Sh. Anil Gupta, Ludhiana V. ACIT, Ludhiana

MA 42/CHANDI/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4216 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 12-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Peak credit

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI H.L.KARWA, VICE PRESIDENT AND MS. RANO JAIN, ACCOUNTANT MEMBER M.A.NO.42/CHD/2016 IN ITA NO.768/CHD/2015 (ASSESSMENT YEAR : 2008-09) SH. ANIL GUPTA VS. THE A.C.I.T., C/O RAJASTHAN WOOL INDUSTRIES, CIRCLE-II, G.T. ROAD, BYE PASS, LUDHIANA. LUDHIANA. PAN: AAHPG2263H (APPELLANT) (RESPONDENT) APPLICANT BY : NONE RESPONDENT BY : SHRI S.K. MITTAL, DR DATE OF HEARING : 27.05.2016 DATE OF PRONOUNCEMENT : 27.05.2016 O R D E R PER RANO JAIN, A.M . : THIS IS A MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE REQUESTING TO AMEND THE ORDER OF THE TRIBUNAL DATED 4.4.2016 PASSED IN ITA NO.768/CHD/2015. RELATING TO ASSESSMENT YEAR 2008- 09. 2. THROUGH THIS MISCELLANEOUS APPLICATION, THE ASSESSEE CONTENDED THAT IN ORDER DATED 4.4.2016, THE 2 GROUND NO.3 RAISED BY THE ASSESSEE AGAINST THE ACTI ON OF CIT (APPEALS) IN NOT ALLOWING CREDIT OF RS.3,34,000/- ON THE DEPOSITS IN THE BANK ACCOUNT AMOUNTING TO RS.10,75,000/- HAS REMAINED UN- ADJUDICATED. IN THIS BACKGROUND, IT IS PRAYED THAT THE GROUND NO.3 MAY BE DISPOSED OF ON MERITS. 3. FROM THE PERUSAL OF THE APPEAL MEMO, WE OBSERVE THAT IN ALL FOUR GROUNDS WERE RAISED BY THE ASSESSEE. GROUND NO.1 AND 4 ARE GENERAL, WHILE THE LEARNED COUNSEL FOR THE ASSESSEE PREFERRED NOT TO P RESS A PART OF GROUND NO.2, PERTAINING TO SECURITY EXPEN SES AMOUNTING TO RS.78,000/-. INADVERTENTLY, AT THE TI ME OF DRAFTING THE ORDER, AT PARA 4, IT HAS BEEN MENTI ONED AS FOLLOWS : 4. THE LEARNED COUNSEL FOR THE ASSESSEE PREFERRED NOT TO PRESS GROUND NO.2. THEREFORE, GROUND NO.2 IS DISMISSED AS BEING NOT PRESSED. 4. SINCE AN INADVERTENT ERROR HAS BEEN CREPT IN THE ORDER, NOW, AFTER RECTIFICATION, THE SAID PARA SHOULD BE READ AS UNDER : 4. THE LEARNED COUNSEL FOR THE ASSESSEE PREFERRED NOT TO PRESS PART OF GROUND NO.2 TO THE EXTENT OF SECURITY EXPENSES AMOUNTING TO RS.78,000/-, THEREFORE, THE SAME IS DISMISSED AS NOT PRESSED. 3 5. FURTHER, FROM PARA 5 ONWARDS, THE DISCUSSION IS WITH REGARD TO THE REMAINING PORTION OF GROUND NO.2. THEREFORE, THE FIRST SENTENCE OF PARA 4 SHOU LD BE READ AS UNDER : THE BRIEF FACTS WITH REGARD TO GROUND NO.2 ARE --- --------------------------------------------------- --------------- 6. IN THIS BACKGROUND, IT WAS BROUGHT TO OUR NOTICE THROUGH THIS MISCELLANEOUS APPLICATION THAT INADVERTENTLY THE GROUND NO.3 RAISED BY THE ASSESSE E REMAINED UN-ADJUDICATED. AFTER GOING THROUGH THE ORDER OF THE TRIBUNAL DATED 4.4.2016, WE ARE IN AGREEMENT WITH THE CONTENTION OF THE LEARNED COUNSE L FOR THE ASSESSEE RAISED THROUGH THE PRESENT MISCELLANEOUS APPLICATION THAT THE GROUND NO.3 HAS BEEN LEFT TO BE DISCUSSED IN THE ORDER, INADVERTENT LY. THEREFORE, THE CONTENTION RAISED IN MISCELLANEOUS APPLICATION IS ALLOWED. 7. THE FACTS RELATED TO THE GROUND NO.3 ARE THAT THE ASSESSING OFFICER GOT INFORMATION REGARDING CAS H DEPOSITS OF RS.10,75,000/- IN SAVING BANK ACCOUNT NO.34001100501258 OF THE ASSESSEE THROUGH AIR INFORMATION. THE ASSESSEE REPLIED THAT NO SUCH DEPOSIT HAS BEEN MADE BY HIM. HOWEVER, ON A FURTHE R VERIFICATION THROUGH BANK BY THE ASSESSING OFFICER, THE ASSESSEE CONTENDED THAT HE COULD NOT EXPLAIN THE 4 CREDIT ENTRIES AND SURRENDERED PEAK OF THE TRANSACTIONS AMOUNTING TO RS.7,35,000/- TO BE ADDED IN HIS INCOME. THE ASSESSING OFFICER DID NOT ACCEP T THE REQUEST OF THE ASSESSEE AND MADE AN ADDITION OF RS.10,75,000/-. 8. BEFORE THE CIT (APPEALS), THE ASSESSEE AGAIN CONTENDED THAT PEAK CREDIT OF THE DEPOSIT SHOULD BE ALLOWED BECAUSE THE ASSESSEE HAS RE-DEPOSITED THOSE AMOUNTS WHICH HE HAD WITHDRAWN FROM THE SAME ACCOUNT. THE CIT (APPEALS) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE HELD THAT NO EVIDENCE O R EXPLANATION HAS BEEN GIVEN BY THE ASSESSEE REGARDIN G THE PURPOSE OF WITHDRAWAL OF THE SAID AMOUNTS AND N O EVIDENCE HAS BEEN GIVEN REGARDING NON-UTILIZATION THEREOF TO PROVE THE CONTENTION THAT REDEPOSIT WAS OUT OF THE SAID WITHDRAWAL. IN THIS BACKGROUND, THE ADDITION OF RS.10,75,000/- WAS CONFIRMED BY THE CIT (APPEALS). 9. ON CAREFUL PERUSAL OF THE ORDER OF THE LOWER AUTHORITIES, WE SEE THAT IT IS AN UNDISPUTED FACT T HAT AN AMOUNT OF RS.10,75,000/- WAS DEPOSITED IN SAVING BANK ACCOUNT OF THE ASSESSEE. THE ASSESSEE SURRENDERED THE AMOUNT OF RS.7,35,000/- BEING THE PEAK CREDIT OF THE SAME ACCOUNT. THERE CANNOT BE DENYING TO THE FACT THAT FROM THE IMPUGNED BANK ACCOUNT, THERE HAVE BEEN DEPOSITS AND WITHDRAWALS. 5 THIS FACT IS COMING OUT VERY CLEARLY FROM THE ORDER OF THE CIT (APPEALS), WHERE HE HAS GIVEN A FINDING THA T THE ASSESSEE HAS WITHDRAWN CASH AMOUNTING TO RS.4,20,000/- ON VARIOUS DATES FROM 4.10.2007 TO 4.1.2008 FROM THE BANK ACCOUNT. THE LAST WITHDRAWA L WAS ON 4.1.2008 OF RS.40,000/-. THERE WAS A DEPOSI T OF RS.40,000/- ON 5.1.2008 AND SUBSEQUENTLY ON 4.2.2008 RS.3 LACS HAD BEEN WITHDRAWN AND RS.1,60,000/- HAD BEEN DEPOSITED ON 7.2.2008 AND THEREAFTER RS.1,40,000/- HAD BEEN DEPOSITED ON 11.2.2008. IN VIEW OF THESE CIRCUMSTANCES, WE ARE IN AGREEMENT WITH THE CONTENTION OF THE ASSESSEE THAT IN VIEW OF THE FACT THAT THERE ARE FREQUENT DEPOSITS A S WELL AS WITHDRAWALS, ONLY THE PEAK AMOUNT SHOULD BE ADDED. SINCE THE BANK ACCOUNT ITSELF IS AN UNDISCLOSED ACCOUNT BY THE ASSESSEE, THERE IS NO RELEVANCE OF ASKING FOR THE PURPOSE OF WITHDRAWAL B Y THE ASSESSEE SINCE IT CAN BE PRESUMED THAT THE DEPOSITS HAVE BEEN MADE OUT OF THE SAME WITHDRAWALS OR AT MOST, IF THE ASSESSEE HAD EARNED CERTAIN INCO ME, WHICH WAS DEPOSITED IN THE BANK IN CASH OUT OF CERT AIN UNDISCLOSED ACTIVITIES, IT CAN ALSO BE PRESUMED THA T THE WITHDRAWALS WERE ALSO MADE FOR THE SAME PURPOSE OUT OF THE SAID BANK ACCOUNT. IN VIEW OF THIS, WE ARE INCLINED TO DIRECT THE ASSESSING OFFICER TO MAKE TH E ADDITION ONLY TO THE EXTENT OF PEAK CREDIT. THE GR OUND RAISED BY THE ASSESSEE IS ALLOWED. 6 10. THE CUMULATIVE RESULT IN ITA NO.768/CHD/2015 IS THAT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 11. IN THE RESULT, THE MISCELLANEOUS APPLICATION F ILED BY THE ASSESSEE IS ALLOWED, AS STATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF MAY, 2016. SD/- SD/- (H.L.KARWA) (RANO JAIN) VICE PRESIDENT ACCOUNTANT MEMBER DATED : 27 TH MAY, 2016 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/THE CIT/THE D R. ASSISTANT REGISTRAR, ITAT, CHANDIGARH