TMI Blog2013 (4) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee where the assessee has offered an explanation about the nature of the concern of the amount or explanation offered by the assessee before the AO is not satisfactory. Since the amount was not credited in the books of accounts during the year, therefore, CIT(A) has rightly deleted the addition. Unexplained investments - Addition u/s 69 - CIT(A) deleted the addition - Held that:- The finding of the fact that from the audited balance sheets for the year ending 31.03.2004 and 31.3.2003, it is seen that balance of Rs.21,33,299/- representing the advance for flats in those years and during the year after that if a sum of Rs.5 lakhs was transferred to the share application money which has already been dealt with in ground no.1 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yan ORDER This is an appeal filed by the Revenue against the order of the ld. CIT(A)- XXXII, Kolkata dated 27.03.2009. 2. In this appeal the Revenue has taken the following effective grounds : "1.On the facts and in the circumstances of the case, whether Ld.CIT(A) was correct in deleting the addition made u/s 68 of the I.T.Act for Rs.4,65,000/- though the assessee could not file supporting evidences at the time of assessment and even at the remand stage. 2. On the facts and in the circumstances of the case, whether LdCIT(A) was correct in deleting the addition made u/s 69 of the I.T.Act for Rs.9,84,500/- though the assessee could not file supporting evidences at the time of assessment and even at the remand stage. 3. On the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made during the year as the amount has not been received in the assessment years under consideration as the amount as is apparent is received by the assessee in the financial years 1992-93 and 1997-98 much prior to the impugned assessment year. During the year the assessee has transferred the amount to the share application account from advance for flats. Thus no fresh amount has been received by the assessee during the year u/s 68 of the IT Act. The amount held to be added in the year in which the amount is credited in the books of accounts of the assessee where the assessee has offered an explanation about the nature of the concern of the amount or explanation offered by the assessee before the AO is not satisfactory. Since the amount w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch financial year." On plain reading of Sec.69 it is evident that there has to be an investment made by the assessee in the current year for that amount to be assessable as income u/s 69 of the Act. In the case of the appellant, on the facts, circumstances and evidences on record, there is absolutely no fresh incoming or outgoing which was not recorded in the books of account. From the audited balance sheets as at 31.3.2004 and 313.2003, placed on page- 6 of the paper book, it is seen that the balance of Rs.21,33,399/- as "Advance for Flats" stood as such in the accounts of those years. Therefore, I find substantial force in the arguments of the A/R, which is backed by evidence referred to above that it was from this previous balance tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the fact that from the audited balance sheets for the year ending 31.03.2004 and 31.3.2003, it is seen that balance of Rs.21,33,299/- representing the advance for flats in those years and during the year after that if a sum of Rs.5 lakhs was transferred to the share application money which has already been dealt with in ground no.1by us and a sum of Rs4,85,500/- was refunded by the assessee to the parties. Under these facts, in our opinion, it is not a case where the provision of section 69 will be applicable. We accordingly confirm the order of the ld. CIT(A) and delete the addition of Rs.9,84,500/-. 7. In the result ground no.2 taken by the revenue stand dismissed. 8. Ground No.3 relates to the addition of Rs.5,21,577/-. The AO no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso not examined the books of accounts so that it may be ascertained that these advances were duly recorded in the books of the assessee. The assessment has been framed u/s 144 of the IT Act and the copy of the ledger account along with the details of the party were also filed by the assessee for the first time before the ld. CIT(A). Under these facts and circumstances of the case,in our opinion, the assessee has not discharged his onus fully and the AO could not examine the books of accounts of the assessee whereas this information are reflected in the books of assesee. Therefore, we in the interest of both the parties and keeping in view the natural justice we set aside the order of the ld. CIT(A) on this issue and restore to the file of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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