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TMI Blog2006 (10) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of 'Air Pollution Control Device', despite appreciating that the source of the said investment stood duly explained by the assessee and accepted by the authorities below? 2. Whether on the facts and circumstances of the case the Tribunal was right in law in rejecting the assessee's 'specific ground of appeal' which involved adjudication upon a 'question of law' on the basis of 'facts borne on record', pertaining to entitlement of the assessee towards depreciation on assets, when the particulars of said assets were duly furnished to the AO, in light of the fact that on omission of section 34(1), the assessee was statutorily entitled to depreciation under section 32(1) read with Section 29 of the Income Tax Act, 1961, merely on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer and, therefore, addition was not justified. The CIT(A) dismissed the appeal. 3. On further appeal, the Tribunal held that part addition was justified as the difference counted by the Assessing Officer was Rs.1,18,000/- and the Assessing Officer was not justified in making addition to the extent of surrender. The appeal of the assessee was, accordingly, allowed to this extent, as per finding recorded in para 5.3. 4. Learned counsel for the assessee submitted that the source of assessee for having received 80000 bricks from his brother having been explained and no payment having been made by the assessee, the addition was not justified and, therefore, the finding was vitiated. Reliance was placed on judgment of the Hon'ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered Rs. 1,50,000/-. On this basis, the addition is made and confirmed by the CIT(A). However, we find that the addition of Rs.1,50,000/- is unjustified as even ultimately the difference as counted by the A.O. was Rs.1,18,000/-. It is case of the A.O. that the investment in the construction of Chimney is not proved to his satisfaction. Therefore, even if there is availability of the bricks with the assessee but the assessee had to prove the investment in the construction of the Chimney. Since the investment in the Chimney was not proved to the satisfaction of the A.O., therefore, at the most, the A.O. could have made addition of Rs.1,18,000/- even if the assessee surrendered Rs.1,50,000/-. There is no basis whatsoever to take additio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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