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2015 (2) TMI 990 - ITAT DELHIDeemed dividend - assessee had received unsecured loan of ₹ 1,25,00,000 from M/s Kohli Housing & Development Pvt. Ltd. and the fact that both the assessee company and M/s Kohli Housing & Development Pvt. Ltd. have Sh. Sudershan Kohli and Smt. Kum Kum Kohli as common shareholders having 50% share each in both these companies - CIT(A) deleted the addition - Held that:- Evidently there is no dispute either in regard to the dates on which the loans were advanced and nor on the ownership pattern of the recipient i.e. the assessee company. We have no hesitation in holding that in the facts as they stand which have not been upset by the Revenue the inference drawn by the AO that the affairs of the assessee company were so arranged only to deprive the collection of tax having not been substantiated the finding of the CIT(A) on facts deserving to be upheld. Since the primary condition for attracting the provisions of section 2(22)(e) admittedly stand unfulfilled, the occasion to bring the assessee within the rigorous of the said section cannot be upheld. - Decided in favour of assessee. Unexplained investment - Addition made u/s 69 - CIT(A) deleted the part addition - Held that:- Revenue has not been able to refer to any argument or evidence available on record to show that the Smt. Dayawati (the owner of the land) and her husband, Sh. Om Prakash (who handled the sale of his wife land) were reliable witnesses. Infact the manner of recording statement reeks of a position where the couple appear to have given statements to explain the expenses incurred on the marriage of their daughter in February 2008. Nothing is available on record qua the education and financial status of the Smt. Dayawati except the fact that she is a PAN holder and blindly accepted her husband's word and nothing is on record to establish the credibility of Sh. Om Prakash who does not identify himself by a PAN and merely as the husband of Smt. Dayawati, his education, his legitimate source of livelihood, financial background etc. are all left unaddressed as would be evident from answers to Question No-1 put by the AO to Sh. Om Prakash on 26.12.2008 as opposed to Question No.-1 put by the AO to his wife on 14.12.2008. we hold that the AO erred in making the addition of ₹ 10 lakh and the CIT(A) erred in conforming the same based on the statement of a tutored witness who as per her own statement had no personal knowledge of the events and relied blindly in good faith on hearsay information given to her by her husband. Since in the facts of the present case nothing has been placed by the department apart from the statement of a tutored witness the action cannot be upheld. Accordingly the remaining additions sustained by the CIT(A) are also ordered to be deleted. - Decided in favour of assessee. Considering the other sale instances wherein the AO applied a flat rate of ₹ 6,60,000/- per acre and the CIT(A) proceeded to sustain the addition on the basis of value adopted for stamp duty purposes found recorded in the Registered Sale Deeds itself, we find that since the whole action had started on the basis of the fact that Smt. Dayawati has alleged that the figures given in the sale deed were not reliable and the same on facts has not been upheld by us in the circumstances the very edifice on the basis of which the additions have been made having fallen the remaining additions fall. Thus where the very basis justifying interference by the Revenue stands demolished the occasion to interpolate the amounts in the absence of any other cogent evidence does not arise. Since the sale price remains undisturbed the addition on brokerage etc. also does not survive which was made by the AO u/s 69C and partly sustained by the CIT(A). - Decided in favour of assessee.
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