ITO, Rohtak V. Smt. Raj Rani Arya, Rohtak

ITA 5295/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3719 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 02-06-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 26-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B KISHORE
• Assessee Lawyers: NAVEEN GUPTA
• Keywords: Unexplained cash credit; Unexplained expenditure; Peak credit
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI K.D. RANJAN ITA NO. 5295/DEL/2010 ASSESSMENT YEAR: 2003-04 INCOME-TAX OFFICER, VS. RAJ RANI ARYA, WARD 2, PECH PARAS RAM, ROHTAK. ANAJ MANDI, ROHTAK (PAN: AALPA5278M) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI B. KISHORE, SR.DR RESPONDENT BY: SHRI NAVEEN GUPTA, CA ORDER PER RAJPAL YADAV: JUDICIAL MEMBER PER RAJPAL YADAV: JUDICIAL MEMBER PER RAJPAL YADAV: JUDICIAL MEMBER PER RAJPAL YADAV: JUDICIAL MEMBER THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF LEARNED CIT(APPEALS) DATED 17.09.2010 PASSED FOR ASSESSMENT YEAR 2003-04. THE SOLITARY GRIEVANCE OF THE REVENUE IS THAT LEARNED C IT(APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS.18,33,676. 2. THE BRIEF FACTS OF THE CASE ARE THAT THIS IS THE SECOND ROUND OF LITIGATION UP TO THE LEVEL OF ITAT. AN ASSESSMENT ORDER WAS PA SSED UNDER SEC. 143(3) ON A TOTAL INCOME OF RS.62,45,900 VIDE ORDER DATED 30.3.2006. ASSESSING OFFICER HAS MADE THE FOLLOWING ADDITIONS: I) INCOME FROM PLYING OF TRUCKS RS.915467 II) UNEXPLAINED CREDITS IN BANK RS.1833676 2 III) UNEXPLAINED EXPENDITURE ON TRUCKS RS.3437163 3. DISSATISFIED WITH THE ACTION OF THE ASSESSING OF FICER, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEARNED CIT(APPEALS ) WHO PARTLY ALLOWED THE APPEAL. THE DEPARTMENT FILED THE SECOND APPEAL BEFO RE THE ITAT AND THE ITAT SET ASIDE THE ISSUE PERTAINING TO THE ADDITION OF RS.18,33,676. THE CASE OF THE ASSESSING OFFICER IS THAT ASSESSEE HAS TWO B ANK ACCOUNTS, ONE WITH THE SBI, KAROL BAGH, NEW DELHI AND THE SECOND WITH SBI, ROHTAK ROAD, DELHI. ASSESSING OFFICER FOUND DEPOSITS ON VARIOUS DATES I N THESE TWO ACCOUNTS. HE WAS OF THE OPINION THAT ASSESSEE FAILED TO EXPLAIN THE DEPOSIT IN THE BANK ACCOUNT, THEREFORE, HE MADE AN ADDITION OF RS.18,33 ,676. 4. DISSATISFIED WITH THE ADDITION, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEARNED CIT(APPEALS). SHE SUBMITTED THAT SHE EARNED THE INCOME BY PLYING TRUCKS ON HIRE. HER CASE IS COVERED UNDER SEC. 44AE AND SHE DOES NOT MAINTAIN BOOKS OF ACCOUNT ON DAY TO DAY BASIS. SHE HAD DEPOSITED A SUM OF RS.6 LACS WITH SBI, KAROL BAGH, NEW DELHI AND RS .7,49,000 WITH SBI, ROHTAK ROAD, DELHI. THUS, A TOTAL SUM OF RS.13,49,0 00 WAS DEPOSITED BY THE ASSESSEE. THERE ARE WITHDRAWALS OF RS.33,49,000 FRO M BOTH THE ACCOUNTS. SHE SUBMITTED THAT HER TOTAL TURNOVER AFTER DEDUCTING T DS IS RS.61,28,224. SHE HAS DEPOSITED RS.60,31,480 IN THE BANKS. WHENEVER S HE NEEDS CASH TO MAKE 3 PAYMENTS TO THE TRUCK DRIVERS FOR DIESEL, TYRE-TUBE S AND SALARY ETC., CASH WAS WITHDRAWN FROM THE BANK ACCOUNT AND WHENEVER EXCESS CASH REMAINED WITH THE ASSESSEE, IT IS DEPOSITED IN THE BANK ACCOUNTS. LEARNED CIT(APPEALS) APPRECIATED THE SUBMISSIONS MADE BY THE ASSESSEE AN D ARRIVED AT A CONCLUSION THAT TOTAL WITHDRAWALS ARE MORE THAN THE DEPOSITS. HER TURNOVER IS MORE THAN THE TOTAL WITHDRAWALS AS WELL AS THE DEPO SITS. IT IS THE CIRCULATION OF SAME MONEY IN THE BANKS. THE MONEY RECEIVED AS A TRANSPORT RECEIPT WAS DEPOSITED IN THE BANK AND WHENEVER SHE REQUIRED THE MONEY FOR BUSINESS PURPOSE, IT WAS WITHDRAWN. IT CANNOT BE A CASE OF U NEXPLAINED DEPOSITS IN THE BANK. LEARNED CIT(APPEALS) HAS ALSO EXAMINED THE QU ESTION WITH THE ANGLE OF PEAK CREDITS THEORY I.E. AT ANY STAGE EITHER ASS ESSEE HAS HIGHEST DEPOSIT IN THE YEAR WITHOUT ANY WITHDRAWAL FROM THE BANKS. HE OBSERVED THAT PEAK IS 1.5 LACS RUPEES ON 27.5.2002 FROM THE BANK ACCOUNT AND ASSESSEE HAS CASH WITHDRAWALS OF MORE THAN THIS AMOUNT. THE FINDINGS RECORDED BY THE LEARNED CIT(APPEALS) READ AS UNDER: 4. I HAVE CONSIDERED THE ISSUES AND THE SUBMISSION S MADE BY THE AR. IN THE ASSESSMENT ORDER, IT IS SEEN THAT THE A. O. MADE ADDITION OF RS.18,33,676 TOWARDS UNEXPLAINED DEPOSITS WITH BANK ACCOUNTS WITHOUT PROPERLY VERIFYING THE FACTS. THE TOTAL OF THE CASH DEPOSITS IN THE BANK ACCOUNTS, AS MENTIONED IN A TABLE IN PARA 2.5 OF THE ASSESSMENT ORDER, DOES NOT COME TO THE SAID AMOUNT. AS THE TOTAL DEPOSITS IN THE BANK ACCOUNTS ARE LESS THAN THE TUR NOVER OF THE ASSESSEE 4 AS PER THE TDS CERTIFICATES AND FURTHER AS THE TOTA L CASH DEPOSITS OF RS.13.49 LACS ARE MUCH MORE THAN THE TOTAL CASH WIT HDRAWALS OF RS.33.46 LACS, THE CASH DEPOSITS IN THE BANK ACCOUN TS OF THE ASSESSEE STANDS EXPLAINED IN VIEW OF THE FACTS AND CIRCUMSTA NCES OF THE CASE. FURTHER, EVEN THE PEAK CREDIT OF RS.1.5 LACS STANDS EXPLAINED FROM THE CASH WITHDRAWALS MADE EARLIER. IN VIEW OF THE ABOVE , THE ADDITION MADE BY THE A.O. OF RS.18,33,676 IS ORDERED TO BE D ELETED. 5. WITH THE ASSISTANCE OF LEARNED REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. LEARNED FIRST APPELLATE AUTH ORITY HAS RECORDED A FINDING OF FACT. IT IS A MATTER OF FACT ON THE RECORD THAT A MOUNTS REFERRED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER IN A TABU LAR FORM DOES NOT COME OUT TO RS.18,33,676. HE HAS NOT EXAMINED THE FACTS IN A N ANALYTICAL WAY. WE COULD UNDERSTAND THE CASE OF A.O. IF CASH DEPOSIT W AS MORE THAN THE WITHDRAWALS MADE BY THE ASSESSEE OR EXCEEDS TOTAL C OLLECTION OF THE YEAR FROM PLYING TRUCKS. CONSIDERING THE FINDINGS OF THE LEARNED CIT(APPEALS), WE DO NOT SEE ANY REASON TO INTERFERE IN THE ORDER OF THE LEARNED FIRST APPELLATE AUTHORITY. THE APPEAL OF THE REVENUE IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 10.06.2011 SD/- SD/- ( K.D. RANJAN ) ( RA JPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:10/06/2011 5 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR