TMI Blog2016 (8) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal that the revenue has not been able to bring any evidence or material on record which may prove that the assessee has made the payment amounting to ₹ 5,73,000 to the plant and machinery supplier. Payment made by the third party who is not subject to Indian Income Tax Act cannot be regarded to have been made by the assessee. - Decided in favour of assessee - TAX APPEAL NO. 805 of 2007 - - - Dated:- 10-8-2016 - MR. KS JHAVERI AND MR. G.R.UDHWANI, JJ. FOR THE APPELLANT : MR KM PARIKH, ADVOCATE FOR THE OPPONENT : MR SN SOPARKAR, SENIOR COUNSEL WITH MRS SWATI SOPARKAR, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. Being aggrieved and dissatisfied with the impugned judgment and orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an addition of ₹ 8,82,80,750/- confirmed by CIT(A) and dismissed it against another addition of ₹ 7,50,000/- which was also confirmed by the CIT(A). On other three issues, the order of CIT(A) was set aside and the matters were remanded to the Assessing Officer with specific directions. 3. So far as issues no. C, F, G are concerned, the same have been remanded to the Assessing Officer for reconsideration and therefore we are not inclined to disturb the same. Therefore, questions no. (C ), (F) (G) are not decided and the same are kept open. 4. This takes us to the remaining sole question which in with regard to addition made by the Assessing Officer u/s 69B of ₹ 8,82,18,073/- made towards under statement of cost o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as that the payments were made by NRIS. He submitted that the Tribunal has not denied, rather accepted the fact that as against the cost of machinery US $ 35 lakhs debited in the books of account, the payment received by the Italian supplier was US $ 53,75,000 which was evident from the confirmation, copy of account and other documents. 5.2 Mr. Parikh submitted that the Tribunal misinterpreted the provisions of section 69B of the Act and deleted the addition on the ground that section 69B was not attracted because the excess payment was made not by the assessee but by the NRI investor. He submitted that the Tribunal has erred in not appreciating the fact that this payment was made by the NRI investor without any obligation of his own and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is more than the amount as recorded in the books of account. The Tribunal has concluded that the revenue has failed to discharge the burden of proof that the assessee has invested US $ 53,75,000 in the purchase of plant and machinery. 8. We are in complete agreement with the findings of the Tribunal that the revenue has not been able to bring any evidence or material on record which may prove that the assessee has made the payment amounting to ₹ 5,73,000 to the plant and machinery supplier. Payment made by the third party who is not subject to Indian Income Tax Act cannot be regarded to have been made by the assessee. 9. In that view of the matter, question no. (A) is answered in favour of the assessee and against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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