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TMI Blog2016 (11) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... own funds and loan funds, then the presumption is that the interest free advances have been made out of own funds.Advances were made for business purposes. We set aside the findings of the ld. CIT(A) and direct the A.O. to delete the addition Unexplained cash credits addition - Held that:- If the transaction is done by account payee cheque then the identity of the payer goes into oblivion because the money has flown from one identified bank account to another identified bank account. We also find that wherever it was possible PAN details were made available to the A.O. No effort to verify from the allottees of the flats by making any physical verification thereof. In our considered opinion, the assessee has successfully established the identities. The transaction is done by account payee cheque. Further the identities of the allottees are supported by municipal tax bills of AMC and electricity bills. Considering these facts in totality, we do not find any reason for making the impugned addition. We, accordingly, set aside the findings of the ld. CIT(A) and direct the A.O. to delete the addition Assessee appeal allowed - ITA. No. 852/AHD/2012 - - - Dated:- 18-10-2016 - Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been made for admitting additional evidences. We in the interest of justice admit the details and require the Assessing Officer to verify them. The additional' details furnished by the assessee are confirmation from respective members, copy of account, details of PAN, evidence from society such as allotment letter, certificate, NOC for loan, possession letter, share certificate, name of the member in the list of govt. audit report, resolution for admission of the member, share contribution, in the case of transfer, application of transfer/unit, copy of the bill, proof of death, copy of will, date entered in the transfer register of the society municipal tax bill, electricity bill etc. The assessee will submit copies of the paper books to the Assessing Officer along with this full chart containing 24 columns and information about all the 77 members/depositors. The Assessing Officer will examine them, if necessary carry out further enquiry including summoning original person depositing the money with the society, whether such deposits are declared in the IT returns, whether transfer of money to the society/assessee is through banking channels. If identity of the depositor is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the say of the ld. counsel that while completing the assessment, the A.O. had made two additions which were not there in the first assessment order. Therefore, the assessment order to this extent is not as per the directions of the Tribunal and these two additions deserve to be deleted. Per contra, the ld. D.R. stated that since the directions of the Tribunal were to decide the issues afresh. Therefore, the A.O. was free to make other additions also. 8. We have given a thoughtful consideration to the submissions made by the representatives of both sides qua the first grievance mentioned elsewhere. We have mentioned hereinabove, the additions made in the first assessment order which litigation travelled up to the Tribunal. We have also mentioned the specific findings of the Tribunal qua the issue emanated from the first assessment order. A perusal of the directions of Tribunal (supra) clearly shows that the Tribunal had set aside the issue relating to the addition of ₹ 2,61,08,186/- out of which the ld. CIT(A) had confirmed the addition of ₹ 1,49,71,718/-. The A.O. has gone beyond the directions of the Tribunal and has made fresh additions. 2.4 Binding Nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while roundly condemning the respondent for refusing to carry out the directions of the superior Tribunal, yet held that no manifest injustice resulted from such refusal. (b) It must be remembered that the order of the Tribunal dated April 22, 1954, was not under challenge before the Judicial Commissioner. That order had become final and binding on the parties, and the respondent could not question it in any way. As a matter of fact the Commissioner of Income-tax had made an application for a reference, which application was subsequently withdrawn. The Judicial Commissioner was not sitting in appeal over the Tribunal and we do not think that, in the circumstances of this case, it was open to him to say that the order of the Tribunal was wrong and, therefore there was no injustice in disregarding that order. As we have said earlier such a view is destructive of one of the basic principles of the administration of justice. 9. Considering the facts in totality, as stood at the time of original assessment stage qua the directions of the Tribunal qua the aforementioned judicial analysis, in our considered opinion and understanding of the law the present assessment order is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel; we have gone through the relevant documentary evidences brought on record in the light Rule 18(6) of the Appellate Tribunal Rules. We find force in the contention of the ld. counsel. As mentioned elsewhere, the interest free funds available with the assessee are in excess of the interest free advances made by it. The ratio laid down by the Hon'ble High Court of Bombay in the case of Reliance Utilities and Power 313 ITR 340 squarely apply on the facts of the case wherein the Hon'ble High Court has held that where there is a mixture of own funds and loan funds, then the presumption is that the interest free advances have been made out of own funds. This decision of the Hon'ble Bombay High Court was subsequently followed by the Hon'ble Court in the case of HDFC Ltd. 366 ITR 505. We further find force in the contention of the ld. counsel that all the alleged advances were for business purposes and the same was explained to the A.O. during the course of the assessment proceedings itself. The relevant submission made before the A.O. read as under:- 6. Reference to balance Sheet shows that, the interest free advances of ₹ 3,15,41,406/- alleged to have made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... py of Document/ Index-II submitted herewith. With regard to advance to other parties appearing on pg. No. S-14 also, the same is related to the various schemes developed by the Assessee Company. Considering the nature of business of the Company and the amounts being given, out of business considerations no interest is chargeable. Prom this, facts, it is clear that, the advance is purely for the business purposes and no interest free advance for non business purposes is given and therefore, on this amount also no interest is required to be disallowed and we request for the same. 15. Considering the facts in totality in the light of the ratio laid down by the Hon'ble Bombay High Court and also considering the fact that the advances were made for business purposes. We set aside the findings of the ld. CIT(A) and direct the A.O. to delete the addition of ₹ 34,92,619/-. The second grievance of the assessee mentioned hereinabove is allowed. 16. The third grievance relates to the addition of ₹ 61,29,000/-. As mentioned elsewhere, the Tribunal has restored this issue to the files of the A.O. with specific directions. The relevant findings of the A.O. read as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 150000 No confirmation received 14 N.B.Jani 50 20000 No confirmation received 15 Nitaben N Shah 52 511000 Not found/not served 16 Priti.Purohit 56 125000 No confirmation received 17 Raman G Kher 59 151000 Not found/not served 18 Rameshbhai P Patel 61 101000 No confirmation received 19 Sandhyaben N Jaiswal 64 850000 Not found/not served 20 Shoe valley 69 850000 Not found/not served 21 Vakil Jayantital G(HUF) 75 490000 No conf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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