AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2020 (6) TMI 192
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.... account of Unexplained Cash Credit u/s. 68 of the Income tax Act, 1961." 4. "that the Id. CIT(Appeal) has erred in law and on facts in deleting the addition amounting to Rs. 25,70,000/- made on account of treating the agriculture income as income from other sources." 5. "that the Id. CIT(Appeal) has erred in law and on facts in admitting additional evidences produced by the assessee without waiting for the remand report of the A.O." 3. The 1st issue raised by the revenue is that the learned CIT (A) erred in deleting the addition made by the AO for Rs. 15,78,571/- on account of short-term capital gain on the sale of immovable property. 4. The facts in brief are that the assessee in the present case is an individual and earning income from salary, Business & profession, capital gain and other sources. The assessee was holding general power of attorney with respect to certain piece of land belonging to 8 persons. The assessee during the assessment proceedings claimed to have sold on behalf of such persons the lands belonging to them for Rs. 17 lakhs vide sale deed No. 4837 dated 8th November 2010 to the buyer namely Shri Shivbhai PopatbhaiGohil. As per the ass....
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....ed objections to the proposal of applying Stamp Duty Valuation as much as the disputes in property were highlighted and the AO failed to send the matter for valuation to DVO as per provisions of section 50C(2). in fact, the land in question remained in the name of original owners as the impugned registration deed was cancelled and the appellant was mere POA holder for execution of that deed. To my mind the AO overburdened herself with avoidable responsibility by not sending the issue for expert opinion to the DVO as per specific provisions of sub section 2 of section 50C of IT Act, 1961. AO's attempt is to make addition on estimation basis without having credible evidence on record as per provisions of the Act. In view of above facts and the ratio laid down by various High Courts and ITATs, the addition of Rs. 7,28,571/- made U/S.50C of IT Act, 1961 is hereby deleted. The appellant was Power of Attorney holder on behalf of certain persons who could not be produced before the AO inspite of many opportunities provided. Consequently, the whereabouts of the purported sellers of the land were not available before AO. However, the AO estimated the purchase price at 50% with ....
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....ted that the amount received from the parties as discussed above for Rs. 23,72,127/- represents the sale consideration for the shares sold to them. The assessee in support of her contention filed the supporting documents such as agreement for transfer of shares. 22. The assessee also furnished the details of the PAN, bank statement and income tax return showing the income of Rs. 2,15,28,889/- for the assessment year 2010-11 of the party in support of her contention. 23. The learned CIT (A) after considering the submission of the assessee deleted the addition made by the AO by observing as under: 7.1 Decision: I have seen the facts in assessment order/ remand proceedings and submission of the appellant. The requisite detail including bank statement/ITR/PAN of Gautam H. Sheth and Usha H. Sheth as mentioned in ground Mo.2A have been filed. A copy of the explanation dated 23.03.2015 filed before AO on 24.03.20-15 alongwith enclosures such as confirmation/address/PAN has been placed on record. It is observed that there was mistake in passing the journal entry in the books of accounts though the sale and purchase of impugned shares (Dumas Beach Enc Ltd.) have resulted in n....
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....d CIT (A) submitted that she has already justified the source of money in the hands of the companies. The necessary details about the source of money in the hands of the parties who provided the loan to her are available on pages 24 to 28 of the learned CIT (A) order. 33. The assessee also furnished the details of the PAN, bank statement and income tax return in support of her contention to justify the source of money invested in YuvaSports Academy private Ltd. 34. The learned CIT (A) after considering the submission of the assessee deleted the addition made by the AO by observing as under: I have perused the ratio of the above case laws vis-a-vis facts of the case. In my opinion, onus has been discharged by the appellant as held by Hon'ble Gujarat High Court in the case of CIT vs. Ranchhod Jivabhai Nakhava 208 Taxmann 35 (Gujarat). The confirmations have been filed giving PAN No. of the creditors. The creditworthiness of the creditor(s) cannot be decided by the AO of the appellant. In fact, the AO of appellant can get the matter investigated through the AO of the creditors. The AO of appellant cannot become AO of the creditors. Explanation about 'source of s....
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....am not inclined to accept the findings of the A.O. that the creditors have not returned adequate income in their returns of income. The plethora of other evidences on record cannot be ignored. There is no finding on record to prove that I appellant's own undisclosed money has been brought in books of account by depositing cash etc. The creditors are standing for the impugned money, therefore, it cannot be ascribed as ghost money. In fact, the AR was repeatedly explaining the provision u/s.68 and discussed and submitted number of case laws on the issue. In the circumstances, the conditions to invoke the provisions of section 68 are non-existent in this case. 35. Being aggrieved by the order of the learned CIT (A), the Revenue is in appeal before us. 36. The learned DR and the AR before us relied on the stand of the authorities below by reiterating the findings contained in their respective orders as favorable to them. 37. We have heard the rival contentions of both the parties and perused the materials available on record. The dispute in the instant case relates to the loans and advances received by the assessee in the year under consideration from certain parties as me....
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....uineness of the transactions. In this regard, we find support and guidance from the judgment of Hon'ble High court of Bombay in the case of CIT Vs. Green Infra Ltd reported in 78 taxmann.com 340 wherein it was held as under: 'So far as the genuineness of the transaction of share subscriber is concerned, it concludes as the entire transaction is recorded in the books of account and reflected in the financial statements of the assessee since the subscription was done through the banking channels as evidenced by bank statements which were examined by the Tribunal. With regard to the capacity of the subscribers the impugned order records a finding that 98 per cent of the shares is held by IDFC Private Equity Fund-II which is a Fund Manager of IDFC Ltd. Moreover, the contributions in IDFC Private Equity Fund-II are all by public sector undertakings. The Tribunal has examined the case of the revenue on the parameters of section 68 and found on facts that it is not so hit. Therefore, section 68 cannot be invoked. The revenue has not been able to show in any manner the factual finding recorded by Tribunal is perverse in any manner. 40. Now coming to the 3rd condition, ....
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....because under law the assessee can be asked to prove the source of the credits in its books of account but not the source of the source as held by the Bombay High Court in the case of Orient Trading Co. Ltd. v. CIT [1963] 49 ITR 723. The genuineness of the transaction is proved by the fact that the payment to the assessee as well as repayment of the loan by the assessee to the depositors is made by account payee cheques and the interest is also paid by the assessee to the creditors by account payee cheques." 45. We also note that the learned DR has not brought anything on record contrary to the finding of the learned CIT (A). In such a situation we have no alternate except to confirm the finding of the learned CIT (A). Hence the ground of appeal raised by the Revenue is dismissed. 46. The next issue raised by the Revenue is that the learned CIT (A) erred in deleting the addition made by the AO by treating the agriculture income of Rs. 25,70,000/- as income from other sources. 47. The assessee in the year under consideration has declared agriculture income of Rs. 25,70,000/- and filed the extract of 7/12 to justify the agriculture lands owned by her. However the assessee ha....
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....e AO. Thus after considering the facts in totality and there being no adverse record brought by the learned DR contrary to the finding of the learned CIT (A), we do not find any reason to interfere in the order. Hence the ground of appeal of the Revenue is dismissed. 54. The last issue raised by the Revenue is that the learned CIT (A) has admitted the additional evidences without waiting for the remand report from the AO. 55. In this regard we note that the learned CIT (A) have referred the additional evidences filed by the assessee vide letter dated 24th of May 2016 and there was also the remand report furnished by the AO vide letter dated 30 January 2017 as evident from the order of the learned CIT (A). The learned DR at the time of hearing has not brought anything on record contrary to the fact that the learned CIT (A) has passed the order without considering the remand report from the AO. Accordingly we do not find any merit in the ground of appeal raised by the revenue. Hence the ground of appeal of the revenue is dismissed. 56. Before we part with the issue/appeal as discussed above, it is pertinent to note that the clause (c) of rule 34 of the Appellate Tribunal Rul....
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....hall be extended for a period of 15 days after the lifting of lockdown". Hon'ble Bombay High Court, in an order dated 15th April 2020, has, besides extending the validity of all interim orders, has also observed that, "It is also clarified that while calculating time for disposal of matters made time-bound by this Court, the period for which the order dated 26th March 2020 continues to operate shall be added and time shall stand extended accordingly", and also observed that "arrangement continued by an order dated 26th March 2020 till 30th April 2020 shall continue further till 15th June 2020". It has been an unprecedented situation not only in India but all over the world. Government of India has, vide notification dated 19th February 2020, taken the stand that, the coronavirus "should be considered a case of natural calamity and FMC (i.e. force majeure clause) maybe invoked, wherever considered appropriate, following the due procedure...". The term 'force majeure' has been defined in Black's Law Dictionary, as 'an event or effect that can be neither anticipated nor controlled' When such is the position, and it is officially so notified by the Government of India and the Covid-19 ....