TMI Blog2022 (1) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... in his order that AO is free to take action to bring this amount under taxation in AY 2006-07, if he deems fit. Addition u/s 69 - unexplained investment - HELD THAT:- It is a list of 104 persons from whom the assessee has claimed to have received advances amounting ₹ 1,85,00,000. This list is not accompanied by any details; the said list is of no evidentiary value towards explaining of the sources of the said ₹ 1,85,00,000/-. Hence, the Id. AO is correct in his conclusion that the said amount claimed to be advanced by assessee for purchase of land is unexplained investment. Even in the appeal proceedings, the AR has been able to file affidavits in only 29 out of said 104 lenders. There is no corroborative evidence/details to support the assertion made in the said affidavits. AR has not given copy of bank accounts or the income tax details of the said lenders. It is a trite law that in case of unsecured loans in books of account, the primary onus is on the assessee to establish the identity and creditworthiness of lender and genuineness of transaction. However, in the present case, the assessee has not furnished only details to establish the above, in spite of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord. 4. We have heard Learned DR for the Revenue and perused the material available on record, we note that Ld CIT(A) observed that assessee has objected to the reopening of assessment. But Ld. CIT(A) did not accept, the contention of the assessee. The ld CIT(A) noticed that on the basis of copy of FIR, the A.O. had valid reason to believe that income has escaped assessment. However in the FIR, the year of payment was not mentioned. Therefore AO had no option but to reopen the assessment. Hence, the A.O.'s action for reopening the assessment was upheld by the Ld.CIT(A). 5. On merits, Ld. CIT(A) noted that so far as bringing the amount mentioned in the FIR is concerned, this cannot be taxed in the assessment year in question as the payment has been made by the assessee, during the previous year 2005-06 relevant to A.Y. 2006-07. This fact was brought to the notice of the A.O. during the assessment proceedings itself and the same has been mentioned by the. A.O. in para 4.3 of the assessment order, which is reproduced as under: The income claimed in the year should be taxed only in the year or creation either on substantive basis or protective basis. Since, the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oney and subsequently to have paid ₹ 1,35,00,000/-. Thus, the assessee paid advance of ₹ 1,85,00,000/- for the above land. However, the same advance of ₹ 1,85,00,000/- was not shown in the balance sheet filed by the assessee for assessment year 2005-06 nor was it explained before the ld. AO. Therefore, the assessment was completed for A.Y. 2005-06 by making addition of ₹ 1,85,00,000/- as unexplained investments. Later on, the assessee filed appeal before the Ld. CIT(A)(V), Surat and after examining the fact of the case vis a vis the submission of the assessee, the Id CIT(A)(V), Surat, has found that the said advance of ₹ 1,85,00,000/- was made by the assessee during A.Y. 2006-07. Also, the return of income of the assessee is examined and it is found that the said advance of ₹ 1,85,00,000/- is not shown in the books of account for A.Y. 2006-07. In view of the above, the case of the assessee was reopened for A.Y. 2006-07 u/s 147 of the I.T. Act and notice u/s 148 was issued after getting due administrative approval by Assessing Officer. The notice u/s 148 of the I.T. Act dated 26.02.2013 alongwith copy of reasons recorded, were duly served upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter in appeal before the CIT(A) who has dismissed the appeal of the assessee observing as follows: 5. DECISION 5.1 Admittedly advance of ₹ 1,85,00,000/- were made by assessee for the purchase of said land. Hence, the assessment for A.Y. 2005-06 was completed by making the said addition. However, the Id. CIT(A) held that the advance were made in previous year relevant to A.Y. 2006-07 and hence, deleted the addition. Consequent to this, the Id. AO re-opened the assessment of A.Y. 2006- 07 and made this assessment u/s 143(3) r.w.s. 147/148. I have carefully examined the assessment order the submissions of the assessee/AR and I find no irregularity in the procedure followed by the Id AO in re-opening the assessment or in completing the re-assessment. In view of this, I do not find any merit in the grounds no. 1 to 3, hence, they are hereby dismissed. Decision on additional evidences. 5.2.1 In the re-assessment proceedings the assessee has not cooperated and not filed any details to explain the sources of above advances. However, in the appeal stage he has submitted list of persons from whom he claims to have received advances. The AR claims that list ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances have been made for admission of any additional evidences. Rather, in Para 2 of the appellate order, the learned CIT (A) contrarily noted that opportunities have been provided to the assessee at the assessment stage. It would, therefore, show that proper opportunities have been granted to the assessee at the assessment stage and the assessee has failed to make out any case of denial of opportunity or having any sufficient cause for failure to adduce the evidences before the AO at the assessment stage. The learned CIT (A), therefore, was not justified in entertaining the additional evidence at the appellate stage in violation of Rule 46A of the IT Rules. ' 5.2.5 In the present case, the assessee had a head start from 28/11/2008 itself and he was also provided adequate opportunities to submit explanations details, the assessee was also not prevented by any sufficient cause from producing evidences before AO. Hence, I don't see any convincing reason to admit the said affidavits filed as additional evidences in appellate stage. 5.3 Decision on merits. During the assessment stage, the AR claims to have produced list of lenders on the very day the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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