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TMI Blog2015 (6) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... as upheld the addition on account of undisclosed investment in FDRs at serial number 15 and 16 of the chart being unexplained investment in FDRs during the year under consideration but has erred in law and facts in not confirming the unexplained investment in FDRs at serial number 3 and 6 of the chart showing FDRs purchased at Rs. 3,66,262/- and Rs. 6,66,407/- respectively. 3. The Ld. CIT(A)-II, Lucknow has erred in confirming only the unexplained investment in FDR of Rs. 1,00,000/- on 29.05.2009 and omitted to confirm the balance unexplained investment in FDR at serial number 15 of the chart of Rs. 23,286/-." 3. Learned D. R. of the Revenue supported the assessment order whereas learned A. R. of the assessee supported the order of learned CIT(A). 4. We have considered the rival submissions, perused the material available on record and gone through the orders of the authorities below. We find that this issue was decided by learned CIT(A) by making following observations on page No. 11 & 12 of his order, which are reproduced below for the sake of ready reference:- "Ground No.4 in respect of application of N.P. rate 8% and assessed extra profit of Rs. 39,62,925/-. The A.O. has d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment proceedings and past history of appellant own case it would be fair and reasonable if the net profit is taken and assessed at Rs. 27,00,000/- instead of taken by the A.O. of Rs. 63,52,573/-. Reliance is placed on the following judicial decisions:- "The books of account together with past history of the case as also material collected should be considered for estimation of income. Reliance is placed in the case of CIT v. Gotan Lime Khanij Udyog (2002) 256 ITR 243 (Guj). In the cases of Ajay Goyal v. ITO [2006J 99 TTJ (JD)164, Madan Lal v. ITO [2006] 99 TTJ (JD) 538, CIT v. Popular Electric Co. Pvt. Ltd. [1993] 203 ITR 630 (Cal) and M.A. Rauf v. CIT [1958[ 33 ITR 843 (Pat) the benches of the Tribunal are taking a consistent view that the past history is the best guide where the provisions of section 145(3) are applied." Hence considering the facts & circumstances mentioned above the net profit of appellant is assessed and confirmed to the extent of Rs. 27,00,000/- against shown by the appellant of Rs. 23,89,648/-. Thus to the extent of Rs. 3,10,352/- (Rs.27,00,000- 23,89,648) addition made by A.O. under this head is hereby confirmed and rest of addition is liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order and I find that the FDRs mentioned in Sl. 1 to 47 except Sl. No. 15 & 16 in assessment order were purchased/invested by appellant in earlier assessment years. The date, initial investment and date of maturity & amount along with interest is duly reflected in the charts issued by OBC as mentioned above. The A.O. was incorrectly taken into consideration as unexplained investment of the accumulated balance of these FDRs reflected as on 31.03.2010 without further verification of the date of principal initial investment, therefore, I hold the A.O. was not justified in making the addition of Rs. 90,23,850/- of entire FDRs on account of undisclosed/unexplained investment in FDRs during the assessment year under consideration. However it is observed from the details provided by appellant in respect of FDRs mentioned in said chart, the appellant has invested in FDRs reflected in Sl. No. 15 & 16 during the assessment year under consideration and rest of entire FDRs from Sl. 1 to 47 were found invested prior to assessment year under consideration. During the appellate proceedings also the appellant has failed to explain the source of investment of Rs. 2,73,239/- (Rs.1,00.000 on 29.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sides. This ground is allowed for statistical purposes. 7. Regarding ground No. 3 Learned D. R. of the Revenue supported the assessment order whereas learned A. R. of the assessee supported the order of learned CIT(A). 8. We have considered the rival submissions. We find that as per the chart reproduced by CIT(A) at Sl.No. 15, the amount of FDR is 1,23,286/- but CIT(A) has confirmed the addition of Rs. 1,00,000/- in respect of this FDR. When the investment is admittedly of Rs. 1,23,286/-, the addition should have been of this amount and not of Rs. 1,00,000/-. Therefore, on this issue, we reverse the order of CIT(A) and restore that of the Assessing Officer. This ground is allowed. 9. In the result, the appeal of the Revenue stands allowed in the terms indicated above. 10. Now we take up the Cross Objection of the assessee. In this Cross Objection, the assessee has raised the following grounds: "1. That on facts and in the circumstances of the case, the learned Commissioner of Income-tax (Appeals)-II, Lucknow is not justified in estimating the appellant's income at Rs. 27,00,000/- as against Rs. 63,52,573/- which is excessive and unreasonable. 2. That the learned Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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