SIDHESH FILMS P. LTD., MUMBAI V. ITO-16(1)(4), MUMBAI

ITA 132/MUM/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0031 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 18-10-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 10-02-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Peak credit
• Section: 68; 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ‘SMC‘ BENCH MUMBAI BEFORE: SHRI M.BALAGANESH, ACCOUNTANT MEMBER ITA No.132/Mum/2021 (Asse ssment Year :2010-11) Siddhesh Films Pvt Ltd B/48, Gurudev Apartments, R.C.Marg, Opp Telephone Exchange, Chembur, Mumbai-400071 Vs. ITO 16(1)(4), Mumbai ITO- 16(1)(4) 4 th Flr Aaykar Bhavan, MK Road, Mumbai-400020 PAN/GIR No.AAICS 2358G (Appellant) .. (Respondent) Assessee by None Revenue by Shri. Kiran Unavekar Date of Hearing 19/10/2022 Date of Pronouncement 20/10/2022 आदेश / O R D E R PER M. BALAGANESH (A.M): This appeal in ITA No. 132/Mum/2021 for A.Y.2010-11 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-4, Mumbai in appeal No.CIT(A)-4/IT-200/ITO-16(1)(4)/2017-18 dated 18/06/2019 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) r.w.s 147 of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 26/12/2017 by the ld. Income-tax Officer-16(1)(4) Mumbai (hereinafter referred to as ld. AO). 2. The assessee has raised the following grounds of appeal:- ITA No. 132/Mum/2021 Sidhesh Films Pvt Ltd 2 1. The Ld CIT(A) erred in facts circumstances of the case and in law in dismissing ground taken against AO's action of resorting to re-assessment based on information admittedly he received in a survey that took place in office of proprietary concern of the director in March 2009 giving him a reason to believe of an escapement of income in future. Without prejudice to the above 2. The Ld CIT(A) erred in facts circumstances of the case and in law in dismissing ground taken against AO's action of commencing assessment proceedings without dealing with specific objections raised by the Appellant to the reasons recorded for re- opening Without Prejudice to above grounds - The Following Ground is taken 3. The Ld CIT(A) erred in facts circumstances of the case and in law in holding additions that AO made U/s 68 is to be made u/s 69A without giving any notice of his intention and giving opportunity to the appellant to defend. Reason given by the Id CIT(A) in dismissing the appeal and thus confirming the additions that the AO made, are wrong, insufficient and contrary to facts and evidence on record and in law. Appellant craves leave to add, amend, alter or delete any or all the above grounds of appeal 2.1. The ground Nos. 1 & 2 raised by the assessee is challenging the validity of reassessment and alleged violation of procedures by the ld. AO while framing the re-assessment. 2.2. None appeared on behalf of the assessee. Sufficient opportunities were given to the assessee in this regard and assessee had not ensured its presence through an authorized representative on 01/11/2021, 02/05/2022, 23/06/2022, 19/07/2022 and 19/10/2022 i.e. today. In between 01/11/2021 and 02/05/2022 the Bench did not function. This cavalier attitude of the assessee proves that it is not interested in prosecuting this appeal by appointing the authorized representative. 3. We find that assessee filed its return of income for the A.Y.2010-11 on 31/03/2012 declaring loss of Rs.60/-. This return of income was processed u/s.143(1) of the Act. Later this assessment was sought to be reopened u/s.147 of the Act after recording reasons for reopening and ITA No. 132/Mum/2021 Sidhesh Films Pvt Ltd 3 taking approval from the competent authority u/s.151 of the Act. Notice u/s.148 of the Act was issued by the assessee on 30/03/2017 which was duly served on 05/04/2017. The case was reopened by the ld. AO on the ground that there were some cash deposits of Rs.3,59,000/- in the bank account of the assessee which was not commensurate with the declared loss of Rs.60/- by the assessee in the return of income and hence, the ld. AO concluded that income of the assessee had escaped assessment. The reasons recorded for reopening the assessment were duly communicated to the assessee vide letter dated 17/08/2017. The assessee filed its objections to the said reasons on 22/09/2017 before the ld. AO. The ld. AO had duly disposed of those objections vide letter dated 27/09/2017 instead of by way of a separate speaking order. Though this is a procedural error, but still the assessee was made aware of the mind of the ld. AO with regard to dismissal of the objections for reasons recorded by way of written letter dated 27/09/2017. No further challenge was made by the assessee by carrying the matter to any competent legal forum. Hence, the ld. AO proceeded to proceed with the re-assessment proceedings. In view of this, the ground Nos. 1 & 2 raised by the assessee are devoid of merits and hence, dismissed. 4. The only surviving ground to be adjudicated in this appeal is as to whether the ld. CIT(A) was justified in upholding the addition made in respect of cash on the basis of peak credit amounting to Rs.7,84,114/- in the facts and circumstances of the case. 4.1. We have heard ld. DR and perused the materials available on record. The ld. AO received information that assessee had deposited a sum of Rs.3,59,000/- in cash in bank account No.500200301000236 maintained with Vijaya Bank, Bandra (E), Mumbai. Later, the entire bank ITA No. 132/Mum/2021 Sidhesh Films Pvt Ltd 4 statements were obtained by the ld. AO. From the perusal of the said bank statements, the ld. AO observed that assessee had deposited a sum of Rs.11,60,000/- from 01/04/2009 to 08/06/2009 in the said bank account in cash. The ld. AO sought to examine the source of cash deposits made by the assessee in the said bank account. The ld. AO also requested assessee to provide cash book, bank book and cash flow statement to explain the source of cash deposits. The ld. AO observed that no explanation was forthcoming from the side of the assessee in this regard and accordingly, proceeded to treat the said sum of Rs.11,60,000/- representing cash deposits as unexplained cash credit u/s.68 of the Act and completed the assessment. The ld. CIT(A) observed that for such unexplained money, the right section to apply would be Section 69A of the Act, and accordingly, proceeded to examine the addition from the context of Section 69A of the Act as against Section 68 of the Act made by the ld. AO. The ld. CIT(A) however, fairly went through the cash book from 01/04/2009 to 30/06/2009 and arrived at the daily cash balance thereon and found the peak credit of negative cash balance at Rs.7,84,113.50 on 13/05/2009. Accordingly, the said peak negative cash balance of Rs.7,84,114/- was brought to tax by the ld. CIT(A) as against Rs.11,60,000/- made by the ld. AO. Aggrieved, the assessee is in appeal before us. 3.3. From the perusal of the order of the ld. CIT(A), we find that the ld. CIT(A) has sought to examine the issue from the context of Section 69A of the Act. It is not in dispute that there were cash deposits to the tune of Rs.11,60,000/- in the bank account of the assessee. Hence, the ownership of the said money is proved beyond doubt. It is not in dispute that the ld. CIT(A) had also taken into account previous cash withdrawals made by the assessee from the said bank account. From the perusal of ITA No. 132/Mum/2021 Sidhesh Films Pvt Ltd 5 the cash book from 01/04/2009 to 30/06/2009, we find that the ld. CIT(A) had correctly arrived at the peak credit balance of Rs.7,84,114/- being the negative cash balance on 13/05/2009. No other contrary evidences were placed on record from the side of the assessee to prove that assessee had indeed sufficient cash balance in its kitty to explain cash deposits. Hence, we do not deem it fit to interfere in the said order of the ld. CIT(A). Accordingly, the ground No.3 raised by the assessee is dismissed. 4. In the result, appeal of the assessee is dismissed. Order pronounced on 20/10/2022 by way of proper mentioning in the notice board. Sd/- (M.BALAGANESH) ACCOUNTANT MEMBER Mumbai; Dated 20/10/2022 KARUNA, sr.ps Copy of the Order forwarded to : BY ORDER, (Sr. Private Secretary / Asstt. Registrar) ITAT, Mumbai 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy//