TaxTMI 
TaxTMI 
TaxTMI 
2016 (8) TMI 219
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in law and on facts in holding that AO/CIT(A) meant addition under section 68 of the Act when specifically addition is made under section 69-A and also in holding that such situation is covered under section 292-B? b) Whether in view of the facts and circumstances of the case, the Tribunal has erred in law and on facts in upholding the order of the respondent without even going into the relevant facts of the case and the nature of addition/disallowance made? c) Without prejudice whether on the facts and in the circumstances of the case, the Tribunal erred in law and on facts in not considering the relevant fact that the AO and CIT(A) has never examined the applicability of Section 68 of the Act on the facts and circumstances of the case? d) Whether on the facts and in the circumstances of the case, the Tribunal erred in law and on facts in upholding the order of AO/CIT(A) without giving opportunity as to the applicability of section of the Act? e) Whether on the facts and in the circumstances of the case the findings arrived at by the Tribunal are perverse, in as much as no reasonable person correctly informed of the provisions of law would come to such a conclusion? 3. The q....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... was issued alongwith a notice under sections 142(1) and 143(2) of the Act. 6. The assessee derives income on account of his share as a partner in two firms and interest from two other firms. During the relevant corresponding financial year, the assessee deposited an aggregate sum of Rs. 1,71,50,000/- in his bank account. He was asked to explain the source of the money. He named the sources. By a letter dated 14.12.2010 he was asked to furnish documentary evidence of the source of the deposits and to produce one of the sources named by him, namely, one Dhruv Parti for examination. He was also asked to produce the books of accounts of the firm and to furnish certified copies of his accounts as appearing in their books of accounts. He furnished copies of his accounts in the firm as also copies of sale-deeds of purchase of the lands. It is important to note, however, that he did not furnish a confirmation of the said Dhruv Parti. Nor did he produce Dhruv Parti for examination stating that he was a non-resident and therefore, was not available for examination. The assessee failed to comply with the subsequent requisitions to this effect on the same ground. The Assessing Officer, ther....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sisting upon any document evidencing the same. The loans admittedly have not been repaid upto date. There is no explanation for the same either. The assessee has not even established that he tried to trace said Dhruv Parti during all these years. He does not contend that Dhruv Parti never visited India during all these years. Nor does he contend that he ever tried to contact him in relation to the loan. It is equally important to note that it is not even the assessee's case that Dhruv Parti demanded interest on the loans during all these years. 10. As rightly held by the CIT(A) the fact that there were several other transactions in Dhruv Parti's account does not carry the assessee's case any further for there is nothing to indicate the source of such funds, namely, whether the funds belonged to Dhruv Parti or that he was acting as a conduit for others. 11. It is the assessee who claims to have received the amount as a loan. The burden, therefore, was on him to establish the same. The assessee has failed to discharge this burden. The authorities have infact established that the facts and circumstances of the case militate against the assessee's case that the amounts were lent and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9-A it would not have been open to the assessee to contend that he had not been put to notice that the Assessing Officer intended invoking section 68 of the Act. If he could not have done so in respect of the assessment order, he cannot do so in respect of the orders in appeal by the CIT(A) or by the Tribunal. 15. This as we mentioned is not a case where in the assessment proceedings the queries were raised specifically in relation to section 69-A of the Act. The queries were raised generally only to ascertain the facts. If for instance it had been found in the assessment proceedings that the amounts received by the assessee had not been recorded in his books of accounts, the additions could have been made under section 69-A of the Act. Merely because it was found on such facts that the money was recorded in the assessee's books of accounts it would not exclude the operation of section 68 of the Act. That is an independent ground/provision open to be invoked by the authorities. 16. The assessee has not been prejudiced in any manner whatsoever on account of the Assessing Officer having mentioned the wrong section. Where in the assessment proceedings the enquiries are made by the A....