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TMI Blog2013 (10) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... basic issue has been raised in following paragraphs of the M.A. which is reproduced as under: "5. Before proceeding to point out the mistake in the order it is essential to note that the addition made in the case of the assessee was Rs.1,74,00,000/-. The Hon. ITAT has accepted the cash credit in the hands of the cash creditor i.e. Praful L. Shah to the extent of Rs.1,59,00,000 (Refer para 7 & pg.11 of the order). In the hands of the other cash creditor i.e. Hemendra L. Shah cash credit to the extent of Rs.25,00,000/- is also acceptable (Refer para 7 & pg.ll of the order). Therefore, the source of source and origin of origin of the cash credits to the extent of Rs. 1,74,00,000 (Rs. 1,59,00,000+25,00,000) has already been accepted by the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & pg. 11 has neither been considered the judicial pronouncements nor passed any speaking order if the decisions in question on which reliance has been placed are distinguishable. Infact, there is no speaking order on the issue as to how the ratios of the judgment referred in para 6 & pg.10 of the Hon. Tribunal's order are not applicable to the facts of the case. Non consideration of the judgment is a mistake apparent from record and reliance is placed on the following judicial pronouncements in support of contention: i. CIT v Subodhchandra S. Patel (2004) 265 1TR 445 (Guj.) II. ACIT v Saurashtra Kutch Stock Exchange (2008) 305 ITR 227 (SC) 5.2 Furthermore, it is pertinent to note that the assessment of Shri Hemendra L. Shah has been com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee as expenses. The loan shown from Vidhi Corporation is also required to verify as per findings on pg. 27. " 6.1 Coming to the issue of interest for which verification has been directed on account of non reflection in the books of accounts attention is invited to para 8 & 9 and pg. 9 of the assessment order. The AO has referred to a table indicating the name of the depositor, date of deposit, principle amount, interest amount. In the table in para 8 the interest amount has been worked out at Rs.4,27,85,670/-. Out of this the interest of Rs.4,62,615/- & Rs.23,35,561/- has been worked out as deemed expenditure u/s 69C. In the table in para 9 the total interest amount has been worked out at Rs.22,14,392/- which includes actual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.3 The AO in the original assessment has while making the addition u/s 69 clearly stated that no interest has been given on huge borrowings. It is only presuming that interest has been paid outside the books of accounts that additions have come to be made. Therefore, only on the assumption that interest has been paid outside the books of accounts and not recorded therein the additions have come to be made. As a matter of fact where the interest has never been paid and therefore not recorded in the books of accounts the exercise of verification from the books of accounts would not serve any purpose. 6.4 Therefore, the direction given by the Hon. ITAT to verify the interest payments from the books of accounts is erroneous since neither the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also remained personally present during the course of assessment proceedings and admitted to the granting of loan. The copy of the statement so recorded has been placed on pg. 188 to 190 of the paper book. In fact it is the primary duty of the AO to identify the date and the amount of loan which is not acceptable and is proposed to be treated as unexplained cash credit. Casting the burden of the appellant to identify the transaction from the copy of the account furnished which in entirety is not considered as unexplained would be completely contrary to the established provisions of the Act. In fact, the contention of the assessee is that there is no such transaction of Rs.50,00,000/- as presumed by the AO which would justify its treatment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L. Shah has been completed u/s. 143(3) r.w.s. 147 of the IT Act and no additions were made by the A.O. iii. Interest on Rs.1,16,28,25,838/- is not verifiable and the A.O. was directed to verify the interest which were claimed by the assessee as expenses. iv. The direction given by us to the A.O. to verify the loans from M/s. Vidhi Corporation as per findings on page no.27. v. As regards ground nos. 5,6 & 7regarding the deletion of Rs.1,72,17,951/- on account of bank charges and commission and held that no opportunity was given by the CIT(A) to the A.O.. vi. Ground nos. 8, 9 & 10 are with regards the deletion of addition of Rs.19,24,117/- made on account of bill discounting charges. This Bench held that CIT(A) has not given any opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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