MAKSOOD K KHAN, MUMBAI V. ITO 24(2)(4), MUMBAI

ITA 2451/MUM/2014

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7334 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 11-04-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V VIDHYADHAR
• Keywords: Income from undisclosed sources; Peak credit
• Section: 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'B' BENCH, MUMBAI BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO. 2451/MUM/2014 (ASSESSMENT YEAR: 2009-10) SHRI MAKSOOD K KHAN MAKKAER & CO., SHOP NO. 9 SHAMJI MORARJI BLDG. CHAMPSI BHIMJI ROAD MAZAGON, MUMBAI 400010 VS. INCOME TAX OFFICER - 24(2)(4) C-13, 6TH FLOOR, BANDRA KURLA COMPLEX, BANDRA (E) MUMBAI 400051 PAN AIUPK4223H APPELLANT RESPONDENT APPELLANT BY: SHRI K. GOPAL RESPONDENT BY: SHRI V. VIDHYADHAR DATE OF HEARING: 02.05.2018 DATE OF PRONOUNCEMENT: 11.05.2018 O R D E R PER R.C. SHARMA, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)- 34, MUMBAI DATED 20.02.2014 FOR A.Y. 2009-10, IN TH E MATTER OF ORDER PASSED UNDER SECTION 143(3) OF INCOME TAX ACT (HERE INAFTER THE ACT). 2. THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO ADDIT ION OF ` 62,48,595/- IN RESPECT OF CASH DEPOSITED IN THE BAN K ACCOUNT. 3. DURING THE COURSE OF SCRUTINY THE AO FOUND THAT AS PER THE AIR DATA AVAILABLE WITH THE DEPARTMENT, IT WAS NOTICED THAT THE ASSESSEE WAS MAINTAINING BANK ACCOUNTS WITH ICICI BANK. A NOTICE UNDER SECTION 133(6) OF THE ACT WAS THEREFORE ISSUED TO THE ICICI BANK, MARINE LINES AND FORT BRANCHES TO FURNISH THE COPIES OF THE BANK STATEMEN T REPORTED BY THEM IN THE AIR DATA. ON RECEIPT OF THE SAME, IT WAS NOTICE D THAT THE ASSESSEE WAS MAINTAINING ACCOUNT NO. 623501529785 WITH ICICI BAN K, MUMBAI. ON FURTHER PERUSAL OF BOTH THE ACCOUNTS IT WAS NOTICED THAT THE ASSESSEE HAS MADE SUBSTANTIAL DEPOSITS IN BOTH THE ACCOUNTS MAIN TAINED BY HIM BUT ITA NO. 2451/MUM/2014 SHRI MAKSOOD K KHAN 2 NEITHER OF THESE ACCOUNTS WERE DISCLOSED IN THE RET URN OF INCOME FILED WITH THE DEPARTMENT. IT IS NOTICED FROM THE BANK ACCOUNT S COLLECTED BY ISSUING NOTICE UNDER SECTION 133(6) OF THE ACT THAT THE ASS ESSEES BANK ACCOUNT SHOWS A TOTAL CREDIT ENTRIES OF ` 34,57,801/- IN ONE SAVING BANK ACCOUNT (ACCOUNT NO. 623501529785 WITH ICICI BANK, DN ROAD, FORT BRANCH) AND CREDITS OF ` 21,61,421/- IN ANOTHER SAVING ACCOUNT (ACCOUNT NO. 032401504268 WITH ICICI BANK, MARINE LINES BANK. AF TER CONSIDERING THE STATEMENT OF ACCOUNTS WITH THESE BANKS, THE AO ADDE D THE ENTIRE AMOUNT OF CASH DEPOSITED AS UNACCOUNTED INCOME OF THE ASSE SSEE. BY THE IMPUGNED ORDER THE CIT(A) CONFIRMED THE ACTION OF T HE AO. 4. IT WAS ARGUED BY THE LEARNED A.R. THAT THE ASSESSEE HAS FILED DETAILS OF BANK ACCOUNT WITH THE LOWER AUTHORITIES, WHICH I NDICATED WITHDRAWAL OF CASH IMMEDIATELY PRIOR TO THE DEPOSIT OF CASH, THER EFORE, ONLY THE PEAK CREDIT IS TO BE ADDED IN THE INCOME OF THE ASSESSEE IN PLACE OF ENTIRE AMOUNT OF DEPOSIT. OUR ATTENTION WAS ALSO INVITED T O THE DATE-WISE ENTRY IN THE BANK STATEMENT INDICATING WITHDRAWAL OF CASH AN D CORRESPONDING DEPOSIT OF CASH IN THE BANK ACCOUNT. 5. ON THE OTHER HAND, THE LEARNED D.R. RELIED ON THE O RDERS OF THE AUTHORITIES BELOW AND CONTENDED THAT THE ASSESSEE C OULD NOT EXPLAIN THE DEPOSIT IN THE BANK ACCOUNT, THEREFORE THE ENTIRE A MOUNT SO DEPOSITED HAS BEEN CORRECTLY ADDED BY THE AO IN ASSESSEES INCOME . 6. RIVAL CONTENTIONS HAVE HEARD AND RECORD PERUSED AN D CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS BANK ACCOUNTS IN RESPECT OF ICICI SAVING BANK ACCOUNT. WE FIND THAT BOTH THESE BANK ACCOUNTS WERE NOT DISCLOSED TO THE DEPARTMENT BUT W HEN ADDITION HAS BEEN MADE BY THE AO IN RESPECT OF DEPOSITS IN THE B ANK ACCOUNT, CREDIT FOR WITHDRAWAL OF CASH FROM SAME BANK IS TO REQUIRED TO BE GIVEN. ACCORDINGLY, WE DIRECT THE AO TO DECIDE ISSUE AFRESH AFTER GIVIN G DUE CREDIT FOR WITHDRAWALS MADE FROM VERY BANK ACCOUNT. THE OPENIN G BALANCE IN THE BANK ACCOUNT IS TO BE TREATED AS UNACCOUNTED INCOME AND UNEXPLAINED. AT THE VERY SAME TIME WE FIND THAT THE AMOUNT HAS BEEN UTILISED BY THE ITA NO. 2451/MUM/2014 SHRI MAKSOOD K KHAN 3 ASSESSEE FOR PURCHASE OF GOODS WHICH WERE SOLD IN T HE OPEN MARKET. WE, THEREFORE, DIRECT THE AO TO MAKE ADDITION OF 10% OF SUCH DEPOSIT AS PROFIT EARNED ON THE TRANSACTION ENTERED INTO BY THE ASSES SEE IN THE COURSE OF ITS BUSINESS. WE DIRECT ACCORDINGLY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED IN PART IN TERMS INDICATED HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH MAY, 2018. SD/ - SD/ - (RAVISH SOOD) (R.C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 11 TH MAY, 2018 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -34, MUMBAI 4. THE CIT - 24, MUMBAI 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.