Sri. K. Rajeev, Bangalore V. ITO, Bangalore

ITA 1165/BANG/2012

• Counselvise Citation: 116521114 RSA 2012
• Duration Of Justice: 2 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-08-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 11-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L V BHASKAR REDDY
• Keywords: Business income; Opportunity of being heard; Peak credit
• Section: 234B; 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI JASON P BOAZ, ACCOUNTANT MEMBER I.T.A. NO. 1165 /BANG/201 2 (ASSESSMENT YEAR : 200 6 - 07 ) SHRI K. RAJEEV, NO.3345, 5 TH CROSS, GAYATHRINAGAR, BA NGALORE - 560 010 PAN ACQPR 2500L VS. THE INCOME TAX OFFICER, WARD 9(2), BANGALORE. APPELLANT RESPONDENT. APPELLANT BY : SHRI TATA KRISHNA, ADVOCATE. RESPONDENT BY : SHRI L.V. BHASKAR REDDY, JCIT (D.R.) DATE OF H EARING : 05.08 . 2 01 4 . DATE OF P RON OUNCEMENT : 19.09 . 201 4 . O R D E R PER SHRI JASON P. BOAZ, A.M. : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - V, BANGALORE DT.31.07.2012 FOR ASSESSMENT YEAR 2006 - 07. 2. THE FACTS OF THE CASE, BRIEFLY, ARE AS UNDER : - 2.1 THE ASSESSEE FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2006 - 07 ON 29.11.2006 DECLARING TOTAL INCOME OF RS.97,877. THE CASE WAS SELECTED FOR SCRUTINY BY ISSUE OF NOTICE UNDER SECTION 143(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT' ) ON 6.7.2007 WHICH WAS SERVED ON THE ASSESSEE ON 23.7.2007. THERE WAS NO RESPONSE THER ETO FORM THE ASSESSEE AND ALSO IN RESPECT OF SUBSEQUENT NOTICES ISSUED UNDER SECTION 143(2) OF THE ACT ON 26.5.2008 AND 28.8.2008. THE ASSESSING OFFICER THEN ISSUED SHOW CAUSE LETTER DT.24.11.2008 TO THE ASSESSEE, PROPOSING TO COMPLETE THE ASSESSMENT EX - PARTE UNDER SECTION 144 OF THE ACT BASED ON THE MATERIAL AVAILABLE ON RECORD. THE ASSESSMENT WAS FINALLY COMPLETED EX - PARTE UNDER SECTION 144 OF THE ACT VIDE ORDER 2 ITA NO. 1165 /BANG/ 20 1 2 DT.29.12.2008 WHEREIN THE INCOME OF THE ASSESSEE WAS DETERMINED AT RS.33,20,846 AS AGAINST RETURNED INCOME OF RS.97,877. THIS WAS IN VIEW OF THE ASSESSING OFFICER TREATING THE ASSESSEE'S INVESTMENT OF RS.32,22,969 IN THE PURCHASE OF A SITE IN THE PERIOD UNDER CONSIDERATION AT SITE NO.106, BIMA JYOTHI, HBCS LAYOUT, LIC COLONY, WEST OF CHORD ROA D, BASAVESHWARA NAGAR, BANGALORE (BASAVESHWAR NAGAR SITE) AS UNDISCLOSED, SINCE NEITHER DETAILS PERTAINING TO THE SAME WERE DECLARED IN THE RETURN OF INCOME FOR ASSESSMENT YEAR 2006 - 07 NOR HAD THE ASSESSEE SUBMITTED ANY STATEMENT OF AFFAIRS OR MATERIAL EVI DENCE TO EXPLAIN THE SOURCES OF INVESTMENT THEREIN. 2.2 AGGRIEVED BY THE ORDER OF ASSESSMENT FOR ASSESSMENT YEAR 2006 - 07, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(APPEALS) V, BANGALORE. THE LEARNED CIT (APPEALS) BY ORDER DT.31.7.2012 DISMISS ED THE ASSESSEE'S APPEAL AND ALSO THEREIN ENHANCED THE ASSESSEE'S INCOME FROM RS.33,20,846 AS DETERMINED BY THE ASSESSING OFFICER TO RS.56,66,869. 3. AGGRIEVED BY THE ORDER OF THE CIT(APPEALS) V, BANGALORE DT.31.7.2012 FOR ASSESSMENT YEAR 2006 - 07, TH E ASSESSEE IS IN APPEAL BEFORE US, RAISING THE FOLLOWING GROUNDS : - 1. THE ORDER OF THE LEARNED CIT (APPEALS) IS NOT JUSTIFIED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT (APPEALS) IS NOT JUSTIFIED IN REPLACING THE ADDITIO N TOWARDS UNDISCLOSED INVESTMENT BY UNDISCLOSED INCOME, UNDER SECTION 251(1) THE APPELLATE AUTHORITY DOES NOT HAVE JURISDICTION TO ENHANCE THE ASSESSMENT UPON DISCOVERING THE NEW SOURCE OF INCOME WHICH WAS NOT CONSIDERED BY THE LEARNED ASSESSING OFFICER A T THE TIME OF ASSESSMENT PROCEEDINGS. 3. THE LEARNED CIT (APPEALS) IS NOT JUSTIFIED MAKING THE ADDITION OF RS.55,68,509 AS UNDISCLOSED INCOME. 4. THE LEARNED CIT (APPEALS) IS NOT JUSTIFIED IN MAKING THE ADDITION OF RS.55,68,509 AS CONDITIONS LAID I N SECTION 68 DO NOT EXIST IN THE INSTANT CASE. THE LEARNED CIT (APPEALS) HAS FAILED TO NOTE THAT THE AFORESAID AMOUNT WAS NOT CREDITED IN THE BOOKS OF ACCOUNT OF THE APPELLANT WHICH IS A CONDITION PRECEDENT FOR INVOKING SECTION 68 OF THE INCOME TAX ACT, 19 61. 5. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT (APPEALS) IS NOT JUSTIFIED IN ADDING THE WHOLE OF CASH DEPOSITED IN BANK ACCOUNTS OF THE APPELLANT AS UNDISCLOSED CASH UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 WITHOUT APPLYING THE PRINCIPLE OF PEAK CREDIT. 3 ITA NO. 1165 /BANG/ 20 1 2 6. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT (APPEALS) HAS FAILED TO APPRECIATE THAT THE SAID CASH DEPOSITS REPRESENT THE SALE PROCEEDS OF THE RETAIL BUSINESS OF BAR AND RESTAURANT OF THE APPELLANT AND A RETAIL LIQUOR DEALER CAN MAK E A GROSS MARGIN OF 10% ON MRP PRINTED ON LIQUOR AS SET BY THE STATE EXCISE RULES. 7. THE LEARNED CIT (APPEALS) IS NOT JUSTIFIED IN LEVYING INTEREST UNDER SECTION 234B OF INCOME TAX ACT, 1961 WHEN THE IMPUGNED ADDITION IS NOT TENABLE. 4. THE GRO UND AT S.NO.1 IS GENERAL IN NATURE AND THEREFORE NO ADJUDICATION IS CALLED FOR THEREON. 5. GROUND AT S.NO.2 : IN THE COURSE OF PROCEEDINGS BEFORE US, THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS NOT PRESSING TH IS GROUND WHICH CHALLENGED THE JURISDICTION OF THE LEARNED CIT (APPEALS) TO ENHANCE THE ASSESSED INCOME UNDER SECTION 251(2) OF THE ACT IN RESPECT OF A NEW SOURCE OF INCOME WHICH WAS NOT CONSIDERED BY THE ASSESSING OFFICER AT THE TIME OF ASSESSMENT PROCEED INGS. IN VIEW OF THIS GROUND NOT BEING PRESSED BY THE ASSESSEE, IT IS RENDERED INFRUCTUOUS AND IS DISMISSED AS NOT PRESSED. 6. IN THE GROUND RAISED AT S.NO.7 , THE ASSESSEE CHALLENGES THE ACTION OF THE AUTHORITIES BELOW IN CHARGING HIM AND UPHOLDING TH E CHARGE OF INTEREST UNDER SECTION 234B OF THE ACT. THE CHARGING OF INTEREST IS MANDATORY AND CONSEQUENTIAL IN NATURE AND THE ASSESSING OFFICER HAS NO DISCRETION IN THE MATTER, AS HELD BY THE HON'BLE APEX COURT IN THE CASE OF ANJUM GHASWALA & OTHERS 25 2 ITR 1 (SC). WE, THEREFORE UPHOLD THE ACTION OF THE ASSESSING OFFICER IN CHARGING THE ASSESSEE INTEREST UNDER SECTION 234B OF THE ACT. THE ASSESSING OFFICER IS, HOWEVER, DIRECTED TO RECOMPUTE THE INTEREST CHARGEABLE UNDER SECTION 234B OF THE ACT, IF ANY , WHILE GIVING EFFECT TO THIS ORDER. 7.1 THE GROUNDS AT S.NOS.3 & 4 CHALLENGE THE ORDER OF THE LEARNED CIT (APPEALS) HOLDING RS.55,68,509 TO BE UNDISCLOSED INCOME , AS NOT JUSTIFIED, SINCE THE CONDITIONS PRECEDENT FOR INVOKING SECTION 68 OF THE ACT DO NOT EXIST IN THE CASE ON HAND AS THE AFORESAID AMOUNT WAS NOT CREDITED IN THE ASSESSEE'S BOOKS OF ACCOUNT. 7.2 IN THE GROUNDS AT S.NOS.5 & 6 , THE ASSESSEE ALTERNATIVELY CONTENDS THAT, WITHOUT PREJUDICE TO GROUNDS RAISED AT S.NOS.3 & 4, THE CIT(APPEA LS) OUGHT NOT TO HAVE ADDED THE ENTIRE DEPOSITS OF RS.55,68,509 IN THE BANK ACCOUNTS AS UNDISCLOSED CASH UNDER SECTION 68 4 ITA NO. 1165 /BANG/ 20 1 2 OF THE ACT, BUT RATHER OUGHT TO HAVE BROUGHT TO TAX THE PEAK CREDITS IN THE ASSESSEE'S HANDS. THE ASSESSEE FURTHER CONTENDS THAT THE LEARNED CIT (APPEALS) FAILED TO APPRECIATE THAT THE AFORESAID CASH DEPOSITS REPRESENTED THE SALE PROCEEDS OF THE ASSESSEE'S RETAIL BUSINESS OF BAR AND RESTAURANT AND THAT THEREFORE THE GROSS PROFIT MARGIN OUGHT TO BE TAKEN AT 10% OF SALES. 7.3 .1 THE L EARNED AUTHORISED REPRESENTATIVE WAS HEARD AT LENGTH IN SUPPORT OF THE GROUNDS RAISED AND ALSO MADE WRITTEN SUBMISSIONS TO THIS EFFECT. BEFORE US, IT WAS CONTENDED THAT IN ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2006 - 07, THE ASSESSING OFFICER IN THE S HOW CAUSE NOTICE DT.24.11.2008 HAD PROPOSED TO COMPLETE THE ASSESSMENT EX - PARTE UNDER SECTION 144 OF THE ACT AND TO ASSESS, IN THE ASSESSEE'S HANDS, THE ENTIRE CASH CREDITS AMOUNTING TO RS.32,22,969 IN THE ASSESSEE'S SAVINGS BANK ACCOUNT. THE LEARNED AUTH ORISED REPRESENTATIVE SUBMITTED THAT, HOWEVER, WHILE COMPLETING THE ASSESSMENT EX - PARTE UNDER SECTION 144 OF THE ACT, THE ASSESSING OFFICER INSTEAD OF CONSIDERING THE CASH CREDIT S IN THE BANK, ASSESSED THIS AMOUNT AS THE ASSESSEE'S UNDISCLOSED INVESTMENT I N THE PURCHASE OF PROPERTY AT BASAVESHWAR NAGAR SITE. THIS FINDING, THE LEARNED AUTHORISED REPRESENTATIVE POINTED OUT, WAS FACTUALLY INCORRECT AS WAS ESTABLISHED BEFORE THE LEARNED CIT (APPEALS) IN APPELLATE PROCEEDINGS AND WAS NOT CONTROVERTED BY THE ASS ESSING OFFICER IN REMAND PROCEEDINGS. 7.3.2 THE LEARNED AUTHORISED REPRESENTATIVE SUBMITS THAT IN THE COURSE OF REMAND PROCEEDINGS, ENQUIRIES BY THE ASSESSING OFFICER LED TO THE D ETEC TION OF TWO UNDISCLOSED SAVINGS BANK ACCOUNTS OPERATED BY THE ASSESSE E IN HDFC BANK IN WHICH DEPOSITS TO THE EXTENT OF RS.55,68,809 WERE FOUND TO HAVE BEEN MADE IN THE PERIOD UNDER CONSIDERATION. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT, IN RESPONSE TO THE LEARNED CIT (APPEALS) S NOTICE FOR ENHANCEMENT OF INCO ME ISSUED UNDER SECTION 251(2) OF THE ACT PROPOSING TO ADD THIS AMOUNT TO THE ASSESSEE'S INCOME, THE ASSESSEE HAD EXPLAINED TO THE LEARNED CIT (APPEALS) THAT IN THE PERIOD UNDER CONSIDERATION, HE WAS RUNNING A BAR AND RESTAURANT AND THAT THE CASH DEPOSITS IN THESE HDFC BANK ACCOUNTS REPRESENTED DAY - TO - DAY SALE PROCEEDS OF THIS BUSINESS . IT IS SUBMITTED THAT COPY OF TRADING AND PROFIT AND LOSS ACCOUNT FOR THE RELEVANT PERIOD WAS ALSO DRAWN UP AND FURNISHED BEFORE THE LEARNED 5 ITA NO. 1165 /BANG/ 20 1 2 CIT (APPEALS), BUT THE LEARNED CIT (APPEALS) BRUSHED ASIDE THE EXPLANATIONS PUT FORTH BY THE ASSESSEE WITHOUT ASSIGNING ANY REASONS AS TO WHY HE WAS REJECTING THE SAME AND PROCEEDED TO BRING THE ENTIRE AMOUNT OF CASH CREDITS IN THE 2 HDFC BANK ACCOUNTS , AMOUNTING TO RS.55,68,809 , TO TA X IN THE ASSESSEE'S HANDS. IT WAS STRONGLY CONTENDED BY THE LEARNED AUTHORISED REPRESENTATIVE THAT THIS CONCLUSION OF THE LEARNED CIT (APPEALS) WAS UTTERLY ERRONEOUS, FACTUALLY UNSUSTAINABLE AND BASED ONLY ON SUSPICION, SURMISES AND CONJECTURES. THE LEAR NED AUTHORISED REPRESENTATIVE SUBMITS THAT WHILE THERE IS NO DISPUTING THE FACT THAT THESE TWO SAVINGS BANK ACCOUNTS OF THE ASSESSEE WITH HDFC BANK WERE NOT DISCLOSED BY THE ASSESSEE TO THE DEPARTMENT AND WERE DETECTED BY THE ASSESSING OFFICER IN REMAND PR OCEEDINGS, THE LEARNED CIT (APPEALS) S CONCLUSION TO TAX THE ENTIRE CASH DEPOSITS THEREIN IN THE ASSESSEE'S HANDS, WITHOUT CONSIDERING AND ADJUDICATING ON THE ASSESSEE'S EXPLANATION THAT THEY PERTAINED TO THE ASSESSEE'S BAR AND RESTAURANT BUSINESS, AND THE NON - EXAMINATION OF THE DEBITS THEREIN , CLEARLY POINT TO NON - APPLICATION OF MIND RESULTING IN THE PASSING OF A NON - SPEAKING ORDER , WHICH IS UNSUSTAINABLE ON FACTS. IT IS PLEADED BY THE LEARNED AUTHORISED REPRESENTATIVE THAT IF AT ALL, WHAT IS TAXABLE IN THE ASSESSEE'S HANDS FROM OUT OF THE CASH DEPOSITS IN THE ASSESSEE'S TWO HDFC BANK ACCOUNTS, WAS THE PROFIT OF HIS BU SINESS OF RUNNING A BAR AND RESTAURANT IN THE PERIOD UNDER CONSIDERATION. ALTERNATIVELY, IT WAS PLEADED THAT THE AFORESAID BANK ACCOUNTS ALSO HAD OUTG OINGS / DEBITS APART FROM THE CREDITS AMOUNTING TO RS.55,68,809 AND THEREFORE IT WAS INEQUITABLE THAT ONLY THE CASH CREDITS THEREIN BE ASSESSED AS THE ASSESSEE'S INCOME WITHOUT TAKING INTO ACCOUNT THE DEBIT ENTRIES THEREIN. THE LEARNED AUTHORISED REPRESEN TATIVE SUBMITTED THAT ALTERNATIVELY ONLY THE PEAK CREDITS THEREIN, IF AT ALL, OUGHT TO BE CONSIDERED FOR BEING BROUGHT TO TAX IN THE ASSESSEE'S HANDS. IT WAS PLEADED BY THE LEARNED AUTHORISED REPRESENTATIVE THAT AS THE LEARNED CIT (APPEALS) HAS NOT EXAMIN ED AND ADJUDICATED EITHER ON THE ASSESSEE'S SUBMISSIONS REGARDING THE TAXING IN THE ASSESSEE'S HANDS OF THE PROFITS FROM THE ASSESSEE'S BUSINESS OF RUNNING BAR AND RESTAURANT IN THE PERIOD UNDER CONSIDERATION, OR THE ASSESSEE'S ALTERNATIVE CLAIM FOR ONLY THE PEAK CREDITS OF THE TWO BANK ACCOUNTS WITH HDFC BANK TO BE CONSIDERED FOR BEING BROUGHT TO TAX IN THE ASSESSEE'S HANDS NOT BEING EXAMINED, THE ORDER OF THE LEARNED CIT 6 ITA NO. 1165 /BANG/ 20 1 2 (APPEALS) BE SET ASIDE AND THE MATTER OF ASSESSMENT OF INCOME FOR A SSESSMENT YEAR 20 06 - 07 BE REMAND ED BACK TO THE FILE OF THE ASSESSING OFFICER FOR DE NOVO ADJUDICATION. 7.4 PER CONTRA, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE LEARNED CIT (APPEALS), SUBMITTING THAT ALL ASPECTS OF THE MATTER WERE GOT EXAMINED BY THE LEARNED CIT (APPEALS) BEFORE PASSING THE IMPUGNED ORDER. 7.5.1 WE HAVE HEARD THE RIVAL SUBMISSIONS AT LENGTH AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD. ON APPRECIATION OF THE FACTS ON RECORD, INTER ALIA, THE ORDER OF ASSESSM ENT, THE REMAND REPORT OF THE ASSESSING OFFICER, THE IMPUGNED ORDER OF THE LEARNED CIT (APPEALS) AND THE SUBMISSIONS MADE BY THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE BEFORE US, THE FACTS OF THE MATTER AS EMERGE THEREFROM ARE AS FOLLOWS : THE ASSESSEE'S CASE FOR THE IMPUGNED ASSESSMENT YEAR 2006 - 07 WAS SELECTED FOR SCRUTINY UNDER CASS AS PER AIR INFORMATION IN THE POSSESSION OF THE ASSESSING OFFICER THAT THE ASSESSEE HAD DEPOSITED CASH AMOUNTING TO RS.32,22,969 IN HIS BANK ACCOUNT. SINCE THE ASSESSEE DID NOT RESPOND TO STATUTORY NOTICES ISSUED AND SERVED ON HIM BY THE ASSESSING OFFICER, INCLUDING THE SHOW CAUSE NOTICE DT.24.11.2008, PROPOSING TO COMPLETE THE ASSESSMENT EX - PARTE ON THE BASIS OF THE AIR INFORMATION AND OTHER MATERIAL AVAILA BLE ON RECORD, THE ASSESSMENT FOR ASSESSMENT YEAR CAME TO BE COMPLETED UNDER SECTION 144 OF THE ACT BY ORDER DT.29.12.2008 WHEREIN AN ADDITION OF RS.32,22,969 WAS MADE TO THE RETURNED INCOME OF RS.97,877 ON ACCOUNT OF THE ASSESSEE'S INVESTMENT IN THE PURCH ASE OF A SITE AT BASAVESHWAR NAGAR, BANGALORE IN PLACE OF C ASH DEPOSITS OF SIMILAR AMOUNT IN THE ASSESSEE'S BANK ACCOUNT AS PER AIR INFORMATION. 7.5.2 ON APPEAL, AS POINTED OUT BY THE LEARNED AUTHORISED REPRESENTATIVE, TH IS FACTUALLY ERRONEOUS ADDITION WAS BROUGHT TO THE NOTICE OF THE LEARNED CIT (APPEALS) AS THE SAID PROPERTY AT BASAVESHWAR NAGAR, BANGALORE WAS FOUND TO BE IN THE NAME OF ONE SRI H. R. RAJEEV AND NOT THE ASSESSEE. 7.5.3 IT IS SEEN THAT, IN THE COURSE OF ENQUIRIES CARRIED OUT IN REMA ND PROCEEDINGS, THE ASSESSING OFFICER DETECTED THAT THE ASSESSEE OPERATED TWO ADMITTEDLY UNDISCLOSED SAVINGS BANK ACCOUNTS IN HDFC BANK; IN WHICH CASH DEPOSITS OF RS.31,44,869 WAS MADE IN 7 ITA NO. 1165 /BANG/ 20 1 2 ACCOUNT NO.03611000007590 AND OF RS.24,23,940 IN ACCOUNT NO.0361200 0001893 IN THE PERIOD UNDER CONSIDERATION . ON BEING QUERIED IN RESPECT OF THE ABOVE CASH DEPOSITS, THE ASSESSEE PUT FORTH THE EXPLANATION THAT THE CASH DEPOSITS IN BANK ACCOUNTS PERTAINED TO THE SALE PROCEEDS OF A BAR AND RESTAURANT RUN BY HIM. WE FIND F ROM THE AVERMENTS OF THE LEARNED AUTHORISED REPRESENTATIVE THAT THE ASSESSEE HAD ALSO FILED COPY OF A TRADING AND PROFIT AND LOSS ACCOUNT DT.19.4.2012 FOR THE SAID PERIOD OF THIS BUSINESS. APART FROM THIS, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED T HAT THE FOLLOWING DETAILS HAD ALSO BEEN FILED IN A PAPER BOOK DT.8.5.2013. THESE CONTAINED, INTER ALIA, A COPY OF AGREEMENT DT.28.1.2005 FOR PURCHASE OF BALAJI BAR AND RESTAURANT BY THE ASSESSEE FOR RS.26,50,000 FROM SRI K.T. BHIMESH AND SMT. K. KALA; COP IES IN KANNADA, STATED BY THE LEARNED AUTHORISED REPRESENTATIVE TO BE CLEARANCE CERTIFICATE TO REGISTERED DEALERS ISSUED BY ASST. COMMISSIONER OF COMMERCIAL TAXES DT.31.3.2005; COPIES OF SANCTION CERTIFICATES FROM STATE EXCISE AUTHORITIES DT.24.7.2004 AN D 30.6.2005; COPY OF CHALLAN FOR PAYMENT OF ADVANCE RENEWAL FEE OF RS.25,000, ETC. AS CONTENDED BY THE LEARNED AUTHORISED REPRESENTATIVE, WE FIND THAT THE LEARNED CIT (APPEALS) HAS NOT CONSIDERED ANY OF THESE EXPLANATIONS AND / OR DETAILS / DOCUMENTS FILE D BY THE ASSES SEE, BUT HAS MERELY BRUSHED THE N ASIDE IN A SUMMARY MANNER WITHOUT ASSIGNING ANY R EASONS FOR HIS REJECTION THEREOF. WE FIND THAT THERE IS NO SPEAKING ORDER RENDERED BY THE LEARNED CIT (APPEALS) IN THE MATTER , WHICH OUGHT TO HAVE BEEN DONE; M ORES O CONSIDERING THE FACT THAT BY HIS ORDER THE ASSESSEE'S INCOME WAS ENHANCED FROM RS.33,20,846 TO RS.56,66,868. 7.5.4 WE ALSO FIND THAT THE ASSESSEE, WHILE SEEKING DELETION OF THE ADDITION OF RS.55,68,509, HAS ALTERNATIVELY CONTENDED IN THE GROUNDS AT S.NOS.5 AND 6 THAT THE AFORESAID TWO BANK ACCOUNTS OF THE ASSESSEE WITH HDFC BANK DO NOT COMPRISE OF ONLY CASH CREDITS BUT ALSO OF VARIOUS DEBITS; WHICH HAVE NOT BEEN CONSIDERED BY THE LEARNED CIT (APPEALS) WHILE DECIDING THE ISSUE AND THEREFORE ONLY PEAK CREDITS IN THESE BANK ACCOUNTS OUGHT TO HAVE BEEN BROUGHT TO TAX IN THE ASSESSEE'S HANDS, IF AT ALL. 7.5.5 FROM THE DISCUSSION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AT PARAS 7 TO 7.5.4 OF THIS ORDER, WE AGREE WITH THE CONTENTION S OF THE LEARNED A UTHORISED REPRESENTATIVE OF THE ASSESSEE THAT THE LEARNED CIT (APPEALS), IN THE IMPUGNED ORDER, HAS SUMMARILY 8 ITA NO. 1165 /BANG/ 20 1 2 BRUSHED ASIDE, WITHOUT CONSIDERATION AND WITHOUT ASSIGNING ANY GOOD REASONS, THE EXPLANATIONS, DETAILS AND CLAIM OF THE ASSESSEE WITH RESPECT TO T HE TAXATION OF THE CASH CREDITS IN THE BANK ACCOUNTS WITH HDFC BANK AS HIS BUSINESS INCOME OR ALTERNATELY THE PEAK CREDITS IN THE TWO BANK ACCOUNTS WITH HDFC BANK. IN THIS VIEW OF THE MATTER, WE, IN THE INTEREST OF JUSTICE AND EQUITY REMAND THE MATTER OF ASSESSMENT OF THE INCOME OF THE ASSESSEE FOR ASSESSMENT YEAR 2006 - 07 TO THE FILE OF THE ASSESSING OFFICER FOR DE NOVO ADJUDICATION, ON THE BASIS OF THE MATERIAL ON RECORD AND OUR OBSERVATIONS IN PARAS 7.5.1 TO 7.5.5 OF THIS ORDER, AFTER AFFORDING THE ASSES SEE ADEQUATE OPPORTUNITY OF BEING HEARD AND TO FILE DETAILS REQUIRED. IT IS ORDERED ACCORDINGLY. 8. IN THE RESULT, THE ASSESSEE'S APPEAL FOR ASSESSMENT YEAR 2006 - 07 IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OP EN COURT ON 19 TH SEPT., 201 4 . SD/ - SD/ - ( N.V. VASUDEVAN ) (JASON P BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER *REDDY GP COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE. (TRUE COPY) BY ORDER ASST. REGISTRAR , ITAT , BANGALORE