Smt. Anindita Basuthakur, Malda V. I.T.O Wd - 1,Malda., Malda

ITA 1871/KOL/2012

• Counselvise Citation: 187123514 RSA 2012
• Duration Of Justice: 2 year(s) 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 18-12-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A P ROY
• Keywords: Peak credit
• Section: 69C

Judgement Text

I.T.A. NO. 1871/KOL./2012 ASSESSMENT YEAR: 2009-2010 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 1871/KOL/ 2012 ASSESSMENT YEAR : 2009-2010 SMT. ANINDITA BASUTHAKUR,.......................... ..............................APPELLANT AVIRAMPUR, B.G. RODA, MOKDUMPUR, MALDA-732 103 [PAN : AFSPT 3068 A] -VS.- INCOME TAX OFFICER,................................ ..................................RESPONDENT WARD-1, MALDA, NETAJI COMMERCIAL MARKET, MALDA-732 103 APPEARANCES BY: SHRI SUBASH AGARWAL, ADVOCATE , FOR THE ASSESSEE SHRI A.P. ROY, JCIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : DECEMBER 01, 2015 DATE OF PRONOUNCING THE ORDER : DECEMBER 04, 2015 O R D E R PER SHRI P.M. JAGTAP :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), JALPAIGURI DA TED 27.09.2012 FOR THE ASSESSMENT YEAR 2009-10, WHEREBY HE ENHANCED TH E ADDITION OF RS.17,11,726/- MADE BY THE ASSESSING OFFICER ON ACC OUNT OF ENTRIES APPEARING IN THE UNDISCLOSED BANK ACCOUNT OF THE AS SESSEE TO RS.17,16,782/-. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO IS ENGAGED IN THE BUSINESS OF TRADING OF FERTILIZERS, PESTICIDES, ETC. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HER O N 30.11.2009 DECLARING TOTAL INCOME OF RS.1,82,730/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICED BY THE ASSESSING OFFICE R THAT THE ASSESSEE HAS I.T.A. NO. 1871/KOL./2012 ASSESSMENT YEAR: 2009-2010 PAGE 2 OF 5 NOT DISCLOSED HER ACCOUNT MAINTAINED WITH UNION BAN K, MALDA. FROM THE PERUSAL OF THE ENTRIES APPEARING IN THE SAID ACCOUN T, THE ASSESSING OFFICER FOUND THAT THERE WAS A PEAK DEBIT OF RS.13,00,000/- IN THE FORM OF CASH WITHDRAWAL ON 26.03.2009. HE ACCORDINGLY ADDED THE SAID AMOUNT TO THE TOTAL INCOME OF THE ASSESSEE UNDER SECTION 69C OF T HE ACT. HE ALSO FOUND THAT THE TOTAL AMOUNT CREDITED IN THE SAID BANK ACC OUNT OF THE ASSESSEE WAS RS.40,40,491/-. IN THE ABSENCE OF ANY SATISFACT ORY EXPLANATION FORTHCOMING FROM THE ASSESSEE, THE SAID AMOUNT WAS TREATED BY THE ASSESSING OFFICER AS UNDISCLOSED TURNOVER OF THE AS SESSEES BUSINESS AND GROSS PROFIT ESTIMATED AT RS.4,11,726/- BY APPLYIN G THE GROSS PROFIT AT THE RATE 10.19% WAS ADDED BY HIM TO THE TOTAL INCOM E OF THE ASSESSEE. ACCORDINGLY TOTAL INCOME OF RS.17,11,726/- WAS MADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME OF THE ASSESSEE ON ACCO UNT OF TRANSACTIONS APPEARING IN HER UNDISCLOSED BANK ACCOUNT. 3. THE ADDITION OF RS.17,11,726/- MADE BY THE ASSES SING OFFICER ON ACCOUNT OF TRANSACTIONS APPEARING IN HER UNDISCLOSE D BANK ACCOUNT WAS CHALLENGED BY THE ASSESSEE IN THE APPEAL FILED BEFO RE THE LD. CIT(APPEALS). DURING THE COURSE OF APPELLATE PROCEEDINGS, THE LD. CIT(APPEALS) ANALYZED ALL THE TRANSACTIONS REFLECTED IN THE UNDISCLOSED B ANK ACCOUNT OF THE ASSESSEE ON THE BASIS OF SUBMISSIONS MADE BY THE AS SESSEE AS WELL AS REMAND REPORT SUBMITTED BY THE ASSESSING OFFICER. O N THE BASIS OF SUCH DETAILED ANALYSES, THE LD. CIT(APPEALS) ARRIVED AT HIS CONCLUSIONS ON THE ISSUE AS UNDER:- (I) THE CASH DEPOSITS OF RS.16,83,000/- INCLUDES O PENING BALANCE OF RS.1,24,509/-. EXCLUDING THIS OPENING BA LANCE, THE NET CASH DEPOSIT WOULD BE RS.15,58,491/-. SINCE TOTAL CREDIT OF RS.41,65,800/- INCLUDES THE ENCASHMENT OF FDRS, OPENING BALANCE AND INTEREST EARNED DURING THE YEAR , EXCLUDING THE OTHER ELEMENTS, THE NET CASH DEPOSIT OF RS.15,58,491/- IS ORDERED TO BE TREATED AS INCOME O F THE ASSESSEE FOR THE YEAR UNDER APPEAL. (II) SINCE CLOSURE PROCEEDS FROM FD HAVE BEEN SEGRE GATED, THE INVESTMENT IN FD WHICH WAS ENCASHED DURING THE PREVIOUS YEAR HAS TO BE TREATED SEPARATELY. SINCE T HE BANK HAS CONFIRMED THAT ALL 40 FDRS WHICH IN THE NAME OF THE I.T.A. NO. 1871/KOL./2012 ASSESSMENT YEAR: 2009-2010 PAGE 3 OF 5 ASSESSEE AND ENCASHED BETWEEN02.02.2009 TO 17.02.20 09 SEEMS TO HAVE BEEN INVESTMENT IN THE YEAR 2007-08. THEREFORE, THE AO IS DIRECTED TO INITIATE SUITABLE ACTION IN RESPECT OF ASSESSMENT YEAR 2008-09 IN CASE OF THE A SSESSEE TO ASSESS THE PRINCIPAL AMOUNT OF RS.10,00,000/- A ND INTEREST ACCRUED DURING THAT YEAR. FIXED DEPOSIT PRINCIPAL ENCASHED.......RS.10,00,00 0/- INTEREST EARNED ON FIXED DEPOSITS.......RS. 1,37,1 89/- (III) SINCE THE FRESH INVESTMENT OF RS.12,00,000/-W AS MADE OUT OF THE ENCASHMENT OF THE AFORESAID AMOUNT OF RS.11,37,189/- (AND PARTIALLY OUT OF AVAILABLE CRED IT BALANCE), NO ACTION IS REQUIRED IN RESPECT OF THESE FDRS. (IV) THE BANK STATEMENT REFLECTS THAT THE ASSESSEE HAD EARNED INTEREST ON FDRS OF RS.1,37,189/- AND RS.1,8 99/- DURING THE YEAR. APART FROM THE SAME, ON THE CREDIT BALANCE, THE ASSESSEE HAD EARNED FURTHER INTEREST OF RS.19,2 03/- ON THE CREDIT BALANCE. THESE THREE AMOUNTS SHALL ALSO BE TREATED AS INTEREST INCOME OF THE ASSESSEE FOR THE YEAR. (V) AS THE AMOUNT OF CASH DEPOSIT AND INTEREST INCO ME ARE TREATED AS INCOME OF THE ASSESSEE, THE ADDITIONS MA DE BY THE AO ON THE BASIS OF PEAK DEBIT BALANCE AND GP OF RS.4,11,726/- @ 10.19% ON THE DEPOSITED AMOUNTS, AR E ORDERED TO BE DELETED. THE LD. CIT(APPEALS) THUS ENHANCED THE ADDITION OF RS.17,11,726/- MADE TO THE TOTAL INCOME OF THE ASSESSEE ON THIS ISSUE T O RS.17,16,782/-. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUN SEL FOR THE ASSESSEE AT THE TIME OF HEARING BEFORE US HAS NOT DISPUTED THE ADDITION OF RS.1,58,291/- MADE BY THE LD. CIT(APPEALS) ON ACCOU NT OF INTEREST EARNED BY THE ASSESSEE FROM BANK. HE HAS ONLY DISPUTED THE QUANTUM OF ADDITION OF RS.15,58,491/- MADE BY THE LD. CIT(APPEALS) ON A CCOUNT OF NET CASH DEPOSITS FOUND TO BE MADE IN THE BANK ACCOUNT OF TH E ASSESSEE BY RAISING THE LIMITED CONTENTION THAT THERE BEING WITHDRAWALS ALSO MADE IN CASH BY THE ASSESSEE FROM THE SAID BANK ACCOUNT, THE ADDITI ON SHOULD HAVE BEEN I.T.A. NO. 1871/KOL./2012 ASSESSMENT YEAR: 2009-2010 PAGE 4 OF 5 WORKED OUT ON THE BASIS OF PEAK CREDIT. IN THIS REG ARD, HE HAS INVITED OUR ATTENTION TO THE COPY OF THE STATEMENT OF BANK ACCO UNT OF THE ASSESSEE PLACED AT PAGE NOS. 13 TO 15 OF THE PAPER BOOK TO S HOW THAT THERE ARE WITHDRAWALS MADE IN CASH BY THE ASSESSEE ON VARIOUS DATES. KEEPING IN VIEW THIS POSITION CLEARLY EVIDENT FROM THE BANK AC COUNT OF THE ASSESSEE, WHICH HAS NOT BEEN DISPUTED EVEN BY THE LD. D.R., W E ARE OF THE VIEW THAT THE ADDITION ON ACCOUNT OF CASH DEPOSITS FOUND TO B E MADE IN THE UNDISCLOSED BANK ACCOUNT OF THE ASSESSEE IS REQUIRE D TO BE MADE ON PEAK CREDIT AFTER TAKING INTO CONSIDERATION THE WITHDRAW ALS MADE IN CASH FROM THE SAID BANK ACCOUNT, WHICH IN THE ABSENCE OF ANY OTHER UTILIZATION CAN BE PRESUMED TO HAVE BEEN MADE AVAILABLE TO THE ASSE SSEE TO MAKE THE CORRESPONDING DEPOSITS. IN THIS REGARD, THE LD. COU NSEL FOR THE ASSESSEE HAS PREPARED AND FURNISHED PEAK CREDIT WORKING SHOW ING SUCH PEAK CREDIT AT RS.7,68,000/-, WHICH, IN OUR OPINION, REQUIRES V ERIFICATION BY THE ASSESSING OFFICER. WE, THEREFORE, RESTORE THIS ISSU E TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO VERIFY THE PE AK CREDIT WORKING FILED BY THE ASSESSEE AND RESTRICT THE ADDITION MADE BY T HE LD. CIT(APPEALS) ON ACCOUNT OF CASH DEPOSITS FOUND TO BE MADE IN THE BA NK ACCOUNT OF THE ASSESSEE TO THE EXTENT OF SUCH PEAK CREDIT. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 04, 2015. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 4 TH DAY OF DECEMBER, 2015 COPIES TO : (1) SMT. ANINDITA BASUTHAKUR, AVIRAMPUR, B.G. RODA, MOKDUMPUR, MALDA-732 103 (2) INCOME TAX OFFICER, WARD-1, MALDA, NETAJI COMMERCIAL MARKET, MALDA-732 103 I.T.A. NO. 1871/KOL./2012 ASSESSMENT YEAR: 2009-2010 PAGE 5 OF 5 (3) COMMISSIONER OF INCOME-TAX (APPEALS), JALPAIG URI (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.