TaxTMI 
TaxTMI 
2022 (11) TMI 910
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....2009 declaring total income of Rs.10,65,848/-. A search and seizure action u/s 132 of the I.T. Act was carried out on 25.11.2010 in the business premises of the assessee. In response to notice u/s 153A, the assessee filed return of income declaring total income of Rs.10,65,848/- which was the income originally returned in the return of income filed on 31.7.2009. 3. During the course of assessment proceedings, the Assessing Officer noted that the assessee has taken cash loan of Rs.19.00 lakhs from Shri M. Asif Basha and Rs.5.00 lakhs from Sri Srinivasulu Reddy. Vide question No.8 of the questionnaire dated 1.11.2012, the Assessing Officer asked the assessee to furnish the details of unsecured loans received during the year along with the evidence to prove the identity and creditworthiness of the creditor and genuineness of the transaction. The assessee produced confirmation letter from Shri M. Asif Basha. However, the assessee failed to furnish proof of creditworthiness of Mr.Asif Basha. So far as the loan of Rs.5.00 lakhs claimed to have been taken from Shri Srinivasulu Reddy, the assessee could not furnish any details. In absence of any evidence to his satisfaction, the Assessi....
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....uld the purchaser (Sri Srinivasulu Reddy) provide hand loan to the seller i.e., appellant? Further, the signature in the matching confirmation letter is also not with the Creditor's name. As creditworthiness and of genuineness the above two creditors in the form of I.T. Returns, PAN, were not produced even in remand report proceedings, the addition of Rs.24,00,000/- as unexplained cash credit is sustained and this ground is dismissed". 6. So far as the addition of Rs.5.00 lakhs is concerned, the learned CIT (A) sustained the addition by observing as under: "9.1 The AR in his reply to remand report has stated that the addition of Rs.5,00,000/-was put before him in assessment proceedings suddenly and hence was not part of questionnaire issued u/s 142(1) and is a guess work. The contention of the appellant is not acceptable because the assessee is in the knowledge that the addition of Rs.5,00,000/- was made on a/c of earning interest income which was received from Sabhashiva Rao. This receipt of interest income was not disclosed originally in the return filed for the A.Y 2008-09. The addition is made on the basis of entry in the diary and was also confronted in the sta....
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....e of CIT vs. Pruthvi Brokers & Shareholders reported in 349 ITR 336, he submitted that the assessee can always make a new claim not made in the return of income before the appellate authorities. He accordingly submitted that the additional grounds raised by the assessee should be admitted. 11. The learned DR, on the other hand, strongly opposed the admission of the additional grounds. 12. After hearing both the sides and considering that all material facts necessary for adjudication of the issue are already available on record, therefore, in view of the decision of the Hon'ble Supreme Court in the case of NTPC Ltd(supra), the additional grounds raised by the assessee is admitted for adjudication. 13. In ground of appeal No.1, the assessee has challenged the addition of Rs.24.00 lakhs (i.e., Rs.19 lakhs + Rs.5 lakhs) made by the Assessing Officer and confirmed by the learned CIT (A) as unexplained cash credit. 13.1 So far as addition of Rs.19.00 lakhs being cash loan from Shri M. Asif Basha is concerned, the learned Counsel for the assessee referring to the confirmation letter of Shri M. Asif Basha, copy of which is placed at page No.17 of the Paper Book submitted th....
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.... Assessing Officer in his remand report submitted that the assessee did not object to the addition of Rs.19.00 lakhs in appeal proceedings. It is the submission of the learned Counsel for the assessee that he has never admitted addition of Rs.19.00 lakhs being cash loan from Shri M. Asif Basha. It is also his submission that the assessee is in a position to produce Shri M. Asif Basha before the Assessing Officer to substantiate his creditworthiness and the genuineness of the transaction. Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the issue to the file of the Assessing Officer with a direction to grant one opportunity to the assessee to produce the said person before him for his examination and file necessary evidences to substantiate his creditworthiness to advance such cash loan of Rs.19.00 lakhs. The Assessing Officer shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. We hold and direct accordingly. 16. So far as Rs.5.00 lakhs received from Shri Srinivasulu Reddy is concerned, we find the assessee during the course of appeal proceedings has produced confirma....
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....ce the assessee was not prevented by sufficient cause for not filing the above said documents before the Assessing Officer during the course of assessment proceedings. 19.1 Ld.counsel for the assessee submitted that since these details were filed before the ld.CIT(A), therefore, these are not additional evidences. 20. We have heard the rival arguments made by both the sides, perused the orders of the AO and the learned CIT (A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us by both sides. We find the Assessing Officer in the instant case made an addition of Rs.5.00 lakhs being interest received by the assessee from Shri Sambasiva Rao. However, a perusal of the seized document shows that the cash is received for interest purpose. Thus, it is clearly discernible from the seized document that it is not interest income but an amount of Rs.5.00 lakhs received from Shri Sambasiva Rao as loan. Since the Assessing Officer while making the addition has failed to understand the notings in the seized document, the extracts of which have already been reproduced earlier and since the assessee has filed certain documents bef....
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....n. ITAT is requested to kindly admit the grounds which are taken for the first time before them, as per the ratio laid down by the Hon. Supreme court of India in the case of National Thermal Power Corporation Limited vs. CIT [1998| 229 ITR 383 (SC). 5. The Ld. CIT(A) failed to adjudicate the ground no 4 taken before him i.e addition of Rs 11,00,000 made by the assessing officer as unexplained investment in purchase of property at Dadegallu Village. 6. The Ld. CIT(A) failed to appreciate the fact that addition of Rs.11,00,000 made by the assessing officer is without proper justification and hence it is to be deleted. 7. The Appellant may add or alter or amend or modify or substitute or GE delete and/or rescind all or any of the grounds of appeal at before or at any time the time of appeal". 25.2 ITA No.543/Hyd/2020 (A.Y 2009-10) ( grounds of appeal by the Revenue ): "1 The ld.CIT(A) erred both in law and on facts of the case in allowing relief to the assessee. 2. The ld. CIT(A) erred in deleting the addition of Rs.2,50,00,000/- made without 2 towards unexplained investment in purchase of property at Bellary without appreciating the fac....
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....0 lakhs as cash loan from Sri Ram Reddy and an amount of Rs.2.00 lakh as cash loan from Sri Uma Maheshwar Rao. Vide Question No.8 of the questionnaire dated 1.11.2012, the assessee was asked to furnish the details of the above unsecured loans received during the year along with evidence to prove the identity and creditworthiness of the loan creditors and genuineness of the transaction. However, in absence of any details furnished by the assessee, the Assessing Officer made addition of the same to the total income of the assessee as unexplained cash credit. 29. Before the learned CIT (A), the assessee submitted that an amount of Rs.18.00 lakhs represented sale proceeds of land from Smt. G.L. Aruna represented by her agent Shri Rami Reddy and Shri Uma Maheshwar Rao and this amount was shown in the computation of capital gain filed for the A.Y 2010-11. It was accordingly requested that the addition made by the Assessing Officer is not correct. 29.1 However, the learned CIT (A) was not satisfied with the arguments advanced by the assessee and sustained the addition by observing as under: "8.2) The claim of the appellant is verified with reference to remand report. It is ....
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....submitted that these entries are recorded in the books of account prior to the search. 33. Referring to the decision of the Hon'ble Bombay High Court in the case of CIT vs. Orchird Industries (P) Ltd reported in 88 Taxmann.com 502, he submitted that the Hon'ble High Court in the said decision has held that where the assessee has produced documents to establish the genuineness of the parties such as PAN No.of all creditors along with confirmation, their bank statements showing payment of share application money, etc., merely because those persons had not appeared before the Assessing Officer would not negate the case of assessee so as to invoke section 68 of the I. T. Act. He accordingly submitted that the order passed by the learned CIT (A) being not in conformity with the facts of the case should be set aside and the ground raised by the assessee be allowed. 34. The ld DR, on the other hand, heavily relied on the order of the learned CIT (A). He submitted that the assessee is making conflicting claims and has not come out with the truth, therefore, the order of the learned CIT (A) being in consonance with law should be upheld. 35. We have heard the rival arguments....
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....f appeal No.1 is accordingly allowed for statistical purposes. 36. Ground of appeal No.2 was not pressed by the assessee for which the learned DR has no objection. Accordingly Ground of appeal No.2 is dismissed as not pressed. 37. Ground of appeal No.3 being general in nature is dismissed. 38. So far the additional grounds are concerned, the grievance of the assessee is that the learned CIT (A) failed to adjudicate the ground taken before him challenging the addition of Rs.11.00 lakhs made by the Assessing Officer. 39. After hearing both the sides, we find during the search & seizure operation at the business premises of Sri Krishna Constructions, a copy of the agreement entered into by the assessee along with Shri Syed Yunus and Shri Balaji for the purchase of landed property of 8 acres belonging to Shri E.Eshappa and two others, located at Dagegallu Village, Koppal District at the rate of Rs.13.00 lakhs per acre was found and impounded vide page No.85 to 88 of the Annexure A/TBC/03. Vide Qu.No.3 of the questionnaire dated 1.11.2012, the assessee was asked to furnish the details of the transaction and the sources thereof along with the documentary proof in support of h....
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....ed by Sri R. Chandrahas for an aggregating value of Rs 1,00,00,000/-. In the back side of these cheques (page No 76,77 and 79) various financial transactions are noted. On back side of page 76 is written as "1 acre -1.30 lakhs advance received 1 crore only dated 7/7/08 and dated 18/08/08 received 15 lakh only signed by R. Chandrahas and dated 10/02/2009 received l crore 30 lakhs and confirmed by R.Chandrahas by putting his signature. Likewise on back side of page no. 77 it is noted as 1 acre- amount 2.75 lakhs dated10/11/2008' and different notings are made as below: Rs 50 lakhs on 13/4/09 Rs 65 akhs on 13/5/09 10 lakhs on 13/8/09 Rs 2 lakhs on 1/9/09 Rs 5 lakhs on 25/9/09 RS 10 lakhs on 15/10/09 Rs 40 lakhs on 22/3/10 Rs. 13 lakhs on 15/4/10 Rs.40 lakhs on 26/04/10 Rs. 30 lakhs on 16/7/10 Rs. 20 lakhs on 9/8/10 Rs 20 lakhs on 27/10/10 RS. 1.5 lakhs on 25/9/10 46. Similar notings were found on back side of Page No.79 acknowledged by R. Chandrahas for having received Rs 12 lakhs on 10/02/09, Rs 7 Lakhs on 30/06/09 and Rs 16 lakhs on 7/12/09 When the assessee wa....
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....l, Bellary. I will produce his complete postal address in a day. Q.27. Now I show you the statement recorded u/s. 132(4) on the date of search, 1.e. on 25.11.2010 from you. Vide the statement in answer to question no.3 (page no. 5) you have stated that you have entered into an oral agreement with Sri Chandrahas to purchase 3 acres of property located at Ramnagar, Bellary for a consideration of Rs.2.6 Crores, out of which you paid an amount of Rs.2.5 crores in cash. Please offer your explanation. A. On the day of the search, I was under severe mental pressure. I faced a situation which I had never faced before. This is all I can say about the statement gave which is not correct. Q 28. The above statement dt.25. 11.2010 was recorded on oath, but still, you are saying that you have given incorrect statement after taking oath. Please offer our explanation A. I submit that l am a god fearing man I am a layman and I have explained to already you that I was under great mental pressure that made me make the statement in question. Q.29. Vide final show cause notice dt.22.2.2013, you are requested to produce Sri Chandrahas for examination on or be....
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....s of the assessee." 50. Before the learned CIT (A), the assessee made elaborate submissions based on which the learned CIT (A) called for a remand report from the Assessing Officer which was confronted to the assessee. After considering the remand report of the Assessing Officer and submission of the assessee to such remand report, the learned CIT (A) deleted the addition by observing as under: "7.4 I have gone through the facts of the case and the submissions of the appellant. I have also gone through the remand report of the AO and the reply to remand report by the Considering all appellant. After the above, my observations are as under: 7.4.1) Firstly, in course of search on 25.11.2010, four undated cheques of Rs.25 lakhs aggregating to Rs.1 Cr drawn on Andhra Bank, Infantry Road, Branch, Bellary signed by Sri R.Chandrahas was found and seized from the residential premises of the appellant Sri C.Vamsi Krishna. On the back side of the cheques which are numbered as 76 to 79 of annexure A/CVK/1, financial transactions indicating receipt of Rs.2.50 crores by Sri Chandrahas, along with his signature was also noticed. When this was put forth before the appellant o....
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.....3 (page no.5) you have stated that you have entered into an oral agreement with Sri Chandrahas to purchase 3 acres of property located at Ramnagar, Bellary for a consideration of Rs.2.6 crores, which you paid an amount of Rs.2.5 crores in cash. Please offer your explanation A. On the day of the search, I was under severe mental pressure. I faced a situation which I had never faced before. This is all I can say about the statement I gave which is not correct Q.28. The above statement dt. 25.11.2010 was recorded on oath, but still you are saying that you have given incorrect statement after taking oath. Please offer your explanation. A: I submit that I am a god fearing man, I am a layman and I have already explained to you that I was under pressure that made me great mental make the statement in question. Q.29 requested to produce Sri Chandrahas for examination on or before 28.2.2013 before me. But till date you have not produced Sri Vide final show cause notice dt. 22.2.2013, you are Chandrahas for examination. Please offer your explanation. A: I have already explained to you that during the same time you issue the show cause notice I wa....
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....as received by me and the same is acknowledged with my signature after each transaction. " Q.7) In answer to A.No.6 you have explained that the amount of Rs.2.60 crore was received by you as per entries on the reverse side of cheque at page no.76. Please explain from whom you had received the money and what was the purpose. Ans: Sir, I am now 60 years old and at this point of time I am unable to recall exactly who had given the money. Further, the money received by me was on behalf of somebody for a land deal. I do not recall now the person for whom the money was received. Further, I can say that I did not receive any amount for AY 2009-10 sale of my land as I was having agricultural land measuring about 19.52 acres in Unthakal Village, 18 kms away from Bellary during that period which is still under my possession. Q.8)...... Q.9)....... Q.10)..... Q.11) I am showing you the statement given by Sri C.Vamsi Krishna recorded during the course of search and seizure operation in his case, wherein, he has stated that he paid an amount of Rs.2.60 crores to you for purchase of land. Please offer your remarks. Ans: Sir, I am now....
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....it is observed that the appellant's name is not recorded more so, the extent of property in question also varies. Sri Chandrahas has mentioned as "Total 2.60 crores 2 acres Amount Received", while the Ramnagar property in question is 3 acres. The AO in his assessment order has made the addition. 7.4.8) as unexplained investment in the name of the appellant, whereas the said property was not registered in the name of the appellant. It is pertinent to mention here that the said Ramnagar property is registered in the name of Sri C.Satyanarayana, who is appellant's father. The AO relied on the statement of the appellant recorded during the course of search and parts of statement of Sri Chandrahas recorded during the remand proceedings. The retraction and the statement dated 08.03.2013 during assessment proceedings have been negated by the A0 without bringing any further evidence on record. The statement of Chandrahas is not limiting the transaction to the appellant. Sri Chandrahas has in fact categorically denied having received amount from the appellant. 7.4.9) In view of the factual position, the addition of Rs.2.50 crores made in the hands of the appellant ....
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....the revenue is dismissed. 52. In Ground of appeal No.6, the revenue has challenged the order of the learned CIT (A) in deleting the addition of Rs.3,50,000/- made towards cash credit. 53. Facts of the case, in brief, are that the Assessing Officer during the course of assessment proceedings noticed from the capital account of the assessee for the year under consideration that an amount of Rs.3,75,000/- was received by the assessee from Sharmila HUF in the form of cash on 31-03- 2009. When the assessee was asked to explain the nature of cash receipt and the sources for the said amount along with the supporting evidence, the assessee vide his letter dated 09-03- 2013 replied that the said amount was received by him from his wife Smt. Sharmila out of his HUF income in which he himself and his wife are members. The assessee's contention was not accepted by the AO in absence of any evidence to prove that the said amount was received from the HUF. He accordingly treated the amount of Rs.3,75,000/- as unexplained income in the hands of the assessee. 54. Before the learned CIT (A), the assessee filed details of the cash flow statement, balance sheet, ledger account and extent ....
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....Gopal lal Badruka vs DCIT reported in 346 ITR 106. Therefore, the order of the ld.CIT(A) cannot be accepted on this legal issue that no addition can be made in absence of any incriminating material found during the course of search. However, the request of the ld.counsel for the assessee that given an opportunity, the assessee in a position to substantiate with evidence to the satisfaction of the AO regarding the source of the HUF from where the amount of Rs. 3,75,000/- was received is accepted. We, therefore, deem it proper to restore the issue to the file of the AO with a direction to grant one more opportunity to the assessee to substantiate his case by producing cogent evidence to his satisfaction. The AO shall decide the issue as per fact and law. We hold and direct accordingly. The ground raised by the revenue is accordingly allowed for statistical purposes. 56. In Ground of appeal No.8, the Revenue has challenged the order of the CIT (A) in deleting the addition of Rs.4,07,057/-. 57. Facts of the case, in brief, are that the Assessing Officer noted that in the original return of income filed on 31-07- 2009 for the assessment year under Consideration the assessee has ad....
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....m as Rs.8,38,343/- -(C) Vide para 3 supra. 5. It is obvious from the above statement that instead of making additions for a sum of Rs.1,73,551/- (X-B) which is the correct thing to do, the learned Assessing Officer by oversight and non application of mind, made additions for Rs.4,07,487/-(A-C) The excess additions made by the RS.2,33,936/- without learned Assessing Officer for justification are contested. 59. Based on the arguments advanced by the assessee, the learned CIT (A) restored the issue to the file of the Assessing Officer with a direction to adopt the correct taxable amount and pass consequential order while giving effect to the order by observing as under: "9.2 As could be seen from the computation of total income there is difference in amounts taken while calculating the taxable income. It is also claim of the appellant that profit from the firm is included in total income, which should be excluded. As such, the A0 is directed to adopt the correct taxable amount and pass consequential order while giving effect to this appellate order. This ground is allowed for statistical purposes." 60. Aggrieved with such order of the learned CIT (A), the Reven....