ITO, Jaipur V. LALIT SINGHAL, Jaipur

ITA 612/JPR/2013

• Counselvise Citation: 61223114 RSA 2013
• Duration Of Justice: 2 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 07-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA
• Assessee Lawyers: P C PARWAL CA DHK
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Peak credit

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 612/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 THE ITO WARD- 5 (4) JAIPUR CUKE VS. SHRI LALIT SINGHAL E-1/421, CHITTRAKUT SCHEME AMER ROAD, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AEEPS 9373 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT C.O. NO.46/JP/2013 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 612/JP/2013) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SHRI LALIT SINGHAL E-1/421, CHITTRAKUT SCHEME AMER ROAD, JAIPUR CUKE VS. THE ITO WARD- 5 (4) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AEEPS 9373 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY :SHRI RAJ MEHRA, JCIT -DR FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL, CA LQUOKBZ DH RKJH[K@ DATE OF HEARING : 30/10/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 30/10/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST T HE ORDER OF THE LD. CIT(A)-II, JAIPUR DATED 01-03-2013 FOR THE ASSESSM ENT YEAR 2008-09. ITA NO. 612/JP/2013 ITO, WARD- 5 (4), SHRI LALIT SINGHAL, JAIPUR . 2 THE ASSESSEE HAS FILED CROSS OBJECTION. RESPECTIVE GROUNDS RAISED ARE AS UNDER:- ITA NO. 612-2013 -REVENUE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A)-BIKANER (CAMP AT JAIPUR ) HAS ERRED IN:- (I) DELETING THE ADDITION OF RS. 11,86,300/- OUT OF ADDITION OF RS. 12,52,800/- MADE BY THE AO ON ACCOU NT OF CASH DEPOSITS IN BANK ACCOUNT IGNORING THE FACT THA T THE THEORY OF PEAK CREDIT IS NOT APPLICABLE IN THE PRES ENT CIRCUMSTANCES OF THE CASE AND IN VIEW OF THE FACT T HAT MAJOR CASH DEPOSIT HAVE BEEN MADE IN DIFFERENT STATES. C.O. NO.46/JP/2013 ASSESSEE THE LD. CIT(A) HAS ERRED ON FACT AND IN LAW IN CONFIRMING THE ACTION OF THE AO IN HOLDING THAT TRA NSACTION IN BANK ACCOUNT OF ASSESSEE DOES NOT BELONG TO THE BUSINESS OF ASSESSEE'S MOTHER AND THEREBY CONFIRMING THE ADD ITION OF RS. 66,500/- IN THE HANDS OF THE ASSESSEE . 2.1 DURING THE COURSE OF HEARING, THE LD. DR VEHEME NTLY CONTENDS THAT THE ISSUE ABOUT PEAK THEORY HAS NOT BEEN TAKEN UP B EFORE THE AO AND NO PEAK WORKING WAS SUPPLIED. THE ASSESSEE FOR THE FIR ST TIME SUBMITTED A PEAK WORKING BEFORE THE LD. CIT(A) WHICH WAS NEVER SUPPLIED TO THE AO. HE WAS NEITHER HEARD BY THE LD. CIT(A) NOR ANY COM MENTS WERE ASKED FOR. THUS THE LD. CIT(A) HAS ACCORDED THE RELIEF B Y IGNORING THE FACTS THAT ITA NO. 612/JP/2013 ITO, WARD- 5 (4), SHRI LALIT SINGHAL, JAIPUR . 3 WITHDRAWALS WERE IN DIFFERENT STATES SITUATED AT WI DE DISTANCE AND IT CANNOT BE CONSIDERED FOR PEAK. THUS THE RELIEF HAS BEEN GIVEN WITHOUT PROPER PROCEDURE AND PRINCIPLE OF NATURAL JUSTICE. 2.2 ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASS ESSEE CONTENDS THAT ISSUE OF PEAK WAS RAISED BEFORE THE AO THOUGH THE W ORKING WAS NOT SUPPLIED. 2.3 AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIALS AVAILABLE ON RECORD, IT EMERGES THAT THE ASSESSEE NEITHER SU PPLIED ANY PEAK WORKING TO THE AO NOR PROPER ARGUMENTS WERE RAISED BEFORE H IM. THE PEAK THEORY IN ITS PROPER FORM WAS RAISED BEFORE THE LD. CIT(A) WITH PEAK WORKING. HOWEVER, IN ALL FAIRNESS, THE LD. CIT(A) OUGHT TO H AVE HEARD THE AO AND CALLED FOR HIS COMMENTS WHICH HAS NOT BEEN DONE. TH US THE APPELLATE ORDER SUFFERS FROM THE PRINCIPLE OF NATURAL JUSTICE . THUS IN VIEW OF THE ENTIRETY OF FACTS AND CIRCUMSTANCES, THE ISSUE RAIS ED BY THE REVENUE IN ITS APPEAL AND BY THE ASSESSEE IN ITS C.O. ARE SET ASID E AND RESTORED BACK TO THE FILE OF THE AO DECIDE THE SAME AFRESH. HOWEVER, THE LD. AR OF THE ASSESSEE DURING THE COURSE OF HEARING RELIED ON THE DECISION OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF SIND MEDICAL ST ORES VS. CIT, 117 DTR 78 (RAJ.) THAT PEAK THEORY IS ONE OF THE ACCE PTED METHOD OF WORKING. THE ADDITION IN THE CASE OF UNEXPLAINED CASH CREDIT, THE AO ITA NO. 612/JP/2013 ITO, WARD- 5 (4), SHRI LALIT SINGHAL, JAIPUR . 4 WILL KEEP THE HON'BLE RAJASTHAN HIGH COURT JUDGEME NT (SUPRA) IN MIND WHILE DECIDING THE ISSUE AFRESH AFTER PROVIDING REA SONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3.0 IN THE RESULT, APPEAL OF THE REVENUE AS WELL AS C.O. OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30/10/2015 . SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30 /10/ 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD- 5(4), JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- SHRI LALIT SINGHAL,JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 612/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR