Sri Sanjay Khaemka, Kolkata V. ITO,Ward-50(3), Kolkata, Kolkata

ITA 997/KOL/2012

• Counselvise Citation: 99723514 RSA 2012
• Duration Of Justice: 2 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 26-06-2012
• Court: TRIBUNAL
• Department Lawyers: SABOORUL H USMANI LD JCITSR
• Assessee Lawyers: SUBASH AGARWAL LD
• Section: 143(3); 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA B EFORE H ON BLE HON BLE SHRI RAJPAL YADAV, JM & SHRI B.P. JAIN , AM I.T.A NO . 997 /KOL/20 12 A.Y : 200 8 - 09 SRI SANJAY KHEMKA VS. I.T.O WARD 50(3) , KOLKAT A PAN: A LYPK3699Q [ APPELLANT ] [ R ESPONDENT ] APPELLANT BY : SHRI SUBASH AGARWAL , ADVOCATE, LD.AR RESPONDENT BY : SHRI SABOORUL H. USMANI, L D. JCIT/SR.DR DATE OF HEARING: 0 6 /0 5 /2015 DATE OF PRONOUNCEMENT: 8 / 5 /2015 ORDER PER RAJPAL YADAV, JM: TH E ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORDER OF THE LD. CIT(A) DATED 30 - 04 - 2012 PASSED FOR THE ASSESSMENT YEAR 200 8 - 09 . 2. TH E SOLITARY SUBSTANTIAL GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF R S.20,74,570/ - , WHICH WAS ADDED BY THE AO ON THE GROUND THAT THE ASSESSEE HAS FAILED TO DISCLOSE THE SOURCE OF CASH DEPOSIT IN THE BANK ACCOUNT . 3. T HE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME ELECTRONICALLY ON 30 - 09 - 2008 DECLARING NIL INCOME. THIS RETURN WAS REVISED ON 06 - 11 - 2008 DECLARING TOTAL INCOME OF RS.3,05,001/ - . THE LD.AO HAD RECEIVED ANNUAL INFOR MATION REPORT EXHIBITING DATA OF THE BANKS. IT REVEALED FROM THE RECORD THAT THE ASSESSEE HAS DEPOSITED A SUM OF RS. 37,83,138/ - INTO ICICI BANK . THE LD.AO ISSUED NOTICE U/S. 143(2) OF THE I.T ACT 1961 , WHICH WAS DULY SERVED UPON THE ASSESSEE. THE AO HAS CALLED FOR DETAILS FROM THE ICICI BANK FOR VERIFICATION OF THE TRANSACTION BY EXERCISING HIS POWER U/S. 133(6) OF THE I.T ACT 1961. AFTER HEARING THE ASSESSEE , HE PASSED AN ASSESSMENT ORDER U/S. 143(3) OF THE I.T ACT 1961 ON 27 - 12 - 2010 AND DETERMINED THE TAXABLE INCOME AT RS.40,88,184/ - BY MAKING AN ADDITION OF RS.37,83,183/ - . 4. ON APPEAL, THE LD.CIT(A) HAS PARTLY DELETED THE ADDITION. 5. THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED ON RECORD THE DETAILS IN TABULAR FORM EXHIBITING THE ADDITION MADE BY THE AO , RELIEF GIVEN BY THE LD.CIT(A) AND ULTIMATE ADDITION ITA NO . 997//KOL/12 - A - JM SHRI SANJAY KHEMKA 2 REMAINED. IN ORDER TO APPRECIATE THE CONTROVERSY IN MORE SCIENTIFIC WAY , W E DEEM IT PROPER TO TAKE NOTE OF THE DETAILS. IT READS AS UNDER: - SL.NO. PARTICULARS ADDITION MADE BY THE AO RELIEF GIVEN BY THE CIT(A) ADDITION SUSTAINED A. CREDIT CARDS PAYMENTS 1,013,886.00 1,013,886.00 - B. CASH DEPOSITED IN ICICI BANK ACCOUNT 2,76,252.00 694,682.00 2,074,570.00 3,783,138.00 1,708,568.00 2,074,570.00 SOURCE EXPLAINED IN RESPECT OF CASH DEPOSITS I NTO ICICI BANK ALLOWED BY CIT(A) OPENING CASH BALANCE 136,682.00 136,682.00 SALE OF CAR 380,000.00 247,500.00 ADVANCE ON ACCOUNT OF SALE OF LAND 350,000.00 310,500.00 WITHDRAWAL FROM ICICI BANK 1,845,668.00 WITHDRAWAL FROM AXIS BANK 364,584.0 0 CREDIT CARD WITHDRAWAL 86,500.00 ICICI BANK LAS A/C 35,000.00 TOTAL 3,198,434.00 694,682.00 6. WITH THE ASSISTANCE OF THE LD. REPRESENTATIVE, WE HAVE GONE THROUGH THE DETAILS. THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED THE CASH FLO W STATEMENT PREPARED BY THE ASSESSEE STARTING FROM 1 - 4 - 20 07 AND ENDING ON 31 - 03 - 2008 . THESE DETAILS ARE AVAILABLE AT PAGES 7 - 24 OF THE PAPER BOOK. THE ASSESSEE HAS ALSO PLACED ON RECORD THE BANK STATEMENT MAINTAINED WITH ICICI BANK AVAILABLE AT PAGES 2 5 - 42. ON PAGE 6 OF THE PAPER BOOK THE SUMMARY OF CASH FLOW HAS BEEN PREPARED BY THE ASSESSEE, WHICH READS AS UNDER: - SUMMARY OF CASH FLOW: 1,36,682 BALANCE FROM LAST YEAR 28,00,531 ICICI BANK DEPOSITED 18,45,668 ICICI BANK WITHDRAWAL 1,08,300 AXIS BANK DEPOSIT 3,64,584 AXIS BANK WITHDRAWAL 48,000 ICICI BANK LAS A/C DEPOSIT 3,80,000 SALE OF CAR 4,902 BIKE PAYMENT 3,50,000 LAND ADVANCE 27,724 INSURANCE PREMIUM PAID 86,500 CREDIT CARD WITHD RAWAL 1,32,500 CR.A/C PAYMENT 35,000 ICICI BANK LAS A/C 76,479 BALANCE TO NEW BOOK 31,98,436 31,98,436 7. ACCORDING TO THE ASSESSEE, THE ACCOUNT MAINTAINED WITH THE ICICI BANK IS A CURRENT ACCOUNT. IT IS BEING US ED BY THE ASSESSEE FOR INVESTMENTS IN THE SHARE. THE WITHDRAWALS MADE BY THE ASSESSEE FROM THE BANK WERE RE - DEPOSITED AND THE SAME DULY TALLY WITH THE ITA NO . 997//KOL/12 - A - JM SHRI SANJAY KHEMKA 3 CASH FLOW STATEMENT SUBMITTED BY THE ASSESSEE. THE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. REVENUE AUTHORI TIES HAVE NOT GIVEN HIM THE CREDIT OF SMALL DEBIT ENTRIES ON THE GROUND THAT THIS AMOUNT MUST HAVE BEEN USED BY THE ASSESSEE FOR OTHER PURPOSE INSTEAD OF RE - DEP OSIT ING THE SAME. ON VERIFICATION OF THE RECORD, WE FIND THAT THE LD. REVENUE AUTHORITIES HAVE FAILED TO APPRECIATE THE TRANSACTION IN RIGHT PERSPECTIVE. FOR EXAMPLE, ON 3 - 8 - 08 THE ASSESSEE HAS SHOWN WITHDRAWAL OF R S.6,520 IN HIS CASH BOOK. UPTO 7 - 3 - 08 HE HAS MADE WITHDRAWAL ON 5 OCCASIONS, THEN ON 7 - 3 - 08 ITSELF HE HAS DEPOSITED THE SUM OF RS. 35,000/ - AND THEN WITHDRAWN RS.20,000/ - . HE MADE RE - DEPOSITED R S.19,400/ - ON 8 - 3 - 08 . THE REVENUE HAS BEEN ACCOUNTING THIS MAJOR DEPOSIT ENTRIES, BUT NOT SETTING OF THEM WITH SMALL DEBIT ENTRIES IN THE ACCOUNTS. THERE IS NO LOGIC IN THE FIN DING OF THE LD.AO ON THIS COUNT. THE COMPLETE ACCOUNT HAS TO BE READ RHYTHM ATICALLY IN A COHERENCE. THEY CANNOT TAKE THIS AMOUNT ON P ICK AND CHO O SE BASIS FROM CURRENT ACCOUNT AND THEN TREATED IT AS UNDISCLOSED INCOME OF THE ASSESSEE WITH THE HELP OF SEC TION 68 OF THE I.T ACT 1961 . THE ASSESSEE HAS RECONCILED THE DEPOSIT ENTRIES WITH THE WITHDRAWALS. THEREFORE, WE ARE OF THE VIEW THAT THE ADDITION IS NOT SUSTAINABLE . W E DELETE THE ADDITION BY ALLOWING THIS APPEAL OF THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 - 5 - 2015 SD/ - SD/ - [ B.P. JAIN ] [ RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 8 - 5 - 2015 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT - SHRI SANJAY KHEMKA C/O SRI S.S KHEMKA, ADVOCATE, 15 C.R AVENUE, 4 TH FL., KOL - 72. 2 RESPONDENT : I T O W 50(3), UTTRAPAN, ULTADANGA, KOL - 54. 3 . CIT, 4 . CIT(A), 5 . D R, KOLKATA BENCHES, KOLKATA *PP/SPS TRUE COPY] BY ORDER, ASSTT REGISTRAR