The ITO, Ward-1(3), Surat V. Smt. Jayaben Mathurdas Kaneria, Surat

ITA 1739/AHD/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76706 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 13-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R N VEPARI
• Assessee Lawyers: P L KUREEL
• Keywords: Income from undisclosed sources; Peak credit; Assessment record
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) I.T. A. NOS.1605 & 1739 /AHD/2013 (ASSESSMEN T YEARS: 2009-10) SMT. JAYABEN MATHURDAS KANERIA 64, HIMGIRI BUNGLOWS, NEAR: RAJHANS CINEMA, PIPLOD, DUMAS ROAD, SURAT- 394550 PAN NO. ADPPK 7316M V/S THE I.T.O, WARD (3)(3), SURAT (APPELLANT) (RESPONDENT) THE I.T.O, WARD (3)(3), SURAT V/S SMT. JAYABEN MATHURDAS KANERIA 64, HIMGIRI BUNGLOWS, NEAR: RAJHANS CINEMA, PIPLOD, DUMAS ROAD, SURAT- 394550 PAN NO. ADPPK 7316M (APPELLANT) (RESPONDENT) ITA NOS. 1613 & 1692/AHD/2013 (ASSESSMENT YEA RS: 2009-10) AMITKUMAR MATHURDAS KANERIA 64, HIMGIRI BUNGLOWS, NEAR: RAJHANS CINEMA, PIPLOD, DUMAS ROAD, SURAT- 394550 PAN NO. ADPPK 7315J V/S THE I.T.O, WARD (3)(3), SURAT (APPELLANT) (RESPONDENT) THE I.T.O, WARD (3)(3), SURAT V/S AMITKUMAR MATHURDAS KANERIA 64, HIMGIRI BUNGLOWS, NEAR: RAJHANS CINEMA, PIPLOD, DUMAS ROAD, SURAT- 394550 PAN NO. ADPPK 7315J (APPELLANT) (RESPONDENT) ITA NOS. 1605,1613,16 14, 1692, 1693 & 1739/AHD/2013 . A.YS. 2009- 10 2 ITA NOS. 161 4 & 1693/AHD/2013 (ASSESSMEN T YEARS: 2009-10) SMT. JULLIE AMIT KANERIA KANERIA 64, HIMGIRI BUNGLOWS, NEAR: RAJHANS CINEMA, PIPLOD, DUMAS ROAD, SURAT- 394550 PAN NO. AIZPK 3199B V/S THE I.T.O, WARD (3)(3), SURAT (APPELLANT) (RESPONDENT) THE I.T.O, WARD (3)(3), SURAT V/S SMT. JULLIE AMIT KANERIA KANERIA 64, HIMGIRI BUNGLOWS, NEAR: RAJHANS CINEMA, PIPLOD, DUMAS ROAD, SURAT- 394550 PAN NO. AIZPK 3199B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.N. VEPARI RESPONDENT BY : SHRI P.L. KUREEL, SR. D.R. ( )/ ORDER DATE OF HEARING : 08-05-2014 DATE OF PRONOUNCEMENT : 16-05-2014 PER SHRI ANIL CHATURVEDI,A.M. 1. THESE 6 APPEALS OF WHICH 3 ARE FILED BY THE ASSESSE E AND THE OTHER 3 ARE FILED BY THE REVENUE ARE AGAINST THE ORDER OF CIT(A)-IV, SURAT DATED 30.03.2013 FOR A.Y. 2009-10. 2. BEFORE US AT THE OUTSET, BOTH THE PARTIES SUBMITTED THAT THOUGH THE APPEALS ARE OF 3 DIFFERENT ASSESSEES BUT THEY ARE ALL FAMIL Y MEMBERS AND THE FACTS IN ALL THE 6 APPEALS (3 APPEALS FILED BY REVENUE AND 3 FILED BY ASSESSEE) ARE ITA NOS. 1605,1613,16 14, 1692, 1693 & 1739/AHD/2013 . A.YS. 2009- 10 3 IDENTICAL EXCEPT FOR THE AMOUNTS AND THEREFORE THEY HAVE COMMON SUBMISSIONS TO MAKE AND THEREFORE ALL THE APPEALS C AN BE HEARD TOGETHER. WE THEREFORE PROCEED TO DISPOSE OF ALL THE APPEALS TOG ETHER BY WAY OF CONSOLIDATED ORDER. FOR THE SAKE OF CONVENIENCE AN D PROCEED WITH THE FACTS IN THE CASE OF JAYABEN KANERIA FOR AY 2009-10. ITA NOS. 1605 & 1739/AHD/2013 (SMT. JAYABEN MATHURD AS KANERIA) 3. ASSESSEE IS AN INDIVIDUAL STATED BE BE DERIVING INC OME FROM SALARY, BUSINESS, PARTNERSHIP FIRM AND OTHER SOURCES. ASSESSEE FILED HER RETURN OF INCOME FOR AY 2009-10 ON 31.3.2010 DECLARING TOTAL INCOME OF R S 412475/-. THEREAFTER ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT VIDE OR DER DATED 26.12.2011 AND THE TOTAL INCOME WAS DETERMINED AT RS 86,57,500 /-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE CIT (A). CIT(A) VIDE ORDER DATED 30.3.2013 GRANTED PARTIAL RELIEF TO THE ASSES SEE. AGGRIEVED BY THE ORDER OF CIT(A), ASSESSEE AND REVENUE ARE NOW IN APPEAL B EFORE US. THE EFFECTIVE GROUND RAISED BY ASSESSEE READS AS UNDER:- (I) ADDITION OF RS.48,40,000/-: (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING ADDITION O F RS.48,40,000/- OUT OF ADDITION OF RS.82,45,026/- MADE BY THE ASSESSING OFFICER. (2) THE APPELLANT SUBMITS THAT THE LEARNED COMMISSI ONER OF INCOME-TAX (APPEALS) ERRED IN MAKING ADDITION OF ENTIRE CASH DEPOSITS WHEN THESE WERE EXPLAINED AND THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN NOT C ONSIDERING THE DETAILS SUBMITTED. 4. ON THE OTHER HAND, THE GROUNDS RAISED BY REVENUE RE ADS AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LA W, THE LD. CIT(A)-I, SURAT HAS ERRED IN RESTRICTING THE ADDITION MADE ON ACCOUNT OF UNACCOU NTED INCOME FROM UNEXPLAINED SOURCES OF RS.82,45,026/- TO RS.34,05,026/- WITHOUT APPRECIATI NG THE FACT THAT THE ASSESSEE FAILED TO EXPLAIN OR SUBMIT SUBSTANTIAL EVIDENCE IN SUPPORT OF HIS CO NTENTIONS AND THE FACT THAT THE TOTAL AMOUNT DEPOSITED EITHER IN CASH OR BY CHEQUES THE UNDISCLO SED BANK WAS NOTHING BUT THE ASSESSEE'S UNACCOUNTED INCOME EARNED FROM UNEXPLAINED SOURCES. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD, CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3. IT IS THEREFORE, PRAYED THAT THE ORDER OF THE CIT(A ) MAY BE SET-SIDE AND THAT OF ASSESSING OFFICER MAY BE RESTORED TO THE ABOVE EXTENT. ITA NOS. 1605,1613,16 14, 1692, 1693 & 1739/AHD/2013 . A.YS. 2009- 10 4 5. SINCE THE GROUNDS RAISED IN THE APPEALS OF ASSESSEE AND REVENUE ARE INTERCONNECTED, BOTH APPEALS ARE CONSIDERED TOGETHE R. 6. ON THE BASIS OF ANNUAL INFORMATION REPORT (AIR) RE CEIVED BY THE AO, AO NOTICED THAT ASSESSEE WAS HOLDING A BANK ACCOUNT WI TH STATE BANK OF INDIA IN WHICH CASH AGGREGATING TO RS 48,40,000/- WAS DEPOSI TED DURING THE FINANCIAL YEAR. ON SCRUTINIZING THE BANK STATEMENT OBTAINED B Y AO FROM THE BANK PURSUANT TO THE NOTICE U/S 133A, AO NOTICED THAT AS SESSEE HAD REGULARLY DEPOSITED CHEQUES AND CASH AND THE TOTAL OF THE CRE DITS IN THE ACCOUNT WAS RS 82,45,026/- INCLUDING TOTAL CASH DEPOSITS OF RS 48,40,000/-. ASSESSEE WAS ASKED TO FURNISH THE SOURCE OF DEPOSITS. A.O I N PARA (VII) ON PAGE 13 OF THE ORDER HAS NOTED THAT ASSESSEE HAS TIME AND AGAI N CHANGED HER SUBMISSIONS/STATEMENT NAMELY THAT IN THE FIRST STAT EMENT IT WAS STATED THAT ASSESSEE WAS DEALING IN SAREES/DRESS MATERIALS FROM RESIDENCE AND THE YEARLY INCOME WAS SHOWN IN THE RETURN OF INCOME. IN THE SECOND SUBMISSION IT WAS SUBMITTED THAT SHE HAD ENTERED INTO CERTAIN DEA LINGS IN YARN ON NO PROFIT NO LOSS BASIS AND ACCEPTED THAT THE BANK ACCOUNT W AS NOT REFLECTED IN THE BOOKS OF ACCOUNT. SUBSEQUENTLY, IN LETTER TO CIT, A SSESSEE ADMITTED THAT THE DEPOSITS MADE IN THE BANK ACCOUNT WERE UNACCOUNTED INCOME FROM UNDISCLOSED SOURCES AND HAD OFFERED IT TO TAX. THUS THE AO CONCLUDED THAT THE SUBMISSIONS OF THE ASSESSEE WERE NOT ACCEPTABLE AND THE ASSESSEE COULD NOT EXPLAIN OR SUBMIT ANY EVIDENCE IN SUPPORT OF HE R STAND. HE THEREFORE CONCLUDED THAT WITH THE INTENTION TO EVADE THE TAX, ASSESSEE HAD DEPOSITED HER UNACCOUNTED INCOME IN THE BANK ACCOUNT. HE THUS CONSIDERED THE TOTAL DEPOSITS IN THE BANK ACCOUNT AGGREGATING TO RS 82,4 5,026/- AS UNDISCLOSED INCOME OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF A O, ASSESSEE CARRIED THE MATTER BEFORE CIT(A). CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE GRANTED PARTIAL RELIEF TO THE ASSESSEE BY HOLDING AS UNDER:- 9. DECISION. I HAVE GONE THROUGH THE ASSESSMENT RECORD, ASSESSME NT ORDER AND THE SUBMISSIONS OF THE APPELLANT. THE ASSESSMENT RECORDS WERE REQUISIT IONED FROM WHICH IT IS SEEN THAT THE APPELLANT HAD NOT DISCLOSED THE BANK ACCOUNT MAINTAINED WITH SBI. IT WAS ONLY WHEN SHE WAS ISSUED SHOW CAUSE NOTICE BY THE AO ON THE BASIS OF AIR RECEIVED FROM SBI DID SHE OWN THE BANK ACCOUNT BUT SUBMITTED THAT THE TRANSACTIONS IN THE BANK ACCOUNT REFLECTED HER YARN TRADING TRANSACTIONS CARRIED OUT ON NO ITA NOS. 1605,1613,16 14, 1692, 1693 & 1739/AHD/2013 . A.YS. 2009- 10 5 PROFIT NO LOSS BASIS. THE APPELLANT THEREAFTER DISC LOSED ADDITIONAL INCOME OF RS. 9,72,000/- FOR TAXAT ION AS EARNED OUT OF UNDISCLOSED SOURCES. THE APPELLANT HAD NOT FILED ANY PROFIT AND LOSS ACCOUNT OR BALANCE SHEET WITH THE RETURN OF INCOME WHICH WAS A CCOMPANIED ONLY WITH A COMPUTATION OF INCOME. IT WAS ONLY LATER THAT THE APPELLANT SUBMITTED A PROFI T AND LOSS ACCOUNT AND CASH BOOK AFTER INCORPORATIN G THE TRANSACTIONS IN THE UNDISCLOSED BANK ACCOUNT. I N THE STATEMENT OF FACT FILED WITH APPEAL MEMO THE APPELLANT HAS ADMITTED THAT 'ASSESSEE REGULARLY MAI NTAINS A SAVINGS BANK ACCOUNT WITH THE STATE BANK OF INDIA, WHICH BEARS ACCOUNT NUMBER 30360786486. T HE SAME HAS BEEN OPERATIONAL SINCE APRIL 2008, AND IS A REGULAR BANK ACCOUNT, WHICH IS ALWAYS REFL ECTED IN THE PERSONAL BALANCE SHEET, PREPARED BY THE ASSESSEE. EVEN DURING THE CURRENT YEAR, AT THE TIME OF FILING OF INCOME-TAX RETURN, ASSESSEESHOWED A SUM RS. 1,800/- AS INTEREST EARNED AS SAVINGS BANK INTEREST OUT OF THE SAID BANK ACCOUNT. THEREFORE, FACTUALLY, IT MAY BE NOTED THAT IT IS NOT AS THOUGH THIS ACCOUNT WAS UNACCOUNTED, AS CLAIMED BY THE ASSESSING OFFICER IN CLAUSE (XI) OF PARAGRAPH 4.7 O F THE ASSESSMENT ORDER. IT WAS ONLY CERTAIN CASH DEPOSITS, WHICH HAD REMAINED UNACCOUNTED, WHICH HAD BEEN DULY DISCLOSED VOLUNTARILY BY THE ASSESSEE' THEREFORE TO SAY THAT THE ACCOUNT IN QUES TION WAS A DISCLOSED ACCOUNT IS NOT CORRECT. EVEN THEN, IF THERE IS JUSTIFIED AND DISCLOSED SOURCE OF A CREDIT IN THE BANK ACCOUNT, IT CANNOT BE TREATED AS UNEXPLAINED INCOME. THE APPELLANT HAS FILED EXPLANA TION REGARDING THE SOURCE OF CHEQUE DEPOSITS IN THE BANK ACCOUNT MAINTAINED WITH STATE BANK OF INDI A ALONG WITH THE AUDITED STATEMENT OF ACCOUNT OF THE GROUP CONCERNS. ON PERUSAL OF THOSE DOCUMENTS, IT IS SEEN THAT THE TRANSACTIONS WITH THE GROUP CONCERNS IN CHEQUE ARE DULY REFLECTED IN THE AUDITE D BALANCE SHEET OF THE GROUP CONCERNS AND RE-CASTED BALANCE SHEET OF THE APPELLANT. THE CHEQUE DEPOSITS IN THE BANK ACCOUNT THEREFORE STANDS EXPLAINED AS TO THE SOURCE AND THERE IS NO NEED TO MAKE ANY ADDI TION IN RESPECT OF SUCH TRANSACTIONS IN THE HANDS O F THE APPELLANT. 9.2 AS FAR AS THE TOTAL CASH DEPOSIT OF RS. 48,40,000/- IS CONCERNED, THE EXPLANATION OF THE APPELLANT CANNOT BE ACCEPTED. THE APPELLANT HAS ARRIVED AT TH E FIGURE OF THE OFFERED UNEXPLAINED INCOME OF RS. 9,72,000/- BY WORKING OUT THE HIGHEST PEAK CASH SHO RTAGE IN THE ACCOUNT. FURTHER, THIS HAS BEEN DONE BY ASSUMING THAT THE CASH WITHDRAWN AT DIFFERENT TI MES WAS AVAILABLE FOR REDEPOSIT. TO EXPLAIN THIS CASH AVAILABILITY THE APPELLANT HAS PREPARED A CONS OLIDATED CASH BOOK FOR ALL ITS BANK ACCOUNTS. 9.3 THE APPELLANT HAS GIVEN A SEPARATE 'WORKING OF PEAK AFTER EXCLUDING OFFERED INCOME OF RS. 9,72,000/- EVEN THIS WORKING WHICH COMPUTES THE C ASH SHORTAGE IF OFFERED INCOME IS IGNORED CANNOT BE ACCEPTED. AS PER THIS WORKING THE APPELLANT HAS CLAIMED TO HAVE HIGHEST CASH SHORTAGE OF RS. 9,72,000/- ON 05-11-2008 WHICH SHE HAS OFFERED FOR TAXATION. BUT THE TABLE GIVEN FOR WORKING OUT THE CASH SHORTAGE IS ITSELF NOT VERIFIABLE FROM THE APP ELLANT'S BANK STATEMENTS OF DIFFERENT BANKS AND HER CASH BOOK AS NOT ALL TRANSACTIONS ARE REFLECTED THE REIN. 9.4 HOWEVER, FROM THE BANK STATEMENT OF SBI, IT IS SEEN THAT CASH HAS BEEN WITHDRAWN ON VARIOUS DATES BY DIFFERENT INDIVIDUALS LIKE JAGAN, BIMAL, SEJAL ETC. THE APPELLANT HAS NOT EXPLAINED HOW CASH WITHDRAWN BY JAGAN, BIMAL SEJAL ETC ON VARIOUS DATE S WAS AVAILABLE FOR RE-DEPOSITING IN THE BANK ACCOUNT AS CASH MUST HAVE BEEN WITHDRAWN FOR A SPEC IFIC PURPOSE AND THEREFORE NOT AVAILABLE FOR ROTATION AS CLAIMED. 9.5 CONSIDERING THE ABOVE FACTS AND DISCREPANCIES, THE TOTAL CASH DEPOSIT OF RS. 48,40,000/- IN THE APPELLANT'S UNDISCLOSED BANK ACCOUNT MAINTAINED WIT H SBI IS TREATED AS THE UNEXPLAINED INCOME OF THE APPELLANT. ACCORDINGLY THE ADDITION OF RS. 82,45,02 6/- MADE BY THE AO ON THIS ACCOUNT IS RESTRICTED TO RS. 48,40,000-. THIS GROUND IS PARTLY ALLOWED. 7. AGGRIEVED BY THE ORDER OF CIT(A), ASSESSEE AND REVE NUE ARE NOW IN APPEAL BEFORE US. 8. BEFORE US, LD AR REITERATED THE SUBMISSIONS MADE BE FORE CIT(A). HE FURTHER SUBMITTED THAT ASSESSEE HAD SUBMITTED THE SOURCE OF CREDIT IN THE BANK ACCOUNT WERE THE AMOUNTS RECEIVED FROM GROUP CONCER NS AND THE SAME WERE ITA NOS. 1605,1613,16 14, 1692, 1693 & 1739/AHD/2013 . A.YS. 2009- 10 6 DULY REFLECTED IN THE AUDITED BALANCE SHEETS OF THE GROUP CONCERN AND THEREFORE THE CHEQUE DEPOSITS STANDS FULLY EXPLAINE D. HE FURTHER SUBMITTED THAT THE ENTIRE CREDITS IN THE BANK ACCOUNT CANNOT BE CONSIDERED AS INCOME. WITH RESPECT TO THE CASH DEPOSITS, HE SUBMITTED THA T OUT OF THE TOTAL CASH DEPOSITS, ONLY CASH DEPOSITS OF RS 9,72,000 (BEING THE PEAK AMOUNT OF THE TOTAL CASH DEPOSITS OF RS 48,00,000) HAS BEEN CONCE DED BY ASSESSEE AND THEREFORE THE ADDITION SHOULD BE RESTRICTED TO THE PEAK AMOUNT. HE ALSO PLACED BEFORE US, THE WORKING OF PEAK CREDIT AND STATEMENT SHOWING THE EVIDENCE AND CONFIRMATIONS OF THE ENTRIES ON THE BASIS OF WH ICH THE ADDITION WAS DELETED BY CIT(A). HE THEREFORE SUBMITTED THAT ON T HE BASIS OF THE WORKING FURNISHED THE ADDITION ON ACCOUNT OF CASH DEPOSITS SHOULD BE RESTRICTED TO RS 9,72,000/-. THE LD DR ON THE OTHER HAND TOOK US THR OUGH THE VARIOUS FINDINGS OF AO AND SUBMITTED THAT ASSESSEE HAD NOT EXPLAINED THE SOURCE OF DEPOSITS IN THE BANK ACCOUNT AND THEREFORE THE AO WAS FULLY JUSTIFIED IN MAKING THE ADDITION OF THE FULL AMOUNT. HE FURTHER SUBMITTED T HAT BEFORE CIT(A), ASSESSEE HAD FURNISHED THE EXPLANATION WITH RESPECT TO THE SOURCE OF CHEQUE DEPOSITS AND ON THE BASIS OF THOSE EXPLANATIONS, CI T(A) GRANTED RELIEF TO THE ASSESSEE. THE SUBMISSIONS THAT WERE MADE BEFORE CIT (A) WERE NEVER MADE BY THE ASSESSEE BEFORE A.O. FURTHER, ON THE SUBMISS IONS AND EVIDENCES THAT WERE FURNISHED BY THE ASSESSEE BEFORE CIT(A), NO RE MAND REPORT WAS OBTAINED FROM A.O NOR THE A.O WAS GRANTED OPPORTUNI TY TO EXAMINE THE EVIDENCES. THE LD. D.R. FURTHER SUBMITTED THAT THE ASSESSEE SHOULD ALSO PROVE THE CORRELATION BETWEEN CREDIT AND DEBIT ENTR IES IN THE BANK ACCOUNT AND ONLY IF IT IS PROVED, THE PEAK CREDIT THEORY COULD BE ACCEPTED. HE THEREFORE SUBMITTED THAT THE AO BE GRANTED AN OPPORTUNITY TO EXAMINE THE DETAILS AND EXPLANATIONS SUBMITTED BY ASSESSEE BEFORE CIT(A). 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE A.O NOTICED THAT CERTAIN DEPOSITS WERE MADE IN THE BANK ACCOUNT MAINTAINED WITH STATE BANK OF INDIA WHICH I NCLUDED CHEQUE AS WELL AS CASH DEPOSITS BUT THE DEPOSITS WERE NOT OFFERED TO TAX AND IN THE ABSENCE ITA NOS. 1605,1613,16 14, 1692, 1693 & 1739/AHD/2013 . A.YS. 2009- 10 7 OF SATISFACTORY EXPLANATION FROM THE ASSESSEE, THE ENTIRE DEPOSITS AGGREGATING TO RS 82,45,026/- WERE CONSIDERED AS UNDISCLOSED IN COME. IT IS ALSO SUBMITTED BEFORE US BY THE LD DR THAT BASED ON THE SUBMISSIONS AND EVIDENCES FURNISHED BEFORE CIT(A), RELIEF WAS GRANT ED TO ASSESSEE AND THAT THOSE EVIDENCE WERE NEVER BEFORE A.O. BEFORE US, LD . AR COULD NOT CONTROVERT THE SUBMISSION OF THE LD DR THAT THE EVI DENCE WAS NOT FILED BEFORE AO. FURTHER THERE IS NO MATERIAL ON RECORD TO DEMON STRATE THAT ON THE EVIDENCE THAT WERE FILED BY THE ASSESSEE BEFORE CIT (A), ANY REMAND REPORT OR COMMENTS WERE CALLED BY CIT(A) FROM THE AO. IN SUCH CIRCUMSTANCES WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE AND FAI R PLAY, REVENUE SHOULD BE ALLOWED AN OPPORTUNITY TO EXAMINE THE EVIDENCE THAT WERE FILED BEFORE CIT(A) AND ON THE BASIS OF WHICH RELIEF WAS GRANTED TO THE ASSESSEE. WITH RESPECT TO CASH DEPOSITS, IT IS THE SUBMISSION OF THE ASSESSEE THAT THAT THE ENTIRE CASH DEPOSITS CANNOT BE CONSIDERED AS INCOME BUT ONLY TH E PEAK CREDIT SHOULD BE CONSIDERED AS INCOME. WE AGREE WITH THE SUBMISSION OF THE LD A.R. THAT IT IS A SETTLED LAW THAT ONLY PEAK CREDIT HAS TO BE CONSI DERED AS INCOME AND NOT THE ENTIRE CREDIT. BEFORE US, LD. A.R. HAS FILED THE WO RKING OF PEAK CREDIT BUT WE FIND THAT THIS WORKING WAS NOT BEFORE A.O. WE THERE FORE REMIT THE ENTIRE ISSUE TO THE FILE OF AO TO EXAMINE THE EVIDENCE AND SUBMI SSION OF THE ASSESSEE AND WITH RESPECT TO THE CASH DEPOSITS, TO WORK OUT THE PEAK CREDIT ON THE BASIS OF SETTLED PRACTICE AND THEREAFTER DECIDE THE ISSUE AS PER LAW. NEEDLESS TO STATE THAT AO SHALL GRANT ADEQUATE OPPORTUNITY OF H EARING TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO SUBMIT PROMPTLY ALL THE REQUIRED DETAILS CALLED FOR BY THE AO. THUS THE GROUNDS ARE ALLOWED FOR STA TISTICAL PURPOSES. 10. IN THE RESULT THE APPEAL OF THE ASSESSEE AND REVENU E ARE ALLOWED FOR STATISTICAL PURPOSES. ITA NOS. 1613 & 1692/AHD/2013 (AMITKUMAR MATHURDAS KANERIA) 11. THE EFFECTIVE GROUNDS RAISED BY ASSESSEE READS AS U NDER:- ITA NOS. 1605,1613,16 14, 1692, 1693 & 1739/AHD/2013 . A.YS. 2009- 10 8 (I) ADDITION OF RS.98,70,000/-: (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING ADDITION O F RS.98,70,000/- OUT OF ADDITION OF RS.3,61,95,891/- MADE BY THE ASSESSING OFFICER. (2) THE APPELLANT SUBMITS THAT THE LEARNED COMMISSI ONER OF INCOME-TAX (APPEALS) ERRED IN MAKING ADDITION OF ENTIRE CASH DEPOSITS WHEN THESE WERE EXPLAINED AND THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN NOT C ONSIDERING THE DETAILS SUBMITTED. 12. ON THE OTHER HAND THE GROUNDS RAISED BY THE REVENU E READS AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LA W, THE LD. CIT(A)-I, SURAT HAS ERRED IN RESTRICTING THE ADDITION MADE ON ACCOUNT O F UNACCOUNTED INCOME FROM UNEXPLAINED SOURCES OF RS.3,61,95,891/- TO RS.98,70 ,000/- WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE FAILED TO EXPLAIN OR SUBMIT SUBSTANTIAL EVIDENCE IN SUPPORT OF HIS CONTENTIONS AND THE FACT THAT THE TOTAL AMOUNT DEPOSITED EITHER IN CASH OR BY CHEQUES THE UNDISCLOSED BANK WAS NOTHING BUT THE AS SESSEE'S UNACCOUNTED INCOME EARNED FROM UNEXPLAINED SOURCES. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD, CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3. IT IS THEREFORE, PRAYED THAT THE ORDER OF THE CIT(A ) MAY BE SET-SIDE AND THAT OF ASSESSING OFFICER MAY BE RESTORED TO THE ABOVE EXTE NT. 13. BEFORE US, SINCE BOTH THE PARTIES HAVE ADMITTED THA T THE FACTS OF THE CASE ARE IDENTICAL TO THAT OF IN ITA NOS. 1605 & 1739/AHD/20 13 IN THE CASE OF JAYABEN KANERIA. WE THEREFORE FOR SIMILAR REASONS WHILE DEC IDING THE APPEALS IN THE CASE OF JAYABEN KANERIA (ITA NOS. 1605 & 1739/A/201 3) REMIT THE ENTIRE ISSUE TO THE FILE OF AO TO EXAMINE THE EVIDENCE AND SUBMISSION OF THE ASSESSEE AND WITH RESPECT TO THE CASH DEPOSITS, TO WORK OUT THE PEAK CREDIT ON THE BASIS OF SETTLED PRACTICE AND THEREAFTER DEC IDE THE ISSUE AS PER LAW. NEEDLESS TO STATE THAT AO SHALL GRANT ADEQUATE OPPO RTUNITY OF HEARING TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO SUBMIT PRO MPTLY ALL THE REQUIRED DETAILS CALLED FOR BY THE AO. THUS THE GROUNDS OF ASSESSEE AND REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 14. IN THE RESULT, THE APPEALS OF ASSESSEE AND REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ITA NOS. 1614 & 1693/AHD/2013 (SMT. JULLIE AMIT KAN ERIA) ITA NOS. 1605,1613,16 14, 1692, 1693 & 1739/AHD/2013 . A.YS. 2009- 10 9 15. THE EFFECTIVE GROUNDS RAISED BY THE ASSESSEE READS AS UNDER;- (I) ADDITION OF RS.36,00,000/-: (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING ADDITION O F RS.36,00,000/- OUT OF ADDITION OF RS.81,73,725/- MADE BY THE ASSESSING OFFICER. (2) THE APPELLANT SUBMITS THAT THE LEARNED COMMISSI ONER OF INCOME-TAX (APPEALS) ERRED IN MAKING ADDITION OF ENTIRE CASH DEPOSITS WHEN THESE WERE EXPLAINED AND THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN NOT C ONSIDERING THE DETAILS SUBMITTED. 16. ON THE OTHER HAND GROUNDS BY THE REVENUE READS AS U NDER:- (I) ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LA W, THE LD. CIT(A)-I, SURAT HAS ERRED IN RESTRICTING THE ADDITION MADE ON ACCOUNT OF UNACCOU NTED INCOME FROM UNEXPLAINED SOURCES OF RS.81,73,725/- TO RS.36,60,000/- WITHOUT APPRECIATI NG THE FACT THAT THE ASSESSEE FAILED TO EXPLAIN OR SUBMIT SUBSTANTIAL EVIDENCE IN SUPPORT O F HIS CONTENTIONS AND THE FACT THAT THE TOTAL AMOUNT DEPOSITED EITHER IN CASH OR BY CHEQUES THE U NDISCLOSED BANK WAS NOTHING BUT THE ASSESSEE'S UNACCOUNTED INCOME EARNED FROM UNEXPLAIN ED SOURCES. (II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD, CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. (III) IT IS THEREFORE, PRAYED THAT THE ORDER OF THE CIT( A) MAY BE SET-SIDE AND THAT OF ASSESSING OFFICER MAY BE RESTORED TO THE ABOVE EXTE NT. 17. BEFORE US, SINCE BOTH THE PARTIES HAVE ADMITTED TH AT THE FACTS OF THE CASE ARE IDENTICAL TO THAT OF IN ITA NOS. 1605 & 1739/AHD/20 13 IN THE CASE OF JAYABEN KANERIA. WE THEREFORE FOR SIMILAR REASONS WHILE DEC IDING THE APPEALS IN THE CASE OF JAYABEN KANERIA (ITA NOS. 1605 & 1739/A/201 3) REMIT THE ENTIRE ISSUE TO THE FILE OF AO TO EXAMINE THE EVIDENCE AND SUBMISSION OF THE ASSESSEE AND WITH RESPECT TO THE CASH DEPOSITS, TO WORK OUT THE PEAK CREDIT ON THE BASIS OF SETTLED PRACTICE AND THEREAFTER DEC IDE THE ISSUE AS PER LAW. NEEDLESS TO STATE THAT AO SHALL GRANT ADEQUATE OPPO RTUNITY OF HEARING TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO SUBMIT PRO MPTLY ALL THE REQUIRED DETAILS CALLED FOR BY THE ASSESSING OFFICER. THUS THE GROUNDS OF ASSESSEE AND REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ITA NOS. 1605,1613,16 14, 1692, 1693 & 1739/AHD/2013 . A.YS. 2009- 10 10 18. IN THE RESULT THE APPEALS OF ASSESSEE AND REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 19. IN THE RESULT ALL THE APPEALS OF ASSESSEE AND REVEN UE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 16 - 05 - 2014. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHM EDABAD