Shri Ramchandra Pushkar Rai, Khndwa V. ITO 1, Khandwa

ITA 63/Ind/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8891 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 29-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R P MOURYA
• Assessee Lawyers: GIRISH AGRAWAL
• Keywords: Unexplained cash credit; Additional evidence
• Section: 143(3); 142(1); 133(6); 131; 68; 11

Judgement Text

RAMCHANDRA PUSHKAR RAI KANUNGO HUF ITA NO.63/IND/2018 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER ITA NO.63/IND/2018 ASSESSMENT YEAR 2013-14 REVENUE BY S HRI R.P. MOURYA , SR.DR ASSESSEE BY S HRI GIRISH AGRAWAL, C.A DATE OF HEARING 0 5 .11 . 2018 DATE OF PRONOUNCEMENT 26 . 1 2 .2018 O R D E R PER MANISH BORAD, AM. THE ABOVE CAPTIONED APPEAL IS FILED AT THE INSTANCE OF ASSESSEE PERTAINING TO ASSESSMENT YEAR 2013-14 AND IS DIREC TED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS)- II (IN SHORT LD.CIT(A)], INDORE DATED 23.10.2017 WHICH IS ARIS ING OUT OF THE ORDER U/S 143(3) OF THE INCOME TAX ACT 1961(IN SHOR T THE ACT) DATED 28.03.2016 FRAMED BY ITO-1, KHANDWA. SHRI RAMCHANDRA PUSHKA R RAI KANUNGO HUF, HARIGANJ, KHANDWA VS. INCOME TAX OFFICER - 1, KHANDWA ( APPELLANT ) (RESPONDENT ) PAN NO. A APHR7239R RAMCHANDRA PUSHKAR RAI KANUNGO HUF ITA NO.63/IND/2018 2 2. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECO RDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS O F CONSTRUCTION AND COLONIZATION. INCOME AT RS.3,26,340/- DECLARED IN THE RETURN OF INCOME SUBMITTED ON 24.03.2015. CASE SELECTED FOR SCRUTINY ASSESSMENT UNDER CASS, FOLLOWED BY ISSUANCE OF NOTI CES U/S 143(2) & 142(1) OF THE ACT ALONG WITH QUESTIONNAIRE. ASSE SSEE RECEIVED ADVANCES FROM VARIOUS PARTIES ON ACCOUNT OF BOOKING OF DEVELOPED PLOTS. FOR VERIFICATION OF THESE ADVANCES SUMMONS U /S 133(6) WERE ISSUED AND THE STATEMENTS FROM THE PARTIES WERE REC ORDED. ASSESSMENT WAS COMPLETED U/S 143(3) AFTER MAKING AD DITIONS OF RS.50,000/- AND RS.43,12,250/- ON ACCOUNT OF ADVANC ES FROM VARIOUS PARTIES AND RS.6,03,850/-, RS.25,000/- AND RS.13,54,380/- ON OTHER HEADS. INCOME ASSESSED AT RS.66,71,820/-. 3. AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE LD.CI T(A) AND PARTLY SUCCEEDED. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L RAISING FOLLOWING GROUNDS OF APPEAL; 1. BECAUSE ON FACTS AND IN CIRCUMSTANCES OF THE CAS E, ID.CIT(A) HAS ERRED IN CONFIRMING ADDITION BY ID. ASSESSING OFFICER OF AMOUNT RECEIVED FROM RAMKUMAR GANGRADE RS4,OO,OOO/- AS UNEXPLAINED CREDI T. RAMCHANDRA PUSHKAR RAI KANUNGO HUF ITA NO.63/IND/2018 3 2. BECAUSE ON FACTS AND IN CIRCUMSTANCES OF THE CAS E, ID.CIT(A) HAS ERRED IN CONFIRMING ADDITION BY ID. ASSESSING OFFICER OF AMOUNT RECEIVED FROM LATE SHRI VINOD THAKKAR RS.27,00,000/- AS UNEXPLAIN ED CREDIT. 3. BECAUSE ON FACTS AND IN CIRCUMSTANCES OF THE CAS E, ID.CIT(A) HAS ERRED IN CONFIRMING ADDITION BY ID. ASSESSING OFFICER OF AMOUNT RECEIVED FROM SHRI ARUN BHAT RS.9,50,000/- AS UNEXPLAINED CREDIT. 4. BECAUSE ON FACTS AND IN CIRCUMSTANCES OF THE CAS E, ID.CIT(A) HAS ERRED IN CONFIRMING ADDITION OF AMOUNT RECEIVED FROM SHRI MATI MALTI SHARMA RS.2,62,000/- BY ID. ASSESSING OFFICER AS UNEXPLAIN ED CREDIT. 5. THE CIT(A) IGNORING THE FACT THAT ALL THE VOUCHE RS HAS BEEN PRODUCED FOR VERIFICATION BEFORE LD AO, HAVE CONFIRMED THE DISAL LOWED OF CASH EXPENDITURE OF RS 13,54,680/- . 5. LD. COUNSEL FOR THE ASSESSEE MADE COMMON SUBMISS ION FOR ALL THE GROUNDS. AS REGARDS GROUND NO. 1 TO 4 RELATING TO ADDITION FOR UNEXPLAINED CASH CREDIT FROM FOUR PERSONS, LD. COUN SEL FOR THE ASSESSEE SUBMITTED THAT IN THE COURSE OF BUSINESS ADVANCES FOR PLOT BOOKING WERE RECEIVED FROM ALL THESE FOUR PERS ONS. APART FROM THE CASH RECEIVED AS ADVANCE, MAJOR AMOUNT WAS RECE IVED THROUGH ACCOUNT PAYEE CHEQUE. PLOT OF LANDS WERE ALLOTTED AND SALE DEEDS ARE REGISTERED IN ALL THE FOUR CASES AND EXCESS AMO UNT RECEIVED WAS REFUNDED BACK TO THE CASH CREDITORS WHICH WAS DULY ACCEPTED IN THE REGISTERED SALE DEED. FOLLOWING WRITTEN SUBMISSION S HAVE BEEN RAMCHANDRA PUSHKAR RAI KANUNGO HUF ITA NO.63/IND/2018 4 PLACED BEFORE US BY LD. COUNSEL FOR THE ASSESSEE PR AYING FOR DELETION OF IMPUGNED ADDITION OF CASH CREDIT AT RS. 43,12,250/-:- 1. ASSESSEE IS ENGAGED IN THE BUSINESS OF CONSTRUCT ION. IT IS A TRADE PRACTICE OF THIS BUSINESS TO TAKE ADVANCE BEFORE BO OKING ANY PROPERTY. IT IS ONLY ON THE PAYMENT OF SUCH ADVANCE THAT THE BOO KING CAN HAPPEN; OTHERWISE THE MEANING OF 'BOOKING' ITSELF LOSES ITS MEANING. 2. BOOKING ADVANCE IS A TRADING ADVANCE FOR THE ASS ESSEE WHICH EVENTUALLY GOT CONVERTED INTO SALES REVENUE, DULY R EFLECTED IN THE PROFIT & LOSS ACCOUNT, OFFERED FOR TAX IN THE RELEVANT ASSES SMENT YEARS. 3. THERE IS NO 'TAX ADVANTAGE' SOUGHT TO BE ACHIEVE D BY THE ASSESSEE IN RESPECT OF ADDITIONS MADE BY THE LD. AD AND SUSTAIN ED BY THE LD. CIT(A) FOR THE ALLEGED 'BOOKING ADVANCES' AS UNEXPLAINED. 4. DURING THE IMPUGNED YEAR ASSESSEE HAD SHOWN RS.2 ,86,77,316 AS ADVANCE RECEIVED FOR BOOKING OF PLOTS FROM VARIOUS PROSPECTIVE BUYERS. LD. AO ISSUED SUMMONS U/S 133(6) AND STATEMENTS WER E RECORDED ON OATH U/S 131. DETAILS AS ARE AS UNDER- SR.NO PARTY FROM WHOM ADVANCE IS RECEIVED AMOUNT OF RELIEF GRANTED BY LD. CIT(A) AMOUNT IN APPEAL BEFORE YOUR HONORS 1 SMT.SUSHILA DEVI SUJANSINGH 50,000 NIL 2 SHRI RAMKUMAR GANGRADE NIL 4,00,000 3 LATE SHRI VINOD THAKKAR NIL 27,00,000 4 SHRI ARUN BHATT NIL 9,50,000 5 SHRI RAVISH PATEL NIL 2,62,250 TOTAL 50,000 43,12,250 RAMCHANDRA PUSHKAR RAI KANUNGO HUF ITA NO.63/IND/2018 5 LD. CIT(A) WHILE GRANTING THE RELIEF FOR THE ADDITI ON SUSTAINED OF RS. 50,000 RECEIVED FROM SMT. SUSHILA DEVI SUJANSINGH S TATED THAT - THE ADVANCE RECEIVED HAS INCLUDED IN THE INCOME FOR THE YEAR 2015-16 AND IF IT IS ADDED IN THE IMPUGNED YEAR IT SHALL NOT BE CO RRECT IN THE EYES OF LAW. HENCE THE ADDITION WAS DELETED. [CIT(A) ORDER PARA 8.1] 5. FOR THE ADDITIONS SUSTAINED IN THE CASE OF PARTI ES MENTIONED AT SR. NO. 2 TO 5 IN THE ABOVE TABLE, ASSESSEE SUBMITS THAT TH E ADVANCE RECEIVED WAS BROUGHT TO TAX IN THE YEAR FOR REGISTRATION OF PROPERTY. THIS FACT IS EVIDENT FROM THE FINANCIAL STATEMENTS, SUMMARIZED A S UNDER PARTY NAME PLOT NO. OPENING BALANCE DURING THE YEAR CLOSING BALANCE REGISTRY AMOUNT REGISTRY DATE SHRI RAMKUMAR GANGRADE 198 2,21,000 4,00,000 6,21,000 5,88,000 28.01.2015 (PB 18) SHRI PAWAN THAKKAR 3 9,21,000 27,00,000 36,21,000 13,87,000 13.11.2014 (PB18) SHRI ARUN BHATT (DEEPAK MALVIYA) 262 4,00,000 13,00,000 17,00,000 5,25,000 28.01.2014 (PB13) SHRI ARUN BHATT (DHANANJAY JAISWAL) 263, 264 11,76,000 08.07.2014 (PB28) SHRI RAVISH PATEL 261 2,21,000 7,23,155 9,44,155 4,60,000 04.09.2013 (PB13) ASSESSEE SUBMITS THAT THE DIFFERENCE IN REGISTRY AM OUNT AND THE ADVANCE RECEIVED WAS REFUNDED TO THE RESPECTIVE PARTIES IN THE YEAR OF REGISTRATION. THIS FACT IS EVIDENT FROM POINT NO. 13 OF THE COPY OF REGISTERED SALE DEED. [PB 28,43] 6. BOOKING ADVANCE PERTAINING TO SALE CONSIDERATION STATED IN THE REGISTERED SALE DEED WAS TRANSFERRED TO PROFIT AND LOSS ACCOUN T OF THE RESPECTIVE YEAR AND OFFERED TO TAX. ADDITION MADE BY LD. AO AND SUS TAINED BY LD. CIT(A) AMOUNTS TO DOUBLE TAXATION FOR THE SAME TRANSACTION . 7. DURING THE ASSESSMENT PROCEEDINGS, STATEMENTS OF ABOVE MENTIONED PARTIES' WERE RECORDED UNDER OATH U/S 131. IDENTITY IS ESTABLISHED. ASSESSEE RAMCHANDRA PUSHKAR RAI KANUNGO HUF ITA NO.63/IND/2018 6 SUBMITS THE FACT THAT THE PROPERTY IS REGISTERED IN THE NAME OF RESPECTIVE PARTIES IS NOT UNDER DISPUTE. THUS, THE GENUINENESS AND CREDITWORTHINESS ALSO STANDS ESTABLISHED. IN THE CASE OF SHRI RAMKUM AR GANGRADE, LD. AO ALLEGED FOR THE ADDITION MADE THAT IN THE COPY OF R EGISTERED SALE DEED THE DETAILS OF THE AMOUNT RECEIVED ARE NOT MENTIONED AN D ADDITION WAS MADE U/S 68. LD. CIT(A) SUSTAINED THE ADDITION ON THE BA SIS OF REMAND REPORT AND THE CROSS EXAMINATION OF SHRI RAMKUMAR GANGRADE. DU RING THE CROSS EXAMINATION HE STATED THAT NO AMOUNT WAS PAID BY HI M AS ADVANCE FOR THE PURCHASE OF IMPUGNED PLOT. THE ENTIRE AMOUNT WAS PA ID ON 28.01.2015, ON THE DATE OF REGISTRATION. REFERENCE MAY PLEASE ME M ADE TO THE RECEIPT ISSUED BY ASSESSEE WHICH STATE THE DATE AND AMOUNT OF ADVA NCE RECEIVED. [PB 34] L1. LN THE CASE OF SHRI PAWAN THAKKAR, THE FACT THA T PLOT WAS BOOKED BY HIS FATHER LATE SHRI VINOD THAKKAR CANNOT BE IGNORED. T HE PLOT WAS BOOKED THROUGH BROKER SHRI HEMANT CHAUDHARY (THROUGH MUTUA L FRIEND SHRI PRABHAT JHAWAR WHO IS A SIGNATORY AS WITNESS TO THE REGISTRY) TO WHOM ASSESSEE HAS PAID BROKERAGE. THE BROKERAGE WAS PAID THROUGH BANK WHICH IS EVIDENT FROM VOUCHERS. [PB 67-68]. LN THEIR AFFI DAVITS, SHRI HEMANT CHAUDHARY AND SHRI PRABHAT JHAWAR HAVE STATED THAT THE PLOT WAS PURCHASED BY LATE SHRI VINOD THAKKAR WHO PAID THE I NITIAL BOOKING AMOUNT OF RS. 21,000. THE BALANCE AMOUNT WAS PAID BY HIM T HROUGH THE BROKER IN INSTALLMENT OF RS. 3,00,000. IN THEIR AFFIDAVITS, I T IS ALSO MENTIONED THAT AT THE TIME OF REGISTRATION THE PLOT WAS BOOKED BY LAT E SHRI VINOD THAKKAR WHICH WAS EVENTUALLY REGISTERED BY HIM IN THE NAME OF HIS SON SHRI PAWAN THAKKAR. [PB 64-66, 69-72] 13. LN THE STATEMENT RECORDED UNDER OATH U/S 131 SH RI PAWAN THAKKAR HAS STATED THAT PLOT WAS PURCHASED AND THE ADVANCE WAS GIVEN BEFORE THE DATE OF REGISTRATION. LD. AO HAS STATED INCORRECT FACT T HAT, ASSESSEE HAS NOT SUBMITTED ANY DOCUMENT TO ESTABLISH THAT PLOT NOA W AS SOLD TO LATE SHRI VINOD THAKKAR OR SHRI PAWAN THAKKAR OR ANY AMOUNT W AS RECEIVED FOR RAMCHANDRA PUSHKAR RAI KANUNGO HUF ITA NO.63/IND/2018 7 PURCHASE OF PLOT. LD. CIT(A) ALSO ERRED IN IGNORING THE COPY OF RECEIPTS SUBMITTED AND SUSTAINED THE ADDITIONS MADE. 16. LN THE CASE OF SHRI ARUN BHATT, PLOT NO. 262, 2 63 AND 264 WERE BOOKED BY HIM. THESE PLOTS WERE REGISTERED IN THE NAME OF SHRI DEEPAK MALVIYA (PLOT NO. 262) AND SHRI DHANANJAY JAISWAL (PLOT NO. 263 AND 264) WHO GAVE RS. 2,50,000 AND RS. 1,00,000 RESPECTIVELY AT THE T IME OF REGISTRATION. HE GAVE THE ADVANCE FOR BOOKING OF THE ABOVE MENTIONED PLOTS OUT OF HIS PAST SAVINGS, AGRICULTURE INCOME OF HIS FAMILY AND HIS S ALARY INCOME EARNED AS BRANCH MANAGER OF BHUMI VIKAS BANK. IN THE STATEMEN T RECORDED UNDER OATH, HE HAS STATED THAT THE ADVANCE WAS PAID THROU GH STATE BANK OF INDIA, CIVIL LINE BRANCH INTO BANK OF INDIA. [PB 78 Q 8]. LD. AO HAS RAISED A VERY SPECIFIC QUESTION ASKING THAT THE PLOTS TAKEN ON AD VANCE WERE SOLD TO WHOM? RELEVANT EXTRACT IS AS UNDER - [PB 78 Q 8] 19.1N THE REGISTERED SALE DEED FOR PLOT NO. 263 AND 264 SOLD TO SHRI DHANANJAY JAISWAL, DETAILS OF AMOUNT AND DATE OF PA YMENT ARE SPECIFICALLY MENTIONED. FURTHER AT POINT NO. 13, IT IS SPECIFICA LLY STATED THAT THE ADVANCE RECEIVED FOR BOOKING OF PLOT WAS ADJUSTED AGAINST T HE SALE CONSIDERATION AND THE EXCESS OF ADVANCE WAS REFUNDED. [PB 96 AND 99] 20.CONSIDERING THE ABOVE FACTS AND CIRCUMSTANCES, I T IS EVIDENT THAT THE ADVANCE WAS RECEIVED BY ASSESSEE FOR BOOKING OF PLO T, WHICH IS IN ACCORDANCE TO THE TRADE PRACTICE IN WHICH THE ASSES SEE OPERATES, AND THE EXCESS OF ADVANCE AGAINST THE SALE CONSIDERATION WA S RETURNED TO THE RESPECTIVE PARTY UPON REGISTRY OF SALE DEED. ALSO, THE ENTIRE SALE CONSIDERATION WAS OFFERED TO TAX IN THE YEAR OF REG ISTRY. HENCE, SUCH AN ADDITION LEADS TO DOUBLE TAXATION FOR THE SAME TRAN SACTION. 21. LD. AO DURING THE ASSESSMENT PROCEEDINGS, MADE ADDITION OF RS. 13,54,380 ON ACCOUNT OF CERTAIN EXPENSES BY HOLDING THAT ASSESSEE FAILED TO PRODUCE ALL THE VOUCHERS IN SUPPORT OF ITS CLAIM. A SSESSEE SUBMITS THAT LD. RAMCHANDRA PUSHKAR RAI KANUNGO HUF ITA NO.63/IND/2018 8 AO HAD ASKED TO FURNISH THESE VOUCHERS ON 21.03.201 6 THROUGH ORDER SHEET ENTRY, HEARING FOR WHICH WAS FIXED ON 28.03.2016. T HIS FACT IS NOTED IN THE REMAND REPORT AT PB 362, BACK SIDE. THE IMPUGNED AS SESSMENT ORDER IS DATED 28.03.2018. OWING TO THE PAUCITY OF TIME GIVEN TO PRODUCE THE V OUCHERS FOR THE EXPENSES CLAIMED, ASSESSEE ON THIS DATE OF HEARING COULD NOT PRODUCE ALL THESE VOUCHERS. LD. AO CONSIDERED PART OF THE SUBMITTED V OUCHERS AND PASSED THE ORDER ON 28.03.2016, ON THE DATE OF HEARING ITSELF. [AD PAGE 14] 22. LN THE PROCEEDINGS BEFORE LD. CIT(A), ALL THE V OUCHERS WERE SUBMITTED. LD. AO IN THE REMAND REPORT STATED THAT THE VOUCHER S COULD NOT BE ACCEPTED AS ADDITIONAL EVIDENCES. STATEMENTS OF FEW WERE REC ORDED TO WHOM PAYMENTS WERE MADE FOR THE SAID EXPENSES. A. SHRI GYANSWAROOP VISHWAKARMA: IN HIS STATEMENT R ECORDED UNDER OATH HE HAS STATED THAT HE AN ELECTRIC CONTRACTOR H OLDING LICENSE NO. 25/4321. HE ADMITTED THAT HE HAS DONE WORK OF ELECT RIFICATION FOR MAHADEVI NAGAR, COLONY, KHANDWA. THE WORK WAS START ED BUT THE AGREEMENT WAS ENTERED INTO LATER ON 25.03.2014. THE PAYMENT WAS RECEIVED BY HIM IN ACCORDANCE TO THE AGREEMENT ENTE RED INTO. EXPENSE STANDS EXPLAINED AND NO ADDITION IS CALLED FOR. [PB 394] B. SHRI FIROZ KHAN: IN HIS STATEMENT RECORDED UNDER OATH, IN RESPONSE TO Q. NO. 6 HE STATED THAT THE ENTIRE AMOUNT WAS RE CEIVED BY HIM FROM ASSESSEE AND ALL THE VOUCHERS HAVE BEEN SIGNED BY H IM. HE HAS ALSO STATED THAT HE HAS RECEIVED WEEKLY LABOUR CHARGES O F RS. 12,000 TO RS. 20,000. SHRI FIROZ KHAN MADE THE PAYMENT TO THE LAB OUR ARRANGED BY HIM AND HENCE THE VOUCHER WAS MADE IN HIS NAME.[PB 391A Q. NO.4 AND PB 392 Q NO.6] C. SHRI NARENDRA KUMAR THAKUR: IN HIS STATEMENT REC ORDED UNDER OATH, RAMCHANDRA PUSHKAR RAI KANUNGO HUF ITA NO.63/IND/2018 9 IN RESPONSE TO Q. NO.5 HE HAS STATED THAT NO AMOUNT WAS RECEIVED BY HIM IN CASH. [PB 393] 23. RELIANCE IS PLACED ON JUDICIAL PRECEDENTS - A. HON'BLE HIGH COURT OF GUJARAT IN THE CASE OF NAV INBHAI N. PATEL - [2014] 41 TAXMANN.COM 424 - ORDER PRONOUNCED ON 30. 04.2013 B. HON'BLE DELHI BENCH OF ITAT IN THE CASE OF DR. S UNIL KUMAR SHARMA - [2014] 52 TAXMANN.COM 437 - ORDER PRONOUNCED ON 2L. 10.2014 - IDENTITY AND GENUINENESS ESTABLISHED NO ADDITION CA N BE MADE. C. HON'BLE JODHPUR BENCH OF ITAT IN THE CASE OF AYU SHI BUILDERS & DEVELOPERS - [2014] 50 TAXMANN.COM 396 - ORDER PRON OUNCED ON 14.08.2014 - PARA 4.3. 6. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEM ENTLY ARGUED SUPPORTING THE ORDERS OF LOWER AUTHORITIES. 7. WE HAVE HEARD RIVAL CONTENTIONS AND CAREFULLY PE RUSED THE RECORDS PLACED BEFORE US. 8. FIRST WE WILL TAKE UP GROUND NO. 1 TO 4 WHICH RE LATES TO UNEXPLAINED CASH CREDIT AT RS.43,12,250/- FROM THE FOLLOWING PERSONS; 1. SHRI RAM KUMAR GANGRADE 2. LATE VINOD THAKKAR RAMCHANDRA PUSHKAR RAI KANUNGO HUF ITA NO.63/IND/2018 10 3. SHRI ARUN BHATT 4. SHRI RAVISH PATEL 9. THE ABOVE STATED AMOUNTS WERE PART OF ADVANCES R ECEIVED FOR PLOT BOOKING AT RS.2,86,77,316/- AS ON THE YEAR END . INFORMATION WAS CALLED FOR BY THE LD. A.O U/S 133(6) OF THE ACT AND HE WAS SATISFIED WITH THE EXPLANATION GIVEN FOR THE CASH C REDITS IN THE SHAPE OF ADVANCES TOTALING TO RS. 2,43,50,066/-. O NE OF THE ADDITION OF RS.50,000/- MADE IN THE CASE OF SMT. SU SHILA DEVI SUJAN SINGH WAS DELETED BY LD. CIT(A). THE DISPUTE REMAINS ONLY FOR THE ABOVE REFERRED FOUR CASH CREDITORS AT RS.43 ,12,250/- FOR WHICH THE ASSESSEE HAS CLAIMED THAT THESE AMOUNTS W ERE RECEIVED AS ADVANCES FOR PLOT BOOKING AND RECEIPTS WERE ISSU ED FOR THE CASH RECEIVED FROM THESE PERSONS. THE ALLEGATION OF THE REVENUE IS THAT NO SUCH CASH ADVANCES WAS RECEIVED AND FOR THE YEAR UNDER APPEAL THESE AMOUNTS WERE IN THE FORM OF UNEXPLAINED CASH WHICH WAS UTILIZED FOR THE PAYMENTS FOR EXPENSES AND OTHER BU SINESS RELATED EXPENDITURE. 10. WE FIND THAT ALL THE ABOVE REFERRED FOUR PERSON S/THEIR LEGAL HEIR/REPRESENTATIVE WERE CALLED BY THE LD.A.O AND D UE COMPLIANCES RAMCHANDRA PUSHKAR RAI KANUNGO HUF ITA NO.63/IND/2018 11 WERE MADE. SO THERE IS NO DISPUTE FOR THE IDENTITY OF THE CASH CREDITORS. NOW THE GENUINENESS AND CREDITWORTHINES S OF THE CASH CREDITORS NEEDS TO BE EXAMINED IN THE GIVEN FACTS. AFTER PERUSAL OF THE PAPER BOOK RUNNING FROM PAGE NO. 1 TO 403 AS WE LL AS ORDERS OF LOWER AUTHORITIES, WE FIND THAT SALE DEEDS HAVE BEE N REGISTERED IN ALL THE FOUR CASES MEANING THEREBY THAT THE TRANSACTION S WHICH TOOK OFF BY THE ADVANCE WHICH WAS RECEIVED FOR PLOT BOOKING FINALLY MATERIALIZED AND THE PLOTS WERE SOLD TO THE RESPECT IVE PERSONS THROUGH REGISTERED SALE DEED WHEREIN THE IMPUGNED TRANSACTIONS HAVE BEEN VERIFIED BY BOTH THE PARTIES PLACED BEFOR E A GOVERNMENT AUTHORITY. THE DISPUTE ARISED ONLY WHEN THE ALLEGE D CASH CREDITORS REFUSED TO HAVE GIVEN ADVANCES DURING THE YEAR UNDE R APPEAL BUT NOWHERE THEY HAVE QUESTIONED THE GENUINENESS OF THE TRANSACTION AND THE PURCHASE OF PLOTS/IMMOVEABLE PROPERTY FROM THE ASSESSEE. IT IS ALSO NOT DISPUTED THAT THE SALE CONSIDERATION RECEIVED BY THE ASSESSEE HAS BEEN DULY OFFERED TO TAX IN THE YEAR W HEN SALE DEEDS WERE REGISTERED AND DUE TAXES HAVE BEEN PAID THEREO F. IT IS ALSO EVIDENT FROM THE RECORD THAT THE EXCESS AMOUNT LEFT WITH THE ASSESSEE, IF ANY WAS ALSO REFUNDED TO THE RESPECTIV E PARTIES AND THE SAME IS VERIFIABLE FROM GOING THROUGH PARA 13 OF TH E REGISTERED SALE RAMCHANDRA PUSHKAR RAI KANUNGO HUF ITA NO.63/IND/2018 12 DEEDS WHERE THE PURCHASER ACCEPTS TO HAVE RECEIVED ANY EXCESS AMOUNT RECEIVED AS ADVANCE AND IT HAS BEEN DULY ADM ITTED THAT THE ADVANCED AMOUNT HAVE BEEN RECEIVED. SO IN NUTSHELL THERE SEEMS TO BE NO LOSS TO THE REVENUE AS REGARDS TO SALE CON SIDERATION RECEIVED. IDENTITY IS ALREADY NOT DISPUTED. SALE CONSIDERATION RECEIVED IN CASH AS WELL AS THE CHEQUE HAS ALSO BEE N ACCEPTED BY THE ALLEGED CASH CREDITORS. HOWEVER IN OUR CONSIDER ED OPINION AND IN THE GIVEN CIRCUMSTANCES OF THE CASE AS WELL AS THE MATERIALS PLACED BEFORE US, WE FIND MERIT IN THE CONTENTION O F LD. COUNSEL FOR THE ASSESSEE THAT THE ALLEGED CASH CREDITS OF RS.43 ,12,250/- ARE DULY EXPLAINED WITH REGARD TO THE IDENTITY, GENUINE NESS AND CREDITWORTHINESS AS THE SALE DEEDS HAVE BEEN REGIST ERED IN THE NAME OF THE FOUR PERSONS ACCEPTING THE TRANSACTIONS. TH EREFORE NO ADDITION WAS CALLED FOR U/S 68 OF THE ACT FOR RS.43 ,12,250/- . WE ACCORDINGLY SET ASIDE THE FINDINGS OF LD. CIT(A) AN D DELETE THE ADDITION OF RS.43,12,250/-. IN THE RESULT GROUND N O. 1 TO 4 OF THE ASSESSEES APPEAL IS ALLOWED. 11. NOW WE TAKE UP GROUND NO.5 WHICH RELATES TO THE DISALLOWANCE FOR CASH EXPENDITURE OF RS. 13,54,680/ - . WE FIND THAT RAMCHANDRA PUSHKAR RAI KANUNGO HUF ITA NO.63/IND/2018 13 DURING THE COURSE OF ASSESSMENT PROCEEDINGS LD.A.O WHILE EXAMINING THE EXPENDITURE TOTALING OF RS. 24,43,811 /- WAS SATISFIED WITH VARIOUS EXPENDITURES TOTALING TO RS.10,89,431/ - AND FOR THE REMAINING AMOUNT HE DISALLOWED THE IMPUGNED EXPENDI TURE FOR WANT OF NECESSARY VOUCHERS AND RECORDS. WE FIND TH AT BEFORE THE FIRST APPELLATE AUTHORITY NECESSARY DETAILS WERE PL ACED AND REMAND REPORT WAS CALLED FOR BUT LD. A.O OBJECTED TO ACCEP TANCE OF ADDITIONAL EVIDENCE. WE FIND THAT STATEMENTS OF SO ME OF VENDORS SHRI GYANSWAROOP VISHWAKARMA WHO DID THE ELECTRIFIC ATION WORK, SHRI FIROZ KHAN WHO DID THE LABOUR WORK AND SHRI NA RENDRA KUMAR THAKUR WHO HAD DID THE LABOUR WORK GAVE THEIR STATE MENTS ON OATH STATING THAT THEY RECEIVED THE AMOUNTS FROM THE ASS ESSEE FOR VARIOUS WORKS PROVIDED BY THEM. ALL NECESSARY VOUC HERS HAVE ALSO BEEN PLACED ON RECORD OF WHICH MAJOR ARE CASH EXPEN SES. BOOKS OF ACCOUNTS HAVE BEEN MAINTAINED. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST O F JUSTICE AND BEING FAIR TO BOTH THE PARTIES ARE OF THE VIEW THA T 10% DISALLOWANCE OF THE IMPUGNED EXPENDITURE OF RS.13,54,680/- I.E. RS.1,35,468/- WILL BE JUSTIFIED. WE ACCORDINGLY ORDER SO AND PAR TLY ALLOW GROUND NO.5 OF THE ASSESSEE. RAMCHANDRA PUSHKAR RAI KANUNGO HUF ITA NO.63/IND/2018 14 12. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 26.12.201 8. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : DECEMBER, 2018 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE