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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 ..... d investment in construction of Hotel premises u/s 69B of the Act to the file of the Assessing Officer to examine the same afresh as per law without getting influenced by our prima facie observations as noted above.- Appeal of assessee are partly allowed for statistical purposes. - ITA. No. 827/JP/2018, ITA. No. 138 & 139/JP/2017, ITA. No. 232/JP/2015 - - - Dated:- 7-2-2020 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For the Assessee : Shri Rajeev Sogani (CA) For the Revenue : Smt Runi Pal (JCIT) ORDER PER BENCH These are four appeals filed by the assessee against the order of ld. CIT(A)-1, Jaipur dated 18.04.2018, 16.12.2016 02.02.2015 for A.Ys 2007-08, 2008-09, 2009-10 2010-11 respectively. Since the common issues are involved, all these appeals were heard together and are disposed off by this consolidated order. 2. The grounds of appeal raised by the assessee in respective appeals are as under:- ITA No. 827/JP/2018: On the facts and circumstances of the case ld. CIT (Appeals) erred: 1. In upholding the assessment order passed u/s 147/144 of Income Tax Act, 1961 and in not holding the same to be unjust, bad in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stment has also been explained, however stand ignored by the Ld. AO. Thus, the action of Ld. CIT(Appeals) in confirming impugned addition made by Ld. AO without considering the evidence submitted, deserves to be held bad in law and the addition deserves to be deleted. 6. On the facts and in the circumstances of the case, the Ld. CIT (Appeals) has grossly erred in confirming Ld.AO initiation of penalty u/s 271(10)(c ) which is arbitrary. 7. On the facts and in the circumstances of the case, the Ld. CT (Appeals) has grossly erred in confirming Ld.AO's initiation of penalty u/s 271A which is arbitrary. ITA No. 139/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 dese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in law and not following provisions of law. 2. In upholding the proceedings of survey conducted on 28.7.2010 which are arbitrary, unjust and not following provisions of law and humbly prays the same to be annulled. 3. In confirming the addition made on account of unexplained investment amounting to ₹ 41,25,756/- u/s 69B of Income Tax Act, 1961, towards house construction for AY 2009-10 are erroneous and not as per provisions of law. Ld. Further Ld. CIT (A) erred in not appreciating the evidence submitted before Ld. AO and before himself relating to receipt of loan from Sh. Shankar Jethani amounting to ₹ 25 lacs and disregarding the loan agreement and evidences submitted. Further Ld. CIT (A) erred in not accepting the evidence of cash credit and source of earning income being documents which were impounded during survey and which are part of assessment record and thereby not following provisions of law. 4. In confirming ld. AO's disregarding the loan document of Sh. Shanker Jethani amounting to ₹ 25 Lacs and statement submitted by assessee giving the amount appearing in assessee's bank account transferred by Sh. Shanker Jethani. Further ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been offered to tax. Subsequently, the survey u/s 133(A) was conducted at Hotel premises on 28.07.2010 wherein certain loose excel sheets were found and impounded containing the details of various expenses/payments made during the construction of the Hotel and also after commencement of Hotel operations. It was submitted that these excel sheet were prepared by a person who was not having much knowledge of the accounting and tax provisions and these excel sheets were also containing several items of drawings, repayment of loan, bank deposits apart from Hotel expenditure and these items cannot be considered as undisclosed investment for construction of Hotel premises. Our reference was drawn to an entry on 12th Nov, 2008 wherein ₹ 48,000/- was shown as deposited in Indian Overseas Bank and it was submitted that the amount so deposited cannot be considered as undisclosed investments. Our reference was drawn to various entries relating to personal drawings amounting to ₹ 2,16,245/- and it was submitted that the said amounts were withdrawn from the bank and therefore, cannot be considered as undisclosed investments. Further, our attention was drawn to repayment of loan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 items so reflected in the loose excel sheets. Further, the source of investment submitted before the DDIT (Inv-II), Jaipur have not also been considered. It was accordingly submitted that appropriate relief may be granted to the assessee. Alternatively, it was submitted that the matter may be set aside to the file of the Assessing Officer to examine the matter afresh. 7. Per contra, the ld. DR is heard who has submitted that except for A.Y 2010-11 wherein the assessment has been completed u/s 143(3), for other 3 ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 play, we set aside the matter relating to undisclosed investment in construction of Hotel premises u/s 69B of the Act to the file of the Assessing Officer to examine the same afresh as per law without getting influenced by our prima facie observations as noted above. The assessee shall be at liberty to raise all the contentions before the Assessing officer which are raised by the assessee before us and submit necessary information/documentation in support thereof. Needless to say, the Assessing officer shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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