Income Tax Officer-2, Raibareli V. Suresh Bahadur Singh, Raibareli

ITA 719/LKW/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4409 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 31-05-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 02-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Peak credit; Tax effect

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI ABY T. VARKEY, JUDICIAL MEMBER ITA NO.719/LKW/2015 ASSESSMENT YEAR 2010-11 SURESH BAHADUR SINGH, 740, SIDDHARTH NAGAR, NEAR GOVERNMENT COLONY, RAEBARELI PAN AVSPS 7494 M VS INCOME TAX OFFICER-2, RAEBARELI CO NO.01/LKW/2016 ASSESSMENT YEAR 2010-11 INCOME TAX OFFICER - 2, RAEBARELI VS SURESH BAHADUR SINGH, 740, SIDDHARTH NAGAR, NEAR GOVERNMENT COLONY, RAEBARELI PAN AVSPS 7494 M (RESPONDENT) (APPELLANT) SHRI P.K. KAPOOR, CA APPELLANT BY SH. AMIT NIGAM, DR RESPONDENT BY 31 /0 5 /201 6 DATE OF HEARING 08 / 06 /201 6 DATE OF PRONOUNCEMENT O R D E R PER P.K. BANSAL, AM. THIS APPEAL IS FILED BY THE REVENUE AND THE CROSS O BJECTION IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) DATED 31.08.2015. 2. SO FAR AS THE GROUNDS IN ITA NO. 719/LKW/2015 FI LED BY THE REVENUE IS CONCERNED BOTH THE PARTIES AGREED THAT T AX EFFECT IS LESS 2 THAN RS.10.00 LAKH, THEREFORE, IN VIEW OF THE CIRCU LAR NO. 21/2015 DATED 10 TH DECEMBER, 2015 FILE NO.279 OF MISC. 142/2007 ITJ (PT) HAS ISSUED THE DIRECTION IN SUPERSESSION OF THE INS TRUCTION NO.5/2014 DATED 10.07.2014 IN PURSUANCE WITH THE POWER INTERE STED U/S.268A OF THE INCOME TAX ACT THAT NO APPEAL SHOULD BE FILED B EFORE THIS TRIBUNAL IN CASE TAX EFFECT DOES NOT EXCEED RS.10 LAC. THE TAX EFFECT IN THIS REGARD MEANS THE DIFFERENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WHAT HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESP ECT OF ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED. THIS CIRCULAR FURTHER STATES THAT TAX WILL NOT INCLUDE ANY INTEREST THEREON THE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. WE FURTHER NOTED THAT UNDER PARAGRAPH 10 WHICH IS REPRODUCED AS UNDER, IT HAS BEEN MENTIONED IN THE CIRCULAR THAT THIS INSTRUCTION WILL APPLY EVEN TO THE PENDIN G APPEALS. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/TRIBUNALS. PENDING APPEALS BELOW THE SPECIFI ED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/NOT PRESSED. APPEA LS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTI ONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 3. IN THE IMPUGNED CASE, WE NOTED THAT THE TAX EFFE CT ON THE ISSUE UNDER DISPUTE DOES NOT EXCEED RS.10 LAC. IN VIEW OF THIS FACT AS PER THE INSTRUCTION, THE REVENUE IS NOT SUPPOSED TO PRE SS THE APPEAL. WE, THEREFORE, DISMISS THE APPEAL FILED BY THE REVENUE IN LIMINE WITHOUT GOING INTO THE MERITS OF THE CASE AS IN OUR OPINION THE CIRCULAR ISSUED BY CBDT ARE BINDING ON THE DEPARTMENTAL OFFICERS IN VIEW OF THE PROVISION OF SECTION 268A(1) OF THE ACT. THE SAID V IEW HAS BEEN TAKEN BY HONBLE SUPREME COURT IN THE CASE OF NAVNEET LAL ZAVERI VS. AAEC 3 56 ITR 198 (SC). WE ACCORDINGLY DISMISS THE APPEAL F ILED BY THE REVENUE. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE S TAND DISMISSED CO NO. 01/LKW/2016 5. IN THE CROSS OBJECTION, LD. AR OF THE ASSESSEE D ID NOT PRESS THE GROUND NO.1, THEREFORE, THE SAME IS DISMISSED AS NO T PRESSED. 6. GROUNDS NO. 2 AND 3 RELATE TO THE SUSTENANCE OF THE ADDITION OF RS.7,10,905/- BY THE CIT(A) AS PEAK CREDIT OUT OF T HE DEPOSITS MADE BY THE ASSESSEE IN THE SAVING BANK ACCOUNT NO. 6810 1010001056 WITH AXIS BANK. 7. ON THIS ISSUE, WE HAVE HEARD THE RIVAL SUBMISSIO NS AND CAREFULLY CONSIDERED THE SAME AND HAVE GONE THROUGH THE ORDER OF THE CIT(A). WE NOTED THAT THE ASSESSING OFFICER HAD MADE THE ADD ITION IN RESPECT OF THE CASH DEPOSIT MADE BY THE ASSESSEE IN THE SAV ING BANK ACCOUNT AMOUNTING TO RS.22,15,400/-. WHEN THE MATTER WENT BE FORE THE CIT(A), CIT(A) WORKED OUT THE PEAK CREDIT AS UNDER: - A. PEAK BALANCE AS ON 31.12.2009 15,01,100/- B. LESS: OPENING BALANCE OF CASH AS ON 01.04.2009( -) 9,95,595/- C. NEGATIVE BALANCE AS ON 29.03.2010 ADDED 2,05 ,400/- TOTAL ADDITION WORKED OUT THE BASIS OF PEAK BALANCE 7,10,905/- 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE GONE THROUGH THE ANNEXURE-A ATTACHED WITH THE CIT(A)S O RDER. WE FIND THAT THE PEAK DEPOSIT IN THE BANK ON 18.03.2010 WAS RS.9 ,82,692/- AND NOT THE SUM OF RS.15,01,100/- AS HAS BEEN TAKEN BY THE CIT(A) ON 31.12.2009. THERE IS NO DISPUTE SO FAR THE OPENING BALANCE IN RESPECT OF THE DEPOSIT IN THE BANK IS CONCERNED, THE OPENIN G BALANCE IN THE 4 BANK WAS RS.9,95,595/-. SINCE THE OPENING BALANCE I N THE BANK WAS MORE THAN THE PEAK BALANCE OF RS.9,82,692/-, THEREF ORE, IN OUR OPINION THERE CANNOT BE ANY ADDITION IN RESPECT OF THE UNDI SCLOSED DEPOSIT MADE IN THE BANK. WE THEREFORE, DELETE THE ADDITION OF RS.7,10,905/-. 9. IN THE RESULT, APPEAL OF THE REVENUE STANDS DISM ISSED AND CROSS OBJECTION OF THE ASSESSEE IS PARTLY ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED ON THE CAPTION PAGE) SD/- SD/- (ABY T. VARKEY) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 08/06/2016 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. REG ISTRAR