SRI DILIP KUMAR DAS,KOLKATA vs. ITO, WD-50(1), KOLKATA, KOLKATA

Per Bench Both appeals by the Assessee are arising out of the separate orders of the Learned Commissioner of Income Tax(Appeals)-XXXII & 15, Kolkata [in short the ld CIT(A)] in dated 07.11.2013 and 31.12.2015 respectively against the order passed by the ITO,Ward-51(1), Kolkata [in short the ld AO] under section 143(3)/147/144 of the Income Tax Act, 1961 (in short “the Act”) dated 20.12.2010 and 21.12.2011 respectively for the Assessment Year 2008-09 and 2009-10 respectively. 2. At the outset, it was observed that there was delay in filing the appeal before us for 762 days. The Ld. Counsel for the assessee filed a condonation petition as well as Affidavit justifying the delay in filing the appeal. It was explained that: “1. That your appellant received the appellate order from the CIT(Appeals)/XXXII/Kol on 16.12.2013 and after that he handed over the same to his authorized Adovcate Shri Goutam Narayan Chowdhury. Said Advocate then filed the filing fees of the ITAT amounting to Rs. 10,000/- on 27.12.2013 at the State Bank of India, Habra Bench for the purpose of filing appeal. During the preparation of the second appeal before the ITAT, your appellant fallen into serious physical problem. Then he went to the local medical practitioner Dr.

2 ITA Nos.473&640/Kol/2016 Dilip Kumar Das A.Yrs. 2008-09 & 2009-10 P.K.Das, M.B.B.S.F.C.C.P on 30.12. 2013 due to liver problem. Therefore, said Dr. advised your appellant to take absolutely bed rest till recovery. 2. That during continuation of his illness said Dr. once again advice him to take absolutely bed rest on 02.06.2014 till recovery. It is also submitted that your Appellant has been suffering from serious Hepatitis Jaundice and finally it had been detected after fully medical check-up on 10.04.2015. Accordingly, appellant take absolutely bed rest and unable to move any where even at this business places. 3. That finally, your appellant check-up before the said Dr. on 07.02.2016 and then said Dr. advice him to join his duties normally and a fit certificate issued by said Dr. in this respect on 08.02.2016. 4. It is submitted by your appellant that due to “Infective Hepatitis” your appellant could not make any contact with his Advocate Shri Goutam Narayan Chowdhury since 30.12.2013 to 07.02.2016 and thus, he unable to file second appeal within time by his authorized Advocate. Thereafter, he made contact with his said authorized Advocate Shri Goutam Narayan Chowdhury and said Advocate with one another Advocate Shri Alok Sur filed before you after the gap of 790 days. 5. It is clear from the above fact, that your appellant failed to submit for his serious illness. It is not his intentional latches it is the absolutely un-intentional latches and beyond the control of the appellant. It may be condoned. According to the observation of the Higher forum it is clear that no appeal may be rejected on the point of delay if he explain his delay properly. Under the facts, it is prayed that your Honour would be graciously be pleased to condone the delay of 790 days for filing appeal and heard the appeal on merit.”

The ld. Counsel for the assessee in support of assessee’s claim also filed the copy of medical certificate and copy of challan evidencing the payment of the appeal filed before ITAT. On the other hand, the Ld. DR after considering the submission of the assessee raised no objection if the delay is condoned. 3. Considering the facts of the case, we are of the view that there was sufficient cause which prevented the assessee from filing the appeal on time. There is no doubt that the fee for filing the appeal by the assessee was duly deposited on 27.12.2013 which proves that it was deposited within the prescribed time. Thus, it can be inferred that the assessee was intending to file the appeal within the prescribed time and therefore delay occurred by the assessee cannot be said deliberate. However, we feel

3 ITA Nos.473&640/Kol/2016 Dilip Kumar Das A.Yrs. 2008-09 & 2009-10 that there was an unreasonable delay in filing the appeal therefore we are inclined to levy the cost over the assessee for Rs. 1000/- on account of delay in filing the appeal. Accordingly, the assessee is directed to deposit a sum of Rs. 1000/- (Rupees one thousand) in the Prime Minister Relief Fund. It was also observed that the assessee in the AY 2009-10 also adopted the negligent/ dilly-dallying approach in pursuing the matter before the AO. Therefore the AO passed the ex-parte order under section 144 of the Act. Therefore we are inclined to levy the cost over the assessee for Rs. 1000/- on account of his negligent behavior in pursuing the matter before the AO. Accordingly, the assessee is directed to deposit a total sum of Rs. 2,000/- (Rupees two thousand) only in the Prime Minister Relief Fund. In view of the above we condone the delay/ negligent approach of the assessee and proceed to hear the appeal of the assessee on merit. 4. First we take up I.T.A .No. 473/Kol/2016 The assessee has raised the following grounds of appeal: 1. For that the Assessing Officer erred in law as well as in merit. He failed to enquire the return properly. The AO passed his purported order only on the basis of a bank statement collected u/s 133(6). Your appellant already explained his return of income, but the AO asked him to clarify the matter further. The AO passed his purported order u/s 144 without apply his judicial mind properly. 2. For that the CIT(Appeal) also passed his order on the basis of the order of the AO. Actually the AO is the fact finding authority and he should find the actual fact from the various sources. Income Tax Laws provide adequate power to the assessing officer to gathered information from the respective authority/department and books of accounts and documents. But it is not open to the CIT Appeal to pass such order on the basis of the order of the AO.

4 ITA Nos.473&640/Kol/2016 Dilip Kumar Das A.Yrs. 2008-09 & 2009-10 5. The only issue raised by the assessee in this ground of appeal is that the Ld. CIT(A) erred in confirming the order of AO by making the addition of Rs.59,39,000/- on account of cash deposit in bank. 6. Briefly stated facts are that the assessee in the present case is an individual and engaged in the trading business of fruits. The assessee was maintaining two saving bank accounts with Axis Bank a/c no. 238010100002561 & 238010100131445. As per the AIR information the AO came to know that there was a cash deposit of Rs. 59,39,000/- in the saving bank accounts of the assessee maintained with Axis Bank Ltd. The AO during the assessment proceedings called upon the assessee to furnish the source of cash deposit in the impugned banks. But the assessee failed to reply. The AO also observed that the assessee has shown sales in its income returns for Rs. 14,46,018/- only whereas the amount of cash deposit in the bank is coming for Rs. 59,39,000/- only. Thus, the AO observed a difference of Rs. 44,92,982/- between the sales shown in the income tax return vis-à-vis cash deposited in the saving bank account of the assessee. Thus, the difference of Rs. 44,92,982/- was treated as undisclosed income and added to the total income of the assessee. 7. Aggrieved the assessee preferred an appeal before the Ld. CIT(A). The assessee before the Ld. CIT(A) submitted that the amount of cash deposit as well as withdrawal from the bank was done as per the advice of the bank people with the purpose of obtaining cash credit facilities from the bank. Therefore, it was claimed that the same amount of money was deposited and withdrawn from the bank and therefore no addition of the entire amount of cash deposited in the bank can be added to the total income of the assessee as undisclosed income. The assessee further submitted that at the most peak credit balance can be added to the total income of the assessee. However the Ld. CIT(A) disregarded the contention of the assessee and confirmed the order of AO by observing as under: “The facts of the case are duly considered. It is held that it is not a case of simple trader making erroneous banking decision as made out by the assessee. 4

5 ITA Nos.473&640/Kol/2016 Dilip Kumar Das A.Yrs. 2008-09 & 2009-10

An examination of the Bank a/c no. 238010100002561 for the f.y 2007-08 indicates a very curious pattern. The total cash deposit in this account was Rs. 38,63,000/- and this cash is withdrawn through A.T.M’s at far off places like Moradabad & Allahabad etc. Then there are payments recorded in the names of M/s Metlife Insurance, Lalji Sankar, Zubair, Kali Kumar Jha, Santosh Popatrao Kale etc. There is no evidence that the depositors and the ultimate recipient of the cash is the assessee only. It appears more likely that the bank account and the debit card/credit card were used to transfer money. Since the assessee has no explanation for the above, it goes without saying that the assessee’s ground of appeal that the cash was deposited in the bank account as per the advice of the Banking Authorities has no relevance. It is reiterated that the assessee does not even claim that these are his business transactions. In respect of the second Bank A/c no. 238010100131445, the transactions are less as the account was opened only on 17.09.2007 but here also the identity of the depositors & withdrawer is not known and the assessee has not explained the same. Though adequate opportunity had been allowed to the assessee, in the interest of justice, the AO was directed to send a further report in the matter but even in the Remand proceedings the assessee has not been able to explain the cash deposits as mentioned in the Remand report send through letter F.No. W.50(1)/Remand Report/12-13/Kol/1021 dated 18.01.2013. The Remand report is extracted below: “As per your kind direction, the assessee was called for clarification with regard to its submission in the appeal. On the basis of materials on record and discussion made with the AR, report on grounds of appeal made by the assessee is furnished before your kind honour: 1. In the assessment order, the AO added the difference of cash deposit in Bank to that of sale proceeds shown in its account. During the course of assessment proceedings, the assessee was requested to explain the source of fund for the cash deposit. The assessee also failed to file the bank analysis statement and cash flow statement. In the grounds of appeal, the assessee has taken a plea that the cash deposit was made by him as per advice of the Banking Authority for obtaining cash/credit facility. 2. The plea taken by the assessee in the grounds of appeal without any documents has no merit. However, during the proceedings of the Remand Report, the AR was requested again for submission of the bank analysis statement and cash flow statement. But the assessee could not submit the same. As such, it can be considered that the assessee has nothing to offer regarding the cash deposit made by him in the bank during the financial year.

Considering the above, it can be said that the addition made by the AO in the assessment order is fully justified.” 5

6 ITA Nos.473&640/Kol/2016 Dilip Kumar Das A.Yrs. 2008-09 & 2009-10

A copy of the remand report was also given to the AR on 05.02.2013 but no rejoinder was filed. In view of the above discussion and facts, it is not possible even to legally accept any peak credit because even for an application of peak credit the “same” money is required to be deposited and withdrawn. In the case of the assessee the deposit & withdrawal to a large extent, are unrelated. As a result, due to the peculiar nature of the cash deposit & withdrawals and due to persistent non-compliance at assessment, remand and appellate stage, the appeal of the assessee is dismissed and in respect of individual grounds of appeal, it is held as under: (1) Ground of Appeal No. 1.: The grounds of appeal is dismissed for the reasons cited earlier and it is held that the assessee has not established that the deposits were made on the advice of Banking Authorities. The deposits made in cash are held to be undisclosed income taxable u/s 68/69/69A as held in the cases of :- (i) CIT vs. Jauharimal Goel (2006) 201 CTR 54 (ALL). (ii) Smt. Renu Agarwal vs. ITO (2012) 136 ITD 343 (Agra) (TM) The Third Member decision in the case of Smt. Renu Agarwal is at par with the any Special Bench decision of the ITAT as held by the Delhi High Court in the case of P.C.Puri vs. CIT(1985) 151 ITR 584 (Delhi) and also by the ITAT Mumbai in the case of DCIT vs. Oman International Bank (2006) 100 ITD 285(Mum) (SB) in para 40-44. In view of the above, the addition is confirmed as above and to this extent the decision of the AO is modified.”

Being aggrieved by the order of Ld. CIT(A) the assessee is in second appeal before us. 8. The Ld. AR before us submitted that there were regular cash deposits and cash withdrawals and therefore peak credit theory should be adopted for determining the undisclosed income of the assessee. On the other hand, the Ld. DR submitted that in many cases the amount has been withdrawn by the individuals and the assessee failed to explain the purpose for making the payment to such individual. Therefore, peak credit theory cannot be applied in the instant case. The Ld. DR vehemently supported the order of the authorities below. 9. We have heard rival contentions and perused the materials available on record. On perusal of the bank statements, it is observed that there are regular cash deposits and cash withdrawal through ATM and bearers cheques. In some of the cases it was 6

7 ITA Nos.473&640/Kol/2016 Dilip Kumar Das A.Yrs. 2008-09 & 2009-10 observed that the money has been withdrawn by some individuals as their names were appearing in the bank statements. But it is very clear from the bank statements that most of the entries were representing the withdrawal of cash. Thus, it is clearly evident that the same amount was rotating in the bank account of the assessee. However, it was also observed that in some occasion the cash was withdrawn in other states through ATM as well as by some persons through bearer cheques. Thus it appears that the assessee has been using its bank accounts for the purpose of its business and all the accounts were representing the business activities of the assessee. On being confronted, the Ld. Counsel for the assessee submitted that a reasonable amount of gross profit can be applied on the deposit of total cash in the bank. 10. Considering the nature of transaction as reflected in the bank statement we note that every deposit has been represented by the withdrawals of the similar amounts. Therefore we hold that all the transactions of the assessee in the bank accounts are representing the business activities of the assessee therefore in our considered view it would be appropriate to apply the gross profit ratio on the cash deposit in the impugned banks. 11. It was also observed that in the subsequent assessment year 2009-10 the AO has applied gross profit ratio @ 8.84% on the amount deposited in the bank account of the assessee. Therefore we are of the view that the rate of gross profit 10% would serve the justice to the assessee. Therefore, we direct the AO to apply the gross profit @10% on the amount of cash deposit by the assessee. Hence, this ground of appeal of the assessee is partly allowed for statistical purposes. 12. In the result, assessee’s appeal is allowed for statistical purpose. 13. Now coming to I.T.A. No. 640/Kol/2016 The assessee has raised the following grounds: 1. For that the Assessing Officer erred in law as well as in merit. He failed to enquire the return properly. The AO passed his purported order only on the basis of a bank statement collected u/s 133(6). Your appellant already explained his return of income, but the AO asked him to clarify the matter further. The AO passed his

8 ITA Nos.473&640/Kol/2016 Dilip Kumar Das A.Yrs. 2008-09 & 2009-10 purported order u/s 144 without applying his judicial mind properly. Finally, the AO failed to provide reasonable and positive opportunity of being heard. 2. For that the CIT(Appeal) also passed his purported order without apply his judicial mind properly. He admitted that the assessee submitted an explanation regarding frequent money deposit in two bank a/cs but without considering and without tried to find out real fact of the case he enhanced the total income of the assessee. 3. And your appellant craves leaves to amend, alter, change, modify etc. the ground/grounds of appeal on or before hearing.

By Order Senior Private Secretary Head of Office/D.D.O., ITAT, Kolkata Benches 8

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