Kamalendu Das, Purba Medinipur V. ITO, WD-2, HALDIA, Kolkata

ITA 1028/KOL/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3147 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 23-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K TRIPATHI
• Assessee Lawyers: SUGATA BHATTACHARYYA
• Keywords: Peak credit
• Section: 143(3); 148

Judgement Text

I.T.A. NO. 1028/KOL./2015 ASSESSMENT YEAR: 2004-2005 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 1028/KOL/ 2015 ASSESSMENT YEAR: 2004-2005 KAMALENDU DAS,..................................... ...............................APPELLANT VILL. KISHORE NAGAR, P.O. CONTAI, DIST. PURBA MEDINIPORE, WEST BENGAL, PIN 721 401 [PAN : AGTPD 2694 L] -VS.- INCOME TAX OFFICER,................................ ...............................RESPONDENT WARD-2, HALDIA, P.O. KHANJANCHAK, DIST. PURBA MEDINIPORE-721 602 APPEARANCES BY: SHRI SUGATA BHATTACHARYYA, ADVOCATE, FOR THE ASSESSEE SHRI K.K. TRIPATHI, JCIT, SR. D.R., FOR THE DEPARTM ENT DATE OF CONCLUDING THE HEARING : JANUARY 27, 2016 DATE OF PRONOUNCING THE ORDER : FEBRUARY 10, 2016 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-7, KOLKATA DAT ED 13.05.2015 FOR THE ASSESSMENT YEAR 2004-05 AND THE SOLITARY ISSUE ARISING OUT OF THE SAME RELATES TO THE ADDITION OF RS.2,00,000/- MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPEALS) TO TH E INCOME OF THE ASSESSEE ON ACCOUNT OF PEAK CREDIT APPEARING IN THE UNDISCLOSED ACCOUNT OF THE ASSESSEE MAINTAINED WITH CONTAI COOPERATIVE BANK LIMITED. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O RIGINALLY ON 25.01.2005 DECLARING TOTAL INCOME OF RS.1,18,886/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE IMMEDIATELY SUCCEEDI NG YEAR, I.E. A.Y. I.T.A. NO. 1028/KOL./2015 ASSESSMENT YEAR: 2004-2005 PAGE 2 OF 5 2005-06, IT WAS FOUND BY THE ASSESSING OFFICER THAT THE ASSESSEE HAD MAINTAINED THE SAVINGS BANK ACCOUNT WITH CONTAI COO PERATIVE BANK LIMITED, WHICH WAS NOT DISCLOSED IN THE FINANCIAL S TATEMENTS FILED ALONG WITH HIS RETURN OF INCOME FOR THE YEAR UNDER CONSID ERATION. HE, THEREFORE, REOPENED THE ASSESSMENT AFTER RECORDING THE REASONS AND ISSUED A NOTICE UNDER SECTION 148 ON 24.03.2008. THERE WAS, HOWEVER , NO RESPONSE TO THE SAID NOTICE RECEIVED FROM THE ASSESSEE AND ONLY AFT ER A COUPLE OF REMINDERS BY THE ASSESSING OFFICER, IT WAS SUBMITTE D BY THE ASSESSEE THAT THE TRANSACTIONS REFLECTED IN HIS BANK ACCOUNT WITH CONTAI COOPERATIVE BANK LIMITED WERE ROLLING OUT OF HIS OWN FUNDS. THI S SUBMISSION OF THE ASSESSEE WAS NOT FOUND SATISFACTORY BY THE ASSESSIN G OFFICER AND HE ADDED PEAK CREDIT OF RS.2,00,000/- OF THE SAID BANK ACCOU NT TO THE TOTAL INCOME OF THE ASSESSEE IN THE ASSESSMENT COMPLETED UNDER S ECTION 143(3)/ 147 VIDE ORDER DATED 19.12.2008. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3) READ WITH SECTION 147, AN APPEAL WAS PREFERR ED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) CHALLENGING THE ADDITIO N OF RS.2,00,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF PEAK CR EDIT APPEARING IN HIS BANK ACCOUNT. THERE WAS, HOWEVER, NO COMPLIANCE TO THE NOTICES ISSUED BY THE LD. CIT(APPEALS) FIXING THE SAID APPEAL OF T HE ASSESSEE FOR HEARING FROM TIME TO TIME. THE LD. CIT(APPEALS), THEREFORE, DISPOSED OF THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 25.0 9.2013 PASSED EX PARTE, WHEREIN HE CONFIRMED THE ADDITION OF RS.2,00,000/- MADE BY THE ASSESSING OFFICER. ON FURTHER APPEAL, THE TRIBUNAL SET ASIDE THE EX PARTE ORDER OF THE LD. CIT(APPEALS) DATED 25.09.2013 AND REMITTED THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSE ESSEE AFRESH ON MERIT AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. AS PER THE DIRECTION OF THE TRIBUNAL, OPP ORTUNITY WAS GIVEN BY THE LD. CIT(APPEALS) TO THE ASSESSEE TO EXPLAIN THE TRANSACTIONS APPEARING IN HIS UNDISCLOSED BANK ACCOUNT WITH CONTAI COOPERA TIVE BANK LIMITED. IN THIS REGARD, IT WAS SUBMITTED BY THE ASSESSEE BEFOR E THE LD. CIT(APPEALS) THAT THE SALE PROCEEDS OF HIS REGULAR BUSINESS OF T RADING IN CASHEW NUTS I.T.A. NO. 1028/KOL./2015 ASSESSMENT YEAR: 2004-2005 PAGE 3 OF 5 WERE DEPOSITED IN THE SAID BANK ACCOUNT AND CERTAIN EXPENDITURE OUT OF THE DEPOSITS SO MADE WAS INCURRED RELATING TO HIS B USINESS. IT WAS ALSO CONTENDED ON BEHALF OF THE ASSESSEE THAT ONLY THE D EPOSITS IN THE SAID ACCOUNT WERE TAKEN INTO CONSIDERATION BY THE ASSESS ING OFFICER AND THE CORRESPONDING WITHDRAWALS AND PAYMENTS APPEARING IN THE DEBIT SIDE WERE COMPLETELY IGNORED BY HIM. THESE SUBMISSIONS M ADE BY THE ASSESSEE WERE NOT FOUND ACCEPTABLE BY THE LD. CIT(APPEALS) A ND HE PROCEEDED TO CONFIRM THE ADDITION OF RS.2,00,000/- MADE BY THE A SSESSING OFFICER FOR THE FOLLOWING REASONS GIVEN IN THE IMPUGNED ORDER:- I HAVE CAREFULLY CONSIDERED THE MATERIAL BEFORE ME . I FOUND THAT THE AO MADE THE ADDITION OF RS.2,00,000/- AS PEAK C REDIT IN THE BANK ACCOUNT NO. S.B. 1895 WITH CONTAI COOPERATIVE BANK LTD., WHICH IS NOT DISCLOSED IN THE BOOKS OF ACCOUNTS. ON GOING THROUGH THE BALANCE SHEET IT IS FOUND THAT THERE IS NOT SHO WN IN THE BANK BALANCE IN THE S.B. A/C. 18954 WITH CONTAI COOPERAT IVE BANK LTD. THE APPELLANT ONLY SHOWN THE BANK BALANCE OF RS.199 0/- WITH COOPERATIVE BANK LTD., CONTAI BRANCH C.D. A/C. NO. 1437. THE A/R OF THE APPELLANT ALSO NOT FILED ANY SUBMISSION AND EXPLANATION ABOUT THE ADDITION MADE BY THE AO OF RS .2,00,000/- AS UNEXPLAINED DEPOSIT IN THE BANK ACCOUNT. I FOUND IT IS VERY REASONABLE THAT THE ASSESSING OFFICER TAKEN PEAK CR EDIT OF THE UNDISCLOSED BANK ACCOUNTS AND MADE THE ADDITION OF RS.2,00,000/-. THE ADDITION OF RS.2,00,000/- IN RES PECT OF UNEXPLAINED DEPOSIT IN BASED ON SOUND REASONING AS THE NATURE AND SOURCE OF THE PEAK OF THE DEPOSITS HAS NOT BEEN EXPLAINED SATISFACTORILY BY THE APPELLANT AT ANY STAGE. HENCE , THE ADDITION OF RS.2,00,000/- AS UNEXPLAINED DEPOSIT IN BANK A/C . IS CONFIRMED. THESE GROUNDS ARE NOT ALLOWED. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AT THE OUTSE T, IT IS OBSERVED THAT THERE IS A DELAY OF TWO DAYS ON THE PART OF THE ASS ESSEE IN FILING THIS APPEAL BEFORE THE TRIBUNAL. IN THIS REGARD, THE ASS ESSEE HAS FILED AN APPLICATION SEEKING CONDONATION OF THE SAID DELAY A ND KEEPING IN VIEW THE REASONS GIVEN THEREIN, I AM SATISFIED THAT THERE WA S A SUFFICIENT CAUSE WHICH RESULTED IN FILING THIS APPEAL BELATEDLY BY T HE ASSESSEE. I, THEREFORE, CONDONE THE SAID DELAY AND PROCEED TO DISPOSE OF TH IS APPEAL ON MERIT. I.T.A. NO. 1028/KOL./2015 ASSESSMENT YEAR: 2004-2005 PAGE 4 OF 5 5. THE ONLY CONTENTION RAISED BY THE ASSESSEE AT TH E TIME OF HEARING BEFORE ME IS THAT ALL THE TRANSACTIONS APPEARING IN THE BANK ACCOUNT WITH CONTAI COOPERATIVE BANK LIMITED WERE DULY REFLECTED IN THE BOOKS OF ACCOUNT REGULARLY MAINTAINED BY THE ASSESSEE AND AL THOUGH THIS STAND WAS CLEARLY TAKEN BY THE ASSESSEE BY FILING ADDITIONAL GROUND OF APPEAL BEFORE THE LD. CIT(APPEALS), THE SAME HAS NOT BEEN CONSIDE RED BY THE LD. CIT(APPEALS). IN REPLY TO A QUERY RAISED BY ME, HE, HOWEVER, ADMITTED THAT THERE WAS NO APPLICATION FILED BY THE ASSESSEE BEFORE THE LD. CIT(APPALS) SEEKING ADMISSION OF THE SAID ADDITIONA L GROUND. HE HAS ALSO FAILED TO EXPLAIN AS TO WHAT PREVENTED THE ASSESSEE TO TAKE THIS STAND BEFORE THE ASSESSING OFFICER DURING THE COURSE OF A SSESSMENT PROCEEDINGS WHEN THE TRANSACTIONS APPEARING IN THE RELEVANT BAN K ACCOUNT WERE ACTUALLY REFLECTED IN THE BOOKS OF ACCOUNT REGULARL Y MAINTAINED BY THE ASSESSEE AS CLAIMED NOW. HE HAS ALSO NOT BEEN ABLE TO OFFER ANY EXPLANATION IN REPLY TO A QUERY THAT WHEN ALL THE T RANSACTIONS IN THE RELEVANT BANK ACCOUNT WERE RECORDED IN THE BOOKS OF ACCOUNT REGULARLY MAINTAINED BY THE ASSESSEE AS CLAIMED BY HIM, HOW T HE CLOSING BALANCE OF THE SAID ACCOUNT WAS NOT REFLECTED IN THE FINANCIAL STATEMENTS FILED BY THE ASSESSEE ALONG WITH HIS RETURN OF INCOME. HE HAS ME RELY STATED THAT THE CASE OF THE ASSESSEE WAS NOT PROPERLY REPRESENTED E ITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE LD. CIT(APPEALS) AN D ONE MORE OPPORTUNITY MAY, THEREFORE, BE GIVEN TO THE ASSESSE E BY SENDING THE MATTER BACK TO THE LD. CIT(APPEALS) FOR FRESH CONSI DERATION. AFTER TAKING INTO CONSIDERATION ALL THE RELEVANT FACTS OF THE CA SE WHICH CLEARLY SHOW THE CASUAL AND NEGLIGENT APPROACH OF THE ASSESSEE, I AM UNABLE TO ACCEPT THIS CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE . IN MY OPINION, THE ASSESSEE HAS ALREADY BEEN GIVEN SUFFICIENT OPPORTUN ITY TO EXPLAIN THE TRANSACTIONS APPEARING IN HIS UNDISCLOSED BANK ACCO UNT MAINTAINED WITH CONTAI COOPERATIVE BANK LIMITED AND SINCE HE HAS FA ILED TO AVAIL THIS OPPORTUNITY AND HAS ALSO FAILED TO OFFER ANY SATISF ACTORY EXPLANATION IN THIS REGARD, I AM OF THE VIEW THAT THERE IS NO JUST IFIABLE REASON TO INTERFERE WITH THE IMPUGNED ORDER OF THE LD. CIT(AP PEALS) CONFIRMING THE I.T.A. NO. 1028/KOL./2015 ASSESSMENT YEAR: 2004-2005 PAGE 5 OF 5 ADDITION OF RS.2,00,000/- MADE BY THE ASSESSING OFF ICER ON ACCOUNT OF PEAK CREDIT APPEARING IN THE UNDISCLOSED BANK ACCOU NT OF THE ASSESSEE. I, THEREFORE, UPHOLD THE IMPUGNED ORDER OF THE LD. CIT (APPEALS) ON THIS ISSUE AND DISMISS THE APPEAL FILED BY THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 10, 2016. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 10 TH DAY OF FEBRUARY, 2016 COPIES TO : (1) SHRI KAMALENDU DAS, VILL. KISHORE NAGAR, P.O. CONTAI, DIST. PURBA MEDINIPORE, WEST BENGAL, PIN 721 401 (2) INCOME TAX OFFICER, WARD-2, HALDIA, P.O. KHANJANCHAK, DIST. PURBA MEDINIPORE-721 602 (3) COMMISSIONER OF INCOME-TAX (APPEALS)-7, KOLKATA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.