Pranaya Kumar Samantaraya, Cuttack V. CIT, Cuttack

ITA 220/CTK/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86450 (ITAT-CUTTACK)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 30-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RABIN CHOUDHURI
• Assessee Lawyers: B K MOHAPATRA
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH , CUTTACK BEFORE S/SHRI P.K.BANSAL (AM) AND D.T.GARASIA (JM) I.T.A. NO. 220/CTK/2014 ASSESSMENT YEAR: 2009-2010 PRANAYA KUMAR SAMANTRAY, PROP: GAME ZONE, BHARATIA TOWER, BADAMBADI, CUTTACK PA NO.BDEPS 0977 C VS ITO, WARD - 1(1), CUTTACK APPELLANT RESPONDENT FOR THE APPELLANT: SHRI B.K.MOHAPATRA FOR THE RESPONDENT: RABIN CHOUDHURI DATE OF HEARING: 05/02/2015 DATE OF PRONOUNCEMENT: 3 / 3 /2015 ORDER PER P.K.BANSAL, AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST ORDER DATED 31 ST MARCH, 2014 OF LD CIT, CUTTACK U/S.263 OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2009-2010. 2. THE COMMISSIONER OF INCOME TAX INVOKED HIS JURIS DICTION U/S.263 OF THE INCOME TAX ACT, 1961 ON THE BASIS THAT, IN HIS OPINION, THE ASSESSI NG OFFICER HAS NOT CONSIDERED THE DEPOSITS MADE BY THE ASSESSEE IN TWO BANK ACCOUNTS AMOUNTING TO RS.14,60,500/- PROPERLY AND HE HAS SIMPLY ADDED BACK IN THE INCOME OF THE ASSESSEE 10 % OF SUCH UNDISCLOSED DEPOSITS. LD CIT THEREFORE, AFTER GIVING AN OPPORTUNITY TO THE ASSES SEE OF BEING HEARD, SET ASIDE THE ASSESSMENT AND RESTORED THE ISSUE TO THE FILE OF THE AO TO EXA MINE THE SOURCE OF CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE. 3. AFTER HEARING THE RIVAL SUBMISSIONS AND GOING TH ROUGH THE ORDERS OF THE TAX AUTHORITIES, WE NOTED THAT IT IS APPARENT FROM THE ASSESSMENT OR DER AND EVEN IN PARA 1 & 2 OF THE ORDER OF LD CIT THAT THE AO HAD DULY CONSIDERED THE DEPOSITS MADE BY THE ASSESSEE AMOUNTING TO RS.14,60,500/- IN TWO BANK ACCOUNTS BUT HE ESTIMATE D THE INCOME ON THESE BANK ACCOUNTS @ 10% I.E. RS.1,45,650/ AND THE SAME INCOME HAS BEEN ADDED BY THE ASSESSING OFFICER WHILE DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS. 8,14,850/-. BESIDES THIS, THE AO, WE NOTED 2 I.T.A. NO. 220/CTK/2014 ASSESSMENT YEAR: 2009-2010 HAS ALSO ADDED UNEXPLAINED FIXED DEPOSIT OF RS.4,00 ,000/- AND RS.1,00,000/-. IN OUR OPINION, BY INVOKING JURISDICTION UNDER SECTION 263 OF THE A CT, BOTH THE CONDITIONS THAT THE ORDER PASSED BY THE AO IS ERRONEOUS AS WELL AS PREJUDICIAL TO TH E INTERESTS OF THE REVENUE MUST BE SATISFIED. NO DOUBT, WHERE THE AO HAS NOT EXAMINED THE ISSUE, IT CAN BE SAID THAT THE ORDER PASSED BY THE AO IS ERRONEOUS BUT IN THIS CASE, WHERE THE RELEVAN T ISSUE HAS DULY BEEN EXAMINED BY THE AO AND HE HAS TAKEN ONE OF THE POSSIBLE VIEW, THE ORDE R PASSED CANNOT BE REGARDED TO BE ERRONEOUS UNLESS AND UNTIL THE VIEW TAKEN BY THE AO IS UNSUSTAINABLE IN LAW. IN THIS CASE, WE NOTED THAT THE AO HAS DULY EXAMINED THE ISSUE RELAT ING TO THE DEPOSITS OF RS.14,60,500/- MADE BY THE AO IN TWO BANK ACCOUNTS AND ESTIMATED THE IN COME ON THE DEPOSIT @ 10% AMOUNTING TO RS.1,45,650/-, WHILE IN THE OPINION OF LD CIT, ALL THE DEPOSITS SHOULD BE TAKEN TO BE INCOME OF THE ASSESSEE. LD D.,R. EVEN THOUGH VEHEMENTLY RELI ED ON THE ORDER OF THE CIT BUT COULD NOT ADDUCE ANY EVIDENCE THAT THE VIEW TAKEN BY THE AO I S UNSUSTAINABLE IN LAW. IN VIEW OF THESE FACTS, IN OUR OPINION, LD CIT HAS EXCEEDED HIS JURI SDICTION BY INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT AND DIRECTING THE AO TO REDO THE ASS ESSMENT. WE, THEREFORE, QUASH THE ORDER PASSED BY LD CIT. 4. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN PURSUANCE WITH RULE 34(4) BY P UTTING THE COPY OF THE SAME ON NOTICE BOARD ON 3/3/2015. SD/- SD/- (D.T.GARASIA) (P.K.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, PANAJI 3 / 3 /2015 B.K.PARIDA, SR. PS COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT: PRANAYA KUMAR SAMANTRAY, PROP: GAME ZONE, BHARATIA TOWER, BADAMBADI, CUTTACK 2. THE RESPONDENT: ITO, WARD-1(1), CUTTACK 3. THE CIT, CUTTACK 4. THE CIT(A), CUTTACK 5. DR, CUTTACK BENCH 6. GUARD FILE. TRUE COPY// BY ORDER ASST. REGISTRAR, ITAT, CUTTACK 3 I.T.A. NO. 220/CTK/2014 ASSESSMENT YEAR: 2009-2010