TMI Blog2020 (5) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the addition of ₹ 64,806/- is confirmed and the other addition on amount of ₹ 67,535/- is deleted. This ground of appeal is partly allowed. Unexplained and undisclosed investment u/s.69B - assessee has invested in bank FD - HELD THAT:- We find that the FDR of ₹ 13,482/- dated 29-02-2000 and the other FDR does not fall during the year under consideration. Hence, the addition of ₹ 13,482/- is confirmed and the balance addition therefore, is deleted. This ground of appeal is therefore, partly allowed. Unexplained investment in building u/s.69B - HELD THAT:- Since the property in question was purchased in the year 1989 and same was registered in 1990. Therefore, the investment so made does not pertains to assessment year under consideration. The investment thereon is shown out of disowned balance sheet. Therefore, said addition is also not justified. In view of these facts and circumstances, the addition made by the AO is therefore, deleted. This ground of appeal is allowed. Unexplained investment on account of alleged unexplained expenditure and unaccounted investment made under section 69A - HELD THAT:- We find that the addition made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. These two appeals filed by the Assessee in HUF and Individual capacity are directed against the common order of Commissioner of Income-Tax (Appeals)-3, Surat [in short the CIT(A) ] dated 09-06-2017 13-07-2017, for the assessment years 2000-01 assessment year 2004-05 respectively. I.T.A.No. 83/SRT/2017/A.Y. 2000-01/ By Chandulal A Shah- HUF: 2. Additional ground: During the currency of appeal, the assessee has raised additional grounds regarding reopening of assessment and issuing notice u/s.148 of the Act. 3. We have heard the rival submissions and perused the relevant material on record. We find that the additional ground raised by the assessee is purely legal and does not involve any investigation of facts, hence, same is being purely legal ground is allowed to be admitted by following that ratio laid down by the Hon ble Supreme Court in the case of National Thermal Power Corporation v. CIT (1998) 229 ITR 383 (SC) wherein it was held that the additional ground of appeal can be admitted, whereas the issue involved in law and not involving any investigation of facts. 4. Additional ground are raised by the assessee read as under:- 1. On the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to Para 14 of the assessment order wherein the AO mentioned that on examination on capital account. The assessee has shown opening capital balance at ₹ 16,97,252/-, the assessee asked to furnish the details of show-cause notice dated 24-02-2014. The reply was furnished by the assessee reproduced at para 14 of the assessment order. Further, referred at Para 13 of the assessment order wherein the AO has mentioned that the various investments made a discussion in the above mentioned paragraphs separately for an amount of ₹ 12,70,054/- is not justifiable after creation to proportionate capital only these investments were brought into books of account. Likewise, the assessee shown various loans and advances shown in balance sheet and proportionately increased the capital balance. Therefore, it is proved that, the assessee utilized the bogus capital created at ₹ 16,97,252/- to the extent of investments discussed in above paragraphs in the present year and the remaining capital was accommodated by various cash loans and advances, to brought the undisclosed investments already held by the assessee in future course of time. Thus, the AO has made the addition and consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another cashbook of the assessee shows cash in hand on ₹ 67, 535/- for which no explanation was provided. Accordingly, the AO has made an addition of ₹ 1,32,341/-. 10. In appeal, no details were provided, accordingly this addition has confirmed. 11. Being aggrieved, the assessee filed this appeal before this Tribunal. The ld. counsel submitted that the AO has considered two balance sheets of the assessee showing cash in hand of ₹ 64,806/- and another scan copy of balance sheet of ₹ 67,535/-. The second cash book has been disowned by the assessee only one addition can be made which may be correct. 12. Per contra, the ld. Sr. DR relied on the order of lower authorities. 13. We have heard the rival submissions and perused the relevant material available on record. We find that there were two balance sheets prepared by the assessee, however, one was appeared to be authentic and has been prepared by Pankaj Danawala, and Chartered Accountant for bogus capital entry and assets, without any actual transaction has taken place. Therefore, the addition, if any, can be made any respective of one balance sheet for the same period, therefore, the addition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-. 21. Being, aggrieved, the assessee filed an appeal before the Ld. CIT (A). However, CIT (A) upheld the addition made by the AO. 22. Being, aggrieved the assessee filed this appeal before the Tribunal. The learned counsel for the assessee submitted that A-74, Saifee Society property was purchased in the year 1989 and the document was made in the year 1990. The building and shed were shown as per disowned balance sheet. Hence, no addition on this account could be made. 23. Per contra, the ld. Sr. D.R. relied on the orders of lower authorities. 24. We have heard the rival submissions and perused the relevant material on record. Since the property in question was purchased in the year 1989 and same was registered in 1990. Therefore, the investment so made does not pertains to assessment year under consideration. The investment thereon is shown out of disowned balance sheet. Therefore, said addition is also not justified. In view of these facts and circumstances, the addition made by the AO is therefore, deleted. This ground of appeal is allowed. 25. Ground No. 4 relates to unexplained investment of ₹ 4,80,992 on account of alleged unexplained expenditure and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance sheet and bogus assets without any actual investment made by the assessee. The assessee has disowned the said balance sheet. In number of case laws, it was found to be bogus and addition stand deleted. Therefore, considering these facts, these addition made by the AO are therefore, directed to be deleted. Accordingly, Ground No. 5 to 9 of appeal are allowed. 38. In the result, the appeal of the assessee HUF for A.Y. 2000-01 is partly allowed. I.T.A.No. 84/SRT/2017/A.Y. 2004-05/ Chandulal A Shah- Individual: 39. Ground No.1 to 9 are relates to confirming various addition amounting to ₹ 21,88,791 including addition of Rs. of ₹ 1,10,000 made in original assessment order and other additions made in fresh assessment made in consequence to ITAT order. 40. At the outset, the learned counsel for the assessee submitted that original assessment was completed under section 143 (3) on 26.12.2006 determining total income of ₹ 4,64,870 after making addition of ₹ 1,10,000 on account of unexplained expenditure FDR. Pf ₹ 47,968 on account of unexplained capital creation and ₹ 28,000 on account of interest on bank. The assessee has filed an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore appellate authority. The Hon`ble Supreme Court in the case of MCorp Global (P) Ltd. v. CIT [2009] 309 ITR 434 (SC)/[2009] 178 Taxman 347 (SC) following decision in the case of Hukumchand Mills Ltd. v. CIT [1967] 63 ITR 232 (SC) held that It is well-settled that the Tribunal is not authorized to take back the benefit granted to the assessee by the Assessing Officer. It has no power to enhance the assessment. In the instant case, the Assessing Officer had granted depreciation in respect of 42,000 bottles out of the total number of 5,46,000 bottles. That benefit was sought to be taken away by the Tribunal, which was not permissible in law. That was the infirmity in the impugned judgments of the High Court and the Tribunal. [Para 6]. Similarly, the Hon ble Gujarat High Court in the case of Fidelity Shares And Securities Ltd. v. DCIT[Tax Appeal No. 187 of 2001 dated 13.06.2016] following the ratio of decision of Hon`ble Supreme Court in the case of MCorp Global (P) Ltd. v. CIT [2009] 309 ITR 434 (SC), [2009] 178 Taxman 347 (SC) and Hukumchand Mills Ltd. v. CIT [1996] 62 ITR 232 (SC) held that the Tribunal has no power under Income Tax Act, to enhance the assessment in Appeal In v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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