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Income Tax Officer, Ward-25(1), New Delhi. New Delhi. Vs. Shri Ashok Kumar Gupta, Prop. M/s Esquire Electronic, A-138, Saraswati Vihar, Delhi 110 034.
January, 31st 2015
                                 `A' : NEW DELHI
                    DELHI BENCH `A

                                GARG, JUDICIAL MEMBER

                          ITA No.
                        Assessment Year : 2007-

Income Tax Officer,              Vs.    Shri Ashok Kumar Gupta,
Ward-25(1),                             Prop. M/s Esquire Electronic,
New Delhi.                              A-138, Saraswati Vihar,
                                        Delhi ­ 110 034.
                                        PAN : AAHPG9105D.

     (Appellant)                            (Respondent)

                      Cross Objection No.330/Del/2012
                         Assessment Year : 2007-

Shri Ashok Kumar Gupta,          Vs.    Income Tax Officer,
Prop. M/s Esquire Electronic,           Ward-25(1),
A-138, Saraswati Vihar,                 New Delhi.
Delhi ­ 110 034.

     (Appellant)                            (Respondent)

             Revenue by           :    Shri Vikram Sahai, DR.
             Assessee by          :    Shri Mohit Gupta, CA.


         AGRAWAL, VP :
      The appeal by the Revenue is directed against the order of
learned CIT(A)-XVI, New Delhi dated 17th January, 2012 for the AY
2007-08. The assessee has also filed the cross-objection in support of
the order of learned CIT(A).

2.    The Revenue has raised the following grounds of appeal:-

       "(i) On the facts and circumstances of the case, the
       CIT(A) erred in law as well as on facts in restricting the
       addition on account of unexplained cash deposits to
                                      2                      ITA-3239/Del/2012 &

          peak credit even though the assessee had failed to
          explain the source of such cash deposits and source of
          speculative income with documentary evidences.

          (ii) On the facts and circumstances of the case, the
          CIT(A) erred in law as well as on facts in setting aside
          the order relating to the issue of unexplained cash
          deposit to determine peak credit, when as per section
          251 of the I.T. Act, the CIT(A) has no power to set-aside
          either partially or wholly the assessment order."

3.    The facts of the case are that the Assessing Officer made the
addition of `17,37,672/- for unexplained deposit in the bank account of
the assessee.       Out of the above deposit, the cash deposit was
`14,30,090/- and deposit by cheque was `3,07,582/-.            On appeal,
learned CIT(A) sustained the unexplained deposit by cheque and in
respect of unexplained cash deposit, he directed the Assessing Officer
to make the addition at the value of peak credit in the bank account of
the assessee instead of adding the entire cash deposit. The Revenue,
aggrieved with the order of learned CIT(A), is in appeal before us. The
assessee, though filed the cross-objection, but, at the time of hearing
before us, he submitted that he is supporting the order of the learned

4.    Learned DR relied upon the decision of Hon'ble Madhya Pradesh
High Court in the case of Jhamatmal Takhatmal Kirana Merchants Vs.
CIT ­ [1999] 152 CTR (MP) 311. The learned counsel for the assessee,
on the other hand, relied upon the decision of Hon'ble Jurisdictional
High Court in the case of Additional CIT Vs. Chetan Dass (deceased) ­
[1975] 99 ITR 46 (Del). The learned counsel also produced the copy of
bank account of the assessee and pointed out that there were frequent
deposits and withdrawals in the assessee's bank account and those
withdrawals were available for the subsequent deposits.

5.    We have carefully considered the submissions of both the sides
and perused relevant material placed before us. At page 3 & 4 of the
                                     3                       ITA-3239/Del/2012 &

assessee's paper book, the assessee has given the details of cash
deposit and withdrawal in his bank account, from which, we find that
there are frequent deposits and withdrawals in round figure in
assessee's bank account.     The withdrawals as well as deposits are
ranging from `10,000/- to `1,00,000/-. On these facts, in our opinion,
the decision of Hon'ble Jurisdictional High Court cited by the learned
counsel would be squarely applicable wherein the ITAT deleted the
addition on the ground that the subsequent deposit was out of the
earlier withdrawals. The relevant facts of the said case read as under:-

       "On the basis of an exercise book seized by the sales-
       tax authorities in a raid, which showed that the
       assessee had advanced loans of three sums amounting
       to Rs.30,000 in March, 1963, the Income-tax Officer
       assessed the sum of Rs.30,000 as income from
       undisclosed sources.       The Appellate Assistant
       Commissioner and the Appellate Tribunal directed
       deletion of this sum of Rs.30,000 on the ground that
       this sum was more than covered by the withdrawals of
       Rs.50,000 in certain other accounts made barely two
       months earlier and the deposits in which accounts had
       also been brought to tax as income from undisclosed

6.    The   Revenue    had   filed   the   appeal   before   the     Hon'ble
Jurisdictional High Court which was dismissed with the following

       "Held, that the inference drawn by the Tribunal was
       neither unreasonable nor perverse nor could it be said
       to be based on no evidence or on mere conjecture or
       surmise. The Tribunal's finding was on a question of
       fact and no question of law arose out of its order."

7.    The ratio of the above decision of Hon'ble Jurisdictional High
Court would be squarely applicable to the case under appeal before us.
From the details of the withdrawals and deposits in the bank, it is
evident that there is frequent cash withdrawal and cash deposit. Thus,
                                    4                        ITA-3239/Del/2012 &

earlier withdrawal is certainly available for the deposit made in the
bank account thereafter. The CIT(A) has directed to make the addition
for peak credit which will in effect give credit to the assessee for the
earlier withdrawal in subsequent deposits and only the peak credit on
any day in the assessee's bank account would be added.

8.      That the decision of Hon'ble Madhya Pradesh High Court relied
upon by the learned DR would not be applicable to the facts of the
assessee's case because in the said case, there was debit and credit in
`Haste Khate' and not in the bank account and moreover, when there is
a decision of Hon'ble Jurisdictional High Court, the same is binding
upon us.    We, therefore, respectfully following the above decision of
Hon'ble Jurisdictional High Court, uphold the order of learned CIT(A)
and dismiss the appeal filed by the Revenue.

9.      By the cross-objection, the assessee only supported the order of
learned CIT(A) and has not claimed any further relief. Therefore, the
assessee's cross-objection is treated as infructuous and rejected as

10.     In the result, the appeal of the Revenue and the cross-objection
of the assessee are dismissed.
        Decision pronounced in the open Court on 30th January, 2015.

                   Sd/-                               Sd/-
      (CHANDRA MOHAN GARG)                           AGRAWAL)
                                               (G.D. AGRAWAL)
         JUDICIAL MEMBER                       VICE PRESIDENT

Dated : 30.01.2015
                                  5                      ITA-3239/Del/2012 &

Copy forwarded to: -

1.   Revenue     : Income Tax Officer,
                    Ward-25(1), New Delhi.

2.   Assessee    : Shri Ashok Kumar Gupta,
                   Prop. M/s Esquire Electronic,
                   A-138, Saraswati Vihar, Delhi ­ 110 034.

3.   CIT
4.   CIT(A)
5.   DR, ITAT

                             Assistant Registrar
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