9911796707
TMI Blog2023 (9) TMI 1603X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal) was not justified in confirming the addition of Rs. 20,00,000 without appreciating that in the subsequent year assessing officer has already made the addition of Rs. 30,00,000 being difference amount of agreement and sale deed and hence it is double addition. 3. The learned CIT (Appeal) was not justified in confirming the addition of Rs. 20,00,000 ignoring the fact that agreement was cancelled and it cannot be made the basis of addition. 4. The learned CIT (Appeal) was not justified in confirming the addition of Rs. 20,00,000 taxed by the assessing officer u/s. 68 as no such sum credited in books of accounts. 5. The learned CIT (Appeal) was not justified in confirming the addition of Rs. 20,00,000 as it is in not in dispute that amount of Rs. 25,00,000 was received from Ashok Rohani as advance was returned and interest on same was also paid and thus even if it was presumed that appellant has received Rs. 1,15,00,000 the Assessing officer should have given the benefit of Rs. 25,00,000 being advance return to Shri Ashok Rohani. 6. The appellant craves for leave to amend, add to or omit any ground up to the time of hearing of the appeal." 3. The grounds raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (in short 'the Act') was carried out by the Investigation Wing of the Income-tax Department at the premises of "Mokha Builder" and other group on 14/12/2011, wherein certain loose papers were found and seized, which were marked as "LPS B-1/LPS-2 , page No. 9 to 13". During search proceeding, Sh Sarabjeet Singh Mokha, of 'Mokha Group' stated that those loose papers /documents pertained to an agreement for purchase of ancestral property belonging to "Tandon Family". Consequently, in exercise of the power conferred under section 153C of the Act, the Assessing Officer issued notices for assessment years 2011-12 and 2012-13. In response, the assessee filed return of income for assessment year 2011-12 declaring income from business or profession at Rs. 3,05,303/-; income from capital gain Rupees NIL and income from other sources at loss of Rs (-) 1,97,386/-. Similarly, in the return of income filed for assessment year 2012-13, the assessee declared income from business or profession at Rs. 1,98,740/-; income from capital gain at NIL after taking benefit of indexed cost of acquisition of property against sale consideration of Rs. 60 lakhs and deduction u/s 54 of the Act of Rs. 19,25,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment year 2012-13, the Ld. CIT(A) though deleted the addition of Rs. 30 lakhs as income from other sources, however, directed the Assessing Officer to consider the said amount as part of the sale consideration while computing long-term capital gain on sale of the property. 9. Before us, the learned counsel for the assessee has filed a combined paper book containing pages 1 to 41 for assessment year 2011-12 and 2012-13. 10. All the grounds raised in the appeal for assessment year 2011-12 and appeal for assessment year 2011-12 are being connected with the issue of addition of Rs. 25 lakhs for cash received by the assessee and therefore, same are discussed and adjudicated together. 11. The facts in brief qua the issue in dispute are that in the course of search action at the premises of "Mokha Group", an 'Ikrarnama' (i.e. sale agreement) dated 20/02/2010 on stamp paper of Rs. 100/- was found and seized. This 'Ikraranama' for transfer of a bungalow located at South Civil Lines, Jabalpur has been entered into between members of 'Tandon' family, including the assessee as sellers and 'Shri Sarabjeet Singh Mokha' and 'Shri Ashok Rohani' as buyers, which was duly signed by the respecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a' and Rs. 50 lakh as recorded in Sale Deed. A chart of total payment of Rs. 1,15,00,000/- reproduced by the Ld. CIT(A) is extracted as under for ready reference:- Name of the Payor Cheque No. Date Amount Source Ashok Rohani 155602 03.04.2010 15,00,000 Ikrarnama Mokha Builders & Promoters 332846 22.07.2010 10,00,000 Ikrarnama Ashok Rohani 155615 21.10.2010 5,00,000 Ikrarnama Ashok Rohani 41794 23.07.2010 10,00,000 Ikrarnama Cash 10.04.2010 2,50,000 Ikrarnama Cash 03.11.2010 7,50,000 Ikrarnama Cash 10,00,000 Ikrarnama Cash 5,00,000 Ikrarnama Mokha Builders & Promoters 332756 19.04.2010 10,00,000 Sale Deed 13.09.2011 Mokha Builders & Promoters 351864 21.04.2011 20,00,000 Sale Deed 13.09.2011 Mokha Builders & Promoters 351879 30.05.2011 10,00,000 Sale Deed 13.09.2011 607791 09.12.2011 10,00,000 Sale Deed 13.09.2011 1,15,00,000/- 15. During the course of the scrutiny proceedings, the Assessing Officer asked the assessee to explain the transactions recorded in 'Ikrarnama'. It was explained by the assessee that, firstly, the amounts recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... don. A.Yr.2011-12 10.04.2010 2,50,000 Ikrarnama A.Yr.2011-12 03.11.2010 7,50,000 Ikrarnama A.Yr.2011-12 20.10.2010 10,00,000 Ikrarnama Total 20,00,000 A.Yr.2012-13 5,00,000 Ikrarnama Total 5,00,000 15. In view of the above discussions, an amount of rs. 20 lakhs in A.Yr. 2011-12 and an amount of Rs. 5 lakhs in A.Yr. 2012-13, is treated u/s 68 'Cash Credits' as his undisclosed income and is added back to the total the income of the assessee. Initiate penalty u/s 271(1)(c) for concealing particulars of his income separately for A.Yr. 2011-12 & 2012-13. 18. Before the Ld. CIT(A), the assessee admitted the fact of entering into 'Ikrarnama' with buyers having a share of sale consideration of the assessee as Rs. 90 lakh, but submitted that due to dispute between the family members, in the subsequent Sale Deed actual amount of only Rs. 60 lakhs was received. The assessee though did not admit receipt of cash amount of Rs. 20 lakhs and Rs. 5 lakhs respectively, but without prejudice also objected that Assessing Officer has treated amount received by cheque of Rs. 60 lakhs as capital receipt, therefore, he is not justified in treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeds or advance for sale cannot, therefore, be accepted. Therefore, there is merit in the finding of the Assessing Officer that the cash received amounts aggregating to Rs. 25,00,000/- remained unexplained and represented the appellant's income from other sources. 6.1.5. Having regard to the facts and in the circumstances of the case and the emerging position of law, I do not find any reason to interfere with the addition of Rs. 20,00,000/- made by the Assessing Officer as income from other sources. The same is confirmed." 20. We have heard rival submissions of the parties on the issue in dispute and perused the relevant material on record. The issue in dispute is regarding the receipt of Rs. 20 lakhs and Rs. 5 lakhs(corresponding to assessment year 2011-12 and 2012-13 respectively) recorded in 'Ikrarnama' for transfer of share of property of the assessee, which has been treated by the Assessing Officer as unexplained cash credit under section 68 of the Act. 21. Before us, the assessee has objected the addition on many grounds. Firstly, that no such cash payment was received by the assessee and the Assessing Officer has made addition on presumption only. In support, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that in assessment year 2012-13, Assessing Officer made addition of Rs. 30 lakhs as difference amount of Rs. 90 lakh recorded in the 'Ikrarnama' and Sale Deed amount of Rs. 60 lakhs as income from other sources, however, the Ld. CIT(A) has deleted the said addition, observing as under: 6.2.3 DECISION: "I have considered the written submission put forth by the counsel, perused the facts of the case including other material brought on record. The case of the Assessing Officer is that the cash payments of Rs. 30,00,000/- were not reflected in the registered sale deed, and, therefore, he added the same as income from undisclosed sources under sec. 68 of the IT Act, 1961. The case of the appellant, on the other hand, is that the cash payments are mere advances received from Shri Ashok Rohani as per agreement and capital in nature and, therefore, the same could not be termed as unexplained cash credits under sec. 68 of the IT Act. 6.2.4. The fact that the appellant had received cash and cheques amounting to Rs. 1,15,00,000/- towards sale of property is supported with document in the form of jottings on the agreement for sale found during the course of search in the premises of bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to the learned Assessing Officer and the Ld. CIT(A), it is liable to be assessed u/s 68 for two reasons. Firstly, as against the share of the consideration of Rs. 90 lakhs recorded in the 'Ikrarnama', the assessee has received total amount of Rs. 1,15,00,000/- as his share of sale consideration and therefore, the sum of Rs. 25 lakhs (Rs. 20 lakhs in assessment year 2011-12 and 5 lakhs in assessment year 2012-13) received in cash, is additional sum not related to sale of the property and therefore, it is not in the nature of capital receipt. Secondly, these credits appearing in loose papers are to be tested on the three ingredients of section 68 of the Act i.e. identity, creditworthiness and genuineness of transaction but the assessee has not discharged his onus for doing so. Thus, Ld. CIT(A) upheld the receipts as unexplained cash credit in the hands of the assessee. 28. As far as contention of the assessee of capital receipts is concerned, we find that the assessee has received Rs. 30 lakhs in cheque from Mr. Ashok Rohani, which is recorded in 'Ikraranama'. Further, the assessee has received Rs. 60 lakhs in cheque from M/s Mokha Builders and Promoters P. Ltd, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount is refunded or returned to Shri Ashok Rohani then cash amount received by the assessee would be within the limits of Rs. 90 lakhs as sale consideration for share of the assessee as per the 'Ikrarnama' and in that case, it can't be treated as unexplained cash credit and it shall be treated as part of sale consideration of the property. But if the assessee fails in demonstrating the evidences as we have stated in above paragraphs, the addition shall be sustained. Though, the case is very old and the assessee is no more and represented by legal heir, in the facts and circumstances of the case, we feel it appropriate to restore the matter to the file of the Assessing Officer for limited verification as stated above and decide the issue accordingly. It is needless to mention that the assessee shall be afforded adequate opportunity of being heard. 31. Before parting with our decision, we may like to observe that in the 'Ikrarnama' under reference, members of 'Tandon' family other than assessee, have received cash amounts against sale of their share of property. We attempted to ascertain fate of their cases which could guide us as precedent in the matter, but no information was prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
