SONIYA J. SHAH, MUMBAI V. ITO 16(2)(4), MUMBAI

ITA 2182/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8701 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2005-2006
• Appeal Filed On: 18-03-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: MITESH SHAH
• Keywords: Peak credit
• Section: 143(3)

Judgement Text

1 ITA 2182/MUM/10, SMT. SONIYA J. SHAH IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F BEFORE SHRI R.V. EASWAR, PRESIDENT AND SHRI P.M. JA GTAP, A.M. ITA NO. 2182/MUM/2010 ASSESSMENT YEAR 2005-06 SMT. SONIYA J. SHAH, B-701, VRAJDAM RAMBHAG LANE, POISAR, BORIVALI (W), MUMBAI 400 092. PAN BFEPS 4400 N VS. INCOME TAX OFFICER 16(2)(4), MATRU MANDIR, TARDEO, MUMBAI. 400 034. APPELLANT RESPONDENT APPELLANT BY SHRI MITESH SHAH RESPONDENT BY MS. ASHIMA GUPTA ORDER PER P.M. JAGTAP, A.M. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. CIT(A) -27, MUMBAI DATED 29.1.10 AND THE SOLITARY ISSUE ARISING OUT OF THE SAME RELATES TO THE ADDITION OF ` 10,26,300/- MADE BY THE A.O. AND CONFIRMED BY THE L D. CIT(A) ON ACCOUNT OF CASH DEPOSITS FOUND TO BE MADE IN THE BANK ACCOUNT OF TH E ASSESSEE TREATING THE SAME AS UNEXPLAINED. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L WHO FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 10.7.05 DECLARING T OTAL INCOME OF ` 1,08,451/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY UNDER CAS S BY THE A.O. ON THE BASIS OF INFORMATION RECEIVED UNDER AIR WITH RESPECT TO CASH DEPOSITS OF ` 10,26,300/- FOUND TO BE MADE IN THE BANK ACCOUNT OF THE ASSESSEE. DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE COULD NOT EXPLAIN THE SOU RCE OF FUNDS UTILIZED FOR MAKING THE SAID CASH DEPOSITS IN HIS BANK ACCOUNT TO THE SATIS FACTION OF THE A.O. THE A.O., THEREFORE, 2 ITA 2182/MUM/10, SMT. SONIYA J. SHAH TREATED THE SAID DEPOSITS AS UNDISCLOSED INCOME OF THE ASSESSEE AND THE AMOUNT OF ` 10,26,300/- WAS ADDED BY HIM TO THE TOTAL INCOME OF THE ASSESSEE IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DTD. 26.12.07. O N APPEAL, THE LD. CIT(A) CONFIRMED THE SAID ADDITION MADE BY THE A.O. AGGRIEVED BY TH E ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBU NAL. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. THE LIMITED RELIEF WHICH HAS B EEN SOUGHT BY THE LEARNED COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING BEFORE US IS TH AT INSTEAD OF MAKING THE TOTAL ADDITION ON ACCOUNT CASH DEPOSITS OF ` 10,26,300/-, ONLY THE PEAK AMOUNT SHOULD BE ADDED TO THE INCOME OF THE ASSESSEE AS THERE WERE WITHDRAWALS OF CASH MADE BY THE ASSESSEE FROM THE SAME BANK ACCOUNT. HE HAS ALSO PREPARED AND FURNISH ED WORKING OF SUCH PEAK CREDIT WHICH SHOWS THAT THE PEAK CREDIT OF THE CASH DEPOSI TS AND WITHDRAWALS WAS ONLY TO THE EXTENT OF ` 2,69,500/-. THE LEARNED D.R. HAS NOT BEEN DISPUTED THAT THERE BEING CASH DEPOSITS AND WITHDRAWALS MADE FROM THE SAME BANK AC COUNT, THE ADDITION ONLY TO THE EXTENT OF PEAK CREDIT HAS TO BE MADE. SHE, HOWEVER , HAS URGED THAT THE A.O. MAY BE GIVEN AN OPPORTUNITY TO VERIFY THE WORKING OF PEAK CREDIT PREPARED AND FURNISHED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE TRIBUNAL. A CCORDINGLY, THE IMPUGNED ORDER OF THE LD. CIT(A) ON THIS ISSUE IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE A.O. WITH A DIRECTION TO VERIFY THE WORKING OF PEAK CREDIT PREP ARED AND FURNISHED BY THE ASSESSEE AND RESTRICT THE ADDITION MADE ON THIS ISSUE TO THE EXT ENT OF PEAK CREDIT ONLY. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 28 TH JANUARY, 2011. SD/- SD/- (R.V. EASWAR) (P.M. JAGTAP) PRESIDENT A CCOUNTANT MEMBER MUMBAI, DATED 28 TH JANUARY , 2011. 3 ITA 2182/MUM/10, SMT. SONIYA J. SHAH RK COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT (A) 27 - MUMBAI 4. THE CIT CITY XVI, MUMBAI 5. THE DR BENCH, F 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI 4 ITA 2182/MUM/10, SMT. SONIYA J. SHAH DATE INITIALS 1 DRAFT DICTATED ON 14.1.11, SR. PS 2 DRAFT PLACED BEFORE THE AUTHOR 17.1.11 SR. PS 3 DRAFT PLACED BEFORE THE SECOND MEMBER 4 APPROVED DRAFT COMES TO THE SR. PS SR. PS 5 KEPT FOR PRONOUNCEMENT ON SR. PS 6 FILE SENT TO THE BENCH CLERK SR. PS 7 DATE ON WHICH FILE GOES TO THE HEAD CLERK 8 DATE ON WHICH FILE GOES TO THE AR 9 DATE OF DISPATCH OF ORDER