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TMI Blog2011 (5) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 by means of bank drafts of (Rs. 9 lakhs + 9 lakhs + 7 lakhs) respectively - The assessee had also submitted the documents to support his plea in the form of development agreement, copies of the bank drafts and certain letters/correspondence written by Ganpati Builder - Hence, set aside the impugned order passed by the Tribunal as well as the Assessing Officer and remit the case back to the Assessing Officer to enquire into the matter afresh by summoning Mr. Jagdeep Prasad Verma - If the Assessing Officer is convinced that the addition is to be made, it would be open to the Assessing Officer to take a view as to whether the addition is to be made under section 68 or section 69A of the Act. X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue by reversing the order of the Commissioner of Income-tax (Appeals). Though the Tribunal accepted that the provisions of section 68 were not applicable, it sustained the additions invoking the provisions of section 69A of the Act. Thereafter, each of the additions was discussed and the findings of the Commissioner of Income-tax (Appeals) were reversed sustaining the additions made by the Assessing Officer. Because in these circumstances, the present appeal is preferred by the assessee challenging the order dated October 17, 2008, passed by the Tribunal, we may, however, point out that, at the outset before us only one addition to the tune of Rs. 20 lakhs sustained by the Income-tax Appellate Tribunal is challenged and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal. The order of the Tribunal indicates that it has taken into consideration the said documents including the letters written by Ganpati Builder and on the basis thereof has arrived at the finding that the amount of Rs. 20 lakhs allegedly received in cash by the assessee from Ganpati Builder was never received and on this basis, addition is made. We are not commenting upon the analysis of the evidence as recorded/undertaken by the Tribunal. Suffice to state that in the aforesaid backdrop, before the Assessing Officer, or for that matter, the Income-tax Appellate Tribunal discarded the evidence produced by the assessee, in the facts of this case, it was incumbent upon the Assessing Officer to have at least summoned Mr. Jagdeep Prasa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund of the amount of Rs. 25 lakhs (Rs. 5 lakhs + 20 lakhs) paid by him, that is, whether he had paid the said sums of Rs. 25 lakhs including Rs. 20 lakhs in cash at all or not.
5. For these reasons, we answer the question in favour of the assessee. As a result, we set aside the impugned order passed by the Tribunal as well as the Assessing Officer and remit the case back to the Assessing Officer to enquire into the matter afresh by summoning Mr. Jagdeep Prasad Verma. If the Assessing Officer is convinced that the addition is to be made, it would be open to the Assessing Officer to take a view as to whether the addition is to be made under section 68 or section 69A of the Act.
6. The appeal stands disposed of. X X X X Extracts X X X X X X X X Extracts X X X X
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