DCIT, Central Circle - XVII, Kolkata, Kolkata V. M/s. Abhitaj Commercial (P) Ltd., Kolkata

ITA 191/KOL/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6518 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2014
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 06-02-2012
• Court: TRIBUNAL
• Department Lawyers: P B PRAMANIK
• Assessee Lawyers: J M THARD
• Keywords: Unexplained cash credit; Peak credit
• Section: 143(3); 263; 132

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , /AND . . . . ' '' ''# '#'# '#, $% ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI ABRAHAM P. GEORGE, AM] & & & & / I.T.A NO. 191/KOL/2012 '( )* '( )* '( )* '( )*/ // / ASSESSMENT YEAR: 2005-06 DEPUTY COMMISSIONER OF INCOME-TAX, VS. M/S. ABHITA Z COMMERCIAL (P) LTD. C.C. XVII, KOLKATA (PAN: AACCA5891Q) (,- /APPELLANT ) (./,-/ RESPONDENT ) & & & & & / I.T.A NO. 192/KOL/2012 '( )* '( )* '( )* '( )*/ // / ASSESSMENT YEAR: 2005-06 DEPUTY COMMISSIONER OF INCOME-TAX, VS. M/S. PINKY COMMERCIAL (P) LTD. C.C. XVII, KOLKATA (PAN: AACCP7719G) (,- /APPELLANT ) (./,-/ RESPONDENT ) DATE OF HEARING: 23.04.2014 DATE OF PRONOUNCEMENT: 23.04.2014 FOR THE APPELLANT: SHRI P. B. PRAMANIK, JCIT, SR. D R FOR THE RESPONDENT: SHRI J. M. THARD, ADVOCATE $0 / ORDER PER SHRI MAHAVIR SINGH, JM: BOTH THESE APPEALS BY REVENUE ARE ARISING OUT OF SE PARATE ORDERS OF CIT(A), CENTRAL-1, KOLKATA IN APPEAL NOS. 166 & 168/CC-XVIII/CIT(A).C- 1/10-11 BOTH DATED 25.11.2011. ASSESSMENTS WERE FRAMED SEPARATELY BY DCIT, C.C.-XV II, KOLKATA U/S. 143(3) OF THE INCOME- TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) FOR ASSESSMENT YEARS 2005-06 VIDE HIS ORDERS DATED 27.12.2010. 2. THE ONLY COMMON ISSUE IN THESE TWO APPEALS OF RE VENUE IS AGAINST THE ORDER OF CIT(A) DELETING THE PROTECTIVE ADDITION OF UNDISCLOSED CAS H DEPOSIT ON THE BASIS THAT SUBSTANTIVE ADDITION HAS BECOME FINAL IN THE HANDS OF DILIP KUM AR NAHATA. FOR THIS, REVENUE, IN BOTH THE APPEALS HAS RAISED FOLLOWING GROUND: 2 ITA NO.191/K/2012 & 192/K/2012 M/S. ABHITAZ COMMERCIAL (P) LTD. & M/S. PINKY COMMERCIAL PVT. LTD. AY:2005-06 ITA NO. 191/K/2012 1. THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING T HE ADDITION OF UNDISCLOSED CASH DEPOSITS OF RS.3,50,62,000/- ON PROTECTIVE BASIS. ITA NO.192/K/2012: 1. THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION OF UNDISCLOSED CASH DEPOSITS OF RS.90,54,000/- ON PROTECTIVE BASIS. 2. BRIEFLY STATED FACTS ARE THAT DURING THE COURSE OF SEARCH BY POLICE, A SUM OF RS.19.76 LACS WAS SEIZED BY S.H.O. CHOTTI GAWI TOLI POLICE STATIO N AT INDORE ON 15.10.2004. SUBSEQUENTLY, THE INCOME TAX DEPARTMENT CONDUCTED SEARCH U/S. 132 OF THE ACT ON THE ASSESSEES BANK ACCOUNT NO. 623505378880 MAINTAINED WITH ICICI BAN K, MUMBAI BRANCH ON 25.10.2004. DURING THE COURSE OF SEARCH, CASH DEPOSITS TO THE E XTENT OF RS.7,59,29,000/- WAS FOUND. STATEMENT FROM SHRI MANOJ BASIR, THE DIRECTOR OF TH E ASSESSEE COMPANY WAS RECORDED BY DDIT, INV., KOLKATA WHEREIN IT WAS ADMITTED BY THE DIRECT OR THAT HE IS ONLY A NAME LENDER DIRECTOR OF THE COMPANY WHEREAS THE ENTIRE CONTROL IS WITH ONE SHRI DILIP KUMAR NAHATA. SHRI DILIP KUMAR NAHATA SUBSEQUENTLY ADMITTED THAT THIS BANK A CCOUNT MAINTAINED WITH ICICI BANK BELONGS TO HIM AND ALL CASH DEPOSITS IN THE SAID BA NK ACCOUNT ALSO BELONGS TO HIM. THIS FACT WAS ADMITTED BY SHRI DILIP KR. NAHATA IN HIS DEPOSI TION MADE WITH DDIT, INV, KOLKATA. ACCORDINGLY, PROTECTIVE ASSESSMENT WAS MADE IN THE HANDS OF THE ASSESSEE BY THE AO FOR THE REASON THAT IN CASE IF ANY DOUBT OF OWNERSHIP INCOM E SHOULD BE ASSESSED HERE IN THE HAND OF PRESENT ASSESSEE. THE CIT(A) EXACTLY ON THIS FACT DELETED THE ADDITION THAT SUBSTANTIVE ADDITION HAS BEEN MADE AND CONFIRMED IN THE HANDS OF SHRI DI LIP KR. NAHATA. NOW BEFORE US, LD. COUNSEL FOR THE ASSESSEE FILED COPY OF ASSESSMENT O RDER FOR AY 2005-06 IN THE CASE OF DILIP KR. NAHATA ORDER PASSED U/S. 263 R.W.S. 143(3) OF THE A CT DATED 22.02.2013 BY ACIT, CIRCLE-34, KOLKATA WHEREIN THE PEAK CREDIT OF THE AGGREGATE DE POSIT OF SIX BANK ACCOUNTS MAINTAINED WITH ICICI BANK AT RS.24,11,93,400/- WAS ACCEPTED. THE RELEVANT SIX BANK ACCOUNTS MAINTAINED WITH ICICI BANK ARE AS UNDER: SL. NO. A/C. NO. BRANCH NAME OF THE ACCOUNT HOLDER AMOUNT FOUND (RS. IN LAKH) AMOUNT SEIZED (RS. IN LAKH) 1 000605005027 KOLKATA KANKAN TEXTILES 10.08 10.08 2 627605251425 KOLKATA PINKY HOSIERY 5.24 5.23 3 627605251442 KOLKATA PUJA TRADERS 14.21 14.20 4 016105000912 KOLKATA JACK UP CONSULTANT 3.80 3.75 5 623505378889 KOLKATA ABHITAJ COMMERCIAL CO. LTD. 22.70 22.70 6 634305004092 GUWAHATI PINKY COMMERCIAL CO. LTD. 0.04 - TOTAL 56.07 55.96 3 ITA NO.191/K/2012 & 192/K/2012 M/S. ABHITAZ COMMERCIAL (P) LTD. & M/S. PINKY COMMERCIAL PVT. LTD. AY:2005-06 AO RECORDED THE FINDING THAT PEAK ADDITION IS TO BE MADE IN RESPECT TO THESE SIX ACCOUNTS AND THE RELEVANT FINDINGS READ AS UNDER: REGARDING THE PEAK AMOUNT FOR ADDITION, THE ASSESS ING OFFICER WROTE THAT THE APPELLANT FAILED TO EXPLAIN THE SOURCES OF DEPOSITS. THE AGG REGATE AMOUNT OF DEPOSIT IN THE SIX BANK ACCOUNTS IS RS.24,11,93,400/-. IF THE APPELLANT CL AIMED THAT THE FRESH DEPOSITS WERE MADE FROM EARLIER WITHDRAWALS AND THAT ULTIMATELY ALL FU NDS THUS ROTATED BELONGED TO HIS CLIENT, THE APPELLANT MUST PROVE THIS PROPOSITION THROUGH D OCUMENTARY EVIDENCE. THE ASSESSEE EXPLAINED THE CREDIT SEPARATELY FOR TH E SIX ACCOUNTS AND INDICATED THE PEAK AMOUNT IN EACH OF THE CASES AS UNDER: SL. NO. NAME OF THE FIRM ACCOUNT NO. PEAK CREDIT 1 M/S PUJA TRADERS PROP. AZAD KUMAR NAHATA 627605251442 ICICI BANK, BRABOURNE RD. 19,41,190/- 2 M/S. KANKAN TEXTILE PROP. MR. MANOJ BASIR 000605005027 ICICI BANK, R. N. MUKHERJEE ROAD BR. 12,48,700/- 3 JACK-UP CONSULTANTS 016105000912 21,10,000/- 4. PINKY HOSSIERY PROP. MANOJ BASIR 627605251452 ICICI BANK, KOLKATA MAIN BR. 18,73,710/- 5. ABHITAJ COMMERCIAL CO. (P) LTD. 62350537889 ICICI BANK, FORT MUMBAI BR,. 22,70,000/- 6. PINKY COMMERCIAL CO. (P) LTD. 6343050004092 ICICI BANK, GUWAHATI BR. 9,04,800/- TOTAL 1,03,4 8,400/- AND FINALLY, THE AO ACCEPTED THE PEAK CREDIT OF RS. 63,64,160/- BY OBSERVING AS UNDER: FOLLOWING THE CONCEPT OF PEAK, HIGHEST OR PEAK OF THE AMOUNTS I.E. RS.63,64,160/- IN THE CONSOLIDATED PEAK CREDIT CHART OF SIX BANK ACCO UNTS SUBMITTED BY THE ASSESSEE IS TAKEN AS UNEXPLAINED CASH CREDIT AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. 3. LD. COUNSEL FOR THE ASSESSEE FAIRLY STATED THAT ONC E THE ENTIRE AMOUNT IS ACCEPTED BY SHRI DILIP KR. NAHATA, THE BENEFICIARY, OWNED UP THE BAN K ACCOUNTS THE PROTECTIVE ADDITION MADE HERE IN THE PRESENT CASE SHOULD BE DELETED. ON QUERY FR OM THE BENCH WHETHER ANY APPEAL IS FILED AGAINST THIS ASSESSMENT ORDER OF SHRI DILIP KR. NAH ATA FOR THE AY 2005-06 PASSED U/S. 253/143(3) OF THE ACT DATED 22.02.2013, THE LD. COU NSEL FOR THE ASSESSEE REPLIED NEGATIVELY AND STATED THAT HE IS MAKING STATEMENT AT BAR THAT NO F URTHER APPEAL IS MADE IN THIS CASE. ON FURTHER QUERY FROM THE BENCH, THE LD. SR. DR FAIRLY STATED THAT ONCE THE SUBSTANTIVE ADDITION IS ACCEPTED BY AO IN THE CASE OF DILIP KR. NATHATA, THIS THIS P ROTECTIVE ADDITION CAN BE DELETED. THE FACTS ARE VERY CLEAR IN THE PRESENT CASE AND HERE ADMITTEDLY THE ISSUE IS PROTECTIVE ADDITION ON THE BASIS OF DEPOSITS MADE IN BANK ACCOUNTS, WHICH HAS BEEN ACCE PTED IN SUBSTANTIVE ADDITION. ONCE THIS IS 4 ITA NO.191/K/2012 & 192/K/2012 M/S. ABHITAZ COMMERCIAL (P) LTD. & M/S. PINKY COMMERCIAL PVT. LTD. AY:2005-06 THE POSITION, WE ARE OF THE VIEW THAT THIS PROTECTI VE ADDITION SHOULD BE DELETED. WE ORDER ACCORDINGLY. 4. SIMILAR ARE THE FACTS IN THE CASE OF PINKY COMMERCI AL PVT. LTD. IN ITA NO.192/K/2012, WHEREIN SIMILAR ARE THE DEPOSITS AND PROTECTIVE ADD ITION IN THE CASE OF THE ASSESEE AND SUBSTANTATIVE ADDITION IN THE HANDS OF DILIP KUMAR NAHATA IN THE SAME AY 2005-06. THE FACTS ARE ALREADY BROUGHT IN THIS ORDER AT PARA 3 ABOVE I N ITA NO. 191/K/2012. THE SUBSTANTIAL PORTION OF THE ASSESSMENT ORDER OF SHRI DILIP KUMAR NAHATA IS REPRODUCED WHICH ALSO CONTAINS THE SIX BANK ACCOUNTS OF ICICI BANK IN THE NAME OF THE ASSESSEE I.E. 634305004092 MAINTAINED AT GUWAHATI BRANCH. AS THE FACTA ARE EXACTLY IDENT ICAL, WE DELETE THE PROTECTIVE ADDITION MADE IN THE CASE OF THE ASSESSEE EXACTLY ON SAME FACTS. WE ORDER ACCORDINGLY. 5. IN THE RESULT, BOTH APPEALS OF REVENUE ARE DISMI SSED. 6. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- . . . . ' '' ''# '#'# '# , $% , (ABRAHAM P. GEORGE) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 23RD APRIL, 2014 12 '3' 4 JD.(SR.P.S.) $0 5 . 6$ )7- COPY OF THE ORDER FORWARDED TO: 1 . ,- / APPELLANT- DCIT, CC-XVII, KOLKATA 2 ./,- / RESPONDENT M/S. ABHITAZ COMMERCIAL (P) LTD., 19 6, OLD CHINA BAZAR STREET, (2 ND FLOOR) KOLKATA-700 001. M/S. PINKY COMMERCIAL PVT. LTD., 5, CLIVE ROW (4 TH FLOOR), ROOM NO.95, KOLKATA-700 001. 3 . 0' ( )/ THE CIT(A), KOLKATA 4. 5. 0' / CIT KOLKATA <= .' / DR, KOLKATA BENCHES, KOLKATA / ./ TRUE COPY, $0'>/ BY ORDER, ' /ASSTT. REGISTRAR .