AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (9) TMI 304
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....learned Commissioner of Income Tax (Appeals) [CIT(A)] is bad both in the eye of law and on facts. 2. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in enhancing the income of the assessee by Rs. 4.00 Crores without following due procedure as prescribed under the law. 3. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in making addition of an amount of Rs. 4.00 Crores in the hands of the appellant company. 4(i) On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in treating the amount of Rs. 4.00 Crores received by Mr. Harish Kanwar and Mrs. Anjali Kanwar as advance against sale of proper....
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..../- in the hands of the appellant company under section 2(22)(e) of the Act. 4. Aggrieved by the assessment order dated 28.02.2014, the assessee preferred appeal before the CIT(A). The CIT(A) deleted the protective addition of Rs. 1,00,35,866/- under section 2(22)(e) of the Act. However, the income of the appellant company was enhanced by Rs. 4 crores by the CIT(A). 5. The assessment record would reveal that during the year under consideration, the assessee company made two fixed deposits of Rs. 4 crores each in Citibank, Gurgaon. The addition of Rs. 1,00,35,866/- pertains to the first FDR made by the assessee company and the enhancement made by the CIT(A) of Rs. 4 crores relates to the second FDR. In the present appeal, we are concern....
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....itted that the agreement to sell was not a genuine document and the amount of Rs. 4 crores out which the second FDR with CITI Bank was made represents the undisclosed income of the appellant company. 8. We have heard the rival submissions and perused the record and judgments relied upon. The second FDR of Rs. 4 crores was made in cash by the assessee company in CITI Bank, Gurgaon. The Ld. AR has referred to the ledger account in the books of M/s OEC Diascans Ltd. and the ledger account in the books of Mr. Harish Kanwar and Ms. Anjali Kanwar of M/s OEC Diascans Ltd. The ledger accounts support the submissions made by the Ld. AR that the amount of Rs. 4 crores were received by the Directors Ms. Anjali Kanwar and Mr. Harish Kanwar from M/s ....
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.... 10. In the case of Nemi Chand Kothari Vs. CIT 264 ITR 254, the Hon'ble High Court held as under:- "Keeping in view the above position of law, when we turn to the factual matrix of the present case, we find that so far as the appellant is concerned, he has established the identity of the creditors, namely, Nemichand Nahata and Sons (HUF) and Pawan Kumar Agarwalla. The appellant had also shown, in accordance with the burden, which rested on him under section 106 of the Evidence Act, that the said amounts had been received by him by way of cheques from the creditors aforementioned. In fact, the fact that the assessee had received the said amounts by way of cheques was not in dispute. Once the assessee had established that he had rec....
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....e' High Court observed as under:- "Once the identity of the third party is established before the Income Tax Officer and such other evidence are prima facie placed before him pointing to the fact that the entry is not fictitious, the initial burden lying on the assessee can be said to have been duly discharged by him. It will not, therefore, be for the assessee to explain further as to how or in what circumstances the third party obtained the money or how or why he came to make advance of the money as a loan to the assessee. Once such identity is established and the creditors, as in the present case, have pledged their oath that they have advanced the amounts in question to the assessee, the burden immediately shifts on the department to....