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I.T.O., Ward-46 (2) , Kolkata Versus Mojammal Hossain Mollah and Vica-Versa

2016 (10) TMI 198 - ITAT KOLKATA

Unexplained cash credit - peak credit theory - CIT(A), after taking into consideration the deposits and withdrawals restricted the peak addition at ₹ 3,14,434/- Held that:- The ld. DR before us could not adduce anything whether with respect to the peak credit assessed by the ld. CIT(A) is wrong. We find that the assessee has offered peak credit composition on the basis of transaction recorded in the bank account and that the CIT(A) and the Revenue could not point out any defect in the same .....

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he Department : Shri Nichalal Murmu, Addl.CIT, Sr.DR For The Assessee : Sk. Golam Kuddus & K. Jasmine Sheikh, Advocate ORDER Per Dr. A.L.Saini, A.M.: The captioned appeal filed by the Revenue and the Cross Objection filed by the assessee pertaining to assessment year 2006-07, are directed against the order passed by the Ld. Commissioner of Income-Tax (Appeals)-XXX, Kolkata in appeal No.376/CIT(A)-XXX/Wd-46(2)/2011-12 dated 30.01.2013, which in turn arises out of an order passed by the Assess .....

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f courier service under the trade name of Manish Courier and side by side, the assessee is also engaged in his traditional and family business of zari work under the name of Manish Trading. The return of income was filed by the assessee on 21.01.2010 disclosing the total income of ₹ 2,15,499/-. The AO completed the assessment under section 143(3) by making the disallowance on account of unexplained cash credit at ₹ 1,96,38,780/-. Aggrieved from the order of the Assessing Officer, the .....

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eiterate the grievance which we have noted in ground No.2 therefore, other grounds of appeal have not been pressed. Ground No.2 taken by the Revenue reads as under: 2. For that on the facts and in the circumstances of the case and in law the Ld. CIT(A)-XXX/KOL erred in deleting the addition of the cash deposit of ₹ 1,83,30,472/- out of cash deposits ₹ 1,96,38,780/- in the undisclosed savings bank accounts of the assessee when that positive material in record. 5. The assessee has also .....

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conceal income and therefore added to the total income as unexplained investment. 2. For that the ld. CIT(A)-xxx/kol has considered appeal and granted relief of ₹ 1,83,30,472/-where the addition made by the AO was ₹ 1,96,38,780/- in the saving bank A/c of the assessee. 3. I strongly relied on the order of the Ld. CIT (A)-xxx/Kol. . 6. Facts of this issue are stated in brief. The assessee has deposited ₹ 1,96,38,780/- in cash in his savings bank account maintained at Standard ch .....

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from several persons who are in Mumbai for their occupation and want to send money to their family in West Bengal without any banking access. The assessee collects a service charge for this facility, under proper receipt to the remitter. The branch office of the assessee deposits the daily collection from different persons in the account of the assessee with Standard chartered bank in account no.322-0-535778-8 and 225-0-565611-2, both the accounts are being produced. The assessee in turn withdr .....

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20/09/2011, the Standard Chartered bank delivered two copies of bank statement namely, (1) Mojammal Molla Hussain , A/c. no. 22505656112 and (2) Mr. Mojammal Hossain Mollah, A/c. no.32205357788. But on examination of these two accounts, it is noticed that these statements are all related to current accounts maintained by the assessee. Thus, there happens to be absolute disorder and confusion in respect of the AIR information which relates to savings bank account only and the bank statements forw .....

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stating the account no.32410322761 previously as we do not have the relevant information with us. On receiving clarification from you vide letter dated 22.12.2011, we confirm the account number. Meanwhile, the assessee by an Affidavit sworn by Oath dated 21.12.2011, filed in this office on 23.12.2011 affirmed that I have maintained banking accounts namely A/C. No.322-0-533778-8 and 225-0-565611-2 with Standard chartered bank at their Park Street branch in my sole name or in the name of my propri .....

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ccounts. This attempt on the part of the assessee to keep the savings bank account secret is a deliberate one. There is positive material in the record that the amount of cash deposit of ₹ 1,96,38,780/- represents his concealed income and therefore added to the total income of the assessee as unexplained cash credit. 7. Aggrieved from the order of the ld. AO, the assessee filed an appeal before the ld. CIT(A)-XXX, Kolkata, who has given part relief to the assessee observing the following: .....

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v. Madhu Kedia as also in the case of Gangaprosad Vyas v. Department of Income Tax in ITA No.2069/Kol/2010 dated 23.03.12. It is therefore held that the Appellant's case is covered by the decisions in the above cited cases and the peak credit of the deposits i.e. the highest deposit in a particular day is to be considered for addition. The total deposits in this account are summarized as under- "BANK STATEMENT FOR THE PERIOD OF 10.04.2008 TO 31.03.2009 Opening Balance as on 01.04.2008 .....

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in the relevant bank account is restricted to the peak amount of ₹ 3,14,434/- (3,36,800 - 22,366). 4.2 It is further seen that the commission earned on this business in respect of the transaction of this bank account had also not been offered to tax by the Appellant since this account was not disclosed in the Income Tax Return. It is seen that the Appeliant had shown commission of ₹ 7,48,128/- in the Profit & Loss Account shown service charges received at ₹ 7,48,128/- agai .....

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o the above extent i.e. of ₹ 3,14,434/- + ₹ 9,93,874/- only. (Relief ₹ 1,83,30,472/-). The Revenue did not agree with the order of ld CIT (A) and contested that the relief given to the assessee is not correct. Therefore, not being satisfied from the order of the ld. CIT(A), the Revenue is in appeal before us. 7.1. The ld. DR for the Revenue submitted that the addition deleted by the ld. CIT(A) is without any base and cogent documents. The ld. DR further submitted that the asses .....

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the courier services had been duly getting reflected in the Profit & Loss a/c. and the said commission relates to only the savings bank account under dispute, is kind of an after-thought process and should not be acceptable. The ld. DR has strongly defended the order made by the ld. AO and stated that the said bank account which was never disclosed by the assessee, must be treated as an undisclosed income. The ld. DR further stated that the entire deposits in the said undisclosed account sho .....

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account, then it is the peak credit which should be taken as assessee s income, as the withdrawals were also being made against the deposits and benefits of which should be allowed to the assessee. The Ld. CIT(A), has worked out the peak credit of the cash deposits which is restricted to the peak amount of ₹ 3,14,434/-, as income, in addition to the 5% profits computed by the Ld. CIT(A) on deposits, therefore, the ld AR strongly relied on the order of the ld.CIT(A). The ld. A.R. before us .....

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