The Income-tax Officer, Jammu V. Sh. Sanjeev Chauhan, Jammu

ITA 316/ASR/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0600 (ITAT-AMRITSAR)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 10-01-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 26-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Peak credit

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.316(ASR)/2012 ASSESSMENT YEAR:2008-09 PAN :FUPC7211E INCOME TAX OFFICER, VS. SH. SANJEEV CHAUHAN WARD 1(3), JAMMU. JAMMU. (APPELLANT) (RESPONDENT) DEPARTMENT BY:SH. TARSEM LAL, DR ASSESSEE BY: NONE DATE OF HEARING: 10/01/2013 DATE OF PRONOUNCEMENT:10/01/2013 ORDER PER BENCH ; THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER OF THE CIT(A), JAMMU, DATED 15.05.2012 FOR THE ASSE SSMENT YEAR 2008-09. 2. THE REVENUE HAS RAISED FOLLOWING SUGGESTED GROUN DS OF APPEAL: SUGGESTED GROUNDS OF APPEAL IN THE CASE OF SH. SAN JEEV CHAUHAN S/O SH. JEET RAJ R/O 18-C,SHASTRI NAGAR, JAMMU FOR THE ASSESSMENT YEAR 2008-09. 1. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT(A) WAS RIGHT IN DIRECTING THE AO TO ADOPT NET PROFIT RATE OF 6.5% OF THE TOTAL RECEIPTS INSTEAD OF 12% APPLIED BY THE AO WH EN THE BOOKS 2 OF ACCOUNT WERE FOUND INCOMPLETE AND REJECTED U/S 145(3) OF THE INCOME TAX ACT, 1961. 2. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT(A) WAS RIGHT IN DIRECTING THE AO TO ADOPT NET PROFIT RAT E OF 6.5% OF THE TOTAL RECEIPTS INSTEAD OF 12% APPLIED BY THE AO I N VIEW OF THE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH COU RT IN THE CASE OF PRABHAT KUMAR, 323 ITR 675. 3. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT(A) WAS RIGHT IN DELETING THE ADDITION MADE ON ACCOUNT OF UNVERIFIED CASH CREDITS (UNSECURED LOANS). AS PER THE SETTLE D LAW ON THIS ISSUE, IT IS THE PRIMARY ONUS OF THE ASSESSEE TO ESTABLISH ALL THE THREE COMPONENTS IN CASE OF LOANS, I.E. IDENTIY, GENUINENESS AND CREDITWORTHINESS. IF THE ASSESSEE FAILS TO ESTABL ISH ANY ONE OF THE THREE, THE CASH CREDIT CANNOT BE ACCEPTED AS EXPL AINED AND HAS TO BE ADDED BACK. 4. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT( A) WAS RIGHT IN APPLYING THE METHOD OF PEAK CREDIT OF CASH DEPOSIT AND WITHDRAWALS IN THE BANK ACCOUNT WHEN THE CREDITS IN THE BANK ACCOUNT AS SUCH HAS BEEN PROVED AS UNDISCLOSED INCO ME. 5. THE APPLICANT CRAVES TO AMEND OR ADD ANY ONE OR MORE GROUNDS 1F APPEAL. 3. THE REVENUE HAS FILED THE AFORESAID APPEAL BY RA ISING SUGGESTED GROUNDS OF APPEAL, WHICH ARE NOT PERMISSIBLE UNDER THE PROVISIONS OF LAW. 4. THE C.I.T. JAMMU HAS AUTHORIZED THE ITO WARD -2( 3), JAMMU TO FILE APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL, AM RITSAR BENCH, AMRITSAR, AGAINST THE IMPUGNED ORDER OF THE LD. CIT (A). BUT HE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER BY RAISIN G SUGGESTED GROUNDS OF APPEAL. THE APPEAL BEFORE THIS BENCH SHOULD BE FILE D BY RAISING GROUNDS OF 3 APPEAL WHICH ARISE FROM THE ORDER OF THE LD. CIT(A) BUT NOT SUGGESTED GROUNDS OF APPEAL, AS WE HAVE REPRODUCED ABOVE. 5. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF T HE PRESENT CASE, WE ARE OF THE VIEW THAT THE GROUNDS OF APPEAL FILED B Y THE DEPARTMENT ARE NOT ACCORDING TO THE RULES BECAUSE THE REVENUE HAS FILE D SUGGESTED GROUNDS OF APPEAL WHICH IS NOT PERMISSIBLE UNDER THE RULES. T HEREFORE, THE APPEAL OF THE DEPARTMENT IS DISMISSED BEING DEFECTIVE. HOWEVE R, THE DEPARTMENT IS AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF TH IS ORDER AFTER RECTIFYING THE GROUNDS OF APPEAL ( NOT SUGGESTED GROUNDS OF APPEA L) FOR ADJUDICATING THE APPEAL IN ACCORDANCE WITH LAW. THUS, THE APPEAL OF THE REVENUE IS DISMISSED BEING DEFECTIVE, IN LIMINE. 6. IN THE RESULT, BOTH THE APPEAL OF THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10TH JANUARY, 2013. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10TH JANUARY, 2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. SANJEEV CHAUHAN, JAMMU. 2. THE ITO WARD 1(3), JAMMU. 3. THE CIT(A), JAMMU. 4. THE CIT, JAMMU. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY