ITO, Ward - 50(1), Kolkata, Kolkata V. Sk. Jasmir Hossain, North 24 Parganas

ITA 90/KOL/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7653 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2012
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 13-01-2011
• Court: TRIBUNAL
• Department Lawyers: A K PRAMANICK
• Assessee Lawyers: D KHASNOBIS A R
• Keywords: Peak credit
• Section: 143(3); 133(6); 131

Judgement Text

, ' , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA () , . . , '# ) [BEFORE SRI MAHAVIR SINGH, J.M. & SHRI C.D. RAO, A .M.] $ $ $ $ / I.T.A NO. 90/KOL/2011 ASSESSMENT YEAR : 2007-2008 INCOME TAX OFFICER, WARD-51(2), KOLKATA -VS.- SK . JASMIR HOSSAIN, 24-PARGANAS (N) (PAN : ABMPH 2954 D) ( %& /APPELLANT ) ( '(%& / RESPONDENT ) & $ $ $ $ / I.T.A NO. 08/KOL/2011 ASSESSMENT YEAR : 2007-2008 SK. JASMIR HOSSAIN, 24-PARGANAS(NORTH) -VS.- INC OME TAX OFFICER, WARD-51(2), KOLKATA ( %& /APPELLANT ) ( '(%& / RESPONDENT ) FOR THE DEPARTMENT: SHRI A.K. PRAMANICK, D.R. FOR THE ASSESSEE: SHRI D. KHASNOBIS, A.R. )* + , # )* + , # )* + , # )* + , # /DATE OF HEARING: 06.02.2012 -. , # -. , # -. , # -. , # /DATE OF PRONOUNCEMENT : 06.02.2012 '/ / ORDER PER SHRI MAHAVIR SINGH, JUDICIAL MEMBER/ :- THESE CROSS APPEALS BY REVENUE AND ASSESSEE ARE ARI SING OUT OF ORDER OF CIT(A)-XXXII, KOLKATA IN APPEAL NO.195/CIT(A)-XXXII/09-10/51(2)/K OL VIDE DATED 09.08.2010. ASSESSMENT WAS FRAMED BY ITO, WD-51(2), KOLKATA U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2007- 08 VIDE HIS ORDER DATED 30.12.2009. 2. THE ONLY COMMON ISSUE IN THESE CROSS APPEALS IS AS REGARDS TO THE ORDER OF CIT(A) RESTRICTING THE ADDITION AT RS.7,63,004/- BY TAKING PEAK CREDIT IN THESE TWO BANK ACCOUNTS OF ASSESSEE. FOR THIS, REVENUE RAISED FOLLOWING GROUN D: ITA NOS. 90/KOL./2011 & 08/KOL./2011 2 IN THE INSTANT CASE LD. CIT(A.) HAD CONFIRMED THA T THE TWO UNDISCLOSED A/CS. RELATE TO THE ASSESSEE ONLY. HOWEVER, HE ERRED IN TAKING ONLY THE PEAK CREDITS O F THESE WITHOUT SHOWING ANY REASON OR WITHOUT GIVING ANY OPPORTUNIT Y TO THE ASSESSING OFFICER TO EXPLAIN THE MATTER. THIS WAY HE HAD GIVE N A RELIEF OF RS.13,21,726/- TO THE ASSESSEE. THEREFORE, 2 ND APPEAL IS BEING PREFERRED FROM THIS END ON THIS POINT. FOR THIS, ASSESSEE HAS RAISED FOLLOWING GROUNDS :- FOR THAT THE AUTHORITIES BELOW ERRED IN RESTORING TO AGGREGATE ADDITION OF RS.7,63,004/- IN THE HANDS OF THE ASSES SEE CONSISTING OF PEAK CREDIT BALANCE OF RS.5,25,940/- AND RS.2,37,06 4/- RESPECTIVELY IN 2 (TWO) DIFFERENT BANK ACCOUNTS BELONGING TO THE MO THER AND THE YOUNGER BROTHER OF THE ASSESSEE. THESE BANK ACCOUNTS WERE DULY DISCLOSED IN THE RESP ECTIVE RETURNS OF THESE 2 (TWO) SEPARATE INCOME TAX ASSESSEES A FACT WHICH WAS NOT TAKEN INTO COGNIZANCE BY THE AUTHORITIES BELOW. ADD ITION MADE PURELY ON PRESUMPTION, SURMISE, CONJECTURE AND WITHOUT ANY BASIS OR BRINGING ANY COGENT EVIDENCE ON RECORD AGAINST THE ASSESSEE . 2. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND APPELLATE PROCEEDINGS, THE AUTHORITIES BELOW NOTED THAT ASSESSEE HAD DISCLOSED BANK A/C. MAINTAINED WITH IDBI BANK, KHARDAH BRANCH. DURING THE COURSE OF ASSESSMENT PRO CEEDINGS, ASSESSING OFFICER SOUGHT VERIFICATION UNDER SECTION 133(6) OF THE ACT IN RES PECT OF THE BANK A/C. AND THE SAID BANK SUPPLIED INFORMATION ABOUT OTHER TWO BANK ACCOUNTS BEARING A/C. NOS. 061104000054889 AND 061104000074245. THESE TWO BANK ACCOUNTS WERE JOINT LY HELD BY THE ASSESSEE ALONG WITH HIS MOTHER AND ANOTHER WITH BROTHER. AS THE ASSESSING O FFICER REQUIRED TO EXPLAIN DEPOSITS MADE IN THESE TWO BANK ACCOUNTS, NEITHER ASSESSEES MOTHER NOR HIS BROTHER APPEARED BEFORE ASSESSING OFFICER AND EVEN ASSESSEE COULD NOT EXPLAIN BEFORE ASSESSING OFFICER THE SOURCES OF THESE DEPOSITS. DURING THE ASSESSMENT PROCEEDINGS, IT WAS CONTENDED THAT THESE ACCOUNTS, I.E. THE ACCOUNT NO. 061104000054889 WITH IDBI BANK BENEFICI ALLY BELONGED TO MST. JUBEDA BIBI, THE MOTHER OF ASSESSEE AND THE ACCOUNT NO. 061104000074 245 BELONGED TO ASSESSEES BROTHER, SK. JASIM HOSSAIN. CIT(APPEALS) NOTED THAT THE ASSESSE ES MOTHER AND BROTHER AVOIDED PERSONAL APPEARANCE BEFORE ASSESSING OFFICER DESPITE SUMMONS ISSUED UNDER SECTION 131 OF THE ACT. EVEN BEFORE CIT(APPEALS), ASSESSEE HAD FURNISHED NO EXPLANATION IN RESPECT OF TWO TRANSACTIONS. HENCE, HE DIRECTED ASSESSING OFFICER TO RESTRICT THE ADDITION QUA THE PEAK OF THESE ITA NOS. 90/KOL./2011 & 08/KOL./2011 3 TWO BANK ACCOUNTS AT RS.7,63,004/- BEING HIGHEST CR EDIT BALANCE OCCURS AS ON ONE TIME. BEING AGGRIEVED, BOTH CAME IN APPEAL BEFORE US. 3. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT NO DOUBT CIT(APPEALS) HAS RESTRI CTED THE PEAK ADDITION BUT THERE IS NO COMPUTATION OR CALCULATION OF PEAK IN THE HANDS OF ASSESSEE. ASSESSEES LD. COUNSEL BEFORE US CONTENDED THAT HE IS READY TO PRODUCE THESE TWO PER SONS AND TO PROVE THAT THESE ENTRIES BELONGED TO ASSESSEES MOTHER AND BROTHER IN THE RE SPECTIVE BANK ACCOUNTS AND NOT TO THE ASSESSEE. FOR THIS, HE REQUESTED THE BENCH TO SET A SIDE THE ISSUE TO THE FILE OF ASSESSING OFFICER FOR FRESH RE-ADJUDICATION. 4. LD. SR. D.R. ALSO REQUESTED FOR SETTING ASIDE OF THIS ISSUE TO THE FILE OF ASSESSING OFFICER FOR RE-COMPUTING THE PEAK IN TERMS OF ACTUAL ENTRIE S IN THESE TWO BANK ACCOUNTS. WE FIND THAT THIS ISSUE, IN ANY CASE, IS TO BE REMANDED BACK TO THE FILE OF ASSESSING OFFICER AND ASSESSING OFFICER WILL GIVE OPPORTUNITY TO ASSESSEE TO PROVE THE CLAIM THAT THESE TWO TRANSACTIONS BELONGED TO ASSESSEES MOTHER AND BROTHER AS PER LA W. SECONDLY, IN CASE, THESE ENTRIES ARE HELD TO BE BELONGING TO ASSESSEE, ASSESSING OFFICER WILL ASK THE ASSESSEE TO GIVE PEAK COMPUTATION OF THESE TRANSACTIONS OR HE WILL COMPUTE HIMSELF. I N CASE, ASSESSEE WILL NOT PROVIDE INFORMATION ON PEAK CREDITS THE AO WILL VERIFY AND FRAME ASSESS MENT ACCORDINGLY. THIS GROUND OF APPEAL OF REVENUE AND CROSS OBJECTION OF ASSESSEE ARE SET ASI DE TO THE FILE OF ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH IN ACCORDANCE WITH LAW. 5. IN THE RESULT, THE APPEAL FILED BY REVENUE AND C ROSS OBJECTION FILED BY ASSESSEE BOTH ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 06/ 02 /2012. #) 0 1 '/ 06/02/2012. . . '# , (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 06/ 02/ 2012 COPY OF THE ORDER FORWARDED TO: ITA NOS. 90/KOL./2011 & 08/KOL./2011 4 1 . SK. JASMIR HOSSAIN, ISWARIPUR, SURYAPUR, KHARDAH, D IST. 24- PARGANAS(NORTH) 2 ITO, WARD-51(2), KOLKATA, 9 TH FLOOR, BAMBOOVILLA, 169, AJC BOSE ROAD, KOLKATA-14 3. COMMISSIONER OF INCOME-TAX (APPEALS)- ,KOLKATA 4. CIT- , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, I.T.A.T., KOLKATA LAHA, SR. P.S.