Golam Kibria Biswas., Kolkata V. I.T.O Wd - 1,Malda., Malda

ITA 194/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99972 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 29-01-2013
• Court: TRIBUNAL
• Department Lawyers: DAVID Z CHAWNGTHU
• Assessee Lawyers: N O N E
• Keywords: Peak credit
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI WASEEM AHMED , AM] I.T.A NO. 194/KOL/2013 ASSESSMENT YEAR: 2009-10 GOLAM KIBRIA BISWAS VS. INCOME-TAX OFFICER, WD-1 , KOLKATA (PAN: AACFD5802D) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 05.11.2015 DATE OF PRONOUNCEMENT: 10.11.2015 FOR THE APPELLANT: N O N E FOR THE RESPONDENT: DAVID Z. CHAWNGTHU, ADDL. CIT , SR. DR ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A), JALPAIGURI, IN APPEAL NO.56/MLD/CIT(A)/JAL/11-12 DATED 27.11.2012. ASSESS MENT WAS FRAMED BY ITO, WARD-1, MALDA U/S. 143(3) OF THE INCOME-TAX ACT, 19 61 (HEREINAFTER REFERRED TO AS THE ACT) FOR AY 2009-10 VIDE ITS ORDER DATED 23.09.20 11. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING THE ACTION OF AO IN ENHANCING THE ASSESSMENT BY DIR ECTING THE AO TO TREAT ENTIRE DEPOSIT IN THE UNDISCLOSED THREE BANK ACCOUNTS AS INCOME OF THE ASSESSEE. FOR THIS, ASSESSEE HAS RAISED FOLLOWING GROUND NO.1: 1.I) THAT THE LD. CIT(A0 HAS ERRED IN ENHANCING T HE ASSESSMENT BY DIRECTING TO TREAT ENTIRE DEPOSITS IN UNDISCLOSED THREE BANK ACCOUNTS AS INCO ME. II) THAT CONSIDERING THE FACTS OF THE CASE THE CIT( A) OUGHT TO HAVE DIRECTED THE AO TO TREAT PEAK CREDIT OF EACH OF THE THREE UNDISCLOSED BANK ACCOUNT IN CASE THE EXPLANATION OF THE APPELLANT ASSESSEE ARE UNACCEPTABLE AND FOUND TO BE FALSE ON VERIFICATION THEREOF. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE AO DURING THE COURSE OF ASS ESSMENT PROCEEDINGS NOTICED THAT THE ASSESSEE HAS NOT DISCLOSED THE FOLLOWING THREE BANK ACCOUNTS IN WHICH DEPOSITS WERE MADE: A/C. NOS. BANK AMOUNTS DEPOSITED 14691600000818 HDFC RS. 14,92,948/- 389010100006033 AXIS RS. 19,26,796/- 389010100003292 AXIS RS. 14,06,640/- THE ASSESSEE BEFORE AO PLEADED THAT PEAK SHOULD BE TAKEN BUT THE AO MADE ADDITION PEAK CREDIT OF THE DEPOSITS OF BANK ACCOUNT NOS. 1469160 000818 AND 389010100006033 OF 2 ITA NO.194/K/2013 GOLAM KIBRIA BISWAS AY 2009-10 AXIS BANK AT RS. 5 LACS. FURTHER, THE AO ALSO ADDE D A SUM OF RS.3,56,457/- BY TREATING THE DEPOSITS AS TURNOVER IN THESE TWO BANK ACCOUNTS AND ASSESSING THE NET PROFIT AND ACCORDINGLY, HE ADDED A SUM OF RS.3,56,457/-. SIMI LARLY, THE AO ALSO ACCEPTED THE PEAK CREDIT OF RS.1,05,000/- OF A/C. NO. 1469160000818 A ND THEREBY MADE ADDITION OF RS.1,05,000/-. SIMILARLY, HE ALSO MADE ADDITION OF GROSS PROFIT OF THIS BANK ACCOUNT DEPOSITS AT RS.2,76,195/-. SIMILARLY, HE ALSO MADE ADDITION OF PEAK CREDIT OF RS.1,43,099/- ON ACCOUNT OF BANK ACCOUNT BEARING NO. 389010101000 03292 OF AXIS BANK AND ALSO MADE ADDITION OF GROSS PROFIT TREATING THE DEPOSITS AS S ALES AT RS.2,60,228/-. AGGRIEVED, AGAINST THE ADDITIONS ASSESSEE PREFERRED APPEAL BEFORE CIT( A), WHO ENHANCED THE ADDITION DIRECTING THE AO TO TREAT THE ENTIRE DEPOSIT IN THE ABOVE THREE BANK ACCOUNTS AS UNDISCLOSED INCOME OF THE ASSESSEE. AGGRIEVED, NOW ASSESSEE IS IN SECOND APPEAL BEFORE TRIBUNAL. 4. WE FIND THAT THE ASSESSEE HAS ONLY REQUESTED FOR TREATING THE PEAK CREDIT OF EACH OF THE THREE UNDISCLOSED BANK ACCOUNTS BECAUSE ASSESSE E WAS A CONTRACTOR AND DURING THE YEAR HE HAS EXECUTED CONTRACT JOB FOR A SUM OF RS.32,23, 132/- WHICH WAS DECLARED IN HIS RETURN OF INCOME IN ADDITION TO COMMISSION RECEIVED OF RS. 50,000/-. THE ASSESSEE ADMITTED THAT ALL THE THREE BANK ACCOUNTS WERE UNDISCLOSED BUT TR ANSACTION ENTERED THROUGH THOSE ACCOUNTS WERE NOT RELATED TO THE BUSINESS OF THE AS SESSEE. WE FIND THAT THE PLEA OF THE ASSESSEE IS QUITE REASONABLE THAT FROM UNDISCLOSED BANK ACCOUNTS THERE ARE DEPOSITS, THE PEAK SHOULD HAVE BEEN CALCULATED BY THE ASSESSEE AN D AO CAN EXAMINE THE PEAK AND CAN ASSESS THE INCOME ON THE BASIS OF PEAK. ACCORDINGLY , WE ARE OF THE VIEW THAT THE CIT(A) HAS ERRED IN ENHANCING THE INCOME AND AO HAS RIGHTL Y MADE THE ADDITION ON PEAK AS WELL AS GROSS PROFIT ON THE SO CALLED TURNOVER. WE DELE TE THE ADDITION MADE BY CIT(A) AND THIS ISSUE OF ASSESSEES APPEAL IS ALLOWED AS INDICATED ABOVE. APPEAL OF ASSESSEE IS PARTLY ALLOWED. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED. 6. ORDER IS PRONOUNCED IN THE OPEN COURT ON 10.11.2 015 SD/- SD/- (WASEEM AHMED) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 10TH NOVEMBER, 2015 JD. SR. P.S 3 ITA NO.194/K/2013 GOLAM KIBRIA BISWAS AY 2009-10 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT MR. GOLAM KIBRIA BISWAS, C/O V. N. PURO HIT & CO., CHARTERED ACCOUNTANTS, DIAMOND CHAMBERS, UNIT-III, 4 TH FLOOR, SUIT NO. 4G, 4, CHOWRINGHEE LANE, KOLKATA-700 016. . 2 RESPONDENT ITO, WARD-1, KOLKATA. 3 . THE CIT(A), KOLKATA 4. 5. CIT KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .