Anoop Kumar Agarwal, Lucknow V. Income Tax Officer-5(1), Lucknow

ITA 56/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4755 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-01-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 19-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.56/LKW/2015 ASSESSMENT YEAR 2009-10 INCOME TAX OFFICER-5(1), LUCKNOW VS ANOOP KUMAR AGARWAL 96/197, OLD GANESHGANJ, LUCKNOW PAN AIDPA 4130 H (RESPONDENT) (APPELLANT) SHRI S.K. ARORA, CA APPELLANT BY SHRI AMIT NIGAM, DR RESPONDENT BY 19/01/2016 DATE OF HEARING 11 /0 2 /2016 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE O RDER OF LD. CIT (A)-II, LUCKNOW DATED 04.09.2014 FOR THE AY 2009-10. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1 THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS)- II LKO HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ACTION OF AO IN MAKING THE EX- PARTE ASSESSMENT U/S 143(3)/14 4/147 OF INCOME TAX ACT, 1961. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) )- II LKO HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ACTION OF AO IN MAKING THE EX-PARTE ASSESSMENT WITHOUT CONSID ERING THE SUBMISSION AVAILABLE BEFORE AO/CIT(A) LKO. 2 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS)- II LKO HAS ERRED ON FACTS AND IN LAW IN NOT CONSIDERIN G AND DISPOSING OF GROUNDS OF APPEAL NO. 2 PARTLY WITH RE GARD TO PAYMENT MADE FOR PURCHASE OF FISH FROM WITHDRAWING THE AMOUNT FROM THE SAME BANK ACCOUNT WHERE CASH HAS BE EN DEPOSITED AGAINST SALE OF FISH. 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS)- II LKO HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ACTION OF AO IN MAKING THE ASSESSMENT EX-PARTE TAKING THE CAS H DEPOSITED BY THE COMMISSION AGENT IN THE ASSESSEE'S BANK ACCOUNT AS INCOME OF THE APPELLANT WITHOUT CONSIDER ING THE WITHDRAW FROM BANK ACCOUNT MADE FOR PAYMENT ON ACCO UNT OF PURCHASE OF FISH. 5. THAT WITHOUT PREJUDICE THE LEARNED CIT(A) HAS AL SO ERRED IN FACTS AND IN LAW IN CONFIRMING THE ADDITION OF DEPO SITS IN THE BANK ACCOUNT AS INCOME OF THE APPELLANT SIMULTANEOU SLY WITH THE INCOME RETURNED BY THE APPELLANT AND TO SUCH EX TENT THERE IS A DOUBLE ADDITION, 6. THAT THE APPELLANT CRAVES, LEAVE TO ADD, ALTER, AMEND, OR VARY FROM THE ABOVE GROUNDS OF APPEAL AT OR BEFORE THE HEARING OF APPEAL. 3. LD. AR OF THE ASSESSEE REITERATED THE SAME CONTE NTIONS WHICH WERE RAISED BEFORE THE LD. CIT(A). THE MAIN CONTENTION R AISED BEFORE THE LD. CIT(A) WAS THAT THE AMOUNT OF CASH DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE, IS THE AMOUNT DEPOSITED BY THE CUSTOMERS, AS PAYMENT OF GOODS SOLD BY THE ASSESSEE TO THEM. 4. LD. DR OF THE REVENUE SUPPORTED THE ORDERS OF TH E AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT AN AFFIDAVIT HAS BEEN FURNISHED BEFORE US BY THE ASSESSEE IN WHI CH IT IS STATED THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PURCHASE AND SALES OF DRY FISH FROM 3 LAST TWENTY YEARS AT A VERY LOW SCALE BECAUSE HE HA S NO LIQUID FUNDS. HE HAS ALSO STATED IN THE AFFIDAVIT THAT THE PURCHASE OF D RY FISH IS MADE FROM DIFFERENT PERSONS ON CREDIT MOSTLY AND THEREAFTER, HE TRANSPORTS THE DRY FISH TO VARIOUS CUSTOMERS IN ASSAM AND JAGIR ROAD FOR SA LE THROUGH COMMISSION AGENT. THE ASSESSEE HAS ENCLOSED WITH THE AFFIDAVIT DECLARATION OF SOME SUCH AGENTS AS MURARI LAL & SONS, AMJAD KHAN AND JA GDISH CHANDRA SONKAR & SONS ETC. IN WHICH IT IS STATED BY THEM THAT THEY ARE ACTING AS AGENT FOR THE PRESENT ASSESSEE SHRI ANOOP KUMAR AGARWAL AND A FTER SELLING GOODS ON BEHALF OF THE ASSESSEE AND AFTER DEDUCTING THEIR CO MMISSION AND FREIGHT ETC., THE BALANCE AMOUNT IS DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE. WE ALSO FIND THAT THE BANK STATEMENT OF THE ASSESSEE W ITH TWO BRANCHES OF STATE BANK OF INDIA IS AVAILABLE ON PAGES 07 TO 17 AND 18 TO 23 OF THE PAPER BOOK. IN BOTH THESE ACCOUNTS, THERE ARE CASH DEPOSI TS ON REGULAR BASIS OF SMALL AMOUNTS AND THERE ARE REGULAR WITHDRAWALS AND AS A RESULT, THE CLOSING BALANCE IN THE BANK ACCOUNT IS NOT EXCEEDING RS.1.5 0 LAKH ON ANY DATE ALTHOUGH, THERE IS TOTAL DEPOSIT OF CASH IN THESE T WO BANK ACCOUNTS OF RS.28,26,481/-. IN THE RETURN OF INCOME FILED BY TH E ASSESSEE, THE ASSESSEE HAS SHOWN INCOME OF RS.1,48,500/- WHICH IS MORE THA N 5% OF SUCH TOTAL CASH DEPOSIT IN THESE TWO BANK ACCOUNTS FOR WHICH T HE ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(A). 6. CONSIDERING THE ENTIRE FACTS OF THE PRESENT CASE , WE ARE OF THE CONSIDERED OPINION THAT THERE IS SUFFICIENT FORCE I N THIS ARGUMENT OF THE ASSESSEE THAT THE CASH DEPOSIT IN THE BANK ACCOUNTS IS AMOUNT OF CASH DEPOSITED BY THE CUSTOMERS OF THE ASSESSEE AND THE SAME HAS TO BE CONSIDERED AS SALE PROCEEDS OF THE ASSESSEE AND SIN CE INCOME OF MORE THAN 5% ON SUCH SALE PROCEEDS IS ALREADY REPORTED BY THE ASSESSEE IN THE RETURN OF INCOME, WE ARE OF THE CONSIDERED OPINION THAT TH E CASH DEPOSITS IN THESE BANK ACCOUNTS STAND EXPLAINED AND THEREFORE, THE AD DITION MADE BY THE 4 ASSESSING OFFICER BY HOLDING SUCH CASH DEPOSIT AS U NEXPLAINED CASH DEPOSIT IS NOT JUSTIFIED. WE, THEREFORE, DELETE THE SAME. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/- SD/- (SUNIL KUMAR YADAV) (A.K. GAROD IA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11/02/2016 AKS COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. RE GISTRAR