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Income Tax Appellate Tribunal, ‘C’ BENCH: CHENNAI
Before: SHRI N.R.S. GANESAN & SHRI RAMIT KOCHAR
आदेश / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER:
All these appeals of the assessee are directed against the respective orders of the CIT(A) for the assessment years 2009-10 to 2012-13. Since common issue arises for consideration in all the appeals, we heard them together and disposing of the same by this common order. 2. There was a delay of 152 days in filing of each appeals by the assessee. The assessee has filed a petition for condonation of delay. We to 2687 /Chny/2017 :- 2 -: have heard the ld. Representative and the ld. DR. We find that there was sufficient cause for not filing the appeal within the stipulated time.
Therefore, we condone the delay and admit the appeal.
Mr.Salai Varun Isai Azhagan, the learned Counsel for the assessee submitted that there was a survey in the assessee”s business premises on 17.09.2013. The learned Counsel for the assessee submitted that the assessee is engaged in the business of hiring lorries, and the hiring charges are deposited continuously in the bank account. The assessee explained before the Assessing Officer that the cash deposit of Rs.38,59,434/- was from hiring charges. Apart from lorry hiring charges, the assessee was also receiving income from brick works and agricultural activities. The assessee claimed before the Assessing Officer that if at all any doubt regarding source of deposit in the bank account, only peak credit shall be taken for assessment. Placing reliance in the order of the Tribunal in assessee’s own case for assessment years 2003-04 to 2005-06 in & 1846/Mds./2015 dated 17.08.2016, the ld.AR submitted that on identical circumstances, this Tribunal remitted back the matter to the file of Assessing Officer with a direction to treat only peak credit as business income of assessee. Therefore, the issues raised in these appeals may be remitted back to the file of Assessing Officer.
The ld.DR, Mr.J.Pavitra Kumar, fairly submitted that for the assessment years 2003-04 to 2005-06, identical issue was remitted back to the file Assessing Officer for re-examination. Therefore, with very same direction, the matter may be remitted back to the file of Assessing Officer. to 2687 /Chny/2017 :- 3 -:
For the assessment year 2012-13, the assessee has taken a ground with regard to purchase of car, in addition to cash deposits. Similarly, for the assessment year 2009-10, the assessee has taken one more ground with regard to purchase of lorry. Since the main issue is remitted back to the file of Assessing Officer, all the issues raised in these appeals may also be remitted back to the file of Assessing Officer.
We have considered the rival submissions on either side and perused the relevant material available on record. On identical circumstances, this Tribunal in the case of assessee for assessment year 2003-04 has examined the matter and remitted back the matter to the file of Assessing Officer for reconsideration. In fact, this Tribunal has observed at para 5 & 6 of its order dated17.08.2016 as follows:-
“5. Brief facts of the case are that the assessee is an individual, engaged in transport business, liquor business in partnership with others and also earning agricultural income. This is the second round of appeal for the assessment year 2003-04 after being remitted back by the Tribunal vide order dated 29.02.2012, and for the assessment year 2004-05 the learned Assessing Officer had passed an ex-parte order under section 144 r.w.s. 147 while as for the assessment year 2005-06 the learned Assessing Officer has passed order under section 143(3) r.w.s. 147 of the Act. Assessment Year 2003-04:- Ground :Addition of peak credit amounting to `16,66,799/-:- 6.1. During the course of assessment proceedings, it was observed by the learned Assessing Officer that the assessee had peak credit of Rs.16,66,799/- in his savings bank account furnished by him. Since the source of the same was not explained by the assessee, the learned Assessing Officer made addition of the same invoking the provision of section 69 of the Act. Since no explanation was offered even before the learned Commissioner of Income Tax (Appeals), he confirmed the order of the learned Assessing Officer. to 2687 /Chny/2017 :- 4 -:
6.2 Before us, the learned Assessing Officer submitted that since the assessee has estimated the income under presumptive provisions under section 44AE of the Act only such income can be taxed and therefore peak credit cannot be brought under the ambit of tax.
6.3 The learned Departmental Representative on the other hand opposed to the submissions of the learned Authorized Representative and relied on the orders of the Revenue.
6.4 We have heard the rival submissions and carefully perused the materials available on record. From the orders of the Revenue, it is apparent that the assessee in his bank account had made deposits on various dates and the peak credit on any given date was Rs.16,65,735/-. Since the assessee could not furnish any explanation for the source of the aforesaid amount obviously the peak credit concept will survive and accordingly the same has to be taxed when such amount is higher than the business income offered by the assessee under section 44AE of the Act. However, the income admitted by the assessee under section 44AE of the Act has to be excluded if the peak credit is higher than the business income offered under section 44AE of the Act and if such declared business income forms part and parcel of the peak credit. Therefore, we hereby direct the learned Assessing Officer to treat only the peak credit of Rs.16,66,799/- as the business income of the assessee and exclude the business income offered by the assessee under section 44AE of the Act if such business income is lesser than Rs.16,66,799/- and forms part and parcel of the peak credit. But if the business income offered by the assessee under section 44AE of the Act is higher than Rs.16,66,799/- then only such higher amount declared by the assessee under section 44AE of the Act is to be treated as business income of the assessee and peak credit of Rs.16,66,799/- should not be taken into consideration if the peak credit forms part and parcel of the declared business income. It is ordered accordingly.”
In view of the above, this Tribunal is of the considered opinion that for identical issue was remitted back to the file of the Assessing Officer for re-examination for assessment year 2003-04. Hence, this year also, the matter needs to be re-examined. Accordingly, the orders of both the authorities below are set aside and the entire issue raised by the assessee to 2687 /Chny/2017 :- 5 -:
in all these appeals is remitted back to the file of Assessing Officer. The Assessing Officer shall re-examine the matter in the light of the materials that may be filed before the Assessing Officer and thereafter decide the issue after considering the decision of this Tribunal in the assessment year 2003-04 (supra). All other investment in lorries, car, etc., are needed to be explained. Therefore, all issues including the surrender of Rs.10,00,000/- is remitted back to Assessing Officer. The Assessing Officer shall re-examine the issues and decide the same in accordance with law after giving reasonable opportunity to the assessee.
In the result, the appeals of the assessee for Assessment Years:
2009-10, 2010-11, 2011-12 & 2012-13 are allowed for statistical purposes.
Order pronounced in the open Court on 21st October, 2019 in Chennai.