ITO, Jaipur V. SHRI ASHOK SHARMA, Jaipur

ITA 565/JPR/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5291 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 06-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MANISH AGARWAL CA DHK
• Keywords: Salary income; Principle of natural justice; Peak credit; Additional evidence
• Section: 143(3); 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI T.R.MEENA, AM VK;DJ VIHY LA -@ ITA NO. 565 & 856/JP/2012 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2008-09 & 2009-10 INCOME TAX OFFICER, WARD 6(1), JAIPUR. CUKE VS. ASHOK SHARMA, M/S HIND TYRE, A-36, TRANSPORT NAGAR, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ANPPS 1756 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT IZR;K{KSI.K @ C.O. NO. 77/JP/2012 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 856/JP/2012) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 ASHOK SHARMA, M/S HIND TYRE, A-36, TRANSPORT NAGAR, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 6(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA- @ PAN/GIR NO.: ANPPS 1756 F IZR;K{KSID @ OBJECTOR IZR;FKHZ @ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI KAILASH MANGAL (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL(CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 21/04/2016. MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 30/05/2016. VKNS'K@ ORDER PER T.R. MEENA, A.M. THESE ARE THE APPEALS FILED BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE ARISE AGAINST THE ORDERS DATE D 28/03/2012 AND ITA NO.565 & 856/JP/2012 & CO 77/JP/2012 ITO VS ASHOK SHARMA 2 09/08/2012 PASSED BY THE LD. CIT(A)-II, JAIPUR FOR THE ASSESSMENT YEARS 2008-09 & 2009-10 WHEREIN THE REVENUE AS WELL AS THE ASSESSEE RAISED FOLLOWING GROUNDS:- GROUND OF ITA NO. 565/JP/12 (A.Y. 2008-09) REVENUE S APPEAL ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN RESTRICTING THE ADDITION TO RS. 3,44,166/- INSTEAD OF RS. 56,24,288 /- MADE BY THE A.O. ON ACCOUNT OF U EXPLAINED DEPOSITS IN THE BANK ACCOUNTS OF THE ASSESSEE WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THIS CASE. GROUND OF ITA NO. 856/JP/12 (A.Y. 2009-10) REVENUE S APPEAL ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD CIT(A) HAS ERRED IN:- (I) RESTRICTING THE ADDITION TO RS. 20,59,379/- IN STEAD OF RS. 75,56,183/- MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE. (II) DELETING THE ADDITION OF RS. 2,07,576/- MADE B Y THE A.O. ON ACCOUNT OF NEGATIVE PEAK CASH BALANCE IN HI S CASH BOOK AS ON 08/07/2008 WITHOUT APPRECIATING THE MATERIAL EVIDENCE AVAILABLE ON RECORD. (III) ADMITTING ADDITIONAL EVIDENCES AND CONSEQUENT LY IN ALLOWING RELIEF WITHOUT FOLLOWING THE MANDATORY PROVISIONS OF RULE 46A OF THE IT RULES, 1962. ITA NO.565 & 856/JP/2012 & CO 77/JP/2012 ITO VS ASHOK SHARMA 3 (IV) ACCEPTING THE ADDITIONAL EVIDENCE WITHOUT VERIF ICATION OF THE FACTS AND PROVIDING OPPORTUNITY TO THE A.O. FOR DEFENDING THE CASE OF REVENUE. GROUND OF ASSESSEES C.O. NO. 77/JP/12 (A.Y. 2009-1 0) 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LD CIT(A) HAS GROSSLY ERRED IN SUSTAINING THE ADDITI ON OF RS. 15,000/- ON ACCOUNT OF INCOME FROM CONTRACT BY ESTIMATING THE CONTRACT RECEIPT AT RS. 1,00,000/ - AND APPLYING PROFIT RATE OF 15% WHEN THE ASSESSEE HAS PROPERLY RECORDED THE INCOME IN THE BOOKS OF ACCOUNTS, HENCE THE ADDITION OF RS. 15,000/- DESERV ES TO BE DELETED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE ADDITI ON OF RS. 20,59,379/- BY APPLYING THE PEAK THEORY. 2.1 THAT THE LD CIT(A) HAS ERRED IN NOT CONSIDERING THE SUBMISSION MADE AND EVIDENCES ADDUCED AND HAS SUSTAINED THE ADDITION OF RS. 20,59,379/-. HENCE TH E ADDITION SO UPHOLDED DESERVES TO BE DELETED. 2. BOTH THE APPEALS FILED BY THE REVENUE AND C.O. B Y THE ASSESSEE HAVE BEEN HEARD TOGETHER AND ISSUE IN BOTH THE APPE ALS AND IN C.O OF THE ASSESSEE ARE IDENTICAL, THEREFORE, FOR SAKE FOR CONVENIENCE, COMMON ORDER IS PASSED IN ALL THE CASES OF REVENUE AS WELL AS ASSESSEE. 2.1 GROUND NO. 1 OF THE ASSESSEES C.O. BEING C.O. NO. 77/JP/2012 IS NOT PRESSED, THEREFORE, WE DISMISS THE SAME AS NOT P RESSED. ITA NO.565 & 856/JP/2012 & CO 77/JP/2012 ITO VS ASHOK SHARMA 4 3. GROUND NO.1 OF BOTH THE REVENUES APPEAL I.E. FO R THE APPEAL OF A.Y. 2008-09 IS AGAINST RESTRICTING THE ADDITION OF RS. 3,44,166/- INSTEAD OF RS. 56,24,288/- AND IN A.Y. 2009-10 IS AGAINST R ESTRICTING THE ADDITION TO RS. 20,59,379/- INSTEAD OF RS. 75,56,183/- MADE BY THE LD ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH DEPOSITED IN THE BANK ACCOUNTS. THE ASSESSEES C.O. IS AGAINST CONFIRMING THE ADDITI ON OF RS. 20,59,379/-. THE ASSESSEE FILED RETURN FOR A.Y. 200 8-09 ON 31/3/2009 DECLARING TOTAL INCOME AT RS. 1,11,310/- WHEREAS RET URN FOR A.Y. 2009- 10 WAS FILED ON 31/3/2010 AT RS. 1,47,690/-. THE ASSE SSEE HAS INCOME FROM SALARY FROM M/S HIND TYRES. BOTH THE CASES OF B OTH THE ASSESSMENT YEARS WERE SCRUTINIZED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THE LD ASSESSING OFFICER OB SERVED THAT IN A.Y. 2008-09 THAT THE ASSESSEE HAS DEPOSITED CASH OF RS . 19,04,341/- IN HIS BANK ACCOUNT AND THERE WERE OTHER DEPOSITS THROUGH C HEQUES AGGREGATING TO RS. 65,03,433/-. THE ASSESSEE FILED A TRADING ACCOUNT FOR THE TRADING OF OLD TYRES DECLARING PROFIT OF RS. 38 ,367/-. IN THE P&L ACCOUNT, AFTER INCLUDING GROSS RECEIPT FROM TRUCK P LYING AT RS. 19,67,190/-, NET LOSS OF RS. 12,296/- HAD BEEN DECL ARED. IT WAS CLAIMED BY THE ASSESSEE THAT THERE WAS A LOSS IN TRADING/TRU CK PLYING AND SAME HAS NOT BEEN INCLUDED IN THE RETURN OF INCOME ALREA DY FILED. THE LD ITA NO.565 & 856/JP/2012 & CO 77/JP/2012 ITO VS ASHOK SHARMA 5 ASSESSING OFFICER FURTHER OBSERVED THAT IN ICICI BA NK ACCOUNT, TOTAL DEPOSITS WERE RS. 84,07,774/- WHICH INCLUDES CASH DE POSITS OF RS. 19,04,341/- AND DEPOSITS THROUGH CHEQUE OF RS. 65,0 3,433/-. THE ASSESSEE HAS ALSO WITHDRAWN CASH OF RS. 48,03,765/- DURING THE YEAR UNDER CONSIDERATION AND THROUGH CHEQUE AT RS. 35,22 ,993/- THERE WAS A CREDIT BALANCE IN THIS BANK ACCOUNT AT RS. 86,596 /-. THE ASSESSEE OWNED ONE PICK UP VAN AND ONE TRUCK, WHICH WERE ACQUIR ED WITH THE HELP OF BANK LOANS, WHICH WAS CREDITED BY THE BANK ON 07/5/2007 AT RS. 4,32,095/- AND ON 29/5/2007 AT RS. 4,47,050/- IN HD FC BANK. THE GROSS RECEIPT FROM THE VEHICLE RUNNING WAS AT RS. 19,67,19 0/-. THEREFORE, THE LD ASSESSING OFFICER GAVE CREDIT OF BANK LOAN OF RS . 8,79,145/- AND RECEIPT FROM THE VEHICLE RUNNING AT RS. 19,04,341/- . THUS, OUT OF TOTAL DEPOSITS OF RS. 84,07,774/-, THE CREDIT IN TOTAL WA S GIVEN BY THE ASSESSING OFFICER AT RS. 27,83,486/-. THE REMAINING AMOUNT OF RS. 56,24,288/- WAS FOUND UNEXPLAINED, THEREFORE, HE MAD E ADDITION IN THE INCOME OF THE ASSESSEE. 3.1 IN A.Y. 2009-10, THE LD ASSESSING OFFICER COMPL ETED THE ASSESSMENT U/S 144 OF THE ACT AND TOTAL CHEQUE DEPO SITED IN THE ICICI BANK ACCOUNT AT RS. 18,49,597/- AND NEGATIVE PEAK O F RS. 2,07,576/- ON ITA NO.565 & 856/JP/2012 & CO 77/JP/2012 ITO VS ASHOK SHARMA 6 08/7/2008 IN CASH FLOW CHART AND CHEQUE AMOUNTING TO RS. 57,06,586/- DEPOSITED IN THE HDFC BANK WERE FOUND UNEXPLAINED, T HEREFORE, THE LD ASSESSING OFFICER MADE ADDITION ON ACCOUNT OF CHEQU E DEPOSITED IN ICICI BANK AT RS. 18,49,597/- AND CHEQUE DEPOSITED IN HDFC BANK AT RS. 57,06,586/- AND NEGATIVE BALANCE IN CASH FLOW OF RS. 2,07,576/- WAS ADDED. 4. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A) FOR A.Y. 2008-08, WHO HAD ALLOWED THE APPEAL PARTLY BY OBSERVING THAT THE APPELLANT WAS WORKING WITH M/S HIND TYRES. DETAILED REPLY FILED BY T HE ASSESSEE BEFORE THE LD CIT(A) REGARDING CASH DEPOSITED AND CHEQUE DE POSITED, WHICH WAS REMANDED TO THE ASSESSING OFFICER. AFTER CONSIDE RING THE REMAND REPORT, THE LD CIT(A) HELD THAT THE APPELLANT HAD LO NG ASSOCIATION WITH TYRE DEALER AS HE WAS WORKING WITH M/S HIND TYRES SINC E LONG. IT WAS NOT IN DISPUTE THAT THE APPELLANT HAD PURCHASED ONE PICK UP VAN OF TATA MAKE BY RAISING LOAN FROM SUNDARAM FINANCE AMO UNTING TO RS. 2,05,000/-. IN MARCH, 2007, HE FURTHER RAISED A LOA N OF RS. 12,25,000/- FROM GE CAPITAL FOR PURCHASE OF CHASIS OF A NEW TRUC K. THESE VANS/TRUCKS WERE USED IN PLYING AND RECEIPTS OF RS. 23,37,750/- WERE DECLARED BY THE ASSESSEE. THE BUYERS WHO CAME TO THE OFFICE OF M/S ITA NO.565 & 856/JP/2012 & CO 77/JP/2012 ITO VS ASHOK SHARMA 7 HIND TYRES FOR PURCHASE OF NEW TYRES WERE INTERESTED I N SELLING OLD TYRES. THE APPELLANT AVAILED HIMSELF OF THIS OPPORTU NITY AND STATING SELLING OLD TYRES TO THE DEALERS WHO WERE ENGAGED IN THE BUSINESS OF RETREATING OF OLD TYRES OR IN FURNACE OIL. IT IS AL SO NOT IN DISPUTE THAT OUT OF DECLARED RECEIPTS OF RS. 26,94,500/- IN THE TYRE BUSINESS, ABOUT 99.5% RECEIPTS WERE THROUGH ACCOUNT PAYEE CHEQUES. TH E AO INSTEAD OF CHOOSING TO DOUBT THE CASH DEPOSITS OF RS. 19,01 ,341/-, DOUBTED THE CHEQUES DEPOSITS. EVEN THE CASH DEPOSITED BY THE AS SESSEE WAS HAVING SOURCE OF CASH WITHDRAWN FROM THE SAME BANK ACCOUNT O F RS. 48,03,765/-. THE ASSESSEE HAD ALSO ISSUED CHEQUES OF RS. 35,22,993/- TOWARDS PURCHASE/EXPENSES. THERE IS NO EVIDENCE AVAIL ABLE WITH THE ASSESSING OFFICER THAT THE APPELLANT HAD MADE UNEXP LAINED INVESTMENT/INVESTMENT OUT OF BOOKS OF ACCOUNT. THE C OUNSEL OF THE APPELLANT HAS EXPLAINED THAT THERE WAS DIFFERENCE IN THE VEHICLE RUNNING RECEIPTS BECAUSE THE AMOUNT OF RS. 3,70,560/- RELAT ED TO REIMBURSEMENT OF THE EXPENSES WHICH WERE BORNE BY TH E APPELLANT FOR HIS PARTIES. THE APPELLANT VIDE LETTER DATED 29/12/ 2010 ADDRESSED TO THE A.O. HAD CLARIFIED THAT HE HAD NOT MAINTAINED BOOKS OF ACCOUNT AND INCOME FROM TRUCK PLYING BUSINESS/TYRES BUSINESS WAS TO BE TAXED ON PRESUMPTIVE BASIS. THE LD A.O. HAD HIMSELF WORKED OUT THE INCOME FROM ITA NO.565 & 856/JP/2012 & CO 77/JP/2012 ITO VS ASHOK SHARMA 8 VEHICLE RUNNING BUSINESS AT RS. 84,000/- U/S 44AE O F THE ACT IN THE ASSESSMENT ORDER. THERE WAS NO APPARENT REASON AS TO WHY RECEIPTS/EXPENSES RELATING TO THE TYRES BUSINESS WER E IGNORED BY THE A.O. AFTER A LAPSE OF 4 YEARS, THE APPELLANT COULD NOT HAVE BEEN ASKED TO PRODUCE CONFIRMATIONS FROM THE PARTIES FROM WHOM TYRES WERE PURCHASED AND TO WHOM THESE WERE SOLD. THE TURNOVER O F THE TYRES BUSINESS WAS AT RS. 26,94,500/- ONLY AND THEREFORE T HE ASSESSEE DID NOT MAINTAIN ANY RECORDS FOR THE SAME. AS REGARDS THE L OAN OF RS. 6,00,000/- FROM SHRI MANISH MUNJAL, THE APPELLANT H AD FILED HIS CONFIRMATION SHOWING HIS PAN AND AMOUNT IF QUESTION HAD BEEN RECEIVED THROUGH ACCOUNT PAYEE CHEQUE, WHO WAS ASSESS ED TO TAX WITH ITO, WARD 7(1), JAIPUR. THE LD ASSESSING OFFICER ONLY NOT CONSIDERED THESE EVIDENCES THAT SHRI MANISH MUNJAL HAD NOT FIL ED RETURN FOR A.Y. 2008-09 AND NOT PRODUCED PERSONALLY FOR VERIFICATIO N. THE ARGUMENT OF THE APPELLANT IS FOUND CONVINCING TO THE LD CIT(A) T HAT HE HAS NO CONTROL ON THE CREDITORS TO PRODUCE BEFORE THE ASSESSING OF FICER. THE LD ASSESSING OFFICER COULD HAVE TAXED ONLY THE PEAK BA LANCE IN THE ALLEGED BANK ACCOUNT WHEREAS THE ASSESSING OFFICER TREATED E NTIRE CHEQUE DEPOSITS AS UNEXPLAINED. WHEN DEPOSIT IN CASH AS WEL L AS CHEQUE AND WITHDRAWN IN CASH AND CHEQUE WAS THERE, THERE IS A CHA NCE TO CONSIDER ITA NO.565 & 856/JP/2012 & CO 77/JP/2012 ITO VS ASHOK SHARMA 9 THE SAME AMOUNT MORE THAN ONE TIME. THEREFORE, THE L D ASSESSING OFFICER HAS TO APPLY PEAK THEORY TO DETERMINE THE C ORRECT INCOME OF THE ASSESSEE. THUS, HE CONFIRMED THE NET ADDITION OF RS. 3,44,166/- IN A.Y. 2008-09 AND REMAINING ADDITION WAS DELETED. 4.1 IN A.Y. 2009-10, THE LD CIT(A) HELD THAT PEAK B ALANCE COULD HAVE CALCULATED BY THE ASSESSING OFFICER. HOWEVER, THE L D ASSESSING OFFICER HAS CONSIDERED THE WHOLE CREDIT BALANCE AS UNEXPLAIN ED. THE LD CIT(A) FURTHER HELD THAT IN RESPECT OF UNEXPLAINED INCOME OF POSSIBLE REDUNDANCY OF THE SAME INCOME BEING CONSIDERED MO RE THAN ONCE IN COMPUTATION COULD BE AVOIDED BY TAKING ONLY THE PEA K CREDIT WHEN THERE WERE MANY CREDITS AND DEBITS IN THE SAME BANK ACCOUNT, FOR WHICH HE RELIED ON THE DECISION IN THE CASE OF VIVEK KEDIA VS. ITO (2011-TIOL-641-ITAT-MUMBAI). THE SAME PROPOSITION WAS ALSO HELD BY THE CUTTAK ITAT IN THE CASE OF ACIT VS TRITAN HAPPY HO ME LTD. 94 TTJ 628. ACCORDINGLY, HE GAVE THE CREDIT FOR ADDITION C ONFIRMED IN A.Y. 2008-09 AT RS. 4,28,166/- AS OPENING CASH AVAILABLE WITH THE ASSESSEE AND REMAINING PEAK OF RS. 20,59,379/- WAS CONFIRMED BY THE LD CIT(A) IN A.Y. 2009-10. 5. NOW THE REVENUE IS IN APPEALS BEFORE US. HOWEVER, THE ASSESSEE ALSO CHALLENGED THE REMAINING ADDITION OF RS. 20,59 ,379/- CONFIRMED BY ITA NO.565 & 856/JP/2012 & CO 77/JP/2012 ITO VS ASHOK SHARMA 10 THE LD CIT(A) IN C.O.. THE LD DR HAS VEHEMENTLY SUPP ORTED THE ORDER OF THE ASSESSING OFFICER IN BOTH THE ASSESSMENT YEARS. AT THE OUTSET, THE LD AR OF THE ASSESSEE HAS REITERATED THE ARGUMENTS MAD E BEFORE THE LD CIT(A) FOR A.Y. 2008-09 AND 2009-10 FOR THE ADDITION DELETED. HE HAS FURTHER ARGUED THAT FOR A.Y. 2009-10, THE ASSESSEE WAS IN OLD TYRE BUSINESS AND PLYING TRUCK. ALL THE RECEIPTS FROM TH ESE ACTIVITIES WERE IN CASH OR CHEQUE WERE DEPOSITED IN THE BANK ACCOUNT MA INTAINED BY THE ASSESSEE. HE FURTHER ARGUED THAT WHATEVER CASH WITHDR EW FROM THE BANK ACCOUNT WAS AGAIN DEPOSITED IN THE SAME BANK AC COUNT. HE HAS DRAWN OUR ATTENTION ON PAGE NO. 58 TO 65 OF THE PAPE R BOOK AND DEMONSTRATED THAT THERE WAS A WITHDRAWAL OF CASH FROM THESE BANK ACCOUNTS AND REDEPOSITED IN IT. AT THE TIME OF APPE AL PROCEEDINGS, THE ASSESSEE HAD SUBMITTED PEAK CALCULATION BY INCLUDIN G THE CASH AS WELL AS CHEQUE ENTRIES AND THERE WAS A POSITIVE PEAK AS O N 01/8/2008 AT RS. 24,60,236.82. THERE WAS A CASH BALANCE AVAILABLE WITH THE ASSESSEE OF RS. 18,85,055/- IN THE CASH BOOK MAINTAINED ON DAY TO DAY BASIS, THEREFORE, THE DEDUCTION OF RS. 18,85,055/- WAS TO B E ALLOWED OUT OF SUCH PEAK BALANCE. HOWEVER, THE LD CIT(A) HAD NOT GIV EN DEDUCTION FROM THE PEAK CALCULATED BY THE ASSESSEE. FURTHER O PENING BALANCE OF RS. 4,87,452/- IN BOTH THE ACCOUNTS WHICH WAS REQUIR ED TO BE REDUCED ITA NO.565 & 856/JP/2012 & CO 77/JP/2012 ITO VS ASHOK SHARMA 11 FROM THE PEAK BALANCE AS ON 01/8/2008. THUS, AFTER A LLOWING CREDIT OF THESE AMOUNTS RESULTANT ADDITION COULD AT THE MOST BE MADE COME TO RS. 87,729/- AS UNEXPLAINED DEPOSIT IN THE BANK ACC OUNT OF THE ASSESSEE. HE FURTHER RELIED ON THE DECISION IN THE CASE OF M.S VIVEK KEDIA VS ITO AND ACIT VS TRITAN HAPPY HOME (P) LTD. (S UPRA) AND PRAYED TO ALLOW THE APPEALS AND UPHELD THE ORDERS OF THE LD CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS UNDISPUTED FACT THAT THE LD CIT(A) HAS CONSIDERED THE PEAK FOR BOTH THE YEARS AND ACCORDINGLY DETERMINED THE INCOME OF THE ASSESSEE. HE HAS ALSO GIVEN CREDIT OF INCOME CONFIRMED IN A.Y. 2008-09 FOR RS. 4,28,166/-. THE LD ARS ARGUMENT IS THAT THE THERE WAS A CASH OF RS. 18 ,85,055/-WAS AVAILABLE AS ON 01/8/2008. WE HAVE EXAMINED PAPER B OOK FILED BY THE ASSESSEE, WHICH IS CASH FLOW STATEMENT FOR A.Y. 2009 -10. ON 11/8/2008 THE MAXIMUM PEAK OF CASH BALANCE WAS AT RS.18,85,055 .86 AT PAGE NO. 60 OF THE PAPER BOOK BUT IN THE COMPUTATION OF THE PEAK, THIS ASPECT HAS ALREADY BEEN CONSIDERED BY THE LD CIT(A).THEREFO RE, THE CLAIM MADE IN THE C.O.,IN OUR VIEW IS DOUBLE DEDUCTION.THES E AMOUNTS CANNOT BE REDUCED AGAIN FROM THE PEAK AMOUNT CALCULATED BY THE ASSESSING ITA NO.565 & 856/JP/2012 & CO 77/JP/2012 ITO VS ASHOK SHARMA 12 OFFICER. ACCORDINGLY, THE C.O. OF THE ASSESSEE ON T HIS GROUND IS DISMISSED AND REVENUES APPEAL IS ALSO DISMISSED. 7. THE REVENUES APPEAL IN GROUND NO. 3 FOR A.Y. 200 9-10 HAS RAISED THE ISSUE OF PRINCIPLES OF NATURAL JUSTICE, WHICH WAS NOT ALLOWED BY THE LD CIT(A) BY ACCEPTING THE PEAK OF BOTH THE BANK ACC OUNT BUT IT IS SETTLED LAW THAT THE LD CIT(A) HAS COTERMINOUS POWER WI TH THE ASSESSING OFFICER AND HE CAN TAKE DECISION ON THE BASIS OF EV IDENCE FILED BEFORE HIM EVEN THESE EVIDENCES WERE AVAILABLE WITH THE ASSE SSING OFFICER AT THE TIME OF ASSESSMENT PROCEEDINGS. THEREFORE, GROUN D RAISED FOR VIOLATION OF RULE 46A OF THE INCOME TAX RULES, 1962 IS NOT SUSTAINABLE. 8. GROUND NO. 2 OF THE REVENUES APPEAL FOR A.Y. 20 09-10 IS AGAINST DELETING THE ADDITION OF RS. 2,07,576/- BY THE LD C IT(A) ON THE GROUND THAT THE LD ASSESSING OFFICER HAS NOT CALCULATED TH E CASH FLOW STATEMENT BY CONSIDERING ALL THE TRANSACTIONS. ACCORDINGLY, H E HELD THAT THERE WERE FREQUENT CASH WITHDRAWALS FROM THESE TWO BANK ACCOUNTS THROUGHOUT THE YEAR AND ON NONE OF THE DATES, CASH DEPOSITS EX CEEDED THE AVAILABLE CASH ON HAND. THE APPELLANT HAD ALSO FILED COMPUTERIZED CASH BOOK DURING THE COURSE OF APPELLANT PROCEEDINGS. EV EN THESE TWO BANK ACCOUNTS WERE NOT DISCLOSED TO THE DEPARTMENT. THE C ASH WITHDRAWN ON EARLIER DATES FROM THESE TWO ACCOUNTS ALWAYS EXCEEDED THE CASH ITA NO.565 & 856/JP/2012 & CO 77/JP/2012 ITO VS ASHOK SHARMA 13 DEPOSITS. UNDER THESE CIRCUMSTANCES, THE IMPUGNED A DDITION OF RS. 2,07,576/- WAS DELETED BY THE LD CIT(A). THEREFORE, WE DO NOT FIND ANY REASON TO INTERVENE IN THE ORDER OF THE LD CIT(A). 9. IN THE RESULT, APPEALS OF REVENUE FOR THE BOTH T HE ASSESSMENT YEARS AS WELL AS C.O. OF THE ASSESSEE IN THE APPEAL FOR A.Y. 2009-10 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/05/2016. SD/- SD/- DQYHKKJR VH-VKJ-EHUK (KUL BHARAT) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30 TH MAY, 2016 RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE WARD 6(1), JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- SHRI ASHOK SHARMA, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 565 & 856/JP/2011 & CO 77/JP/2012) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR