2014 (11) TMI 848 - AT - Income Tax

Unexplained cash credits u/s 68 Addition outside the scope of section 153A or not Admission of additional evidences Held that - The assessee-firm had already filed its Return of Income, long before the date of search i.e., on 15.12.2009 - no incriminating material was found during search was found relating to these loans - on the additional evidence produced under Rule 46A, the CIT(A) has chosen to call the report of the A.O and this action of him amounts to acceptance of these evidence when no incriminating evidence regarding these cash creditors unsecured loan were found during search in addition to what had been already disclosed - the addition is not justified and is set aside Decided in favour of assessee. Advances received towards sale of plot Held that - No incriminating evidence was found during search regarding these advances - These have already been shown in the original return of income - The assessee produced proof to prove these advances - The AO has sent his remand report after verifying them - the assessee had received advances against sale of property which were adjusted against sale made subsequently - this receipt cannot partake the character of income the claim of the assessee is quite justified Decided in favour of assessee. Addition out of expenses on the basis of original assessment sustained u/s 40(i)(a) Held that - Total addition of ₹ 10,86,632/- was made in the assessment order passed u/s 143(3) of the Act - This addition included a sum of ₹ 8,86,880/- made u/s 40(i)(a) and of ₹ 38,050/- made on account of various expenses the addition has been confirmed by the CIT(A) as well as Appellate Tribunal and the appeal of the assessee is stated to be pending before the Hon ble Jurisdictional High Court thus, there is no reason to interfere in the order Decided against assessee. Addition made u/s 40A(3) deleted - purchase of agricultural land Land stock in trade or not Held that - Following the decision in Smt. Jiya Devi Sharma Versus The ACIT, Central Circle 2, Jodhpur 2014 (11) TMI 835 - ITAT JODHPUR - in the case of the payment to agriculturists were made under circumstances which are excluded under the provisions of Rules - The agricultural land cannot be converted to stock in trade until permission is obtained and the provisions of section 40A(3) of the Act cannot be invoked in this case according to the prevailing law - Principles of section 40A(3) of the Act cannot be invoked in respect of agricultural land thus, the order of the CIT(A) is upheld Decided against revenue.

Issues Involved:
1. Addition under Section 68 for cash credits.
2. Addition under Section 68 for advances received towards sale of plots.
3. Disallowance of interest payment.
4. Charging of interest under Sections 234B and 234C.
5. Telescoping effect of income.
6. Disallowance under Section 40(a)(ia) and Section 40A(3).
7. Disallowance of expenses.
8. Unexplained investment under Section 69.
9. Protective addition based on valuation report.

Issue-wise Analysis:

1. Addition under Section 68 for Cash Credits:
The assessee firm had shown unsecured loans totaling Rs. 24,92,130/- from various persons. The Assessing Officer (AO) demanded proof of these loans under Section 68 of the Income Tax Act, failing which the AO added the amount as unexplained cash credits. The assessee argued that these loans were disclosed in the original return filed before the search, and no incriminating evidence was found during the search. The CIT(A) rejected the additional evidence submitted by the assessee. The Tribunal found that the assessee had disclosed these loans in its original return and no incriminating evidence was found during the search. The Tribunal held that the addition was not justified and ordered its deletion.

2. Addition under Section 68 for Advances Received Towards Sale of Plots:
The assessee had shown advances totaling Rs. 13,36,500/- received for the sale of plots. The AO made an addition of this amount as unexplained cash credits. The CIT(A) called for a remand report but did not accept the additional evidence. The Tribunal found that these advances were already shown in the original return and no incriminating evidence was found during the search. The Tribunal held that the advances were justified and ordered the deletion of the addition.

3. Disallowance of Interest Payment:
The AO disallowed interest payments claimed by the assessee on the grounds that the loans were not genuine. Since the Tribunal accepted the loans as genuine, the disallowance of interest payments was also deleted.

4. Charging of Interest Under Sections 234B and 234C:
The Tribunal held that the charging of interest under Sections 234B and 234C is mandatory and allowed only consequential relief.

5. Telescoping Effect of Income:
The assessee argued for the telescoping effect of income already surrendered in various years. The Tribunal found this ground to be of academic interest as no addition was sustained, and hence, dismissed it.

6. Disallowance Under Section 40(a)(ia) and Section 40A(3):
The AO made disallowances under Section 40(a)(ia) for non-deduction of TDS and under Section 40A(3) for cash payments exceeding the permissible limit. The Tribunal upheld the disallowance under Section 40(a)(ia) as the issue was pending before the High Court. However, the Tribunal deleted the disallowance under Section 40A(3) for payments made for the purchase of agricultural land, following the precedent set in the group case of Smt. Jiya Devi Sharma.

7. Disallowance of Expenses:
The AO made ad-hoc disallowances of 50% of land development and shop construction expenses for lack of verification. The Tribunal deleted these disallowances, following the precedent set in the group case of Smt. Jiya Devi Sharma.

8. Unexplained Investment Under Section 69:
The AO added Rs. 32,00,200/- as unexplained investment in the purchase of a plot of land. The CIT(A) deleted this addition, following the Tribunal's decision in the group case of Shri M.D. Sharma. The Tribunal upheld the CIT(A)'s decision, noting that the facts were identical to the group case.

9. Protective Addition Based on Valuation Report:
The AO made a protective addition of Rs. 9,51,465/- based on the difference in the cost of construction estimated by the Valuation Officer. The CIT(A) deleted this addition, following the Tribunal's decision in the group case of Shri M.D. Sharma. The Tribunal upheld the CIT(A)'s decision, noting that the facts were identical to the group case.

Conclusion:
The Tribunal partly allowed the appeals of the assessee and dismissed the appeals of the revenue, following the precedents set in the group cases and considering the facts and circumstances of each issue.

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