ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1(1), RAIPUR V. SHRI SUBODH SINGHANIA , RAIPUR

ITA 135/RPR/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0601 (ITAT-RAIPUR)
• Duration Of Justice: 3 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 04-08-2022
• Assessment Year: 2014-2015
• Appeal Filed On: 12-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Income from undisclosed sources; Earning of tax free income
• Section: 68; 143(3); 14A; 143(2); 72; 13; 22

Judgement Text

आयकर अपीलȣय अͬधकरण Ûयायपीठ रायप ु र मɅ। IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.135/RPR/2019 Ǔनधा[रण वष[ / Assessment Year : 2014-15 The Assistant Commissioner of Income Tax-1(1), Raipur (C.G.) .......अपीलाथȸ / Appellant बनाम / V/s. Shri Subodh Singhania 5 th School Road, Choubey Colony, Raipur (C.G.) PAN : AJJPS4392P ......Ĥ×यथȸ / Respondent Assessee by :Shri Veekaas S. Sharma, CA Revenue by :Shri Debashish Lahiri, CIT-DR स ु नवाई कȧ तारȣख / Date of Hearing : 05.08.2022 घोषणा कȧ तारȣख / Date of Pronouncement : 17.10.2022 2 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 आदेश / ORDER PER RAVISH SOOD, JM: The present appeal filed by the revenue is directed against the order passed by the CIT(Appeals)-I, Raipur dated 01.02.2019, which in turn arises from the order passed by the A.O under Sec.143(3) of the Income-Tax Act, 1961 (for short ‘the Act’) dated 30.12.2016 for assessment year 2014-15. The department has assailed the impugned order on the following grounds of appeal before us : 1. "Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition of Rs.1,28,50,000/- made by the AO u/s 68 of the I.T. Act on account of unexplained cash credits?" 2. "Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition of Rs. 2,10,00,000/- made by the -AO u/s 68 of the I.T. Act on account of impugned advance received from M/s Tirthyatra Investment & Properties Ltd for sale of land.?" 3. "Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition of Rs. 1,28,50,000/- & Rs. 2,10,00,000/- when the assessee had failed to discharge his primary onus to justify the cash credits on account of impugned advance received against sale of land and impugned advance from customers by producing necessary documents/ evidences in this respect?" 4. "Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition of Rs. 1,28,50,000/- & Rs.2,10,00,000/- made by the AO on account of impugned advance from customers & M/ s Tirthyotra Investment & Properties Ltd, by ignoring the evidence brought on record by the AO that the assessee failed to prove the identity, creditworthiness and genuineness of transaction as per legal parameter of the provisions u/s 68 of the IT Act? 3 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 5. "Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition of Rs.1,28,50,000/- & Rs. 2,10,00,000/- made by the AO on account of impugned advance from customers & M/s Tirthyatra Investment & Properties Ltd which is against the ratio of the settled law of the Apex Court in the case of (i) Kale Khan Mohammad Hanif Vs CIT(SC) 50 ITR 1 (H) CIT Vs Devi Prasad Vishwanath Prasad (SC) 72 ITR 194 and (iii) Ratanchand Dipchand Vs CIT (MP) 38 ITR 188?" 6. "Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition of Rs. 1,28,50,000/- & Rs. 2,10,00,000/- made by the AO on account of impugned advance from customers & M/s Tirthyatra Investment & Properties Ltd, thereby not considering and not distinguishing the findings of the AO which is well supported by the ratio of the judgment of Hon'ble Gujrat High Court in the case of Pavan kumar M Sanghvi Vs ITO (2018) 404 ITR 601 (Guj), wherein it is mentioned that 'it is also settled legal position that the onus of the assessee, of explaining nature and source of credit, does not get discharged merely by filing confirmatory letters, or demonstrating that the transactions are done through the banking channels or even by filing the income tax assessment particulars ?" 7. "Whether on points of law and on facts & circumstances of the case, the Hon'ble High Court was justified in upholding the order of the ITAT which is contrary to the ratio of the decisions in CIT Vs Precision Finance Pvt Ltd 1994 2008 ITR 465, wherein it was held that it is for the assessee to prove the identity of the creditors, the creditworthiness and genuineness of the transaction and mere furnishing of particulars is not enough?" 8. "Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition. of Rs. 1,28,50,000/- & Rs. 2,10,00,000/- made by the AO on account of impugned advance from customers & M/s Tirthyatra Investment & Properties Ltd which is contrary to the ratio of the decisions of Hon'ble Supreme Court in the case of A. Govindarajulu Mudaliar Vs CIT (1958) 34 ITR 807 (SC), CIT Vs M. GanapathiMudaliar (1964) 53 ITR 623 (SC), which clearly states that where the assessee failed to prove satisfactorily the source and nature of a credit entry in his books, and it is held that the relevant amount is the income of the assessee, it is not necessary for the Department to locate its exact source?" 9. Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition of Rs. 1,28,50,000/- & Rs. 2,10,00,000/- made by the AO on account of impugned advance from customers & M/s Tirthyatra Investment & 4 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 Properties Ltd, thereby without considering and distinguishing the ratio of the judgment of the cases such as Rameshwar Prasad Bagla 68 ITR 653(Allahabad) & Homi Vs CIT 41 ITR 135, 142 by (Supreme Court) wherein it is stated that the totality of circumstances must be considered in a case of circumstantial evidence & the totality of the circumstances has to be taken into consideration and the combined effect of all those circumstances is determinative of the question as to whether or not a particular Act is proved ?" 10."Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the disallowance of Rs.6,52,712/ - made u/s 14A of the I T Act r.w.s 8D of the I T Rules made by the AO?". 11."Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) has erred in deleting the addition made u/s 14A, when clause (3) of the Section 14A of the Act clearly prescribes that provision of section 14A(2) shall also apply in relation to case where any assessee claims that no expenditure has been incurred by him in relation to the income which does not part form part of the total income under this Act, as held in the case of Cheminvest Ltd. Vs ITO (ITAT, SB-Del) 121 ITD 318 AND Pradeep Kar Vs ACIT(Kar) 319 ITR 416?". 12."Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) having the concurrent powers of the AO as per the provisions of law u/s 250(4) of the IT Act, was justified in' giving the finding that the impugned amounts of advance received against sale of land and advance from customers do not call for addition under the mischief of section 68 of the IT Act and disallowance of interest expenses u/s 14A of the I.T. Act?" 13. "Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified by giving a finding which is contrary to the evidence on record; as the Ld. CIT(A) has accepted the identity, creditworthiness of the customers as genuine, a finding which is factually incorrect, thereby rendering the decision, which is perverse?" 14. "Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in giving a decision in favour of the assessee and against the revenue though there is no nexus between the conclusion of facts and primary fact upon which without conclusion is based?" 15. The order of Ld. CIT(A) is erroneous both in law and on facts. 5 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 16. Any other grounds that may be adduced at the time of hearing.” 2. Succinctly stated, the assessee who is engaged in the business of real estate had e-filed his return of income for the assessment year 2014-15 on 24.03.2015, declaring an income of Rs.32,87,130/-. Subsequently, the case of the assessee was selected for scrutiny assessment u/s. 143(2) of the Act. 3. During the course of the assessment proceedings, it was observed by the A.O that the assessee had, inter-alia, shown “advance (against land)” of Rs.3.70 crore in his balance sheet for the year under consideration. The assessee on being queried placed on record copies of “agreements to sell” executed with 23 different parties from whom advances were received through various modes like cheque/RTGS/cash, as under: Particulars Amount Amrik Singh Land Adv. 100000.00 Anil Verma Land, Adv. 500000.00 Anita Chandel 500000.00 Chhaya Yadav 400000.00 Kamlesh Sahu S/o. Pitamberlal Land Adv. 500000.00 Kishor Agrawal Land Adv. 400000.00 Lakhan Yadu 3200000.00 Modi Resources Pvt. Ltd. 1500000.00 Mohit Agrawal 400000.00 Monika Agrawal 500000.00 Naresh Singhania 850000.00 Preeti Sahu Land Adv. 300000.00 Raju Bag Adv. Land 500000.00 Rakesh Madan 400000.00 Ram Bhawan Pandey Land Adv. 500000.00 Sanjay Pandey 500000.00 Sanjeevan Lal Shoury 2200000.00 Santan Sahu Land Adv. 500000.00 Shantilal Meghraj Parakh HUF ( Land Adv.) 1000000.00 6 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 Subodh Singhnia HUF ( Land Adv.) 250000.00 Suchi Aurara Land Adv. 500000.00 Sudha Chandel Land Adv. 500000.00 Tirthayatra Properties and Finance Pvt. Ltd. 21000000.00 Total 37,000,000.00 It was observed by the A.O that the aforesaid “agreements to sell” in case of 18 parties were executed on stamp papers sold by Shri Zafar Ali, Stamp vendor. The A.O in order to verify the authenticity of the aforesaid agreements issued a letter u/s.133(6) of the Act dated 17.12.2016 to the Sr. District Registrar, Raipur wherein he was called upon to furnish his report as regards the genuineness of the stamp papers which the assessee had claimed to have purchased from the aforementioned stamp vendor. In reply, it was stated by the Sr. District Registrar, Raipur that Shri Zafar Ali, Stamp Vendor on being queried had intimated that he had never purchased or sold the stamp papers in question. Copy of the “affidavit” a/w. letter of Shri Zafar Ali were forwarded to the A.O. The A.O in order to verify the factual position summoned Shri Zafar Ali, Stamp Vendor and recorded his statement on oath. In his statement, it was, inter alia, stated by Shri Zafar Ali (supra) that the alleged signatures, handwriting and stamp endorsements on the stamp papers were not his and he had during the relevant period suspended his work as that of a stamp vendor. Elaborating on his aforesaid contention, it was stated by him that as he had during the period 26.07.2010 to 31.03.2014 not carried out any work of purchase/sale of stamp papers, 7 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 therefore, there was no question of having sold the stamp papers in question. It was further clarified by him that he had only subsequent to 30.04.2014 got back into his work of purchase/sale of stamp papers and since then had been filing the complete details with the Sr. District Registrar, Raipur. Once again he referred to his “affidavit” and the letter dated 21.12.2016 that was filed with Sr. District Registrar, Raipur, wherein the aforesaid facts were deposed by him. The A.O on the basis of the aforesaid facts observed that the assessee had filed false “agreements to sell” that were claimed to have been executed with the following 18 parties: S.No. Name of the purchaser Stamp No. S. No. with date of sale of stamp Amount received by the assesee as advance for land. 1. Amrik Singh P-580288 1488 of 06.09.2013 100000/- 2. Anil Verma Land P-580371 433 of 13.05.2013 500000/- 3. Anita Chandel P-580373 323 of 03.05.2013 500000/- 4. Chhaya Yadav P-580374 815 of 22.06.2013 400000/- 5. Kamlesh Sahu P-580376 432 of 13.05.2013 500000/- 6. Kishor Agrawal P-580307 1373 of 04.09.2013 400000/- 7. Lakhan Lal Yadu P-580385 299 of 01.05.2013 3200000/- 8. Monika Agrawal P-580382 1394 of 05.09.2013 500000/- 9. Naresh Singhania P-580386 631 of 20.05.2013 850000/- 10. Ku. Preeti Sahu P-580388 367 of 10.05.2013 300000/- 11. Raju Bag P-580390 - 500000/- 8 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 12. Rakesh Pilakandi P-580290 816 of 22.02.2013 400000/- 13. Rambhawan Pande P-580396 434 of 13.05.2013 500000/- 14. Sanjay Pandey P-580428 325 of 03.05.2013 500000/- 15. Sanjeevan Lal Sori P-580430 278 of 30.04.2013 2200000/- 16. Santan Sahu P-580379 -- 500000/- 17. Smt. Suchi Arora P-580380 321 of 03.05.2013 500000/- 18. Smt. Sudha Chandel P-580381 322 of 03.05.2013 500000/- Total Amount 1,28,50,000/- The A.O on the basis of his aforesaid observations called upon the assessee to explain that now when the stamp papers on which the impugned “agreements to sell” that were claimed to have been executed with the aforementioned 18 parties were proved to be fake, therefore, why the amount of Rs.1,28,50,000/- that was shown to have been received from the aforementioned 18 parties may not be held to be his unaccounted income. In reply, the assessee placed on record “affidavits” of all the aforementioned parties wherein they had duly confirmed of having given advances to the assessee for purchase of land. However, the A.O did not find favour with the aforesaid explanation of the assessee and rejected the same for the following reasons: (a) Out of the total land advance of Rs.3,70,00,000/- all the advance has been returned to the purchaser due to land agreement cancellation. Not a single land sale deed produced by the assessee in support of his claim till date. This clearly shows that the land advance shown in audit report is none other than but a modus operandi of tax evasion. 9 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 (b) The assessee has not produced the bank statement or any other documents of the purchaser for authentication of his claim. (c) On the fake stamp, it is not possible to receive such a huge amount of advance from customer for land sale without valid agreement. The A.O holding a conviction that the assessee had laundered his unaccounted money in the garb of cash advances received from the aforementioned 18 parties, thus, added the entire amount of Rs.1,28,50,000/- that was claimed by him to have been received from them as unexplained cash credits u/s.68 of the Act. 4. The A.O further observed that the assessee had claimed to have received an advance in lieu of an “agreement to sell” from M/s. Tirthyatra Investment & Properties Pvt. Ltd., Raipur amounting to Rs.2,10,00,000/-. The A.O carrying certain doubts once again issued a letter u/s.133(6) of the Act to the Sr. District Registrar, Raipur and called upon him to furnish his report after making necessary verifications. In reply, the Sr. District Registrar, Raipur filed with the A.O a copy of the register of the concerned stamp vendor, viz. Shri Sabbir Ali, S. No.12410 dated 14.03.2013 (Stamp No. H-109348). The A.O on a perusal of the aforesaid copy of the register of the stamp vendor, observed, that there was no reference about the sale of any stamp paper on which the impugned “agreement to sell” was claimed by the assessee to have been executed with M/s. Tirthyatra Investment & Properties Pvt. Ltd. Raipur. The A.O on the basis of his aforesaid 10 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 observations held the aforesaid amount of advance of Rs. 2.10 crore that was claimed by the assessee to have been received from M/s. Tirthyatra Investment & Properties Pvt. Ltd., Raipur as an unexplained cash credit u/s.68 of the Act for the following reasons: “(a) The stamp used for making agreement is fake as per copy of register provided by the Registrar, Raipur. It is worthwhile to mention here that it is compulsory for a stamp vendor to give his complete details of every stamp about whom who had sold the stamp and after the year ended, it will be submitted to the office of the Sr. District Registrar. (b) The writing in back of stamp, which is written by the stamp vendor is same as used in the above case of Zafar Ali, Stamp Vendor. (c) The assessee in his submission dated 26.12.2016 in para 10.1 of page no 13, it is submitted that he is enclosing the ledger account and bank statement of the M/s Trithyatra Investment & Properties Ltd., Raipur but the submission was only supported with ledger account of the purchaser company. (d) Looking to the status of the purchaser company it is not possible to give such a huge amount to the assessee. (e) The purchaser company has cancelled the agreement and not purchased the land for which the land advance was given.” 5. It was further observed by the A.O that though the assessee had made investments in exempt income yielding shares but had not offered on a suo- motto basis any disallowance u/s.14A of the Act. Accordingly, the A.O worked out the disallowance u/s.14A r.w.r 8D(2)(iii) at an amount of Rs. 6,52,712/-. 6. The A.O on the basis of his aforesaid observations after. inter alia, making the aforesaid additions/disallowances, vide his order passed 11 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 u/s.143(3) dated 30.12.2016 assessed the income of the assessee at Rs.3,77,89,840/-. 7. Aggrieved, the assesee carried the matter in appeal before the CIT(Appeals). The CIT(Appeals) observing that as the assessee during the year under consideration had not received any exempt income, thus, vacated the disallowance of Rs.6,52,712/- made by the A.O u/s.14A of the Act. 8. The CIT(Appeals) after deliberating at length on the contentions advanced by the assessee found that the observation of the A.O that the assessee had received the entire amount of advances of Rs.128.50 lac in cash from the aforementioned 18 parties to be factually incorrect. It was observed by the CIT(Appeals) that as per the details filed by the assessee, an amount of Rs. 62.50 lacs was received by him through banking channel. Also, it was noticed by him that out of the amount of Rs.128.50 lac an amount of Rs. 108.50 lac was refunded to the aforesaid parties (out of which an amount of Rs. 93.50 lac was refunded through banking channel). The CIT(Appeals) further observed that the amount which was received by the assessee from M/s. Tirthyatra Investment & Properties Pvt. Ltd., Raipur was thereafter repaid through banking channel. It was also observed by him that the aforesaid amounts were received from the respective parties for sale of land forming part of a project which was subsequently aborted. Elaborating 12 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 on the reasons which had led to the abortion of the project, it was the claim of the assessee before the CIT(Appeals) that as the land in question was for industrial use and its conversion for residential purpose was being unduly delayed, therefore, being left with no other alternative the project had to be aborted by the assessee’s group, and the advances/earnest money that was received from the concerned parties was thereafter refunded to them. The CIT(Appeals) further observed that during the year under consideration all the parties had duly confirmed the transactions of having advanced the respective amounts to the assessee towards purchase of the respective pieces of land by them which though did never materialize. It was further observed by him that the A.O had neither raised any doubt as regards the “affidavits” which were filed by the aforesaid parties nor carried out any independent enquiries on his own, but had summarily discarded the duly substantiated explanation of the assessee and added the amounts received from the aforementioned parties as unexplained cash credits u/s.68 of the Act. The CIT(Appeals) was also not persuaded to subscribe to the adverse inferences which were drawn by the A.O by relying on the standalone statements of the stamp vendors. The CIT(Appeals) observed that the duly substantiated claim of the assessee of having received the aforesaid amounts towards advance/earnest money from the aforementioned 18 parties could not have been dislodged only for the reason that the stamp vendor concerned had acted in an irresponsible manner and not properly 13 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 maintained his records. In fact, it was observed by him that now when all the 18 parties had themselves confirmed the transactions in question and admitted ogf having advanced money to the assessee, therefore, merely on the basis of suspicion that found its roots in the uncorroborated statements of the stamp vendors that the claim of the assessee could not have been summarily rejected and impugned additions made in his hands. The CIT(Appeals) further observed that Shri Sabbir Ali (supra) had filed an ‘affidavit’ dated 12.02.2017, wherein he had duly confirmed of having sold the stamp papers on which the “agreement to sell” was executed between the assessee and M/s. Tirthyatra Investment & Properties Pvt. Ltd. Raipur. The CIT(Appeals) being of the view that the aforesaid ‘affidavit’ that was filed by the assessee with him was an ‘additional evidence’, therefore, he forwarded the same to the A.O for his comments. It was noticed by the CIT(Appeals) that the A.O instead of commenting on the “affidavit” of Shri Sabbir Ali (supra) issued summons to 8 parties. The CIT(Appeals) observed that all the aforesaid persons had appeared before the A.O, and he had recorded the statements of two persons. As the statements of other persons were not recorded, therefore, it was observed by the CIT(Appeals) that they had filed their respective ‘affidavits' before the A.O confirming that they had advanced the respective amounts to the assessee. The CIT(Appeals) further observed that in so far the advance of Rs.2.10 crore that was received by the assessee from M/s. Tirthyatra Investment & Properties Pvt. Ltd. Raipur, the 14 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 A.O had issued summon to the director of the said company, who in compliance thereto had appeared before him and confirmed the transaction in question. Also, it was observed by the CIT(Appeals) that the A.O had not made any adverse comments as regards the amounts that were claimed to have been received by the assessee from M/s. Tirthyatra Investment & Properties Pvt. Ltd., Raipur. The CIT(Appeals) observed that the assessment in the case of M/s. Tirthyatra Investment & Properties Pvt. Ltd., Raipur for the assessment year 2014-15 was framed u/s. 143(3) of the Act, and no adverse inferences as regards the transaction in question was drawn in its hand. 9. Adverting to the statements of the stamp vendor which was heavily relied upon by the A.O, the CIT(Appeals) was of the view that the A.O despite specific requests had failed to afford an opportunity to the assessee to cross- examine the said person. Apart from that, the CIT(Appeals) was of the view that now when both the parties to the respective agreements had confirmed the transactions in question, then, adverse inferences could not have been drawn merely for the reason that the A.O carried certain doubts as regards the genuineness of the transaction of purchase of stamp papers. Also, the CIT(Appeals) was of the view that there could be multiple reasons as to why Shri Zafar Ali (supra) had denied of having sold the stamp papers under consideration. Also, the CIT(Appeals) was of the view that though Shri Zafar 15 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 Ali (supra) had claimed that he had restarted his work of purchase/sale of stamp papers from 31.03.2014, however, there was no material available on record which would irrefutably evidence that he was not carrying out the activities prior to the said date. The CIT(Appeals) on the basis of his aforesaid observations concluded that there was no justifiable reason for the A.O to have drawn adverse inferences as regards the receipt of advance/earnest money by the assessee on the basis of the respective “agreements to sell” from the aforementioned parties. The CIT(Appeals) was also of the view that now when the assessee had duly substantiated the authenticity of the transactions by placing on record confirmations of the parties who had admitted of having given the respective advances to the assessee, therefore, re-characterization of the amounts received by him from the said parties as unexplained cash credits u/s.68 of the Act could not be sustained and was liable to be vacated. Accordingly, the CIT(Appeals) on the basis of his aforesaid observations vacated the entire addition of Rs.338.50 lac that was made by the A.O u/s.68 of the Act. 10. The revenue being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before us. 11. We have heard the ld. authorized representatives of both the parties, perused the orders of the lower authorities and the material available on 16 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 record, as well as considered the judicial pronouncements that have been pressed into service by them to drive home their respective contentions. 12. We shall first deal with the grievance of the department that the CIT(Appeals) had erred in vacating the disallowance of Rs. 6,52,712/- that was made by the A.O u/s. 14A r.w.r. 8D(2)(iii). We have given a thoughtful consideration, and are of the considered view, that as observed by the CIT(Appeals) and, rightly so, now when the assessee during the year under consideration had not earned any exempt dividend income, therefore, no disallowance u/s.14A of the Act was called for in its hands. Our aforesaid view is fortified by the judgment of the Hon’ble Supreme Court in the case of CIT Vs. Chettinad Logistics Pvt. Ltd. (2018) 257 Taxmann 2(SC) and also those of the Hon’ble High Court of Delhi in the case of Cheminvest Limited Vs. CIT, (2015) 378 ITR 33 (Delhi) and CIT Vs. Holcim India P. Ltd. 57 Taxmann.com 28 (2015). Relying on the aforesaid judicial pronouncements, it was submitted by the Ld. AR that as per the settled position of law no disallowance u/s.14A in absence of any exempt income could have been made in the hands of the assessee. We, thus, in the backdrop of the facts involved in the case before us r/w. the aforesaid settled position of law find substance in the claim of the Ld. AR that now when the assessee company had not received any exempt dividend income during the year under consideration, therefore, no disallowance u/s.14A of the Act was warranted 17 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 in its case. Accordingly, in terms of our aforesaid observations the vacating of the disallowance of Rs.6,52,712/- by the CIT(Appeals) is upheld. Thus, the Grounds of appeal No.(s) 10 to 11 & Ground No.12 (to the extent relevant) raised by the revenue are dismissed in terms of our aforesaid observations. 13. We shall now deal with the grievance of the revenue that the CIT(Appeals) had erred in vacating the addition of RS. 338.50 lac made by the A.O u/s. 68 of the Act. Before adverting any further, we may herein observe that the aforesaid addition of Rs.338.50 lac comprises of two parts, viz. (i) addition towards advances received by the assessee from 18 parties : Rs.1,28,50,000/- ; and (ii) addition towards advance received by the assessee from M/s. Tirthyatra Investment & Properties Pvt. Ltd. Raipur.: Rs.2,10,00,000/-, which are being dealt with as under: (A) Advance received by the assessee from 18 parties: Rs.1,28,50,000/- 14. On a perusal of the records it transpires that the assessee was in receipt of an amount of Rs.1.60 crore from 22 parties. The A.O accepted advances of Rs. 31.50 lac that were received by the assessee from four parties. Accordingly, the controversy hinges around the advances which are claimed by the assessee to have been received by him in lieu of “agreements to sell” from 18 parties, as under: 18 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 On a careful perusal of the assessment order, it transpires that the solitary issue that had weighed in the mind of the A.O for rejecting the assessee’s claim of having received an amount of Rs.128.50 lac (supra) from the aforementioned 18 parties, was the fact that the stamp papers on which respective ‘agreements to sell” were executed were on the basis of information gathered by him were not sold by the concerned stamp vendor, viz. Shri Zafar Ali (supra). It was observed by the A.O that Shri. Zafar Ali (supra) had both by way of an “affidavit” and in his statement recorded on Particulars Amount Amrik Singh Land Adv. 100000.00 Anil Verma Land, Adv. 500000.00 Anita Chandel 500000.00 Chhaya Yadav 400000.00 Kamlesh Sahu S/o. Pitamberlal Land Adv. 500000.00 Kishor Agrawal Land Adv. 400000.00 Lakhan Yadu 3200000.00 Modi Resources Pvt. Ltd. 1500000.00 Mohit Agrawal 400000.00 Monika Agrawal 500000.00 Naresh Singhania 850000.00 Preeti Sahu Land Adv. 300000.00 Raju Bag Adv. Land 500000.00 Rakesh Madan 400000.00 Ram Bhawan Pandey Land Adv. 500000.00 Sanjay Pandey 500000.00 Sanjeevan Lal Shoury 2200000.00 Santan Sahu Land Adv. 500000.00 Shantilal Meghraj Parakh HUF ( Land Adv.) 1000000.00 Subodh Singhnia HUF ( Land Adv.) 250000.00 Suchi Aurara Land Adv. 500000.00 Sudha Chandel Land Adv. 500000.00 Tirthayatra Properties and Finance Pvt. Ltd. 21000000.00 Total 37,000,000.00 19 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 oath stated that due to ill-health of his father he at the relevant point of time under consideration i.e over the period 26.07.2010 to 31.03.2014 had suspended his work of purchase/sale of stamp papers, and had restarted the same only w.e.f 30.04.2014. However, we may herein observe that though the A.O had heavily relied on the statement of the aforementioned stamp vendor, viz. Shri Zafar Ali (supra), but despite specific requests by the assessee for cross-examination of the said person he had failed to facilitate the same to him. Be that as it may, we are of the considered view that as observed by the CIT(Appeals) and, rightly so, the claim of the assessee of having received advances from the aforementioned 18 parties (supra) which he had substantiated on the basis of their respective confirmations/’affidavits’ could not have been summarily scrapped merely on the basis of the aforesaid unsubstantiated claim of Shri Zafar Ali, Stamp vendor. We, say so, for the reason that as observed by the CIT(Appeals) there could be multiple reasons as to why Shri Zafar Ali (supra) would have declined of having sold the stamp papers in question. Apart from that, we concur with the CIT(Appeals) that the failure on the part of the stamp vendor to properly maintain his records could not have on such standalone basis justified drawing of adverse inferences as regards the genuineness of the transactions under consideration which the assessee had duly substantiated on the basis of supporting documentary evidence. Also, we are persuaded to subscribe to the view taken by the CIT(Appeals) that now 20 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 when both the parties to the respective “agreements to sell” had confirmed the transactions, then, due weightage was required to be given to their respective statements and the same could not have been brushed aside merely on the basis of the unsubstantiated claim of the stamp vendor who had declined of having sold the stamp papers in question. 15. Coming to the supporting documentary evidences which were filed by the assessee to substantiate the authenticity of the respective transactions of receipt of advance/earnest money from the aforementioned 18 parties aggregating to an amount of Rs.128.50 lac, we find that the A.O had proceeded with on the basis of incorrect facts and had wrongly observed that the entire amount in question was received by the assessee from the said persons in cash. On a perusal of the records, it transpires that an amount of Rs.62.50 lacs out of Rs. 128.50 lac was received by the assessee through banking channel. Apart from that, the very fact that the entire amount of Rs.128.50 lac had thereafter been refunded by the assessee to the aforementioned 18 parties (supra) further fortifies the authenticity of the transactions in question. In fact, the repayment of Rs.113.50 lac by the assessee through banking channel further adduces the authenticity of the transactions in question. The assessee in order to substantiate the authenticity of his claim of having received an advance of Rs.128.50 lac from the aforementioned 18 parties had filed with the A.O duly notarized 21 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 “affidavits” of all the aforementioned 18 parties who had admitted of having advanced the respective amounts to the assessee for purchase of land at Village Urkura, Phase No.108, RIC, Raipur (C.G), Kh No.100/2, Page 252 to 318 of APB. Also, the respective parties in their ‘affidavits’ had categorically given the reasons for cancelling the deal and receiving back of the advance/earnest money from the assessee. On a perusal of the aforesaid “affidavits”, it transpires that all of the said parties were being assessed to tax and had categorically mentioned their PAN in their respective depositions. 16. We further find that the A.O in order to verify the factual position had in the course of the remand proceedings issued summons on 22.06.2018 to 11 parties. As per the A.O out of the aforesaid persons two parties requested for some further time to effect compliance, while for summons in case of 7 parties were returned unserved. Accordingly, the A.O recorded the statements of the 2 parties who had appeared before him. The ld. A.R rebutting the aforesaid claim of the A.O had stated that 8 parties had though appeared before the A.O, however, he had recorded the statements of only 2 parties who had in their respective statements confirmed the transactions in question. It is further the claim of the ld. A.R that the assessee was never intimated by the A.O about the fact that the notices issued to some of the parties were returned unserved. Be that as it may, in our considered view 22 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 though the assessee had duly substantiated the authenticity of the transactions of having received advances from 18 parties (supra), but the A.O had failed to dislodge the same by placing on record any such material which would irrefutably disprove the authenticity of the said claim. Also, we are unable to persuade ourselves to subscribe to the view taken by the A.O that the authenticity of the transaction was to be summarily rejected on the basis of the unsubstantiated claim of Shri Zafar Ali, Stamp vendor. We, thus, in the totality of facts involved in the present case before us finding no infirmity in the view taken by the CIT(Appeals) who in our considered view had rightly vacated the addition of Rs. 128.50 lac made by the A.O u/s.68 of the Act uphold his order to the said extent. (B). Advance received from M/s. Tirthayatra Investment & Properties Ltd. Raipur by the assessee : Rs.2,10,00,000/- 17. Before proceeding with the aforesaid issue, we may herein observe that though the A.O had made an addition of Rs.2.10 crore on the ground that the assessee was in receipt of the said amount from the aforementioned party, viz. M/s. Tirthayatra Investment & Properties Ltd. Raipur, but the same on a perusal of the latter’s account is found to be factually incorrect, Page 186 of APB. As is discernible from the record, it transpires that the opening balance of the aforementioned party as on 01.04.2013 was Rs.1.75 crore (Cr.)., which during the year was supplemented/topped up by a further amount of Rs.75 lac that was received by the assessee from the said party 23 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 during the year. Out of the aforesaid an amount of Rs.40 lac was repaid by the assessee to the aforementioned company, as a result thereof, the balance outstanding was scaled down to an amount of Rs.2.10 crore. In sum and substance, the assessee during the year under consideration was in receipt of an amount of Rs. 75 lacs (supra) from the aforementioned company, viz. M/s. Tirthayatra Investment & Properties Ltd. Raipur. 18. As the assessee during the year was in receipt of Rs.75 lac (supra) from the aforementioned party, viz. M/s. Tirthayatra Investment & Properties Ltd. Raipur, therefore, we are of the considered view that the addition, if any, u/s.68 of the Act could have only been made to the said extent by the A.O. As stated by the Ld. AR and, rightly so, as the amount of Rs.1.75 crore (Cr.) was the ‘Opening balance’ appearing in the account of the aforementioned party, therefore, there was no justification for the A.O to have drawn any adverse inferences and a consequential addition of the same as an unexplained cash credit u/s. 68 of the Act in the hands of the assessee during the year under consideration. We, thus, confine our adjudication as regards the amount of Rs.75 lac (supra) which is claimed to have been received by the assessee from the aforementioned company during the year under consideration. 19. On a perusal of the records, it transpires that the assessee had received the aforementioned amount of Rs.75 lac(supra) through banking 24 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 channel from the aforementioned party. During the year the assessee had repaid an amount of Rs.40 lacs to the aforesaid company through banking channel. In order to substantiate the authenticity of the aforesaid transaction the assessee had filed with the A.O confirmations of the aforesaid company, viz. M/s. Tirthayatra Investment & Properties Ltd. Raipur, Page 186 of APB. Also, the assessee in order to dispel all doubts had filed before the A.O an ‘affidavit’ of Shri Mukesh Singhania, Director of M/s. Tirthayatra Investment & Properties Ltd., Raipur, wherein the latter had deposed of having advanced an amount aggregating to Rs.2.50 crore for purchase of land at Dumur Talab, Phase No.35, RIC, Raipur, Ward No. 14, Ishwarichand Shukl Ward, Tah. & Dist. Raipur (C.G.), Kh. No.373/1, area 18500 Sq. ft, which thereafter on the cancellation of the deal was refunded in tranches through banking channel. Copy of the account of the aforesaid party for the immediately succeeding year i.e period relevant to A.Y 2015-16 reveals that the total outstanding balance of Rs. 2.10 crore (supra) was repaid by the assessee through banking channel by 30.03.2015., Page 411 of APB. We further find that the assessee had also filed before the A.O a copy of the bank statement which revealed the receipt of entire amount of advance from the aforementioned party, viz. M/s. Tirthayatra Investment & Properties Ltd. Raipur through banking channel. On the basis of the aforesaid facts, we are of the considered view that the assessee had duly substantiated the authenticity of the transaction in question on the basis of 25 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 irrefutable documentary evidences which till date had not been dislodged by the department on the basis of any material proving to the contrary. 20. At this stage, we may herein observe that the only issue that had weighed in the mind of the A.O for dubbing the transaction under consideration as bogus, was the fact that the entry as regards sale of stamp paper on which the “agreement to sell” was executed with the aforementioned company was not found recorded in the register of Shri Sheikh Sabbir Ali, Stamp Vendor. In our considered view, as observed by the CIT(Appeals) that Shri Sheikh Sabbir Ali (supra) had filed an ‘affidavit’ wherein he had categorically admitted of having sold the stamp paper in question, therefore, the very basis for drawing of adverse inferences by the A.O falls to the ground. Also, now when the director of the aforementioned company, viz. M/s. Tirthayatra Investment & Properties Ltd., Raipur in compliance to the summon issued by the A.O had appeared before him and confirmed the transaction in question, therefore, there was no justification for the A.O to have held the aforesaid transaction of receipt of advance/earnest money by the assessee from the aforementioned company as a bogus transaction. In fact, the CIT(Appeals) had rightly observed that now when the A.O in his ‘remand report’ had not adversely commented as regards the assessee’s claim of having received the advance/earnest money from M/s. Tirthayatra Investment & Properties Ltd., Raipur, therefore, there 26 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 was no justification in sustaining the addition that was made by the A.O by treating the said amount as an unexplained cash credit u/s.68 of the Act. 21. Considering the aforesaid facts, we are of the considered view that as the assessee on the basis of irrefutable documentary evidences had duly substantiated his claim of having received the advance/earnest money from the aforementioned party, viz. M/s. Tirthayatra Investment & Properties Ltd., Raipur, and thus, discharged the primary onus that was cast upon it to prove the nature and source of the credit in its books of account, while for the A.O had absolutely failed to dislodge the authenticity of the said claim on the basis of any material proving to the contrary, therefore, there ws no justification for the A.O to have dubbed the amount so received by the assessee as an unexplained cash credit u/s 68 of the Act. We, thus, in terms of our aforesaid observations principally concur with the view taken by the CIT(Appeals) and uphold the deletion of addition of Rs. 2.10 crore, which as observed by us hereinabove was partially made on the basis of incorrect facts. Accordingly, finding no infirmity in the view taken by the CIT(Appeals) who had rightly vacated the addition of Rs.3,38,50,000/-, we uphold his order to the said extent. Thus, the Grounds of appeal No.(s) 1 to 9 & Grounds No. 12, 13 & 14 (to the extent relevant) raised by the revenue are dismissed in terms of our aforesaid observations. 27 ACIT, Circle-1(1) Vs. Shri Subodh Singhania ITA No. 135/RPR/2019 22. Grounds of appeal No. 15 & 16 being general in nature are dismissed as not pressed. 23. In the result, appeal of the revenue is dismissed in terms of our aforesaid observations. Order pronounced under rule 34(4) of the Appellate Tribunal Rules, 1963, by placing the details on the notice board. Sd/- Sd/- ARUN KHODPIA RAVISH SOOD (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) रायप ु र/ RAIPUR ; Ǒदनांक / Dated : 17 th October, 2022 ***SB आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant. 2. Ĥ×यथȸ / The Respondent. 3. The CIT(Appeals)-1, Raipur (C.G) 4. The Pr. CIT-1, Raipur (C.G) 5. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण,रायप ु र बɅच, रायप ु र / DR, ITAT, Raipur Bench, Raipur. 6. गाड[ फ़ाइल / Guard File. आदेशान ु सार / BY ORDER, // True Copy // Ǔनजी सͬचव / Private Secretary आयकर अपीलȣय अͬधकरण, रायप ु र / ITAT, Raipur.