Hemant Tulsidas Patel, Aurangabad V. Income tax Officer, Aurangabad

ITA 496/PUN/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4901 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 15-01-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 28-02-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Peak credit
• Section: 143(1)

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , BEFORE MS. SUSHMA CHOWLA, JM . / ITA NO. 496 /P U N/201 7 / ASSESSM ENT YEAR : 20 1 0 - 1 1 HEMANT TULSIDAS PATEL 26, VIDYANIKETAN COLONY, JALNA ROAD, AURANGABAD 431005 . / APPELLANT PAN: ATXPP9573H VS. THE INCOME TAX OFFICER , WARD 2(2), AURANGABAD . / RESPONDENT / APPEL LANT BY : NONE / RESPONDENT BY : S HRI RAJESH GAWALI / DATE OF HEARING : 1 5 . 0 1 .201 9 / DATE OF PRONOUNCEMENT: 08 . 0 2 .201 9 / ORDER PER SUSHMA CHOWLA, J M : TH E APPEAL FILED BY ASSESSEE IS AGAINST THE ORDER OF CIT (A) - 2 , AURANGABAD , DATED 2 1 . 12 .20 1 6 RELATING TO ASSESSMENT YEAR 20 1 0 - 1 1 AGAINST ORDER PASSED UNDER SECTION 14 3(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. TH E ASSESSEE HAD FILED HIS IT RETURN BY SHOWING THE TAXABLE INCOME OF RS.103,428/ - AS SALARY & OTHER INCOME AS ON 02.08.2010. 2. THE CASE IS SELECTED FOR THE SCRUTINY ASSESSMENT U/S 143(1) UNDER CASS AND NOTICE PROPERLY SERVED TO THE ASSESSEE. THE SCRUTINY ASSESSMENT COMPLETED AFTER MAKING ADDITION WHICH WAS NULL AND VOID. ITA NO. 496 /P U N/20 1 7 HEMANT T. PATEL 2 3. HBLE SIR, IN REPLY TO THE NOTICE, ASSESSEE PREPARED THE CASH FLOW STATEMENT AND REQUESTED TO MAKE ADDITION OF RS.280,000/ - WHICH WAS PEAK CREDIT AS PER THE CALCULATION OF THE CASH FLO W FOR THE PEACE OF MIND AND REQUEST TO COMPLETE THE ASSESSMENT. 4. BUT, THE LEARNED AO DISALLOWED THE CLAIM OF PEAK CREDIT ON THE BASIS OF THAT ALL CASH UTILIZED FOR THE SHARE TRANSACTION. BUT, AS PER THE STATEMENT IT IS CLEAR THAT THERE IS PEAK CREDIT A ND SAME MAY CONSIDERED. 5. SO, IT IS HUMBLE REQUEST TO CONSIDER THE SAME AND ALLOW THE CLAIM TO THAT EXTENT OF PEAK CREDIT AND OBLIGED. 3. THE APPEAL WAS FIXED FOR HEARING AND NOTICE WAS SERVED THROUGH REGISTERED POST WITH ACK. DUE ON VARIOUS DATES AND E VEN THE ACKNOWLEDGEMENT OF SERVICE IS AVAILABLE ON RECORD, BUT NONE HAS APPEARED ON ANY OF THE DATES FIXED FOR HEARING. HENCE THE APPEAL IS HEARD EX - PARTE. 4. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST ADDITION MADE OF 2,80,000/ - . THE ASSESSEE WAS SALARIED EMPLOYEE AND THE CASE OF ASSESSEE WAS SELECTED FOR SCRUTINY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD INVESTED 16,79,249/ - IN SHARE TRANSACTIONS OUT OF CASH D EPOSITS OF 15,97,500/ - . THE ASSESSING OFFICER SOUGHT EXPLANATION OF SOURCE OF SAID DEPOSITS . THE ASSESSEE EXPRESSED HIS INABILITY TO EXPLAIN THE SAME. HOWEVER, HE REQUESTED TO CONSIDER PEAK CREDIT OF ABOVE DEPOSITS. THE ASSESSING OFFICER NOTED THAT P EAK CREDITS COULD NOT BE CONSIDERED , AS THERE WERE NO CASH WITHDRAWALS FROM THE BANK ACCOUNT OF THE ASSESSEE, WHICH WERE DEPOSITED IN BANK ACCOUNT IN CASH ; AMOUNT WAS UTILIZED FOR PURCHASE OF SHARES, HENCE ADDITION OF 15,97,500/ - . 5. THE CIT(A) NOTES THAT THE ASSESSEE HAS FAILED TO FURNISH ANY CASH FLOW OR PROOF OF ANY LOAN ALLEGEDLY TAKEN FROM HIS FATHER AND HIS BROTHER AND THEIR IDENTITY & CREDITWORTHINESS OF THE PERSON, WAS NOT PROVED AND AS THERE WAS NO CASH WITHDRAWALS FROM THE BANK, THEORY OF PEA K CREDIT WAS NOT ACCEPTED AND ADDITION OF 15,97,500/ - WAS CONFIRMED IN THE HANDS OF ASSESSEE. ITA NO. 496 /P U N/20 1 7 HEMANT T. PATEL 3 6. DESPITE SEVERAL NOTICES GIVEN TO THE ASSESSEE, NONE APPEARED ON BEHALF OF ASSESSEE NOR ANY APPLICATION WAS MOVED FOR ADJOURNMENT. THE SERVICE OF NOTICE IS ALSO DONE UPON THE ASSESSEE AS THE ACKNOWLE DGEMENT CARDS ARE AVAILABLE ON RECORD. 7. IN SUCH CIRCUMSTANCES, THE ORDER IS PASSED EX - PARTE THE ASSESSEE. THE ASSESSEE HAS FAILED TO PROVE THE THEORY OF PEAK CREDIT AND IN THE ABSENCE OF THE SAME, WHERE AGAINST CASH DEPOSITS THERE ARE NO CASH WITHDRA WALS, SUCH PEAK CREDIT THEORY CANNOT BE ACCEPTED AND HENCE, THE ADDITION OF 15,97,500/ - IS UPHELD. THE GROUNDS OF APPEAL RAISED BY ASSESSEE ARE THUS, DISMISSED. 8 . IN THE RESULT, APPEAL OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THIS 8 TH DAY OF FEBR UARY , 201 9 . SD/ - (SUSHMA CHOWLA) / JUDICIAL MEMBER / PUNE ; DATED : 8 TH FEBR UARY , 201 9 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 2 , AURANGABAD ; 4. THE PR. CIT - 2 , AURANGABAD ; 5. 6. , , , - / DR SMC , ITAT, PUNE; / G UARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE