ITO, New Delhi V. Sh. Bijender Tomar, Rohtak

ITA 1967/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3684 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 06-07-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 30-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRATIMA KAUSHIK
• Assessee Lawyers: N O N E
• Keywords: Peak credit; Additional evidence
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI K.G. BANSAL I.T.A. NO. 1967/DEL/2010 ASSESSMENT YEAR: 2006-07 THE INCOME-TAX OFFICER, VS. SH. BIJENDER TOMAR, P ROP. WARD 1, TOMAR ELECTRICALS & STEEL ROHTAK. WORKS, OPP. HARKISHAN MEMORIAL & PUB. SCHOOL, ` SONEPAT ROAD, ROHTAK. (APPELLANTS) (RESPONDENT) APPELLANT BY: MS. PRATIMA KAUSH IK, SR.DR RESPONDENT BY: N O N E ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF LEARNED CIT(APPEALS) DATED 16.2.2010 PASSED FOR ASSESSMENT YEAR 2006-07. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT LEARNED CIT(APPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF RS.2,05,105 I.E. PEAK CR EDIT AVAILABLE IN THE BANK ACCOUNT OF THE ASSESSEE MAINTAINED WITH HDFC BANK, INSTEAD OF GROSS SUM I.E. RS.10,92,210 DEPOSITED BY THE ASSESSEE DURING THE YEAR. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL. HE WAS RUNNING A PROPRIETARY CONCERN IN THE NAME AND S TYLE OF M/S. TOMAR ELECTRICAL & STEELS WORKS AT THE RELEVANT TIME. HE HAS FILED HIS RETURN OF INCOME ON 31.3.2007 DECLARING AN INCOME OF RS.99,90 0. HE WAS ENGAGED IN 2 THE TRADING OF ELECTRICAL GOODS. THE ASSESSING OFFI CER CALLED FOR AN INFORMATION UNDER SEC. 133(6) FROM HDFC BANK MODEL TOWN, ROHTAK WHERE THE ASSESSEE HAS A BANK ACCOUNT. FROM THE COP Y OF THE BANK STATEMENT, IT REVEALED THAT ASSESSEE HAS DEPOSITED A SUM OF RS .10,92,210 DURING THE YEAR UNDER CONSIDERATION. ASSESSING OFFICER DIRECTED THE ASSESSEE TO EXPLAIN THE SOURCE OF DEPOSITS IN THE BANK. ACCORDING TO THE AS SESSING OFFICER, ASSESSEE FAILED TO GIVE ANY PLAUSIBLE EXPLANATION, THEREFORE , HE MADE AN ADDITION OF RS.10,92,210 IN THE TOTAL INCOME OF THE ASSESSEE. 3. DISSATISFIED WITH THE ADDITION, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEARNED CIT(APPEALS). HE MOVED AN APPLIC ATION UNDER RULE 46A OF THE IT RULES, 1962 FOR PERMISSION TO ADDUCE ADDI TIONAL EVIDENCE. HE SUBMITTED THAT EVIDENCE EXPLAINING THE SOURCE WITH THE BANK WAS WITH THE ADVOCATE WHO FAILED TO SUBMIT BEFORE THE ASSESSING OFFICER. HE ALSO CONTENDED THAT HE USED TO EARN INCOME FROM SALE OF BATTERY, REPAIR OF COOLERS ETC. THE SALE PROCEEDS WERE DEPOSITED IN THE BANK A CCOUNT AND THE AMOUNTS WERE WITHDRAWN FOR MAKING FURTHER PURCHASES. LEARNE D CIT(APPEALS) ON A PERUSAL OF THE RECORD OBSERVED THAT ASSESSEE HAS BE EN GRANTED SUFFICIENT OPPORTUNITY FOR PRODUCING EVIDENCE BY THE ASSESSING OFFICER, THEREFORE, NO CASE IS MADE OUT FOR PERMITTING THE ASSESSEE TO ADD UCE ADDITIONAL EVIDENCE. 3 ON MERIT, LEARNED CIT(APPEALS) FOUND THAT THERE IS A SERIES OF TRANSACTIONS IN THE BANK DEPICTING CASH DEPOSITS AND WITHDRAWALS . IN THE OPINION OF LEARNED CIT(APPEALS), IN SUCH CIRCUMSTANCES, ONLY P EAK CREDIT AVAILABLE IN THE BANK CAN BE ADDED AS INCOME OF THE ASSESSEE BEC AUSE THE CASH ONCE DEPOSITED WAS WITHDRAWN BY THE ASSESSEE FOR USE IN THE BUSINESS. LEARNED CIT(APPEALS) ALSO OBSERVED THAT ASSESSING OFFICER H AS NOT DISPUTED THE CLAIM OF THE ASSESSEE THAT HE WAS EARNING INCOME FR OM BUSINESS OR PROFESSION. IN THIS WAY, LEARNED CIT(APPEALS) HAS R ESTRICTED THE ADDITION TO RS.2,05,105 WHICH IS PEAK CREDIT AVAILABLE IN THE B ANK ON 16 TH SEPTEMBER, 2005. 4. LEARNED DR WHILE IMPUGNING THE ORDER OF LEARNED CIT(APPEALS) CONTENDED THAT ASSESSEE WAS SUPPOSED TO EXPLAIN THE GROSS AMOUNT DEPOSITED IN THE BANK. HE FAILED TO GIVE ANY PLAUSIBLE EXPLAN ATION, THEREFORE, ASSESSING OFFICER HAS RIGHTLY MADE THE ADDITION. 5. WITH THE ASSISTANCE OF LEARNED DR, WE HAVE GONE THROUGH THE RECORD CAREFULLY. WE DO NOT FIND ANY MERIT IN THE CONTENT IONS RAISED BY THE LEARNED DR. THE ASSESSEE WAS RUNNING A PROPRIETARY CONCERN WHERE HE USED TO SELL ELECTRICAL GOODS, NAMELY, BATTERIES ETC. AND ALSO C ARRY OUT THE REPAIRS OF ELECTRICAL ITEMS, NAMELY, COOLERS ETC. THE INCOME H AS BEEN ASSESSED UNDER 4 THE HEAD INCOME FROM BUSINESS OR PROFESSION, THE CASE OF ASSESSEE IS THAT A DEPOSITS IN THE BANK WAS MADE OUT OF BUSINESS TRANS ACTION I.E. REALIZATION OF SALE PROCEEDS. THE CASH WAS DEPOSITED IN THE BANK A ND IT WAS WITHDRAWN FOR THE PURPOSE OF THE BUSINESS. CONSIDERING ALL THESE FACTORS, LEARNED CIT(APPEALS) HAS RESTRICTED THE ADDITION TO THE PEA K AMOUNT AVAILABLE IN THIS BANK ACCOUNT DURING THE ACCOUNTING YEAR RELEVANT FO R THE ASSESSMENT YEAR. IN OUR OPINION, LEARNED FIRST APPELLATE AUTHORITY HAS APPRECIATED THE FACTS AND CIRCUMSTANCES IN RIGHT PERSPECTIVE AND NO INTERFERE NCE IS CALLED FOR. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 09.07.201 0 ( K.G. BANSAL ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 09/07/2010 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR