TMI Blog2022 (8) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... July, 2022 nor adjournment application was filed. The assessee has not submitted any explanation/ evidences to satisfy the mandate of Section 68 - Even, statement of fact has not been filed before the tribunal, although it is stated to have been filed in Form No. 36. - The onus u/s 68 was on the assessee as the said sum stood credited in its books of accounts, which the assessee failed to discharge. Thus, we find no merit in the appeal filed by the assessee, which stand dismissed - ITA No.63/Alld./2020 - - - Dated:- 3-8-2022 - Shri Vijay Pal Rao, Judicial Member And Shri Ramit Kochar, Accountant Member For the Appellant : None For the Respondent : Shri A.K. Singh, Sr.D.R. O R D E R PER SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER: This appeal, filed by assessee, being ITA No.63/Alld./2020 for assessment year 2001-02, is directed against an appellate order dated 06.08.2019 in Appeal No. CIT(A), Allahabad/10004/2006-07 passed by learned Commissioner of Income Tax (Appeals), Allahabad (hereinafter called the CIT(A) ),for assessment year(ay):2001-02 in third round of litigation, the appellate proceedings had arisen before learned CIT(A) from the appellate ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench on as many as nine times on earlier occasions, and on all the nine occasions, the assessee sought adjournment and the Bench was pleased to grant adjournment on request of the assessee. But, when this appeal came up for hearing before Division Bench on 12th July, 2022, none appeared on behalf of the assessee nor any adjournment application was filed. The Bench keeping in view that this is the third round of litigation before the tribunal and is a protracted litigation as the matter pertains to ay:2001-02, and also that on as many as on nine occasions earlier when this appeal was listed before the Division Bench, the assessee sought adjournments which was granted by the Division Bench, while on 12th July, 2022 when this appeal came up for hearing before DB, none appeared on behalf of the assessee nor any adjournment application was filed, DB decided to proceed with the adjudication of the appeal on merits, after hearing Learned Sr. DR and pursuing the material on record.Thus, this matter was heard on 12th July, 2022 and orders were kept reserved. While studying the appeal file on 12th July, 2022 itself, it was observed that the appeal fee was short paid by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate order dated 07th October, 2005 in ITA no. 481/Alld/2004 was pleased to restore the matter back to the file of AO for verification and restrict the addition to the amount of unexplained fresh deposits raised during the impugned assessment year by the assessee and delete the additions w.r.t. to deposits raised in earlier year. The AO in second round of litigation was pleased to confirm the additions of Rs. 6,02,264/- towards difference in deposits being advance for land as is shown in assessee s Balance Sheet and the deposits being advance for land as per statement submitted by the assessee, vide orders dated 27.11.2006 passed u/s 143(3) read with Section 254 of the 1961 Act. The matter again travelled to ld. CIT(A) at the behest of the assessee in second round of litigation, who was pleased to delete the addition of Rs. 6,02,264/- as was made by the AO in its order dated 27.11.2006, but ld. CIT(A) was pleased to enhance the additions to the tune of Rs. 64,62,054/- towards fresh deposits raised by the assessee by invoking provisions of Section 68 of the 1961 Act, vide appellate order dated 03.06.2008 in IT Appeal No. 128/ACIT/RI/ Alld/06-07 by holding as under : 2.3 The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant has replied that: That the nature of activity as stated above is such that there was no question of barrowings by the Society but the members of the Society who booked flats/plots are bound to deposit regular instalments as per the bye-laws of the Society. The appellant never compelled any member to deposit the amount but the Society has got full power that if the members making payment of regular installment defaults, the Society can forfeit their old deposits and will be free to allot flat/plot to any other member meaning thereby the instilments received by the society is against their booking of flat/plot. The entire purpose behind that the members of the Society are middle class ground and most of them are salaried employees or doing some small activities and they are helpless in depositing/purchasing the plot/flat by making one-time payment, therefore, the matter requires consideration on these angles prior to taking any adverse view. Sir, the Society as stated above came into existence in the year 1992 and the year under consideration is the assessment year 2001-02. Thus regarding the regular deposits by the members upto 31.03.2000 there is no dispute and the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit in the submission given by the appellant.In fact the observation of the AO that the fresh deposits cannot be taxed u/s 68 is completely wrong as the Hon ble ITAT has given a clear cut direction that deposits/instalments made by respective members of the Society during the current year has to be investigated and the deposits pertaining to the current year has to be taxed. Thus the contention of the AO that the addition which was made by the preceding AO is not maintainable is based totally on wrong premises and is contradictory to the directions given by the Hon ble ITAT in its order. In fact in its submission the appellant had nothing new to add except saying that the AO was perfectly justified in not adding a sum of Rs. 64,62,054/-. In fact in its entire submission the assessee has not been able to contradict the finding of the AO that the fresh deposit during the financial year 2000-01 is to the tune of Rs. 64,62,054/- and once the AO has reached this conclusion she had no option but to add this to the income of the assessee as per the directions of the Hon ble ITAT. Thus the contention of the appellant is hereby rejected and addition of Rs. 64,62,054/- is hereby made to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s), Allahabad vide his order dated 20.09.2004 in appeal No. 23/DCIT/R-II/2004-05 confirmed the above additions. The assessee preferred an appeal against the order of Ld. CIT(A), Allahabad in the above noted case. Hon ble ITAT, Allahabad vide its order dated 7.10.2005 in ITA No. 481(Alld)/2004 has allowed relief to the assessee. The orders of the then A.O. making additions of Rs. 1,67,51,761/- this(sic u/s) 68 of the I.T. Act, 1961 has been set aside with the directions that in case the amount of Rs. 1,67,51,761/- is found to be relating to old balances and not the current deposit of the assessment year under consideration, then no addition shall he made under section 68 of the IT. Act, 1961. However, AO noted that total credit shown as advance for land as shown in the balance sheet as on 31.3.2001 is Rs. 5,32,53,534/- however as per above details total comes to Rs. 5,38,55,799/- AO added the difference of Rs. 6,02,265/- (Rs. 5,38,35,799/- - Rs. 5,32,53,535) as unexplained credit u/s 68 of the I.T. Act, 1961. Appellant filed this appeal. Vide order dated 03.06.2008, Appeal No. 128/ACITR- 1/Alld/06-07 the Ld. CIT(A) enhanced the income by making an addition of Rs. 64,62,054/- under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 64,62,054/- were made during the Financial year 2000-01 and the directions of the Hon ble ITAT to the AO are unambiguous that such an amount should be added to the income of the appellant. The Hon ble ITT in its order dated 7th October, 2005 in ITA N. 481(Alld)/ 2004 in pars 21 has observed that: in view of the above, the submission of the assessee that the amount of Rs. 1,67,51,761/- represents the deposits/installments made by respective members of the society prior to assessment year under consideration and these being old deposits, no addition can be made under Section 68 of the I.T. Act, 1961 is found to be acceptable. However, this version can be accepted only on verification. It may be pointed out that neither the AO nor the Ld. CIT(A) had examined the issue from this angel. Hence, we set aside the finding of the Ld. CIT(A) and allow the claim of the assessee subject to verification of the same by the AO In case the amount of Rs. 1,67,51,761/- is found to be relating to the old balance and not the current deposits of the assessment year under consideration, then no addition shall be made under Section 68 of the I.T. Act and the addition made shall stand deleted. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers as is reflected in the Balance Sheet and the statement of deposits raised by assessee from members filed by the assessee during assessment proceedings, stood deleted by ld. CIT(A) in second round of litigation and hence this has attained finality. So far as fresh deposits being advance for land from members to the tune of Rs. 64,62,054/- raised by assessee from members during the year under consideration, are in the form of cash credits which are recorded in assessee s books of accounts, and the onus is on the assessee to explain identity and creditworthiness of the creditor and genuineness of the transaction. The assessee has not not submitted any evidences/explanation to discharge its onus u/s 68 of the 1961 Act even before us. The assessee did not entered appearance before ld. CIT(A) in third round of litigation and also chose not to appear before us when this appeal was fixed for hearing on 12th July, 2022 as well on 22nd July, 2022 nor adjournment application was filed. The assessee has not submitted any explanation/ evidences to satisfy the mandate of Section 68 of the 1961 Act. Even, statement of fact has not been filed before the tribunal, although it is stated to hav ..... 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