Ganesh Kumar Sharma, Cuttack V. Pr.CIT-1, , Bhubaneswar

ITA 100/CTK/2022

AI Insights

This case involves an appeal by Ganesh Kumar Sharma against the order of the Pr.CIT, Bhubaneswar-1, which was passed under section 263 of the Income Tax Act, concerning the assessment year 2017-2018. The primary contention was regarding two cash deposits: Rs.35,66,000 in the account of Joshi Enterprises and Rs.2,50,000 in the assessee's personal account. The Tribunal found that the former was mistakenly attributed to the assessee's PAN but was actually related to Joshi Enterprises, a partnership firm running a petrol pump. The Tribunal noted that the issue had been previously examined and accepted in the scrutiny assessment of Joshi Enterprises. However, the latter deposit of Rs.2,50,000 was acknowledged as belonging to the assessee, and the Tribunal upheld the Pr.CIT's order for further examination of this specific deposit.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 127030 (ITAT-CUTTACK)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Next Hearing Date: 08-02-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 26-05-2022
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside

Judgement Text

आयकर अऩीऱीय अधधकरण, कटक न्यायऩीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK श्री जाजज माथन, न्याययक सदस्य एवं श्री अरुण खोड़पऩया ऱेखा सदस्य के समक्ष । BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER आयकर अऩीऱ सं/ITA No.100/C TK/2022 (ननधाारण वषा / Asses s m ent Year : 2017-2 018) Ganesh Kumar Sharma, Buxi Bazar, C/o-D.N.Mohanty, Cuttack-753001 Vs Pr.CIT, Bhubaneswar-1 PAN No. :AHMPS 4283 J (अऩीऱाथी /Appellant) .. (प्रत्यथी / Respondent) ननधााररती की ओर से /Assessee by : Shri Amit Agarwal, Advocate राजस्व की ओर से /Revenue by : Shri M.K.Gautam, CIT-DR स ु नवाई की तारीख / Date of Hearing : 09/02/2023 घोषणा की तारीख/Date of Pronouncement : 09/02/2023 आदेश / O R D E R Per Bench : This is an appeal filed by the assessee against the order of the ld. Pr.CIT, Bhubaneswar-1, dated 11.03.2022 passed in DIN & Order No.ITBA/REV/F/REV5/2021-22/1040604304(1), for the assessment year 2017-2018. 2. At the outset, it is found that the appeal of the assessee is barred by 17 days. In this regard, a condonation application along with affidavit has been filed on behalf of the assessee stating sufficient reasons to condone the delay. Ld CIT-DR also did not object to condone the delay. Accordingly, we condone the delay of 17 days in filing the present appeal and the appeal is heard finally. 3. It was submitted by the ld. AR that the assessee is an individual and a partner in Joshi Enterprises. It was the submission that the partnership firm is running a petrol pump. It was submitted that the ITA No.100/CTK/2022 2 assessee had deposited total amount of Rs.38,16,000/- in two bank accounts. In a current account maintained with SBI, Joda Branch, the assessee had deposited Rs.35,66,000/- and an amount of Rs.2,50,000/- in the Bank of Baroda, Barbil Branch. It was the submission that the amount of Rs.35,66,000/- related to the petrol pump run by Joshi Enterprises and the amount has been deposited in the bank account of Joshi Enterprises though mistakenly in the PAN Number of the assessee. It was the submission that the bank account though in the name of the assessee, however, the same was operated on behalf of Joshi Enterprises. It was the submission that the bank account was also disclosed in the accounts of Joshi Enterprises. In respect of the amount of Rs.2,50,000/-, it was submitted that the money belonged to the assessee and the same was deposited in the bank account of the assessee and the assessee has also the source for the same. It was the submission that the AO had examined these issues when passing the assessment order u/s.143(3) of the Act on 29.11.2019. It was the submission that the assessee had produced all the evidences before the ld. AO in the course of assessment proceedings. It was the submission that even in the proceedings u/s.263 of the Act, these details were specifically brought to the attention of the ld. Pr.CIT. It was submitted that the ld. Pr.CIT did not accept the contention of the assessee and has set aside the assessment order u/s.263 of the Act to examine the cash deposit during the demonetization period afresh. It was the submission that in respect of the issue of Rs.35,66,000/- deposited in the account of Joshi Enterprises, the ITA No.100/CTK/2022 3 scrutiny assessment for the assessment year 2017-2018 had been completed on 24.12.2019 wherein the cash deposit has been considered and the same has been completed u/s.143(3) of the Act wherein the AO has specifically given a finding that the cash deposit are reflected in the cash book. It was the submission that after considering the cash deposit in the bank account in the case of Joshi Enterprises, the assessment has been completed accepting the returned income. Ld. AR drew our attention to pages 194 to 197 of the paper book, which are the copies of the assessment order passed u/s.143(3) of the Act on 24.12.2019 for the assessment year 2017-2018 in the case of Joshi Enterprises. It was the submission that it is an admitted fact that in respect of Rs.2,50,000/- deposited in the assessee’s bank account the AO has not mentioned in the assessment order on 29.11.2019 though the issue has been considered by him. It was the submission that the order u/s.263 of the Act is liable to be quashed. 4. In reply, ld. CIT-DR vehemently supported the order of the ld. Pr.CIT. It was the submission that the order passed by the AO is a non- speaking order. It was further submitted that in respect of the cash deposit of Rs.35,66,000/- in the name of Joshi Enterprises, there is no mention by the AO of the assessee of the issue being referred to the AO of Joshi Enterprises for verification. It was thus, submitted that the order passed u/s.263 of the Act is liable to be upheld. 5. We have considered the rival submissions. A perusal of the assessment order in the case of Joshi Enterprises clearly shows that the ITA No.100/CTK/2022 4 issue of cash deposit in the account No.11291750287 maintained with SBI Joda Branch has specifically been examined by the AO. The AO of Joshi Enterprises has also categorically mentioned in the assessment order that the cash deposits are reflected in the cash book. Joshi Enterprises is running a petrol pump, admittedly they are entitled to accept the specified bank notes. A perusal of the order of the ld.Pr.CIT further goes on to show that this has been brought to the attention of the ld. Pr.CIT and the ld. Pr.CIT has in his order in para 6.1 given a finding that the AO has drawn no adverse conclusion against the assessee and has opined that the corresponding bank transaction has been shared with the concerned AO being ITO Ward-2(1), Sambalpur. Thus, it becomes clear that in respect of cash deposit of Rs.35,66,000/-, the cash deposit does not belong to the assessee and the assessee has given the explanation for the same and it has been examined by the AO of Joshi Enterprises who had also found that the entries to be correct. This being so, the order of the ld. Pr.CIT in respect of cash deposit of Rs.35,66,000/- in the account No. 11291750287 maintained with SBI Joda Branch, no more survives for revision u/s.263 of the Act and consequently the same stands quashed. 6. In respect of Rs.2,50,000/-, admittedly the cash is belonging to the assessee. A perusal of the assessment order in the case of the assessee shows that there is no mention by the AO in respect of the examination of the same. The assessee has not been able to produce any evidence to show that the AO has examined the issue. This being so, the order ITA No.100/CTK/2022 5 u/s.263 of the Act is upheld for the limited purpose of the issue to be examined in respect of Rs.2,50,000/ deposited by the assessee in his bank account No.00480600013248 maintained with Bank of Baroda, Barbil Branch. 7. In the result, appeal of the assessee stand partly allowed. Order dictated and pronounced in the open court on 09/02/2023. Sd/- (अरुण खोड़पऩया) (ARUN KHODPIA) Sd/- (जाजज माथन) (GEORGE MATHAN) ऱेखा सदस्य/ ACCOUNTANT MEMBER न्यानयक सदस्य / JUDICIAL MEMBER कटक Cuttack; ददनाांक Dated 09/02/2023 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनतलऱपऩ अग्रेपषत/Copy of the Order forwarded to : आदेशान ु सार/ BY ORDER, (Assistant Registrar) आयकर अऩीऱीय अधधकरण, कटक/ITAT, Cuttack 1. अऩीऱाथी / The Appellant- Ganesh Kumar Sharma, Buxi Bazar, C/o-D.N.Mohanty, Cuttack-753001 2. प्रत्यथी / The Respondent- Pr.CIT, Bhubaneswar-1 3. आयकर आय ु क्त(अऩीऱ) / The CIT(A), 4. आयकर आय ु क्त / CIT 5. पवभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, कटक / DR, ITAT, Cuttack 6. गार्ज पाईऱ / Guard file. सत्यापऩत प्रयत //True Copy//