Sh. Gagan Aggarwal, Delhi V. ITO, New Delhi

ITA 2425/DEL/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5724 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 20-07-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 24-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R MISHRA
• Assessee Lawyers: S S GUPTA
• Keywords: Peak credit; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: SMC : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT ITA NO . 2425 /DEL/ 20 1 5 ASSESSMENT YEAR: 20 1 0 - 1 1 GAGAN AGGARWAL 2106/2, KHARI BAOLI DELHI PAN: ADPPA8178D VS. ITO WARD 47(1), NEW DELHI ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SH. S.S. GUPTA, CA DEPARTMENT BY : SH. B.R. MISHRA, SR. DR DATE OF HEARING : 25 .0 6 . 201 8 DATE OF PRONOUNCEMENT : 25 . 0 6 . 201 8 ORDER PER R.S. SYAL, VP: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDE R PASSED BY THE LEARNED CIT(A) - 16 , NEW DELHI ON 27.2.2015 IN RELATION TO ASSESSMENT YEAR 2010 - 11 . ITA NO. 2425 /DEL/201 5 2 2. IT IS A RECALLED MATTER INASMUCH AS THE EARLIER EX PARTE ORDER PASSED BY THE TRIBUNAL WAS SUBSEQUENTLY RECALLED ON 23.3.2018 IN MA NO. 362 /DEL/2016 . 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN DECLARING INCOME OF RS.1 .9 7 ,8 00/ - . SUCH RETURN WAS SUBSEQUENTLY REVISED SHOWING INCOME OF RS.2 , 98 , 352/ - . IN S UCH REVISED RETURN, THE ASSESSEE OFFERED A SUM OF RS. 9 9 , 152/ - BEING , INCOME UNDER SECTION 44AF @ 5% OF RETAIL TRADE SALE OF RS. 19 , 83 , 041/ - . IN ADDITION, THE ASSESSEE ALSO OFFERED INTEREST FROM BANK TO THE TUNE OF RS.1 , 400/ - . ON THE BASIS OF SOME INFORMATION REGARDING THE ASSESSEE HAVING DEPOSITED CASH OF RS.19 , 83 , 041/ - IN A SAVING BANK ACCOUNT MAINTAINED TO THE ICICI BANK, THE ASSESSING OFFICER TOOK UP THE ASSESSMENT PROCEEDINGS. THE ASSES SEE S CONTENTION THAT HE MADE RETAIL SALES AMOUNTING TO RS. 19.83 LAC, ON WHICH INCOME UNDER SECTION 44AF @ 5% WAS OFFERED, DID NOT FIND FAVOUR WITH ASSESSING OFFICER. HE MADE THE ADDITION OF RS.19 , 83 , 041/ - BEING , THE AMOUNT DEPOSITED BY THE ASSESSEE IN HIS BANK ACCOUNT APART FROM INTEREST FROM BANK TO THE TUNE OF RS. 1 , 400/ - . THESE ADDITIONS WERE MADE WITH REFERENCE TO INCOME ORIGINALLY DECLARED IN THE RETURN FOR A SUM OF RS.1 , 97 , 800/ - . THE LEARNED CIT(A) APPROVED APPLICATION ITA NO. 2425 /DEL/201 5 3 OF 20% PROFIT RATE O N SALES OF RS.19 ,19,631 / - . IN ADDITION, HE ADDED A SUM OF RS.5 , 43 , 946/ - BEING THE PEAK CREDIT ON 3.11.2009 .THE ASSESSEE IS AGGRIEVED AGAINST THE ADDITION S SO SUSTAINED IN THE FIRST APPEAL. 4 . I HAVE HEARD BOTH THE SIDES AND PERUSED THE RELEVANT MATERIAL ON RECORD. AS AGAINST THE RELIEF ALLOWED BY THE LEARNED CIT(A) , THE LEARNED DR HAS NOT BROUGHT ANY MATERIAL ON RECORD TO DEMONSTRATE THAT THE REVENUE HAS PREFERRED APPEAL. AS SUCH THE VIEW POINT OF THE LEARNED CIT(A) , TO THE EXTENT IT PREJUDICES THE INTEREST OF THE REVENUE, IS DEEMED TO HAVE BEEN ACCEPTED BY THE D EPARTMENT. ONCE THE DECISION OF THE LEARNED CIT(A) IN TREATING THE RS. 19.19 LAC AS SALES IS ACCEPTED, THEN THE APPLICATION OF SECTION 44AF AS RESORTED BY THE ASSESSEE, CANNOT BE DONE AWAY WITH. THE LEARNED CIT(A) HAS GIVEN NO REASONS FOR APPLYING PROFIT RATE OF 20% IN GROSS RECEIPTS. IF THE ASSESSEE S CONTENTION OF RS. 19.83 LAC BEING , CASH DEPOSITED IN THE BANK REPRESENTING CASH SALES MADE FROM RETAIL TRADE MADE IS ACCEPTED, THE NATURAL COROLLARY WHICH HAS TO FOLLOW IS THAT THE PROVISION OF SECTION 44AF, REQUIRING APPLICATION OF 5% NET PROFIT RATE , ARE TO BE ACCEPTE D. I, THEREFORE, DELETE THE ADDITION SUSTAINED BY THE LEARNED CIT(A) IN APPLYING 20% PROFIT RATE. ITA NO. 2425 /DEL/201 5 4 5 . THE LEARNED CIT(A) HAS ALSO ADDED PEAK CREDIT OF RS.5 , 43 , 946/ - ON 3.11.2009 . WHEN THE ASSESSEE S CONTENTION IS ACCEPTED THAT HE MADE CASH SALES OF RS. 19. 83 LACS WHICH AMOUNT WAS DEPOSITED IN THE BANK ACCOUNT FROM TIME TO TIME , THERE CAN BE NO QUESTION OF ANY UNEXPLAINED CASH DEPOSITED IN THE BANK REQUIRING ADDITION OF PEAK CREDIT. I, THEREFORE, ORDER TO DELETE THE PEAK ADDITION MADE BY THE LEARNED CIT(A). THE NET EFFECT OF ABOVE ADJUDICATION IS THAT THE INCOME DECLARED IN THE RE VISED RETURN TO THE TUNE OF RS. 2 , 98 , 352/ - GETS ACCEPTED. 6 . IN THE RESULT, THE APPEAL IS ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 2 5 T H JUNE , 2018. S D / - [ R.S. SYAL ] VICE PRESIDENT DATED, 2 5 T H JUNE , 201 8 . SH ITA NO. 2425 /DEL/201 5 5 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR, ITAT AR, ITAT, NEW DELHI. DATE INITIAL 1. DATE OF DICTATION 25 .6.2018 PS 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25 .6.2018 PS 3. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER JM/AM 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S. / P.S. JM/AM 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT PS/PS 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S. / P.S. PS 7. DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 2 5 . 6 . 2 0 1 8 PS 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 9. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER 11. DATE OF DISPATCH OF THE ORDER *