Sunil Kumar munka, Patna V. ACIT, Central Circle-1, Patna

ITSSA 39/PAT/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3906 (ITAT-PATNA)
• Duration Of Justice: 3 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 15-06-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 18-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Search and seizure; Peak credit
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PATNA ‘DB’ BENCH AT KOLKATA [Virtual Court] Before SRI SANJAY GARG, JUDICIAL MEMBER & SRI MANISH BORAD, ACCOUNTANT MEMBER I.T.(S.S.)A. Nos.: 36 to 38/Pat/2018 Assessment Years: 2011-12 to 2013-14 Pawan Kumar..........................................................Appellant [PAN: ABAPK 3376 Q] Vs. ACIT, Central Circle-1, Patna................................Respondent I.T.(S.S.)A. No.: 39/Pat/2018 Assessment Year: 2012-13 Sunil Kumar Munka................................................Appellant [PAN: AATPM 9837 G] Vs. ACIT, Central Circle-1, Patna................................Respondent Appearances by: Sh. Nishant Maitin, CA, appeared on behalf of the Assessee. Sh. Santosh Kumar, CIT (ITAT), appeared on behalf of the Revenue. Date of concluding the hearing : June 9 th , 2022 Date of pronouncing the order : June 16 th , 2022 ORDER Per Bench: The captioned appeals filed by the assessees pertaining to the Assessment Years (in short “AY”) 2011-12 to 2013-14 & 2012-13 are directed against separate orders passed u/s 250(6) of the I.T.(S.S.)A. Nos.: 36 to 38 & 39/Pat/2018 AYs: 2011-12 to 2013-14 & 2012-13 Pawan Kumar & Sunil Kumar Munka. Page 2 of 6 Income Tax Act, 1961 (in short the “Act”) by ld. Commissioner of Income-tax (Appeals)-3, Patna [in short ld. “CIT(A)”]. 2. As the issues raised in these appeals are common and as the facts are identical, for the sake of convenience and brevity, they are heard together and disposed off by way of this common order. For the purpose of adjudication, we will take the facts of the case of the assessee namely Pawan Kumar for AY 2011-12 and since the issues raised are common, our decision shall apply uniformly on the remaining three appeals. 3. The assessee Pawan Kumar has raised the following grounds of appeal in I.T.(S.S.)A. No.: 36/Pat/2018: “1. For that on the facts and in the circumstances of the case, Ld. CIT(A) erred in passing the order dismissing the appeal of the assessee without affording reasonable opportunity to explain the case. 2. For that on the facts and in the circumstances of the case, Ld. CIT(A) erred in upholding the addition of the Ld. AO of Rs.43,103/- as unexplained cash credit, disregarding peak credit theory adopted by the appellant when the same has duly been accepted by various Courts and Tribunals and addition of the same results in double taxation. Further the same view was also appreciated and accepted by the Ld. AO in the previous assessment years like AY 2009-10 where the appellant had disclosed Rs.4,006/- as peak balance on his own account in Bank of India, Danapur (A/c. No.446810110000778). 3. For that on the facts and in the circumstances of the case, Ld. CIT(A) erred in upholding the addition of the Ld. AO of Rs.2,38,664/- as unexplained cash deposit, disregarding peak credit theory adopted by the appellant when the same has duly been accepted by various Courts and Tribunals and addition of the same results in double taxation. Further the same view was also appreciated and accepted by the Ld. AO in the previous assessment years like AY 2009-10 where the appellant had disclosed Rs.3,15,890/- as peak balance on I.T.(S.S.)A. Nos.: 36 to 38 & 39/Pat/2018 AYs: 2011-12 to 2013-14 & 2012-13 Pawan Kumar & Sunil Kumar Munka. Page 3 of 6 his own bank account in Central Bank of India, New Dakbanglow Road, Patna (A/c. No.1320897350). 4. For that on the facts and in the circumstances of the case, Ld. CIT(A) had taken different views in different years on account of Peak Credit Theory and the same is totally unjust and against the principles of natural justice. 5. For that the appellant craves leave to add, alter or delete all or any grounds of appeal.” 4. At the outset, ld. Counsel for the assessee submitted that the only grievance of the assessee is that certain additions were made on the basis of peak credit in the undisclosed bank accounts found in the name of the assessee. So far as the addition of peak credit is concerned the assessee is not in dispute. The only grievance is that if a certain amount is offered to tax as a peak credit in a particular assessment year, then such amount should be considered for telescopic benefit in calculating the peak credit in subsequent years. It was prayed that for conducting these exercises the matter may be remanded back to the AO. 5. Per contra, ld. D/R vehemently argued supporting the order of both the lower authorities. 6. We have heard rival contentions and perused the records placed before us. We notice that search and seizure operation u/s 132(1) of the Act was conducted on 07.08.2014 at the premises of the assessee as the assessee is related to M/s. Gupta Nutritions Group of cases. There were two undisclosed bank accounts held by assessee in Bank of India and Central Bank of India. For AY 2011-12 the assessee offered peak credit in these two bank accounts at Rs. 43,103/- and Rs. 2,38,664/- was added to the income of the assessee. This amount is not in dispute. I.T.(S.S.)A. Nos.: 36 to 38 & 39/Pat/2018 AYs: 2011-12 to 2013-14 & 2012-13 Pawan Kumar & Sunil Kumar Munka. Page 4 of 6 7. The only contention of the assessee is that the undisclosed income offered to tax/peak credit additions for a particular assessment year is made by the ld. AO, the same should be considered for giving telescopic benefit in the subsequent year for computing peak credit additions in case no other incriminating material is found from the assessee during search proceedings. To make it more simple, we can understand it through an example. For instance, an addition of Rs. 1,00,000/- is made in the hands of an assessee on the basis of peak credit of a bank account during AY 2011-12. In the subsequent AY 2012-13 on the basis of working peak credit of the same undisclosed bank account the peak credit comes to Rs. 2,00,000/-. Now, whether the assessee is eligible to get the benefit of Rs. 1,00,000/- peak credit additions in AY 2011- 12 against the peak credit addition made for AY 2012-13. We find force in the contention of the ld. Counsel for the assessee that such telescopic benefit should be available to the assessee if no other addition is made under any other head and no other incriminating material is found during the course of search u/s 132 of the Act and the same stands unrebutted by ld. D/R. 8. We, therefore, under the given facts and circumstances of the case, restore the issue of calculating the telescopic benefit available to the assessee for the peak credit addition and the working needs to be provided by the assessee before ld. AO in form of a chart demonstrating the peak credit additions made in a particular year and the amount of telescopic benefit available in the subsequent year(s). We accordingly restore this issue to ld. AO for doing the needful in accordance with law after providing I.T.(S.S.)A. Nos.: 36 to 38 & 39/Pat/2018 AYs: 2011-12 to 2013-14 & 2012-13 Pawan Kumar & Sunil Kumar Munka. Page 5 of 6 sufficient opportunity to the assessee allow all the grounds raised by the assessee for statistical purposes and direct ld. AO to allow the benefit if any available to the assessee in terms indicated herein above. 9. Similar issues have been raised in case of assessee Pawan Kumar in ITA Nos. 37-38/Pat/2018 and 39/Pat/2018 in case of Sunil Kumar Munka and, therefore, our decision given in ITA No. 36/Pat/2018 in the case of Pawan Kumar shall apply mutatis mutandis on the remaining appeal also. 10. In the result, all the appeals filed by the assessees are allowed for statistical purposes. Kolkata, the 16 th June, 2022. Sd/- Sd/- [Sanjay Garg] [Manish Borad] Judicial Member Accountant Member Dated: 16.06.2022 Bidhan (P.S.) I.T.(S.S.)A. Nos.: 36 to 38 & 39/Pat/2018 AYs: 2011-12 to 2013-14 & 2012-13 Pawan Kumar & Sunil Kumar Munka. Page 6 of 6 Copy of the order forwarded to: 1. Pawan Kumar, House at SBI Campus, Ajeevan Bhawan, Mithila Colony, Bataganj, Danapur, Patna-800 018. 2. Sunil Kumar Munka, Flat No. 57, Saraswati Apartment, S.P. Verma Road, Patna. 3. ACIT, Central Circle-1, Patna. 4. CIT(A)-3, Patna. 5. CIT- 6. CIT(DR), Patna Bench, Patna. True copy By order Assistant Registrar ITAT, Kolkata Benches Kolkata