9911796707
TMI Blog2023 (3) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... r in M/s. A.R. Builders and M/s. Sai Padma Developers along with his wife Smt. M. Padmavathi and others. Subsequently a survey U/s. 133A of the Act was conducted in the assessee's case and in the case of M/s. A.R. Builders on the same date. In the statement recorded on 28/8/2010, the assessee stated that he has not filed his return of income and also stated that the money found in his possession belongs to him but could not give the details of the sources for the same. The assessee also voluntarily offered to pay the income tax on the same. The assessee also stated that no books of accounts have been maintained in respect of his business and that of the firms in which he is a partner. Subsequently a notice U/s. 142(1) of the Act was issued on 3/10/2011 and duly served on the assessee. In response, the assessee filed his return of income on 19/12/2011 admitting a total income of Rs. 6,57,000/-. Subsequently, the case was taken up for scrutiny and notices u/s. 143(2) and 142(1) of the Act were issued and served on the assessee. In response, the assessee's Authorized Representative appeared from time to time and furnished the information called for by the Ld. AO. Considering the infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee but not the firm. 4. The Ld. CIT(a) has erred in not considering the fact that as the ownership lies with the assessee himself, the sources for investment amounting to Rs. 43,59,500 has to be explained by the assessee individual. 5. The Ld. CIT (A) ought not have given relief for the assessee in respect of addition of short term capital gains of Rs. 99,00,500/- solely on the issue that the amounts have been repaid by the consideration was received by the assessee in his individual capacity as part performance of contract U/s. 2(47) of the IT Act and also when the final order of the Hon'ble High Court of Andhra Pradesh dated 3/3/2016 on the Writ Petition No. 32622/2011 filed by the petitioner assessee as regards the possession of subject properties was decided in favour of the petitioner - assessee. 6. The Ld. CIT(A) ought not have given relief in respect of unexplained cash deposits of Rs. 54,89,800/- into bank account as since the assessee failed to prove the nexus between the cash withdrawals from bank and the subject cash in absence of maintenance of books of accounts." 5. With respect to Ground No.2, the Ld. AR submitted that the assessee is a Real Estate broker earni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has shown cash balance as on 30/08/2010 at Rs. 64,62,446/- and concluded that sufficient cash balance was available with the assessee and therefore directed the Ld. AO to delete the addition made for Rs. 12 lakhs. In the statement recorded by the assessee on 28/8/2010, the assessee has clearly stated in response to Q. No. 14 that he has not taken any loan from any person and has also denied to give any detailed sources for the seized amount. The assessee also in response to Q.No. 16 has voluntarily agreed to pay income tax both in his name and in his wife's name. The Ld. AO observed in para 2.1 that after repeated opportunities provided to the Ld. AR of the assessee, the assessee filed a letter dated 5/11/2012 that the seized amount of Rs. 12 lakhs is appearing in the books of accounts. The Ld. AO found that since the assessee has not maintained any books of accounts and has accepted that he has not maintained any books of accounts at the time of interception as well as during the survey action, production of books of accounts after a period of 3 months is an afterthought of the assessee and hence the Ld. AO did not consider the books of accounts submitted by the assessee. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted the paper book page 27. The Ld. AR therefore pleaded that the order of the Ld. CIT(A) be upheld. 8. We have heard both the parties and perused the material available on record and the orders of the Ld. Revenue Authorities. We find from the sale deed copies submitted by the Ld. AR in page 51 of the paper book that the assessee has paid registration fees by way of cheque for registering the documents on 29/4/2010. Further, we find that the partnership firm M/s. AR Builders has paid a cheque of Rs. 15 lakhs for each document by way of cheque to the power holder of the vendors. The payment of cash of Rs. 15 lakhs for each for the two documents was also mentioned in the copies of the sale deed submitted before us. However, the cash book submitted by the Ld. AR could not be relied upon on the issue of receipt of advance from Mr. RP Naidu who also happened to be the power holder of the vendor. Hence, we find the cash book of the firm M/s. AR Builders could not be relied upon on the cash payments made by the firm towards purchase of the land from Mr. RP Naidu. We therefore are of the considered view that the sources for the cash of Rs. 30 lakhs paid for the purchase of the land has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue Authorities. We find from the submissions made by the Ld. AR and demonstrated before us that the assessee has repaid the amounts to M/s. MVV Builders and also to Mr. MVV Satyanarayana being the advances received from them towards sale of property and development agreement. We also find from the paper book submitted by the Ld. AR in page 96 and 97, confirmations received from M/s. MVV Builders against the payments and receipt of advances. Further, from the submissions made by the Ld. AR the Appellate Authority under Andhra Pradesh (Andhra Area) Inams (Abolition And Conversion Into Ryotwari) Act, 1956, the Revenue Divisional Officer [RDO], Visakhapatnam has directed to issue Ryotwari Patta in the name of the assessee and others vide his order dated 8/1/2018. The Ld. AO has also produced copy of Ryotwari Patta issued in the name of the assessee for the two acres of land owned by him. These additional evidences further strengthen the argument of the Ld. AR that the transfer of property has not taken place in the impugned assessment year. We therefore are of the considered view that since the "transfer" as defined U/s. 2(47) of the Act has not taken place during the impugned asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove statements, the Ld. AO has rightly rejected the arguments of the Ld. AR and has disallowed a sum of Rs. 54,89,800/-. However, the Ld. AR has demonstrated the details of cheque deposited before the Ld. CIT(A) and also before us to the extent of Rs.9,52,700/-. We therefore are of the considered view that since the details of cheque deposits are being demonstrated before us and before the Ld. CIT(A), we uphold the decision of the Ld. CIT(A) to the extent of Rs. 9,52,700/- allowed by the Ld. CIT(A) and reject the balance of Rs. 45,37,100/- which was deposited by way of cash into the bank account of the assessee. In the absence of any proper explanation with substantiated evidence by the Ld. AR, we find that these cash deposits remain unexplained and the additions made by the Ld. AO to this extent of Rs. 45,37,100/- are being upheld. Accordingly, this ground raised by the Revenue is partly allowed.
13. In the result, appeal of the Revenue is partly allowed.
14. With respect to the Cross Objection raised by the assessee it is supportive in nature and therefore the same is disposed off accordingly.
Pronounced in the open Court on then 17th March, 2023. X X X X Extracts X X X X X X X X Extracts X X X X
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