SHRI YOGESH AGRAWAL, Nagpur V. I.T.O. WARD -3(4), Nagpur

ITA 228/NAG/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2128 (ITAT-NAGPUR)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 05-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AGNES P THOMAS
• Assessee Lawyers: S C THAKAR
• Keywords: Opportunity of being heard; Peak credit

Judgement Text

1 ITA NO. 228/NAG/2016. IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (S.M.C.) I.T.A. NO. 228/NAG/2016. ASSESSMENT YEAR : 2009 - 10. SHRI YOGESH AGRAWAL, THE INCOME - TAX OFFICER, NAGPUR. VS. WARD - 3(4), NAGPUR. PAN AAWPA4434G. APPELLANT. RESPONDENT. APPELLANT BY : SHRI S.C. THAKAR. . RESPONDENT BY : SMT. AGNES P. THOMAS. DATE OF HEARING : 20 - 07 - 2016 DATE OF PRONOUNCEMENT : 20 TH JULY, 2016 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(AP PEALS) - I I, NAGPUR DATED 20 - 01 - 2016 PERTAINING TO ASSESSMENT YEAR 200 9 - 10 . THE GROUNDS OF APPEAL READ AS UNDER : 1. LEARNED C.I.T.(A) ERRED IN CONFIRMING THE ADDITION OF RS.5,52,700/ - AS UNEXPLAINED PEAK CREDIT IN STANDARD CHARTER E D BANK. 2. LEARNED C.I.T.(A) AND A.O. FAILED TO APPRECIATE THAT REGULAR BOOKS OF ACCOUNTS WERE MAINTAINED AND THERE WAS NO DEFECT THEREIN AND SUCH BOOKS WERE PRODUCED BEFORE THEM AND HENCE THE SAME COULD NOT BE IGNORED OR BYE PASSED MERELY BECAUSE WHILE FILING RETURN THE ASSESSEES STAFF THROUGH OVERSIGHT STATED AS NOT LIABLE TO MAINTAIN BOOKS OF ACCOUNT. 3. WITHOUT PREJUDICE TO ABOVE GROUND THE LEARNED A.O. AND C.I.T.(A) WHILE WORKING OUT THE PEAK CREDIT SHOULD HAVE TAKEN INTO CONSIDERATION THE BANK ACCOUNT WITH STANDARD CHARTERED BANK AND ICICI BANK LTD. TOGETHER AND SHOULD HAVE TAKEN COMPREHENSIVE VIEW TO FIND OUT IF THERE REMAINED ANY UNEXPLAINED CASH DEPOSIT. SO DOING THE PEAK CREDIT COMES TO RS.2,80,900/ - ONLY EVEN BY TAKING NO OPENING BALANCE. WHILE IN FACT THERE WAS OPENING BALANCE DU LY SUPPORTED. 2 ITA NO. 228/NAG/2016. 2. BRIEF FACTS OF THE CASE ARE AS UNDER: RETURN OF INCOME DECLARING TOTAL INCOME OF RS.4,72,370/ - WAS FILED ON 31 - 03 - 2010. THE APPELLANT IS A CHARTERED ACCOUNTANT AND A PARTNER IN M/S AGARWAL AND BUDHARAJA CO. AND OFFERS PROFESSIONAL TAX CONSULTANCY SERVICES. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS NOTED BY THE AO THAT THE APPELLANT HAD FILED RETURN OF INCOME IN ITR - 4 AND HAD STATED THAT HE WAS NOT REQUIRED TO MAINTAIN THE BOOKS OF ACCOUNTS AS PER PROVISIONS OF SECTION 44AA OF T HE I.T. ACT. THE AO FURTHER NOTED THAT THE APPELLANT WAS REQUIRED TO MAINTAIN BOOKS OF ACCOUNTS IN VIEW OF PROVISIONS OF SECTION 44AA(2). HE ALSO NOTED THAT THE APPELLANT HAD MADE CERTAIN CASH DEPOSITS IN HIS BANK ACCOUNT AMOUNTING TO RS.12,26,500/ - DURING THE YEAR UNDER CONSIDERATION AS PER AIR INFORMATION. INSPITE OF SEVERAL OPPORTUNITIES THE APPELLANT WAS UNABLE TO EXPLAIN THE SAID CASH DEPOSITS IN HIS BANK ACCOUNT AND THE AO, THEREFORE, ADDED THE AMOUNT OF RS.5,52,700/ - BEING PEAK CASH DEPOSIT IN THE BA NK ACCOUNT. 4. BEFORE THE LEARNED CIT(APPEALS) THE ASSESSEE SOUGHT TO PRODUCE CERTAIN BOOKS OF ACCOUNT AND EXPLAN ATION FOR THE SAID CASH DEPOSIT. BUT THE LEARNED CIT(APPEALS) DID NOT AGREE FOR THE SAME AND HELD THAT SUCH AN EXERCISE IS TOTALLY MEANINGLESS. ACCORDINGLY HE UPHELD THE ORDER OF THE AO. 5. AGAINST THIS ABOVE ORDER, THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 6. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. IN THIS CASE THE ASSESSEE HAS FILED THE RETURN OF INCOME DECLARING INCOME OF RS. 4,72,370/ - . THE AO NOTED THAT THE ASSESSEE HAS NOT MAINTAINED BOOKS OF ACCOUNTS , S TILL THE AO DID NOT FIND ANYTHING WRONG WITH THE INCOME RETURNED OR PROFIT DISCLOSED. HOWEVER, HE INSISTED UPON EXPLANATION OF CASH DEPOSIT OF RS.12,26,500/ - AND IN ABSENCE THEREOF MADE THE IMPUGNED ADDITION. HERE I FIND THAT THE AO IS NOT FINDING ANY INFIRMITY IN THE INCOME RETURNED BY THE ASSESSEE DE S PITE THERE BEIN G NO BOOKS OF ACCOUNTS PRODUCED. IN SUCH A SITUATION THE SPECIFIC BANK DEPOSIT CANNOT BE ADDED TO THE INCOME OF THE ASSESSEE WHEN THE ASSESSEE IS NOW 3 ITA NO. 228/NAG/2016. PROVIDING THE BOOKS OF ACCOUNTS IN EXPLANATION THEREOF WITHOUT IT BEING EXAMINED . HENCE I FIND THAT INTEREST OF JUSTICE WOULD BE SERVED IF THE BOOKS OF ACCOUNTS NOW BEING PRODUCED IN EXPLANATION OF THE BANK DEPOSIT IS EXAMINED BY THE AO. HENCE I REMIT THE ISSUE TO THE FILE OF THE AO TO EXAMINE THE ISSUE AFRESH AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORD ER PRONOUNCED IN THE OPEN COURT ON THIS 20 TH DAY OF JULY,2016. SD/ - ( SHAMIM YAHYA) ACCOUNTANT MEMBER. NAGPUR, DATED: 20 TH JUL Y, 2016. COPY FORWARDED TO : 1. SHRI YOGESH AGRAWAL, MAHAJAN CHAWL, SITABULDI, NAGPUR. 2. I.T.O., WARD - 3(4), NAGPUR. 3. C.I.T. - I I, NAGPUR. 4. CIT(APPEALS), - I I, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKOD E.