TaxTMI 
TaxTMI 
2017 (3) TMI 1236
X X X X Extracts X X X X
X X X X Extracts X X X X
....issue wherein it seeks to revive Assessing Officer's action making additions of Rs. 5,97,64,110/- and booking advances of Rs. 28,71,252/-; as added u/s.68 of the Act forming part of the above gross amount of Rs. 11.24crores. 3. We come to relevant facts. The assessee company develops real estate projects. The impugned assessment year is stated to be the year of its incorporation. It commenced its Nalsarovar city project in relevant previous year. The assessee credited a gross amount of Rs. 12,11,39,401/- as advances from 2129 customers. It further returned a sum of Rs. 87,13,650/- therefrom to the said parties. The balance left thus came to be Rs. 11,24,25,551/-. The Assessing Officer sought all necessary details in the course of scrutiny. The assessee in response filed copy of agreements pertaining to its members/customers with names, addresses, telephone numbers, plot specifications, advances receipts particular, application forms with photographs, modes of payment, relevant period of payments, type of plot and brochure scheme. The Assessing Officer framed a regular assessment on 03.12.2010 invoking Section 68 of the Act thereby treating the above sum of Rs. 11.24crores as une....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se favour sale deed has been executed. It is seen that the appellant has executed sale deeds in favour of 175 persons from whom advances in the A.Y.2008-09 of Rs. 2,19,55,992/- was received. The transfer of residential plots by way of sale deed was made after 31/3/2007 but before 22/2/2012. The amount of advances received from these persons works out to Rs. 2,19,55,992/-. In my considered view the advances to the extent of Rs. 2,19,55,992/- cannot be taxed u/s.68 of the I.T. Act in the A.Y.2008-09, since the income representing these advances has been declared /booked as sale in the subsequent years. As per the trite law income can be taxed only once. Since income representing these advances is offered in the subsequent years, accordingly, there is no justification for taxing the same in this year u/s.68 of the I.T.Act. Accordingly, the appellant will get a relief of Rs. 2,19,55,992/-. ' (B) Advances received These advances can be further bifurcated in the two categories namely advances in respect of whom the appellant could furnish PAN particulars and advances in respect of whom the appellant could not furnish PA Numbers. The details of advances with PAN and without P....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... these credits. In this regard the appellant has placed reliance on various case laws. However, these case laws cannot be applied in case of the appellant. These case laws were decided on entirely different facts. It is further observed that many of these case laws were decided in respect of share application money which is not relevant for the instant case. Since the appellant has failed to discharge its onus, accordingly I am of the considered view that the A.O. had rightly made an addition of Rs. 2,52,01,648/- u/s.68.of the l.T.Act. Accordingly, addition of Rs. 2,52,01,648/- is confirmed. (C) Advances against which bookings were cancelled The appellant has received advances of Rs. 5,65,951/-from 38 persons. Booking of residential plot made by these persons were cancelled in the subsequent years. The appellant has furnished PANs in respect of these persons. The appellant has also received advances of Rs. 49,37,850/- from 213 persons. The bookings made by these persons were also cancelled in the subsequent years. The appellant could furnish PANs in respect of these persons. C.1 As discussed in the preceding para the appellant has furnished PANs in respect of 38 persons wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ss of the creditor in respect of advances of Rs. 26,32,549/-. Since the appellant has failed to discharge its onus in respect of these advances, accordingly, addition to the extent of Rs. 26,32,549/- made by the A.O. is confirmed. 3.5 As a result, the appellant widget a relief of Rs. 8,45,91,627/- (2,19,55,992 + 5,97,64,110 + 6,56,951 + 22,14,301). Addition to the extent of Rs. 2,78,33,924/- (2,52,01,648 + 26,32,549) is confirmed. This ground of appeal is partly allowed." This leaves both the parties aggrieved to the extent of their averments in their respective substantive grounds summarized hereinabove. 5. We have heard both the parties reiterating their respective stands. It emerges that the assessee had filed additional evidence to explain the source of above credits in the course of lower appellate proceedings. The CIT(A) sought a remand report. The Assessing Officer filed the same on 17.04.2012 inter alia stating that the assessee had satisfied all parameters of identity, genuineness and creditworthiness in case of credits amounting to Rs. 2,19,55,992/- by placing on record registered sale deeds executed subsequently with or without PAN numbers. He then dealt with ad....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... We find that it has filed a petition on 07.01.2017 before this tribunal alongwith details of 483 customers pertaining to the advances received of Rs. 2.52crores. It submits therein that it has obtained PAN numbers of 182 customers involving advances amount of Rs. 1.02 crores. Total 75 customers are stated to be the cases therein amount is refunded due to cancellation plot registration. This is followed by 21 members whose sale deeds have been executed on 31.03.2016 leaving behind balance amount of advances received from 205 customers involving Rs. 96,60,823/-. Learned Departmental Representative objects to this petition. He strongly submits that the same is in the nature of additional evidence wherein an Assessing Officer has to be granted opportunity to rebut the facts sought to be brought on record. We appreciate learned Departmental Representative's concerned. The fact also remains that all these developments in this petition are post facto institution of the instant appeal as filed in the year 2012. We therefore take these additional documents on record and remit the issue back to the Assessing Officer for conducting necessary verification as per law. We further deem it approp....