TMI Blog2021 (9) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... m the A.O. affirmed the fact that the booking advances received by the assessee have been duly refunded which fact has also been accepted by the prospective buyers - HELD THAT:- AO has not made any attempt to rebut the claim of the assessee. The confirmations were filed by the assessee to support the factual position. The assessee has placed the facts which are apparent in nature for which no rebuttal has been done. The Hon ble Gujarat High Court in the case of CIT vs. Ayachi Chandrasekhar Narsangji, [ 2013 (12) TMI 372 - GUJARAT HIGH COURT] , CIT s. Mahavir Crimpers, [ 2018 (6) TMI 1058 - GUJARAT HIGH COURT] have held that when the Department has accepted the factum of repayment, the additions under section 68 is not sustainable in law. Similar view has been expressed in CIT vs. Karaj Singh [ 2011 (3) TMI 951 - PUNJAB AND HARYANA HIGH COURT] Panna Devi Chowdhary vs. CIT,[ 1994 (3) TMI 80 - BOMBAY HIGH COURT] Overwhelming fact of refund of booking advances which transcends all other considerations coupled with the confirmations from prospective buyers, the CIT(A), in our view, has rightly concluded the issue in favour of the assessee. The view of the CIT(A) is based on soun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that he accepts this amount as his income and will offer the same in his return of income and pay taxes thereon. As per computation of income for AY 2012-13, he has offered total income of ₹ 5,11,20,344/- which included ₹ 4.9 crores out of ₹ 12.65 crores as his income from other sources. Balance ₹ 7.75 crores was offered in the AY 2011-12. In the AY 2012-13 under consideration, the AO disbelieved this fact saying that the money was shown in the name of other persons, than Shri Singhania. It may be noted that the amount of ₹ 7.75 crores and ₹ 4.9 crores has been accepted in the hands of Shri Singhania in the AYs 2011-12 and 2012-13. Further, in case of the assessee company itself, no adverse view has been taken by the AO in the assessment year 2011-12. It may be noted that in his statement during the survey proceedings Shri Sighania has explained the fact of introducing this money in the assessee company as capital through some other companies and no further investigation was carried out by the AO to establish that this statement was not true. Therefore, once this fact has been accepted in the case of the Director, the same fact cannot be que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n confirmations. The cancellation letter given by the appellant to the parties were all similar. As per agreement in clause-7 the advances were to be forfeited if further payments were not made in due time. In the rejoinder to the AOs comments, the appellant stated that after its reply dated 08.07.2014 the AO did not take any action for 7 months and then called for account copies which was furnished well in advance on 31.12.2014. The confirmation was in addition to the account copies and if it was furnished on 26.03.2015, merely due to this reason the payment of refund should not have been doubted. Regarding the clause-7, it was explained that this clause is applicable in case of confirmed booking when further payments are not made. In the present case bookings were cancelled due to which the booking amount was to returned. From the above flow of incidence, I find that the amount of refund of booking advances is duly appearing in cash book and the facts have been accepted by respective persons. Once account copies were furnished the AO did not make any further inquiry. Thereafter when confirmations were also filed it was for the Department to either accept the same or cause an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rores in the A.Y. 2012-13 in his own individual capacity and in his own personal return. He eventually honoured his commitment and deposited the tax accordingly. The amounts so offered in the survey proceedings were also included in the personal Income Tax return for the respective A.Ys. and thus accepted to have invested the aforesaid sum in the assessee Company during the respective financial years. The case of Shri Singhania was subjected to scrutiny assessment in A.Y. 2011-12 and 2012-3 under section 143(3) of the Act wherein the said income was assessed as his income. 9. While finalising the assessment of the Assessee Company herein, the A.O. concluded that the offer of ₹ 4.90 Crores made by the promoter Shri Singhania does not relate to the share capital credited by the assessee Company. He has thus invoked section 68 of the Act and alleged the share capital received by the assessee Company as unexplained. 10. In this regard, the assessee contends that the sum of ₹ 4.90 Crores offered for taxation by the Managing Director has a direct nexus with the receipt of share capital by the assessee Company. The Learned Counsel for the assessee adverted our attention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. Secondly, the assessment of the assessee Company for A.Y. 2011-12 has remained undisturbed where similar subscription of ₹ 7.75 Crores has been obtained and declared by Shri Singhania. The source of share capital thus clearly stand proved on account of disclosure by Singhania. Hence, the A.O. was patently unjustified in making separate additions in the hands of the assessee Company for the same very disclosure. The reasoning of the CIT(A) for reversal of the action of the A.O. is on sound rationale. We see no reason to interfere therewith. 13. In the result, Ground no.1 of the revenue s appeal towards unexplained cash credit under section 68 of the Act is dismissed. 14. As noted earlier, the Ground no.2 concerns addition of ₹ 57.95 Lakhs made by the A.O. on account of unexplained cash credit on account of trade advance under section 68 of the Act. In this regard, the CIT(A) after obtaining the remand report from the A.O. affirmed the fact that the booking advances received by the assessee have been duly refunded which fact has also been accepted by the prospective buyers. The A.O. has not made any attempt to rebut the claim of the assessee. The confirmation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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