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TMI Blog2015 (7) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... l. In fact, in the course of the assessment dated 28.03.2003 (supra), the Assessing Officer carried out detailed enquiries including examination of the concerned parties u/s 133(1) of the Act. An affidavit was also filed by Shri Nitin J. Rughani pointing out that so far as the transactions relating to the assessee were concerned, the same are genuine. All these assertions have been made before the CIT(A). So however, we find that the CIT(A) has glossed over the same and he has merely referred to the material with the Assessing Officer prior to the finalization of assessment order dated 28.03.2009(supra). Ostensibly, such material was put to verification by Assessing Officer and only thereafter, he has accepted the transactions as genuine in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion made u/s. 68 by the Ld. Assessing Officer at ₹ 3,00,000/- in the order passed u/s. 143(3) r.w.s 263 in respect of unsecured loans taken from 5 parties, for verification of which loans assessment was already reopened and after due examination and verification same were accepted in the earlier assessment order passed u/s. 143(3) r.w.s 147 of the Income Tax, Act. 1961. 2. That in view of the appeal ground no. 1, order passed by Ld. Assessing Officer u/s. 143(3) r.w.s 263 is bad in law and void ab-initio, being making and addition in respect of an issue at the behest of the Ld. CIT, without appreciating that the said issue was already examined accepted specifically for which assessment was reopened, amounts nothing but only c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. In the impugned assessment, the total income has been assessed at ₹ 3,58,170,/- which inter-alia, includes the addition of ₹ 3,00,000/- u/s 68 of the Act. 3. In brief, the circumstances leading to the impugned dispute can be summarized as follows. A survey action u/s 133A of the Act was carried out in the premises of one Shri Nitin J. Rughani, who admitted that he was involved in providing Hawala entries by arranging loans. Assessee was found to have taken loan from some of the parties related to the said Shri Nitin J. Rughani. In the course of survey, certain material in the shape of bank pass books, cheque books and pay-in-slips, belonging to third parties, were found. Those parties confirmed in their statements th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o addition was made. It was, therefore, contended that during the impugned proceedings no fresh material has been brought out by the Assessing Officer to treat the impugned loans of ₹ 3,00,000/- as unexplained within the meaning of section 68 of the Act. The Ld. Representative for the assessee has referred to the detailed written submissions made to the CIT(A), which have been reproduced by the CIT(A) in para 2.2 of the impugned order. On that basis, it is contended that the CIT(A) erred in sustaining the addition of ₹ 3,00,000/- u/s 68 of the Act. 5. On the other hand, the Ld. DR appearing for the Revenue has contended that the statement of Shri Nitin J. Rughani and the material found during the course of survey action clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the statement given by him on 4.07.1993, admitting Hawala transactions, nowhere specifically gave the reference of the assessee. Shri Nitin J. Rughani confirmed in the affidavit that all the transactions relating to the assessee are genuine. 7. In this background, subsequent to the completion of assessment on 28.03.2003 (supra), the Commissioner invoking his revisionary jurisdiction u/s 263 of the Act, has set aside such assessment. In the impugned assessment, the unsecured loans received during the year of ₹ 3,00,000/- have been held to be unexplained cash-credits within the meaning of section 68 of the Act. We find that in the impugned assessment, which has been affirmed by the CIT(A) also, there is no material referred by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer to delete the addition of ₹ 3,00,000/-. Thus, assessee succeeds in its appeal. 8. Insofar as, appeal in ITA No. 5816 is concerned, the same relates to an addition of ₹ 1,50,000/- made by the Assessing Officer by invoking section 68 of the Act with regard to the unsecured loans received during the year. The facts and circumstances in the context of said addition are similar to those considered by us in the earlier appeal in ITA No. 5815/Mum/2013. Since the facts and circumstances in this appeal are similar to those considered by us in ITA NO. 5815/Mum/2013, our decision in the appeal of assessee in ITA No. 5815/Mum/2013 shall apply mutatis mutandis in the other captioned appeal also. 9 . In the result, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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