MAHENDRA N RAJU, MUMBAI V. DCIT 25(3), MUMBAI

ITA 5466/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7809 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 28-08-2014
• Court: TRIBUNAL
• Department Lawyers: MRS JYOTILAKSHMI NAYAK
• Assessee Lawyers: AJAY R SINGH
• Keywords: Peak credit
• Section: 69

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI RAVISH SOOD (JM) I.T.A. NO. 5466 /MUM/ 2014 (ASSESSMENT YEAR 20 10 - 11 ) SHRI MAHENDRA N. RAJU B - 107, SAI CHHAYA JUNE ASHOK NAGAR AKURLI ROAD KANDIVLI (EAST) MUMBAI - 40 0 101. VS. DCIT 25(3) MUMBAI. ( APPELLANT ) ( RESPONDENT ) PAN NO . AAHPR6420Q ASSESSEE BY SHRI AJAY R. SINGH DEPARTMENT BY MRS. JYOTILAKSHMI NAYAK DATE OF HEARING 23 .3 . 201 7 DATE OF PRONOUNCEMENT 23 .3 . 201 7 O R D E R PER B.R. BASKARAN (A M) : - THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 12.5.2014 AND 28.7.2014 PASSED BY THE LEARNED CIT(A) - 35, MUMBAI AND IT RELATES TO A.Y. 2010 - 11. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF THE LEARNED CIT(A) IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER U/S. 69 OF THE ACT TO THE EXTENT OF ` 17,79,826/ - . 2. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE IS AN INDIVIDUAL AND PROPRIETOR OF THREE CONCERNS NAMELY M/S. GLOBAL WORLD, M/S. SAIBABA CONSTRUCTI ON AND M/S. S.B. ENTERPRISES. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF UNDERTAKING CONSTRUCTION WORK S . THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS MADE CASH DEPOSITS INTO THREE BANK ACCOUNTS MAINTAINED WITH ICICI BANK LTD., BANK OF BARODA AND SYN DICATE BANK. THE AGGREGATE AMOUNT OF DEPOSITS MADE INTO THESE BANK ACCOUNTS DURING THE YEAR UNDER CONSIDERATION WAS ` 46,26,000/ - . THE ASSESSEE EXPLAINED THAT THE CASH SHRI MAHENDRA N. RAJU 2 WITHDRAWALS MADE FROM THESE BANK ACCOUNTS AND ALSO FROM ICICI OD ACCOUNT HAVE BEEN UTILI SED FOR MAKING THESE DEPOSITS. HE ALSO EXPLAINED THAT THE OPENING CASH BALANCE OF ` 92,653/ - WAS ALSO USED FOR MAKING THESE DEPOSITS. THE ASSESSING OFFICER DID NOT ACCEPT THE EXPLANATION S OF THE ASSESSEE AND ACCORDINGLY ASSESSED ` 46,26,000/ - AS INCOME OF THE ASSESSEE U/S. 69 OF THE ACT. THE LEARNED CIT(A) GRANTED RELIEF IN RESPECT OF THE WITHDRAWALS MADE FROM ICICI BANK LTD., BANK OF BARODA AND SYNDICATE BANK AND ACCORDINGLY, CONFIRMED THE ADDITION TO THE EXTENT OF ` 17,79,826/ - . STILL AG G RIEVED, THE ASSES SEE HAS FILED THIS APPEAL BEFORE US. 3. LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS ALSO WITHDRAWN CASH FROM ICICI OD ACCOUNT TO THE TUNE OF ` 1,85,000/ - AND FURTHER THE ASSESSEE WAS POSSESSING OPENING CASH BALANCE OF ` 92,6 59/ - . HE SUBMITTED THAT THE LEARNED CIT(A) HAS OMITTED TO GIVE CREDIT FO R THESE AMOUNTS. LEARNED AR FURTHER SUBMITTED THAT THE ASSESSING OFFICER MADE IDENTICAL ADDITION IN THE IMMEDIATELY PRECEDING YEAR ALSO, BUT THE LEARNED CIT(A) HAS RESTRICTED THE ADDIT ION TO THE EXTENT OF PEAK CREDIT BALANCE. LEARNED AR SUBMITTED THAT THE ASSESSEE MAY BE GIVEN CREDIT FOR THE AMOUNT ASSESSED IN THE IMMEDIATELY PRECEDING YEAR ALSO. 4. ON THE CONTRARY, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE LEARNED CIT(A) WAS FAIR ENOUGH TO GIVE CREDIT FOR THE CASH WITHDRAWALS MADE FROM THE BANK ACCOUNTS OF THE ASSESSEE , SINCE THE ASSESSEE HAS WITHDRAW N SMALLER AMOUNT S AND THEY COULD NOT HAVE BEEN RE - DEPOSITED INTO THE BANK ACCOUNT S . ACCORDINGLY, SHE OPPOSED FOR GIVING FURT HER RELIEF TO THE ASSESSEE. 5. HAVING HEARD THE RIVAL CONTENTIONS, WE ARE OF THE VIEW THAT THE ASSESSEE MAY BE GIVEN FURTHER RELIEF TO THE EXTENT OF CASH WITHDRAWALS OF ` 1,85,000/ - MADE FROM ICICI OD ACCOUNT AND ALSO OPENING CASH BALANCE OF ` 92,653/ - , S INCE BOTH THE CASH BALANCES WERE AVAILABLE WITH THE ASSESSEE AND COULD HAVE BEEN USED BY HIM TO MAKE THE DEPOSITS. ACCORDINGLY, WE MODIFY THE ORDER SHRI MAHENDRA N. RAJU 3 PASSED BY THE LEARNED CIT(A) AND DIRECT THE ASSESSING OFFICER TO GRANT FURTHER CREDIT OF ` 1,85,000/ - AND ` 92,653/ - REFERRED ABOVE. WITH REGARD TO THE CLAIM OF THE ASSESSEE THAT THE AMOUNT ASSESSED IN THE PRECEDING YEAR SHOULD BE GIVEN CREDIT, WE DO NOT FIND MERIT WITH THE SAME AS THE ASSESSEE HAS SHOWN CASH BALANCE OF RS.92,653/ - ONLY AS AT THE END OF THE PRE CEDING YEAR, I.E., HE HAS NOT BROUGHT ANY MATERIAL TO SHOW THAT THE AMOUNT ASSESSED IN THE PRECEDING YEAR WAS AVAILABLE WITH THE ASSESSEE. ACCORDINGLY WE REJECT THE SAID CLAIM OF THE ASSESSEE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS TREATED AS PARTLY ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 2 3 .3. 201 7. SD/ - SD/ - (RAVISH SOOD ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 2 3 / 3 / 20 1 7 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) PS ITAT, MUMBAI