ITO, New Delhi V. Smt. Bina Devi Aggarwal, Delhi

ITA 462/DEL/2014

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2792 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-01-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 27-01-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Peak credit
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : A : NEW DELHI BEFORE SHRI R.S. SYAL, AM & MS SUCHITRA KAMBLE, JM ITA NOS.462 & 463/DEL/2014 ASSESSMENT YEAR : 2009-10 ITO, WARD-34(2), ROOM NO.D-4, VIKAS BHAWAN, NEW DELHI . VS. BINA DEVI AGGARWAL, A/200, 2 ND FLOOR, GALI NO.2, SHAKARPUR, DELHI. PAN: ADIPA2218D ASSESSEE BY : NONE DEPTT. BY : SHRI K.K. JAISWAL, DR DATE OF HEARING : 06.01.2016 DATE OF PRONOUNCEMENT : 07 .01.2016 ORDER PER R.S. SYAL, AM: THESE TWO APPEALS BY THE REVENUE ARISE OUT OF THE SEPARATE ORDERS PASSED BY THE CIT(A) ON 25.11.2013 IN RELATION TO THE ASSESSMENT YEAR 2009-10. 2. THE ONLY ISSUE RAISED IN THE FIRST APPEAL IS AGA INST REDUCING THE ADDITION FROM RS.49,05,352/- TO RS.2,4 4,769/-. ITA NOS.462 & 463/DEL/2014 2 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE AO RECEIVED AN AIR INFORMATION THAT THE ASSESSEE DEPOS ITED CASH OF RS.49,05,352/- DURING THE FINANCIAL YEAR RELEVAN T TO THE ASSESSMENT YEAR UNDER CONSIDERATION IN ICICI BANK, PREET VIHAR, NEW DELHI. IN THE ABSENCE OF ANY EXPLANATION AND DOCUMENTARY EVIDENCE TENDERED BY THE ASSESSEE FOR T HE CASH DEPOSIT, THE AO MADE ADDITION OF RS.49.05 LAC. SUC H AN ADDITION WAS MADE BY MEANS OF ORDER PASSED U/S 144 OF THE ACT. THE LD. CIT(A) RESTRICTED THE ADDITION TO RS. 2,44,769/- BY CONSIDERING THE PEAK CREDIT AT THIS LEVEL ON 30.1.2 009. THE REVENUE IS AGGRIEVED AGAINST REDUCING THE ADDITION TO THIS LEVEL. 4. WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVAN T MATERIAL ON RECORD. THERE IS NO APPEARANCE FROM TH E SIDE OF THE ASSESSEE DESPITE NOTICE. AS SUCH, WE ARE PROCE EDING TO DISPOSE OF THE APPEAL OF THE REVENUE EX PARTE QUA THE ASSESSEE. IT IS AMPLY BORNE OUT FROM RECORD THAT THE AO MADE ADDITION OF ITA NOS.462 & 463/DEL/2014 3 RS.49.05 LAC BY CONSIDERING ALL THE DEPOSIT ENTRIES IN THE ICICI BANK, PREET VIHAR BRANCH, FOR WHICH THE AIR INFORMA TION WAS RECEIVED BY HIM. ON THE CONTRARY, THE LD. CIT(A) N OTICED THAT THERE WAS SUBSTANTIAL WITHDRAWAL OF CASH WHICH WAS RE- DEPOSITED IN THE SAME BANK ACCOUNT AND THE PEAK AMO UNT WAS CALCULATED AT RS.2,44,769/- WHICH WAS SUBJECTED TO TAXATION. IN PRINCIPLE, WE APPROVE THE VIEW THAT ONLY PEAK CR EDIT CAN BE SUBJECTED TO TAX BY CONSIDERING THE CASH DEPOSIT AN D CASH WITHDRAWAL ENTRIES. IT IS, BUT, NATURAL THAT IF AM OUNT OF CASH IS WITHDRAWN FROM BANK AND THEN RE-DEPOSITED, THEN THE ENTRIES OF ALL THE DEPOSITS CANNOT BE SUBJECTED TO TAXATION. IT IS ONLY THE PEAK AMOUNT WHICH CAN BE CHARGED TO TAX. HOWEVER, N ON-CASH ENTRIES CANNOT BE TAKEN INTO CONSIDERATION FOR CALC ULATING THE PEAK AMOUNT OF CREDIT WHICH ARE TO BE DEALT WITH SE PARATELY. IT IS BORNE OUT FROM THE RECORD THAT THE ASSESSEE DID NOT SUBMIT ANY DETAIL TO THE AO AND THE LD. CIT(A) HAS ACCEPTE D THE ASSESSEES CONTENTION WITHOUT CONFRONTING THE AO WI TH A COPY OF THE BANK ACCOUNT BEFORE HIM FOR THE FIRST TIME I N VIOLATION OF ITA NOS.462 & 463/DEL/2014 4 RULE 46A OF THE IT RULES, 1962. AS SUCH, WE SET ASI DE THE IMPUGNED ORDER AND RESTORE THE MATTER TO THE FILE O F THE AO FOR EXAMINING THE ISSUE OF PEAK CREDIT FOR ADDITION IN LINE WITH OUR ABOVE OBSERVATIONS. NEEDLESS TO SAY, THE ASSESSEE W ILL BE ALLOWED A REASONABLE OPPORTUNITY OF HEARING IN SUCH FRESH PROCEEDINGS. 5. THE OTHER APPEAL FILED BY THE REVENUE IS AGAINST RESTRICTING THE PENALTY IMPOSED BY THE AO U/S 271(1 )(C) OF THE ACT ON ACCOUNT OF THE ADDITION TOWARDS UNEXPLAINED BANK DEPOSITS REDUCED IN THE FIRST APPEAL IN QUANTUM PRO CEEDINGS. 6. HAVING HEARD THE LD. DR AND PERUSED THE RELEVAN T MATERIAL ON RECORD, IT IS OBSERVED THAT THE LD. CIT (A) HAS DIRECTED THE AO TO RESTRICT THE PENALTY ON THE BASI S OF THE AMOUNT OF PEAK CREDIT OF RS.2,44,769/- AS AGAINST T HE ADDITION OF RS.49.05 LAC MADE BY HIM. WE HAVE SET ASIDE SUC H A VIEW AND RESTORED THE MATTER TO THE FILE OF THE AO FOR A FRESH DECISION IN THE QUANTUM PROCEEDINGS. CONSEQUENTLY, THE ITA NOS.462 & 463/DEL/2014 5 IMPUGNED ORDER IS ALSO SET ASIDE AND MATTER IS REST ORED TO THE FILE OF THE AO TO CONSIDER THE QUESTION OF IMPOSITI ON OR OTHERWISE OF PENALTY AFTER PASSING THE ASSESSMENT O RDER AFRESH AS DIRECTED ABOVE. 7. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07.01.2016. SD/- SD/- [SUCHITRA KAMBLE] [R.S. SYAL] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, 07 TH JANUARY, 2016. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.