Smt. Tripti Agarwal, Bhopal V. The ACIT 1(2), Bhopal

ITA 214/IND/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5634 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-10-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 19-03-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: GIRISH AGARWAL
• Keywords: Corroborative evidences
• Section: 143(3); 133(6); 131; 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .., .., % BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER SMT. TRIPTI AGARWAL, PROP. TRIPTI AGARWAL CLASSES, E-2/126, ARERA COLONY, BHOPAL. .. ./ PAN: AA VS. ACIT, 1(2), BHOPAL / APPELLANT / RESPONDENT / APPELLANT BY SHRI GIRISH AGARWAL, CA / RESPONDENT BY SHRI MOHD. JAVED, SR. DR DATE OF HEARING 04.10.2016 DATE OF PRONOUNCEMENT 07.11.2016 / O R D E R PER O.P. MEENA, ACCOUTANT MEMEBR. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-I, BHOPAL .. . / I.T.A. NO. 214/IND/2014 %' ' / ASSESSMENT YEAR: 2010-11 I.T.A.NO. 214/IND/2014-A.Y.2010-11 SMT. TRIPTI AGARWAL, BHOPAL PAGE 2 OF 18 [HEREINAFTER REFERRED TO AS THE CIT(A)] DATED 13.02 .2013 AND PERTAINS TO ASSESSMENT YEAR 2010-11 AS AGAINST APPE AL DECIDED IN ASSESSMENT ORDER PASSED U/S 143(3) OF T HE ACT DATED 14.02.2013 OF ACIT,1(2) BHOPAL [HEREINAFTER R EFERRED TO AS THE AO]. 2. GROUND NO.1 IS OF GENERAL NATURE, HENCE, DOES NOT REQUIRE ANY ADJUDICATION. 3. GROUND NO.2 RELATES TO DISALLOWANCE OF INTEREST TO THE EXTENT OF RS. 8,49,600/-. 4. THE AO NOTED THAT THE ASSESSEE HAS DEBITED AN AMOUNT OF RS. 51,64,843/- AS INTEREST TO BANK AND O THERS. IT WAS ALSO NOTICED THAT THE ASSESSEE HAD GIVEN LOANS A ND ADVANCES AMOUNTING TO RS. 70.80 LAKHS TO RELATIVES AND OTHER PERSONS WITHOUT CHARGING ANY INTEREST. A SHOW CAUSE N OTICE WAS ISSUED TO THE ASSESSEE AS TO WHY INTEREST @ 12 % SHOULD NOT BE DISALLOWED OUT OF INTEREST PAID BY THE ASSES SEE. HOWEVER, NO REASONS FOR ADVANCES GIVEN TO RELATIVE S AND OTHERS WAS FURNISHED. THEREFORE, THE AO DISALLOWED I NTEREST OF RS. 8,49,600/- BEING 12 % OF RS. 70.80 LAKHS, TREAT ING THE I.T.A.NO. 214/IND/2014-A.Y.2010-11 SMT. TRIPTI AGARWAL, BHOPAL PAGE 3 OF 18 SAME AS NOT UTILIZED FOR THE BUSINESS PURPOSES. THE AO HAS ALSO NOTED THAT THE ASSESSEE HAS TAKEN FRESH SECURE D LOAN OF RS. 337.39 LAKHS FROM BANK. 5. AGGRIEVED WITH THE ORDER, THE ASSESSEE HAS FILED THE APPEAL BEFORE THE CIT(A). 6. IT WAS SUBMITTED BEFORE THE CIT(A) THAT THE FINDINGS OF THE AO THAT THE ASSESSEE HAS TAKEN FRESH SECURED LO ANS OF RS. 337.39 LAKHS FROM BANK IS FACTUALLY WRONG AND INCORR ECT AS THE SECURED LOAN OUTSTANDING AS ON 31.03.2009 WERE RS. 474.65 LAKHS AND AS ON 31.03.2010 WERE AT RS. 337.3 9 LAKHS. THEREFORE, THE FINDINGS OF THE AO THAT FRESH LOANS TAKEN DURING THE YEAR AT RS. 337.39 LAKHS IS FACTUALLY INCORRECT . THE ASSESSEE HAD ALSO SUBMITTED A COMPARATIVE POSITION OF LOANS AND ADVANCES WHICH ARE REPRODUCED AT PAGE 4 OF THE A PPELLATE ORDER, ACCORDING TO WHICH LOANS AND ADVANCES GIVEN T O SEVEN PERSONS WERE AT RS. 38.95 LAKHS AS ON 31.03.2009, WH ICH WERE INCREASED TO RS. 70.80 LAKHS AS ON 31.03.2010. HOWEV ER, THE LD. CIT(A) WAS NOT SATISFIED WITH THE EXPLANATION AND ACCORDINGLY CONFIRMED THE ADDITION MADE BY THE AO. I.T.A.NO. 214/IND/2014-A.Y.2010-11 SMT. TRIPTI AGARWAL, BHOPAL PAGE 4 OF 18 7. BEING NOT SATISFIED, THE ASSESSEE HAS FILED THIS AP PEAL BEFORE THIS TRIBUNAL. 8. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AO NOTED AN ABSOLUTELY INCORRECT FINDING FROM THE B ALANCE SHEET THAT THE ASSESSEE HAS TAKEN FRESH SECURED LOA N OF RS. 337.39 LAKHS FROM BANKS IS INCORRECT. AS THE SECURE D LOANS AS ON 31.03.2009 WERE AT RS. 373.65 LAKHS WHICH WERE AT R S. 337.39 LAKHS AS ON 31.03.2010. THUS, THERE IS REDUC TION OF RS. 137.26 LAKHS IN THE LOAN LIABILITY IN THE IMPUGNED ORDER. THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE FURTH ER SUBMITTED THAT OUTSTANDING UNSECURED INTEREST FREE LOANS WERE AT RS. 38.95 LAKHS AS ON 31.03.2009, WHICH WERE AT RS . 70.80 LAKHS A ON 31.03.2010. THUS, THERE WAS INCREASE IN L OAN LIABILITY IN THE IMPUGNED YEAR BY RS. 31.85 LAKHS. THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE CONTENDED THAT FROM THE SAME BALANCE SHEET AS REFERRED BY THE AO, IT CA N BE VERIFIED THAT THE ASSESSEE HAD OWNED CAPITAL BEING A PROPRIETOR AT RS. 90.69 LAKHS, WHEREAS INTEREST FREE OWNED SECUR ED LOAN TAKEN WERE AT RS. 23.28 LAKHS. THUS, THE ASSESSEE H AD INTEREST I.T.A.NO. 214/IND/2014-A.Y.2010-11 SMT. TRIPTI AGARWAL, BHOPAL PAGE 5 OF 18 FREE FUNDS AVAILABLE IN THE IMPUGNED YEAR AT RS. 11 3.97 LAKHS AS AGAINST THE INTEREST FREE ADVANCES GIVEN DURING THE YEAR AT RS. 31.85 LAKHS. THUS, THE INTEREST FREE FUNDS AVAI LABLE WITH THE ASSESSEE ARE MORE THAN THE AMOUNT ADVANCED. THE REFORE, NOTIONAL DISALLOWANCE OF INTEREST @ 12 % ON THE TOT AL LOAN AMOUNT OF RS. 70.80 LAKHS IS NOT JUSTIFIED. IN SUPP ORT OF THIS PROPOSITION, THE LD. AUTHORIZED REPRESENTATIVE OF T HE ASSESSEE PLACED RELIANCE IN THE CASE OF HERO CYCLES PRIVATE LIMITED VS. CIT, CIVIL APPEAL NO. 514/2008 DATED 5 TH NOVEMBER, 2015, AND ALSO PLACED RELIANCE IN THE CASE OF RAM KISHAN VERM A, (2015) 64 TAXMAN.COMM 358 (RAJ) AND ABHISHEK INDUSTRIES LI MITED, S. A. BUILDERS LIMITED, (2007) 288 ITR 1 (S.C.). 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND T HAT THE ASSESSEE HAD INTEREST FREE FUNDS AVAILABLE AT RS. 1 13.97 LAKHS WHEREAS INTEREST FREE LOAN AND ADVANCES GIVEN DURING THE YEAR WERE AT RS. 31.85 LAKHS. HOWEVER, THIS ASPECT HAS N OT BEEN EXAMINED BY THE LD. CIT(A). WE, THEREFORE, DEEM IT FIT TO REMIT BACK THE ISSUE TO THE FILE OF CIT(A) FOR FRESH ADJU DICATION AFTER I.T.A.NO. 214/IND/2014-A.Y.2010-11 SMT. TRIPTI AGARWAL, BHOPAL PAGE 6 OF 18 ASCERTAINING THE FRESH LOAN TAKEN DURING THE YEAR A ND NON INTEREST BEARING FUNDS AVAILABLE WITH THE ASSESSEE DURING THE YEAR. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOS ES. 10. GROUND NO. 3 RELATES TO SUSTAINING ADDITION OF RS. 53,111/- ALLEGING RECONCILIATION DIFFERENCE. 11. FACTS EMANATING FROM THE ORDERS OF THE LOWER AUTHORITIES ARE THAT THE ASSESSEE HAS SHOWN CREDIT O UTSTANDING OF RS. 53,111/- WAS PAYABLE TO M/S. ATUL PUBLICITY, THE GENUINE CREDITOR TO WHOM PAYMENTS WERE MADE ALWAYS BY CHEQUE AND PROPER TDS HAVE BEEN DEDUCTED. HOWEVER, THE LD. CIT(A) HAS CONFIRMED THE SAID ADDITION BY OBSERVING THAT THE ASSESSEE WAS ASKED TO FURNISH HIS EXPLANATION ON 28 .12.2012, BUT THE ASSESSEE HAS NOT FURNISHED ANY RECONCILIATI ON OR EXPLANATION REGARDING THE DIFFERENCE. 12. BEFORE US, IT WAS CONTENDED THAT THE CREDIT WAS APPEARING IN THE BOOKS OF THE SAID CREDITOR, WHO HA D ACCOUNTED THE SAID SUM AS RECEIVED. ACCORDINGLY, IT IS THE CREDITOR, WHO, HOW TO EXPLAIN SUCH A CREDIT IN HIS BO OKS OF I.T.A.NO. 214/IND/2014-A.Y.2010-11 SMT. TRIPTI AGARWAL, BHOPAL PAGE 7 OF 18 ACCOUNTS AND NOT THE ASSESSEE. THEREFORE, THE ADDIT ION OF RS. 53,111/- MAY BE DELETED. 13. WE HAVE HEARD THE RIVAL SUBMISSIONS AND FIND THAT M/S. ATUL PUBLICITY HAS DENIED TO HAVE ANY OUTSTAND ING AGAINST THE ASSESSEE AS ON 31.03.2010 IN RESPONSE T O THEIR REPLY TO NOTICE U/S 133(6) OF THE ACT. THEREFORE, WE ARE NOT INCLINED TO INTERFERE IN THE FINDING OF THE LOWER A UTHORITIES. ACCORDINGLY, THIS GROUND OF APPEAL IS DISMISSED. 14. GROUND NO. 4 RELATES TO ADDITION OF RS.10 LAKHS U/S 68 AS UNEXPLAINED CASH RECEIPTS FROM A FARMER SHRI MOO LCHAND TOWARDS ADVANCE RECEIVED AGAINST SALE CONSIDERATION OF AGRICULTURE LAND AT VILLAGE SAMARDHA. 15. FACTS APROPOS OF THIS GROUND ARE THAT THE ASSESSEE HAS SHOWN INTRODUCTION OF CASH OF RS. 7 LAKHS ON 22.11.2 009 AND RS. 3 LAKHS ON 07.12.2009 AGGREGATING TO RS. 10 LAK HS IN HER BOOKS OF ACCOUNTS. IT WAS ALSO NOTED THAT THE ASSES SEE MADE CASH PAYMENT OF RS. 9 LAKHS ON 28.03.2009. IT WAS EX PLAINED THAT RS.10 LAKHS WAS RECEIVED AS ADVANCE AGAINST SAL E CONSIDERATION OF RS. 16 LAKHS BY HER HUSBAND FROM S HRI I.T.A.NO. 214/IND/2014-A.Y.2010-11 SMT. TRIPTI AGARWAL, BHOPAL PAGE 8 OF 18 MOOLCHAND AGAINST SALE AGREEMENT OF LAND SITUATED A T VILLAGE SAMARDHA IN THE JOINT NAME WITH HER HUSBAND. SHRI MOOLCHAND IS A FARMER OF VILLAGE SEANIA ONKARA AND WAS DOING CULTIVATION ON BATAI ON ASSESSEES UN-IRRIGATED FAR M LAND AT VILLAGE SAMARDHA. IT WAS SUBMITTED THAT LATER ON THE SAID PERSON BECAME DISINTERESTED AND REQUESTED THE ASSES SEES HUSBAND TO RETURN THE EARNEST MONEY AND ACCORDINGLY , AFTER DEDUCTION OF RS. 1 LAKH, HER HUSBAND RETURNED RS. 9 LAKHS TO SHRI MOOLCHAND ON 28.03.3010. HOWEVER, THE AO DID NOT ACCEPT THE ABOVE CONTENTION OF THE ASSESSEE DUE TO THE REASON THAT SHE COULD NOT FURNISH ANY SUPPORTING EVIDENCES LIKE SALE AGREEMENT WITH THE PURCHASER, IDENTITY AND CREDITWORT HINESS OF THE ALLEGED PURCHASER SHRI MOOLCHAND AND GENUINE NESS OF THE TRANSACTION. THE AO HAS ALSO RECORDED STATEMENT OF SHRI MOOLCHAND U/S 131 WHEREIN HE COULD NOT GIVE SATISFAC TORY ANSWER REGARDING CASH PAYMENT AND CASH RECEIVED. IT WAS NOTED THAT SHRI MOOLCHAND HAD ONLY ONE ACRE OF ANCE STRAL LAND, WHERE HE WAS EARNING RS. 50,000/- PER ANNUM AN D HAD JOINT FAMILY CONSISTING OF THREE SONS AND THEIR WIVE S AND I.T.A.NO. 214/IND/2014-A.Y.2010-11 SMT. TRIPTI AGARWAL, BHOPAL PAGE 9 OF 18 CHILDREN. THE AO ALSO OBSERVED THAT AS PER STATEMEN T OF SHRI MOOLCHAND,HE PAID RS. 2 LAKHS, RS. 5 LAKHS AND RS. 2 LAKHS I.E. IN THREE INSTALMENTS BUT AS PER BOOKS OF THE A SSESSEE, MONEY WAS SHOWN TO BE RECEIVED IN TWO INSTALMENTS OF RS. 7 LAKHS AND RS. 3 LAKHS. 16. BEFORE THE CIT(A), THE SAME SUBMISSIONS WERE REITERATED. HOWEVER, THE CIT(A) HAS OBSERVED THAT THE ASSESSEE HAS FAILED TO SUBSTANTIATE HIS SUBMISSION WITH ANY C OGENT AND IMPEACHABLE EVIDENCE. THE ASSESSEE HAS NOT ADDUCED ANY DOCUMENTARY EVIDENCE IN THE FORM OF ANY AGREEMENT T O SALE ENTERED WITH MOOLCHAND FOR THE SALE OF PROPERTY FOR CONSIDERATION OF 16 LAKHS. IT IS UNBELIEVABLE THAT A PERSON WOULD PAY EARNEST MONEY OF RS. 10 LAKHS OUT OF TOTAL CONSIDERATION OF RS. 16 LAKHS WITHOUT ENTERING INTO ANY FORMAL AGREEMENT. THE LD. CIT(A) FURTHER NOTED THAT THERE IS INCONSISTENCY IN THE STATEMENT OF SHRI MOLCHAND AND FACTS STATED BY THE ASSESSEE AS SHRI MOOLCHAND HAD STATED THAT HE HAD MADE THE PAYMENTS IN THREE ISNTALMENTS, WHEREAS THE ASSESSEE HAD INTRODUCED CASH IN HIS BOOKS OF ACCOUN TS IN TWO I.T.A.NO. 214/IND/2014-A.Y.2010-11 SMT. TRIPTI AGARWAL, BHOPAL PAGE 10 OF 18 INSTALMENTS. FURTHER, SHRI MOOLCHAND OWNED ONLY ONE ACRE OF LAND AND EARNING RS. 50,000/- PER ANNUM HAVING FAMI LY OF TEN MEMBERS. THEREFORE, THE ASSESSEE FAILED TO SATISFAC TORILY EXPLAIN THE SOURCE OF CREDIT ENTRIES AGGREGATING TO RS. 10 LAKHS IN CASH IN HER BOOKS OF ACCOUNTS. HENCE, THE LD. CI T(A) UPHELD THE ADDITION OF RS.10 LAKHS. HOWEVER, THE LD. CIT(A ) HAS DELETED THE ADDITION OF RS. 9 LAKHS CLAIMED TO HAV E BEEN WITHDRAWN IN CASH AS THE SAME WERE OUT OF CASH AVAILA BLE IN THE BOOKS OF ACCOUNTS. 17. BEFORE US, THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS RECEIVED R S. 10 LAKHS FROM SHRI MOOLCHAND, AN AGRICULTURIST, WHO OWNE D UP THE TRANSACTION TOWARDS ADVANCE AGAINST CREDIT SALE CONSIDERATION OF RS. 16 LAKHS. SINCE HE COULD NOT A RRANGE FOR THE ENTIRE CREDIT AMOUNT, THE SALE GOT CANCELLED AN D RS. 9 LAKHS WERE RETURNED TO SHRI MOOLCHAND BY SHRI ANIL AGRAWAL HUSBAND OF THE ASSESSEE. IT WAS SUBMITTED THAT MOOL CHAND HAS APPEARED BEFORE THE AO WHEREIN IN HIS STATEMENT SHRI MOOLCHAND HAS ACCEPTED THE TRANSACTION. THEREFORE, THE I.T.A.NO. 214/IND/2014-A.Y.2010-11 SMT. TRIPTI AGARWAL, BHOPAL PAGE 11 OF 18 ASSESSEE HAS DISCHARGED HIS PRIMARY ONUS. HENCE, TH E AO COULD NOT ASK THE SOURCE ,OF SOURCE AS HELD IN THE CASE OF METACHEM INDUSTRIES LIMITED, (2001) 245 ITR 160 (MP ) AND SUMERCHAND JAIN, (2007) 292 ITR 241( MP). THE LD. C IT(A) HAS DELETED THE ADDITION OF RS. 9 LAKHS RETURNED BY THE ASSESSEE TO SHRI MOOLCHAND, WHICH WAS DULY ACCOUNTED FOR AND CONF IRMED BY HIM IN HIS STATEMENT AGAINST WHICH THE DEPARTMEN T IS NOT IN APPEAL. THEREFORE, THE DEPARTMENT ACCEPTED THE E NTRIES MADE IN THE BOOKS OF ACCOUNTS FOR RECEIPT OF ADVANC E AND RETURN OF THE SAME ADVANCE. ACCORDINGLY, IT WAS URGE D THAT THE ADDITION CONFIRMED BY THE LD. CIT(A) MAY BE DELETE D. 18. ON THE OTHER HAND, THE LD. SENIOR DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE TRANSACTION ENTER ED INTO ALLEGED SALE OF AGRICULTURAL LAND WITH SHRI MOOLCHAN D IS NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE. THE ASSESSEE HAS FAILED TO PRODUCE THE AGREEMENT TO SALE OF LAND. HE NCE, THE STORY ADVANCED BY THE ASSESSEE IS NOT BELIEVABLE. F URTHER, SHRI MOOLCHAND, AGRICULTURIST WAS NOT OF ANY MEANS A S HE WAS DOING BATAI ON THE UN-IRRIGATED LAND OF THE ASSESSE E ONLY. I.T.A.NO. 214/IND/2014-A.Y.2010-11 SMT. TRIPTI AGARWAL, BHOPAL PAGE 12 OF 18 THEREFORE, THE LD. SR. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 19. WE HAVE CONSIDERED THE FACTS AND PERUSED THE MATERI AL AVAILABLE ON RECORD. WE FIND THAT THE CLAIM OF THE ASSESSEE THAT RS. 10 LAKHS WERE RECEIVED AS ADVANCE AGAINST THE P ROPOSED AGREEMENT TO SALE OF LAND FOR RS. 16 LAKHS TO SHRI MOOLCHAND. HOWEVER, WE FIND THAT THE ASSESSEE HAS NOT BEEN AB LE TO PRODUCE ANY AGREEMENT TO SALE WITH REGARD TO ALLEGED TRANSACTION. FURTHER, THE ASSESSEE HAS INTRODUCED C ASH IN HER BOOKS OF ACCOUNTS ON 22.11.2009 OF RS. 7 LAKHS AND RS. 3 LAKHS ON 07.12.2009 AGGREGATING TO RS. 10 LAKHS, WHE REAS SHRI MOOLCHAND HAS STATED IN HIS STATEMENT THAT HE PAID RS. 2 LAKHS, RS. 5 LAKHS AND RS. 2 LAKHS IN THREE INSTALM ENTS. HENCE, THERE IS INCONSISTENCY WITH REFERENCE TO THE BOOKS OF ACCOUNTS AND STATEMENT OF SHRI MOOLCHAND. WE ALSO NOTE THAT IN REPLY TO QUESTION NO. 5 OF HIS STATEMENT, SHRI M OOLCHAND HAS STATED THAT HE PAID RS. 10 LAKHS IN THREE INSTA LMENTS BUT HE DOES NOT REMEMBER THE DATE ON WHICH THESE INSTALM ENTS WERE GIVEN AND THE YEAR ON WHICH THE PAYMENTS WERE MAD E, I.T.A.NO. 214/IND/2014-A.Y.2010-11 SMT. TRIPTI AGARWAL, BHOPAL PAGE 13 OF 18 NOR HAS ANY DOCUMENTARY EVIDENCE TO PROVE THAT SUCH AMOUNT WAS GIVEN BY HIM. IT IS FURTHER NOTICED THAT SHRI MO OLCHAND HAD ONLY ONE ACRE OF ANCESTRAL LAND WHEREAS HE WAS E ARNING ONLY RS. 50,000/- PER ANNUM FOR A JOINT FAMILY HAVI NG TEN MEMBERS. THEREFORE, IN ABSENCE OF ANY DOCUMENTARY E VIDENCE IN THE FORM OF ANY AGREEMENT TO SALE ENTERED WITH SH RI MOOLCHAND FOR THE SALE OF PROPERTY FOR A CONSIDERA TION OF RS. 16 LAKHS CANNOT BE ACCEPTED AS CORRECT. FURTHER, TH E AMOUNT IS CLAIMED TO HAVE BEEN RETURNED BACK IN THE MONTH OF MARCH. HENCE, WE ARE INCLINED TO ACCEPT THE FINDINGS OF LO WER AUTHORITIES. THEREFORE, NO INTERFERENCE IS CALLED F OR. THE CASE LAWS CITED BY THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE RELATES TO INTRODUCTION OF CAPITAL BY A PA RTNER OR INVESTMENT OF MONEY BY A PURCHASER OF THE PROPERTY, THEREFORE, DISTINGUISHABLE ON FACTS AND CIRCUMSTANCES OF THE P RESENT CASE AND HENCE, THE FINDINGS OF LOWER AUTHORITIES ARE UPH ELD. ACCORDINGLY, THIS GROUND OF APPEAL IS DISMISSED. 20. GROUND NO. 6 RELATES TO SUSTAINING THE ADDITION OF CAUTION MONEY OF RS. 4,43,800/-. I.T.A.NO. 214/IND/2014-A.Y.2010-11 SMT. TRIPTI AGARWAL, BHOPAL PAGE 14 OF 18 21. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAS RECEIVED TO HAVE SHOWN CAUTION MONEY OF RS. 4,43,800/- DURING THE YEAR UNDER CONSIDERATION . IT WAS SUBMITTED THAT SUCH CAUTION MONEY WAS ALSO RECEIVED IN THE PAST YEARS, WHICH HAD ACCUMULATED TO RS. 20,78,330/- . IT WAS ALSO NOTED THAT THE ASSESSEE HAD SHOWN RETURN OF CAU TION MONEY OF RS. 20,000/- ONLY TO THE STUDENTS DURING T HE YEAR. THE AO REQUIRED THE ASSESSEE TO FURNISH THE DETAILS INCLUDING NAMES , COMPLETE ADDRESS AND RECEIPT/PAYMENTS SLIP OF ALL THE STUDENTS, BUT THE ASSESSEE HAS FURNISHED NAMES OF T HE STUDENTS, COPY OF LEDGER ACCOUNT ONLY. THEREFORE, THE AO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND CONCL UDED THAT CAUTION MONEY WAS THE INTEGRAL PART OF THE FEE RECE IVED FROM THE STUDENTS AND CHARGEABLE TO TAX. ACCORDINGLY, TH E AO MADE ADDITION OF RS. 4,43,800/-. 22. IN APPEAL, THE LD. CIT(A) NOTED THAT THE ASSESSEE H AD SHOWN LIABILITY ON ACCOUNT OF CAUTION MONEY TO THE E XTENT OF RS. 25,02,120/- AS ON 31.03.2010. THE ASSESSEE CLAI MED TO HAVE RETURNED CAUTION MONEY OF RS. 19,45,000/- TO T HE I.T.A.NO. 214/IND/2014-A.Y.2010-11 SMT. TRIPTI AGARWAL, BHOPAL PAGE 15 OF 18 STUDENTS AND THE BALANCE AMOUNT OF RS. 5,40,000/- WA S STATED TO BE RETURNED BACK AS INCOME IN THE PROFIT AND LOS S ACCOUNT OF FINANCIAL YEAR 2011-12 RELEVANT TO ASSESSMENT YEAR 2012-13, BUT THE LD. CIT(A) NOTED THAT IT IS STRANGE TO NOTE THAT THE ASSESSEE WAS NOT HAVING COMPLETE ADDRESSES OF THE ST UDENTS AS DESPITE OPPORTUNITY GIVEN BY THE AO DURING THE A SSESSMENT PROCEEDINGS. THEREFORE, CONSIDERING THE TOTALITY OF FACTS, THE ADDITION WAS CONFIRMED. 23. BEFORE US, THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS RECEIVED R S. 4,43,800/- FROM VARIOUS STUDENTS DURING THE YEAR AS CAUTION MONEY ALONGWITH FEE, WHICH HAS BEEN SHOWN AS LIABILITY AND NOT CREDITED TO THE PROFIT AND LOSS ACCOUNT. IT WAS SUBMITTED THAT CAUTION MONEY IS NOT UN-USUAL RECEIPTS IN COAC HING INSTITUTIONS AND THE PRACTICE OF TREATING THE SAME AS LIABILITY HAS BEEN ADOPTED FOR THE PAST MANY YEARS BEING REFU NDABLE TO THE STUDENTS EARNED LEAVING THE INSTITUTE. THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE ALSO SUBMITTED THE D ETAILS OF CAUTION MONEY REFUNDED IN SUBSEQUENT YEARS IS REFLE CTED AT I.T.A.NO. 214/IND/2014-A.Y.2010-11 SMT. TRIPTI AGARWAL, BHOPAL PAGE 16 OF 18 PAPER BOOK PAGE 31-47. IT WAS FURTHER SUBMITTED THA T UNCLAIMED PORTION OF CAUTION MONEY WAS TRANSFERRED TO PROFIT AND LOSS ACCOUNT IN ASSESSMENT YEAR 2012-13 AS SHOWN AT PAGE 48 OF THE PAPER BOOK. THEREFORE, IT WAS CONTEND ED THAT CAUTION MONEY RECEIVED IS AN INTEGRAL PART OF THE T OTAL FEE COLLECTION FROM THE STUDENTS WHICH HAS BEEN ACCEPTE D, ACCOUNTED AND DISCLOSED IN THE REGULAR BOOKS OF ACC OUNTS. WHEN FEE COMPONENT OTHER THAN CAUTION MONEY HAS NOT BEEN DISPUTED AND ACCEPTED, AS SUCH THE AO AND LD. CIT(A ) ARE NOT JUSTIFIED IN TREATING THE AMOUNT OF CAUTION MONEY F ROM THE SAME STUDENTS PAID AS PART OF TOTAL FEE AS UNEXPLAI NED CREDITORS. 24. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND T HAT THE ASSESSEE HAS FAILED TO FURNISH THE REQUIRED COMPLET E DETAILS I.E. ADDRESS OF THE STUDENTS, PAYMENT SLIPS DURING THE C OURSE OF ASSESSMENT PROCEEDINGS. IT WAS CLAIMED THAT DETAILS OF CAUTION MONEY STUDENT-WISE HAS ALREADY BEEN FURNISHED VIDE L ETTER DATED 28.12.2012 BEFORE THE AO AND THE REFUND OF C AUTION I.T.A.NO. 214/IND/2014-A.Y.2010-11 SMT. TRIPTI AGARWAL, BHOPAL PAGE 17 OF 18 MONEY IS ALSO SHOWN IN DEBIT SIDE OF THE SAID LEDGER ACCOUNT. THE BALANCE CAUTION MONEY HAS BEEN REFUNDED TO THE STUDENT ON LEAVING IN THE SUBSEQUENT YEAR. IT WAS SUBMITTED DURING THE ASSESSMENT PROCEEDINGS THAT TABULATION OF SUCH DETA ILS WILL TAKE ATLEAST 15 20 DAYS TIME BECAUSE THE ACCOUNTA NT HAD GONE OUT OF STATION. IT WAS SUBMITTED THAT MONEY REC EIPTS ARE BY CHEQUE AND RECEIPTS ARE IN THE NATURE OF LIABILI TY AND NOT INCOME. THE LD. CIT(A) DISBELIEVED THE ASSESSEE CON SIDERING THE CIRCUMSTANCES OF THE CASE AND PRINCIPLE OF HUMAN PR OBABILITY. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE , WE ARE OF THE OPINION THAT ONE MORE OPPORTUNITY IS TO BE ALLO WED TO THE ASSESSEE TO FURNISH THE REQUISITE DETAILS BEFORE TH E AO REGARDING EACH STUDENT AND PAYMENTS THEREOF. THEREF ORE, THIS ISSUE IS RESTORED BACK TO THE FILE OF AO TO MAKE A FRESH ASSESSMENT AFTER EXAMINING ALL THE DETAILS AS REQUI RED AFTER MAKING NECESSARY ENQUIRIES IN THIS REGARD. THEREFOR E, THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 25. GROUND NO. 7 RELATES TO CHARGING OF INTEREST U/S 23 4A, 234-B AND 234-C WHICH ARE OF CONSEQUENTIAL NATURE. I.T.A.NO. 214/IND/2014-A.Y.2010-11 SMT. TRIPTI AGARWAL, BHOPAL PAGE 18 OF 18 26. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED FOR STA TISTICAL PURPOSES. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON THE 7 TH NOVEMBER, 2016. SD/- (..) (D.T.GARASIA) JUDICIAL MEMBER SD/- (..) (O.P.MEENA) ACCOUNTANT MEMBER * / DATED : 7 TH NOVEMBER, 2016. CPU*