Janak Restaurant, Bhubaneswar V. CIT, Bhubaneswar

ITA 230/CTK/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81450 (ITAT-CUTTACK)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 06-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K AJAY KUMAR
• Assessee Lawyers: G NAIK; R KAR
• Keywords: Income from undisclosed sources; Peak credit
• Section: 69; 263

Judgement Text

I.T.A. NO S . 230 & 231 / CTK ./20 1 4 ASSESSMENT YEAR S : 200 4 - 20 0 5 & 2005 - 2006 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI S .V. MEHROTRA (ACCOUNTANT MEMBER) , AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.A. NO S . 230 & 231/ CTK / 20 1 4 ASSESSMENT YEAR S : 200 4 - 2005 & 2005 - 2006 JANAK RESTAURANT,...... .......................... .......... .. .APP ELL ANT PLOT NO. 29, BAPUJI NAGAR, BHUBANESWAR - 751 009 [PAN : A A DFJ 9519 L ] - VS. - C OMMISSIONER OF INCOME TAX , .... ............ . RESPONDENT AAYAKAR BHAWAN, RAJASWA VIHAR, VANI VIHAR, BHUBANESWAR - 751007 APPEARANCES BY: SHRI G. NAIK AND SHRI R. KAR , A .R. , FOR THE ASSESSEE SHRI K. AJAY KUMAR , CIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : OCTOBER 1 4 , 2 01 4 DATE OF PRONOUNCING THE ORDER : OCTOBER 16 , 201 4 O R D E R PER GEORGE MATHAN : TH E S E ARE TWO APPEAL S FILED BY THE ASSESSE E FOR THE ASSESSMENT YEARS 2004 - 05 AND 2005 - 06 AGAINST THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX , BHUBANESWAR UNDER SECTION 263 BOTH DATED 31 . 03 .20 1 4. 2 . SHRI G. NAIK AND SHRI R. KAR , A .R. , REPRES ENTED ON BEHALF OF THE ASSESSEE AND SHRI K. AJAY KUMAR, CIT , D.R., REPRESENTED ON BEHALF OF THE REVENUE . I.T.A. NO S . 230 & 231 / CTK ./20 1 4 ASSESSMENT YEAR S : 200 4 - 20 0 5 & 2005 - 2006 PAGE 2 OF 4 3 . AT THE TIME OF HEARING, I T WAS SUBMITTED BY THE LD. A.R. ON BEHALF OF THE ASSESSEE THAT THE ISSUE IN THESE APPEALS WAS IN RESPECT OF THE BANK DEPOS ITS AGGREGATING TO RS.29,63,058/ - WHICH COULD NOT BE PROPERLY EXPLAINED BY THE ASSESSEE. IT WAS THE SUBMISSION THAT THE ISSUE OF BANK DEPOSITS WAS A SUBJECT MATTER OF APPEAL AND HAD REACHED THE TRIBUNAL. THE TRIBUNAL HAS RESTORED THE ISSUE TO THE FILE OF T HE ASSESSING OFFICER WITH A DIRECTION THAT THE ASSESSING OFFICER WAS TO VERIFY THE BANK ACCOUNTS AGAINST THE LOAN WHICH RE - PAYMENT HAS BEEN ROUTED THROUGH THE BANK ACCOUNTS AS VERIFIED BY HIM AND ON THE BASIS THAT THE EXCESS ASSETS SHOWN AGAINST THE LIABIL ITY IS TO BE ONLY CONSIDERED. IT WAS THE SUBMISSION THAT THE LD. CIT ISSUED A SHOW - CAUSE NOTICE WHEREIN THE LD. CIT HAD MENTIONED THAT WHILE GIVING EFFECT TO THE ORDER OF THE TRIBUNAL, THE ASSESSING OFFICER HAD ONLY CONSIDERED THE DEPOSITS AGGREGATING TO R S. 9,03 , 558/ - A S SUPPRESSED SALES AND 5% OF THE SAID AMOUNT WAS TAKEN BY HIM AS PROFIT FROM SUCH BUSINESS AND IN RESPECT OF THE BALANCE DEPOSIT THE ASSESSING OFFICER HAD TREATED THE SAME AS BUSINESS TURNOVER OF THE ASSESSEE AND HAD TAKEN ONLY RS.3 ,00,000/ - BEING THE PEAK CREDIT IN THE BANK ACCOUNTS AS INCOME OF THE ASSESSEE. IT WAS THE SUBMISSION THAT TO THIS SHOW - CAUSE NOTICE THE ASSESSEE HAD REPLIED STATING THAT THE ORDER OF THE ASSESSING OFFICER CANNOT BE TERMED AS PREJUDICIAL TO THE INTEREST OF THE REVEN UE. IT WAS THE SUBMISSION THAT THE LD. CIT, HOWEVER, HELD THAT AS THE ORDER PASSED BY THE ASSESSING OFFICER WAS NOT IN COMPLIANCE WITH THE DIRECTION ISSUED BY THE TRIBUNAL, THE ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND CONSEQUE NTLY HAD DIRECTED THE ASSESSING OFFICER TO RE - DO THE ASSESSMENT BY STRICTLY FOLLOWING THE DIRECTION OF THE ITAT. IT WAS THE SUBMISSION THAT THE ASSESSING OFFICER HAVING GIVEN EFFECT TO THE ORDER OF THE TRIBUNAL, THERE WAS NO ERROR IN THE ORDER OF THE ASSES SING OFFICER WHICH CALLED FOR ANY REVISION UNDER SECTION 263. 4 . IN REPLY, LD. CIT ( D.R ) VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT UNDER SECTION 263. IT WAS THE SUBMISSION THAT THE ORDER OF THE TRIBUNAL I.T.A. NO S . 230 & 231 / CTK ./20 1 4 ASSESSMENT YEAR S : 200 4 - 20 0 5 & 2005 - 2006 PAGE 3 OF 4 HAS NOT BEEN GIVEN EFFECT TO AND CONSEQUENTLY T HE ORDER PASSED BY THE ASSESSING OFFICER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE, WHICH CALLED FOR REVISION. 5 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERUSAL OF THE ASSESSMENT ORDER WHICH IS A SUBJECT MATTER OF REVISION S HOWS THAT T HE ASSESSEE WAS UNABLE TO GET ALL THE DETAILS FROM THE BANK AND CONSEQUENTLY HAD REQUESTED THAT THE AMOUNT BE TREATED AS BUSINESS TURNOVER OF THE ASSESSEE AND THE INCOME ESTIMATED THEREON. HOWEVER, THE ORDER OF THE TRIBUNAL CLEARLY IS THAT IT IS ONLY THE A SSET IN EXCESS OVER THE LIABILITY IN THE NAME OF THE ASSESSEES BUSINESS WHICH ALON E COULD BE CONSIDERED FOR TAXATION UNDER SECTION 69 OF THE ACT . CONSEQUENTLY WE ARE OF THE VIEW THAT THE REVISION ORDER PASSED BY THE LD. CIT IS LIABLE TO BE UPHELD AND WE D O SO. A PERUSAL OF THE ORDER OF THE LD. CIT UNDER SECTION 263 CLEARLY SHOWS THAT THE DIRECTION GIVEN TO THE ASSESSING OFFICER IS TO RE - DO THE ASSESSMENT BY STRICTLY FOLLOWING THE DIRECTION OF THE ITAT. NO ERROR HAVING BEEN POINTED OUT IN RESPECT OF THE DIR ECTION GIVEN BY THE LD. CIT , W E FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT PASSED UNDER SECTION 263. THOUGH AN APPREHENSION HAS BEEN RAISED BY THE LD. AR THAT IN THE SHOW - CAUSE NOTICE IT HAS BEEN MENTIONED THAT THE TOTAL AMOUNT OF RS.29,63,058/ - WAS LIABLE TO BE CONSIDERED AS THE INCOME FROM UNDISCLOSED SOURCES IN THE HANDS OF THE ASSESSEE. SUCH APPREHENSION DOES NOT STAND TO REASON ESPECIALLY IN VIEW OF THE FACT THAT THE LD. CIT HAS NOT GIVEN SUCH A DIRECTION IN HIS ORDER UNDER SECTION 263 THOUG H MENTIONED IN THE SHOW CAUSE AND HIS ORDER IS VERY SPECIFIC TO GIVE EFFECT TO THE ORDER OF THE TRIBUNAL . EVEN OTHERWISE , IN AN ORDER GIVING EFFECT TO THE ORDER OF THE TRIBUNAL OBVIOUSLY THE ASSESSING OFFICER CANNOT MAKE AN ENHANCEMENT OF THE INCOME WHIC H IS A SUBJECT MATTER OF AN ORDER OF THE TRIBUNAL. IN THESE CIRCUMSTANCES, THE APPREHENSION EXPRESSED BY THE LD. AR IS FOUND TO BE WITHOUT MERITS. CONSEQUENTLY AS HELD EARLIER, WE ARE OF THE VIEW THAT WE FIND NO ERROR IN THE ORDER OF THE LD. CIT PASSED UND ER I.T.A. NO S . 230 & 231 / CTK ./20 1 4 ASSESSMENT YEAR S : 200 4 - 20 0 5 & 2005 - 2006 PAGE 4 OF 4 SECTION 263, WHICH CALLS FOR ANY INTERFERENCE AND CONSEQUENTLY THE SAME STANDS UPHELD FOR BOTH THE ASSESSMENT YEARS. 6 . IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH OCTOBER , 2014. SD/ - SD/ - S .V. MEHROTRA GEORGE MATHAN ( ACCOUNTANT MEMBER) ( JUDICIAL MEMBER) KOLKATA, THE 16 TH D AY OF OCTO BER , 201 4 COPIES TO : (1) THE ASSESSEE (2) THE DEPARTMENT (3) COMMISSIONER OF INCOME - TAX ( APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL CUTTACK B ENC H, CUTTACK LAHA/SR. P.S.