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TMI Blog2022 (6) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... pital contribution. Further it is not in dispute that the partners who had contributed capital have filed petition before ITSC Mumbai and their settlement petition has not been dismissed or the proposal is not declined. As assessee furnished the details of capital introduced by partners of the firm and the partner has confirmed such contribution, it could be concluded that the assessee has discharged its onus cast upon it. If the assessing officer was not convinced about the creditworthy of the partner, who made capital contribution, enquiry had to be made against such partner and not against firm. Thus, in view of the facts and the legal position, that when the addition under section 68 is liable to be set aside. In the result, substantial ground No. 1 of the appeal is allowed. Addition of unsecured loans - Considering the submissions of ld. AR for the assessee, this issue is restored back to the file of assessing officer to verify the fact that if the unsecured loan is owned by M D Patel in his petition file before ITSC, the additions be deleted. So far as transaction of loan from Kaushik Granites Pvt Ltd is concerned, the assessee has filed complete details like confirma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... introduced in the appellant firm and accordingly, the impugned reassessment order needs to be annulled out rightly. 3.On facts and circumstances of the case, the learned CIT(A) has grossly erred in upholding the addition u/s 68 of the Act for unexplained partners capital of Rs.1,98,50,000/-. As made by the ITO in the hands of the appellant firm, which is not only factually erroneous but also bad-in-law and hence, needs to be deleted. 4.On facts and circumstances of the case, the learned CIT(A) has grossly erred in restricting the addition of Rs.84,00,000/- to Rs.48,00,000-/, as made by the ITO, u/s 68 of the Act, alleging unexplained unsecured loans, which is absolutely erroneous and needs to be deleted. 5.On facts and circumstances of the case, the learned CIT(A) has grossly erred in upholding the lump-sum disallowance of Rs.1,00,000/- as made by the ITO, out of various expenses, by alleging that the same are not fully verifiable, which is erroneous and needs to be deleted. 6. On facts and circumstances of the case, the learned CIT(A) has grossly erred in passing the impugned set-aside appellate order, on an Ex-parte Basis, without granting the appellant a reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded that no break-up of such disclosure was furnished. During the survey, it was noted that assessee and its group used to maintain 150 bank accounts in the name of various persons and deposited unaccounted money in their business in those accounts. Later on the funds were transferred either to assessee or their sister concern. No regular assessment was made for the assessee for AY 2003-04. On the basis of such information and evidences the case of assessee was reopened under section 147. Notice under section 148 date 28.03.2008 was served on the assessee. During the course of assessment, the Assessing Officer asked to furnish the details of capital introduced in the partner s account of Rs.1.98 cores. The assessee in response to show cause notice submitted that he has filed petition before the Income Tax Settlement Commission Additional Bench, Mumbai for settlement of entire claim. The petition before Income Tax Settlement Commission was abated against which the assessee has filed Civil Writ Petition before Hon'ble jurisdictional High Court, wherein Settlement Commission was directed to dispose of petition of assessee. The Assessing Officer noted that the assessment is gett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailashben B Roy 6,00,000/- vi Chandrikaben J Roy 6,00,000/- vii Mamtaben Roy 10,00,000/- viii Rekhaben Balar 7,00,000/ 59,00,000/- Total 84,00,000/- 6. The assessee explained and submitted that for the loan Kaushik Granite Pvt Ltd., the assessee filed confirmation of party, name, address; PAN. For M D International, the assessee submitted that it is member of M D Group. for remaining lender mentioned at serial No 3 (i) to (viii) in para-5 above, the assessee submitted that they were mere name lender and M D Patel had disclosed such sums in his individual hand in the petition filed before ITSC for settlement of the various additions. It was brought to the notice that in the assessment of M D Patel a total sum of Rs 5.26 Crore has been added in the assessment order passed under section 143(3) r w s 147 dated 31.12.2008, which covers the capital contribution by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding identity, creditworthiness and genuineness of such transaction. Therefore, capital introduced by the partner will have to be treated as reinstated. On the addition of Rs.48 lakhs, the Ld. CIT(A) retreated the same view as taken in the first round of appeal. Aggrieved again, the assessee has filed present appeal before the Tribunal. 10. We have heard the submissions of Ld. Authorized Representative (AR) of assessee and Ld. Sr. Departmental Representative (Sr-DR) of the Revenue and have gone through the orders of authorities below carefully. The Ld. AR of the assessee submits that substantial ground No.1 is covered in favour of the assessee by the decision of Hon'ble jurisdictional High Court in the case of PCIT Vs Vaishnodevi Refoils Solvex (2018) 89 ttaxmann.com 80 (Guj), wherein it was held that capital introduced by one partner of the firm, in view of the fact that it is duly reflected in books of account maintained by the concerned partner and confirmed by such partner the impugned addition is liable to be set aside. The Ld. AR for the assessee submits that there is no dispute about the capital introduced by such partner which is duly reflected in the books of acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the firm and the partner has confirmed such contribution, it could be concluded that the assessee has discharged its onus cast upon it. If the assessing officer was not convinced about the creditworthy of the partner, who made capital contribution, enquiry had to be made against such partner and not against firm. Thus, in view of the facts and the legal position, that when the addition under section 68 is liable to be set aside. In the result, substantial ground No. 1 of the appeal is allowed. 14. Substantial ground No. 2 relates to the addition of unsecured loans. We find that the ld CIT(A) in the setting aside appellate proceedings recorded that the assessee failed to submit any details regarding identity, creditworthiness and genuineness of such transaction thus, the addition of Rs.48 lakh was upheld again. Before us, the ld AR for the assessee vehemently argued that for the loan Kaushik Granite Pvt Ltd., the assessee filed confirmation of party, name, address; PAN. For M D International, the assessee submitted that it is member of M D Group. And that the assessee group has already filed petition before ITSC for settlement of the various additions owning all capital forma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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