Smt. Vimla Rani Agarwal, Agra V. I.T.O., Ward-1(3), Agra

ITA 197/AGR/2013

• Counselvise Citation: 19720314 RSA 2013
• Duration Of Justice: 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-01-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 10-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: E PASS ROAD AGRA PAN AAWPA M
• Assessee Lawyers: K C AGARWAL SHRI ATHESHA
• Keywords: Onus to prove
• Section: 68; 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ITA NO. 197/AGRA/2013 ASSTT. YEAR : 2009-10 SMT. VIMLA RANI AGARWAL, VS. INCOME-TAX OFFICER, 1, PRAKASH ENCLAVE, WARD 1(3), AGRA. BYE PASS ROAD, AGRA. (PAN : AAWPA 1788 M) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.C. AGARWAL, ADVOCATE RESPONDENT BY : SHRI ATHESHAN ANSARI, JR. DR DATE OF HEARING : 21.01.2014 DATE OF PRONOUNCEMENT OF ORDER : 31.01.2014 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A)-I, AGRA DATED 22.02.2013 FOR THE ASSESSMENT YEAR 2009- 10, CHALLENGING THE ADDITION OF RS.30 LACS DEPOSITED IN THE BANK ACCOUNT. 2. THE FACTS OF THE CASE ARE THAT THE AO DETERMINED THE ASSESSED INCOME AT RS.37,55,680/- AS AGAINST THE RETURNED INCOME OF RS .7,55,680/- AFTER MAKING ADDITION OF RS.30 LACS U/S. 69A OF THE IT ACT. DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO FOUND THAT A SUM OF RS.30 LACS WAS DEPOSITED IN THE BANK ITA NO. 197/AGRA/2013 2 ACCOUNT OF THE ASSESSEE MAINTAINED WITH ORIENTAL BA NK OF COMMERCE (OBC) ON 31.01.2009. ON REQUIRING THE ASSESSEE TO EXPLAIN TH E SOURCE OF THE CASH DEPOSIT OF RS.30 LAC, IT HAS BEEN REPLIED BY HER THAT AN AMOUN T OF RS.31 LAC IN CASH WAS RECEIVED BY HER AS ADVANCE AGAINST SALE OF AGRICULT URAL LAND SITUATED AT VILLAGE BAINPUR FROM THREE PERSONS, NAMELY SHRI SOBRAN SING H S/O SHRI GAINDA LAL, BABARPUR, SIKANDARA, AGRA, SMT. SHIVDHARA W/O SHRI SUSHIL CHAND YADAV, 43/11, SIKANDARA, AGRA AND SHRI VIJAY BHAN SINGH S/O SHRI NAWAB SINGH, BAINPUR, AGRA. SHRI SOBRAN SINGH IS SHOWN TO HAVE PAID RS.11 LACS AND SMT. SHIVDHARA AND SHRI VIJAY BHAN SINGH ARE SHOWN TO HAVE PAID RS.10 LAC E ACH. IN ORDER TO EXAMINE THE CORRECTNESS OF THE EXPLANATION FLED BY THE ASSESSEE , THE AO REQUIRED ALL THESE PERSONS TO BE PRODUCED BEFORE HIM. HOWEVER, ONLY ON E PERSON I.E. SHRI SOBRAN SINGH WAS PRODUCED BEFORE THE AO AND AFTER EXAMINAT ION OF SHRI SOBRAN SINGH, THE AO FOUND THAT HE HAD NO CAPACITY TO PAY RS.11 L AC IN CASH AND THEREFORE, CREDITWORTHINESS OF SHRI SOBRAN SINGH WAS NOT ESTAB LISHED. THE OTHER TWO PERSONS WERE NOT PRODUCED BEFORE THE AO AND THEREFORE, THEI R CREDITWORTHINESS AND IDENTITY, BOTH COULD NOT BE ESTABLISHED. THE AO ALSO MADE IN DEPENDENT INQUIRY THROUGH HIS INSPECTOR WHO ALSO REPORTED THAT THESE TWO PERSONS ARE MEN OF NO MEANS AND THEREFORE, AFTER FINDING THAT THE EXPLANATION OFFER ED BY THE ASSESSEE ABOUT THE SOURCE OF CASH DEPOSIT OF RS.30 LAC IN HER BANK ACC OUNT WAS NOT SATISFACTORY, THE ITA NO. 197/AGRA/2013 3 AO HELD THIS AMOUNT AS UNEXPLAINED MONEY AS PER THE PROVISION OF SECTION 69A AND MADE REQUISITE ADDITION IN THE INCOME OF THE AS SESSEE. 3. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE LD. CIT(A) AND WRITTEN SUBMISSIONS OF THE ASSESSEE IS INCORPORATED IN THE IMPUGNED ORDER IN WHICH THE ASSESSEE BRIEFLY EXPLAINED THAT SHE HAS RECEIVED RS .31 LACS ON 31.01.2009 AS ADVANCE AGAINST SALE OF HER AGRICULTURAL LAND SITUA TED AT VILLAGE BAINPUR, AGRA FROM THREE PERSONS ABOVE, I.E., RS.11 LACS WAS RECEIVED FROM SHRI SHRI SOBRAN SINGH AND OTHER TWO PERSONS GAVE ADVANCE OF RS.10 LACS EACH. OUT OF ABOVE RECEIPT OF RS.31 LACS, THE ASSESSEE HAS DEPOSITED RS.30 LACS IN HER BANK ACCOUNT WITH ORIENTAL BANK OF COMMERCE, AGRA ON THE SAME DATE. DUE TO CERTAIN UNAVOIDABLE CIRCUMSTANCES, THE ABOVE PERSONS DID NOT PURCHASE THE LAND AND THE AMOUNT GIVEN BY THEM TO THE ASSESSEE WAS TAKEN BACK. THE ASSESSEE REFUNDED THEI R AMOUNT VIDE BANKING CHANNELS. RS.10,00,000/- EACH WAS REFUNDED THROUGH CHEQUES NO.239055, 239056 AND 239057 DATED 25.05.2010 DRAWN ON ORIENTAL BANK OF COMMERCE, SANJAY PLACE, AGRA IN FAVOUR OF SHRI SOBRAN SINGH, SMT. SHIVDHARA AND SHRI VIJAY BHAN SINGH RESPECTIVELY. RS.1,00,000/- WAS REFUNDED IN CASH TO SHRI SOBRAN SINGH. THE CERTIFICATE ISSUE BY THE BANK REGARDING PAYMENT THR OUGH CLEARING FROM THE ACCOUNT OF THE ASSESSEE IN FAVOUR OF THE PURCHASERS WERE AL SO FILED. ALL THE PURCHASERS WHO HAVE GIVEN ADVANCE TO THE ASSESSEE HAVE FILED THEIR AFFIDAVITS BEFORE THE AO ITA NO. 197/AGRA/2013 4 CONFIRMING THE ADVANCE GIVEN BY THEM AND RECEIVING BACK THROUGH ACCOUNT PAYEE CHEQUES ON CANCELLATION OF THE SALE AGREEMENT. THE STATEMENT OF SHRI SOBRAN SINGH WAS RECORDED BY THE AO WHO HAS CONFIRMED THE DEAL W ITH THE ASSESSEE ALONG WITH OTHER SHARERS. THE AO ALSO VERIFIED FROM THE BANK A CCOUNT THAT ALL THE MONEY HAVE BEEN REFUNDED TO THE RESPECTIVE PARTIES, THEREFORE, PARTIES EXIST AND THEIR CREDITWORTHINESS ALSO PROVED. ALL THE PARTIES ARE A GRICULTURISTS AND HAVE AGRICULTURAL LAND. THEY HAVE ADVANCED MONEY FOR PURCHASE OF LAND . THEREFORE, IT WAS THEIR OUTLOOK FROM WHERE THEY HAVE ARRANGED THE MONEY. AL L OF THEM ADMITTED THE TRANSACTIONS WITH THE ASSESSEE AND REFUND OF MONEY THROUGH CHEQUES. THE AO AT PAGE 2 OF THE ASSESSMENT YEAR ALSO ADMITTED THAT ON 08.11.2008, THE CLOSING BALANCE IN THE ACCOUNT OF SOBRAN SINGH WAS RS.22,88,257/- W HICH HE GOT DEPOSITED IN FDRS. COPIES OF THE BANK ACCOUNTS OF THE OTHER PURC HASERS WERE ALSO FILED TO PROVE THEIR CREDITWORTHINESS. COPY OF THE SALE DEED DATED 01.06.2007 OF RS.26,50,000/- WAS ALSO FILED TO SHOW THAT SHRI SOBRAN SINGH AND O THER CO-OWNERS HAVE SOLD THEIR LAND WOULD PROVE THAT HE WAS HAVING SUFFICIENT FUND S TO GIVE ADVANCE TO THE ASSESSEE FOR PURCHASE OF LAND. IT WAS, THEREFORE, S UBMITTED THAT THE ADDITION U/S. 69A IS UNJUSTIFIED. THE LD. CIT(A) REMANDED THE MAT TER TO THE AO FOR EXAMINATION OF ALL THE THREE PERSONS WHO HAVE ADVANCED MONEY TO THE ASSESSEE AND THE AO EXAMINED ALL THE THREE PERSONS AND THEIR STATEMENTS WERE RECORDED AND WERE FORWARDED TO THE LD. CIT(A) FOR HIS PERUSAL. THE LD . CIT(A) CALLED FOR THE ITA NO. 197/AGRA/2013 5 EXPLANATION OF THE ASSESSEE BECAUSE HE WAS NOT SATI SFIED WITH THE CREDITWORTHINESS OF THE PURCHASERS. THE ASSESSEE SUBMITTED A DETAILE D REPLY BEFORE THE LD. CIT(A) WHICH IS ALSO INCORPORATED IN THE IMPUGNED ORDER, I N WHICH THE ASSESSEE REITERATED THE SUBMISSIONS ALREADY MADE AND ALSO EXPLAINED THA T DUE TO DISPUTE OF MEASUREMENT, THE SALE DEED COULD NOT BE EXECUTED AN D THE PURCHASERS ASKED FOR THE REFUND OF THE AMOUNT WHICH WAS RETURNED THROUGH ACC OUNT PAYEE CHEQUES. IF A PERSON COMES AND GIVES ADVANCE FOR PURCHASE OF PROP ERTY, THE SELLER IS NOT REQUIRED TO ASK THE BUYER TO PROVE THE SOURCE OF HIS FUNDS A ND HIS CREDITWORTHINESS UNLESS THE SALE IS ON CREDIT OR ON DEFERRED PAYMENT. THE ASSES SEE ALSO REITERATED THAT A GENUINE SALE AGREEMENT WAS ENTERED INTO BETWEEN THE PARTIES AND THE ASSESSEE HAS BEEN ABLE TO PROVE THE CREDITWORTHINESS OF THE PURCHASERS AND ALL THE PURCHASERS IN THEIR STATEMENTS ON OATH CONFIRMED THE TRANSACTION WITH T HE ASSESSEE. THEREFORE, THE ADDITION MADE BY THE AO WAS UNJUSTIFIED. THE ASSESS EE HAS NOT TAKEN ANY DEPOSIT FROM THE BUYERS. THEREFORE, THE ASSESSEE WAS NOT RE QUIRED TO PROVE ANYTHING FURTHER. 4. THE LD. CIT(A) CONSIDERING THE SUBMISSIONS OF TH E ASSESSEE AND THE MATERIAL ON RECORD, CONFIRMED THE ADDITION AND DISMISSED THE APPEAL OF THE ASSESSEE. THE LD. CIT(A) FOUND THAT IDENTITY OF ALL THE THREE PURCHAS ERS ARE NOT IN DISPUTE AND THE ONLY QUESTION LEFT FOR CONSIDERATION WAS CREDITWORT HINESS OF THE PURCHASERS AND ITA NO. 197/AGRA/2013 6 GENUINENESS OF THE TRANSACTION. THE LD. CIT(A) PLAC ED MUCH EMPHASIS ON THE FACT THAT NO AGREEMENT TO SALE HAS BEEN EXECUTED IN WRIT ING BETWEEN THE PARTIES TO EXAMINE THE VERACITY OF THE CLAIM OF THE ASSESSEE. THE LD. CIT(A) ALSO NOTED THAT THOUGH AMOUNTS WERE RETURNED THROUGH CHEQUES TO THE PURCHASERS, BUT THE AMOUNTS WERE WITHDRAWN IN CASH AFTER ROUTING SUCH AMOUNTS M OSTLY THROUGH BANK ACCOUNT OF SHRI SUSHIL CHAND YADAV, WHO IS HUSBAND OF SMT. SHIVDHARA. THE LD. CIT(A), THEREFORE, FOUND THAT THE SURROUNDING CIRCUMSTANCES WOULD PROVE THAT THE TRANSACTION WAS NOT GENUINE. THE LD. CIT(A) ALSO EX AMINED THE CASE OF EACH PURCHASER SEPARATELY AND FOUND THAT THE ASSESSEE HA S NOT BEEN ABLE TO PROVE CREDITWORTHINESS OF ALL THE THREE PURCHASERS AND TH EREFORE, THE TRANSACTION WAS NOT FOUND GENUINE AND CLAIM OF ASSESSEE WAS DISMISSED. 5. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE H AS RECEIVED ADVANCE AGAINST SALE OF HER PROPERTY WHICH IS NOT IN DISPUTE. COPY OF KH ASRA KHATONI OF LAND HOLDING BY THE ASSESSEE IS FILED AT PAGE 52 OF THE PAPER BOOK. COPY OF THE BANK ACCOUNT OF THE ASSESSEE IS FILED AT PAGE 50. HE HAS SUBMITTED THAT ALL THE PURCHASERS WERE PRODUCED BEFORE THE AO AND THEIR STATEMENTS ON OATH WERE REC ORDED IN WHICH THEY HAVE CONFIRMED THE TRANSACTION WITH THE ASSESSEE GIVING ADVANCE MONEY TO THE ASSESSEE FOR PURCHASE OF PROPERTY AND ON CANCELLATION OF DEA L, THE AMOUNT WAS REFUNDED TO ITA NO. 197/AGRA/2013 7 THEM THROUGH ACCOUNT PAYEE CHEQUES. THE PURCHASERS HAVE ALSO FILED THEIR AFFIDAVIT AND COPY OF THE BANK ACCOUNTS AND THE TRANSACTIONS CARRIED OUT THROUGH THEIR BANK ACCOUNT SUBSEQUENTLY ALSO SUPPORT THE CASE OF ASSES SEE THAT ALL THE PURCHASERS WERE HAVING CREDITWORTHINESS TO ENTER INTO THE TRANSACTI ON OF PURCHASE OF PROPERTY. EVEN IN THE CASE OF SOBRAN SINGH, COPY OF SALE DEED DATE D 01.06.2007 IS FILED AT PAGE 31 OF THE PAPER BOOK TO SHOW THAT HE HAD SOLD THE PROP ERTY ALONG WITH OTHER CO-SHARERS IN A SUM OF RS.26.50 LACS. HE HAS, THEREFORE, SUBMI TTED THAT IT IS NOT IN DISPUTE THAT ADVANCE MONEY WAS RETURNED THROUGH BANKING CHANNEL, WHICH IS ALSO VERIFIED BY THE AO. THEREFORE, IN CASE OF ADVANCE TAKEN BY THE ASSESSEE, THERE IS NO LOAN OR DEPOSIT TO ATTRACT THESE PROVISIONS OF LAW FOR MAKI NG ADDITION AGAINST THE ASSESSEE. THE ASSESSEE ON RECEIPT OF ADVANCE MONEY IN CASH MA DE DEPOSIT IN HER BANK ACCOUNT. HE HAS SUBMITTED THAT FROM THE SAME BANK A CCOUNT WITH ORIENTAL BANK OF COMMERCE, IN WHICH THE ASSESSEE MADE DEPOSIT OF RS. 30 LACS, AMOUNTS WERE REFUNDED TO THE SAME BUYERS. COPY OF THE BANK ACCOU NT IS FILED AT PAGE 48 OF THE PAPER BOOK. HE HAS SUBMITTED THAT THE ASSESSEE HAS BEEN ABLE TO EXPLAIN THE SOURCE OF DEPOSIT IN HER BANK ACCOUNT, THEREFORE, THE ADDI TION SHOULD NOT HAVE BEEN MADE. HE HAS RELIED UPON THE FOLLOWING DECISIONS : (I). DECISION OF CHHATTISGARH HIGH COURT IN THE CA SE OF CIT VS. ABDUL AZIZ, 251 ITR 58, IN WHICH IT WAS HELD ITA NO. 197/AGRA/2013 8 NO INDEPENDENT INQUIRY WAS MADE BY AO TO DISPROVE T HE CREDITWORTHINESS OF CREDITORS, AS ESTABLISHED BY AF FIDAVITS AND STATEMENTS SHOWING SOURCE OF INCOME, ETC. AND THERE FORE, CIT(A) WAS JUSTIFIED IN DELETING ADDITION UNDER S. 68. (II). DECISION OF RAJASTHAN HIGH COURT IN THE CASE OF ARAVALI TRADING CO. VS. ITO, 187 TAXMAN 338, IN WHICH IT WAS HELD SECTION 68, READ WITH SECTION 69, OF THE INCOME-TA X, 1961 CASH CREDITS ASSESSMENT YEAR 1993-94 WHETHER ON CE EXISTENCE PERSONS IN WHOSE NAMES ARE FOUND IN BOOKS OF ASSESS EE IS PROVED AND SUCH PERSONS OWN SUCH CREDITS WITH ASSESSEE, ASSESS EE IS NOT REQUIRED TO PROVE SOURCES FROM WHICH CREDITORS COULD HAVE AC QUIRED MONEY TO BE DEPOSITED WITH IT HELD, YES WHETHER MERELY BEC AUSE DEPOSITORS EXPLANATION ABOUT SOURCES WHEREFROM THEY ACQUIRED M ONEY IS NOT ACCEPTABLE TO ASSESSING OFFICER, IT CANNOT BE PRESU MED THAT DEPOSITS MADE BY SUCH CREDITORS ARE MONEYS OF ASSESSEE ITSEL F-HELD, YES- WHETHER IN ORDER TO FASTEN LIABILITY ON ASSESSEE BY INCLUDING SUCH CREDITS AS ITS INCOMES FROM UNEXPLAINED SOURCES, A NEXUS HAS TO BE ESTABLISHED BY REVENUE THAT SOURCES OF CREDITORS D EPOSIT FLOW FROM ASSESSEE HELD, YES (III). THE DECISION OF RAJASTHAN HIGH COURT IN THE CASE OF LUBH CHAND BOHRA VS. INCOME-TAX OFFICER, 189 TAXMAN 141, IN WH ICH IT WAS HELD- SECTION 68 OF THE INCOME-TAX ACT, 1961 CASH CREDI TS WHETHER WHERE AMOUNTS FOUND AS CASH CREDITS IN ASSE SSEES ACCOUNT BOOKS HAD BEEN ADVANCED BY LENDERS BY ACCOUNT PAYEE CHEQUES; IDENTIFY OF CREDITORS HAD BEEN ESTABLISHED; THEIR C ONFIRMATIONS WERE AVAILABLE AND THEY HAD ALSO CONFIRMED CREDITS BY MA KING STATEMENTS ON OATH, IT COULD BE SAID THAT ASSESSEE HAD DISCHAR GED BURDEN OF PROVING IDENTIFY AND GENUINENESS OF TRANSACTIONS; S O FAR AS CREDITORS CAPACITY TO ADVANCE MONEY TO ASSESSEE WAS CONCERNED , IT WAS NOT A MATTER WHICH WOULD REQUIRE ASSESSEE TO ESTABLISH, A S THAT WOULD AMOUNT TO CALLING UPON HIM TO ESTABLISH SOURCE OF S OURCE HELD, YES ITA NO. 197/AGRA/2013 9 (IV). THE DECISION OF M.P. HIGH COURT IN THE CASE O F COMMISSIONER OF INCOME-TAX VS. METACHEM INDUSTRIES, 245 ITR 160, IN WHICH IT WAS HELD - ONCE IT IS ESTABLISHED THAT THE AMOUNT HAS BEEN IN VESTED BY A PARTICULAR PERSON, BE HE A PARTNER OR AN INDIVIDUAL , THEN THE RESPONSIBILITY OF THE ASSESSEE IS OVER. WHETHER THA T PERSON IS AN INCOME-TAX PAYER OR NOT AND WHERE HE HAD BROUGHT TH IS MONEY FROM, IS NOT THE RESPONSIBILITY OF THE FIRM. THE MOMENT T HE FIRM GIVES A SATISFACTORY EXPLANATION AND PRODUCES THE PERSON WH O HAS DEPOSITED THE AMOUNT, THEN THE BURDEN OF THE FIRM IS DISCHARG ED AND IN THAT CASE THAT CREDIT ENTRY CANNOT BE TREATED TO BE THE INCOM E OF THE FIRM FOR THE PURPOSES OF INCOME-TAX. (V). THE DECISION OF HONBLE ALLAHABAD HIGH COURT I N THE CASE OF COMMISSIONER OF INCOME-TAX VS. JAUHARIMAL GOEL, 147 TAXMAN 448, IN WHICH IT WAS HELD - SECTION 68, READ WITH SECTION 69, OF THE INCOME-TA X, 1961 CASH CREDITS ASSESSMENT YEAR 1987-88 WHETHER SE CTION 68 APPLIES WHEN AN AMOUNT IS FOUND DEPOSITED IN BOOKS OF ACCOU NT OF ASSESSEE AND NOT IN THIRD PARTY HELD, YES WHETHER ASSESS EE CANNOT BE ASKED TO PROVE SOURCE OF SOURCE OR ORIGIN OF ORIGIN OF A DEPOSIT HELD, YES IN BOOKS OF ACCOUNT OF ASSESSEE, CERTAIN DEPOSITS W ERE FOUND CREDITED IN NAME OF HIS TWO DAUGHTERS ASSESSEE EXPLAINED T HAT MONEY WAS DEPOSITED BY HIS DAUGHTERS AFTER WITHDRAWING SAME F ROM THEIR BANK ACCOUNTS AND THAT THEY HAD BEEN ASSESSED TO TAX UND ER AMNESTY SCHEME ASSESSING AUTHORITY ADDED SAID AMOUNTS AS INCOME OF ASSESSEE UNDER SECTION 68 HOLDING THAT HE HAD INTRO DUCED HIS BLACK MONEY BY FILING VOLUNTARY RETURNS OF HIS DAUGHTERS TRIBUNAL, HOWEVER, DELETED ADDITION ON FINDING THAT ASSESSEE HAD DISCHARGED HIS BURDEN IN PROVING SOURCE OF MONEY WHETHER THERE W AS ANY ERROR IN ORDER OF TRIBUNAL HELD, NO ITA NO. 197/AGRA/2013 10 (VI). DECISION OF HONBLE ALLAHABAD HIGH COURT IN T HE CASE OF COMMISSIONER OF INCOME-TAX 1, LUCKNOW VS. SHALIMAR BUILDWELL PVT. LTD 220 TAXMAN 138, IN WHICH IT WAS HELD - 1. SECTION 69B OF THE INCOME-TAX ACT, 1961 UNDIS CLOSED INVESTMENT [INVESTMENT IN LAND] ASSESSMENT YEAR 2 005-06 ASSESSEE ADVANCED A SUM TO ONE N THROUGH BANKING CHANNEL TO PURCHASE A LAND LATER, N RESOLD SAME LAND TO AS SESSEE COMPANY ASSESSING OFFICER TREATED SAID SUM AS UNEXPLAINED I NCOME AND MADE ADDITION IN HANDS OF ASSESSEE WHETHER IT WAS A CA SE OF PURCHASE OF LAND BY ASSESSEE- COMPANY THROUGH N AND WHEN IN H ANDS OF ASSESSEE COMPANY SOURCE OF SUCH MONEY WAS FULLY EXPLAINED, A DDITION MADE BY ASSESSING OFFICER WAS NOT JUSTIFIED HELD, YES. 6. HE HAS ALSO RELIED UPON THE DECISION OF THE SUPR EME COURT IN THE CASE OF DAULAT RAM RAWATMULL, 87 ITR 349, IN WHICH IT WAS H ELD THAT THE ONUS TO PROVE THAT THE APPARENT WAS NOT REAL WAS ON THE PARTY, WH O CLAIMED THAT THE AMOUNT OF FIXED DEPOSIT RECEIPT BELONGS TO THE RESPONDENT FIR M EVEN THOUGH THE RECEIPT WAS ISSUED IN THE NAME OF B, THE BURDEN LAY ON THE DEPA RTMENT TO PROVE THAT THE RESPONDENT WAS THE OWNER OF THE AMOUNT DESPITE THE FACT THAT THE RECEIPT WAS IN NAME OF B. ON THE OTHER HAND, THE LD. DR MERELY REL IED UPON THE ORDER OF THE LD. CIT(A). 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE MADE A DEPOSIT OF RS.30 LACS I N HER BANK ACCOUNT WITH ITA NO. 197/AGRA/2013 11 ORIENTAL BANK OF COMMERCE ON 31.01.2009. THE ASSESS EE EXPLAINED THAT THE AMOUNT OF RS.31 LACS IN CASH WAS RECEIVED BY HER AS ADVANCE AGAINST THE SALE OF AGRICULTURAL LAND SITUATED AT VILLAGE BAINPUR FROM THREE PERSONS MENTIONED ABOVE. IT IS NOT IN DISPUTE THAT THE ASSESSEE OWNED THE AGRIC ULTURAL LAND AT VILLAGE BAINPUR AND COPY OF KHASRA KHATONI IN RESPECT OF THE CLAIM OF ASSESSEE IS FILED AT PAGE 52 OF THE PAPER BOOK. THE LD. CIT(A) WHILE REJECTING T HE CLAIM OF ASSESSEE HAS PLACED RELIANCE ON THE FACT THAT THE AGREEMENT TO SALE WAS NOT EXECUTED IN WRITING TO FIX THE TERMS AND CONDITIONS OF THE SALE TRANSACTIONS. THER EFORE, IN THE ABSENCE OF WRITTEN AGREEMENT, THE LD. CIT(A) WAS OF THE VIEW THAT THE VERACITY OF THE CLAIM OF ASSESSEE COULD NOT HAVE BEEN EXAMINED. THE BEGINNING OF THES E FINDINGS OF THE LD. CIT(A) WOULD SHOW THAT THE LD. CIT(A) WAS SWAYED BY THE FA CT THAT IN THE ABSENCE OF WRITTEN AGREEMENT TO SALE, THE TRANSACTION BETWEEN THE ASSESSEE AND THE BUYERS IS NOT GENUINE AND ULTIMATELY THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FINDING THAT THE ASSESSEE HAS NOT BEEN ABLE TO PROV E THE CREDITWORTHINESS OF THE PURCHASERS. HOWEVER, THERE IS NO SUCH REQUIREMENT U NDER THE LAW TO EXECUTE WRITTEN AGREEMENT TO SALE FOR ENTERING INTO THE TRANSACTION BETWEEN THE PARTIES OR TO TAKE ADVANCE. UNDER THE LAW OF CONTRACT, THERE IS NO NEE D TO EXECUTE AGREEMENT TO SALE IN WRITING. THE ORAL AGREEMENT IS ALSO PERMISSIBLE IN LAW WHICH HAS TO BE PROVED AND INFERRED BY THE ACT OF THE PARTIES. THE ASSESSEE MA DE A CLAIM BEFORE THE AUTHORITIES BELOW THAT SHE HAS ENTERED INTO AGREEMENT TO SALE A ND RECEIVED ADVANCE OF RS.31 ITA NO. 197/AGRA/2013 12 LACS FROM THREE PURCHASERS WHICH AMOUNT WAS DEPOSIT ED BY HER IN HER BANK ACCOUNT ON THE SAME DAY I.E., ON 31.01.2009. THE PURCHASERS WERE ALSO EXAMINED ON OATH BY THE AO AND ALL THE PURCHASERS INCLUDING THEIR RE PRESENTATIVES HAVE CONFIRMED ENTERING INTO THE AGREEMENT TO SALE WITH THE ASSESS EE FOR PURCHASE OF LAND AT VILLAGE BAINPUR AGAINST WHICH THEY HAVE GIVEN ADVANCE OF RS .31 LACS TO THE ASSESSEE. THESE STATEMENTS MADE ON OATH HAVE NOT BEEN CONTROV ERTED THROUGH ANY MATERIAL ON RECORD AND EVEN THERE IS NO WHISPER ABOUT THEIR STATEMENTS ABOUT AGREEMENT TO SELL IN THE IMPUGNED ORDER. THUS, THE ASSESSEE THRO UGH THESE STATEMENTS RECORDED BY THE AO HAS BEEN ABLE TO PROVE THAT THE ASSESSEE GENUINELY ENTERED INTO AGREEMENT TO SALE OF PROPERTY WITH THE PURCHASERS. THEREFORE, THE GENUINENESS OF THE TRANSACTIONS BETWEEN THE PARTIES HAVE NOT BEEN DISPUTED BY THE AUTHORITIES BELOW AND THE SAME SHOULD ALSO NOT HAVE BEEN DOUBTE D IN ANY MANNER. THE LD. COUNSEL FOR THE ASSESSEE DURING THE COURSE OF ARGUM ENTS HAS TAKEN US TO THE STATEMENTS OF THE BUYERS, THEIR AFFIDAVITS AND BANK ACCOUNTS TO PROVE THAT THERE IS GENUINE TRANSACTION EXECUTED BETWEEN THE PARTIES. T HE BUYERS IN THEIR AFFIDAVITS HAVE CONFIRMED GIVING OF ADVANCE TO THE ASSESSEE FO R PURCHASE OF PROPERTY, WHICH WAS RETURNED ON CANCELLATION OF THE DEAL BY CHEQUES NOS. 239055, 239056 AND 239057 DATED 25.05.2010. THE AMOUNT REFUNDED BY THE ASSESSEE THROUGH HER BANK ACCOUNT WITH ORIENTAL BANK OF COMMERCE IS ENTERED I NTO HER SAME BANK ACCOUNT IN WHICH THE ASSESSEE MADE DEPOSIT OF RS.30 LACS IN CA SH. THE REFUNDED AMOUNT IS ITA NO. 197/AGRA/2013 13 ALSO CREDITED IN THE BANK ACCOUNT OF THE RESPECTIVE BUYERS. THE BANK HAS ALSO CONFIRMED THE RECEIPT OF TRANSFER ENTRY IN THE ACCO UNTS OF THE BUYERS. THE COPIES OF BANK ACCOUNTS OF THE BUYERS FILED IN THE PAPER BOOK ALSO SUPPORT THE VERSION OF THE ASSESSEE THAT THEY WERE MEN OF MEANS AND HAVE CREDI TWORTHINESS TO GIVE ADVANCE MONEY TO THE ASSESSEE. ON EXAMINATION OF THEIR BANK ACCOUNTS, WE FIND THAT SEVERAL TRANSACTIONS THROUGH BANKING CHANNEL WERE CARRIED O UT IN THEIR BANK ACCOUNTS IN SEVERAL LACS TO PROVE THAT THEY WERE REGULARLY GETT ING THE AMOUNTS ON CLEARANCE AND WERE WITHDRAWING. IN THE CASE OF SOBRAN SINGH, COPY OF SALE DEED DATED 01.06.2007 IS ALSO FILED TO SHOW THAT PRIOR TO THE TRANSACTION WITH THE ASSESSEE, HE ALONG WITH OTHER CO-OWNERS HAD RECEIVED SALE CONSIDERATION OF RS.26.50 LACS ON SALE OF PROPERTY. THUS, IT IS PROVED ON RECORD THAT THE PUR CHASERS WERE HAVING CREDITWORTHINESS TO MAKE ADVANCE WITH THE ASSESSEE FOR PURCHASE OF LAND. ALL OF THEM HAVE CONFIRMED TRANSACTION ENTERED INTO WITH T HE ASSESSEE AND REFUND OF THE AMOUNT ON CANCELLATION OF DEAL AND ALSO EXPLAINED H OW THEY HAVE ARRANGED THE MONEY FOR GIVING ADVANCE TO THE ASSESSEE. IT IS NOT A CASE OF LOAN OR DEPOSIT TAKEN BY THE ASSESSEE. IT IS A CASE OF ADVANCE TAKEN AGAI NST THE PROPOSED SALE OF PROPERTY IN QUESTION. THE IDENTITY OF THE PURCHASERS IS NOT IN DISPUTE. THE GENUINENESS OF THE TRANSACTION COULD NOT BE DISPUTED. IT IS, THEREFORE , NONE OF THE CONCERNS OF THE ASSESSEE AT THE TIME OF TAKING ADVANCE MONEY AGAINS T SALE OF PROPERTY AS TO FROM WHERE THE PURCHASERS HAVE ARRANGED THE MONEY TO GIV E ADVANCE TO THE ASSESSEE. IF ITA NO. 197/AGRA/2013 14 THE TRANSACTION BETWEEN THE PARTIES WOULD HAVE COMP LETED AND THE SALE DEED WOULD HAVE BEEN EXECUTED, WHERE WAS THE QUESTION FOR THE AO TO HAVE DISBELIEVED THE TRANSACTION BETWEEN THE PARTIES. IN THE CASE OF CAS H SALE OR IMMEDIATE CONSIDERATION PASSED TO THE SELLER, THE SELLER IS NOT REQUIRED TO VERIFY FROM WHERE THE PURCHASER HAS MADE PAYMENT TO HIM. SUCH FACT REGARDING CREDIT WORTHINESS OF THE BUYERS WOULD HAVE BEEN RELEVANT IN THE CASE OF CREDIT SALE OR IF PAYMENT IS TO BE MADE IN FUTURE AFTER EXECUTION OF SALE DEED. SINCE THE ASSE SSEE RETURNED THE AMOUNT OF RS.30 LACS TO THE BUYER FROM HER SAME BANK ACCOUNT, IN WH ICH THE ADVANCE OF RS.30 LACS WAS DEPOSITED WOULD CLEARLY PROVE THAT THE ASSESSEE ENTERED INTO GENUINE TRANSACTION WITH THE BUYERS. CONSIDERING THE TOTALI TY OF FACTS AND CIRCUMSTANCE, EVIDENCES AND MATERIAL ON RECORD, IT WILL CLEARLY P ROVE THAT THE ASSESSEE HAS BEEN ABLE TO EXPLAIN SATISFACTORILY THE SOURCE OF THE DE POSIT IN THE BANK ACCOUNT. THUS, THE ASSESSEE HAS BEEN ABLE TO SATISFY THE CONDITION S OF SECTION 69A OF THE IT ACT. WE MAY NOTE HERE THAT DURING THE COURSE OF ARGUMENT S, THE LD. DR HAS NOT CONTROVERTED ANY OF THE DOCUMENTS/EVIDENCES FILED I N THE PAPER BOOK AND REFERRED TO BY THE LD. COUNSEL FOR THE ASSESSEE. THE LD. DR MERELY RELIED UPON THE ORDER OF THE LD. CIT(A) AND HAS NOT POINTED OUT ANY DISCREPA NCY IN THE EVIDENCES FILED ON RECORD IN SUPPORT OF THE EXPLANATION OF THE ASSESSE E. THE CASE LAWS RELIED UPON BY THE ASSESSEE AS REPRODUCED ABOVE ALSO SUPPORT THE V ERSION OF THE ASSESSEE THAT SHE HAS RECEIVED RS.31 LACS FROM THREE BUYERS AS ADVANC E MONEY FOR SALE OF HER ITA NO. 197/AGRA/2013 15 PROPERTY. THUS, THE ASSESSEE HAS BEEN ABLE TO PROVE THAT IT WAS NOT UNACCOUNTED MONEY OF THE ASSESSEE. WE MAY RELY UPON THE ORDER O F ITAT, AHMEDABAD A BENCH IN THE GROUP CASES OF DCIT VS. SHRI RAVINDRA M. AGARWAL AND OTHERS IN ITA NO. 1725/AHD./2008 AND OTHERS DATED 28.01.2011. IN THIS CASE WHILE DECIDING THE APPEAL OF THE ASSESSEE IN ITA NO. 1821/AHD./2008, S IMILAR ISSUE WAS CONSIDERED THAT ADVANCE IN THE FORM OF CASH AMOUNT HAVE BEEN S HOWN AS RECEIPTS FROM NUMBER OF PARTIES ALL RESIDENTS OF NEW DELHI TOWARDS PROPO SED SITE OF FLATS IN CITY OF JAIPUR IN THE RESIDENTIAL SCHEME STATED TO HAVE BEEN FLOAT ED BY THE ASSESSEE IN THE NAMES OF SUNDER NAGAR SCHEME AND RADHA VIHAR SCHEME. THE ASSESSEE IN THIS CASE FILED ALL THE AFFIDAVITS OF THE DEPOSITORS CONFIRMING THE TRANSACTIONS WITH THE ASSESSEE, COPIES OF IT RETURNS TO SHOW THEIR SOURCE OF INCOME . THE ALLOTMENT OF FLATS AND REFUND OF AMOUNT LETTERS WERE ALSO FILED. ALL THE DEPOSITORS HAVE ALSO CONFIRMED THEIR TRANSACTIONS WITH THE ASSESSEE INDEPENDENTLY THROUGH THEIR REPLIES FILED U/S. 133(6) OF THE IT ACT. IT WAS FOUND THAT THE AO HAS FAILED TO REBUT THE EVIDENCES ON RECORD PRODUCED BY THE ASSESSEE AND THE AFFIDAVITS OF ALL THE DEPONENTS AND DEPOSITORS REMAINED UNCONTROVERTED. IT WAS, THEREFO RE, HELD BY THE TRIBUNAL THAT THE ASSESSEE PROVED GENUINENESS OF THE RECEIPT OF THE A MOUNTS FROM DIFFERENT PARTIES ON ACCOUNT OF BOOKING OF THE FLATS AND THE ADDITION WA S ACCORDINGLY DELETED. THE FACTS AND CIRCUMSTANCES NOTED ABOVE CLEARLY LEAD TO THE C ONCLUSION THAT THE ASSESSEE GENUINELY ENTERED INTO THE TRANSACTION WITH THE BUY ERS. THUS, THE FINDING OF THE LD. ITA NO. 197/AGRA/2013 16 CIT(A) CANNOT BE APPROVED. WE, ACCORDINGLY, SET ASI DE THE ORDERS OF THE AUTHORITIES BELOW AND DELETE THE ADDITION OF RS.30 LACS. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (PRAMOD KUMAR) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY