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2017 (10) TMI 1146 - ITAT MUMBAIAddition with respect to amount received from one M/s. IL&FS Transportation Network Ltd. - assessee had claimed it as a security deposit in pursuance to an MOU, against which services were to be performed - AO had disagreed and concluded that it was in the nature of an amount owned by the assessee itself - CIT(A) has allowed relief to the extent amount has been repaid, and he has not touched upon the ‘nature’ of the credit at the time of its receipt - whether there is enough justification to say that the amount has been received for which assessee has a liability to either repay or render the services as envisaged in the MOU. Held that:- Whether or not the said plea is tenable is relevant to decide the fate of the impugned sum of ₹ 40,00,000/-, but the same has not been addressed by the CIT(A). So far as the source of the credit is concerned, there is no dispute, and the only dispute is with regard to the nature of the amount and, in our considered opinion, the onus to prove the nature of impugned credit is entirely on the assessee. In our considered opinion, it would be in the fitness of things that the assessee is allowed an opportunity to demonstrate with positive evidence that with respect to the sum of ₹ 40,00,000/-, the liability to repay M/s. IL&FS Transportation Network Ltd. continues inspite of the fact that the arrangement envisaged in the Agreement (Memorandum of Understanding) dated 18.04.2008 has not fructified, a fact which is not in dispute. Since the aforesaid aspect requires a factual appreciation of the state of affairs, we deem it proper to restore the matter back to the file of the CIT(A). It is directed that the CIT(A) shall examine the aforesaid aspect on the basis of the material and evidence that the assessee may submit before him. Accordingly, the issue relating to assessability of sum is restored back to the file of the CIT(A) to be decided after hearing the assessee and as per law.
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