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TMI Blog2017 (11) TMI 1934X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2007-08. Shri Arindam Bhattacharjee Ld. Departmental Representative appeared on behalf of Revenue and Shri Manoj Kataaruka, Ld. Advocate appeared on behalf of assessee. 2. At the outset, it was noticed that this appeal by Revenue is delayed by 45 days and Revenue has filed condonation petition supported by affidavit stating the reasons. The Ld. Counsel for the assessee fairly conceded that in view of the reasons given in condonation petition delay can be condoned. In view of concession give by Ld. Counsel for the assessee, we condone the delay and admit the appeal for hearing. 3. The Revenue has raised the following grounds:- "1. On the facts and circumstances of the case, Ld. CIT(A) was not justified in allowing relief of Rs. 55,32, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO observed that difference of Rs.58,81,982/- (7082418 - 1200436) between gross receipt declared in the income tax return vis-a-vis gross receipt appearing in the bank statement. Accordingly, an explanation was sought by the AO from assessee on account of mismatch in the gross receipts as discussed above. However, assessee failed to reconcile the difference as discussed above. Therefore, AO treated the difference of Rs.58,81,982/- as undisclosed investment and added to the total income of assessee. 7. Aggrieved, assessee preferred an appeal before Ld. CIT(A). The assessee before Ld. CIT(A) submitted that the AO has passed the assessment order without the application of his mind. In fact, the bank statements contain certain receipts on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e total income of assessee. The assessee further offered an amount of Rs.3,49,589/- as undisclosed income and pleaded for the deletion of addition made by the AO on account of undisclosed income. Ld. CIT(A) after considering the submission made by assessee granted relief in part by observing as under:- "Submission of the A/R, assessment records, assessment order and remand report were duly considered. The Assessing Officer made the total of credit side (receipts) in the bank statement (i.e Rs. 70,82,418/-) and deducted the profit shown by the appellant (i.e Rs. 12,00,418/-) and treated the balance amount of Rs. 58,81,982/- as undisclosed investment of the appellant in the business and finally as his income. In the remand report AO has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied on the order of AO. On the other hand, Ld. AR before us filed paper book which is running from pages 1 to 144 and submitted that all the details were duly submitted before AO at the time of assessment proceedings as well as during the remand proceedings. The AO failed to bring any defect in the submission of the assessee. Ld. AR in this regard drew our attention on the remand report which is placed on pages 112 to 114 of the paper book. He further drew our attention on pages 5 to 14 where the bank statements explaining all the receipts were placed. He relied on the order of Ld. CIT(A). 9. We have heard the rival contentions of both the parties and perused the material available on record. In the instant case the addition was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because assessee has declared capital gain on the realization of mutual fund for Rs.1,06,212/- only. The gross sale proceed of realization of mutual fund was shown for Rs.14,42,721/- where the cost price of mutual fund was shown for Rs.13,36,500/- only. Thus the gain of Rs.1,06,212/- was offered in the income tax return. But there is no whisper in the order of Ld. CIT(A) about source of investment made by assessee in the impugned mutual fund. c) Ld. CIT(A) in his appellate order has admitted the fact that AO has not examined both debit and credit side of the bank account. But Ld. CIT(A) has also not commented on all the debit and credit side of the bank statement of the assessee. d) It was also observed by Ld. CIT(A) in his appellate or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestments were not made in the year under consideration. As per Ld. CIT(A) this investments were made in the earlier year. Accordingly, Ld. CIT(A) was of the view that the investments have not been made in the year under consideration. Therefore no addition on account of undisclosed investment can be made in the hands of the assessee. 11. Now the Revenue has agitated before us that Ld. CIT(A) erred in not giving direction to reopen the case of earlier years of the assessee in which investments were made. In this regard, we find that Ld. CIT(A) has been given power u/s. 251 of the Act to confirm the order of AO reduce, enhance or annul assessment order under the provision of Act there is no power available to Ld. CIT(A) to give direction to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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