Appeal details
Counselvise Citation
[2016] 133 COUNSELVISE.COM (IT) 5078 (ITAT-KOLKATA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 16 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
29-02-2016
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Assessment Year
2007-2008
Appeal Filed On
12-02-2013
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 299 / KOL / 2013 ASSESSMENT YEAR :2007-08 DIPAK PALIT FLAT NO, 4B, 2 M.L. NEHRU ROAD, KOLKATA-700 029 [ PAN NO.ABMPP 2518 B ] V/S . INCOME TAX OFFICER,WARD-15(1) 169, A.J.C. BOSE ROAD, BAMBOO VILLA KOLKATA 700 014 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI M.DUTTA, FCA & SHRI S.K. ROY, ADVOCATE /BY RESPONDENT NONE /DATE OF HEARING 27-01-2016 /DATE OF PRONOUNCEMENT 29-02-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS)-XIV, KOLKATA IN APPEAL NO.696/ CIT(A)-XIV/11-12 DATED 23.08.2011. ASSESSMENT WAS FRAMED BY ITO WARD -45(2), KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT) VIDE HIS ORDER DATED 22.12.2009 FOR ASSESSMENT YEAR 2007 -08. 2. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF REVENUE NOR FILED ANY ADJOURNMENT APPLICATION. HOWEVER WE DECIDED TO HEAR THIS APPEAL IN PRESENCE OF BOTH SHRI M.DUTTA AND SHRI S.K. ROY, LD . AUTHORIZED ITA NO.299/KOL/2013 A.Y. 2007-08 DIPAK PALIT V. ITO WD-15(1) KOL. PAGE 2 REPRESENTATIVES ON BEHALF OF ASSESSEE. WE ALSO FIND THAT THIS IS AN OLD APPEAL AND HAS BEEN FIXED FOR HEARING AS MANY AS EIGHT TIM ES (INCLUDING TODAYS HEARING). HENCE WE PROCEED TO HEARING THIS APPEAL I N PRESENCE OF LD. AR. 3. GROUNDS RAISED IN THIS APPEAL BY ASSESSEE ARE CO MMON, WHICH ARE REPRODUCED BELOW:- 1. THAT THE LD. CIT(A) COMMITTED AN ERROR IN JUDGM ENT IN NOT PROPERLY APPRECIATING AND UNDERSTANDING THE CASH FLOW STATEM ENT THEREBY RAISING A FRIVOLOUS ISSUE LIKE NEXUS BETWEEN DEPOSIT AND WI THDRAWALS AND HENCE CAME TO A WRONG AND FACTUALLY INCORRECT CONCLUSION THAT RS.27,15,500/- REPRESENT INCOME OF THE APPELLANT FOR THIS YEAR WHI CH IS UNJUSTIFIED ESPECIALLY WHEN THE ASSESSEE WAS A SALARIED EMPLOYE E AND HAD ALL- ALONG ACTED UPON THE ADVICE OF DIFFERENT TAX CONSUL TANTS ONLY AND SUFFERED. 2. THAT THERE IS NO DISCUSSION IN THE ASSESSMENT O RDER OR IN THE PL ORDER WHETHER THE ADDITION OF RS.27,15,000/- REPRESENT UN ACCOUNTED OR UNEXPLAINED MONEY AND THE CORRESPONDING SECTION UND ER WHICH THE ADDITION WAS MADE. 3. THAT THE SURRENDERED INCOME WAS NOT ACCEPTED FOR MAKING SMOOTH PASSAGE FOR INVOKING PENAL PROVISION U/S. 271(1)(C) WITHOUT PROPER APPLICATION OF MIND AND WITHOUT EXPLAINING WHY THE REVISED CALCULATION SHEET WAS NOT ACCEPTED. 4. FACTS OF THE CASE ARE THAT ASSESSEE IS A RETIRED GENERAL MANAGER OF ALLAHABAD BANK. DURING THE YEAR UNDER CONSIDERATION , INCOME OF ASSESSEE WAS SHOWN UNDER THE HEADS OF SALARY, HOUSE PROPERTY AND OTHER SOURCE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ASSESSI NG OFFICER, ON THE BASIS OF AIRS INFORMATION, FOUND THAT ASSESSEE DEPOSITED A SUM OF 27.15 LACS IN AXIS BANK ON VARIOUS DATES BEING ACCOUNT NO.0110101 00292337 GOLPARK BRANCH, KOLKATA-19. ON QUESTION BY AO TO ASSESSEE A BOUT THE SOURCE OF DEPOSITED CASH, THE ASSESSEE REPLIED BUT SUMMARILY KEPT ON CHANGING ITS STAND SEVERAL TIMES. THE REPLIES OF THE ASSESSEE CA N BE SUMMARISED AS UNDER:- ITA NO.299/KOL/2013 A.Y. 2007-08 DIPAK PALIT V. ITO WD-15(1) KOL. PAGE 3 REPLY 1 ON DATED 03.11.2008 1) THAT THE SUM OF RS. 27.15 LACS WAS RECEIVED FROM HIS DAUGHTER, MISS. MEGHNA PALIT, WHO IS WORKING IN INFOSYS TECHNOLOGY LTD., CURRENTLY POSTED AT PUNE. THEREAFTER ASSESSEE HAS CHANGED HIS COUNSEL AND SO HIS REPLY. REPLY 2 ON DATED 14.07.2009 2) THAT HE HAS RECEIVED LOAN FROM 92 PERSONS IN CAS H BUT FAILED TO SUBSTANTIATE ITS CLAIM IN TERMS OF U/S 133(6) OF TH E ACT. THEREAFTER ASSESSEE AGAIN CHANGED HIS STATEMENT AND OFFERED ADDITIONAL INCOME OF 16.60 LACS. THE ASSESSEE EXPLAINED THE DIFFERENCE OF RS. 10.55 LACS (RS. 27.15 LACS - 16.6 0 LACS) AS THE EFFECT OF CONTRA ENTRIES I.E. MONEY DEPOSITED AND WITHDRAWN. HOWEVER, AO DISREGARDED THE CLAIM OF ASSESSEE AND M ADE ADDITION OF 27.15 LACS. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A). BEFORE LD. CIT(A) ASSESSEE OFFERED ADDITIONAL INCOME OF 19.65 LAKH AND REQUESTED TO APPLY THE PEAK CREDIT THEORY BUT LD. CIT(A) REJECTE D THE PLEA BY OBSERVING AS UNDER:- 5. I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDE R AND THE SUBMISSION FILED BY THE APPELLANT. I FIND THAT RIGH T FROM THE BEGINNING THE APPELLANT HAS HIDDEN FACTS FROM THE ASSESSING OFFIC ER. HE HAD MADE UP A STORY BY STATING THAT THE CASH WAS RECEIVED FROM HIS DAUGHTER AND AGAIN HE CHANGED HIS STAND SITTING THAT THE AMOUNTS WERE RECEIVED FROM 92 PERSONS. HE COULD NOT SUBSTANTIATE THIS STAND BE FORE THE AO. THE APPELLANT HAS CHANGED HIS STAND THRICE DESPITE THE FACT THAT THE APPELLANT HAS BEEN A SENIOR OFFICER BEING GENERAL M ANAGER OF A NATIONALIZED BANK. WHEN THE SUSTAINED INQUIRY WAS M ADE BY THE AO, THE APPELLANT AGAIN CHANGED HIS STAND AND STATED THAT H E HAD COMMITTED MISTAKE AND OFFERED A SUM OF RS.16,62,000/- AS HIS INCOME FROM OTHER SOURCE. DURING THE APPELLATE PROCEEDINGS THIS AMOU NT WAS ENHANCED BY THE APPELLANT TO RS.19,65,000/- FROM RS.16,62,00 0/- AS REGARDS THE CONTENTION OF THE LD. A/R THAT PEAK CREDIT METHOD S HOULD BE ADOPTED, I AM OF THE CONSIDERED VIEW THAT THE APPELLANT HAS FA ILED TO ESTABLISH NEXUS BETWEEN THE AMOUNT WITHDRAWN AND THE AMOUNT D EPOSITED IN THE ITA NO.299/KOL/2013 A.Y. 2007-08 DIPAK PALIT V. ITO WD-15(1) KOL. PAGE 4 BANK. THIS FACT HAS BEEN ESTABLISHED BY THE ASSESSI NG OFFICER IN THE ASSESSMENT ORDER. IN ABSENCE OF ANY NEXUS BETWEEN D EPOSITS AND WITHDRAWALS I AM OF THE CONSIDERED VIEW THAT THE AO HAS CORRECTLY ADDED THE ENTIRE CASH DEPOSITS. FROM FACTS NARRATED HEREINABOVE, IT IS EVIDENT THAT THE SUM OF RS.27,15,000/- WAS NOTHING BUT UNDISCLOSED INCOME OF THEE APPELLANT WHICH WAS DEPOSITED BY HIM BY WAY OF CASH IN HIS ACCOUNT STANDING IN THE AXIS BANK, GOLPARK BR. KOLKATA. THE SOURCE OF THESE DEPOSITS HAVE NOT BEEN EXPLAINED BY THE AP PELLANT AND HE HAS ADMITTED THAT THE INCOME REPRESENTED HIS UNDISCLOSE D INCOME WHICH IS EVIDENT FROM THE FACT THAT THE APPELLANT HIMSELF HA S STATED THAT THE INCOME TO THE EXTENT OF RS.19,65,000/- ON ACCOUNT O F CASH DEPOSITS MAY BE CONFIRMED. HOWEVER, LOOKING TO ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, I HOLD THAT THE APPELLANT HAS SQUARELY FAILED TO EXPLAIN THE SOURCE OF CASH DEPOSITS OF RS.27,15,000/- AND I UPHOLD THE ACTION OF THE ASSESSING OFFICER OF ADDING THE AFORESAID INCOME IN THE TOTAL INCOME OF THE APPELLANT. ACCORDINGLY, THE ADDITION OF RS.27,1 5,000/- IS CONFIRMED. AS REGARDS THE ADDITION OF RS.21,369/- ON ACCOUNT O F INTEREST THE APPELLANT HAS NOT EXPLAINED ANY MISTAKE IN THE ADDI TION MADE BY THE ASSESSING OFFICER. ACCORDINGLY, THIS ADDITION IS AL SO SUSTAINED. THUS, GROUND NOS. 1, 2, 3, 4, 5, 6 & 7 ARE DISMISSED. GRO UND NO. 8 OF THE APPEAL IS GENERAL. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) ASSESSE E PREFERRED SECOND APPEAL BEFORE US. 6. HAVING HEARD LD. AR AND PERUSED THE MATERIALS AV AILABLE ON RECORD AND AUDITORS REPORT. BEFORE US LD. AR SUBMITTED THE AP PROACH OF ASSESSING OFFICER IS NOT FAIR AND PARTIAL FROM THE BEGINNING OF ASSESSMENT PROCEEDINGS. THE ASSESSEE HAS EVERY RIGHT TO WITHDRAW ANY AMOUNT FROM HIS BANK AND CAN RE-DEPOSIT SAME WITH THE BANK. THE AO CANNOT DISPUT E THE NATURE AND PURPOSE OF SUCH WITHDRAWALS. BUT IN THE INSTANT CAS E THE AO HAS DENIED TO ACCEPT THE CASH FLOW STATEMENT AND ADDED THE ENTIRE AMOUNT OF CASH DEPOSIT AS INCOME. FROM THE FACTS OF THE ABOVE STATED FACTS , WE UNDERSTAND THAT ASSESSEE HAS NOT DISCLOSED ONE OF HIS BANK ACCOUNT WHILE FILING HIS RETURN INCOME. WE FIND THAT DURING ASSESSMENT PROCEEDINGS, AO FOUND THERE WERE SEVERAL ENTRIES IN HIS BANK STATEMENT WHERE CASH WA S DEPOSITED AND ASSESSEE FAILED TO SUBSTANTIATE THE SOURCE OF CASH. THEREFORE AO MADE THE ADDITION AND SUBSEQUENTLY IN APPELLATE STAGE, LD. C IT(A) CONFIRMED. FROM THE ITA NO.299/KOL/2013 A.Y. 2007-08 DIPAK PALIT V. ITO WD-15(1) KOL. PAGE 5 CONTENTIONS OF THE ASSESSEE, WE UNDERSTAND THAT THE RE WERE SEVERAL WITHDRAWALS FROM ASSESSEES BANK ACCOUNT AND SAME W HICH HAS NOT BEEN CONSIDERED BY AUTHORITIES BELOW. IN OUR OPINION AND AFTER RELYING ON THE DECISION OF CO-ORDINATE BENCH IN THE CASE OF ITO VS. SHRI PIYUSH PODDAR IN ITA NO. 1050/KOL/2011 FOR AY 2006-07 DATED 07.09.2015, WHEREIN PEAK CRED IT WAS WORKED OUT AFTER THE WITHDRAWALS FROM THE BANK. THEREFORE IN THIS VIEW OF THE MATTER AND IN THE INTEREST OF NATURAL JUSTICE A ND FAIR PLAY WE DEEM IT FIT TO RESTORE BACK THE MATTER BEFORE ASSESSING OFFICER WI TH A DIRECTION TO APPLY PEAK CREDIT THEORY AND TO BRING THE GENUINE AMOUNT OF SU CH UNDISCLOSED CASH TO THE NET OF TAX. IN TERMS OF ABOVE, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT 29 /02/2016 SD/- SD/- (MAHAVIR SINGH) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 29 / 02 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-DIPAK PALIT, FLAT NO. 4B, 2 M.L. NEHRU R OAD, KOLKATA-29 2. /RESPONDENT- ITO, WARD-15(1), 169, A.J.C.BOSE ROAD, BAMBOO VILLA, KOL-14 3. ) *+ , , - / CONCERNED CIT KOLKATA 4. , , -- / CIT (A) KOLKATA 5. 012 33*+, , *+ , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ , , /TRUE COPY/ / , *+ ,
