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TMI Blog2019 (12) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... t sustainable in law. The addition sustained by the CIT(A), by u/s.69 is not found sustainable in the law. Accordingly, the same is directed to be deleted. Accordingly, these grounds of appeals are allowed. - I.T.A No.1212/AHD/2015 - - - Dated:- 6-12-2019 - SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER For the Appellant : Shri Shailesh J. Shah, CA For the Respondent : Smt. Anupama Singhla, Sr. DR ORDER PER O.P.MEENA, AM: 1. This appeal filed by the Assessee is directed against the order of Ld. Commissioner of Income Tax (Appeals)-3, Bharuch [in short CIT(A) ] dated 04-03-2015 for the assessment year 2010-11. 2. Ground no. 1 2 states that the ld. CIT(A) has erred both in law and on the facts of the case in confirming an addition of ₹ 4,96,500/- holding it as unexplained credits u/s. 69 of the Act, whereas the addition made by the AO was u/s.68 which is contrary to the facts and circumstances of the case. 3. Ground No. 3 4 are without prejudice to above ground which states that the assessee is explained with documentary evidence that the ingredients of secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 1,00,000), Shri Indrajit P. Gohel (₹ 1,00,000), Shri Kamlesh R. Baxi (₹ 49,500) and Mitesh B. Patel (₹ 1,00,000), also there was cash deposit of equal amount immediately before the issue of deposit cheque to the assessee. Therefore, the CIT(A) was the opinion that creditworthiness of these persons has not been established. Therefore, addition of deposits amounting ₹ 4,96,500/- was confirmed u/s.69 of the Act because amounts have been deposited in the bank account of the appellant and the appellant is not maintaining any books of account. Thus, the contention of the appellant in respect of addition being made u/s.68 of the Act was accepted. Accordingly, these grounds of appeal were partly allowed. 7. Being aggrieved, the assessee filed this appeal before this Tribunal. At the outset, the ld. counsel referred the finding recorded by the CIT(A) that the ld. CIT(A) has accepted the contentions of the assessee that addition u/s.68 could not be made as the assessee is not maintaining books of account and accordingly change to the section 69 and confirmed the addition accordingly. The ld. counsel contended that if the case falls u/s.68 of the Act, the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... void of merit . 8. The ld. counsel further submitted that the CIT(A) that the AO was made addition u/s.68 as unexplained cash credit, further the CIT(A) modified the order and uphold the addition u/s.69 of the Act. Therefore, it was incumbent upon the CIT(A) who should give proper notice and verification to the assessee regarding the intention to modify this section under which the addition was proposed. Reliance was place on the decision of the case of Liayakat Ibrahim Shaikh v. ITO [2018], TaxPub(DT) 1469 (Mum-Trib.). The ld. counsel further place reliance on the decision of Hon ble Supreme Court in the case of Andaman Timber Industries [2015] 281 CTR 241 (SC) to contend that the assessee was not allowed to cross-examination of the lenders, hence the addition made by the AO is not sustainable. The ld. counsel further filed a chart giving details which was also filed before the lower authorities in which the aforesaid loans have been repaid to the concern debitors by cheque from the bank account of the assessee. Therefore, when the assessee has repaid the loans to the debitors the addition sustained u/s.69 of the Act is not tenable, as held by the Co-ordinate Bench of T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s.68 cannot be made, and therefore contention of the assessee is correct. However, the CIT(A) has changed the addition to section 69 of the Act, but without giving a finding that the assessee has made any investments. The onus lies on the Revenue to establish that the assessee has made investment which has not been recorded in the books of account as held by Hon ble Orissa High Court in the case of Aurobindo Sanitary Stores v. CIT (supra). We, further, find that the CIT(A) has modified the order as uphold the addition u/s.69A of the Act without giving proper opportunity of being heard to the assessee. However, it was incumbent upon the CIT(A) who should give proper notice and opportunity to the assessee regarding the intention to modify the section under which the addition was proposed, therefore having not done so, the decision of ld. CIT(A) for invoking of section 69 is not sustainable in law. We find that the onus was on the revenue to establish that payments had been made outside the books of account. This view is supported by the decision of Cochin Tribunal in the case of Bafakyh Export House (supra). Further, the ld. counsel has placed reliance on the decision of Hon ble S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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