The ACIT-CC-1, Baroda V. Shri Ramesh D. Patel, Ahmedabad

ITA 2681/AHD/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1920 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2002-2003
• Appeal Filed On: 29-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHELLEY JINDAL
• Keywords: Peak credit

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER DATE OF HEARING: 7.12.2009 DRAFTED ON: 7.12.2 009 ITA NO.2681/AHD/2009, 2682/AHD/2009, 2683/AHD/2009, 2684/AHD/2009, 2685/AHD/2009 ASSESSMENT YEAR : 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1, 6 TH FLOOR, AAYKAR BHAVAN, RACE COURSE CIRCLE, BARODA. VS. SHRI RAMESH D. PATEL SARDARGUNJ, ANAND. PAN/GIR NO. : ADUPP 4122 B (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI SHELLEY JINDAL CIT D.R. RESPONDENT BY: SHRI ASEEM THAKKAR O R D E R PER BENCH:- THESE ARE THE APPEALS FILED BY THE REVENUE AGAINST SEPARATE ORDERS OF THE LD.CIT(APPEALS)-IV, AHMEDABAD DATED 18 TH MARCH 2009 IN APPEAL NOS.CIT(A)IV/56.B/ CC-1/ 08-09, CIT(A)IV/ 57.B/ CC- 1/ 08-09, CIT(A)IV/ 58.B/ CC-1/ 08-09, CIT(A)IV/59.B/CC-1/08- 09, CIT(A)IV/60.B/CC-1/08-09. 2. THE SOLE GROUND OF APPEAL TAKEN BY THE REVENUE I N ALL THE ABOVE APPEALS IS THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN LAW AND FACTS OF THE CASE IN DIRECTING THE LEARNED ASSESSING OFFICER TO GIVE EFFECT TO THE PEAK CREDIT AFTER VER IFICATION FROM RECORDS EVEN THOUGH ADDITION OF RS.12,65,707/- IN ASSESSMENT YEA R 2002-03, RS. ITA NO .2681 TO 2685/AHD/2009 SHRI RAMESH D. PATEL ASST.YEAR -2002-03 TO 2006-07 - 2 - 25,67,703/- IN ASSESSMENT YEAR 2003-04, RS. 28,95,3 16/- IN ASSESSMENT YEAR 2004-05, RS. 15,13,560/- IN ASSESSMENT YEAR 20 05-06 AND RS.13,08,799/- IN ASSESSMENT YEAR 2006-07 IS MADE O N PEAK CREDIT BASIS ONLY. 3. THE CONTENTION OF THE ASSESSEE BEFORE THE LEARNE D COMMISSIONER OF INCOME TAX(APPEALS) WAS THAT THE LEARNED ASSESSING OFFICER MADE ADDITION OF RS.12,65,707/- IN ASSESSMENT YEAR 2002- 03, RS. 25,67,703/- IN ASSESSMENT YEAR 2003-04, RS. 28,95,316/- IN ASSESSM ENT YEAR 2004-05, RS. 15,13,560/- IN ASSESSMENT YEAR 2005-06 AND RS.1 3,08,799/- IN ASSESSMENT YEAR 2006-07 AS UNACCOUNTED CASH DEPOSIT S WITHOUT ALLOWING SET OFF OF THE ADDITION MADE IN ASSESSMENT YEAR 200 1-02 AS UNDISCLOSED INCOME ALTHOUGH THE LEARNED ASSESSING OFFICER HAS M ENTIONED IN BODY OF THE ASSESSMENT ORDER THAT WORKING OF PEAK CASH CRED IT IS GIVEN BUT THE SAME HAS NOT BEEN GIVEN EFFECT IN THE INCOME WORKED OUT BY HIM. THE LEARNED ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE A DDITION OF RS.12,65,707/- IN ASSESSMENT YEAR 2002-03, RS. 25,6 7,703/- IN ASSESSMENT YEAR 2003-04, RS. 28,95,316/- IN ASSESSM ENT YEAR 2004-05, RS. 15,13,560/- IN ASSESSMENT YEAR 2005-06 AND RS.1 3,08,799/- IN ASSESSMENT YEAR 2006-07 ON ACCOUNT OF PEAK DEPOSITS IN DISREGARD OF THE FACT THAT IN THE ASSESSMENT YEAR 2001-02, LEARNED A SSESSING OFFICER HAS ALREADY MADE ADDITION ON ACCOUNT OF CASH DEPOSITS O F RS.71,94,689/-. 4. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE HELD T HAT ON PERUSAL OF ASSESSMENT ORDER IT HAS BEEN NOTICED THAT THE LEARN ED ASSESSING OFFICER HAS HIMSELF ACCEPTED THE THEORY OF PEAK CREDIT IN T HE PRESENT CASE. HOWEVER, THE LEARNED COUNSEL HAS CONTENDED THAT ITS EFFECT WAS NOT GIVEN WHILE CALCULATING THE UNDISCLOSED INCOME. THEREFORE THE LEARNED ITA NO .2681 TO 2685/AHD/2009 SHRI RAMESH D. PATEL ASST.YEAR -2002-03 TO 2006-07 - 3 - COMMISSIONER OF INCOME TAX(APPEALS) DIRECTED THE LE ARNED ASSESSING OFFICER TO GIVE EFFECT TO THE PEAK CREDIT AFTER VER IFICATION FROM RECORDS. 5. NOTICE OF HEARING WAS SENT TO THE RESPONDENT THR OUGH REGD. POST WITH A.D. ON 29.09.2009 WHICH WAS RECEIVED ON 21.10 .2009 AS EVIDENCED BY THE ACKNOWLEDGEMENT CARD OF THE POST OFFICE PLAC ED ON RECORD. NONE APPEARED FOR THE ASSESSEE WHEN THE CASE WAS CALLED FOR HEARING AND NEITHER ANY ADJOURNMENT APPLICATION WAS FILED. THE BENCH WA S OF THE VIEW THAT THESE APPEALS CAN BE DISPOSED OF IN THE ABSENCE OF THE RESPONDENTS AND THEREFORE, THEY WERE HEARD EX-PARTE QUA THE RESPOND ENT AND DISPOSED OFF AFTER TAKING INTO CONSIDERATION THE SUBMISSIONS MAD E BY THE LEARNED DEPARTMENTAL REPRESENTATIVE AND MATERIALS AVAILABLE ON RECORD. 6. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD. IN THESE APPEALS, IT IS OBSERVED THAT THE G RIEVANCE OF THE REVENUE IS THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS ) HAS DIRECTED THE LEARNED ASSESSING OFFICER TO GIVE EFFECT TO THE PEA K CREDIT AFTER VERIFICATION FROM RECORDS EVEN WHEN THE LEARNED ASS ESSING OFFICER HAS MADE THE ADDITION ON PEAK CREDIT BASIS ONLY. WE FI ND FROM THE ASSESSMENT ORDER THAT LEARNED ASSESSING OFFICER HAS STATED IN HIS ORDER THAT THE PEAK IN EACH OF THE ASSESSMENT YEARS IS RS.12,65,707/- IN A SSESSMENT YEAR 2002- 03, RS. 25,67,703/- IN ASSESSMENT YEAR 2003-04, RS. 28,95,316/- IN ASSESSMENT YEAR 2004-05, RS. 15,13,560/- IN ASSESSM ENT YEAR 2005-06 AND RS.13,08,799/- IN ASSESSMENT YEAR 2006-07. HE HAS NOT GIVEN ANY WORKING OF THE PEAK FOUND OUT BY HIM. IN THE CIRCUM STANCES, THE CONTENTION OF THE REVENUE HAS NOT BEEN ESTABLISHED BEFORE US A ND THEREFORE IN OUR CONSIDERED OPINION THERE IS NO ERROR IN THE ORDER O F THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IN DIRECTING TH E LEARNED ASSESSING ITA NO .2681 TO 2685/AHD/2009 SHRI RAMESH D. PATEL ASST.YEAR -2002-03 TO 2006-07 - 4 - OFFICER THE VERIFY FROM THE RECORD AND THEREAFTER M AKE ADDITION OF ONLY THE PEAK CREDIT AMOUNT. HENCE, WE FIND NO MERITS IN THE APPEALS OF THE REVENUE AND THE SAME ARE THEREFORE DISMISSED. 7. IN THE RESULT, ALL THE APPEALS FILED BY THE REVE NUE ARE DISMISSED. ORDER PRONOUNCED AT THE CLOSE OF THE HEARING IN THE PRESENCE OF THE PARTIES IN THE COURT ON 07/12/2009. SD/- SD/- ( MAHAVIR SINGH) ( N.S. SAINI ) JUDICIAL MEMBER AC COUNTANT MEMBER AHMEDABAD; DATED 07/12 /2009 PREPARED AND COMPARED BY : PARAS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-IV, AHMEDABAD. 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD