Suncity Hitech Projects Pvt. Ltd., New ... vs Department Of Income Tax

DCIT vs Suncity Hitech Projects Pvt. Ltd., Cent. Circle-1 N-49, 1st Floor, Room No.322,3rd Floor, ARA Connaught Place, Centre, Jhandewalan Extn., New Delhi New Delhi AAJCS5668Q (APPELLANT) (RESPONDENT)

Appellant by Sh.Ramesh Chandra, CIT DR Respondent by Sh.Ved Jain, CA

Date of Hearing 25.03.2015 Date of Pronouncement 27.05.2015

ORDER

PER DIVA SINGH, JM

By the present appeal filed by the Revenue the correctness of the order dated 14/1/2013 of CIT(A) III, New Delhi pertaining to 2007-08 assessment year has been assailed on the following grounds:-

"1. On the facts and in the circumstances of the case, the CIT(A) has erred in deleting the disallowance of Rs.15,04,300/- made by the Assessing Officer u/s40A(3) of the Income Tax Act, being 1/5th of total expenditure of Rs.75,21,500/-incurred otherwise than by crossed cheque.

2. On the facts and in the circumstances of the case, the CIT(A) has erred in deleting the addition of Rs. 56,22,088/- made on account of undisclosed income u/s of the Income Tax Act, 1961.

3. The order of the CIT(A) is erroneous and is not tenable on facts and in law.

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4. The appellant craves leave to add, alter or amend any/all of the grounds of appeal before or during the course of the hearing of the appeal."

2. The relevant facts of the case are that the assessee company is a group company of Suncity Group of companies dealing with development of real estate projects in various parts of India. The group is stated to be involved in conceiving and executing real estate projects such as Township, Group housing, Luxury Apartments, Shopping Malls and Office Complexes.

3. A perusal of the record shows that return disclosing net loss of Rs.1,20,760/- was originally filed by the assessee. Subsequently notice u/s 153A was issued to the assessee pursuant to search u/s 132 conducted on the assessee on 25/9/2008 . In response thereto, the assessee again filed the return on 2/6/2010 declaring a loss of Rs.1,20,716/-. The record shows that the AO considering the seized materials in regard to the purchase of land at Mathura for the development of Real Estate Project observed that cash payment exceeding Rs.20,000/- totaling to Rs.75,21,500/- had been made. Accordingly 20% of the said payment was disallowed u/s 40A(3) resulting in an addition of Rs.15,04,300/-.

4. Against this action, the assessee went in appeal before the First Appellate Authority. Before the CIT(A), it was submitted that the Assessing Officer has not addressed the facts correctly. Addressing the facts it was submitted that the assessee had purchased land measuring 175.2342 acres for Rs. 15,60,77,500/- out of which payment in cash amounting to Rs.72,70,500/- was effected instead of Rs.75,21,500/- as considered by the AO. It was further stated that the payments were stated to be made for "bayana" and were made outside the banking hours on holidays etc. The error in the total amount was pointed out in the context of the instances cited at serial no. 7, 19, 21 & 22 by the assessing officer at page 2 of his order.

4.1. Addressing the need and necessity for making the payments in cash of Rs.72,70,500/- in excess of Rs.20,000/- the following submissions were advanced on behalf of the assessee:-

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".......In the present case cash payment of Rs.72,70,500/- made in excess of prescribed limits of Rs. 20,000/- were genuine on account of following:-

(i) The transaction of land purchase was supported by registered documents which were executed before the Sub-Registrar.

(ii) The cash payments were made to those persons to whom payments were also made through account payee cheques and these cheque payments accounts for more than 95% of the total value of transactions. Therefore identity of the persons was established beyond any doubt.

(iii) The genuineness of the transactions were also not disputed by the department.

(iv) These payments were made as advance (bayana) to farmers for purchase of agricultural land. These payments were made in cash as these were made outside the banking hours. These were made to persons with whom the assessee company 'had no transaction prior to making of payment in cash. Due to business compulsions, these payments were made in cash. The payment of 'bayana' by cheque was not practicable and would have caused genuine difficulty to the assessee company. Hence these payments were made in cash for business expediency."

4.2. The facts were claimed to be identical to the facts considered in the case of a sister concern in the name of Vansidhar Projects Ltd. as herein also no deduction had been claimed for this expenditure.

5. The CIT(A) considering the explanation accepted the claim that disallowance if any, could have been restricted only to 14,54,100/- i.e 20% of Rs.72,70,500/- and not Rs.75,21,500/-. Further relying upon the order dated 7/12/2007 in ITA 1973/Del/2012 in the case of Vansidhar Projects, he held that the provisions of Section 40A(3) in the peculiar facts would not apply.

6. Aggrieved by this, the Revenue is in appeal before the Tribunal.

7. The Ld. CIT DR relying upon the assessment order submitted that the facts taken into consideration by the CIT(A) have not been confronted to the Assessing Officer. The authorized representative of the assessee, on the other hand, submitted that the issue is fully covered by the order of the Tribunal in the case of Vansidhar Projects and facts are identical. It was further submitted that the inaccuracies in holding that payment in excess of Rs.20,000/- totaling Rs.72,70,500/- instead of Rs.75,21,500/- have been brought out in the impugned order and have not been rebutted by the Revenue. It was also

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submitted by him that on facts the CIT(A) has been very fair as he has held in para 6.3 that as and when the claim of expenditure would be made by the assessee, the AO would be free to decide about disallowance of the same in accordance with law. Accordingly it was questioned how the Revenue could be aggrieved.

8. We have heard the rival submissions and perused the material available on record. On a consideration thereof, we find that the assessee before the CIT(A) canvassed that the figure of Rs.75,21,500/- taken by the Assessing Officer as sum total payments exceeding Rs.20,000/- is wrong. On account of the inaccuracies brought out in pages 6 to 7 of the impugned order qua serial No.7, 21, 22 & 19, it has been submitted that the amount should have been Rs. 72,70,500/- as per the details brought out in pages 10-12 of the impugned order. A perusal of the same shows that these facts were never confronted by the CIT(A) to the AO. It is further seen that the assessee's claim has been that these payments were "Bayana" "token" money in cash outside the banking hours for sales effected to parties ultimately to whom major payments were made by cheque payments. The claim remains unsupported on record as the assessee also pleads that no expenditure has been claimed in the year under consideration. None of these facts have been confronted to the AO. Facts not brought out in the assessment order namely that the assessee had purchased a land measuring 175.432 acres for Rs.15,60,77,500/- and in para 6.2 the CIT(A) has taken the fact that "from the records and evidence available that upto the assessment year 2007-08 closing work in progress in land to the tune of Rs.18,13,70,146/- had been shown which comprises of opening work in progress, purchases and development cost but no amount has been claimed as expenditure in the year under consideration" is a finding of fact which was not confronted to the AO in the light of multi-faceted arguments advanced. None of these facts are coming out from the assessment order and in the absence of the correctness of the finding available on record being established, we are of the view that blindly relying upon the order of the CIT(A) in the case of the issue being covered by the decision of the ITAT in the case of Vansidhar Projects (cited

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supra) would not be appropriate. The facts therein would have been to be looked into by the ITAT. Accordingly in view of the above, we are of the view that in the peculiar facts and circumstances, the issue needs to be restored to the file of the AO. The impugned order is set aside and it is restored back to the file of the AO to decide the same afresh by way of a speaking order in accordance with law. Needless to say that the assessee shall be afforded a reasonable opportunity of being heard. Accordingly, Ground No.-1 of the Revenue is allowed for statistical purposes.

9. The second issue agitated by the Revenue in the present appeal is found to be addressed in para 5 of the assessment order. A perusal of the same shows that the Assessing Officer referring to the seized material Annexure A-1 party SCE Pages 15-18 observed that there were certain cash deposits in assessee's bank accounts maintained with Oriental Bank of Commerce. The explanation of the assessee that these were from withdrawals made from their HDFC Bank Account was not accepted by the AO, on the ground that no proof had been led by the assessee to show that the amount were not utilized elsewhere. Further in view of the fact that no cash flow statement was filed in support of the claim made, the explanation offered was rejected and addition of Rs.56,22,088/- was made.

10. Aggrieved by this the assessee went in appeal before the CIT(A) re- iterating the submissions advanced before the CIT(A). It was explained that the source stood disclosed and infact cash was withdrawn from various banks amounting to Rs.1,97,00,000/- and cash deposits were only Rs.86,90,000. It was claimed that for purchases effected in Mathura withdrawals were made at Head Office Delhi Branch which were deposited in the Bank at Mathura as and when there was a need. The utilization of the funds was claimed to be thus explained.

11. Considering the explanation the CIT(A decided the issue in the following manner:-

8. "I have gone through the submissions of appellant, the facts on record & contained in paper book and have also perused the AO's order

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and considered the decision relied upon both by the appellant and the AO.

8.1. On verification of the contention of the appellant company that cash deposits of Rs.56,22,088 in OBC bank account were made out of cash withdrawals from HDFC bank account is found to be correct.

Further the contention of the appellant deserves to be accepted that since both these bank account have been duly incorporated in the audited annual accounts, the deposits in these bank accounts can not be termed as investment made outside the books of accounts. 8.2. Further I also find that the explanation given by the appellant company with regard to its source of cash deposit of Rs.56,22,088 in OBC bank account at Mathura being made out of cash withdrawal from HDFC bank account at new Delhi found to be reasonable and correct. 8.3. I find from the fact and evidence on record that the AO has not brought any material on record which could even remotely suggest that the appellant company has made any investment outside its books of account/which was not reflected in its audited annual accounts. In the absence of any such material addition can not be sustained.

Hence the addition of Rs.56,22,088 made by AO is here by deleted and appellant gets a relief of Rs.56,22,088/-"

12. Aggrieved by this, the Revenue is in appeal before the Tribunal. The Ld. CIT DR submitted that the findings and observations of the AO spelt out clearly in the assessment order have not been dealt with specifically by the CIT(A). It was his submission that the issue could have been addressed only by way of a cash flow statement which admittedly has not been done. It was his submission that the CIT(A) in fact has proceeded as though the Assessing Officer does not exist and the CIT(A) does not need to deal with the findings recorded in the assessment order. The issue it was submitted needs to be set aside and the addition may be upheld.

13. The Ld.AR on the other hand, relying upon the impugned order submitted that the facts demonstrate that the assessee at the relevant point of time effected the withdrawals in one bank account and made deposits in the other as per the needs. The dates were claimed to be reasonably close and the arguments that they were utilized for the purchases made at Mathura is consistently on record. Accordingly relying on the same, it was his submission that ht impugned order deserves to be upheld.

14. We have heard the rival submissions and perused the material available on record. A perusal of the explanation filed by the assessee before the AO as

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per para 5.1 extracted in the assessment order demonstrates that the assessee submitted that the assessee as per record had withdrawn Rs.1.15 crores and it is out of this Rs.86.90 lacs were transferred to the Oriental Bank of Commerce Bank at Mathura. A perusal of page 16 of the impugned order shows that the assessee's claim was that infact total cash withdrawn from the banks was Rs.1,97,00,000/- and the amounts found deposited were only Rs.86.90 lacs. The assessee has also taken the plea that this was for disbursement of the funds for the purchases at Mathura. It has not been explained as to why these amounts withdrawn needed to be deposited in cash in Mathura as the transaction could have been done intra bank. Further no evidence appears to have been led before the CIT(A) by way of evidence to explain that there was any specific need at Mathura on a specific date when the balance in Oriental Bank of Commerce did not have sufficient funds to honour the cheques. The linkage without the dates by way of payments by cheque for sale on a specific date in Mathura due to inadequacies in the bank account at Mathura has not been attempted. The said facts and evidence as has rightly been observed by the AO can be demonstrated by way of a cash flow statement relating the same to the instances of sale needs to be established and it is only then it can be considered whether the amounts were to be added u/s 69 or not. In the absence of relevant evidence on record, the afore-quoted finding of the CIT(A) is set aside and the issue is restored back to the file of the AO by allowing Ground No.-2 of the Revenue. The AO shall re-consider the issue afresh after giving the assessee a reasonable opportunity of being heard and decide the same in accordance with law.

15. In the result, the appeal of the Revenue is allowed for statistical purposes.

The order is pronounced in the open court on 27th of May , 2015.

Sd/- Sd/- (T. S. KAPOOR) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 27/05/2015 *R. Naheed/Amit Kumar*

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Copy forwarded to:

1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT

ASSISTANT REGISTRAR ITAT NEW DELHI

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