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ITA No. 245 of 2016 (O&M) -|- IN THR HIGH COURT OR PUNJAB AND HARYANAAT CHANDIGARH CORAM: HON'BLE MR. JUSTICE AJAY KUMAR MITTAL, JUDGEHON'BLE MR. JUSTICE AVNEESH JHINGAN, JUDGE Present:Mr. Rajesh Katoch, Senior Standing Counsel|for the revenue. Mr. Divya Suri, Advocatefor the assessee. 8888 AVNEESH JHINGAL, J. This order shall dispose of six appeals and two cross-objections. In all the cases common issue is involved and hence are being disposed of bya single order. oThe details of appeals and cross-objections are tabulated below: ITA No. 245 of 2016 (O&M) 3The facts are being extracted from ITA No. 245 of 2016. The revenue has filed the appeal under Section 260A of the IncomeTax Act, 1961 (for short ‘the Act’), against the order dated 30.03.2016 passed bythe Income Tax Appellate Tribunal, Division Bench, Chandigarh (for short ‘theTribunal’) passed in ITA No. 751/Chd/2014 The assessment year involved is2009-10. 4The appellant has claimed following substantial questions of law: ==(1)Whether on the facts and in the circumstances of the case, theHon'ble ITAT has erred in law in deleting the addition of Rs.1,22,57,417/-made on account of disallowance u/s 40A(3) of the IT Act, 1961, inrespect of cash payments made to sellers of the agricultural land withoutappreciating that the assessee's business is of real estate and the land is itsstock in trade? (11)Whether on the facts and in the circumstances of the case, theHon'ble ITAT has erred in law in deleting the addition of Rs.1,22,57,417/-made on account of disallowance u/s 40A(3) of the LT.Act, 1961 whereasthe assessee could not prove the business exigency/exceptionalcircumstances for making the cash payments?(111)Whether on the facts and in the circumstances of the case, theHon'ble ITAT has erred in law in allowing the appeal of the assessee byrelying on the judgdment of Hon'ble Punjab and Haryana High Court inthe case of Gurdas Garg Vs. CIT in ITA No. 413 of 2014 whereas theIncome Tax Department has filed a review application in that case?" The assessee-company was a real estate developer. A search was| conducted under Section 132 of the Act on 18.02.2011. In response to notice undersection 153A of the Act, the assessee filed return on 10.09.2012 declaring incomeof Rs.38,47,940/-. During the course of proceedings, the Assessing Officer noticedthat the assessee had purchased properties amounting to Rs. 7,12,63,152/-. Out ofthis amount, cash payments had been made to the sellers to the tune ofRs.1,22,57,417/-. Invoking the provisions of Section 40A(3) of the Act, thededuction on the cash payments made for purchase of land were disallowed, as theassessee failed to furnish any satisfactory explanation and evidence for justifyingthe cash payments made. The assessment order under Section 153A read withSection 143(3) of the Act was finalised on 25.03.2013. 6.Aggrieved of the assessment order, the assessee preferred an appealbefore the Commissioner of Income Tax (Appeals)-I, Ludhiana (for short ‘theCIT(A)). The appeal was dismissed vide order dated 23.06.2014. Further, appealwas filed by the assessee before the Tribunal. The Tribunal vide order dated30.03.2016 following the decision of this Court in the case ofGurdas Garg.Versus The Commissioner of Income Tax (Appeals), Bathinda and another6ITA No. 413 of 2014 dated 16.07.2015allowed the appeal and deleted theaddition made on account of disallowance under Section 40A(3) of the Act.Hence, the present appeal.vaLearned counsel for the appellant-revenue argued that the Tribunalhad relied upon the decision of this Court in the case ofGurdas Garg's case(supra), wherein the revenue had filed a review petition against the said decisionand order dated 16.07.2015 has been re-called by this Court vide order dated30.09.2016, &_Learned counsel for the assessee-company contended that theTribunal has rightly allowed the appeal after considering the case as per the &_Learned counsel for the assessee-company contended that theTribunal has rightly allowed the appeal after considering the case as per the OQIn view of the changed position and the Tribunal being final factfinding authority, it is necessary that the factual aspect of each case is examinedatresh. 10,From the perusal of the order of the Tribunal, it is evident that theTribunal allowed the appeal following the decision of this Court in GurdasGarg's case(supra). The said order no longer exists as the same has been re-calledin a review application filed by the revenue. In such circumstance, it would beappropriate to remand the matter back to the Tribunal to decide the appeals and thecross-objections afresh after examining the facts of each case in detail. Orderedaccordingly. 11.The appeals, cross-objections and the questions claimed are disposedof as indicated above. (AJAY KUMAR MITTAL)JUDGE 25.10.2018reeMd (AVNEESH JHINGAN)JUDGE Whether speaking/reasonedWhether Reportable: Yes/NoYes/No}