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2022 (9) TMI 50 - AT - Income TaxReopening of assessment u/s 147 - unexplained investment - Primary onus - assessee case was reopened u/s 148 based upon AIR information that assessee has made investment during the year under consideration in Mutual Funds - HELD THAT:-Primary onus is on the assessee to bring cogent evidences to substantiate its contentions whether the amount was invested during the year out of redemption of old Mutual funds or as to exemption of dividend/interest income received by the assessee. The primary onus is on the assessee to bring on record cogent evidences , so that correct income chargeable to income-tax within the provisions of the 1961 Act, is brought to income-tax. It is equally true that if the assessee has made investments in preceding years out of his tax paid known sources, merely redemption of the said old investments cannot be brought to tax , except income earned on it or is specifically provided to be chargeable to tax by the statute i.e. 1961 Act , but the onus is squarely on the assessee to substantiate its taxability or otherwise, by bringing on record cogent material. As also observed that the assessee has deposited cash in its ICICI Bank account on various occasions, and onus is very heavy on assessee to explain these cash deposits. It is for the assessee to substantiate its state of affairs and income which is chargeable to tax. If the assessee fails to discharge its primary onus, then Revenue has all the right to bring to tax unexplained credits, money as well investments. It is equally true that the correct income which is chargeable to tax under the provisions of the 1961 Act, is to be brought to tax for the correct assessment year in the hands of correct assessee. The authorities also must assist assessee in all reasonable ways, so that correct income chargeable to tax under the provision of the 1961 Act is brought to tax for correct assessment year in the hands of correct assessee. Reference is drawn to circular number 14 of 1955, dated 11.4.1955 issued by CBDT. Thus, after considering the entire material on record, I restore the matter back to the file of AO for denovo assessment on merit, in accordance with law - we clarify that I have not commented on the merits of the issues and all contentions are kept open. Needless to say that the AO will give proper and adequate opportunity of being heard to the assessee in set aside remand proceedings. The evidences/explanation submitted by assessee in denovo assessment proceedings shall be admitted by AO and adjudicated on merits in accordance with law. If the assessee do not co-operate in set aside denovo assessment proceedings, the AO shall be free to proceed in accordance with law. Thus, the appeal of the assessee is allowed for statistical purposes
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