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TMI Blog2015 (8) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... For The Appellant : Sh. Ravi Jain, CIT DR For The Respondent : Sh.Rohit Jain, Adv. ORDER PER DIVA SINGH, JM The present appeal has been filed by the Revenue assailing the correctness of the order dated 07.01.2013 of CIT(A)-III, New Delhi pertaining to block period 1990-1991 to 2000-2001 on the following grounds:- 1. On the facts and in the circumstances of the case, the CIT(A has erred in deleting the addition by the A.O. being investment made out of undisclosed source of income. 2. The order of the CIT(A) is erroneous and is not tenable on facts and in law. 2. The assessee has filed a C.O on the following grounds:- 1. That the CIT(A) erred on facts and in law in confirming the action of the assessing officer in making addition on account of investment in Philip Co-operative Housing Society by holding the same as investment made out of undisclosed income. 1.1. That the CIT(A) erred on facts and in law in confirming the action of the assessing officer in making aforesaid addition without appreciating that Tribunal vide order dated 06.06.2008 in IT(SS)A No.-218/Del/2004 had held that said investment cannot be regarded as undis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unts. Addition of ₹ 7,73,000/- had been made on account of purchase of a flat in Philips Group Cooperative Housing Society Ltd. (hereinafter referred to as PGCHS ) and another addition of ₹ 9,11,074/- was made whose break up was as under:- (a) FD of ₹ 2,00,952 in the name of assessee jointly with others[No appeal preferred]; (b) FD of ₹ 2,10,818 made in financial years 1979-80 and 1983-84 [Departmental appeal]; (c) FC of ₹ 4,99,304 in the name of others [Departmental appeal]. 4. Addressing the amount of ₹ 2,00,952/-, it was submitted that this issue had travelled to the ITAT in the first round and the issue was remanded to the AO who has proceeded to make the addition of the said amount. The said addition was not agitated further by the assessee and the remand was only on this addition by the ITAT it was submitted. 4.1. Addressing the remaining two amounts of ₹ 2,10,818/- and 4,99,304/-. It was his submission that the Tribunal in para 5 held that whereas the amount of ₹ 2,10,818/- pertained to Financial year 1979-80 1983-84, accordingly it concluded that since it pertained to the period before the commenceme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed in the first round dated 28.02.2002 been placed at pages 1 to 4 of the Paper Book and the order dated 31.03.2004 of the CIT(A) is at pages 5-14 of the Paper Book. The impugned order and the order of the AO pursuant to the remand have also been taken into consideration. On a consideration of the same, it is seen that the AO pursuant to the search conducted at the residence of the assessee u/s 132 on 13.01.2000 vide his order u/s 158BC concluded the assessment at an income of ₹ 4,99,000/- as opposed to the NIL return filed by the assessee. These facts have been summed up by the Co-ordinate Bench in para 3 at pages 16 which also incorporates the submissions of the assessee and is reproduced for ready-reference:- 3. We have examined the facts and heard the rival submissions. In a nutshell, the following chart would show how the undisclosed income has been arrived at by the Assessing Officer at ₹ 4,99,000/-:- FY 1989-90 to FY 1997-98 FY 1998-99 Total Investments dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k assessment. That leaves us with the balance of ₹ 4,99,304/- which represent fixed deposits in the name of others, the assessee's name not figuring therein. It is the assessee's contention that this amount cannot be added in the block assessment since the fixed deposits are not in the name of the assessee either singly or jointly and in a block assessment, no inference is possible that the deposits are of the monies belonging to the assessee. It is also the contention of the assessee that the salary payment has been subjected to tax deducted at source and since the total income of the assessee was below the maximum amount not liable to tax, no returns were filed by the assessee and in some years after giving credit for the TDS, there was only a refund due. The computation of the total income for some of the years has also been filed in the paper book in support of the above plea. Our attention has been drawn to the judgment of the Hon'ble Delhi High Court in the case of CIT Vs. Mrs. Kumkum Kohli (2005) 276 ITR 589 where it was held that if the assessee had paid advance tax for the amount in question prior to the search and the return filed later was accepted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already noted and therefore cannot be considered in the block assessment. The major amount of ₹ 4,99,304/- represents fixed deposits in the names of others in which the name of the assessee does not figure. No doubt the receipts were found during the search but these persons are all family members and it may very well be that the money came from them. In any case, if the department wants to infer that the monies were provided by the assessee and these persons in whose names the receipts stood were benamidars of the assessee, it is for the department to establish the allegation by cogent evidence. No such evidence has been brought on record. The evidence found viz., the fixed deposit receipts do not by themselves show that the monies were provided by the assessee. Therefore, the amount of ₹ 4,99,304/-should also be left out of consideration of the block assessment. (emphasis provided) 10. Similarly qua the total investment of ₹ 7,73,000/- addressed in the cross-objection of the assessee in PGCHS, the Co-ordinate Bench considering the position on facts and law concluded the issue in assessee s favour on the following reasoning:- 6. The other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court held as under:- From the above facts appearing on record before us, it is clear that the finding of the Tribunal does not call for any interference by this court in exercise of jurisdiction under section 260A of the Act. The provisions of section 158B of the Act would not be attracted in the present case inasmuch as nothing has been recorded in the order of assessment or in any proceedings thereafter, that the amount had not been indicated in the books of account or that the assessee had failed to produce the books of account, as directed by the Assessing Officer. The presumption against the assessee could be drawn only if the sums wholly or partly had not been reflected in the books or the assessee had failed to render explanation in terms of the said provisions. Here the assessee had paid the advance tax and has also shown the figure in his accounts submitted before the Assessing Officer. A perusal of the judgment of the Bombay High Court (supra) shows that the Assessing Officer treated the income of three years 1993-94 to 1995-96 as undisclosed income in the block assessment since the assessee had not filed returns for those years before the date of search. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny , of the assessee in the light of our above findings and directions. The appeal of the assessee is allowed to that extent. No costs. (emphasis provided) 12. On a consideration of the same, we find that the AO in the present proceedings had incorrectly proceeded to re-consider the issues which already stood concluded by the Co-ordinate Bench. It is trite law that in the remand proceedings, the AO cannot travel beyond the directions given in the remand. Accordingly on a consideration of the same, we are of the view that the following finding of the CIT(A on facts deserves to be upheld which warrants the dismissal of the appeal of the Revenue:- With regard to the issue of addition made on account of investment made in FDR, since the Hon ble ITAT in para 5 of their order dated 06.06.2008 have clearly given a finding that the FDR s worth ₹ 2,10,818 the investment in which were made prior to the block period and FDR of ₹ 4,99,304 not in the appellant s name should be left out of the consideration of block assessment, the AO is therefore directed to scrupulously follow the direction of the Hon ble Tribunal. 13. It is seen also seen as brought out in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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