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TMI Blog2019 (11) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... IT (A) has erred In law and on facts In glossing over the fact that the assessee never produced any sundry creditor before the AO as desired by the latter and never furnished copies of ITR and bank statements of the sundry creditors, thus the addition of Rs. 63,63,500/- 3. The Id, CIT(A) has erred in law and on facts in restricting the addition of Rs. 5,98,306/- to Rs. 46,794/- u/s 36(l)(iii) of the Act without properly appreciating the facts of the case that the assessee has also vested his capital in Sai Om Developers, Bajaj Alianz, FDR, shares in Sahara etc and, therefore, it cannot be concluded that the donation of Rs. 93,67,242/- was given out of the assessee's capital and not from his borrowed funds. 4. The Id. CIT(A) has erred in law and on facts in deleting the addition of Rs. 85,000/- on account of unexplained investment made in purchase of car without properly appreciating the facts of case that the assessee did not contradict the statement given by him during the course of the survey conducted when the amount was surrendered and it was only towards the fag end left for completion of the assessment that an affidavit was filed bythe assessee denying investment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard and in the said flow chart it was submitted as under : 4. On the other hand, the ld. AR for the assessee had submitted that the assessee had given reply dtd. 29.11.2013/before the AO in which he explained each deposits of each bank account and explained that he maintain regular books of accounts in the form of cashbook ad ledger since long and these accounts were duly audited and audited balance sheet, profit & loss a/c and other details were filed before the AO and these deposits in bank were by debited in the regularly maintained cashbook or were bank transfers from another bank account or out of loan taken during the year which were deposited in the cashbook and deposited in the bank. Thus each deposit entry in the bank was fully explained from the cashbook maintained by the assessee. 4.1 Further, the ld. AR had submitted that, a detailed reply was filed before the CIT Appeal getting enclosed in the paperbook and discussed at page 11 to page 16 para 4.1 to 4.3 of the CIT Appeals order and assessee reply was sent for comments to the AO. The AO in this remand report dtd. 17.05.2013 referred to para 4.4 of CIT Appeal order and page 18 of the CIT Appeals order and the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t can be made out and accordingly, the ground raised by the Revenue is liable to be dismissed. 7. With respect to CO filed by the assessee, ground No. 1, none of the parties before us have made any arguments. The assessee during the course of proceedings had filed the return of income for the assessment year 2011-12 for Smt. Renu Verma, wherein the deposit in the bank have been duly explained. In view of the above, the assessee was able to satisfactorily explain the deposit in the bank of Renu Verma. Further, we are of the opinion that merely possession of passbook of Renue Verma with assessee would not give rise to any suspicion, more particularly, when Smt. Renu Verma happens to be the wife of assessee, which is contrary to normal practice. 8. In view of the above, ground No. 1 of the Cross objection is allowed. 9. Ground No. 2 of the Revenue Appeal pertains to Credit in the account of creditors, addition in the account of creditors. 10. The learned AO added Rs. 56.00 lakhs in respect of cash deposits in the account of various creditors. According to AO, the confirmations were filed, but no copy of IT returns and computation and bank statement not filed. Assessee has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment proceedings and filed before your goodself differs. As per the confirmations filed by the assessee before the AO and before your honour, it is noticed that the transactions in the case of Shri Bharat Bansal and Nisha Agrawal are as under:- S. No. Name of the party Description As per confirmation before AO As per confirmation before CIT(A) 1. Bharat Bansal Opening Balance 1,57,875 1,57,875 21.4.2008 credit 1,50,000 17.6.2008 Intt Paid 5,625 18.12.2008 credit 1,50,000 1,50,000 17.6.2008 debit 13,500 Closing balance 4,57,875 3,00,000 2. Nisha Agrawal Opening Balance 3,68,375 3,68,375 17.6.2008 Intt Paid 13,125 1.07.2008 credit 1,00,000 1,00,000 17.6.2008 debit 31,500 Closing balance 4,68,375 4,50,000 From the above, it is clear that- 1. In the case of Bharat Bansal, the assessee has shown fresh unsecured loan of Rs. 3 lacs while the loan of Rs. 1.50 lacs was confirmed by the party. The closing balances of unsecured l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant order and forwarded the assessee reply to the AO for comments. 17. The ld. AR had also drawn our attention to letter dtd. 21.12.2011, whereby assessee had requested AO to summon these creditors for examination which the ITO did not summon them and he was duty bound to enforce the attendance of these persons witness as per decision of Allahabad High Court in the case of Nathu Ram V/s CIT 1963 49 ITR page 561. The learned AO in his remand report accepted the contention of the assessee in his remand report furnished by him as per page 31 - 34 of the Paper Book. At page 32, he conceded that creditors account were of Rs. 51,88,237/- and not Rs. 56.00 lakhs and that opening credit balance was Rs. 32,53,350/- including ICICI loan of Rs. 10.89 lakhs, but he objected to only 2 cash credits in the account of Renu Verma and cash of Rs. 1.5 lakhs was deposited in the bank first and then cheque was issued to assessee which according to him cash was given by the assessee. In the account of Bharat Bansal, he pointed out that out of credit of Rs. 3.00 lakhs i.e. 1.5 lakhs + 1.5 lakhs, he has confirmed only credit of Rs. 1.5 lakhs, hence Rs. 1.5 lakhs remained unexplained. 18. We have heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor in the books of account of the assessee are required to be seen and in the present case, the amount shown in the assessee's account was less as compared to the confirmation before the AO. In view of the above, we do not find any reason to uphold the action of AO and accordingly, the amount of Rs. 468375/- is deleted. 23. In respect of Shree Timber, the assessee has placed at page 146 to 188 the confirmation from shree Timber through its proprietor sh. Akhil Bansal for an amount of Rs. 2,00,000/-. Even the return of income was placed on record for the relevant assessment year. Since the identity, capacity and creditworthiness of the creditor are beyond the shade of doubt, therefore, the deletion made by the CIT(A) is required to be upheld. Ground No. 2 of the Revenue appeal and ground -2 of C.O. 24. In respect to Bharat Bansal, the ld. DR has brought to our notice the copy of the confirmation filed by the assessee before the Assessing Officer and it was submitted that in the confirmation filed by the assessee, only an amount of Rs. 1,50,000 was shown as credit in the books of account of Shri Bharat Bansal and the amount of Rs. 1,50,000/- was received on 1st December, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, it was submitted that the assessee has invested from its capital to M/s. Ganesh Oxygen, Sai Om Developers, Bajaj Alliance, FDR, shares in Sahara and thus, the own funds were not available for transferring the amount to M/s. Sai Ram CharitableTrust. 30. Per contra, the ld. AR has submitted that the assessee's own capital was Rs. 61,94,824/- and unsecured interest free loans of Rs. 17,83,000/- were also available. The said amount was utilized by the assessee for making the investment in Sai Charitable Trust. The ld. AR had also relied on the decision of Hon'ble Supreme Court in the matter of Hero Cycles Pvt. Ltd. vs. CIT, 379 ITR 347 and Ors. 31. We have heard the rival contentions and perused the record. In our view this ground and the other grounds adjudicated by us hereinabove in the appeal of the Revenue were not required to be decided on merit, as by the Circular dated 08.08.2019, the Board has instructed to withdraw all the appeals having tax effect of less than Rs. 50 lacs before the Tribunal. In view of the above, we are leaving this issue open and we are not deciding this issue in the present appeal. Accordingly, this ground of the Revenue appeal is also dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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