TaxTMI 
TaxTMI 
2020 (5) TMI 400
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.... legal ground is allowed to be admitted by following that ratio laid down by the Hon'ble Supreme Court in the case of National Thermal Power Corporation v. CIT (1998) 229 ITR 383 (SC) wherein it was held that the additional ground of appeal can be admitted, whereas the issue involved in law and not involving any investigation of facts. 4. Additional ground are raised by the assessee read as under:- "1. On the facts and in the circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in re-opening the assessment and issuing notice u/s.148 of the I.T. Act, 1961." 5. The ld. counsel referred the reasons for reopening of assessment placed at paper book page no.15, wherein it was observed that the opening capital as on 01-04-1999 was shown at Rs. 16,97,250/- at page No.4, whereas the file indicated that the return of income was filed for the A.Y.2000-01 first the time. Accordingly, the assessee has claimed his opening capital by Rs. 16,97,252/-. Further, the interest income of Rs. 51,630/- was shown. Thus, there is escapement of income of at least to the tune of Rs. 17,48,882/....
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....e, it is proved that, the assessee utilized the bogus capital created at Rs. 16,97,252/- to the extent of investments discussed in above paragraphs in the present year and the remaining capital was accommodated by various cash loans and advances, to brought the undisclosed investments already held by the assessee in future course of time. Thus, the AO has made the addition and consider the opening capital created by the assessee and allowed the same set-off after addition made against the investment. Therefore, the opening capital has been duly considered for addition and no separate addition made against the said opening capital. 7. We have heard the rival submissions and perused the relevant material available on record. We find that the reopening of assessment was based on utilization of creation of bogus capital at Rs. 16,97,252/-. The AO has duly discussed this fact in the assessment order and observed that the addition made by him in respect of various instalments amounting to Rs. 12,70,054/- and other amount of Rs. 54,433/- are covered by the bogus capital created at Rs. 16,97,252/- to the extent of investments discussed in the assessment order and the remaining capital wa....
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....e was appeared to be authentic and has been prepared by Pankaj Danawala, and Chartered Accountant for bogus capital entry and assets, without any actual transaction has taken place. Therefore, the addition, if any, can be made any respective of one balance sheet for the same period, therefore, the addition of Rs. 64,806/- is confirmed and the other addition on amount of Rs. 67,535/- is deleted. This ground of appeal is partly allowed. 14. Ground No.2 relates to confirming the addition of Rs. 1,20,944/- on account of alleged unexplained and undisclosed investment u/s.69B of the Act. 15. The AO noted that the assessee has invested in bank FD with Diamond Jubilee Co-op. Bank Ltd on 29-02-2000 amounting Rs. 10,000/- and FD with State Bank of India on 24-02-1998 amounting Rs. 10,000/- and FD with Diamond Jubilee Co-op. Bank Ltd. on 05-08-1997 amounting of Rs. 10,000/- and Rs. 10,000/- with Diamond Jubilee Co-op. Bank Ltd. Accordingly, the AO made addition of Rs. 1,20,944/- which was also confirmed by the CIT(A). 16. Being aggrieved, the assessee filed this appeal before this Tribunal. The ld. counsel submitted that except the investment in Diamond Jubilee Co-op. Bank Ltd. of Rs. 13....
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.... the addition made by the AO is therefore, deleted. This ground of appeal is allowed. 25. Ground No. 4 relates to unexplained investment of Rs. 4,80,992 on account of alleged unexplained expenditure and unaccounted investment made under section 69A of the Act. 26. The AO noted that the balance sheet of the assessee had shown investment in factory shed of Rs. 3,85,741 and flat purchase amount of Rs. 95,251 totaling to Rs. 4,80,992 not shown in the balance sheet for the period under consideration, hence, same was treated as unexplained expenditure under section 69 of the Act. 27. In appeal, CIT (A) has confirmed the same. 28. Being, aggrieved the assessee filed this appeal before the Tribunal. The learned counsel for the assessee submitted that this investment is same as in Chandulal A Shah, Individual, the factory shed was purchased in the year 1984 and construction of Rs. 95,241 was shown for disowned balance sheet. Hence, addition for the period under consideration is justified. 29. Per contra, the ld. Sr. D.R. relied on the orders of lower authorities. 30. We have heard the rival submissions and perused the relevant material on record. We find that the addition made for th....
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....plained capital creation and Rs. 28,000 on account of interest on bank. The assessee has filed an appeal before CIT (A), who dismissed the appeal of the assessee and confirmed the addition made by the AO. Aggrieved with order of CIT (A), the assessee has filed an appeal before tribunal, who vide order dated 17.02.2012 has set-aside with specific direction. In consequence, to order of ITAT, the AO has passed fresh assessment order under section 144 read with section 254 of the Act on 20.03.2014. The assessee has again filed an appeal before CIT (A) who had confirmed the addition made by the AO. The assessee is therefore, now in appeal before this Tribunal. The learned counsel for the assessee referred assessment order made in consequence of Tribunal order kg addition of Rs. 21,88,786 as against which the addition of Rs. 1,10,000 made and returned in fresh assessment order. Therefore, it was submitted that in set-aside order of Tribunal the AO cannot enhance the income originally assessed by him, in the light of ratio laid down by the Hon'ble Gujarat High Court in the case of Saheli Synthetics (P) Ltd. v. CIT [2008] 302 ITR 126 (Gujarat) , Hon`ble Supreme Court in the case of Mcorp G....