I.T.O.3(1)(2), MUMBAI vs. BHAGAT HOUSING DEVELOPMENT PVT. LTD., MUMBAI

None appeared on behalf of the assessee, even though the assessee had participated in the earlier proceedings. Hence we proceed to dispose of the appeal ex-parte, without the presence of the assessee.

We heard Ld D.R and perused the record. The assessing officer issued notices u/s 133(6) of the Act to some of the Sundry creditors, but the notices were not served. Though the assessee furnished confirmation letters obtained from some of the creditors, yet the AO chose to assess the entire balance of Sundry creditors as income of the assessee. In the appellate proceedings, the 2 M/s.Bhagat Housing Development Pvt. Ltd.

However, on a perusal of the order passed by Ld CIT(A), we notice that the Ld CIT(A) himself has recorded in paragraph 2.20 of his order that the assessee had transactions with 17 parties and TDS has been deducted against 13 parties. Thus the observation of Ld CIT(A) that fresh transactions were entered with only two appears is contradictory. The deduction of TDS may be a ground to judge the genuineness of transactions. But the case of the AO was about the balance outstanding on 31.3.2008 and not about the genuineness of transactions. To that extent, in our view, the Ld CIT(A) has misdirected himself.

However, we agree with the view taken by Ld CIT(A) that, if the balance is brought forward from earlier years, the same cannot be assessed during the year under consideration. To that extent, we uphold the order of Ld CIT(A). In respect of remaining credits, we are of the view that the assessee should prove the closing balance shown in the books. Accordingly, we are of the view that this issue requires fresh examination at the end of the AO. Accordingly, we set aside the order of Ld CIT(A) passed on this issue and restore this issue to the file of the AO with the direction to delete the addition representing opening balance and re-examine the remaining amount of addition by affording adequate opportunity of being heard to the assessee.

In the result, the appeal filed by the revenue is treated as allowed for statistical purposes.