TaxTMI 
TaxTMI 
2023 (9) TMI 1603
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....ption in the income tax Act. 2. The learned CIT (Appeal) was not justified in confirming the addition of Rs. 20,00,000 without appreciating that in the subsequent year assessing officer has already made the addition of Rs. 30,00,000 being difference amount of agreement and sale deed and hence it is double addition. 3. The learned CIT (Appeal) was not justified in confirming the addition of Rs. 20,00,000 ignoring the fact that agreement was cancelled and it cannot be made the basis of addition. 4. The learned CIT (Appeal) was not justified in confirming the addition of Rs. 20,00,000 taxed by the assessing officer u/s. 68 as no such sum credited in books of accounts. 5. The learned CIT (Appeal) was not justified in confirming the addition of Rs. 20,00,000 as it is in not in dispute that amount of Rs. 25,00,000 was received from Ashok Rohani as advance was returned and interest on same was also paid and thus even if it was presumed that appellant has received Rs. 1,15,00,000 the Assessing officer should have given the benefit of Rs. 25,00,000 being advance return to Shri Ashok Rohani. 6. The appellant craves for leave to amend, add to or om....
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....otal income at Rs. 7,920/-and Rs. 2,12,850/-respectively. A search and seizure operation under section 132 of the Income-tax Act, 1961 (in short 'the Act') was carried out by the Investigation Wing of the Income-tax Department at the premises of "Mokha Builder" and other group on 14/12/2011, wherein certain loose papers were found and seized, which were marked as "LPS B-1/LPS-2 , page No. 9 to 13". During search proceeding, Sh Sarabjeet Singh Mokha, of 'Mokha Group' stated that those loose papers /documents pertained to an agreement for purchase of ancestral property belonging to "Tandon Family". Consequently, in exercise of the power conferred under section 153C of the Act, the Assessing Officer issued notices for assessment years 2011-12 and 2012-13. In response, the assessee filed return of income for assessment year 2011-12 declaring income from business or profession at Rs. 3,05,303/-; income from capital gain Rupees NIL and income from other sources at loss of Rs (-) 1,97,386/-. Similarly, in the return of income filed for assessment year 2012-13, the assessee declared income from business or profession at Rs. 1,98,740/-; income from capital gain at NIL after taking benefit o....
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.... admitted an additional ground of the assessee regarding the claim of the interest in AY 2012-13 and directed the Assessing Officer to consider the said claim in assessment year 2012-13. Regarding the addition of Rs. 30 lakhs in assessment year 2012-13, the Ld. CIT(A) though deleted the addition of Rs. 30 lakhs as income from other sources, however, directed the Assessing Officer to consider the said amount as part of the sale consideration while computing long-term capital gain on sale of the property. 9. Before us, the learned counsel for the assessee has filed a combined paper book containing pages 1 to 41 for assessment year 2011-12 and 2012-13. 10. All the grounds raised in the appeal for assessment year 2011-12 and appeal for assessment year 2011-12 are being connected with the issue of addition of Rs. 25 lakhs for cash received by the assessee and therefore, same are discussed and adjudicated together. 11. The facts in brief qua the issue in dispute are that in the course of search action at the premises of "Mokha Group", an 'Ikrarnama' (i.e. sale agreement) dated 20/02/2010 on stamp paper of Rs. 100/- was found and seized. This 'Ikraranama' for transfer of a bungal....
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....91 dated 12.09.2011-Rs. 10,00,000.00 13. In the amount of Rs. 60 lakhs received in sale deed, the cheque No. 332846 amounting to Rs. 10 lakh is already mentioned in the handwritten jotting in 'Ikrarnama'. 14. According to the Assessing Officer, the assessee has received total Rs. 1,15,00,000/-against his share of sale consideration, firstly, Rs. 65 lakhs as recorded in 'Ikrarnama' and Rs. 50 lakh as recorded in Sale Deed. A chart of total payment of Rs. 1,15,00,000/- reproduced by the Ld. CIT(A) is extracted as under for ready reference:- Name of the Payor Cheque No. Date Amount Source Ashok Rohani 155602 03.04.2010 15,00,000 Ikrarnama Mokha Builders & Promoters 332846 22.07.2010 10,00,000 Ikrarnama Ashok Rohani 155615 21.10.2010 5,00,000 Ikrarnama Ashok Rohani 41794 23.07.2010 10,00,000 Ikrarnama Cash 10.04.2010 2,50,000 Ikrarnama Cash 03.11.2010 7,50,000 Ikrarnama Cash 10,00,000 Ikrarnama Cash 5,00,000 Ikrarnama Mokha Builders & Promoters 332756 19.04.2010 10,00,000 Sale Deed 13.09.201....
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....ew of no satisfactory explanation by the assessee, the Assessing Officer treated the amount of Rs. 20 lakhs and Rs. 5 lakhs as unexplained cash credit for assessment years 2011-12 and 2012-13. The relevant part of the order of the Assessing Officer is reproduced as under: 14. "In view of the fact that no satisfactory explanation has been furnished by Shri Srinath Tondon, and as per presumption u/s 292C, a sum of Rs. 20 lakhs in A.Yr. 2011-12 & Rs. 5 lakhs in A.Yr. 2012-13 as per table below, being cash payments received therein constitutes undisclosed income of Shri Srinath Tondon. A.Yr.2011-12 10.04.2010 2,50,000 Ikrarnama A.Yr.2011-12 03.11.2010 7,50,000 Ikrarnama A.Yr.2011-12 20.10.2010 10,00,000 Ikrarnama Total 20,00,000 A.Yr.2012-13 5,00,000 Ikrarnama Total 5,00,000 15. In view of the above discussions, an amount of rs. 20 lakhs in A.Yr. 2011-12 and an amount of Rs. 5 lakhs in A.Yr. 2012-13, is treated u/s 68 'Cash Credits' as his undisclosed income and is added back to the total the income of the assessee. Initiate penalty u/s 271(1)(c) for concealing p....
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..../- as per the sale agreement found during search. However, the jottings on the agreement against the proposed instalments showed receipts of aggregate amount of Rs. 1,15,00,000/- leaving difference of Rs. 25,00,000/-, Le. Rs. 20,00,000/- in F.Yr. 2010-11 and Rs. 5,00,000/- in F.Yr.2011-12, in excess of the sale value as per agreement. The appellant has tried to argue that the cash receipts represented sale advance received from Shri Ashok Rohani, however, the Assessing Officer has recorded a categorical finding that the advances aggregating to Rs. 30,00,000/- were received from Shri Ashok Rohani through cheques only. The claim that the sum represented sale proceeds or advance for sale cannot, therefore, be accepted. Therefore, there is merit in the finding of the Assessing Officer that the cash received amounts aggregating to Rs. 25,00,000/- remained unexplained and represented the appellant's income from other sources. 6.1.5. Having regard to the facts and in the circumstances of the case and the emerging position of law, I do not find any reason to interfere with the addition of Rs. 20,00,000/- made by the Assessing Officer as income from other sources. The same is c....
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....orities in support of the contention, and therefore, contention of the assessee cannot be accepted without any supporting documentary evidence. Further, the Assessing Officer has made addition on the basis of the cash received in the handwritten jotting duly signed as appearing in the 'Ikrarnama'. 23. Thirdly, the learned counsel of the assessee also submitted that the Assessing Officer had already made addition of Rs. 30.00 lakhs for the difference in the amount recorded in 'Ikrarnama' and Sale Deed, and this amount of Rs. 25 lakhs is subsumed in that Rs. 30 lakhs and therefore, making separate addition amount to double addition in the hands of the assessee. 24. We find that in assessment year 2012-13, Assessing Officer made addition of Rs. 30 lakhs as difference amount of Rs. 90 lakh recorded in the 'Ikrarnama' and Sale Deed amount of Rs. 60 lakhs as income from other sources, however, the Ld. CIT(A) has deleted the said addition, observing as under: 6.2.3 DECISION: "I have considered the written submission put forth by the counsel, perused the facts of the case including other material brought on record. The case of the Assessing Officer is that the cash payments ....
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....e addition of Rs. 30 lakhs has already been deleted by the Ld. CIT(A) and therefore, this amount of Rs. 25 lakh cannot be set off against the said addition of Rs. 30 lakhs which was made by the Assessing Officer, but now deleted by the Ld. CIT(A). 27. Lastly, the learned counsel of the assessee submitted that if without prejudice, it is assumed that said amount of the cash was received by the assessee, then same being part of the sale consideration of the property, it was in the nature of capital receipt and could only be taken into consideration for computation of the long-term capital gain in assessment year 2012-13 and cannot be treated as unexplained cash credit under section 68 of the Act. But according to the learned Assessing Officer and the Ld. CIT(A), it is liable to be assessed u/s 68 for two reasons. Firstly, as against the share of the consideration of Rs. 90 lakhs recorded in the 'Ikrarnama', the assessee has received total amount of Rs. 1,15,00,000/- as his share of sale consideration and therefore, the sum of Rs. 25 lakhs (Rs. 20 lakhs in assessment year 2011-12 and 5 lakhs in assessment year 2012-13) received in cash, is additional sum not related to sale of the ....
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....f Rs. 20 lakhs received in AY 2011-12 and Rs. 5 lakhs received in AY 2012-13 should be treated as unexplained cash credit or part of sale consideration depends on whether the amount of Rs. 30 lakhs received from Mr Ashok Roahni has been retained by the assessee or it has been returned back. Mr Ashok Rohani was part of buyer in 'Ikrarnama' but in the final Sale Deed, his name or his family members name is not appearing. Therefore, it is important that for the assessee to demonstrate that said amount of Rs. 30 lakhs was returned back to Shri Ashok Rohani. Though the assessee claimed to have paid interest to Shri Ashok Rohani, but paying interest itself can't prove that said amount was returned. If the said amount is refunded or returned to Shri Ashok Rohani then cash amount received by the assessee would be within the limits of Rs. 90 lakhs as sale consideration for share of the assessee as per the 'Ikrarnama' and in that case, it can't be treated as unexplained cash credit and it shall be treated as part of sale consideration of the property. But if the assessee fails in demonstrating the evidences as we have stated in above paragraphs, the addition shall be sustained. Though, the c....