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TMI Blog2015 (1) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... able' it is held that it has to be concluded that provisions of Section 40(a)(ia) are applicable only to the amounts of expenditure which are payable as on the date 31st March of every year and it cannot be invoked to disallow expenditure which has been actually paid during the previous year, without deduction of TDS. Decided the issue in favour of assessee. A.O. is directed to delete the addition. - ITA. No. 354/Hyd/2013, ITA. No. 428/Hyd/2013 - - - Dated:- 2-1-2015 - Shri B. Ramakotaiah And Shri Saktijit Dey,JJ. For the Petitioner : Mr. K. Gopal For the Respondent : Mr. Rajat Mitra ORDER Per B. Ramakotaiah, A.M. These are cross appeals by Assessee and Revenue against the order of Ld. CIT(A)-VI, dated 28.12.2012 for the A.Y. 2009-2010. We have heard the Ld. Counsel and Ld. D.R. and perused the documents placed in paper book. Certain clarifications were also sought during the course of hearing which were considered while deciding the issues. 2. Briefly stated facts are that assessee, an individual, is into the business of trading in surgical items in the name and style of M/s. Fair Deal Enterprises, a proprietary concern. Survey was conducted on 03.11.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;FOE'. On being questioned about the agreement, assessee's husband replied that these agreements were not signed by the seller as the conditions were not agreed upon and transaction took place with different conditions and the property was registered, in the name of Mrs. Sailaja, subsequently. It was further stated that the property is situated in a water body zone or full tank level zone, where permissions are not granted for any construction and there was error in the mentioning of amount by the document writer. It was further stated before the AO that due to recession around Hitech city, the plot was renegotiated for ₹ 60,56,000 and copy of sale deed was submitted. Disbelieving the version of assessee, AO observed that the page No.151 of annexure A/FDE/02 has indicated the amounts to the tune of ₹ 2,21,50,000, as payments, noted against different dates and parties under the head FDE, and the same reveals that the details in loose sheet are nothing but the payments made in excess of consideration indicated in the sale deed. Thus, it was concluded that the total consideration agreed was ₹ 2,95,50,000, out of which an amount of ₹ 74 lakhs was paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eiterated the facts as mentioned in detail and that the addition is to be deleted. 7. Ld. CIT(A) has decided the issue confirming the additions as under : 7.5. Perused the observations of the AO and the submissions of appellant. As could be seen from the facts of the case, appellant Mrs. Sailaja entered into an agreement for sale with Mrs. Y. Annapurna Reddy, resident of Hyderabad for purchase of plot admeasuring 500 sq. yards located at Plot No. 170, Kavuri Hills, for an agreed sale consideration of ₹ 2,95,00,000/- that is @ ₹ 59,100 per sq. yard, vide the agreement for sale dt. 12.04.2008, whose copy was found and impounded during the course of the survey proceedings conducted in the group on 3.11.2008. As per the impounded material (page No. 146 to 151 of A/FDE/Ol), in the form of copy of agreement dt. 12.04.2008, the amounts of ₹ 74,00,000 (mentioned by AO as ₹ 73 lakhs) were paid to the vendor in pursuance of the said agreement with an amount of ₹ 14 lakhs (Rs.13 lakhs + one lakh) paid in cash and ₹ 60 lakhs paid by the demand draft dt. 12.04.2008. The said agreement for sale also indicate the balance of the amounts payable at ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 65,60 ,000/-. 7.7. In the context of the claims and counter claims as regards to the relevance of the consideration as reflected in agreement for sale vis.a.vis sale deed, to ascertain the quantum of the unaccounted investments made by the appellant, it is relevant to refer to the provisions of Sec. 69B which indicate that the provisions of Sec. 69B can be evoked on the basis of the following circumstances, on cumulative basis: i) where it is found that the assessee made investments or is found to be the owner of any bullion, jewellery or other valuable article and; ii) where it is found that the amount expended on making such investments or acquiring such bullion, jewellery or other valuable article exceeds the amount recorded in the books of account maintained by the assessee and; iii) either the assessee offers no explanation about such excess amount or the explanation offered by him is not satisfactory. A reading of the conditions for invoking the provisions of Sec. 69B, it makes clear that the legal friction enacted by the said section comes into effect where all the above circumstances do factually exist and the onus to prove the existence of all suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formation demolishes the afterthoughts and information including the sale deed dt. 28.06.2008, along with the statement recorded from the vendor or the affidavit filed by the vendor. The affidavit and statement from the vendor that is Mrs. Annapurna Reddy are nothing but self serving information and evidence and the same need not be considered as a corroborative evidence, for the reason that the amount of consideration as confirmed by the vendor was put at ₹ 60,56,000/- which is the same as that of the amount mentioned in sale deed dt. 28.06.2008 whereas the amounts paid as per agreement for sale dt. 12.4.2008 itself was ₹ 74,00,000 including the amounts paid by DD. This was never returned by the vendor after adjustment of the consideration of ₹ 60,56,000 as per sale deed. This means, even as per the agreement for sale the minimum amount exchanged for transaction was ₹ 74 lakhs which was not denied either of the parties, as against the confirmation of the consideration at ₹ 60,56,000 by the vendor. These facts explain the clear afterthoughts both on the part of the vendor and the vendee. 7.9. Further, the infirmity attributable to the land that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afterthoughts on the part of the appellant. In this context, it may be relevant to refer to the decision of Hon'ble Delhi High Court in the case of Bela Junena Vs. CIT (339 ITR 144)(2011), wherein the difference between the consideration as per the agreement for sale and the sale deed was held to be the unexplained investment. 7.11. Thus, relying on the ratio of the judicial decision and the facts of the case, I am of the considered opinion that the information regarding the purchase consideration of the property as reflected in the agreement for sale with further support of details of payments by the DOs confirm the correctness of the quantum of consideration at ₹ 2,95,50,000/-, as against the consideration of ₹ 60,56,000/- shown in the sale deed. Further, the evidence / information found in the form of details of payments made subsequently as per the notings in page 151 of A/FDE/01 which are matching exactly with the balance of the amounts of ₹ 2,21,50,000/- as reflected in the agreement for sale indicate the relevance of such corroborative evidence in strengthening the primary evidence of the case. Further, such details at page No.151 of the impounded ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder are concerned, the same cannot be supported as there is no such statement made by Mr. Muralidhar Rao and the properties are different. As far as plot No.170 is concerned, the same was sold as such without any construction activity on that subsequently. We are of the opinion that Ld. CIT(A) was confused with two properties in Kavuri Hills, one held by assessee individually with that of another property jointly with her husband on which investments were made (subject to addition by A.O. seperately). To that extent, para 7.9 of Ld. CIT(A) can not be considered while deciding the issue. 10.1. Now coming to the merits of addition, both parties rely on the documents to draw different conclusions. As far as agreement of sale is concerned, assessee is not denying the same but only the price at which it is negotiated. Assessee admits payment of ₹ 74 lakhs at the time of agreement (wrongly taken as ₹ 73 lakhs by A.O.) ie. ₹ 1 lakh on 09.02.2008, ₹ 60,00,000 by way of DD on 21.02.2008 and ₹ 13 lakhs on day of agreement in cash. This amount seems to have been accounted for even though the said property was registered for ₹ 60,56,000 only. A.O. did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspect of transaction was not examined by A.O. nor the same was questioned from the said vendor by the Officer who took statement. Unless there are remittances through banking channel to the vendor, the said payment by DD has no significance. Further, payment of ₹ 50,00,000 through auditor and interest of ₹ 3,00,000 is also not verified. Just because an amount of ₹ 2,21,50,000 was noted down on a slip with a heading FDE, the same could not be taken as conclusive proof of payment by assessee, so as to tax the same as unexplained investment. 10.4. In our opinion, since enquires were not properly done by Revenue either of assessee contentions that the property is in FTL, so as to make it unfit for construction nor the entries in the slip are corroborated/correlated with any other evidence or enquiry, the matter should be referred to A.O. for making fresh enquiries so as to decide the issue. If assessee contention that the property is in FTL is verified, there may be genuine reason for reduction of price. This aspect requires examination. In order to do the needful, we set aside the issue to the file of A.O. to make necessary enquiries as observed above. Assessee s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that interest was not paid separately to attract the provisions of Sec. 194A and exemption of applicability of Sec. 40(a)(ia) for the payments made by the EMI, are not tenable, since the EMI is the embodiment the amount of principle and interest. Regarding the submissions of assessee that M/s. India Bulls is an assessee and non deduction of tax on payments made by assessee do not prejudice the interests of the revenue, it can be held that such contention is tenable neither factually nor legally and such situation may only help the appellant in saving herself being termed as assessee in default on the front of applicability of TDS provisions but will not help from the application of provisions of Sec. 40(a)(ia) as held by judicial decisions. As regard to the reliance of assessee on the decision of Spl. Bench of ITAT, in the case of M/s. Merilyn Shipping and Transports, Visakhapatnam Vs. AddI.CIT, Visakhapatnam, dt. 29.3.2012, in ITA No. 477/Viz/ 2008, regarding the applicability of provisions for the amounts 'paid' or 'payable' , it has been observed that vide the said order Hon'ble Spl. Bench, has arrived at the conclusion that runs as under; the word 'pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be relevant to note down the legislative history of the provision. Section 40 has certain clauses providing for the amounts which are not deductible. Sub-clause (ia) of clause (a) of section 40 was inserted by the Finance (No.2) Act, 2004 with effect from 1st April, 2005 reading as under : 40. Notwithstanding anything to the contrary in sections 30 to 38, the following amounts shall not be deducted in computed the income chargeable under the head Profits and gains of business or profession'-- ** ** ** (ia) any interest, commission or brokerage, fees for professional services or fees for technical services payable to a resident, or amounts payable to a contractor or sub- contractor, being resident, for carrying out any work (including supply of labour for carrying out any work), on or, after deduction, has not been paid during the previous year, or in the subsequent year before the expiry of the time prescribed under sub-section (1) of section 200: Provided that where in respect of any such sum, tax has been deducted in any subsequent year or, has been deducted in the previous year but paid in any subsequent year after the expiry of the time prescribed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hapter XVII-B and such tax has not been paid,- (A) in a case where the tax was deductible and was so deducted during the last month of the previous year, on or before the due date specified in sub-section (1) of section 139 ; or (B) in any other case, on or before the last day of the previous year. Provided that where in respect of any such sum, tax has been deducted in any subsequent year, or has been deducted-- (A) during the last month of the previous year but paid after the said due date ; or (B) during any other month of the previous year but paid after the end of the said previous year, such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid. 15. The Finance Act, 2008 brought out amendment to section 40(a)(ia) w.r.e.f. 1.4.2005 by relaxing earlier position to some extent. It made two categories of defaults causing disallowance on the basis of the period of the previous year in which tax was deductible. The first category of disallowances included the cases in which tax was deductible and was so deducted during the last month of the previous year but there was failure to pay such tax on or before the du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired the deposit of tax before the close of the previous year in case of deduction during the first eleven months, as a pre- condition for the grant of deduction in the year of incurring expenditure, has been altered. The hitherto requirement of the assessee deducting tax at source during the first eleven months of the previous year and paying it before the close of the previous year up to 3 1st March of the previous year as a requirement for grant of deduction in the year of incurring such expenditure, has been eased to extend such time for payment of tax up to due date u/s 139(1) of the Act. As per the new amendment, the disallowance will be made if after deducting tax at source, the assessee fails to pay the amount of tax on or before the due date specified in sub-section (1) of section 139 of the Act. The effect of this amendment is that now the assessee deducting tax either in the last month of the previous year or first eleven months of the previous year shall be entitled to deduction of the expenditure in the year of incurring it, if the tax so deducted at source is paid on or before the due date u/s 139(1). This is the only difference which has been made by the Finance A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argued that the amendment by the Finance Act, 2010 to the provisions of Sec.40(a)(ia) has to be held to be retrospective w.e.f. 1-4-2005. The ITAT Kolkata Bench by its order dated 15.12.2010, held as follows: 8. After hearing the rival submissions and on careful perusal of the materials available on record, keeping in view of the fact that though the Ld.D.R. submitted that the decisions of the Coordinate Benches are not binding and the Kolkata benches may take a different view, since Mumbai Bench after analyzing the provisions of Sec.40(a)(ia) since its inception and various amendments made to the same including the suggestion made by the Industry in the form of representation in their pre-budget memorandum to the Hon'ble Finance Minister and by applying the decision of the Hon'ble Apex Court in the case of Alom Extrusions Ltd., has observed that The provisions of Section 40(a)(ia) as stood prior to the amendments made by the Finance Act, 2010 thus were resulting into unintended consequences and causing grave and genuine hardships to the assessees who had substantially complied with the relevant TDS provisions by deducting the tax at source and by paying the same to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 40(A)(ia) is having retrospective operation or not. The learned Tribunal on fact found that the assessee had deducted tax at source from the paid charges between the period April 1, 2005 and April 28, 2006 and the same were paid by the assessee in July and August 2006, i.e. well before the due date of filing of the return of income for the year under consideration. This factual position was undisputed. Moreover, the Supreme Court, as has been recorded by the learned Tribunal, in the case of Allied Motors Pvt. Ltd. and also in the case of Alom Extrusions Ltd., has already decided that the aforesaid provision has retrospective application. Again, in the case reported in 82 ITR 570, the Supreme Court held that the provision, which has inserted the remedy to make the provision workable, requires to be treated with retrospective operation so that reasonable deduction can be given to the section as well. In view of the authoritative pronouncement of the Supreme Court, this court cannot decide otherwise. Hence we dismiss the appeal without any order as to costs. 21. Further liberalization of provisions of Section 40(a)(ia) was made through amendment brought by the Finance Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ationalise the provisions of disallowance on account of non-deduction of tax from the payments made to a resident payee, it is proposed to amend section 40(a)(ia) to provide that where an assessee makes payment of the nature specified in the said section to a resident payee without deduction of tax and is not deemed to be an assessee in default under section 201(1) on account of payment of taxes by the payee, then, for the purpose of allowing deduction of such sum, it shall be deemed that the assessee has deducted and paid the tax on such sum on the date of furnishing of return of income by the resident payee. 24. The provisions of Sec.40(a)(ia) of the Act are meant to ensure that the Assessee's perform their obligation to deduct tax at source in accordance with the provisions of the Act. Such compliance will ensure revenue collection without much hassle. When the object sought to be achieved by those provisions are found to be achieved, it would be unjust to disallowance legitimate business expenses of an Assessee. Despite due collection of taxes due, if disallowance of genuine business expenses are made than that would be unjust enrichment on the part of the Government as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hardship to the employers. They represented to the Government about their hardship and, consequently, pursuant to the report of the Kelkar Committee, the Government introduced Finance Act, 2003, by which the second proviso stood deleted w.e.f. 1st April, 2004, and certain changes were also made in the first proviso by which uniformity was brought about between payment of fees, taxes, cess, etc., on one hand and contribution made to Employees' Provident Fund, etc., on the other. According to the Department, the omission of the second proviso giving relief to the assessee(s) [employer(s)] operated only w.e.f. 1st April, 2004, whereas, according to the assessee(s)- employer(s), the said Finance Act, 2003, to the extent indicated above, operated w.e.f. 1st April, 1988 (retrospectively). The Hon'ble Supreme Court held that the deletion of the second proviso was retrospective w.e.f. 1.4.2004. The Court considered the scheme of the Act and the historical background and the object of introduction of the provisions of S. 43B. The Court also referred to the earlier amendments made in 1988 with introduction of the first and second provisos. The Court also noted further amendment made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iformity in the first proviso by equating tax, duty, cess and fee with contributions to welfare funds. Once this uniformity is brought about in the first proviso, then, in our view, the Finance Act, 2003, which is made applicable by the Parliament only w.e.f. 1st April, 2004, would become curative in nature, hence, it would apply retrospectively w.e.f. 1st April, 1988. Secondly, it may be noted that, in the case of Allied Motors (P) Ltd. etc: v. CIT [1997] 139 CTR (SC) 364 : (1997) 224 ITR 677 (SC), the scheme of s. 43B of the Act came to be examined. In that case, the question which arose for determination was, whether sales-tax collected by the assessee and paid after the end of the relevant previous year but within the time allowed under the relevant sales- tax law should be disallowed under s. 43B of the Act while computing the business income of the previous year ? That was a case which related to asst. yr. 1984-85. The relevant accounting period ended on 30th June, 1983. The ITO disallowed the deduction claimed by the assessee which was on account of sales-tax collected by the assessee for the last quarter of the relevant accounting year. The deduction was disallowed under s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they will be denied deduction for all times. In view of the second proviso, which stood on the statute book at the relevant time, each of such assessee(s) would not be entitled to deduction under s. 43B of the Act for all times. They would lose the benefit of deduction even in the year of account in which they pay the contributions to the welfare funds, whereas a defaulter, who fails to pay the contribution to the welfare fund right upto 1st April, 2004, and who pays the contribution after 1st April, 2004, would get the benefit of deduction under s. 43B of the Act. In our view, therefore, Finance Act, 2003, to the extent indicated above, should be read as retrospective. It would, therefore, operate from 1st April, 1988, when the first proviso was introduced. It is true that the Parliament has explicitly stated that Finance Act, 2003, will operate w.e.f. 1st April, 2004. However, the matter before us involves the principle of construction to be placed on the provisions of Finance Act, 2003. 16. Before concluding, we extract hereinbelow the relevant observations of this Court in the case of CIT v. J.H. Gotla [1985] 48 CTR (SC) 363 : (1985) 156 ITR 323 (SC), which reads as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Section 40(a)(ia) of the Act are applicable to even sums paid during the year. In the case of Teja Construction v. ACIT reported in 39 SOT 13 the Hon'ble Hyderabad ITAT has decided the issue against the Revenue and has held that provisions of Section 40(a)(ia) of the Act are not applicable in respect of sums/amount paid during the year and which are not payable at end of the year on date of balance sheet, as it is applicable only in respect of Payable amount shown in balance sheet as outstanding expenses on which TDS has not been made. Similar laws were laid in various other cases. To resolve the above issue Special Bench was constituted and the Hon'ble Visakhapatnam Special Bench of ITAT in the case of Merilyn Shipping Transport v. Addl CIT reported in 20 taxmann.com 244 has decided the issue against the Revenue and after comparing the proposed and enacted provision which is intended from the replacement of the words in the proposed and enacted provision from the words 'amount credited or paid' to 'payable' has held that it has to be concluded that provisions of Section 40(a)(ia) are applicable only to the amounts of expenditure which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icates [2013] 216 Taxman 258/33 taxmann.com 250 (Cal.) holding that the views expressed in the case of Merilyn Shipping Transports (supra) were not acceptable. 29. However, we find that the Hon'ble Allahabad High Court has however upheld the view taken by the Special Bench ITAT in the case of Merilyn Shipping Transports (supra) in the case of Vector Shipping Services (P.) Ltd. (supra). The relevant observations of the Hon'ble Court were as follows:-- We do not find that the revenue can take any benefit from the observations made by the Special Bench of the Tribunal in the case of Merilyn Shipping and Transport Ltd. (136 1TD 23) (SB) quoted as above to the effect Section 40(a)(ia) was introduced in the Act by the Finance Act, 2004 with effect from 1.4.2005 with a view to augment the revenue through the mechanism of tax deduction at source. This provision was brought on statute to disallow the claim of even genuine and admissible expenses of the assessee under the head 'Income from Business and Profession' in case the assessee does not deduct TDS on such expenses. The default in deduction of TDS would result in disallowance of expenditure on which such TDS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A) ought to have allowed or dismissed the grounds of the assessee and would not have directed the A.O. for verification of the issues along with the books of account and other information, particularly, after the amendment in section 251(1) of the I.T. Act, w.e.f. 01.06.2001. Issue of unexplained investment in purchase of land ₹ 65,69 250. 15. Briefly stated, during the course of survey proceedings conducted on 3.11.2008, certain documents were found and impounded. Among them, page 35 to 39 of annexure A/FDE/01 and 43 to 54 of annexure A/FED/01, contain agreements of sale entered by assessee and Smt. Ch. Sandhya on 12.4.2008 for purchase of land for a total consideration of ₹ 39,37,500/-, ₹ 46,72,500 and ₹ 45,41,250. However, during the examination on oath as well as during the course of the survey and post-survey proceedings, assessee submitted that she along with Smt. Ch. Sandhya have purchased jointly agricultural land of acre 2.15 guntas for a consideration of ₹ 62,62,000/- and this fact was reiterated by assessee's husband in the statement recorded on 15.12.2008. Assessee further submitted before the assessing officer that the lands w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e concluded through two sale deeds dt. 15.09.2008 indicating the total consideration at ₹ 62,62,500/- which were shown to have been finalised after renegotiating the price from ₹ 1,31,51,250/-, based on the fact that the said lands are located in the FTL Zone of the local lakes/ponds and permissions are not possible to be obtained. The AO disbelieved the submissions of the appellant on the count of FTL Theory and renegotiation of price on such basis and accordingly treated the amount of ₹ 68,89,250/- being the difference of the amounts as reflected in the three agreements for sale dt. 12.4.2008 as compared to the amounts reflected in two sale deeds dt. 15.9.2008 and accordingly treated the amounts as unexplained investments in the hands of the appellant. 6.5. While treating the amounts of the consideration which was not reflected in the sale deed, as unexplained investment of the appellant, the A.O. relied on the ratio of decision of Supreme Court in the case of CIT vs. Durga Prasad More (82 ITR 540). The A.O. further relied on the issue that the appellant failed to furnish any corroborative evidence as regards to the infirmities of the lands on account of loca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... himself mentioned about the submissions of the purchase deeds by the appellant, related to the purchase of lands at Kollur and Yedulanagulapally, in response to the questionnairs dt. 3.11.2011 and 23.12.2011. Further, it is also relevant to mention that the quantum of unaccounted investments in lands was ascertained with the help of the sale deed vis.a.vis the agreements for sale, and as such the availability of such documents before the AO cannot be denied. On this count, it can be held that the AO is factually incorrect to assess the entire consideration in the hands of the appellant where she is not the sole buyer of the property under reference, by simply holding that the sale deed for reflecting such transaction was not available with him. Further the copies of the affidavits which were furnished by the vendors of the land, for not having received any extra consideration and on the issue of FTL problems, that have been marked to the AO for treating the same as additional evidence, were not commented upon by the assessing officer. Under the circumstances it can be held that the information relied upon by the AO, for quantifying the sale consideration at ₹ 1,31,51,250/- i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny merit in Revenue grounds. In fact, when the matter was remanded to A.O. he should have examined the affidavits and contentions. Without making any enquiry, Revenue cannot come in appeal, having lost the opportunity to substantiate before Ld. CIT(A). Revenue cannot contend that Ld. CIT(A) erred in deciding the issue. Nothing was brought on record to counter the findings of Ld. CIT(A). Hon'ble Supreme Court in Mehta Parikh Co. Vs. CIT (1956) 30 ITR 180 (SC). At page 187 of the report, observed that if the departmental authorities do not consider it necessary to call for the deponents in order to cross examine them with reference to the statements made by them in their respective affidavits, it was not open to the revenue to challenge the correctness of the cash book entries or the statements made by those deponents in their affidavits. The observation of the Hon'ble Supreme Court at page-187 are extracted below: No further documents or vouchers in relation to those entries were called for, nor was the presence of the deponents of the three affidavits considered necessary by either party. The appellant too it that the affidavits of these parties were enough and neith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the investment in the hands of Mr. Muralidhar Rao Mrs. M. Sailaja, are explainable through the bank accounts maintained by them and for the same reason, the A.O. is directed to examine the same with reference to the sources for the amounts in their bank accounts as well as the books of account referred by them and accept the claim of the appellants on being explained through the books of account and bank accounts that are ordered to be produced before the A.O. now. On this account, the appeal of the appellant is treated as allowed subject to the verification of the bank accounts and books of account. 20. After perusing the detailed order of Ld. CIT(A) and submission by learned D.R. and A.R., we are of the opinion that Ld. CIT(A) should have deleted the additions himself without directing the A.O. to examine and allow. If A.O. refuses to examine/consider the evidence furnished by assessee when matter was remanded by CIT(A), there is no point in directing the A.O. again to examine. Be that as it may, we do not find any merit in Revenue contentions. Assessee has placed on record the consequential order passed by A.O. wherein A.O. accepted the investments as explained. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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