Shyam Milan Agarwal, Siliguri V. I.T.O Wd - 2(3),Siliguri., Darjeeling

ITA 742/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4891 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 02-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 08-04-2013
• Court: TRIBUNAL
• Department Lawyers: ANGAM SHAIZA; SALLONG
• Keywords: Peak credit
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI M. BALAGANES H, AM] I.T.A NOS. 742 & 818/KOL/2013 ASSESSMENT YEAR: 2008-09 SHYAM MILAN AGARWAL VS. INCOME-TAX OFFICER, WD- 2(3), SILIGURI (PAN:AFRPA2118K) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 02.05.2016 DATE OF PRONOUNCEMENT: 04.05.2016 FOR THE APPELLANT: SHRI SUBASH AGARWAL, ADVOCATE FOR THE RESPONDENT:SHRI ANGAM SHAIZA, CIT, DR & SHRI SALLONG YADEN, ADDL. CIT, SR. DR ORDER PER SHRI MAHAVIR SINGH, JM: BOTH THESE APPEALS BY ASSESSEE ARE ARISING OUT OF O RDER OF CIT(A)-, SILIGURI AND CIT, SILIGURI VIDE APPEAL NO. 96/CIT(A)/SLG/10-11 DATED 16.01.2013 AND MEMO NO. CIT/SLG/263/2012-13/8399-8402 DATED 18.01.2013 (REV ISION ORDER) RESPECTIVELY. ASSESSMENT WAS FRAMED BY ITO, WD-2(3), SILIGURI U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2008- 09 VIDE HIS ORDER DATED 31.12.2010. 2. THE ONLY ISSUE IN ITA NO. 742/KOL/2013 IS AS RE GARDS TO THE ORDER OF CIT(A) CONFIRMING THE ADDITION MADE BY AO ON ACCOUNT OF CASH DEPOSITS MADE IN DIFFERENT BANK ACCOUNTS TAKING THE PEAK CREDIT OF INDIVIDUAL BANK ACCOUNT AT RS.59,73 ,122/-. ACCORDING TO ASSESSEE, COMBINED PEAK CREDIT WILL BE AT RS.29,24,140/-. INTERESTING LY, LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ISSUE IN ITA NO. 818/KOL/2013 IS ALSO REGARDING SOM E UNDISCLOSED BANK ACCOUNTS BUT ACCORDING TO HIM, THE CIT HAS NO PROVED THAT THE ASSESSMENT O RDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. ON QUERY FROM THE BENCH, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT FOR FRESH ASSESSMENT FRAMED IN RESPONSE TO SET ASIDE AS SESSMENT U/S. 263 OF THE ACT BY THE CIT, THERE ARE 3 OR 4 MORE UNDISCLOSED BANK ACCOUNTS, WHICH IS THE SUBJECT MATTER OF ADDITION IN FRESH ASSESSMENT IN VIEW OF THE DIRECTIONS UNDER 263 OF T HE ACT. LD. COUNSEL FOR THE ASSESSEE MADE ONLY ONE PLEA THAT IN CASE THE ASSESSEES APPEAL IS SET ASIDE TO THE FILE OF AO FOR FRESH ADJUDICATION AFTER TAKING THE COMBINED PEAK INSTEAD OF INDIVIDUAL PEAK CREDIT AND ALSO CAN BE CONSIDERED THOSE BANK ACCOUNTS WHICH ARE CONSIDERED IN THE CONSEQUENTIAL ORDER PASSED IN 2 ITA NO.818 & 742/KOL/201 3 SHYAM MILAN AGARWAL, AY 2008-09 CONSEQUENCE TO SECTION 263 OF THE ACT. WHEN THIS P ROPOSITION WAS PUT TO LD. CIT, DR, HE FAIRLY CONCEDED THE POSITION. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE AO HAS MADE ADDITION AND CONFIRMED THE ACTION OF AO JUSTIFYING THE ADDITION OF RS.59,73,122/- BEING THE TOTAL OF INDIVIDUAL PEA K CREDIT MADE ON ACCOUNT OF DEPOSITS MADE IN DIFFERENT BANK ACCOUNTS. THE PLEA OF THE ASSESSEE IS QUITE REASONABLE THAT THE COMBINED PEAK CREDIT IS TO BE TAKEN BUT FOR THAT HE HAS TO PROVE THAT THERE IS INTER-TRANSFER OR INTER-DEPOSIT MADE OUT OF THE WITHDRAWALS MADE. AS BOTH THE PARTIES A GREED THAT THE ISSUES CAN BE REMITTED BACK TO THE FILE OF THE AO TO RE-DECIDE THE ISSUE AFTER TAK ING INTO CONSIDERATION OTHER 3 OR 4 UNDISCLOSED BANK ACCOUNT WHERE CASH DEPOSITS ARE MADE, THE ISSU E NEEDS RE-EXAMINATION. ACCORDINGLY, WE SET ASIDE THESE ORDERS OF THE LOWER AUTHORITIES AND REMIT THE ISSUE BACK TO THE FILE OF THE AO. HOWEVER, AS REGARDS TO THE APPEAL FILED BY ASSESSEE IN CONSEQUENCE TO REVISION ORDER PASSED BY CIT U/S. 263 OF THE ACT, WE FIND THAT THE CIT HAS N O WHERE GIVEN HIS FINDING DESPITE THE FACT HE ISSUED SHOW CAUSE NOTICE ON THE FOLLOWING GROUNDS: 1. THAT, DURING THE COURSE OF ASSESSMENT PROCEEDI NGS, IT WAS FOUND THAT THE ASSESSEE HAD MADE INVESTMENTS IN VARIOUS MUTUAL FUNDS DURING THE FINANCIAL YEAR 2007-08 RELEVANT TO ASST. YEAR 2008-09. SOURCE OF INVESTMENTS MADE IN SUCH MU TUAL FUNDS, PROFITS ARISING FROM REDEMPTION OF SUCH MUTUAL FUNDS AND THE AMOUNT OF I NVESTMENTS AVAILABLE WITH THE ASSESSEE AT THE END OF THE FINANCIAL YEAR HAD NOT BEEN CONSIDER ED IN THE ASSESSMENT ORDER. 2. THAT, DURING THE COURSE OF ASSESSMENT PROCEEDING S, SOME BANK ACCOUNTS WERE FOUND TO EXIST IN THE NAME OF THE ASSESSEE WHICH WERE NOT DISCLOSE D IN HIS RETURN OF INCOME. OUT OF THESE BANK ACCOUNTS, TRANSACTIONS MADE IN TWO BANK ACCOUN TS MAINTAINED BY ASSESSEE WITH AXIS BANK LTD. HAD NOT BEEN CONSIDERED IN THE ASSESSMENT ORDER. 3. THAT, IN THE RETURN FILED BY FOR AY. 2008-09, AS SESSEE HAD SHOWN INCOME OF RS.5,200/- FROM COMMISSION & BROKERAGE. DURING THE COURSE OF ASSESS MENT PROCEEDINGS, ASSESSEE STATED THAT HE IS DEALING IN THE BUSINESS OF SUPPLY OF GREEN TE A LEAVES, FROM THE RECORDS, IT WAS SEEN THAT THE ASSESSEE HAD NOT FURNISHED ANY DETAILS REGARDIN G HIS INCOME FROM COMMISSION & BROKERAGE'. ALSO, NO DETAIL WAS PROVIDED BY THE ASS ESSEE REGARDING HIS BUSINESS OF SUPPLY OF GREEN TEA LEAVES. AS A RESULT, THESE POINTS REMAINE D UNVERIFIED. FINALLY, CIT SET ASIDE THE ASSESSMENT ONLY ON THE R EASON THAT THE ASSESSEE HAS NOT FILED ANYTHING IN HIS DEFENCE BY OBSERVING IN PARA 2 AND 3 AS UNDER: 2. ACCORDINGLY, A NOTICE U/S 263 OF THE I.T. ACT, 1961 WAS ISSUED TO ASSESSEE VIDE THIS OFFICE NO. CIT/SLG/263/2012-13/7014 DATED 06.L2.2012 PROPO SING SET-ASIDE OF THE ASSESSMENT IN TERMS OF SECTION 263 OF THE I.T. ACT. 1961 ON THE G ROUNDS ENUMERATED ABOVE. THE CASE WAS FIXED FOR HEARING ON 21.12.2012. IN COMPLIANCE, SRI SUJIT KUMAR BASU, ADVOCATE (HEREINAFTER REFERRED TO AS AR), REPRESENTING THE ASSESSEE APPEA RED ON 26.12.2012 AND STATED THAT HE NEEDS SOME MORE TIME TO FILE HIS WRITTEN SUBMISSION. ON T HE REQUEST OF AR, THE CASE WAS ADJOURNED TO 10.01.20 13. 3 ITA NO.818 & 742/KOL/201 3 SHYAM MILAN AGARWAL, AY 2008-09 3. NOBODY ATTENDED ON 10.01.2013 NOR FILED ANY WRIT TEN SUBMISSION. TILL DATE, NEITHER THE ASSESSEE NOR HIS AR APPEARED OR FILED ANY WRITTEN S UBMISSION. IT IS THUS PRESUMED THAT THE ASSESSEE HAS NOTHING TO SUBMIT IN HIS DEFENCE AND I N AGREEMENT WITH THE VERSION GIVEN IN THE SHOW-CAUSE LETTER DATED 06.12.2012. THE ASSESSMENT IS THEREFORE, SET ASIDE ON THE ABOVE ISSUES, IN TERMS OF SECTION 263 OF THE ACT. THE A.O. SHALL MAKE IN-DEPTH ENQUIRY ON THE ABOVE ISSUES AND PASS A SPEAKING ORDER BASED ON THE MERITS OF TH E CASE AFTER AFFORDING REASONABLE OPPORTUNITIES OF HEARING TO THE ASSESSEE. 4. WE FIND THAT FOR SETTING ASIDE OF THE ASSESSMENT THERE SHOULD BE A DEFINITE FINDING THAT THE ASSESSMENT IS ERRONEOUS AND ALSO PREJUDICIAL TO THE INTEREST OF REVENUE BUT NOTHING IS COMING OUT OF THE ORDER OF CIT. IN TERM OF THE ABO VE, WE QUASH THIS REVISION ORDER PASSED BY CIT. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IN ITA NO. 742/KOL/2013 IS ALLOWED FOR STATISTICAL PURPOSES AND THE APPEAL FILED BY ASSESSEE IN ITA NO . 818/KOL/2013 AGAINST REVISION ORDER OF CIT U/S. 263 OF THE ACT IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 04.05.201 6 SD/- SD/- (M. BALAGANESH) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 4 TH MAY, 2016 JD. (SR. P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI SHYAM MILAN AGARWAL, P.O ADHIKAR, DIST. KHORIBARI, DARJEELING, SILIGURI-734001 2. RESPONDENT- ITO, WARD-2(3), SILIGURI. 3. CIT(A) , SILIGURI 4. CIT , SILIGURI 5. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .