TMI Blog2021 (5) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 - SUPREME COURT] the entry in the books of account is not relevant, then, still the assessee has to satisfy the AO as per section 68 of the Act. Therefore, we are of the considered opinion that the issue in dispute shall be remitted back to the AO for de-novo assessment. Accordingly, we restore the matter back to the file of the AO for de-novo adjudication, after giving reasonable opportunity of hearing to the assessee in the matter. Appeal of the revenue is treated as allowed for statistical purposes - ITA No. 806/H/2019 - - - Dated:- 19-5-2021 - Smt. P. Madhavi Devi, Judicial Member And Shri Laxmi Prasad Sahu, Accountant Member For the Assessee : Shri K.V. Chalamaiah For the Revenue : Shri Sunil Kumar Pandey ORDER PER L.P. SAHU, AM: This appeal filed by the Revenue for AY 2015-16 is directed against the CIT(A) - 1, Hyderabad s order, dated 21/02/2019 involving proceedings u/s 143(3) of the Income Tax Act, 1961 ; in short the Act on the following grounds of appeal: 2. We notice at the outset that revenue s instant appeal suffers from 5 days delay in filing. To this effect, the AO filed petition for condonation of the said delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee has booked the entire amount as his own capital in the ITR furnished by him. Further, the assessee has also submitted a balance sheet of the assessee wherein it is also indicated that an amount of ₹ 2, 84, 64, 000/ - was ( capital brought in'. Thus, it 'is clear that the assessee on multiple occasions has clearly intended to treat the sum received as his own capital. Further, a perusal of point No.12 of the lease agreement with Secunderabad Contonment Board indicates that the assessee has deposited a sum of ₹ 2, 50, 00, 000/- with the Cantonment Board as under: D.D.No. Date Bank Amount 254447 17-06-2014 Bank of Baroda 20,00,000 254446 17-06-2014 Bank of Baroda 30,00,000 Bank Transfer Bank of Baroda 2,00,00,000 Hence, the claim of the assessee that part of the payment to Secunderabad Cantonment Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, the CIT(A) allowed the appeal of the assessee by observing as under: 8. I have carefully considered the facts of the case, assessment order, remand report submitted by the Assessing Officer and the submissions of the appellant. Even though one opportunity given to the AO to verify the bank account and submissions of the appellant, the AO concluded that these are already available at the time of assessment. 8.1 As per the Assessment Order, the AO mainly made the addition of ₹ 2,72,19,261/- u/s.68 as unexplained credit. On verification of bank accounts, there is capital ₹ 1,42,74,OOOI as on 05-7-2014 came through RTGS. Another ₹ 10 lakhs through RTGS on 07-07-2014. Therefore, the appellant received this total capital of ₹ 1,52,74,000/- not in cash. Hence, the addition made to this extent is not sustained and hence deleted. 8.2 As per the appellant's explanation, the profit from liquor and tollgate business of ₹ 47,65,576/- also to be given credit. After verification of the same, since the appellant disclosed this profit hence capital to this extent to be treated as explained. Hence, addition to this extent deleted. With ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the order of the CIT(A) and reiterated the submissions as made before the lower authorities. He submitted that all the details were produced to the satisfaction of the AO at the time of assessment proceedings. He submitted that the amounts were directly credited into the bank account of the assessee. He submitted that the CIT(A) has decided the issue in favour of the assessee after considering all the facts and documents filed by the assessee. He, therefore, prayed that the order of the CIT(A) may be upheld. 8. After considering the rival submissions and perusing the material on record as well as going through the orders of revenue authorities, we observe from the orders of authorities below that initially the assessee has shown an amount of ₹ 2,84,64,000/- in order to meet the amount payable to secunderabad cantonment board towards 1/3rd of the contract amount, which has been disallowed by the AO u/s 68 of the Act for not discharging the onus cast upon the assessee under the said section. Further, on perusal of the paper book submitted by the ld. DR, which was submitted by the assessee before the AO during the course of assessment proceedings, from the page 3 at pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allied with the submissions made by the assessee at paragraph No. 4 as quoted supra. The ld. AR of the assessee before us, alternatively, submitted that it is a loan, but not a capital and the same is to be returned to the depositors/creditors. Even if this alternative argument of the assessee is considered by following the judgment of Kedarnath Jute Manufacturing Co Ltd v. CIT (1971) 82 ITR 363 (SC), the entry in the books of account is not relevant, then, still the assessee has to satisfy the AO as per section 68 of the Act. Therefore, we are of the considered opinion that the issue in dispute shall be remitted back to the AO for de-novo assessment. Accordingly, we restore the matter back to the file of the AO for de-novo adjudication, after giving reasonable opportunity of hearing to the assessee in the matter. The assessee is directed to substantiate its claim by way documentary evidence before the AO. Accordingly, the grounds raised by the revenue are allowed for statistical purposes. 9. In the result, appeal of the revenue is treated as allowed for statistical purposes in above terms. Pronounced in the open court on 19th May, 2021. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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