RAGHU L. SHETTY, MUMBAI V. ITO WD 21(1)(4), MUMBAI

ITA 4510/MUM/2011

• Counselvise Citation: 451019914 RSA 2011
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 01-08-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 06-06-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KISHAN VYAS
• Assessee Lawyers: HARIDAS BHAT
• Keywords: Peak credit
• Section: 69

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI .. , ! ' # , $ ', % BEFORE SHRI R.S.SYAL, AM AND SHRI VIVEK VARMA, JM ITA NO.4510/MUM/2011 : ASST.YEAR 2007-2008 SHRI RAGHU L.SHETTY SHOP NO.1 & 2, NEW HAZAREBHAI HOUSE SOCIETY ROAD, IRLA LANE, VILE PARLE (W) MUMBAI 400 056. PAN : ANRPS4383E. THE INCOME TAX OFFICER WARD 21(1)(4) MUMBAI. ( &' / // / APPELLANT) ) ) ) ) / VS. ( *+&'/ RESPONDENT) &' , ,, , - - - - / APPELLANT BY : SHRI HARIDAS BHAT *+&' , - , - , - , - / RESPONDENT BY : SHRI KISHAN VYAS ) , .! / / / / DATE OF HEARING : 01.08.2013 /01 , .! / DATE OF PRONOUNCEMENT : 07.08.2013 ' 2 ' 2 ' 2 ' 2 / / / / O R D E R PER R.S.SYAL (AM) : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 07.03.2011 CONFIRMING THE ADDITION OF ` 10,20,000 MADE BY THE ASSESSING OFFICER U/S 69 OF THE ACT, IN RELATION TO THE ASSESSMENT YEAR 2007-20 08. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSING OFFICER SELECTED THE ASSESSEES CASE FOR SCRUTINY ON THE BA SIS OF AIR INFORMATION REGARDING CASH DEPOSIT OF ` 10,20,000 IN THE GREATER MUMBAI CO-OPERATIVE BANK LIMITED, VERSOVA BRANCH. T HE ASSESSEE WAS ASKED TO FURNISH THE DETAILS OF ALL THE BANK AC COUNTS HELD BY HIM. FROM THE DETAILS SO FILED, IT WAS NOTICED THAT THE SAID ACCOUNT IN GREATER MUMBAI CO-OPERATIVE BANK LIMITED WAS STILL NOT DISCLOSED ITA NO.4510/MUM/2011. SHRI RAGHU L.SHETTY. 2 BY THE ASSESSEE. WHEN THE AIR INFORMATION WAS CONFR ONTED, THE ASSESSEE CAME UP WITH EXPLANATION THAT THERE WAS SU FFICIENT CASH BALANCE AS PER THE CASH BOOK WHICH WAS DEPOSITED IN THE BANK AND HENCE THE SAME COULD NOT BE TREATED AS UNEXPLAINED. UNCONVINCED WITH THE ASSESSEES SUBMISSION, THE A.O. MADE ADDIT ION OF ` 10,20,000 U/S 69 OF THE ACT, WHICH CAME TO BE UPHELD IN THE F IRST APPEAL. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD. THE LEARNED COUNSEL FOR THE ASS ESSEE VEHEMENTLY ARGUED THAT THERE WAS SUFFICIENT CASH AVAILABLE AS PER CASH BOOK WHICH WAS UTILIZED FOR TRANSACTIONS WITH THE GREATER MUMB AI CO-OPERATIVE BANK LIMITED. HOWEVER, IT IS AN ADMITTED FACT THAT THE TRANSACTIONS WERE NOT RECORDED IN THE BOOKS OF ACCOUNT. ON A PER USAL OF THE BANK STATEMENT OF GREATER MUMBAI CO-OPERATIVE BANK LIMIT ED, VERSOVA BRANCH, IT WAS SEEN THAT THERE WERE SEVERAL OTHER T RANSACTIONS APART FROM CASH DEPOSIT AND CASH WITHDRAWAL. ON A PERTINE NT QUERY IT WAS SUBMITTED THAT THESE TRANSACTIONS RELATED TO PROFIT ON PURCHASE AND SALE OF SHARES ETC., WHICH WAS THOUGH NOT DISCLOSED IN THE RETURN BUT ADMITTED AT THE TIME OF ASSESSMENT. THE ARGUMENT PU T FORTH THAT THE ACCOUNTANT MADE A MISTAKE IN NOT RECORDING THE DEPO SITS AND WITHDRAWAL IN GREATER MUMBAI CO-OPERATIVE BANK LIMI TED, VERSOVA BRANCH IN THE BOOKS OF ACCOUNT FAILS BECAUSE OF THE ABSENCE OF THE DISCLOSURE OF INCOME FROM SALE AND PURCHASE OF SHAR ES IN THE RETURN, THE TRANSACTIONS RELATING TO WHICH WERE ROUTED THRO UGH THIS BANK ACCOUNT ALONE. IT, THEREFORE, AMPLY BOILS DOWN THAT THE ASSESSEE INTENTIONALLY KEPT THIS BANK ACCOUNT OUTSIDE THE BO OKS OF ACCOUNT AND ITA NO.4510/MUM/2011. SHRI RAGHU L.SHETTY. 3 THE DEPOSITS WERE MADE OUT OF UNDISCLOSED SOURCES. THE AVAILABILITY OF CASH BALANCE AT A PARTICULAR POINT OF TIME IN TH E CASH BOOK IS NOT DECISIVE OF THE SAME HAVING BEEN USED FOR THE TRANS ACTIONS NOT DISCLOSED TO THE REVENUE. 4. FROM THE IMPUGNED ORDER IT IS SEEN THAT T HE LEARNED CIT(A) HAS REPRODUCED TRANSACTIONS OF AMOUNTS DEPOSITED AND WI THDRAWN IN GREATER MUMBAI CO-OPERATIVE BANK LIMITED IN PARA 3. 3 OF HIS ORDER. THE ASSESSING OFFICER SIMPLY ADDED THE AMOUNTS DEPO SITED WHICH TOTALED ` 10.20 LAKH. IT CAN BE SEEN FROM SUCH DETAILS THAT T HERE ARE CERTAIN CASH WITHDRAWALS ALSO. IN SUCH A SITUATION, ONLY THE PEAK BALANCE CAN BE ADDED INSTEAD OF ALL THE AMOUNTS DEP OSITED. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER ON THIS ISS UE AND REMIT THE MATTER TO THE FILE OF A.O. FOR ADDING PEAK BALANCE WHICH THE LEARNED AR STATED AT ` 9.05 LAKH. THE A.O. WILL HIMSELF VERIFY THE PEAK BALANCE AND SUBSTITUTE SUCH BALANCE WITH THE ADDITI ON OF ` 10.20 LAKH. 5. 3 .4 $) 3. , 5 62 . 7 , 8. 9: IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 07 TH DAY OF AUGUST, 2013. ' 2 , /01 ;')4 0 , < SD/- SD/- (VIVEK VARMA) (R.S.SYAL) $ ' $ ' $ ' $ ' / JUDICIAL MEMBER ! ' ! ' ! ' ! ' / ACCOUNTANT MEMBER MUMBAI ; ;') DATED : 07 TH AUGUST, 2013. DEVDAS* ITA NO.4510/MUM/2011. SHRI RAGHU L.SHETTY. 4 ' 2 , *$.6# = #1. ' 2 , *$.6# = #1. ' 2 , *$.6# = #1. ' 2 , *$.6# = #1./ COPY OF THE ORDER FORWARDED TO : 1. &' / THE APPELLANT 2. *+&' / THE RESPONDENT. 3. > () / THE CIT, THANE. 4. > / CIT(A) 32, MUMBAI. 5. #A< *$.$) , , / DR, ITAT, MUMBAI 6. < B / GUARD FILE. ' 2) ' 2) ' 2) ' 2) / BY ORDER, +#. *$. //TRUE COPY// C C C C/ // /9 8 9 8 9 8 9 8 ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI