TaxTMI 
TaxTMI 
2018 (6) TMI 887
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....ge the onus u/s.68 of the I.T.Act." (3) The appellant prays that the order of the CIT(A) on the above ground be set aside and that of the AO be restored, 3. Brief facts in this case are as under: In this case, the Assessing Officer noted from the perusal of the bank statement of the assessee maintained with Oriental Bank of Commerce and ING Vysya Bank, Bandra Branch that there are three credits appearing in the said account which were not reconciled with the return of income filed by the assessee as well as the submissions made from time to time during the assessment proceedings. In the submissions, the assessee had claimed that out of such credits, Rs. 1,20,00,000/- was received on account of flat cancellation and others were loan refunds which were given in the earlier years. The Assessing Officer noted that no detail/evidence to establish such claims was submitted despite ample opportunities. Accordingly, the Assessing Officer gave notice to the assessee to explain the credits in his bank account as under: 1. Oriental Bank of Commerce dated 29.08.2001 Rs.1,20,00,000/- 2. ING Vysya Bank dated 17.08.2001 Rs.2,00,000/- 3. ING Vysya Bank dated ....
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....eposit of Rs. 2,00,OOO/- in ING Vyasa Bank, Bandra (West) Branch on 23-08-2000. My client has paid sum of Rs. 2,00,000/- to Rushi Reality as a loan on 10-08-2001 by cheque No. 087081 drawn on ING Vysya Bank. The said amount was received back from the said party and deposited with Vysya Bank. Assessee has asked to the said party to give confirmation but it will take some time to received from them as matter is very old. 13) You have asked my client for to explain deposit of Rs. 2,02,72,000/- on 23-01- 2002 in Vysya Bank. It is submitted that on 21-12-2001 sum of Rs. 2,02,71,670/-was issued in favour of Raj Bastani by issue of cheque No. 87082 drawn ING Vyasa Bank. I am enclosing herewith Xerox copy of bank statement reflecting ' the payment of said amount wherein name of Raj Bastani is duly reflected. The said' amount was received back from him on 23-01-2002 and deposited with Vysya Bank. Assessee has asked Shri Raj Bastani to give confirmatory letter but it will take few days as matter is very old. 14) No adverse inference be drawn for non-submission of confirmatory letter on 23-12-2009. 5. Considering the above submissions, the Assessing Officer noted ....
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....0,00,000/- each both dated 20-07-2000 whereas the memorandum of intent as referred by Shri Khan in the reply was already executed on 31.05.2000, ie well before the said date of agreement with Shri Saigal. Further there is no confirmation from Mr. Saigal regarding the receipt of Rs. 1,20,00,000/- nor there is any details on records which may enable this office to conduct independent enquiries. The claim of the AR of the assessee that the said transaction with Shri Saigal were from FY 2000-01 and therefore the assessee was not liable for maintaining details for the same is also not acceptable. If, as per the claim of the assessee, the amount of Rs. 1,20,00,000/- was paid to Shri Saigal for flat purchase, then the relevant entry for the same must have been passed in the balance sheet of the assessee as on 01-04-2002'on the asset .side as advance for flat. Therefore, the assessee was liable to maintain details/evidences for such-entry that was passed in his books during the previous year . relevant to the current year. 6.3 The amount paid by the assessee on account of flat booking to M/s Trambak Ploypack (P) Limited was refunded as per the confirmation filed. There is no d....
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....sold to Sharukhkah and Gouri Khan. Subsequently, the assessee cancelled his booking. Deed of cancellation dated 23.08..2011 has been produced, copy of which is enclosed. As per clause VI of this Cancellation Deed the purchaser (Shahrukh Khan & Gouri Khan) agreed to pay back Rs. 1.20.00,000/- to the assessee which was paid by the assessee to the builder out of total Rs. 1,75,00,000/- as stated earlier. Accordingly, Sharukh Khan & Gouri Khan paid Rs. 1,20,00,000/- to the assescee vide Manager's cheque No.610942 dated 23.08.2001, copy of the sante along with a copy of stamped receipt has been produced which are enclosed for kind perusal. A copy of letter submitted by M/s. R.M.Aigaonkar & Co., CAs, addressed to ITO19(3)-4, Mumbai has been produced by the assessee, being a reply to the notice u/s. 133(6) issued to Shri Shahrukh Khan & Gouri Khan. In this reply, they have stated that the assessee (Mr. Shahrukh Khan) has not maintained ledger account of Mr,.Kanwarjeet Singh Sandhu in his books for F.Y.2001-02. However, they have confirmed that the assessee (Mr.Shahrukh Khan) has paid Rs. 1.20.00,000/- to Mr.Kanwarjeet Singh Sandhu in discharge of the consideration payable as per the t....
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....iable to maintain the details. In response to this observation, the assessee has stated that Rs. 1,20,00,000/-was receivable from Shahrukh Khan on behaf of Trambak Poiy Pack Pvt.Ltd. which was received back on 23.08.2001. During the course of the assessment proceedings, balance sheet as on 31.03.2002 was submitted. Since the amount was received on 23.08.2001 it will not be reflected on asset side of balance sheet because no amount of Rs. 1,20.00,000/- was outstanding as receivable as on 31.03.2002. The assessee had given Rs. 1,75,00,000/- to Trambak Polypack Pvt.Ltd and had received back Rs. 1,20,00,000/-, the balance amount of Rs. 55,00,000/- was shown in the balance sheet as receivable from Trambak Polypack Pvt.Ltd. M/s.Trambak Polypack Pvt.Ltd had confirmed the transactions. 7. Considering the remand report, the ld. Commissioner of Income Tax (Appeals) proceeded to adjudicate the issue. The ld. Commissioner of Income Tax (Appeals) noted that in page 4 of the assessment order, the Assessing Officer has himself recorded a source of receipt of the amount of Rs. 1,20,00,000/- has been established by the assessee but the nature of the receipt has not been established. Thereafter, ....
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....flat with the same dealer for Rs. 1,20,00,000/-. Later on, this booking was cancelled in favour of Shri Shahrukh Khan and Mrs. Gauri Khan. From them, the assessee has received Rs. 1,20,00,000/-. All the necessary papers and confirmations in this regard have been produced by the assessee and in the remand report, the Assessing Officer has also not drawn any adverse inference in this regard. In these circumstances, in our considered opinion, there is no infirmity in the order of the ld. Commissioner of Income Tax (Appeals). Accordingly, we uphold the same. Apropos ground no. 2 relating to addition u/s. 68 of the Act of Rs. 2,02,72,000/-: 11. This regard to the explanation of the credit of Rs. 2,02,72,000/- and Rs. 200,000/-, the assessee responded as under: 15) You have asked the assessee explain deposit of Rs. 2,00,000/- in ING Vyasa Bank, Bandra (West) Branch on 23-08-2000. My client has paid sum of Rs. 2,00,000/- to Rush Reality as a loan on 10-08-2001 by cheque No. 087081 drawn on ING Vysya Bank. The said amount was received back from the said party and deposited with Vysya Bank. Assessee has asked to the said partly to give confirmation but it will take some time ....
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....n to him amounting to Rs. 5.93 66.1 51 /- in earlier year. When asked about the source of fund from which this loan was given, he has only stated that the assessee has kept money in fixed deposit with Indian Bank and had asked the bank to grant loan against FD to Shri Raj Basantani. Zerox copies of letters written to Bank by the assessee are placed on record. It is also stated that the FDs were kept in the bank prior to 2001. Now, coming to the return of loan of Rs. 2,02,72,000/- by Shri Raj Basantani, summons u/s. 131 of the I.T.Act, dated 23.11.2010 was issued to Shri Basantani by the erstwhile A.O. and his statement on oath was recorded. Shri Basantani has confirmed in this statement of having received the amount of Rs. 5,93,66,151/- from the assessee. An affidavit duly notarized;' confirming the receipt of '.his amount and returned by Shri Basantani has been filed Copy of ledger account by way of confirmation dated 1.4.2002 has also been filed separately. It is stated by the A.R. that the cash credit, in Question, of Rs. 2,02,72,000/-was received from Shri Basantani vide cheque No. 909279 dated 22.01.2002 drawn on Indian Bank, Overseas Branch, Mumbai, Zerox copy of the ....
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....vide letter dated 10.102.013 has confirmed that the bank statement of Shri Raj Basantani with Indian bank reflect cheque No. 909279 dated 22.10.2012, issued in favour of the assessee. He noted that the Assessing Officer's only objection is that the purpose of advancing the loan by the assessee to Shri Raj Basantani has not been established. In the remand report, the Assessing Officer submitted that the assessee's representative has stated that the total loan given to Shri Raj Basantani was Rs. 5,93,66,161/- in the earlier year. Regarding the source, it was stated that the assessee has kept loan with the fixed deposits in the Indian Bank and asked the loan against fixed deposit to Shri Basantani. Necessary evidence in this regard in the form of letter from bank was produced. The Assessing Officer also summoned Shri Basantani who confirmed that he has received the loan of Rs. 5,93,66,161/-. It was also stated that the cash credit in question of Rs. 2,02,72,000/- was received from Shri Raj Basantani vide cheque no. 87082 dated 22.01.2002 drawn by the Indian Bank. The Assessing Officer had observed that Shri Raj Basantani did not have sufficient resource that he had stated that he had ....
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....d proceedings which have been examined by the Assessing Officer. It has been explained that the assessee has received the said amount from Shri Raj Basantani. The source of the receipt has been submitted to be the bank statement of Shri Raj Basantani who had been summoned u/s. 131 of the Act and had confirmed the transaction. It has been explained by Shri Raj Basantani that he had received a loan of Rs. 5,93,66,151/- from the assessee in the past which has now been repaid. The source of the original assessee's loan to Shri Raj Basantani has been submitted to be maturity of the fixed deposits in the Indian bank. All the necessary papers and documents have been found by the Assessing Officer. In these circumstances, in our considered opinion, there is no infirmity in the direction of the ld. Commissioner of Income Tax (Appeals) to delete the said addition. ITA No. 628/Mum/2014 20. The grounds of appeal read as under: (1) On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in deleting the addition of Rs. 2,70,94,481/- even though the assessee failed to discharge the onus u/s. 68 of the I. T. Act. (2) The appellant prays that t....
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....mmons u/s. 131(1) of the Act to Shri Basantani and recorded his statements on oath. Shri Basantani confirmed the amount of transactions. The Assessing Officer therefore, recorded that though Shri Basantani has confirmed the transaction entered into by him with the assessee, he has not given details of his bank account number with Indian Bank, P.M. Road' Branch. He, therefore, called for information from the Bank Manager of the above branch who informed that Shri Basantani was not maintaining any account with the bank for the period 1.4.2002 to 31.3.2004. On the basis of the above information and that assessee has failed to prove the identity and creditworthiness of Shri Basantani and genuineness of the transaction, the Assessing Officer held that the assessee has not been able to establish the source of the above amount as repayment of loan and assessed the same as unexplained cash credit u/s. 68 of the Act. 22. Upon the assessee's appeal, the ld. Commissioner of Income Tax (Appeals) noted the submissions of the assessee. The assessee also submitted the additional evidences which were remanded to the Assessing Officer. 23. Considering the above, the ld. Commissioner of In....
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.... :-e above cheque was deposited and cleared. In view of the above facts discussed in the remand report and, the fact that the AO has not disputed the total loan of Rs. 5,93,66,151/- given by the appellant to Shri Basantani in the earlier years and part of the said loan was outstanding at the beginning of the year, I hold that the amount of Rs. 2,70,94,481/- received from Shri Basantani is return of the said loan amount. As far as identity of Shr Basantani is concerned, the AO has recorded his statement on oath, which establishes his identity. The creditworthiness of Shri Basantani is proved from the report of the AO that from the xerox of bank statement issued by Indian Bank, Overseas Branch it can be seen that Shri Basantani was enjoying credit facility from the said bank. The Indian Bank, Overseas Branch, has also confirmed issue of banker's pay order dated 9.8.2002 for Rs. 1.50 crore. The SBI, Khar(West) Branch has also confirmed issue of pay order for Rs. 20,94,481/- by debiting the account of Shri Basantani. The payment of amount of Rs.lcrore has also been confirmed by Shri Basanstani, and reflected in appellant's bank account. The genuineness of the transactions is th....
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....-, Rs. 15,00.000/-, Rs. 15,00,000/-, Rs. 15,00,000/- deposited on 22.12.2003, 23.12.2003, 24.12.2003, 27.12.2003, 24.02.2004, 03.03.2004, 09.03.2004, 16.03.2004 and 23.03.2004 respectively, i.e. total of Rs. 1,30,00,000/- in the assessee's bank account with the Global Trust Bank(GTB). The assessment was, therefore, reopened by issue of notice, u/s. 148 of the IT Act. In response to the said notice, the assessee filed return of income on 3.5,2010 declaring income of Rs. 5,815/-. The Assessing Officer vide letter dated 12.10.2010 asked the assessee to furnish copies of bank statement/pass book of his account with GTB, along with nature and explanation of the entries- made therein. The assessee vide reply dated 25.10.2010 stated that the amounts of Rs. 15 lakh, 20 lakh, 10 lakh and 10 lakh credited on 22.12.2003, 23.12.2003, 24.12.2003 and 27.12.2003, that is total of Rs. 55 lakh had been received from M/s. Trambak Polypack Pvt. Ltd and the balance amount of Rs. 75 lakh has been received back from Fresh Leasing and Finance P. Ltd.(FL&FPL). The assessee also enclosed xerox of confirmation letters from Trambak Polypack for the period 01.04.2001 to 31.03.2004 from M/s. Fresh Leasing,....
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....me Tax (Appeals) noted the submissions of the assessee. The assessee also submitted the additional evidences which were remanded to the Assessing Officer. 30. Considering the above, the ld. Commissioner of Income Tax (Appeals) deleted the addition by holding as under: 7.1.1 I have duly considered the remand report and the submissions of the appellant. So far as the amount of Rs. 55 lakh received during the year from M/s! Trambak Polypack Pvt. Ltd, on account of cancellation of agreement is concerned, as mentioned in the letter dated 6.8.2012, calling for remand report from the AO, the issue regarding booking of a flat by the appellant with M/s. Trambak Polypack Pvt. Ltd and subsequent cancellation of the same was involved in AY 2002-03 also. While deciding the appeal for the said year, I have,-on the basis of details and documents produced by the appellant during the remand proceedings held that the appellant had made booking of flat No. 101 (Trambak Garden) in the project to be constructed by M/s. Trambak Polypack Pvt. Ltd and the same was subsequently cancelled vide MOU with the builder. Out of the above amount receivable by him, Rs. 1.20 crore was received and invest....
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....o the appellant. In his reply dated 6.7.2013, the appellant has stated that in the balance sheet for the year ended 31.3.2003 loan of Rs. 75 lakh given to M/s. Fresh Leasing and Finance Ltd is duly reflected and Shri Basantani, Director of the above company has also confirmed refund of the loan amount. In so far as the A.O's report that copy of cheques of the above, amount were not produced, the appellant has stated that when cheques are received and deposited in banks copies are not taken or maintained, however, from the statement of the bank account, it can be seen that Rs,75 lakh was received during the year. 7.2.2 In the appellate order in AY 2003-04, in the case of the appellant, on the basis of evidence produced during the course of remand proceedings and statement of Shri Raj Basantani recorded on oath u/s.131 of the Act, I have confirmed the creditworthiness of Raj Basantani. In view of the decision given in the " said appellate order and, also, the fact that the appellant had to receive Rs. 75 fakh from the above company, as reflected in its balance sheet, I hold that the' amount received during the year is return of above amount of loan. I, accordingly, d....