TMI Blog2021 (5) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... nce loan outstanding in profit and loss account - company has not returned the loan to the assessee and it has become time barred - HELD THAT:- We find that the assessee s claim is that the assessee has given a loan to a party in the course of business several years ago. Since, the party has not repaid the loan and it has requested its name to be struck off from the Register of company by ROC, the assessee has claimed it u/s.36(2) as bad debt. The revenue has held that this cannot be allowed as it was not a debt which has been written off. We note that if a loan is no longer recoverable that can be considered as a loss and allowed u/s.37(i) of the Act. Quoting a wrong section is not falal. Hence, the fact that the amount has become irrecoverable needs to be examined. Hence, we remit the issue to the file of the A.O. to examine the case of the assessee in light of our observation as above. Needless to add that the assessee should be given an opportunity of being heard. - I.T.A. No. 1434 to 1437/Mum/2018 - - - Dated:- 24-5-2021 - Shri Shamim Yahya (AM) And Shri Amarjit Singh (JM) For the Assessee : Dr. K. Shivram For the Department : Shri Bharat Anohle ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of the above grounds of appeal. Apropos issue of addition u/s. 69: 3. The brief facts of the case are as under :- In this case, certain information with respect of assessee Shri Mohan Thakur was received from the office of the Director of Income Tax (I CI), Mumbai alongwith the report of the Deputy Director of Income Tax (I CI), under spontaneous exchanges of information from the Australian Tax authorities'. As per the report, information was received from the Australian taxation office that the Assessee under consideration has transferred funds amounting to ₹ 12,97,122 AU (Australian Dollars) To Shri. Shagun Thakur (Son) and the other family members i.e. Shri. Shikhar Thakur (Son) Smt. Desiree Ann Thakur (Wife) through hawala system (IMTSTnformal Money Transfer System) for the period of F.Y. 2007-08 to 2012-13. Shri. Shagun Thakur has claimed before the Australian Taxation office, that the said amount was received by him from his father as gift to buy a property situated in Australia. In his statement recorded before the Australian Taxation Office, Shri. Shagun Thakur has submitted that his father has instructed to his friends and business associa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sd/- Mohan Thakur Place: - Mumbai Date :- 30.07.2012 4. The A.O. further referred that the statements of the Assessee under section 131(A) of the I .T. Act were recorded before the department Authorities, Deputy Director of Income Tax (I CI), Unit 1(1), Mumbai. He observed that the perusal of the statement of the Assessee in consideration to the above affidavit submitted by the Assessee before the Australian taxation Office reveals gross inconsistencies in the replies of the Assessee vis-a-vis affidavit submitted to the Australian Taxation Office (ATO). The A.O. observed that on perusal of the evidences in the form of Affidavit and the other documents received from the Australian Taxation Office, he was satisfied and have a reason to believe that Shri. Mohan Thakur, the assessee in consideration has transferred funds to his son during the Assessment year under consideration through Hawala system. He noted that the details of the entire funds transferred are as follows; Funds transfer done by Shri. Mohan Thakur to bank Account of Shri. Shagun Thakur in Australia pertaining to A. Y. 2009-10 Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers in Australia through hawala. He further noted that the funds transferred were not recorded in the books of accounts maintained by the assessee. That assessee has failed to conclusively prove the nature and source of the funds transferred to Australia. He held that the finding of the Australian tax office was conclusive. Hence referring to his order for assessment year 2008-09 he upheld the addition. 9. We have heard both the parties and perused the records. Learned Counsel of the assessee has made elaborate submission alongwith a paper books. The summary thereof has been submitted as under :- No addition can be made on the basis of information received from Foreign Authorities without any evidences. Addition cannot be made without providing a copy of the statement relied upon by the Ld. AO; No addition can be made on the basis of mere suspicion and conjectures Facts The Assessee had requested for copies of the statement relied upon by the Ld. AO vide letter dated September 3, 2016. The said statements have never been provided to the assessee in spite of specific requests. (Page 24 of PB -I) The Ld. AO has made the additions relying on the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer made addition under section 69 of the Act. Further, a copy of the statements recorded by the Central Excise authorities was never provided to the assessee. It did not justify additions under section 69 merely on basis of statement of said partner without any further supporting evidence being on record. The facts of this case are similar to the case of the assessee, merely based on an alleged statement made by Mr. Shagun Thakur before the Australian authority, which has not been provided to the assessee, addition cannot be made under section 69 of the Act without any further supporting evidence. Reliance is placed on the decision of the Hon'ble Supreme Court of India in the case of Goodyear India Ltd. v. CIT [2019] 112 taxmann.com 136 (SC)[16- 10-2O19J page 279-281 of PB III (Para 6 -9 at page 281) where the Court upheld the decision of the Tribunal that there was no material to show that assessee had kept any amount outside its books of account and accordingly, deleted undisclosed income of assessee as recorded by SEC in USA. Further, reliance is placed on the decision of Hon'ble ITAT Allahabad Tribunal in the case of Bioved Research Society ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24 -28 of PB I) Proposition The appellant has discharged the burden by providing confirmations giving the explanation, and giving statement on oath on several occasions When affidavit is filed and statement on oath is taken the contents are proved to be correct unless proved. In the case of Mehata Parikh Co v. CIT (1956) 30 ITR 181 (SC) Page 298- 304 of PB III (Para 2 last para at Page 303) wherein the revenue held that the alleged sums were from undisclosed sources, it was held that it was not enough without further scrutiny to dislodge position taken up by assessee which was supported by entries in cash books and affidavits put in by assessee. Therefore, treating a part of case balance as assessee's income from undisclosed sources was based on pure surmise and based on no evidence and, hence, to be quashed. The appellant is not having any export transactions or dealing in abroad complete bank details were furnished hence the appellant has discharged the burden. It is for the revenue to prove that the appellant has made investment in abroad. Accordingly, the addition confirmed by the CIT(A) without providing the any evidence against the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1961, hence addition cannot be made. Facts The transactions pertaining to deposits in the accounts of Mr. Shagun Thakur a Citizen of Australia and a Non-resident for Indian Income tax Law, and other non-residents. Proposition The transactions pertaining to deposits in the accounts of Mr. Shagun Thakur (Nonresident) have been received via non-residents. Therefore, the same does not have any nexus or impact with the territory of India. Reliance is placed on the decision of the Hon'ble Supreme Court in the case of GVK Industries Ltd. v. ITO [2011] 197 Taxman 337/10 taxmann.com 3 (SC) page 311 332 of PB in (para 76 at page 332) where it was held that any laws enacted by Parliament with respect to extra-territorial aspects or causes that have no impact on or nexus with India would be ultra vires and would be laws made 'for' a foreign territory. Further reliance is placed on the decision of the HonTole Supreme Court in the case of Vodafone International Holdings B.V. v. Union of India [2O12] 204 Tax.rn.an 408/17 taxmann.com. 2O2 (SC) page 333 -415 of PB III (para 173 at page 412) where it was held that for imposing tax, it must be shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances, the addition made, which is based upon the information from a foreign source, without confronting the same to the assessee and without any corroborative material is not at all sustainable. The case laws referred by the ld. Counsel of the assessee as above are germane and support the case of the assessee. Since the addition is not at all sustainbale as found by us hereinabove, the other aspects of the assessee s challenge to the addition is only of academic interest. Hence, we are not dealing with the same. Apropos addition of ₹ 30 lakh 10. On this issue the assessing officer noted that assessee has written off the balance of ₹ 30 lakh in profit and loss account. That assessee is in the business of real estate. That assessee receives brokerage income on transfer of property hence he held that the balance written off must be relating to immovable property which cannot be written off in the profit and loss account. The assessee responded that the impugned amount related to loan given to a party. The address of the said party was also furnished along with the pan No. It was further submitted that the company has not returned the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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