D.C.I.T CC - XXIII,kolkata, Kolkata V. Sri Pankaj Agarwal, Kolkata

ITSSA 74/KOL/2013

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3807 (ITAT-KOLKATA)
• Duration Of Justice: 5 year(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 06-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 07-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G HANGSHING
• Assessee Lawyers: A K UPADHYAY
• Keywords: Peak credit
• Section: 143(3); 153A

Judgement Text

IT(SS)A.NO.74/KOL/2013 & ITA NO.1288/K/2013 SHRI PA NKAJ AGARWAL A.Y.2009-10 & 2010-11 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B KOL KATA [BEFORE HONBLE SHRI S.S.GODARA, JM & SHRI M.BALA GANESH, AM ] IT(SS)A.NO.74/KOL//2013 ASSESSMENT YEAR : 2009-10 D.C.I.T., CENTRAL CIRCLE-XXIII VS SRI PANKAJ AGA RWAL KOLKATA KOLKATA (PAN: AEJPA 2231 D) (APPELLANT) (RESPONDENT) ITA.NO.1288/KOL//2013 ASSESSMENT YEAR : 2010-11 SRI PANKAJ AGARWAL A.C.I.T., CENTRAL CIRCLE-X XIII KOLKATA KOLKATA (PAN: AEJPA 2231 D) (APPELLANT) (RESPONDENT) FOR THE ASSESSEE : SHRI A.K.UPADHYAY, ADVOCATE FOR THE DEPARTMENT SHRI G.HANGSHING, CIT (DR) DATE OF HEARING : 19.06.2018. DATE OF PRONOUNCEMENT : 27.06.2018. ORDER PER S.S.GODARA, JM THE REVENUE AND ASSESSEE HAVE FILED THEIR RESPECTIV E INSTANT APPEALS FOR A.Y.2009-10 AND 2010-11 AGAINST THE CIT(A)-CENTRAL- III, KOLKATAS SEPARATE ORDERS; BOTH DATED 20.01.2012 PASSED IN APPEAL NOS.91&90/CC -XXIII/CIT(A)C-III/11- 12/KOL PARTLY REVERSING THE ASSESSING OFFICERS AC TION ADDING PEAK AMOUNT OF RS.3,12,44,093/- TO THE EXTENT OF 0.3% OF EXPENSES TO RS.46,59,857/- IN FORMER AND UPHOLDING UNDISCLOSED INCOME ADDITION OF RS.1,00,16 ,960/- IN LATTER CASE INVOLVING PROCEEDINGS U/S 143(3) READ WITH SECTION 153A OF TH E INCOME TAX ACT, 1961 (IN SHORT THE ACT ) AND U/S 143(3) OF THE ACT; RESPECTIVELY . HEARD BOTH THE PARTIES. CASE FILES PERUSED. 2. BOTH THE LEARNED REPRESENTATIVES SUBMIT DURING THE COURSE OF HEARING THAT THESE TWO APPEALS IN FACT RAISE A COMMON ISSUE OF ADDITIO N OF UNDISCLOSED INCOME. THE ASEESSEE IS AN ENTRY OPERATOR. THE DEPARTMENT CARRI ED OUT THE SEARCH IN QUESTION AT HIS IT(SS)A.NO.74/KOL/2013 & ITA NO.1288/K/2013 SHRI PA NKAJ AGARWAL A.Y.2009-10 & 2010-11 2 BUSINESS PREMISES ON 09.05.2009. HE SURRENDERED UND ISCLOSED INCOME OF RS.1,00,16,960/- IN COURSE THEREOF. THE SAME CULMIN ATED IN INITIATING SECTION 153A PROCEEDINGS AGAINST HIM IN ABOVE FORMER ASSESSMENT YEAR AND SCRUTINY ASSESSMENT IN LATTER ASSESSMENT YEAR. THE ASSESSING OFFICER WENT BY TAKING PEAK CASH CREDIT AMOUNT OF RS.L3,12,44,093/- TO ADD THE SAME AS THE TAX PAY ERS UNDISCLOSED INCOME IN ASSESSMENT ORDER DATED 29.12.2011. HE THEREAFTER MA DE THE ENTIRE ADDITION OF ADMITTED UNDISCLOSED INCOME OF RS.1,00,16,960/- IN LATTER A. Y.2010-11. 3. THE ASSESSEE PREFERRED SEPARATE APPEALS. THE CIT (A)S ORDER FORMING SUBJECT MATTER OF APPEAL IT(SS)A.74/KOL/2013 HOLDS THAT THE ASSESSMENT APPELLATE AUTHORITY HAS ITSELF ASSESSED ASSESSEE TO BE AN ENTRY OPERAT OR HANDLING CASH OF RS.155,32,98,834/- TO RESTRICT THE ADDITION IN QUES TION TO RS.46,59,897/- @ 0.3%. THE REVENUE SEEKS TO APPLY THE PEAK BALANCE THEORY IN O RDER TO REVIVE THE IMPUGNED ADDITION OF RS.3,12,44,093/ IN THIS BACK DROP OF FA CTS. THE ASSESSEES GRIEVANCE ON THE OTHER HAND, IN LATTER ASSESSMENT YEAR (SUPRA) IS TH AT THE IMPUGNED UNDISCLOSED INCOME PERTAINS TO THESE TWO ASSESSMENT YEARS THAN WHEREAS BOTH THE LOWER AUTHORITIES HAVE ADDED THE SAME IN A.Y.2010-11 ONLY. 4. BOTH THE PARTIES REITERATE THEIR RESPECTIVE STAN DS DURING THE COURSE OF HEARING. LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY CONT ENDS THAT THE ASSESSING OFFICER HAD RIGHTLY FOLLOWED PEAK CASH CREDIT FORMULA TO MA KE THE IMPUGNED ADDITION OF RS.3,12,44,093/-. WE FIND NO SUBSTANCE IN THE INSTA NT ARGUMENT. THE FACT REMAINS THAT AT THE END OF THE DAY THAT IS THE ASSESSEE IS ADMIT TEDLY AN ENTRY OPERATOR AS PER ASSESSING OFFICERS ASSESSMENT ORDER. A COORDINATE BENCH OF THIS TRIBUNAL IN ITA NO.2400/KOL/2013 IN DCIT VS CHANDRA PRAKASH BORTHIA DECIDED ON 06.12.2017 HOLDS THAT SUCH A DOUBLE ADDITION OF BOTH PEAK SUM AS WE LL COMMISSION INCOME IS NOT SUSTAINABLE. COUPLED WITH THIS, WE REITERATED THAT THE ASSESSEE HAD HIMSELF DECLARED UNDISCLOSED INCOME OF RS.1,00,16,960/-. THE CIT(A) THEREFORE HAS RIGHTLY ASSESSED HIM QUA THE INCOME COMPONENT ONLY @ 0.3% IN THE TO TAL CASH HANDLED AS PER HIS FINDING IN LATTER ASSESSMENT YEAR WHILE RESTRICTING THE IMPUGNED ADDITION TO THE EXTENT OF RS.46,59,897/- UNDER CHALLENGE. WE CONCLUDE IN T HESE FACTS AND CIRCUMSTANCES THAT IT(SS)A.NO.74/KOL/2013 & ITA NO.1288/K/2013 SHRI PA NKAJ AGARWAL A.Y.2009-10 & 2010-11 3 THE REVENUES SOLE SUBSTANTIVE GRIEVANCE RAISED IN THE FORMER ASSESSMENT YEARS APPEAL IT(SS)A.74/KOL/2014 DESERVES TO BE DECLINED. SO IS THE OUTCOME OF ITS APPEAL WHICH IS REJECTED ACCORDINGLY. 5. WE NOW ADVERT TO ASSESSEES APPEAL ITA NO.1288/K OL/2013. HIS ONLY GRIEVANCE IS THAT THERE IS NO MATERIAL ON RECORD TH AT THE IMPUGNED UNDISCLOSED INCOME OF RS.1,00,16,960/- PERTAINS TO THE IMPUGNED ASSESS MENT YEAR ONLY. LEARNED COUNSEL INVITES OUR ATTENTION TO THE ASSESSEES STAND DURIN G THE COURSE OF LOWER APPELLATE PROCEEDINGS IN FORMER ASSESSMENT YEAR THAT HE HAD F ILED A DETAILED WORKING SHEETS OF THE CASH SUMS HANDLED FROM 28.11.2008 TO 09.05.2009 INVOLVING TWO FINANCIAL YEARS RELEVANT TO A.Y.2009-10 AND 2010-11. THIS CLINCHING PLEA HAS GONE UNREBUTTED FROM THE REVENUES SIDE. WE REPEAT THAT THE ASSESSEE/ EN TRY OPERATOR ALREADY STANDS ASSESSED QUA UNDISCLOSED INCOME FROM HIS CASH OPERATIONS TO THE EXTENT OF RS.46,59,897/- IN PRECEDING ASSESSMENT YEAR (SUPRA) INVOLVING ACCOUNT ING PERIOD UPTO 31.03.2009. WE THEREFORE DIRECT THE ASSESSING OFFICER TO ASSESS TH E BALANCE COMPONENT OF RS.53,57,063/- GOING BY THE TAX PAYERS SURRENDERED INCOME DURING THE COURSE OF SEARCH. LEARNED AUTHORISED REPRESENTATIVE ARGUES ON THESE LINES ONLY BEFORE US. WE THEREFORE PARTLY ACCEPT ASSESSEES GRIEVANCE TO RES TRICT THE IMPUGNED ADDITION OF RS.1,00,16,960/- TO THE REMAINING FIGURE OF RS.53, 57,063/- ONLY SINCE THE BALANCE SUM OF RS.46,59,987/- ALREADY STANDS ASSESSED IN PRECED ING ASSESSMENT YEAR. THE INSTANT ASSESSEES APPEAL NO.1288/KOL/2013 IS PARTLY ACCEPT ED ACCORDINGLY. 6. THIS REVENUES APPEAL ITA(SS)A.74/KOL/2013 IS DI SMISSED WHEREAS ASSESSEES APPEAL ITA NO.1288/KOL/2013 IS PARTLY AL LOWED. OR DER PRONOUNCED IN THE COURT ON 27.06.2018. SD/- SD/- [M.BALAGANESH] [ S.S.GODARA ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 27.06.2018. [RG SR.PS] IT(SS)A.NO.74/KOL/2013 & ITA NO.1288/K/2013 SHRI PA NKAJ AGARWAL A.Y.2009-10 & 2010-11 4 COPY OF THE ORDER FORWARDED TO: 1.SHRI PANKAJ AGARWAL, 18, GIRI BABU LANE, ROOM NO. 2C, KOLKATA-700012. 2.D.C.I.T., CENTRAL CIRCLE-XXIII, KOLKATA. 3. C.I.T.(A)- CENTRAL-III, KOLKATA 4. C.I.T-C ENTRAL-III, KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O, ITAT KOLKATA BENCHES