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TMI Blog2011 (1) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... to have given the advances - existence of the persons is doubtful and not proved the agreement as well as the transaction cannot be genuine - Decided against assessee. Receipt as capital receipt - since this was the first year of assessment – Held:- assessee was carrying on the business from earlier without filing of the return of income - When the genuineness of the transaction as well as the agreement was found to be doubtful and the persons said to have advanced the money were not in existence the revenue rightly made the addition u/s 69 of the Act. - Decide against assessee. - I.T.A. No. 956/Hyd/2010, I.T.A. No. 957/Hyd/2010 - - - Dated:- 28-1-2011 - Shri N. R. S. Ganesan And Shri Akber Basha,JJ. For the Appellant : Shri A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since the amounts were repaid, according to the learned counsel for the assessee, the same cannot be treated as income of the assessee. 4. The learned counsel for the assessee further submitted that the assessee has no other source of income except income from business. Therefore, the Assessing Officer is not justified in making the addition u/s. 69 of the Act with regard to investments made in the bank deposits. The learned counsel for the assessee placed his reliance on the judgement of the Apex Court in CIT vs. P.K. Noorjahan (1999) 237 ITR 570 and submitted that when the assessee has no other source of income there cannot be any addition u/s. 69 of the Act. The learned counsel for the assessee has also placed his reliance on the judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer has a limited role while giving effect to an appellate order. Therefore, the Assessing Officer has exceeded his jurisdiction in examining the genuineness of the agreement and the transaction. 6. On the contrary, Shri Amlan Tripathy, the learned DR submitted that the Assessing Officer received intimation regarding deposit of funds in the State Bank of India, Nampally Branch, from CIB Wing of the Department. Accordingly the assessee was asked to explain the source of investment made in the bank deposits. The assessee explained to the Assessing Officer that they are doing business in casurina ballies and they have OCC account with credit limit of Rs.25 lakhs. The partnership firm in which the assessee was a partner had a cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in fact exist. The attempt made by the Assessing Officer to examine the persons said to have given advances was also failed since no such persons, in fact, exist. Therefore, according to the learned DR the assessee could not prove the existence of the persons said to have given the advances. The Assessing Officer, therefore, concluded that the transaction is not genuine. 7. Referring to the argument of the learned counsel for the assessee that this is the first year of assessment, according to the learned DR, the assessees were in the business earlier but they filed the return of income for the first time. In the case before the Apex Court in Bharat Engineering Construction Co. (supra) the business itself was started in the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding the fact whether the assessee filed those receipts or not. However, considering the contents of the affidavit, the receipts fled should be on record. Even these are not on record. The same are required to be put on record and necessary examinations of these receipts are necessary. Further it has also been noticed from the finding the AO that he has not examined the relevant agreements and has not appreciated the facts of the case. He simply followed the direction of the Addl. CIT, Range-5, Hyderabad. We find that complete facts of the case after necessary examination of agreements and other documents are not on record. In the absence of complete facts, the matter cannot be decided at this stage. Since the relevant material, etc., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the agreement and the transaction are not genuine. No material is produced before this Tribunal to show that the above such persons were in fact exist. No material is available on record to contradict the findings recorded by the lower authorities about the existence of the persons who said to have given the advances. When the existence of the persons, said to have given the advances, is doubtful and not proved, in our opinion, the agreement as well as the transaction cannot be treated genuine. Therefore, we do not find any infirmity in the orders of the lower authorities in concluding that the agreement and transaction are not genuine. 11. The next contention of the assessee is that this is the first year of assessment, therefore, the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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