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TMI Blog2024 (12) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Income Tax (Appeals)- NFAC, Delhi [hereinafter referred to as Ld. CIT(A) ] arising out of assessment order dated 17.12.2018 of the Income Tax Department, Gurgaon (hereinafter referred as Ld. AO ) under section 143(3)/147 of the Income Tax Act, 1961 [hereinafter referred to as the Act ] for the Assessment Year 2011-12. 2. Brief facts of the case are that as per the information, the assessee had not filed any return of income for the year 2011-12 and made cash deposits of Rs. 66,38,450/- maintained with Indian Overseas Bank and Gurgaon Central Co-op Bank. By recording reasons, the case was reopened after obtaining the necessary approval from PCIT, Gurgaon vide letter No.F.N.CIT/GGN/TECH/2017-18/7185. Notice under section 148 of the Act was issued on 22.03.2018. In response to notice, assessee submitted reply on 22.10.2018 and furnished ITR for the year 2011-12 on 20.04.2018 declaring income at Rs. 1,81,140/- from other sources in response to notice under section 148 of the Act and requested reasons for reopening under section 148 of the Act. Reasons for reopening the case and notice under section 142 was sent on 20.11.2018. Assessee filed reply and furnished the list of memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epting the explanation of the assessee but erred both in law and on facts in making further new addition of Rs. 22,00,000/- on account of the balance cash contributed by Sh. Ashish Doon, without giving any specific notice and opportunity to the appellant. 11. Learned Authorized Representative for the assessee/appellant submitted that the learned Commissioner of Income Tax (Appeals) has erred both in law and on facts in upholding the addition under section 69A of the Act to the extent of Rs. 32,00,000/- ignoring the fact that no addition can be made in the hands of the society on account of the contribution made by its members for construction of flats for and on their behalf, when such amounts had been duly reflected in the ledger accounts of the concerned members in the books of account maintained by the society and confirmed by the members, and if any action is warranted, it should be taken against the members who made payment to the society. 12. Learned Departmental Representative for the Department of Revenue submitted that learned AO and learned CIT(A) have passed reasoned orders. 13. From examination of record in light of aforesaid rival contentions, it is crystal clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be due to reason that just above at Sr. No. 35, the name of member was 'RAMAN GARG' In totality of facts and surrounding circumstances, it is abundantly clear that Sh. Ram Lal Gupta had contributed Rs. 5,00,000/- to the society towards cost of his flat on 08.04.2010. The assessee society had refunded the total contribution to him including amount of cash contributed by him. So the addition of Rs. 5,00,000/- of cash contributed by the then member Sh. Ram Lal Gupta deserves to deleted. 13.2 Regarding Shri Ashish Doon : Rs. 22,00,000/- Sh. Ashish Doon is a member of the society and had been contributing funds to the society for his flat. Copies of his ledger accounts in the books of the assessee society are enclosed (PB-Pages-53 to 57). He has contributed total amount of Rs. 41,64,000/- during F.Y. 2010-11 consisting of Rs. 36,64,000/- in cash and Rs. 5,00,000/- through cheque. His name was duly appearing at S. No. 6 in the list of members as on 31.03.2011 duly verified by Sub-inspector (Audit), Cooperative Societies, Gurgaon (PB-Page-18). Sh. Ashish Doon has also furnished an affidavit (PB- Pages 51 52) for contribution of total cash of Rs. 36,64,000/- during FY 2010- 11 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not permissible to accept a part and ignore the rest of the document. Reliance is placed on Glass Lines Equipments Co. Ltd. v. CIT [2002] 253 ITR 454 (Guj) PB-Pages 89 to 96 Furthermore, an affidavit cannot be rejected in part or whole without cross examination of the deponent with reference to the statement made in the affidavit. In the present case, Ld. CIT(A) has not accepted part of the contents of the affidavit without cross examining Sh. Ashish Doon and hence rejection of explanation of part of the amount of Rs. 22,00,000/- is not tenable in law. Reference: to Mehta Parikh and Co. v. CIT [1966] 30 ITR 181(SC) is important in above context. Considering the totality of facts and surrounding circumstances, it is abundantly clear that Sh. Ashish Doon had contributed Rs. 36,64,000/- in cash to the society towards cost of his flat during FY 2010-11. Conveyance Deed has also been registered in favour of Sh. Ashish Doon for the flat by the society clearly demonstrating that this amount was received from Sh. Ashish Doon by the assessee society as contribution for construction of his fat. So, the addition of Rs. 22,00,000/- of cash contributed by the member Sh. Ashish Doon is required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in the affidavit. In the present case, Ld. CIT(A) has not accepted part of the contents of the affidavit without cross examining Sh. Karan Singh and hence rejection of explanation of part of the amount of Rs. 5,00,000/- is not tenable in law. Considering the totality of facts and surrounding circumstances, it is abundantly clear that Sh. Karan Singh had contributed Rs. 11,00,000/- in cash to the society during FY 2010-11 i.e., Rs. 5,00,000/- towards cost of his flat and Rs. 6,00,000/- for membership of his daughter Nandini. The assessee society had refunded the total contribution to him including amount of cash contributed by him. So the addition of Rs. 5,00,000/- of cash contributed by the then member Sh. Karan Singh is deleted. 14. Learned Counsel for the assessee submitted that as per section 251(1)(a) of the Act, in appeal against an order of assessment, the CIT(A) may confirm, reduce, enhance or annul the assessment, but there is no such power provided by the law that the Ld. CIT(A) could change the provision of law qua the item of which the assessment was made. Thus, in the absence of such power, Ld. CIT(A) could not have treated the addition made in the assessment orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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