9911796707
TMI Blog2015 (6) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... in the light of multi-faceted arguments advanced. None of these facts are coming out from the assessment order and in the absence of the correctness of the finding available on record being established, we are of the view that blindly relying upon the order of the CIT(A) in the case of the issue being covered by the decision of the ITAT in the case of Vansidhar Projects (a sister concern) would not be appropriate. The facts therein would have been to be looked into by the ITAT. Accordingly in view of the above, we are of the view that in the peculiar facts and circumstances, the issue needs to be restored to the file of the AO. - Decided in favour of revenue for statistical purposes. Undisclosed income - CIT(A) deleted addition - Held that:- Perusal of the explanation filed by the assessee before the AO in the assessment order demonstrates that the assessee submitted that the assessee as per record had withdrawn ₹ 1.15 crores and it is out of this ₹ 86.90 lacs were transferred to the Oriental Bank of Commerce Bank at Mathura. A perusal of the impugned order shows that the assessee’s claim was that infact total cash withdrawn from the banks was ₹ 1,97,00,000/- a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. 4. The appellant craves leave to add, alter or amend any/all of the grounds of appeal before or during the course of the hearing of the appeal. 2. The relevant facts of the case are that the assessee company is a group company of Suncity Group of companies dealing with development of real estate projects in various parts of India. The group is stated to be involved in conceiving and executing real estate projects such as Township, Group housing, Luxury Apartments, Shopping Malls and Office Complexes. 3. A perusal of the record shows that return disclosing net loss of ₹ 1,20,760/- was originally filed by the assessee. Subsequently notice u/s 153A was issued to the assessee pursuant to search u/s 132 conducted on the assessee on 25/9/2008 . In response thereto, the assessee again filed the return on 2/6/2010 declaring a loss of ₹ 1,20,716/-. The record shows that the AO considering the seized materials in regard to the purchase of land at Mathura for the development of Real Estate Project observed that cash payment exceeding ₹ 20,000/- totaling to ₹ 75,21,500/- had been made. Accordingly 20% of the said payment was disallowed u/s 40A(3) resultin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) considering the explanation accepted the claim that disallowance if any, could have been restricted only to 14,54,100/- i.e 20% of ₹ 72,70,500/- and not ₹ 75,21,500/-. Further relying upon the order dated 7/12/2007 in ITA 1973/Del/2012 in the case of Vansidhar Projects, he held that the provisions of Section 40A(3) in the peculiar facts would not apply. 6. Aggrieved by this, the Revenue is in appeal before the Tribunal. 7. The Ld. CIT DR relying upon the assessment order submitted that the facts taken into consideration by the CIT(A) have not been confronted to the Assessing Officer. The authorized representative of the assessee, on the other hand, submitted that the issue is fully covered by the order of the Tribunal in the case of Vansidhar Projects and facts are identical. It was further submitted that the inaccuracies in holding that payment in excess of ₹ 20,000/- totaling ₹ 72,70,500/- instead of ₹ 75,21,500/- have been brought out in the impugned order and have not been rebutted by the Revenue. It was also submitted by him that on facts the CIT(A) has been very fair as he has held in para 6.3 that as and when the claim of expenditure wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue needs to be restored to the file of the AO. The impugned order is set aside and it is restored back to the file of the AO to decide the same afresh by way of a speaking order in accordance with law. Needless to say that the assessee shall be afforded a reasonable opportunity of being heard. Accordingly, Ground No.-1 of the Revenue is allowed for statistical purposes. 9. The second issue agitated by the Revenue in the present appeal is found to be addressed in para 5 of the assessment order. A perusal of the same shows that the Assessing Officer referring to the seized material Annexure A-1 party SCE Pages 15-18 observed that there were certain cash deposits in assessee s bank accounts maintained with Oriental Bank of Commerce. The explanation of the assessee that these were from withdrawals made from their HDFC Bank Account was not accepted by the AO, on the ground that no proof had been led by the assessee to show that the amount were not utilized elsewhere. Further in view of the fact that no cash flow statement was filed in support of the claim made, the explanation offered was rejected and addition of ₹ 56,22,088/- was made. 10. Aggrieved by this the assessee we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was his submission that the CIT(A) in fact has proceeded as though the Assessing Officer does not exist and the CIT(A) does not need to deal with the findings recorded in the assessment order. The issue it was submitted needs to be set aside and the addition may be upheld. 13. The Ld.AR on the other hand, relying upon the impugned order submitted that the facts demonstrate that the assessee at the relevant point of time effected the withdrawals in one bank account and made deposits in the other as per the needs. The dates were claimed to be reasonably close and the arguments that they were utilized for the purchases made at Mathura is consistently on record. Accordingly relying on the same, it was his submission that ht impugned order deserves to be upheld. 14. We have heard the rival submissions and perused the material available on record. A perusal of the explanation filed by the assessee before the AO as per para 5.1 extracted in the assessment order demonstrates that the assessee submitted that the assessee as per record had withdrawn ₹ 1.15 crores and it is out of this ₹ 86.90 lacs were transferred to the Oriental Bank of Commerce Bank at Mathura. A perus ..... 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