TMI Blog2012 (12) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... ed back to AO for making assessment afresh - ITA NO. 2983 to 2985, 3303, 3304, 1196/DEL/2011 - - - Dated:- 25-1-2012 - SHRI G.D. AGRAWAL AND SHRI RAJPAL YADAV, JJ. Appellant by: Shri R.K. Gupta Respondent by: Shri R.S. Negi, Sr.DR ORDER PER BENCH The assessee s appeals, namely in ITA No. 3303, 3304 and 1196/DEL/2011, filed by NextWave India (P) Ltd., are directed against the order of CIT(A)-XVI. New Delhi. The remaining three appeals in ITA No. 2983, 2984 and 2985/D/2011 in the case of NextWave India (AOP), are directed against the order of CIT(A)-XXVII, New Delhi. Since common issues are involved, all these appeals are disposed of by this common order. 2. In the case of NextWave India (P) Ltd., the assessee has raised common grounds for all the three years. Therefore, for the sake of convenience, we reproduce hereinbelow the grounds for AY 2002-03:- 1. That under the facts and circumstances, both the lower authorities erred in law and on merits in making and sustaining addition of Rs.74,04,000/- as income from other sources for the credits appearing in the bank account of State Bank of Saurashtra, not belonging to the assessee and further e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he bank accounts emanated and that the learned AO has completely brushed aside the results of these enquiries. The said fact was ignored by the ld. CIT(A) despite having examined the records of the ld. AO in the case of the appellant, after calling for the same from the office of the ld. AO. 1(d) That the ld. CIT(A) has erred in ignoring the evidences available on record and giving a finding that the transactions stated to be explained are outside the books of account per se and therefore have to be brought to tax as unexplained cash credits. 2. That the learned CIT(A) has erred in sustaining the disallowance of expenses on account of bank charges Rs.2,065/- on the ground that no worthwhile business activity has been undertaken in a systematic manner and therefore not allowing the expenditure as claimed in the profit and loss account filed by the appellant. 3. That the ld. CIT(A) has erred in sustaining the disallowance of expenses on account of interest of Rs.1,53,822/- on the ground that no worthwhile business activity has been undertaken in a systematic manner and therefore not allowing the expenditure as claimed in the profit and loss account filed by the appellant. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest income. During the assessment proceedings of AOP, again, Mr. Bhushan admitted that the bank accounts belonged to AOP. Since Mr. Bhushan was unable to explain the credit in such bank account, the AO made the addition in respect of credit in the bank account in the hands of the AOP on substantive basis. That the CIT(A) upheld the order of the AO. It is stated by the ld. Counsel that from the facts it is evident that the bank account did not belong to the Pvt. Ltd. but actually belonged to the AOP constituted by Mr. and Mrs. Bhushan, which has already been considered and assessed in the hands of the AOP. The protective addition, therefore, in the hands of the assessee, is not justified. The same should be deleted. 5. Shri Neeraj Jain and Shri P.K. Mishra, CAs appeared for and on behalf of the AOP. They fairly admitted that the bank account was opened by Mr. and Mrs. Bhushan and it belonged to the AOP and not to the Pvt. Ltd. He, therefore, submitted that the bank accounts under consideration are to be considered in the hands of the AOP and not Pvt. Ltd. However, he submitted that the AO added the entire credit in the bank account. He explained that Mr. and Mrs. Bhushan were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not at both the places. However, since the ownership of the bank accounts was in dispute because it was in the name of NextWave India (P) Ltd. and Mr. Bhushan was claiming the ownership, the additions were made at both the places i.e. substantively in the hands of AOP, which is owned by Mr. Mrs. Bhushan and protectively in the hands of Pvt. Ltd. However, if ITAT is of the opinion that the bank accounts belong to the AOP, the substantive addition may be sustained in the hands of the AOP, then the department would have no objection in deleting the protective addition. 7. We have carefully considered the arguments of both the sides and facts of the case. From the totality of the facts and the evidence, it is proved beyond doubt that the said bank accounts were owned by Mr. B.Bhushan and Smt. Renu Bhushan. For the sake of completeness, we mention the following facts which prove that the bank accounts under consideration belonged to Bhushans and not to Pvt. Ltd.:- i) The bank accounts were opened by Mr. and Mrs. Bhushan ii) During the assessment proceedings of Pvt. Ltd. in the statement recorded u/s 131, Mr. B. Bhushan admitted that the bank accounts belonged to himself and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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