Sh. Darshan Singh, Rohtak V. ITO, Rohtak

ITA 356/DEL/2014

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4065 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 08-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 20-01-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: K K GUGLANI
• Keywords: Principle of natural justice; Peak credit
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B, NEW DELHI BEFORE SHRI R. S. SYAL, ACCOUNTANT MEMBER AND SMT. BEENA A. PILLAI, JUDICIAL MEMBER I.T.A. NO.356/DEL/2014 (ASSESSMENT YEAR 2009-10) DARSHAN SINGH, VS. ITO, WARD-I, H. O. 322/1, J P COLONY, ROHTAK ROHTAK GIR / PAN :ADFPA9140D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K. K. GUGLANI, ADV. RESPONDENT BY : SHRI ANIL KUMAR SHARMA, SR. DR DATE OF HEARING: 08.08.2016 DATE OF PRONOUNCEMENT: 11.08.2016 ORDER PER BEENA A. PILLAI, JM: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 12.11.2013 PASSED BY LD. CI T(A), ROHTAK FOR THE ASSESSMENT YEAR 2009-10 ON THE FOLLO WING GROUNDS OF APPEAL: 1. ON FACTS & IN LAW, THE LEARNED CIT (A) HAS ERRE D IN CONFIRMING THE ILLEGAL ADDITION OF RS. 26,52,070 MA DE BY THE A.O, BY TREATING THE ENTIRE DEPOSITS IN APPELLANT'S BANK A/C AS HIS INCOME. 2. ON FACTS & IN LAW, THE LEARNED AO/CIT (A) ERRED IN IGNORING THE AFFIDAVIT & OTHER RELEVANT DOCUMENTARY EVIDENCE, CONCERNING SOURCE OF DEPOSIT IN BANK A/C, WITHOUT COMPLYING WITH THE PROVISIONS OF LAW AND TH US THEIR ORDERS ARE VIOLATIVE OF PRINCIPLES OF NATURAL JUSTICE & HENCE LIABLE TO BE VACATED; & 2 I.T.A.NO.356./DEL/2014 3. ON FACTS & IN LAW, BOTH THE LD. AO/CIT (A) ERRED IN TREATING THE DEPOSITS IN BANK A/C AS APPELLANT'S INCOME WITHOUT TAKING INTO CONSIDERATION THE CORRESPONDING WITHDRAWALS AND THE NET ACCRETION IN A/C. 4. ON FACTS & IN LAW, THE LD. AO ERRED IN DIRECTIN G THE CHARGING OF INTEREST U/S 234B THOUGH THE ASSESS EE HAD NOT COMMITTED ANY SUCH DEFAULT. 5. ON FACTS AND IN LAW, THE LD. A.O ERRED IN INITIATING PENALTY PROCEEDINGS U/S 271 (1) (C) OF I T ACT WITHOUT ANY BASIS OR JUSTIFICATION AT ALL. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED ITS RETURN OF INCOME ON 20.07.2009 DECLARING INCOME AT RS.1,60,923/-. THE ASSESSEE DERIVED ITS INCOME FRO M SALARY FOR THE YEAR UNDER CONSIDERATION. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTICE U/S 1 43(2) WAS ISSUED TO THE ASSESSEE. 2.1 DURING THE ASSESSMENT PROCEEDINGS, LD. A.O NOTE D THAT THE ASSESSEE HAD DEPOSITED RS.26,52,070/- DURI NG THE YEAR. THE ASSESSEE WAS ASKED TO PROVIDE THE DE TAILS OF DEPOSITS. THE ASSESSEE SUBMITTED THAT HIS SON SURE NDER SINGH, WHO OWNS TWO TRUCKS, HAD BEEN USING HIS ACCO UNT FOR HIS BUSINESS PURPOSES, FOR CREDITS AND WITHDRA WALS OF MONEY THROUGH CHEQUES RECEIVED FROM HIS CLIENTS. L D. A.O. REJECTED THE CONTENTION OF THE ASSESSEE AND MA DE ADDITION OF THE TOTAL CREDITED AMOUNT OF RS.26,52,0 70/- TO THE INCOME OF THE ASSESSEE. 2.2 AGGRIEVED BY THE ORDER OF LD. A.O., ASSESSEE PR EFERRED APPEAL BEFORE LD., CIT(A). DETAILED SUBMISSIONS WE RE FILED 3 I.T.A.NO.356./DEL/2014 BEFORE LD. CIT(A). LD. CIT(A) CONFIRMED THE ADDITI ON MADE BY THE ASSESSING OFFICER. AGGRIEVED BY THE ORDER O F LD. CIT(A), ASSESSEE IS IN APPEAL BEFORE US NOW. 3. BEFORE US, IT HAS BEEN SUBMITTED BY THE LD. A.R. THAT SHRI SURENDER SINGH, SON OF THE ASSESSEE, OWNS ONE LIGHT COMMERCIAL VEHICLE AND ONE HEAVY COMMERCIAL VEHICLE FOR HIS TRANSPORT BUSINESS. PHOTOCOPIES OF R.C. BOOKS ARE PLACED AT PAGES 10-19 OF THE PAPER BOOK, WHICH WERE ALSO SUBMITTED BEFORE THE AUTHORITIES BELOW. AS SON OF THE ASSESSEE WAS NOT HAVING BANK ACCOUNT, HE DEPOSITED CASH/CHEQUES RECEIVED FROM HIS TRANSPORT BUSINESS, INTO THE ACCOUNT OF THE ASSESSEE AND WITHDREW THE AMOUNT AS AND WHEN REQUIRED. THE BANK STATEMENTS ARE PLACED AT PAGES 1-8 OF THE PAPER BOOK BEFORE US. LD. A.R. SU BMITTED THAT THIS INCOME PERTAINS TO HIS SON, WHICH STOOD EXPLAINED BY THESE DOCUMENTS. 4. ON THE CONTRARY, LD. D.R. SUBMITTED THAT ASSESSE E COULD NOT PRODUCE HIS SONS ADDRESS AT THE TIME OF ASSESSMENT PROCEEDINGS, DUE TO WHICH, THE DETAILS C OULD NOT BE VERIFIED. HE SUBMITTED THAT THE ADDITION MA DE BY THE ASSESSING OFFICER NEEDS TO BE CONFIRMED. 5. IN THE REJOINDER, LD. A.R. SUBMITTED THAT DETAIL S OF THE ASSESSEES SON WAS ASKED WITHOUT GIVING SUFFICI ENT TIME TO THE ASSESSEE AND THE LD. A.O. CONCLUDED THE ASSESSMENT IN HASTE. ALTERNATIVELY, LD. A.R. SUBMI TTED THAT IT WOULD BE JUSTIFIED IF ONLY THE PEAK CREDIT IS ADDED AND THE ASSESSEE MAY BE GIVEN BENEFIT OF WITHDRAWAL S. 4 I.T.A.NO.356./DEL/2014 6. LD. D.R. DOES NOT OBJECT TO THE ALTERNATIVE PLEA MADE BY THE LD. A.R. 7. WE HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW AND CONSIDERED THE ARGUMENTS ADVANCED BY BOTH THE PARTI ES. WE ARE IN AGREEMENT WITH THE ALTERNATE PLEA SUBMITT ED BY THE LD. A.R. IN VIEW OF THE ABOVE WE DIRECT THE LD . A.O. TO CALCULATE THE PEAK CREDIT AND TAX THE SAME ACCORDIN GLY. 8. IN THE RESULT APPEAL FILED BY THE ASSESSEE STAND S PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH AUG., 2016. SD./- SD./- (R. S. SYAL) (BEENA A. PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 11.08. 2016 SP. COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY. BY ORDER (ITAT, NEW DELHI) 5 I.T.A.NO.356./DEL/2014 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS 11/8/16 SR. PS/PS 6 KEPT FOR PRONOUNCEMENT 11/8 SR. PS/PS 7 FILE SENT TO BENCH CLERK 11/8 SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER