9911796707
TMI Blog2021 (10) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... mplete scrutiny. Accordingly, AO issued notice u/s 143(2) and 142(1) and served upon the assessee. In response thereof the authorized representative of the assessee attended the proceedings and filed the details called for by the AO. The AO after hearing the authorized representative in the light of the documents and details on record, passed assessment order and determined the total income of the assessee at Rs. 1,02,50,570/- and agricultural income of Rs. 92,093/- inter alia making addition of Rs. 80,55,462/- i.e., brought forward opening balance as on 01.04.2013 as unexplained income of the assessee u/s 68 of the Act and Rs. 6,94,290/- on account of unexplained investment u/s 69 of the Act. In the first appeal, the Ld. CIT(A) confirmed the addition of opening capital balance u/s 68 of the Act, however, restricted the addition on account of unexplained investment to Rs. 4,20,519/- Still aggrieved, the assessee has filed the present appeal before this Tribunal. 3. The assessee has challenged the impugned order passed by the Ld. CIT(A) on the following grounds: - 1.1 That the learned CIT(A) has erred in law and on facts in confirming the actions of the AO in assessing the openin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and additions of Rs. 1,42,92,186/-, Rs. 93,37,171/-, Rs. 36,61,237/-, Rs. 68,230/- and Rs. 7,25,548/-were made in the assessment years 2010-11, 2011-12, 2012-13 and 2013-14 respectively either on account of opening capital or out of capital addition or as per declaration by the assessee. 5. The Ld. counsel further submitted that since the total addition of Rs. 1,42,92,186/- has already been made by the AO after reassessment for the aforesaid assessment years on substantive basis against the opening capital balance of Rs. 80,55,462/-, the Ld. CIT (A) has wrongly confirmed the addition of the said amount in the assessment year under consideration. The Ld. counsel further argued that as per the settled law the amount of opening balance of capital carried forward from earlier years cannot be considered as credit during the current year and the same can only be assessed in the year in which the amount has been credited. To substantiate his contention, the Ld. counsel relied on the the following cases. a. CIT versus Usha Stud agricultural Farm ltd. 301 ITR 384 (Delhi) b. CIT versus J. J. Development (P) Ltd. ITA519/2008 (Calcutta) c. CIT versus Parmeshwar Bohra 301 ITR 404 (Raja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 1,23,12,128.32/- as opening balance in the assessment year under consideration. Under these circumstances we find merit in the contention of the Ld. counsel that since the AO has already made addition of Rs. 1,42,92,186/- to the income of the earlier years, against the addition made on account of opening balance of Rs. 80,55,462/-, the Ld. CIT(A) has wrongly confirmed the addition of the said amount in the assessment year under consideration on substantive basis. 9. Further, the legal issue raised by the Ld. counsel is that as per the settled law the amount of opening balance carried forward from earlier year cannot be treated as credit during the current year and cannot be assessed in the subsequent assessment year. In the present case, since the assessee has taken the amount of closing balance as on 31.03.2013 as the opening balance as on 01.04.2013, i.e., in the assessment year under consideration, we find merit in the contention of the Ld. counsel that the said amount cannot be treated as fresh credit in the relevant previous year as the said entry did not pertain to the year relevant to the assessment year under consideration. 10. In the case of CIT vs. Usha Stud Agricu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the relevant year. 12. Further, in the case of CIT vs. J.J. Developers (P) Ltd) (supra), the Hon'ble Calcutta High Court has affirmed the findings of the Tribunal deleting the addition made u/s 68 of the Act, holding that the share application money in question was not introduced during the relevant previous year. The Hon'ble Court upheld the findings of the Tribunal holding it is not the case of the revenue that during the period between April 1, 2002 and March 31, 2003, i.e., during the previous year any sum was credited in the books of accounts of the assessee. 13. Under section 68 of the Act, the AO has power to make addition of any sum found credited in the books of account of the assessee maintained for any previous year, as income of the assessee of that previous year if the assessee fails to explain about the nature and source thereof or the explanation offered by the assessee is not satisfactory in the opinion of the AO. In the present case, the Ld. CIT(A) has confirmed the addition made by the AO on account of opening capital balance as on 01.04.2013. Further, the AO has already reopened the returns of the assessee for the earlier assessment years including the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned the cheque numbers, vide which payments were received from M/s Prem Oil Store. The assessee has furnished the copy of statement of Bank account which is available at pages 81 to 86 of the paper book. As per the said statement of account, the cheques received from M/s Prem Oil Store from time to time were deposited in assessee's account and thereafter the amounts of EMI were transferred to the loan account through cheques. So, the assessee has proved the source of amount paid towards repayment of home loan. However, the Ld. CIT(A) has sustained the addition of Rs. 4,20,519/- inter alia on the ground that the assessee has filed copy of account of M/s Prem Oil Store as per which the said firm has paid the tanker rent in cash. Since the assessee has explained the source of the said amount on the basis of entries in the bank account, we find merit in the contention of the Ld. counsel that the Ld. CIT(A) has sustained the said addition ignoring the documentary evidence i.e., entries in the statement of bank account of the assessee. On the other hand, there is no reference of the statement of bank account of the assessee in the assessment order. Hence, we set aside the findings of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
