TMI Blog2023 (9) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... ands of the assessee and accordingly held the short term capital gains earned thereon as being the income of the assessee. The claim of the ld. counsel for the assessee that the land was purchased by the assessee, as director of the company, clearly falls flat. AO and the ld. CIT(A), we find, have clearly mentioned that the land was purchased in the individual name of the assessee, and not as director of the company. Funds for the purpose of the land was also not found to be contributed by the company. The land having neither been purchased in the name of the company nor paid for by the company there is no case for treating the land as belonging to the company. Decided against assessee. Addition u/s. 68 - cash found in the bank account, source of which remained unexplained - HELD THAT:- As counsel though was unable to meet the adverse findings of the Ld. CIT(A), albeit relating to one bank account but at the same time the contention of assessee that the CIT(A) did not consider the other bank account of the assessee is also true. What emerges therefore is that the issue has not been considered in the complete perspective and needs to be considered afresh by CIT(A). We th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firmed the finding of the AO. 7. Before us, the ld. counsel for the assessee emphasised and reiterated that the transaction of purchase and sale of land related to the company and not the assessee. His contention was that the assessee had purchased the land on behalf of the company, and therefore, the capital gain was to be assessed in the hands of the company. In this regard he placed reliance on the decision of ITAT, Jaipur Bench in the case of ACIT Vs. Atma Ram Gupta (Individual), ITA No. 695/JP/2012 dated 31.12.2014 wherein he pointed out that the ITAT had held that where agriculture land was purchased on behalf of the company i.e. in the name of the director, and was shown in the balance sheet of the company, and the property was also sold through the director of the company, the short term capital gain was to be assessed in the hands of the assessee. He pointed out that this decision of the ITAT had been confirmed by the Hon ble Rajasthan High Court in ITA No. 70 of 2015 dated 11.7.2016. Copies of both the order were placed before us. 8. The ld. DR, on the other hand, relied on the order of the ld. CIT(A). 9. We have heard both parties; carefully gone through ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ld. CIT(A) perused the books of accounts of KIDPL and found that no funds were contributed by the said company for the purchase of land and in fact it was recorded in the books of the assessee-company by way of journal entry. He noted that the funds were contributed by the assessee, in whose name the company had reflected the same as loans, and thereafter, they were converted into share capital. His finding in this regard at para 4.6 of his order are as under: 4.6 The appellant claimed that as per sale deed the consideration was paid by the company and property was purchased in the name of the director. It is seen from the bank statement; copy of loan account of the company and copy of account of the director Shri Keyur Jitendra Patel and Shri Kiran Ravjihai Patel that the payment was made through JV entry and the company did not have any resources to make the above payment. The fund is contributed by the appellant and the company has converted the advance/ loans in to share capital. Thus the land was not purchased out of the funds of the Kunj Infra development Pvt. Ltd. and just to manage the transaction later it was shown by way of general entry in the name of the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oticed from the bank account that huge cash, DD and cheques were deposited in the above bank account of the company though there was no income during that period therefore it is duty of the appellant to justify the sources of the fund invested. However the appellant has merely filed the bank statement but not filed the details of the deposits in the bank account of the company. Thus, the contention of the appellant that payment was made out of the sources of the company is factually wrong hence not tenable. The onus of proving the sources of funds for investment was on the appellant and as seen from the record it miserably failed to do so. The ld. counsel for the assessee was unable to controvert the above factual finding of the ld. CIT(A). 13. The ld. CIT(A) also found, as a matter of fact that the assessee had entered into development agreement with the company on 15.6.2009. His findings in this regard are that at para 4.7 are as under: 4.7 It is also observed that the appellant in the capacity of the owner of the property also entered into a development agreement with the company Kunj Infra development Pvt. Ltd. vide agreement dated 15-6-2009 and assigned the speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty as Short Term Capital Gain is upheld. The addition of Rs. 6,57,83,900/- on account of short-term capital gains is confirmed. This ground of appeal is dismissed. 15. In a nutshell the concurrent finding of facts, both by the AO and the ld. CIT(A) which have remained uncontroverted before us, are that the impugned land was purchased in the individual name of the assessee out of sources which are not attributable to the company viz. KIDPL ,to which the assessee relates the transaction pertained to;that the assessee had entered into agreement with the KIDPL for development of the said land, and the sale proceeds from sale of the land was also received by the assessee. 16. In view of the same we see no reason to interfere in the order of the Ld. CIT(A) who has correctly appreciated the facts of the case, found the transaction of purchase and sale of land completed in the hands of the assessee and accordingly held the short term capital gains earned thereon as being the income of the assessee. The claim of the ld. counsel for the assessee that the land was purchased by the assessee, as director of the company, clearly falls flat. The AO and the ld. CIT(A), we find, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee on account of cash found in the bank account, source of which remained unexplained. 22. The facts relating to the case are that during assessment proceedings, the AO noticed cash of Rs. 11,79,000- deposited in the IDBI Bank account of the assessee, while in the Gujarat Mercantile Co-op Bank Ltd., cash of Rs. 39,82,500/- was found deposited. In the absence of any explanation of the source of the same being furnished by the assessee, the entire cash of Rs. 51,61,500/- was added to the income under section 68 of the Act as unexplained credits. 23. Before the ld. CIT(A), the assessee pleaded that the deposits were made out of previous withdrawals from the bank, and therefore peak should be adopted and not the entire deposits. Accordingly, the assessee claimed peak deposits of Rs. 2,95,000/-. The ld. CIT(A) however rejected this contention of the assessee, noting the fact from the bank accounts that there were specific withdrawal from the bank account immediately after cash deposited in the bank account of equal amount. He also noted that the cash withdrawals were mostly by Shri Prakash Mahida and not the assessee, and there was no details or evidences of the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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