9911796707
TMI Blog2019 (3) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... sh - HELD THAT:- In view of the fact that the assessee had to make payment on the insistence of the sellers respectively and following the judgement in the case of Smt. Harishila Chordia Vs. ITO [2006 (11) TMI 117 - RAJASTHAN HIGH COURT] and Anupam Teleservices Vs. ITO [2014 (2) TMI 30 - GUJARAT HIGH COURT], we do not see any reason to interfere in the finding of the Ld. CIT(A) and the same is hereby affirmed. - Decided against revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary, Ld. D.R. has submitted that the submission and the objections of the assessee are ill founded. He drew out attention to LPS-1/42 in paper book page nos.2 to 199. He submitted that in view of these documents, the assessing officer was justified in initiating the proceedings against the assessee. He contended that the grounds raised in the objections be rejected. 5. Ld. Counsel for the assessee in rejoinder submitted the vouchers pertaining to M/s. Brilliant Estates Pvt. Ltd. which is a different entity. 6. We have heard the rival submissions, perused the materials available on record and gone through the orders of the authorities below. We find that the submissions of the assessee are contrary to the records as the documents filed are the journal entries and some of the vouchers or debit notes which are belonging to the assessee. Therefore, under these facts, it cannot be construed that there was no incriminating material for initiating the proceedings u/s 153C of the Act. We therefore, reject the grounds raised by the assessee. Accordingly, the cross objection filed by the assessee is dismissed. 7. Now we take up the revenue's appeal in IT(SS)A No.44/Ind/2015. The rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant has acquired land for construction of township and incurred various expenses towards it, which were shown as stock-in-trade. The AO observed that for purchase & registration of land appellant has incurred expenses of ₹ 46,71,49,446/- out of which payment of ₹ 3,29,35,000/- was made through cash or bearer cheques. The appellant explained before AO that it has only paid 'Bayana' or 'token money' to the sellers of land, in cash or through bearer cheques and all subsequent payments, which is the major payment is made through account payee cheques. According to appellant the first payment is required to be made in cash both due to prevalent practice in real estate market to make first payment through cash and also because of insistence of seller party to make first payment in cash because while making first payment they were unknown to each other. The appellant claimed that because of aforesaid reasons and also because they have not claimed such expenses toward land in profit & loss a/c, hence they are not hit by provision of Section 40A(3) of the I.T. Act. On verification of the facts, it is noticed that such amount of payment towards land has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, exceeds ten thousand rupees,] no deduction shall be allowed in respect of such expenditure." Rule 6DD: No disallowance under sub-section (3) of section 40A shall be made and no payment shall be deemed to be the profits and gains of business or profession under sub-section (3A) of section 40A where a payment or aggregate of payments made to a person in a day, otherwise than by an account payee cheque drawn on a bank or account payee bank draft*, exceeds twenty thousand rupees in the cases and circumstances specified hereunder, namely:- (a) Where the payment is made to- i. The Reserve Bank of India or any banking company as defined in clause (c) of section 5 of the Banking Regulation Act, 1949 (10 of 1949); ii. The State Bank of India or any subsidiary bank as defined in section 2 of the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959); iii. Any co-operative bank or land mortgage bank; iv. Any primary agricultural credit society or any primary credit society as defined under section 56 of the Banking Regulation Act, 1949 (10 of 1949); v. The Life Insurance Corporation of India established under section 3 of the Life Insurance Corporation Act, 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducting the income-tax from salary in accordance with the provisions of section 192 of the At, and when such employee- i. Is temporarily posted for a continuous period of fifteen days or more in a place other than his normal place of duty or on a ship; and ii. Does not maintain any account in any bank at such place or ship; (j) Where the payment was required to be made on a day on which the banks were closed either on account of holiday or strike; (k) Where the payment is made by any person to his agent who is required to make payment in cash for goods or services on behalf of such person; (l) Where the payment is made by an authorised dealer or a money changer against purchase of foreign currency or travellers cheques in the normal course of his business. Explanation-For the purposes of this clause, the expressions "authorised dealer" or "money changer" means a person authorised as an authorised dealer or a money changer to deal in foreign currency or foreign exchange under any law for the time being in force.]" 13. The Ld. CIT(A) had relied upon the decision of coordinate bench rendered in the case of CIT Vs. Magnificent Construction Private Limited in IT(SS)A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were found to be genuine. We may also note that in Attar Singh Gurmukh Singh Vs. ITO (1991) 97 CTR (SC) 251 : (1991) 191 ITR 667 (SC), it is pointed out that terms of s. 40A(3) are not absolute. Consideration of business expediency and other relevant factors are not excluded. Genuine and bona fide transactions are not taken out of the sweep of the section. It is up to the assessee to furnish to the satisfaction of the A.O. the circumstances under which payment, in the manner prescribed in s. 40A(3), was not practicable or would have caused genuine difficulty to the payee. It is also open to the assessee to identify the person who has received cash payment." 15. Ld. Counsel for the assessee has also relied upon judgement of Hon'ble Allahabad High Court in the case of CIT Vs. Choudhary & Company (supra). It is stated by the Ld. Counsel for the assessee that the cash payment was made on insistence of the seller of the land. It is further stated that the amount is duly recorded in the sale deeds and there is no doubt raised about genuineness of the transaction by the authorities below. He therefore, submitted that in the light of the various case laws, addition by invoking provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
