The ITO, Ward-5(2), Ahmedabad V. Om Land Reality Pvt.Ltd., Ahmedabad

ITA 1722/AHD/2012

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8876 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 08-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 03-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Business income; Additional evidence
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 205; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI S. S. GODARA, JUDICIAL MEMBER. ITA NO.1600 & 1722/AHD/2012 (ASSESSMENT YEAR:2008-09) M/S. OM LAND REALITY PVT. LTD., OM WORLD, NR. JODHPUR CROSS ROAD, SATELLITE, AHMEDABAD - 380015 APPELLANT VS. INCOME TAX OFFICER, WARD 5(2), AHMEDABAD RESPO NDENT / CROSS APPELLANT PAN: AAACO9406D /BY ASSESSEE : SHRI GOVIND M. SONECHA, A.R. /BY REVENUE : SHRI JAGADISH, SR. D.R. /DATE OF HEARING : 08.03.2017 /DATE OF PRONOUNCEMENT : 22.03.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THE ASSESSEE AND REVENUE HAVE FILED INSTANT CROSS A PPEALS FOR ASSESSMENT YEAR 2008-09 AGAINST THE CIT(A)-XI, AHME DABADS ORDER DATED 30.05.2012, PASSED IN APPEAL NO. CIT(A)-XI/320/WD-5 (2)/10-11, IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. ITA NOS. 1600 & 1722/AHD/2012 ( M/S. OM LAND REALIT Y PVT. LTD.) A.Y. 2008-09 - 2 - WE HAVE HEARD BOTH THE PARTIES. CASE FILE PERUSED . 2. THE ASSESSEES APPEAL RAISES FIRST SUBSTANTIVE G ROUND AGAINST THE CIT(A)S ORDER RESTRICTING UNEXPLAINED CASH CREDITS ADDITION U/S.68 OF THE ACT OF RS.11,24,25,551/- AS MADE BY THE ASSESSING OFFIC ER TO RS.2,78,33,924/- IN THE COURSE OF LOWER APPELLATE PROCEEDINGS. IT EMER GES THAT THE REVENUES TWO SUBSTANTIVE GROUNDS RAISED IN THE INSTANT APPEAL PE RTAIN TO THE VERY ISSUE WHEREIN IT SEEKS TO REVIVE ASSESSING OFFICERS ACTI ON MAKING ADDITIONS OF RS.5,97,64,110/- AND BOOKING ADVANCES OF RS.28,71,2 52/-; AS ADDED U/S.68 OF THE ACT FORMING PART OF THE ABOVE GROSS AMOUNT OF R S.11.24CRORES. 3. WE COME TO RELEVANT FACTS. THE ASSESSEE COMPANY DEVELOPS REAL ESTATE PROJECTS. THE IMPUGNED ASSESSMENT YEAR IS STATED T O BE THE YEAR OF ITS INCORPORATION. IT COMMENCED ITS NALSAROVAR CITY PR OJECT IN RELEVANT PREVIOUS YEAR. THE ASSESSEE CREDITED A GROSS AMOUNT OF RS.1 2,11,39,401/- AS ADVANCES FROM 2129 CUSTOMERS. IT FURTHER RETURNED A SUM OF RS.87,13,650/- THEREFROM TO THE SAID PARTIES. THE BALANCE LEFT THUS CAME TO BE RS.11,24,25,551/-. THE ASSESSING OFFICER SOUGHT ALL NECESSARY DETAILS IN T HE COURSE OF SCRUTINY. THE ASSESSEE IN RESPONSE FILED COPY OF AGREEMENTS PERTA INING TO ITS MEMBERS/CUSTOMERS WITH NAMES, ADDRESSES, TELEPHONE NUMBERS, PLOT SPECIFICATIONS, ADVANCES RECEIPTS PARTICULAR, APPLI CATION FORMS WITH PHOTOGRAPHS, MODES OF PAYMENT, RELEVANT PERIOD OF P AYMENTS, TYPE OF PLOT AND BROCHURE SCHEME. THE ASSESSING OFFICER FRAMED A REGULAR ASSESSMENT ON 03.12.2010 INVOKING SECTION 68 OF THE ACT THEREBY T REATING THE ABOVE SUM OF RS.11.24CRORES AS UNEXPLAINED CASH CREDITS U/S.68 O F THE ACT AFTER INTER ALIA OBSERVING THAT THE ASSESSEE HAD NOT FILED PAN DETAI LS AND CONFIRMATIONS OF THE SAID PARTIES IN ORDER TO PROVE IDENTITY, GENUIN ENESS AND CREDITWORTHINESS OF THE SAID CUSTOMERS. ITA NOS. 1600 & 1722/AHD/2012 ( M/S. OM LAND REALIT Y PVT. LTD.) A.Y. 2008-09 - 3 - 4. THE CIT(A) PARTLY REVERSES THE ABOVESTATED ADDIT ION BY OBSERVING AS UNDER: 3.4 I HAVE CAREFULLY CONSIDERED RIVAL SUBMISSIONS. I HAVE ALSO PERUSED THE REMAND REPORT SUBMITTED BY THE A.O. AND VARIOUS CASE LAWS RELIED UPON BY THE APPELLANT. IT IS SEEN THAT DURING THE YEAR UNDER CONSIDERATION TH E APPELLANT HAS RECEIVED ADVANCES OF RS.11,24,25,551/-, DURING THE ASSESSMEN T PROCEEDINGS THE A.O. HAD REQUIRED THE APPELLANT TO FURNISH DOCUMENTARY EVIDE NCES TO PROVE THE IDENTITY, GENUINENESS OF TRANSACTION AND CREDITWORTHINESS OF CREDITORS IN RESPECT OF THESE ADVANCES. HOWEVER, DURING THE APPELLATE PROCEEDINGS THE APPELLANT COULD FILE COPIES OF APPLICATION FORMS STATEDLY SUBMITTED BY C USTOMERS IN RESPECT OF THESE ADVANCES. SINCE COPIES OF APPLICATION FORM DOES NOT ESTABLISH THE IDENTITY, GENUINENESS OF TRANSACTION AND CREDITWORTHINESS OF THE CREDITOR, ACCORDINGLY, THE A.O. HAD MADE IMPUGNED ADDITION OF RS.11,24,25,550/ -. THE ADVANCES CAN BE BROADLY DIVIDED INTO THREE SUB CATEGORIES NAMELY AD VANCES RECEIVED FROM PERSONS IN WHOSE FAVOUR THE SALE DEED HAS BEEN EXECUTED TIL L 21.2.2012, ADVANCES RECEIVED AGAINST BOOKING OF RESIDENTIAL PLOTS AND THE ADVANC ES RECEIVED AGAINST THE CANCELLED BOOKINGS. THE DETAILS OF SUCH ADVANCES AR E GIVEN AS UNDER:- SR.NO PARTICULARS ANNEXURE AMOUNT RS. AMOUNT RS. 1 SALE DEED ALREADY EXECUTED A WITH PAN IA 17747226 B WITHOUT PAN IB 4208766 TOTAL OF I 21955992 2 ADVANCE RECEIVED EXCLUDING ABOVE AT 1 A WITH PAN 2A 59764110 B WITHOUT PAN 2B 25201648 TOTAL OF 2 84965758 3 BOOKING CANCELLED A WITH PAN 3A 656951 B WITHOUT PAN 3B 4937850 TOTAL 1+2+3 5503801 112425551 TAKING INTO ACCOUNT ALL THE EVIDENCES ON RECORD THE TAXABILITY OF THESE ADVANCES IS DISCUSSED IN THE PRECEDING PARA. ITA NOS. 1600 & 1722/AHD/2012 ( M/S. OM LAND REALIT Y PVT. LTD.) A.Y. 2008-09 - 4 - (A) ADVANCES RECEIVED FROM PERSONS IN WHOSE FAVOUR SALE DEED HAS BEEN EXECUTED. IT IS SEEN THAT THE APPELLANT HAS EXECUTED SALE DEE DS IN FAVOUR OF 175 PERSONS FROM WHOM ADVANCES IN THE A.Y.2008-09 OF RS. 2,19,55,992 /- WAS RECEIVED. THE TRANSFER OF RESIDENTIAL PLOTS BY WAY OF SALE DEED WAS MADE A FTER 31/3/2007 BUT BEFORE 22/2/2012. THE AMOUNT OF ADVANCES RECEIVED FROM THE SE PERSONS WORKS OUT TO RS. 2,19,55,992/-. IN MY CONSIDERED VIEW THE ADVANCES T O THE EXTENT OF RS.2,19,55,992/- CANNOT BE TAXED U/S.68 OF THE I.T. ACT IN THE A.Y.2 008-09, SINCE THE INCOME REPRESENTING THESE ADVANCES HAS BEEN DECLARED /BOOK ED AS SALE IN THE SUBSEQUENT YEARS. AS PER THE TRITE LAW INCOME CAN BE TAXED ONL Y ONCE. SINCE INCOME REPRESENTING THESE ADVANCES IS OFFERED IN THE SUBSE QUENT YEARS, ACCORDINGLY, THERE IS NO JUSTIFICATION FOR TAXING THE SAME IN THIS YEA R U/S.68 OF THE I.T.ACT. ACCORDINGLY, THE APPELLANT WILL GET A RELIEF OF RS. 2,19,55,992/-. ' (B) ADVANCES RECEIVED THESE ADVANCES CAN BE FURTHER BIFURCATED IN THE TWO CATEGORIES NAMELY ADVANCES IN RESPECT OF WHOM THE APPELLANT COULD FURNISH PAN PAR TICULARS AND ADVANCES IN RESPECT OF WHOM THE APPELLANT COULD NOT FURNISH PA NUMBERS. THE DETAILS OF ADVANCES WITH PAN AND WITHOUT PAN ARE SUMMARISED AS UNDER :- (A)ADVANCES IN RESPECT OF WHICH PAN GIVEN BY THE APPELLANT RS.5,97,64,110 (B)ADVANCES IN RESPECT OF WHICH THE APPELLANT COULD NOT FURNISH PAN RS. 2,52,01,648 TOTAL RS . 8,49,65,758/- ============ PERUSAL OF THE EVIDENCES FURNISHED BY THE APPELLANT AND DULY VERIFIED BY THE A.O. REVEALS THAT THE APPELLANT HAS RECEIVED ADVANCES FR OM 1100 PERSONS AMOUNTING TO RS.5,97,64,110/- IN RESPECT OF WHICH THE APPELLANT HAD FURNISHED PAN DURING THE APPELLATE PROCEEDINGS. THESE PA NUMBERS ARE DULY VE RIFIED BY THE A.O. EXCEPT SOME STRAY ERRORS. IT IS ALSO A MATTER OF FACT THAT * DURING THE ASSESSMENT AND APPELLATE PROCEEDINGS THE APPELLANT HAS FURNISHED C OPIES OF BOOKING FORMS WHICH SUFFICIENTLY ESTABLISHED THE IDENTITY OF THE CREDIT ORS. THE ABOVE DISCUSSION CLEARLY REVEALS THAT THE APPELLANT HAS FURNISHED SUFFICIENT EVIDENCES TO PROVE IDENTITY, GENUINENESS OF TRANSACTION AND CREDITWORTHINESS OF CREDITORS IN RESPECT OF ADVANCES FROM 1100 PERSONS AMOUNTING TO RS. 5,97,64 ,110/-. SINCE THE APPELLANT HAS DISCHARGED ONUS CAST UPON IT BY SECTION 68 OF T HE I.T.ACT, ACCORDINGLY, I HOLD THAT ADVANCES TO THE EXTENT OF RS. 5,97,64,110/- AR E PROVED BY THE APPELLANT AND ADDITION OF RS.5,97,64,110/- IS ORDERED TO BE DELET ED. THE APPELLANT WILL GET A RELIEF OF RS. 5,97,64,110/-. B.1 THE APPELLANT HAS ALSO RECEIVED ADVANCES FROM 4 83 PERSONS AMOUNTING TO RS. 2,52,01,648/-. THE APPELLANT COULD NOT FURNISH PANS OF THESE PERSONS AS THESE EVIDENCES WERE ADMITTED BY ME DURING THE APPELLATE PROCEEDINGS ALSO. THE APPELLANT WAS HAVING SUFFICIENT TIME TO COLLECT PAN S FROM THESE PERSONS. ITA NOS. 1600 & 1722/AHD/2012 ( M/S. OM LAND REALIT Y PVT. LTD.) A.Y. 2008-09 - 5 - APPARENTLY THE APPELLANT HAS NOT MADE USE OF AMPLE TIME AVAILABLE TO IT TO COLLECT THIS INFORMATION. IT IS AN ESTABLISHED PROPOSITION OF LAW THAT TO DISCHARGE ONUS OF SECTION 68, THE APPELLANT HAS TO ESTABLISH IDENTITY , GENUINENESS OF. TRANSACTION AND CREDITWORTHINESS OF THE CREDITORS APPEARING IN ITS BOOKS OF ACCOUNTS. THE APPELLANT HAD FURNISHED ONLY THE COPY OF APPLICATION FORM IN RESPECT OF THESE CREDITORS. THE APPELLANT HAS NOT EVEN FURNISHED ANY INDEPENDENT EV IDENCE TO PROVE THE IDENTITY OF THESE CREDITORS. THERE IS ABSOLUTELY NOTHING ON REC ORD TO PROVE THE GENUINENESS OF TRANSACTION AND CREDITWORTHINESS OF THE CREDITOR. T HIS WAY THE APPELLANT HAS FAILED TO DISCHARGE THE ONUS CAST UPON IT BY THE PROVISION S OF SEC.68 OF THE I.T.ACT IN RESPECT OF THESE CREDITS. IN THIS REGARD THE APPELL ANT HAS PLACED RELIANCE ON VARIOUS CASE LAWS. HOWEVER, THESE CASE LAWS CANNOT BE APPLI ED IN CASE OF THE APPELLANT. THESE CASE LAWS WERE DECIDED ON ENTIRELY DIFFERENT FACTS. IT IS FURTHER OBSERVED THAT MANY OF THESE CASE LAWS WERE DECIDED IN RESPECT OF SHARE APPLICATION MONEY WHICH IS NOT RELEVANT FOR THE INSTANT CASE. SINCE THE APP ELLANT HAS FAILED TO DISCHARGE ITS ONUS, ACCORDINGLY I AM OF THE CONSIDERED VIEW THAT THE A.O. HAD RIGHTLY MADE AN ADDITION OF RS. 2,52,01,648/- U/S.68.OF THE L.T.ACT . ACCORDINGLY, ADDITION OF RS. 2,52,01,648/- IS CONFIRMED. (C) ADVANCES AGAINST WHICH BOOKINGS WERE CANCELLED THE APPELLANT HAS RECEIVED ADVANCES OF RS. 5,65,951 /-FROM 38 PERSONS. BOOKING OF RESIDENTIAL PLOT MADE BY THESE PERSONS WERE CANCELL ED IN THE SUBSEQUENT YEARS. THE APPELLANT HAS FURNISHED PANS IN RESPECT OF THESE PE RSONS. THE APPELLANT HAS ALSO RECEIVED ADVANCES OF RS. 49,37,850/- FROM 213 PERSO NS. THE BOOKINGS MADE BY THESE PERSONS WERE ALSO CANCELLED IN THE SUBSEQUENT YEARS. THE APPELLANT COULD FURNISH PANS IN RESPECT OF THESE PERSONS. C.1 AS DISCUSSED IN THE PRECEDING PARA THE APPELLAN T HAS FURNISHED PANS IN RESPECT OF 38 PERSONS WHOSE BOOKINGS WERE CANCELLED IN THE SUBSEQUENT YEARS. IN ADDITION TO PAN THE APPELLANT HAS ALSO FURNISHED CO PIES OF APPLICATION FORMS WHICH SUBSTANTIALLY ESTABLISHED THE IDENTITY OF THE SE PERSONS. SINCE THE APPELLANT HAS FURNISHED DOCUMENTARY EVIDENCE TO PROVE IDENTIT Y, GENUINENESS OF TRANSACTION AND CREDITWORTHINESS OF THE CREDITOR IN RESPECT OF THESE 38 PERSONS, ACCORDINGLY 1 HOLD THAT THE APPELLANT HAS DISCHARGED ONUS CAST UP ON IT BY THE PROVISIONS OF SECTION 68 IN RESPECT OF THESE ADVANCES. ACCORDINGL Y, ADDITION TO THE EXTENT OF RS. 6,56,951/- IS ORDERED TO BE DELETED. THE APPELLANT WILL GET RELIEF TO THIS EXTENT. C.2 THE APPELLANT WAS ALSO REQUIRED TO FURNISH DETA ILS OF PAYMENTS MADE AGAINST THE BOOKINGS CANCELLED. THESE DETAILS HAS BEEN FURN ISHED BY THE APPELLANT VIDE ITS LETTER DATED 28/5/2012. PERUSAL OF THESE DETAILS RE VEALS THAT THE APPELLANT HAS ALREADY REFUNDED A SUM OF RS. 21,14,301/- TO 52 PER SONS WHO HAD CANCELLED THE BOOKING. SINCE EVIDENCES ON RECORD REVEALS THAT PAY MENTS OF RS.22,14,301/- HAD ALREADY BEEN MADE TO SUCH PERSONS AND ACCOUNTS TO T HE EXTENT OF RS. 22,14,301/- HAD ALREADY BEEN SQUARED UP BY THE APPELLANT, ACCOR DINGLY, I HOLD THAT ADDITION U/S.68 CANNOT BE MADE IN RESPECT OF THESE ADVANCES ALSO. THE APPELLANT WILL GET RELIEF OF RS.22,14,301/-. C.3 THE APPELLANT HAS RECEIVED ADVANCES OF RS.55,03 ,801/- AND THE BOOKING AGAINST THESE ADVANCES WERE CANCELLED BY THE CUSTOM ERS IN THE SUBSEQUENT YEARS. ITA NOS. 1600 & 1722/AHD/2012 ( M/S. OM LAND REALIT Y PVT. LTD.) A.Y. 2008-09 - 6 - IN THE PRECEDING PARAS I HAVE DELETED ADDITION TO T HE EXTENT OF RS. 28,71,252/- (6,56,951 + 22,14,301) AGAINST ADVANCES IN RESPECT OF WHICH THE APPELLANT HAS FURNISHED PANS OR ADVANCES IN RESPECT OF BOOKINGS W ERE CANCELLED AND THE ADVANCES RECEIVED REFUNDED TO THE CUSTOMERS THE APP ELLANT IS LEFT WITH ANOTHER SUM OF RS. 26,32,549/- (55,03,801 - 28,71,252) AGAINST WHICH THE APPELLANT HAS NOT FURNISHED PA NUMBERS. THE ADVANCES ARE STILL WITH T HE APPELLANT. IT IS SUBMITTED BY THE APPELLANT THAT EITHER THE BOOKING AMOUNTS ARE P ENDING TO BE REFUNDED OR THE CUSTOMER HAD BOOKED OTHER RESIDENTIAL PLOT IN OTHER SCHEME OF THE APPELLANT. IN RESPECT OF THESE ADVANCES THE APPELLANT HAS FURNISH ED COPIES OF APPLICATION FORM WHICH DOES NOT CONCLUSIVELY ESTABLISHED EVEN THE ID ENTITY OF THE CREDITOR. IN VIEW OF THESE FACTS I HOLD THAT THE APPELLANT COULD NOT FUR NISH DOCUMENTARY EVIDENCES TO PROVE IDENTITY, GENUINENESS OF TRANSACTION AND CRED ITWORTHINESS OF THE CREDITOR IN RESPECT OF ADVANCES OF RS. 26,32,549/-. SINCE THE A PPELLANT HAS FAILED TO DISCHARGE ITS ONUS IN RESPECT OF THESE ADVANCES, ACCORDINGLY, ADDITION TO THE EXTENT OF RS.26,32,549/- MADE BY THE A.O. IS CONFIRMED. 3.5 AS A RESULT, THE APPELLANT WIDGET A RELIEF OF R S.8,45,91,627/- (2,19,55,992 + 5,97,64,110 + 6,56,951 + 22,14,301). ADDITION TO THE EXTENT OF RS. 2,78,33,924/- (2,52,01,648 + 26,32,549) IS CONFIRMED. THIS GROUND OF APPEAL IS PARTLY ALLOWED. THIS LEAVES BOTH THE PARTIES AGGRIEVED TO THE EXTE NT OF THEIR AVERMENTS IN THEIR RESPECTIVE SUBSTANTIVE GROUNDS SUMMARIZED HEREINABOVE. 5. WE HAVE HEARD BOTH THE PARTIES REITERATING THEIR RESPECTIVE STANDS. IT EMERGES THAT THE ASSESSEE HAD FILED ADDITIONAL EVID ENCE TO EXPLAIN THE SOURCE OF ABOVE CREDITS IN THE COURSE OF LOWER APPELLATE P ROCEEDINGS. THE CIT(A) SOUGHT A REMAND REPORT. THE ASSESSING OFFICER FILE D THE SAME ON 17.04.2012 INTER ALIA STATING THAT THE ASSESSEE HAD SATISFIED ALL PARAMETERS OF IDENTITY, GENUINENESS AND CREDITWORTHINESS IN CASE OF CREDITS AMOUNTING TO RS.2,19,55,992/- BY PLACING ON RECORD REGISTERED SA LE DEEDS EXECUTED SUBSEQUENTLY WITH OR WITHOUT PAN NUMBERS. HE THEN DEALT WITH ADVANCES RECEIVED OF RS.8,49,65,758/- FROM CUSTOMERS WITH OR WITHOUT PAN DETAILS. IT APPEARS THAT THE ASSESSEE HAD FILED THE SAID PAN DE TAILS IN COURSE OF REMAND PROCEEDINGS. THIS MADE THE ASSESSING OFFICER TO OB SERVE THAT ALTHOUGH THERE WERE SOME DISCREPANCIES IN SAID PAN PARTICULARS, TH E ASSESSEE HAD BEEN ABLE TO PROVE IDENTITY OF ITS CUSTOMERS PERTAINING TO TH E ADVANCE AMOUNT CONCERN. THE ASSESSING OFFICER THEREAFTER ZEROED INTO DEAL W ITH REMAINING 483 ITA NOS. 1600 & 1722/AHD/2012 ( M/S. OM LAND REALIT Y PVT. LTD.) A.Y. 2008-09 - 7 - CUSTOMERS INCLUDING ADVANCES OF RS.2,52,01,648/-. HE OBSERVED HEREIN AS WELL THAT THE ASSESSEE HAD SUCCESSFULLY PROVED THEI R IDENTITY BY PLACING ON RECORD APPLICATION FORMS AND OTHER RELEVANT DOCUMEN TS. THE SAME APPEARS TO BE THE CASE PERTAINING TO BOOKING CANCELLATION CUST OMERS WHEREIN THE ASSESSEE WAS FOUND TO HAVE PROVED IDENTITY OF ALL THE RELEVA NT CUSTOMERS. THE CIT(A) THEREAFTER AFFORDED AMPLE OPPORTUNITY TO BOTH THE P ARTIES BEFORE PARTLY DELETING THE IMPUGNED ADDITION AS INDICATED IN PREC EDING PARAGRAPH. 6. WE FIRST COME TO REVENUES ARGUMENT STRONGLY SUP PORTING ASSESSING OFFICERS REASONING FOR MAKING THE ENTIRE ADDITION SUM IN QUESTION OF RS.11.24CRORES. THERE IS NO DISPUTE THAT THE CIT(A ) HAS GRANTED SAID PART RELIEF TO ASSESSEE WHEREIN IT WAS FOUND TO HAVE EXE CUTED SALE DEEDS WITH HIS CUSTOMERS LATER ON AFTER INCLUDING THE ADVANCE AMOU NT AS PART OF THE SALE CONSIDERATION MONEY. THERE IS FURTHER NO QUARREL T HAT THE ASSESSEE HAS ALSO PLACED ON RECORD ALL OF THEIR PARTICULARS INCLUDING PAN NUMBERS WHICH HAVE NOWHERE BEEN DISPUTED. NOR THE ASSESSING OFFICER CO NDUCTED DETAILED INQUIRIES BY ISSUING THEM NECESSARY NOTICES UNDER T HE PROVISIONS OF THE ACT ON TEST CHECK BASIS. WE REPEAT THAT WE ARE DEALING WITH AN ISSUE OF UNEXPLAINED CASH CREDITS UN/S.68 OF THE ACT WHEREIN AN ASSESSEE SUPPOSE TO DISCHARGE ITS PRIMARY ONUS OF PROVING SOURCE ALONG WITH IDENTITY, GENUINENESS AND CREDITWORTHINESS THEREOF. WE THUS CONCLUDE IN REVENUES APPEAL THAT THE ASSESSEE HAS DISCHARGED ITS ONUS SUCCESSFULLY IN CO URSE OF REMAND AND LOWER APPELLATE PROCEEDINGS. WE ACCORDINGLY DO NOT SEE A NY REASON TO ACCEPT THE REVENUES TWO SUBSTANTIVE GROUNDS SEEKING TO REVIVE THE ASSESSING OFFICERS ADDITION AMOUNT THEREIN. ITS APPEAL ITA NO.1722/AH D/2012 THUS FAILS. 7. WE NOW COME TO ASSESSEES SUBSTANTIVE GROUND SEE KING TO DELETE THE REMAINING ADDITION AMOUNT OF RS.2,78,33,924/- AS CO NFIRMED IN THE LOWER APPELLATE PROCEEDINGS. WE FIND THAT IT HAS FILED A PETITION ON 07.01.2017 ITA NOS. 1600 & 1722/AHD/2012 ( M/S. OM LAND REALIT Y PVT. LTD.) A.Y. 2008-09 - 8 - BEFORE THIS TRIBUNAL ALONGWITH DETAILS OF 483 CUSTO MERS PERTAINING TO THE ADVANCES RECEIVED OF RS.2.52CRORES. IT SUBMITS THE REIN THAT IT HAS OBTAINED PAN NUMBERS OF 182 CUSTOMERS INVOLVING ADVANCES AMO UNT OF RS.1.02 CRORES. TOTAL 75 CUSTOMERS ARE STATED TO BE THE CA SES THEREIN AMOUNT IS REFUNDED DUE TO CANCELLATION PLOT REGISTRATION. TH IS IS FOLLOWED BY 21 MEMBERS WHOSE SALE DEEDS HAVE BEEN EXECUTED ON 31. 03.2016 LEAVING BEHIND BALANCE AMOUNT OF ADVANCES RECEIVED FROM 205 CUSTOMERS INVOLVING RS.96,60,823/-. LEARNED DEPARTMENTAL REPRESENTATIV E OBJECTS TO THIS PETITION. HE STRONGLY SUBMITS THAT THE SAME IS IN THE NATURE OF ADDITIONAL EVIDENCE WHEREIN AN ASSESSING OFFICER HAS TO BE GRA NTED OPPORTUNITY TO REBUT THE FACTS SOUGHT TO BE BROUGHT ON RECORD. WE APPRE CIATE LEARNED DEPARTMENTAL REPRESENTATIVES CONCERNED. THE FACT ALSO REMAINS THAT ALL THESE DEVELOPMENTS IN THIS PETITION ARE POST FACTO INSTITUTION OF THE INSTANT APPEAL AS FILED IN THE YEAR 2012. WE THEREFORE TAK E THESE ADDITIONAL DOCUMENTS ON RECORD AND REMIT THE ISSUE BACK TO THE ASSESSING OFFICER FOR CONDUCTING NECESSARY VERIFICATION AS PER LAW. WE F URTHER DEEM IT APPROPRIATE TO CONFIRM THE REMAINING ADDITION AMOUNT OF RS.96,6 0,823/- WHEREIN THE ASSESSEE HAS NOT BEEN ABLE TO REBUT ASSESSING OFFIC ERS FINDINGS AS AFFIRMED IN LOWER APPELLATE ORDER UNDER CHALLENGE UNLIKE IN OTHER CASES WHEREIN IT HAS PROCURED ADDITIONAL DETAILS EVEN AFTER A TIME SPAN OF ALMOST FIVE YEARS AFTER THE CIT(A)S ORDER. THIS ASSESSEES GROUND IS THUS PARTLY ACCEPTED FOR STATISTICAL PURPOSES. 8. THE ASSESSEES SECOND SUBSTANTIVE GROUND PLEADS THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN MAKING ADDITION OF RS.13, 31,870/- AS INCOME FROM OTHER SOURCES ARISING FROM INTEREST ON SURPLUS FUND S. THERE IS NO DISPUTE SO FAR AS THE FACT THAT THE ASSESSEE HAS DERIVED THE I MPUGNED INTEREST INCOME FROM BANK DEPOSITS. THE ASSESSING OFFICER REJECTED ITS EXPLANATION THAT THE ITA NOS. 1600 & 1722/AHD/2012 ( M/S. OM LAND REALIT Y PVT. LTD.) A.Y. 2008-09 - 9 - SAME BE REDUCED FROM COST OF THE PROJECT. HE PLACE D RELIANCE ON HONBLE APEX COURTS DECISION IN TUTICORIN ALKALI CHEMICALS & FE RTILIZERS LTD. VS. CIT [1997] 227 ITR 172 (SC). THE CIT(A) ALSO AFFIRMS A SSESSING OFFICERS ACTION. 9. LEARNED COUNSEL REPRESENTING ASSESSEE SUBMITS TH AT THE ASSESSEE HAD ONLY PARKED ITS SURPLUS FUNDS IN BANK FIXED DEPOSIT SCHEMES FOR VERY SHORT DURATION IN ORDER TO UTILIZE THE SAME IN A BETTER M ANNER. WE NOTICE THAT SUCH AN EXPLANATION INVOLVING DIRECT NEXUS BETWEEN ITS S URPLUS FUNDS AND BUSINESS ACTIVITY IS NOWHERE BROUGHT OUT BEFORE THE LOWER AU THORITIES BY LEADING COGENT EVIDENCE. WE THEREFORE REMIT THIS ISSUE BACK TO TH E ASSESSING OFFICER FOR AFRESH ADJUDICATION AS PER LAW AFTER AFFORDING ADEQ UATE OPPORTUNITY OF HEARING TO THE ASSESSEE. THIS SUBSTANTIVE GROUND IS ACCEPT ED FOR STATISTICAL PURPOSES. 10. THE ASSESSEES NEXT TWO SUBSTANTIVE GROUNDS PLE AD THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN MAKING ADDITIONS OF RS.2, 45,412/- PERTAINING TO AMOUNTS RECEIVED AS BOOKING CANCELLATION AND THE LA TTER SUM OF RS.1,01,000/- AS PRE-OPERATIVE CHEQUE RETURN CHARGES; TREATING TH E SAME AS BUSINESS INCOME THEREBY REJECTING ASSESSEES IDENTICAL PLEA THAT TH E SAME DESERVED TO BE TAKEN AS PRE-OPERATIVE INCOME REDUCING WORK-IN-PROGRESS. LEARNED AUTHORIZED REPRESENTATIVE STRONGLY ARGUES THAT THE ASSESSEE OU GHT TO HAVE BEEN ALLOWED TO TREAT THE ABOVE INCOMES AS WORK-IN-PROGRESS INST EAD OF BUSINESS INCOME. HE HOWEVER FAILS TO DISPUTE THAT THERE EXISTS A DIR ECT FIRST DEGREE NEXUS BETWEEN ASSESSEES BUSINESS OF REAL ESTATE DEVELOPM ENT AND THESE TWO INCOMES WHEREIN IT HAS FIRSTLY CHARGED FOR PLOT BOO KING CANCELLATIONS AND ALSO DERIVED LATTER INCOME IN LIEU OF CHEQUE CANCELLATIO N CHARGES FROM ITS CUSTOMERS. WE THUS FIND NO REASON TO INTERFERE IN THE CIT(A)S ORDER ITA NOS. 1600 & 1722/AHD/2012 ( M/S. OM LAND REALIT Y PVT. LTD.) A.Y. 2008-09 - 10 - CONFIRMING ASSESSING OFFICERS ACTION ON BOTH COUNT S. THESE TWO ASSESSEES GROUNDS ARE ACCORDINGLY DECLINED. 11. THE ASSESSEES APPEAL ITA NO.1600/AHD/2012 IS P ARTLY ALLOWED FOR STATISTICAL PURPOSES AND REVENUES CROSS APPEAL ITA NO.1722/AHD/2012 IS DISMISSED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 22 ND DAY OF MARCH, 2017.] SD/- SD/- ( N. K. BILLAIYA ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 22/03/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 / GUARD FILE. BY ORDER / . // . /0