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TMI Blog2010 (9) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... an employee and got the salary upto 30.09.2003. The assessee also got the interest from the said partnership firm. The salary and interest was accumulated from year to year and the total accumulated balance till 30.09.2003 was ₹ 1,79,878/- which was received by the assessee from the said firm and invested in the Brick Kiln business started by him from 01.10.2003 under the name and style of M/s Anil Brick Field. When the A.O. asked about the source of investment, the assessee explained the source being amount withdrawn from the said firm M/s. Ram Gopal Maheshwari. The A.O. was not satisfied and, therefore, made the addition of ₹ 1,79,878/- as unexplained investment. The assessee went in appeal before the CIT(A). The CIT(A) also confirmed the order of the A.O. as per the observation given under para no.5 of the order. 3. Before us, the ld. A.R. reiterated the submissions made before the authorities below and vehemently contended that the sum of ₹ 1,79,878/- which was introduced by the assessee as capital in the Brick Kiln business was drawn from M/s. Ram Gopal Maheshwari BKO and this fact was duly explained by him, even in the statement recorded on 29.08.2006. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p of Brick Kiln business. The assessee has brought in ₹ 1,79,878/- as capital as on 1st October, 2003. The assessee has explained that the said amount has been withdrawn by the assessee from the firm M/s. Ram Gopal Maheshwari BKO. The assessee was also partner in the said firm till the A.Y. 1996-97. Subsequently, the firm was dissolved and the assessee was paid interest on the balance outstanding credit in the books of the firm. The running business of the firm was taken over by the father of the assessee, proprietor of Ram Gopal Maheshwari BKO. The assessee was earning salary and interest income from the F.Y. 1996-97 till 30.09.2003. The assessee has submitted his income tax returns, copies of which are placed in the Paper Book. From the income tax returns, it is apparent that the assessee has shown salary income as well as interest income in all these years from the said firm. The assessee has also placed copy of account with the said firm as on 30.09.2003. The assessee has shown withdrawal of ₹ 1,79,878/- from the said firm out of the accumulate balance. In our opinion, the explanation submitted by the assessee is a plausible one. Once the assessee has submitted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the investment should be treated as income or not under section 69 has to be considered in the light of the facts of each case. In other words, a discretion has been conferred on the Income-tax Officer under section 69 of the Act to treat the source of investment as the income of the assessee if the explanation offered by the assessee is not found satisfactory and the said discretion has to be exercised keeping in view the facts and circumstances of the particular case. 5. We are of the view that the decision of the Hon ble Supreme Court clearly be applicable in the case of the assessee. Even if the explanation of the assessee was not tenable in the opinion of the A.O., the A.O. was not bound to make the addition on the assessee in this case as he derived sufficient income by way of interest and salary from the said firm. We, accordingly, delete the addition of ₹ 1,79,878/-. 6. The facts relating to the second addition of ₹ 3,50,000/- are that the A.O. noted that the assessee has introduced ₹ 3,50,000/- in addition to ₹ 1,79,878/- being the initial capital, on different dates, from 15.10.2003 to 13.01.2004, in the Brick Kiln business which he s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -/-. The A.O. asked the assessee to produce various parties and even summons were issued to produce books of accounts and statement of bank account so that the fact that the assessee has received the advances back from all the parties can be verified. The assessee did not produce the books of accounts and pointed out that no bank account is maintained in the name of Anil Kumar Maheshwari, HUF. In this regard, attention was drawn towards the relevant statement of the assessee recorded on 06.12.2006. Thus, it was contended that the A.O. was correct in law in making addition of ₹ 3,50,000/- as the assessee failed to discharge the onus casted on him. 9. We have carefully considered the rival submissions and perused the material on record. We have gone through the orders of the Tax Authorities below. We noted that in this case, the assessee has shown the contribution by way of capital in his proprietorship firm Anil Bricks Mills amounting toRs.3,50,000/- during the year under consideration from 15.10.2003 till 13.01.2004. The details are available at page nos.1 2 of the Assessment Order. The source of the said deposit was explained by the assessee that the assessee has withdr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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