TMI Blog2017 (7) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has summarily failed to observe the directions issued by the Authorities Below. However, in the interest of natural justice and fair play we are inclined to restore this issue to the file of AO to give an opportunity to assessee to substantiate its claim in the light of observation as discussed. Therefore, we restore this issue to the file of AO for fresh adjudication as per law. Assessee s appeal stands partly allowed for statistical purpose. - ITA No.150/PAT/2012 - - - Dated:- 10-4-2017 - Shri Aby. T. Varkey, Judicial Member And Shri Waseem Ahmed, Accountant Member For The Appellant : Shri K.M. Mishra, Advocate For The Respondent : Shri K.K. Das, DR ORDER PER BENCH:- This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-Danbad Camp Office, Patna dated 17.09.2012. Assessment was framed by DCIT, Circle-5, Patna u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) vide his order dated 29.12.2010 for assessment year 2008-09. Shri K.M. Mishra, Ld. Advocate appeared on behalf of assessee and Shri K.K. Das, Ld. Departmental Representative represented on behalf of Revenue. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransactions with the appellant during the relevant Financial Year nor any amount was outstanding at the end of the year. In the appeal proceedings, the appellant has submitted altogether a new list with new names and addresses and outstanding amounts containing 10 names. Under these circumstances, the judgment in the case of assessment year 2006-07 will not be of any assistance to the appellant and the addition on account of sundry creditors is warranted. Accordingly, addition of ₹ 1,45,53,427/- made by the AO is confirmed. Being aggrieved by this order of Ld. CIT(A) assessee came in second appeal before us on the following grounds:- 1. For that, the order impugned is bad both on fact as well as on law because the ld. CIT(A) without considering the evidence submitted by appellant and without providing opportunity confirmed the order which per se in arbitrary and unjustified therefore fit to quash. 2. For that the Ld. CIT(A) failed to appreciate that order of assessment is without jurisdiction as it has been framed u/s. 143(3) instead of u/s. 144 hence liable to set aside. 3. For that, addition on account of trade creditors is bad as the appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee offer no explanation about the nature and source thereof or the explanation offered by him is not, satisfactory, in the satisfactory, the sum so credited may be charged to income tax as the income of the assessee of that previous year. By perusal of the legal provision, it is manifest that for making addition u/s. 68 following condition must be full filled:- (1) The sum is found to be credited in the books of which the assessee maintain in regular course; (2) The assessee offers no explanation about the nature and source of said sum; (3) The explanation as above was not satisfactory in the eye of AO; He further stated that it is undisputed fact that the assessment order nowhere says that the books of account were available with the AO. The CIT-A has also noted in order at page-7, para-2 that the books of account were not available. Section 68 of the Act says that if any credit found in the books of account. Since the CIT-A as well as the AO has noted that the books of account were not available therefore no addition u/s. 68 of the Act can be made. The Hon'ble Delhi High Court in the case of CIT Vs. Mrs Mayawati (2011) 338 ITR 563 (Del) has held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TD 0148, 2012 Tax pub (DDT) 0990 has held that as per the Balance sheet the assessee had an outstanding liability of sundry creditors and the same time it had assets in the form of advance to supplier, debtors, stocks, etc. which showed that creditors were genuine. Taking into consideration above fact of assessee, it was a fit case not to make any addition by invoking the deeming fiction of section 68 in respect of sundry creditors. Despite the fact that assessee could not supply the address of these creditors. Ld. AR requested the Bench to quash the order of Authorities Below. 7. On the other hand, Ld. DR vehemently relied on the order of Authorities Below. 8. We have heard rival contentions of both the parties and perused the materials available on record and case law cited by the Ld. AR for the assessee. The issue in the instant case relates to the disallowance made by the Authorities Below on account of non-confirmation of the sundry creditors for which addition made by AO and subsequently confirmed by Ld. CIT(A) u/s. 68 of the Act. However, Ld. AR before us has taken a plea that the sundry creditors are arising out of the purchase expenses claimed in return of income. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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