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TMI Blog2018 (12) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances the case. The impugned order is accordingly set aside on this ground, and the impugned addition upheld. Unexplained investment toward purchase of agricultural land - Held that:- After considering the AO’s report as well as the assessee’s reply thereto, he concluded that an AOP was in existence since the year 2004, which had carried out agricultural operations on 178 acres of land during the relevant year, earning as much as ₹ 50 lacs. There was accordingly no case to doubt the receipt of funds attributed by the assessee to the AOP. The addition of ₹ 15 lacs was therefore deleted (pg. 116 of the IO). The finding stands issued upon an exhaustive analysis by the CIT(A). No contrary material, or otherwise any infirmity therein, stands shown to us during hearing. Rather, we compliment the first appellate authority for the painstaking effort made by him to ascertain the facts. Agricultural income - Held that:- The assessee has 9 acres of land, stated to be drip irrigated, yielding an annual return of ₹ 57,500 per acre, apart from 19 acres purchased during the year, which was therefore cultivated only for a part of the year, besides being admittedly no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist and colonizer, was during the relevant year engaged in development of a colony by the name Kartar Estates , at Phagwara. Earnest money (at ₹ 101.77 lacs) was stated as received from various persons toward booking of plots in the said colony. On examination, during the course of the assessment proceedings, it was found that of the same, ₹ 32.55 lacs was received in cash, which was explained to have been either adjusted against the plot registered in the names of the depositor-allottees, or repaid, i.e., where for some reason the concerned depositor did not opt to purchase the plot. Eight persons, from whom an aggregate sum of ₹ 10 lacs, is stated to have been received in cash, were found to have been repaid, which though was by way of a single cheque of ₹ 10 lacs favouring one, Raj Sher Singh, on whose advice, it was claimed, the said depositors had booked the plots, paying the earnest money, as under: Name of the person from whom earnest money was received Amount (Rs.) Mode of payment S/Shri 1. Gurvinder Singh 50,000/- Cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh. The assessee was not in the business of raising money, but of selling plots; as such, enquiry into the creditworthiness of the ostensible buyers was outside the purview of the assessee and, thus, the AO (para 5 of the impugned order). [ 4. We have heard the parties, and perused the material on record. 4.1 Our first observation in the matter is that the issue involved is principally factual, with the primary fact of receipt of money by the assessee being not in dispute. It is therefore on account of a variance in the inferences drawn, i.e., the inferential findings, which are again findings of fact, that the difference obtains between the findings issued by the AO and the ld. CIT(A). While, one, the latter, regards the cash credits as proved, the other considers them as not, i.e., on the parameters of section 68, (also) stated before us as not applicable to a trade credit - and which is what the earnest money essentially is, relying on the following decisions: CIT v. Bhital Das Modi [2005] 276 ITR 517 (All) CIT v. Pancham Dass Jain [2006] 156 Taxman 507 (All) ITO v. Lachhman Das Makhija [2009] 116 ITD 47 (Agra) (TM). 4.2 Even as observed by the Bench d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 4 of the decision in Kale Khan Mohammad Hanif v. CIT (supra), reproduced in Lachhman Dass Oswal (supra) (at pg. 448)). Whether the credit is, or can be said to be so proved, or not, is the question, and which is principally a question of fact, as again emphasized time and again by the Apex Court, as recently in Vijay Kumar Talwar v. CIT [2011] 330 ITR 1 (SC); P. Mohankala (supra) (also refer Balbir Singh v. CIT [2011] 334 ITR 287 (P H)). 4.3 Coming to the facts of the case, we are unable to persuade ourselves to be satisfied with the credits under the reference as proved, or that the AO, in rejecting the assessee s explanation qua the nature and source thereof, was not acting reasonably, and ought to have been satisfied therewith. To begin with, no confirmation has been produced from the first two creditors, stated to have advanced ₹ 1 lakh. It is difficult, therefore, to say that the identity stands proved qua these two credits. It is definitely so for the balance six, affidavits from whom stand furnished, besides five of them being produced before the AO. However, their capacity is wholly unproved; rather, disproved in-as-much as they have admitted thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Why, he is also not shown to be, as claimed before us, a broker, soliciting customers for a fee (commission). Why, one of the depositors, Shri Sanjay Mehta, states the assessee to be his friend (PB pgs. 46-47). Why would he, then, approach another person, a solicitor, and why, again, would the assessee not refund him the booking amount on cancellation, rather than to another. The reason for the cancellation of the booking is stated to be the litigation in which the colonizer was embroiled. Does that imply that the assessee did not disclose his friend about the ongoing litigation and its status, for him to have invested/caused investment, and canceling soon thereafter, citing litigation as the reason? Rather, any prudent businessman would not only repay the depositors directly, but also obtain the signature of the broker, where so, as a confirming party, as well as a declaration to the effect that the same (repayment) shall operate to terminate all the rights of the depositor in the plot booked. Then, again, expectedly, there is nothing to show that RSS paid the creditors. No doubt, the creditors have so stated, but then what value their statement when neither the payment by them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8) obliges an assessee to furnish to the satisfaction of the AO. Further still, we do not find any such ratio emanating from the cited decisions, which we have carefully perused. In each decision, the verdict turned on the facts and circumstances the case, with the ld. third Member in ITO v. Lachhman Das Makhija (supra) clarifying that where there is a cash credit, creditworthiness of the creditor, genuineness of the transaction, the identity of the creditor, the source of money, is required to be examined and proved (para 12 of the order). The only decision that can, if at all, be said to be issuing a statement of law is CIT v. Pancham Dass Jain (supra) in-asmuch as the Hon ble Court states that section 68 is not applicable to a purchase transaction. Purchase of goods/services, it may be appreciated, cannot be equated with receipt of money, which obtains in the present case, for the said decision to be said to be applicable in the present case . Further, when the genuineness of the purchase a matter of fact, is not in doubt or stands established, as it indeed was in that case, how could, one wonders, the corresponding credit to the supplier s account be doubted? Genuineness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principles of common law jurisprudence and, therefore, stood applied by the courts of law even when the said provisions were not on the statute book, as a reading of some of the decisions referred to earlier, rendered under the 1922 Act, shall show. Reference in this context may also be made to some of the recent decisions by the Amritsar Bench of the tribunal, as in the case of Abdul Hafiz v. Dy. CIT (in ITA No. 465/Asr/2017, dated19/3/2018; Harmanpreet Kaur v. ITO (in ITA No. 15/Asr/2017, dtd. 29/6/2018). It is principally for these reasons that a decision qua these provisions, as found by us in the context of the decisions cited supra by the assessee, turns on its facts. Why, the apex court in Vijay Kumar Talwar (supra) did not find the assessee s claim, made vehemently, that the sum of money was received from a trade debtor, as proved, so that the application of section 68 was, in the facts and circumstances case, upheld. If a credit from (or attributed to) a trade debtor is not excluded from the purview of s.68, how could that from a trade creditor be? That is, per se . Where the credit is in respect of money received, the account, be it of a trade creditor or trade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate proceedings. The same was objected to by the AO. Without doubt, questions arise in the matter. Why, for example, were the details of the AOP and its books of account, exhibiting the source from where the funds are stated to have been withdrawn, not produced before the AO, settling the matter; the onus of which is on the assessee. Rather, this, despite being specifically called for by the AO, as vide order sheet entry dated 8.12.2009, which though remained unavailed, with the assessee seeking further time, also granted. Why, the assessee s account with AOP, as produced, shows a withdrawal of ₹ 22.30 lacs for the purchase of agricultural land during the relevant year (PB pg.159). If that was so, where was, one may ask, the need for the assessee to state of ₹ 9 lacs as sourced from agricultural income, as he does in the assessment proceedings. The said accounts, produced at the first appellate stage, were clearly not existent at the time of assessment, so that the question of their production, even as observed by the Bench during hearing, did not arise. In fact, we observe that the ld. CIT(A) applied his mind to the matter, and rejected the assessee s applic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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