M/S BRILLIANT SARE REALITY PVT. LTD.DCIT- 1(1), Indore V. THE DCIT-1(1), Indore

CO 45/IND/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8795 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 1 month(s) 20 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 28-12-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 24-10-2018
• Assessment Year: 2007-2008
• Appeal Filed On: 07-11-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AJAY TULSIYANA; KAPIL SHAH A RS
• Assessee Lawyers: AASHIMA GUPTA
• Section: 40A(3); 143(3); 56; 132

Judgement Text

[IT(SS)A NO.44/IND/2015 & CO 45/IND/2016] [M/S. BRILLIANT SARE REALITY PVT. LTD. INDORE] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT(SS)A NO.44/IND/2015 ASSESSMENT YEAR: 2007-08 DCIT - 1(1) INDORE / VS. M/S. BRILLIANT SARE REALITY PVT. LTD. 17, RACE COURSE ROAD, INDORE ( APPELLANT ) ( REVENUE ) P.A. NO. AACCB9248A C.O. NO.45/IND/2016 (ARISING OUT OF IT(SS)A NO.44/IND/2015) ASSESSMENT YEAR: 2007-08 M/S. BRILLIANT SARE REALITY PVT. LTD. 17, RACE COURSE ROAD, INDORE / VS. DCIT - 1(1) INDORE (APPELLANT) (REVENUE ) APPELLANT BY SMT. AASHIMA GUPTA, DR RESPONDENT BY SHRI AJAY TULSIYANA & SHRI KAPIL SHAH, A.RS DATE OF HEARING: 24.10.2018 DATE OF PRONOUNCEMENT: 28.12.2018 [IT(SS)A NO.44/IND/2015 & CO 45/IND/2016] [M/S. BRILLIANT SARE REALITY PVT. LTD. INDORE] 2 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL AND CROSS OBJECTION PERTAINING TO THE ASSESSMENT YEAR 2007-08 HAVE FILED BY THE REVENUE AND THE ASSESSEE AGAINST ORDER OF THE COMMISSIONER OF INCOME T AX (APPEALS)-I, INDORE DATED 22.10.2014. 2. IN CROSS OBJECTION THE ASSESSEE HAS RAISED FOLLOWIN G GROUNDS: 1. THAT THE LEARNED CIT(A) ERRED IN DISMISSING GROUND NO.1 AND IN EFFECT HOLDING THAT THE PROCEEDINGS INITIATED U/S 1 53C AND THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 153C WERE VALID AND LEGAL. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE IN LAW THE PROCEEDINGS INITIATED U/S 153C AND THE ASSESSME NT ORDER PASSED ARE WRONG AND NOT IN ACCORDANCE WITH LAW. I T IS PRAYED TO QUASH THE SAME. 2. THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ASSESS MENT U/S 153C CAN BE MADE EVEN IF NO INCRIMINATING DOCUMENT WAS F OUND AND ALSO ERRED IN HOLDING THAT NORMAL DISALLOWANCES AND ADDI TION U/S 40A(3) ARE PERMITTED TO BE MADE/CAN BE MADE IN THESE PROCE EDINGS. THE SAID OBSERVATIONS ARE WRONG AND NOT IN ACCORDANCE W ITH LAW. 3. THAT THE RESPONDENT CRAVES LEAVE TO ADD, TO ALTER, AMEND, MODIFY, SUBSTITUTE, DELETE AND/OR RESCIND ALL OR ANY OF THE GROUNDS OF CROSS OBJECTION ON OR BEFORE FINAL HEARING, IF NECESSITY SO ARISES. IT IS NOTED THAT THE ASSESSEE HAS RAISED ISSUE OF LEGALI TY OF THE PROCEEDINGS INITIATED U/S 153C OF THE INCOME TAX ACT [IT(SS)A NO.44/IND/2015 & CO 45/IND/2016] [M/S. BRILLIANT SARE REALITY PVT. LTD. INDORE] 3 (HEREIN AFTER CALLED AS THE ACT). THEREFORE, THE CRO SS OBJECTION OF THE ASSESSEE REQUIRES TO BE ADJUDICATED FI RST. 3. THE FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT A SEARCH & SEIZURE OPERATION U/S 132 OF THE ACT WAS CARR IED OUT ON 4.2.2009 IN THE CASES OF COMMONLY KNOWN AS M/ S. ZOOM DEVELOPERS AND BRILLIANT ESTATE. DURING THE COUR SE OF SEARCH, CERTAIN DOCUMENTS PERTAINING TO THE ASSESSEE COMPANY WERE FOUND. ACCORDINGLY, A NOTICE U/S 153C O F THE ACT WAS ISSUED ON 15.12.2009. IN RESPONSE TO TH E NOTICE, THE ASSESSEE HAS RAISED AN OBJECTION. THE ASSES SEE FILED AN OBJECTION DATED 15.1.2010, WHEREIN THE LEGALI TY OF THE NOTICE WAS CHALLENGED. HOWEVER, THIS OBJECTION O F THE ASSESSEE WAS NOT ACCEPTED AND THE ASSESSMENT WAS FRAMED, THEREBY THE A.O. MADE ADDITION OF RS.65,87,000 /- IN RESPECT OF CASH PAYMENTS AMOUNTING TO RS.32,93,500 /-. AGAINST THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE TH E LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS PAR TLY [IT(SS)A NO.44/IND/2015 & CO 45/IND/2016] [M/S. BRILLIANT SARE REALITY PVT. LTD. INDORE] 4 ALLOWED THE APPEAL. THEREBY THE ADDITION MADE BY THE ASSESSING OFFICER WAS DELETED. HOWEVER, THE QUESTION OF LEGALITY WAS DECIDED AGAINST THE ASSESSEE. IN CROSS OBJECTION, THE ASSESSEE HAS CHALLENGED THE ORDER OF TH E LD. CIT(A) IN RESPECT OF REJECTING GROUND TAKEN AGAINST T HE LEGALITY OF THE PROCEEDINGS U/S 153C OF THE ACT. IT IS CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE THAT TH E ASSESSMENT HAS NOT BEEN FRAMED IN ACCORDANCE WITH LAW. BEFORE THE A.O., THE OBJECTION WAS RAISED THAT NO INCRIMINATING MATERIAL PERTAINING TO THE ASSESSEE WAS RECOVERED AND ASSESSMENT IS THEREFORE NOT MADE ON THE BASIS OF INCRIMINATING MATERIAL. 4. ON THE 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 THES E DOCUMENTS, THE ASSESSING OFFICER WAS JUSTIFIED IN INI TIATING [IT(SS)A NO.44/IND/2015 & CO 45/IND/2016] [M/S. BRILLIANT SARE REALITY PVT. LTD. INDORE] 5 THE PROCEEDINGS AGAINST THE ASSESSEE. HE CONTENDED T HAT THE GROUNDS RAISED IN THE OBJECTIONS BE REJECTED. 5. LD. COUNSEL FOR THE ASSESSEE IN REJOINDER SUBMITT ED 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 SUBMISSIO NS OF THE ASSESSEE ARE CONTRARY TO THE RECORDS AS THE DOCUMEN TS FILED ARE THE JOURNAL ENTRIES AND SOME OF THE VOUCHERS OR DEBIT NOTES WHICH ARE BELONGING TO THE ASSESSEE. THE REFORE, UNDER THESE FACTS, IT CANNOT BE CONSTRUED THAT THERE W AS 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 FILE D BY THE ASSESSEE IS DISMISSED. [IT(SS)A NO.44/IND/2015 & CO 45/IND/2016] [M/S. BRILLIANT SARE REALITY PVT. LTD. INDORE] 6 7. NOW WE TAKE UP THE REVENUES APPEAL IN IT(SS)A NO.44/IND/2015. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ERRED IN DELETING THE ADDITION OF RS.65,87,000/- WH ICH WAS MADE ON ACCOUNT OF DISALLOWANCE OF CASH PAYMENTS U/S 40A(3) . 2. ERRED IN DELETING THE ADDITION WHILE HOLDING THAT T HE IDENTITY OF SELLERS WAS DISCLOSED. THE LD. CIT(A) HAS COMPLETE LY IGNORED THAT NO SUCH EXCEPTION IS PRESCRIBED U/S 40A(3) OF THE I.T. ACT, 1961. 3. ERRED IN DELETING THE ADDITION ON THE BASIS OF PRAC TICABILITY OF BUSINESS, WHILE COMPLETELY IGNORING THAT THE SO CAL LED PRACTICABILITY IS NO JUSTIFICATION IN THE EYES OF LAW; AND IF THIS NORM IS APPLIED, ALL THE INFRINGEMENTS OF LAW WOULD BE LEGALISED. 4. THE APPELLANT RESERVES THE RIGHT TO ADD, AMEND OR A LTER THE GROUND OF APPEAL ON OR BEFORE THE DATE THE APPEAL IS FINALLY HEARD FOR DISPOSAL. 8. THE ONLY EFFECTIVE GROUND IS AGAINST DELETING THE ADDITION OF RS.65,87,000/- BY INVOKING THE PROVISION S OF SECTION 40A(3) OF THE ACT. 9. LD. D.R. SUPPORTED THE ORDER OF THE A.O. AND SUBMITTED THAT LD. CIT(A) WAS NOT JUSTIFIED IN DELET ING THE ADDITION AS ADMITTEDLY THE ASSESSEE HAS MADE PAYMENT IN CASH AND THE CASE OF THE ASSESSEE DOES NOT FALL IN ANY OF THE [IT(SS)A NO.44/IND/2015 & CO 45/IND/2016] [M/S. BRILLIANT SARE REALITY PVT. LTD. INDORE] 7 EXCEPTION. HE THEREFORE, PRAYED THAT THE FINDING OF THE LD. CIT(A) BE SET ASIDE AND THAT OF THE A.O. BE CONFIRMED. 10. PER CONTRA, LD. COUNSEL FOR THE ASSESSEE SUBMITTE D THAT THERE IS NO FINDING THAT THESE EXPENSES ARE NOT GENUINE. SOME OF THE ADVANCES WERE PAID IN CASH FOR TH E BUSINESS EXPEDIENCY, REST OF THE PAYMENTS WERE MADE THROUGH BANKING CHANNEL. HE PLACED RELIANCE ON THE JUDGEMENT OF THE HON'BLE ALLAHABAD HIGH COURT RENDERE D IN THE CASE OF CIT VS. CHOUDHARY & COMPANY (1996) 217 ITR 431 (ALL). FURTHER, RELIANCE IS MADE ON THE JUDGEME NT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. RHYDBERG PHARMACEUTICALS LTD. 269 ITR 561 (DEL.). 11. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE LD. CIT(A) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE IN PARA-6 OF HIS ORDER AS UNDER:- [IT(SS)A NO.44/IND/2015 & CO 45/IND/2016] [M/S. BRILLIANT SARE REALITY PVT. LTD. INDORE] 8 [IT(SS)A NO.44/IND/2015 & CO 45/IND/2016] [M/S. BRILLIANT SARE REALITY PVT. LTD. INDORE] 9 [IT(SS)A NO.44/IND/2015 & CO 45/IND/2016] [M/S. BRILLIANT SARE REALITY PVT. LTD. INDORE] 10 12. IT IS THE CASE OF THE ASSESSEE THAT THE PAYMENT IN CASH EXCEEDING THE MONETARY LIMIT SO PRESCRIBED WAS DUE TO THE BUSINESS EXPEDIENCY AS THE SELLERS OF THE LAND INSIST ED FOR MAKING PAYMENTS IN CASH. HOWEVER, SUBSTANTIAL PAYMENT S WERE MADE THROUGH BANKING CHANNEL. IT IS CONTENDED TH AT THE ASSESSEE HAD NO INTENTION OF EVADING TAX. ALL TRANSACTIONS ARE GENUINE BUSINESS TRANSACTIONS. THE RELIANCE IS PLACED ON VARIOUS JUDICIAL PRONOUNCEMENTS T O BUTTRESS THE CONTENTION THAT THE PROVISIONS TO BE LI BERALLY CONSTRUED. FOR THE SAKE OF CLARITY, THE RELEVANT PROV ISIONS OF SECTION 40A(3) OF THE ACT AND RULE 6DD ARE REPROD UCED AS UNDER:- SECTION 40A(3): WHERE THE ASSESSEE INCURS ANY EXPENDITURE IN RESP ECT OF WHICH A PAYMENT OR AGGREGATE OF PAYMENTS MADE TO A PERSON I N A DAY, OTHERWISE THAN BY AN ACCOUNT PAYEE CHEQUE DRAWN ON A BANK OR ACCOUNT PAYEE BANK DRAFT, [OR USE OF ELECTRONIC CLEARING SYSTEM THROUGH A BANK ACCOUN T, EXCEEDS TEN THOUSAND RUPEES,] NO DEDUCTION SHALL BE ALLOWED IN RESPECT O F SUCH EXPENDITURE. RULE 6DD: NO DISALLOWANCE UNDER SUB-SECTION (3) OF SECTION 4 0A 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 PAYME NT OR AGGREGATE OF PAYMENTS [IT(SS)A NO.44/IND/2015 & CO 45/IND/2016] [M/S. BRILLIANT SARE REALITY PVT. LTD. INDORE] 11 MADE TO A PERSON IN A DAY, OTHERWISE THAN BY AN ACC OUNT PAYEE CHEQUE DRAWN ON A BANK OR ACCOUNT PAYEE BANK DRAFT*, EXCEEDS TWE NTY 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 A CT, 1949 (10 OF 1949); II. THE STATE BANK OF INDIA OR ANY SUBSIDIARY BANK AS D EFINED IN SECTION 2 OF THE STATE BANK OF INDIA (SUBSIDIARY BA NKS) ACT, 1959 (38 OF 1959); III. ANY CO-OPERATIVE BANK OR LAND MORTGAGE BANK; IV. ANY PRIMARY AGRICULTURAL CREDIT SOCIETY OR ANY PRIM ARY 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, 1956 (31 O F 1956); (B) WHERE THE PAYMENT IS MADE TO THE GOVERNMENT AND, UN DER THE RULES FRAMED BY IT, SUCH PAYMENT IS REQUIRED TO BE MADE I N LEGAL TENDER; (C) WHERE THE PAYMENT IS MADE BY I. ANY LETTER OF CREDIT ARRANGEMENTS THROUGH A BANK; II. A MAIL OR TELEGRAPHIC TRANSFER THROUGH A BANK; III. A BOOK ADJUSTMENT FROM ANY ACCOUNT IN A BANK TO ANY OTHER ACCOUNT IN THAT OR ANY OTHER BANK; IV. A BILL OF EXCHANGE MADE PAYABLE ONLY TO A BANK; V. THE USE OF ELECTRONIC CLEARING SYSTEM THROUGH A BAN K ACCOUNT; VI. A CREDIT CARD; VII. A DEBIT CARD. EXPLANATIONFOR THE PURPOSES OF THIS CLAUSE AND CLA USE (G), THE TERM BANK MEANS ANY BANK, BANKING COMPANY OR SOCIETY R EFERRED TO IN SUB- CLAUSES (I) TO (IV) OF CLAUSE (A) AND INCLUDES ANY BANK [NOT BEING A BANKING COMPANY AS DEFINED IN CLAUSE (C) OF SECTION 5 OF TH E BANKING REGULATION ACT, 1949 (10 OF 1949), WHETHER INCORPORATED OR NOT , WHICH IS ESTABLISHED OUTSIDE INDIA; (D) WHERE THE PAYMENT IS MADE BY WAY OF ADJUSTMENT AGAI NST THE AMOUNT OF ANY LIABILITY INCURRED BY THE PAYEE FOR ANY GOOD S SUPPLIED OR SERVICES RENDERED BY THE ASSESSEE TO SUCH PAYEE; (E) WHERE THE PAYMENT IS MADE FOR THE PURCHASE OF (I) AGRICULTURAL OR FOREST PRODUCE; OR (II) THE PRODUCE OF ANIMAL HUSBANDRY (INCLUDING LIVESTOC K, MEAT, HIDES AND SKINS) OR DAIRY OR POULTRY FARMING; OR (III) FISH OR FISH PRODUCTS; OR (IV) THE PRODUCTS OF HORTICULTURE OR APICULTURE, TO THE CULTIVATOR, GROWER OR PRODUCER OF SUCH ARTICLES, PRODUCE OR PRODUCTS; [IT(SS)A NO.44/IND/2015 & CO 45/IND/2016] [M/S. BRILLIANT SARE REALITY PVT. LTD. INDORE] 12 (F) WHERE THE PAYMENT IS MADE FOR THE PURCHASE OF THE P RODUCTS MANUFACTURED OR PROCESSED WITHOUT THE AID OF POWER IN A COTTAGE INDUSTRY, TO THE PRODUCER OF SUCH PRODUCTS; (G) WHERE THE PAYMENT IS MADE IN A VILLAGE OR TOWN, WHI CH ON THE DATE OF SUCH PAYMENT IS NOT SERVED BY ANY BANK, TO ANY PERS ON WHO ORDINARILY RESIDES, OR IS CARRYING ON ANY BUSINESS, PROFESSION OR VOCATION, IN ANY SUCH VILLAGE OR TOWN; (H) WHERE ANY PAYMENT IS MADE TO AN EMPLOYEE OF THE ASS ESSEE OR THE HEIR OF ANY SUCH EMPLOYEE, ON OR IN CONNECTION WITH THE RETIREMENT, RETRENCHMENT, RESIGNATION, DISCHARGE OR DEATH OF SU CH EMPLOYEE, ON ACCOUNT OF GRATUITY, RETRENCHMENT COMPENSATION OR S IMILAR TERMINAL BENEFIT AND THE AGGREGATE OF SUCH SUMS PAYABLE TO T HE EMPLOYEE OR HIS HEIR DOES NOT EXCEED FIFTY THOUSAND RUPEES; (I) WHERE THE PAYMENT IS MADE BY AN ASSESSEE BY WAY OF SALARY TO HIS EMPLOYEE AFTER DEDUCTING THE INCOME-TAX FROM SALARY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 192 OF THE AT, AND WHEN S UCH EMPLOYEE I. IS TEMPORARILY POSTED FOR A CONTINUOUS PERIOD OF FI FTEEN 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 P LACE 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 S TRIKE; (K) WHERE THE PAYMENT IS MADE BY ANY PERSON TO HIS AGEN T WHO IS REQUIRED TO MAKE PAYMENT IN CASH FOR GOODS OR SERVICES ON BE HALF OF SUCH PERSON; (L) WHERE THE PAYMENT IS MADE BY AN AUTHORISED DEALER O R A MONEY CHANGER AGAINST PURCHASE OF FOREIGN CURRENCY OR TRA VELLERS CHEQUES IN THE NORMAL COURSE OF HIS BUSINESS. EXPLANATIONFOR THE PURPOSES OF THIS CLAUSE, THE EX PRESSIONS AUTHORISED DEALER OR MONEY CHANGER MEANS A PERS ON AUTHORISED AS AN AUTHORISED DEALER OR A MONEY CHANGER TO DEAL IN FOREIGN CURRENCY OR FOREIGN EXCHANGE UNDER ANY LAW FOR THE TIME BEING I N 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 N O.83 [IT(SS)A NO.44/IND/2015 & CO 45/IND/2016] [M/S. BRILLIANT SARE REALITY PVT. LTD. INDORE] 13 TO 85/IND/2011 DATED 7.6.2012 IN WHICH THE TRIBUNAL HAS HELD AS UNDER: [IT(SS)A NO.44/IND/2015 & CO 45/IND/2016] [M/S. BRILLIANT SARE REALITY PVT. LTD. INDORE] 14 14. FROM THE ABOVE DECISION, IT IS CLEAR THAT IN THAT C ASE, THE ASSESSEE HAD NOT CLAIMED EXPENDITURE IN ITS PROFIT & LOSS ACCOUNT. THE RELIANCE IS ALSO PLACED BY THE LD. C IT(A) ON THE DECISION OF HON'BLE DELHI HIGH COURT RENDERE D IN THE [IT(SS)A NO.44/IND/2015 & CO 45/IND/2016] [M/S. BRILLIANT SARE REALITY PVT. LTD. INDORE] 15 CASE OF CIT VS. RHYDBERG PHARMACEUTICALS LTD. 269 ITR 561. THE HON'BLE HIGH COURT HELD AS UNDER: WE MAY NOTE THAT WE ARE NOT OF THE VIEW THAT OBTAI NING A CHEQUE OR A BANK DRAFT IS HAZARDOUS AND CUMBERSOME PROCEDURE. SUFFICE IT TO SAY THAT IN THE PRESENT CASE, THE TRI BUNAL WAS OF THE OPINION THAT THE PAYEE INSISTED FOR CASH PAYMENT AS OBSERVED BY THE LEARNED CIT(A) AND FURTHER THAT THE TRANSACTIONS WE RE FOUND TO BE GENUINE. WE MAY ALSO NOTE THAT IN ATTAR SINGH GURM UKH 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. CONS IDERATION OF BUSINESS EXPEDIENCY AND OTHER RELEVANT FACTORS ARE NOT EXCLUDED. GENUINE AND BONA FIDE TRANSACTIONS ARE NOT TAKEN OU T OF THE SWEEP OF THE SECTION. IT IS UP TO THE ASSESSEE TO FURNIS H TO THE SATISFACTION OF THE A.O. THE CIRCUMSTANCES UNDER WHICH PAYMENT, IN THE MANNER PRESCRIBED IN S. 40A(3), WAS NOT PRACTICABLE OR WOU LD HAVE CAUSED GENUINE DIFFICULTY TO THE PAYEE. IT IS ALSO OPEN T O 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 DEE DS 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, [IT(SS)A NO.44/IND/2015 & CO 45/IND/2016] [M/S. BRILLIANT SARE REALITY PVT. LTD. INDORE] 16 ADDITION BY INVOKING PROVISIONS OF SECTION 40A(3) OF THE ACT WAS NOT JUSTIFIED. LOOKING TO THE TOTALITY OF THE FAC TS AND IN VIEW OF THE FACT THAT THE ASSESSEE HAD TO MAKE PAYMENT O N THE INSISTENCE OF THE SELLERS RESPECTIVELY AND FOLLO WING THE JUDGEMENT OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF SMT. HARISHILA CHORDIA VS. ITO IN 298 ITR 92 AND MORE PARTICULARLY IN THE CASE OF ANUPAM TELESERVICES VS. ITO IN TAX APPEAL NO.556 OF 2013 OF HON'BLE GUJARAT HIGH COUR T, WE DO NOT SEE ANY REASON TO INTERFERE IN THE FINDING OF THE LD. CIT(A) AND THE SAME IS HEREBY AFFIRMED. GROUND RAI SED BY THE REVENUE IS DISMISSED. 16. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED AND THE CROSS OBJECTION FILED BY THE ASSESSEE IS ALSO DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 28 . 12.2018. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 28/12/2018 VG/SPS [IT(SS)A NO.44/IND/2015 & CO 45/IND/2016] [M/S. BRILLIANT SARE REALITY PVT. LTD. INDORE] 17 COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE