TMI Blog2015 (11) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... opening day of the year without any transmission of the value on either side. In view of these facts and circumstances, we are of the considered view that the CIT(A) has rightly deleted the addition and we confirm the same - Decided in favour of assessee. Addition made on account of anomaly of bank deposits - this addition is also based on the wrong allegation of bank account having been tampered - CIT(A) deleted the addition - Held that:- The AO has failed to appreciate as in the other case that this particular document, as already said, is only a partial representation showing only this specific parameter of investment and varying of investment during the year. It is quite apparent that the original copy of the Bank account received from UCO Bank offers a complete tally with the copy of the Bank ledger account in the assessee's books of account showing that there is no concealment of any payment/receipt. The payment of first cheque of ₹ 6 lac appeared in the ledger copy against 10/05/2004. Therefore, the inference of the two payments being unaccounted for is on account of confused approach to the whole matter. The AO is singularly mistaken. there is no ground for the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee and also copy of passport of Sri Ashok Shroff, donor. The said documents being in the nature of additional evidences were admitted as they had a material bearing on the case and could not be submitted earlier as not all of these were in the possession of the assessee at the time of assessment. In view of these documents, the CIT(A) concluded, after taking remand report from the AO, that the credit entries on account of gift received from Dr. Ashok Shroff are genuine and the identity and creditworthiness of Dr. Ashok Shroff is proved. Accordingly, he deleted the addition as made by AO by invoking the provisions of section 68 of the Act. We find no infirmity in the order of CIT(A) and hence, the same is confirmed. - Decided in favour of assessee. Unexplained investment - CIT(A) deleted the addition - Held that:- Payment to Shilpa Stock Broker (P) Ltd was made by cheque from the Bank A/c and this is reflected in the Bank Statement and also mentioned in the confirmation filed. It was also mentioned that in the confirmation the PAN No. of the party is also provided. It was submitted that since the payment was made through disclosed bank account and the investment was ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,418/- and the details of such Short Term Capital Gains was given in the return. The AO issued notice u/s. 133(6) of the act to SSKI Securities Pvt. Limited with whom the assessee had transaction in shares, and it sent the statement of the said SSKI Securities Pvt. Ltd wherein a sum of ₹ 14,01,448.65 paisa was payable by them to the assessee as on 31/03/2004.The AO also noticed the following amounts having been shown by them as receipts by cheques on various dates as mentioned below: 10/05.2004 Rs.6,00,000/- 17/05/2004 Rs.6,00,000/ 21/05/2004 Rs.3,25,000/- Rs.15,25,000/- The assessee was asked to explain the above transactions. In reply to the same the assessee claimed that the said amount is reflected are the corrected balance sheet and P L A/c. filed on 22/11/2007. But the AO observed from statement of account of UCO Bank, which was a tampered one and some entries were willfully changed in photocopy. According to AO, this is evident from copy of original bank statement obtain from UCO Bank, Southern Ave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the balance sheet as on 31.03.2004 on the reasoning that there is difference in the photocopy of bank pass book produced by assessee and that of the same was obtained via notice issued u/s 133(6) of the Act. The Bank balance in the balance sheet as on 31.02.2004 is shown as ₹ 15,25,283/- which includes this balance. If AO could have applied his mind with regard to difference in opening balance of SSKI Securities (P) Ltd vis- -vis difference in opening balance of UCO Bank, the same could have been explained. The ledger copy of Bank account and effect of Bank Reconciliation is enclosed now filed in the assessee's paper book. The difference in opening balance was never brought to the notice of assessee during the course of assessment proceedings. The addition is on account of alleged nondisclosure of the debit balance ₹ 14,91,448/- appearing in the assessee's ledger account in the books of the broker, SSKI Securities Pvt. Ltd. as on 01/04/04. The assessee in her books in the said broker's personal ledger account shows no opening balance of that sum. The AO was under wrong belief that this receipt from the said party has been suppressed and he has thus made t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the following credit have been willfully suppressed from the original bank statement while submitting the copy of the same: 07/05/2004 Rs.12,00,000.00 10/09/2004 Rs.20,72,715.43 Thus it is clearly evident that the assessee had suppressed certain transactions representing undisclosed investment. The assessee had even tried to suppress the entire credits and investments by submitting a tampered bank statement. Accordingly I make the following additions. Undisclosed investment in SSKI Securities Pvt. Ltd as discussed in Para (1)(ii) Rs.15,25,000.00 Undisclosed Credit in bank a/c as on 10/09/04 as discussed in Para (1)(iii) (I have not considered ₹ 12,00,000/- in the Bank a/c on 7.5.04 as income, since I have Already added ₹ 6,00,000/- and ₹ 6,00,000/- being utilization of the said ₹ 12,00,000/- in the addition of ₹ 15,25,000/-) Rs.20,72,715.43 Aggrieved, assessee preferred appeal before CIT(A). 8. The CIT(A) deleted the addition vide para 4.2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the entry has been incorrectly passed. The amount of ₹ 3,25,000/- appears only as To Sundry Creditors in the book of a/cs. Of the assessee and therefor it appears that this has not been accounted as income. Since the entry is not reflected in the account of the assessee, it is considered as unexplained investment and addition to this extent is sustained. 4.3 This ground of the assessee is partly allowed . 5.1 I have gone through the submission of the A/R and the reason for addition made by the AO. The AO has made the addition not because this entry did not reflect in the Books of A/cs. of the assessee but because the entry did not appear in the segmental or tampered bank a/cs. statement. I am afraid that the said addition can be made only if the entries are not properly reflected in the Books of the assessee. IXT is not material whether these are reflected in the segmental statement or not. The fact is that the receipt of ₹ 20,72,715/- is duly reflected in the actual complete Bank Statement and also in the ledger account of M/s. SSKI Securities Pvt. Ltd. (Broker) in the Books of the assessee. The contra is reflected in the Ledger A/c of the assessee wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appear in the assessee's account with UCO Bank. But the defective narration in the broker's account is immaterial because this sum of ₹ 3,25,000/- already stands included in the gross receipt on share difference account in the sum of ₹ 3,25,000/- and therefore, also in the net profit in the sum of ₹ 1,66,989/- after set-off of the share difference loss of the year, this is demonstrated from its entry in the ledger account of share difference transactions in the assessee's books. So the addition of ₹ 3,25,000/- as made by the ITO resulted in the same sum being twice included in the income, once by the assessee himself in his profit loss account and also the profit and gain by the AO as undisclosed sum appearing in the broker's account. So there is no ground for the addition for the mere clerical error in the broker's account. Irrespective of the error, the inexorable fact is that this very sum of ₹ 3,25,000/- forms part of the assessee's revenue receipt entering the profit and loss account. However, the CIT(A) has deleted the addition of ₹ 12 lac but sustained the addition of ₹ 3.25 lac on the reasoning that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12,00,000/- but assails the other amount of ₹ 20,72,715.43 branding it as the assessee's undisclosed investment but on facts both the amount stand on a parity of situation. Despite having notice of both the sums as reflected in the assessee's bank statement he picks only one amount and capriciously made the addition. Once the sums are duly reflect in the assessee's bank account, there is no rhyme or reason for choosing one of them as suspect and liable to addition. Therefore, the allegation of undisclosed credit either of ₹ 12 lakh or ₹ 20,72,715.43 as unaccounted for in the assessee's account is wholly contrary to the evidence on record, the bank statement as well as the bank ledger in the accounts of the assessee showing complete tally inter se, the assessee suo motu filed. The Ledger copy of the Bank account with UCO Bank reflecting the credits is available on record. The AO's oversight of the copy of the said Ledger Account, caused a misapprehension of the assessee's omission to credit the sum of ₹ 20,72,715/-.So it is clear that the AO proceeded for a preconceived notion. For want of circumspection and for non-appreciation due t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced. It was also noted by the AO that identity of person and creditworthiness has not been established. The AO therefore considered it as unexplained cash credit u/s. 68 of the Act. Aggrieved, assessee preferred appeal before CIT(A). 13. The CIT(A) deleted the addition of gift after taking remand report from the AO on the additional evidences and by observing as under: These were forwarded to the AO in terms of Rule 46A(3) for documents after examination. In the Remand Report it was submitted by the AO that from the documents filed by the assessee it cannot be established that Dr. Ashok Shroff is a relative of the assessee as defined in Sec. 56. Though the AO has not mentioned as to how he has arrived at this conclusion, it is presumed that it is because the US Passport of Sri Ashok Shroff does not mention in the name of the father. In response to the comments of the AO in the Remand Report, the assessee submitted the Birth Certificate of Ashok Shroff issued by the Public Health Deptt. Municipal Corporation of Greater Bombay vide Certificate No. 092379 dated 21/01/88 which clearly shows the name of father as Sri Basudev Shroff and Mother as Chandrakala Shroff. This when rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the possession of the assessee at the time of assessment. In view of these documents, the CIT(A) concluded, after taking remand report from the AO, that the credit entries on account of gift received from Dr. Ashok Shroff are genuine and the identity and creditworthiness of Dr. Ashok Shroff is proved. Accordingly, he deleted the addition as made by AO by invoking the provisions of section 68 of the Act. We find no infirmity in the order of CIT(A) and hence, the same is confirmed. This issue of revenue's appeal is dismissed. 15. The next issue in this appeal of revenue is against the order of CIT(A) deleting the addition of unexplained investment of ₹ 5 lacs. For this, revenue has raised following ground no.4: 4. On the facts and in the circumstances of the case the Learned CIT(A) has erred in deleting the addition made on account of unexplained investment of ₹ 5,00,000/ since the assessee failed to furnish adequate information regarding the source of investment. 16. The brief facts leading to the above issue are that the AO made an addition of unexplained investment of ₹ 5,00,000/-. While making the said addition, the AO states that an unsigned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investments. The assessee, in their counter comments, submitted that the payment to Shilpa Stock Broker (P) Ltd was made by cheque from the Bank A/c and this is reflected in the Bank Statement and also mentioned in the confirmation filed. It was also mentioned that in the confirmation the PAN No. of the party is also provided. It was submitted that since the payment was made through disclosed bank account and the investment was reflected in the balance sheet and thereby in the books of a/cs., the same could not be considered as undisclosed investment of the assessee. It was submitted that no addition could be made under these circumstances. It was further mentioned that the amount paid to Shipla Stock Brokers Pvt. Ltd. was out of loan of ₹ 4,00,000/- received form Apeksha Jaggi and ₹ 2,00,000/- received from SSKI Securities Pvt. Ltd. It was submitted that the amount was refunded to Apeksha Juggi along with interest. This interest has been claimed in the P L a/c. and allowed by the AO. It was submitted that while making the assessment the AO never raised any doubt regarding the source. It was also submitted that the bank statement of Oriental Bank of Commerce was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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