The Income-tax Officer, Amritsar. V. Sh. Sukhdev Singh, Amritsar.

ITA 190/ASR/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85910 (ITAT-AMRITSAR)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 09-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 26-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P N ARORA
• Keywords: Peak credit; Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.190(ASR)/2014 ASSESSMENT YEAR:2008-09 PAN :BLWPS6403D INCOME TAX OFFICER VS. SH.SUKHDEV SINGH, WARD V(4), AMRITSAR. RAM TIRATH ROAD, AMRITSAR. (APPELLANT) (RESPONDENT) I.T.A. NO.197(ASR)/2014 ASSESSMENT YEAR:2008-09 PAN :BLWPS6403D SH.SUKHDEV SINGH, VS. INCOME TAX OFFICER RAM TIRATH ROAD, AMRITSAR. WARD V(4), AMRITSAR. (APPELLANT) (RESPONDENT) DEPARTMENT BY: SH.TARSEM LAL, DR ASSESSEE BY:SH.P.N.ARORA, ADVOCATE DATE OF HEARING:09/02/2015 DATE OF PRONOUNCEMENT:19/02/2015 ORDER PER B.P.JAIN,AM: THESE CROSS APPEALS OF THE REVENUE AND THE ASSESS EE ARISE FROM THE ORDER OF THE CIT(A), AMRITSAR, DATED 17.01.2014 FOR THE ASSESSMENT YEAR 2008-09. ITA NO.190(ASR)/2014 ITA NO.197(ASR)/2014 2 2. THE REVENUE IN ITA NO.190(ASR)/2014 FOR THE A.Y. 2008-09, HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: I) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LD. CIT(A) IS RIGHT IN REDUCING ADDITION MADE BY THE AO ON ACCOUNT OF UNEXPLAINED DEPOSITS FROM RS.35,52,231/- TO RS.5,91,027/- GRANTING RELIEF OF RS.26,61,204/- ON THE BASIS OF PEAK APPEARING IN THE BANK ACCOUNT SINCE THE ASSESS EE NEVER CAME FORWARD ON THE ISSUE OF PEAK AMOUNT AND ALSO T HE NATURE OF CASH AVAILABLE WITH THE ASSESSEE HAS NEVER BEEN EXPLAINED. II) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) IS RIGHT IN ADMITTING ADDITIONAL EVIDENCE U/ S 46A OF I.T.ACT, AS THE ASSESSEE WAS GRANTED SUFFICIENT OPP ORTUNITY DURING THE ASSESSMENT PROCEEDINGS AND ASSESSEE COUL D NOT GIVE ANY REASONABLE GROUND OR EXPLANATION FOR NON ATTEND ANCE DURING THE ASSESSMENT PROCEEDINGS. III) APPELLANT CRAVES LEAVE TO AMEND OR ADD ANY OR MORE GROUNDS OF APPEAL. 3. THE ASSESSEE IN ITA NO.197(ASR)/2014 FOR THE A.Y 2008-09, HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THAT THE ASSESSMENT ORDER AS WELL AS THE ORDER OF THE LD. CIT(A) ARE BOTH AGAINST THE FACTS OF THE CASE AND U NTENABLE IN LAW. 2. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN SUSTAIN ING AN ADDITION OF RS.5,91,027/- ON ACCOUNT OF PEAK CREDIT. THE LD. CIT(APPEALS) SHOULD HAVE DELETED THE WHOLE ADDITIO N. 3. THAT THE LD. CIT(A) SHOULD HAVE ALLOWED THE CRED IT OF THE INCOME EARNED DURING THE YEAR UNDER CONSIDERATION W HILE SUSTAINING THE ADDITION. FURTHERMORE, THE LD. CIT(A ) FAILED TO APPRECIATE THAT THE ASSESSEE WAS AN INCOME TAX ASSE SSEE FOR THE LAST SEVERAL YEARS AND HE WAS SHOWING INCOME IN ALL THE YEARS FOR WHICH THE LD. CIT(A) SHOULD HAVE ALLOWED THE CR EDIT OF THE SAME AND THE ADDITION SUSTAINED BY THE LD. CIT(A) I S NOT JUSTIFIED AND THE SAME MAY BE DELETED IN TOTO. ITA NO.190(ASR)/2014 ITA NO.197(ASR)/2014 3 4. ANY OTHER GROUND OF APPEAL THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY UNDER CASS. AS PER THE AIR I NFORMATION, THE ASSESSEE HAD MADE CASH DEPOSITS OF RS.32,52,231/- IN HIS SAV ING BANK A/C WITH ICICI BANK. THE AO ISSUED SHOW CAUSE NOTICE TO THE ASSESS EE TO EXPLAIN THE SOURCE AND NATURE OF THE CASH DEPOSITS IN THE SAID ICICI B ANK. AS OBSERVED BY THE AO, NONE ATTENDED AND THE AO MADE AN EX-PARTE ASSES SMENT U/S 144 OF THE ACT IN RESPECT OF ALL THE DEPOSITS MADE IN THE SAID ICICI BANK AS INCOME OF THE ASSESSEE, WHICH WAS ADDED TO THE RETURNED INCOM E OF THE ASSESSEE. 5. BEFORE, THE LD. CIT(A), THE ASSESSEE SUBMITTED T HAT ON 27.09.2010, THE ASSESSEE HIMSELF APPEARED BEFORE THE AO AND QUESTIO NNAIRE DATED 27.09.2010 WAS SERVED. THEREAFTER, THE ASSESSEE COU LD NOT ATTEND SINCE THE FATHER-IN-LAW OF THE ASSESSEE WAS SERIOUSLY ILL, SU FFERING FROM HIGH BLOOD PRESSURE, SUGAR, ASTHMA & KIDNEY PROBLEM AND THE A SSESSEE WAS LOOKING AFTER THE AILING FATHER-IN-LAW SINCE ASSESSEES SON WAS NOT PRESENT AND HE WAS DOING SERVICE AT CALCUTTA. THE ASSESSEES MOTHER-IN -LAW HAD ALREADY EXPIRED ON 30.12.2009. THE ASSESSEE PRODUCED THE BOOKS OF A CCOUNT IN THE FORM OF CASH BOOK AND LEDGER AND MADE A SUBMISSION THAT THE BOOKS OF ACCOUNT WERE NOT MAINTAINED FOR THE EARLIER YEARS AND COPY OF BA LANCE SHEET FOR THE EARLIER YEAR WAS ALSO FILED BEFORE THE LD. CIT(A). IT WAS A LSO SUBMITTED THAT IN THE ITA NO.190(ASR)/2014 ITA NO.197(ASR)/2014 4 SUBSEQUENT YEAR I.E. 2009-10 ACCOUNTS WERE MAINTAIN ED AND THE CASE WAS TAKEN UP FOR SCRUTINY AND THE BOOKS OF ACCOUNT OF T HE ASSESSEE WERE ACCEPTED. THE ASSESSEES SUBMISSION WAS FORWARDED T O THE AO, WHO IN THE FIRST INSTANCE SUBMITTED THAT SUFFICIENT OPPORTUNI TIES WERE GIVEN TO THE ASSESSEE TO SUBMIT THE DETAILS. IN FACT, THE AO IN THE REMAND REPORT SUBMITTED THAT THE ADDITIONAL EVIDENCE SHOULD NOT BE ADMITTED . HOWEVER, THE AO WAS DIRECTED TO LOOK INTO THE SUBMISSIONS OF THE ASSESS EE VIDE LETTER DATED 7.3.2013, WHO SUBMITTED THE REMAND REPORT DATED 19. 03.2013 AND SUBMITTED THAT THE ASSESSEE HAS FILED THE RETURN ON NO ACCOU NT BASIS AND PRODUCED ONLY CASH BOOK AND LEDGER AND NO BILLS OF PURCHASE SALE SALES EXCEPT ONE PURCHASE BILL. THE LD. CIT(A) AFTER CONSIDERING TH E REMAND REPORT OF THE AO ACCEPTED THAT THE AOS VERSION THAT THE SAID BOOKS OF ACCOUNT ARE NOT RELIED UPON. THE ASSESSEE ALSO SUBMITTED BEFORE THE LD. CI T(A) THAT ONLY PEAK APPEARING IN THE BANK ACCOUNT SHOULD BE CONSIDERED. THE SAID SUBMISSION OF THE ASSESSEE WAS ACCEPTED AND PEAK WAS WORKED OUT AT RS.7,51,027/- ON 15.12.2007 AND THE ASSESSEE WAS GIVEN FURTHER CREDI T OF OPENING CASH IN HAND AT RS. 1 LAC OUT OF HIS OPENING BALANCE OF CASH IN HAND AT RS.1,36,076/- AND RS.60,000/- AS CREDIT AGAINST CURRENT YEAR INCOME O F RS.99,890/- I.E. ASSESSEE WAS FURTHER PROVIDED CREDIT OF RS.1,60,000/- OUT OF PEAK WORKED OUT ON 15.12.2007 AT RS.7,51,027/- AND ACCORDINGLY, ADDITI ON OF RS.5,91,027/- WAS ITA NO.190(ASR)/2014 ITA NO.197(ASR)/2014 5 SUSTAINED OUT OF THE ADDITION SO MADE BY THE AO AT RS.32,52,231/-, THUS GIVING A RELIEF OF RS.26,61,204/- TO THE ASSESSEE. THE CASES RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE WERE DIFFERENT FROM TH E FACTS OF THE PRESENT CASE, WAS OBSERVED BY THE LD. CIT(A). 6. THE LD. DR ARGUED THAT THE ASSESSEE NEVER EXPLAI NED NATURE OF CASH AVAILABLE WITH THE ASSESSEE. HE FURTHER ARGUED THA T THE LD. CIT(A) SHOULD NOT HAVE ADMITTED THE ADDITIONAL EVIDENCE AS THE A SSESSEE WAS GRANTED SUFFICIENT OPPORTUNITIES DURING THE ASSESSMENT PROC EEDINGS. 6.1. THE LD. DR FURTHER ARGUED THAT ASSESSEE HAD A DVANCED A SUM OF RS. 5,00,000/- TO SMT. SURINDER KAUR AS IS EVIDENT FROM THE BALANCE SHEET AS ON 31.03.2008 AND CASH IN HAND OF RS.228240/- AS AT 3 1.03.2008.HE FURTHER ARGUED THAT SINCE ASSESSEES BOOKS OF ACCOUNT HAVE BEEN REJECTED BY THE LD. CIT(A), THEREFORE, ASSESSEES PEAK CANNOT BE WORKED OUT AS THERE IS NOTHING ON RECORD THAT THE ASSESSEE HAD NOT UTILIZED THE WI THDRAWALS AND DEPOSITED THE SAME IN THE BANK ACCOUNT AS SUBMITTED EARLIER. 7. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER H AND, RELIED UPON THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) AND PRAYED TO DELETE THE ADDITION SUSTAINED BY THE LD. CIT(A). 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE UNDISPUTED FACTS IN THE PRESENT CASE ARE THAT A S PER AIR INFORMATION, THE ITA NO.190(ASR)/2014 ITA NO.197(ASR)/2014 6 ASSESSEE HAS DEPOSITED RS.32,52,231/- IN THE SAVIN G BANK ACCOUNT OF ICICI BANK. THE ASSESSEE DID NOT ATTEND THE PROCEEDINGS B EFORE THE AO EXCEPT ONCE I.E ON 27.09.2010. THE ASSESSEE SUBMITTED THE EXPLANATION BEFORE THE LD. CIT(A) THAT HIS FATHER-IN-LAW WAS SERIOUSLY ILL AND THE ASSESSEE WAS ATTENDING TO THE AILING FATHER-IN-LAW IN THE ABSENC E OF THE SON OF THE FATHER- IN-LAW. THE MOTHER-IN-LAW HAD ALREADY EXPIRED. HOWE VER, THE ASSESSEE SUBMITTED THE BOOKS OF ACCOUNT AND THE BALANCE SHEE T OF EARLIER YEAR AND OF THE IMPUGNED YEAR ALONGWITH ASSESSMENT OF THE FOLL OWING YEAR I.E. 2009-10 WHERE BOOKS OF ACCOUNT OF THE ASSESSEE WERE ACCEPTE D. THE SAID SUBMISSION AND THE DOCUMENTS WERE SENT TO THE AO FOR REMAND RE PORT, WHICH WAS SUBMITTED BY THE AO, WHERE HE STATED THAT THE BOOKS OF ACCOUNT SHOULD NOT BE ACCEPTED. THE LD. CIT(A) ACCEPTED THE VERSION OF THE AO IN THE REMAND REPORT BUT AGREED TO WORK OUT THE PEAK AMOUNT IN TH E BANK ACCOUNT. SO, THE BOOKS OF ACCOUNT WERE REJECTED BY THE LD. CIT(A) B UT AT THE SAME TIME, NOTHING HAS BEEN BROUGHT ON RECORD BY THE LD. CIT(A ) THAT THE WITHDRAWAL MADE OUT OF THE IMPUGNED BANK ACCOUNT HAS BEEN UTI LIZED ELSEWHERE. THE FACT THAT ASSESSEE IS DOING BUSINESS IN EARLIER AND ALSO IN THE FOLLOWING YEAR ESPECIALLY IN THE FOLLOWING ASSESSMENT YEAR 2010-11 WHERE THE ASSESSEES CASE WAS PUT UNDER SCRUTINY AND BOOKS OF ACCOUNT WE RE ACCEPTED GO TO PROVE THAT ASSESSEE IS DOING BUSINESS DURING THE YEAR AS IN PRECEDING AND FOLLOWING ITA NO.190(ASR)/2014 ITA NO.197(ASR)/2014 7 YEAR AND THE WITHDRAWALS AND DEPOSITS IN THE BANK ACCOUNT ARE NOTHING BUT BUSINESS TRANSACTIONS. IN THE FACTS AND CIRCUMSTANC ES OF THE CASE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) I N ACCEPTING THE SUBMISSION OF THE ASSESSEE TO WORK OUT THE PEAK IN VIEW OF OUR FINDING HEREINABOVE. THOUGH, THE ADDITIONAL EVIDENCE IN THE FORM OF BOOK S OF ACCOUNT SUBMITTED BEFORE THE LD. CIT(A), WAS REJECTED BY THE AO IN TH E REMAND REPORT AND THE REMAND REPORT WAS ACCEPTED BY THE LD. CIT(A). THERE FORE, GROUND NO.2 TAKEN BY THE REVENUE IS MISCONCEIVED, SINCE THE LD. CIT( A) HAS NOT ACCEPTED THE ADDITIONAL EVIDENCE UNDER RULE 46A OF THE I.T.RULES , 1962 AND THE SAME IS REJECTED. 9. AS REGARDS GROUND NO.1, THE LD. DR HAS SUBMITTED THAT RS.5,00,000/- ADVANCED TO SMT. SURINDER KAUR AND THERE WAS CASH IN HAND OF RS.228240/- WITH THE ASSESSEE. THERE IS NO DISPUTE THE FACT , A S STATED BY THE LD. DR IN THIS REGARD THAT THE LD. CIT(A) HAS WORKED OUT A P EAK AMOUNT OF RS.7,51,027/-. EVEN IF, THE ARGUMENTS MADE BY THE L D. DR ARE TAKEN TO BE CORRECT THAT RS.2,28,240/- HAS BEEN RETAINED BY THE ASSESSEE AS CASH BALANCE AS AT 31.03.2008 AND RS.5,00,000/- HAS BEEN ADVANCE D TO SMT. SURINDER KAUR TOTALING TO RS.7,28,240/-, WHEREAS THE LD. CIT(A) H AS WORKED OUT THE PEAK AT RS.7,51,027/-, WHICH IS MORE THAN RS.7,28,240/-. AC CORDINGLY, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) AND THE SA ME IS UPHELD. THEREFORE, ITA NO.190(ASR)/2014 ITA NO.197(ASR)/2014 8 THE CROSS APPEAL OF THE ASSESSEE CANNOT BE ACCEPTED FOR DELETING THE ADDITION OF RS.5,91,027/- IN VIEW OF OUR FINDINGS HEREINABOV E. IN THE FACTS AND CIRCUMSTANCES, THE APPEALS OF THE REVENUE AND THAT OF THE ASSESSEE ARE DISMISSED. 10. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IN ITA NO.190(ASR)/2014 AND THAT OF THE ASSESSEE IN ITA NO .197(ASR)/2014 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19TH FEBRUARY, 2015. SD/- SD/- (A.D.JAIN) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 19TH FEBRUARY, 2015 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. SUKHDEV SINGH, 1402, GAWAL MANDI, RAM TIRATH ROAD, AMRITSAR. 2. THE ITO WARD V(4), ASR. 3. THE CIT(A), ASR. 4. THE CIT, ASR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.