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2019 (10) TMI 1228 - AT - Income TaxUnexplained investment in factory building - addition u/s 69B - commercial production start - HELD THAT:- Tribunal was pleased to specifically observed the undisputed fact that the assessee has started commercial production from 22.11.2001 and the slip which was found on 22.01.2002 i.e. within the 3 months from the date of commencement of commercial production does not contain any date when the payment was made by the assessee. Neither any description against the amount in question is mentioned in the particular slip. It is only in the answer to question no.20 Shri Rohitbhai Amin stated that he paid in cash ₹ 84 lacs to M/s. Built Quick Construction Co. from time to time since 01.04.2000 to December, 2000 (Approx). How much payment were made prior to the commercial production was also not brought on record. Though the said Shri Rohibhai Amin deposed not only by the Board of Directors but also in the individual capacity. It was neither on record that whether he was having authorization on behalf of Directors. There is no such specific details as regards the assessee company has whether started its commercial production when the payment was made to M/s. Built Quick Construction Co. Disclosure made by Shri Rohibhai Amin whether belong to the assessee or to Shri Rohibhai Amin in individual capacity is to be decided especially when the assessee company did not have any source of income except the capital receipt by way of share contribution or borrowings. These aspects of the matter have not been considered either by the Learned CIT(A) or by the Learned AO which was directed to be considered by the Learned AO by the order dated 13.10.2006 passed by the Hon’ble ITAT. Authorities below has not acted in the manner has been specified by the Hon’ble Tribunal in order to deal the issue afresh; the directives of the Hon’ble Tribunal has not been followed in its letter and spirit and hence, we are of the observation to restore the issue to the file of the Learned AO with a specific direction upon him to deal with the issue afresh in the light of the observations made by the Hon’ble Tribunal - Assessee’s appeal is allowed.
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