Shri Janak Parshotambhai Pancholi, Surat V. The Income tax Officer,Ward-7(3), Surat

ITA 1134/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94692 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 04-11-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 25-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: K N BHATT
• Keywords: Peak credit
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO: 1134/AHD/2012 (ASSESSMENT YEAR: 2008-09) SHRI JANAK PARSHOTTAMBHAI PANCHOLI, 28, NAYANDEEP SOCIETY NO. 1, B/H NAVYUG COLLEGE, RANDER ROAD, SURAT V/S INCOME TAX OFFICER, WARD- 7 (3), SURAT (APPELLANT) (RESPONDENT) PAN: ACFPP4376F APPELLANT BY : SHRI K.N. BHATT, AR RESPONDENT BY : SHRI DINESH SINGH, SR. D.R. ( )/ ORDER DATE OF HEARING : 04-11-2015 DATE OF PRONOUNCEMENT : 17 -11-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-I, SURAT DATED 30.04.2012 FOR A.Y. 2008-09. ITA NO 1134 /AHD/2012 . A.Y. 2008-09 2 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL STATED TO BE DERIVING INC OME FOR SALARY AND INTEREST. ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 2008-0 9 ON 12.02.2009 DECLARING TOTAL INCOME OF RS. 4,05,050/- AND AGRICU LTURE INCOME OF RS. 3,03,262/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) VIDE ORDER DATED 15 .12.2010 AND THE TOTAL INCOME WAS DETERMINED AT RS. 7,99,150/-. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO V IDE ORDER DATED 30.04.2012 GRANTED PARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFO RE US AND HAS RAISED THE FOLLOWING GROUNDS:- 1. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) OUGHT TO HAVE HELD THAT THE LD. A.O HAS ERRED IN LAW IN ADDING THE SUM OF RS. 2,38,000/- U/S. 68 AND HENCE, YOU APPELLANT MOST HUMBLY PRAYS THAT THE SAM E BE DELETED. 2. SUCH OTHER RELIEF(S)TO WHICH THE APPELLANT MAY BE L AWFULLY ENTITLED TO. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ON PERUSING THE BANK ACCOUNT, A.O NOTICED THAT ASSESSEE HAD DEPOSITED CA SH OF RS. 1,47,000/- IN CENTRAL BANK OF INDIA ACCOUNT NO. 47484 AND RS. 3,1 1,903/- IN ACCOUNT NO. 1355639717 ALSO MAINTAINED WITH CENTRAL BANK OF IN DIA, THE DETAILS OF WHICH ARE LISTED AT PAGE 4 & 5 OF THE ASSESSMENT OR DER. THE EXPLANATION OF THE ASSESSEE OF ITS SOURCE WAS THAT IT REPRESENTED AMOUNT RECEIVED AS SALARY AND PAST SAVINGS AND THE AMOUNT ALSO INCLUDED TRANS FER OF MONEY FROM ONE BANK ACCOUNT TO THE OTHER. THE SUBMISSION OF THE AS SESSEE WAS NOT FOUND ACCEPTABLE TO THE A.O AND HE THEREFORE CONSIDERED T HE NET CASH RECEIPTS OF RS. 2,79,097/- AS UNDISCLOSED INCOME OF THE ASSESSE E. AGGRIEVED BY THE ITA NO 1134 /AHD/2012 . A.Y. 2008-09 3 ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE L D. CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE GRANTED PARTIAL TO THE ASSESSEE BY HOLDING AS UNDER:- 8. THE ASSESSING OFFICER HAS STATED THAT TH ERE WAS CASH DEPOSITS IN TWO BANK ACCOUNTS OF THE APPELLANT. THE DETAILS OF WHICH ARE AS UNDER :- 1. CENTRAL BANK OF INDIA ACCOUNT NO. 47484 13.04.2007 20000 22.06.2007 10000 22.06.2007 5000 03.07.2007 10000 12.7.2007 42000 7.2.2008 20000 25.2.2008 10000 10.3.2008 20000 26.3.2008 20000 TOTAL 1,47,000 2 CENTRAL BANK OF INDIA ACCOUNT NO. 1355639717 13.04.2007 60000 23.4.2010 50000 06.02.2008 23,000 TOTAL 1,33,000 ITA NO 1134 /AHD/2012 . A.Y. 2008-09 4 THE CORRECT TOTAL COMES TO RS 2,80,000 AND NOT RS. 2,79, 097/- ADDED BY THE ASSESSING OFFICER. THEREFORE, FOR THE PURPOSE OF APPELLANT PR OCEEDINGS THE AMOUNT OF CASH DEPOSITS IS TAKEN AT RS. 2, 80,000/-. 8.1 OUT OF THESE CASH DEPOSITS OF RS 2, 80,000/- ON E DEPOSIT AMOUNTING TO RS 42, 000/- IN ACCOUNT NUMBER 47484 IS CLAIMED TO BE A CHEQUE DEPO SIT AND NOT CASH DEPOSIT. AS PER THE APPELLANT, THIS DEPOSIT WAS MADE ON 07. 12. 2007 WH EREAS THE ASSESSING OFFICE IN THE ASSESSMENT ORDER HAS MENTIONED THE DATE OF DEPOSIT AS 12.07.2007. IT IS TRUE THAT THE DEPOSIT OF RS 42,000 DURING DECEMBER 2007 IS NOT A CASH DEPOSIT. HOWEVER, THE BANK ACCOUNT OF JULY 2007 WAS NOT FILED BY THE APPELLANT , DURING THE APPELLATE PROCEEDING. THEREFORE, THE ASSESSING OFFICER SHOULD VERIFY WHET HER THE DATE OF DEPOSIT IS 12.7.2007 OR 07.12.2007 WHICH IS WRONGLY TYPED OUT AS 12.7.2007. IF THERE IS NO CASH DEPOSIT OF RS 42,000/-ON 12.7.2007, THE ADDITION TO THE EXTENT OF RS 42, 000 SHALL STAND DELETED OTHERWISE IT SHALL STAND CONFIRMED. 8.2 AS REGARDS REMAINING CASH DEPOSIT OF RS 2,38,00 0, THE APPELLANT SUBMITTED THAT HE IS A SALARIED EMPLOYEE AND RECEIVES SALARY EVERY MONTH IN CASH. FURTHER THE APPELLANT EXPLAINED THAT THE CASH DEPOSITS WERE OUT OF' CASH ON HAND AND SALARY RECEIVED IN CASH. HOWEVER, THE APPELLANT ACCEPTED THAT HE DOES NOT MA INTAIN REGULAR CASH BOOK FOR THE REASON THAT HE IS A SALARIED EMPLOYEE , AND HE IS N OT REQUIRED MAINTAIN THE SAME. THE APPELLANT HAS FILED CASH SUMMARY WHICH IS REPRODUCE D HEREIN UNDER:- DATE PARTICULARS RECEIPT PAYMENT BALANCE OPENING BALANCE 303095 303095 13.04.2007 CASH DEPOSITED IN CENTRAL BANK OF INDIA 47484 20000 283095 13.4.2007 CASH DEPOSITED IN CENTRAL BANK OF INDIA 1355639717 60000 223095 23.4.2007 CASH DEPOSITED IN CENTRAL BANK OF INDIA 1355639717 50000 173095 30.4.2007 SALARY FOR THE MONTH OF APRIL 2007 17820 190915 30.4.2007 WITHDRAWAL 18000 172915 ITA NO 1134 /AHD/2012 . A.Y. 2008-09 5 11.5.2007 CASH WITHDRAWAL FROM CENTRAL BANK OF INDIA 47484 10000 182915 18.5.2007 CASH WITHDRAWALS FROM CENTRAL BANK OF INDIA 47484 25,000 207915 26.5.2007 CASH WITHDRAWALS FROM CENTRAL BANK OF INDIA 47484 5000 5,000 212915 31.5.2007 SALARY FOR THE MONTH OF MAY 2007 17820 230735 31,5.2007 WITHDRAWAL 18000 212735 12.6.2007 CASH WITHDRAWAL FROM CENTRAL BANK OF INDIA 47484 10,000 10000 222735 22.6.2007 CASH WITHDRAWAL FROM CENTRAL BANK OF INDIA 47484 10000 212735 22.6.2007 CASH DEPOSITED IN CENTRAL BANK OF INDIA 1355639717 5000 207735 30.6.2007 SALARY FOR THE MONTH OF JUNE 2007 17820 225555 30.6.2007 WITHDRAWAL 19000 206555 03.07.2007 CASH DEPOSITED IN CENTRAL BANK OF INDIA 1355639717 10000 196555 20.7.2007 CASH WITHDRAWAL FROM CENTRAL BANK OF INDIA 135639717 28000 224555 25.7.2007 CASH WITHDRAWAL FROM CENTRAL BANK OF INDIA 20000 244555 25.07.2007 CASH WITHDRAWAL FROM CENTRAL BANK OF INDIA 47484 15000 15000 259555 31.07.2007 SALARY FOR THE MONTH OF JULY 2007 17820 277375 31.7.2007 WITHDRAWAL 18000 259375 20.8.2007 CASH WITHDRWAL FROM CENTRAL BANK OF INDIA 47484 10000 269375 24.8.2007 CASH WITHDRAWAL FROM CENTRAL BANK OF INDIA 47484 10000 10000 279375 31.8.2007 SALARY FOR THE MONTH OF AUGUST 2007 17820 17820 297195 31.8.2007 WITHDRAWAL 18000 279195 11.9.2007 CASH WITHDRAWAL FROM CENTRAL BANK OF INDIA 47484 10,000 10000 289195 ITA NO 1134 /AHD/2012 . A.Y. 2008-09 6 17.9.2007 CASH WITHDRAWAL FROM CENTRAL BANK OF INDIA 47484 20000 20000 309195 29.9.2007 WITHDRAWAL 19000 290195 30.9.2007 SALARY FOR THE MONTH OF SEPTEMBER 2007 17820 308015 18.10.2007 CASH WITHDRAWAL FROM CENTRAL BANK OF INDIA 47484 15000 15000 323015 31.10.2007 SALARY FOR THE MONTH OF OCTOBER 2007 17820 340835 31.10.2007 WITHDRAWAL 18000 322835 07.11.2007 CASH WITHDRAWAL FROM CENTAL BANK OF INDIA 47484 2000 2000 324835 21.11.2007 CASH WITHDRAWAL FROM CENTRAL BANK OF INDIA 47484 25000 25000 349835 30.11.2007 SALARY FOR THE MONTH OF NOVEMBER 2007 17820 367655 30.11.2007 WITHDRAWAL 18000 349655 07.12.2007 CASH WITHDRAWAL FROM CENTRAL BANK OF INDIA 47484 40000 40000 389655 19.12.2007 CASH WITHDRAWAL FROM CENTRAL BANK OF INDIA 47484 40000 40000 429655 24.12.2007 CASH WITHDRAWAL FROMCENTRAL BANK OF INDIA 47484 35000 35000 464655 31.12.2007 SALARY FOR THE MONTH OF DECEMBER 2007 17820 482475 31.12.2007 WITHDRAWAL 19000 463475 23.01.2008 CASH WITHDRAWAL FROM CENTRAL BANK OF INDIA 1355639171 23000 23000 486475 31.01.2008 SALARY FOR THE MONTH OF JANUARY 2008 17820 504295 31.01.2008 WITHDRAWAL 18000 486295 06.02.2008 CASH DEPOSITED IN CENTRAL BANK OF INDIA 135563 9717 23000 463295 ITA NO 1134 /AHD/2012 . A.Y. 2008-09 7 07.02.2008 CASH DEPOSITED IN CENTRAL BANK OF INDIA 47484 20000 443295 25.2.2008 CASH DEPOSITED IN CENTRA! BANK OF INDIA 47484 10000 433295 29.2.2008 SALARY FOR THE MONTH OF FEB 2008 17820 451115 29.2.2008 WITHDRAWAL 18000 433115 10.3.2008 CASH DEPOSITED IN CENTRAL BANK OF INDIA 47484 20000 413115 31.03.2008 SALARY FOR THE MONTH OF MARCH 2008 17001 430116 31.03.2008 WITHDRAWAL 19000 411116 TOTAL 859116 448000 8.3 FROM A PERUSAL OF THE ABOVE CHART, IT IS NOTICE D THAT ONE CASH DEPOSIT AMOUNTING TO RS 23,000/- IS MADE ON 06.02.2008 IS NOT REFLECTED IN THE ABOVE CASH SUMMARY. MOREOVER, THE SUMMARY STARTS WITH OPENING CASH BALANCE OF RS 3,03,995/-FOR WHICH THERE IS NO EVIDENCE ON RECORD. THE APPELLANT CLAIMS TO HAVE RE CEIVED SALARY OF RS 17,820/- P.M. AND HAS SHOWN WITHDRAWALS FOR HOUSEHOLD EXPENSES RANGIN G FROM RS 18,000 TO RS 19,000/- PER MONTH. IT DEFIES LOGIC THAT SUCH A PERSON WILL KEEP A CASH OF RS 3,03,095/- AT HOME WHEN HE IS HAVING BANK ACCOUNTS. THE AMOUNT OF CASH CLAIMED TO BE KEPT AT HOME IN SUBSEQUENT MONTHS IS ALSO UNREASONABLY- HIGH AS COM PARED TO THE SALARY PER MONTH AND RETURNED INCOME OF THE APPELLANT. THE OPENING CASH BALANCE IS ALSO DISPROPORTIONATELY HIGH CONSIDERING THE RETURNED INCOME OF RS 4, 05,00 0/- AND MONTHLY HOUSEHOLD EXPENSES CLAIMED AT RS. 18,000 PER MONTH. MOREOVER, THE WITH DRAWALS CLAIMED TO HAVE BEEN USED FOR .DEPOSITS HAVE BEEN MADE ON A REGULAR PATTERN T HROUGHOUT THE YEAR, WHICH SHOWS THAT THE WITHDRAWALS HAVE BEEN MADE FOR A SPECIFIC PURPOSE AND THE BENEFIT OF CIRC ULATION OF FUNDS CANNOT GIVEN IN THIS CASE. BY TAKING INTO CONSIDERATION OF THESE FACTS, THE AD DITION OF RS 2,38,000/- MADE BY THE ASSESSING OFFICER IS C ONFIRMED 5. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASS ESSEE IS NOW IN APPEAL BEFORE US. ITA NO 1134 /AHD/2012 . A.Y. 2008-09 8 6. BEFORE US, LD. A.R. REITERATED THE SUBMISSIONS MADE BEFORE A.O AND LD. CIT(A) AND FURTHER SUBMITTED THAT THE CASH DEPOSITS WERE OUT OF OPENING CASH BALANCE AND THEREFORE NO ADDITION COULD BE MAD E. IN THE ALTERNATE, HE SUBMITTED THAT ONLY THE PEAK CREDIT BE CONSIDERED A S INCOME INSTEAD OF THE ENTIRE CASH RECEIPTS. LD. D.R ON THE OTHER HAND SUP PORTED THE ORDER OF A.O AND LD. CIT(A) AND FURTHER SUBMITTED THAT ASSESSEE BEING A SALARIED EMPLOYEE, THE PEAK THEORY COULD NOT BE APPLIED IN T HE CASE OF ASSESSEE AND FURTHER SINCE ASSESSEE HAS FAILED TO EXPLAIN THE SO URCE OF CASH DEPOSITS, ADDITION HAS RIGHTLY BEEN MADE BY THE A.O AND UPHEL D BY LD. CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO ADDITI ON OF CASH DEPOSITS IN THE BANK ACCOUNT. WE FIND THAT LD. CIT(A) AFTER CONSIDE RING THE SUMMARY OF THE CASH RECEIPT HAS NOTED THAT THE SUMMARY STARTS WITH OPENING CASH BALANCE OF RS. 3,03,095/- ON 1 ST APRIL, 2007 FOR WHICH NO EVIDENCE OF IT HAS BEEN P LACED ON RECORD BY THE ASSESSEE AND THE CLAIM OF HAVING T HE OPENING CASH BALANCE IS ALSO NOT FOUND ACCEPTABLE IN VIEW OF THE FACT TH AT ASSESSEE IS NOT MAINTAINING REGULAR CASH BOOK, STATED TO HAVE RECEI VED SALARY OF RS. 17,820/- PER MONTH AND HAD SHOWN WITHDRAWALS OF RS. 18,000 TO RS. 19,000 PER MONTH FOR HOUSEHOLD EXPENSES AND THAT THE OPENING C ASH BALANCE WAS DISPROPORTIONATELY HIGH CONSIDERING THE RETURNED IN COME AND THE MONTHLY HOUSEHOLD EXPENSES. BEFORE US, ASSESSEE HAS ALSO NO T PLACED ANY MATERIAL ON RECORD TO CONTROVERT THE FINDINGS OF LD. CIT(A) OR POINTED ANY FALLACY IN HIS FINDINGS. IN VIEW OF THESE FACTS, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) AND THUS THE GROUND OF ASSESSEE IS DI SMISSED. ITA NO 1134 /AHD/2012 . A.Y. 2008-09 9 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 17 - 11 - 2015. SD/- SD/- (RAJPAL YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AH MEDABAD