TMI Blog2020 (6) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 68 - CIT-A deleted the addition - HELD THAT:- We find that the amount received by the assessee as discussed above represents the sale consideration of the shares transferred by her to the parties aforesaid. The learned AR in support of his contention has filed the confirmation, shares transfer certificates and share purchase agreement along with the ledgers. DR has not brought anything on record contrary to the finding of the learned CIT (A). In such a situation we have no alternate except to confirm the finding of the learned CIT (A). Hence the ground of appeal raised by the Revenue is dismissed. Addition u/s 68 - CIT (A) was pleased to delete the addition made by the AO by observing that the assessee has discharged his onus by furnishing the necessary details as specified under section 68 - HELD THAT:- Admittedly the assessee has discharged its onus by furnishing the necessary details such as a copy of PAN, passport, bank details, etc. in support of identity of the parties. There is also no dispute that all the transactions were carried out through the banking channel. Therefore, we are conscious of the fact that the assessee has discharged onus regarding the genu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluded. See case of DCIT vs. JSW Limited [ 2020 (5) TMI 359 - ITAT MUMBAI ] - ITA. No: 420/AHD/2018 - - - Dated:- 1-6-2020 - Shri Rajpal Yadav, Vice President And Shri Waseem Ahmed, Accountant Member For the Appellant : Shri Virendra Ojha, CIT/DR For the Respondent : Shri M.K. Patel, A.R. ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER 1. This appeal filed by the Revenue is directed against the order of the Ld. CIT(A)-3, Ahmedabad dated 09.01.2016 pertaining to A.Y. 2011-12. 2. The Revenue has raised the following grounds of appeal: 1. that the Id. CIT(Appeal) has erred in law and on facts in deleting the addition amounting to ₹ 15,78,571/- made on account of Short term capital Gain on sale of immovable property. 2. that the Id. CIT(Appeal) has erred in law and on facts in deleting the addition amounting to ₹ 23,72,127/- made on account of Unexplained Cash Credit u/s. 68 of the Income tax Act, 1961. 3. that the Id. CIT(Appeal) has erred in law and on facts in deleting the addition amounting to ₹ 15,64,00,000/- made on account of Unexplained Cash Credit u/s. 68 of the Income tax Act, 1961. 4. that the Id. CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come of the assessee. 8. Aggrieved assessee preferred an appeal to the learned CIT (A). 9. The assessee before the learned CIT (A) submitted that the sale deed was executed on 8 November 2010 which was cancelled and filed the extract of 7/12 along with form No. 6 in support of her contention. 10. The land in dispute is the agricultural land within the meaning of section 2(14)(iii) of the Act. Accordingly, the question of charging the capital gain on the sale of such lands does not arise. 11. The AO has not collected necessary details from the landowners about the actual cost of acquisition of such lands. Accordingly the purchase consideration was assumed by the AO for ₹ 8,50,000/-which is not based on any cogent material. 12. The AO should have referred the matter to the DVO to determine the market value as he found difference in the sale price viz a viz the value determined for the purpose of Stamp duty. 13. The learned CIT (A) after considering the submission of the assessee deleted the addition made by the AO by observing as under: It is understood that the appellant raised objections to the proposal of applying Stamp Duty Valuation as much as the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such lands. 17. We also find that the learned CIT (A) has given very clear finding that the impugned lands were not transferred. The learned DR has not brought anything on record contrary to the finding of the learned CIT (A). In such a situation we have no alternate except to confirm the finding of the learned CIT (A). Hence the ground of appeal raised by the Revenue is dismissed. 18. The 2nd issue raised by the revenue is that the learned CIT (A) erred in deleting the addition made by the AO for ₹ 23,72,127/- on account of unexplained cash credit under section 68 of the Act. 19. The assessee in the year under consideration claimed to have received a loan of ₹ 23,72,127/- from Shri Gautam H. Sheth and Usha H. Sheth but failed to furnish the details such as name , complete address , PAN and the creditworthiness of these parties. Accordingly, the AO treated the same as unexplained cash credit under section 68 of the Act and added to the total income of the assessee. 20. Aggrieved assessee preferred an appeal to the learned CIT (A). 21. The assessee before the learned CIT (A) submitted that the amount received from the parties as discussed above for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Revenue in ground No. 3 is that the learned CIT (A) erred in deleting the addition made by the AO for ₹ 15,64,00,000/- on account of unexplained cash credit under section 68 of the Act. 29. The assessee in the year under consideration has made the investment in a company namely Yuva Sports Academy amounting to ₹ 15,64,00,000/- The assessee on question by the AO about the source of investment in such Academy submitted that she has received the money from various companies in which she is interested. The assessee in support of her contention filed the confirmation from the companies along with their PAN and addresses, copies of the income tax return and the bank statement. 30. However, the AO found that the companies which have made advance to the assessee did not carry out any business activity. Accordingly the AO held that the source of fund have not been explained by the assessee. Accordingly the AO treated the same as unexplained cash credit and added to the total income of the assessee. 31. Aggrieved assessee preferred an appeal to the learned CIT (A). 32. The assessee before the learned CIT (A) submitted that she has already justified the sourc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creditors, their confirmations and their bank statements which established their creditability . There are other case laws supporting the case of the appellant as under: i) Murlidhar Lahorimal Vs. CIT 280 ITR 512 (Guj.) ii) CIT Vs. Pragati Co-op. Bank Ltd. 278 ITR 170 (Guj.) iii) CIT Vs. Orissa Corporation Pvt. Ltd. 159 ITR 78 (SC) iv) CIT vs. Sanjay K. Thakkar Tax Appeal Nos.524 of 2004, 525 and 526 of 2004 and 579 to! 583 of 2003 dated 12-9-2005 (Guj. HC) I v) ITO Vs'Kailpar Credit Mercantile Pvt. Ltd. in ITA No.421/Ahd/2008 (ITAT, And.) There are other case laws supporting the case of the appellant as under: i) Murlidhar Lahorimal Vs. CIT 280 ITR 512 (Guj.) ii) CIT Vs. Pragati Co-op. Bank Ltd. 278 ITR 170 (Guj.) iii) CIT Vs. Orissa Corporation Pvt. Ltd. 159 ITR 78 (SC) iv) CIT vs. Sanjay K. Thakkar Tax Appeal Nos.524 of 2004, 525 and 526 of 2004 and 579 to! 583 of 2003 dated 12-9-2005 (Guj. HC) I v) ITO Vs Kailpar Credit Mercantile Pvt. Ltd. in ITA No.421/Ahd/2008 (ITAT, And.) I am not inclined to accept the findings of the A.O. that the creditors have not returned adequate income in their returns of incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the creditors had not been established, consequently, the question of establishment of the genuineness of the transactions or the creditworthiness of the creditors did not and could not arise. The Tribunal did not apply its mind to the facts of this particular case and proceeded on the footing that since the transactions were through the bank account, it was to be presumed that the transactions were genuine. It was not for the ITO to find out by making investigation from the bank accounts unless the assessee proved the identity of the creditors and their creditworthiness. Mere payment by account payee cheque was not sacrosanct nor could it make a non-genuine transaction genuine. 39. Admittedly the assessee has discharged its onus by furnishing the necessary details such as a copy of PAN, passport, bank details, etc. in support of identity of the parties. There is also no dispute that all the transactions were carried out through the banking channel. Therefore, we are conscious of the fact that the assessee has discharged onus regarding the genuineness of the transactions. In this regard, we find support and guidance from the judgment of Hon ble High court of Bombay in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43. Similarly, we also note that the assessee in respect of all the parties as discussed above has furnished the sufficient documentary pieces of evidence including the details of the income of the parties which has been elaborated in the preceding paragraph. Therefore in our considered view, the assessee has discharged its onus imposed under section 68 of the Act. 44. The assessee in the present case has duly explained the source of money received in her hands. The assessee is not answerable to justify the source of the source of the money received by it. In this connection, we place our reliance on the judgment of Hon ble Gujarat High Court in the case of DCIT Vs. Rohini builders reported in 256 ITR 360 wherein it was held as under: It has also proved the capacity of the creditors by showing that the amounts were received by the assessee by account payee cheques drawn from bank accounts of the creditors and the assessee is not expected to prove the genuineness of the cash deposited in the bank accounts of those creditors because under law the assessee can be asked to prove the source of the credits in its books of account but not the source of the source as held by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .73.075/- Accepted u/s. 143(1) 2010-11 12.30.687/- Accepted u/s. 143(3). , 2011-12 25, 70, 000/- Treated as unexplained u/s. 143(3) and appeal is pending. 2012-13 31.65.000/- Accepted u/s.143(1) 2013-14 28.95,6547- 143(3) under consideration 52. We also find that the assessee has furnished the affidavit of Shri Vinod Rambhau Patil which is placed on pages 110 to 112 of the paper book wherein it was admitted that he was carrying out the agricultural activity on the lands belonging to the assessee. However, the AO has not verified the same during the assessment proceedings. 53. We are also conscious to the fact that the onus lies on the assessee to furnish the documentary evidence such as sales bills of the agriculture produce but he failed to do so. However in the present facts of the case we note that the assessee has been showing the agriculture income consistently which have been accepted by the revenue. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the country. On 24th March, 2020, Hon ble Prime Minister of India took the bold step of imposing a nationwide lockdown, for 21 days, to prevent the spread of Covid 19 epidemic, and this lockdown was extended from time to time. As a matter of fact, even before this formal nationwide lockdown, the functioning of the Income Tax Appellate Tribunal at Mumbai was severely restricted on account of lockdown by the Maharashtra Government, and on account of strict enforcement of health advisories with a view of checking spread of Covid 19. The epidemic situation in Mumbai being grave, there was not much of a relaxation in subsequent lockdowns also. In any case, there was unprecedented disruption of judicial wok all over the country. As a matter of fact, it has been such an unprecedented situation, causing disruption in the functioning of judicial machinery, that Hon ble Supreme Court of India, in an unprecedented order in the history of India and vide order dated 6.5.2020 read with order dated 23.3.2020, extended the limitation to exclude not only this lockdown period but also a few more days prior to, and after, the lockdown by observing that In case the limitation has expired after 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c approach at a time when a disaster, notified under the Disaster Management Act 2005, is causing unprecedented disruption in the functioning of our justice delivery system. Undoubtedly, in the case of Otters Club Vs DIT [(2017) 392 ITR 244 (Bom)], Hon ble Bombay High Court did not approve an order being passed by the Tribunal beyond a period of 90 days, but then in the present situation Hon ble Bombay High Court itself has, vide judgment dated 15th April 2020, held that directed while calculating the time for disposal of matters made time-bound by this Court, the period for which the order dated 26th March 2020 continues to operate shall be added and time shall stand extended accordingly . The extraordinary steps taken suo motu by Hon ble jurisdictional High Court and Hon ble Supreme Court also indicate that this period of lockdown cannot be treated as an ordinary period during which the normal time limits are to remain in force. In our considered view, even without the words ordinarily , in the light of the above analysis of the legal position, the period during which lockout was in force is to excluded for the purpose of time limits set out in rule 34(5) of the Appellate Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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