Shri Ram Prasad Mondal, Burdwan V. ITO-Ward-2(2), Asansol, Asansol

ITA 626/KOL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83028 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 19-04-2012
• Court: TRIBUNAL
• Department Lawyers: IMLIMEREN JAMIR
• Assessee Lawyers: S M SURANA
• Keywords: Gift; Peak credit
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [BEFORE HONBLE SRI SHAMIM YAHYA, AM & HONBLE SR I GEORGE MATHAN, JM] ITA NO.626/KOL/2012 ASSESSMENT YEAR : 2008-09 ( APPELLANT ) (RESPONDENT) SHRI RAM PRASAD MONDAL `.. -VS- I.T.O., WARD-2(2) , BURDWAN ASANSOL (PAN:AOYPM 4125 Q) FOR THE APPELLANT SHRI S.M.SURANA, ADVOCATE FOR THE RESPONDENT SHRI IMLIMEREN JAMIR, JCIT, SR.DR DATE OF HEARING : 05.08.2014 DATE OF PRONOUNCEMENT : 07. 08.2014. ORDER PER SHRI SHAMIM YAHYA, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST OR DER OF LD. C.I.T.(A)- XXXII, KOLKATA DT. 28.12.2011 AND PERTAIN TO ASSESSMENT YE AR 2008-09. 2. GROUNDS OF APPEAL RAISED BY ASSESSEE READ AS UND ER :- 1. FOR THAT THE ORDER OF THE LD. CIT(A) IS ARBITRA RY, ILLEGAL AND BAD IN LAW. 2. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF ENTIRE CONTRACT RECEIPT OF RS.38,54,452/- UNDER SEC.69A WHEN THE ASSESSEE IS I N CONTRACT BUSINESS AND FURTHER 8% PROFIT ON SUCH AMOUNT SHOULD HAVE BEEN ACCEPTED AS REASONABLE IN THIS LINE OF BUSINESS. 3. FOR THAT THE LD. CIT(A) ERRED IN MAKING ADDITION OF RS.3,00,000/- WHEN THE GIFT WAS GENUINE RECEIVED FROM OWN FATHER OF THE ASSESSEE AN D THE SAME WAS PROVED. 4. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE ORDER OF THE CIT(A) BE MODIFIED AND THE ASSESSEE BE GIVEN THE RELIEF PRAYE D FOR. 5. FOR THAT THE ASSESSEE CRAVES LEAVE TO ADD, ALTER OR AMEND ANY GROUND BEFORE OR AT THE TIME OF HEARING. 3. THE BRIEF FACTS RELATING TO THIS GROUND ARE THA T THE AO NOTED THAT THE ASSESSEE WAS MAINTAINING FOLLOWING THREE BANK ACCOUNTS :- (I) A/C NO.302010100001953 OF AXIS BANK,. BARBIL BR ANCH ITA.NO.626/KOL/2012 SHRI RA M PRASAD MONDAL A.YR.2008-09 2 (II) A/C. NO.06641930000793 OF HDFC BANK, ASANSOL B RANCH (III) A/C NO.019K72317060 OF INDUSIND BANK, BARBIL BRANCH THE A.O. REQUIRED THE ASSESSEE TO EXPLAIN THE SOURC ES OF DEPOSITS IN THOSE ACCOUNTS. IN HIS REPLY THE A.R. OF THE ASSESSEE SUBMITTED AS FOL LOWS :- 1. TOTAL CHEQUE DEPOSITED SANKAT & OTHERS (EXCEPT SHEETAL):RS.26,07,129/- (A) MA SANKATAQ : RS.23,50,000/- (B) OTHER : RS. 2,57,129/- A + B : RS.26,07,476/- 2. CHEQUE DEPOSITED FROM SHEETAL : RS.2,74,476/- (AS PER PAYMENT CERTIFICATE) DETAILS OF CHEQUE DEPOSITED WHICH IS RECEIVED FRO M MA SANKATA : DATE AMOUNT 15.01.08 RS.1,50,000/- 21.12.08 RS.5,00,000/- 22.02.08 RS.5,00,000/- 28.02.08 RS.1,00,000/- 04.03.08 RS.2,00,000/- 05.03.08 RS.7,00,000/- 12.03.08 RS.2,00,000/- TOTAL RS.23,50,000/- SO KINDLY COMPLETE THE ASSESSMENT & OBLIGE. TOTAL CASH DEPOSITED RS.38,54,452/- FROM THE EXPLANATION OFFERED BY THE ASSESSEE THE A. O. WAS SATISFIED ABOUT THE SOURCES OF DEPOSIT OF RS.3,00,000/- MADE ON 27.03.0 8 IN ASSESSEE ACCOUNT WITH HDFC BANK BUT THE ASSESSEE FAILED TO EXPLAIN THE OTHER D EPOSITS IN THE ASSESSEES ACCOUNTS, THE TOTAL OF WHICH CAME TO RS.38,54,452/-. HE HAD O FFERED THAT HE MAY BE TAXED AT 8% OF THE TOTAL UNEXPLAINED DEPOSIT AMOUNTING TO RDS.3 8,54,452/- BUT THE AO WAS OF THE VIEW THAT THE OFFER OF THE ASSESSEE COULD NOT BE AC CEPTED FOR THE FOLLOWING REASONS :- I) IT IS NOT PROVED THAT THESE DEPOSITS ARE CONTRAC T RECEIPTS. II) THE SOURCE OF DEPOSITS HAS NOT BEEN ELUCIDATED BY THE ASSESSEE III) THE PURPOSE OF THE WITHDRAWALS ARE ALSO NOT EX PLAINED. IV) THERE IS NO TDS ON SUCH UNEXPLAINED DEPOSITS. THEREFORE THE A.O. TREATED THE WHOLE AMOUNT OF RS.3 8,54,452/- TO BE ASSESSEES INCOME U/S 69A. FURTHERMORE, THE ASSESSEE HAS RECEIVED A GIFT OF RS .3,00,000/- FROM HIS FATHER. SUMMONS U/S 131 OF THE ACT WAS ISSUED BY THE AO THR OUGH HIS LEGAL HEIR. NONE ITA.NO.626/KOL/2012 SHRI RA M PRASAD MONDAL A.YR.2008-09 3 ATTENDED IN RESPONSE TO THE SUMMON. NO EXPLANATION WAS OFFERED. HENCE THE AO TREATED THE SUM OF RS.3,00,000/- AS UNEXPLAINED CAS H CREDIT. 4. UPON ASSESSEES APPEAL THE LD. CIT(A) AFFIRMED T HE ACTION OF AO ON THE GROUND THAT THE ASSESSEE HAS NOT BEEN ABLE TO SUBSTANTIATE THE CLAIMS. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT I N LIEU OF THE GROUNDS RAISED IN THIS CASE HE SHALL BE PRESSING FOR ASSESSMENT ON PE AK CREDIT THE LD. COUNSEL AGREED AS PER HIS COMPUTATION PEAK CREDIT COMES TO RS.11.50 L AKH. WE HAVE HEARD THE LD. DR. 6. WE HAVE HEARD BOTH THE COUNSEL. UPON CAREFUL CON SIDERATION WE NOTE THAT THE LD.COUNSEL OF THE ASSESSEE HAS CLAIMED THAT ASSESSE E IS AGREEABLE IF IT IS SUBJECT TO TAXATION ON THE BASIS OF PEAK CREDIT IN THE ACCOUNT . WE NOTE THAT ASSESSEE HAS FOR THE FIRST TIME BEFORE US CLAIMED FOR ASSESSMENT OF PEAK CREDIT. HENCE CONSIDERING THE FACTS OF THIS CASE WE REMIT THIS ISSUE TO THE FILE OF AO. THE AO SHALL REVIEW ASSESSEES CLAIM AND COMPUTE THE PEAK CREDIT AND BRING THE SAME TO TAX. ACCORDINGLY THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . 7. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE S TANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 07.08.2014. SD/- SD/- [ GEORGE MATHAN ] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 07.08.2014. R.G.(.P.S.) ITA.NO.626/KOL/2012 SHRI RA M PRASAD MONDAL A.YR.2008-09 4 COPY OF THE ORDER FORWARDED TO: 1. SHRI RAM PRASAD MONDAL, NAMOPARA, P.O.JAMURIA, DIST .BURDWAN-71334. 2 I.T.O., WARD-2(2), ASANSOL. 3 . CIT(A)-XXXII, KOLKATA 4. CI T KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES