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TMI Blog2018 (1) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... unt - Creation of cash books/records for all the 45 payees and recording the each cash transactions at the rate of ₹ 20,000/- per day, non exclusion of the weekends and Sundays too comments the hurriness of the assessee. It is undisputed fact that the payees are not assessed to tax at that time or at the time of assessment or now. The assessee failed to show up all the payees before the AO. Therefore, we confirm the conclusions drawn by the AO/CIT(A) at the relevant point of time. It is the settled law relating to provision of section 68 that the assessee is under obligation to discharge all the conditions specified in the said section cumulatively to the AO. As such, the entries in the books of account are not determinative. - Decided in favour of revenue - ITA No. 503/PUN/2015 - - - Dated:- 10-1-2018 - Shri D. Karunakara Rao, AM And Shri Vikas Awasthy, JM Appellant by : Shri Pramod Shingte Respondent by : Dr. Vivek Aggarwal, CIT-DR ORDER PER D. KARUNAKARA RAO, AM : This appeal is filed by the Assessee against the order of CIT(A)-1, Nashik dated 19-02-2015 for the Assessment Year 2010-11. 2. Grounds raised by the assessee read as under : 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.80 crores by the assessee for getting the said contract : Sr. No. Particulars Dates Page Nos. of the paper book 1 Auction Advertisements 17-12-2009 213 2 Declaration of bidding date 22-12-2009 229 3 Date of bidding and allotment 02-01-2010 229 4 Payment of 25% amount 05-01-2010 228 5 Payment of balance 75% amount 08-01-2010 227 6 Work order 12-01-2010 213 7 Sand extraction allowed upto 31-07-2010 213 8 Advance money deposited by 45 parties between 18-12-2009 to 06-01-2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madhukar R. Bacchav -- -- 4,00,000.00 -- Nitin R. Chaudhary -- -- 4,00,000.00 -- Prahalad K. Nikam -- -- 4,00,000.00 -- Prakash D. Bacchav -- -- 4,00,000.00 -- Prakash N. Khairnar -- -- 4,00,000.00 -- Prashant B.Pawar -- -- 4,00,000.00 -- Prashant S. Sonawane -- -- 4,00,000.00 -- Prashant T. Jagtap -- -- 4,00,000.00 -- Pravin A. Bhamre -- -- 4,00,000.00 -- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Vinod N. Wagh -- -- 4,00,000.00 -- Vishal K. Bhed -- -- 4,00,000.00 -- Yogesh C. Bacchav -- -- 4,00,000.00 -- Yogesh N. Pawar -- -- 4,00,000.00 -- Yogesh R. Patil -- -- 4,00,000.00 -- Yogesh S. Bacchav -- -- 4,00,000.00 -- Grand Total -- -- 1,86,45,810.00 -- 5. Thus, it is the claim of the assessee that the above receipts constitutes the source of investment for the assessee and the same was remitted to the Government by 08-01-2010. However, during the assessment proceedings, the AO noted that the said amounts were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rove the genuineness of transactions. However, the assessee has not established with any evidence the genuineness of transactions and credit worthiness of creditors. It appears that the assessee has introduced his own unaccounted funds in the names of 45 different persons for getting sand contract. . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Therefore, this amount of ₹ 1,80,00,000/- is treated as unexplained cash credit u/s.68 of the Income Tax Act, 1961 and added to the total income. The assessee has furnished inaccurate particulars and thus concealed his income and therefore, I am satisfied that penalty u/s.271(1)(c) is leviable. Accordingly, penalty u/s.271(1)(c) is initiated. 7. AO relied on the following decisions : 1. Prakash Textile Agency Vs. CIT 121 ITR 890 Calcutta High Court 2. Premnath Goyal Co. Vs. CIT 271 ITR 390 Delhi High Court 3. CIT Vs. Ajay Kumar 259 ITR 240 Rajasthan High Court 4. CIT Vs. Heeralal 257 ITR 261 Rajasthan High Court 5. Shri Sohan Vs. CIT 256 ITR 659 Punjab Haryana High Court 6. Roopchand Vs. CIT 235 ITR 461 Guwahati High Court 7. Rajshree Vs. CIT 256 ITR 331 Raja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extract the same here asunder : Anil S. Bacchav 18-12-2009 Dr. Cash Adv. rec. Receipt 9 20,000.00 19-12-2009 Dr. Cash Adv. rec. Receipt 40 20,000.00 20-12-2009 Dr. Cash Adv. rec. Receipt 71 20,000.00 21-12-2009 Dr. Cash Adv. rec. Receipt 102 20,000.00 22-12-2009 Dr. Cash Adv. rec. Receipt 133 20,000.00 23-12-2009 Dr. Cash Adv. rec. Receipt 164 20,000.00 24-12-2009 Dr. Cash Adv. rec. Receipt 195 20,000.00 25-12-2009 Dr. Cash Adv. rec. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /01/2010. No agriculturist would have availability of cash in such a fashion. I have gone through the statements of some of the 27 persons recorded by the AO u/s 131 of the Act. Prima facie I find that none of the persons could convincingly answer about the source of the cash advances alleged to have been given to the appellant. Further, they also did not remember the exact amount which was given to the appellant on various dates. No documentary evidences in the form of cash receipts from the appellant in respect of the alleged cash advances were produced by them. In fact, Shri Shekhar Raghunath Bagul and Shri Rajendra P. Salunkhe stated that they did not give ₹ 20,000/- to the appellant continuously. It may be recalled that the appellant has shown to have received ₹ 20,000/- in cash from each of the 45 persons daily from 18/12/2009 to 06/01/2010. After going through the material available on record, I am of the opinion that the appellant has introduced his own funds in the form of cash in the name of 45 persons to arrange the availability of cash of ₹ 1,80,00,000/- with him to make onward payment to District Collector's office, Nashik for obtaining the sand m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 1,80,00,000/- in the hands of the appellant u/s 68 of the Act. The same is hereby confirmed. 11. Aggrieved with the above order of CIT(A) the assessee filed the present appeal with the ground referred above. 12. Before us, Ld. Counsel for the assessee narrated the above developments led to the addition of ₹ 1.80 crores and confirmation of the same by the CIT(A). It is the case of the Ld. Counsel that all the 45 payees duly confirmed the cash payment of ₹ 4 lakhs each to the assessee which formed part of ₹ 1.80 crores. He also submitted that the said amount was paid to the Government account for getting the sand contract after making the requisite TDS. Therefore, as per the Ld. DR for the Revenue, the identity of the individuals is undoubted. Regarding credit worthiness also, assessee furnished the requisite details about all the payees. Therefore, as per the Ld. AR for the assessee, the decision of the AO/CIT(A) against the assessee is required to be reversed. Regarding genuineness of the transaction, not much of the arguments were made by the assessee s counsel except by stating that these are all genuine transactions as evident from the final p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 20,000/- per day. They are ignorant about the fact relating to payment of cash of ₹ 20,000/- per day including the weekends. The 7/12 extracts furnished by the assessee could never demonstrate conclusively that the lands belong to the individual payees and the income is actually earned by them which formed the source of making of cash payments to the assessee. Leave alone the bills evidencing the fact of conducting agricultural operations on the said lands, the payees has no evidence to show the fact of earning the Agricultural income by way of the sale bills for earning of the agricultural income. We also perused the said extracted portions of the order of the AO as well as the order of CIT(A) and find the reasoning given by them is one possible view. 16. Assessee needed a sum of ₹ 1.80 crores in short time for obtaining the sand contract from the Government. Based on the principle of probability, we find it most likely that the assessee had to use the names of the 45 payees for mobilising the said amount. Creation of cash books/records for all the 45 payees and recording the each cash transactions at the rate of ₹ 20,000/- per day, non exclusion of the wee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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