TMI Blog2020 (1) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has submitted the necessary documentation in discharge of his primary onus and the addition so made u/s 68 cannot be sustained. In absence of any adverse finding of the Assessing officer on the documents so submitted, no addition is called for in hands of the assessee and the same is directed to be deleted. Transaction with Mr Arvind - as submitted that by the ld AR that inadvertently, the assessee categorized the said transaction under the head unsecured loan instead of the head advance received from customers and the identity of Mr. Arvind stood established as notice u/s 131 of the Act was duly served upon him, however, there is nothing on record in terms of basic documentation to support the said contention that the transaction was in nature of advance from customers in regular business dealings of the assessee and whether the same has been adjusted and offered to tax as income either in the year under consideration or in the subsequent years. Therefore, the amount so found credited in the books of accounts is hereby confirmed as unexplained credit u/s 68 of the Act and the addition to this extent is confirmed. Admission of additional ground - Addition u/s 43CA - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ld. AO of making addition u/s 68 of the extent of ₹ 22,50,000/-. The action of the ld. CIT(A) is illegal, unjustified and arbitrary and against the facts of the case. Relief may please be granted by deleting the said addition of ₹ 22,50,000/- 2. Briefly the facts of the case are that the assessee filed his return of income declaring total income of ₹ 8,59,010/-. The assessment was completed U/s 143(3) vide order dated 09.11.2016 at the total income of ₹ 32,78,890 wherein an addition of ₹ 22,50,000 was made by the Assessing Officer towards unexplained cash credit under section 68 of the Act. Being aggrieved, the assessee carried the matter in appeal before the ld. CIT(A) who has sustained the addition so made by the Assessing Officer hence, the assessee in appeal before us. 3. During the course of hearing, the ld. AR submitted that the assessee during the assessment proceedings as well as during the appellate proceedings has duly discharged his onus by providing Name, PAN, Address as well as Confirmations, ITR, Financial Statements and Bank Statements in respect of unsecured loan obtained from Mr. S.L Solanki and M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts, it is seen that the Assessing Officer observed that notice issued to these persons were returned back by postal authorities with remark ' not known' and assessee failed to produce these parties for verification. 2.5.1 The assessee filed confirmation, balance sheet and bank account which were forwarded to Assessing Officer. In remand report, Assessing Officer examined and stated that in respect of loan of ₹ 18,50,000/- from Mewar Infrastructure (P) Ltd. in which assessee is a director did not produce books of accounts to support the transactions. In respect of Shri S.L. Solanki from whom loan of ₹ 200,000/- was taken, he was not produced. Therefore, the same cannot be treated as genuine. For third creditor, Shri Arvind, the assessee changed his stand and stated that it is not loan but advance. On perusal of overall facts, I find that the assessee did not discharge his burden to prove the 2 cash creditors i.e. Shri Solanki and M/s. Mewar Infrastructure (P) Ltd. in spite of ample opportunity, no books of accounts of M/s Mewar Infrastructure (P) Ltd in which assessee himself was director was produced. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenues from sale of flats of ₹ 1,53,46,000 and net profits from operations amounting to ₹ 525,645 with cumulative reserves of ₹ 65,14,045 and therefore, the finding of the AO that it is a paper company is not borne out of the records and cannot be accepted. Further, we find that the assessee has submitted the necessary documentation in discharge of his primary onus and the addition so made u/s 68 cannot be sustained. In absence of any adverse finding of the Assessing officer on the documents so submitted, no addition is called for in hands of the assessee and the same is directed to be deleted. 7. Regarding transaction with Mr Arvind, it was submitted that by the ld AR that inadvertently, the assessee categorized the said transaction under the head unsecured loan instead of the head advance received from customers and the identity of Mr. Arvind stood established as notice U/s 131 of the Act was duly served upon him, however, there is nothing on record in terms of basic documentation to support the said contention that the transaction was in nature of advance from customers in regular business dealings of the assessee and whether the same ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be of no consequence. It is axiomatic that what is void is non est. In this situation, the assessee was not precluded from urging the grounds Nos. 2 to 5. By giving them up the assessee could not confer jurisdiction on the Income-tax Officer where he had none. Therefore, the Tribunal was bound to hear the assessee and could not reject the appeal on the ground that grounds Nos. 2 to 5 were not agitated before the Appellate Assistant Commissioner. 11. The ld. AR has submitted that the additional ground is purely a legal ground and it goes to the root of the matter, the same should be admitted in the interest of justice. In support, reliance was placed on the decision of Hon ble Supreme Court in case of National Thermal Power Corporation Ltd. Vs. CIT 229 ITR 383. 12. Per contra, the ld DR submitted that the additional ground taken by the assessee should not be admitted as the said ground though taken before the ld CIT(A) was not pressed before him and once the same has been dismissed by the ld. CIT(A), the assessee cannot be allowed a second chance to raise the ground which has not been pressed before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Rule 11 of the Appellate Tribunal Rules, 1963, the appellant, shall not, except by leave of the Tribunal, urge or be heard in support of any ground not set forth in the memorandum of appeal. One of the relevant considerations which the Tribunal has to consider while allowing the prayer for admission of additional ground of appeal is what precluded the appellant from taking the additional ground of appeal at the time of filing the memorandum of appeal and to explain the delay, if any, in filing such additional ground of appeal. Merely by stating that the ground is legal in nature and the same may be admitted is not sufficient for admission of additional ground of appeal without explaining the delay in taking such additional ground of appeal. Where the filing of the original memorandum of appeal is delayed and the appellant is required to explain the delay in filing the memorandum of appeal to the satisfaction of the Tribunal, on the same footing, where there is a delay in filing the additional ground of appeal, the appellant is equally required to explain the reasons for the said delay to the satisfaction of the Tribunal. In the instance case, there is nothing which has been sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
