Income Tax Appellate Tribunal - Kolkata
Jai Singh Doshi, Kolkata vs Department Of Income Tax on 9 December, 2011
IN THE INCOME TAX APPELLATE TRIBUNAL
KOLKATA BENCH "B" KOLKATA
Before Shri Mahavir Singh, Judicial Member and
Shri Shamim Yahya, Accountant Member
ITA No.338/Kol/2012 &
C.O. No.36/Kol/2012
(a/o ITA No. 338/Kol/2012)
Assessment Year :2007-08
Income Tax Officer, V/s. Sri Jai Singh Doshi
W ard-35(2), Kolkata, 18, C/o Industrial Trader, 1 s t
Rabindra Sarani, Poddar Floor, 63 Radha Bazar
Court, 3 r d Floor, Kolkata Street, Kolkata 700 001
- 700 001
Shri Jai Singh Doshi Income Tax Officer
C/o Industrial Traders,1 s t V/s. W ard-35(2), Kolkata, 18,
Floor, 63, Radha Bazar Rabindra Sarani, Poddar
Street, Kolkata - 700 001 Court, Kolkata - 700 001
[P AN No. ACXPD 5066 A]
अपीलाथ /Appellant .. यथ /Respondent)
आवेदक क ओर से/By Assessee Shri Sunil Surana, AR
राज व क ओर से/By Revenue Shri Muzaffar Hussain, SR-DR
सुनवाई क तार ख/Date of Hearing 27-12-2013
घोषणा क तार ख/Date of Pronouncement 27-12-2013
आदे श/O R D E R
PER Mahavir Singh, Judicial Member:-
This appeal by Revenue and Cross Objection by assessee are arising out of order of Commissioner of Income-tax (Appeals)-XX,Kolkata in appeal No.309/CIT(A)-XX/Ward-35(2)/09-10/Kol dated 09-12-2011. Assessment was framed by Income Tax Officer, Ward-35(2), Kolkata u/s. 144 of the Income-tax ITA No.338/Kol/2012 & CO No.36/Ko/2012 A.Y. 2007-08 ITO Wd-35(2), Kol v. Sri Jai Singh Doshi Page 2 Act, 1961 (hereinafter referred to as 'the Act') for assessment year 2007-08 vide his order dated 31-12-2009.
First we take up Rev's Appeal ITA No.338/Kol/2012.
2. The only issue in this appeal of Rev is against the order of CIT(A) deleting the unexplained cash deposit in the undisclosed bank account at Rs.15,67,360/- made by Assessing Officer and accepting the peak credit at Rs.64,720/-. For this, Revenue has raised following two grounds:-
i) For that on the facts and circumstances of the case, Ld. CIT(A) erred in deciding that the addition to the extent of peak credit only was justified.
ii) For that on the facts and circumstances of the case, Ld. CIT(A) erred in deciding that the onus was on the A.O to establish that the money withdrawn from the bank account was utilized elsewhere. On the contrary, the onus was on the Assessee to furnish evidence in support of his claim of withdrawal from bank account and subsequent deposit of the same in bank account."
3. Briefly stated facts are that the Assessing Officer noticed from assessee's bank account maintained with ING Vysya Bank, Siddi Amber Bazar Branch, Hyderabad a total cash deposited of Rs.15,67,360/- .As the assessee could not explain the source of this cash deposits, he made addition of total deposit at Rs.15,67,360/-.
Aggrieved, assessee preferred appeal before CIT(A).
4. Before CIT(A) assessee contended that only peak credit should be added and not the entire cash deposits. The assessee explained the peak credit in the bank account was at Rs.64,720/- as appeared on 14-02-2007. The CIT(A) accepted the plea of the assessee and restricted the addition to the extent of peak credit by observing in para-14 of his order as under:-
"14 - I have perused the assessment order and the remand report of the AO. I have also considered the submissions made on behalf of the appellant and the judicial pronouncements relied upon. I find from the remand report that the appellant has failed to substantiate his claim regarding business of electrical goods by producing the books of ITA No.338/Kol/2012 & CO No.36/Ko/2012 A.Y. 2007-08 ITO Wd-35(2), Kol v. Sri Jai Singh Doshi Page 3 account and other supporting documents. I find merit in AO's contention that appellant's claim of business of electrical goods was not acceptable in absence of supporting material or evidence on record. And consequently, the bank account has to be treated as undisclosed. There is no doubt that the deposits in the undisclosed bank account represent undisclosed income of the appellant. However, there are regular deposits as well as withdrawals in the bank account; and so, the addition of the aggregate deposits without allowing the benefits of withdrawals is not justified. For, the amount invested at one point of time was withdrawn subsequently and was thus available for further deposits; and so, corresponding credit has to be allowed against subsequent deposits in the bank account. I find merit in the argument that the onus was on the AO to establish that the money withdrawn."
Aggrieved, Revenue came in appeal before us.
5. We have heard rival contentions and gone through facts and circumstances of the case. We find that assessee has not filed any peak credit before us. It is also not clear from the order of CIT(A) whether any peak credit calculation / computation was filed before CIT(A) or not. However, we agree with the contention of assessee and in respect of cash deposits in the bank account of ING Vysya Bank, Siddi Amber Bazar Branch, Hyderabad, that the total cash deposit of Rs.15,67,360/-, should be considered but to the extent of peak credit only. Assessee will compute the peak credit and will file the same before Assessing Officer and AO will go into the peak credit computation and will decide afresh. It is the claim of the assessee that the withdrawals made from the bank account is again re-deposited. In case Revenue finds any evidence that this amount is invested somewhere else that will be added to the peak credit and in case Revenue is unable to find then the assessee's version is to be accepted. Accordingly, we direct the AO to re-compute the peak credit and decide the issue afresh. Needless to say, the AO will provide reasonable opportunity of being heard to the assessee.
ITA No.338/Kol/2012 & CO No.36/Ko/2012 A.Y. 2007-08ITO Wd-35(2), Kol v. Sri Jai Singh Doshi Page 4 Coming to assessee's CO No.36/Kol/2012.
6. The C.O. filed by the assessee is supportive of the order of CIT(A). As we have already set aside the order of CIT(A) for re-adjudication of the issue to the file of AO, the CO has become infructuous.
7. In the result, appeal of Revenue is allowed for statistical purposes and that of assessee's CO is dismissed as infructuous.
Order pronounced in the open court 27/12/2013
Sd/- Sd/-
(Shamim Yahya) (Mahavir Singh)
(Accountant Member) (Judicial Member)
Kolkata,
*Dkp
#दनांकः- 27/12/2013 कोलकाता ।
आदे श क ितिल.प अ/े.षत / Copy of Order Forwarded to:-
1. अपीलाथ / Appellant
2. यथ / Respondent
3. संबिं धत आयकर आयु3 / Concerned CIT
4. आयकर आयु3- अपील / CIT (A)
5. .वभागीय ितिनिध, आयकर अपीलीय अिधकरण, कोलकाता / DR, ITAT, Kolkata
6. गाड; फाइल / Guard file.
By order/आदे श से,
/True Copy/
उप/सहायक पंजीकार
आयकर अपीलीय अिधकरण, कोलकाता
।