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TMI Blog2018 (2) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... ethra Ravi, JM For The Appellant : Shri A. Kochar, Advocate For The Respondent : Shri Arindam Bhattacharjee, Addl.CIT ORDER 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 ₹ 10,000/- on 27.12.2013 at the State Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that there was an unreasonable delay in filing the appeal therefore we are inclined to levy the cost over the assessee for ₹ 1000/- on account of delay in filing the appeal. Accordingly, the assessee is directed to deposit a sum of ₹ 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 ₹ 1000/- on account of his negligent behavior in pursuing the matter before the AO. Accordingly, the assessee is directed to deposit a total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn vis- -vis cash deposited in the saving bank account of the assessee. Thus, the difference of ₹ 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. An examination of the Bank a/c no. 238010100002561 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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