2014 (7) TMI 47 - HC - Income Tax

Tribunal upholds Section 68 for unexplained cash credits, valid reopening under Sections 148/147.

Shri Sudhir Kumar Sharma (HUF) Versus The Commissioner of Income Tax III

The Tribunal affirmed the addition under Section 68 of the Income Tax Act, as the assessee failed to prove the source of cash deposits. The reopening of ... Initiation of proceedings u/s 147/148 of the Act - Addition u/s 68 of the Act – Non-speaking order – Peak credit - cash were deposited in the bank account of the assessee - The assertion of the assessee in this regard was that it was the amount received from his clients. - Held that:- Various amounts in cash were deposited in the bank account of the assessee and the onus was upon the assessee to explain the nature and source of the cash deposits - The assertion of the assessee was that it was the amount received from his clients - the assessee failed to give the list of such persons along with confirmation in respect of the cash credits nor any of the persons were produced for examination, who had advanced the cash to him, before the AO - assessee also failed to bring on record any evidence to prove that it was the amount received from persons who were his clients. The Tribunal had also noticed that inspite of opportunity having been provided to the assessee, there was no justification to allow the further opportunity to produce the persons - Tribunal had rightly held that there were cash deposits in the bank account and thereafter cheques were issued to different parties and in such circumstances, the theory of peak credit could not be accepted - assessee had not been able to show that there existed any nexus whereby the amount deposited in cash had been withdrawn in cash and thereafter re-deposited to take benefit under peak credit theory – thus, no substantial question of law arises for consideration – Decided against Assessee. Issues Involved:1. Legality of sustaining addition under Section 68 of the Income Tax Act, 1961.2. Legality of reopening proceedings under Section 148/147 of the Income Tax Act, 1961.3. Applicability of peak credit theory.4. Validity of invoking Section 68 for unexplained cash credits.5. Compliance with principles of natural justice.6. Evidentiary value of statements recorded during survey under Section 133 of the Income Tax Act.Detailed Analysis:1. Legality of Sustaining Addition under Section 68 of the Income Tax Act, 1961:The Tribunal affirmed the addition made by the Assessing Officer under Section 68, holding that the assessee failed to prove the source of cash deposits amounting to Rs. 7,81,87,362/-. The Tribunal noted that the assessee did not provide the names and addresses of the persons who allegedly deposited the cash. The assessee's claim that the deposits were trade debts was not supported by evidence. The Tribunal concluded that the assessee did not discharge the onus of proving the identity, creditworthiness, and genuineness of the cash credits, thus justifying the addition under Section 68.2. Legality of Reopening Proceedings under Section 148/147 of the Income Tax Act, 1961:In ITA No.81 of 2014, the issue of reopening was addressed. The Tribunal held that the reopening was validly initiated as the reasons recorded indicated that the assessee had deposited significant amounts in cash, which were not verified during the original assessment. The Tribunal found that the essential requirements for reopening were fulfilled, and the assessee did not challenge the validity of reopening before the Tribunal. Therefore, the reopening was deemed appropriate.3. Applicability of Peak Credit Theory:The Tribunal rejected the application of the peak credit theory, which was initially applied by the CIT(A). The Tribunal observed that the assessee deposited cash in the bank account and issued cheques to different parties, without establishing any nexus between various entries. The Tribunal concluded that the peak credit theory was not applicable as the assessee failed to show that the cash deposits were subsequently withdrawn and redeposited.4. Validity of Invoking Section 68 for Unexplained Cash Credits:The Tribunal upheld the invocation of Section 68, emphasizing that the assessee did not provide any satisfactory explanation for the cash deposits. The Tribunal noted that the assessee's statements during the survey and assessment proceedings were inconsistent and failed to substantiate the claim that the deposits were from clients. The lack of corroborative evidence and failure to produce the books of account led to the conclusion that the cash deposits were unexplained and taxable under Section 68.5. Compliance with Principles of Natural Justice:The Tribunal found no violation of the principles of natural justice. The assessee was given multiple opportunities to produce evidence and explain the cash deposits but failed to do so. The Tribunal held that the assessee's inability to produce the persons who allegedly deposited the cash and the lack of supporting documents justified the addition under Section 68.6. Evidentiary Value of Statements Recorded During Survey under Section 133 of the Income Tax Act:The Tribunal considered the statements recorded during the survey and assessment proceedings. It noted that the assessee's statements were inconsistent and did not provide a clear explanation for the cash deposits. The Tribunal held that the statements, along with the lack of corroborative evidence, supported the addition under Section 68.Conclusion:The appeals were dismissed, and the Tribunal's findings were upheld. The Tribunal concluded that the assessee failed to discharge the onus of proving the source of cash deposits, justifying the addition under Section 68. The reopening of assessment was deemed valid, and the peak credit theory was rejected due to the lack of nexus between the entries. The Tribunal found no violation of natural justice and upheld the evidentiary value of the statements recorded during the survey.