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TMI Blog2020 (2) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1961, towards house construction for A.Y 2009-10 are erroneous and not as per provisions of law." ITA No. 138/JP/2017: "On the facts and circumstances of the case, ld. CIT (Appeals) erred: 1. In confirming the order passed u/s 147/144 of Income Tax Act, 1961 solely on the basis of survey conduct at the premises of assessee which was conduct in violation of the provisions of section 133A, and objections challenging the validity of which were raised before Ld. AO who straightaway proceeded to pass the impugned assessment order by completely ignoring the objections of assessee. Further Ld. CIT grossly erred in upholding the assessment order which deserved to be held bad in law unjust and which deserved to be annulled. 2. In confirming the impugned assessment by solely placing reliance on the so-called material gathered and the statements recorded during the course of survey proceedings by completely ignoring the well established law that the statements recorded during the course of survey have no evidentiary value. Further, the so-called material gathered was also established by assessee as no-reliable and dumb papers, thus the action of Ld. AO in relying upon then deserves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings by completely ignoring the well established law that the statements recorded during the course of survey have no evidentiary value. Further, the so-called material gathered was also established by assessee as no-reliable and dumb papers, thus the action of Ld. AO in relying upon then deserves to be held bad in law the impugned assessment be quashed. 3. On the facts and in the circumstances of the case, the Ld. CIT (Appeals) has grossly erred in confirming the addition of RS, 79,32,265/- u/s 69B of the Income Tax Act, 1961 solely on the basis of papers found and illegally impounded during the course of survey which did not even pertain to the assessee. Thus, the addition of Rs. 79,32,265/- deserves to be deleted. 4. That, the Ld.CIT (Appeals) has further erred in ignoring facts that the above mentioned papers were merely dumb papers containing rough calculations/entries and did not in any manner indicate any unexplained investment in the construction of hotel. Thus, the addition of Rs. 79,32,265/- deserves to be deleted. 5. That, the Ld. CIT (Appeals) has further erred in not properly appreciating the actual amount of investment in construction of hotel which was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 6 & 7 in ITA No. 139/JP/2017 and Ground No. 1 & 2 in ITA No. 232/JP/2015. All these grounds are thus dismissed as not pressed by the ld. AR on behalf of the assessee. 4. In respect of other grounds taken by the assessee in the respective appeals, the ld. AR submitted that all these grounds effectively relates to addition made by the Assessing Officer towards undisclosed investment in construction of Hotel premises u/s 69B of the Act and the position in respective years after getting relief from the ld. CIT(A) is as under:- Particulars A.Y. 2007-08 A.Y. 2008-09 A.Y 2009-10 A.Y. 2010-11 Date of Order 30.09.14 12.03.16 14.03.16 28.03.13 Whether Re-Assessment Re-opened Re-opened Re-opened Regular Undisclosed investments alleged by ld. AO 10,90,968 35,90,728 83,24,265 44,92,752 Less: Investment out of Agriculture income(Accepted by ld. AO) 2,00,000 3,00,000 3,92,000 2,00,000 Addition by ld. AO 8,90,968 32,90,728 79,32,265 42,92,752 Relief by ld. CIT(A) 0 0 0 1,66,906 Addition confirmed by ld. CIT(A) 8,90,968 32,90,728 79,32,265 41,25,846 5. In this regard, the ld. AR submitted that the assessee has constructed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-2010 are as under:- Particulars F.Y. 2006-07 F.Y. 2007-08 F.Y. 2008-09 F.Y. 2009-10 A.Y. 2007-08 A.Y. 2008-09 A.Y. 2009-10 A.Y. 2010-11 Remaining alleged investment (as discussed in pt. 3.1) 8,90,968 20,57,176 72,01,804 29,75,846 Source of Investment: Returned Income (Para 3.4) 1,40,343 1,48,766 4,89,070 1,430 Sale of Personal Effect (Para 3.5) 10,00,000 10,50,000 Loan earlier given to R.G. Saraff received later (Para 3.6) 13,75,000 Loan Taken from PNB & Others (Para 3.7) 13,80,000 Loan from Shanker Jethani (Para 3.8) 25,00,000 Receipts from Operations (Para 3.9) 20,00,000 Surplus remaining in A.Y. 2007-08 utilized in A.Y. 2008-09 2,49,375 Investment out of past savings (Para 3.10) 0 2,84,035 42,82,734 0 Total sources available 8,90,968 20,57,176 72,01,804 29,75,846 6. It was accordingly submitted that during the course of assessment proceedings, the Assessing officer has not correctly appreciated the nature of the various individual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g officer and will ensure on its part in timely completion of the proceedings. 9. We have heard the rival contentions and purused the material available on record. We agree with the fact that suitable opportunity have been provided by the Assessing Officer as well as by the ld. CIT(A), at the same time, given fact that the Karta of the assessee HUF who was handling the matters has since expired on 17.04.2014 and being a family run business, the challenges in transition of the business affairs to the next generation and in attending to the various proceedings cannot be ruled out. Further, as highlighted by the ld AR, we find that there are various entries in the loose excel sheets in the form of cash deposits, partner drawings, repayment of loan and entries relating to double counting which prima facie are not in the nature of expenditure on construction of the hotel and thus cannot be considered as unexplained investment u/s 69B of the Act. Further, there are submissions filed by the assessee before DDIT (Inv-II), Jaipur explaining the source of such investment in the hotel which has also not been considered by the Assessing officer. Therefore, in the interest of justice and fair ..... X X X X Extracts X X X X X X X X Extracts X X X X
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