9911796707
TMI Blog2022 (6) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the case in making disallowance of Rs.5,98,100/- u/s 68 of the Act in the total income of the Appellant. 2. The learned CIT(A) has erred in law and on facts in not properly appreciating and considering various submissions, evidences and supporting documents placed on record during the course of the proceedings and not properly appreciating various facts and law in its proper perspective. 3. Your appellant craves leave to add, alter, amend, and/or delete any grounds as mentioned above during the course of appeal hearing." 3. The brief facts of the case are that the assessee is engaged in the business of diamond trading during the AY 2009-10 and he is working with many unorganized traders for his business. The appellant filed return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23,92,400/- u/s. 68 of the Act. The appellant has submitted as under: "5.During the year appellant had ' withdrawn cash amounting to Rs 23,69,098/- but ITO has erred in making disallowance of the same as Appellant has also deposited the cash amounting to Rs 24,32,4007- as per attached ledger of contra entries in appellant's books of account for your reference. Whereas appellant operates in such market in which appellant has to pay to suppliers in cash and received amount from customer in cash because the laborers who polishes diamond, they are very unorganized and they don't have their sales tax number and even pan number. Due to which appellant has to make payment in cash for which appellant needs to withdraw cash from bank a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the allowability of any expenditure or otherwise. Thereof is no question raised on the sales of the appellant which have been considered while computing taxable income. Therefore, it is fairly presumed that appellant's sales are not under question. As a corollary to it, it is concluded that whole of the sales are accounted in the books of accounts whereas commensurate part purchases to the extent of Rs.19,12,402/- are not above board. I find that a similar case has been handled by jurisdictional ITAT and the undersigned like to take guidance from its ratio. In the case of M/s. Vijay Proteins Ltd. Vs. ACIT 58 ITD 428, Hon'ble ITAT, Ahmedabad has observed as under: "It is well known that if purchases are made from open market witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We note from the above facts that the assessee is working in the unorganized sector where most of trading is carried out in cash. During the year under consideration, we note from the assessment order, that while the assessee has deposited a sum of Rs. 23,93,400/- in cash in his bank accounts held with ICICI Banks (two accounts), but the assessee has also during the year under consideration withdrawn a sum of Rs. 23, 69,098/- from his bank account. It has been held in a number of ITAT decisions that unless the Assessing Officer brings any material on record to show that the cash withdrawn was utilized / used for other purpose, it could not be said that such cash withdrawals might not have been redeposited in the bank account. This proposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.T.A .No.- 5660/Del/2012 it was held that merely because there was a time gap between withdrawal of cash and its further deposit to the bank account, the amount can not be treated as income from undisclosed sources u/s 69 of the Act in the hands of the assessee. In the case of ITO v. Shri Rajeev Kumar Gupta ITA No. 273/Agra/2013, the ITAT held that held that the entire amount of deposit made in the bank account cannot be said to be unexplained because after deposit of the cash amounts, there are withdrawals. In the case of Smt. Satya Bhama Bindal v. ITO ITA No.713/Chd/2012, ITAT held that that the concept of peak theory needs to be applied both in respect of the opening introduction of cash in hand and various transactions of cash deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT was challenged before the Hon'ble Gujarat High Court, the Hon'ble Court did not interfere in the finding of the Tribunal. Similarly, in the case of Mayank Diamonds (P.) Ltd. (supra), GP rate of 5% was taken by the Tribunal, which has been upheld by the Hon'ble High Court. In the case of Kulubi Steel (supra), the Tribunal has again restricted the addition at 12.5%. In all these cases, Vijay Proteins Ltd. (supra) has been considered. A perusal of the decisions would reveal that major factor which weighed with the ITAT as well as Hon'ble High Court was estimation of profit in a particular transaction after considering particular line of business. Here, in this case, the assessee has purchased batteries and replaced. Quantit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
