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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 ..... this consolidated order. 2. First, we will take I.T.A.No. 151/Ind/2013 - for assessment year 1999-2000. 3. The assessee has raised following grounds of appeal :- 1. (a) That, on the facts and under the circumstances of the case, the learned CIT(A) grossly erred in law in upholding the validity of issuance of Notice u/s. 148 and initiation of reassessment proceedings u/s. 147 of the Income- Tax Act, 1961. (b) That, the learned CIT(A) grossly erred in upholding the reopening of the assessment by giving an erroneous finding that 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 ₹ 1,02,97,300/- out of the addition of ₹ 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 ₹ 10,00,000/- made by the learned AO in the name of 'Sunny Co-operative Housing Soc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the sake of clarify :- REASONS RECORDED BY ITO, 2(3), INDORE Dated 31.03.03 : "During the assessment proceeding for the assessment year 2000-01, the assessee vide letter dated 29.11.2002 furnished the details of the deposits of ₹ 1,75,43,719/- from the members of the shell city on account of advances against the proposed sale of plots in shell city. Out of ₹ 1,75,43,719/- there was a deposit of ₹ 1,14,49,500/- during previous year relevant to assessment year 1999-2000. The assessee was asked to prove the identity, capacity and genuineness of transactions 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 ₹ 1,00,00,000/- or so in the name of following members :- 1. Ashok Kashyap ₹ 1,00,000/- Vide application dt Nil 2. Anil Kumar Chandratra ₹ 1,00,000/- -do- 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. The assessee also shown the credit of ₹ 5,00,000/- each on 29.9.98 and 5.10.98 in the name of Sunny Coop Housing Society Limited but failed to produce aforesaid person for examination and to prove the identity, capacity and genuineness of transactions. Thus, the assessee failed to prove the identity and capacity (to advance the amount of credits) and genuineness of transaction in respect of aforesaid credit of ₹ 10,00,000/- cumulatively as required u/s 68 of the Act. Therefore, income of ₹ 10,00,000/- escaped assessment within the meaning of Section 148 of the Act. Issue notice u/s 148 of the Act. The assessee vide letter dated 27.12.02 shown the deposit of share applications money at ₹ 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 ₹ 1,00,000/- escaped assessment within the meaning of Section 148 of the Act. In view of the above income of ₹ 1,35,49,500 ( ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impossibidia which means "the law does not compel a man to do that which he can not possibly perform." 1.3 If a person goes to shop and have a buys a product, the shopkeeper is only concerned about his payment of the product and nothing else. We have also sold our product i.e. plots to our customers who are paying in instalments. Therefore, it was urged that necessary enquiry may be directly made from the customer. The AO conducted his enquiry through inspector from few customers who confirmed the transaction. We have also requested that all surrounding circumstances and objective facts may be considered on common human, experience in life and reasonable conclusion not on the basis of suspicion or probabilities be drawn. 1.4 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances of the case, the learned CIT(A) grossly erred in confirming the addition of ₹ 10,00,000/- made by the learned AO on account of advance from Sunny Co-operative Housing Society by invoking provisions of Section 68 of the Income-Tax Act, 1961. 4. That, the learned CIT(A) grossly erred, both on facts and in law, in confirming the addition of ₹ 2,00,000/- 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 applicants, genuineness of the transactions and creditworthiness of the share applicants beyond all doubts by submitting all documentary evidences. 5. That, the learned CIT(A) erred, in confirming addition of ₹ 48,350/- made by the Assessing Officer on account of 'Foreign Traveling Expenses'. 6. That, the learned CIT(A) erred, in confirming addition of ₹ 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 dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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