Santosh Jaiswal, Kolkata vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH : KOLKATA BEFORE HON'BLE SHRI P.K BANSAL, AM & HON'BLE SHRI RAJPAL YADAV, JM

I.T.A No. 943//Kol/2012 A.Y 2007-08

Santosh Jaiswal Vs. I.T.O Ward 49(4), Kolkata PAN: ACRPJ6064E [Appellant] [Respondent]

Appellant by : Shri Prabin Kumar Kar, Advocate Respondent by : Shri Kanhiya Lal Kanak, ld.JCIT/Sr.DR

Date of Hearing: 30/04/2015 Date of Pronouncement: 6 /5 2015

ORDER PER RAJPAL YADAV, JM:

The assessee is in appeal before us against the order of Ld. CIT(A) dated 27-07- .2011 passed for assessment year 2007-08.

2. The registry has pointed out that the appeal filed by the assessee is time barred by 178 days. The assessee has filed an application for condonation of delay and filed an affidavit. He also filed an affidavit of Shri Brajesh Kumar Chowdhury, FCA. The ld. Tax Consultant has deposed that he misplaced the papers and missed to file the appeal in time. He also contended that he was not keeping good health.

2.1 On due consideration of the facts and circumstances, we find that there is no deliberate attempt for making the appeal time barred. He has handed over the papers to the ld.Tax Consultant, who forgotten to file the appeal in time. The assessee would not get anything by making his appeal time barred. Therefore, considering alleged lapse by the ld. Tax Consultant, we condone the delay and proceed to decide the appeal on merit.

3. The assessee has taken six grounds of appeal, but ground nos.1,2 & 6 are general grounds of appeal. They do not exhibit any specific grievance of the assessee. Ground nos. 3,4 & 5 are only substantial grounds of appeal. They read as under:-

"3. On the facts and in the circumstances of the case, the learned CIT(A) erred in confirming the addition of rs.1,71,541/- on account of balance standing in Savings Bank Account.

4. On the facts and in the circumstances of the case, the learned CIT(A) erred in confirming the addition of rs.2,13,972/- on account of credits by cheques in the Bank Accounts.

2 ITA No.943/Kol/2013-A-JM Sh.Santosh Jaiswal Vs. ITO,W 49(4), Kol

5. On the facts and in the circumstances of the case, the learned CIT(A) erred in confirming the addition of rs.1,00,000/- on account of the credit balance in the name of Shri Dilip Kumar."

3.1 All the three grounds of appeal are inter-connected with each other. Therefore, we take them together.

4. The brief facts of the case are that the assessee has filed his return of income on 29/11/2008 declaring total income of Rs.1,99,146/-. The case of the assessee was selected for scrutiny assessment and notice u/s. 143(2) of the I.T Act 1961 was issued and served upon the assessee. During the course of assessment proceedings, it came to the notice of the ld.AO that the assessee had two bank accounts maintained with Axis Bank namely, Axis Bank, Baguhati Branch and Axis Bank, Kankurgachi Branch. The ld.AO found that the deposits of Rs.18,90,150/- and Rs.20,70,530/- were made in the respective bank accounts. The deposits were made by way of cheque as well as in cash. Similarly, the withdrawals were made by way of cash as well as cheque. The assessee contended that these accounts were not used for any business purpose. He wanted to take loan. Therefore, he was advised to effect heavy bank transaction in the accounts. He has withdrawn the amount and re- deposited the same. The assessee has also submitted the re-conciliation and offered a sum of Rs.1,50,054.68 as his additional income, which is equivalent to the peak amount available in the accounts during the year. The AO has accepted the contention of the assessee and observed that peak credit of Rs.75,036/- is available for 09-03-07 and Rs.96,505/- is available on 15-02-07 in the second account. He made an addition of Rs.1,71,541/- on account of peak credit available on particular date in both the accounts. The AO further found that a sum of Rs.2,13,972/- has been deposited by way of cheques received for Z.Choudhury, Md. Sahid and Hari Shankar Gupta. The assessee has repaid a sum of Rs.1,82,200/- by way of cheques to these said three persons. The AO has called for the details of these three persons. The assessee submitted the details. On verification, it was found that these three persons were not available on the given address. The assessee could not furnish their latest address. The AO has made the additions of Rs.2,13,972/- as well as Rs. 1,82,200/-. The AO further made an addition of Rs. 1 lakh towards sundry creditor in the accounts of the assessee. The ld.AO has made an addition of Rs.7,07,813/-

5. On appeal, the ld. CIT(A) confirmed the addition on account of peak credit available accounts in the accounts on a particular day during the year. The ld. CIT(A) further 3 ITA No.943/Kol/2013-A-JM Sh.Santosh Jaiswal Vs. ITO,W 49(4), Kol

confirmed addition of Rs.2,13,972/-. The ld. 1st Appellate Authority has deleted the addition of Rs. 1,82,000/- on the ground that once the deposits by way of cheques are being made and added as income of assessee, then corresponding debit entry of re-payment of those deposits amount cannot be added.

6. With the assistance of ld. Representative, we have gone through the record carefully. There is no dispute in regard to the fact that two accounts with Axis Bank were not disclosed by the assessee to the department. The AO found that the deposits of Rs.18,90,150/- and Rs.20,70,530/- were made by cheque as well by cash. The AO has accepted the contention of the assessee that these amounts have been withdrawn and re-deposited the same in these accounts. There is no dispute to this extent. We find that the AO has segregated the cash entry as well as cheque entry. It is to be noticed that cheques have been issued to those persons from whom the deposits have been received through account payee cheques. The amounts were running in the range of Rs.20,000/-, Rs.30,000/- and Rs.25,000/- etc. Thus, the theory of peak credit available in these accounts on a particular day is to be applied on these transactions also. The ld.AO has accepted the explanation of the assessee that only peak credit is to be added, then he ought to have not segregated these entries also. 6.1 As far as the credit entry appearing against the name of Shri Dilip Kumar is concern, this man has responded to the summon issued by the AO u/s. 133(6) of the I.T Act, 1961 and confirmed the transaction. Therefore, the evidence given by assessee should not be declined.

6.2 In view of above discussion, we are of the view that as far as ground no.3 is concern, there is no merit in the contention of the assessee. He himself has offered additional income on account of peak credit. Therefore, ground no. 3 is rejected. Ground nos. 4 & 5 are allowed by deleting the additions of Rs.2,13,972/- and Rs. 1 lakh respectively.

7. In the result, the appeal of the assessee is partly allowed as stated above.

Order pronounced in the open court on 6 -5 -2015

Sd/- Sd/- [ P.K BANSAL] [ RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 6 -5-2015 4 ITA No.943/Kol/2013-A-JM Sh.Santosh Jaiswal Vs. ITO,W 49(4), Kol

Copy of the order forwarded to:

1. Appellant- Shri Santosh Jaiswal 19 Chinar park, Teghoria, Kol-59.

2 Respondent : I T O, Ward 49(1), Kol-14

3. CIT,

4. CIT(A),

5. DR, Kolkata Benches, Kolkata *PP/SPS True Copy] By order, Asstt Registrar