Amount advanced in earlier year and received back in current year cannot be treated as unexplained cash credit

JCIT Vs Radhe Developers (India) Ltd. (ITAT Ahmedabad)

In the case on hand, the assessee has received a sum of Rs. 3.59 crore from Shri Kanjibhai Desai which was treated as unexplained cash credit under section 68 of the Act by the AO. However, the learned CIT (A) was pleased to delete the addition made by the AO by observing that the assessee has complied with the conditions as specified under section 68 of the Act.

First of all, we find that the assessee has shown an advance in the immediate preceding assessment year as on 31 March 2010 in the name of Shri Kanjibhai Desai amounting to Rs. 23.02 crore. This fact has not been disputed by the AO which is evident from the audited financial statement of the assesse.

It was pointed out by the learned AR before us that the amount received from the land aggregator namely Shri Kanjibhai Desai represents the own money of the assessee which was advanced on the earlier occasion and the same was returned in the year under consideration on account of non-execution of the land deals. The learned DR before us has not brought any iota of evidence suggesting that money received by the assessee does not represent the money which was advanced by it on the earlier occasion. Thus it can be safely inferred that the amount received by the assessee represents its own money which was advanced in the earlier year and this fact was also accepted by the Revenue. Accordingly, we are of the view that there cannot be any question for attracting the provisions of section 68 of the Act in the hands of the assessee for receiving its own money as discussed above.

FULL TEXT OF THE ORDER OF ITAT AHMEDABAD

The captioned appeal is filed by the Revenue and the CO is filed by the Assessee against the order of the Learned Commissioner of Income Tax (Appeals)- 11 Ahmedabad, [Ld. CIT (A) in short] dated 05/03/2018 arising in the matter of assessment order passed under s. 143(3) r.w.s. 147 of the Income Tax Act, 1961 (here-in-after referred to as “the Act”) dated 05/02/2016. The assessee has filed Cross Objection in the Revenue’s appeals bearing ITA no. 96/AHD/2019 for the Assessment Year 2011-2012.

2. The only issue raised by the Revenue is that the learned CIT (A) erred in deleting the addition made by the AO for Rs. 3.59 crores on account of unexplained cash credit under section 68 of the Act.

3. The facts in brief as arising from the order of the authorities below are that the assessee in the present case is a limited company and engaged in the business of real estate development. The assessee in connection with its business activities, of acquiring land near Maudi in Gandhinagar district appointed Shri Kanjibhai Desai and Jasmine J Thakkar as land aggregator. Accordingly it makes payment to these land aggregators directly or through its associates through banking channel/ cash. Subsequently, the land aggregators used to withdraw money from the bank for making the advance payment to acquire the lands from the agriculturist. However, wherever the deal for the acquisition of land from the agriculturist has not been matured/materialized due to any reason, the land aggregators used to deposit the cash in their bank accounts which used to be subsequently transferred to the assessee. Thus it was contended by the assessee that whatever money it has received from the land aggregator namely Shri Kanjibhai Desai amounting to Rs. 3.59 crore in the year under consideration represents its own money which was advanced in the earlier year. Accordingly, the question of treating the sum received by it as unexplained cash credit under the provisions of section 68 of the Act does not arise. Similarly, the assessee also contended that it has discharged its onus by proving the identity of Shri Kanjibhai, genuineness of transaction and credit worthiness by explaining the source of cash deposit in the bank account of Shri Kanjibhai.

3.1 However, the AO found that the group company of the assessee namely M/s Radhe Consultancy has given cash to the land aggregator namely Shri Kanjibhai Desai which was returned to the assessee. In this regard, the AO was of the view that all the 3 parties were maintaining and operating the bank account in the same bank namely Bhuj Mercantile Co-operative Bank Ahmedabad. Thus there was no occasion/necessity for the group company to hand over the cash to the land aggregator. As such the land aggregator after receiving the cash from the group concern namely M/s Radhe Consultancy has deposited the cash in the bank account of the assessee instead of giving the same to the different landowners.

3.2 The AO, further noted that once the deal was not materialized then the land aggregator was to return the money to the group concern instead of the assessee. It was also pointed out by the AO that the land deals are time taking and therefore the advanced to the land aggregator is to be given well in advance but in the case on hand, the cash was immediately deposited in the bank account of the land aggregator after receiving the same from the group concern namely M/s Radhe Consultancy which was subsequently transferred to the assessee.

3.3 Furthermore, once the land aggregator has accepted the money in cash then it was supposed to be returned in cash in the event of non-execution of land deal but the same was returned through the banking channel.

3.4 In view of the above the AO was of the opinion that the cash deposited in the bank account of the land aggregator was representing the unaccounted money of the assessee which was brought in the books of accounts through the banking channel in the manner as discussed above. Accordingly the AO treated the same as unexplained cash credit of the assessee under section 68 of the Act amounting to Rs. 3.59 crores and added the same to the total income of the assessee.

4. Aggrieved assessee preferred an appeal to the learned CIT (A)

5. The assessee before the learned CIT (A) claimed that during A.Y. 2010-11 it has made payment of Rs. 23.02 crores to Shri Kanjibhai Desai through banking channel for carry out the land acquisition work on its behalf which was shown as loan and advances in balance sheet as on 31-03-2010 which was withdrawn by Shri Kanjibhai from his bank. However during the year under consideration when land deal was not materialized by the Shri Kanjibhai Desai, he deposited the cash in his account and remitted the money back to it (assessee) through banking channel. Thus it (the assessee) proved the source of cash deposited in the bank account of Shri Kanjibhai and transferred to its account and thus the same does not remain unexplain as alleged by the AO. The assessee also contended that as far as section 68 is concern, it has discharged onus by proving the identity of the Kanjibhai Desai by furnishing PAN. The genuineness of transaction was also proven by the fact that the amount has been transferred through banking. Similarly the credit worthiness of Kanjibhai was also proved by demonstrating that he was having adequate fund in form of cash withdrawn out of amount transferred to him in earlier assessment year.

5.1 The assessee further contended that assessment of Shri Kanjibhai Desai was also reopened under section 147 of the Act. However in his assessment cash deposit was accepted and no addition was made. Therefore once the deposit in the account of Shri Kanjibhai has been explained and accepted, then subsequent transfer from his account to the assessee account cannot be treated as unexplained.

6. The learned CIT (A) after considering the facts as discussed above in totality deleted the addition made by the AO by observing as under:

It is observed that above provisionsas explained by various decisions require assessee to prove identiy and creditworthiness of lender and genuineness of transaction. The appellant has submitted confirmation of depositor along with address and PAN. The depositor in present case is assessed to tax and even reassessment order u/s.143(3) r.w.s 147 has been passed in his case on 28th December, 2016 clearly prove that identity of depositor is established. It is undisputed fact that entire amount has been received through account payee cheques and appellant has submitted copy of bank statement of depositor as well as appellant wherein cheques received by appellant from such party is duly reflected and same clearly prove genuineness of transaction and creditworthiness of the party.

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The amount of Rs.3.59 crores received through account payee cheques are repayment of loan earlier given by Appellant and same does not represent any new loan takn by Appellant Company. The AO has also observed that when funds are given by Radhe Consultancy to Kanjibhai Desai it is illogical that Kanjibhai Desai returns back such amount to Appellant Compnay but the fact remains that Appellant has given cheque in earlier year hence repayment is received partially in current Assessment Year and such amount does not represent undisclosed income of Appellant. It is also observed that statement of Ashish Patel Director of the Appellant Company was recorded under Section 131(1A) on 26th November, 2014 wherein in reply to Question No.5 he has categorically explained the details regarding funds given to kanjibhai Desai and repayment of such advance by Appellant Company. Even Kanjibhai Desai in his statement recorded on 17th April, 2015 has also stated that he has received funds from Appellant Company in A.Y. 2010-11 and when land deal was cancelled he has refunded money to Appellant company and Ashish Patel in subsequent years.

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It is observed that reassessment notice has been issued in the case of Kanjibhai Desai for cash deposits in his bank account and transfer of funds to Appellant Company and while passing the above Assessment Order AO has asked depositor to submit cash book, bank book, sources of cash deposited in bank account, daily cash balance etc., and after verification of all such details, he has not made any addition which means that sources of cash deposit in the bank account of Appellant is treated as explained in the hands of depositors. When sources of cash deposits are as held as genuine in the hands of depositor after verification of all the facts capacity of depositors and genuineness of the transaction cannot be doubted and condequential addition made under Section 68 of the Act for cheque received from such depositor cannto be treated as unexplained.

7. Being aggrieved by the order of the learned CIT (A) the Revenue is in appeal before us.

8. The learned DR before us contended that the assessee was not able to substantiate the deposit of cash in the account of Shri Kanjibhai based on documentary evidence that such cash does not represent its undisclosed income.

9. The learned AR before us filed a paper book running from pages 1 to 268 and contended it has explained all the transactions by furnishing necessary details that the amount received from Shri knajibhai Desai represent payback of advances given in earlier year and also discharged primary onus cast under section 68 of the Act.

10. Bothe learned AR and DR vehemently supported the action of authorities below to the extent favorable to them.

11. We have heard the rival contentions of both the parties and perused the materials available on record. In the case on hand, the assessee has received a sum of Rs. 3.59 crore from Shri Kanjibhai Desai which was treated as unexplained cash credit under section 68 of the Act by the AO. However, the learned CIT (A) was pleased to delete the addition made by the AO by observing that the assessee has complied with the conditions as specified under section 68 of the Act.

11.1 First of all, we find that the assessee has shown an advance in the immediate preceding assessment year as on 31 March 2010 in the name of Shri Kanjibhai Desai amounting to Rs. 23.02 crore. This fact has not been disputed by the AO which is evident from the audited financial statement of the assessee placed on pages 57 of the paper book. The relevant extract of the balance sheet is reproduced as under:

Land Advance
Group Summary
2-April-2010 to 31 March 2011

11.2 It was pointed out by the learned AR before us that the amount received from the land aggregator namely Shri Kanjibhai Desai represents the own money of the assessee which was advanced on the earlier occasion and the same was returned in the year under consideration on account of non-execution of the land deals. The learned DR before us has not brought any iota of evidence suggesting that money received by the assessee does not represent the money which was advanced by it on the earlier occasion. Thus it can be safely inferred that the amount received by the assessee represents its own money which was advanced in the earlier year and this fact was also accepted by the Revenue. Accordingly, we are of the view that there cannot be any question for attracting the provisions of section 68 of the Act in the hands of the assessee for receiving its own money as discussed above.

11.3 Besides the above we also note that the assessee has discharged its onus as provided under section 68 of the Act namely the identity, genuineness and creditworthiness of the parties. For the identity, the assessee has furnished the PAN/address/bank details/confirmation of Shri Kanjibhai Desai which are placed on pages 78 to 106 of the paper book.

11.4 Admittedly, the entire transaction for receiving the money from the impugned party was carried out through the banking channel and therefore there cannot be any doubt on the genuineness of the transactions. The copy of the bank statement is placed on pages 78-79 and 103 to 106 of the paper book.

11.5 Similarly, the creditworthiness of Shri Kanjibhai Desai is also not in doubt as the amount received by the assessee represents its own money which was advanced in the earlier year as elaborated somewhere in the preceding paragraph.

11.6 Moving further, we also note that the assessee has claimed that there was income escaping assessment in the hands of Shri Kanjibhai Desai under the provisions of section 147 of the Act out on account of cash deposited in his bank account. But, there was no addition made in the hands of the impugned assessee namely Shri Kanjibhai Desai qua the deposit of cash for the reason that the explanation furnished by him was accepted by the Revenue. This fact was also found true by the learned CIT (A) and not disputed by the Revenue before us. The relevant finding of the learned CIT (A) in this regard has already been reproduced in the preceding paragraph.

11.7 In view of the above and after considering the facts in totality, we do not find any infirmity in the order of the learned CIT (A). Hence, we uphold the same. Thus the ground of appeal of the Revenue is dismissed.

12. In the result the appeal filed by the revenue is dismissed. Coming to the CO of the assessee bearing CO No. 96/Ahd/2019.

13. The assessee has raised following grounds of cross objection

1. In law and in the facts and circumstances of the appellant’s case, the Ld.CIT(A) has erred in rejecting the relevant ground of appeal raised by the appellant before him challenging the validity of the proceedings initiated u/s.147 of the I.T Act.

2. The appellant craves leave to add, alter, amend and/or withdraw any of the grounds or ground either before orat the time of appeal hearing.

14. As we have decided the issue, on merit, raised by the Revenue in favour of the assessee vide paragraph number 11 of this order, therefore we do not find any reason to adjudicate the issue raised by the assessee on the validity of the assessment framed under section 147 of the Act. As such, the technical issue raised by the assessee becomes infructuous. Furthermore, the learned AR for the assessee at the time of hearing has also before us submitted that he has been instructed by the assessee not to press the issue raised in the CO in the event it succeeds before the ITAT on merit. Accordingly, we dismiss the ground raised by the assessee in the CO as infructuous.

15. In the result the CO filed by the assessee is dismissed as infructuous.

16. In the combined results, the appeal filed by the revenue is dismissed and the CO filed by the assessee is also dismissed as infructuous.

Order pronounced in the Court on 22/02/2021 at Ahmedabad.