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TMI Blog2012 (6) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... of AO for deciding afresh - in favour of revenue. Addition in respect of unexplained cash credit - Held that:- As regard cheque received against cash credit, cheque was issued out of Bank account of HUF and assessee has also furnished PAN numbers and also confirmation of the loan creditor to prove not only identity but the genuineness of transaction as well as creditworthiness of the loan creditor. As the assessee has discharged his primary onus, the Assessing Officer was not justified in making addition - in favour of assessee. Addition being unexplained investment in the purchase of the property - Held that:- As the extent of Bank finance to purchase the property has already being accepted by AO and nothing was asked from him in the remand proceedings nor he has given any of the remarks in the remand report. While deleting the addition, CIT(A) has not given any positive finding as to the source of income as added by the AO. The CIT(A) has simply stated regarding amount invested in the property and the loan taken from the Bank, which was already accepted by the AO - set aside this ground also to the file of AO for deciding afresh. - I.T.A.No. 206/Ind/2011 - - - Dated:- 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following observations :- 4.0 Facts on records, findings in assessment order remand report and appellant s contentions and documents filed are carefully considered. First issue which is to be decided is whether the appellant had, on the dates of deposits, sufficient funds viz. Rs. Rs. 9,00,000/- on 27-06-06 and Rs. 5,00,000/- on 15-1-2007 in her bank a/c with UCO bank. The explanation of the appellant is that she had made an agreement on 17-04-2006 with Smt. Kamlabai Banesingh and Shri Jiwansingh Banesingh for purchase of agricultural lands situated at khasra No.7/1 and 8/1 in PH No. 18 Village Keladhals Tah. Distt. Indore @ Rs. 12,00,000/- per acre and had paid Rs. 14,00,000/- as advance to the sellers out of cash available with her. As the sale deal did not materialize, the agreement to sell was cancelled with the consent of both the parties on 10-05-06 and it was decided that the sellers would return to the appellant the advance of Rs. 14,00,000/- as under :- Rs. 9,00,000/- on 27.06.06; Rs. 5,00,000/- on 15-01-07 Rs. 14,00,000 4.1.1 The appellant has further stated that she had taken loan of Rs. 9,50,000/ - on 24/01/2007 from Ratanchand Bohra by account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as real and the argument of the appellant has to succeed. 4.1.3 Further, it has been held by the Supreme Court in the case of Mehta Parikh Co. v CIT (1956) 30 ITR 181 that where the AO regards the affidavit as not sufficient proof of the contents thereof, he should cross-examine the deponent and if dissatisfied, call upon the assessee to produce documentary evidence in support of the contents of the affidavit. If no such thing is done, the affidavit by itself should be regarded as sufficient proof. In Gunwantibai Ratilal vs. CIT, (1984), 146 ITR 149 (MP), the court held that if there is no material whatsoever on record for doubting the veracity of the statements made in the affidavit and if the deponent has also not been subjected to cross examination for bringing out the falsity of his statements, then the tribunal will not be justified in doubting the correctness of the statements made by the deponent in the affidavit. The finding arrived at in such a case would, according to the Supreme Court, be a finding based on pure surmise. It is the duty of the AO to enforce attendance of a witness if his evidence is material. Thus, if the AO does not exercise his powers to call the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet of the firm also. The assessee took loan of Rs. 34,88,797 from ICICI Bank and the same is duly shown. in the balance sheet of the firm. The appellant submitted all the details i.e. bank certificate for loan, copy of registered deed, copy of account of the asset in M/s Mayuri Heena Herbals Pvt. Ltd., copy of Audited balance sheet of M/ s Mayuri Heena Herbals Pvt. Ltd. 4.2.2 The addition has been made at Rs. 9,41,803/- after accepting the appellant's explanation to the extent of loan taken from ICICI Bank at Rs. 36,05,644/- on 30.12.2006 which has been credited by the company in its books and interest on this loan has also been credited by it. The bank loan is taken in the joint names of the appellant, her husband Ritesh Ajmera and M/s Mayuri Heena Harbles Pvt. Ltd. The limited company has shown in its own balance sheet the entire value of Rs. 45,33,683/- as against purchase value by the appellant and her husband at Rs. 44,30,600/-, both being directors of the company. The AR during discussion submitted that only beneficial ownership is sufficient and registration of conveyance deed in the name of company was not necessary. It is further explained that since the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al was produced. As per the ld. Assessing Officer, the copy of agreement of sale, cancellation of sale agreement and subsequent cash transaction of Rs. 14 lacs was not reliable and it was only a cooked up story to establish the genuineness of source of cash deposit of Rs. 14 lacs in the bank account. However, the ld. CIT(A) has deleted the addition without controverting these observations of the Assessing Officer in the remand report nor given any finding much less a positive finding with regard to availability of cash of Rs. 14 lacs with the assessee, which was alleged to be given as advances for purchases of land. It is also not the case of CIT(A) that he has examined the party to whom assessee has alleged to have given advance nor the return of the same from the respective parties. Nor any findings on the genuineness of agreements etc. placed before him for the first time. Merely by pointing out fault in Assessing Officer s action, he has deleted the addition, which is not justified. There is no dispute to the well settled legal proposition that power of CIT(A) is co-terminus to that of Assessing Officer and what the Assessing Officer has failed to do the CIT(A) is equally compe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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