ITO, Ward - 50(1), Kolkata, Kolkata V. Shri Sunil Jain, Kolkata

ITA 1484/KOL/2011

• Counselvise Citation: 148423514 RSA 2011
• Duration Of Justice: 2 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 03-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D J MEHTA
• Assessee Lawyers: S M SURANA
• Keywords: Peak credit
• Section: 147; 148; 143(3); 133(6)

Judgement Text

I.T.A. NO.: 1484/KOL./2011 ASSESSMENT YEAR : 2005-06 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO.: 1484/KOL./2011 ASSESSMENT YEAR : 2005-2006 INCOME TAX OFFICER, ............................... ....................APPELLANT WARD-49(2), KOLKATA, UTTARAPAN BUILDING, MANICKTALA CIVIC CENTRE, ULTADANGA, KOLKATA-700 054 -VS.- SRI SUNIL JAIN,.................................... ..............................RESPONDENT 27, PANCHANANTALA ROAD, KOLKATA-700 048 [PAN : ACKPJ 1932 C] APPEARANCES BY: SHRI D.J. MEHTA, JCIT, SR. D.R., FOR THE APPELLANT SHRI S.M. SURANA, ADVOCATE, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JUNE 18, 2014 DATE OF PRONOUNCING THE ORDER : JUNE 26, 2014 O R D E R PER SHRI MAHAVIR SINGH, JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE IS ARISING OUT OF THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXXII, KOLKATA IN APPEAL NO. 105/CIT(A)-XXXII/09-10/49(2)/KOL. DATED 31.05.2011 FOR ASSESSMENT YEAR 2005-06. ASSESSMENT WAS COMPLETED BY ITO, WARD -49(2), KOLKATA UNDER SECTION 143(3) READ WITH SECTION 147 OF THE I NCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR THE ASSE SSMENT YEAR 2005-06 DATED 30.12.2009. 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL OF REVENU E IS AGAINST THE DELETION OF ADDITION BY LD. CIT(APPEALS) BY DIRECTI NG THE ASSESSING OFFICER TO TAKE PEAK ADDITION AT RS.1,07,399/- AS AGAINST THE ADDITION OF RS.20,64,514/-. I.T.A. NO.: 1484/KOL./2011 ASSESSMENT YEAR : 2005-06 PAGE 2 OF 3 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. BRIEFLY STATED THE FACTS ARE THAT ASSESSING OFFICER NOTICED FROM THE INFORMATION RECEIVED FROM AIR THAT THE ASSESSEE HAS DEPOSITED HUGE CASH AMOUNTING TO RS.11,22,000/- IN UTI BANK (PRESENTLY AXIS BANK) DURING THE FINANCIAL YEAR 200 4-05 RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. ACCORDINGLY TH E ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 OF THE ACT AS THE I NCOME AS ESCAPED ASSESSMENT TO THE TUNE OF RS.11.22 LAKHS. THE ASSES SING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS ISSUED NOTICE UNDE R SECTION 133(6) OF THE ACT TO THE BRANCH MANAGER, AXIS BANK, LAKE TOWN BRANCH, KOLKATA, WHEREIN BANK STATEMENT WAS OBTAINED FOR A/C. NO. 19 1010100003995. FROM THE ASSESSEES ACCOUNTS, I.E. THE BALANCE-SHEE T, WHEN IT WAS COMPARED WITH THE BANK ACCOUNT, HE FOUND THAT THE A FORESAID BANK ACCOUNT IN AXIS BANK WAS NOT REFLECTED IN THE BALAN CE-SHEET AS ON 31.03.2005. THE ASSESSING OFFICER WORKED OUT THE TO TAL CASH AND CHEQUE DEPOSITS AMOUNTING TO RS.20,63,514/- I.E. THE CASH DEPOSITS AT RS.11.22 LAKHS AND CHEQUE DEPOSITS AT RS.9,41,514/-. THE ASS ESSING OFFICER TREATED THE ENTIRE DEPOSITS I.E. CASH AND CHEQUE AS UNDISCL OSED INCOME FROM OTHER SOURCES AT RS.20,63,514/-. AGGRIEVED, ASSESSEE PREF ERRED APPEAL BEFORE LD. CIT(APPEALS). 4. LD. CIT(APPEALS) RESTRICTED THE ADDITION OF PEAK CREDIT AT RS.1,07,399/- BY CONSIDERING THE PEAK STATEMENT SUB MITTED BEFORE HIM BY OBSERVING AS UNDER :- AS LAID DOWN IN THE ABOVE DISCUSSED JUDICIAL PRONOUNCEMENTS IT IS ONLY THE PEAK CREDIT BALANCE T HAT CAN BE BROUGHT TO TAX IN CASE OF UNDISCLOSED BANK ACCOU NT WHERE THERE ARE DEPOSITS AS WELL AS WITHDRAWALS THE SAME BANK ACCOUNT. AS PER THE BANK STATEMENT FOR THE REL EVANT PREVIOUS YEAR, PEAK CREDIT BALANCE WAS RS.1,07,399/ -. THE ADDITION IS, THEREFORE, RESTRICTED TO RS.1,07,399/- AS AGAINST THE ADDITION OF RS.20,64,514/- MADE BY THE AO. 5. AGGRIEVED, REVENUE CAME IN APPEAL BEFORE US. WE FIND THAT THE BANK ACCOUNT OF THE ASSESSEE MAINTAINED BY THE AXIS BANK , LAKE TOWN BRANCH, I.T.A. NO.: 1484/KOL./2011 ASSESSMENT YEAR : 2005-06 PAGE 3 OF 3 WAS UNACCOUNTED AND CONSEQUENTLY THE DEPOSITS ARE A LSO UNACCOUNTED. THE ASSESSEES CONTENTION BEFORE US AND ALSO BEFORE LD. CIT(APPEALS) WAS THAT ONLY PEAK CREDIT BALANCE CAN BE BROUGHT TO TAX IN CASE OF UNDISCLOSED BANK ACCOUNT. WE ARE IN AGREEMENT WITH THE ARGUMENT OF THE ASSESSEE BUT WE ARE OF THE VIEW THAT NEITHER LD. CIT(APPEALS) NO R THE ASSESSING OFFICER HAS GONE INTO THE DETAILS OF PEAK. ONCE NONE OF THE AUTHORITIES HAVE VERIFIED THE PEAK, IT IS APPROPRIATE ON OUR PART TO SET ASIDE THE ISSUE FOR VERIFICATION OF PEAK BY THE ASSESSING OFFICER. ACCO RDINGLY, WE SET ASIDE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER. NO DOUBT THE ASSESSING OFFICER WILL ASSESS ONLY PEAK CREDIT BUT AFTER VERI FICATION. 6. IN THE RESULT, THE APPEAL FILED BY THE REVE NUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH DAY OF JUNE, 2014. SD/- SD/- SHAMIM YAHYA MAHAVIR SINGH (ACCOUNTANT MEMBER) (JUDICIAL M EMBER) KOLKATA, THE 26 TH DAY OF JUNE, 2014 COPIES TO : (1) INCOME TAX OFFICER, WARD-49(2), KOLKATA, UTTARAPAN BUILDING, MANICKTALA CIVIC CENTRE, ULTADANGA, KOLKATA-700 054 (2) SRI SUNIL JAIN, 27, PANCHANANTALA ROAD, KOLKATA-700 048 (3) CIT (4) CIT(A) (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.