TaxTMI 
TaxTMI 
2017 (9) TMI 1684
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.... on 14.08.2014 has framed following substantial question/s of law:- "(1) Whether the Tribunal was justified in on one hand not interfering with the finding that no books of accounts and supporting bills/vouchers were maintained by the assessee at the time of search and simultaneously, on the other hand reducing the addition made on the ground of unexplained construction and working in progress expenses of Rs. 22,32,583/- to merely Rs. 63,770/-? (2) Whether the Tribunal was justified in deleting the addition of Rs. 46,74,000/- made by the Assessing Officer on account of suppressed sales shown by the assessee, even when the documents found during search were corroborated by the assessee's statement recorded u/s 132(4) of the Act and whether an impossible burden can be placed on the revenue to establish the excess consideration received by the assessee?" (3) Whether the Tribunal was justified in deleting the addition of Rs. 88,25,000/- which was made by the Assessing Officer on account of unexplained investment of the assessee in various properties, when no evidence in support of the said investment was submitted by the assessee?" This Court while admitti....
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.... the Tribunal was justified in deleting the addition of Rs. 77,14,000/- made by the Assessing Officer on account of suppressed sales shown by the assessee, even when the documents found during search were corroborated by the assessee's statement recorded u/s 132(4) of the Act and whether an impossible burden can be placed on the revenue to establish the excess consideration received by the assessee? (4) Whether the Tribunal was justified in deleting the addition of Rs. 31,93,100/- made by the Assessing Officer u/s 68 of the Act on account of unexplained cash credit, despite assessee failing to furnish any documentary proof in support of the said cash credits and whether that tantamount to not affording adequate opportunity to the assessee? This Court while admitting the ITA No.41/2012 on 14.08.2014 has framed following substantial question/s of law:- (1) Whether the Tribunal was justified in on one hand upholding the finding that no books of accounts and supporting bills/vouchers were maintained by the assessee at the time of search and thereby confirming the rejection of books of accounts and simultaneously, on the other hand deleting the entire addition made ....
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....ame was accepted and offered by the assessee for taxation and no retraction was filed by the assessee, by simply relying upon cash book prepared by the assessee after the search proceedings? (7) Whether the Tribunal was justified in deleting the addition of Rs. 2,10,00,000/- which was made by the Assessing Officer and confirmed by the CIT(A) on account of unexplained investment of the assessee in the Global City Project, when no evidence in support of the said investment was submitted by the assessee? (8) Whether the Tribunal was justified in deleting the addition of Rs. 83,91,000/- which was made by the Assessing Officer on account of unexplained cash deposit of the assessee in bank accounts in the name of various persons, even after confirming the finding that assessee was maintaining the said Benami Bank accounts?" This Court while admitting the ITA No.44/2012 on 14.08.2014 has framed following substantial question/s of law:- "(1) Whether the Tribunal was justified in on one hand upholding the finding that no books of accounts and supporting bills/vouchers were maintained by the assessee at the time of search and thereby confirming at the of search ....
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....ed in the Rule were not existing and part payment was made by cheque to such persons? (iii) Whether the Tribunal was justified in deleting the addition of Rs. 79,52,500/- made by the Assessing Officer u/s 68 of the Act on account of unexplained cash credit, despite assessee failing to furnish any documentary proof in support of the said cash credits and whether that tantamount to not affording adequate opportunity to the assessee?" This Court while admitting the ITA No.50/2012 on 14.08.2014 has framed following substantial question/s of law:- "(1) Whether the Tribunal was justified in on one hand upholding the finding that no books of accounts and supporting bills/vouchers were maintained by the assessee at the time of search and thereby confirming at the of search and thereby confirming the rejection of books of accounts and simultaneously, on the other hand reducing the addition made on the ground of unexplained construction and working in progress expenses of Rs. 50,00,000/- to merely Rs. 1,48,360/-? (2) Whether the Tribunal was justified in deleting the addition of Rs. 18,02,064/- being expenditure paid in cash in violation of the provision of Sect....
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.... and supporting bills/vouchers were maintained by the assessee at the time of search and thereby confirmed the rejection of books of accounts and simultaneously, on the other hand reducing the addition made on the ground of unexplained construction and work in progress expenses. AO CIT ITAT Q No. Addition Pg 6-7 (PB 22-23) Pg 19 Pr. 3.4 (PB48) Pg 2 Pr. 2.6 (PB 83) 1 Rs. 40,00,000/ - Pg 6 pr 8 (PB24-25) Pg 5-6, Pr.3.3, (PB 65-66) 1 13,00,000/- Pg 4 Pr (PB 23) Pg 6-9 Pr. 3.3 (PB38) A/R (PB71) 1 50,00,000/- Pg6-7 Last (PB 26-27) Pg 12-13 Pr. 3.3.3. (PB 53- 54) Pg 12-14 Pr. 3.79PB 123- 125) 1 1,00,00,000/- Pg 8 Pr 12 (PB 31-32) Pg 22 Pr 12 (PB 57) Pg 71 Pr 6.8 (PB 178-179) 1 1,50,00,000/- 2. Whether the Tribunal justified in deleting the addition of being expenditure paid in cash in violation of the provision of S.40A(3) of the Act. On the ground that since other addition has been made disallowance under this section is not required. AO CIT ITAT Q No. Addition Pg 3-6 (PB 19-22) Pg 13 Pr. 2.4 (PB42) Pg 13 Pr. 4.4 (PB 94) 2 Rs. 1,49,020/- Pg 6 (PB 24) Pg 6, Pr.2.3, (PB 38) Pg 11 Pr 4.2, (PB 74) 2 75,000/- Pg 7-8 (PB 26) Pg 2 Pr. 2.4 (PB 34) Pg 3-4 pr 3....
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....ich was made by the Assessing Officer and confirmed by the CIT(A) on account of unexplained cash credit of the assessee on various properties, when no evidence in support of the said investment was submitted by the assessee? AO CIT ITAT Q No. Addition Pg 8 Pr 9 (PB 27) Pg 10-11 Pr. 4.3 (PB 42- 43) Pg 8-9 Pr 4. 7 (PB 76- 77) A/R (PB 74) 5 33,00,000/- Pg 11 Pr (PB 34) Pg 52 -58 Pr 7.4 onwards (PB 89-95) Pg 109-111 Pr. 8.9 onwards (PB 216-218) 5 73,61,00,000 /- 7. Whether the Tribunal was justified in deleting the addition made by the Assessing Officer on account of unexplained cash deposit of the assessee in banks accounts in the name of various persons, even confirming the finding that assessee was maintaining the said benami bank accounts? AO CIT ITAT Q No. Addition Pg 10-11 (PB 31) Pg 24-26 Pr. 6.5-6.7 (PB 65-67) Pr. 5.7(PB 138) 6 1,00,00,000/- Pg 4-5 Pr 9(PB 27-38) Pg 3-6 Pr 2 (PB 40-43) Pg 39-40 Pr 3.8 (PB 146-147) 8 83,91,000/- 8. Whether the Tribunal was justified in deleting the addition made on account of unexplained cash found during search of Rs. 10,00,000/- when the same was accepted....
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....and Rs. 6 lakhs has been paid in cash. The A.R of the appellant has further submitted that Rs. 24 lakhs was paid by taking loan from ICICI Bank for which the copy of letter/chart from ICICI Bank indicating amount financed, terms of repayment and agreement dated etc has been filed before the undersigned. It was submitted that these details could not be have been submitted before the A.O. as no such occasion arose as A.O. has not doubted about the investment in purchase of plot during the assessment proceedings and has not given any show cause for the same. Copy of this document was also made available to A.O. Considering these facts, the addition of Rs. 24 lakhs is deleted and since no clear cut evidence has been filed for source of cash payment of Rs. 6 lakhs, expect the argument of cash flow statement, which is quite sketchy and not supported by confirmation from the persons from whom contended cash was received, the addition to the extent of Rs. 6 lakhs is hereby upheld." He contended that no reasons are given by the ITAT while deciding the issue on question No.1 observed as under: "5.1 The 4th ground of appeal of the assesee is that the ld. CIT(A) has erred in confir....
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....d to determine the tax payable by the assessee, the ld. CIT(A) was justified in admitting the additional evidences. Hence Ground N O. 4 of the revenue is dismissed. 9. 1 The 5th ground of the revenue is that the ld. CIT(A) has erred in directing the AO to give set off for unaccounted/suppressed sale consideration against the availability of unaccounted money. 9.2 We have heard both the parties. Since no such set off is being claimed by the assessee before us and therefore, this issue is academic and does not require to be adjudicated upon." He contended that no reasons are given by the ITAT while deciding the issue on question No.2 observed as under: "4 The assessee has filed return of income on 20.01.2009 declaring income of Rs. 10,96,760/- 5. After obtaining prior approval from the Hon'ble Director General of Income Tax, (Investigation) vide letter No.DGIT/JPR/R-12/CASS/2008-09/2103 dated 02.02.2009 along with questionnaire fixing the case for hearing on 09.02.2009 which was duly served upon him on 09.0-2.2009. 6. Notice u/s 143(2)/142(1) were issue don 04.02.2009 alongwith questionnaire for fixing the case for hearing on 09.02.2009....
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....ed in the said return of income. For sake of convenience clause (a) of sub-section (1) of section 153 is reproduced here in below - Thus depreciation on taxi vehicles has been claimed by the assessee under the provisions of IT Act. As applicable, as if the such return were a return required to be furnished under section 139. Further there is no bar on carry forward of absorbed depreciation for set off in subsequent years." The same is disallowable in view of judgment of ITAT in the case of Suncity Alloys Pvt. Ltd, Jodhpur vs. ACIT, Central Circle-1, Jodhpur in ITAs No.586 to 588/Ju/2008 for assessment years 2001- 02, 2002-03 & 2003-04 which reads as follows : "The assessing authority primarily declined to accept such a claim as the assessees has made no such claim in the returns of income filed originally under section 139 of the Act. He was of the view that returns of income filed in response to notice under section 153A of the I.T. Act are as a consequence of action taken under section 132 of the Act on these assessees. These proceedings are analogous to proceedings under section 147 of the Act to the extent that these are proceedings for the benefit of reven....
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....ayment by crossed cheque or crossed bank daft is insisted on to enable the assessing authority to ascertain whether the payment was genuine or whether it was out of the income from undisclosed sources. The terms of section 40A(3) are not absolute. Considerations of business expediency and other relevant factors are not excluded. Genuine and bona fide transactions are not taken out of the sweep of the section. It is open to the assessee to furnish to the satisfaction of the Assessment Officer the circumstances under which the payment in the manner prescribed in section 40A(3) was not practicable or would have caused genuine difficulty to the payee. It is also open to the assessee to identify the person who has received the cash payment. Rule 6DD provides that an assessee can be exempted from the requirement of payment by a crossed cheque or or crossed bank draft in the circumstances specified under the rule. It will be clear from the provisions of section 40A(3) and rule 6DD that they are intended to regulate business transactions and to prevent the use of un-accounted money for business transactions. (See Mudiam Oil Company v. ITO [1973] 92 ITR 519 (AP). If the payment is ....