2023 (11) TMI 1096

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....bsequently returned being a genuine transaction. This addition made is uncalled for and deserves to be deleted. 3. That any other ground may kindly be allowed to be taken at the time of appeal with due permission." 3. Briefly facts of the case are that the case of the assessee was reopened by the issuance of notice under section 148 for the reason that there were cash deposits in the bank account maintained with HSBC Bank. Thereafter in response to notice under section 148, the assessee filed her return of income declaring total income of Rs. 4,68,770/- on 31/03/2015. Thereafter notice under section 143(2) and 142(1) were issued and necessary information, documentation were called for and assessment was completed at an assessed income of Rs. 35,18,710/- wherein the AO made an addition of Rs. 30,00,000/- under section 68 of the Act towards unexplained cash deposits. 4. Against the said findings of the AO, the assessee went in appeal before the Ld. CIT(A) and the addition so made by the AO were deleted by the Ld. CIT(A) holding that the same cannot be brought to tax under section 68 of the Act. However the Ld. CIT(A) brought the said amount to tax as income from undisclosed sourc....

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....to Smt. Mohinder Kaur was from the cash advance/earnest money received from the subsequent buyer M/s Modern Agro Foods, House No. 1196, Sector 11, Panchkula on 10-05-2012 against the sale of the same property. The copy of sale deed dated 22-05-2012 is submitted herewith. It is mentioned in the last line at page no. 3 of the sale deed that - "(ix) Rs. 30,00,000/- (Rupees Thirty Lacs Only) in cash in the shape of Indian currency notes on 10-05-2012". So the assessee returned the earnest money of Rs.30,00,000/- to the earlier buyer Smt. Mohinder Kaur from the cash advance received from the subsequent and final buyer. 10. It was submitted that the assessee duly maintains complete books of accounts including cash book in which all the above said entries have been accounted for which was duly produced during assessment proceedings and the relevant part is submitted herewith wherein the entry of Rs. 30,00,000/- received in cash as advance against the sale of property is showing at page no. 4 of the paper book. 11. It was submitted that the AO had sent summons to Smt. Mohinder Kaur on 09-022016 who had unfortunately expired on 29-01-2016 as per death certificate dated 0802-2016 submitted....

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....e was drawn to the findings of the AO which are contained at para 4 of the assessment order which read as under: "4. Vide reply received on 25.02.2016, assessee furnished death certificate of Smt. Mohinder Kaur as-per which she expired on 29.01.2016. Assessee also furnished receipt dated 28.05.2012 regarding return of advance or Rs. 30,00,000/-. This amount is stated to have been returned in cash on 28.05.2012 out of sale proceeds of property Plot No. 366, Phase-2, Panchkula. I have gone through the reply as well as documents produced by the assessee. Plea of the assessee regarding introduction of cash of Rs. 30,00,000/- in the cash book on 23.12.2011 is not acceptable for the following reasons:- i) Receipt regarding advance of Rs. 30,00,000/- taken for sale of property is on plain paper. ii) No witness has signed the receipts dated 23.12.2011 and 28.05.2012. Since documents are not signed by any witness and are not notarized, therefore, not sustainable in the eyes of law. iii) Receipt was produced on 08.02.2016 after the death of Smt. Mohinder Kaur. Death certificate was issued on 08.02.2016 itself, therefore, genuineness of transaction is very much doubtful. IV) Assesse....

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.... way of agreement to sell dated 23.12.2011 entered into with Smt Mohinder Kaur and the additional evidence so submitted by the assessee was accepted and taken on record by the ld CIT(A). 15. In para 4 of the impugned order, the ld CIT(A) refers to the AO findings and written submissions filed by the assessee and holds that there is no merit and force in the written submissions and the action of the AO in treating the amount of Rs 30 lacs as assessee's own undisclosed income was held to be justified and thereafter, in para 5, holds that cash introduced in the cash book cannot be added u/s 68 of the Act being a debit entry and thereafter, goes ahead and confirms the addition u/s 56(1) of the Act for the reason that there is no break up of amount of advance shown as received against sale of industrial plot in the balance sheet of the proprietary concern of the assessee. 16. We therefore find that there are contradictions in the findings of the ld CIT(A) where in para 4, he confirms the findings of the AO in context of section 68 and thereafter, in para 5 he deletes the additions so made by the AO u/s 68 of the Act. Thereafter, the ld CIT(A) has again brought the amount to tax under ....