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Income Tax Appellate Tribunal - Jaipur

Shri Devendra Bharti, Udaipur vs Ito, Ward-2-3, Jaipur on 9 December, 2019

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 IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH 'B', JAIPUR

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BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SINGH YADAV, AM

                                      M.A. No.47/JP/2019
                    ( Arising out of ITA No. 114/JP/2017)
                     fu/kZkj.k o"kZ@Assessment Year : 2011-12

Shri Devendra Bharti,                           cuke       The DCIT,
        th                                       Vs.
502, 5 Floor, Shree Ram Apartment,                         Ward-2(3),
Hiran Magri, Sector No. 14,                                Jaipur.
Udaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN No. AFOPB 5337 C
vihykFkhZ@Appellant                                        izR;FkhZ@Respondent

      fu/kZkfjrh dh vksj ls@ Assessee by   : Shri 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 of the consolidated order passed by the Coordinate Bench in ITA No. 114 & 308/JP/2017 and 412/JP2018 for the assessment years 2011-12, 2012-13 & 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 facts of assessment year 2011-12 are entirely different than those of the assessment years 2012-13 & 2013-14. It was accordingly submitted that the Bench's finding that of peak theory does not apply in this assessment year, therefore, the directions given by the Coordinate Bench are irrelevant and immaterial for 2 MA No.47/JP/2019 Shri Devendra Bharti vs. ITO this year. It was further submitted that the assessee in its appeal has taken the grounds of appeal i.e, grounds No. 1(a) and 1(b) which were not adjudicated by the Bench. It was accordingly submitted 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 findings of the Tribunal and submitted that there is no factual mistake in the 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 purposes of investing in MCX operations have been established and there are regular deposits and withdrawals from his bank accounts maintained by the assessee, the ld. CIT(A) has rightly applied the peak credit theory in AY 2012-13 and brought the amount so determined to tax. Given the undisputed facts, as we have noted above and even not disputed by the Revenue, the same fact pattern exist for A.Y 2011- 12 and A.Y 2013-14, we donot see a justifiable basis to adopt a different basis and following the principle of consistency, we hereby direct to apply peak credit theory for AY 2011-12 and 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 the timely completion of the proceedings and provide information/documentation as so directed by the Assessing officer."

It was accordingly submitted that the Misc. Petition so filed by the assessee should be dismissed.

Shri Devendra Bharti vs. ITO

4. We have heard the rival contentions and perused the material available on record. We find that there is no factual mistake as far as appreciation of facts on record are concerned and basis 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 limitation 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 Coordinate Bench dated 08.03.2019 for the limited purposes for adjudication of the assessee's ground of appeal no. 1(a) and 1(b). Except that there is no other change in the order or the findings given by the Bench vide its order dated 8.03.2019. The Registry is directed to fix the matter after issuing notice to both the parties.

In the result, Miscellaneous Petition of the assessee is disposed off with above directions.

Order is pronounced in the open court on 09/12/2019.

              Sd/-                                       Sd/-

           fot; iky jko½                                   ¼foØe flag ;kno½
         (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 vxzfs 'kr@Copy of the order forwarded to:

Shri Devendra Bharti vs. ITO

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 4