Dy. Commissioner of Income Tax, Lucknow V. Bhalla Farms Pvt. Ltd., Lucknow

ITA 771/LKW/2014

• Counselvise Citation: 77123714 RSA 2014
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 02-03-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 14-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K R RASTOGI
• Keywords: Unexplained cash credit
• Section: 68; 6

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.771/LKW/2014 ASSESSMENT YEAR:2010 - 11 M/S BHALLA FARMA PVT. LTD., BHALLA MANSION, MAQBARA ROAD, HAZARATGANJ, LUCKNOW. PAN:AACCB3614N VS DY.C.I.T., RANGE - 1, LUCKNOW. (RESPONDENT) (APPELLANT) SHRI ARVIND MISHRA, D. R. APPELLANT BY SHRI K. R. RASTOGI, FCA RESPONDENT BY 02/03/2015 DATE OF HEARING 16 /04/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - I, LUCKNOW DATED 14/07/2014 FOR THE ASSESSMENT YEAR 2010 - 2011. 2. GROUND NO. 1 IS AS UNDER: 1. THE CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.5,51,000/ - AS UNEXPLAINED CASH CREDIT IN WHICH GENUINENESS AND CAPACITY/ CREDITWORTHINESS OF THE PARTY WAS NOT PROVED. 3. LEARNED D. R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS LEAR NED A. R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT(A). 2 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THIS ISSUE WAS DECIDED BY LEARNED CIT(A) AS PER PARA 3.2 OF HIS ORDER, WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 3.2 I HAVE CONSIDERED THE MATTER. I HAVE ALSO PERUSED THE EVIDENCES FURNISHED BY THE APPELLANT AND THE JUDGMENTS RELIED UPON BY HIM. I AGREE WITH THE APPELLANT THAT CASH RECEIVED FROM PURCHASER OF THE PLOT WOULD NOT ATTRACT THE PROVISIONS OF UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. FURTHER IN SUCH CASES THERE MAY STILL BE SOME ONUS ON THE APPELLANT TO EXPLAIN THE DEPOSITS BUT SUCH ONUS WOULD NOT BE AS STRINGENT AS IN THE CASE OF SECTION 68 OF THE ACT. IN THE IMPUGNED CASE THERE IS NO DOUBT T HAT THE AMOUNT OF RS.9,51,000/ - WAS RECEIVED FROM P.K. JAIN AND ANITA JAIN DURING FY 2009 - 10 OUT OF WHICH AMOUNT OF RS.5,51,000/ - WAS RECEIVED IN CASH TOWARDS SALE OF THE PLOT. THE BALANCE AMOUNT OF CONSIDERATION AMOUNTING TO RS.5,25,7507 - WAS RECEIVED IN NEXT YEAR AND THE SALE DEED WAS ALSO REGISTERED IN NEXT YEAR ON 29.05.2010 IN THE NAME OF MR. ADITYA JAIN WHO IS SON OF MR. P. K. JAIN AND MRS. ANITA JAIN. THE PROFIT ON SALE OF THE PLOT WAS DULY OFFERED FOR TAXATION IN THE NEXT FINANCIAL YEAR, IN THE SALE DEED IN THE SCHEDULE OF PAYMENT IT IS MENTIONED THAT THE SUM OF RS.14,76,750/ - HAS BEEN ALREADY PAID BEFORE THE EXECUTION OF THIS DEED. I FIND THAT THAT CASH DEPOSIT OF RS.5,51,000/ - IS SELF EXPLAINED AS THE SAID AMOUNT WAS RECEIVED BY THE APPELLANT FROM PURCHASERS AGAINST WHICH THE PLOT WAS SOLD TO THEM AND SUCH AMOUNT WOULD NOT ATTRACT PROVISIONS OF SECTION 68 OF THE ACT. HENCE IT IS HELD THAT THE AO WAS NOT JUSTIFIED IN MAKING ADDITION OF RS.5,51,000/ - AS UNEXPLAINED CASH CREDIT. ADDITION OF RS.5,51,000 / - MADE BY THE ASSESSING OFFICER IS DELETED. 4.1 FROM THE ABOVE PARA FROM THE ORDER OF LEARNED CIT(A), WE FIND THAT A CLEAR FINDING HAS BEEN GIVEN BY HIM THAT THE AMOUNT IN QUESTION OF RS.5.51 LAC WAS RECEIVED BY THE ASSESSEE IN CASH TOWARDS SALE OF PLOT . THIS FINDING IS ALSO GIVEN BY CIT(A) THAT THE BALANCE AMOUNT OF SALE PROCEEDS OF RS. 5,25,750 / - WAS RECEIVED IN NEXT YEAR AND THE SALE DEED WAS ALSO REGISTERED IN NEXT YEAR ON 29.05.2010 IN THE NAME OF MR. ADITYA JAIN WHO IS SON OF MR. P. K. JAIN AND MRS . ANITA JAIN. HE HAS ALSO NOTED THAT T HE PROFIT 3 ON SALE OF THE PLOT WAS DULY OFFERED FOR TAXATI ON IN THE NEXT FINANCIAL YEAR. HE HAS ALSO NOTED THAT IN THE SALE DEED IN THE SCHEDULE OF PAYMENT , IT IS MENTIONED THAT THE SUM OF RS.14,76,750/ - HAS BEEN ALRE ADY PAID BEFORE THE EXECUTION OF SALE DEED WHICH INCLUDES TH IS AMOUNT OF RS.5.51 LAC. IN THE LIGHT OF THESE FACTS, IT WAS HELD BY CIT(A) THAT THE ADDITION MADE BY THE ASSESSING OFFICER IS NOT SUSTAINABLE AND THE SAME WAS DELETED. CONSIDERING ALL THESE FA CTS, AS DISCUSSED ABOVE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) BECAUSE WHEN THE RECEIPT IN QUESTION HAS BEEN SHOWN TO BE ON ACCOUNT OF ADVANCE RECEIPTS OF SALE PROCEEDS OF PLOT AND SUCH RECEIPT HAS BEEN CONSIDERED FOR COMPUTING CAPITAL GAIN I N THE NEXT YEAR, THE ADDITION MADE BY THE ASSESSING OFFICER FOR SUCH RECEIPT AS UNEXPLAINED CASH CREDIT IS NOT JUSTIFIED. WE, THEREFORE, DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A) ON THIS ISSUE. ACCORDINGLY, GROUND NO. 1 IS REJECTED. 5. GROUND NO. 2 IS AS UNDER: 2. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN GIVING RELIEF OF RS.12,20,000/ - AS UNEXPLAINED CASH CREDIT WHICH REMAINS UNVERIFIED. 6. LEARNED D. R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS LEARN ED A. R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT(A). 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THIS ISSUE HAS BEEN DECIDED BY LEARNED CIT(A) AS PER PARA 4.2 OF HIS ORDER, WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 4.2 I HAVE CONSIDERED THE MATTER. I HAVE ALSO PERUSED THE EVIDENCES FURNISHED BY THE APPELLANT AND THE JUDGMENTS RELIED UPON BY HIM. IN THE IMPUGNED CASE THERE IS NO DOUBT THAT THE AMOUNT OF RS.7,00,000/ - WAS RECEIVED FROM SMT. REETA SRIVASTAVA DURING F.Y. 200 9 - 10 IN CASH TOWARDS THE SALE OF PLOT. THE BALANCE AMOUNT OF CONSIDERATION AMOUNTING TO RS.5,20,000/ - WAS RECEIVED IN CASH IN THE NEXT YEAR AND THE 4 SALE DEED WAS ALSO REGISTERED IN THE NEXT YEAR ON 03.05.2010 IN THE NAME OF SMT. REETA SRIVASTAVA. THE PROFI T ON SALE OF THE PLOT WAS DULY OFFERED FOR TAXATION IN THE NEXT FINANCIAL YEAR. IN THE SALE DEED IN THE SCHEDULE OF PAYMENT IT IS MENTIONED THAT THE SUM OF RS.12,20,000/ - HAS BEEN ALREADY PAID BEFORE THE EXECUTION OF THIS DEED. I ALSO FIND THAT THAT CASH P AYMENTS OF RS.12,20,000/ - ARE SELF EXPLAINED AS THE SAID AMOUNT WAS RECEIVED BY THE APPELLANT FROM PURCHASER AGAINST WHICH THE PLOT WAS SOLD TO HER AND SUCH AMOUNT WOULD NOT ATTRACT PROVISIONS OF SECTION 68 OF THE ACT. HENCE, IT IS HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDITION OF RS.12,20,000/ - AS UNEXPLAINED CASH CREDIT. ADDITION OF RS.12,20,000/ - MADE BY THE ASSESSING OFFICER IS DELETED. 7.1 FROM THE ABOVE PARA FROM THE ORDER OF CIT(A), WE FIND THAT IT IS NOTED BY LEARNED CIT(A) THAT OUT OF THIS RECEIPT OF RS.12.20 LAC, RS.7 LAC WAS RECEIVED FROM SMT. REETA SRIVASTAVA DURING FINANCIAL YEAR 2009 - 10 IN CASH TOWARDS SALE OF FLAT. HE ALSO NOTED THAT THE BALANCE CONSIDERATION AMOUNTING TO RS.5,20,000/ - WAS RECEIVED IN CASH IN THE N EXT YEAR AND THE SALE DEED WAS ALSO REGISTERED IN THE NEXT YEAR ON 03.05.2010 IN THE NAME OF SMT. REETA SRIVASTAVA. HE HAS ALSO NOTED THAT THE PROFIT ON SALE OF THE PLOT WAS DULY OFFERED FOR TAXATION IN THE NEXT FINANCIAL YEAR. HE HAS ALSO NOTED THAT I N THE SALE DEED IN THE SCHEDULE OF PAYMENT , IT IS MENTIONED THAT THE SUM OF RS.12,20,000/ - HAS BEEN ALREADY PAID BEFORE THE EXECUTION OF THIS DEED. THE CIT(A) HAS HELD THAT IN THE LIGHT OF THESE FACTS , THE AMOUNT IN QUESTION RECEIVED BY THE ASSESSEE ON AC COUNT OF SALE OF PLOT, CANNOT BE CONSIDERED AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. HENCE, WE FIND THAT THE FACTS AND ARGUMENTS FOR THIS ISSUE ARE SAME AS REGARDING GROUND NO. 1 AND WE HAVE ALREADY HELD THAT THE ADDITION MADE BY THE ASSESSING OFFICE R IN RESPECT OF ADVANCE RECEIVED FOR SALE OF PLOT CANNOT BE ADDED U/S 68 BY ALLEGING IT TO BE UNEXPLAINED CASH CREDIT. HENCE, ON THIS ISSUE ALSO, WE DECLINE TO INTERFERE IN THE ORDER OF CIT(A). 5 8. GROUND NO. 3 IS AS UNDER: 3. THE LD. CIT(A) HAS ERRE D IN LAW AND ON FACTS OF THE CASE IN GIVING RELIEF OF RS.14,00,000/ - AS UNEXPLAINED CASH CREDIT, WHICH REMAIN UNVERIFIED. 9. LEARNED D. R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS LEARNED A. R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT(A). 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THIS ISSUE HAS BEEN DECIDED BY LEARNED CIT(A) AS PER PARA 5.2 OF HIS ORDER, WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 5.2 I HAVE CONSIDERED THE MATTER. I HAVE ALSO PERUSED THE E VIDENCES FURNISHED BY THE APPELLANT AND THE JUDGMENTS RELIED UPON BY HIM. IN THE IMPUGNED CASE THERE IS NO DOUBT THAT THE AMOUNT OF RS.5,00,000/ - WAS RECEIVED FROM SMT. SAROJ SRIVASTAVA DURING FY 2009 - 10 IN CASH TOWARDS THE SALE OF PLOT. THE BALANCE AMOUNT OF CONSIDERATION AMOUNTING TO RS.9,00,000/ - WAS RECEIVED IN CASH IN THE NEXT YEAR AND THE SALE DEED WAS ALSO REGISTERED IN THE NEXT YEAR ON 03.05.2010 IN THE NAME OF SMT. SAROJ SRIVASTAVA. THE PROFIT ON SALE OF THE PLOT WAS DULY OFFERED FOR TAXATION IN TH E NEXT FINANCIAL YEAR. IN THE SALE DEED IN THE SCHEDULE OF PAYMENT IT IS MENTIONED THAT THE SUM OF RS.14,00,000/ - HAS BEEN ALREADY PAID BEFORE THE EXECUTION OF THIS DEED. I ALSO FIND THAT THAT CASH PAYMENTS OF RS.14,00,000/ - ARE SELF EXPLAINED AS THE SAID AMOUNT WAS RECEIVED BY THE APPELLANT FROM THE PURCHASER AGAINST WHICH THE PLOT WAS SOLD TO HER AND SUCH AMOUNT WOULD NOT ATTRACT PROVISIONS OF SECTION 68 OF THE ACT. HENCE IT IS HELD THAT THE AO WAS NOT JUSTIFIED IN MAKING ADDITION OF RS.14,00,000/ - AS UNEXPLAINED CASH CREDIT. ADDITION OF RS.14,00,000/ - MADE BY THE AO IS DELETED. 10.1 FROM THE ABOVE PARA FROM THE ORDER OF CIT(A), WE FIND THAT THE ISSUE AND FACTS FOR THIS ISSUE ARE IDENTICAL TO THE ISSUE S DECIDED EARLIER AND THEREFORE, ON THIS ISSUE ALS O, WE DECLINE TO INTERFERE IN THE ORDER OF CIT(A) BECAUSE THE ADDITION MADE BY THE ASSESSING OFFICER U/S 6 8 IS ON ACCOUNT OF 6 RECEIPT OF ADVANCE MONEY IN CASH TOWARDS SALE OF PLOT AND THE SAID RECEIPT WAS CONSIDERED FOR WORKING OF PROFIT ON SALE OF PLOT IN THE NEXT YEAR. HENCE, THIS GROUND IS ALSO REJECTED. 11. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 16 /04/2015 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR