TMI Blog2023 (1) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... parties in penalty proceedings, there was no occasion for confirming the addition in quantum proceedings. The basis of addition made in the present case is the source of investment remaining unexplained. Now, the assessee having explained the source of investment, .DR cannot make out a new case for confirming the addition by stating that though the source of investment stands explained by loan taken by the assessee from his ex-employer, but since this loan was not repaid by the assessee, therefore, it partakes the nature of income by way of salary. This definitely was not the case of the AO and in an appellate proceedings, the Department is debarred from improving upon the case of the AO. We delete the additions made on account of inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to Rs.66.00 lakhs and other in fixed deposits amounting to Rs.5.00 lakhs. The ld.counsel for the assessee contended that both before the AO and the Ld.CIT(A) the assessee had fairly conceded that he was unable to explain and substantiate the source of the above two investments made, but at the same time, he pointed out that when the penalty was levied on this addition made and the matter carried in appeal before the ld.CIT(A),the assessee furnished complete explanation of the source of both the investments, duly substantiating the same with evidences.The ld.CIT(A) sought report from the AO with respect to the explanation and evidences furnished by the assessee, and the AO in turn, after examining the details and evidences filed by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended that he had filed investment evidences by way of copy of bank statement for explaining source of investment in FDRs and in the case of investment in the property the confirmation from the employer was furnished along with bank statement showing receipt of loan from the employer. Our attention also drawn to identical submissions before the AO during the remand proceedings placed at PB Page No.6 to 7 along with all evidences as mentioned above furnished to him as under: i) Confirmation cum ledger account of assessee from books of Backbone Construction P.Ltd. ii) Balance Sheet of Backbone Construction P.Ltd. with grouping as on 31.3.2009; iii) Acknowledgement of return filed by Backbone Construction P.Ltd.; iv) Bank stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that the assessee admittedly was no longer employee of the Backbone Construction Ltd. from whom loan had been taken and had not repaid the loan also, which had increased from Rs.65 lakhs taken by the assessee to Rs.72 lakhs on account of interest being added to the same. 7. We have heard contentions of both the parties and we have also gone through orders of the authorities below, as also documents referred to by both the parties before us. The issue before us relates to the addition made in the hands of the assessee on account of investments in FDR of Rs.5 lakhs and Rs.65 lakhs in flat property remained unexplained. It is a fact on record that source of investments have been duly explained by the assessee in the appellate proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs. The arguments of the ld.DR, we have noted, are based on the order of the ITAT passed on earlier occasion, which now stand recalled. Therefore, the aforesaid order does not exist at all in the eyes of law and no cognizance of any observation made in the said order can be taken. Even otherwise, the basis of addition made in the present case is the source of investment remaining unexplained. Now, the assessee having explained the source of investment, the ld.DR cannot make out a new case for confirming the addition by stating that though the source of investment stands explained by loan taken by the assessee from his ex-employer, but since this loan was not repaid by the assessee, therefore, it partakes the nature of income by way of salar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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