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2022 (3) TMI 245 - AT - Income TaxAddition u/s 68 - assessee has taken unsecured loans from Jayesh K. Sheth and no confirmations in respect of the unsecured loans were submitted in respect of the certain parties - HELD THAT:- We observe that as per the Balance Sheet submitted before us in the form of Paper Book clearly indicate that assessee has received ₹.30 lakhs from Jayesh K. Sheth and there is no other entry in the name of Jayesh K. Sheth anywhere in the Balance Sheet. We do not see the amount mentioned by the Assessing Officer as outstanding nowhere in the balance sheet. Therefore, we presume that Assessing Officer must have considered the interest also along with the outstanding advance. Since assessee has brought to our notice that it is only a flat advance received by the assessee not as unsecured loans - there is no independent finding or material available on record to show that the above said party has lent the money to the assessee as unsecured loans and since AO has issued show cause notice u/s.133(6) of the Act for which no response or any confirmations submitted by the assessee before the AO, therefore, we direct the assessee to file the confirmations from Jayesh K. Sheth for receipt as advance for the flat - we direct the AO on receipt of confirmation of the above said advance, we direct the Assessing Officer to delete the addition since it is not an unsecured loan and on submission of the above confirmation it proves that assessee has proved the genuineness of the receipt of the above said advance. Accordingly, Ground raised by the assessee is allowed for statistical purpose. Set off of unabsorbed business loss of earlier year - AO denied the profit declared by the assessee in the return of income filed u/s. 139 of the Act and while filing the return u/s. 153A of the Act, assessee has adjusted the profit declared u/s. 139(1) of the Act against in the unclaimed business loss and unabsorbed depreciation - HELD THAT:- We noticed that Hon'ble Bombay High Court in the case of CIT v. B.G. Shrike Construction Technology Pvt. Ltd. [2017 (3) TMI 879 - BOMBAY HIGH COURT] has held that the return filed u/s. 153A is a return furnished u/s. 139 and therefore the provisions of the Act which apply in case of return filed in regular course u/s. 139(1), would also continue to apply in case of return filed u/s. 153A - Thus claim not made in the return of income, the Court may lead to non entertainment of claim by the Assessing Officer. However, this restriction in the power of the Assessing Officer will not affect the power of the appellate Tribunal to entertain a fresh claim. - Decided in favour of assessee.
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