessee to the builder out of total Rs. 1,75,00,000/- as stated earlier. Accordingly, Sharukh Khan & Gouri Khan paid Rs. 1,20,00,000/- to the assescee vide Manager's cheque No.610942 dated 23.08.2001, copy of the sante along with a copy of stamped receipt has been produced which are enclosed for kind perusal. A copy of letter submitted by M/s. R.M.Aigaonkar & Co., CAs, addressed to ITO19(3)-4, Mumbai has been produced by the assessee, being a reply to the notice u/s. 133(6) issued to Shri Shahrukh Khan & Gouri Khan. In this reply, they have stated that the assessee (Mr. Shahrukh Khan) has not maintained ledger account of Mr,.Kanwarjeet Singh Sandhu in his books for F.Y.2001-02. However, they have confirmed that the assessee (Mr.Shahrukh Khan) has paid Rs. 1.20.00,000/- to Mr.Kanwarjeet Singh Sandhu in discharge of the consideration payable as per the terms of memorandum of Intent dated 31.05.2000. Copy of the reply is enclosed herewith for your kind perusal. As per assessee's version, this sum of Rs. 1,20,00,000/-was given as loan to Mr. Raj Basantani on 30.08.2001 which form part of the total loa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent proceedings, balance sheet as on 31.03.2002 was submitted. Since the amount was received on 23.08.2001 it will not be reflected on asset side of balance sheet because no amount of Rs. 1,20.00,000/- was outstanding as receivable as on 31.03.2002. The assessee had given Rs. 1,75,00,000/- to Trambak Polypack Pvt.Ltd and had received back Rs. 1,20,00,000/-, the balance amount of Rs. 55,00,000/- was shown in the balance sheet as receivable from Trambak Polypack Pvt.Ltd. M/s.Trambak Polypack Pvt.Ltd had confirmed the transactions. 7. Considering the remand report, the ld. Commissioner of Income Tax (Appeals) proceeded to adjudicate the issue. The ld. Commissioner of Income Tax (Appeals) noted that in page 4 of the assessment order, the Assessing Officer has himself recorded a source of receipt of the amount of Rs. 1,20,00,000/- has been established by the assessee but the nature of the receipt has not been established. Thereafter, the ld. Commissioner of Income Tax (Appeals) proceeded to state the sequence of event as narrated by the assessee already before the Assessing Officer. Thereafter, the ld. Commissioner of Income Tax (Appeals) again noted that the Assessing Officer has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced by the assessee and in the remand report, the Assessing Officer has also not drawn any adverse inference in this regard. In these circumstances, in our considered opinion, there is no infirmity in the order of the ld. Commissioner of Income Tax (Appeals). Accordingly, we uphold the same. Apropos ground no. 2 relating to addition u/s. 68 of the Act of Rs. 2,02,72,000/-: 11. This regard to the explanation of the credit of Rs. 2,02,72,000/- and Rs. 200,000/-, the assessee responded as under: 15) You have asked the assessee explain deposit of Rs. 2,00,000/- in ING Vyasa Bank, Bandra (West) Branch on 23-08-2000. My client has paid sum of Rs. 2,00,000/- to Rush Reality as a loan on 10-08-2001 by cheque No. 087081 drawn on ING Vysya Bank. The said amount was received back from the said party and deposited with Vysya Bank. Assessee has asked to the said partly to give confirmation but it will take some time to received from them as matter is very old. 16) You have asked my client for to explain deposit of Rs. 2,02,72,000/- on 23-07-2002 in Vysya Bank. It is submitted that on 21-12-2001 sum of Rs. 2,02,71,670/-was issued in favour of Raj Bastani by issue of cheque No. 87082 drawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etters written to Bank by the assessee are placed on record. It is also stated that the FDs were kept in the bank prior to 2001. Now, coming to the return of loan of Rs. 2,02,72,000/- by Shri Raj Basantani, summons u/s. 131 of the I.T.Act, dated 23.11.2010 was issued to Shri Basantani by the erstwhile A.O. and his statement on oath was recorded. Shri Basantani has confirmed in this statement of having received the amount of Rs. 5,93,66,151/- from the assessee. An affidavit duly notarized;' confirming the receipt of '.his amount and returned by Shri Basantani has been filed Copy of ledger account by way of confirmation dated 1.4.2002 has also been filed separately. It is stated by the A.R. that the cash credit, in Question, of Rs. 2,02,72,000/-was received from Shri Basantani vide cheque No. 909279 dated 22.01.2002 drawn on Indian Bank, Overseas Branch, Mumbai, Zerox copy of the said cheque along with pay-in-slip for depositing the cheque in assessee's bank account i.e. iNG Vysya Bank, Bandra Branch, SB Account No. 19721, has been produced and available on record In response to summons issued to Indian Bank, Overseas Branch, Mumbai. the Bank vide its letter dated 7.6.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een established. In the remand report, the Assessing Officer submitted that the assessee's representative has stated that the total loan given to Shri Raj Basantani was Rs. 5,93,66,161/- in the earlier year. Regarding the source, it was stated that the assessee has kept loan with the fixed deposits in the Indian Bank and asked the loan against fixed deposit to Shri Basantani. Necessary evidence in this regard in the form of letter from bank was produced. The Assessing Officer also summoned Shri Basantani who confirmed that he has received the loan of Rs. 5,93,66,161/-. It was also stated that the cash credit in question of Rs. 2,02,72,000/- was received from Shri Raj Basantani vide cheque no. 87082 dated 22.01.2002 drawn by the Indian Bank. The Assessing Officer had observed that Shri Raj Basantani did not have sufficient resource that he had stated that he had enough over draft facility with the bank and in the financial year 2001-02, the total turnover of the group was approximately Rs. 200 crores. In this regard, the assessee's ld. Counsel of the assessee also produced copy of bank statement of Shri Raj Basantani which reflected the above amount. Considering the above report, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ni that he had received a loan of Rs. 5,93,66,151/- from the assessee in the past which has now been repaid. The source of the original assessee's loan to Shri Raj Basantani has been submitted to be maturity of the fixed deposits in the Indian bank. All the necessary papers and documents have been found by the Assessing Officer. In these circumstances, in our considered opinion, there is no infirmity in the direction of the ld. Commissioner of Income Tax (Appeals) to delete the said addition. ITA No. 628/Mum/2014 20. The grounds of appeal read as under: (1) On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in deleting the addition of Rs. 2,70,94,481/- even though the assessee failed to discharge the onus u/s. 68 of the I. T. Act. (2) The appellant prays that the order of the CIT(A) on the above ground be set aside and that of the AO be restored. 21. The facts relating to initiation of proceedings u/s. 147 of the Act, and the issues in appeal, as discussed in the assessment order are that the assessee had not filed any return of income for A.Y.2003-04. A survey action u/s.133A of the IT Act was conducted on the premises of M/s. Sandhu Buil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for information from the Bank Manager of the above branch who informed that Shri Basantani was not maintaining any account with the bank for the period 1.4.2002 to 31.3.2004. On the basis of the above information and that assessee has failed to prove the identity and creditworthiness of Shri Basantani and genuineness of the transaction, the Assessing Officer held that the assessee has not been able to establish the source of the above amount as repayment of loan and assessed the same as unexplained cash credit u/s. 68 of the Act. 22. Upon the assessee's appeal, the ld. Commissioner of Income Tax (Appeals) noted the submissions of the assessee. The assessee also submitted the additional evidences which were remanded to the Assessing Officer. 23. Considering the above, the ld. Commissioner of Income Tax (Appeals) deleted the addition by holding as under: 7.1 I have duly considered the remand report and the submissions of the appellant, and find that vide para 3.2 of the report, the AO has mentioned that. copy of bank account issued by Indian Bank, Overseas Branch show that Mr. Basantani was enjoying credit facility from the said bank, however, no documentary evidence was produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said loan amount. As far as identity of Shr Basantani is concerned, the AO has recorded his statement on oath, which establishes his identity. The creditworthiness of Shri Basantani is proved from the report of the AO that from the xerox of bank statement issued by Indian Bank, Overseas Branch it can be seen that Shri Basantani was enjoying credit facility from the said bank. The Indian Bank, Overseas Branch, has also confirmed issue of banker's pay order dated 9.8.2002 for Rs. 1.50 crore. The SBI, Khar(West) Branch has also confirmed issue of pay order for Rs. 20,94,481/- by debiting the account of Shri Basantani. The payment of amount of Rs.lcrore has also been confirmed by Shri Basanstani, and reflected in appellant's bank account. The genuineness of the transactions is therefore, also established. In view of the same, I delete the addition of Rs. 2,70,94,481/-. 24. Against the above order, the assessee is in appeal before us. 25. We have heard both the counsel and perused the record. The ld. Counsel of the assessee in his submissions reiterated the sequence of events as submitted above and referred to his letters in this regard filed before the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn of income on 3.5,2010 declaring income of Rs. 5,815/-. The Assessing Officer vide letter dated 12.10.2010 asked the assessee to furnish copies of bank statement/pass book of his account with GTB, along with nature and explanation of the entries- made therein. The assessee vide reply dated 25.10.2010 stated that the amounts of Rs. 15 lakh, 20 lakh, 10 lakh and 10 lakh credited on 22.12.2003, 23.12.2003, 24.12.2003 and 27.12.2003, that is total of Rs. 55 lakh had been received from M/s. Trambak Polypack Pvt. Ltd and the balance amount of Rs. 75 lakh has been received back from Fresh Leasing and Finance P. Ltd.(FL&FPL). The assessee also enclosed xerox of confirmation letters from Trambak Polypack for the period 01.04.2001 to 31.03.2004 from M/s. Fresh Leasing, and Finance P. Ltd. The Assessing Officer issued notice u/s, 133(6) to the above parties. In response to the same, they furnished copy of ledger account of the assessee in their books of accounts: The Assessing Officer from the ledger account of the assessee in the books of Trambak Polypack noted that amount of Rs. 55 lakh had been received on account of cancellation of agreement. In respect of the other party, M/s Fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trambak Polypack Pvt. Ltd, on account of cancellation of agreement is concerned, as mentioned in the letter dated 6.8.2012, calling for remand report from the AO, the issue regarding booking of a flat by the appellant with M/s. Trambak Polypack Pvt. Ltd and subsequent cancellation of the same was involved in AY 2002-03 also. While deciding the appeal for the said year, I have,-on the basis of details and documents produced by the appellant during the remand proceedings held that the appellant had made booking of flat No. 101 (Trambak Garden) in the project to be constructed by M/s. Trambak Polypack Pvt. Ltd and the same was subsequently cancelled vide MOU with the builder. Out of the above amount receivable by him, Rs. 1.20 crore was received and invested in the purchase of rights of allotment of Flat No. 1301 & 1302 in the same project, from Shri Saigal, and when the entire project was sold by M/s., Trambak Polypack Pvt. Ltd to Mrs. Gauri Khan and Shahrukh Khan, the said amount of Rs. 1.20 crore was received from them on behalf of M/s. Trambak Polypack Pvt. Ltd. I have, accordingly, deleted the addition of Rs. 1 .20 crore made in the Asst.Year. 2002-03. The AO in the remand report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved and deposited in banks copies are not taken or maintained, however, from the statement of the bank account, it can be seen that Rs,75 lakh was received during the year. 7.2.2 In the appellate order in AY 2003-04, in the case of the appellant, on the basis of evidence produced during the course of remand proceedings and statement of Shri Raj Basantani recorded on oath u/s.131 of the Act, I have confirmed the creditworthiness of Raj Basantani. In view of the decision given in the " said appellate order and, also, the fact that the appellant had to receive Rs. 75 fakh from the above company, as reflected in its balance sheet, I hold that the' amount received during the year is return of above amount of loan. I, accordingly, delete the addition of Rs. 75 lakh and allow the ground of appeal No.2.03 and 2.04 on this issue. 31. Against the above order, the assessee is in appeal before us. 32. We have heard both the counsel and perused the record. The ld. Counsel of the assessee in his submissions reiterated the sequence of events as submitted above and referred to his letters in this regard filed before the Assessing Officer and the ld. Commissioner of Income Tax (Appeals). Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
