Sh. Hari Kishan Sharma, Delhi V. ITO, New Delhi

ITA 1943/DEL/2015

• Counselvise Citation: 194320114 RSA 2015
• Duration Of Justice: 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 08-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 06-04-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Assessee Lawyers: P C YADAV
• Keywords: Peak credit
• Section: 144; 80C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC - I NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO. - 1943 /DEL/201 5 (ASSESSMENT YEAR - 20 09 - 10) HARI KISHAN SHARMA, X - 723, CHAND MOHALLA, GANDHI NAGAR, DELHI - 110031. PAN - BAIPS1524C ( APPELLANT) VS ITO, WARD - 35(2), NEW DELHI. (RESPONDENT ) APPELLANT BY SH.P.C.YADAV, ADV. RESPONDENT BY DR.B.R.R.KUMAR, SR.DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 12.12.2014 OF CIT(A) - 19 , NEW DELHI PERTAINING TO 20 0 9 - 1 0 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS: - 1. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN TREATING THE AMOUNT DEPOSIT INTO REGULAR BANK ACCOUNT, OUT OF SALE PROCEEDS, AS UNEXPLAINED. 2. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.3,53,535/ - , 3. THAT THE IMPUGNED APPELLATE ORDER IS ARBITRARY, ILLEGAL, BAD IN LAW AND IN VIOLATION OF RUDIMENTARY PRINCIPLES OF CONTEMPORARY JURISPRUDENCE. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD/ALTER ANY/ALL GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 2. IN THE FACTS OF THE PR ESENT CASE THE RETURNED INCOME OF RS.2,06,122/ - WAS VARIED BY THE AO TO THE DISADVANTAGE OF THE ASSESSEE BY MAKING AN ADDITION OF RS.8,57,880/ - BY AN ORDER PASSED U/S 144 WHEREIN THE NOTICE SENT TO THE ASSESSEE REMAIN UNCOMPLIED WITH. THE ASSESSEE CAME UP IN APPEAL BEFORE THE CIT(A) . THE FACTS ON THE ISSUE S RELATABLE TO THE GROUNDS RAISED IN THE PRESENT DATE OF HEARING 08 .0 9 .2015 DATE OF PRONOUNCEMENT 23 .0 9 .2015 I.T.A .NO. - 1 943 / DEL/201 5 PAGE 2 OF 3 PROCEEDINGS ARE FOUND DISCUSSED IN PARA 7 & 8 WHICH ARE REPRODUCED HEREUNDER FOR READY - REFERENCE: - 7. WITH REGARD TO THE BALANCE ADDITION REGARDING TH E CASH DEPOSI T OF RS. 38,12,750/ - WITH JAIN CO - OP. BANK, THE APPELLANT'S SUBMISSION IS THAT HE HAD SHOWN GROSS RECEIPTS OF RS.32,76,285 / - IN HIS RETURN OF INCOME AND ONLY THE BALANCE AMOUNT OF RS. 5,36,465/ - OUT OF THE CASH DEPOSIT OF RS.38,12,750 / - WITH JAIN CO - OP. BA NK REQUIRES TO BE ESTIMATED AT 7.20 % AS BUSINESS PROFIT FROM SALES OUT OF HIS BOOKS OF ACCOUNTS. THE APPELLANT HAD FILED A COPY OF THE RETURN OF INCOME AND IT SHOWS GROSS RECEIPT FROM BUSINESS OF RS. 32,76,285 / - . HOWEVER, THE APPELLANT WAS UNABLE TO RECON CILE THE CASH DEPOSITS WITH HIS GROSS RECEIPTS OR SALES DURING THE APPELLATE PROCEEDINGS. I HAVE VERIFIED THE COPY OF THE BANK PASS BOOK WITH JAIN CO - OP. BANK SUBMITTED BY THE APPELLANT DURING THE APPELLATE PROCEEDINGS AND IT SHOWS FREQUENT CASH CREDITS AN D WITHDRAWALS. THE PEAK CREDIT AS PER OF THE BANK PASS BOOK IS RS. 3,53,535 / - AS ON 12.01.2009 AND I THEREFORE, RESTRICT THE ADDITION MADE BY THE ASSESSING OFFICER TO THE PEAK CREDIT IS RS. 3,53,535/ - . THUS, THE APPELLANT GETS A RELIEF OF RS. 4,74,445/ - (827 980 - 353535) AND GROUND NOS. 2 & 3 ARE PARTLY ALLOWED. 8. GROUND NO. 4 IS AGAINST THE DISALLOWANCE OF RS. 29,900/ - UNDER SECTION 80C OF THE INCOME TAX ACT, 1961. THE APPELLANT HAD NOT FILED ANY EVIDENCE REGARDING THE CLAIM OF RS. 29,90 0 / - DURING THE APPELLATE PROCEEDINGS AND THEREFORE, THE DISALLOWANCE OF RS. 29,900/ - MADE BY THE ASSESSING OFFICER IS SUSTAINED AND GROUND OF APPEAL NO, 4 IS REJECTED. 3. THE L D.AR INVITING ATTENTION TO THE ASSESSMENT ORDER AND THE IMPUGNED ORDER SUBMITTED THAT THE AS SESSEE WOULD WANT TO FILE A PAPER BOOK SO AS TO ASSAIL THE FINDING AS TO HOW AND ON WHAT BASIS THE ESTIMATE OF BUSINESS PROFITS AT 7.20% HAS BEEN APPLIED. IT WAS ALSO HIS SUBMISSION THAT ON FACTS EVEN THE PEAK CREDIT TAKEN BY THE CIT(A) IS NOT CORRECT AN D IN THE FACTS OF THE PRESENT CASE AT BEST THE PROFIT MAY BE ESTIMATED AT 5%. THE LD. SR. DR, DR. B. R. R. KUMAR WAS REQUIRED TO JUSTIFY THE FINDING THAT THE PEAK CREDIT WAS RS.3,53,535/ - IN THE ABSENCE OF ANY DISCUSSION IN THE ORDER THEREON HE WAS UNABLE TO ADDRESS THE SAME. HE WAS FURTHER REQUIRED TO JUSTIFY THE ESTIMATE OF 7 .20 % WHICH HAD BEEN TAKEN BY THE AO. I N THE CONTEXT OF THE PRAYER OF THE LD. AR THAT IT MAY BE TAKEN AS 5%. THE LD. SR. DR WAS UNABLE TO GIVE ANY REASON EMANATING FROM THE RECORD AS TO WHY 7.20% SHOULD BE TAKEN ACCORDINGLY AFTER HEARING THE PARTIES BEFORE THE BENCH WHEREIN BOTH THE PARTIES HAD LEFT THE ISSUE OF ESTIMATION TO THE COURT. I AM OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, AFTER HEARING THE PA RTIES THE ESTIMATION OF INCOME SHOULD BE LIMIT ED TO THE EXTENT OF 5% OF THE CASH DEPOSITS . THE SAID ESTIMATE WAS AGREED TO BY BOTH THE PARTIES I.T.A .NO. - 1 943 / DEL/201 5 PAGE 3 OF 3 AND NO FURTHER ARGUMENT ON ANY OTHER ISSUE WAS RAISED. THE SAID ORDER WAS PRONOUNCED IN THE COURT AT THE TIME OF HEARING ITSELF. ACCORDINGLY THE GROUNDS RAISED BY THE ASSESSEE ARE PARTLY ALLOWED. 4 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 2 3 R D OF SEPTEMBER, 2015. S D / - (DIVA SINGH) JUDICIAL MEMBER DATED: 2 3 /09 /2015 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI