ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, UDAIPUR, UDAIPUR vs. ANJANA CONSTRUCTION, CHITTORGARH

"3. We have very serious reservations whether the Division Bench in an intra court appeal could have remitted a writ petition in the matter of moulding the relief. It is the exercise of jurisdiction of the High Court under Article 226 of the Constitution of India. The learned Single Judge as well as the Division Bench exercised the same jurisdiction. Only to avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the power of the High Court but that does not mean that the Single Judge is 455, 313 & CO 02/Jodh /2024 Anjana Construction subordinate to the Division Bench. Being a writ proceeding, the Division Bench was called upon, in the intra court appeal, primarily and mostly to consider the correctness or otherwise of the view taken by the learned Single Judge. Hence, in our view, the Division Bench needs to consider the appeal(s) on merits by deciding on the correctness of the judgment of the learned Single Judge, instead of remitting the matter to the learned Single Judge."

2. Name ad PAN of search assessee during whose Shri Udai Lalal Anjana proceedings satisfaction us/ 153C is drawn. (ABNPA4495M), Shri Puranmal Anjana (ABWPA2126J) 3. Name of searched group Chetak Group of Nimbahera 4. Date of search 16.09.2016 5. Identification of the seized / documents which in the opinion of AO of the searched assessee, belong o the person mentioned at Sr.No.1 (a) Reference of Annexure & Panchanama Annexure-A, Page 1-63, Party Through which relevant assets / document was No.3 seized / requisitioned (b) Address of the place from where asset / Udai Niwas, Bhanwar Mata document was seized Road, Chhoti Sadari (c) Description of relevant asset / document See Point No.6 6. The brief reasons/evidence on the basis of which the AO reached to the conclusion that the relevant seized asset/document belongs to the person in whose case action u/s 153C is proposed. Search &seizure and survey actions were carried out on Chetak Group of cases on 16.09.2016. During the search and seizure operation carried out at the residence/business premises at Udai Niwas, Bhanwar Mata Road, Chhoti Sadari, certain incriminating documents Annexure A-1, Page No. 1-63, Party No. 3 were found and seized. It contains agreement of transfer of ownership of land. As per aforesaid agreement Sh. Manohar Lal Anjana P/o M/s Anjana Construction has sold the (105 x 140 ft.) 14700 sq. ft. commercial land situated at Pratapgarh to Sh. Chandra Prakash Somani and Sh. Shripal.

455, 313 & CO 02/Jodh /2024 Anjana Construction As per the seized loose paper Sh. Manohar Lal Anjana has taken advance from the said party, amounting to Rs. 25,00,000/- and remaining amount of Rs. 3,96,00,000/- will be received before 15th June 2011. In view of above facts, I am satisfied that incriminating material/documents as mentioned above need to be scrutinized. I am therefore satisfied that this case is fit case to proceed with provisions of section 153Cr.w.s. 153A of the IT. Act, 1961 for A.Y. 2011- 12 to 2016-17 and action w/s. 153C r.w.s. 153A required to be initiated in this case. Therefore, notices U/s 153Cr.w.s. 153A of the Income-tax Act, 1961 for A.Y. 2011-12 to 2016-17 are being issued in this case.

7. Assessment years involved 2011-12 to 2016-17 Date: 24/09/18 sd/- (Girish Parihar) Dy.Commissioner of Income Tax, Central Circle-1, Udaipur”

The Hon’ble Supreme Court in case of Sunil Kumar Sharma (supra) upheld the order of the Hon’ble Karnataka High Court in DCIT VS Sunil Kumar Sharma (2024) 469 ITR 197 (Kar). We respectfully follow the order of Hon’ble Karnataka High Court which was duly affirmed by the Hon’ble Supreme Court accordingly, the initiation notice u/s 153C is quashed. Accordingly, the assessment for A.Ys 2014- 15 & 2015-16 u/s 153c r.w.s. 143(3), date of order 26/12/2018 are quashed.

455, 313 & CO 02/Jodh /2024 Anjana Construction ITAS No.313/Jodh/2024 (Revenue) & CO 02/Jodh/2024 (Assessee) 8. The revenue has filed the appeal against the order of the Ld. CIT(A), where the Ld. CIT(A) deleted the addition on account of capital introduction by the partner of the firm and added back the introduction of capital by the partner with the total income of the assessee. In grounds 1 to 4 the Ld. DR argued and relied on the order of the impugned assessment order. The Ld. DR prayed to uphold the addition made by the Ld.AO.

The AO stated that there is no explanation with the assessee about the capital contribution shown in the cash. Therefore, it is understood that cash introduced in the form of capital is nothing but unaccounted cash credit of the assessee which has been introduced in the books in the form of capital contribution in cash. Similarly, cash imprest account seems nothing but a way to introduce unaccounted cash of the assessee especially the OHDN cash. Therefore, it is clear that amount of Rs.63 lakhs shown as capital contribution in cash and amount of Rs. 29.1 lakh shown as OHDN taken from imprest account is nothing but the unaccounted cash of the assessee.

Therefore, the amount of Rs.92.1lakhs is treated as unaccounted cash credit in the books of assessee u/s 68 of the I.T. Act. This income is taxed u/s. 115BBE of the I.T. Act

The appellant explained that in the Cash Imprest Account on 23.07.2016, partner of the firm Shri Udai Lal Anjana introduced cash of Rs. 66.00 lakhs in the firm in the form of Cash Imprest. The above amount was received by Shri Udai Lal Anjana from M/s. Sarvodaya Mining Services on 21.07.2016. The copy of cash book of Shri Udai Lal Anjana was also to show that on 21.07.2016, Shri Udai Lal Anjana received cash of Rs. 1,13,50,000/-. It is explained that similarly on 30.10.2016 & 20.02.2017, amounts of Rs. 12,00,000/- & Rs.3,00,000/-, respectively, have been received from The copy of Capital Account of Mis. Sarvodaya Mining Services in the books of Shri Udai Lal Anjana along with relevant page of Audited Balance Sheet of Shri Udai Lal Anjana as at 31.03.2017 to show that balance of Rs. 75226001.25 is outstanding as at 31.03.2017 and which includes above transactions.

The capital account of Shri Udai Lal Anjana in the books of Mis. Sarvodaya Mining Services from to show that on 21.07.2016, Shri Udai Lal Anjana had withdrawn Rs. 11350000/- Also enclosed the relevant page of Balance Sheet of M/s. Sarvodaya Mining Services showing balance in Capital Account of Partners to show that balance of Rs. 75226001.25 is outstanding as at 31.03.2017 and which includes above transaction.

The copy of cash book of Sarvodaya Mining Service transaction furnished, which confirms that above transaction has duly been booked in Services duly showing the above their books of accounts along with relevant page of Balance Sheet duly confirming the cash balance and its reconciliation with cash books of various sites is also furnished.

It is explained that on 09.11.2016, out of above cash imprest account Rs. 29,10,000/- was deposited in Bank Account of the Assessee Firm being High Denomination Notes deposited at the time of demonetization.

It is stated that the Learned A.O. while making assessment added the amount received of Rs. 66.00 Lakhs and Rs. 29.10 Lakhs deposited in the Bank Account. While Rs. 29.10 Lakhs were deposited out of Rs. 66.00 Lakhs, hence double addition was made.

455, 313 & CO 02/Jodh /2024 Anjana Construction The appellant also furnished the copy of Audited Balance Sheet of Mis. Anjana Construction for the F.Y. 2016-17, duly confirming the opening and closing cash balance and capital balance of Shri Udai Lal Anjana.

Considering the evidences submitted by the appellant, it is evident that the appellant has established availability of cash with it. Therefore, the source of cash as added by the AO is found to be explained. In these circumstances, the addition made by the AO is not found to be sustainable and deleted.

This ground of appeal is treated as allowed.”

10. We heard the rival submissions and considered the documents available on the record. We find that the source of investment in the partnership firm by the partners are duly explained by the assessee, which are duly accepted by the Ld.CIT(A). Further, the source of the source is also proved by the assessee itself. Further, we respectfully relied on the order of Hon’ble Gujarat High Court in PCIT vs Vaishnodevi Refoils and Solvex (supra) where it was held that the addition cannot be accepted if the partners are tax paying entity. So, the introduction of capital by partners cannot be added in the hands of the partnership firm. We find no infirmity in the order of the Ld.CIT(A). Accordingly, the grounds 1 to 4 are taken by the revenue are dismissed. Ground 5: 11. The revenue has also challenged the deletion of addition of Rs.14,36,211/- for the amount debited in P&L Account which was duly adjusted in the closing stock. The Ld.DR in argument stated that the assessee has claimed Rs.7,30,833/- related to conversion and other development expenses reflecting debit in the P&L 455, 313 & CO 02/Jodh /2024 Anjana Construction Account and under the same head also the amount of Rs.7,05,378/- considering both the accounts, which comes to Rs.14,36,211/- wrongly debited in the P&L Account. The Ld. DR prayed for upholding the additions made by the Ld.AO. The Ld.AR stated that the said additions are made because of wrong understanding of the accounts. The assessee has debited this amount in P&L Account, but on the other hand, the assessee has added this amount in land and building in stock-in- trade. The amount is reflecting in capitalization of Rs.7,05,378/- and Rs.7,30,833/. So, the closing stock is also inflated. Considering both the entries, its effect is tax neutral. The Ld.AR respectfully relied on the impugned appellate order and the relevant paragraph 6.3 is extracted below: - “6.3. I have considered the facts of the case and written submissions of the appellant as against the observations/findings of the AO in the assessment order for the year under consideration. The contentions/submissions of the appellant are being discussed and decided as under.-

The AO noted that the assessee has claimed expenses under the head of conversion and development expenses of Rs.48,88,290/-, On the perusal of schedule 14 of the audit report it is noticed that out of these expenses, expenses of Rs.14,36,211/- has been shown as Capital Work in Progress. Therefore, the same are not allowable in P&L A/c hence, the same is hereby disallowed and added back to the income of the assessee.

In the reply, the appellant stated that during the financial year 2016-17, assessee firm incurred Conversion & Development expenses of Rs. 4888290/- This Conversion & Development expenses of Rs. 4888290, was presented in the Balance Sheet in site-wise manner, le development expense of each site was shown separately. It is stated that the above expenses include Rs 730833/- and Rs 705378 aggregating to Rs. 14.36,211 incurred on account of following plots, details of which is as under:-

455, 313 & CO 02/Jodh /2024 Anjana Construction S.No. Particulars Amount Remarks 1. Plot at Jiwaji Rao Sugar Mill Company, 730833/- The head in the Balance sheet was Neemuch inadvertently shown as its Nickname “Capital WIP Sugar, Neemuch”.

The Ledger Account in tally was opened in above name just to identify each expenditure. Sugar means plot situated at Jiwaji Rao Sugar Mill Company. Neemuch and Plot at JK Chouraha, Nimbahera copy of above expenses alongwith all relevant expenses incurred was furnished.

The Audited Balance Sheet of the above Firm and at Schedule -05 "Land & Building Stock in Trade", to show that against above Plots Rs 730833 & Rs. 705378/ has been added against relevant plots. And similarly, Rs. 4888290 is also included in conversion cost.

It is staled that from the above Schedule -05 "Land & Building Stock in Trade", is clear were not sold by the firm and as such the cost of conversion was added that above plots closing stock in the respective plots and shown as It is stated that all the above expenses has already been added back in profit and loss account and shown as Stock in Trade The explanation put forward by the appellant is considered and found to be acceptable on the facts of the case. The nomenclature given by the assessee does not make the expenditure allowable or disallowable. It is important to see the actual nature and its treatment in the books of accounts. Considering the reply of the appellant the expenditure has been included in the closing stock hence it is not capitalized directly. An expenditure incurred for the purpose of 455, 313 & CO 02/Jodh /2024 Anjana Construction acquiring goods purchased for resale, consumable items, etc. is a revenue expenditure. For example, purchase of raw material in the case of manufacturing unit and purchase of merchandise meant for the purpose of resale. At the end of the year, closing stock and opening stock of these items adjusted to match cost with revenue for calculating profit. Therefore, the addition made by the AO is not found to be sustainable and deleted. The ground of appeal is treated as allowed.”

12. We have carefully considered the rival submissions and perused the material placed on record. It is observed that the assessee had debited an amount of Rs.14,36,211/- in the Profit & Loss Account under the head “Conversion and Development Expenses,” while the same amount was simultaneously added to the closing stock under “Land & Building – Stock-in-Trade.” Thus, the effect is tax neutral, as there is no impact on the taxable profit. The Ld. CIT(A), after examining the ledger accounts, audited balance sheet, and the explanation of the assessee, rightly held that the nomenclature “Capital WIP” was inadvertently used and that the expenses stood capitalized in the closing stock. The tax auditor has also not raised any adverse comment in the tax audit report. Since the amount is already reflected in the closing stock, the addition made by the Assessing Officer does not survive. We, therefore, find no infirmity in the well- reasoned order of the Ld. CIT(A). Accordingly, the ground 5 is taken by the revenue is dismissed.

455, 313 & CO 02/Jodh /2024 Anjana Construction C.O. No.02/Jodh/2024: 14. The Cross Objection was filed to agitate the ground related to adhoc addition of Rs.1 lakh without rejecting the books of account of the assessee. The assesse has taken this ground for the first time before the bench in the form of additional evidence, which was not filed before the Ld.CIT(A). We find that as the issue was not taken before the Ld. CIT(A) and not decided by the Ld.CIT(A) in his order, the matter is restored to the file of the Ld.CIT(A) for further verification.