2023 (12) TMI 93

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...., Mumbai, ["learned CIT(A)"], for the assessment year 2017-18. 2. In its appeal, the Revenue has raised the following grounds:- "1. On the facts and circumstances of the case and in law, whether the Ld CIT(A) is justified in deleting the addition made u/s 68 of the Income Tax Act, 1961 on account of cash deposited during the demonetisation period as the has failed to furnish the documentary supporting and corroborative evidence in respect, of sources of the cash deposits of Rs. 1,63,92,000/-. 2. On the facts and circumstances of the case and in law, whether the Ld CIT(A) is justified in deleting the addition made u/s 68 of the Income Tax Act, 1961 on account of cash deposited during the demonetisation period as the asse....

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....ce of the said cash deposits along with supporting documentary evidence. The assessee in response thereto submitted that the cash deposit was made out of cash balance available from income earned in cash of Rs. 1,75,00,000 and the said income has duly been offered to tax before the Hon'ble Income Tax Settlement Commission ("Hon'ble ITSC"). It was further submitted that the assessee was able to find buyers only for 38 acres 5 gunthas and the said income was earned in the assessment year 2012-13, i.e. the year in which the said portion of land was sold. The assessee further submitted that it had earned brokerage income on minor land deals that have been offered to tax before Hon'ble ITSC. The AO again issued a show cause notice the assessee w....

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....8 of the Act and held that the assessee had earned unaccounted income of Rs. 1,75,00,000, from sale of land and brokerage income which was offered by the assessee before the Hon'ble ITSC and thus the cash of Rs. 1,75,00,000, was available with the assessee from which cash of Rs. 1,63,92,000, was deposited in the bank account on 25/11/2016. The relevant findings of the learned CIT(A), vide impugned order, are reproduced as under:- "5.3.4 Thus, the fact is clear that the appellant had earned unaccounted income of Rs. 1,75,00,000/- from sale of land and brokerage income which was offered by the appellant before the Settlement Commission in the application made before the Settlement Commission. The Settlement Commission, after consider....

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.... 5.3.5 As far as the applicability of provisions of Sec. 115BBE of the Act in respect of addition made u/s. 68 of the Act is concerned, the argument made by the appellant is that the provisions of Sec. 115BBE is not applicable to the cash credit which was offered to tax at a higher rate. The provisions of Sec. 115BBE are attracted once the addition is made u/s. 68 of the Act in respect of unexplained cash credit. The nature of unexplained cash credit may be the cash credit offered for taxation or not, is immaterial. Thus, this argument of the appellant is rejected. However, the entire addition of Rs. 1,63,92,000/- made by the AO u/s. 68 has been deleted. Therefore, the applicability of provisions of Sec. 115BBE in respect of addit....

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....ent year 2012-13. During the proceedings before the Hon'ble ITSC, the assessee submitted that apart from the above income it had earned the brokerage income on minor land deals. Accordingly, the sum of Rs. 1,75,00,000 was, inter-alia, offered to tax by the assessee as additional income. The assessment year-wise details are as under:- Assessment Year Amount (Rs.) 2009-10 2,50,000/- 2010-11 3,75,000/- 2011-12 3,25,000/- 2012-13 1,52,00,000/- 2013-14 4,00,000/- 2014-15 4,50,000/- 2015-16 3,50,000/- 2016-17 1,50,000/- Total: 1,75,00,000/- 10. After considering the statement of facts, Rule 9 report, reply to Rule 9 report, and further submissions, the Hon'ble ITSC accepted that addit....

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....ceedings before us, the assessee could not establish the link/nexus between the cash deposited in its bank account and additional income offered before Hon'ble ITSC, we find no merits in the submissions of the assessee. The entire basis of arguments of the assessee appears to be a mere afterthought after receipt of the order dated 30/01/2018, passed by the Hon'ble ITSC under section 254D(4) of the Act. Further, from the aforesaid table of additional income offered by the assessee before the Hon'ble ITSC, it is evident that the amount totalling Rs. 1,75,00,000, pertains to the assessment years 2009-10 to 201617. We are of the considered view that when the said additional income was not at all disclosed earlier by the assessee, the onus canno....