2016 (5) TMI 1101

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.... by the Ld.CIT(A). 3. The facts of the case are that the assessee is a firm and is engaged in the processing and whole sale trading of Raw and Wet blue Leathers. The assessee filed its return of income admitting an income of Rs. 340,080/- on 30/09/09. Subsequently a revised return was filed on 04/12/09 admitting an income of Rs. 3,77,880/-. The return of income was processed u/s 143(1) and the case was selected for scrutiny by issue of notice dated 18/08/10 u/s 143(2) of the Act. The assessee's authorized representative appeared from time to time and gave the information and explanations that were sought for by the Assessing officer. The Assessing officer sought confirmation of the balance of sundry creditors lying in the books of account ....

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....Credits unconfirmed/partially confirmed Name Balance as on 31.03.2009 Amount unconfirmed Addition upheld Remarks J J Traders 603679 475000 475000 Transactions have continued in 2009-10 and later years Rajesh Corporation 283883 12555 12555 Transactions have continued in 2009-10 and later years Standard Chemicals 182000 182000 182000 Balance continues till 31.3.11 and it is Nil in 31.3.12 Total 1069562 669555 669555   2. Address not given Name Balance as on 31.03.2009 Amount unconfirmed Addition upheld Remarks Siraj A 949380   949380 Affidavit submitted, old age, from Hyderabad Payable a/c 32427 32427 32427 No details available, probably some expenditure proivded Pollachi Saminathan 953000 ....

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.... in the case of CIT Vs. Usha Stud Agricultural Farms Ltd. reported in [2008] 301 ITR 384 (Del). 4.2 On the other hand, ld.D.R submitted that before the lower authorities, the assessee has been given ample opportunities to prove the genuineness of the above credits, but the assessee was miserably failed to prove the genuineness and credit worthiness of the parties. After failing to prove all the ingredients of Sec.68, the assessee has agreed that out of sundry creditors amounting to Rs. 1,38,31,660/-, an amount of Rs. 66,98,357/-, which cannot be proved as genuine to be sustained. Against this admission made by the assessee, the assessee cannot file the appeal before this Tribunal. Further, he submitted that opening credit cannot go out of ....

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....y the assessee as unexplained and offered it as income u/s.68 of the Act before the lower authorities and the same cannot be questioned before the Tribunal. In our opinion, this argument of the Departmental Representative cannot be upheld in view of the judgment of Jurisdictional High Court in the case of Mariam Aysha V. Commissioner of Agricultural Income-Tax reported in [1976] 104 ITR 381 (Mad) wherein held that "that consent/acceptance given by assessee cannot give jurisdiction and a right to the assessing authority to make an addition, is an essential principle of law. The taxing authority can act only if there is power under the statute to do so". Further, the addition was made by invoking the provisions of the section 68 of the Act. I....