Assessee; Sakum Aggarwal, Pathankot Vs. Department of Income Tax [27-05-2016]

Tax Law – Nature of transactions entered into by assessee is definitely of adventure in trade and therefore, rightly held to be a business transaction.

# Assessee


IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR

BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER

Date of pronouncement: 27.05.2016

I.T.A No.475(Asr)/2014

Dy. CIT Vs. Sh. Sakun Aggarwal Circle-VI, Pathankot. S/o Sh. Anil Aggarwal, Garden Colony, Pathankot PAN: AHPPA7621P (Appellant) (Respondent) I.T.A No.478(Asr)/2014 Assessment Year: 2010-11 Sh. Sakun Aggarwal Vs. Dy. CIT S/o Sh. Anil Aggarwal, Circle-VI, Pathankot. Garden Colony, Pathankot PAN: AHPPA7621P (Appellant) (Respondent) Appellant by: Sh. Umesh Takyar (DR) Respondent by: Sh. Ashwani Kalia (CA)

ORDER

PER T. S. KAPOOR (AM):

These are cross appeals filed by Revenue as well as by the assessee against the order of learned CIT(A) dated 12.05.2014 for Asst. Year 2010-11.

2. The grounds of appeal taken by Revenue as well as by assessee are reproduced below.

“The Following Grounds taken by Revenue.

“Whether the Ld. CIT(A), was right in allowing the relied of Rs.25,00,000/- which has been paid by the assessee in cash on account of unexplained investment and in violation of provisions of section u/s 40A(3) of the Income Tax Act,1961.”

Whereas the following grounds has been taken by assessee.

1. That the Ld. CIT(A), Amritsar has erred in law and on facts, in upholding the order of the AO that the transaction of purchase and sale of land by the assessee was in the nature of business venture, ignoring the fact that the appellant had purchased the said land by way of invetment and not as a business venture, without distinguishing catena of supporting case laws cited by the appellant.

2. That the ld. CIT(A), Amritsar has erred in law and on facts, in holding that the AO was right in denying the set off unabsorbed brought forward short term capital loss against the short term capital gain of the current year.

3. That the ld.CIT(A) Amritsar has erred in law and on facts, in confirming the disallowance of Rs.12860890 by the AO u/s 40A(3) completely ignoring the fact that the transaction was snot in the nature of business but was in the nature of investment as a restult of which the provisions ofsection 40A(3) are not applicable.

4. That the Ld.CIT(A), Amritsar has erred in law and on facts, in confirming the disallowance of Rs.1,28,60,890 by invoking the provisions of section 40A(3) inspie of the fact that assessee had made payment of only Rs.25 lacs to seller of the land and balance payment was made directly by the ultimate buyers of the land and not by the appellant.

5. That the ld. CIT(A) has erred in law on facts in confirming the disallowance u/s 40A(3) even if the whole transaction is treated as business income for arguments sake as the transactin of purchase was outside the books as a resultof which the provisions of section 40A(3) are not applicable.

6. That the ld. CIT(A), Amritsar has erred in law and on facts, in confirming the disallowance of the party to who, the payment is alleged to have been mae as well as the genuiness of the transaction is establiseed.”

3. The brief facts of the case as noted in assessment order are that assessee declared total income of Rs.40,46,970/-. During the course of assessment proceedings the Assessing Officer observed that assessee had declared to have earned short term capital gain of Rs.38,53,000/- and after setting off of brought forward short term capital loss of Rs.26,95,879/-, had declared net capital gain to the tune of Rs.11,57,121/- The Assessing Officer further observed that the other income offered by assessee included Rs.25,00,000/- surrendered by assessee during the course of survey proceedings u/s 133A. He further observed that during the survey proceedings a copy of purchase agreement of some land was found from the premises of assessee wherein the fact of having advanced an amount of Rs.25,00,000/- for purchase of a land was mentioned and assessee during survey proceedings had surrendered this amount of advance. The Short Term Capital Gain declared by assessee was on account of profit from sale of such land which was sold in the form of plots. Since the assessee had treated the sale of land as short term capital gain the assessee was asked to explain as to why the profit from sale of land be not treated as business income instead of capital gain. In response to the above, the assessee filed written submissions wherein it was submitted that the assessee was a partner in M/s Balaji Brick Works and was having income from firm and was also earning income from Tractor Hire charges. It was also submitted that the assessee intended to hold the property as a capital asset and therefore, the income from sale of such land has been offered as income from capital gain. It was also submitted that since the assessee was not having means to make balance payments and therefore, the assessee had entered into a verbal agreement with sellers of land whereby the sellers were free to sell the land to other buyers in lieu of which the sellers would give some part of profits earned from sale of such land to assessee. It was also submitted that assessee was not a regular dealer in Real Estate and keeping in view the facts that this was only transaction of purchase and sale of land the asseessee’s income cannot be taxed as business income. However, the Assessing Officer was not satisfied with the submissions of the assessee and he held the transactions as business transactions by holding as under:

3.2 The arguments of the assessee have been considered. The following points emerge from the scrutiny of the assessee’s transactions in land:-

a) The assessee purchased 246.50 Marlas of land vide an agreement to purchase land. Advance sum of Rs. 25 lakh was paid by the assessee on 26.05.2009 as per this agreement.

b) The assessee did not get the purchased land registered or transferred in his name.

c) He further sold the land in parts, in form of 12 plots, the details of which have been given above in para 3.0(4).

d) The modus operandi of the sale was that the assessee got direct registries of sale made between the original owners and the final customers.

e) The assessee made the sale in a very short period of time, the first sale was made on 03.08.2009 and in a few months total 6 plots were sold before 31.03.2010. Another 6 plots were sold in another 4-5 months, the last sale being on 11.08.2010.

f) The assessee made the sale by plotting the area of 246.50 Marlas. There is another evidence of plotting in the shape of a map1 found during the survey. This map is reproduced as follows map

g) The above map shows the plots made by the assessee. The following examples are visible in the map.
19.58 M Kailaso Devi 16.28 M Tarun Thakur 60.20 M Ajay Mahajan 11.50 M Aman

The above are the plots sold as per the map and these also occur in details available in impounded material2 regarding the same land. The plots were sold by registries and the names in registration deeds are different. The rates in registration deeds are also different. The difference is there because the impounded material speaks of actual transactions while the registration deeds contain only the white portion of the transactions. The names are different because the registered sale is shown between original landholders and final customers while the transactions have taken place in cash in different names. In any case, it is established that the map contains the graphic version of the sale of land undertaken by the assessee.

g) It is also visible that considerable development of land has been undertaken by the assessee by leaving out streets for proper colonization of the said land. The map area of total does not match, as the assessee has claimed that the entire land subject to the land purchase agreement was not purchased and only 246.50 Marlas was purchased.

h) The above facts show that the assessee was actually engaged in development of colony and sale of plots. The fact that the assessee never got the purchase of land transferred in his name shows that the land was never intended to be an investment. It was just a stock-in- trade purchased on credit with initial investment of Rs. 25 Lakh only. The credit was paid off by sale proceeds of the plotted land. This is thus a clear cut business venture. Further, the land purchased in one chunk was cut in plots and sold to 12 persons in 12 parts. The sale was made in a very short time. These facts too, indicate that it was a business venture.

3.3 The assessee has relied upon some cases also. It is seen that the facts are very different in those cases. In the case of 1 SOT 937 ITAT Amritsar, the long period of nine years is involved. The Hon’ble Tribunal had said that there was not enough material to hold it business income. In present case the material to hold so is abundant. In the case of Suresh Chander Goyal (High Court MP) also, the assessee is selling ‘own’ land. In present case it is regarding the land purchased on agreement. There are so many other factors also as listed above. The question that whether a transaction is falling under business head, is dependent on facts. In the present case the facts make it amply clear that the said transaction is of business nature.

Infact the legal position in this matter is also very clear. There are several cases including those of the Hon’ble Apex Court where it has been held that such transactions are business ventures. The following are cited for example:

# 1. Smt. Indramani Bai vs. Additional Commissioner of Income-tax 200ITR 594 (SC)/[1993]

Section 2(13) of the Income-tax Act, 1961 – Adventure in nature of trade – Assessees purchased a piece of land and shortly after purchasing land they carved it into four plots and sold them individually – ITO brought difference between compensation received by assessees and price of land to tax treating transaction as an adventure in nature of trade – Whether transaction of purchase and sale of land by assessees was an adventure in nature of trade – Held, yes

# 2. G. Venkataswami Naidu & Co. v. CIT [1959] 35 ITR 594 (SC).

Conduct prior to purchase is also a relevant factor – If a person invests money in land intending to hold it, enjoys its income for sometime, and then sells it at a profit, it would be a clear case of capital accretion and not profit derived from an adventure in the nature of trade. Just as the conduct of the purchaser subsequent to the purchase of a commodity improving or converting it so as to make it more readily resaleable is a relevant factor in determining the character of the transaction, so would his conduct prior to the purchase be relevant if it shows a design and a purpose –

# 3. Raja J. Rameshwar Rao v. C I T [ \ 9 6 \ ] 42 ITR 179 (SC).

Where land is purchased, then developed and later sold in bits, it is a business venture – When a person acquires land with a view to selling it later after developing it, he is carrying on an activity resulting in profit, and the activity can only be described as a business venture. Where the person goes further and divides the land into plots, develops the area to make it more attractive and sells the land not as a single unit as he bought it but in parcels, he is dealing with land as his stock-in-trade, and carrying on business and making a profit –

# 4. CIT v. Premji Gopalbhai [1978] 113 ITR 785 (Guj.)

Sole intention to resell at a profit, is a strong factor – Even if land which is not a commercial commodity is purchased and it can be shown that the purchase of the land was made solely and exclusively with an intention to resell it at a profit, it would be a strong factor to indicate that the transaction would be an adventure in the nature of trade –

# 5. Khan Bahadur Ahmed Alladin & Sons v. CIT[1968] 68 ITR 573 (SC).

Resale after a short gap is indicative of a business venture- Where the assessee company purchased large areas of land and buildings from the Government with borrowed funds, interest on which was much higher than the income from the said properties and sold part of the said properties within a short time of their purchase, it was held that the purchase and sale of the properties was an adventure in the nature of trade and was in the course of a profit-making scheme –

In the present case, the land was never intended to be held am investment as it was not transferred in the name of the assessee at all. In fact the name of the assessee nowhere appears on official records of land registering authorities. The true intention of the assessee was discovered from the impounded agreement and other papers during survey. The land was sold in plots, the sale was made in a very short time. The sale was made after cutting into plots. Thus all elements are present in the transactions of the assessee for treating the same as business transaction.

3.4 In view of the above, the sale of land should be assessed as adventure in the nature of trade covered under business income instead of Short Term Capital Gain. Thus the computation of profit would be as under:

Sale of land (121.78 Marlas) Rs. 1,92,23,000/-
Less : purchase of land (121.78 Marla on proportionate basis as Rs. 1,48,700,30/-
submitted by the assessee)
Less : Brokerage for 121.78 Marla land on
proportionate basis Rs. 4,90,869.29/-

Profit = Rs. 3862100.70/-

The above figures are as per the assessee’s own calculations with only variation being the nature of profit which is now being assessed as business income.”

Further Assessing Officer held that since the transactions has been held to be business transactions and therefore all the provisions for calculation of income from business and profession will apply. From the facts and circumstances the Assessing Officer held that assessee must have first purchased the land himself and then he got the Registries made in the names of ultimate buyers and therefore, Assessing Officer held that assessee must have made payment for purchase of land in cash and therefore, he held that the assessee had violated provisions of section 40A(3) and therefore made a disallowance of Rs.1,53,60,890/-. Calculated on the basis of proportionate cost of land of 121.78 marlas out of total land of 246.50 marlas, sold during the year.

4. Aggrieved with the additions the assesses filed appeal before learned CIT(A) and learned CIT(A) partly allowed the relief by holding as under:

“6. I have gone through all these case-laws quoted by the assessee and as well as by the AO in this regard. And I have gone through various points noted by the AO in para 3.2 on page 5, 6 & 7 of his order. It is clear that each such transaction has to be analyzed and evaluated on facts pertaining to that transaction and can not merely be decided on the basis of quoted case-laws. Help can taken from various test laid-down by Hon’ble Supreme Court in this regard. It is fact that assessee was not having sufficient fund at the time of purchase of such land and in view of clear intention of the assessee even at. the time of purchase of such land, this transaction is clearly business venture of the assessee. In view of same, I agree with the AQ that the sale of land should be assessed as adventure in the nature of trade covered under business income.

6.1 The next issue in this appeal in the ground no. 1 of the appeal is regarding disallowance of expenses u/s 40A(3) of the Income Tax Act of Rs.1,53,60,890/-. The AO has decided this issue on the basis of Hon’ble Gujrat High Court decision in the case of CIT vs. Hynoup Food and Oil Industries Pvt. Ltd. 290 ITR 702 where it was held that provision section 40A(3) will apply to transactions outside the books of account and where income from and undisclosed business is brought to tax. In appellate proceedings, the assessee has relied mainly on the issue that section 40A(3) does not apply to cases where the assessee is able to establish the identity of the party and genuineness of the transaction. The assessee has relied in this regard on following judgments.

# a) CIT vs. Avtar Singh & Sons: 194 ITR 81 (P&H)

In the instant case, the identity of the party to whom payments were made was beyond question. Nor was there any doubt with regard to the genuineness of the payments. There was also, in addition, an affidavit from the chief accountant of the supplier company regarding these payments having been received in cash and duly accounted for in the company’s books of account and that these payments were received in cash as money was urgently needed by the company after banking hours and the receipt of it by crossed cheque or draft would have delayed payment and caused unnecessary hurdles in the proper conduct of the company s business, no disallowance under section 40A(3) of the Act was called for.

# b) Harshila Chordia vs. ITO : 289 ITR 349 (Raj)

The assessee had made certain payments of sale price of scooters/mopeds, which exceeded in each case Rs. 1’0,000, to the principal agent in Udaipur in cash instead of through cross cheques or bank draft. The payments were disallowed under section 40A(3). The Tribunal upheld the disallowance. The Court held that there was no dispute about the genuineness of the transactions and the payment and identity of the receiver were established. The Court further held that where genuineness of transaction and identity of payee were established and explanation of assessee for making cash remittances was acceptable in the light of modus operandi of assessee’s business, payments in cash could not be disallowed.

# (c) CIT vs. Brii Mohan Singh and Co.: 209 ITR 7531P&H)

The assessee was a liquor contractor under permits granted by the Excise and Taxation Department. Under the terms of the permits the actual amount for which purchases of liquor were to be made were known only at the time of actual purchase. During the assessment year 1984-85, the assessee made cash purchases of liquor to the tune of Rs. 12,70,683 which were not treated as expenditure by the assessing officer in the assessment framed for contravention of provision of section 40A(3) and the deduction was not allowed, i.e., addition to that extent was made in the income assessed. On appeal, the Commissioner (Appeals) confirmed the order of the Assessing Officer. On second appeal, the Tribunal deleted the addition as it was satisfied about the bona fides of the payments and genuineness of the transactions. The Tribunal also rejected reference application of the revenue observing that no question of law arose from its decision. In the instant case, the assessee had asserted that it had no Bank account at the place of transaction and also that the vendor (payee) too had no Bank account at that place. This had not been rebutted by the revenue. The Tribunal observed that the absence of bank account by either of the two parties would be sufficient to bring the case within the exception of clause (j) of rule 6DD of the Income-tax Rules, 1962 (“the Rules”). Taking these into consideration and on the facts and material on record, the Tribunal held that the assessee had established its case that being within the purview of rule 6DD(j), no addition under section 40A(3) v/as justified. It was further held that since the identity of the payee has been successfully established, i.e., the liquor to be purchased by the assessee, a liquor contractor from the distillery could only be made on issuing of permits, identifying the distillery and for that reason too no disallowance could be made under section 40A(3) of the Act. The order of the Tribunal was affirmed by the High Court.

# (d) ITO vs. Som Putt: 165 Taxmann 99 (P&H)

Whether where assessee had filed certificate from party to effect that cash payments were insisted by party, assessee had also filed receipts of payments of amount before authorities and year in question was first year of its business, it could be concluded that assessee did not have any option but to make payments in cash and, therefore, addition made on cash payments under section 40A(3) of the Act was liable to be deleted.

# (e) M Basu Distributor (P) Ltd. vs. ACIT : 206 Taxman 45 (Delhi)fMAG.) (Del HC)

In the facts of that case there was no dispute regarding the identity of the payee and genuineness of the payments and the revenue had neither denied nor contested the same.-further, the assessee hadalso filed before the Tribunal a copy of its bank account statement as well as ledger account of the parties to whom the payments were required to be made. It was also apparent that the assessee was not doing well in its business and was facing liquidity and financial crunch. An examination of the bank account statement shows that whenever cash deposit was made in the bank account, it was immediately thereafter utilized to issue cheques towards the expenditure. The High Court held that these were relevant and material aspects which were required to be considered and examined by the Tribunal but have been overlooked. In view of the aforementioned, it was held that the Tribunal was wrong in holding that the assessee by making the payments above Rs. 10,000 to the third parties had violated the provisions ofsection 40A(3) of the Act.

6.2 The assessee has further relied on its averment that expenditure for purchase of land was ot claimed as expenses) in books of account and in view of same section 40A(3) is not applicable,. The assessee has further submitted that earnest money of Rs. 25,00,000/- surrendered pursuant to survey and offered to tax as “income from other sources” can not be disallowed u/s 40A(3) as same has been offered to tax as income from other sources and it will amount to double taxation. 6.3Thus the assessee has stated that:

The disallowance made by the assessing officer u/s 40A(3) of the Act, is erroneous inasmuch as:-

Thus the assessee has stated that:

a) The said section does not apply to payments made for purchase of capital assets;

b) The said section does not apply to cases where the assessee is able to establish the identity of the party and the genuineness of the transaction;

c) The appellant merely facilitated the transaction of sale of land and the expenditure in cash was incurred by the purchasers and not the appellant.

6.4 I do not agree with assessee’s contention in this regard as the AO has correctly applied section 40A(3) of the act of the above transaction as it have already been confirmed as business transaction. The assessee’s other claim that identity of party and genuineness of the transaction is established in this present case is also not tenable as complete details of these parties and the reasons for carrying out these transactions in cash through these parties have not been informed to the department and the transactions were also not recorded in regular books of account. In case survey proceedings were not carried out by the department, these transactions would not have come in the knowledge of the department. The assessee’s other contention that he has merely facilitated the transaction of sale of land and the expenditure in cash incurred by the purchaser is devoid of merit as assessee is claiming deduction of purchase expenses out of sale proceeds on account of sale of land and in view of the fact that payment has been made to the seller otherwise then by a account pay cheque or account pay bank draft exceeding Rs.20,000/-, the deduction of such expenditure can not be allowed. However, I agree with the assessee’s contention regarding payment of Rs.25,00,000/- which has been paid by assessee in cash and has been offered as income under the head ‘income of other sources’ in the return of income itself. In view of same, it can not be disallowed u/s 40A(3) as it will amount to double taxation of same income and under the circumstances, disallowance under 40A(3) is restricted to Rs.1,28,60,890/- only. Thus action of the AO is confirmed to the extent of Rs.1,28,60,890/- u/s 40A(3).”

5. Aggrieved both the parties are in appeal before us.

6. The learned AR first took up assessee’s appeal and submitted that assessee is aggrieved with the two findings of the authorities below, one of which is that Revenue has considered the transaction of purchase of land as business transaction whereas the assessee had never carried out any activity in the Real Estate and had intended to hold the asset as an investment. He further submitted that deal of purchase could not materialize because one of the partners of assessee backed out from his part of investment and assessee was not in a position to pay the entire balance amount and, therefore, he requested the sellers of land to sell the land to other persons and in lieu of his right of specific performance he was promised to get his advance amount of Rs.25,00,000/- back along with some portion out of profits earned from sale of such land. He submitted that assessee had relinquished his right of specific performance which itself was a capital asset and therefore, relinquishing of this right resulted into sale of capital asset and therefore, assessee had rightly declared the income under the head capital gains. The learned AR submitted that he had relied upon a number of case laws but learned CIT(A) did not consider the same.

6. Arguing upon his contention that the assessee never did any business in Real Estate, he filed computation of income of assessee for Asst. Years: 2008-09, 2009-10 and 2012-13 to highlight that assessee never did any business before the present assessment year or after the present year. Therefore, it was prayed income from the transaction to be treated as capital gain.

7. The learned AR further submitted that the second grievance of assessee is that Assessing Officer and learned CIT(A) has presumed that the land was first purchased by him and then was sold to other parties and in the process assessee had made payments for land in cash which is not justified at all as the sellers had directly sold the land to various persons and had received the payments from them in the presence of Registrar, therefore, the presumption made by the authorities below is not based upon the facts of the case. The learned AR in this respect submitted that during assessment proceedings the assessee had filed a letter dated 30.11.2012 by which he had had filed photo copies of sale deeds executed by the sellers in favour of different persons and in these sale deeds, there is no mention of the name of assessee and therefore, Assessing Officer had only assumed that assessee had made payments first and then sold whereas the fact remains from the material on record that the sale deeds were executed directly by sellers in favour of various persons and therefore, it was argued that the addition u/s 40A(3) is not based upon the facts as assessee had not made any payments at all other than the advance of Rs.25,00,000.

8. Without prejudice to the above, the learned AR submitted that even if it is presumed that assessee had made payments in cash even then the disallowance u/s 40A(3) cannot be made, in view of the judgment of Hon’ble Punjab & Haryana High Court in the case of Gurdas Garg vs. CIT, Bathinda, in ITA No. 413 of 16 07.2015. It was submitted that in that case the Hon’ble Tribunal had decided the issue against the assessee for making cash payments in excess of Rs.20,000/- and the Hon’ble High Court had held that where identity of the payees was established and sale deeds were executed and genuineness thereof was accepted and amount of payments in respect of each sale deed was certified by Revenue Authorities the disallowance u/s 40A(3) can not be made. The learned AR submitted that in the present case also the identity of the payee is established as the agreement to sale itself states the names and particulars of payees and identity of buyers of land is also established as sale deeds has been executed in their favour and therefore argued that keeping in view the ratio of case law of Gurdas Garg the disallowance u/s 40A(3) was not warranted.

9. Further arguing the learned AR relied upon an order of Punjab & Haryana High Court in the case of Santosh Jain, 296 ITR 324, for the proposition that if the transactions were done out side the books of accounts, no disallowances can be made u/s 40A(3).

10. The learned DR, on the other hand submitted that the impounded documents found during survey clearly established that assessee had entered into a business transaction as the transaction of purchase and sale was concluded within a short period of time and moreover a map showing plotting of such land was also found during survey and therefore the transaction was indeed a business transaction. In respect of disallowance u/s 40A(3) the learned DR placed his reliance on the orders of authorities below.

11. In respect of Revenue’s appeal the learned DR relied upon the order of Assessing Officer whereas learned AR relied upon the order of CIT(A).

12. We have heard the rival parties and have gone through the material placed on record. We find that it is an undisputed fact that an agreement to sell for purchase to 246.50 marlas of land along with a map showing plotting of such land was found during survey proceedings on the assessee. It is also an undisputed fact that assessee had surrendered an amount of Rs.25,00,000/- which was paid by assessee to the sellers of land as a advance. The said sum of Rs.25,00,000/- was paid on 26.05.2009 as per this agreement. It is also an undisputed fact that the transaction for purchase of this land could not be carried out between the assessee and sellers of land as is evident from the copies of registration deeds executed directly by the sellers of land in favour of various persons. The copies of such sale deeds which the sellers of land had executed in favour of various persons was filed with the Assessing officer vide letter dated 30.11.2012 and this fact is also mentioned by Assessing Officer in his assessment order at page 2 of his order. The photo copies of such sale deeds is also placed at paper book page 11 to 39. The examination of sale deeds shows that on various dates the following sale deeds were executed.

Date of Sell Name of Buyer Name of Seller
3.08.2009 Smt. Geeta Verma Sh. Parsotam Lal as power of attorney holder of Smt. Rani Mahajan.
28.10.2009 Sh. Yogesh Kumar Sh. Ram Murti
28.10.2009 Sh. Vishal Gupta Sh. Ram Murti
28.10.2009 Narendra Kumar as power of attorney holder of Sh. Dev Raj Sh Vineet Gupta
27.01.2010 Smt. Shakuntla Devi Sh. Ram Murti
27.01.2010 Sh. T Mohan Lal Sh. Ram Murti
02.03.2010  Sh. Atam Prasad as power of attorney holder of Rani Mahajan Sh. Tarun Thakur

Further we find that the above sale deeds were executed in the presence of Sub-Registrar, Pathankot and Photographs of sellers and buyers is also affixed on the sale deeds and below the photographs of sellers and buyers, there is no mention of the name of the assessee. Therefore, one fact is clear that assessee was not a party to the sale deeds and, therefore, the presumption made by the authorities below that land was sold by assessee is not based upon the facts and material on record. The authorities below has wrongly made a presumption that assessee must have first purchased the land and must have paid the payment to sellers of land after obtaining the same from the ultimate buyers and further has wrongly presumed that such payments were made in cash and therefore wrongly held that assessee must have violated the provisions of section 40A(3)of the Act. This presumption is based upon surmises and are not based upon the facts of the case as name of the assessee do not appear in any of the sale deeds and furthermore we find that in some of the cases the buyers had made payments to sellers vide cheuqe as is found in the case of Mr. Yogesh Sharma and Vishal Gupta. Further we find that the payments by buyers were made in the presence of Sub- Registrar as has been mentioned in the sale deeds itself, therefore, the presumption made by the authorities below is not justified. Further we find that assessee had entered into an agreement for purchase of land measuring 246.50 marlas out of which Authorities below have assumed that only payment for 121.78 marlas of land was made in the year and that is why they have made disallowance under section 40A(3) with respect to amount of purchase for 121.78 marlas. This action of authorities below itself proves that Authorities below had made the addition only on the basis of assumptions. The Assessing Officer has presumed that only sold quantity of land was purchased during the year under consideration. There is nothing on record with the Authorities Below to arrive at this conclusion. In view of the above facts and circumstances we do not find that action of learned CIT(A) in confirming the disallowance made by Assessing Officer u/s 40A(3) of the Act, can be upheld as there is no evidence of purchase of land by assessee and also there is no evidence that assessee had made payments to the owners of land as has already been established by the fact that owners had received payments form actual buyers only and therefore, there can not be any question of disallowance u/s 40A(3). Therefore, we hold that on merits and facts of the case no disallowance was warranted u/s 40A(3).

13. Even otherwise, if it is assumed that assessee must have first purchased the land and had made payments in cash even then the disallowance u/s 40A(3) cannot be made in view of the judgment of Hon’ble Punjab & Haryana High Court in the case of Sh. Gurdas Garg in ITA 413 of 2014. The Hon’ble High Court in this case had framed the following question of law:-

“(1) Whether the Tribunal rightly held that the appellant was not entitled to the deduction in respect of cash payments in excess of Rs.20,000/- made to the vendors for land in view of Section 40A of the Income Tax Act, 1961 (for short ‘the Act’).”

The Hon High Court has decided the question in favour of assessee by holding as under:

“3. The appellant is engaged inter alia trading in properties in his individual name. As noted in the assessment order, during the course of assessment proceedings, the details of the closing stock as on31.03.2009 alongwith details of sales/purchases were placed on record. The consideration, which in respect of each of the transactions was admittedly in excess of Rs.20,000/-, was paid in cash. Payment by demand draft was made only in respect of one of the transactions. These payments in cash were disallowed by the Assessing Officer and the order in this regard was upheld by the Tribunal. The CIT(Appeals) had allowed the deductions.

Section 40A(3) of the Act reads thus:-

“40A(3) Where the assessee incurs any expenditure in respect of which a payment or aggregate of payments made to a person in a day, otherwise than by an account payee cheque drawn on a bank or account payee bank draft, exceeds twenty thousand rupees, no deduction shall be allowed in respect of such expenditure. “

It is important to note the following proviso to the Section:-

“Provided that no disallowance shall be made and no payment shall be deemed to be the profits and gains of business or profession under sub-section (3) and this sub-section where a payment or aggregate of payment made to a person in a day, otherwise than by an account payee cheque drawn on a bank or account payee bank draft exceeds twenty thousand rupees, in such cases and under such circumstances as may be prescribed, having regard to the nature and extent of banking facilities available, considerations of business expediency and other relevant factors. “

4. It is important to note some of the findings of fact by the CIT (Appeals). The identity of the payees i.e. the vendors in respect of the lands purchased by the appellant, was established. The sale deeds were produced. The genuineness thereof was accepted. The amount paid in respect of each of these agreements was certified by the Stamp Registration Authority. The CIT (Appeals) held the transactions to be genuine. Accordingly, the CIT held that the bar against the grant of deductions under Section 40A(3) of the Act was not attracted.

5. It is important to note that the Tribunal did not upset these findings including as to the genuineness and the correctness of the transactions. It is also important to note that the Tribunal noted the contention on behalf of the appellant that there was a boom in the real estate market; that it was necessary, therefore, to conclude the transactions at the earliest and not to postpone them; that the appellant did not know the vendors and obviously therefore, insisted for payment in cash and that as a result thereof, payments had to be made immediately to settle the deals.

The Tribunal did not doubt this case. The Tribunal, however, held that the claim for deduction was not sustainable in view of Section 40A(3) as the payments which were over ^20,000/- were made in cash. The Tribunal, therefore, disallowed the same only on a construction of Section 40A(3). The Tribunal restricted the ambit of the proviso to the circumstances mentioned in Rule 6DD of the Income Tax Rules, 1962. We find it convenient to let the order of the Tribunal speak for itself:-

“There is no intention of the legislature to make a list of nature and extent of banking facilities available and other factors to be drafted by the assessee at their whims and fancies and as suits to the assessee. Therefore, Rules have been prescribed which are Rule 6DD of I. T. Rules, 1962 and nothing beyond that,

xxx xxx xxx

The Ld. CIT(A) has not taken the said proviso in the right spirit and has just accepted the submissions and arguments made by the assessee and has deleted the addition, which is against the facts of the case and against the provisions of law.

6. Rule 6DD(j) is not exhaustive of the circumstances in which the proviso to Section 40A(3) is applicable. It is only illustrative.

7. The respondent/assessee’s case is supported by several judgments. The Rajasthan High Court in

# SmL Harshila Chordia vs. Income Tax Officer, (2008) 298 ITR 349

held as under:-

“14. About this clause, many doubts were raised and enquiries were directed to the Board as to what shall constitute exceptional and unavoidable circumstances within the meaning of Clause (j). That led to issuance of Circular by the Board on May 31, 1977 ([1977] 108 ITR (St.) 8), which is published in Taxmann, Vol. 1, 1988 Edition. Significantly paragraph 4 of the aforesaid Circular shows very clearly that all the circumstances in which the conditions laid down in Rule 6DD(j) could be applicable cannot be spelt out. However, some of them which will seem to meet the requirements of the said rule are as follows:

a) the purchaser is new to the seller; or

b) the transactions are made at a place whether either the purchaser or the seller does not have a bank account; or

c) the transactions and payments are made on a bank holiday; or

d) the seller is refusing to accept the oaument bu wau of crossed cheaue/draft and the purchaser’s business interest would suffer due to non-availabilitu of goods otherwise than from this particular seller : or

e) the seller, acting as a commission agent, is required to pay cash in turn to persons from whom he has purchase the goods; or

f) specific discount is given by the seller for payment to be made by way of cash.

15. It was further clarified in paragraph 6 that the above circumstances are not exhaustive but illustrative.

16. Therefore, in our opinion, the Tribunal was clearly in error in not travelling beyond the circumstances referred to in paragraph 4 of the Circular and to consider the explanation submitted by the assessee on its own merit.

17. Sianificantlu paraaravh 5 reproduced hereinbelow gives a clear indication that Rule 6DDH) has to be liberallu construed and ordinarilu where the genuineness of the transaction and the paument and identitu of the receiver is established, the requirement of Rule 6DDti) must be deemed to have been satisfied. Paragraph 5 of the Circular reads as under [19771 108 ITR(fSt.) 8. 9:

5. It can be said that it would, generally, satisfy the requirements of Rule 6DD(j), if a letter to the above effect is produced in respect of each transaction falling within the categories listed above from the seller giving full particulars of his address, sales tax number/permanent account number, if any, for the purposes of proper identification to enable the Income-tax Officer to satisfy himself about the genuineness of the transaction. The Income-tax Officer will, however, record his satisfaction before allowing the benefit of Rule 6DD(j).

18. It appears that fulfilment of the conditions of paragraph 5 of the circular has clearly escaped the attention of the Tribunal. The circular clearly indicates that ordinarily where the Income-tax Officer is satisfied about the genuineness of the transaction and payment and identification of the cash payment is established, the Income-tax Officer shall record his satisfaction about the fulfillment of the conditions for allowing the benefit of Rule 6DD(j). Apparently, Section 40A(3)was intended to penalize the tax evader and not the honest transactions and that is why after framing of Rule 6DD (j), the Board stepped in by issuing the aforesaid circular.

19. This clarification, in our opinion, is in conformity with the principle enunciated by the Supreme Court in CTO v. Swastik Roadways as noticed above.

20. In this case, there is no dispute about the genuineness of the transactions and the payment and identity of the receiver are established. Therefore, the case clearly fell within the parameters of paragraphs 4 and 5 of the aforesaid circular read together.”

8. The respondent’s case is also supported by the judgment of the Supreme Court in

# Attar Singh Gurmukh Singh vs. ITO, (1991) 4 SCC 385.

After referring to Rule 6DD, the Supreme Court held:-

“7. In our opinion, there is little merit in this contention. Section 40- A(3) must not be read in isolation or to the exclusion of Rule 6-DD. The section must be read along with the rule. If read together, it will be clear that the provisions are not intended to restrict the business activities. There is no restriction on the assessee in his trading activities.Section 40-A (3) only empowers the assessing officer to disallow the deduction claimed as expenditure in respect of which payment is not made by crossed cheque or crossed bank draft. The payment by crossed cheque or crossed bank draft is insisted on to enable the assessing authority to ascertain whether the payment was genuine or whether it was out of the income from disclosed sources. The terms of Section 40-A(3)are not absolute.

Consideration of business expediency and other relevant factors are not excluded. The genuine and bona fide transactions are not taken out of the sweep of the section. It is open to the assessee to furnish to the satisfaction of the assessing officer the circumstances under which the payment in the manner prescribed in Section 40-A(3) was not practicable or would have caused genuine difficulty to the payee. It is also open to the assessee to identify the person who has received the cash payment. Rule 6-DD provides that an assessee can be exempted from the requirement of payment by a crossed cheque or crossed bank draft in the circumstances specified under the rule. It will be clear from the provisions of Section 40-A(3) and Rule 6-DD that they are intended to regulate the business transactions and to prevent the use of unaccounted money or reduce the chances to use black money for business transactions. [See:

# Mudiam Oil Company v. /TO[(1973) 92 ITR 519 (AP)

If the payment is made by a crossed cheque drawn on a bank or a crossed bank draft then it will be easier to ascertain, when deduction is claimed, whether the payment was genuine and whether it was out of the income from disclosed sources. In interpreting a taxing statute the court cannot be oblivious of the proliferation of black money which is under circulation in our country. Any restraint intended to curb the chances and opportunities to use or create black money should not be regarded as curtailing the freedom of trade or business.”

9. At the cost of repetition, the Tribunal has not disbelieved the transactions or the genuineness thereof. Nor has it disbelieved the fact of payments having been made. More important, the reasons furnished by the appellant for having made the cash payments, which we have already adverted to, have not been disbelieved. In our view, assuming these reasons to be correct, they clearly make out a case of business expediency.

10. In the circumstances, the order of the Tribunal in this regard is set aside. The payments cannot be disallowed under Section 40A(3) of the Act.”

From the above judgment we find that the Hon’ble Court has held that where the identity of the persons who has received payment in cash is established and genuineness of transactions is established, no disallowance can be made under the provisions of section 40A(3). In the present case even if it is assumed that assessee had first purchased the land and had made the payments to sellers of land the identity of sellers of land is established as is evident from the copy of agreement to sell impounded during survey and also the identity of assessee is established who is deemed to have purchased the land and therefore, also the facts and circumstances of the present case read with judgment of Hon’ble Punjab & Haryana High Court in the case of Sh. Gurdas Garg suggest that no disallowance could have been made in the present case.

14. In view of the above we allow ground Nos.3 to 6 of the appeal of the assessee.

15. Now coming to ground No. 1 & 2 of assessee’s appeal we find that the nature of transactions entered into by assessee is definitely of adventure in trade and therefore, rightly held to be a business transaction because of the following facts.

(i) The copy of map showing of land intended to be purchased by assessee along with copy of agreement was found at the premises of assessee. The plotting of land done by sellers of land or by assessee himself suggests that the assessee had invested the amount with the purposes of selling in the form of plots within the earliest available period.

(ii) The sale of such land was completed by the sellers of land in a short period of a few months. The map of land reproduced in the assessment order suggests that the sufficient space was left for streets on the entire land.

(iii) The assessee was not able to demonstrate with evidence in the form of some agreement with the sellers of land whereby he had relinquished his right for specific performance of not getting the sale deed registered in his name.

(iv) The assessee could not demonstrate as to the amount for which such right was relinquished, as he continued to receive payments from owners linked with the sales.

(v) The assessee could not demonstrate as to why the payment of compensation was calculated in the form of profits and rather the receipt of profit from the sellers of land in two years itself suggests that assessee were sharing the profits with the sellers.

(vi) Had it been a payment received for relinquishment of his right then there would have been a clear cut agreement for specific amount.

(vii) The assessee had received the amount for the proportionate land sold in the year under consideration which itself proves that assessee was indeed entitled to profits form such land as and when it gets sold off.

(viii) The argument of learned AR that in earlier years or in subsequent years the assessee did not carry any business therefore can not be said to have business transaction in this year does not hold any force as any person, can venture into a business in any one year and then may not continue it.

16. In view of the above facts and circumstances, we do not agree with the contention of learned AR, therefore, Ground No.1 & 2 of assessee appeal are dismissed.

17. In nutshell, the appeal of the assessee is partly allowed.

18. Now, coming to Revenue’s appeal, we find that that learned CIT(A) while upholding the disallowance u/s 40A(3) had partly allowed relief of Rs.25,00,000/- which the assessee had surrendered as initial investment and for which he had held that provisions of Section 40A(3)were not applicable. The Revenue is aggrieved with this deletion, however, we find that learned CIT(A) has rightly deleted the addition as further disallowance of this amount u/s 40A(3) would have made the income subject to double taxation as this amount has already been offered as other income. Further we have already in assessee’s appeal held that the disallowance u/s 40A(3) itself was not warranted, therefore, otherwise also the appeal of the Revenue is not maintainable. Further we find that tax effect in the Revenue’s appeal is also less than Rs.10,00,000/- and in view of CBDT Instruction No.21 of 2015, dated 10th Dec. 2015 also the appeal of the Revenue is not maintainable.

19. In view of the above facts and circumstances the appeal of the Revenue is dismissed.

20. In nutshell, the appeal filed by the assessee is partly allowed whereas the appeal filed by Revenue is dismissed.

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