Shri Jatin M. Shah, Ahmedabad V. The Income Tax Officer, Ward-5(3)(4), Ahmedabad

ITA 500/AHD/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1142 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2013-2014
• Appeal Filed On: 28-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: PF JAIN
• Keywords: Business income; Peak credit; Agreed addition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NO.500/AHD/2017 (ASSESSMENT YEAR : 2013-14) SHRI JATIN M. SHAH SHREE KRISHNA CARGO M-7, SHREE GHATAKARAN MAHAVIR MARKET NEW DLOTH MARKET,AHMEDABAD-380002 VS. THE INCOME TAX OFFICER WARD-5(3)(4) NARAYAN CHAMERS ASHRAM ROAD,AHMEDABAD [PAN NO.APZPS 2196 H ] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI P.F. JAIN, AR RESPONDENT BY : SHRI ALOK KUMAR, SR.DR DATE OF HEARING 02/07/2018 DATE OF PRONOUNCEMENT 17/09/2018 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL HAS BEEN FILED BY THE ASSESSEE BEFORE US AGAINST THE ORDER DATED 20.01.2017 PASSED BY THE COMMISSIONER OF INCO ME TAX(APPEALS)-AHMEDABAD-5 [LD.CIT(A) IN SHORT] FOR ASSESSMENT YEAR (AY) 2013 -14 ARISING OUT OF THE ORDER DATED 15.03.2016 PASSED BY THE ITO, WARD-5(3)(4), AHMEDA BAD. 2. THE ASSESSEE HAS CHALLENGED THE ORDER PASSED BY THE LD. CIT(A) IN UPHOLDING THE ADDITION OF RS.5,49,900/- IN THE BANK ACCOUNT AS C ONCEALED INCOME WITHOUT APPRECIATING THE SUBMISSION MADE BY THE ASSESSEE FURTHER OBSERVI NG THAT THE ASSESSEE HAS AGREED FOR SUCH ADDITION AND/OR DISALLOWANCE AS ALLEGED. THE INTEREST U/S.234B OF THE ACT AS LEVIED BY THE AUTHORITIES BELOW HAS ALSO BEEN CHALLENGED I N THE PRESENT FACTS AND CIRCUMSTANCES OF THE CASE. - 2 - ITA NO.500/AHD/2017 SHREE KRISHNA CARGO VS. ITO ASST.YEAR 2013-14 3. THE BRIEF FACTS LEADING TO THE CASE IS THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 30.09.2013 DECLARING TOTAL INCOME AT RS.3,56,490/- WHICH WAS PROCESSED U/S.143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO A S 'THE ACT'). HOWEVER, A NOTICE U/S.143(2) OF THE ACT ON SCRUTINY WAS ISSUED ON 26. 09.2014 UPON THE ASSESSEE. SUBSEQUENTLY, IN RESPONSE TO THE DETAILED QUESTIONN AIRE DATED 03.03.2016, THE ASSESSEE REPRESENTED BEFORE THE ASSESSING OFFICER (AO) ALON G WITH DETAILED DOCUMENTS. THE ASSESSEE HAS SHOWN INCOME FROM PARTNERSHIP AS WELL AS OTHER SOURCES. UPON VERIFICATION STATEMENT OF INDUSIND BANK IT REVEALS THAT THE ASSE SSEE HAS MADE SUBSTANTIAL CASH DEPOSIT IN THE SAID ACCOUNT. THE STATEMENT FURNISHED BY TH E ASSESSEE SHOWS DEPOSITS OF RS.7,02,700/- OUT OF WHICH PEAK AMOUNT IS RS.5,49,9 00/-. ON 11.03.2016, THE ASSESSEE OFFERED THE SAID AMOUNT OF RS.5,49,900/- FOR TAXAT ION AS UNEXPLAINED. THE AO THUS ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE AS INCOME FROM UNDISCLOSED SOURCE AGAINST WHICH THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A), BUT WITHOUT SUCCESS. 4. THE ADVOCATE APPEARING FOR THE ASSESSEE CONTENDE D BEFORE US THAT THE DEPOSITS MADE BY THE ASSESSEE WAS RS.7,02,700/- WITH THE IND US IND BANK AND THE WITHDRAWALS ARE RS.3,07,600/-. IN THE AY 2012-13, A SUM OF RS.13 ,10,400/- WAS DEPOSITED IN THE BANK. THE AMOUNT OF RS.5,49,900/- COMPUTED AS PEAK CREDIT SHOULD BE TREATED IN THIS YEAR AS EXPLAINED FROM THE ADDITION OF RS.13,10,400/- MADE IN THE AY 2012-13 PARTICULARLY WHEN SUCH ADDITION HAS BEEN CONFIRMED BY THE LD.CIT(A) O N 28.03.2015. ON THAT PREMISE, THE LD. REPRESENTATIVE OF THE ASSESSEE PRAYED FOR DELET ION OF ADDITION OF RS.5,49,900/-. 5. ON THE OTHER HAND, LD. REPRESENTATIVE OF THE DEP ARTMENT RELIES UPON THE ORDERS PASSED BY THE AUTHORITIES BELOW. 6. WE HAVE HEARD THE LD. REPRESENTATIVES OF APPEARI NG FOR THE PARTIES AND WE HAVE PERUSED THE RELEVANT MATERIALS ON RECORD. WE FIND FROM THE ORDER PASSED BY THE LD. CIT(A) THAT WHILE DISMISSING THE APPEAL, THE LD. CI T(A) RELIED UPON THE JUDGEMENT OF - 3 - ITA NO.500/AHD/2017 SHREE KRISHNA CARGO VS. ITO ASST.YEAR 2013-14 MAHESH B. SHAH VS. CIT 238 ITR 130 (KER.) AND RAMES H CHANDRA & CO. VS. CIT 168 ITR 375 (BOM.) WHEREIN IT WAS HELD THAT ONCE THE AP PELLANT HAS AGREED FOR SOME ADDITION BEFORE THE LD. AO, THEN THE APPELLANT DOES NOT HAVE ANY RIGHT TO PREFER ANY APPEAL BEFORE HIGHER FORUM AGAINST AGREED ADDITION UNLESS HE PROV ES THAT THE ADDITION WAS MADE UNDER THREAT OR COERCION. IN THE INSTANT CASE, SINCE NO SUCH STATEMENT TOWARDS AGREEMENT FOR ADDITION BY THE ASSESSEE WAS UNDER ANY THREAT OR CO ERCION IS ON RECORD, THE LD. CIT(A) DISMISSED THE SAME. 6.1. THE LD. ADVOCATE APPEARING FOR THE ASSESSEE RE LIED UPON THE JUDGEMENT PASSED BY THE COORDINATE BENCH OF THIS LD. TRIBUNAL IN ASSESS EES OWN CASE FOR AY 2011-12. THE JUDGEMENTS CITED BY THE ASSESSEE IN SUPPORT OF HIS CONTENTION FOR DELETION OF ADDITION HAS BEEN CONSIDERED BY US, THE RELEVANT PORTION WHEREOF IS AS FOLLOWS:- THERE IS NO DISPUTE THAT RS.39,00,300/- WAS FOUND TO BE DEPOSITED IN THE SAVINGS BANK ACCOUNT WITH INDUSIND BANK IN A.Y.2011-12 AND RS.13,10,400/- WAS FOUND TO BE DEPOSITED IN AY 2012-13. IT IS EQUALLY TRUE THA T THE EXPLANATION OF THE ASSESSEE IS WITHOUT ANY SUBSTANCE. HOWEVER, AT THE SAME TIM E, ON PERUSING THE LEDGER ACCOUNT OF INDUSIND BANK, WE FIND THAT WHENEVER THE CASH WAS DEPOSITED, IT WAS IMMEDIATELY TRANSFERRED TO M/S. SHRI KRISHNA CARGO. THEREFORE, THE CONTENTIONS THAT THE SAME FORMS PART OF THE BUSINESS RECEIPTS C ANNOT BE BRUSHED ASIDE LIGHTLY. THE ASSESSEE HAS NOT FURNISHED ANY DETAIL IN SUPPOR T OF ITS CLAIM OF BUSINESS RECEIPTS. IN OUR CONSIDERED OPINION AND CONSIDERIN G THE MANNER IN WHICH THE CASH WAS DEPOSITED AND TRANSMITTED TO THE FIRMS ACCOUNT, 50% OF THE CASH DEPOSITED SHOULD BE TREATED AS THE INCOME OF THE ASSESSEE. W E MODIFY THE FINDINGS OF THE LD. CIT(A) AND DIRECT THE A.O. TO TREAT 50% OF THE CASH DEPOSITED AS UNDISCLOSED INCOME OF THE ASSESSEE. 6.2. CONSIDERING THE SUBMISSIONS MADE BY THE LD. AR AND THE JUDGEMENT PASSED BY THE COORDINATE BENCH IN ASSESSEES OWN CASE FOR THE AYS 2011-12 & 2012-13(SUPRA), IN THE SIMILAR SET OF FACTS, WE RESPECTFULLY FOLLOW ING THE SAME, MODIFY THE LD. CIT(A)S - 4 - ITA NO.500/AHD/2017 SHREE KRISHNA CARGO VS. ITO ASST.YEAR 2013-14 ORDER AND DIRECT THE AO TO TREAT 50% OF CASH DEPOSI TED AS UNDISCLOSED INCOME OF THE ASSESSEE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 17 / 0 9 /201 8 SD/- SD/- ( PRADIP KUMAR KEDIA ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 17/ 09 /2018 .., . ../ T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-AHMEDABAD-5 5. !'# , $ , / DR, ITAT, AHMEDABAD 6. #() *+ / GUARD FILE. / BY ORDER, ! //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, / ITAT, AHMEDABAD 1. DATE OF DICTATION ..4.7.18 (DICTATION-PAD 11- P AGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 05.7.18 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.17.9.18 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 17.9.18 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER