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2023 (1) TMI 400 - AT - Income TaxUnexplained investment - investments in FDR in flat property remained unexplained - HELD THAT:- The assessee having explained the source in penalty proceedings, and the AO having accepted the same investments, there was no room to hold that the investment remained unexplained, therefore, there is no reason at all to confirm the two additions made on account of aforesaid two investments. As decided in BASIR AHMED SISODIYA VERSUS THE INCOME TAX OFFICER [2020 (4) TMI 793 - SUPREME COURT] held that factual basis on which the AO had formed his opinion in assessment order, having been dispelled by affidavits and statements of the concerned parties in penalty proceedings, there was no occasion for confirming the addition in quantum proceedings. The basis of addition made in the present case is the source of investment remaining unexplained. Now, the assessee having explained the source of investment, .DR cannot make out a new case for confirming the addition by stating that though the source of investment stands explained by loan taken by the assessee from his ex-employer, but since this loan was not repaid by the assessee, therefore, it partakes the nature of income by way of salary. This definitely was not the case of the AO and in an appellate proceedings, the Department is debarred from improving upon the case of the AO. We delete the additions made on account of investment made in FDR in flat. Assessee appeal allowed.
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