Shri Sultan Bharti, Uttrakhand V. ITO, Kashipur

ITA 247/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58900 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 16-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAMTA KOCHHAR
• Keywords: Peak credit
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G: NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SMT. DIVA SINGH, JUDICIAL MEMBER ITA NOS. 247& 248/DEL/2012 ASSESSMENT YEARS: 2007-08 & 2008-09 SULTAN BHARTI, S/O SRI A. HAFAIZ, MOH- BHOOP SINGH, NEAR SAKKO WALI MASZID, JASPUR, UDHAM SINGH NAGAR, UTTRAKHAND. ARTPB4135H VS. ITO, WARD-2, KASHIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. V. RAJA KUMAR, ADV. RESPONDENT BY : MS. MAMTA KOCHHAR, SR. DR O R D E R PER BENCH THESE APPEALS ARE FILED BY THE ASSESSEE AND ARE DI RECTED AGAINST THE ORDER OF LD. CIT(A) DATED 03.10.2011 FOR THE A. YS. 2007-08 & 2008-09. 2. ITA NO. 247/D/2012 FOR A.Y. 2007-08 : BRIEF FACTS OF THE CASE ARE THAT FROM THE AIR INFOR MATION THE AO FOUND THAT THE ASSESSEE HAD MADE CASH DEPOSITS AMOUNTING TO RS . 23,89,000/- IN HIS SAVING BANK A/C MAINTAINED WITH PNB, JASPUR. T HE ASSESSING OFFICER REQUIRED THE ASSESSEE TO EXPLAIN THE TAXABILITY OF THE CASH DEPOSITS IN HIS SAVING BANK A/C. BEFORE THE AO, DESPITE SEVERAL OP PORTUNITIES PROVIDED TO THE ASSESSEE, AS OBSERVED BY THE AO IN THE ASSESSME NT ORDER, THE ITA NOS. 247 & 248/D/2012 2 ASSESSEE DID NOT APPEAR AND, THEREFORE, THE AO PASS ED THE ORDER U/S 148/144 AND MADE AN ADDITION OF RS. 10,38,300/- BEI NG THE PEAK AMOUNT. HE ALSO MADE AN ADDITION OF RS. 11,644/- BEING INTE REST RECEIVED ON SAVING BANK A/C. LD. CIT(A) DISMISSED THE ASSESSEE S APPEAL AS NONE APPEARED, INTER-ALIA, OBSERVING AS UNDER: - 5. GROUND NO. 4 CHALLENGES THE ADDITION U/S 68 O F THE ACT ON THE GROUND THAT THERE ARE NO BOOKS OF ACCOUNT MAINTAINE D. IT IS SEEN THAT WITH THE INSERTION OF SECTION 2(12A) OF THE AC T THROUGH THE FINANCE ACT, 2001 A WIDE MEANING HAS BEEN GIVEN TO THE EXPRESSION BOOKS OF ACCOUNT. THE APPELLANT HAS N OT COME FORTH AT ANY STAGE TO SERIOUSLY CONTEND THAT HE HAS NO DO CUMENT AS ENVISAGED U/S 2(12A) OF THE ACT TO EVEN CONSIDER BE ING OUTSIDE THE PURVIEW OF SEC. 68 OF THE ACT. THUS, IT HAS TO BE PRESUMED THAT THE APPELLANT HAS SOME DOCUMENT FALLING WITHIN THE INCL USIVE DEFINITION OF BOOKS OF ACCOUNT WITHIN SEC. 2(12A) OF THE ACT . THUS, THE APPLICATION OF SECTION 68 OF THE ACT IS HEREBY SUST AINED. 6. THE FIFTH GROUND CHALLENGES THE ADDITION BY TAKI NG PEAK CREDIT VALUE OF DEPOSITS FOUND OUT BY THE IT DEPARTMENT AS BEING MADE BY THE ASSESSEE. IN THE ABSENCE OF REPRESENTATION AND CO-OPERATION FROM THE ASSESSEE WORKING OUT THE PEAK CREDIT VALUE WAS THE BEST THAT THE LD. AO COULD DO UNDER THE CIRCUMSTANCES. THUS, HIS ACTION IS UPHELD. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE SUBMITTED THAT SINCE BEFORE BOTH THE LOWER REVENUE AUTHORITIES, TH E ASSESSEE COULD NOT APPEAR, THEREFORE, IN THE INTEREST OF JUSTICE, ONE MORE OPPORTUNITY BE PROVIDED TO HIM FOR EXPLAINING HIS CASE. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND HAVE PERUSED THE RECORD OF THE CASE. THE ASSESSEE WAS G RANTED FINAL OPPORTUNITY BY LD. CIT(A) ON 5 TH SEPTEMBER, 2011 BY ADJOURNING THE MATTER TO 26 TH SEPTEMBER, 2011. LD. CIT(A) HAS NOTED IN PARA 2 O F HIS ORDER THAT ON 26 TH SEPTEMBER, 2011 AN APPLICATION HAD BEEN RECEIVED F OR ADJOURNMENT ON THE GROUND OF ILLNESS OF ASSESSEE. HOWEVER, CONSIDERING THE BACKGROUND OF THE CASE, HE PROCEEDED TO DECIDE THE MATTER ON THE ITA NOS. 247 & 248/D/2012 3 BASIS OF FACTS AVAILABLE ON RECORD. IT IS TRUE THA T ASSESSEE HAD NOT COOPERATED IN THE PROCEEDINGS WITH THE DEPARTMENT O N VARIOUS OCCASIONS MENTIONED IN THE ASSESSMENT ORDER, BUT SINCE ON 26 TH SEPTEMBER, 2011 THE ADJOURNMENT WAS SOUGHT ON THE GROUND OF ILLNESS , WE CONSIDER THAT IN ORDER TO IMPART SUBSTANTIAL JUSTICE TO THE ASSESSEE , ONE MORE OPPORTUNITY BE GRANTED TO HIM TO EXPLAIN HIS CASE. WE, THEREFO RE, SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER TO THE FILE OF AO TO DECIDE THE ISSUE DENOVO AFTER AFFORDING OPPORTUNITY TO THE ASSESSEE. KEEP ING IN VIEW THE PAST HISTORY OF THE ASSESSEE, WE DIRECT THE ASSESSE E TO COOPERATE IN THE PROCEEDINGS BY AVAILING THE OPPORTUNITY TO BE PROVI DED BY THE AO. HOWEVER, WE GRANT MAXIMUM SIX MONTHS TIME FOR PASSI NG THE ASSESSMENT ORDER. IF THE ASSESSEE FAILS TO APPEAR WITHIN THIS PERIOD AS PER THE NOTICE TO BE GIVEN BY THE AO, THE AO WOULD BE FREE TO PASS THE ASSESSMENT ORDER ON THE BASIS OF MATERIAL ON RECORD. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES IN TERMS OF AFOREMENTIONED OBSERVATION. 6. ITA NO. 248/D/2012 FOR A.Y. 2008-09 : IN THIS YEAR ALSO THE FACTS ARE IDENTICAL TO A.Y. 2 007-08 WITH THE ONLY DIFFERENCE THAT AS PER AIR INFORMATION THE CASH DEP OSITS WERE TO THE TUNE OF RS. 30,80,000/- IN THE SAVING BANK A/C AND THE A O HAD MADE AN ADDITION OF RS. 11,06,884/- BEING THE PEAK OF THE C ASH CREDITS. HE HAD ALSO MADE AN ADDITION OF RS. 3,801/- IN RESPECT OF INTEREST ON SAVING BANK A/C. THE ASSESSMENT HAD BEEN COMPLETED U/S 148/144 IN VIEW OF OUR OBSERVATIONS FOR A.Y. 2007-08 THE ORDER OF LD. CIT( A) IS SET ASIDE AND THE MATTER IS RESTORED BACK TO THE FILE OF AO FOR DECID ING THE ISSUE DENOVO AS PER OUR DIRECTIONS FOR A.Y. 2007-08. ITA NOS. 247 & 248/D/2012 4 7. IN THE RESULT, THE APPEALS ARE ALLOWED FOR STATI STICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19.3.2012 SD/- SD/- (DIVA SINGH) JUDICIAL MEMBER (S.V. MEHROTRA) ACCOUNTANT MEMBER DATED: 19.3.12 *KAVITA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. TRUE COPY BY ORDER DEPUTY REGISTRAR