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TMI Blog2015 (5) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... creditworthiness of the depositors, the addition was confirmed by the ld. CIT(A). - Decided against assessee. - ITA No.524/LKW/2013 - - - Dated:- 16-4-2015 - Shri Sunil Kumar Yadav And Shri. A. K. Garodia JJ. For the Appellant : Shri. S. K. Jain, FCA For the Respondent : Shri. Anupam Gupta, D.R. ORDER Per Sunil Kumar Yadav: This appeal is preferred by the assessee against the order of the ld. CIT(A), inter alia, on the following grounds:- 1. That the Ld. C.I.T.(A) has erred in law and on facts in sustaining the addition made by the Ld. A.O. on account of alleged unexplained loans of ₹ 5,00,000/- each from Shri Rajiv Shukla and Shri Ashish Pandey during the Financial Year 2001-2002 relevant to Assessment Year 2002-2003 merely on the basis of non production of creditors after lapse of more than 10 years. 2. That the appellant filed an affidavit of both the creditors to the effect that they had given these amounts towards booking of flat in YOG TOWER, Residential Complex built by the appellant firm, but after some time these persons got the booking cancelled and the amounts were refunded back, therefore, the provisions of Section 68 of the Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s jurisdiction to adjudicate another issue. The Assessing Officer has accordingly adjudicated the issue and confirmed the addition, against which an appeal was filed before the ld. CIT(A) and the ld. CIT(A) has also given a categorical finding on the issue of unexplained deposit of ₹ 5 lakhs each in the names of Shri. Rajeev Shukla and Shri. Ashish Pandey. The assessee has not raised any ground before the ld. CIT(A) relating to the validity of the assessment framed under section 153C of the Act in the hands of the assessee. Therefore, the appeal has arisen out of the order of the ld. CIT(A), in which the issue of addition on account of unexplained deposit is involved. In the first round of appeal, no ground relating to validity of the assessment framed under section 153C of the Act was ever raised before any of the appellate authorities by the assessee. Therefore, the additional ground raised before the Tribunal in second round of appeal cannot be admitted. 5. The ld. D.R. has also commented on the judgments referred to by the assessee with the submission that all these judgments talk about the admission of additional ground during the first round of appeal, whereas in sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to by the parties, we find that undisputedly in the first round of appeal, the Tribunal has remanded the matter to the Assessing Officer for adjudication of the solitary issue of addition of ₹ 10 lakhs made on account of unexplained deposit. While remanding the matter to the Assessing Officer, the Tribunal has made certain observations as per para 9 of its order, which are as under:- We have heard the rival submission and have also perused the materials available on record. It is well settled that in order to discharge the onus under Section 68 of the act, the assessee must prove the following: (i) the identity of the creditor (ii) the capacity of the creditor to advance money, and (Hi) the genuineness of the transaction. After the assessee has adduced evidence to establish prima facie the aforesaid, the onus shifts to the department. In our considered opinion, the mere furnishing of particulars, or the mere fact of payment by an account payee cheque or the mere submission of a confirmatory letter by the creditor is, by itself, not enough to shift the onus onto the department although these facts may, along with other facts, be relevant in establishing the gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded in the instant case before issuing notice under section 153C of the Act, the assessment framed consequent to the issuance of notice under section 153C of the Act deserves to be annulled. There is no quarrel on this legal preposition, but the issue raised before us is whether this legal ground can be raised by way of additional ground in second round of appeal where the Assessing Officer has a limited scope of jurisdiction to examine a particular issue by virtue of the order of the Tribunal. In this regard, we are of the view that when the Assessing Officer has assumed jurisdiction to examine a particular issue from the order of the Tribunal or the appellate authority, he has no right to exceed its jurisdiction conferred upon him by virtue of the order of the Tribunal. Similar is the position to the ld. CIT(A) i.e. the first appellate authority, as the scope of adjudication of the issue was restricted by the Tribunal in first round of appeal and the scope of jurisdiction cannot be increased by the authorities acting under the law. 9. Reference of various judgments have been made with regard to the admission of the additional ground, but in most of the judgments, we find t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnment before the Assessing Officer on the ground that these two persons have gone out of station and they would be back in the first week of November. The request for adjournment was acceded to by the Assessing Officer, but despite affording opportunities, the assessee could not produce these creditors. As per direction of the Tribunal, the assessee was required to prove the capacity of the creditors to advance money, but the assessee could not produce the bank statement or other evidence to prove the financial creditworthiness. Since the assessee could not discharge its onus to prove all the ingredients i.e. identity of the creditors and capacity of the creditors to advance the money and genuineness of the transaction, the Assessing Officer has treated the deposit as unexplained and made addition of the same. 11. Before the ld. CIT(A), the assessee could not improve his case and for want of creditworthiness of the depositors, the addition was confirmed by the ld. CIT(A). 12. Similar is the position before the Tribunal, as the assessee could not furnish evidence with regard to the creditworthiness of the creditors and, therefore, we do not find any infirmity in the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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