2024 (4) TMI 980

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....n facts, ignoring Section 68 of the Income-tax Act, 1961 which clearly speaks that the primarily burden of proof lies on the assessee in order to prove the genuineness of the transactions which the assessee failed to do so. 3. Whether on the facts & in the circumstances of the case and law, the Ld.CIT(A) erred in law & on facts, ignoring the Provision of Section 103 of the Evidence Act which clearly states that the burden of proof is on the person who wishes the court to believe in the existence of a particular fact. In this scenario, Burden of proof will never be shifted to the Revenue, it lies on the assessee who is required to prove a fact. When we come within the ambit of Section 68 of the Income-tax Act, 1961, one and the most important limbs i.e. documentary evidences will always come into role automatically w.r.t any such claims made by the assessee during the assessment proceedings. 4. Whether on the facts & in the circumstances of the case and law, the Ld.CIT(A) erred in law & on facts, ignoring the impounded documents seized from the registered address of M/s Omaxe Limited as Annexure A-4 (Page No. 87 to 91 and 97-100) which brought into light the fact that the compan....

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....earing of the appeal." 3 Brief facts of the case are that, the Assessee a limited company, engaged in the business of purchase sale and development of real estate. The Assessee filed its return of income for the AY 2017-18 on 30-10-2017 declaring income of Rs. 3,33,74,570/-. Case was selected for scrutiny under CASS. The Assessee had deposited Rs. 9,09,98,000 during demonetization period in bank account/(s) out of cash in hand as on 08.11.2016 of Rs. 10,03,92,951/- (including of imprest of Rs. 1 Crore). A survey u/s 133A of the Income Tax Act, 1961 ('Act' for short) had taken place on Omaxe Limited on 22.11.2016 where some documents were impounded. Those documents showed cash balances as on 08.11.2016 in some cash books of some of the companies of the Omaxe Group. As per the aforesaid detail cash balance in cash sheets appearing in the document related to the Assessee was Rs. 1,11,75,337. It was the case of the Assessee that the details of cash books in the impounded document was incomplete and the Assessee company had total cash in hand (as per all the cash books) as on 08.11.2016 of Rs. 10,03,92,951/- (including imprest of Rs. 1 Crore). The Assessing Officer did not accept the c....

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.... which were decided in the favour Assessee therein:- (i)The DCIT, Central Circle 29, New Delhi vs. M/s Atulah Contractors and Construction Private Limited (ITA No. 2438/DEL/2022, J.K. 2017-18) (ii) The DCIT, Central Circle 29, New Delhi vs. M/s Bhanu Infrabuild Private Limited (ITA No. 2433/DEL/2022, J.K. 2017-18) (iii) The ACIT, Central Circle 1, Gurugram vs. M/s Omaxe Forest SPA and Hills Developers Limited (ITA No. 2/DEL/2023, J.K. 2017- 18) (iv) The ACIT, Central Circle-1, Gurugram vs. M/s Omaxe Housing and Developers Limited (ITA No. 47/DEL/2023, A.K. 2017-18). 7. We have heard both the parties and perused the material available on record. In the present case on 22.11.2016 the police intercepted two vehicles carrying cash amounting to Rs. 2,22,76,000/- which belongs to M/s Ornaxe Limited. Consequently, a survey was conducted on 22.11.2016 at office of M/s Omaxe Limited at (1) Kalkaji, New Delhi, (2) Shop No-19B, 1st Floor, Omaxe Celebration Mall, Sector-48, Gurugaon and (3) Omaxe Residency 2 Gomti Nagar Extension, Amar Shaheed Path, Lucknow. During the course of survey at registered office of M/s Omaxe Limited, the cash in hand as on 08.11.2016 and cash deposited duri....

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....essing officer is not well founded as the A.O. has not established that the expenses of higher magnitude were being made in cash earlier and has now not been shown. As regards allegation of mounting of cash for a long period, the Ld. CIT(A) held that its mere surmise since the facts of maintenance of high cash balances across extended period of several months is supported by ITR, Audit reports, cash withdrawals from its bank account are matter of records and not subject to manipulation. Ld CIT(A) also held that wisdom behind maintaining higher cash balance cannot be subject matter of finger pointing by the AO and is to be left to the business prudence of the assessee. 11. Ld CIT(A) as regards allegation of 'cash book is prepared in such a way that nearby cash withdrawal can be shown as cash deposit' held that cash withdrawals or deposit are reflected in the bank statements as well as cash book and same cannot be manipulated. Ld. CIT(A) has also held that Ld. AO has ignored the main cash book and considered only the site cash books for arriving at cash balance as on 08.11.2016, whereas the existence of main cash book cannot be denied since most of the cash deposits or withdrawals h....