NIRAJAN LAL SAINI, Jaipur V. ITO, Alwar

ITA 92/JPR/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9696 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 27-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Peak credit
• Section: 148; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA- @ ITA NO. 92/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2010-11. SHRI NIRANJAN LAL SAINI, VIJAY MANDIR ROAD, IN FRONT OF CORNER VITLER, ALWAR. CUKE VS. THE INCOME TAX OFFICER, WARD 1(1), ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACQPS 0719 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI R.A. VERMA (ADDL. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 09/03/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 10 /03/2017 VKNS'K@ ORDER PER SHRI KUL BHARAT, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A), ALWAR DATED 04.11.2016 PERTAINING TO A.Y. 2010-11. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THE LD. CIT (A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 75,99,501/- BY HOLDING THAT THE DEPOSIT TO THE EXTENT OF RS. 75,99,501/- IN THE BANK ACCOUNT OF TH E ASSESSEE REMAINS UNVERIFIED. HE HAS FURTHER ERRED IN CONFIRM ING THE ADDITION EVEN WHEN THE AO IN THE REMAND REPORT HAS ACCEPTED THE SOURCE OF DEPOSIT IN THE BANK ACCOUNT OUT OF TH E SALE PROCEEDS OF VEGETABLES FRUITS, ETC. 2 ITA NO. 92/JP/2017 SHRI NIRANJAN LAL SAINI. 2. THE ASSESSEE CRAVES TO ALTER, AMEND AND MODIFY A NY OF THE GROUNDS OF APPEAL. 3. NECESSARY COST BE ALLOWED TO THE ASSESSEE. 2. THE ONLY EFFECTIVE GROUND IS AGAINST CONFIRMING THE ADDITION OF RS. 75,99,501/- BY HOLDING THAT THE DEPOSIT TO THE EXTE NT OF RS. 75,99,501/- IN THE BANK ACCOUNT OF THE ASSESSEE REMAINED UNVERIFIED. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E CASE OF THE ASSESSEE WAS REOPENED AND THE ASSESSMENT UNDER SECTION 148 R EAD WITH SECTION 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT) WAS FRAMED VIDE ORDER DATED 8 TH MARCH, 2016. WHILE FRAMING THE ASSESSMENT, THE AO MADE ADDITION OF RS. 1,07,64,551/- ON ACCOUNT OF CASH DE POSITED IN THE BANK ACCOUNT OF THE ASSESSEE. AGGRIEVED BY THIS, THE AS SESSEE PREFERRED AN APPEAL BEFORE LD. CIT (A), WHO AFTER CONSIDERING THE SUBMI SSIONS, CONFIRMED THE ADDITION TO THE EXTENT OF RS. 75,99,501/-. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUN AL. 5. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN BRIEF. HE CONTENDED THAT IN THE REMAND REPORT SO CALLED, THE AO HAD VERIFIED ALL THE TRANSACTIONS AND THE LD. CIT ( A) WAS NOT JUSTIFIED IN NOT ACCEPTING THE REMAND REPORT. HE SUBMITTED ALTERNATI VELY THAT THE LD. CIT (A) OUGHT TO HAVE APPLIED PEAK CREDIT THEORY. IN SUPPO RT, HE HAS RELIED ON THE JUDGMENTS OF HONBLE RAJASTHAN HIGH COURT RENDERED IN THE CASES OF SIND 3 ITA NO. 92/JP/2017 SHRI NIRANJAN LAL SAINI. MEDICAL STORES VS. CIT (2015) 117 DTR 78 (RAJ.), CI T VS. ISHWARDASS MUTHA, 270 ITR 597 (RAJ.), JUDGMENT OF HONBLE ANDHRA PRAD ESH HIGH COURT RENDERED IN THE CASE OF CIT VS. PURUSHOTTAM JHAWAR (2014) 22 0 TAXMAN 74 (AP). THE LD. COUNSEL ALSO PLACED RELIANCE ON THE DECISION OF COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. MAHESH KUMAR JAYANT ILAL VORA, 3 SOT 96 (RAJKOT) IN SUPPORT OF THE CONTENTION THAT IN THE C ASE OF UNEXPLAINED DEPOSIT, ONLY PEAK CREDITS SHOULD BE TAKEN AS BY AGGREGATING THE DEPOSITS, THEY TENDS TO GET TAXED TWICE. 5.1. ON THE CONTRARY, THE LD. D/R OPPOSED THE SUBMI SSIONS AND PLACED RELIANCE ON THE JUDGMENT OF THE HONBLE PUNJAB & HA RYANA HIGH COURT RENDERED IN THE CASE OF DAYAL SINGH & SONS VS. CIT, 335 ITR 90 (P&H). 5.2. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE M ATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. WE FIND THAT IN REMAND REPORT, THE AO HAS STATED THAT THE ASSESSEE HAS DEPOSITED CASH OUT OF SALES OF VEGETABLES, FRUITS ETC. DURING THE ASSESSM ENT YEAR 2009-10 IN BANK ACCOUNT. THERE IS NO EVIDENCE STATING PARTY-WISE P URCHASES. IN THE ABSENCE OF THE SAME, WE ARE UNABLE TO ACCEPT THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT ALL THE DEPOSITS ARE EXPLAINED. HOWE VER, WE FIND THAT THERE ARE BOTH DEPOSITS AND WITHDRAWALS FROM THE BANK ACCOUNT . UNDER THESE FACTS, RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF SIND MEDICAL STORES VS. CIT (SUPRA), WE DIR ECT THE AO TO WORK OUT THE 4 ITA NO. 92/JP/2017 SHRI NIRANJAN LAL SAINI. PEAK CREDIT AND MAKE ADDITION ON THE PEAK CREDIT. T HE GROUND RAISED IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES IN TERMS OF THE DIRECTION HEREIN ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 10 /03/ 2017. SD/- SD/-P FOE FLAG ;KNO DQY HKKJR (VIKRAM SINGH YADAV) (KUL BHARAT) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 10 /03/2017. D/ VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI NIRANJAN LAL SAINI, ALWAR. 2. IZR;FKHZ@ THE RESPONDENT- THE ITO WARD 1(1), ALWAR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 92/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR