DCIT 24(2), MUMBAI V. RUSHABH DEVELOPERS, MUMBAI

ITA 6458/MUM/2012

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0708 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 12-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 23-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Assessee Lawyers: RAHUL K HAKANI
• Keywords: Unexplained cash credit
• Section: 143(3); 131; 68

Judgement Text

D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ./ I.T.A. NO. 6458 /MUM/2012 ( / ASSESSMENT YEAR : 2008-09 DCIT 24 ( 2 ), C-13, 6 TH FLOOR, PRATYAKSHA KAR BHAVAN, BKC, BANDRA (E), MUMBAI 400 051. / VS. M/S RUSHABH DEVELOPERS, 03, KASAM KHAN COMPOUND, RANI SATI MARG, MALAD (E), MUMBAI-97. ./ PAN : AAEFR0754Q ( / APPELLANT ) .. ( / RESPONDENT ) A PPELLANT BY SHRI LOVE KUMAR (D.R.) R E SPONDENT BY : SHRI RAHUL K. HAKANI / DATE OF HEARING : 28-05-2015 / DATE OF PRONOUNCEMENT :28-05-2015 [ !' / O R D E R PER R.C. SHARMA, A.M . : THIS IS AN APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A) -34, MUMBAI DATED 21-08-20 12 FOR THE A.Y. 2008-09 IN THE MATTER OF ORDER PASSED U/S 143(3) OF THE INC OME TAX ACT, 1961. 2. THE ONLY GRIEVANCE RAISED BY THE REVENUE RELATE S TO THE DELETION OF ADDITION OF RS. 12.88 LAKHS MADE BY THE A.O. IN RES PECT OF AMOUNT RECEIVED AS SALE CONSIDERATION OF FLAT. 3. WE HAVE GONE THROUGH THE ORDERS OF AUTHORITIES B ELOW AND FOUND THAT DURING THE YEAR THE ASSESSEE HAD RECEIVED RS.12,88, 900/- FROM ONE MR. ITA 6458/M/12 2 HANEEF A KHAN TOWARDS SALE OF FLAT NO. 505. TO VERI FY THE GENUINENESS OF THE ABOVE TRANSACTION, SUMMONS S U/S 131 WAS ISSUED BY THE ASSESSING OFFICER WHICH WAS RETURNED BY THE POSTAL AUTHORITIES. OPPOR TUNITY WAS GIVEN TO THE ASSESSEE TO FURNISH CONFIRMATION FROM SHRI HANEEF A KHAN. IN THE ABSENCE OF CONFIRMATION, THE ASSESSING OFFICER CAME TO THE CON CLUSION THAT THE ONUS OF PROVING THE GENUINENESS HAS NOT BEEN EXPLAINED BY T HE ASSESSEE AND HENCE ADDED THE ENTIRE SUM AS UNEXPLAINED CASH CREDIT U/S 68 OF THE IT ACT, 1961. BY THE IMPUGNED ORDER, THE LD. CIT(A) HAS DELETED T HE ADDITION AFTER HAVING OBSERVATION:- I HAVE GONE THROUGH THE ABOVE SUBMISSIONS OF THE A PPELLANT. IN SUPPORT OF ITS CONTENTION THAT FLAT NO. 505 HAS BEE N SOLD TO MR. HANEEF A. KHAN FOR A CONSIDERATION OF RS. 25,38,900/- THE COPY OF THE REGISTERED AGREEMENT SHOWING THE PAN OF MR. HANEEF A KHAN VAS FURNISHED BEFORE ME. I HAVE PERUSED THE COPY OF THE AGREEMENT WHICH IS IN PAGES 51 TO 58 OF THE PAPER BOOK. THE ADDRESS ME NTIONED IN THE REGISTERED DOCUMENT IS KAMRUNISHA H KHAN, HUMERA PA RK, 710, WING 'B', BUILDING NO.3, PATHAR WADI, MALAD (E), MUMBAI 97. THE DETAILS OF PAYMENTS TO BE MADE ARE IN CLAUSE 3 OF THE SAID AGR EEMENT. PAGE-55 OF THE PAPER BOOK WHICH IS PART OF THE REGISTERED AGRE EMENT CONTAINS THE PHOTOGRAPHS ALONG WITH SIGNATURES AND THE LEFT HAND THUMB IMPRESSION OF THE INDIVIDUALS. THE REGISTERED DOCUMENTS CLEARL Y ESTABLISHES THE IDENTITY OF THE BUYER OF THE ABOVE FLAT. IT IS TO T HE VERY SAME ADDRESS MENTIONED IN THE REGISTERED DOCUMENTS, THE ASSESSIN G OFFICER HAS ISSUED SUMMONS U/S. 131. THE APPELLANT HAS PROVIDED THE CORRECT AND LATEST ADDRESS AS KNOWN TO THEM AS PER THE REGISTER ED DOCUMENTS. THE MERE INABILITY OF THE BUYER TO CONFIRM AND FAILURE TO APPEAR FOR SUMMONS CANNOT MAKE A GENUINE TRANSACTION INTO A NO N-GENUINE TRANSACTION. IDENTITY OF THE BUYER HAS BEEN ESTABLI SHED. THE COPIES OF PAYMENTS RECEIPTS ISSUED BY THE APPELLANT WAS ALSO PRODUCED BEFORE THE ASSESSING OFFICER IN SUPPORT OF THE CONTENTION THAT THE BUYER HAS GENUINELY PAID THE ABOVE AMOUNTS. THE INABILITY OF THE APPELLANT TO FURNISH THE CONFIRMATION CANNOT BE REGARDED AS A NO N-GENUINE TRANSACTION. IN VIEW OF THE ABOVE DISCUSSION, I DO NOT AGREE WITH THE ASSESSING OFFICER THAT THE BUYER IS A NON-EXISTENT AND FICTITIOUS ENTITY FOR MAKING ADDITION U/S 68 OF THE IT ACT, 1961. IN VIEW OF THE ABOVE DISCUSSION, THE ADDITION MADE BY THE ASSESSING OFFI CER IS HEREBY DELETED. AGAINST THE ABOVE ORDER OF THE LD. CIT(A), THE REVE NUE IS IN FURTHER APPEAL BEFORE US. ITA 6458/M/12 3 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND FO UND THAT DURING THE YEAR THE ASSESSEE HAD SOLD FLAT TO SHRI HANNEF A. K HAN FOR A CONSIDERATION OF RS. 25.38 LAKHS. OUT OF THE SALE CONSIDERATION, TO TAL ADVANCE OF RS. 17.39 LACS WAS RECEIVED OUT OF WHICH ADVANCE RECEIVED DUR ING THE YEAR WAS RS. 12.88 LAKHS. SINCE THE ASSESSEE COULD NOT PRODUCE T HE CONFIRMATION FROM SHRI HANEEF A KHAN BEFORE THE A.O., ADDITION WAS MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. AS PER THE FINDING R ECORDED BY THE LD. CIT(A) TO THE EFFECT THAT IN THE REGISTERED SALE AGREEMENT, P AN OF SHRI HANEEF A KHAN WAS FURNISHED AND THERE WAS CLEAR MENTION OF ADDRES S OF THE BUYER IN THE SALE DEED. THE LD. CIT(A) AT PARA 12 OF HIS ORDER HAS R ECORDED A CATEGORICAL FINDING WITH REGARD TO THE IDENTITY AND GENUINENESS OF BUYE R. THE A.O. HAS MADE THE ADDITION IN RESPECT OF THE AMOUNT RECEIVED FROM THE BUYER AS ADVANCE AGAINST SALE OF THE FLAT. WE FOUND THAT THIS AMOUNT WAS REC EIVED BY THE ASSESSEE AS A CONSIDERATION OF SALE OF FLAT WHICH WAS GOING TO FO RM PART OF ASSESSEES INCOME. THE AMOUNT SO RECEIVED WAS NOT IN THE NATUR E OF LOANS AND ADVANCES BUT WAS AGAINST THE SALE OF FLAT. AS PER THE FINDI NG RECORDED BY THE LD. CIT(A), THE IDENTITY OF THE BUYER WAS CLEARLY ESTABLISHED. THE DETAILED FINDING RECORDED BY THE LD. CIT(A) HAS NOT BEEN CONTROVERTED BY THE REVENUE AND ACCORDINGLY WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORD ER OF THE LD. CIT(A) IN DELETING THE ADDITION MADE BY THE A.,O. U/S 68 OF T HE ACT. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH MAY, 2015. !' # $% &! ' 28-5-2015 ( ) SD/- SD/- (D. MANMOHAN) (R.C. SHARMA) VICE PRESIDENT ACCOUNTANT MEMBER $ 4 MUMBAI ; &! DATED 28-05-2015 ITA 6458/M/12 4 .5../ RK RKRK RK , SR. PS ! '#$% &%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 6 () / THE CIT(A) CONCERNED, MUMBAI 4. 6 / CIT -CONCERNED, MUMBAI 5. 9:( 55;< , ;< , $ 4 / DR, ITAT, MUMBAI J BENCH 6. (>? @ / GUARD FILE. ' / BY ORDER, 9 5 //TRUE COPY// (/') * ( DY./ASSTT. REGISTRAR) , $ 4 / ITAT, MUMBAI