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TMI Blog2018 (12) TMI 1512X X X X Extracts X X X X X X X X Extracts X X X X ..... worthiness as the sale deeds have been registered in the name of the four persons accepting the transactions. Therefore no addition was called for u/s 68 - Decided in favour of assessee. Disallowance for cash expenditure - Held that:- We find that before the first appellate authority necessary details were placed and remand report was called for but Ld. A.O objected to acceptance of additional evidence. We find that statements of some of vendors Shri Gyanswaroop Vishwakarma who did the electrification work, Shri Firoz Khan who did the labour work and Shri Narendra Kumar Thakur who had did the labour work gave their statements on oath stating that they received the amounts from the assessee for various works provided by them. All necessary vouchers have also been placed on record of which major are cash expenses. Books of accounts have been maintained. 10% disallowance of the impugned expenditure will be justified. - ITA No.63/Ind/2018 - - - Dated:- 26-12-2018 - MR KUL BHARAT, JUDICIAL MEMBER AND MR MANISH BORAD, ACCOUNTANT MEMBER For The Revenue : Shri R.P. Mourya, Sr.DR For The Assessee : Shri Girish Agrawal, C.A ORDER PER MANISH BORAD, AM. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enditure of ₹ 13,54,680/- . 5. Ld. Counsel for the assessee made common submission for all the grounds. As regards Ground No. 1 to 4 relating to addition for unexplained cash credit from four persons, Ld. Counsel for the assessee submitted that in the course of business advances for plot booking were received from all these four persons. Apart from the cash received as advance, major amount was received through account payee cheque. Plot of lands were allotted and sale deeds are registered in all the four cases and excess amount received was refunded back to the cash creditors which was duly accepted in the registered sale deed. Following written submissions have been placed before us by Ld. Counsel for the assessee praying for deletion of impugned addition of cash credit at ₹ 43,12,250/-:- 1. Assessee is engaged in the business of construction. It is a trade practice of this business to take advance before booking any property. It is only on the payment of such advance that the booking can happen; otherwise the meaning of 'booking' itself loses its meaning. 2. Booking advance is a trading advance for the assessee which eventually got converted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,00,000 6,21,000 5,88,000 28.01.2015 (PB 18) Shri Pawan Thakkar 3 9,21,000 27,00,000 36,21,000 13,87,000 13.11.2014 (PB18) Shri Arun Bhatt (Deepak Malviya) 262 4,00,000 13,00,000 17,00,000 5,25,000 28.01.2014 (PB13) Shri Arun Bhatt (Dhananjay Jaiswal) 263, 264 11,76,000 08.07.2014 (PB28) Shri Ravish Patel 261 2,21,000 7,23,155 9,44,155 4,60,000 04.09.2013 (PB13) Assessee submits that the difference in registry amount and the advance received was refunded to the respective parties in the year of registration. This fact is evident from point no. 13 of the copy of registered sale deed. [PB 28,43] 6. Booking advance pertaining to sale consideration stated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any amount was received for purchase of plot. Ld. CIT(A) also erred in ignoring the copy of receipts submitted and sustained the additions made. 16. ln the case of Shri Arun Bhatt, plot no. 262, 263 and 264 were booked by him. These plots were registered in the name of Shri Deepak Malviya (Plot no. 262) and Shri Dhananjay Jaiswal (Plot No. 263 and 264) who gave ₹ 2,50,000 and ₹ 1,00,000 respectively at the time of registration. He gave the advance for booking of the above mentioned plots out of his past savings, agriculture income of his family and his salary income earned as Branch Manager of Bhumi Vikas Bank. In the statement recorded under oath, he has stated that the advance was paid through State Bank of India, Civil Line Branch into Bank of India. [PB 78 Q 8]. Ld. AO has raised a very specific question asking that the plots taken on advance were sold to whom? Relevant extract is as under - [PB 78 Q 8] 19.1n the registered sale deed for plot no. 263 and 264 sold to Shri Dhananjay Jaiswal, details of amount and date of payment are specifically mentioned. Further at point no. 13, it is specifically stated that the advance received for booking of plot was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... labour arranged by him and hence the voucher was made in his name.[PB 391A Q. No.4 and PB 392 Q No.6] c. Shri Narendra Kumar Thakur: In his statement recorded under oath, in response to Q. No.5 he has stated that no amount was received by him in cash. [PB 393] 23. Reliance is placed on judicial precedents - a. Hon'ble High Court of Gujarat in the case of Navinbhai N. Patel - [2014] 41 taxmann.com 424 - order pronounced on 30.04.2013 b. Hon'ble Delhi bench of ITAT in the case of Dr. Sunil Kumar Sharma - [2014] 52 taxmann.com 437 - order pronounced on 2l.10.2014 - identity and genuineness established no addition can be made. c. Hon'ble Jodhpur Bench of ITAT in the case of Ayushi Builders Developers - [2014] 50 taxmann.com 396 - order pronounced on 14.08.2014 - Para 4.3 . 6. Per contra Ld. Departmental Representative vehemently argued supporting the orders of lower authorities. 7. We have heard rival contentions and carefully perused the records placed before us. 8. First we will take up Ground No. 1 to 4 which relates to unexplained cash credit at ₹ 43,12,250/- from the following persons; 1. Shri Ram Kumar Gangrade 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing through para 13 of the registered sale deeds where the purchaser accepts to have received any excess amount received as advance and it has been duly admitted that the advanced amount have been received. So in nutshell there seems to be no loss to the revenue as regards to sale consideration received. Identity is already not disputed. Sale consideration received in cash as well as the cheque has also been accepted by the alleged cash creditors. However in our considered opinion and in the given circumstances of the case as well as the materials placed before us, we find merit in the contention of Ld. Counsel for the assessee that the alleged cash credits of ₹ 43,12,250/- are duly explained with regard to the identity, genuineness and creditworthiness as the sale deeds have been registered in the name of the four persons accepting the transactions. Therefore no addition was called for u/s 68 of the Act for ₹ 43,12,250/- . We accordingly set aside the findings of Ld. CIT(A) and delete the addition of ₹ 43,12,250/-. In the result Ground No. 1 to 4 of the assessee s appeal is allowed. 11. Now we take up Ground No.5 which relates to the disallowance for cash expe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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