The ACIT-5(1), Indore v. M/s. Sunderdeep Construction Pvt. Ltd., Indore

ITA 380/IND/2017 | 2012-2013
Pronouncement Date: 25-03-2021 | Result: Dismissed

Appeal Details

RSA Number 38022714 RSA 2017
Assessee PAN AAACU2189B
Bench Indore
Appeal Number ITA 380/IND/2017
Duration Of Justice 3 year(s) 10 month(s)
Appellant The ACIT-5(1), Indore
Respondent M/s. Sunderdeep Construction Pvt. Ltd., Indore
Appeal Type Income Tax Appeal
Pronouncement Date 25-03-2021
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 25-03-2021
Last Hearing Date 16-01-2020
First Hearing Date 03-03-2021
Assessment Year 2012-2013
Appeal Filed On 25-05-2017
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE HONBLE KUL BHARAT JUDICIAL MEMBER AND HONBLE MANISH BORAD ACCOUNTANT MEMBER ITA NO.380/IND/2017 ASSESSMENT YEAR 2012-13 ACIT-5(1) INDORE : REVENUE V/S M/S SUNDERDEEP CONSTRUCTION PVT. LTD 35-A DINDAYAL UPADHYAY NAGAR INDORE : RESPONDENT PAN : AAACU2189B REVENUE BY SHRI HARSHIT BARI SR. DR ASSESSEE BY S/ SHRI GIRISH AGRAWAL VIJAY BANSAL & MS. NISHA LAHOTI ARS DATE OF HEARING 08.03 .2021 DATE OF PRONOUNCEMENT 25 . 0 3 . 202 1 O R D E R PER MANISH BORAD A.M THE ABOVE CAPTIONED APPEALS FILED AT THE INSTANCE OF THE REVENUE PERTAINING TO ASSESSMENT YEAR 2012-13 IS DI RECTED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX(APPEAL S)-II (IN SHORT LD. CIT] BHOPAL DATED 28.02.2017 WHICH IS ARISIN G OUT OF THE ORDER SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 2 U/S 143(3)/147 OF THE INCOME TAX ACT 1961(IN SHORT THE ACT) DATED 26.03.2015 FRAMED BY ACIT-5(1) INDORE. 2. BRIEF FACTS OF THE CASE AS CULLED OUT FROM THE R ECORDS ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DEVELOPM ENT OF LAND. ASSESSEE FILED E-RETURN DECLARING TOTAL INCOME OF R S.33 83 540/- ON 29.09.2012. CASE SELECTED FOR SCRUTINY FOLLOWED BY SERVING OF NOTICE U/S 143(2) OF THE ACT. ASSESSMENT U/S 143(3) WAS CO MPLETED AT RS.3 63 73 400/- BY LD. A.O. AFTER DISALLOWANCE U/S 40A(3) OF THE ACT AT RS.4 26 000/- ADDITION U/S 68 OF THE ACT O N ACCOUNT OF BOGUS CASH CREDIT INTRODUCED IN THE BOOKS OF ACCOUN T AT RS.2 76 42 000/- AND ADDITION OF BOGUS CREDITORS AT RS.83 05 400/- . AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE LD. C IT(A) AND SUCCEEDED. 3. NOW THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL RAISING FOLLOWING GROUNDS OF APPEAL:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD . CIT(A) HAS ERRED IN:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE LD. CIT(A) HAS JUSTIFIED IN DELETING THE ADDITION OF RS.2 76 4 2 000/- MADE BY THE AO U/S 68 BY IGNORING THE FINDING OF THE AO. SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 3 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE LD. CIT(A) HAS JUSTIFIED IN DELETING THE ADDITION OF RS.83 04 400/- MADE BY THE AO ON ACCOUNT OF BOGUS CREDITORS. 3. THE APPELLANT CRAVES LEAVE TO ADD TO OR DEDUCT FROM OR OTHERWISE AMEND THE ABOVE GROUNDS OF APPEAL. 4. LD. DEPARTMENTAL REPRESENTATIVE (IN SHORT LD. D R) VEHEMENTLY ARGUED SUPPORTING THE ORDER OF LD. A.O. WITH REGARD TO THE ADDITION U/S 68 OF THE ACT HE FURTHER SUBMITTED THAT THE CLAIM OF THE ASSESSEE THAT THE ADVANCES GIVEN IN THE PREC EDING YEARS WERE RECEIVED BACK IN CASH IS NOT CORRECT AS THERE ARE M ISMATCH IN THE OPENING AND CLOSING BALANCES OF THE PARTIES SHOWN I N THE LEDGER ACCOUNT. HE ALSO POINTED OUT CERTAIN DISCREPANCIES IN THE CANCELLATION AGREEMENT. IN SHORT HE STRESSED UPON THE POSSIBILITY OF THE ASSESSEE HAVING ROUTED UNACCOUNTED CASH IN THE BOOKS OF ACCOUNTS AGAINST THE DOUBTFUL DEBITS HAVING RARE PO SSIBILITY OF RECOVERY. AS REGARDS THE ADDITION MADE U/S 41(1)(A) OF THE ACT FOR UNEXPLAINED BOGUS CREDITORS LD. DR SUBMITTED THAT ASSESSEE FAILED TO PROVE THE EXISTENCE OF THESE LIABILITIES IN THE NATURE OF CREDITORS WITH EVIDENCE. LD. DR PLACED RELIANCE ON THE JUDGM ENT OF HON'BLE SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 4 APEX COURT IN THE CASE OF PCIT V/S NRA IRON & STEEL PVT. LTD CIVIL PETITION NO.29855 OF 2018 DATED 5.3.2019. 5. LD. COUNSEL FOR THE ASSESSEE SUPPORTED THE FINDI NG OF LD. CIT(A) AND ALSO PLACED RELIANCE ON THE FOLLOWING WR ITTEN SUBMISSIONS FILED BEFORE US (ONLY RELEVANT MATTER IS EXTRACTED BELOW):- (I) GROUND NO.1 REGARDING ADDITION MADE U/S 68 OF T HE ACT AT RS.2 76 42 000/- 1. PRIOR TO THE IMPUGNED YEAR ASSESSEE HAD GIVEN ADVA NCES THROUGH BANKING CHANNEL TO VARIOUS PARTIES FOR PURCHASE OF LAND. ASSESSEE SUBMITS THAT AS THE ADVANCES WERE GIVEN THROUGH BAN KING CHANNEL THIS ITSELF PROVES THE GENUINENESS OF THE INITIATIO N OF TRANSACTION. 2. ASSESSEE CONTENDS THAT THE FUNDS TRANSFERRED OR GIV EN AT THE TIME OF INITIATION OF TRANSACTION WERE OUT OF ITS OWN FUNDS WHICH WERE GIVEN THROUGH BANKING CHANNEL. THE INITIATION OF THE TRAN SACTION IS NOT UNDER DISPUTE NOR IS QUESTIONED BY THE CONCERNED AU THORITIES BELOW. WHEN THE INITIATION OF ANY TRANSACTION IS NOT UNDER DISPUTE NO QUESTION OF RAISING A DOUBT ON THE LATER PART OF TH E TRANSACTION ARISES. 3. THESE ADVANCES GIVEN FOR PURCHASE OF LAND WERE ACCE PTED BY THE DEPARTMENT IN THE EARLIER YEARS AND STAND ACCEPTED. ASSESSMENT COMPLETED U/S 143(3) AND NO ADDITION MADE AGAINST T HESE ADVANCES GIVEN. THE STATUS OF ASSESSMENT DONE IN THE PRECEDI NG YEARS IS AS UNDER A. A.Y. 2010-11: I. SECTION UNDER WHICH ASSESSMENT COMPLETED 143(3) R WS 147 II. DATE OF ASSESSMENT ORDER 29.12.2016 III. ADDITION/DISALLOWANCE MADE IN SAID ASSESSMENT DIS ALLOWANCE OF DEVELOPMENT EXPENSES OF RS. 2 97 47 218 CLAIMED IN THE RETURN IV. STATUS OF ISSUE OF LAND PURCHASE ADVANCES IN THE INSTANT APPEAL BEFORE YOUR HONORS - BALANCE OF LAND PURCHASE ADVANCES IN THE NAME OF VARIOUS PARTIES DULY DISCLOSED IN THE A UDITED BALANCE SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 5 SHEET WHICH FORMED PART OF TOTAL LAND PURCHASE ADVA NCES OF RS. 11 09 88 462. NO ACTION BY THE LD. AO ON THESE ADVA NCES IN THE SAID ASSESSMENT. A.Y. 2009-10: I. SECTION UNDER WHICH ASSESSMENT COMPLETED 143(3) R WS 147 II. DATE OF ASSESSMENT ORDER 29.12.2016 III. ADDITION / DISALLOWANCE MADE IN THE SAID ASSESSMENT - DISALLOWANCE OF DEVELOPMENT EXPENSES OF RS. 1 15 87 720 CLAIMED IN THE RETURN IV. STATUS OF ISSUE OF LAND PURCHASE ADVANCES IN THE INSTANT APPEAL BEFORE YOUR HONORS - BALANCE OF LAND PURCHASE ADVANCES IN THE NAME OF VARIOUS PARTIES WERE DULY DISCLOSED IN THE AUDITED BALANCE SHEET WHICH FORMED PART OF TOTAL LA ND PURCHASE ADVANCES OF RS. 13 56 80 462. NO ACTION BY THE LD. AO ON THESE ADVANCES IN THE SAID ASSESSMENT. 4. THE DEAL FOR PURCHASE OF LAND DID NOT MATERIALIZE. HENCE THE ADVANCES GIVEN IN THE EARLIER YEARS WERE REFUNDED BY THE VAR IOUS PARTIES IN CASH DURING THE IMPUGNED YEAR. 5. YEAR WISE DETAILS OF ADVANCES WHICH WERE GIVEN IN T HE EARLIER YEARS AND ARE ACCEPTED BY THE DEPARTMENT ARE AS UNDER SR. NO. NAME OF PARTY TO WHOM ADVANCE WAS GIVEN FOR PURCHASE OF LAND AMOUNT GIVEN AS ADVANCE (RS.) PERIOD IN WHICH ADVANCE WAS GIVEN BY ASSESSEE FOR PURCHASE OF LAND 1 CHANDANSINGH KAWARJI [PB 35] 10 50 000 AY 2007 - 08 2 DARBAR SINGH 5 00 000 AY 2007 - 08 3 MAHENDRA SINGH 25 00 000 AY 2007 - 08 4 KAILASH BAI 9 50 000 AY 2007 - 08 5 MAHESH CHHAGANLAL 15 00 000 AY 2007 - 08 6 KEDAR GOPILAL CHOUDHARY 5 00 000 AY 2008 - 09 7 RAJENDRA SINGH 13 00 000 AY 2007 - 08 & AY 2009-10 8 RAJESH AGRAWAL 35 00 000 AY 2007 - 08 9 MOOLCHAND RATANJI 21 00 000 AY 2007 - 08 10 SATISH MODI 8 00 000 AY 2007 - 08 11 S D BIOTECH 19 00 000 AY 2007 - 08 12 SOURAMBAI LALSINGH 13 42 000 AY 2007 - 08 13 SIDDHARTH PANDYA 18 00 000 AY 2011 - 12 SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 6 14 CHOTELAL SUKHRAMJI 30 50 000 AY 2010 - 11 & AY 2011-12 15 FOOLKUNWARBAI CHOTELAL 30 50 000 AY 2010 - 11 & AY 2011-12 16 PARIMAL PANDYA 18 00 000 AY 2011 - 12 TOTAL 2 76 42 000 FROM THE ABOVE TABLE IT IS EVIDENT THAT ALL THESE A DVANCES WERE GIVEN IN THE YEARS MUCH PRIOR TO THE IMPUGNED YEAR. THE RECE IPT OF CASH IN THE IMPUGNED YEAR IS AGAINST THE ADVANCES WHICH WERE GI VEN IN THE EARLIER YEARS AND ARE NOT CASH CREDITS UNDER THE AMBIT OF P ROVISIONS OF SECTION 68. THE ADVANCES GIVEN IN EARLIER YEARS HAD BEEN RE FLECTED REGULARLY IN THE BALANCE SHEET UNTIL THE SAME WERE RECOVERED. BO OKS OF ACCOUNTS OF EARLIER YEARS ARE AUDITED AND NO ADVERSE REMARK HAS BEEN GIVEN BY AUDITOR. THE ASSESSMENTS FOR THE EARLIER YEARS HAVE BEEN COMPLETED U/S 143(3) AND NO ADDITION HAS BEEN MADE ON THESE ADVAN CES GIVEN IN EARLIER YEARS. THUS THE ADVANCES GIVEN IN THE EARLIER YEAR S STAND ACCEPTED BY THE DEPARTMENT. 6. ASSESSEE SUBMITS THAT THESE ARE NOT CASH CREDITS BU T ARE REFUND OF TRADE ADVANCES IN THE FORM OF CASH. RECOVERY OF ADV ANCES GIVEN CANNOT BE TREATED AS CASH CREDITS. DETAILS OF THE PARTIES TO WHOM ADVANCES WERE GIVEN THROUGH BANKING CHANNEL ALONG WITH COPY OF BANK STATEMENTS WERE ALREADY ON RECORD BOTH BEFORE LD. A O AND LD. CIT(A). 7. IN THE INSTANT CASE ADDITION HAS BEEN MADE U/S 68 OF THE ACT. APPELLANT CONTENDS THAT PROVISIONS OF SECTION 68 AR E NOT APPLICABLE BECAUSE THE CREDIT WHICH IS APPEARING IN THE IMPUGN ED YEAR IS AS A RESULT OF DEBIT TRANSACTION WHICH ORIGINATED IN F.Y . 2006-07. THIS INDICATES THAT THE CREDIT ENTRY IN IMPUGNED YEAR IS A RESULT OF DEBIT ENTRY IN EARLIER YEAR WHICH HAS BEEN ACCEPTED. 8. IN THE FACTS OF THE CASE A) ORIGIN OF DEBIT TRANSACTION: ADVANCE GIVEN TO THE VARIOUS PARTIES AS MENTIONED ABOVE WERE GIVEN IN EARLIER YEARS THRO UGH BANKING CHANNEL AND WAS REFLECTED IN BALANCE SHEET UNDER TH E HEAD ADVANCE FOR LAND PURCHASE TILL THE IMPUGNED YEAR. SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 7 B) ORIGIN OF CREDIT TRANSACTION: THE DEAL FOR PURCHASE OF LAND DID NOT MATERIALIZE AND HENCE THE ADVANCE GIVEN WAS REF UNDED TO APPELLANT IN CASH. APPELLANT ALSO CONTENDS THAT NO FRESH CREDITS WERE AVAILED DURING THE IMPUGNED YEAR EXCEPT FOR TH E IMPUGNED CASH RECEIPT. IT IS CLEAR FROM ABOVE THAT ORIGIN FOR CREDIT ENTRY APPEARING IN THE BOOKS IS ON ACCOUNT OF ORIGINAL DEBIT ENTRY. SOURCE OF AMOUNT ITSELF ORIGINATES FROM DEBIT ENTRY OF APPELLANT. APPELLANT IS NOT REQUIRED TO PROVE SOURCE OF RETURN OF MONEY GIVEN IN ADVANCE EARLIER. HENCE THE PROVISIONS OF SECTION 68 ARE NOT APPLICABLE. FURTHER THE APPELLANT CANNOT BE QUESTIONED ON RECE IPT OF CASH AS THERE IS NO LIMITATION ON AMOUNT BEING RECEIVED IN CASH ON A CCOUNT OF RETURN OF BUSINESS ADVANCE GIVEN EARLIER. 9. RELIANCE IS PLACED ON FOLLOWING JUDICIAL PRECEDENCE S A. HONBLE HYDERABAD BENCH OF ITAT IN THE CASE OF SB S TEEL INDUSTRIES ITA NO. 264 OF 2011 DATED 13.11.2013 B. HONBLE DELHI ABENCH OF ITAT IN THE CASE OF RACHM ANN SPRINGS (P) LIMITED [1995] 55 ITD 159 DATED 02.06.1995 C. HONBLE DELHI B BENCH OF ITAT IN THE CASE OF DECE NT FOODS PRIVATE LIMITED ITA NO. 2471 OF 2010 DATED 07.12.2010 10. LD. AO HAS BROUGHT NOTHING ON RECORD TO ESTABLISH T HAT THE MONEY EMANATED FROM COFFERS OF THE ASSESSEE. RELIANCE IS PLACED ON FOLLOWING JUDICIAL PRECEDENTS A. KAMDHENU STEEL & ALLOYS LIMITED - HONBLE DELHI HIG H COURT [2012] 19 TAXMANN.COM 26 DATED 23.12.2011 B. VALUE CAPITAL SERVICES PRIVATE LIMITED - HONBLE DE LHI HIGH COURT [2008] 307 ITR 334 DATED 25.04.2008 (II) D ISALLOWANCE MADE U/S 41(1) AMOUNTING TO RS. 83 05 4 00 1. DURING THE IMPUGNED YEAR ASSESSEE HAD RECEIVED CERT AIN AMOUNT FROM VARIOUS PARTIES AS FLAT BOOKING ADVANCE. IT IS A CU STOMARY PRACTICE IN THE LINE OF BUSINESS IN WHICH ASSESSEE IS ENGAGED T HAT ADVANCES ARE RECEIVED FROM VARIOUS PARTIES AS FLAT BOOKING ADVAN CE. THESE ADVANCES RECEIVED BY ASSESSEE AS FLAT BOOKING ADVANCE WERE R EFLECTED IN THE SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 8 BALANCE SHEET AS ON 31 ST MARCH 2012 AT NOTE 8 OTHER CURRENT LIABILITIES UNDER SUB HEAD ADVANCE FROM CUSTOMERS . [PB 26] 2. LD. AO IN THE ASSESSMENT ORDER AT PAGE 6 PARA 4 HAS MENTIONED ON PERUSAL OF BOOKS OF ACCOUNTS IT IS FOUND THAT THE ASSESSEE HAS SHOWN CREDITORS FROM WHOM ADVANCES FOR BOOKING OF PLOTS W AS TAKEN . AS AGAINST THIS LD. AO ERRED IN MENTIONING IN THE T ABLE AT PAGE 6 PARA 4 OF THE ASSESSMENT ORDER THE ADVANCES RECEIVED FOR F LAT BOOKING AS NAME OF CREDITORS . THE AMOUNT REFLECTED IN THE BALANCE SHEET RELATES T O ADVANCES FOR BOOKING OF FLATS AND THESE PARTIES ARE NOT CREDITOR S. LD. AO TREATED THESE ADVANCES RECEIVED FROM VARIOUS CUSTOMERS FOR FLAT B OOKING AS TRADING LIABILITY AS PER THE PROVISIONS OF SECTION 41(1) OF THE ACT AND PROCEEDED TO MAKE DISALLOWANCE OF RS. 83 05 400. PROVISIONS OF SECTION 41(1) READS WHERE AN ALLOWANCE OR DEDUCTION HAS BEEN MADE IN T HE ASSESSMENT FOR ANY YEAR IN RESPECT OF LOSS EXPENDITURE OR TRADING LIABILITY INCURRED BY THE ASSESSEE (HEREINAFTER REFERRED TO AS THE FIRST-MENT IONED PERSON) AND SUBSEQUENTLY DURING ANY PREVIOUS YEAR (A) THE FIRST-MENTIONED PERSON HAS OBTAINED WHETHER IN CASH OR IN ANY OTHER MANNER WHATSOEVER ANY AMOUNT IN RESPECT OF S UCH LOSS OR EXPENDITURE OR SOME BENEFIT IN RESPECT OF SUCH TRAD ING LIABILITY BY WAY OF REMISSION OR CESSATION THEREOF ASSESSEE SUBMITS THAT NEITHER ANY ALLOWANCE NOR ANY DEDUCTION HAS BEEN CLAIMED IN RESPECT OF THE ADVANCES FROM CUSTOMERS IN ANY OF THE PRECEDING YEARS. THESE AMOUNTS HAVE BEEN RECEIVED S PECIFICALLY AS ADVANCES FOR BOOKING OF FLATS. THUS PROVISIONS OF S ECTION 41(1) ARE NOT ATTRACTED AND NO DISALLOWANCE CAN BE MADE. THESE AM OUNTS RECEIVED AS SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 9 FLAT BOOKING ADVANCE ALWAYS FORMED PART OF THE BALA NCE SHEET. THERE IS NO DEBIT OR CREDIT ENTRY APPEARING IN THE PROFIT AN D LOSS ACCOUNT. IT IS CONTENDED THAT THE YEAR IN WHICH THE FLATS GO T REGISTERED THESE AMOUNTS RECEIVED AS ADVANCES WERE ALSO TRANSFERRED UNDER THE HEAD SALES OF PROFIT AND LOSS ACCOUNT OF RESPECTIVE YE ARS. THUS IF THIS AMOUNT RECEIVED AS FLAT BOOKING ADVANCE IS ADDED IT SHALL AMOUNT TO DOUBLE TAXATION. IN RESPECT OF THE ADVANCE RECEIVED FROM MAGGI PUBLI CITY OF RS. 12 45 687 IT IS SPECIFICALLY SUBMITTED THAT THIS AMOUNT HAS A LREADY BEEN INCLUDED IN INCOME FOR THE RETURN FILED FOR AY 2014-15. REFEREN CE MAY PLEASE BE MADE TO NOTE 16 OTHER INCOME FOR AY 2014-15 WHE REIN THE AMOUNT RECEIVED FROM MAGGI PUBLICITY OF RS. 12 45 687 HAS BEEN SPECIFICALLY MENTIONED. IN RESPECT OF THE ADVANCES RECEIVED FROM OTHER TWO CUSTOMERS NAMELY ANITA SURESHKUMAR SHARMA AND AMIT SHANTILAL JAIN AM OUNTING TO RS. 5 00 000 AND RS. 7 75 000 IT IS SUBMITTED THAT THE FLATS WERE REGISTERED IN AY 2013-14 AND INCLUDED IN THE INCOME. IN THE BALANCE SHEET AS ON 31.03.2012 ASSESSEE HAD ALSO RECEIVED ADVANCE FROM CUSTOMERS FOR PREMIUM ROYAL PARK FO R WHICH NO ADDITION/DISALLOWANCE HAS BEEN AND IS ACCEPTED BY T HE DEPARTMENT. ASSESSEE CONTENDS THAT THE ADVANCES RECEIVED FROM C USTOMERS IN RESPECT OF PREMIUM ROYAL PARK PROJECT IS ACCEPTED AND FOR THE OTHER I.E. INFO CITY PROJECT IT HAS BEEN TREATED AS CREDITORS. IT IS A WELL SETTLED LAW THAT THE LIABILITY CAN BE REMITTED OR CEASED ONLY BY A BILATERAL OR MULTILATERAL ACT BETWEEN THE CREDITO R(S) ON ONE SIDE AND THE DEBTOR ON THE OTHER AND NOT BY A UNILATERAL ACT. IN THE INSTANT CASE THE AMOUNT RECEIVED AS ADVANCES FROM CUSTOMERS HAS BEEN REFLECTED IN THE BALANCE SHEET AS ADVANCE FROM CUSTOMERS TILL THE DATE REGISTRIES WERE EXECUTED. THE AMOUNT RECEIVED AS ADVANCES HAS BEEN REFLECTED IN THE BALANCE SHEET EACH YEAR TILL THE TIME REGISTRIES WE RE EXECUTED IN THE NAME OF CUSTOMERS. THIS CONTENTION OF ASSESSEE IS SQUARE LY COVERED BY THE DECISION OF HONBLE JURISDICTIONAL BENCH OF INDORE ITAT IN THE CASE OF SHAPERS INDUSTRIES LIMITED ITA NO. 112/IND/2016. SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 10 RELIANCE IS PLACED ON FOLLOWING JUDICIAL PRECEDENTS A. HONBLE SUPREME COURT IN CASE OF SUGAULI SUGAR WORK S (P) LTD [1999] 236 ITR 518 04.02.1999 B. HONBLE JURISDICTIONAL HIGH COURT OF MADHYA PRADESH IN THE CASE OF COMBINED TRANSPORT CO. (P.) LTD [1988] 174 ITR 5 28 14.07.1988 C. HONBLE INDORE BENCH OF ITAT IN THE CASE OF MANOJ P AVECHA ITA NO. 307/2013 15.05.2015 D. HONBLE DELHI HIGH COURT IN CASE OF JAIN EXPORTS(P. ) LTD. [2013] 35 TAXMANN.COM 540 24.05.2013 E. HONBLE GUJARAT HIGH COURT IN THE CASE OF - NITIN S . GARG [2012] 22 TAXMANN.COM 59 11.04.2012 F. HONBLE GUJARAT HIGH COURT IN THE CASE OF PURIDEVI MAHENDRAKUMAR CHAUDHARY [2014] 41 TAXAMANN.COM 32 9 19.11.2013 G. HONBLE BOMBAY HIGH COURT IN THE CASE OF J.K. CHEMI CALS LTD. [1966] 62 ITR 34 18.02.1966 H. HONBLE KOLKATA BENCH OF ITAT IN THE CASE OF MARCOP OLO PRODUCTS (P.) LTD [2016] 70 TAXMANN.COM 320 I. HON'BLE DELHI HIGH COURT IN THE CASE OF CIT V/S VAL UE CAPITAL SERVICES (P) LTD (2008) 307 ITR 334 J. HON'BLE INDORE BENCH OF I.T.A.T. IN THE CASE OF ACI T V DWEKAM INDUSTRIES LTD IN ITA NO.27/IND/2012 DATED. 18.12.2 012 K. HON'BLE INDORE BENCH OF I.T.A.T. IN THE CASE OF DEV ENDRA KANTHED V ITO IN ITA NO.818/IND/2014 DATED. 15.05.2015 SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 11 L. HON'BLE HIGH COURT OF ALLAHABAD IN THE CASE OF ACIT V ATS PROMOTERS AND BUILDERS PVT. LTD (2014) 90 CCH 172 M. HON'BLE INDORE BENCH OF I.T.A.T. IN THE CASE OF SUN DERDEEP CONSTRUCTION P. LTD V ACIT IN ITA NO.505/IND/2016 D ATED. 31.10.2019 N. HON'BLE HIGH COURT OF CALCUTTA IN THE CASE OF CIT V WESTERN ESTATES (1994) 209 ITR 343 CONSIDERING THE ABOVE FACTS OF THE CASE CIRCUMSTAN CES SUBMISSIONS MADE DOCUMENTS ON RECORD LD. CIT(A) HAS CORRECTLY GRANTED RELIEF TO ASSESSEE ON DISALLOWANCE MADE BY LD. AO U/S 41(1) O F RS. 83 05 400 6. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US AND CAREFULLY GONE THROUGH THE JUD GMENTS REFERRED AND RELIED BY BOTH THE PARTIES. REVENUE IS AGGRIEV ED WITH THE FINDINGS OF LD. CIT(A) DELETING THE ADDITION MADE B Y LD. A.O U/S 68 OF THE ACT AT RS.2 76 42 000/- AND THE ONE MADE U/S 41(1)(A) OF THE ACT AT RS.83 05 400/- ON ACCOUNT OF BOGUS CREDITORS . 7. WE WILL FIRST TAKE UP GROUND NO.1 RELATING TO DE LETION OF ADDITION U/S 68 OF THE ACT AT RS.2 76 42 000/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS LD. A.O OBSERVED THAT THE ASSESSEE RECEIVED CASH FROM SOME PARTIES TO WHICH ADVANCES W ERE GIVEN IN THE PRECEDING YEARS. LD. A.O WAS NOT SATISFIED WIT H THE GENUINENESS SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 12 OF THE CASH RECEIVED AND ADDED TO THE INCOME OF ASS ESSEE AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT 8. WE OBSERVE THAT ASSESSEE IS REGULARLY MAINTAININ G THE BOOKS OF ACCOUNTS AND PREPARING AUDITED BALANCE SHEET. THIS FACT IS NOT DISPUTED THAT THE ASSESSEE WHICH IS ENGAGED IN THE REAL ESTATE BUSINESS GAVE ADVANCES FOR PURCHASE OF LAND (MOSTLY AGRICULTURAL LAND) TO VARIOUS FARMERS THROUGH ACCOUNT PAYEE CHEQ UE AND SUCH ADVANCES FOR PURCHASE OF LAND ARE SHOWN UNDER THE H EAD LAND PURCHASE ADVANCE SHOWN IN THE ASSETS SIDE OF THE B ALANCE SHEET. SUCH ADVANCES HAVE BEEN GIVEN MOSTLY DURING ASSESSM ENT YEARS 2007-08 AND 2008-09 AND REMAINING DURING ASSESSMENT YEARS 2009-10 TO 2011-12. YEAR WISE DETAILS OF ADVANCES WHICH WERE GIVEN IN THE EARLIER YEARS AND WERE FORMING PART OF THE AUDITED BALANCE SHEET SUBMITTED BY THE ASSESSEE ALONG WITH THE RETURN OF INCOME ARE AS FOLLOWS:- SR. NO. NAME OF PARTY TO WHOM ADVANCE WAS GIVEN FOR PURCHASE OF LAND 10 . AMOUNT GIVEN AS ADVANCE (RS.) 11 . PERIOD IN WHICH ADVANCE WAS GIVEN BY ASSESSEE FOR PURCHASE OF LAND 1 CHANDANSINGH KAWARJI 10 50 000 12 . AY 2007 - 08 2 DARBAR SINGH 5 00 000 AY 2007 - 08 3 MAHENDRA SINGH 25 00 000 AY 2007 - 08 SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 13 4 KAILASH BAI 9 50 000 AY 2007 - 08 5 MAHESH CHHAGANLAL 15 00 000 AY 2007 - 08 6 KEDAR GOPILAL CHOUDHARY 5 00 000 AY 2008 - 09 7 RAJENDRA SINGH 13 00 000 AY 2007 - 08 & AY 2009-10 8 RAJESH AGRAWAL 35 00 000 AY 2007 - 08 9 MOOLCHAND RATANJI 21 00 000 AY 2007 - 08 10 SATISH MODI 8 00 000 AY 2007 - 08 11 S D BIOTECH 19 00 000 AY 2007 - 08 12 SOURAMBAI LALSINGH 13 42 000 AY 2007 - 08 13 SIDDHARTH PANDYA 18 00 000 AY 2011 - 12 14 CHOTELAL SUKHRAMJI 30 50 000 AY 2010 - 11 & AY 2011-12 15 FOOLKUNWARBAI CHOTELAL 30 50 000 AY 2010 - 11 & AY 2011-12 16 PARIMAL PANDYA 18 00 000 AY 2011 - 12 TOTAL 2 76 42 000 9. AS CLAIMED BY THE LD. COUNSEL FOR THE ASSESSEE T HAT SINCE THE AMOUNT GIVEN AS ADVANCES IN PRECEDING YEARS COULD N OT MATERIALIZE IN THE SHAPE OF PURCHASE OF LAND FOR SOME REASONS A ND THE ASSESSEE TRIED HARD TO RECOVER THE AMOUNT ADVANCED TO THESE FARMERS. DUE TO EXTRA EFFORTS ASSESSEE TO A LARGE EXTENT WAS ABL E TO RECEIVE THE REFUND IN CASH AGAINST THE ADVANCE GIVEN IN EARLIER YEARS. IT WAS FURTHER CLAIMED THAT THE AMOUNT SO RECEIVED COULD N OT BE TREATED AS CASH CREDIT IN TERMS OF SECTION 68 OF THE ACT AS IT IS NOT IN THE NATURE OF LOAN OR CREDIT. ACTUALLY IT IS A REFUND O F AMOUNT DEBITED TO THE FARMERS AS ADVANCE. HOWEVER THIS CLAIM OF THE ASSESSEE WAS NOT SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 14 ACCEPTED BY THE LD. A.O WHO TAXED THE ALLEGED AMOUN T AS UNEXPLAINED CREDIT U/S 68 OF THE ACT. SUBSEQUENTLY WHEN THE MATTER CAME UP BEFORE LD. CIT(A) THE IMPUGNED ADDI TION WAS DELETED BY HIM OBSERVING AS FOLLOWS:- GROUND NO.2 5. THIS GROUND OF APPEAL IS WITH REGARD TO ADDITION OF RS.2 76 42 000/- U/S 68 OF THE ACT. 1 HAVE CAREFULLY GONE THROUGH BOTH THE ASSESSMENT ORDER AS WELL AS THE SUBMISSION S OF THE APPELLANT IN THIS REGARD. THE_AO ON EXAMINATION OF THE CASH BOOK HAD NOTED THAT THE APPELLANT COMPANY HAD RECEIVED CERT AIN AMOUNTS IN CASH FROM SOME PERSONS. THE AO DID NOT T AKE INTO ACCOUNT THE SUBMISSIONS BY THE APPELLANT THAT THESE AMOUNTS WERE ACTUALLY REFUNDS FROM THE PERSONS TO WHOM THE SUCH AMOUNTS WERE PAID IN EARLIER YEARS AS ADVANCES FOR PURCHASE OF LAND. THESE AMOUNTS WHICH WERE RETURNED BY THESE PE RSONS AGAINST THE ADVANCES GIVEN TO THEM WERE TREATED AS UNEXPLAINED CREDITS U/ S 68 BY THE AO. THE APPELLANT HAS ALSO S UBMITTED THAT THE AMOUNT TO ALL THESE PERSONS WERE PAID BY ACCOUN T PAYEE CHEQUES AND MORE IMPORTANTLY ALL THESE ADVANCES IN THESE ACCOUNTS WERE DULY ACCEPTED BY THE DEPARTMENT AS AD VANCES IN THE ASSE SSMENT PROCEEDINGS FOR A.Y. 2011-12 THAT THE IMMEDIATELY PREVIOUS YEAR. 5.1 THE MOOT QUESTION HERE IS WHETHER REFUND OF ANY ADVANCE GIVEN BY THE APPELLANT COMPANY IN EARLIER YEARS WHI CH WERE RECEIVED DURING THE YEAR CAN BE CONSIDERED AS CASH CREDIT. THE APPELLANT COMPANY HAS PROVIDED THE LEDGER OF THE PA RTIES ALONGWITH THE COPY OF THE BANK STATEMENT OF THE APP ELLANT COMPANY TO CONFIRM THAT THE AMOUNTS WERE PAID BY AC COUNT PAYEE CHEQUES. THE APPELLANT HAS SUBMITTED IN THIS REGARD AS BELOW:- 'PROVISION OF SECTION 68 IS NOT APPLICABLE IN CASE OF APPELLANT COMPANY AS APPELLANT COMPANY HAS RECEIVED THE AMOU NT DEBITED IN THE NAME OF THE ABOVE 16 PARTIES SINCE EARLIER YEARS SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 15 & THE BALANCES WERE DULY ACCEPTED BY THE INCOME TAX DEPARTMENT IN THE ASSESSMENT U/ S 143(3) FOR A. Y. 2011-12. FURTHER YOUR HONOUR AS PER SUBMISSION MADE & DOCUMENT SUBMITTED BY US EARLIER WITH OUR REPLY DATED 23/ 12/2016 WE HAVE PRO VED BY PROVIDING CO PIES OF OUR BANK STATEMENT AS EVIDENCE THAT THE AMOUNTS WERE PAID BY ACCOUNT PAYE E CHEQUES TO ALL ABOVE PARTIES. FOR THIS WE RELY ON THE FOLLOWING JUDGMENTS: 1. INCOME TAX OFFICER VS. ALOK AGRAWAL ITAT AGRA BENCH (2012) 32 CCH 0361 52 SOT 0125 INCOME-UNEXPLAINED CASH CREDIT_ADDITION-MISTAKE IN THE AUDIT REPORT-DELETION THEREOF- AO MADE ADDITIONS TO THE INCOME OF THE ASSESSEE IN RESPECT OF A LOAN ON ACCOUNT OF UNEXPLAINED CASH CREDIT AS THE AUDIT REPORT WAS SHOWING FRESH LOAN OF RS.58 42 320/- INCLUDING PREVIOUS LOAN FROM SONA TRADERS-C1T(A) DELETED THE ADDITION OBSERVING THAT THE TRANSACTION WITH THE PARTY WAS ON ACCOUNT OF SALE O F GHEE AND THE AMOUNT RECEIVED DURING THE YEAR WAS AGAINST OUT STANDING SALE CONSIDERATION THERE WAS A MISTAKE IN THE REPOR TING IN AUDIT REPORT-HELD THE FACT THAT THERE WAS MISTAKE ON THE PART OF THE AUDITOR HAS BEEN RECORDED BY THE CIT(A) IN HIS ORDE R-THE AUDITOR HAS ALSO FURNISHED CERTIFICATE TO THE EFFECT THAT THE AMOUNT WAS RECEIVED AS A REPAYMENT OF EARLIER LOAN BALANCE AND HENCE IT WAS NIL DOSING BALANCE-SINCE NO CONTRA') MATERIAL OR FACTS WERE PRODUCED NOR REVENUE POINTED OUT ANY SUCH CONTRARY MATERIAL TO THE FINDING OF THE CIT(A) ORDER OF THE CIT(A) IS CONFIRMED-APPEAL FILED BY THE ASSESSEE IS ALLOWED 2. SB STEEL INDUSTRIES V/S ITO (ITA NO 264/HYD/2011 DATED 13/11/2013) COPY ENCLOSED AS ANNEXURE A. 3. ITO V/ S M/ S DECENT FOODS PVT. LTD. (ITA NO 2471 / DELL 2010 DATED 07/12/2010) COPY ENCLOSED AS ANNEXURE B . THEREFORE YOUR RUMOUR IT IS MOST HUMBLY REQUESTED TO KINDLY DELETE THE ADDITION WRONGLY MADE BY APPLYING SECTION 68 ON RECEIPT OF ADVANCES GIVEN IN EARLIER YEAR. SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 16 5.2 THE HON'BLE LTAT DELHI 'A' BENCH IN THE CASE OF RACMANN SPRINGS (P) LTD. VS. DEPUTY COMMISSIONER OF INCOME TAX (1995) 14 CCH 0227 52 TTJ 0660 55 ITD 0159 HAS HELD AS BELOW:- 'WHEN SUCH IS THE FACTUAL POSITION THE AO CANNOT FIND FAULT WITH THE FIGURE OF SUNDRY DEBTORS AS ON 30TH JUNE 1980 AT RS. 35 99 534. IF AT ALL THE AO DISBELIEVED RS. 35 99 538 HE SHOULD HAVE ENHANCED THE FIGURE OF SUNDRY DEBTORS A S ON 30TH JUNE 19 80 BY RS. 18 00 763 AND ADOPTED THE SAME IN THE LATE' ASSESSMENT YEARS. THIS WAS NOT DONE BY THE AS SESSING AUTHORITIES. THIS BLOWING OF HOT AND COLD BY THE AO IS NOT PERMISSIBLE IN LAW. ONLY UNSUBSTANTIATED CASH CREDIT S CAN BE ADDED UNDER S. 68. THE SAID SECTION DOES NOT PERMIT THE AOS TO ADD UNDISCLOSED SALES UNDER THAT SECTION FURTHER TH E REALISATIONS FROM THE SUNDRY DEBTORS CANNOT BE TREATED AS CASH CREDITS. CASH CREDITS ALWAYS APPEAR AS A LIABILITY I N THE BALANCE SHEET OF THE ASSESSEE. REALISATION FROM THE SUNDRY DEBTORS WOULD REDUCE THE SUNDRY DEBTORS APPEARING ON THE 'ASSETS' SIDE OF THE BALANCE SHEET. 22. THE RECONCILIATION STATEMENT OF DEBTORS FROM 1 ST JULY 1979 TO 30 TH JUNE 1985 IS GIVEN AT PAGES 136 AND 137 OF POPER BOOK N O. 1. THE SUNDRY DEBTOR AS ON 30TH JUNE 1981 30TH JUNE 1982 30TH JUNE 1983 30TH JUNE 1984 AND 30TH JUNE 1985 W ERE GIVEN IN THE BALANCE SHEETS FILED IN THE LATER ASSESSMENT YEARS. THEY WERE ALL ACCEPTED BY THE AO. 'WHEN SUCH IS THE FACTUAL POSITION THE AO CANNOT FIND FAULT WITH THE FIGURE OF S UNDRY DEBTORS AS ON 30TH JUNE 1980 AT RS 35 99 538 IF AT ALL THE AO DISBELIEVED RS. 35 99 538 HE SHOULD HAVE ENHANCED THE FIGURE OF SUNDRY DEBTORS A S ON 30TH JUNE 1980 BY RS. 18 00 763 AND ADOPTED THE SAME IN THE LATE' ASSESSMENT YEAR THIS WAS NOT DONE BY THE ASS ESSING AUTHORITIES. THIS BLOWING OF HOT AND COLD BY THE AO IS NOT PERMISSIBLE IN LAW. 23. THE AO HELD IN THE ASSESSMENT ORDER DT 13TH JAN. 1992 THAT THE DRAFTS DEPOSITED IN THE BANK OF TOKYO AS PE R LIST-1 ARE ACTUALLY UNDISCLOSED SALES AND TREATED THE SAME AS I NCOME OF THE ASSESSEE UNDER S. 68 OF THE IT ACT 1961. THIS IS REALLY STRANGE. ONLY UNSUBSTANTIATED CASH CREDITS CAN BE ADDED UNDER S. 68 OF THE IT ACT 1961. THE SAID SECTION DOES NOT PERMIT THE ADS TO ADD UNDISCLOSED SALES UNDER THAT SECTION. FURTHER THE REALISATIONS FROM THE SUNDRY DEBTORS CA NNOT BE SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 17 TREATED AS CASH CREDITS. CASH CREDITS ALWAYS APPEAR AS A LIABILITY IN THE BALANCE SHEET OF THE ASSESSEE. REALISATION FROM THE SUNDRY DEBTORS WOULD REDUCE THE SUNDRY DEBTORS APPEARING ON THE 'ASSETS' SIDE OF THE BALANCE SHEET.' 5.3 THUS THE HON'BLE TRIBUNAL HAS CATEGORICALLY HE LD THAT ONLY UNEXPLAINED CASH CREDIT CAN BE ADDED U/ S 68 AND TH E REALISATIONS FROM THE SUNDRY DEBTORS CANNOT BE ADDE D UNDER SECTION 68 OF THE ACT. 5.4 IN THE CASE OF SB STEEL INDUSTRIES HYDERABAD VS INCOME TAX OFFICER-5(1) HYDERABAD (ITA NO.264/HYD/2011) THE H ON'BLE ITAT HYDERABAD BENCH-A HYDERABAD STATED VIDE PARA 7 AS B ELOW:- 'IT IS AN ESTABLISHED FACT THAT ONLY CASH CREDITS CA N ONLY BE CONSIDERED U/ S 68 BUT NOT TRADE RECEIPTS. THE COORDINATE BENCH OF ITAT IN THE CASE OF ITO VAS R AJEDRA KUMAR TAPARIA 106 TT J 712 (J OD H.) HAS HE ID THAT 'CASH CREDITS STANDING IN THE NAMES TRADE CREDITORS ALL INCOMETAX ASSESEES COULD NOT BE TR EATED AS NON. GENUINE WHEN THEY HAVE CONFIRMED THE TRANSACTIONS BY FILING AFFIDAVITS AND DEPOSING BEFOR E THE AO AND THE ADDITION COULD NOT BE MADE IN RESPECT OF CASH CREDITS OR INTEREST PAID TH EREON'. IN THE PRESENT CASE THE AMOUNTS RECEIVED BY ASSESSEE ARE NOT CASH CREDITS BUT THE SAME W ERE RECOVERS OF THE DEBTOR WHICH ARE AVAILABLE IN THE BOOKS OF ACCOUNT SINCE ASSESSEE FURNISHED DETAILS OF DEBTORS AND ALSO THE ENTRIES MADE IN THE BOOKS OF ACCOUNT WE ARE OF THE OPINION THAT BOTH THE AO AND THE CIT(A) HAVE ERRED IN CONSIDERING RECOVERIES FROM DEPOSITS AS CASH CREDITS THE CORRES PONDING SALES IN EARLIER YEARS HAVE BEEN ACCEPTED AS THERE IS NO DISPUTE WITH REFERENCE TO THE ENTRIES IN THE BOOKS O F ACCOUNT IN ANY OF THE EARLIER YEARS. THEREFORE WE ARE OF THE V IEW THAT THE PRINCIPLES' LAID DOWN [OR INVOKING PROVISIONS OF SECT ION 68 CANNOT BE APPLIED TO THE MADE RECOVERIES MADE BY ASSESSEE DURING THE YEAR.' 5.5 THE HONBE ITAT DELHI BENCH-B NEW DELHI IN THE CASE OF ITO- 10(1) NEW DELHI VS. M/S DECENT FOOD PVT. LTD NEW D ELHI IN ITA NO. 2471/DEL/2010 HAS STATED VIDE PARA 7 & 8 AS BELOW:- 'ON THE OTHER HAND LD. COUNSEL FOR THE ASSESSEE ST RONGLY SUPPORTED THE IMPUGNED ORDER. HE SUBMITTED THAT THE AMOUNTS IN QUESTION WERE RECEIVED AS REFUND OF ADVANCES MAD E OVER TO THE PARTIES FOR PURCHASE OF GOODS WHICH PURCHASE CO ULD NOT SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 18 MATERIALIZE SINCE THE PARTIES COULD NOT SUPPLY THE GOODS IN TIME; AS SUCH THESE AMOUNTS CANNOT BE TERMED AS UNEXPLAIN ED INCOME OF THE ASSESSEE; THAT NEITHER OF THE PARTIES WERE CREDITOR OF THE ASSESSEE AND SO SECTION 68 OF THE I. T. ACT IS NOT APPLICABLE; THAT RATHER IT WAS THE ASSESSEE WHO WA S THE CREDITOR IN THE BOOKS OF ACCOUNT OF THE TWO PARTIES ; THAT FURTHER THE ASSESSEE DULY DISCHARGED ITS ONUS; THAT THEREFO RE LD. CIT(A) CANNOT AT ALL TO HAVE ERRED IN DELETING THE ADDITION. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERIAL ON RECORD. IT REMAINS IRREFUTED THAT THE ASSESSEE COMPANY DID. NO TAKE ANY LOAN FROM THE TWO CONCERNS THESE CONCERNS WERE ALS O NOT CREDITORS OF THE ASSESSEE COMPANY. THE AMOUNT OF RS. 8 25 000 HAD BEEN ADVANCED BY THE ASSESSEE TO THE SAID SUPPL IER PARTIES AND WHEN THEY JAILED TO MAKE SUPPLY IN TIME THESE AMOUNTS WERE REFUNDED TO THE ASSESSEE. IT WAS THIS REFUND WHICH REPRESENTED THE CREDIT ENTRIES OF 78 25 000. THE ASSESSMENT ORDER DOES NOT SHOW ANY INVESTIGATION HA VE BEEN CARRIED OUT OR ANY INFORMATION COLLECTED BY THE DEP ARTMENT TO CONCLUDE THAT THE PAYMENT RECEIVED BY THE ASSESSEE WAS ACTUALLY ACCOMMODATION ENTRIES. IT HAS NOT BEEN SHO WN AS TO HOW THE TWO PARTIES CONCERNED WERE NOT CREDITORS TO THE ASSESSEE. ONCE THEY ARE NOT ESTABLISHED TO BE CREDITORS OPERATION OF SECTION 68 OF THE I.T. ACT DOES NOT COME INTO PLAY. NO MATERIAL WAS BROUGHT BY THE AO TO PROVE THAT THE MONEY WAS THE ASSESSEE'S OWN UNDISCLOSED INCOME. IT WAS MERELY THAT THE INF0MLATION RECEIVED F ROM. THE INV WING OF THE DEPARTMENT WAS RELIED ON WITHOUT VERIFICATION OF THE FACTS QUA-TH E-ASSESEEE. THE ASSESSEE SUCCESSFULLY EXPLAINED THE ENTRIES. 5.6 IN THE LIGHT OF THE ABOVE JUDGMENT IT IS CLEAR THAT T HE REFUND OF ADVANCES SO GIVEN CANNOT BE ADDED U/S 68 E SPECIALLY WHEN THE APPELLANT HAS EXPLAINED THESE ENTRIES AND AL SO WHEN THE ADVANCES SO MADE IN THE EARLIER YEARS WERE ACCEPT ED BY THE DEPARTMENT. ACCORDINGLY THE ADDITION SO MADE IS HERE BY DELETED AND THIS GROUND OF APPEAL IS ALLOWED. 11. FROM PERUSAL OF THE FINDING OF LD. CIT(A) AS WE LL AS THE SUBMISSION MADE BEFORE US BY THE LD. COUNSEL FOR TH E SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 19 ASSESSEE WE FIND THAT ASSESSEE WHO IS IN THE BUSIN ESS OF REAL ESTATE AND DEVELOPER GAVE ADVANCE FOR PURCHASE OF LAND TO FARMERS IN THE PRECEDING YEARS OF WHICH MOSTLY A RE DURING ASSESSMENT YEAR 2007-08 AND REMAINING DURING ASSESSMENT YEAR 2008-09 TO 2001-12. ALL THESE ADVA NCES WERE GIVEN BY ACCOUNT PAYEE CHEQUE WHICH IS VERIFIA BLE FROM THE COPIES OF BANK STATEMENT PLACED ON RECORD. LED GER ACCOUNT OF EACH OF THE PARTIES TO WHICH ADVANCES WE RE GIVEN HAVE BEEN REFLECTED IN THE AUDITED BALANCE SHEET FO RMING PART OF INCOME TAX RETURNS. NO SUCH ADDITION REGAR DING UNEXPLAINED INVESTMENT OR UNEXPLAINED LOANS AND ADV ANCES GIVEN HAVE BEEN MADE BY THE REVENUE AUTHORITIES IN THE PRECEDING YEARS. THUS THE GENUINENESS OF ADVANCES GIVEN TO FARMERS FOR PURCHASE OF LAND APPEARS TO BE CORRECT. 12. NOW THE ASSESSEE IS CLAIMING THAT IT HAS RECEIV ED THE REFUND OF THE ADVANCES GIVEN FOR LAND PURCHASE. CO PY OF CANCELLATION AGREEMENT FOR THE ADVANCES GIVEN TO VA RIOUS PARTIES NAMELY CHANDANSINGH KAWARJI DARBAD SINGH MAHENDRA SINGH KAILASH BAI MAAHESH CHAGANLAL SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 20 SIDHARTH PANDYA CHOTELAL FOOLKUNWARVAI AND PARINA L PANDYA. ADDRESS OF EACH OF THESE PARTIES ARE AVAIL ABLE IN THESE CANCELLATION AGREEMENTS. 13. TO SUMMARISE WE FIND THAT THE ASSESSEE CLAIM IS THAT THE LOANS AND ADVANCES ARE GIVEN TO SOME PARTIES TH ROUGH BANKING CHANNEL IN PRECEDING YEARS AND THE REFUNDS OF THE LOAN SO GIVEN IS RECEIVED IN CASH DURING THE YEAR U NDER APPEAL WHEREAS THE REVENUES CONTENTION IS THAT TH ERE IS NO NEXUS OF THE CASH RECEIVED FOR THE ADVANCES SO GIVE N. 14. HOWEVER REVENUE HAS NOT PLACED ANY MATERIAL TO SUPPORT ITS CONTENTION. THE FACT THAT ADVANCES WER E GIVEN TO VARIOUS PARTIES THROUGH ACCOUNT PAYEE CHEQUE IN PRECEDING ASSESSMENT YEARS FOR PURCHASE OF LAND HAS NOT BEEN DISPUTED BY THE REVENUE. MOST OF THE ADVANCES WERE GIVEN IN ASSESSMENT YEAR 2007-08 WHICH IS ALMOST 5 YEARS OLD. COPIES OF BANK STATEMENT ASSERTS THIS FACT AN D NAMES AND ADDRESS OF ALL SUCH PARTIES IS AVAILABLE. CAN CELLATION AGREEMENTS HAVE BEEN ENTERED INTO. NO INDEPENDENT SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 21 ENQUIRY WAS MADE BY THE LD. A.O WITH THE PARTIES FR OM WHOM THE ASSESSEE CLAIMED TO HAVE RECEIVED THE CASH WHICH ARE MOSTLY FARMERS. UNDER THESE GIVEN FACTS THE CL AIM OF THE ASSESSEE THAT THE ALLEGED SUM RECEIVED IN CASH IS R EFUND OF LOANS AND ADVANCES GIVEN IN PRECEDING YEARS CANNOT BE DOUBTED. THE AMOUNTS SO RECEIVED IS ACTUALLY NOT A CREDIT IN THE FORM OF LOANS OR CREDIT OR IN THE FORM OF SU NDRY CREDITORS OR ANY OTHER LIABILITY IT IS ACTUALLY TH E REFUND OF AMOUNT ADVANCED IN PRECEDING YEARS. IT IS MERELY A REDUCTION IN DEBIT BALANCE OF LOAN AND ADVANCE AND A CORRESPONDING INCREASE IN DEBIT BALANCE OF CASH IN HAND. THERE IS AS SUCH NO FRESH CREDIT. 15. SIMILAR TYPE OF ISSUE CAME UP BEFORE THE CO-ORD INATE BENCH OF DELHI IN THE CASE OF DECENT FOODS PRIVATE LIMITED (SUPRA) ITA NO.264 OF 2011 DATED 13.11.2013 WHEREIN THE AMOUNT ADVANCED BY THE ASSESSEE TO THE SUPPLIER PAR TIES WAS REFUNDED AS THE SUPPLIER FAILED TO SUPPLY THE G OODS AND THE CO-ORDINATE BENCH HELD THAT ONCE THEY ARE NOT ESTABLISHED TO BE CREDITORS OPERATION OF SECTION 6 8 OF THE I.T. SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 22 ACT DOES NOT COME INTO PLAY. NO MATERIAL WAS BROUG HT BY THE LD. A.O TO PROVE THAT THE MONEY WAS THE ASSESSEES OWN UNDISCLOSED INCOME (EMPHASIS SUPPLIED). 16. AS REGARDS THE JUDGMENT OF HONBLE APEX COURT I N THE CASE OF NRA IRON & STEEL PVT. LTD (SUPRA) RELIED BY LD. DR WE FIND THAT IN THIS JUDGMENT THE ISSUE WAS WITH REGAR D TO THE SHARE CAPITAL AND SHARE PREMIUM CREDITED IN THE BOO KS AND THERE WAS AN INDEPENDENT ENQUIRY CONDUCTED BY LD. A .O. BOTH THESE FACTS ARE ABSENT IN THE INSTANT CASE THE REFORE THE JUDGMENT RELIED BY LD. DR IS NOT APPLICABLE ON THE INSTANT APPEALS. 17. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANC ES OF THE CASE AND RESPECTFULLY FOLLOWING THE JUDGMENT RE FERRED AND RELIED BY LD. CIT(A) AS WELL AS THE ONE REFERRE D BY US ARE OF THE CONSIDERED VIEW THAT THE ALLEGED AMOUNT OF RS.2 76 42 000/- IS ACTUALLY THE REFUND OF THE ADVA NCES GIVEN BY THE ASSESSEE TO VARIOUS PARTIES FOR PURCHA SE OF LAND IN PRECEDING YEARS WHICH WERE GIVEN THROUGH BANKING SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 23 CHANNEL AND DULY DISCLOSED IN THE AUDITED FINANCIAL STATEMENTS PLACED BEFORE THE REVENUE AUTHORITIES IN THE PRECEDING YEARS AND NO ADDITION/DISCREPANCY HAVE BE EN NOTICED. WE THEREFORE FIND NO REASON TO INTERFERE IN THE FINDING OF LD. CIT(A) AND THE SAME STANDS CONFIRMED . IN THE RESULT GROUND NO.1 RAISED BY THE REVENUE IS DISMISS ED. 18. NOW WE TAKE UP GROUND NO.2 REGARDING THE ADDITI ON OF RS.83 04 400/- MADE BY THE LD. A.O U/S 41(1) OF THE ACT FOR BOGUS CREDITORS WHICH WAS DELETED BY LD. CIT(A). B RIEF FACTS RELATING TO THIS ISSUE ARE THAT ON THE LIABILITY SI DE OF BALANCE SHEET ASSESSEE HAD SHOWN FOLLOWING CREDITORS:- SL.NO. NAME OF THE CREDITORS AMOUNT OUTSTANDING (IN RS.) 1. SUNIL JAIN 550000 2 HEMCHANDRA BAJAJ 1105000 3 SRI K. BAWA 700000 4 ANAND KUMAR JAIN 526000 5 SHRI S.AP. JOSHI 600000 6 SMT. ALKA RAJENDRA CHATURVEDI 501000 7 S. WADHWANI 1002713 8 JAGDISH CHAND NARAYAN PRASAD 800000 9 ANITA W/O SURESH KUMAR SHARMA 500000 10 AMIT KUMAR SHANTILAL JAIN 775000 SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 24 11 MAGGY PUBLICITY 1245687 TOTAL 83 05 400/ - 19. NOTICES U/S 133(6) OF THE ACT GIVEN TO THE ABO VE MENTIONED PARTIES WERE RETURNED UNSERVED. BEFORE T HE LD. A.O ASSESSEE SUBMITTED THAT IT IS ENGAGED IN THE BU SINESS OF DEVELOPMENT OF LAND AND DEVELOPED PLOTS ARE SOLD TO ITS CUSTOMERS EXCEPT THE PARTY NAMELY MAGGY PUBLICITY W HICH IS A SUNDRY CREDTOR. ALL OTHER PARTIES HAVE GIVEN ADVA NCE TO ASSESSEE FOR BOOKING PLOT OF LANDS. WHENEVER THE SA LE DEED IS REGISTERED THE ADVANCE AMOUNT IS ADJUSTED IN SAL ES ACCOUNT. GIVING REFERENCE TO ONE OF THE SUNDRY CRE DITORS MR. SUNIL JAIN IT WAS SUBMITTED THAT THE PLOT WAS BOOKE D BY HIM AND HE PAID THE AMOUNT BY CHEQUE DURING FINANCI AL YEAR 2009-10. THE ADDRESS PROVIDED BY HIM AT THE T IME OF BOOKING WAS GIVEN TO THE LD. A.O. HE IS NOT THE OU TSTANDING CREDITOR ONLY REGISTRY IS PENDING AND THE DATE ON WHICH THE PLOT IS COMPLETED WILL GET REGISTERED IN HIS NAME A ND THE AMOUNT RECEIVED AS ADVANCE WILL BE TRANSFERRED TO S ALES ACCOUNT. SIMILAR WAS THE SITUATION OF THE OTHER PA RTIES ALSO. THIS PLEA OF THE ASSESSEE WAS NOT ACCEPTED AND THE LD. A.O SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 25 MADE THE ADDITION FOR BOGUS CREDITORS U/S 41(1)(A) OF THE ACT. 20. HOWEVER BEFORE LD. CIT(A) ASSESSEE SUCCEEDED IN CONVINCING THE LD. CIT(A) THAT THE ALLEGED AMOUNT A RE NOT SUNDRY CREDITORS BUT THEY ARE ADVANCE OF BOOKING OF PLOTS. IT WAS ALSO SUBMITTED THAT OUT OF 11 PARTIES IN THE CASE OF TWO PARTIES NAMELY SHRI AMIT KUMAR SHANTILAL JAIN A ND ANITA W/O SURESH KUMAR SHARMA THE AMOUNT APPEARING IS ADVANCE OF BOOKING OF PLOTS WAS SUBSEQUENTLY TRANSF ERRED TO REVENUE ACCOUNT AS SALES AS THE REGISTRY OF PLOT OF LAND WAS DONE IN THE FAVOUR OF TWO PARTIES. LD. CIT(A) AFTE R EXAMINING THE FACTS OF THE CASE DELETED THE ADDITIO N MADE BY LD. A.O U/S 41(1)(A) OF THE ACT OBSERVING AS FOL LOWS:- GROUND NO 3 6. THIS GROUND OF APPEAL IS WITH REGARD TO TREATING RS.83 05 400/- AS BOGUS CREDITORS AND ADDING THE SAME BY WRONGLY APPLYING THE PROVISIONS OF SECTION 41(I)(A) OF THE INCOME TAX ACT. I HAVE CAREFULLY GONE THROUGH BOTH THE ASS ESSMENT ORDER AS WELL AS THE SUBMISSIONS OF THE APPELLANT IN THIS REGARD. 6.1 THE LEARNED A 0 DURING ASSESSMENT PROCEEDINGS HAS ADDED AN AMOUNT OF RS.83 05 400/- (ALTHOUGH IN EXPLANATIO N PARA HE HAS ADDED RS.70 59 713/- ONLY BUT WHILE COMPUTING H E HAS CONSIDERED RS.83 05 400/- BY APPLYING PROVISION OF SECTION SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 26 41(1)(A). 6.2 THE APPELLANT HAS SUBMITTED THAT THE APPELLANT COMPANY BEING IN THE BUSINESS OF DEVELOPMENT OF LAND ALL THESE AMOU NTS WERE RECEIVED AS ADVANCE AGAINST THE BOOKING OF PLO TS IN EARLIER YEARS AND WERE SHOWN AS ADVANCE AGAINST BOOKING IN THE BALANCE-SHEET. IT WOULD BE PROPER TO REPRODUCE THE SUBMISSIONS OF THE APPELLANT IN THIS REGARD:- 'AS AND WHEN THE RESPECTIVE PLOT IS BEING REGISTERED AND SALE DEED WILL BE EXECUTED THESE AMOUNT WILL BE TRANSFERRED TO REVENUE. KINDLY REFER NOTE 8 TO BALANCE- SHEET WHEREIN THESE AMOUNT WERE APPEARING IN AGGREGATE UNDER 'ADVANCES FROM CUSTOMERS' OF RS. 3 81 37 651/-. KINDLY REFER PAGE 19 OF OUR SUBMISSION. YOUR HONOUR THESE AMOUNTS ARE NOT APPEARING AS ANY CREDIT FOR WHICH THE RESPECTIVE DEBIT HAD BEEN CHARGED TO PROFIT AND LOSS ACCOUNT. WE WOULD LIKE TO DRAW YOUR KIND ATTENTION TO SECTION 41 (L)(A) WHICH IS REPRODUCED BELOW: WHERE AN ALLOWANCE OR DEDUCTION HAS BEEN MADE IN THE ASSESSMENT FOR ANY YEAR IN RESPECT OF LOSS EXPENDI TURE OR TRADING LIABILITY INCURRED BY THE ASSESSEE (HEREINA FTER REFERRED TO AS THE FIRST-MENTIONED PERSON) AND SUBSEQUENTLY DURING ANY PREVIOUS YEAR:- (A) THE FIRST-MENTIONED PERSON HAS OBTAINED WHETHER IN CASH OR IN ANY OTHER MANNER WHATSOEVER ANY AMOUNT IN RESPECT OF SUCH LOSS OR EXPENDITURE OR SOME BENEFIT IN RESPECT OF SUCH TRADING LIABILITY BY WAY OF REMISSION OF CESSATION THEREOF THE AMOUNT OBTAINED BY SUCH PERSON OR THE VALUE OF BENEFIT ACCRUING TO HIM SHALL BE DEEMED TO BE PROFITS AND GAINS OF BUSINESS OR PROFESSION AND ACCORDINGLY CHARGEABLE TO INCOME- TAX AS THE INCOME OF THAT PREVIOUS YEAR WHETHER TH E BUSINESS OR PROFESSION IN RESPECT OF WHICH THE ALLOWANCE OR DEDUCTION HAS BEEN MADE IS IN EXISTENCE IN THAT YEAR OR NOT 3.5 THE COPY OF LEDGER ACCOUNT OF ALL THE PARTIES ARE E NCLOSED AS UNDER:- SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 27 SL.NO. NAME OF THE CREDITORS AMOUNT OUTSTANDING (IN RS.) 1. SUNIL JAIN 550000 2 HEMCHANDRA BAJAJ 1105000 3 SRI K. BAWA 700000 4 ANAND KUMAR JAIN 526000 5 SHRI S.AP. JOSHI 600000 6 SMT. ALKA RAJENDRA CHATURVEDI 501000 7 S. WADHWANI 1002713 8 JAGDISH CHAND NARAYAN PRASAD 800000 9 ANITA W/O SURESH KUMAR SHARMA 500000 10 AMIT KUMAR SHANTILAL JAIN 775000 11 MAGGY PUBLICITY 1245687 TOTAL 83 05 400/ - IN ADDITION TO THIS WE WOULD LIKE TO BRING TO YOUR KIND NOTICE THAT IN 2 CASES NAMELY AMIT KUMAR SHANTILAL JAIRI AND ANITA W /O SURESH KUMAR SHARMA THE SALE DEED HAS BEEN EXECUTED AFTER PASSING OF THE ASSESSEE OFFICER AND TILL DATE. THESE AMOUNTS V ERY DULY TRANSFERRED TO OUR REVENUE ACCOUNT AS PER THE DATE OF SALE DEED. COPY OF SALE DEED AND COPY OF RESPECTIVE LEDGERS AR E ENCLOSED. (ENDS 111 TO 138) IN CASE OF ITEM NO 11 IN THE ABOVE CHART IN THE NAME OF MAGGI PUBLICITY THE SAME HAS NOT BEEN ACTUALLY ADDED IN THE BODY OF THE ORDER BUT SAME WAS WRONGLY CONSIDERED IN THE TOTAL OF ADDITION. THIS AMOUNT OF RS. 12 45 687/- OF MAGGI PUBLICITY HAS AL READY OFFERED AS INCOME I N THE A Y_2014-15 AS NOT PAYABLE. COPY OF THE NOTE NO .15 OF THE PROFIT AND LOSS ACCOUNT FOR THE YEAR ENDED ON 31/03/2014 IS ENCLOSED FOR YOUR HONOUR READY REFERE NCE (ENDS 139) THEREFORE YOUR HONOUR THE ADDITION WAS MADE BY WRON GLY APPLYING THE PROVISION OF SECTION 41 (L)(A) MAY PLEASE BE DELETED.' 6.3 AFTER GOING THROUGH THE SUBMISSIONS OF THE APPELLAN T THE ASSESSMENT ORDER AND THE DOCUMENTS SO PRODUCED BEFO RE ME IT SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 28 IS CLEAR THAT AS FAR AS THE AMOUNT OF RS.12 45 687/- IS CONSIDERED I AM INCLINED TO AGREE WITH THE APPELLANT SUBMISSIONS AS THE SAME HAS ALREADY BEEN OFFERED AS INCOME U/S 41(1) BY THE APPELLANT ITSELF IN A.Y.2014-1S AS NOT PAYABLE AND HENCE THE ADDITION OF THIS AMOUNT TANTAMOUNT TO DOUBLE ADDITION. FURTHER IT IS ALSO CLEAR THAT THESE AMOUNTS REPRESENT THE ADVANCES SO RECEIVED FROM THE CUSTOMERS AND THE SAME GETS REALIZED TO RE VENUES / SALES AS AND WHEN THE SALE DEEDS ARE EXECUTED. HENC E THE AO HAS NOT CORRECTLY APPLIED THE PROVISION OF SECTION 41 (1 )(A) IN THIS CASE. THUS THE ADDITIONS SO MADE ARE HELD TO BE NOT PROPER AND ARE ACCORDINGLY DELETED. THIS GROUND OF APPEAL IS ALLOWED. 21. ON PERUSAL OF THE FINDING OF LD. CIT(A) AS WELL AS THE FACTS NARRATED BEFORE US ALONG WITH THE DOCUMENTARY EVIDE NCES IT IS PREDOMINANTLY CLEAR THAT THE ALLEGED AMOUNT OF BOGU S CREDITORS ARE NOT IN THE FORM OF SUNDRY CREDITORS. THESE AMOUNTS ARE ADVANCES AGAINST BOOKING OF PLOTS. WHEN THE PLOTS ARE DEVEL OPED AND THE PARTIES WHO HAVE BOOKED THE PLOTS GIVE THE REMAININ G AMOUNT IF ANY THEN THE ADVANCE GIVEN AT THE TIME OF BOOKING IS TRANSFERRED TO SALES ACCOUNT. 22. WE THEREFORE ARE OF THE VIEW THAT AS REGARDS TH E AMOUNT OUTSTANDING AT RS.12 45 687/- IN THE NAME OF MA GGY PUBLICITY NO ADDITION CAN BE MADE U/S 41(1) OF THE ACT SINCE IT HAS OFFERED TO TAX IN THE RETURN OF INCOME FILED FOR ASSESSMENT YE AR 2014-15. FURTHER WE FIND THAT ALL THE REMAINING 10 PARTIES A RE NOT SUNDRY SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 29 CREDITORS BUT ARE THE ADVANCES FOR BOOKING OF DEVEL OPED PLOTS OF WHICH SOME HAVE ALREADY BEEN TRANSFERRED TO THE SA LES ACCOUNT WHEN THE REGISTRY WAS COMPLETED. THESE 10 PARTIES CANNOT BE TERMED AS SUNDRY CREDITORS AS THERE IS NO SUPPLY OF GOODS OR SERVICES BY THESE PARTIES. LEDGER ACCOUNT SHOWS TH AT THE ASSESSEE HAS RECEIVED THE SUM THROUGH BANKING CHANNEL FROM T HESE PARTIES. SUCH SUM RECEIVED CAN EITHER BE IN THE FORM OF UNSE CURED OR ADVANCE FOR SALE/BOOKING OF PLOTS. IN THE INSTANT CASE OUT OF THE 10 PARTIES IN TWO CASES THE REGISTRY HAVE BEEN DONE AN D THE ADVANCES RECEIVED DURING THE PRECEDING YEARS HAVE BEEN TRANS FERRED TO SALES ACCOUNT. THIS FACT ASSERTS THAT ALL THE SUM RECEIV ED FROM 10 PARTIES IS ADVANCES FOR BOOKING OF PLOTS AND NOT BALANCE OF SUNDRY CREDITORS. 23. HON'BLE GUJARAT HIGH COURT IN THE CASE OF NITIN S GAR (SUPRA) (2012) 22 TAXMANN.COM 59 HAS HELD THAT MERELY BECAUSE THE LIABILITIES ARE OUTSTANDING FOR LAST MANY YEARS IT CANNOT BE INFERRED THAT THE SAID LIABILITIES HAVE SEIZED TO EXIST. TH E APPELLATE TRIBUNAL HAS RIGHTLY OBSERVED THAT THE ASSESSING OFFICER SHA LL HAVE TO PROVE SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 30 THAT THE ASSESSEE HAS OBTAINED THE BENEFITS IN RESP ECT OF SUCH TRADING LIABILITIES BY WAY OF REMISSION OR CESSATION . 24. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANC ES OF THE CASE AND RESPECTFULLY FOLLOWING THE JUDGMENTS REFERRED A ND RELIED HEREIN ABOVE FIND NO REASON TO INTERFERE IN THE FINDING OF LD. CIT(A) AND THUS ARE OF THE CONSIDERED VIEW THAT OUT OF THE ALL EGED SUM OF RS.12 45 687/- OUTSTANDING IN THE NAME OF MAGGI PUB LICITY HAS BEEN OFFERED TO INCOME FOR ASSESSMENT YEAR 2014-15 AND ALL THE REMAINING AMOUNT OF RS.70 59 713/- RECEIVED FROM 10 PARTIES ARE NOT SUNDRY CREDITORS AS THEY HAVE ADVANCES FOR BOOK ING OF PLOT OF LANDS OF WHICH FEW HAVE BEEN TRANSFERRED TO SALES A CCOUNT AS AND WHEN THE REGISTRY OF PLOT OF LAND IS COMPLETED. PR OVISION OF SECTION 41(1) ARE NOT APPLICABLE ON THIS CASE AS THE ASSESS EE HAS NOT CLAIMED THE ALLEGED AMOUNT OF ADVANCES FROM CUSTOME RS AS AN ALLOWANCE OR DEDUCTION IN ANY ASSESSMENT YEAR IN RE SPECT OF LOSS EXPENDITURE OR TRADING LIABILITY. WE THUS CONFIRM THE FINDING OF LD. CIT(A) AND DISMISS REVENUES GROUND NO.2. SUNDERDEEP CONSTRUCTION PVT. LTD ITA NO.380/IND/2017 31 25. GROUND NO.3 IS GENERAL IN NATURE WHICH NEEDS NO ADJUDICATION. 26. IN THE RESULT ALL THE GROUNDS RAISED BY THE REV ENUE ARE DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 25.03.2021. SD/- SD/- ( KUL BHARAT) (MANI SH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 25 TH MARCH 2021 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR ITAT INDORE/GUARD FILE. BY ORDER ASSTT.REGISTRAR I.T.A.T. INDORE