ITO 22 (3)2, NAVI MUMBAI V. MOHAN Y JADHAV, NAVI MUMBAI

ITA 1888/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79105 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 08-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PITAMBAR DAS
• Assessee Lawyers: D P SHETTY
• Keywords: Peak credit

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B BENCH, MUMBAI BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND DR. S.T.M.PAVALAN, JUDICIAL MEMBER ITA NO.1888/MUM/2013 (ASSESSMENT YEAR: 2009-10) ITO 22(3)(2) VASHI RLY STN COMPLEX, TOWER NO.6 3 RD FLOOR, R. NO.307 VASHI NAVI MUMBAI VS. MOHAN Y JADHAV C/5/1/14, GANGOTRI SECTOR 5, CBD BELAPUR NAVI MUMBAI PAN : AEGPJ2393M (APPELLANT) .. (RESPONDENT ) APPELLANT BY: SHRI PITAMBAR DAS RESPONDENT BY : SHRI D.P. SHETTY DATE OF HEARING : 09.06.2014 DATE OF PRONOUNCEMENT : 09.06.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE LD.CIT(A)- 33, MUMBAI DATED 24.12.2012 FOR THE ASSESSMENT YEAR 2009-10. 2. IN THIS APPEAL, THE REVENUE HAS AGITATED THE DEC ISION OF THE LD.CIT(A) IN TAKING THE PEAK BALANCE OF THE BANK ACCOUNTS FOR THE PURPO SE OF RESTRICTING THE ADDITION MADE BY THE AO U/S 69A OF THE ACT. 3. BRIEFLY STATED, DURING THE COURSE OF THE ASSESSM ENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE HAD DEPOSITED CASH IN THE ACCOUNT S BEARING NOS. 26 AND 6162 MAINTAINED WITH BANK OF INDIA, BELAPUR BRANCH AMOUN TING TO RS.23,72,000/- AND 22,07,500/- IN THE SAID ACCOUNTS RESPECTIVELY. SINC E THE ASSESSEE DID NOT SUBMIT ANY EVIDENCE FOR THE SOURCE OF CASH IN RESPONSE TO THE AOS NOTICE, THE AO MADE THE ITA NO.1888/M/2013 MOHAN Y JADHAV ASSESSMENT YEAR 2009-10 2 ADDITION OF RS.45,79,500/-, THE AGGREGATE AMOUNT DE POSITED IN BOTH THE ACCOUNTS. ON APPEAL, THE LD. CIT(A), AFTER TAKING NOTE OF THE DE POSITS AND WITHDRAWALS IN THE SAID ACCOUNTS WAS OF THE OPINION THAT PEAK BALANCE OF TH E TWO COMBINED BANK ACCOUNTS ONLY CAN BE TAXED IN THE HANDS OF THE ASSESSEE AS H IS INCOME FROM BUSINESS. ACCORDINGLY, AFTER REDUCING THE DECLARED INCOME OF RS.5,79,831/- RESTRICTED THE DISALLOWANCE TO RS.4,54,977/-. AGGRIEVED BY THE IMP UGNED ORDER, THE REVENUE IS IN APPEAL BEFORE US. 4. HAVING HEARD BOTH THE SIDES AND PERUSED THE MATE RIAL ON RECORD, IT IS PERTINENT TO MENTION THAT THE AO HAS ONLY CONSIDERED THE CASH DEPOSITS IN THE BANK ACCOUNTS OF THE ASSESSEE FOR THE PURPOSE OF MAKING ADDITION WHE REAS HE HAS TOTALLY NEGLECTED THE WITHDRAWALS, THOUGH THE DETAILS OF BANK STATEMENTS HAVE BEEN BEFORE THE AO. IT IS ALSO RELEVANT TO STATE THAT THE ASSESSEE HAS SHOWN/ DECLARED A NET PROFIT OF RS.5,79,839/- OUT OF GROSS RECEIPT OF RS.13,26,544/ - IN RELATION TO THE CIVIL CONTRACT WORK, WHICH IS THE BUSINESS OF THE ASSESSEE. THE PE RUSAL OF THE DETAILS OF CASH DEPOSITS AND WITHDRAWALS AS REPRODUCED IN PAGES 3 A ND 4 OF THE ORDER OF THE CIT(A) CLEARLY SUGGEST THAT THERE ARE FREQUENT WITHDRAWALS ALSO IN THE SAID BANK ACCOUNTS, WHICH IN OUR VIEW ARE TO BE TAKEN AS THE BUSINESS E XPENSES OF THE ASSESSEE CONSIDERING THE NATURE OF THE EXPENSES INCURRED BY THE ASSESSEE. SINCE THE LD. CIT(A) HAS RIGHTLY TAKEN CONTINGENCE OF THE SAID FACTS IN HIS REASONED ORDER FOR DECIDING THAT THE PEAK BALANCE HAS TO BE CONSIDERED AS TAXABLE IN THE HANDS OF THE ASSESSEE, WE DO NOT FIND ANY JUSTIFIABLE REASON TO INTERFERE WITH T HE SAME AND THUS THE ORDER OF THE LD.CIT(A) ON THIS COUNT IS UPHELD. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 9 TH DAY OF JUNE 2014. SD/- SD/- (SANJAY ARORA) (S.T.M.PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 09.06.2014 A.K.PATEL , PS ITA NO.1888/M/2013 MOHAN Y JADHAV ASSESSMENT YEAR 2009-10 3 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A)- MUMBAI CONCERNED 4. CIT MUMBAI CONCERNED 5. DR, ITAT, MUMBAI B BENCH 6. GUARD FILE. //TRUE COPY// BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI ITA NO.1888/M/2013 MOHAN Y JADHAV ASSESSMENT YEAR 2009-10 4 SR. NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATION SHEETS ARE ATTACHED YES SR.PS/PS 2 DRAFT DICTATED ON SR.PS/PS 3 DRAFT PLACED BEFORE AUTHOR SR.PS/PS 4 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 5 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 6 APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 7 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 8 FILE SENT TO THE BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE AR 11 DATE OF DISPATCH OF ORDER