ABDUL SAMI, Jaipur V. ITO, Jaipur

ITA 484/JPR/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2028 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 07-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 15-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA
• Assessee Lawyers: SHRAWAN GUPTA DHK
• Keywords: Opportunity of being heard; Principle of natural justice; Peak credit; Additional evidence
• Section: 147; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 227/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. INCOME TAX OFFICER, WARD-7(4), JAIPUR. CUKE VS. SHRI ABDUL SAMI S/O SHRI ABDUL RAHIM, 67, WARD NO. 8, HANDI PURA, AMER, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ANPPS 5802 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT C.O. NO. 36/JP/2015 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 227/JP/2015 ) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. SH. ADBUL SAMI S/O SH. ABDUL RAHIM, H. NO. 1842, NAHERON KI NADI, CHOKDI RAMCHANDRAJI KA, RAMGANG BAZAR, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD-7(4), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ANPPS 5802 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 484/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. SH. ADBUL SAMI S/O SH. ABDUL RAHIM, H. NO. 1842, NAHERON KI NADI, CHOKDI RAMCHANDRAJI KA, RAMGANG BAZAR, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD-7(4), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ANPPS 5802 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI A.S. NEHRA (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SHRAWAN GUPTA (ADVOCATE) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 25.09.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 28.09.2017. VKNS'K@ ORDER 2 ITA NOS. 227 & 484/JP/2015 & C.O. NO. 36/JP/2015. SHRI ABDUL SAMI, JAIPUR. PER SHRI KUL BHARAT, JM. THIS SET OF THREE APPEALS I.E. APPEAL OF THE REVENUE IN ITA NO. 227/JP/2015 AND APPEAL & CROSS OBJECTION WHICH IS FILED BY THE ASSE SSEE I.E. ITA NO. 484/JP/2015 & C.O. NO. 36/JP/2015 PERTAINING TO ASSESSMENT YEAR 2008-09 ARE DIRECTED AGAINST THE ORDER OF LD. CIT (A)-3, JAIPUR DATED 24/12/2014 AND 20/3/2015 RESPECTIVELY. 2. FIRST, WE TAKE UP REVENUES APPEAL IN ITA NO. 227/JP/2015 PERTAINING TO THE ASSESSMENT YEAR 2008-09. THE REVENUE HAS RAISED THE FOLLOWINGS GROUNDS OF AP PEAL:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 29,59,375 /- OUT OF TOTAL ADDITION OF RS. 32,71,850/- CONFIRMING THE PEAK OF CASE OF RS. 3,12,476/- ON ACCOUNT OF THE CASH DEPOSITED BY THE ASSESSEE IN HIS BANK ACCOUNT OF KOTAK MAHINDRA BANK, JAIPUR ON REGU LAR INTERVALS. THE LD. CIT(A) HAS ALLOWED RELIEF OF RS. 29,59,375/- TO THE ASSESSEE WITHOUT CONSIDERING THE DETAILS FACTS MENTIONED IN THE ASSESSMENT ORDER. 2. FURTHER ADDITIONAL EVIDENCE FURNISHED BY THE ASS ESSEE DURING THE APPELLANT PROCEEDINGS WERE NEITHER FURNISHED BY THE ASSESSEE BEFORE THE AO NOR BY THE LD. CIT(A) UNDER RULE 46A(1) OF T HE IT RULES AND LETTER SEND TO THE AO WAS ONLY FOR CLARIFICATION ON THE ISSUE OF VALID SERVICE OF NOTICE TO THE ASSESSEE IN THE PROCEEDING S U/S 147 OF THE IT ACT. 3. ONLY EFFECTIVE GROUND IS AGAINST DELETING THE AD DITION OF RS. 29,59,375/- OUT OF TOTAL ADDITION OF RS. 32,71,850/- CONFIRMING THE PE AK DEPOSIT ON ACCOUNT OF CASH DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE. 3 ITA NOS. 227 & 484/JP/2015 & C.O. NO. 36/JP/2015. SHRI ABDUL SAMI, JAIPUR. 4. BRIEFLY, STATED THE FACTS ARE THAT, THE CASE WAS REOPENED FOR ASSESSMENT AND THE ASSESSMENT U/S 147 READ WITH SECTION 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VID E ORDER DATED 22/07/2013. WHILE FRAMING THE ASSESSMENT, THE ASSESSING OFFICER NOTIC ED THAT THE ASSESSEE HAD CASH DEPOSITS OF RS. 20,52,500/- IN SAVING BANK ACCOUNT OF KOTAK MAHINDRA BANK LTD. AND USED CREDIT CARD FOR MAKING PAYMENTS OF BILLS TOTAL ING TO RS. 4,58,068/-. THE ASSESSING OFFICER RECORDED THAT IN RESPONSE TO NOTI CE NO ONE APPEARED. THEREFORE, THE ASSESSING OFFICER MADE ADDITION ON BOTH CASH DE POSITED AND THE PAYMENT MADE. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS, REDUCED THE ADDITION B Y APPLYING THE PEAK CREDIT. 5. NOW, BOTH THE ASSESSEE AND THE REVENUE HAVE COME INTO APPEAL, BEFORE THIS TRIBUNAL. 6. LD. D/R SUBMITTED THAT LD. CIT(A) WAS NOT JUSTIF IED IN ADMITTING THE ADDITIONAL EVIDENCES AND REDUCING THE ADDITION MADE BY THE ASS ESSING OFFICER BY APPLYING PEAK THEORY, HE SUPPORTED THE ORDER OF THE ASSESSING OF FICER. 7. ON THE CONTRARY, LD. COUNSEL FOR THE ASSESSEE SU BMITTED THAT PEAK THEORY IS RIGHTLY APPLIED AND THE LD. CIT(A) FAILED TO GIVE S ET OF EXPENDITURE MADE BY THE ASSESSEE, TO THIS EXTENT ORDER OF THE LD. CIT(A) NE EDS MODIFICATION. 8. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD. LD. CIT(A) HAS DECIDED THIS ISSUE BY GIVIN G FINDING ON FACT BY OBSERVING AS UNDER:- ACCORDINGLY THE ADDITION TO BE MADE IN THE APPELLA NT CASE IS TO BE DETERMINED KEEPING IN VIEW THE OBSERVATIONS OF THE HONBLE ITAT. IN THIS 4 ITA NOS. 227 & 484/JP/2015 & C.O. NO. 36/JP/2015. SHRI ABDUL SAMI, JAIPUR. CONNECTION IT MAY BE NOTED THAT IN BANK ACCOUNT THE ASSESSEE HAS DEPOSITED CASH ON REGULAR INTERVALS AND ALSO WITHDRAWN THE AM OUNTS BROADLY IN THE SAME PERIOD WITHOUT ANY SUBSTANTIAL GAP. IT IS ALS O NOTED THAT AT THE BEGINNING OF THE AY THE ASSESSEE WAS HAVING CREDIT BALANCE OF RS. 35452/- AND THE HIGHEST BALANCE IN THE ACCOUNT WAS ON 30.09 .2011 FOR RS. 347928/-. THEREFORE, AS PER THE PEAK THEORY THE HIGHEST AMOUN T TO BE TAXED REMAINS AT RS. 312476/- (347928 35452). ACCORDINGLY, OUT OF TOTAL ADDITION OF RS. 3271851/-, ADDITION TO THE EXTENT OF RS. 312476/- I S CONFIRMED. THE APPELLANT GETS RELIEF OF RS. 2959375/-. AS REGARDS THE CONTE NTION OF THE ASSESSEE THAT EVEN SUCH PEAK CREDIT SHOULD BE SET OFF AGAINST THE EXPENDITURE OF RS. 458068/-, IT MAY BE STATED THAT SUCH CONTENTIONS CA NNOT BE ACCEPTED AS THE EXPENDITURE HAS BEEN INCURRED ON DIFFERENT DATED AN D IT IS NOT THE CASE THAT WHEN THE EXPENDITURE WAS INCURRED INCOME TO SUCH EX TENT HAS ALREADY BEEN EARNED. 8.1 THE ABOVE FINDING ON FACT IS NOT CONTROVERTED B Y THE REVENUE. MOREOVER, THE LD. CIT(A) HAS RIGHTLY APPLIED THE PEAK THEORY AS T HERE IS A DEPOSIT AND CASH WITHDRAWAL. THUS, THE GROUND RAISED IN THIS APPEA L IS DISMISSED. 9. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. 10. NOW, WE TAKE UP CROSS OBJECTION OF THE ASSESSEE I.E. C.O. NO. 36/JP/2015 ARISING OUT OF ITA NO. 227/JP/2015 PERTAINING TO T HE A.Y. 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF CR OSS OBJECTION:- 1.1 THE IMPUGNED ORDER U/S 144/148 DATED 22.07.201 3 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE THE SAME MAY KINDLY BE QUASHED. 1.2 THE ACTION TAKEN U/S 147 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE THE SAME MAY BE KINDLY BE QUASHED. 5 ITA NOS. 227 & 484/JP/2015 & C.O. NO. 36/JP/2015. SHRI ABDUL SAMI, JAIPUR. 1.3 THE LD. AO FURTHER ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN PASSING THE EXPARTY ORDER U/S 144 WITHOUT AFFORDING ADEQUATE AND REASONABLE OPPORTUNITY THE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE. THE IMPUGNED ORDER HAVING BEEN FRAMED IN GROSS BREA CH OF NATURAL JUSTICE, WHICH WAS TOTALLY CONTRARY TO THE PROVISIO NS OF LAW AND FACTS OF THE CASE, HENCE, THE ORDER OF THE AO MAY KINDLY BE QUASHED. 2. RS. 4,58,068/- : THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS. 4,58,068/- ON ACCOUNT OF PAYMENT AGAINST THE CREDIT CARD BILL ( T HROUGH HDFC BANK LTD.) . HENCE, THE ADDITION SO MADE BY THE AO AND C ONFIRMED BY THE LD. CIT(A) IS BEING TOTALLY CONTRARY TO THE PROVISI ONS OF LAW AND FACTS ON THE RECORD AND HENCE THE ADDITION MAY KINDLY BE DELETED IN FULL. 3. RS. 3,12,476/-: THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN SUSTAINING THE ADDITION OF RS. 3,12,476/- OUT OF RS. 32,71,851/- MADE BY THE AO ON ACCOUNT OF TOTAL DEPOSITS IN THE BANK ACCOUNT (INCLUDING THE CASH DEPOSIT OF RS. 20, 52,500/-), WITHOUT GOING THROUGH THE NATURE OF DEPOSIT, WITHDRAWALS AN D WITHOUT PROVIDING THE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HE NCE THE ADDITION SO MADE BY THE AO AND PARTLY CONFIRMED BY THE LD. CIT( A) IS BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE ADDITION MAY KINDLY BE DELETED IN FULL. 4. THE LD. AO AS WELL AS THE LD. CIT(A) BOTH FURTHE R HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN MAKING T HE ADDITION TO THE EXTENT OF RS. 4,58,068/- THROUGH CREDIT CARDS HAS B EEN MADE FROM THE SAME BANK ACCOUNT, WHERE THE AO HAS ALREADY MADE TH E ADDITION OF RS. 32,71,851/- ON ACCOUNT OF DEPOSIT IN THAT BANK ACCOUNT. HENCE THE ADDITION TO THE EXTENT OF RS. 4,58,068/- SO MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) IS BEING TOTALLY CONTRA RY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE ADDITI ON MAY KINDLY BE DELETED IN FULL. 5. FURTHER ALTERNATIVELY AND WITHOUT PREJUDICE TO T HE ABOVE GROUNDS OF APPEAL IT IS ALSO PRAYED THAT IF ADDITION OF GOA2 I S SUSTAINED THEN THE SETOFF OF THE ADDITION OF GOA 3 IF ANY SUSTAINED MA Y KINDLY ALLOWED. 6. THE LD. AO ERRED IN LAW AS WELL AS ON THE FACTS ON THE CASE IN CHARGING OF INTEREST U/S 234B, 234C, 234D AS CONSEQUENTIAL I N NATURE. THE APPELLANT TOTALLY DENIES IT LIABILITY OF CHARGING O F ANY SUCH INTEREST. HENCE THE INTEREST SO CHARGED, BEING CONTRARY TO TH E PROVISIONS OF LAW AND FACTS, MAY KINDLY BE DELETED IN FULL. 7. THE APPELLANT PRAYS YOUR HONORS INDULGENCE TO AD D, AMEND OR ALTER ALL OR ANY OF THE GROUNDS OF THE APPEAL ON OR BEFORE TH E DATE OF HEARING. 6 ITA NOS. 227 & 484/JP/2015 & C.O. NO. 36/JP/2015. SHRI ABDUL SAMI, JAIPUR. 11. APROPOS TO GROUNDS NO. 1.1 TO 1.3 ARE AGAINST REOPENING OF THE ASSESSMENT. 11.1 LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT TH E REOPENING IS NOT JUSTIFIED AS THE ASSESSEE WAS NOT PROVIDED THE REASONS. 11.2 ON THE CONTRARY, LD. D/R SUBMITTED THAT THE AS SESSEE FAILED TO APPEAR BEFORE THE ASSESSING OFFICER DESPITE HAVING GIVEN VARIOUS OPPORTUNITIES. 11.3 WE HAVE HEARD THE RIVAL CONTENTIONS; WE FIND T HAT THE ASSESSING OFFICER HAS RECORDED THAT DESPITE VARIOUS OPPORTUNITIES NO ONE APPEARED. UNDER THESE FACTS GROUNDS RAISED AGAINST REOPENING OF THE ASSESSING O FFICER ARE DEVOID OF ANY MERIT. THEREFORE, GROUNDS NOS. 1.1 TO 1.3 OF THE CROSS OBJ ECTION ARE DISMISSED. 12. GROUND NO. 2 AND 4 OF THE CROSS OBJECTION ARE INTER-CONNECTED AND AGA INST CONFIRMING THE ADDITION OF RS. 4,58,068/-. 12.1 LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, S UBMITTED THAT BY MAKING SUCH ADDITION IN RESPECT OF THE EXPENDITURE MADE FOR PAY MENTS OF BILLS HAS RESULTED INTO DOUBLE ADDITION. IT IS NOT PERMISSIBLE UNDER THE LA W. 12.2 ON THE CONTRARY, LD. D/R SUPPORTED THE ORDER O F THE AUTHORITIES BELOW. 12.3 WE HAVE HEARD THE RIVAL CONTENTIONS. AFTER CON SIDERING THE TOTALITY OF THE FACT AND THE MATERIAL AVAILABLE ON RECORD, WE ARE OF THE VIEW THAT CLAIM OF THE ASSESSEE THAT THE EXPENDITURE IS MADE OUT OF THE SAME AMOUNT WHICH HAS BEEN TAXED BY THE ASSESSING AUTHORITIES, NEEDS VERIFICATION AT THE EN D OF AO. ACCORDINGLY, WE SET ASIDE THIS ISSUE TO THE FILE OF ASSESSING OFFICER FOR VER IFICATION AND DECISION AFRESH. 7 ITA NOS. 227 & 484/JP/2015 & C.O. NO. 36/JP/2015. SHRI ABDUL SAMI, JAIPUR. THEREFORE, GROUND NO. 2 AND 4 OF THE CROSS OBJECTION ARE RESTORED TO THE ASSESSING OFFICER FOR FRESH DECISION. 13. GROUND NO. 3 IS AGAINST SUSTAINING THE ADDITION OF RS. 3,12,476 /- BY APPLYING THE PEAK CREDIT. 13.1 LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT LD . CIT(A) WAS NOT JUSTIFIED. 13.2 ON THE CONTRARY, LD. D/R SUPPORTED THE ORDER O F THE ASSESSING OFFICER. 13.3 WE HAVE HEARD THE RIVAL CONTENTIONS. IN REVEN UES APPEAL, WE HAVE AFFIRMED THE ACTION OF THE LD. CIT(A) FOR APPLYING THE PEAK THEORY. THEREFORE, FOR THE SAME REASONING THIS GROUND OF CROSS OBJECTION IS DISMISS ED. 14. GROUND NO. 5 IS AN ALTERNATIVE PRAYER IN RESPECT OF GROUND NO. 2 TO 4. SINCE WE HAVE ALREADY REMITTED THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION. THIS GROUND HAS BECAME INFRUCTUOUS, AND SAME IS DISMISSED BEING INFRUCTUOUS. 15. GROUND NO. 6 IS IN RESPECT OF CHARGING OF INTEREST U/S 234B, 234 C, & 234D SINCE THE CHARGING OF INTEREST IS IN CONSEQUENTIAL IN NATURE. THIS GROUND IS ACCORDINGLY DISMISSED. 16. GROUND NO. 7 , IS GENERAL IN NATURE AND NEEDS NO SEPARATE ADJUDI CATION. 17. IN THE RESULT, CROSS OBJECTION OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 18. NOW, WE TAKE UP ASSESSEES APPEAL IN ITA NO. 484/JP/2015 PERTAINING TO THE A.Y. 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL:- 8 ITA NOS. 227 & 484/JP/2015 & C.O. NO. 36/JP/2015. SHRI ABDUL SAMI, JAIPUR. 1.1 THE IMPUGNED PENALTY ORDER U/S 271(1)(C) DATED 21.01.2014 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICT ION AND VARIOUS OTHER REASONS AND HENCE THE SAME MAY KINDLY BE QUASHED. 1.2 THE LD. AO FURTHER ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN PASSING THE EXPARTY ORDER U/S 271(1)(C) WITHOUT AFF ORDING ADEQUATE AND REASONABLE OPPORTUNITY THE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE IMPUGNED ORDER HAVING BEEN FRAMED IN GROSS BREACH OF NATURAL JUSTICE, WHICH WAS TOTALLY CONTRARY TO THE PROVISION OF LAW AND FACTS OF THE CASE, HENCE, THE ORDER OF THE AO MAY K INDLY BE QUASHED. 2. RS. 2,49,970/- : THE LD. CIT(A) HAS GROSSLY ERR ED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN SUSTAINING THE PENALTY OF RS. 2,49,970/- OUT OF RS. 12,10,017 IMPOSED U/S 271(1)(C) BY THE LD. AO. HENCE THE PENALTY SO IMPOSED BY THE LD. AO AND CONFIRMED BY THE LD. C IT(A) IS BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE ADDITION MAY KINDLY BE DELETED IN FULL. 3. THE APPELLANT PRAYS YOUR HONORS INDULGENCE TO ADD, AMEND OR ALTER ALL OR ANY OF THE GROUNDS OF THE APPEAL ON OR BEFORE TH E DATE OF HEARING. 19. BRIEFLY, STATED THE FACTS ARE THAT, THE ASSESSI NG OFFICER WHILE MAKING THE ASSESSMENT IN CITS PENALTY PROCEEDINGS U/S 271(1)( C) AND SUBSEQUENTLY THE PENALTY ORDER U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT) WAS PASSED VIDE ORDER DATED 21/01/2014, WHILE IMPOS ING THE PENALTY OF RS. 12,10,017. ON APPEAL, LD. CIT(A) REDUCED THE PENAL TY. 20. NOW, THE ASSESSEE IS IN FURTHER APPEAL. 21. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE PENALTY. 21.1 ON THE CONTRARY, LD. D/R SUPPORTED THE ORDER O F THE ASSESSING OFFICER. 21.2 WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED T HE MATERIAL AVAILABLE ON RECORD. WE FIND THAT LD. CIT(A) DECIDED THIS ISSUE D BY OBSERVING AS UNDER:- 9 ITA NOS. 227 & 484/JP/2015 & C.O. NO. 36/JP/2015. SHRI ABDUL SAMI, JAIPUR. 4.3 I HAVE CAREFULLY CONSIDERED THE FINDINGS OF THE AO AS ALSO SUBMISSION OF THE APPELLANT. IT MAY BE NOTED THAT THE AO HAS MAD E ADDITION OF RS. 458068/- ON ACCOUNT OF EXPENDITURE INCURRED/PAYMENT MADE THROUGH CREDIT CARD AND ANOTHER ADDITION OF RS. 3271851/- WAS MADE ON ACCOUNT OF DEPOSITS MADE IN THE BANK ACCOUNT. IT MAY FURTHER BE NOTED THAT AGAINST THE ASSESSMENT ORDER THE APPELLANT HAS FILED APPEAL BEF ORE THE CIT(A)-3 JAIPUR WHICH WAS DECIDED VIDE APPEAL NO. 472/JP/2013-14, O RDER DATED 24.12.2014 AND THE ADDITION OF RS. 458068/- WAS CONFIRMED, WHE RE AS ANOTHER ADDITION OF RS. 3271851/- WAS RESTRICTED TO RS. 312476/- AND RE MAINING ADDITION OF RS. 2959375/- WAS DELETED. ACCORDINGLY, AS AGAINST THE TOTAL ADDITION OF RS. 3729920/- THE ADDITION TO THE EXTENT OF RS. 770544/ - (458068 + 312476) WAS ONLY CONFIRMED. THE APPELLANT CASED IS THAT THE DE POSITS MADE IN THE BANK ACCOUNT WERE FROM THE STOCK BUSINESS OF HIS FATHER AND THAT SUCH EXPLANATION SHOULD HAVE BEEN ACCEPTED. IT WAS ALSO STATED THAT THE AMOUNT OF RS. 458068/- WAS ALSO PART OF THE BANK ACCOUNT AND THAT TAXING OF SUCH AMOUNT TENTAMOUNTED TO DOUBLE TAXATION. ALTERNATIVELY IT WAS ALSO CLAIMED THAT IN ANY CASE WHEN THE PART OF THE ADDITION HAS BEEN DELETED BY THE FIRST APPELLANT AUTHORITY THEN PENALTY SHOULD HAVE BEEN IMPOSED ONL Y TO THE AMOUNT OF RS. 770544/- AND NOT ON THE FULL AMOUNT OF ADDITION OF RS. 3729920/-. THE APPELLANT HAS ALSO RELIED ON VARIOUS CASE LAWS CONT ENDING THAT FINDINGS GIVEN IN THE ASSESSMENT PROCEEDINGS CANNOT BE THE SOLE BA SIS FOR IMPOSITION OF PENALTY AND THAT FOR IMPOSITION OF PENALTY THERE SH OULD BE CONSCIOUS CONCEALMENT OF INCOME. ON CAREFUL CONSIDERATION OF ALL RELEVANT FACTS IT MAYBE NOTED THAT PENALTY U/S 271(1)(C) OF IT ACT CA N BE IMPOSED EITHER WHEN THERE WAS ANY CONCEALMENT OF INCOME OR WHEN THERE W AS ANY FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN THE APPELLANT CASE IT MAY BE NOTED THAT THE ASSESSEE HAS INCURRED IN UNACCOUNTED MANNER WIT HOUT ANY PROPER SOURCES. ACCORDINGLY, SUCH UNDISCLOSED EXPENDITURE DEFINITELY REPRESENTED CONCEALMENT OF INCOME. AS REGARDS THE OTHER ADDITI ON OF RS. 3271850/-. THE ASSESSEE HAD DEPOSITED SUCH AMOUNT IN THE BANK ACCO UNT. IN THE BANK 10 ITA NOS. 227 & 484/JP/2015 & C.O. NO. 36/JP/2015. SHRI ABDUL SAMI, JAIPUR. ACCOUNT THERE WERE DEPOSITS AS WELL AS WITHDRAWALS FROM TIME TO TIME AND ACCORDINGLY THE FIRST APPELLATE AUTHORITY APPLYING THE CONCEPT OF PEAK THEORY, HELD THAT THE AMOUNT TO THE EXTENT OF RS. 312476/- WAS TO BE TREATED AS UNEXPLAINED DEPOSITS. IN THIS MANNER THE AMOUNT OF RS. 312476/- ALSO REPRESENTED CONCEALED INCOME IN AS MUCH S NO PROPER SOURCE OF SUCH AMOUNT WAS AVAILABLE WITH THE APPELLANT. IN THIS BACKGROU ND IT MAY BE NOTED THAT THROUGH THE AO HAS IMPOSED THE PENALTY ON THE TOTAL AMOUNT OF ADDITION OF RS. 3729920/- BUT WITH THE DECISION OF THE FIRST AP PELLANT AUTHORITY THE CONCEALED INCOME REMAINED TO THE EXTENT OF RS. 7705 44/-. THEREFORE, THE CONTENTION OF THE ASSESSEE THAT IN ANY CASE PENALTY U/S 271(1)(C) IS TO BE LEVIED ONLY ON THE AMOUNT OF RS. 770544/- CAN BE AC CEPTED. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES DISCUSSED ABOVE IT IS H ELD THAT THE ASSESSEE HAS CONCEALED ITS INCOME FOR RS. 770544/- AND ON SUCH A MOUNT PENALTY U/S 271(1)(C) OF IT ACT WAS LEVIABLE. ACCORDINGLY, PEN ALTY TO THE EXTENT OF RS. 2,49,970/- (1210017/ 3729920 X 770544) IS CONFIRMED . THE APPELLANT GET RELIED OF RS. 9,60,047/-. (1210017-249970). THE GRO UND OF APPEAL IS PARTLY ALLOWED. 21.3 AFTER CONSIDERING THE TOTALITY OF THE FACT AND THE FINDING OF THE LD. CIT(A). THE PENALTY IN RESPECT OF PEAK DEPOSITS HAVE BEEN R IGHTLY MADE BY THE LD. CIT(A) SAME IS HEREBY SUSTAINED. IN THE QUANTUM APPEAL, W E HAVE AFFIRMED THE VIEW OF LD. CIT(A) IN RESPECT OF THE ADDITION RELATED TO PAYMEN T THROUGH CREDIT CARDS, THE ISSUE IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FO R FRESH DECISION. THEREFORE, ON THAT AMOUNT PENALTY CANNOT BE SUSTAINED. ACCORDINGLY, T HE ASSESSING OFFICER IS DIRECTED TO DELETE THE PENALTY LEVIED ON RS. 4,58,068/-. TH US, GROUNDS OF THE ASSESSEES APPEAL ARE PARTLY ALLOWED. 11 ITA NOS. 227 & 484/JP/2015 & C.O. NO. 36/JP/2015. SHRI ABDUL SAMI, JAIPUR. 22. IN THE COMBINED RESULT, APPEAL OF THE REVENUE I N ITA NO. 227/JP/2015 IS DISMISSED AND APPEAL OF THE ASSESSEE IN ITA NO. 484 /JP/2015 IS PARTLY ALLOWED WHEREAS CROSS OBJECTION NO. 36/JP/2015 OF THE ASSES SEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES, IN THE TERMS INDICATED HEREIN ABOVE. ORDER IS PRONOUNCED IN THE OPEN COURT ON THURSDAY, THE 28 TH DAY OF SEPTEMBER 2017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED: 28/09/2017 POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- INCOME TAX OFFICER, WARD-7(4), JAIPUR. 2. THE RESPONDENT SHRI ABDUL SAMI, JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NOS. 227 & 484/JP/2015 & C.O. NO . 36/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR