Arup Kumar Sau, Howrah V. ITO,Ward-48(2), Kolkata, Kolkata

ITA 1012/KOL/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7932 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 29-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K PRAMANICK SR D R TH
• Keywords: Peak credit
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: K OLKATA [BEFORE SMT. DIVA SINGH, HONBLE JUDICIAL MEMBER ] I.T.A. NO.1012/KOL/2012 ASSESSMENT YEAR : 2007-08 ARUP KUMAR SAU VS- ITO, WARD-48(2), KOLKATA DHARSA PANCHANANTALA, P.O. GIP COLONY, HOWRAH 711 112 (PAN:AJVPS 4941G) ( APPELLANT ) ( RESPONDENT ) DATE OF CONCLUDING THE HEARING : 07.08.2012 DATE OF PRONOUNCING THE ORDER : 07.08.2012 APPEARANCES : FOR THE APPELLANT : SHRI SOUMI TRA CHOUDHURY : FOR THE RESPONDENT : SRI A.K.PRAMANICK, SR.D.R. O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AG AINST THE ORDER DATED 29.03.2012 OF COMMISSIONER OF INCOME TAX (APPEALS)-XXX, KOLKATA P ERTAINING TO THE ASSESSMENT YEAR 2007-08 ON THE FOLLOWING GROUNDS: 1. FOR THAT ON THE FACTS OF THE CASE, THE ORDER PAS SED BY THE LD. C.I.T.(A) IS COMPLETELY ARBITRARY, UNJUSTIFIED AN D ILLEGAL. 2. FOR THAT ON THE FACTS OF THE CASE, THE ORDER PASSED BY THE LD. C.I.T.(A) WAS WRONG IN DITTOING THE ORDER OF THE A.O. AND ADDING RS.3,66,140/- AS UNDISCLOSED CASH DEPOSIT U/S.69B WHICH IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 3. . FOR THAT ON THE FACTS OF THE CASE, THE ORDER PASSED BY THE LD. C.I.T.(A) WAS WRONG IN NOT ACCEPTING THE FACT THA T THE SAID MONEY WAS DEPOSITED IN THE BANK ACCOUNT FOR DISCLOSED SOURC E, THEREFORE, THE WHOLE ADDITION IS RS.3,66,140/- IS COMPLETELY ARB ITRARY, UNJUSTIFIED AND ILLEGAL. 4. FOR THAT ON THE FACTS OF THE CASE, THE ORDER PASSED BY THE LD. C.I.T.(A) WAS WRONG IN CONFIRMING THE ADDITION OF RECURRING DEPOSIT 2 ITA NO.1012/KOL/2012 ARUN KUMAR SAU ASSESSMENT YEAR: 2007-08 AMOUNTING TO RS.38,000/- U/S.69B OF THE I.T. ACT WHICH IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 2. THE RELEVANT FACTS OF THE CASE ARE THAT TH E AO IN THE CASE OF THE ASSESSEE, WHO IS A PARTNER OF M/S. SHREE JAGANNATH OIL MILL, FILED A RETURN OF INCOME RETURNING AN INCOME OF RS.77,020/-. THE SAME WAS SU BJECTED TO SCRUTINY BY CASS WHEREIN AS PER THE AIR, IT WAS NOTED THAT THE ASSES SEE HAD DEPOSITED RS.14,85,000/- IN THE SAVINGS BANK ACCOUNT AT SANTR AGACHI CO-OPERATIVE BANK, SASTITALA, KONA ROAD, HOWRAH ON 31.3.2007. VERIFICA TION WAS DONE AND THE ASSESSEE WAS REQUIRED TO PRODUCE COPY OF THE BANK S TATEMENT FOR THE PERIOD 01.4.2006 TO 31.3.2007. SINCE THE ASSESSEE FAILED T O PRODUCE THE SAID DOCUMENT, LETTER UNDER SECTION 133(6) WAS SENT TO THE BANK AN D DETAILS OF THE ACCOUNTS WERE CALLED FOR FROM THE BANK AUTHORITY. REPLY WAS RECEI VED IN DECEMBER, 2009 WHICH SHOWED THAT THERE WAS A SERIES OF TRANSACTIONS AND THE BANK AUTHORITY ALSO INFORMED THAT THE ASSESSEE HAD TWO RECURRING DEPOSIT ACCOUNT S BEARING NO. RD/14146 AND RD/13996. ON VERIFICATION OF THE RETURN, IT WAS FOU ND THAT THIS WAS NOT DISCLOSED IN THE BALANCE-SHEET AND BOTH THE ACCOUNTS OF THE ASSE SSEE WERE UNDISCLOSED. THE ASSESSEES EXPLANATION WAS CALLED FOR. 2.1 THE ASSESSEE SUBMITTED THAT THE BANK A/C. NO.00 4670 IN THE SANTRAGACHI CO- OPERATIVE BANK LTD. WAS OPERATED BY HIS WIFE SMT. S AMA SHAW AND ACCORDINGLY COPY OF THE BUSINESS CASH BOOK OF SMT. SAMA SAU FOR BUSINESS PURPOSES WAS QUESTIONED AS IT WAS NOT A CURRENT ACCOUNT. AS SUCH , THE ASSESSEE WAS REQUIRED TO PRODUCE COPY OF THE RETURN FILED BY SMT. SAMA SHAW, PROPRIETOR OF M/S.GOURANGHA BHANDER FOR THE YEAR UNDER CONSIDERATION AND THE CO PY OF THE BALANCE-SHEET, TRADING , PROFIT & LOSS A/C. FOR THE FINANCIAL YEAR 2006-07. THE ASSESSEE FAILED TO PRODUCE THE SAME THOUGH SEVERAL OPPORTUNITIES, AS P ER PARA 5 OF THE ASSESSMENT ORDER, WERE GIVEN. 3 ITA NO.1012/KOL/2012 ARUN KUMAR SAU ASSESSMENT YEAR: 2007-08 2.2 IN VIEW OF THE FACT THAT THE FIRST NAME IN THE SAVINGS BANK ACCOUNT WAS OF THE ASSESSEE, IT WAS HELD THAT THE ONUS WAS ON THE ASSE SSEE TO PROVE THAT THE CASH DEPOSITS AND WITHDRAWALS WERE DONE BY SMT. SAMA SHA W I.E. HIS WIFE AND MERELY FILING AN UNSIGNED LEDGER COPY OF CASH BOOK OF M/S. GOURANGHA BHANDER, PROPRIETOR SAMA SAU CANNOT BE CONSIDERED A SUBSTANT IAL AUTHENTIC SUPPORTING DOCUMENT. SINCE THE ASSESSEE FAILED TO EXPLAIN EITH ER DEPOSITS OR WITHDRAWALS IN THE SAID BANK ACCOUNT, THE ADDITION OF RS.3,63,040/- AS PEAK CREDIT BALANCE OF THE SAID ACCOUNT WAS ADDED TO THE INCOME OF THE ASSESSEE UND ER SECTION 69B OF THE ACT. 3. IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, IT WAS SUBMITTED THAT THE ACCOUNT WAS A JOINT ACCOUNT IN THE NAME OF THE ASSE SSEE AND HIS WIFE AND PA NUMBER AND ASSESSMENT DETAILS OF SMT. SAMA SHAW WAS GIVEN TO THE AO AND THE CLAIM WAS PUT FORTH THAT IT WAS FULLY OPERATED BY H IS WIFE. IT IS FURTHER SUBMITTED THAT THE ASSESSEE HAD ALSO FILED ON 04.05.2009 COPY OF ACKNOWLEDGEMENT IN INCOME-TAX RETURN AS WELL AS COPIES OF CASH BOOK OF M/S. GOURANGHA BHANDER, PROPRIETORSHIP CONCERN OF SMT. SAMA SHAW FOR THE MO NTH OF FEBRUARY AND MARCH, 2007 THAT ENTRIES SHOWN AS DEPOSITS AND WITHDRAWALS . AS SUCH THE ADDITION OF PEAK CREDIT BALANCE WAS NOT JUSTIFIED. 4. CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE CIT(A) WAS OF THE VIEW THAT THE CLAIM IN REGARD TO THE TRANSACTION PERTAIN ING TO ASSESSEES WIFE REFLECTED IN THE BOOKS OF ACCOUNTS RELIED UPON VIDE INCOME-TAX R ETURN AND BALANCE-SHEET COULD NOT BE ACCEPTED AS THE SAID BANK ACCOUNT IS NOT REF LECTED IN THE BALANCE-SHEET OF M/S. GOURANGHA BRANDER, PROPRIETORSHIP CONCERN OF S MT. SAMA SHAW. SIMILARLY, IN REGARD TO THE PRINT-OUT OF CASH BOOK FOR THE PERIOD FROM 1.2.2007 TO 31.3.2007, IT WAS SEEN THAT THE PERIOD DID NOT HAVE ANY ENTRY OF CASH DEPOSIT IN RESPECT OF ALLEGED CASH DEPOSITS IN THE BANK ACCOUNT UNDER CON SIDERATION CLAIMED TO HAVE BEEN USED BY SMT. SAMA SHAW FOR BUSINESS ACTIVITIES . HE WAS FURTHER OF THE VIEW THAT IN VIEW OF THE FACT THAT SMT. SAMA SHAW IS ALR EADY OPERATING AN ACCOUNT IN 4 ITA NO.1012/KOL/2012 ARUN KUMAR SAU ASSESSMENT YEAR: 2007-08 STATE BANK OF INDIA, UNSANI, IT WAS NOT CLEAR AS TO WHY ANOTHER SAVINGS BANK ACCOUNT WITH HER HUSBAND WAS BEING USED FOR HER BUS INESS ACTIVITIES ESPECIALLY SINCE THE SAID ACCOUNT IS NOT REFLECTED IN THE BALA NCE-SHEET OF SMT. SAMA SHAW, PROPRIETORSHIP CONCERN. THUS, IT WAS CONCLUDED THAT THE BANK ACCOUNT NO.004670 WAS NEITHER DISCLOSED IN THE RETURN OR BALANCE SHEE T OF THE ASSESSEE OR HIS WIFE AND THE GENUINENESS OF THE EXPLANATION OFFERED WHERE IT WAS NOT DISCLOSED IN THE BALANCE-SHEET IN THE CASE OF ASSESSEES WIFE WHO AL READY MAINTAINED SEPARATE BANK ACCOUNT, EXPLANATION WAS CONSIDERED TO BE NOT GENUI NE. HE WAS FURTHER OF THE VIEW THAT EVEN IF THE ENTIRE SALES FOR THE PERIOD FOR TH E PROPRIETORSHIP CONCERN ARE THE CONSIDERED WHICH WAS RS.12,15,550/-, IN THE FACE OF THE AGGREGATE CASH DEPOSITS IN THE BANK DEPOSITS OF RS.14,85,000/-, IT WAS CONCLUD ED THAT THE SAME COULD NOT BE ACCEPTED. ACCORDINGLY, IN VIEW OF THE FACT THAT THE ASSESSEE HAS NOT SATISFACTORILY EXPLAINED THE CASH DEPOSITS IN THE BANK ACCOUNT OR SOURCE OF CASH DEPOSITS, THE PEAK CREDIT ADDED BY THE AO WAS CONFIRMED. AGGRIEV ED BY THIS, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. THE A.R. CONTENDED THAT SINCE THE ASSESSEE IS CO NSISTENTLY ARGUING THAT THE AMOUNT BELONGS TO HIS WIFE, WHO IS AN INCOME-TAX AS SESSEE, AS SUCH THE EVIDENCE RELIED UPON CANNOT BE DISCARDED ON THE SUSPICION TH AT THE FIRST NAME IS OF THE ASSESSEE. IT WAS SUBMITTED THAT NO DOUBT FOR A PROP RIETORSHIP CONCERN, THE LAW REQUIRES THE MAINTENANCE OF A CURRENT ACCOUNT, HOWE VER A WIFE IS NOT BARRED FROM DEPOSITING FUNDS IN SAVINGS ACCOUNT WHERE SHE IS A JOINT HOLDER OF THE SAID ACCOUNT MERELY BECAUSE SHE HAS AN OTHER ACCOUNT. IT WAS ARG UED THAT IT CANNOT BE QUESTIONED AS TO WHY SHE IS DEPOSITING MONEY IN THE JOINT ACCOUNT WITH HER HUSBAND. IT WAS HIS ARGUMENT THAT BASED ON THE CONS ISTENT STAND OF THE ASSESSEE WHEREIN AMOUNTS HAVE BEEN DEPOSITED BY THE WIFE, AS SUCH THE AMOUNTS STAND EXPLAINED AS FAR AS THE ASSESSEE IS CONCERNED, NO A DDITION CAN BE MADE HERE. 5 ITA NO.1012/KOL/2012 ARUN KUMAR SAU ASSESSMENT YEAR: 2007-08 10. THE LD. D.R., ON THE OTHER HAND, HEAVILY RELYIN G UPON THE IMPUGNED ORDER AND THE ASSESSMENT ORDER, CONTENDED THAT THE SAID A CCOUNT HAS NOT BEEN DISCLOSED EITHER BY THE ASSESSEE OR HIS WIFE AND IS A MATTER OF RECORD. THIS ACCOUNT HAS COME TO THE NOTICE OF THE DEPARTMENT BY WAY OF AIR INFOR MATION AND MORE THAN AMPLE OPPORTUNITY HAS BEEN GIVEN BY THE AO TO DISPUTE THI S FACT AND ALL THE EVIDENCES RELIED UPON HAVE BEEN CONSIDERED AND FOUND WANTING. REFERRING TO THE RECORD, IT WAS SUBMITTED THAT THE ARGUMENT THAT IT BELONGS TO THE PROPRIETORSHIP CONCERN OF THE ASSESSEE HAS RIGHTLY BEEN DISCARDED, AS IN SUCH AN EVENTUALITY IT SHOULD HAVE BEEN REFLECTED IN THE ASSESSEES WIFES BALANCE-SHE ET OF THE PROPRIETORSHIP CONCERN. INVITING ATTENTION TO THE PAPER BOOK PAGE NO.2 FILE D BY THE ASSESSEE WHICH IS THE BANK STATEMENT OF THE SAID BANK ACCOUNT, A PERUSAL OF THE SAME IT WAS URGED WOULD SHOW THAT TWICE ON 26.07.2006 AND THEREAFTER ONCE O N 20.12.2006 AND AGAIN ON 23.02.2007 AND 26.02.2007 BY WAY OF CHEQUES WERE MA DE OF RS.25,000/-; RS.25,000/-; RS.15,134/-; RS.40,000/- AND RS.35,000 /- RESPECTIVELY TOTALING UPTO RS.1,40,134/- AND A PERUSAL MADE OF THE PAPER BOOK PAGE NO.32, WHICH IS THE TRADING AND PROFIT & LOSS ACCOUNT AND THE BALANCE-S HEET OF THE ASSESSEE. IT WOULD SHOW THAT ON ACCOUNT OF LIFE INSURANCE POLICY DRAWI NGS HAVE BEEN MADE AT RS.92,488/-. IT WAS A STAND THAT EACH AND EVERY EVI DENCE DEMONSTRATES THAT THIS WAS UNDISCLOSED ACCOUNT OF THE ASSESSEE AND THE REASONS AND FINDINGS IN THE IMPUGNED ORDER HAVE NOT BEEN REBUTTED AND ONLY GENERAL ARGUM ENTS HAVE BEEN ADVANCED STATING THAT THE ASSESSEES WIFE WAS DEPOSITING MON EYS FROM HER PROPRIETORSHIP CONCERN IN THE JOINT BANK ACCOUNT OF THE ASSESSEE. NO EVIDENCE OF THESE IS DEMONSTRATED AS SUCH RELYING UPON THE IMPUGNED ORDE R, IT WAS ARGUED THAT THE FACTS SHOW THAT THIS WAS THE UNDISCLOSED ACCOUNT OF THE A SSESSEE AS SUCH THE GROUND DESERVES TO BE REJECTED. 7. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIALS AVAILABLE ON RECORD, I AM OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, 6 ITA NO.1012/KOL/2012 ARUN KUMAR SAU ASSESSMENT YEAR: 2007-08 THE ARGUMENTS ADVANCED ON BEHALF OF THE ASSESSEE CA NNOT BE ACCEPTED. THE FACT REMAINS THAT THE ENTRIES IN THE BANK ACCOUNT ARE NO T SUPPORTED BY ANY EVIDENCE TO SHOW THAT THESE WERE FUNDS AVAILABLE ON SPECIFIC DA TES WITH THE ASSESSEES WIFES PROPRIETORSHIP FIRM. MERELY BECAUSE THE WIFE IS AN INCOME-TAX ASSESSEE DOES NOT NECESSARILY PROVE THE FACT THAT THESE WERE THE FUND S BELONGING TO HER AS NEITHER IT IS SUPPORTED FROM HER ACCOUNTS NOR IS ANY OTHER EVIDEN CES IN SUPPORT OF THE BALD CLAIM MADE. THE ACCOUNT IS NOT A CURRENT ACCOUNT WH ICH IS THE NECESSITY UNDER LAW FOR AN ACCOUNT IN THE CASE OF A PROPRIETORSHIP FIRM . THE ACCOUNT IS A SAVINGS ACCOUNT WHEREIN THE FIRST NAME IS OF THE ASSESSEE. IN THE LIGHT OF THE ARGUMENTS ADVANCED BY THE PARTIES BEFORE THE BENCH TAKING INT O CONSIDERATION THE EVIDENCE RELIED UPON BY THEM AND CONSIDERED BY THE CIT(A), I AM OF THE VIEW THAT ON A CAREFUL CONSIDERATION OF THE SAME, THE IMPUGNED ORD ER DESERVES TO BE UPHELD ON THIS GROUND. AS SUCH GROUND NOS. 2 AND 3 FILED BY T HE ASSESSEE DESERVE TO BE REJECTED. 8. GROUND NO.1, BEING GENERAL IN NATURE, REQUIRES N O ADJUDICATION. 9. THE FACTS PERTAINING TO GROUND NO.4 ARE FOUND DI SCUSSED AT PAGE 3, PARA 8 OF THE ASSESSMENT ORDER INASMUCH AS RECURRING DEPOSITS ACCOUNT NOS. RD14146 AND RD 13996 IN THE SANTRAGACHI COOPERATIVE BANK WERE U NDISCLOSED ACCOUNTS OF THE ASSESSEE WHICH WERE NEITHER REFLECTED IN THE ACCOUN TS NOR IN HIS BALANCE-SHEET. AS SUCH THE EXPLANATION THAT THESE ARE MAINTAINED FROM PERSONAL DRAWINGS WAS REJECTED AND ADDITION OF RS.38,000/- WAS MADE. IN A PPEAL BEFORE THE FIRST APPELLATE AUTHORITY, THE SAID ACTION WAS CONFIRMED IN PARAS 3 AND 3.1AS APART FROM CONTENDING THAT THESE DEPOSITS WERE MADE FROM DRAWI NGS OF THE FIRM FROM WHICH THE ASSESSEE IS A PARTNER, NO FURTHER DETAILS WAS G IVEN. AGGRIEVED BY THIS, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL, WHEREIN ALSO SIMILAR SUBMISSION WAS MADE. SINCE THE ARGUMENT ADVANCED REMAINS UNSUBSTAN TIATED BY ANY EVIDENCE OR 7 ITA NO.1012/KOL/2012 ARUN KUMAR SAU ASSESSMENT YEAR: 2007-08 MATERIALS AVAILABLE ON RECORD, AFTER HEARING THE LD . D.R., THE SAID ADDITION STANDS CONFIRMED FOR WANT OF EVIDENCE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. THE SAID ORDER WAS PRONOUNCED IN THE OPEN COURT ON 07.08. 2012 IN THE PRESENCE OF THE PARTIES ON THE DATE OF HEARING ITSE LF. SD/- (DIVA SINGH) JUDICIAL MEMBER DATED : 07/ 08/ 2012 COPY OF THE ORDER FORWARDED TO: 1. ARUP KUMAR SAU, DHARSA PANCHANANTALA, P.O. GIP COLONY, HOWRAH 711 112 2 ITO, WARD-48(2), KOLKATA 3. CIT(A)- ,DURGAPUR 4. CIT- , DURGAPUR 5. DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, I.T.A.T., KOLKA TA. TALUKDAR/SR.P.S.