TMI Blog2021 (10) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... he findings of the Ld. CIT(A) and direct the AO to delete the addition. Unexplained investment u/s 69 - Whether assessee has explained the source of payments made towards installments of home loan? - HELD THAT:- As per the said statement of account, the cheques received from M/s Prem Oil Store from time to time were deposited in assessee s account and thereafter the amounts of EMI were transferred to the loan account through cheques. So, the assessee has proved the source of amount paid towards repayment of home loan - CIT(A) has sustained the addition inter alia on the ground that the assessee has filed copy of account of M/s Prem Oil Store as per which the said firm has paid the tanker rent in cash. Since the assessee has explained the source of the said amount on the basis of entries in the bank account, we find merit in the contention of CIT(A) has sustained the said addition ignoring the documentary evidence i.e., entries in the statement of bank account of the assessee. On the other hand, there is no reference of the statement of bank account of the assessee in the assessment order - we set aside the findings of the Ld. CIT(A) and send this issue back to the AO with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw and on facts in confirming the actions of the AO in assessing the opening capital balance as on 01.04.2013 amounting ₹ 80,55,462/- as unexplained income u/s 68. (Tax Effect = ₹ 24,89,140/-) 1.2 That the learned CIT(A) has erred in law and on facts in confirming the protective additions made by the AO on account of opening capital balance amounting ₹ 80,55,462/- on substantive basis ignoring that the same has already been added to income of assessee of rearlieryears upon re-assessment u/s 148. (Tax Effect-Same as Gr.1) 1.3 That the learned CIT(A) has erred in law and on facts in confirming the protective additions on substantive basis without providing an opportunity of being heard to the assessee and against the principles of natural justice. 2. That the learned CIT (A) has erred in law and on facts in confirming the actions of the AO in assessing the repayment of principal and interest on housing loan amounting ₹ 4,20,519/- as unexplained investment u/s 69 ignoring the explanations of sources of payments furnished by assessee. (Tax Effect = ₹ 1,29,940/-) 3. That the appellant craves leave to add, alter, ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us Usha Stud agricultural Farm ltd. 301 ITR 384 (Delhi) b. CIT versus J. J. Development (P) Ltd. ITA519/2008 (Calcutta) c. CIT versus Parmeshwar Bohra 301 ITR 404 (Rajasthan) d. Nirmal Ronnie versus DCIT policy ID No. 1075/Chd. /2013 (Chandigarh tribunal) 6. In view of the submissions and the ratio laid down by the hon ble High Courts and the Chandigarh Bench of the Tribunal in the aforesaid cases, the Ld. counsel submitted that the findings of the Ld. CIT(A) are not in accordance with the ratio laid down in the aforesaid cases, therefore liable to be set-aside. 7. On the other and the Ld. Departmental representative (DR) supporting the findings of the CIT(A) submitted that since the assessee has failed to explain and substantiate the opening capital balance as on 01.04.2013, the Ld. CIT(A) has rightly confirmed the addition made by the AO. 8. We have heard the rival submissions of the parties and also perused the material on record including the cases relied upon by the Ld. counsel for the assessee. The Ld. CIT(A) has confirmed the addition holding that the assessee has not taken the correct figures of profit earned during the year relevant to the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. counsel that the said amount cannot be treated as fresh credit in the relevant previous year as the said entry did not pertain to the year relevant to the assessment year under consideration. 10. In the case of CIT vs. Usha Stud Agricultural Farms Ltd. (supra) the Hon ble Delhi High Court has upheld the findings of the Tribunal holding that where the credit balance appearing in the accounts of the assessee does not pertain to the year relevant to the assessment year under consideration, the AO cannot make addition of the impugned amount under section 68 of the Act. In the said case, AO noticed that the assessee had shown an advance of ₹ 15 lacs. The assessee contended that the amount was received towards advance breeding charges. AO rejecting the explanation of the assessee made addition of the said amount u/s 68 of the Act for the reason that the assessee has failed to file confirmation from the concerned person. In the first appeal, the CIT(A) deleted the addition. In the further appeal, the Tribunal affirmed the action of the CIT(A). The revenue challenged the order of the Tribunal before the Hon ble High Court. The Hon ble High Court dismissed the appeal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion of the AO. In the present case, the Ld. CIT(A) has confirmed the addition made by the AO on account of opening capital balance as on 01.04.2013. Further, the AO has already reopened the returns of the assessee for the earlier assessment years including the assessment year 2013-14 and made additions. Under these circumstances, the Ld. CIT(A) has wrongly confirmed the addition ignoring that the credit entry in question does not pertain to the year relevant to the assessment year under consideration. Hence, in view of the facts and circumstances of the case and the ratio laid down by the Hon ble High Courts discussed above, we hold that the action of the Ld. CIT(A) is not in accordance with the provisions of the Act and contrary to the ratio laid down in the cases discussed above. We therefore, allow this ground of appeal and set aside the findings of the Ld. CIT(A) and direct the AO to delete the addition. 14. Vide ground No 2. The assessee has challenged the action of the Ld. CIT(A) in sustaining the addition of ₹ 4,20,519/- out of total addition of ₹ 6,94,290/- made by the AO as unexplained investment u/s 69 of the Act, on the ground that the assessee has expla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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