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TMI Blog2019 (7) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. Inconsistent plea taken by the assessee cannot be accepted. CIT(A) has examined the alternative plea of ₹ 16.00 lakhs received from his wife and observed that the assessee failed to prove the creditworthiness and genuineness of the transaction. Therefore, confirmed the order of the Assessing Officer. That apart, return filed by the assessee was beyond due date of filing of return, therefore, the assessee cannot claim business loss after due date. CIT(A) by examining all the facts and details submitted, confirmed the order of the Assessing Officer - Decided against assessee. - ITA No. 247/VIZ/2018 - - - Dated:- 23-4-2019 - Shri V. Durga Rao, Hon ble Judicial Member And Shri D.S. Sunder Singh, Hon ble Accountant Member For the Assessee : Shri G.V.N. Hari Advocate. For the Department : Smt. Suman Malik Sr.DR ORDER PER V. DURGA RAO, JUDICIAL MEMBER This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-1, Guntur, dated 02/04/2018 for the Assessment Year 2010-11. 2. Facts of the case, in brief, are that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e loss of ₹ 23,67,580/-. I submit that I have sustained huge loss in the business and sold my agricultural lands also to clear the debts I have made. My wife has given me an amount of Ps.16,00,000/- to clear the dues which was given to her by her mother considering the financial difficulty of my family. I am filling herewith an affidavit from her mother Smt. Chllikuri Subba Lakshmi confirming the amount given to my wife. I submit that even if the loss is not considered the amount available which was taken from my wife amounting to ₹ 16,00,000/- should be given credit before considering the peak credit of ₹ 17,84,920/-. I humbly submit before your honour that while considering the peak credit, the Assessing Officer may kindly be directed to allow the loss of ₹ 23,67,580/- besides cash given to me by my wife amounting to ₹ 16,00,000/- The ld. CIT(A) by considering the same, confirmed the order of the Assessing Officer. 4. On being aggrieved, assessee carried the matter in appeal before this Tribunal. 5. Ld. counsel for the assessee has submitted that the Assessing Officer has only ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order is extracted as under:- I have carefully considered the assessment order, statement of facts, grounds of appeal, written submissions of the appellant, remand report of the Assessing Officer and counter comments of the appellant. Ground Nos.1 to 5: The appellant raised the grounds stating that the Assessing Officer not justified in making addition at ₹ 17,84,920/- without giving any valid reasons. The appellant also contended that the Assessing Officer should have given the calculation of peak credit. Further, the appellant also stated that the Assessing Officer should have considered all the bank transactions which were reflected in the books of accounts but without considering the same, assessing the peak is incorrect. Not considering the loss against the peak is also a grievance of the appellant. The appellant vide submissions dated 18-01-2018, stated that he has incurred loss of ₹ 23,67,580/- in the share broking business and not claimed in the return as the same was filed belatedly. The loss sustained was covered by sale of agriculture land and money received from his wife at ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was made available the copy of the report of the Assessing Officer along with enclosure for his counter comments. The same were submitted vide letter dated 21-03-2018 as mentioned supra. The appellant contends that the conclusion and the report of the Assessing Officer are not based on the facts. The appellant concedes that he has incurred loss of ₹ 23,67,580/- but not claimed the same. The appellant contends that without considering the material facts, the Assessing Officer added the peak credit and requested to delete the same. I have considered the material facts including the report and counter comments as above. The appellant filed an affidavit for the first time before the appellate authority but there is no request or prayer and also no Provision/Rule was mentioned to file such a document. Additional evidence can be filed under Rule 46A of the IT Rules. Admission of the same depends upon the criteria whether the appellant was prevented from reasonable cause for not filing the same before the Assessing Officer. In the light of the facts of the case, it is clear that the Assessing Officer has not called for such documents at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the appellant are dismissed as above, the plea put forth by the appellant about having source of ₹ 16,00,000/is discussed as under without prejudice to the above decision. The appellant contended that ₹ 16,00,000/- was received from his wife and the same need to be taken as source against the peak worked out by the Assessing Officer. In this connection, it is to be noticed that the affidavit which has been filed by the appellant is not admitted. However, without prejudice, assuming for a while that the document was admitted even then it will not help the appellant's case. The document was only an assertion made by third party and no confirmation from the wife of the appellant filed in support of the appellant's contention. There is no documentary evidence or bank account filed by the appellant to substantiate that money has been received from his wife so as to take the same as source against the peak worked out by the Assessing Officer, In view of these, the arguments of the appellant are rejected. 9. We have gone through the orders of the Assessing Officer as well as ld. CIT(A). We find no reason to interfere with t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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