Sri. Jagannath S. Shetty, Mandya V. Addl.C.I.T, Mysore

ITA 236/BANG/2011

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4778 (ITAT-BANGALORE)
• Duration Of Justice: 7 year(s) 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 22-06-2017
• Assessment Year: 2003-2004
• Appeal Filed On: 07-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PADMAMEENAKSHI J
• Assessee Lawyers: SHRI NARENDRA SHARMA
• Keywords: Peak credit
• Section: 142(1); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, B ENGALURU BEFORE S HRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER I TA NO S . 235 TO 23 8 / BANG/2 0 11 (ASSESSMENT YEAR S : 2001 - 02, 2003 - 04 , 2004 - 05 & 2006 - 07 ) SHRI JAGANNATH S. SHETTY, PR. M/S.SRINIDHI GOLD, V.R. ROAD, MANDYA PAN: ABNPS 1154 K VS. APPELLANT ADDL. COMMISSIONER OF INCOME - TAX, RANGE - 2, MYSORE. RESPONDENT APPELLANT BY : SHRI SHRI NARENDRA SHARMA, ADVOCATE. RESPONDENT BY : SMT. PADMAMEENA KSHI, JCIT(DR) DATE OF HEARING : 10/04 /2018 DATE OF PRONOUNCEMENT : 31 /05/2018 O R D E R PER BENCH : THESE ARE APPEAL S FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) , [CIT( A)], MYSORE, DATED 1 5 / 12 /201 0 FOR THE ASSESSMENT YEAR S 2001 - 02, 2003 - 04 & 2004 - 05. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF LOTTERY TICKETS IN THE NAME AND STYLE OF M/S.SA GAR ENTERPRISES. THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2001 - 02 WAS FILED ON 31/10/2001 DECLARING TOTAL INCOME OF RS.3,99,356/ - . SUBSEQUENTLY, BASED ON UNDISCLOSED AND UNACCOUNTED BANK ACCOUNTS FOUND AS A RESULT OF SURVEY OPERATIONS CONDUCTED IN T HE BUSINESS PREMISES OF THE ASSESSEE U/S 133 A OF THE IT ACT, 1961 [ THE ITA NO S . 235 TO 238 /BANG/20 PAGE 2 OF 3 ACT ] , THE A SSESSING OFFICER ISSUED NOTICE U/S 148 ON 26/03/2008. IN RESPONSE TO THE SAME, THE ASSESSEE HAD NOT FILED RETURN OF INCOME. THE AO ISSUED NOTICE U/S 142(1) AND ALSO ISSUED SHOW CAUSE NOTICE AS TO WHY DEPOSITS IN BANK SHOULD NOT BE ADDED TO INCOME. IN THE ABSENCE OF ANY EXPLANATION FROM THE ASSESSEE, THE AO ADDED THE DEPOSITS IN BANK ACCOUNT OF RS.2,83,581/ - AND BROUGHT TO TAX. 3. O N APPEAL BEFORE THE LD.CIT(A), THE LD.C IT(A) REJECTED THE EXPLANATION OFFERED BY THE ASSESSEE IN THE ABSENCE OF CONFIRMATION LETTERS OR DOCUMENTARY EVIDENCE. BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 4. EVEN BEFORE US, THE ASSESSEE HA D CHOSEN NOT TO ADDUCE ANY EVIDENCE BEFORE US. HENCE, WE SUSTAIN THE ORDER OF THE LD.CIT(A). IN THE RESULT, THE APPEAL IN ITA NO.235/BANG/2011 FILED BY THE ASSESSEE IS DISMISSED. 5. FOR PARITY OF REASONS IN ITA NO.235/BANG/2011, THE APPEALS FILED BY THE ASSESSEE IN ITA NO.236 TO 238 /BANG/2011 F OR THE ASSESSMENT YEARS 2003 - 04, 2004 - 05 AND 2006 - 07 RESPECTIVELY ARE DISMISSED. 6. THE ONLY GROUND URGED BY THE ASSESSEE IN ITA NO.238/BANG/2011 IS THAT PEAK CREDIT DETERMINED IN EARLIER YEARS SHOULD BE GIVEN BENEFIT IN THE SUBSEQUENT YEAR. BUT THE ASSE SSEE HAD NOT FURNISHED ANY STATEMENT BEFORE US ESTABLISHING PEAK CREDIT DETERMINED IN EARLIER YEAR AS AVAILABLE FOR SET OFF DURING THIS YEAR . IT IS A MATTER OF FACT TO BE ESTABLISHED BY PLEADING RELEVANCE ON RECORD. SINCE THE ASSE SSEE HAD FAILED TO DISCH ARGE ONUS LYING UPON IT, BENEFIT OF EARLIER PEAK CREDIT CANNOT BE GIVEN AS HELD BY THE HON BLE SUPREME COURT IN THE CASE OF J.K.COTTON MANUFACTURERS LTD. (1984) 146 ITR 552)(SC): IN J.K.COTTON MANUFACTURERS LTD. (1984) 146 ITR 552)(SC) THE COURT WAS C ONCERNED WITH AN ASSESSMENT TO WEALTH - TAX AS ON THE VALUATION DATES, JUNE 30, 1936, AND DECEMBER 31, 1956. THE MATTER RELATED TO THE SECRET PROFITS ADMITTEDLY EARNED BY THE ASSESSEE PRIOR TO SEPTEMBER, 1948. THE QUESTION WAS WHETHER ANY PRESUMPTION COULD B E RAISED THAT THESE SECRET PROFITS WERE RETAINED BY THE ASSESSEE ON THE AFORESAID ITA NO S . 235 TO 238 /BANG/20 PAGE 3 OF 3 VALUATION DATES. IN THAT CONTEXT, THE SUPREME COURT APPROVED THE DECISION OF THE HON BLE KERALA HIGH COURT IN THE CASE OF CWT VS. J.K.JUTE MILLS CO. LTD. (1979) 120 ITR 150 HOLDING THAT NO SUCH PRESUMPTION CAN BE RAISED AFTER THE LAPSE OF A SUFFICIENTLY LONG PERIOD. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2006 - 07 IS ALSO DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MAY , 2018 S D/ - SD/ - ( SUNIL KUMAR YADAV ) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : BENGALURU. D A T E D : 31 / 0 5 /201 8 SRINIVASULU, SPS COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) 4 CIT 5 DR, ITAT, BANGALO RE. 6 GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME - TAX APPELLATE TRIBUNAL BANGALORE