The ITO, Ward-10(1), Ahmedabad V. Shri Prakashchandra K.Thakkar, Ahmedabad

ITA 1281/AHD/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6166 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 17-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 01-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MEHUL THAKKER AR
• Keywords: Unexplained cash credit; Peak credit
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , , BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NO.1281/AHD/2014 ( / ASSESSMENT YEAR : 2008-09) & CROSS OBJECTION NO.238/AHD/2014 - AY 2008-09 ( IN ITA NO.1281/AHD/2014 AY 2008-09 ) THE ITO WARD-10(1) AHMEDABAD / VS. SHRI PRAKASHCHANDRA K.THAKKAR 43, GOLDEN TULIP BUNGALOW MANEKBAUG AHMEDABAD # ./ ./ PAN/GIR NO. : AAXPT 0209 K ( #& / APPELLANT ) .. ( '#& / RESPONDENT ) & CROSS OBJECTOR REVENUE BY : MR. JAMES KURIAN, SR.DR ASSESSEE BY : MR. MEHUL THAKKER, AR () *+ / DATE OF HEARING 17/04/2017 ,-./ *+ / DATE OF PRONOUNCEMENT 20 / 04 /2017 / O R D E R PER PRADIP KUMAR KEDIA, AM: THE CAPTIONED APPEAL HAS BEEN FILED BY THE REVE NUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-XV I, AHMEDABAD [CIT(A) IN SHORT] DATED 28/02/2014 FOR THE ASSESSMENT YEAR (AY) ITA NO.1281/AHD /2014 & CO NO.238/AHD/2014 (BY ASSESSEE) ITO VS. SHRI PRAKASHCHANDRA K.THAKKAR ASST.YEAR 2008-09 - 2 - 2008-09 WHEREBY THE ADDITION OF RS.63,17,303/- MADE IN RESPECT OF UNEXPLAINED INCOME UNDER S.68 OF THE INCOME TAX ACT , 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') BY THE ASSESSING OFFICER (AO) WAS DELETED. 2. BRIEFLY STATED, THE ASSESSEE IS INDIVIDUAL DERI VING COMMISSION, BROKERAGE INCOME FROM THE FINANCE MARKET. THE ASSE SSEE FILED RETURN OF INCOME SHOWING TOTAL INCOME OF RS.2,18,580/- WHICH WAS SUBJECTED TO SCRUTINY ASSESSMENT UNDER S.143(3) OF THE ACT. IN THE COURSE OF ASSESSMENT, THE AO OBSERVED THAT CERTAIN AIR INFORM ATION WAS RECEIVED IN RESPECT OF CASH DEPOSITS IN BANK. THE BANK STAT EMENT OF THE ASSESSEE WAS EXAMINED. IT WAS SEEN BY THE AO THAT A LARGE NU MBER OF CREDIT ENTRIES HAVE BEEN RECORDED IN THE BANK STATEMENT TO TAL OF WHICH COMES TO RS.13,16,78,036/-. THE AO CONSIDERED RS.68,79,753 /- AS UNEXPLAINED CREDIT BY APPLYING PEAK CREDIT THEORY. HE ACCORDI NGLY RESORTED TO SECTION 68 OF THE ACT AND MADE AN ADDITION OF RS.68,79,753/ - TO THE TOTAL INCOME OF THE ASSESSEE. 3. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). THE CIT(A) CALLED FOR THE REMAND REPORT FROM THE AO ON THE ISSUE. IN THE REMAND REPORT, THE AO ACCEPTED THE PLEA OF THE ASSE SSEE THAT IT IS ENGAGED IN SUCH TRANSACTION OF CREDITS AND IMMEDIATE DEBITS AS A COMMISSION AGENT. IT IS THE CASE OF THE ASSESSEE ALL ALONG TH AT IT IS ONLY EARNING INCOME BY WAY OF COMMISSION FOR ACCOMMODATING RECEI PT OF CREDIT BY ITA NO.1281/AHD /2014 & CO NO.238/AHD/2014 (BY ASSESSEE) ITO VS. SHRI PRAKASHCHANDRA K.THAKKAR ASST.YEAR 2008-09 - 3 - WAY OF TRANSFER BY VARIOUS PARTIES TO THE BANK ACCO UNT OF THE ASSESSEE AGAINST WHICH THE ASSESSEE HAD ISSUED CHEQUES FOR T HE WHOLE CREDITED AMOUNT AGAINST THE CHARGE OF COMMISSION. THE PLEA OF THE ASSESSEE WAS ENDORSED BY THE AO IN THE REMAND REPORT WHEREBY THE LIMITED DISPUTE OF THE AO WAS ON RATE OF COMMISSION AND NOT BEYOND. A FTER CONSIDERING THE REMAND REPORT, THE CIT(A) SUSTAINED THE ADDITIO N OF RS.9,01,504/- AS AGAINST THE ADDITION OF RS.68,79,753/-. 4. THE REVENUE IS IN APPEAL AGAINST THE RELIEF GRAN TED BY THE CIT(A). 5. AT THE OUTSET, WE FIND THAT THE AO ITSELF IS NO LONGER AGGRIEVED FROM THE ACTION OF THE CIT(A). THE CIT(A) HAS PRIM ARILY RELIED UPON THE REMAND REPORT OF THE AO ITSELF WHERE THE LIMITED QU ESTION WAS ON THE QUANTUM OF COMMISSION EARNED AND NOT TOWARDS ADDITI ONS TO BE SUSTAINED AS MADE UNDER S.68 OF THE ACT. THUS, THE PRINCIPAL CONTROVERSY RAISED BY THE AO TOWARDS UNEXPLAINED CASH CREDIT UNDER S.68 O F THE ACT FADED INTO THE OBLIVION AFTER THE ADVENT OF THE REMAND REPORT. THUS, THE SEQUENCE OF EVENTS CLEARLY SHOWS THAT THE APPELLANT HEREIN I.E. THE AO ACCEPTS THE PLEA OF THE ASSESSEE TOWARDS CREDIT ENTRIES. THE ORDER OF THE CIT(A) WAS MADE AS A SEQUEL TO REMAND REPORT AND THUS CANNOT BE IMP UGNED. THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CI T(A). 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ITA NO.1281/AHD /2014 & CO NO.238/AHD/2014 (BY ASSESSEE) ITO VS. SHRI PRAKASHCHANDRA K.THAKKAR ASST.YEAR 2008-09 - 4 - ASSESSEES CROSS OBJECTION NO.238/AHD/2014 FOR AY 2 008-09 7. DURING THE COURSE OF HEARING, THE LD.AR FOR THE ASSESSEE REQUESTED FOR WITHDRAWAL OF THE CROSS OBJECTION FILED BY THE ASSE SSEE. ACCORDINGLY, THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED AS WIT HDRAWN. 8. IN THE COMBINED RESULT, THE APPEAL OF THE REVEN UE AND CROSS OBJECTION FILED BY THE ASSESSEE BOTH ARE DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 20 / 04 /2017 SD/- SD/- ( ) ( ) ( MAHAVIR PRASAD ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 20/ 04 /2017 3..(,.(../ T.C. NAIR, SR. PS !'#$#! / COPY OF THE ORDER FORWARDED TO : 1. #& / THE APPELLANT 2. '#& / THE RESPONDENT. 3. 456+ 7+ / CONCERNED CIT 4. 7+ ( ) / THE CIT(A)-XVI, AHMEDABAD 5. 89:+(56 , 56 / , 4 / DR, ITAT, AHMEDABAD 6. :;) / GUARD FILE. / BY ORDER, '8++ //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD