KRISHNA KUMAR CHAURASIA, ALLAHABAD V. INCOME TAX OFFICER WARD-1(2), ALLAHABAD

ITA 146/ALLD/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1836 (ITAT-ALLAHABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 25-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: T P SHUKLA
• Keywords: Opportunity of being heard; Peak credit; Set aside
• Section: 80C; 142(1); 133(6); 69A; 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD BENCH ALLAHABAD [THROUGH VIRTUAL COURT] BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER ITA NO.146/ALLD/2019 ASSESSMENT YEAR: 2007-08 KRISHNA KUMAR CHAURASIA 910A, CHANDAPUR KA HATA, MUTHIGANJ, ALLAHABAD VS. INCOME TAX OFFICER, WARD-1(2), ALLAHABAD TAN/PAN:ADZPC 7982P (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI T.P. SHUKLA, ADVOCATE RESPONDENT BY: SHRI A.K. SINGH, CIT (DR) DATE OF HEARING: 18.02.2021 DATE OF PRONOUNCEMENT: 24.02.2021 O R D E R PER SHRI VIJAY PAL RAO, JUDICIAL MEMBER: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 24.09.2019 OF LD. CIT(A), ALLAHABAD FOR AY 2007-08. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT THE JOB CARRIED OUT BY THE APPELLANT DID NOT REQUIRE TO MAINTAIN PARTY WISE DETAILS OF RECEIPT FROM VEHICLE-PURCHASERS AND EXPENSES INCURRED THEREON AND ALL THESE DETAILS WERE WITH EMPLOYER I- SOLUTIONS PROVIDER[INDIA] PVT LTD WHICH IS A CLOSED ENTITY. 2. THE LEARNED C1T(A] HAS FAILED TO APPRECIATE THE FACT THAT THE APPELLANT WAS WORKING AS RTO COORDINATOR IN THE SAID CONCERN AS OUTSOURCED STAFF AND GETTING SALARY OF RS 4500/- P. M. FROM THE SAID ITA NO.146/ALLD/2019 SRI KRISHNA KUMAR CHAURASIA 2 CONCERN WHICH IS EVIDENT FROM THE BANK STATEMENT ITSELF AND HE HAS NO MEANS TO DEPOSIT SUCH AMOUNTS IN HIS BANK ACCOUNT 3. THE LEARNED CIT(A) HAS ERRED IN LAW IN NOT ALLOWING REASONABLE OPPORTUNITY OF BEING HEARD KEEPING THE FACTS IN VIEW THAT THE EMPLOYER HAS CLOSED ITS BUSINESS AND AN OUTSOURCED STAFF OF SUCH A MEAGRE SALARY CANNOT FORCE THE EMPLOYER TO PROVIDE DETAILS. 4. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT THE TOTAL AMOUNT OF RS.12,91,000/-(12,01,900/- CORRECTLY] WAS NOT DEPOSITED IN ONE GO BUT ON SEVERAL DATES AND EACH DEPOSIT IS FOLLOWED BY CORRESPONDING WITHDRAWALS AND THERE 'IS NO DISPUTE THAT THE BANK ACCOUNT BELONGS TO THE APPELLANT AND SO ONLY PEAK OF THE CASH CREDITS IN THE BANK ACCOUNT MAY BE HELD AS UNEXPLAINED MONEY U/S 69A. 5. THE APPELLANT CRAVES LEAVE TO AMEND OR SUBSTITUTE ALL OR ANY OF THE GROUND AT THE TIME OF HEARING. 2. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSESSEE HAS STATED AT BAR THE ASSESSEE DOES NOT WANT TO PRESS GROUND NOS. 1 TO 3 OF THE GROUNDS OF APPEAL AND THE SAME MAY BE DISMISSED AS NOT PRESSED. THE LD. DR HAS RAISED NO OBJECTION IF THE GROUNDS NO. 1 TO 3 OF THE ASSESSEES APPEAL ARE DISMISSED AS NOT PRESSED. ACCORDINGLY, THE GROUNDS NO. 1 TO 3 OF THE ASSESSEES APPEAL ARE DISMISSED BEING NOT PRESSED. 3. GROUND NO.4 IS REGARDING ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF CASH DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE U/S. 69A OF THE ACT. THE ASSESSEE IS AN INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 31.03.2008 DECLARING TOTAL INCOME OF RS.1,20,180/- AFTER CLAIMING THE DEDUCTION U/S. 80C OF THE ACT OF RS.32,889/-. THEREAFTER, THE ASSESSING OFFICER REOPENED THE ASSESSMENT BY ISSUING NOTICE U/S. 148 OF THE ACT ON 25.03.2014 BASED ON AIR INFORMATION REGARDING DEPOSIT OF CASH AMOUNTING TO RS.12,96,400/- IN THE SAVING BANK ACCOUNT OF THE ASSESSEE. THE ASSESSING OFFICER HAS MADE THE ADDITION OF RS.12,91,000/- ON ACCOUNT OF THE CASH DEPOSITED IN THE BANK AND TREATING THE SAME UNEXPLAINED ITA NO.146/ALLD/2019 SRI KRISHNA KUMAR CHAURASIA 3 CASH DEPOSIT AS THE ASSESSEE FAILED TO FURNISH ANY EXPLANATION REGARDING THE DEPOSIT MADE DURING THE YEAR. THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESSING OFFICER BEFORE THE LD. CIT(A) AND SUBMITTED THAT DUE TO HIS ILLNESS HE COULD NOT ATTAIN THE ASSESSMENT PROCEEDING BEFORE THE ASSESSING OFFICER AND WAS UNABLE TO SUBMIT THE DETAILS OF INFORMATION CALLED BY THE ASSESSING OFFICER. THE ASSESSEE ALSO PLEADED THAT THE ASSESSING OFFICER WHILE MAKING THE ADDITION HAS IGNORED THE WITHDRAWAL MADE BY THE ASSESSEE FROM THE BANK ACCOUNT. THE ASSESSEE HAS ALSO EXPLAINED THE SOURCE OF DEPOSITED MADE IN THE BANK ACCOUNT AS THE ASSESSEE IS WORKING AS RTO COORDINATOR IN LOADING DEPARTMENT OF ICICI BANK LTD. AS WELL AS OWNER OF ONE CARGO VEHICLE WHICH WAS ATTACHED TO GATI CARGO. THE RECEIPTS FROM CARGO DIRECTLY CREDITED TO THE BANK ACCOUNT OF THE ASSESSEE IN THE ICICI BANK AND ASSESSEE USED TO WITHDRAW THE MONEY FROM THE ABOVE BANK FOR EXPENSES OF THE RUNNING AND MAINTENANCE OF THE VEHICLE. THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THE WITHDRAWN FROM THE BANK ACCOUNT CANNOT BE CONSIDERED AS A SOURCE FOR REDEPOSITING IN THE BANK ACCOUNT. 4. BEFORE THE TRIBUNAL, THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSING OFFICER MADE THE ADDITION OF THE ENTIRE DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE WITHOUT EVEN ALLOWING THE CREDIT OF THE WITHDRAWAL MADE BY THE ASSESSEE. HE HAS FURTHER SUBMITTED THAT THE ENTIRE DEPOSITED IN THE BANK ACCOUNT CANNOT BE CONSIDERED AS THE INCOME OF THE ASSESSEE WHEN THE ASSESSEE IS ALSO INCURRING EXPENDITURE IN RESPECT OF MAINTENANCE AND RUNNING OF VEHICLE. THUS, THE LD. AR HAS SUBMITTED THAT AT THE MOST, THE PEAK CREDIT IN THE BANK ACCOUNT CAN BE CONSIDERED AS UNEXPLAINED DEPOSIT. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF STATE OF KERALA VS. VELUKUTTY [1966] 60 ITR 239. THUS, THE LD. AR HAS SUBMITTED THAT THE ASSESSING OFFICER MAY BE DIRECTED TO CONSIDER THE ONLY PEAK CREDIT IN THE BANK ACCOUNT OF THE ASSESSEE. ITA NO.146/ALLD/2019 SRI KRISHNA KUMAR CHAURASIA 4 5. ON THE OTHER HAND, LD. DR HAS SUBMITTED THAT THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER U/S 144 R.W.S. 147 WHEN THE ASSESSEE HAS NOT RESPONDED TO THE NOTICES ISSUED BY THE ASSESSING OFFICER. FURTHER THE GROSS RECEIPT OF THE ASSESSEE AS SHOWN IN THE INCOME TAX RETURN IS RS.6,19,560/- WHEREAS THE DEPOSIT IN THE BANK ACCOUNT IS AROUND RS.13.00 LACS. THUS IT CANNOT BE ACCEPTED THAT THE ENTIRE DEPOSIT REPRESENT GROSS RECEIPT OF THE ASSESSEE FROM THE VEHICLE ATTACHED TO TRANSPORTER. FURTHER, THE ASSESSEE HAS DISCLOSED THE INCOME IN THE RETURN OF INCOME U/S. 44AE AND AF AND SALARY RECEIVED FROM THE ICICI BANK IS ALSO NOT DISCLOSED IN THE RETURN OF INCOME FILED BY THE ASSESSEE. THUS, THE ASSESSEE HAS CONCEALED THE INCOME EVEN RECEIVED ON ACCOUNT OF SALARY FROM THE ICICI BANK. THE LD. DR HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 6. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL AVAILABLE ON RECORD IT IS NOTED THAT THE ASSESSING OFFICER HAS MADE THE ADDITION ON ACCOUNT OF THE ENTIRE CASH DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION. THE ASSESSING OFFICER CALLED THE RELEVANT INFORMATION FROM THE ICICI BANK BY ISSUING THE NOTICE U/S. 133(6) OF THE ACT. IN RESPONSE TO THE SAME THE ICICI BANK HAS FURNISHED THE DETAILS SHOWING THE CASH DEPOSIT OF RS.12,91,000/- IN THE BANK ACCOUNT OF THE ASSESSEE DURING THE F.Y. 2006-07 RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. THE ASSESSEE HAS NOT RESPONDED TO THE NOTICES ISSUED BY THE ASSESSING OFFICER U/S. 142(1) AND CONSEQUENTLY THE ASSESSING OFFICER HAS MADE THE ADDITION OF THE ENTIRE CASH DEPOSIT OF RS.12,91,000/- TO THE TOTAL INCOME OF THE ASSESSEE. FROM THE MATERIAL AVAILABLE ON RECORD, IT IS NOTED THAT THERE ARE VARIOUS CASH DEPOSITS AS WELL AS CASH WITHDRAWAL TRANSACTIONS IN THE BANK ACCOUNT OF THE ASSESSEE WITH ICICI BANK. THE ASSESSEE HAS ALSO CLAIMED THAT THE DEPOSIT IN THE BANK ACCOUNT IS ON ACCOUNT OF THE RECEIPTS FOR THE VEHICLE HE HAS ATTACHED WITH THE GATI CARGO THEREFORE, TO THE EXTENT OF THE GROSS RECEIPT ON ACCOUNT OF RUNNING THE VEHICLE THE ENTIRE AMOUNT OF RECEIPT ITA NO.146/ALLD/2019 SRI KRISHNA KUMAR CHAURASIA 5 FROM GATI CARGO CANNOT BE TREATED AS INCOME OF THE ASSESSEE BUT ONLY THE PROFIT ELEMENT IN THE SAID GROSS RECEIPT CAN BE ASSESSED TO TAX. THE ASSESSEE HAS SHOWN THE INCOME IN THE RETURN OF INCOME ON THE GROSS RECEIPT OF RS.6,90,560/- AND THUS THE CASH DEPOSITED IF ANY TO THE EXTENT OF THIS AMOUNT WHICH IS NOT RECEIVED IN THE CHEQUE OR THROUGH BANKING CHANNEL HAS TO BE EXCLUDED WHILE MAKING THE ADDITION ON ACCOUNT OF DEPOSITED IN THE BANK ACCOUNT. FURTHER IF THERE IS A CORRESPONDING WITHDRAWAL PRIOR TO THE DEPOSIT OF THE CASH IN THE BANK ACCOUNT THEN THE CREDIT HAS TO BE GIVEN ON THAT ACCOUNT. SINCE THE ASSESSING OFFICER HAS MADE THE ADDITION OF THE ENTIRE CASH DEPOSITED IN THE BANK ACCOUNT WHILE PASSING THE EXPARTE ORDER AND THE LD. CIT(A) HAS ALSO DECLINED TO CONSIDER THE EXPLANATION OF THE ASSESSEE, THEREFORE, THE MATTER REQUIRES A PROPER VERIFICATION AND EXAMINATION OF THE FACTS AND RECORD BEFORE ITS ADJUDICATION. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE MATTER IS SET ASIDE TO THE RECORD OF THE ASSESSING OFFICER TO READJUDICATE THE SAME AFTER CONSIDERING THE RELEVANT DETAILS AND EVIDENCE REGARDING THE SOURCE OF THE CASH DEPOSIT IN THE ACCOUNT FROM THE TRANSPORT RECEIPTS AS WELL AS CORRESPONDING CASH WITHDRAWAL IF ANY. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN AN APPROPRIATE OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE PASSING THE FRESH ORDER. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED ON 24 /02/2021 AT ALLAHABAD IN THE OPEN COURT THROUGH VIDEO CONFERENCING) SD/- [VIJAY PAL RAO] JUDICIAL MEMBER DATED: 24/02/2021 AKS/- COPY FORWARDED TO: ITA NO.146/ALLD/2019 SRI KRISHNA KUMAR CHAURASIA 6 1. APPELLANT 2. RESPONDENT 3. CIT(A) - 4. CIT 5. DR -