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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 ..... ising for consideration in both the appeals is the addition u/s. 69 of the Income-tax Act, 1961 as unexplained investment. 3. Shri A.V. Raghuram, the learned counsel for the assessee submitted that both the assessees are related as husband and wife. During the assessment year under consideration both the assessees received advances for supply of casurina ballies and the same were deposited in the bank. After the field visit, the purchaser did not like the casurina ballies. Therefore, the agreement was cancelled. Accordingly the advances received by the assessee were returned to the respective parties. What was received by the assessee is an advance in the course of trading activity and the same was also repaid. According to the learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the assessee, the genuineness of the agreement entered between the assessee and the purchaser of casurina ballies was not subject matter before the Tribunal. Therefore, the Assessing Officer cannot examine the genuineness of the agreement while making reassessment in pursuance of the Tribunal order. Therefore, the Assessing Officer has exceeded the jurisdiction while making reassessment. 5. The learned counsel for the assessee has also placed his reliance on the judgement of the Apex Court in CIT vs. Bharat Engineering & Construction Co. (1972) 83 ITR 187 and submitted that cash credit made in the first year of the business cannot be treated as income of the assessee. Since this is the first assessment year the investment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer made addition u/s. 69 of the Act which was also confirmed by the CIT(A). During the first round of litigation before this Tribunal in an earlier occasion the assessee filed the copies of the agreement, confirmation letters and receipt for repayment of advances before this Tribunal. Accordingly this Tribunal by an order dated 13.4.2007 in I.T.A. No. 1131/Hyd/2006 remanded back the matter to the file of the Assessing Officer to re-examine the matter after considering the agreement and other materials filed by the assessee. In obedience to the direction of this Tribunal the Assessing Officer examined the agreement and other materials available on record. Therefore, according to the learned DR it may not be right to say that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record. This is the second round of litigation before this Tribunal in respect of the addition made by the Assessing Officer u/s. 69 of the Act. In the first round of litigation the assessee specifically claimed before this Tribunal that the amounts received as advances for sale of casurina ballies were deposited in the bank. The assessee has also filed the copies of the agreement, receipt, confirmation letter, etc., before this Tribunal. This Tribunal found that the Assessing Officer had no occasion to examine all those materials. Therefore, the matter was remanded back to the file of the Assessing Officer to reconsider the same after examining the agreement and other materials filed by the assessee. In fact this Tribunal has observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer to examine the agreement and other materials filed by the assessee. In view of the order of this Tribunal it is obvious that the Assessing Officer was directed to examine the genuineness of the agreement and the transaction. Therefore, the assessee at this stage cannot say that the Assessing Officer exceeded his jurisdiction. In our opinion, the Assessing Officer examined the agreement in compliance to the direction of the Tribunal. 10. Now coming to the merit of the case. The Assessing Officer issued summons to the persons who were said to have advanced the money. The said summons were returned by the postal authorities unserved. Therefore, the Assessing Officer has made an attempt to examine those persons through Departmental o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to deposit of money in the bank and the assessee is carrying on the business without filing of the return of income. Therefore, the judgement of the Apex Court in Bharat Engineering & Construction Co. (supra) may not be of any assistance to the assessee. 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, in our opinion, the lower authorities have rightly made the addition. Since the assessee was in the business in earlier year, the judgement of the Apex Court in the case of P.K. Noojahan (supra) may not be of any assistance to the assessee. 12. We have also carefully gone through the decision of the Pune Bench of this Tribunal in B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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