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TMI Blog2022 (11) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... er called "the tribunal") in ITA no. 249/Vns/2019 for assessment year 2009-10, reads as under: "1- That the learned CIT(Appeals) has erred in law and facts in passing the appellate order. 2- That the learned CIT (Appeals) has not justified in confirming the addition of Rs.22,17,420.00 as unexplained investment in construction of property. 3- That the appellant has shown money received against the sale of land amounting to Rs.40,00,000.00 as against which the learned A.O as well as CIT (Appeals) have accepted only Rs. 35,82,580.00. 4- That the learned authorities have not justified in not accepting the sale proceed of Rs. 4,14,420.00 which was invested in construction of property. 5- That the learned authorities have not justified in not accepting the money shown by the appellant as advances received from the intended purchasers of the shop. 6- That the appellant has received Rs.20,40,000.00 as advances from the intended purchasers of the shop which has been deposited in bank account and out of that Rs.1800000.00 has been invested in construction of the property. 7- That the property was constructed from the F.Y.2006-07 TO 2008-09 as admitted by the assessee before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compliance by the assessee. The AO then proceeded to frame ex-parte assessment u/s 144 read with Section 147 of the 1961 Act. The AO observed that the assessee has admitted before learned ADIT(Inv.), Gorakhpur in the statement recorded that the approximate cost of construction of commercial complex is Rs. 70,00,000/- The AO observed that the assessee in his statement recorded before ld. ADIT(Inv.) , Gorakhpur has stated that the construction expenses were met as under: "1. Money received against sale of land situated at Padri Bazar, Gorakhpur in year 2006, 2007 & 2008 Rs. 40,00,000/- 2. Loan from Shri Umesh Pandy, R/o Jatepur (North) Gorakhpur Rs. 18,00,000/- The rest amount has been invested out of money received from purchasers of the shops in the year 2006,2007 and 2008. Since, the assessee failed to produce any documentary evidence, as per AO the sources of investment of Rs. 70,00,000/- in commercial complex remained unexplained, which led AO to make additions to the tune of Rs. 70,00,000/- to the income of the assessee. Further on going through saving bank account No. 507402010010233 of the assessee maintained with Union Bank of India , Medical College Road , Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing complex: S.No. Date of sale of property Amount 1. 23.02.2006 Rs. 1,50,000/- 2. 22.01.2007 Rs. 4,00,000/- 3. 22.01.2007 Rs. 4,30,000/- 4. 06.06.2007 Rs. 9,98,300/- 5. 27.08.2007 Rs. 8,00,000/- 6. 23.10.2007 Rs. 3,91,000/- 7. 23.11.2007 Rs. 4,13,280/- Total Rs. 35,82,580/- The AO observed that so far as Rs. 12,00,000/- invested in the construction of commercial complex, the assessee has filed copy of agreement dated 25.06.2005 with Mr. Umesh Pandey . Thus, after considering the submission of the assessee , the AO observed that an investment of Rs. 22,17,420/- in construction of commercial complex remained unexplained , detailed as under: Total Investment in the construction of Commercial Complex, during the year under consideration Rs. 70,00,000/- Less: Amount invested against sale proceeds Rs. 35,82,580/- Less: Amount invested against advance received Rs. 12,00,000/- Unexplained investment Rs. 22,17,420/- The AO, further , observed in remand proceedings that the so far as cash deposits of Rs. 20,40,000/- in bank is concerned, the assessee has explained that he has received advance of Rs. 27,36,000/- from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eipts are neither notarized nor any evidence has been filed by the assessee regarding identity and creditworthiness of Shri Kanhaiya Baitha, and hence ld. CIT(A) observed that the contentions of the assessee with respect to cash deposit of Rs. 20,40,000/- in his bank account with UBI remained unsubstantiated and the addition as were made by AO stood upheld by ld. CIT(A), vide appellate order dated 12th July, 2019. 5. Aggrieved by appellate order passed by ld. CIT(A), the assessee has filed second appeal before tribunal , and has raised as many as eight grounds of appeals. This appeal was taken up for hearing before Division Bench(DB) on 21st April, 2022 , when none appeared on behalf of the assessee nor any adjournment application was filed . The DB adjourned the hearing. On the next date of hearing before DB on 26th May, 2022, none appeared for assessee the hearing was adjourned by DB to 07th July, 2022 on the written request of the assessee. When this matter again came up for hearing before DB on 7th July, 2022 , again none appeared on behalf of the assessee and the matter was adjourned to 25th August, 2022 at the written request of the assessee. On 25th August, 2022, when this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see did not appear before AO during re-assessment proceedings , but, however, the assessee appeared before ld. CIT(A) and filed some evidences . The ld. CIT(A) called for remand report from AO . It was submitted that the assessee did not file sale agreement for Rs. 4,45,910/- and also did not file evidences with respect to advance of Rs. 18,00,000/- received from purchaser of shops, and hence additions to the tune of Rs. 22,17,420/- were confirmed by ld. CIT(A). Further , the ld. Sr. DR submitted that cash deposit of Rs. 20.40 Lac in the bank account remained unsubstantiated. On being asked by the Bench as to the details of the persons from whom the assessee claimed to have received Rs. 27,36,000/- as advance and claim is made that two of the persons filed FIR against the assessee and the copy of judgment of Session Judge in bail application filed by the assessee, as to whether any verification was done by ld. CIT(A) and/or AO during remand proceedings, under Section 133(6)/131 with respect to explanation given by the assessee, the ld. Sr. DR submitted that as it emerges from records, the contentions of the assessee were rejected by the authorities below without making any verifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee for rebuttal. After considering the entire material on record and explanations/evidences submitted by assessee, the ld. CIT(A), so far as addition of Rs. 70,00,000/- made by the assessee in construction of commercial complex, upheld the addition to the tune of Rs. 22,17,420/-, mainly for the reason that sale deed dated 07th December, 2007 for Rs. 4,45,910/- has not been submitted by the assesssee as well the assessee could not substantiate its claim so far as advance of Rs. 27,36,000/- received , as to identity and creditworthiness of the parties from whom the assessee has claimed to have received the advance, out of which claim was made by the assessee that he invested Rs. 18 lacs in construction of commercial complex. The assessee has claimed before us through written submissions that the sale deed dated 07th December, 2007 for Rs. 4,45,910/- was duly submitted before ld. CIT(A) , and the finding of ld. CIT(A) is factually incorrect that no sale deed dated 07th December, 2007 was submitted. In any case, the assessee has now filed sale deed dated 07th December, 2007 for Rs. 4,45,910/- , which is treated as additional evidence and since it goes to root of the matter and also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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