Sh. Rajiv Kumar, Amritsar. V. Income Tax Officer, Amritsar.

ITA 4/ASR/2017

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 7527 (ITAT-AMRITSAR)
• Duration Of Justice: 5 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 01-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 148; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A. No.4/Asr/2017 Assessment Year: 2009-10 Sh. Rajiv Kumar 64-E, Rani Ka Bagh, Amritsar [AAZPK1231R] VS. I.T.O. Ward 5(3), Amritsar (Appellant) (Respondent) Appellant by : Sh. None Respondent by: Sh. S. M. Surendranath, Sr. DR Date of Hearing: 19.05.2022 Date of Pronouncement: 14.07.2022 ORDER Per Anikesh Banerjee, JM: The instant appeal is directed against the order of Ld. Commissioner of Income Tax (Appeal)-2, Amritsar, {in brevity CIT(A)} bearing appeal no.112/2014-15 dated of order 30.09.2016, order passed u/s. 250(6) of the Income Tax Act, 1961 (in brevity the Act) for the Assessment year 2009-10. The impugned order was originated from the order of Income Tax Officer, Ward 5(3), Amritsar (in brevity A.O) order passed u/s.144 of the Act order dated 21.03.2014. 2. The assessee filed following grounds of appeal : 2 1. That the order of Learned CIT(A) confirming the addition of Rs.5,00,967/- is wrong, illegal and without justification. 2. That initiation of proceeding is wrong, illegal and without justification. The AO has not applied his mind before recording his satisfaction. 3. That the issuance of notice u/s. 143(2) is illegal and void-ab-initio as the proceedings have been initiated on the basis of wrong facts and borrowed information. 4. That the learned CIT(A) has not appreciated the submissions made before him and proceeded to confirm the addition arbitrarily. 5. That without prejudice to the above the learned CIT(A) has not taken into consideration the peak. 3. Tersely we advert the facts of the case. The assessment was reopened u/s. 148 of the Act on the basis of information received from DDI (Inv-II), Amritsar. The assesse was engaged in trading of food grains and transaction was made in account no. 01151000017837 with HDFC Bank. The order was passed u\s. 144 of the Act and added back the deposit of cash in HDFC Saving Bank account amount to Rs.9,76,144/- . The assessee was unable to explain the source of deposit in the bank account. Assessee filed appeal before the CIT(A) against the order of ld. AO. The ld. CIT(A) modified the order of the ld. AO and recalculated the addition on the basis of the deficiency of cash in cash trial with HDFC Bank which is amount to Rs.5,00,966.74. Aggrieved assesse filed an appeal before us. 3 4. The ld. AO in assessment proceedings added back Rs.9.76.144/- as unexplained cash deposited in the Saving Bank account. The ld. CIT(A) in his order calculated the deficiency of cash in different dates related to deposited in HDFC bank. The CIT(A) in correct way segregated the deposits made through cheques/ bank channel in HDFC bank amount to Rs.3,21,000/- which was got immunity in addition. 4.1 The ld. Counsel of the assesse filed a written submissions on dated 22.03.2017. It is kept in record. The aassessee raised the point related to challenging the jurisdiction of notice u/s. 148. During the appeal proceedings before the ld. CIT(A) this point was not challenged by the assesse. But no such prayer for acceptance of additional ground was filed by the assesse before the ITAT. So the jurisdictional point related to notice u/s. 148 is untouched. Also the same was never agitated before any of the lower Authorities. As there is no additional ground, the jurisdiction of 148 is not adjudicated due to procedural defect. 4.2 The ld. CIT(A) had calculated the cash trial it is extracted as follows: “The appellant had made the following cash deposits /withdrawals in HDFC Bank Ltd, the Mall, Amritsar a/c no. 01152000017837, wherefrom the cash in hand of the appellant on various dates of the year under consideration is worked out by considering the cash withdrawals made from the bank account by ATM as under 4 5 13-06-08 10,000/- 29000/- 16-06-08 9000/- 38000/- 17-06-08 10,000/- 48000/- 19-06-08 5000/- 53,000/- 22-06-08 1500/- 54,500/- 22-06-08 1500/- 56,000/- 22-06-08 1500/- 57,500/- 24-06-08 3000/- 60,500/- 30-06-08 2000/- 62,500/- 22-07-08 1500/- 64,000/- 07-08 1000/- 65,000/- 25-07-08 300/- 65,300/- 25-07-08 2000/- 67,300/- 26-07-08 1500/- 68,900/- 13-09-08 5000/- 73,900/- 13-09-08 5000/- 78,900/- 15-09-08 2000/- 80,900/- 16-09-08 5000/- 85,900/- 21-09-08 1000/- 86,900/- 26-11-08 35,000/- 51,900/- 26-11-08 130,000/- (-) 78,100 6 05-12-08 1000/- 1000/- 24-01-09 15,000/- (-) 14,000/- 26-01-09 1000/- 1000/- 09-02-09 3000/- 4000/- 25-02-09 1000/- 5000/- 21-03-09 250,000/- (-) 245,000/- The appellant has not been able to substantiate the sources Of cash deposits in the bank account on various dates as above. After giving the credit of cash withdrawals made by the appellant from Saving bank account by ATM, the cash in hand of the appellant was worked out on various dates which revealed negative cash balance of Rs.163,866.74, Rs 78,100/-, Rs 14,000/-, and Rs 245,000/- on 10-05-08, 26-11-08, 24-01-09 and 21-03-09 respectively as above. Therefore the source of cash deposits of Rs (163,866.74 + 78,100 + 14,000 + 245,000) = Rs 500,966.74 in the bank account remained unexplained and the addition of Rs 500,966.74 only is therefore confirmed. The appellant had argued that the undersigned have already confirmed the additions of Rs 189,500/- and Rs 85,000/- in A Y 200506 and 2006-07 which was available with the assessee and deposits are covered by these additions. I do not agree with the appellant and the credit for the additions confirmed in first appeal in A Y 2005-06 and 2006-07 cannot be said to be available with the appellant in F Y 200708 (after two years) to make cash deposits in the bank 7 account in the year under consideration and therefore the contention of the appellant is dismissed.” Out of the total addition of Rs 976, 144/- only the addition of Rs 500,966.74 is confirmed and the balance addition is deleted. 5. We heard the rival submissions and considered the documents available in records. The ld. CIT(A) in his order calculated the deficiency of cash amount to Rs.5,00,966.74+Rs 78,100+ Rs. 14,000+ Rs 2,45,000, mentioned above. We decided that peak should be taken on the basis of maximum amount of cash deficit in cash trial only once. Considering this the addition of the assesse should be sustaining maximum to Rs. 2,45,000/- on the peak dated 21.03.2009. So, the demand amount is modified and restricted to maximum amount to Rs.2,45,000/-. 6. In the result, the appeal of the assessee partly allowed. Order pronounced in the open court on 14 .07.2022 Sd/- Sd/- (Dr. M. L. Meena) (Anikesh Banerjee) Accountant Member Judicial Member *GP/Sr. PS* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(A), 8 (4) The CIT concerned (5) The Sr. DR, I.T.A.T (6) The Guard File True Copy By Order