ITO 9(3) (1), MUMBAI V. IRFAN ABDUL SATTAR MANSURI, MUMBAI

ITA 2078/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71863 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: I
• Next Hearing Date: 19-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 29-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: O P SINGH
• Keywords: Peak credit
• Section: 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH I, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 2078/MUM/2012 ASSESSMENT YEAR: 2008-09 ITO -15(2)(4) ROOM NO. 111, 1 ST FLOOR, MATRU MANDIR, GRANT ROAD, MUMBAI- 400 007 VS. SHRI IRFAN ABDUL SATTAR MANSURI, R.NO. 9, 2 ND FLOOR, 12, MASJID STREET, MUMBAI.400 003 PAN: AADPM 9084 F (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ANUJ KISNADWALA REVENUE BY : SHRI O.P. SINGH DATE OF HEARING : 19.11.2013 DATE OF PRONOUNCEMENT : 29.11.2013 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF THE LD.CIT(A)-26, MUMBAI DATED 20.01.2012 FOR THE ASSESSMENT YEAR 20 08-09. 2. IN THIS APPEAL, THE REVENUE HAS AGITATED THE ACT ION OF THE LD.CIT(A) RESTRICTING THE ADDITION TO RS.1,15,510/ AS AGAINST RS.17,07,350/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS MADE BY THE ASSESSEE IN S TANDARD CHARTERED BANK. 3. BRIEFLY STATED, THE ASSESSEE, AN INDIVIDUAL, DUR ING THE YEAR UNDER CONSIDERATION, HAD DECLARED A TOTAL INCOME OF RS.96,775/- EXCLUDING AN AGRICULTURAL INCOME OF RS.1,50,000/- IN HIS RETURN OF INCOME. IN THE ASSESSMENT FRAMED, THE AO COMPLETED THE ASSESSMENT EX- PARTE U/S 144 OF THE ACT ON THE BASIS OF INFORMATIO N AVAILABLE ON RECORD WHICH RESULTED IN THE ADDITION OF RS.17,07,350/- ON ACCOUNT OF THE CA SH DEPOSITS MADE IN THE STANDARD CHARTERED BANK. ACCORDINGLY, THE SAID AMOUNT WAS AD DED TO THE TOTAL INCOME OF THE ASSESSEE AS U/S 68 OF THE ACT. ON APPEAL, THE LD.CI T(A), AFTER OBTAINING THE REMAND REPORT FROM THE AO, RESTRICTED THE IMPUGNED ADDITIO N TO RS.1,15,510/- AS THE ASSESSEE WAS SHOWING REGULAR AGRICULTURAL INCOME AND THERE A RE REGULAR CASH WITHDRAWAL ACCOUNTS ITA NO. 2078/MUM/2012 SHRI IRFAN ABDUL SATTAR ASSESSMENT YEAR: 2008-09 2 AND THEREBY RESTRICTED THE SAID ADDITION TO THE PEA K CREDIT BALANCE IN THE ACCOUNT WHICH IS 1,15,510/-. AGGRIEVED BY THE IMPUGNED ORDER, THE RE VENUE IS IN APPEAL BEFORE US. 4. HAVING HEARD BOTH THE SIDES AND PERUSED THE MATE RIAL ON RECORD, THE FACT THAT THE ASSESSEE OWNS 6.5 ACRES OF ORCHARD GROWING LAND AND HAS BEEN SHOWING REGULAR AGRICULTURAL INCOME IS NOT DISPUTED. ALSO, IT IS NO T DISPUTED THAT THE ASSESSEES BANK ACCOUNT REVEALS THAT THERE ARE CASH DEPOSITS AND AL SO CASH WITHDRAWALS FROM TIME TO TIME FROM THE SAID BANK ACCOUNT. FURTHER, THE DEPARTMENT HAS NOT BROUGHT ANY EVIDENCE ON RECORD THAT THE SAID CASH WITHDRAWALS HAVE BEEN SPE NT BY THE ASSESSEE. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE PEAK OF THE BALANCE IN THE SAID BANK ACCOUNT SHOULD BE CONSIDERED FOR THE PURPOSE OF CHARGING THE INCOME T AX. DURING THE COURSE OF THE PROCEEDINGS, THE LD.AR OF THE ASSESSEE HAS FAIRLY A DMITTED THAT THE PEAK BALANCE AS ON 18.12.2007 IS OF RS.2,86,250/- AND THE SAME MAY BE CONSIDERED FOR THE SAID ADDITION INSTEAD OF RS.1,15,510/- WHICH HAS MISTAKENLY BEEN CONSIDERED BY THE LD.CIT(A) AS THE PEAK BALANCE. THE SAME HAS BEEN VERIFIED AND CONCED ED BY THE LD.DR ALSO. CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES WHILE WE UP HOLD THE DECISION OF THE LD.CIT(A) RESTRICTING ADDITION BY TAKING INTO ACCOUNT OF THE PEAK CREDIT BALANCE IN THE ACCOUNT OF THE ASSESSEE, WE MODIFY THE SAID ORDER TO THE EXTENT TH AT THE ADDITION SHOULD BE RESTRICTED TO RS.2,86,250/- WHICH IS THE PEAK BALANCE AS ON 18.12 .2007 INSTEAD OF RS.1,15,510/- AS NOTED BY THE LD.CIT(A). WE ORDER AND DIRECT ACCORDI NGLY. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF NOVEMBER, 2013. SD/- SD/- (P.M. JAGTAP) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 29.11.2013. *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR I BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.