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TMI Blog2022 (10) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmations in respect of payment in cash from the assessee. It is also not disputed that the said cash payment is not part and parcel of total sale consideration which is reflected in all the purchase deed. Further, the sellers also admitted the payment of cash before the registering authority under due process. The contention of ld. AR is that the payment vide cheque or draft is not at all practicable due to circumstances on demand of settlement of purchase consideration in cash from the sellers of the properties. Therefore, the ratio laid down in the case of Attar Singh Gurmukh Singh [ 1991 (8) TMI 5 - SUPREME COURT ] is applicable and the disallowance of Rs.21,33,333/- as confirmed by the CIT(A) in the hands of assessee on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns were reproduced by the CIT(A) at page 4 of the impugned order regarding the More group. According to the ld. AR that total sale consideration was Rs.55,00,000/- in respect of land at SS No. 18/2 of Pachora (More group). Out of said Rs.55,00,000/-, the assessee along with co-purchasers paid Rs.25,00,000/- in cash. The ld. AR argued that there being two purchasers, the share of assessee in cash payment is only Rs.12,50,000/-. It was argued vehemently that the assessee made cash payment to the sellers as they have no bank accounts standing to their name as on the date of registration of sale deed and only after the receipt of consideration in part as post dated cheques, the sellers opened the bank accounts. This fact is not disputed by both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t other two co-purchasers having residing in Nashik immediately drew a demand draft for Rs.22,50,000/- and amongst which Rs.7,50,000/- and Rs.3,75,000/- for first deed and likewise, Rs.7,50,000/- and Rs.3,75,000/- for the second deed. The details of which reproduced by the CIT(A) in pages 8 and 9 of the impugned order. The contention of ld. AR is that the assessee did not pay any cash payment to the sellers to both the transactions involving two sale deeds but however, made cash payments to the other two co-purchasers who purchased two demand drafts for amounting to Rs.22,50,000/- form their bank accounts. The ld. AR vehemently argued that provisions u/s. 40A(3) is not attracted to the said transactions, the assessee paid amount to her co-p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... draft in the circumstances specified under which the assessee is unable or not practicable causing genuine difficulty. I note that the payment in cash was part of sale consideration which is incorporated in the purchase deed. The ld. AR placed on record a copy of purchase deed before this Tribunal from pages 9 to 62 of the paper book. 7. This Tribunal in the case of ITO Vs. M/s. Dhanshree Ispat (supra) by following the decision of Hon ble Supreme Court in the case of Attar Singh Gurmukh Singh (supra) deleted the addition made u/s. 40A(3) of the Act vide para 7 of the said order by holding when the transaction is genuine no disallowance is warranted. In the present case also the cash payment forming part of sale consideration was incorpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal (L) No. 2128 of 2018 vide order dated 08-10-2018, the contention of ld. AR is that the Hon ble High Court of Bombay did not observe that Rule 6DD is not exhaustive. On perusal of the relevant para 9 of the said decision, I note the Hon ble High Court of Bombay was pleased to observe that Rule 6DD of Rules enables the assessee to urge that the exceptional or unavoidable circumstances led to payment made in cash. Therefore, I find force in the arguments of ld. AR that Rule 6DD is exhaustive and it is open to the assessee the exceptional and unavoidable circumstances which made the assessee to make payment in cash. I find the assessee did not pay cash as already discussed above, the contention of the assessee before the CIT(A) that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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