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TMI Blog2017 (1) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... om the Bench at this level. However, looking at the facts and circumstances of the case, it is directed that the additional evidence stands admitted. The appeal is thus remitted back to the ld. CIT(A) to consider the additional evidences filed by the assessee and decide the appeal after affording the assessee adequate opportunity of being heard. - ITA No. 285/Ahd/2014 - - - Dated:- 12-1-2017 - SHRI R.P. TOLANI, JUDICIAL MEMBER For The Assessee : Shri Rushi Parekh, AR Revenue : Shri G.C. Daxini, Sr DR ORDER This appeal by the assessee is directed against the order of the Learned Commissioner of Income-Tax (Appeals)-V, Surat dated 27.02.2013 for Assessment Year 2008-09. 2. The grounds raised are to the effect that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AR there is not given a single proof of investment made by him for those farmers. On verification of the Bank statement it is found that the assessee had deposited cash in bank periodically. Therefore the amount of ₹ 7,00,779/- which is not verifiable being the peak balance was added back to the total income of the assessee. Notice of Enhancement u/s 251(1) rws 251(2) of the IT Act issued during appellate proceedings During the course of the appellate proceedings it was found that the Assessing Officer has made an addition of ₹ 7,00,779/- on account of peak credit. Since the working of the peak credit was erroneous and incorrect, a notice of Enhancement u/s 251(1) r.w.s. 251(2) of the IT Act was issued on 13.02.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer with proper investigation by calling the parties to the agreement. It is also once again urged that the investment of assessee from that same bank account be investigated and the benefit of loss incurred over the transactions may kindly be given set off against his other income. DECISION 6. I have considered the assessment order as well as the submissions of the appellant. The Grounds of appeal- Ground No. 1 pertains to addition of ₹ 7,00,779/- on account of undisclosed cash deposits. As mentioned in the aforesaid paras, that during the course of the appellate proceedings, a notice of enhancement u/s 251(1) rws 251(2) of the IT Act was issued to the appellant on 18.02.2013 seeking the explanation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In fact, the appellant has not shown any loss from share trading business in the original return of income filed for A.Y. 2008-09 nor he filed any revised ROI showing loss from share trading. Therefore, the appellant will not be entitle to claim any set off loss which is neither shown it the Original ROI or Revised ROI. This fact has now become a settled principal it the light of the judgment of the Hon'ble Supreme Court which is reported vide in the case Goetze (India) Ltd. Vs. Commissioner of Income tax (2006) 284 ITR 323, where it was held that an assessee cannot make a claim for deduction other than by filing a revised return of income. Since, no revised return of income has been filed in this case, hence, the contention of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... genuine was discharged. The ld. Assessing Officer, however, held that the onus was not discharged and on the peak basis the addition of ₹ 7,00,779/- was made. 4.1 Aggrieved, the assessee preferred first appeal where the ld. CIT(A) issued enhancement notice u/s 251(1) r.w.s 251(2) and concluded that the cash flow/peak working was not acceptable and enhanced the income to ₹ 36,76,800/-. The ld. Counsel for the assessee contends that there is no justification in enhancement as ld. AO made the addition of ₹ 7,00,779/- by following observation:- 4. During the course of assessment proceedings, it is found that assessee had deposited the cash of ₹ 36,78,800/-. The AR of the assessee submitted that the said amount wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the bank account statement itself as well as the broker s note has not been allowed. Thus, the enhancement made by ld. CIT(A) has resulted into high pitched assessment without any basis, saddling the gullible assessee with a huge demand. Therefore, the additions may be deleted. Alternatively, the income assessed by the ld. AO may be accepted. 5. The ld. Departmental Representative, on the other hand, relied on the order of the ld. CIT(A) and contends that the enhancement of income by ld. CIT(A) u/s 251(1) r.w.s. 251(2) is fully justified. The assessee was given many numbers of opportunities by the Assessing Officer to explain the cash credits which were in his exclusive knowledge. The fact that there is no mention about the admissibili ..... X X X X Extracts X X X X X X X X Extracts X X X X
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