The ITO, Ward-1, S.K. Range, Himatnagar V. Shri Kamleshkumar Rasiklal Mehta, Dist.Sabarkantha

ITA 1510/AHD/2008

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60320 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 01-04-2013
• Assessment Year: 2001-2002
• Appeal Filed On: 01-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y S VERMA
• Keywords: Peak credit
• Section: 147; 68; 148

Judgement Text

, , , , B, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND TEJ RAM MEENA, ACCOUNTANT MEMBER) ITA NOS.562/AHD/2008 WITH CO NO.74/AHD/2008 [ASSTT.YEARS : 2001-2002] ITO, WARD-1, S.K. RANGE HIMATNAGAR. /VS. SHRI SHAILESHKUMAR RASIKLAL MEHTA PROP. OF MAHAVIR TRADERS MARKET YARD, TALOD, DIST. SABARKANTHA. ITA NO.1510, 1511 AND 1512/AHD/2008 [ASSTT.YEAR : 2001-2002, 2002-2003 AND 2003-2004] ITO, WARD-1, S.K. RANGE HIMATNAGAR. /VS. SHRI KAMLESHKUMAR RASIKLAL MEHTA PROP. OF RASHMI TRADERS MEHTA & CO., & PRATIK ROADLINES MARKET YARD, TA: TALOD, DIST. SABARKANTHA. ( (( ( / APPELLANT) ( (( ( / RESPONDENT) !'/ REVENUE BY : SHRI Y.S.VERMA $%& !'/ ASSESSEE BY : NONE !'( &)*/ DATE OF HEARING : 1 ST APRIL, 2013. +,- &)*/ DATE OF PRONOUNCEMENT : 08-05-2013 '. / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THESE FOUR APPEALS BY THE REVENUE FOR THE ASSESSMENT YEARS 2001-2002, 2002-20 03 AND 2003-2004 AND CO BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2001 -2002 ARE DIRECTED AGAINST THE ORDERS OF THE CIT(A). THESE ARE BEING DISPOSED OF WITH THIS CONSOLIDATED ORDER. 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F THE ASSESSEE. THIS CASE HAS BEEN ADJOURNED ON NUMBER OF TIMES BY THE T RIBUNAL, AND THERE IS ITA NOS.562/AHD/2008 WITH CO NO.74/AHD/2008 & 1510 TO 1512/AHD/2008 -2 NO VALID REASON FOR NOT ATTENDING ON THE DATE OF HE ARING BEFORE THE TRIBUNAL. IN THESE FACTS, THE APPEALS OF THE REVENUE AND THE CO OF THE ASSESSEE ARE BEING DISPOSED OF ON MERITS AFTER HEARING THE LEARN ED DR AND CONSIDERING THE MATERIAL ON RECORD. ITA NO.562/AHD/2008 (A.Y.2001-2002) REVENUES APPEA L: 3. THE ONLY EFFECTIVE GROUND OF THE REVENUE IN THIS APPEAL IS AS UNDER: 1. THE LD.CIT(A) ERRED IN LAW AND ON THE FACTS OF THE CASE IN DELETING RS.45,00,000/- OUT OF THE TOTAL ADDITION O F RS.45,10,000/- MADE BY THE AO BEING THE PEAK CREDIT. 4. THE LEARNED DR RELIED ON THE ORDER OF THE AO. H E SUBMITTED THAT THE ASSESSEE COULD NOT EXPLAIN THE CREDIT ENTRIES IN TH E BANK ACCOUNT IN SPITE OF SUFFICIENT OPPORTUNITY ALLOWED TO THE ASSESSEE TO E XPLAIN THE SAME, AND THEREFORE THE ADDITION WAS RIGHTLY MADE BY THE AO. HE REFERRED TO RELEVANT PARAS OF ASSESSMENT ORDER IN SUPPORT OF THE CASE OF THE REVENUE. 5. WE HAVE CONSIDERED SUBMISSIONS OF THE LEARNED DR AND PERUSED THE ORDERS OF THE AO AND THE CIT(A), AND ALSO THE COPIE S OF VARIOUS DOCUMENTS FILED IN THE COMPILATION BY THE ASSESSEE. WE FIND THAT THE CIT(A) HAS PASSED A WELL REASONED ORDER ON THE ISSUE BEFORE HI M. THE CIT(A) HAS CALLED FOR A REPORT FROM THE AO AND THE AO HAS SUBM ITTED ITS REPORT TO THE CIT(A). THE CIT(A) HAS CONSIDERED THE REPORT OF TH E AO AS WELL AS THE COMMENTS OF THE ASSESSEE ON THE REPORT SUBMITTED BY THE AO. THE CIT(A) HAS RECORDED IN HIS APPELLATE ORDER THAT PERUSAL OF THE BANK STATEMENT, WHICH WAS ALSO FORWARDED TO THE AO, FOR HIS COMMENTS, SHO WS THAT THE EXCEPT FOR ONE DEPOSIT IN CASH OF RS.1,60,000/- WHICH WAS OUT OF ASSESSEES OWN CASH BALANCE, THE ASSESSEE HAS BASICALLY DISCOUNTED CHEQ UES, AND ALL THE DEPOSITS ARE MADE AFTER FUNDS HAVE BEEN WITHDRAWN FROM BANK. THE CIT(A) HAS FURTHER RECORDED THAT ON 21.3.2001, THE ASSESSEE HA D DEPOSITED A CHEQUE OF RS.45,00,000/- WHICH WAS RECEIVED FROM J.B.UPADHYAY WHO IS ALSO ITA NOS.562/AHD/2008 WITH CO NO.74/AHD/2008 & 1510 TO 1512/AHD/2008 -3 ASSESSED AT HIMATNAGAR, AND CONFIRMED COPY OF THE A CCOUNT WAS ALSO FILED BY THE ASSESSEE, AND THEREFORE, THE CIT(A) HAS RIGH TLY OBSERVED THAT OUT OF THE PEAK WORKED OUT BY THE AO, THE SUM OF RS.45,00, 000/- STANDS EXPLAINED. THERE BEING NO MISTAKE IN THE ORDER OF THE CIT(A) ON THIS ISSUE, THE SAME IS CONFIRMED AND THE APPEAL OF THE REVENUE IS DISMISSED. CO NO.74/AHD/2008 A.Y.2001-2002 (ASSESSEES CO) 1. THE NOTICE PROCEEDINGS UNDER SECTION 147 ARE IL LEGAL, UNJUSTIFIED AND ARBITRARY. 2. NOTICE UNDER SECTION 148 IS ERRONEOUS 3. FOR THAT NOTICE UNDER SECTION 148 WAS NOT PROPERLY SERVED 6. WE HAVE HEARD THE LEARNED DR. IN VIEW OF OUR DI SMISSING THE REVENUES APPEAL FOR A.Y.2001-2002, THE ISSUES RAIS ED BY THE ASSESSEE ARE MERELY ACADEMIC, AND THEREFORE, CO OF THE ASSESSEE IS DISMISSED. ITA NOS.1510, 1511 AND 1512/AHD/2008 FOR A.Y.2001-0 2, 2002-03 AND 2003-2004 (REVENUES APPEALS) 7. WE FIND THAT THE IDENTICAL ISSUE IS INVOLVED IN ALL THESE THREE APPEALS PREFERRED BY THE REVENUE AND THE CIT(A) HAS PASSED A CONSOLIDATED ORDER FOR ALL THE THREE RELEVANT ASSESSMENT YEARS BEFORE US. 8. THE LEARNED DR HAS RELIED ON THE ORDER OF THE AO . THE LEARNED DR SUBMITTED THAT THE ASSESSEE WAS GIVEN AMBLE OPPORTU NITY TO EXPLAIN THE CREDIT ENTRIES WHICH THE ASSESSEE HAS FAILED TO EXP LAIN, THEREFORE, THE PEAK AMOUNT OF THE DEPOSIT MADE DURING THE RELEVANT YEAR S WERE RIGHTLY ASSESSED AS TOTAL INCOME OF THE ASSESSEE TREATING IT UNEXPLA INED CASH CREDIT IN THE BANK ACCOUNTS UNDER SECTION 68 OF THE ACT. HE REFE RRED TO THE RELEVANT PORTIONS OF THE ASSESSMENT ORDER IN SUPPORT OF THE CASE OF THE REVENUE. 9. WE HAVE CONSIDERED SUBMISSIONS OF THE LEARNED DR AND PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND COPIES OF THE D OCUMENTS FILED IN THE ITA NOS.562/AHD/2008 WITH CO NO.74/AHD/2008 & 1510 TO 1512/AHD/2008 -4 COMPILATION BY THE ASSESSEE BEFORE US. WE FIND THA T THE CIT(A) HAS PASSED A WELL REASONED SPEAKING ORDER ON THE ISSUE. WE FI ND THAT THE CIT(A) HAS CALLED FOR A REPORT FROM THE AO ON THE DOCUMENTS SU BMITTED BY THE ASSESSEE IN SUPPORT OF HIS CASE. THE AO SUBMITTED HIS REPOR T DATED 29.1.2008, WHICH HAS BEEN REPRODUCED BY THE CIT(A) IN HIS APPELLATE ORDER. WE FIND THAT THE CIT(A) HAS CONSIDERED THE REPORT OF THE AO AS WELL THE COMMENTS OF THE ASSESSEE THEREON. WE FIND THAT THE CIT(A) HAS RECO RDED A FINDING THAT THE CASH DEPOSITS OF RS.6,72,000/- ON 23.1.2001 FOR A.Y .2001-02 IS OUT OF OPENING CASH BALANCE OF RS.42,44,909/- AS ON 1.4.20 00, AND THE CASH DEPOSIT OF RS.15 LAKHS ON 25.9.2001 IN A.Y.2002-200 3 IS OUT OF BANK WITHDRAWALS OF RS.3,50,000/- ON 22.9.2001 AND RS.12 ,00,000/- ON 24.9.2011 FROM TALOD NAGARIK BANK ACCOUNT NO.654 AN D NAMASKAR BANK RESPECTIVELY. THE CIT(A) HAS FURTHER RECORDED THA T BALANCE DEPOSITS IN TALOD NAGRIK SAHARKARI BANK LTD. ARE OUT OF TRANSFE R FROM OTHER BANK ACCOUNTS OF THE ASSESSEE AND HIS BROTHERS, SHAILESH AND GUNWANT RASIKLAL MEHTA. THE CIT(A) HAS FURTHER RECORDED THAT IN THE CASE OF THE ASSESSEE CHEQUE DEPOSITS HAVE ALSO BEEN CONSIDERED BY THE AO WHILE WORKING OUT THE PEAK CREDIT WHICH IS NOT PROPER. THE ASSESSEE HAS EXPLAINED THE DEPOSITS BY CHEQUE AS BEING OUT OF TRANSFER FROM OT HER ACCOUNTS. WE FIND THAT THE CIT(A) HAS RECORDED THAT THE SIMILAR ADDIT IONS MADE IN THE HANDS OF THE BROTHER OF THE ASSESSEE, GUNWAN RASIKLAL MEHTA HAVE BEEN DELETED BY THE CIT(A) AND IN CASE OF ASSESSEES BROTHER SHAILE SH RASIKLAL MEHTA, ADDITIONS HAVE BEEN DELETED BY THE TRIBUNAL VIDE OR DER DATED 4.5.2007 FOR A.Y.2002-03 & 2003-04 VIDE ORDER IN ITA NOS.2048 & 2049/AHD/2006 AND FOR A.Y.2001-02, ADDITION OF PEAK CREDIT HAS BE EN DELETED BY THE CIT(A). WE FIND THAT THE REVENUE COULD NOT CONTROV ERT THIS FINDING RECORDED BY THE CIT(A). THESE ARE REVENUES APPEAL S, AND IT IS FOR THE REVENUE TO CONTROVERT THE FINDING RECORDED BY THE C IT(A) TO SHOW THAT THE FINDING RECORDED BY THE CIT(A) WERE NOT JUSTIFIED I N FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE CREDIT S IN THE BANK ACCOUNTS ITA NOS.562/AHD/2008 WITH CO NO.74/AHD/2008 & 1510 TO 1512/AHD/2008 -5 BEING COVERED WITH THE WITHDRAWALS MADE FROM THE BA NK ACCOUNT OF THE ASSESSEE, AND HIS BROTHERS AND CHEQUES HAVE BEEN WR ONGLY CONSIDERED BY THE AO WHILE WORKING OUT THE PEAK CREDITS, ALTHOUGH THE DEPOSITS ARE MADE OUT OF TRANSFER FROM OTHER BANK ACCOUNTS OF THE ASS ESSEE, THERE SEEMS TO BE NO JUSTIFICATION FOR MAKING ANY ADDITION IN THE HAN DS OF THE ASSESSEE, AND ACCORDINGLY THE ORDER FOR THE CIT(A) FOR ALL THESE THREE ASSESSMENT YEARS ARE CONFIRMED AND ALL THE THREE APPEALS OF THE REVENUE ARE DISMISSED. 10. IN THE RESULT, ALL THE APPEALS OF THE REVENUE A ND THE CO OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( &' &' &' &' / TEJ RAM MEENA) '* ! '* ! '* ! '* ! /ACCOUNTANT MEMBER ( . .. .! !! !. .. .0'1 0'1 0'1 0'1 /G.C. GUPTA) 234 234 234 234 /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD