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TMI Blog2024 (1) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... m unexplained sources and rather as per the assessment order passed by the AO, the same has been considered as an expenditure. Therefore, no addition could have been made in the absence of an independent, corroborative evidence. Even otherwise, as held by Hon ble Delhi High Court (supra) that section 292B of the Act cannot save an order not passed in accordance with the provisions of the Act. We, therefore, find no force in the order of the ld. CIT (A) and the same is quashed. The addition is deleted. Appeal of the assessee is allowed. - HON BLE SHRI SANDEEP GOSAIN, JM HON BLE SHRI RATHOD KAMLESH JAYANTBHAI, AM For the Appellant : Shri C.M. Agarwal, CA For the Respondent : Shri Arvind Kumar (CIT) ORDER PER: SANDEEP GOSAIN, J.M. This appeal by the assessee is directed against the order dated 23.08.2023 of ld. CIT (A), Jaipur-5 passed under section 250 of the IT Act, 1961 for the assessment year 2019-20. The assessee has raised the following grounds :- 1. On the facts and in the circumstances of the case the ld. CIT (A) has erred in sustaining additions and also erred in invoking provisions of section 69 on account of alleged investment of Rs. 13, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered the documents/details furnished by the assessee but could not found it acceptable and accordingly completed the assessment by making certain additions and assessed the total income at Rs. 24,78,428/-. Aggrieved by the order of assessment, the assessee preferred appeal before the ld. CIT (A). The ld. CIT (A) after considering the matter in detail, partly allowed the relief to the assessee. Now the assessee is in appeal before us. 3. Before us, the ld. A/R of the assessee submitted his ground-wise written submissions as under:- In respect of Ground No. 1, the ld. A/R submitted - That page no. 17 of exhibit 5 of the annexure A-25 is in respect of transaction of Rs. 15,36,000/- and ld. AO has considered only Rs. 2,36,000/- as verifiable and made addition of Rs. 13,00,000/-. During the course of hearing it was submitted and reply of same is again enclosed herewith. In reference to Exhibit no. 5 page 17 of A-25 This page contains estimate for business planning regarding major payment such as salary, bank term loan interest and vendor s payment in coming week/fortnight at Grant Xenia Hotel (A unit of Gupta Prime Resorts Private Limited PAN AADCG 9810 G). These ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idences submitted by appellant. Further the applicability of provision of section 69 was not accepted by ld. CIT (A) then how the normal business income can be taxed without bringing on record the corroborative evidences in support of addition. The Hon ble High Court of Delhi in the case of CIT vs. Naresh Khattar HUF reported in 261 ITR 664 has held that burden to establish that an investment has been made onus is on the revenue. Further no evidence has been brought on record to substantiate the allegation that the investment is from unexplained sources and rather as per assessment order passed by ld. AO it is expenditure. Accordingly plea of ld. D/R that section 292B may cure the defect of wrong invocation of section 68 can t be accepted being jurisdictional error and same is the view of Hon ble Delhi High Court in case of JCB India Ltd. vs. DCIT (2017) 398 ITR 189 wherein it is held that :- 19. As already noted, the final assessment order of the AO stood vitiated not on account of mere irregularity but since it was an incurable illegality. Section 292B of the Act would not protect such an order. This has been explained by this Court in its decision dated 17 th Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed that a search and seizure operation under section 132 of the IT Act, 1961 was carried out at the business and residential premises of the assessee. During search, certain documents were seized and out of it, one paper page no. 17 of Exhibit 5 of Annexure 25 was found which was considered by the Revenue Authorities in respect of transaction of Rs. 15,36,000/- and in this regard the AO after seeking explanation from the assessee considered that only a sum of Rs. 2,36,000/- was verifiable and accordingly made addition of remaining amount of Rs. 13,00,000/-. Although it was categorically pleaded and argued by ld. A/R at the very state of litigation that Exhibit 5 page 17 is a page which contains estimate for business planning regarding major payment such as salary, bank term loan interest and vendor s payment in coming week/fortnight at Grand Xenia Hotel (A unit of Gupta Prime Resorts Private Limited PAN AADCGL 9810 G). As per the ld. A/R this planning included estimated fund arrangements from booking amounts from customers, estimated fund to be arranged from Director of the company, available bank balance in company account etc. With regard to a sum of Rs. 2,36,000/- is con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO under section 69 of the Act which relates to unexplained investment not recorded in the books of accounts and taxed the same as Income under section 115BBE. However, the ld. CIT (A) admitted that the applicability of provisions of section 69 by the AO is wrong but upheld the addition of Rs. 13,00,000/-. In this regard we stand fortified with specific argument raised by the ld. A/R that when the applicability of provision of section 69 was not accepted by the ld. CIT (A), then in that eventuality the normal business income cannot be taxed by the revenue without bringing on record the independent corroborative evidences in support of the addition. In this regard our attention was drawn to the decision of Hon ble Delhi High Court in the case of CIT vs. Naresh Khatter HUF reported in 261 ITR 664 (Delhi) wherein it was categorically held that burden to establish that an investment has been made, onus is on the revenue. While applying the principles laid down by Hon ble Delhi High Court in the case of CIT vs. Naresh Khatter HUF (supra), we find that in the facts of the present case the revenue has not brought anything on record either direct, indirect or indirect corroborative evi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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