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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 ..... er dated 28.3.2014 of the Ld. CIT(A)-2, Faridabad and Order 09.12.2016 of the Ld. CIT(A)-I, Gurgaon relevant to assessment year 2009-10:- 2. The grounds raised in ITA No. 2971/Del/2014 (2009-10) read as under:- 1. Under the facts and circumstances of the case, the appellate order passed by the Ld. CIT(A) is illegal being against the principles of natural justice and against the provisions of I.T. Act, 1961. 2. The Ld. CIT(A) grossly erred on facts as well as in law in confirming the addition of ₹ 91,89,000/- on account of cash deposited in State Bank of Hyderabad, Gurgaon. 3. The appellant craves leave to add, alter, modify and withdraw any ground of appeal before or during the appellate proceedings. 3. The grounds raised in ITA no. 870/Del/2017 (2009-10) read as under:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; 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 Singh; pay in slip of depositing ₹ 2,82,000/- in bank account; advance receipt cum agreement to sale and purchase between Mr. Naresh and Mr. Bhism Kumar Gupta dated 4.8.2008; receipt of amount received back and agreement dated 4.8.2008 stand cancelled; receipt of amount received back and agreement dated 2.5.2008 stand cancelled and Remand Report dated 17.7.2013. Ld. A.R. of the assessee also certified that the above documents were filed / available with AO as well as Ld. CIT(A), except the Written submissions 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 ₹ 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11/08/2008 67,00,000/- 18/09/2008 40,000/- 10/10/2008 1,00,000/- 20/10/2008 30,000/- 11/11/2008 3,00,000/- 11/11/2008 5,00,000/- 11/11/2008 2,82,000/- 01/12/2008 3,00,000/- 02/12/2008 1,87,000/- 02/12/2008 1,90,000/- 02/12/2008 60,000/- TOTAL 91,89,000/- a) The addition of ₹ 5,00,000/- on 01/07/2008 is a credit entry by way of cheque no. 248125 (Pg. 13, PB). We note that this amount was received by way of cheque and not cash as mentioned in the remand report which is reproduced on page 5 of the appellate order. Therefore, the basis of addition of ₹ 5,00,000/- does not survive. b) The addition of ₹ 67,00,000/- was deposited in cash on 11/08/2008 in the bank account. This amount was received from Sh. Bhism Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithdrawals available with the assessee and the cash balance after these deposits was ₹ 98,25,000/- as evidence by the cash flow statement.(Pg.28, PB). d) As regards deposit of ₹ 3,00,000/- on 11/11/2008 in the bank account, it is not by way of cash but received by way of cheque no. 133341 (Pg.16, PB) from Shri Amar Singh Yadav whose confirmation was also filed before the lower Authorities. (Pg. 30, 31 32, PB). e) As regards deposit of ₹ 5,00,0001- on 11111/2008 in the bank account, it was made out of cash withdrawals available with the assessee and the cash balance after these deposits was ₹ 95,25,000/- (Pg.28 16, PB). f) The deposit of ₹ 2,82,000/- on 20111/2008 is by way of cheque as is evident from the pay-in-slip of depositing the same in the bank. (Pg.33, PB). This cheque was dishonored and debited in the bank account on 24/11/2008 alongwith dishonor charges of ₹ 100/- -. (Pg.16, PB). Therefore, no addition could be made on this account as no money could be received against this cheque. g) As regards cash deposits of ₹ 3,00,000/-, 1,87,000/-, 1,90,000/- 60,000/-, they were made out of cash withdrawals available with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice 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). With regard to ground no. 1 2 relating to invoking the section 154 of the I.T. Act, 1961 by the AO is concerned, the Ld. A.R. submitted that the issue was thoroughly examined during the remand proceedings and earlier appellate proceedings before the Ld. CIT(A), therefore, the assessment or der to the extent of issue in dispute gets merged in the order of the Ld. CIT(A) and the AO was not competent to invoke section 154 of the I.T. Act, 1961. Accordingly, requested to dismiss the ground no. 1 2 raised by the assessee. With regard to ground no. 3 relating to confirmation of addition of ₹ 59,50,000/- is concerned, the A.R. of the assessee of the assessee draw our attention on each of the documents, as mentioned above, one by one and stated that the addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dully attended by assessee himself alongwith Sh. Pravin Garq, CA and submitted some details / documents 14.2 This shows that the assessee did submit the details and documents and proper hearing was conducted. It is in this background that the AO was satisfied with the deposits in Axis Bank and hence the deposits of ₹ 59,50,000/- was neither adversely commented upon nor any addition was made. Therefore, there is no mistake apparent from record to justify addition of ₹ 59,50,000/-. In the worst possible scenario, even if the present AO feels that addition was to be made, it becomes a debatable issue as to whether the then AO was satisfied with the genuineness of the deposits or not. Section 154 cannot be invoked on debatable issues. We are of the view that even after the assessment u/s 143(3), the issue regarding deposits of ₹ 59,50,000/- was considered by the AO again during remand proceedings when the appeal was pending before the Ld. CIT(A) against the original assessment order. The statements of some connected persons were also recorded (Pg 6-9, PB). The relevant extract from the remand report dated 14/03/2014 copied on page 6 of the Ld. CIT(A)'s order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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