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TMI Blog2018 (6) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant failed to raise any objection against the reopening at the appellate stage. 2. That, on the facts and in the circumstances of the case, the learned CIT(A) grossly erred in sustaining addition to the extent of Rs. 1,02,97,300/- out of the addition of Rs. 1,14,49,5OO/- made by the learned AO under the head 'Advance Money for Plot at Shell City', by invoking provisions of section 68 of the Income-Tax Act, 1961. 3. That, on the facts and in the circumstances of the case, the learned CIT(A) grossly erred in confirming addition of Rs. 10,00,000/- made by the learned AO in the name of 'Sunny Co-operative Housing Society', by invoking provisions of section 68 of the Income-Tax Act, 1961, without considering the material fact that the appellant was not required to establish source of the source. 4. That, the learned CIT(A) grossly erred, both on facts and in law, in confirming the addition of Rs. 1,00,000/- made by the AO on account of unexplained share application money in the name of Shri Premchand Borasi without considering and appreciating the material fact that the appellant had proved the identity of the share applicant, genuineness of the trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons in respect of aforesaid deposit. The assessee furnished the photocopies of the applications from the members for the allotment of membership and plot in shell city. The assessee furnished the copies of accounts of members as appearing in account books of the assessee for the previous year relevant to assessment year 99-00. On perusal of the copies of the a/c of the members it was noticed that there were deposits of Rs. 1,00,00,000/- or so in the name of following members :- 1. Ashok Kashyap Rs. 1,00,000/- Vide application dt Nil 2. Anil Kumar Chandratra Rs. 1,00,000/- -do- 3. Banveer Chaudhary Rs. 1,00,000/- -do- 4. Bharat Borasi Rs. 1,00,000/- -do- 5. Dilip Borasi Rs. 1,00,000/- -do- 6. Gaurishanker Borasi Rs. 1,00,000/- -do- 7. Jitendra Borasi Rs. 1,00,000/- -do- 8. Smt. Kaushalyabai Rs. 1,00,000/- -do- 9. Smt. Meena Bai Rs. 1,00,000/- -do- 10. Mahendra Kadam Rs. 1,00,000/- -do- 11. Mukesh Vyas Rs. 1,00,000/- -do- 12. Manju Karda Rs. 1,19,500/- -do- 13. M.L.Srivastava Rs. 1,00,000/- -do- 14. Nand Lal Borasi Rs. 1,00,000/- -do- 15. Prakash Dhanak Rs. 1,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money at Rs. 1,00,000/- in the name of Shri Premchand Borasi. The assessee was asked to prove the identity, capacity and genuineness of the transactions. Therefore, income of Rs. 1,00,000/- escaped assessment within the meaning of Section 148 of the Act. In view of the above income of Rs. 1,35,49,500 ( Rs. 1,14,49,500/- + 10,00,000/- + 1,00,000/-) escaped assessment within meaning of Section 148 of the Act. Issue notice u/s 148 of Act. Sd/-ITO 2(3) Indore." Objections raised by the Ld. Authorized Representative of the assessee before the ITO Wd.2(3), Indore vide letter dated 22.10.2003 "Sub: Objection to the issue of notice u/s 148 on the basis of reason recorded - A.Y. 1999- 2000. We hereby object to the action of the AO in issuing notice u/s 148 of the Income-tax Act, 1961, on following grounds:- 1. That the action of the AO is without jurisdiction. As per Section 147 "If the AO has reason to believe" He can invoke the section, as reason to believe are stronger than the satisfaction of AO. The power of AO are not unbridled one. And it cannot be mechanical reopening of the assessment. 1.1 The assessee has received Rs. 1,14,49,500/- during previous year relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .4 Therefore, the action of the AO on above ground is arbitrary, unjustified, illegal and biased. 2. That the only information on the basis of which reopening was done are list of plot holders (customers), their applications and copy of accounts. The ITO had not made any investigation from the customers despite requested by the assessee and therefore there is no reason to believe that the income has escaped assessment and it has been held that suspicion is not belief. 3. That the belief entertained by the AO is arbitrary or irrational there is no rational are intelligible nexus between the reason and the belief. 4. That assessee has received Rs. 5.00 lakhs from Sunny Cooperative Housing Society Ltd. During the assessment proceedings of assessment year 2000- 2001 the assessee submitted confirmation and copy of bank accounts of the creditor and the transaction stands proved, therefore, reopening on this ground is erroneous and illegal. 5. That the assessee had received the share application money of Rs. 1.00 lac, from Mr. Premchand Borasi. The assessee had submitted the copy of share application and bank account. It was also submitted that issue of share are not covered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned CIT(A) erred, in confirming addition of Rs. 48,350/- made by the Assessing Officer on account of 'Foreign Traveling Expenses'. 6. That, the learned CIT(A) erred, in confirming addition of Rs. 10,000/- made by the Assessing Officer, on ad-hoc basis, by estimating the closing stock of the restaurant. 7. That, the learned CIT(A) erred, in not allowing the claim of the appellant in respect of unabsorbed depreciation and depreciation on Hotel Building. 11. The Ld. Counsel for the assessee has adopted the same arguments as taken in I.T.A.No. 151/Ind/2013 for the assessment year 1999-2000. He submitted that in this appeal also the assessment framed suffers from illegality as against the reasons recorded for reopening. The assessee has raised objection which has not been disposed of by the AO. He submitted that the AO was required to dispose of the objection by way of separate order in the light of the judgement of the Hon'ble Supreme Court in the case of GKN Driveshafts (India) Limited vs. ITO and others, (2003) 259 ITR 19 (S.C.) 12. We have considered the facts, rival submissions and perused the material available on record. In this appeal also, the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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