SHRI DEVENDRA BHARTI, UDAIPUR V. ITO, WARD-2-3, Jaipur

MA 47/JPR/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1333 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 24-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROONIPAL JCIT DHK
• Assessee Lawyers: K L MOOLCHANDAN I
• Keywords: Peak credit

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH B, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM M.A. NO.47/JP/2019 ( ARISING OUT OF ITA NO. 114/JP/2017) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 SHRI DEVENDRA BHARTI, 502, 5 TH FLOOR, SHREE RAM APARTMENT, HIRAN MAGRI, SECTOR NO. 14, UDAIPUR. CUKE VS. THE DCIT, WARD-2(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AFOPB 5337 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : S HRI K.L. MOOLCHANDANI (C.A.) JKTLO DH VKSJ LS@ REVENUE BY : SMT. ROONIPAL (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 06/12/2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 09/12/2019. VKNS'K@ ORDER PER VIKRAM SINGH YADAV, AM: THE PRESENT MISCELLANEOUS PETITION IS ARISING OUT O F THE CONSOLIDATED ORDER PASSED BY THE COORDINATE BENCH IN ITA NO. 114 & 308/JP/2017 AND 412/JP2018 FOR THE ASSESSMENT YEARS 2011-12, 2012-1 3 & 2013-14 RESPECTIVELY VIDE ORDER DATED 08.03.2019. 2. THE ASSESSEE IN HIS MISC. PETITION HAS SUBMITTED THAT THE COORDINATE BENCH HAD INADVERTENTLY OBSERVED THAT THE SAME FACT PATTERN EXISTS FOR ALL THE ASSESSMENT YEARS. IT WAS SUBMITTED THAT THE FAC TS OF ASSESSMENT YEAR 2011-12 ARE ENTIRELY DIFFERENT THAN THOSE OF THE AS SESSMENT YEARS 2012-13 & 2013-14. IT WAS ACCORDINGLY SUBMITTED THAT THE BE NCHS FINDING THAT OF PEAK THEORY DOES NOT APPLY IN THIS ASSESSMENT YEAR, THEREFORE, THE DIRECTIONS GIVEN BY THE COORDINATE BENCH ARE IRRELE VANT AND IMMATERIAL FOR 2 MA NO.47/JP/2019 SHRI DEVENDRA BHARTI VS. ITO 2 THIS YEAR. IT WAS FURTHER SUBMITTED THAT THE ASSESS EE IN ITS APPEAL HAS TAKEN THE GROUNDS OF APPEAL I.E, GROUNDS NO. 1(A) A ND 1(B) WHICH WERE NOT ADJUDICATED BY THE BENCH. IT WAS ACCORDINGLY S UBMITTED THAT IN THE INTEREST OF JUSTICE AND NON-ADJUDICATION OF GROUNDS OF APPEAL, THE ORDER PASSED BY THE BENCH FOR AY 2011-12 MAY BE RECALLED TO RECONSIDER THE SAME ON MERITS. 3. THE LD. DR IS HEARD WHO HAS RELIED ON THE FINDIN GS OF THE TRIBUNAL AND SUBMITTED THAT THERE IS NO FACTUAL MISTAKE IN T HE FOLLOWING FINDINGS OF THE TRIBUNAL WHICH READS AS UNDER:- 7. HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT ONCE THE FACT RELATING TO THE ASSESSEE RECEIVING CASH FROM HIS RELATIVES AND FRIENDS FOR THE PURPOSE S OF INVESTING IN MCX OPERATIONS HAVE BEEN ESTABLISHED AND THERE ARE REGULAR DEPOSITS AND WITHDRAWALS FROM HIS BANK ACCOUNTS MAI NTAINED BY THE ASSESSEE, THE LD. CIT(A) HAS RIGHTLY APPLIED THE PE AK CREDIT THEORY IN AY 2012-13 AND BROUGHT THE AMOUNT SO DETERMINED TO TAX. GIVEN THE UNDISPUTED FACTS, AS WE HAVE NOTED ABOVE AND EV EN NOT DISPUTED BY THE REVENUE, THE SAME FACT PATTERN EXIS T FOR A.Y 2011- 12 AND A.Y 2013-14, WE DONOT SEE A JUSTIFIABLE BASI S TO ADOPT A DIFFERENT BASIS AND FOLLOWING THE PRINCIPLE OF CONS ISTENCY, WE HEREBY DIRECT TO APPLY PEAK CREDIT THEORY FOR AY 2011-12 A ND 2013-14 AS WELL AND THE MATTER IS SET-ASIDE TO THE FILE OF THE AO FOR THE LIMITED PURPOSES OF DETERMINING THE PEAK CREDIT IN EACH OF THE TWO YEARS UNDER CONSIDERATION, I.E, AY 2011-12 AND AY 2013-14 . NEEDLESS TO SAY, THE ASSESSEE SHALL APPEAR AND CO-OPERATE IN TH E TIMELY COMPLETION OF THE PROCEEDINGS AND PROVIDE INFORMATION/DOCUMENTATION AS SO DIRECTED BY THE ASS ESSING OFFICER. IT WAS ACCORDINGLY SUBMITTED THAT THE MISC. PETITIO N SO FILED BY THE ASSESSEE SHOULD BE DISMISSED. 3 MA NO.47/JP/2019 SHRI DEVENDRA BHARTI VS. ITO 3 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THERE IS NO FACTU AL MISTAKE AS FAR AS APPRECIATION OF FACTS ON RECORD ARE CONCERNED AND B ASIS THAT, THE BENCH HAS DIRECTED APPLICATION OF PEAK THEORY IN ALL THE THREE YEARS INCLUDING AY 2011-12. HENCE, THE CONTENTION SO ADVANCED BY THE ASSESSEE IN THIS REGARD CANNOT BE ACCEPTED. 5. AS REGARDS NON- ADJUDICATION OF GROUNDS NO. 1(A) AND 1(B) WHEREIN THE ASSESSEE HAS RAISED THE GROUNDS RELATING TO LIM ITATION AND NON- RECEIPT OF NOTICE BY THE ASSESSEE, APPARENTLY THE SAME WAS NOT ADJUDICATED BY THE BENCH. WE, THEREFORE, FIND THE CONTENTION OF THE LD . AR TO BE CORRECT AND WE ACCORDINGLY RECALL OF THE ORDER OF THE COORDINAT E BENCH DATED 08.03.2019 FOR THE LIMITED PURPOSES FOR ADJUDICATIO N OF THE ASSESSEES GROUND OF APPEAL NO. 1(A) AND 1(B). EXCEPT THAT THE RE IS NO OTHER CHANGE IN THE ORDER OR THE FINDINGS GIVEN BY THE BENCH VID E ITS ORDER DATED 8.03.2019. THE REGISTRY IS DIRECTED TO FIX THE MATT ER AFTER ISSUING NOTICE TO BOTH THE PARTIES. IN THE RESULT, MISCELLANEOUS PETITION OF THE ASSESS EE IS DISPOSED OFF WITH ABOVE DIRECTIONS. ORDER IS PRONOUNCED IN THE OPEN COURT ON 09/12/2019 . SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 09/12/2019. *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 4 MA NO.47/JP/2019 SHRI DEVENDRA BHARTI VS. ITO 4 1. VIHYKFKHZ@ THE APPELLANT- SHRI DEVENDRA BHARTI, UDAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-2(3), JAIPUR. 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 { MA NO. 47/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR