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TMI Blog2017 (8) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... der:- 1. Under the facts and circumstances of the case, the appellate order passed by the Ld. CIT(A) against the order u/s. 154 passed by the AO is illegal being against the principles of natural justice and against the provision of I.T. Act, 1961. 2. The Ld. CIT(A) grossly erred on facts as well as in law in holding that the original assessment order has not merged with the appellate order of the Ld. CIT(A) and therefore, AO was justified in invoking section 154. The Ld. CIT(A) grossly erred on facts as well as in law in confirming the addition of Rs. 59,50,000/- on account of cash deposited in Axis Bank, Gurgaon. 4. The appellant craves leave to add, alter, modify and withdraw any ground of appeal before or during the appellate proceedings. ITA NO. 2971/DEL/2014 (AY 2009-10) 2. The brief facts of the case are that the assessee filed its return of income on 24.11.2011 declaring income of Rs. 16,72,240/- which was processed u/s. 143(1) of the I.T. Act, 1961 at the returned income. The case of the assessee was selected through CASS in view of Board directions. Statutory notice u/s. 143(2) of the I.T. Act, 1961 was issued on 26.8.2011 which was duly served upon the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed before the Ld. CIT(A), as aforesaid. Ld. A.R. of the assessee draw our attention on each of the documents, as mentioned above, one by one and stated that all the deposits totaling Rs. 91,89,000/- are fully explained and hence the addition confirmed by the Ld. CIT(A) may kindly be deleted. 6. On the other hand, Ld. DR relied upon the orders of the authorities below. He stated Ld. CIT(A) has passed a well reasoned order which does not need any interference on our part. 7. We have heard both the parties and perused the records available with us especially the Paper Book containing pages 1 to 40 having the copy of Written Submissions filed by the Assessee before the CIT(A) dated NIL; copy of written submissions filed before the CIT(A) dated 17.1.2014; Remand Report dated 3.10.2013; Bank account statement of State Bank of Hyderabad from 1.3.2008 to 31.3.2009; Statement of Mr. Bhism Kumar Gupta dated 11.3.2013; Advance receipt cum agreement to sale and purchase between Mr. Naresh and Mr. Bhism Kumar Gutpa dated 2.5.2008; cash book from 1.4.2008 to 31.3.2009; balance confirmation from Sh. Amar Singh Yadav; Ledger account of Sh. Amar Singh for the AY 2009-10; copy of PAN Sh. Amar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement of Sh. Bhism Kumar Gupta, who has confirmed that he paid Rs. 60,00,000/- in cash to the appellant for purchase of land and since the deal was cancelled, the same was received back in April 2009. The AO, in his remand report, has admitted that the assessee has furnished a copy of "Advance receipt cum Agreement to sell and purchase" (Pg.22 & 34, PB) but considered the amount as unexplained only because original could not be produced. It is a common knowledge that the original receipt is always with the payer & not with the payee. Therefore, the assessee had only the copy of the receipt which was produced before the AO. The Ld. CIT(A) confirmed the addition by introducing a new element that there is no withdrawal from the bank account in April'2009 for the repayment of the same. In fact, repayment was made out of the opening cash balance of Rs. 1,00,49,000/- as on 01/04/2009 (Pg.29, PB). Even the copies of receipts of Rs. 60,00,000/- and 15,00,000/- by Sh. Bhism Kumar Gupta were filed before the lower authorities wherein he has confirmed having received these amounts (Pg. 38 & 39, PB). Though this fact was explained to the Ld. CIT(A) but he ignored the same. The Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rve to be deleted. Therefore, we delete the addition of Rs. 91,89,000/- and allow the appeal of the assessee, as a result, the appeal of the assessee stands allowed. ITA NO. 870/DEL/2017 (AY 2009-10) 9. The brief facts of the case are that the assessee filed its return of income on 24.11.2011 declaring income of Rs. 16,72,240/-. The assessment in this case was completed vide order dated 9.12.2010 at an income of Rs. 1,28,61,240/- after making an addition of Rs. 1,11,89,000/- on account of unexplained cash deposits in his savings bank account. On perusal of assessment record revealed that the AO had discussed at length cash deposit of Rs. 59,50,000/- with Axis Bank, Sector-14, Gurgaon and Rs. 1,11,89,000/- with State Bank of Hyderabad, Village Narsinghpur, Gurgaon. However, while passing order u/s. 143(3) of the I.T. Act, 1961, the AO inadvertently made a totaling mistake and amount of Rs. 59,50,000/- was left to be added in the taxable income of the assessee and hence escaped assessment. As the mistake was apparent from record, accordingly, a notice u/s. 154/155 of the I.T. Act, 1961 dated 24.9.2015 was issued to the assessee for 9.10.2015, but nobody attended on the said date n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable with us especially the Paper Book containing pages 1 to 22 having the copy of Notice u/s. 154 of the Income Tax Act, 1961 for the AY 2009-10 dated 24.9.2015; Reply to notice u/s. 154/155 of the I.T. Act, 1961 dated 9.10.2015; Statement of Sh. Randhir Kumar dated 17.2.2014; Statement of Sh. Girghari Lal Modi dated 26.2.2014; General Power of attorney in favour of Sh. Randhir Kumar dated 20.1.2009 and General Power of Attorney in favour of Sh. Girdhari Lal Modi dated 2.2.2009. Ld. A.R. of the assessee certified that the above documents were filed / available with AO as well as Ld. CIT(A). 14.1 With regard to ground no. 1 & 2 relating to invoking the section 154 of the I.T. Act, 1961 by the AO is concerned, we note that in the original assessment order the AO has made an addition of Rs. 1,11,89,000/- on account of deposits in the bank account with State Bank of Hyderabad, Gurgaon and Ld. CIT(A) has given a relief of Rs. 20,00,000/- and the balance amount of Rs. 91,89,000/- was confirmed. The AO has added Rs. 59,50,000/- u/s 154 of the I.T. Act, 1961 on account of deposits in the bank account with Axis Bank, Gurgaon. The Ld. CIT(A) has confirmed the order u/s 154 against which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Lal Modi S/o Shri Brahma Nand Modi r/o Sirsa was recorded 17/02/2014 and 26/02/2014 respectively. Both of them has admitted that the sum of Rs. 24,00,000/- each was paid to Mr. Naresh for purchase of plot measuring 400 sq. yards each bearing no. 800/3 and 799/3 situated at Prem Nagar, Gurgaon through Cheques. It has further been stated that the agreement was not registered at that time as registry was banned at that time, therefore these agreement were converted into GPA. As regards cash deposited on 12/08/2008 and 06/01/2009 respectively out of cash available with the assessee but no supporting evidence has been furnished by the assessee during the course of assessment proceedings as well as remand proceedings. The AO has not at all adversely commented upon the two deposits of Rs. 24,00,000/- each even during remand proceedings. This indicates that the Ld. AD was satisfied with the genuineness of the deposits which is further confirmed from the fact that he did not request the Ld. CIT(A) for any enhancement. Therefore, there is no mistake apparent from the record. In the worst possible scenario, even if the present AO feels that addition was to be made, it becomes a debatable i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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