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ITO, Ward 1 (1) , New Delhi Versus M/s. A.I. Developer Private Ltd.

2016 (1) TMI 1124 - ITAT DELHI

Addition made u/s 68 of the Act on account of share application money - Held that:- The AO himself had written to CBI authorities for copies of documents, which did not invoke any response from CBI. The assessee vide letter dated 16.11.2009 had furnished the name, PAN, addresses, payment details to the AO. When there was CBI enquiry in assessee’s case, the notice of the AO did not invoke any response from share-applicants is plausible, however that cannot be the sole ground to justify the additi .....

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anted by CIT (A). So, we find that there was sufficient cause for non-filing of evidence before the AO. The AO ought to have scrutinized the evidence and in case, he nurtures any doubt about the veracity of the documents, the discretion is upon him to probe the matter further, which has not been done in the case in hand. He could not have discredited the documents, without giving any cogent reasons and material. Therefore, in view of the material filed by the assessee, we find that that the asse .....

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of the matter is that even at the remand stage, the matter could have been looked into by the AO, which has not been done. So, in the light of the transactions through banking channel and audited books of account, it cannot be said that the investments were not reflected in the books of account when there is a clear finding of the CIT (A) that the investments in building WIP was duly accounted for in the books of account and the balance sheet has been duly audited by a qualified chartered accou .....

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:- We find that the addition in dispute has been made because of the inability of the assessee to produce the books of accounts of the assessee because all documents had been in the custody of CBI. We take note that the investments were installments for plots which were made to HUDA, a Government Agency and made through Demand Drafts and have passed through banking channels and the fact is that the books of the assessee was duly audited as per the statute and reflected in the balance sheet. The .....

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our part, hence, we uphold the same and dismiss the ground raised by the Revenue. - ITA No. 2102/Del./2011 - Dated:- 27-1-2016 - Shri A. T. Varkey, Judicial Member And Shri L. P. Sahu, Accountant Member For the Petitioner : Shri Pramod Jain, CA For the Respondent : Smt. Anima Barnwal, DR ORDER Per A. T. Varkey, Judicial Member : This appeal filed by the revenue arises from the order of Commissioner of Income-tax (Appeals)-IV, Delhi dated 23.02.2011 and relates to assessment year 2007-08. 2. The .....

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nded the proceedings and filed the details / documents. The assessment was completed u/s 143(3) of the Act on 21.12.2009 at a total taxable income at ₹ 2,34,57,779/- by making various additions/disallowances. 3. Aggrieved, the assessee preferred an appeal to the first appellate authority and the CIT (A) allowed the appeal of the assessee by deleting the additions/disallowances. 4. The revenue, being aggrieved, is in appeal before us by taking the following grounds of appeal :- 1. The Ld. C .....

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cts and in law in deleting addition of ₹ 52,48,820/- made u/s 68 of the Income Tax Act, 1961, on account of unsecured loans. The case law relied on by Ld.CIT(A) are distinguishable from the present case as the identity of the contributor is not established here. The AO made detailed investigation by sending notice u/s 133(6) to the providers of unsecured loan. No confirmation was received during the assessment proceedings. 3. The Ld. CIT (A) has erred on facts and in law in deleting additi .....

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ng the books of account at the remand report stage was not considered by Ld. CIT(A). Further, whether the ground cited by the assessee for admission of additional evidence was covered under Rule 46A of the Income tax Rules? 5. The appellant craves leave for reserving the right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal. 5. Ground No.1 of revenue s appeal is against deleting the addition of ₹ 92,95,000/- made u/s 68 .....

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seizure of records by the CBI. However, the assessee filed another letter dated 04.09.2009 in which a list of persons who had invested in share capital were filed. The AO observed that no details with regard to the identity, creditworthiness and genuineness of the transactions were filed. The AO referred the matter to the CBI vide letter dated 05.11.2009 but no reply was received from them. Accordingly, the AO proceeded to make an addition of ₹ 92,95,000/-. 7. The ld. CIT (A) deleted the .....

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ssee contained the words that the documents had been acquired from different sources, the assessee could have obtained the same during the assessment proceedings itself. On the other hand, the assessee kept insisting that the documents were with the CBI. In short, the Ld. AO has opposed any adducement of additional evidence, as prayed by the assessee. 6. Copy of the remand report was handed over to the assessee to file a rejoinder. The assessee filed a rejoinder on 17/2/2011, wherein he stated t .....

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e the Ld. AO. It was reiterated that out of the total addition, an amount of ₹ 41,00,000/- did not even relate to the year in issue. The contention of the AO that no details had been filed was false. The appellant vide its letter dated 16/11/2009, sent by speed post, had filed the names, addresses, PAN, payment details of all the share applicants and thus could not be construed as additional evidence. Inspite of having all details, the Ld. AO did not do anything further. 7. I have carefull .....

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f the exceptional clauses as provided for in Rule 46A(1). 8. The powers of CIT(A) have been dealt by the Delhi Tribunal in ITO Vs. M/s Mittal International (I) Pvt. Ltd. in 2008-TIOL-474- ITAT-DEL. In a detailed order, it was held by the Hon'ble Tribunal as under: "We have considered the rival submissions. A perusal of the order of the ld. Commissioner of Income-tax (Appeals) shows that he had called for a remand report from the Assessing Officer in regard to the additional evidences, w .....

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pellant shall not be entitled to produce before the [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)] any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the [Assessing Officer], except in the following circumstances, namely:- (a) where the [Assessing Officer] has refused to admit evidence which ought to have been admitted; or (b) where the appellant was prevented by sufficient cause from pr .....

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Commissioner (Appeals)] [or as the case may be, the Commissioner (Appeals)] records in writing the reasons for its admission . (3) The [Deputy Commissioner(Appeals)] [or, as the case may be, the Commissioner (Appeals)] shall not take into account any evidence produced under sub-rule (1) unless the [Assessing Officer] has been allowed a reasonable opportunity- (a) to examine the evidence or document or to crossexamine the witness produced by the appellant, or (b) to produce any evidence or docum .....

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appellate authority who is admitting such additional evidences to record his reasons in writing for such admission. The nature of additional evidence including relevancy thereof alone cannot be ground enough to admit such additional evidence. It is the exceptional circumstances as envisaged by sub-rule (1) of rule 46A that is to be the foundation for the admission of the additional evidence along with the relevancy thereof of the additional evidence. Sub-rule (3) of rule 46A makes it compulsory .....

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009) 17 OTR (Del) 98, at pages 123 and 124, the Delhi High Court has held as under: "15. A close reading of the observation would show that the dictum of' the House of Lords if applied would cover those cases where an aggrieved party has an unbridled right of appeal on facts and law, and a complete freedom to file evidence which was not filed before the original authority. In other words the appellate authority is required to examine the circumstances 'de novo on whatever evidence t .....

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and receive the result of the same, the assessee cannot file any fresh evidence except in accordance with the provisions of r. 46A. The r. 46A inter alia permits an assessee to adduce additional evidence only if he is able to establish that he falls under one of the following situations envisaged under the said rule: (i) Where an AO has either refused to admit evidence which he ought to have admitted; or (ii) Where the appellant was prevented by sufficient cause from producing the evidence which .....

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s prescribed under the r. 46A. The discretion to permit the assessee to adduce additional evidence lies with the CIT(A). Therefore, it cannot be said that the CIT(A) is duty bound to admit any evidence that the assessee wishes to adduce, based on which he would conduct a de novo examination of the case before him." (emphasis, in bold, supplied) 10 On the touchstone of the law laid down by the Delhi High Court and the Delhi Tribunal, the prayer of the assessee to adduce fresh evidence needs .....

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s and circumstances mentioned herein above it is respectfully prayed that this Hon'ble Court may kindly direct the officials of CBI to provide a photocopy of all documents, so seized/impounded by the officials of CBI alongwith the Original Title Deed of Property, consisting of Plot No. 6 & 7, Old Judicial Complex, Jharsa Road, Gurgaon, (HR) , for its deposits with Bank of Baroda, S.M.E. Branch, Gurgaon (HR)." 11. The above were extracts of the application filed before the Special Co .....

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d to be brought on record for the purpose of disposal of the appeal. 12. From the details filed by the assessee, it is observed that the assessee had filed documents relating to share application of Smt. Indu Kumar and Shri Avinav Kumar, both of whom are promoters of the company. They have filed confirmation of investment in equity shares, copy of acknowledgement of ITR, copy of bank account statement, copy of PAN card, copy of passport and the election card. Also filed are similar documents rel .....

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avitri Devi, no PAN card or income-tax details have been given, but copy of election card and copy of her bank statement has been provided by the assessee. The share application was given by cheque and through banking channels. In the case of Smt. Savitri Devi, her husband is an agriculturist as evident from the confirmation filed by her and even she has made the payment for 10,000 shares by cheque. 13. Be that as it may, it may be gainful to refer to the decision of the Supreme Court in M/s Lov .....

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in accordance with law. Hence, we find no infirmity with the impugned judgment. 3 Subject to the above, Special Leave Petition is dismissed. " 14. From the above decision, it was being interpreted that the assessee has to only prove the identity of the shareholders However, the decision in M/s Lovely Exports (supra) has now been interpreted by the Jurisdictional High Court in ITA No. 2093 of 2010 in the case of Oasis Hospitalities (P) Ltd. At Paras 11 to 14, the following has been the posi .....

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areholder will have to be produced before the AO to prove his identity. If the creditor/subscriber is a company, then the details in the firm of registered address or PAN identity, etc. can be furnished. 13. Genuineness of the transaction IS to be demonstrated by showing that the assessee had, in fact, received money from the said shareholder and it came from the coffers from that very shareholder. The Division Bench held that when the money is received by cheque and is transmitted through banki .....

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hare capital. This judgement further holds that once these documents are produced, the assessee would have satisfactorily discharge the onus cast upon him. Thereafter, it is for the AO to scrutinize the same and in case he nurtures any doubt about the veracity of these documents to probe the matter further. However, to discredit the documents produced by the assessee on the aforesaid aspects, there has to be some cogent reasons and materials for the AO and he cannot go into the realm of suspicio .....

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not been submitted, a confirmation is already on record that she was a wife of agriculturist holding huge tracts of agricultural land. In the case of the company, copy of bank statement, copy of Annual Return filed with the Registrar of Companies, confirmations etc. have been filed. In some cases, even certificates of Incorporations have also been submitted. Each of the payments, both for individuals and corporate shareholders have been made by cheque which has been considered to be an indisputa .....

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charged the onus cast upon him. 16. While on the issue, I may mention that it cannot be adjudicated that whether the assessee had ₹ 41,00,000/- as share application money coming forth from the previous year, as has been articulated during the proceedings before me. However, the facts are very clear and the assessee deserves to succeed. Ground of Appeal No.2 goes in favour of the assessee. 8. Ld. DR relied on the order of the AO and submitted that the case law relied on by Ld. CIT(A) are di .....

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share application money, the AO failed to observe that out of the amount of ₹ 92,95,000/-, the amount of ₹ 41,00,000/- was not even related to the year under consideration and was received in AY 2006-07. He submitted that the assessee vide its letter dated 16.11.2009 had filed the names, addresses, PAN, payment details etc. of all the share applicants before the AO. He further submitted that despite having full particulars of share applicants, the AO did not enquire any further abou .....

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f ITR acknowledgement of the share applicants. Ld. AR further submitted that the assessee was an artificial juridical person and it could not have its own unaccounted cash. He submitted that all the payments for share applications were received by the assessee by account payee cheques through banking channels which has not been rebutted by the AO. The ld. AR of the assessee relied on the decisions, which were relied upon before the ld. CIT (A), i.e. CIT Vs. Divine Leasing & Finance Ltd. [200 .....

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We find that Ld. CIT(A) has elaborately discussed the issue in dispute by relying upon the judgment of the Hon ble Supreme Court in the case of Lovely Exports (supra) and of the Hon ble Jurisdictional High Court in ITA No. 2093 of 2010 in the case of Oasis Hospitalities (P) Ltd., as seen above. We further note that on the anvil of the aforesaid Hon ble Delhi High Court decision in the case of Oasis Hospitalities, the issue in dispute has been adjudicated by the ld. CIT (A) to arrive at the impug .....

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rn filed with the Registrar of Companies, confirmations etc. have been filed. In some cases, even certificates of Incorporations have also been submitted. All the payments, both for individuals and corporate shareholders, have been made by cheque. Bank statements reveal their creditworthiness. The assessee could not produce all the documents before the AO during assessment because of the fact that all documents were in the custody of CBI and assessee had filed application before the Special Cour .....

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the AO is able to show that details furnished by the assessee in respect to the identity of the share-holders are bogus, their PAN details are false, addresses are wrong and payment details are false. The AO ought to have verified the facts during assessment proceedings or even he could have done when the ld. CIT (A) has forwarded all the details filed before him under Rule 46A, which he did not after seeking one month s time and took three months to sent the remand report which was granted by .....

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discharged the onus cast upon him. In the background of the aforesaid discussions and respectfully following the precedent, we do not find any infirmity in the order of the Ld. CIT(A), hence, we uphold the same and decide the ground no.1 against the Revenue. 11. Ground No.2 is against the deletion of addition of ₹ 52,48,820/- made u/s 68 of the Act on account of unsecured loans. 12. The AO, on the basis of the reasoning made u/s 68 of the Act for making the addition on account of share cap .....

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required to explain the same. Vide letter dated 4/9/2009. the assessee gave a list of persons from whom unsecured loan had been obtained. Vide letter dated 18/9/2009. the assessee further filed a letter containing the name and addresses of persons who had given unsecured loan. It had filed confirmation letter from these parties. No PAN or assessment particulars were given with regard to the proof of their existence. In response, the assessee stated that the AO's contention that the details w .....

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s and copy of bank statements were also filed. It was argued that each of the payments were received by A/c Payee cheque through proper banking channel. 18. There is no doubt that the assessee has given details with regard to loans of M/s Uppercon Marketing Pvt. Ltd. in terms of confirmation, TDS certificates, bank statement and assessment particulars. In the case of loans from Smug Pharma Pvt. Ltd., Deeas Computrade Pvt. Ltd., Marudhar Builders Pvt. Ltd., M/s Inderjeet Trade Links Pvt. Ltd., si .....

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In that case, the assessee, at the relevant time, was a private limited company and maintained accounts according to the calendar year. For the accounting year ending on 31st Dec., 1961, corresponding to the asstt. Year 1962-63, the ITO did not accept the assessee's accounts showing cash credits of ₹ 1,50,000. Three amounts were shown to have been received by way of loans from three individual creditors of Calcutta under hundis. The assessee produced before the ITO, the letters of conf .....

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13 In this case, the assessee had given the names and addresses of the alleged creditors. It was In the knowledge of the revenue that the said creditors were income-tax assessees. Their index numbers were in the file of the Revenue. The revenue, apart from issuing notices under s. 131 at the instance of the assessee, did not pursue the matter further. The Revenue did not examine the source of income of the said alleged creditors to find out whether they were creditworthy or were such who could a .....

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es." 20. On the touchstone of the decision of the Supreme Court, it may be worthwhile to dissect the facts of the case. Vide letter dated 18/9/2009, the assessee had informed regarding the name and addresses of persons who had given unsecured loans. Letters of confirmations had also been filed. Assuming for a moment income tax particulars were not filed (which is disputed by the assessee), the Ld. AO had enough powers to call for the information, to satisfy himself. Nothing has been done by .....

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stinguishable from the present case as the identity of the contributor is not established here. The AO made detailed investigation by sending notice u/s 133(6) to the providers of unsecured loan and no confirmation was received during the assessment proceedings. He pleaded to set aside the order of the ld. CIT (A) and uphold the AO on this issue. 15. The ld. AR for the assessee submitted that during the course of the assessment proceedings, the AO observed that there was an increase of ₹ 5 .....

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with regard to the proof of their existence. He submitted that the AO's contention that the details were not submitted, was totally false. The assessee, vide letter dated 16.09.2009 and letter dated 16.11.2009 had filed the names, addresses, details etc. of all loan creditors and even filed their confirmations as on date. He submitted that ₹ 41 lacs was received from the Directors and their relatives and even their source was duly explained. He further submitted that copy of PAN, copy .....

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oth the sides and perused the material on record. We find that Ld. CIT(A) has to referred the judgment of the Hon ble Supreme Court of India in the case of CIT vs. Orissa Corporation (P) Ltd. [1986] 159 ITR 78 (SC), as seen above, in which the Hon ble Supreme Court dealt with similar case as that of unsecured creditors. On the yardstick of the decision of the Hon ble Supreme Court (supra), we note that vide letter dated 04.09.2009, the assessee gave a list of persons from whom unsecured loan had .....

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py of bank statements were also filed. We also note that each of the payments was received by A/c Payee cheque through proper banking channel. We further note that with regard to confirmation of loans from M/s Uppercon Marketing Pvt. Ltd., TDS certificates, bank statement and assessment particulars were filed. Likewise, in the case of loans from Smug Pharma Pvt. Ltd., Deeas Computrade Pvt. Ltd., Marudhar Builders Pvt. Ltd. and M/s Inderjeet Trade Links Pvt. Ltd., similar details have been filed. .....

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ent the remand report after three months. We take note that AO in his remand report has not adversely commented upon the additional documents which was in front of him for three month s time when he could have easily cross-checked about the veracity of it. As stated earlier, the basic details were with AO at the assessment stage itself, but he preferred not to make enquiries, and made the addition which was rightly deleted by the ld. CIT (A). Therefore, in view of the above, we find that the ass .....

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ncome Tax Act, 1961, on account of purchase of fixed assets. The issue of verifying the books of account at the remand report stage was not considered by Ld. CIT(A). Further, whether the ground cited by the assessee for admission of additional evidence was covered under Rule 46A of the Income tax Rules? 18. The AO observed that no documentary evidence was filed on account of increase of fixed assets. As such, the AO proceeded to assess the amount of ₹ 74,84,106/- as unexplained investment .....

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ited by a qualified chartered accountant. Thus, the addition of ₹ 74,84,106/- was against the provisions of Section 69. In the Paper Book filed, the assessee has submitted, at Page 330 and 331, details of Plot No.6 & 7, Old Judicial Complex, Gurgaon of HUDA. It is observed that the purchase of land was for ₹ 46,58,000/-. Further, expenditure was made to the tune of ₹ 28,26,106/- towards construction on the said plot of land. From the details filed, it is evident that on the .....

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stments which are not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of the investments or the explanation offered by him is not, in the opinion of the [Assessing] Officer, satisfactory, the value of the investments may be deemed to be the income of the assessee of such financial year. 24. In the case in hand, the investment in the plot and construction thereon was made by the assessee. Whil .....

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plot and the construction thereon cannot be taken as not recorded in the books of accounts of the assessee. Circumstantial evidence suggests otherwise. Thus, the assessee deserves to succeed in Ground of Appeal No.4. 20. Ld. DR relied on the order of the AO and submitted that the issue of verifying the books of account at the remand report stage was not considered by Ld. CIT(A). Further, he submitted that the ground cited by the assessee for admission of additional evidence was not covered under .....

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re not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of the investments or the explanation offered by him is not, in the opinion of the [Assessing] Officer, satisfactory, the value of the investments may be deemed to be the income of the assessee of such financial year. 23. On the touchstone of the provisions of section 69, we find that in the present case, the investment in the plot and co .....

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69. We find that in the Paper Book filed, at Page 330 and 331, details of Plot No.6 & 7, Old Judicial Complex, Gurgaon of HUDA. It is observed that the purchase of land was for ₹ 46,58,000/-. Further, expenditure was made to the tune of ₹ 28,26,106/- towards construction on the said plot of land. From the details filed, it is evident that on the purchase of land, the payments were made by cheque. The bank statement also suggests the same. Each of the payments made for constructio .....

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nt stage because, according to assessee, it was all with CBI and the fact of the matter is that even at the remand stage, the matter could have been looked into by the AO, which has not been done. So, in the light of the transactions through banking channel and audited books of account, it cannot be said that the investments were not reflected in the books of account when there is a clear finding of the CIT (A) that the investments in building WIP was duly accounted for in the books of account a .....

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against the Revenue. 24. Ground No.4 of the revenue s appeal read as under :- 4. The Ld. CIT(A) has erred on facts and in law in deleting addition of ₹ 12,23,707/- made on account of purchase of plot. The issue of verifying the books of account at the remand report stage was not considered by Ld. CIT(A). Further, whether the ground cited by the assessee for admission of additional evidence was covered under Rule 46A of the Income tax Rules? 25. The AO basically made the addition due to th .....

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at the investments made through Demand Drafts and have passed through reflected bank account were not reflected in the books of accounts of the assessee. Thus, the provisions of Section 69 have not been met. As such, the assessee succeeds In Ground of Appeal No.5 26. Ld. DR relied on the order of the AO and submitted that the issue of verifying the books of account at the remand report stage was not considered by Ld. CIT(A). 27. Ld. AR for the assessee reiterated the submissions made before the .....

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