IN INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA Before Shri Waseem Ahmed, Accountant Member and Shri S.S.Viswanethra Ravi, Judicial Member SA No.44/Kol/2016 (a/o ITA No.1856/Kol/2014) Assessment Years:2009-10 Ismail Mondal ITO, Ward-50(2), Vill. Fakirpara, Kolsur, Uttarapan Shopping V/s. P.O. Kolsur, Barasat, Complex, Ultadanga, Pin-743 438 Shoping Complex, [PAN No. AISPM 9512 D] Ultadanga, Kolkata-700 056 Appellant .. Respondent By Appellant Shri K.M.Roy, Advocate By Respondent Shri Arup Chatterjee, JCIT-SR-DR Date of Hearing 23-09-2016 Date of Pronouncement 23-09-2016 O R D E R PER Waseem Ahmed, Accountant Member:- By way of this stay petition assessee has prayed for order of stay of recovery of outstanding of Rs. 22,68,965/-. 2. Ld. AR for assessee brought to our notice that addition made by Assessing Officer and subsequently confirmed by Ld. CIT(A) are not sustainable in law and are liable to be deleted. lower authorities erred in adding entire cash deposit in bank of 30,73,600/- as unexplained cash credit rather applying peak credit theory. ld. AR also submitted that all transactions are business transactions and therefore entire deposit cannot be added to total income of assessee. 3. On other Ld. Senior DR vehemently objected for grant of stay of demand as addition made by AO is on account of violation of provision of law. assessee at time of hearing could not justify transactions of SP No.44/Kol/2016 A.Y. 2009-10 Ismail Mondal vs. TO Wd-50(2), Kol. Page 2 undisclosed bank account. Ld. DR also submitted that assessee has to approach AO first and then to Tribunal. 4. We have considered rival submission of both parties. Before us ld. AR failed to bring any evidence to proof that it is business transaction or peak credit theory should be applied in facts & circumstances. In absence of any documentary evidences, we are satisfied that instant case does not deserve for grant of stay for recovering of outstanding demand. Considering facts of case and by observing that no payment of tax has been paid by assessee, we are inclined not to grant stay of recovery of outstanding demand. We also observed that hearing of main appeal is also fixed on 28.09.2016. Hence, stay petition of assessee is dismissed. 5. In result, assessee s stay petition is dismissed. Order pronounced in open court on 23/09/2016 Sd/- Sd/- (S.S.Viswanethra Ravi) (Waseem Ahmed) Judicial Member Accountant Member *Dkp, Sr-PS - 23/09/2016 Kolkata Copy of Order Forwarded to:- 1. /Appellant-Ismail Mondal, Vill. Kolsur P.O. Kolsur, Dist. 24-Pgs(N) 2. Respondent-ITO Ward-50(2), Uttarapan Shopping Complex, Ultadanga, Kolkata-54 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Kolkata 6. Guard file. By order True Copy, Ismail Mondal v. ITO, Ward-50(2), Kolkata