AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2022 (11) TMI 906
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....fter referred to as "the Act") dated 23.12.2016 relevant to Assessment Year 2009-10. 2. The assessee has raised the following grounds of appeal: 1.0 The grounds of appeal mentioned hereunder are without prejudice to one another. 2.0 The Id. Commissioner of Income Tax (Appeals), Jamnagar [hereinafter referred as to the "CIT(A)'] has erred on facts as also in law in confirming addition of net profit estimated at 10% of sales of Rs.13,13,760/- amounting to Rs.1,31,376/-.The addition totally unjustified and deserves to be deleted and may kindly be deleted. 3.0 The Ld. CIT(A) erred on facts as also in law in confirming addition of Rs.31,06,594/- u/s. 69A of the Income Tax Act, 1961 on account of alleged unexplained cash deposits in ....
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....k containing pages 1 to 36 and contended that there is no basis adopted by the authorities below for estimating the income at the rate of 10% of the turnover. According to the learned AR the income declared by the assessee in his return of income should be admitted. 8. On the contrary the learned DR vehemently supported the order of the authorities below. 9. We have heard the rival contentions of both the parties and perused the materials available on record. From the preceding discussion, we note that the assessee has already declared an income at the rate of 9.34% in his return of income. Even under the provisions of section 44AD of the Act, the presumptive rate specified therein is 8% of the turnover whereas the assessee has declared i....
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.... CIT(A) who confirmed the same by observing as under: "5.3 Thus the AO has correctly worked out the peak balance of Rs.31,06,594/- in respect of deposits of cash and withdrawals of cash as appearing in the above two bank accounts of the appellant in view of the fact that working of peak credit was not given by the appellant to the AO at the time of assessment proceedings. Further at appellate stage also, working of peak credit has not been given by the appellant to me. In view of the discussion of the facts of the case as made in this para as well as in preceding paragraphs of this appeal order, the addition Of Rs. 31,06,594/- as made by the AO to the total income of the appellant in his assessment order is hereby confirmed u/s. 69A of th....
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....nner whatsoever on account of the Assessing Officer having mentioned the wrong section. Where in the assessment proceedings the enquiries are made by the Assessing Officer of facts and the Assessing Officer after considering the facts and circumstances of the case including the assessee's response, if any, thereto, makes an addition, which is justified and permissible under the provisions of the Act but inadvertently or even wrongly mentions a wrong provision of the Act, the assessment order cannot be set aside on that ground. It is open in such circumstances to the Appellate Authority or to CIT (A) or the Tribunal to uphold the addition under the correct section. This of course would be in circumstances where the error has not prejudic....
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....e same. It is also true that the entire amount of cash deposit cannot be treated as income of the assessee in a situation where there is a subsequent withdrawal and deposit in the bank account of the assessee. In other words the amount withdrawn from the bank is available with the assessee for subsequent deposit in the bank account. In such facts and circumstances the Hon'ble Courts in series of cases has held that the peak amount lying in the bank account should be treated as income of the assessee. Accordingly we note that there is no infirmity in the order of the authorities below. Before parting, we note that the assessee has not given his working for the amount of the peak credit. Accordingly, in the interest of justice and fair play w....