Manohar Sitaram Shinde, Sangli V. Income-tax Officer, Ward - 1(4), Sangli

ITA 237/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1721 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-01-2019
• Assessment Year: 2005-2006
• Appeal Filed On: 25-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Assessee Lawyers: B C MALAKAR
• Keywords: Rectification of order; Peak credit; Set aside

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, P UNE BEFORE SHRI R.S.SYAL, VP AND SHRI PARTHA SARATHI CHAUDHURY, JM / ITA NO. 237/PUN/2018 / ASSESSMENT YEAR : 2005-06 MR. MANOHAR SITARAM SHINDE, AT POST BELGAVADE, TAL. TASGAON, DIST.- SANGLI, MAHARASHTRA. PAN : BODPS1327G ....... / APPELLANT ! / V/S. THE INCOME TAX OFFICER, WARD 1(4), SANGLI. / RESPONDENT ASSESSEE BY : SHRI B.C. MALAKAR REVENUE BY : SHRI M.K. VERMA / DATE OF HEARING : 18.03.2019 / DATE OF PRONOUNCEMENT : 18.03.2019 ' / ORDER PER PARTHA SARATHI CHAUDHURY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM TH E ORDER OF LD. CIT(APPEALS)-1, KOLHAPUR DATED 08.11.2017 FOR THE ASSESSME NT YEAR 2005-06 AS PER GROUNDS OF APPEAL ON RECORD. 2. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE SU BMITTED THAT THOUGH THE ASSESSEE HAS TAKEN MULTIPLE GROUNDS OF APPEA L BEFORE THE TRIBUNAL, HOWEVER, THE CRUX OF THE GRIEVANCE IS THAT THE PEAK CREDIT WAS NOT 2 ITA NO.237/PUN/2018 A.Y.2005-06 CALCULATED PROPERLY BY THE REVENUE AUTHORITIES AND THER EFORE, HE PRAYED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE ASS ESSING OFFICER FOR PROPER CALCULATION OF PEAK CREDIT. 3. THE RELEVANT FACTS IN RESPECT OF THE SUBMISSIONS MADE BY THE LD. AR BEFORE US ARE THAT THE ASSESSEE BEING INDIVIDUAL DERIVED INCOME FROM COMMISSION ON ACTIVITY AS SUBAGENT OF SHRI R.R. GORLE FOR GR APES AND ALSO FROM AGRICULTURAL ACTIVITY. ON THE BASIS OF AIR INFORMATION IN POSSESSION, THE ASSESSING OFFICER NOTICED THAT THERE WAS CASH DEPOSITS TO THE TUNE OF RS.34,82,783/- IN THE BANK ACCOUNT OF THE ASSESSEE DURIN G THE YEAR UNDER CONSIDERATION. THEREFORE, THE ASSESSING OFFICER ISSUED NOTICE U/S.142(1) OF THE ACT ON 24.08.2007 AND IN RESPONSE TO THE NOTICE, THE ASS ESSEE FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2005-06 DECLARING TOTAL INCOME OF RS.43,900/- ALONG WITH AGRICULTURAL INCOME OF RS. NIL. AFTER HEARING THE AS SESSEE AND CONSIDERING HIS SUBMISSIONS, THE ASSESSING OFFICER ASSESSED IN COME OF THE ASSESSEE AT RS.13,87,783/- VIDE ORDER DATED 31.12.2007 ON THE BASIS OF PEAK CREDIT. ACCORDING TO THE ASSESSEE, THERE WAS AN ERROR IN ARRIVING AT THE PEAK CREDIT. HE APPROACHED THE ASSESSING OFFICER FOR RECTIFICATION . THE ASSESSING OFFICER WARD 1(4), SANGLI VIDE HIS ORDER U/S.154 DATED 27.06.2 008 DISPOSED OFF ASSESSEES REQUEST FOR RECTIFICATION WITH THE REMARK TH AT IT IS SEEN THAT DISALLOWANCE OF RS.13,87,783/- ON ACCOUNT OF UNEXPLAINED PEAK DEPOSITS IN BANK ACCOUNT HAD BEEN MADE AFTER VERIFYING FACTS SI NCE THE ASSESSEE FAILED TO EXPLAIN THE SOURCES OF DEPOSITS MADE IN THE BANK AC COUNT. THE FACTS ARE DISCUSSED AT LENGTH IN THE BODY OF ASSESSMENT ORDER U/S.143(3) OF THE I.T.ACT DATED 13.12.2007. IT IS ALSO SEEN THAT THE ASSESSEE HAS ALREADY PREFERRED AN APPEAL AGAINST THE SAID ORDER BEFORE THE CIT(A), KOLHAP UR. HENCE, IT IS NOT MISTAKE APPARENT FROM THE RECORDS. UNDER THESE CIRCU MSTANCES NO RECTIFICATION 3 ITA NO.237/PUN/2018 A.Y.2005-06 IS POSSIBLE IN THE ISSUE RAISED IN THE APPLICATION. T HEREFORE, THE ASSESSEES APPLICATION FOR RECTIFICATION OF MISTAKE IS HEREBY REJE CTED AND FILED ACCORDINGLY. 4. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE AS SESSEE PREFERRED APPEAL BEFORE THE LD. CIT(APPEALS). THE LD. CIT(APPEALS) AFTER CONSIDERING THE FACTS, SUBMISSIONS OF THE ASSESSEE AND THE ASSESSMENT O RDER MADE CERTAIN CONCESSIONS ON THE PEAK CREDIT AS CALCULATED BY THE ASS ESSING OFFICER AND PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 5. THAT IN RESPONSE TO THE OPENING SUBMISSIONS MADE BY THE LD. AR OF THE ASSESSEE AS HEREINABOVE MENTIONED, THE LD. DR PER CONTR A, PLACED STRONG RELIANCE ON THE ORDER OF SUB-ORDINATE AUTHORITIES, HOWEVER , AGREEING ON THE PROPOSITION OF RESTORATION OF THE MATTER TO THE FILE OF THE ASSESSING OFFICE R. 6. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE R IVAL CONTENTIONS. THE ASSESSING OFFICER HAS CALCULATED PEAK CREDIT IN THE CASE OF ASSESSEE AND THEREAFTER, THE LD. CIT(APPEALS) HAS MADE SOME CONCESSIONS IN THE CALC ULATION OF THE PEAK CREDIT AND HAVE GIVEN PART RELIEF TO THE ASSE SSEE. THAT BEFORE US, SUBMISSIONS OF THE LD. AR IS THAT THE CALCULATION OF THE PEA K CREDIT BY THE REVENUE AUTHORITIES WAS NOT PROPERLY CARRIED OUT AND IT NEEDS RE-VERIFICATION. IT IS THE PRAYER OF THE LD. AR FOR RESTORING THE MATTER BACK TO THE FILE OF ASSESSING OFFICER FOR PROPER CALCULATION OF THE PEAK CREDIT. T HE LD. DR CONCEDED TO THE REQUEST MADE BY THE LD. AR. IN THE INTEREST OF JUSTICE, WE ARE OF THE CONSIDERED VIEW THAT THE ORDER OF THE LD. CIT(APPEALS) SHOULD BE SET ASIDE AND THE MATTER M AY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR PROPER CALCULATION OF PEAK CREDIT. WE ORDER ACCORDINGLY. NEEDLESS TO SAY, THE ASSESSING OFFICER S HALL GRANT REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 4 ITA NO.237/PUN/2018 A.Y.2005-06 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURP OSES. ORDER PRONOUNCED ON 18 TH DAY OF MARCH, 2019. SD/- SD/- R.S.SYAL PA RTHA SARATHI CHAUDHURY VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 18 TH MARCH, 2019. SB '#$%&'(' % / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-1, KOLHAPUR. 4. THE PR. CIT-1, KOLHAPUR. 5. '#$ %%&' , ( &' , - )*+ , / DR, ITAT, SMC BENCH, PUNE. 6. $,- ./ / GUARD FILE. // TRUE COPY // (0 / BY ORDER, %1 &+ / PRIVATE SECRETARY ( &' , / ITAT, PUNE. 5 ITA NO.237/PUN/2018 A.Y.2005-06 DATE 1 DRAFT DICTATED ON 18 .03 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 18 .03 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER