Income Tax Appellate Tribunal - Indore
The Dcit Central -2, Indore vs M/S Shiv Sagar Realmart. P Ltd, Indore on 17 October, 2024
आयकर अपीलीय अिधकरण, इंदौर यायपीठ, इं दौर
IN THE INCOME TAX APPELLATE TRIBUNAL
INDORE BENCH, INDORE
BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER
AND
SHRI B.M. BIYANI, ACCOUNTANT MEMBER
ITA No.04/Ind/2023
(Assessment Year: 2018-19)
DCIT Central -2 Shiv Sagar Realmart Pvt. ltd.
Indore 846, Khatiwala Tank
Vs.
Indore
(Appellant / Revenue) (Respondent/ Assessee)
PAN: AAOCS7657Q
Revenue by Shri Ram Kumar Yadav, CIT-DR
Respondent by Shri S.N. Agrawal, AR
Date of Hear ing 17.09.2024
Date of Pronouncement 17.10.2024
O RDER
Per Vijay Pal Rao, JM :
This appeal by Revenue is directed against the order dated 20.02.2023 of the Commissioner of Income Tax (Appeal)-3 Bhopal, for A.Y.2018-19. The revenue has raised the following grounds of appeal:
1. "Whether on the facts and in the circumstances of the cases and in law, the Ld. CIT(A) was justified in deleting the addition of Rs. 15,27,47,200/- made u/s 69B of the Income Tax Act, 1961, on account of undisclosed/unexplained expenses?
2. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in deleting the addition IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
of Rs. 15,27,47,200/- (total Rs. 15,48,75,200/- of all transactions 'minus' Rs 21,28,000/- of contra entries) recorded in 'Day Book' which was seized from the possession of Shri Sunny Chaudhary, a key employee of the assessee group ignoring that:
a) Most of the transactions in 'Day Book' are not recorded in the books of account?
b) The transactions mentioned in the 'Day Book' represents payments made and received in cash?
c) It is evident from the narrations of the transactions that the cash had been utilized for various illegal purposes?
d) The contra entries matched entirely with the entries in the bank statements, expect for the fact that the actual transaction as appearing in the bank account was with two zeros (00) extra, thus the AO has successfully broken and revealed the 'code' used to camouflage the entries in the 'Day Book'?
3. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in deleting the addition of Rs. 15,27,47,200/- on the assessee's version that Shri Sunny Chaudhary was not a key employee of the group and that some bank accounts did not pertain to the assessee and accordingly the AO should have conducted enquiries to ascertain the actual holders of bank accounts and in sum holding that the 'Day Book' did not pertain to the assessee, grossly ignoring that:
a) The assessee group used bank account of the employees, labourers and other unethical means for routing unaccounted money with the help of Shri Sunny Chaudhary, a key employee of the assessee group and that such additions made on this very issue in the case of another group concern (having 2 of 3 common directors as the assessee company) M/s Shri Ganesh Realmart P. Ltd, in which search & seizure action was conducted along with that on assessee, have been confirmed by CIT(A) for AYs 2015-16 and 2018-19?
b) 'Day Book' contained details of transaction with certain persons who were related to the assessee group?
c) The provisions of section 132(4A) of the IT Act according to which contents of 'Day Book' which was seized from the possession of Shri Sunny Chaudhary, a (key) employee of the assessee group, are true and the assessee was required to explain each and every transaction recorded in such 'Day Book'?Page 2 of 60
IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
d) In event the CIT(A) felt that the AO failed to conduct certain more inquires the obligation to conduct proper/ complete inquiry shifted to CIT(A)(and the Tribunal) and they cannot simply delete addition made by AO on the ground of lack of inquiry in view of Jansampark Advertising & Marketing(P.) Ltd. (2015) 56 taxmann.com 286(Delhi)?
4. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in deleting the addition of Rs. 3,43,95,000/- pertaining to the AY under consideration made u/s 68 of the Income Tax Act, 1961 on account of unexplained cash credits ignoring the fact that the assessee has failed to prove the identity and credit worthiness of the persons/ customers as well as genuineness of the transactions in respect of its claim of receipt of advances?
5. Whether on the facts and in the circumstances of the case and in law, the I.d. CIT(A) was justified in deleting the addition of Rs. 4,77,287/- made u/s 68 of the Income Tax Act, 1961 on account of unexplained cash credits ignoring the fact that the assessee has failed to explain the sources of cash deposited in its bank accounts?"
2. Ground no.1 to 3 are regarding the addition made by the AO of Rs.15,27,47,200/- on account of unexplained expenditure u/s 69B of the Act which was deleted by the CIT(A). The assesse company is engaged in the business of Real Estate. There was a search and seizure operation u/s 132 of the Act carried out at the business as well as residential premises of Shiv Shankar Plywood House & Veener Group of Indore including assessee and other concerns/business associates on 04.01.2019. During the course of search and seizure action a ledger account title as Day Book was found and seized and marked as LPS-1 from the residence of Shri Sunny Shoudhary an employee of the assessee. In response to notice u/s 153A of the Act the assesse filed return of income on 19.06.2020 declaring total income of Rs.10,20,810/-. The AO has Page 3 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
compiled the data recorded in the day book and incorporated in the table at page no.26 to 48 of the assessment order. These entries in the day book as incorporated in the table relates to the period from 01.10.2017 to 31.03.2018. The AO observed that all these transactions are out of book of the assessee and represent the cash transactions entered into by the group out of books. The AO further observed that the amounts in the day book are after deducting with two zeroes (00) as the total of entries in the day book comes to Rs.15,48,752/- was taken by the AO as Rs.15,48,75,200/-. The assesse challenged addition made by the AO before the CIT(A). The CIT(A) after considering seized material, reply of the assessee as well as corresponding entries in the bank account which were considered by the AO for coming to the conclusion that the amounts in the day book seized during the search were suppressed by two zeros (00) held that those bank accounts as referred by the AO do not belong to the assessee. Further when the AO has already made an addition of unexplained cash credit u/s 68 of the Act then only peak balance would have been considered for addition however, the CIT(A) has deleted the addition on this account on the ground that the said day book does not belong to the assessee and entries do not pertains to the assessee's business transactions.
3. Before the tribunal Ld. DR has submitted that the AO has given all the details of debit and credit entries in the diary as well as various bank accounts wherein as many as 10 entries are matching between the seized material and various bank accounts. The AO has made addition after reducing a sum of Rs.21,28,000/-Page 4 of 60
IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
as these are contra entries of debit and credit. He has further submitted that the diary was found from the possession of the key person of the assesse as admitted by the Director of the assesse and therefore, these entries are regarding the cash transactions of the assesse handled by the said key person Shri Sunny Choudhary. The said person was working as cashier of the assessee and was maintaining the record of cash and bank account transactions. Ld. DR has referred to question no.43 of statement of Shri Shailendra Mishra recorded by the AO who has also admitted that the assesse company was working from Swastic Nagar, M.G. Road, Indore which is also mentioned in the Day Book found and seized during the search. Therefore, this cannot be denied that entries in the seized material belong to the assesse. Ld. DR has further contended that the directors of the assesse company has not given clear explanation to any of the question and all his answers are evasive and just replied that I am not in position to give the answers without consulting Shri Sunny Choudhary. He has further submitted that the AO has brought out the fact that certain entries in the day book are in the name of Meena Makhija stated to be wife of Shri Ishwar Makhija and therefore, the AO has established the link between the entries in the day book and the key person working with assesse company. The AO has further pointed out that some of the key persons were employees namely Shri Deepak Kushwaha and Shri Govind Chima who were given their statement regarding misuse of the bank account by the group for deposit the cash and then subsequently withdrawn for handing over to Shri Page 5 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
Sunny Choudhary. He has relied upon the order of the AO and submitted that most of the transactions in cash are not recorded in the books of account. The transactions mentioned in the day book represent payments and receipt in cash and also reveals that cash has been utilized for various purpose. The AO has examined the entries in the day book as well as in the bank account and found that contra entries matched with the entries in the bank statements except for the fact that actual transactions shown in the bank accounts are with two zeroes extra and therefore, the AO has correctly decoded the entries in the day book. The entries in the name of certain persons recorded in the day book also reveal that these transactions are with the persons related to the assesse group. Thus, the Ld. DR has submitted that in case there was a short coming in the inquiry conducted by the AO as found by the CIT(A) it was incumbent on the CIT(A) to conduct a proper and complete inquiry having coterminous power of AO. Hence, he has pleaded that the impugned order of the CIT(A) qua this issue is liable to be set aside and order of the AO be restored.
4. On the other hand, Ld. AR of the assesse has submitted that the AO has made addition of Rs. 15,27,47,200/- on hypothetical and without any basis as neither the alleged day book was found from the business premises of the assesse nor any of the contents containing in the day book related to the assesse. The AO has treated the entries in the day book as suppressed by two zeroes of each amount and further as undisclosed /unexplained expenses of the assesse which are absolutely baseless, ill-founded and Page 6 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
unsubstantiated. Ld. AR has submitted that the alleged day book was found from the possession of Shri Sunny Choudhary whose statement was recorded during the search and seizure action wherein he has categorically stated that he received these papers from Saifee Nagar Office for rough use and that he had no knowledge as to who maintained the said Day Book. He has referred to the question no.38 and 40 of the statement of Shri Sunny Choudhary wherein he has explained the facts about these papers. It is a mater of fact that the said day book was not maintained by Shri Sunny Choudhary and therefore, the entire basis of the AO that the day book is maintained by key person Shri Sunny Choudhary is without any basis.
4.1 Ld. AR has submitted the as per the provisions of section 132(4A) r.w. section 192C of the Act the said diary found from the possession of Shri Sunny Choudhary cannot be presumed to be belonging to the assessee or containing any transactions of the assessee. He has further submitted that the transactions recorded in the said day book were confronted to Shailendra Mishra director of the assessee group who in question 43, 44, 51 & 52 explained that these entries were beyond his understanding and not related to the assessee company. He has further submitted that Shri Sunny Choudhary was working as office boy and his work was to collect and handover documents to the concern persons in the group and therefore, he was not key person for maintaining any record of the business transactions of the assessee company. Ld. AR has further submitted that the AO has also given much emphasis on the Page 7 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
assumption that Smt. Meena Makhija is wife of Shri Ishwar Makhija which is completely incurred fact as Smt. Pooja Makhija is the wife of Shri Ishwar Makhija. Therefore, the entire basis of the AO to conclude that the name of Shri Meena Makhija appearing in the entries establishes the relation between the entries in Day Book and key persons of the assesse is turned out to be completely falls presumption. Further the AO has again tried to establish the link between the entries in the day book and bank account statements of the assessee however, all those bank accounts as mentioned by the AO do not belong to the assessee and therefore, the alleged comparison by the AO by making addition of two zeroes in the amounts recorded in the day book and then matching with some stray entries in the bank account is far from truth when none of those bank accounts belong to the assessee company.
4.2 He has forcefully contended that there was no match whatsoever between the bank related contra entries appearing in the 'Day Book' and bank statement of the assessee leave apart any chances of exact match between the two. The Assessing Officer for the reasons best known to him held that there was exact match between the bank related contra entries appearing in the 'Day Book' and the bank statement of the respondent even when not a single entry appearing in the day book tallied with the amounts appearing in the bank statement of the respondent. Hence, this finding of the Assessing Officer is also baseless and ill-founded and cannot be used to draw any adverse inference in the case of the respondent.Page 8 of 60
IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
4.3 Further, it was stated in the assessment order that contra entries were compared with the bank statements of the subject group's bank accounts held with Axis Bank, J & K Bank and UBI for the relevant period (FY 2017-18). In this respect, it is worth mentioning that the respondent never maintained any bank account with Axis Bank and J & K Bank. This fact is duly verifiable from the detail of bank accounts and bank statements of the assessee filed before the Assessing Officer during the course of assessment proceedings. He has referred to the screenshot of the detail of bank accounts maintained by the assessee which was filed before the Assessing Officer during the course of assessment proceedings and submitted that on perusal of the screenshot of the details of bank accounts maintained of assesse it becomes crystal clear that the assessee never maintained any bank account with Axis Bank and J & K Bank therefore, there arose no question of any match whatsoever between the bank related contra entries appearing in the 'Day Book' and the bank statement of the assessee. Further, reference to cash transaction in the UBI account that took place on 05.02.2018 which was worth Rs. 1,00,000 as per the bank statement and not Rs. 1,000 as mentioned in the 'Day Book is also hypothetical since there was no such transaction in the bank account of the assesse maintained with United Bank of India. This fact is duly verifiable from the bank statement of the assessee which was filed before the Assessing Officer during the course of assessment proceedings.Page 9 of 60
IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
4.4 Thus, the Ld. AR submitted that in view of the detailed analysis of each and every observation of A.O coupled with the corresponding explanation of the assesse it is clear all the observations noted in the assessment order were fictional, hypothetical and unsubstantiated and were not related to the assessee in any manner whatsoever. It clearly seems that these papers/ statements which were not related to the assessee were interpreted in such a way to prove that such papers/ statements pertained to the assesse. For instance, loose papers though were not found from the business premises of the assessee were presumed to be pertaining to the assessee, statement of Shri Shailendra Mishra wherein there was no reference of the assessee was read in such a way to conclude that the transactions in the 'Day Book' were related to the respondent, Smt. Meena Makhija was considered to be the wife of Shri Ishwar Makhija just to prove that the transactions in the 'Day Book' were related to the persons of the group more so when Smt. Pooja Makhija is the wife of Shri Ishwar Makhija and also contra entries appearing in the 'Day Book' were considered to be in exact match with the bank statements of the assessee even when not even a single entry in the 'Day Book' tallied with the amounts appearing in the bank statement of the assessee.
4.5. It is submitted that addition of Rs. 15,27,47,200/- made to the total income of the assessee on account of amounts shown in the alleged Day Book by treating it as undisclosed/ unexplained expenses of the assessee was grossly unjustifiable and wholly unwarranted since all such observations on the basis of which the aforesaid addition was made to the total income of the respondent were either baseless or non-existent and Page 10 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
therefore, addition of Rs. 15,27,47,200/- made to the total income of the assessee was rightly deleted by the Ld. CIT(A. He has further submitted that the AO has taken only one side of the transactions of day book and also added both receipts and payments which otherwise amounts to double taxation of the same amount when both the receipts and expenditure are added. In support of his contention he has relied upon the following decisions:
(i) CIT vs Fertilizer Traders as reported in 42 taxmann.com 476 (All, HC)
(ii) CIT vs Tirupati Construction Co as reported in 55 taxmann.com 308 (Gujarat HC)
(iii) ACIT vs Kashmir Trading Company as reported in 20 Taxmann.com 337, (ITAT, Jodhpur)
5. We have considered the rival submissions as well as relevant material on record. During the course of search and seizure proceedings a 24 pages day book was found and seized from the residence of Shri Sunny Choudhary an employee of the assesse marked as LPS-1. These entries in Day Book are shown from October 2017 to 31.03.2018 in the nature of payments as well as receipts and some of the entries are contra entries with respect to the receipt and payment in the bank accounts mentioned therein.
Total of these entries comes to Rs.15,48,752/-. These entries are compiled by the AO and incorporated in a table from page no. 26 to 48 of the assessment order. The AO has selected some of the entries in the name of Axis Bank and J & K Bank and then observed that the entries in the bank accounts are shown as adding two more zeroes of the amounts shown in the seized documents Page 11 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
and consequently he concluded that the entries in the day book are shown by suppressing two zeroes and thereby the AO has increased the amount to Rs.15,48,75,200/-. The AO in para 6.2 has given reasons for taking entries by adding two more zeroes as under:
"6.2 Further, it is stated that this Day Book has been written in coded form. The numbers written in this Day Book are after deducting two zeroes (00). The fact can be ascertained/verified from the various corresponding transactions ibid on this Day Book. Details related to bank payment mentioned as contra entry fully matches with the details/data feed stored in the regular books of the group company for the said period. The contra entries were compared with the bank statements of the subject group's bank accounts held with Axis Bank, J&K Bank and UBI for the relevant period (FY 2017-18). The contra entries match entirely with the entries in the bank statements on the exact same dates, except for the fact that the actual transaction as appearing in the bank account is with two zeroes (00) extra. For example, the cash transaction in the UBI account that took place on 05.02.2018 was worth Rs. 100000 as per the bank statement, and note Rs. 1000 as mentioned in the 'Day Book'. Similarly, the transaction appearing in the Axis Bank a/c on 27.11.2017 is of Rs. 45000, and not Rs. 450 as mentioned in the 'Day Book'. The amounts above, which are written with reference to the bank has truly matched with the amount entered in the regular books of the company. These amounts have been entered in the regular books with full figures, whereas in the Day Book, written in short/coded form after deducting two zeroes (00), which is duly established from above observation."
5.1 Thus, The AO has referred bank accounts held with Axis Bank, J & K Bank and UBI. Apart from this observation there was nothing found or detected during the investigation at the time of search as well as in the assessment proceedings. The statement of Page 12 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
Shri Sunny Choudhary was recorded during the search and he has specifically stated in question no.38 & 40 as under:
38. म आपको आपके िनवास से ज त कए पेपर LPS-1 के Page No. 1 से 24 दखा रहा ँ । कृ पया आप इन पेपर का अवलोकन कर । और अपना पेज wise प ीकरण द ।
उ र - LPS-1 के Page No. 1 से 24 तक के pages मुझे सैफ नगर ि थत कायालय से ा ए है जो क Day Book है और म यह papers Rough use के िलए लाया था और इन papers के बारे म मुझे कोई जानकारी नह है ।
40- म आपको LPS-1 का Page No. 24 फर से दखा रहा ँ । िजसके Top पर 20, Swastik Nagar, Near MOG line, Indore, Madhya Pradesh िलखा गया है । या आपको इस बारे मे कु छ जानकारी है ।
उ र - Shiv का मतल ब Shiv Realmart Pvt. Ltd. हो सकता है य क 20, Swastik Nagar, Near MOG line, Indore ये address Shiv Realmart Pvt. Ltd. का है, इन Pages म देख कर जो मुझे लग रहा है, वह मुझे Day to Day क cash book लग रही है, हाँ cash book कौन maintain करता है इसक जानकारी मुझे नह है ।
5.2 Thus it is clear that the said day book was neither recorded nor maintained by Shri Sunny Choudhary from whose possession it was seized during the course of search. Rather he has specifically explained that he took this diary from Saifee Nagar Office of the assesse for rough purpose. The statement of Shri Shailendra Mishra was also recorded during the search and seizure action who has also stated that he is not in a position to say anything about alleged day book as entries are not related to any business transactions of the assesse company. All these facts have been considered and analysed by the CIT(A) in para 4.5.2 to 4.5.4 as under:
"4.5.2. I have duly considered the facts brought in by the ld. AO in the assessment order and submission made in this regard by the appellant. During the search and seizure proceedings at the residential premises of Shri Sunny Choudhary, a ledger Page 13 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
account titled as "Day Book" having 24 pages was seized as LPS-1. This Day Book contains the receipt and payment details. Total of all transactions has been worked out to Rs.15,48,75,200/- (Rs.15,27,47,200/- + Rs.21,28,000/-). Figures in Day Book has been written by suppressing two Zero. Amount deposited in the bank account or withdrawn from bank account has also been recorded in this Day Book. On this basis, Annexure B containing only bank transactions of Rs.21,280/-, was prepared during search and seizure proceedings. Annexure C was also prepared which contains cash transactions total of which was worked out to Rs.15,27,472/-. In the Day Book two zero had been suppressed. Thus, actual amount of transactions as per Annexure B is determined at Rs.21,28,000/- and at Rs.15,27,47,200/- as per Annexure C. On the basis of statements of Shri Sunny Choudhary and Shri Shailendra Mishra, Director in the appellant company, seized Day Book and bank statements, the ld. AO arrived at conclusion that the Day Book contains the unaccounted cash transactions of the appellant. The ld. AO mainly did verification of entries of the bank accounts appearing in the bank account of the appellant. Ld. AO has mentioned in para 6.3 of the assessment order that transactions with bank recorded in Day Book are matching with the entries in the books of account of the appellant. Such entries are summarised by the ld. AO as under:
Debit Credi
Vch Amt. Amt.
Date Particulars Vch Type
No. Inward Outwar
Qty d Qty.
07.10.2017 Cash Axis Bank Contra 5 100 100
07.10.2017 The Jammu & Kashmir Contra 6 900 900
Bank
18.11.2017 The Jammu & Kashmir Contra 7 5000 5000
Bank
27.11.2017 Axis Bank Contra 8 450 450
25.01.2018 UBI (A/c No:- Contra 9 4250 4250
1457050005579)
05.02.2018 Cash UBI Contra 10 1000 1000
05.03.2018 UBI (A/c No:- Contra 11 4750 4750
1457050005579)
23.03.2018 UBI (A/c No:- Contra 13 830 830
1457050005579)
31.03.2018 UBI (A/c No:- Contra 4 4000 4000
1457050005579)
21280 21280
The ld. AO has observed in para 6.2 of the assessment order that the above contra entries were matched with the entries in the books of account. The contra entries matched entirely with the entries in the bank statements, except for the fact that the Page 14 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
actual transaction as appearing in the bank account was with two zeroes (00) extra. For example, the cash transaction in the UBI account that took place on 05.02.2018 was worth Rs. 1,00,000 as per the bank statement, and not Rs. 1,000 as mentioned in the 'Day Book'. Similarly, the transaction appearing in the Axis Bank a/c on 27.11.2017 is of Rs. 45,000 and not Rs. 450 as mentioned in the 'Day Book'. The amounts above, which were written with reference to bank truly matched with the amount entered in the regular books of the company. These amounts had been entered in the regular books with full figures, whereas in the Day Book, these were written in short/coded form after deducting two zeroes (00). Against this observation, the appellant has submitted that it has never maintained any bank account with Axis Bank and J & K Bank. On this deniel, ld. AO is silent in the assessment order and has not given any contrary findings on it. Therefore, it can be safely presumed that the entries appearing in the Day Book do not pertain to the appellant. The appellant has also furnished details of its bank accounts alongwith copy of complete bank statements during the assessment proceedings which are as under:
Bank Address Account Type Account No. State Bank of Godha Colony, Bhanwar Current 31194364545 India Kuwa Main Road, Indore United Bank Khatiwala Tank, Indore Current 1457050005692 Of India (UBI) I further find that account no.1457050005579 of UBI appearing in the Day Book is different from the account number maintained with UBI by the appellant. Therefore, I find force in the submission of the appellant that when no bank account has been maintained with Axis Bank or J & K Bank by the appellant, the question of exact match does not arise whatsoever between the bank related contra entries appearing in the Day Book and the bank statement of the appellant and cash transaction of Rs.1,00,000/- on 05.02.2018 in the UBI account and not Rs. 1,000 as mentioned in the 'Day Book is also not correct since there was no such transaction in the bank account of the appellant maintained with United Bank of India. Thus, the appellant with the help of cogent evidences established that the Day Book does not pertain to it. On getting explaination from the appellant, the ld. AO should have acted upon the same and enquiries to ascertain actual holder(s) of bank accounts appearing in the Day Book should have been conducted. Nothing has been done during the assessment proceedings. The findings of the ld. AO in this regard remain Page 15 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
unsubstantiated. The ld. AO has given certain other findings to establish that the seized Day Book was pertained to the appellant which have been discussed below:
(i). Regarding ld. AO's finding that the 'Day Book' was found as being maintained by a key employee of the group, Shri Sunny Chaudhary who used to work for the group as an accountant and used to focus mainly on the accounts of the group's real estate concerns, I find that shri Sunny Choudhary is employee in the appellant group who has stated in his statement that he was not aware that who had maintained Day Book and he received these pages for rough use from the office of the appellant. From the statement of Shri Sunny Choudhary, it becomes clear that he had not maintained the Day Book. Further, Shri Shailendra Mishra, Director in the appellant company has specifically stated that he is not accountant of the group or appellant and he only carries the account related papers to Shri Gagan Shroff who looks after the work of account. In view of these facts, the observation of the ld.
AO does not establish that the Day Book was pertained to the appellant.
(ii). Regarding ld. AO's finding that when the transactions contained in the 'Day Book' were confronted to Shri Shailendra Mishra, one of the main directors of the group, he initially accepted that those transactions were related to the appellant but subsequently went into a denial mode, I find that the observation of ld. AO is not factually correct. Shri Shailendra Mishra, Director in the appellant company never stated that the transactions appearing in the Day Book were pertained to the appellant. On being confronted with the Day Book, he only stated that these entries could only be explained after going through the Day Book, consulting employees, CA and other directors of the company. Thus, the observation of the ld. AO is found baseless.
(iii). Regarding ld. AO's finding that on perusal of the narration of several transactions appearing in the 'Day Book', it appeared that they were related to persons connected with the Group, For example, the name of Meena Makhija appeared in the 'Day Book' several times who was stated to be the wife of Shri Ishwar Makhija, the appellant has explained that Meena Makhija is not wife of Shri Ishwar Makhija, one of the key person of the appellant group. Smt. Pooja Makhija is the wife of Shri Ishwar Makhija. The ld. AO has not rebutted the fact in this regard brought in by the appellant. Thus, the ld. AO has drawn inference on wrong fact.
Page 16 of 60IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
4.5.3. The appellant has alternatively submitted that if the contentions of the ld. AO is accepted that the Day Book was pertained to any of the concerns of the appellant group, then also entire receipt/payment can not be added to the total income of the appellant. In view of various judicial pronouncements, only peak balance amount (Rs. 67,04,400/-) could have been considered for making any addition. However, the appellant has submitted that neither the alleged Day Book nor any of the transactions contained therein were related to the appellant and therefore, no addition was justifiable to the total income of the appellant on account of gross amounts shown in the alleged Day Book. The ld. AO has misunderstood the above submission of the appellant for strengthening his stand and stated that the appellant is offering only peak balances for taxation. I find the contentions of the appellant are justified. Looking to the nature of entries of the Day Book, only peak balance can be added. However, I find that the Day Book does not pertain to the appellant, hence, no addition could be made on this line also.
4.5.4. The submission made by the appellant before me and the ld. AO are the same, but nothing has been brought in the assessment order to counter the plea taken by the appellant. On the contrary, I find that every explanation of the appellant is substantiated by cogent material and facts which cannot be ignored as they remained unrebutted. In view of the above factual discussion, it can safely be held that the seized Day Book does not pertain to the appellant and hence, addition made on this basis cannot be sustained. Considering the above discussion, addition of Rs.15,27,47,200/- is, hereby deleted. Appeal on the above grounds is allowed."
5.3 In absence of any tangible material to show that the transactions recorded in the alleged day book are the out of books business transactions of the assesse and that too these are suppressed by removing two zeroes of the amounts. The conclusion of the AO that these entries in the day book are suppressed by two zeroes is merely on the basis of presumption as well as by considering bank accounts which do not belong to the assesse. It is matter of record that none of the entries recorded in the seized document (Day Book) are found in the bank accounts of the assesse Page 17 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
but the A.O has considered the bank accounts mentioned in the seized material as belong to the assesse is contrary to the fact and record. Therefore, in the facts and circumstances when the A.O made the addition on presumption of wrong facts that certain entries in the seized material are matching with the entry in the bank accounts of assesse except two zeros then the same is not sustainable as those bank account do not belong to the assesse. Moreover, the A.O made two additions by taking each side of the entries in the seized document which amounts to double addition and without considering both side of the seized material to get the net amount if any. Therefore, we do not find any error or illegality in the impugned order of CIT(A) qua this issue.
6. Ground no.4 is regarding the addition made by the AO on account of unexplained cash credit u/s 68 of the Act which was deleted by the CIT(A). The assesse has shown advances against the sales of plot of lands. During the assessment proceedings the AO asked the assessee to produce detailed chart comprising Name, PAN, Amount of advance, mode of payment and reason for advance. The AO further noted that during the search proceedings neither registered sale deeds nor confirmation letter from the persons whereas the register is yet to be done was submitted. In several cases the payment has been received in cash and PAN of the customers has not been produced by the assesse. Accordingly the AO issued show cause notice to the assesse. In reply the assesse furnished the details of advances received from the customers during the period relevant to assessment year 2013-14 to 2019-20.
Page 18 of 60IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
Out of which in certain cases assessee has already sold land vide registered sale deed and year wise outstanding details were also furnished. The AO did not accept the reply of the assessee on the ground that during the search proceedings the assessee failed to provide basic details and further the assesse has not produced PAN of the buyers in several cases. Therefore, the AO doubted genuineness of the transactions and creditworthiness of the parties and consequently made the addition of Rs. 10,71,25,091/- for A.Y.2018-19. The AO also invoked the provisions of section 115BBE for higher rate of tax. The assesse challenged the action of the AO before the CIT(A) and contended that out of these total advances received by the assessee a sum of Rs.7,66,30,091/- represents opening balance and therefore, no addition can be made for the year under consideration for the remaining amount of Rs.3,43,95,000/- the CIT(A) has considered the details furnished by the assessee regarding advances received against which the sale deed were executed in the subsequent years and whenever the sale deed was yet to be executed, the other documents being confirmation of the buyer, PAN, Address, ledger account, bank account, return of income were filed by the assesse. Thus, in absence of any contrary material brought on record by the AO. The CIT(A) has deleted the entire addition. Aggrieved by the impugned order of the CIT(A) the revenue has filed the present appeal.
7. Before the Tribunal Ld. DR has submitted that during the course of assessment proceedings the assesse failed to produce complete details of the buyers. The AO has specifically mentioned Page 19 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
in the assessment order that in several cases the assesse has not filed PAN of the customers deposited the payment was received in cash. Further the sale deeds were not executed till the finalization of the assessment order even after expiry of many years and therefore, the genuineness of the claim of advances from customers without any supporting evidences is not proved by the assesse. Further in the absence of PAN and other relevant details the assessee also failed to prove identity and creditworthiness of the parties in whose names advances were shown outstanding by the assessee. Thus, Ld. DR has submitted that the CIT(A) has erred in deleting addition to the extent of Rs.3,43,95,000/- which is admittedly entered into books of account by the assesse during the year under consideration. The AO has specifically pointed out those discrepancies in the details and claim of the assessee. So far as the advances shown by the assesse in the name of various persons and subsequent sale deeds were registered for different amount which is less than the advances shown by the assessee and there is no mention about advances received in the sale deed, therefore, the claim of the assesse is not even supported by the sale deed. In certain cases the assessee has claimed that advances were refunded as no sale deed was executed however, the assessee has not produced any supporting documents as the AO has given details of those cases in para 5.3 of the assessment order. Therefore, the genuineness of the transactions and creditworthiness of the customers has not been proved by the assessee and accordingly the assessee failed to discharge its onus to prove Page 20 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
identity and creditworthiness of the creditors as well as genuineness of the transactions. He has relied upon the order of the AO.
8. On the other hand, Ld. AR of the assessee has submitted that the assesse produced complete year-wise details of the advances received which is also reproduced in the assessment year and placed at page no.243 to 252 of the paper book. The revenue has not disputed that out of the total outstanding on account of advances received from customers of Rs.10,71,25,091/- a sum of Rs.7,66,30,091/- pertains to the earlier year and represent opening balance of outstanding on account of advances received from customers and therefore, to that extent the department has even not challenged the order of the CIT(A). He has further submitted that the assessee produced ledger book placed at page no.288 to 321 of the paper book showing all the transactions of advances received for each party, mode of receipt as well as sale deeds which were subsequently executed in favour of those customers. In the cases where the sale deed was yet to be executed or amount was refunded, the assessee has filed the confirmation from the parties along with PAN, bank account statements, return of income. All these transactions were duly recorded in the books of account and return of income was also filed much before the search and seizure action taken in the case of the assesse. Therefore, the department cannot doubt the genuineness of the transactions then all these were duly recorded in the books of account and return of income was filed much prior to the search and seizure action. He has relied Page 21 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
upon the impugned order of the CIT(A) as well as decision of this Tribunal dated 31.10.2023 in case of Shree Ganesh Realmart vs. DCIT in ITANo.30 & 31/Ind/2022.
9. We have considered the rival submissions as well as relevant material on record. In the assessment order the AO has recorded his objections against the claim of the assesse in para 5.2 to 5.5 as under:
"5.2 The contention of the assessee is considered but not acceptable. During the search proceedings, the assessee failed to provide even basic details such as in which specific cases the registry has been done, and cases where the same is yet to be done. From the details produced so far, it can also be seen that out of all customer advances, payment has been claimed to be received in cash in several cases, while the PAN of the customer has not been produced in several other cases.
Further, in cases where registry has not been done till date, even if the assessee had submitted a simple confirmation letter regarding advance amount received from the concerned party, the identity, genuineness and creditworthiness of these transactions would not have not been established. This is because the company has already admitted that he is unable to produce copy of any authentic sale agreement, or even basic details of the plot allotted to the customer such as location of the plot, survey no. etc. 5.3 During the assessment proceedings the assessee submitted copies of registry, copy of confirmation, bank account details and copy of ITR in some cases. After perusal of these documents it was seen that the parties have no creditworthiness to give advance against the properties. In these cases it was also seen that the return income of the parties is very low. Further in some cases advanced amount does not match with registry deed. In some cases, neither any Page 22 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
registry deed was made not agreement was produced. For example the detail of such discrepancies is as under:-
Amount paid to assessee Advance adjusted company as in registered S. No Name of parties Remark advance as per deed, if any (in ledger Rs.) (in Rs.) The difference amount of Shri Abid Husain 1 43,15,400/- 35,15,400/- advance is not reflecting in Lemonwala/ Zehra bai registry deed.
The assessee claimed that the amount has been returned but no any 2 M/s Abhishek Builders 10,00,000/- No registry supporting documents has been furnished to claim of return.
3 Shri Ajab Hussain 30,00,000/- No registry Rs 30,00,000/- was shown against advance but the company has not produced any copy of agreement 4 Shri Ajab Hussain/ 20,00,000/- No registry Rs 20,00,000/- was shown Shabbir Hussain against advance but the company has not produced any copy of agreement 5 Alex Decore 5,00,000/- No registry Rs 5,00,000/- was shown against advance but the company has not produced any copy of agreement 6 Amiruddin Lemonwala 13,00,000/- No registry Rs 13,00,000/- was shown against advance but the company has not produced any copy of agreement
3. In view of the above analysis, the genuineness of transaction and creditworthiness of the customers is not established. Further, the assessee company once again failed to submit any sale agreement during the Page 23 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
assessment proceeding in which registry was not completed. Therefore, it is clear that sale agreement is not prepared at the time of receiving advance, neither any receipt is given to the customer, and the transaction operates entirely on trust basis may not be accepted as it is clear violation of accounting principle It is beyond human probability and defies all norms of commercial logic and established practices of the real estate business. 5.5 In view of the above discussion, the plea of the assessee is accepted that advance received by the assessee company in a particular year which was outstanding for several year which was included in the closing balance of advance. Thus, in AY 2018-19 (before the search date), the closing balance of the advance received from customers is Rs 10,71,25,091/- which has not been established its genuineness and therefore it is treated as undisclosed cash credit u/s 68 and added to the total income of the assessee for A.Y 2018-19. This amount is to be taxed u/s 115BBE. Further, in view of the above discussion, I am satisfied that the penalty u/s 271AAB is attracted in this case. Therefore, penalty proceedings u/s 271AAB of the IT Act are separately initiated on this issue."
9.1 Thus, the AO has given general remarks about the non- production of PAN in certain cases without giving specific details of particular transactions where the assessee has not produced any supporting evidences. Further the AO has pointed out the discrepancies in six cases where the refund of advances is not supported by any documentary evidences however, the AO has not given details about the year in which the advances was received by the assesse and thereafter, the amount was refunded. Except these two objections the AO has not given any finding about the details produced by the assessee showing year-wise advances from the customers and also showing the opening balance as on 1st April 2017 of Rs.7,66,30,091/-. Even otherwise when the AO did not find any discrepancy in the remaining cases the addition ought to have Page 24 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
been restricted to amount where the AO found the discrepancies. The AO has completely ignored documentary evidences being subsequent sale deeds executed and duly registered establishing the transaction of sale of plot of land for which advances were received by the assesse and duly recorded in the books of account. The department has not disputed the fact that all these transactions were duly recorded in the books of account and return of income till the assessment year under consideration were also filed prior to the search and seizure action. The AO has given details of return of income filed by the assessee for each and every year at page no.2 of the assessment year and for the year under consideration the return of income u/s 139(1) was filed on 29.10.2018 whereas the search and seizure action was initiated on 04.01.2019. Therefore, the assesse already declared these transactions of advances received from the customers along with return of income filed much prior to the search and seizure action. Apart from sale deed executed subsequently and duly registered the assesse also filed copies confirmation of accounts, acknowledgment of income tax return, PAN, statement of account. These facts and record have been considered by the CIT(A) in para 4.4.2 to 4.4.3 as under:
"4.4.2. I have considered the facts mentioned in the assessment order and submission of the appellant. The ld. AO has made addition of Rs. 10,71,25,091/- on account of unexplained advances outstanding as on 31- 03-2018 by treating it as undisclosed cash credit under section 68 and taxed the above amount as per the provisions of section 115BBE of the Act. The appellant was required to provide the detail of advance received from customers alongwith documentary evidences in various years during the course of post search proceedings. The appellant provided year-wise detail Page 25 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
of advance received from customers but could not furnish the supporting documentary evidences during the course of post search proceedings. The ld. AO, during assessment proceedings again required the appellant to furnish supporting documentary evidences so as to substantiate the genuineness of the amount of advance received from customers. The appellant submitted various details in this regard which are also apparent from the para 5 of the assessment order. The appellant provided year-wise detail of advance received from customers outstanding for the period from 31-03-2012 to 31-03-2019 containing the name, address and PAN of the parties and the amount of advance received and outstanding for these years' along with the copy of registered sale deeds as executed subsequently, in cases where registry was done, and copy of confirmation of accounts, acknowledgement of income-tax returns/PAN card and bank statements, wherever available, of the parties from whom advance was received during the above years, in cases where registry was not done till date. However, the details submitted by the appellant were not found acceptable by the Ld. AO. In para 5.5. of the assessment order, the ld. AO has mentioned that "In view of the above discussion, the plea of the assessee is accepted that advance received by the assessee company in a particular year which was outstanding for several year which was included in the closing balance of advance. Thus, in AY 2018-19 (before the search date), closing balance of the advance received from customers is Rs.10,71,25,091/- which has not been established its genuineness and therefore it is treated as undisclosed cash credit u/s.68 and added to the total income of the assessee for A.Y.2018-19......." From the above, it is clear that closing balance of advances received as on 31.03.2017 is also included in the above amount. The amount to the extent of carry forwarded advances to the year under consideration can not be added in the year under consideration. As per the details submitted by the appellant before me as well as the ld. AO, opening balance of such amount is Rs.7,66,30,091/-.
Further, no adverse view has also been taken by the ld. AO on this issue in the earlier year(s). Accordingly, the ld. AO was not justified in considering amount pertaining to earlier for making addition in the year under consideration. I have gone through the material available on record to ascertain actual amount of advances received from customers which are part of the closing balance as on 31.03.2018. The working in this regard is as under:
Particulars Amount (In Rs.)
Opening Balance as on 01.04.2017 7,66,30,091/-
Less: Amount repaid during the year 39,00,000/-
Balance Amount of advances pertaining to 7,27,30,091/-
earlier years
Add: Amount of advance received during the F.Y. 3,43,95,000/-
2017-18
Balance as on 31-03-2018 10,71,25,091/-
Page 26 of 60
IT(SS)ANo.04/Ind/2023
Shiv Sagar Realmart P. Ltd.
The appellant has returned back advances to following persons for which necessary evidences have been submitted before me as well as the ld. AO:
Amount repaid during F.Y. 2017-18 S.No. Name of the customer Amount of advance repaid (In Rs.) 1 Chetan Kevlani 5,00,000/-
2 Dilip Kumar Paryani 3,00,000/-
3 Dilip Kumar S/o Sachhanand Paryani 4,00,000/- 4 Narang Cargo 20,00,000/-
5 Tekchand Paryani 3,00,000/-
6 Tekchand S/o Sachhanand Paryani 4,00,000/-
Total 39,00,000/-
Thus, the appellant gets relief of Rs.7,27,30,091/-. For the remaining amount of Rs.3,43,95,000/- ( Rs.10,71,25,091 - Rs. 7,27,30,091), being advances received from customers in the year under consideration, a detailed discussion is being made as under:
(i). I find following details on record in respect of advances received in the year under consideration:
Name of the Amount of Remarks
S.N customer advance (In
. Rs.)
1 Abdul 500000 The appellant had received amount of
Hussain and Rs. 5,00,000/- during FY 2016-17 and
Amina amount of Rs. 10,00,000/- was
Jawadwala received in the year under
Amina 500000 consideration. Amount was received
Jawadwala through banking channel. The
w/o Abdul appellant has filed confirmations, copy
Hussain of ledger account and copy of
registered sale deed which was
executed in FY 2020-21. Address and PAN have also been filed.
2 Ajab Hussain 500000 In this case, Rs. 25,00,000/- was received during FY 2016-17 through RTGS and Rs. 5,00,000/- has been received through banking channel in the year under consideration. Address and PAN have also been filed.
3 Shoaib Ali 400000 The appellant has filed confirmations, Tayybi s/o copy of ledger account and copy of Akbar Ali registered sale deed which was Page 27 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
Tayyabi executed in FY 2020-21. Address and PAN have also been filed. Amount was Mehdi 400000 received through banking channel.
Tayyabi s/o
Ibrahim
Tayyabi
ASIF Tayyabi 400000
s/o Saiffuddin
Tayyabi
Abdullah 400000
Tayyabi s/o
Mustanasir
Tayyabi
4 Alefia 750000 Total outstanding balance against this
Tankiwala customer has been shown at Rs.
13,04,000/- out of which amount of
Rs. 5,54,000/- was received in FY
2016-17. Amount was received
through banking channel. The
appellant has filed confirmations, copy of ledger account and copy of registered sale deed which was executed in FY 2020-21. Address and PAN have also been filed.
5 Nafeesa/Ali 750000 Total outstanding balance against this Asgar customer has been shown at Rs.
Tankiwala 12,50,000/- out of which amount of Rs. 5,00,000/- was received in FY 2016-17. The appellant has filed confirmations, copy of ledger account and copy of registered sale deed which was executed in FY 2020-21.
Address and PAN have also been filed.
Amount was received through banking channel.
6 Hussainee 1500000 Address and PAN have been Tankiwala submitted by the appellant.
Confirmation letter along with copy of ledger account have also been filed.
On perusal of ledger account for the FY 2020-21, it is found that out of total advances of Rs. 15,00,000/- (received on 09.05.2017 through banking channel), an amount of Rs.
11,46,592/- was returned back to the Page 28 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
customers between 15.07.2020 to 17.08.2020.
7 Alex 500000 Address and PAN have been Décor(Prop. submitted by the appellant.
Jagdish Confirmation letter along with copy of
Makhija) ledger account, bank statement and
copy of return of income of the
customer have also been
filed. Amount was received through banking channel.
8 Amiruddin Ali 600000 Address and PAN have been Lemonwala submitted by the appellant.
Confirmation letter along with copy of ledger account, bank statement of the customer have also been filed. Amount was received through banking channel.
9 Ashish 500000 Address and PAN have been Patwala submitted by the appellant.
Confirmation letter along with copy of ledger account, bank statement of the customer have also been filed. Amount was received through banking channel.
10 Ashok 750000 In this case, amount of Rs.
Mirchumal 12,00,000/- was received in FY 2011- Nihalchandani 12. The appellant has furnished address, PAN Confirmation letter (FY 2012-13 to 2018-19) along with copy of ledger account, bank statement and copy of return of income of the customer. Amount was received through banking channel. On perusal of confirmation letters, it has been found that substantial amount of advance was returned back during FY 2015-16.
11 Babji 800000 Address and PAN have been Aluminium submitted by the appellant. and Powder Confirmation letter along with copy of Coating ledger account have also been filed. Amount was received through banking channel. Amount of advance was returned back on 05.10.2020 to the customer.
Page 29 of 60IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
12 Bano Ali 2000000 Address and PAN have been
submitted by the appellant.
Confirmation letter along with copy of ledger account, and bank statement have also been filed. Amount was received through banking channel.
Amount of advance was returned back on during FY 2018-19 to the customer.
Amount was received through banking channel.
13 Chandra 1050000 Out of total advances of Rs.
Prakash 28,81,000/-, amount of Rs.
Torani 10,50,000/- has been received in the year under consideration. Address and PAN have been submitted by the appellant. Confirmation letter (From FY 2012-13 to 2018-19) along with copy of ledger account, copy of return of income and bank statement have also been filed. Amount was received through banking channel.
14 Deep 3400000 Address and PAN have been Cosmatics submitted by the appellant. and Surgical Confirmation letter along with copy of ledger account have also been filed. Amount was received through banking channel.
15 Fakhruddin 500000 Address and PAN have been Sailanawala submitted by the appellant. The appellant has filed confirmations, copy of ledger account and copy of registered sale deed which was executed in FY 2019-20. Amount was received through banking channel.
16 Farida 400000 Address and PAN have been Rajagarhwala submitted by the appellant. The appellant has filed confirmations, copy of ledger account and copy of registered sale deed which was executed in FY 2019-20. Amount was received through banking channel.
17 Akhtar Fidvi 1000000 Address and PAN have been & Marayyam submitted by the appellant. The Fidvi appellant has filed confirmations, copy of ledger account and copy of Page 30 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
registered sale deed which was executed in FY 2019-20. Amount was received through banking channel.
18 Girish 130000 Address and PAN have been Paraswani submitted by the appellant.
Confirmation letter along with copy of ledger account have also been filed. Amount was received through banking channel.
19 Munira w/o 2500000 Address and PAN have been Hasan Ali submitted by the appellant. The Tikiwala appellant has filed confirmations, copy of ledger account and copy of registered sale deed which was executed in FY 2020-21. Amount was received through banking channel.
20 Imdad 500000 Address and PAN have been Hussain submitted by the appellant. The appellant has filed confirmations, copy of ledger account. Advance was received through banking channel.
21 Idris Ali 1000000 Out of advance of Rs. 15,00,000/-,
Dewaswala amount of Rs. 10,00,000/- has been
received in the year under
consideration. Amount was received through banking channel. Address and PAN have been submitted. Copy of ledger account has also been submitted. Sale deed has been executed during FY 2020-21.
22 Kajal 100000 Address and PAN have been Wadhwani submitted. Copy of ledger account, confirmation letter have also been submitted. Amount has been received through banking channel.
23 Kavita 500000 Address and PAN have been Wadhwani submitted. Copy of ledger account, confirmation letter, bank account of the customer and return of income have also been submitted. Amount has been received through banking channel.
24 Krishna Sales 250000 Address and PAN have been Corporation submitted. Copy of ledger account, prop. Sumit confirmation letter and copy of return Yadav of income have also been submitted.
Page 31 of 60IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
Amount has been received through banking channel.
25 Mahesh 100000 Address and PAN have been Wadhwani submitted. Copy of ledger account, confirmation letter, copy of bank account and copy of return of income have also been submitted. Amount has been received through banking channel.
26 Manoj Talreja 375000 Address and PAN have been submitted. Copy of ledger account, confirmation letter, copy of bank account and copy of return of income have also been submitted. Amount has been received through banking channel.
27 Manoj 400000 Address and PAN have been Wadhwani submitted. Copy of ledger account, confirmation letter, copy of bank account have also been submitted.
Amount has been received through banking channel.
28 Murtuza 500000 Address and PAN have been Fakhri submitted. Copy of ledger account, confirmation letter have also been submitted. Amount has been received through banking channel. Entire amount of advance was repaid on 22.01.2020.
29 Mustanasir 700000 Address and PAN have been Malak & submitted. Copy of ledger account has Rashida also been submitted. Sale deed has Malak been executed during FY 2020-21.
Amount was received through banking channel.
30 Nizammuddin 800000 Address has been submitted. Copy of Bhai ledger account, confirmation letter have also been submitted. Amount has been received through banking channel. Entire amount of advance was repaid on 25.06.2018.
31 Nirmal Kumar 551000 Out of total outstanding amount of Torani Rs. 8,80,000/-, Rs. 5,51,000/- has been received in the year under consideration. Amount was received Page 32 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
through banking channel. Address and PAN have been submitted. Copy of confirmation letter, copy of bank statement of the costumer and copy of return of income have also been furnished.
32 Pooja Makhija 289000 Out of total outstanding amount of Rs. 8,89,000/-, Rs. 2,89,000/- has been received in the year under consideration. Address and PAN have been submitted. Amount was received through banking channel. Copy of confirmation letter, copy of bank statement of the costumer and copy of return of income have also been furnished.
33 Dr. Sheikh 800000 Address and PAN have been Kaid Johar & submitted by the appellant. The Yasmin Johar appellant has filed copy of ledger account and copy of registered sale deed which was executed in FY 2019-
20. Amount was received through banking channel.
34 Shakir Ali 1000000 Out of total outstanding amount of Lemonwala & Rs. 40,00,000/-, Rs. 10,00,000/- has Aamir been received in the year under Lemonwala consideration. Amount was received through banking channel. Address has been submitted. The appellant has filed copy of ledger account and copy of registered sale deed which was executed in FY 2019-20.
35 Star Veneer & 1250000 Out of total outstanding amount of Ply (Shabbir Rs. 18,50,000/-, Rs. 12,50,000/- has Thakarda) been received in the year under consideration. Amount was received through banking channel. Address and PAN have been submitted. The appellant has filed copy of ledger account and copy of registered sale deed which was executed in FY 2020- 21. 36 Sumit Traders 250000 Address and PAN have been submitted. Confirmation of account has also been filed. Amount has been Page 33 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
received through banking channel.
37 Vicky CA 200000 Confirmation of account has been Clien filed. Amount has been received through banking channel.
38 Vicky Lalwani 400000 Address, PAN and copy of return of income have been submitted. Copy of ledger account has also been filed.
Amount has been received through banking channel.
39 Vinod Sontani 200000 Copy of ledger account has been filed. Amount has been received through banking channel.
40 Zehra Shabbir 200000 Out of total outstanding amount of Hussain Rs. 5,00,000/-, Rs. 2,00,000/- has been received in the year under consideration. Amount was received through banking channel. Address and PAN have been submitted. The appellant has filed copy of ledger account, bank statement of the customer and copy of confirmation of account.
41 Abid Hussain 1400000 The appellant has filed confirmations, Lemonwala & copy of ledger account and copy of Zehrabai registered sale deed which was Bandukwala executed in FY 2019-20. Address and PAN have also been filed. Amount was received through banking channel.
42 Sabbir Ali 800000 Out of total outstanding amount of Rs. 16,00,000/-, Rs. 8,00,000/- has been received in the year under consideration. Amount was received through banking channel. The appellant has filed confirmations, copy of ledger account and copy of registered sale deed which was executed on 01.04.2021. Address and PAN have also been filed.
43 Bharti 100000 The appellant has filed confirmations, Wadhwani copy of ledger account. Amount was received through banking channel.
Address and PAN have also been filed.
Advance amount had been repaid in F.Y.2020-21.
Page 34 of 60IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
44 Shabbir 1500000 The appellant has filed confirmations, Husain Arif & copy of ledger account and copy of Nafisa registered sale deed which was Panbiharwala executed in FY 2020-21. Address and PAN have also been filed. Amount was received through banking channel.
Grand Total 3,43,95,00 0 Further, the ld. AO in para 5.3. of the assessment order has pointed out that in some cases, advance received did not match with the registered deed and in some cases neither registry was made nor any agreement existed. Ld. AO has also given few instances which has been satisfactorily replied by the appellant. I would like to reproduce the reply of the appellant against the discrepancies pointed out by the ld. AO:
Amount Advanc
paid to e
Correspondi
assessee adjuste
ng
company d in
S. Name of Remar explanation/
as registe
No parties k justification
advance red
of the
as per deed, if
appellant
ledger any (in
(in Rs.) Rs.)
The appellant
received an
amount of Rs.
14,00,000/-
from the
The
customer as
differen
advance
ce
towards
amount
Shri Abid booking of
of
Husain 43,15,40 35,15,4 Plot No. 40
1 advanc
Lemonwala 0/- 00/- (HV)during
e is not
/ Zehra bai the Financial
reflectin
Year 2017-18.
g in
The appellant
registry
sold the said
deed.
plot during
the Financial
Year 2019-20
for a
consideration
Page 35 of 60
IT(SS)ANo.04/Ind/2023
Shiv Sagar Realmart P. Ltd.
of Rs.
35,15,400/-
and balance
amount of
advance
except for an
amount of Rs.
3,00,000/-
was returned
back to the
customer.
Hence,
difference in
the amount of
advance
shown in
ledger and
amount as
reflected in
the registered
sale deed
stands duly
reconciled.
The amount of
The advance of
assesse Rs.
e 10,00,000/-
claimed was received
that the by the
amount appellant
has prior to
been Financial
returne Year 2012-13
M/s
10,00,00 No d but no and such
2 Abhishek
0/- registry any amount of
Builders
supporti advance was
ng repaid during
docume the Financial
nts has Year 2013-14
been itself. The
furnishe appellant also
d to filed
claim of confirmation
return. of accounts of
M/s Abhishek
Page 36 of 60
IT(SS)ANo.04/Ind/2023
Shiv Sagar Realmart P. Ltd.
Builders
(Prop. Shri
Shailendra
Mishra) before
the Assessing
Officer so as
to
substantiate
the fact that
the amount of
advance was
repaid during
the Financial
Year 2013-14.
It is pertinent
to mention
that out of the
amount of
advance of
Rs.
30,00,000/-
Rs shown as
30,00,0 outstanding
00/- in the books
was of accounts of
shown the appellant,
against an amount of
advanc Rs.
e but 25,00,000/-
Shri Ajab 30,00,00 No
3 the was received
Hussain 0/- registry
compan during the
y has Financial
not Year 2016-17
produce whereas the
d any balance
copy of amount of Rs.
agreem 5,00,000/-
ent only was
received
during the
year under
consideration.
However,
registered
sale deed
Page 37 of 60
IT(SS)ANo.04/Ind/2023
Shiv Sagar Realmart P. Ltd.
was not
executed with
the customer
since the
customer had
not paid the
balance
amount due
towards
purchase of
plot. It is
worth noting
that advance
of Rs.
30,00,000/-
only was
received from
the said
customer
against
booking of
Plot No. 128
admeasuring
3,619 sq fts
for a total
consideration
of Rs.
47,12,000/-
(tentative) and
registered
sale deed
was not
executed
since the
balance
amount of Rs.
17,12,000/-
was not
received from
the customer.
Rs It is pertinent
Shri Ajab
20,00,0 to mention
Hussain/ 20,00,00 No
4 00/- that no
Shabbir 0/- registry
was amount of
Hussain
shown advance was
Page 38 of 60
IT(SS)ANo.04/Ind/2023
Shiv Sagar Realmart P. Ltd.
against received by
advanc the appellant
e but from the said
the customer
compan during the
y has year under
not consideration.
produce Rather, the
d any entire amount
copy of of advance of
agreem Rs.
ent 20,00,000/-
shown as
outstanding
in the books
of accounts of
the appellant
was received
during the
Financial
Year 2018-19.
However,
registered
sale deed
was not
executed with
the customer
since the
customer had
not paid the
balance
amount due
towards
purchase of
plot. It is
worth noting
that advance
of Rs.
20,00,000/-
only was
received from
the said
customer
against
booking of
Page 39 of 60
IT(SS)ANo.04/Ind/2023
Shiv Sagar Realmart P. Ltd.
Plot No. 8
admeasuring
1,890 sq fts
for a total
consideration
of Rs.
24,61,000/-
(tentative) and
registered
sale deed
was not
executed
since the
balance
amount of Rs.
4,61,000/-
was not
received from
the customer.
It is pertinent
to mention
that the
amount of
advance of
Rs Rs.
5,00,00 5,00,000/-
0/- was received by
shown the appellant
against from M/s Alex
advanc Decor was
e but repaid during
5,00,000 No the the Financial
5 Alex Decore
/- registry compan Year 2020-21.
y has However,
not since the
produce amount of Rs.
d any 5,00,000/-
copy of was received
agreem during the
ent year, the
appellant filed
copy of
confirmation
of accounts,
acknowledge
Page 40 of 60
IT(SS)ANo.04/Ind/2023
Shiv Sagar Realmart P. Ltd.
ment of
income-tax
return and
bank
statement of
the customer
so as to
satisfactorily
discharge the
primary onus
cast upon it
under section
68 of the Act.
It is pertinent
to mention
that out of the
amount of
advance of
Rs.
13,00,000/-
shown as
Rs
outstanding
13,00,0
in the books
00/-
of accounts of
was
the appellant,
shown
an amount of
against
Rs.
advanc
6,00,000/-
e but
AmiruddinL 13,00,00 No was received
6 the
emonwala 0/- registry during the
compan
year under
y has
consideration
not
whereas the
produce
balance
d any
amount of Rs.
copy of
7,00,000/-
agreem
was received
ent
during the
Financial
Year 2018-19.
It is pertinent
to mention
that majority
of the amount
of advance
Page 41 of 60
IT(SS)ANo.04/Ind/2023
Shiv Sagar Realmart P. Ltd.
was repaid
during the
Financial
Year 2020-21.
However,
since the
amount of
advance was
received from
the said
customer, the
appellant filed
copy of
confirmation
of accounts,
PAN card and
bank
statement of
the customer
so as to
satisfactorily
discharge the
primary onus
cast upon it
under section
68 of the Act.
From the above details, it is abundantly clear that the appellant had furnished ample evidences to prove genuineness of advances received from the customers before the ld. AO. The ld. AO has not discredited the same by bringing contrary material. No enquiry has been conducted on the basis of information furnished by the appellant. In the circumstances, genuineness of advances received in the year consideration has been proved beyond doubt. No addition in this regard was required to be made by the ld. AO. In view of these discussion, the appellant gets relief of Rs. 3,43,95,000/- being advances received in the year under consideration.
4.4.3. In view of the above discussion, addition of Rs.10,71,25,091/- is, hereby deleted. Appeal on the above grounds is allowed.
Page 42 of 60IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
9.2 The CIT(A) has reproduced the details of the transactions subsequent executed through sale deeds as well as the other supporting evidenced filed by the assesse in the shape of PAN, Bank Account statement, return of income etc. The revenue has not brought any contrary fact or material to dispute the correctness of these facts recorded by the CIT(A). The dispute raised by the revenue before the Tribunal is only regarding the advances of Rs.3,43,95,000/- received during the year under consideration as department has not disputed the opening balance of Rs.7,66,30,091/-. Further in case of Shree Ganesh Realmart vs. DCIT in ITANo.30 & 31/Ind/2022. The tribunal while dealing the an identical issue in the appeal of the revenue has upheld the order of the CIT(A) in para 20 to 23 as under:
"20. In this ground, the revenue claims that the CIT(A) has erred in deleting the addition of Rs. 1,45,12,645/- made by AO u/s 68 on account of unexplained cash credits.
21. Ld. DR for revenue carried us to Para No. 3 of assessment-order and submitted that the AO has made addition on the basis that the assessee had received advances from customers which remained outstanding for several years. The AO has taken amount of such advances at Rs. 1,45,12,645/- and made addition u/s 68. Ld. DR relied upon order of AO.
22. Per contra, Ld. AR for assessee drew us to the order passed by CIT(A). He submitted that the CIT(A) has passed a well-reasoned order and thereafter deleted the addition. The said order is re-produced below for an immediate reference:Page 43 of 60
IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.Page 44 of 60
IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.Page 45 of 60
IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.Page 46 of 60
IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.Page 47 of 60
IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.Page 48 of 60
IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
23. On perusal of order of CIT(A), it is manifest that the Ld. CIT(A) has clearly noted that the amount of Rs. 1,45,12,645/- picked by AO is merely a closing balance on 31.03.2018, which includes opening balances of advances received in earlier years except a sum of Rs. 6,00,000/- received during the year from one Shri Aman Prajapati. Thus, the CIT(A) has deleted addition primarily by holding that no addition can be made in current year for the advances received in earlier year. As far as the amount of Rs. 6,00,000/- received from Shri Aman Prajapati is concerned, the CIT(A) has given finding regarding genuineness of this receipt.
During hearing, Ld. AR carried us to several pages of Paper-Book to demonstrate (Page 107, 115-116, 125, 127-131) that the observations/findings noted by CIT(A) are very correct and authentic. Ld. DR could not rebut or controvert the order passed by Ld. CIT(A). Being so, we do not find any reason to interfere the order of first-appeal; the same is hereby upheld. This ground is, therefore, dismissed. "
9.3 Therefore, in case of sister concern of the assesse an identical issue has been considered by this Tribunal and did not find any error or illegality in the order of the CIT(A). Accordingly in the facts and circumstances of the case as discussed above we do not find any error or illegality in the impugned order of the CIT(A) qua this issue same is upheld.Page 49 of 60
IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
10. Ground no.5 is regarding the addition made by the AO on account of deposit in the bank account which was deleted by the CIT(A). The Ld. DR has submitted that during the search proceedings it was found that the assesse has deposited huge cash in the bank account including during demonetization period. Though the assessee has explained source of cash as sales/booking and other proceeds as well as out of cash withdrawn earlier from the bank account and claimed that the deposit was made out of the cash available in the regular books of account however, the assesse has failed to produce any supporting evidence for the claim of opening balance of cash. Therefore, the assessee failed to establish the claim of opening balance of cash as well as availability of cash out of sales/booking/other proceeds despite several opportunities given to the assesse. Ld. DR has pointed out that neither cash book was found during the search nor any details regarding sales/bookings were made. Therefore, the assesse failed to establish the source of cash deposited in the bank account to the extent of Rs.4,77,287/- for the year under consideration. He has relied upon the order of the AO.
11. On the other hand, Ld. AR has submitted that the assesse has shown the opening cash balance as on 01.04.2017 at Rs.4,15,653/- and also produced bank account details showing withdrawn of cash during the year of Rs.33,12.000/-, cash sales/booking advance of Rs.61,634/- out of which cash deposit in the bank account is made during the year to the tune of Rs.28,89,000/- and cash payment made during the year is Rs.3,26,736/- which shows that the Page 50 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
assessee was having sufficient cash in the books of account of the assesse for deposit made during the year. Even the assesse was having a closing balance as on 31.03.2018 at Rs.5,73,551/-. The AO has not disputed all these details of cash withdrawal during the year as well as deposit made during the year which itself shows that the assesse was having sufficient cash for making deposits. Therefore, the addition made by the AO of Rs.4,77,287/- is not justified. Ld. AR has also referred to the details of the opening cash balance for the assessment year 2016-17 onwards and submitted that there is no discrepancy found in the opening and closing cash balances of the preceding years which proves the claim of the assesse regarding opening cash balance for the year under consideration. The assesse also filed supporting evidences along with list of parties from whom cash of Rs.61,634/- was received during the year under consideration on account of booking advances along with copy of the leger account, confirmation of the parties and subsequent registered sale deeds duly filed before the AO. He has referred to page no.171 to 242 of the paper book and submitted that all these relevant records are placed in the paper book which was filed before the AO. He has relied upon order of the CIT(A) as well as the decision of this tribunal in case of the in case of Shree Ganesh Realmart vs. DCIT in ITANo.30 & 31/Ind/2022.
12. We have considered the rival submissions as well as relevant material on record. The AO has made addition of Rs.4,77,287/- on account of cash deposit in the bank account during the year. The main reason for making this addition on account of unexplained Page 51 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
cash deposit in the bank was not accepting the claim of opening balance of cash in the books of the assesse. It is pertinent to note that the assessee has produced the year-wise details of opening cash balance, cash received and cash utilized during the years from the A.Y.2016-17 to 2018-19. The details of which are reproduced by the CIT(A) in the impugned order. Therefore, the assesse produced the details of opening cash balance of each year, cash received/withdrawal from bank account as well as cash expenditure during the each year and then shown the closing balance of particular year as well as opening balance of subsequent year which shows that the opening balance of cash as on 01.04.2017 was Rs.4,15,653/-. After considering all these details the CIT(A) has decided this issue in para 4.3.3 to 4.3.5 as under:
"4.3.3. I have duly considered the facts mentioned in the assessment order and submission of the appellant and found that the ld. AO has made addition of Rs. 4,77,287/- on account of unexplained cash credit u/s 68 of the Act. The ld. AO has treated following items and amounts as unexplained:
S. No Source of cash deposited Amount [in Rs.] 1 Out of opening balance of cash 4,15,653/-
2 Out of sales/ bookings/ other 61,634/-
proceeds
Total 4,77,287/-
During assessment proceedings explanations regarding cash deposits were called for. The ld. AO found that during search proceedings the appellant was failed to submit supporting evidences regarding opening cash balance (Rs. 4,15,653/-) and out of sales/booking/other proceeds (Rs. 61,634/-) and for this reason the addition amounting to Rs. 4,77,287/- was made. The ld. AO in para 4 of the assessment order has dealt with this issue. The ld. AO has also mentioned that during the assessment proceedings the appellant did not furnish the supporting Page 52 of 60 IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
documents in respect of "Out of sales/ bookings/ other proceeds". I find the ld. AO is not factually correct. On perusal of reply of the appellant reproduced in the body of assessment order, it is evident that the appellant had submitted complete detail alongwith all the supporting evidences before the ld. AO. Therefore, the conclusion drawn by the ld. AO is not factually correct. The appellant before the ld. AO as well as before me has explained that cash was deposited in bank account out of sales/booking advance/other cash receipts and opening cash balance available in regular books of accounts. In support appellant has filed necessary evidences which were filed before the ld. AO also. On perusal of evidences on record, which has also been furnished before the ld. AO, it has been observed that there was a closing cash balance of Rs. 4,15,653/- as on 31.03.2017 which has been generated out of cash withdrawal from bank account, sales, booking advance. The brief details as submitted before the Ld. AO and me are under:-
S. No Particulars Amount [in Remarks
Rs.]
1 Financial Year 2015-16 (Assessment Year 2016-17)
Duly verifiable from
Opening Balance of the audited
1.1 Cash as on 01-04- 10,32,898 financial statements
2015 and also from the
cash book
Sources of Cash
Add
Inflow
Accepted by the
Cash withdrawn
Department itself and
1.2.1 from the bank 1,06,53,800
duly verifiable from the
account
bank statement
Duly substantiated
Cash Sales, Booking
with the requisite
advance received
1.2.2 2,80,600 supporting
from customers and
documentary
other Cash Receipts
evidences
Sources of Cash
Less
Outflow
Accepted by the
Cash deposited in Department itself and
1.3.1 1,10,55,600
the bank account duly verifiable from the
bank statement
Payments made in Duly verifiable from
1.3.2 6,98,273
cash the cash book
Closing Balance of The closing balance
1.4 2,13,425
Cash as on 31-03- of cash is arrived at
Page 53 of 60
IT(SS)ANo.04/Ind/2023
Shiv Sagar Realmart P. Ltd.
2016 after giving the
effect of cash
inflows/ cash
outflows to the
opening balance of
cash
2 Financial Year 2016-17 (Assessment Year 2017-18)
The opening balance
merely represents
the closing balance
of the preceding
year which is
Opening Balance of
arrived at after
2.1 Cash as on 01-04- 2,13,425
giving the effect of
2016
cash inflows/ cash
outflows during the
preceding year to
the opening balance
of that year
Sources of Cash
Add
Inflow
Accepted by the
Cash withdrawn
Department itself and
2.2.1 from the bank 60,79,000
duly verifiable from the
account
bank statement
Duly substantiated
Cash Sales, Booking
with the requisite
advance received
2.2.2 1,33,411 supporting
from customers and
documentary
other Cash Receipts
evidences
Sources of Cash
Less
Outflow
Accepted by the
Cash deposited in Department itself and
2.3.1 46,47,000
the bank account duly verifiable from the
bank statement
Payments made in Duly verifiable from
2.3.2 13,63,183
cash the cash book
The closing balance
of cash is arrived at
Closing Balance of after giving the
2.4 Cash as on 31-03- 4,15,653 effect of cash
2017 inflows/ cash
outflows to the
opening balance of
Page 54 of 60
IT(SS)ANo.04/Ind/2023
Shiv Sagar Realmart P. Ltd.
cash
I have treated the cash flow of the appellant for the earlier years as genuine in Appeal No. CIT (A)-3, Bhopal/IT-12146/2015-16/ Dated: 18/02/2023 and Appeal No. CIT (A)-3, Bhopal/IT-13037/2016-17/ Dated 18/02/2023. Therefore, opening balance for the year under consideration is also treated as genuine. Therefore, ld. AO is not justified in treating the opening cash balance as unexplained. Hence, making addition of opening cash balance in the year under consideration is not found justifiable.
4.3.4. Regarding amount of Rs.61,634/- received on account of cash sales/booking advance/other receipts etc., the appellant, before me as well as the ld. AO (evident from the assessment order) filed necessary evidences to substantiate the amount of cash received. All the transactions of cash receipts are fully recorded in books of accounts and therefore, the genuineness of the cash receipts cannot be doubted. However, ld. AO has not rejected the books of account by bringing any contrary material to discredit the entries made in the books of account. In the circumstances, ld. AO without any basis has treated the said amount as unexplained which cannot be approved.
4.3.5. In view of the above discussion and documentary evidences on record, it can safely be held that the ld. AO erred in not considering the evidences furnished by the appellant and making addition without pointing out any defect in the books of account during assessment proceedings. Hence, addition made by the ld. AO u/s 68 of the Act amounting to Rs.3,46,836/- is directed to be deleted. Appeal on this ground is allowed."
12.1 The department has not pointed out any discrepancies in these details which were reproduced by the CIT(A) and considered in deciding this issue. We further note that this Tribunal in case of in case of Shree Ganesh Realmart vs. DCIT in ITANo.30 & 31/Ind/2022 has considered an identical issue in para 24 to 28 as under:
"24. In this ground, the revenue claims that the CIT(A) has erred in deleting the addition of Rs. 9,04,623/- made by AO u/s 68 on account of unexplained cash deposits in bank accounts.Page 55 of 60
IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
25. Ld. DR for revenue carried us to Para No. 4, sub-Para 4.3 and submitted that the AO has made addition for the reason that the assessee could not establish the source of deposits made in Bank A/c. She relied upon order of AO and urged to uphold addition.
26. Per contra, Ld. AR for assessee submitted that there is a serious mistake in the order of AO. He carried us to Para 4.1 of assessment-order where the AO has noted that the deposit in Bank was Rs. 1,05,000/-. Then, Ld. AR carried us to Para No. 3.1 of the notice dated 01.12.2020 u/s 142(1) issued by AO to assessee wherein the AO queried the assessee about the source of deposit of Rs. 1,05,000/- in bank a/c. Thus, Ld. AR submitted that the amount of deposit in bank a/c was Rs. 1,05,000/- only. As far as the figure of Rs. 9,04,623/- picked by AO is concerned, Ld. AR submitted that it was sum total of opening cash of Rs. 7,98,585/- and cash of Rs. 1,06,038/- received back from Shri Sunny Choudhary out of money given to him for deposit of TDS. Ld. AR submitted that the sum of Rs. 9,04623/- is inflow and not outflow. Ld. AR carried us to Page No. 120-121 of Paper-Book where a table showing cash 'inflow-outflow' filed by assessee to AO during assessment-proceeding clearly shows these figures. In nutshell, Ld. AR submitted that the correct amount of deposit in Bank A/c was Rs. 1,05,000/- and the same was met out of the sum of Rs. 9,04,623/- available with assessee. Hence, the AO has wrongly made addition. But, however, the CIT(A) has carefully considered this issue in his order and rightly deleted the addition.
27. We have considered rival submissions of both sides and perused the orders of lower-authorities. At first, we re-produce the order passed by CIT(A) in this regard:Page 56 of 60
IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.Page 57 of 60
IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.Page 58 of 60
IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.Page 59 of 60
IT(SS)ANo.04/Ind/2023 Shiv Sagar Realmart P. Ltd.
28. We agree that the order passed by Ld. CIT(A) corroborates with the submissions made by assessee before AO during assessment-proceeding.
We do not find any infirmity or fallacy in the order of CIT(A); the same is hereby upheld. This ground is also dismissed."
12.2 Accordingly in view of the facts discussed above as well as order of this tribunal in case of group concern Shree Ganesh Realmart vs. DCIT in ITANo.30 & 31/Ind/2022, we do not find any error or illegality in the impugned order of the CIT(A) qua this issue, the same is upheld.
13. In the result, the appeal of the revenue is dismissed.
Order pronounced in the open court on 17.10.2024.
Sd/- Sd/-
(B.M. BIYANI) (VIJAY PAL RAO)
Accountant Member Judicial Member
Indore,_ 17.10.2024
Patel/Sr. PS
Copies to: (1) The appellant
(2) The respondent
(3) CIT
(4) CIT(A)
(5) Departmental Representative
(6) Guard File
By order
UE COPY
Sr. Private Secretary
Income Tax Appellate Tribunal
Indore Bench, Indore
Page 60 of 60