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TMI Blog2020 (6) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... e ground of appeal raised by the Revenue is dismissed. Unexplained cash credit under section 68 - CIT-A deleted the addition - HELD THAT:- We find that the amount received by the assessee as discussed above represents the sale consideration of the shares transferred by her to the parties aforesaid. The learned AR in support of his contention has filed the confirmation, shares transfer certificates and share purchase agreement along with the ledgers. DR has not brought anything on record contrary to the finding of the learned CIT (A). In such a situation we have no alternate except to confirm the finding of the learned CIT (A). Hence the ground of appeal raised by the Revenue is dismissed. Addition u/s 68 - CIT (A) was pleased to delete the addition made by the AO by observing that the assessee has discharged his onus by furnishing the necessary details as specified under section 68 - HELD THAT:- Admittedly the assessee has discharged its onus by furnishing the necessary details such as a copy of PAN, passport, bank details, etc. in support of identity of the parties. There is also no dispute that all the transactions were carried out through the banking channel. Therefore, we are c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and lockdown, the period of lockdown days need to be excluded. See case of DCIT vs. JSW Limited [ 2020 (5) TMI 359 - ITAT MUMBAI ] - Shri Rajpal Yadav, Vice President And Shri Waseem Ahmed, Accountant Member For the Appellant : Shri Virendra Ojha, CIT/DR For the Respondent : Shri M.K. Patel, A.R. ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER 1. This appeal filed by the Revenue is directed against the order of the Ld. CIT(A)-3, Ahmedabad dated 09.01.2016 pertaining to A.Y. 2011-12. 2. The Revenue has raised the following grounds of appeal: 1. that the Id. CIT(Appeal) has erred in law and on facts in deleting the addition amounting to ₹ 15,78,571/- made on account of Short term capital Gain on sale of immovable property. 2. that the Id. CIT(Appeal) has erred in law and on facts in deleting the addition amounting to ₹ 23,72,127/- made on account of Unexplained Cash Credit u/s. 68 of the Income tax Act, 1961. 3. that the Id. CIT(Appeal) has erred in law and on facts in deleting the addition amounting to ₹ 15,64,00,000/- made on account of Unexplained Cash Credit u/s. 68 of the Income tax Act, 1961. 4. that the Id. CIT(Appeal) has erred in law and on facts in deleting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d CIT (A). 9. The assessee before the learned CIT (A) submitted that the sale deed was executed on 8 November 2010 which was cancelled and filed the extract of 7/12 along with form No. 6 in support of her contention. 10. The land in dispute is the agricultural land within the meaning of section 2(14)(iii) of the Act. Accordingly, the question of charging the capital gain on the sale of such lands does not arise. 11. The AO has not collected necessary details from the landowners about the actual cost of acquisition of such lands. Accordingly the purchase consideration was assumed by the AO for ₹ 8,50,000/-which is not based on any cogent material. 12. The AO should have referred the matter to the DVO to determine the market value as he found difference in the sale price viz a viz the value determined for the purpose of Stamp duty. 13. The learned CIT (A) after considering the submission of the assessee deleted the addition made by the AO by observing as under: It is understood that the appellant raised objections to the proposal of applying Stamp Duty Valuation as much as the disputes in property were highlighted and the AO failed to send the matter for valuation to DVO as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transferred. The learned DR has not brought anything on record contrary to the finding of the learned CIT (A). In such a situation we have no alternate except to confirm the finding of the learned CIT (A). Hence the ground of appeal raised by the Revenue is dismissed. 18. The 2nd issue raised by the revenue is that the learned CIT (A) erred in deleting the addition made by the AO for ₹ 23,72,127/- on account of unexplained cash credit under section 68 of the Act. 19. The assessee in the year under consideration claimed to have received a loan of ₹ 23,72,127/- from Shri Gautam H. Sheth and Usha H. Sheth but failed to furnish the details such as name , complete address , PAN and the creditworthiness of these parties. Accordingly, the AO treated the same as unexplained cash credit under section 68 of the Act and added to the total income of the assessee. 20. Aggrieved assessee preferred an appeal to the learned CIT (A). 21. The assessee before the learned CIT (A) submitted that the amount received from the parties as discussed above for ₹ 23,72,127/- represents the sale consideration for the shares sold to them. The assessee in support of her contention filed the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cash credit under section 68 of the Act. 29. The assessee in the year under consideration has made the investment in a company namely Yuva Sports Academy amounting to ₹ 15,64,00,000/- The assessee on question by the AO about the source of investment in such Academy submitted that she has received the money from various companies in which she is interested. The assessee in support of her contention filed the confirmation from the companies along with their PAN and addresses, copies of the income tax return and the bank statement. 30. However, the AO found that the companies which have made advance to the assessee did not carry out any business activity. Accordingly the AO held that the source of fund have not been explained by the assessee. Accordingly the AO treated the same as unexplained cash credit and added to the total income of the assessee. 31. Aggrieved assessee preferred an appeal to the learned CIT (A). 32. The assessee before the learned CIT (A) submitted that she has already justified the source of money in the hands of the companies. The necessary details about the source of money in the hands of the parties who provided the loan to her are available on pages 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T 280 ITR 512 (Guj.) ii) CIT Vs. Pragati Co-op. Bank Ltd. 278 ITR 170 (Guj.) iii) CIT Vs. Orissa Corporation Pvt. Ltd. 159 ITR 78 (SC) iv) CIT vs. Sanjay K. Thakkar Tax Appeal Nos.524 of 2004, 525 and 526 of 2004 and 579 to! 583 of 2003 dated 12-9-2005 (Guj. HC) I v) ITO Vs'Kailpar Credit Mercantile Pvt. Ltd. in ITA No.421/Ahd/2008 (ITAT, And.) There are other case laws supporting the case of the appellant as under: i) Murlidhar Lahorimal Vs. CIT 280 ITR 512 (Guj.) ii) CIT Vs. Pragati Co-op. Bank Ltd. 278 ITR 170 (Guj.) iii) CIT Vs. Orissa Corporation Pvt. Ltd. 159 ITR 78 (SC) iv) CIT vs. Sanjay K. Thakkar Tax Appeal Nos.524 of 2004, 525 and 526 of 2004 and 579 to! 583 of 2003 dated 12-9-2005 (Guj. HC) I v) ITO Vs Kailpar Credit Mercantile Pvt. Ltd. in ITA No.421/Ahd/2008 (ITAT, And.) I am not inclined to accept the findings of the A.O. that the creditors have not returned adequate income in their returns of income. The plethora of other evidences on record cannot be ignored. There is no finding on record to prove that I appellant's own undisclosed money has been brought in books of account by depositing cash etc. The creditors are standing for the impugned money, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the footing that since the transactions were through the bank account, it was to be presumed that the transactions were genuine. It was not for the ITO to find out by making investigation from the bank accounts unless the assessee proved the identity of the creditors and their creditworthiness. Mere payment by account payee cheque was not sacrosanct nor could it make a non-genuine transaction genuine. 39. Admittedly the assessee has discharged its onus by furnishing the necessary details such as a copy of PAN, passport, bank details, etc. in support of identity of the parties. There is also no dispute that all the transactions were carried out through the banking channel. Therefore, we are conscious of the fact that the assessee has discharged onus regarding the genuineness of the transactions. In this regard, we find support and guidance from the judgment of Hon ble High court of Bombay in the case of CIT Vs. Green Infra Ltd reported in 78 taxmann.com 340 wherein it was held as under: So far as the genuineness of the transaction of share subscriber is concerned, it concludes as the entire transaction is recorded in the books of account and reflected in the financial statements of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged its onus imposed under section 68 of the Act. 44. The assessee in the present case has duly explained the source of money received in her hands. The assessee is not answerable to justify the source of the source of the money received by it. In this connection, we place our reliance on the judgment of Hon ble Gujarat High Court in the case of DCIT Vs. Rohini builders reported in 256 ITR 360 wherein it was held as under: It has also proved the capacity of the creditors by showing that the amounts were received by the assessee by account payee cheques drawn from bank accounts of the creditors and the assessee is not expected to prove the genuineness of the cash deposited in the bank accounts of those creditors because under law the assessee can be asked to prove the source of the credits in its books of account but not the source of the source as held by the Bombay High Court in the case of Orient Trading Co. Ltd. v. CIT [1963] 49 ITR 723. The genuineness of the transaction is proved by the fact that the payment to the assessee as well as repayment of the loan by the assessee to the depositors is made by account payee cheques and the interest is also paid by the assessee to the cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivity on the lands belonging to the assessee. However, the AO has not verified the same during the assessment proceedings. 53. We are also conscious to the fact that the onus lies on the assessee to furnish the documentary evidence such as sales bills of the agriculture produce but he failed to do so. However in the present facts of the case we note that the assessee has been showing the agriculture income consistently which have been accepted by the revenue. Even the contention of the assessee that the inspector of Income Tax Department has also confirmed the fact of existence of the mango trees since 2007 which has not been doubted by the AO. Thus after considering the facts in totality and there being no adverse record brought by the learned DR contrary to the finding of the learned CIT (A), we do not find any reason to interfere in the order. Hence the ground of appeal of the Revenue is dismissed. 54. The last issue raised by the Revenue is that the learned CIT (A) has admitted the additional evidences without waiting for the remand report from the AO. 55. In this regard we note that the learned CIT (A) have referred the additional evidences filed by the assessee vide letter d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f fact, it has been such an unprecedented situation, causing disruption in the functioning of judicial machinery, that Hon ble Supreme Court of India, in an unprecedented order in the history of India and vide order dated 6.5.2020 read with order dated 23.3.2020, extended the limitation to exclude not only this lockdown period but also a few more days prior to, and after, the lockdown by observing that In case the limitation has expired after 15.03.2020 then the period from 15.03.2020 till the date on which the lockdown is lifted in the jurisdictional area where the dispute lies or where the cause of action arises shall be extended for a period of 15 days after the lifting of lockdown . Hon ble Bombay High Court, in an order dated 15th April 2020, has, besides extending the validity of all interim orders, has also observed that, It is also clarified that while calculating time for disposal of matters made time-bound by this Court, the period for which the order dated 26th March 2020 continues to operate shall be added and time shall stand extended accordingly , and also observed that arrangement continued by an order dated 26th March 2020 till 30th April 2020 shall continue further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court and Hon ble Supreme Court also indicate that this period of lockdown cannot be treated as an ordinary period during which the normal time limits are to remain in force. In our considered view, even without the words ordinarily , in the light of the above analysis of the legal position, the period during which lockout was in force is to excluded for the purpose of time limits set out in rule 34(5) of the Appellate Tribunal Rules, 1963. Viewed thus, the exception, to 90-day time-limit for pronouncement of orders, inherent in rule 34(5)(c), with respect to the pronouncement of orders within ninety days, clearly comes into play in the present case. Of course, there is no, and there cannot be any, bar on the discretion of the benches to refix the matters for clarifications because of considerable time lag between the point of time when the hearing is concluded and the point of time when the order thereon is being finalized, but then, in our considered view, no such exercise was required to be carried out on the facts of this case. 11. To sum up, the appeal of the assessee is allowed, and appeal of the Assessing Officer is dismissed. Order pronounced under rule 34(4) of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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