TaxTMI 
TaxTMI 
2016 (6) TMI 1478
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....at an FDR of Rs. 9,50,000/- was made on 29.11.2006 out of cash deposited. The submission of the assessee was that the amount of Rs. 9.5 lacs was a cash withdrawal by way of a loose cheque and that the same was re-deposited as on 21.3.2007 and 22.3.2007. The Assessing Officer in this way, made an addition of Rs. 9,50,000/-. 4. Before the CIT (Appeals), the assessee contended that the amount was a cash withdrawal by way of a loose cheque and while making such addition peak credit can be added after giving benefit of the withdrawals which are available for deposits. In the Remand Report submitted by the Assessing Officer before the CIT (Appeals), he stated that a letter was written to the bank seeking information regarding withdrawal by cash and the bank has submitted photocopy of the cheque dated 27.11.2006. Further, on clarification sought from the bank regarding fixed deposit of Rs. 9,50,000 on 29.11.2006, the bank vide its letter No.Taksal:33/44 dated 12.5.2011 verified that no fixed deposit was made by the assessee out of cash withdrawal of Rs. 9,50,000/-. In view of the contents of the Remand Report, the CIT (Appeals) deleted the addition. 5. Against this, the Department has c....
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....rd. The relevant findings of the CIT (Appeals) in regard to these grounds are at page 5, para 5.3 of her order, which read as under : "5.3. 1 have carefully considered the rival contentions. The decisions relied upon by the assessee viz. ACIT vs. Baldev Raj Charla & Ors. 18 DTR (Del) (Trib) 413; S.R. Venkata Ratnam vs. CIT 127 ITR 807; Smt. Saroj Sirselwala vs. ITO 45TT] 701 (ITAT Jaipur); Shri Pankaj Bansal vs. ITO ITA No. 781/ Chandi/ 2011 A.Y. 200708 have also been seen. No doubt the assessee was required to provide evidence to enable the Ld. AO to examine, for determining, inter-alia, the peak credit. However it is a settled principal of law to give the benefit of peak credit in such circumstances where the bank accounts reflect withdrawals as well as cash deposits during the year and where the complete statement for the year is available. It cannot also be ruled out that the withdrawals were re-deposited despite the time-gap in the absence of any contrary finding by the Ld. AO that the withdrawals were invested/expended for some other purpose. Hence the Ld. AO, while giving appeal effect, is directed to determine the peak credit for the above mentioned bank accounts of the a....
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....ons have been made without giving any benefit of the withdrawals made which cash was available for redeposit in all the abovementioned accounts in ground Nos. 3 and 4 supra." 17. The ground No.4 is related to ground No.3 raised by the Department in ITA No.1070/Chd/2012. 18. Briefly, the facts are that the Assessing Officer observed that Account No.44 is in the name of wife of the assessee and Account No.67 is in the name of the assessee himself. In both these accounts, cash deposits of Rs. 3 lacs have been made as on 23.2.2007. The explanation of the assessee was that the sources of these deposits were from the cash withdrawals from Account No.6678 in the name of the assessee as on 18.1.2006 and 23.8.2005. The Assessing Officer made addition of an amount of Rs. 3 lacs, which the assessee carried in appeal before the learned CIT (Appeals). The same submissions as to the deposits being made out of cash withdrawals from Account No.6678 were made before the CIT (Appeals). The CIT (Appeals) sent the matter to the Assessing Officer in remand. The Assessing Officer in his Remand Report stated that the said plea of the assessee is not tenable as no such submission was made at the time of....
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....statement of this bank account was requisitioned u/s 133(6) as the assessee had not disclosed the same despite the Ld-AO asking him to furnish details of all bank accounts standing in his name and in the names of the family members. The Ld. AO has raised the question of additional evidence as the assessee had not put forth this explanation during the assessment proceedings. Be that as it may, I hold the clarification offered by the assessee at this juncture as untenable. The assessee has also not elucidated under which condition of Rule 46A does his case fall, so I am afraid the plea that the Ld AO had made no specific query in respect of these entries and the plea that additional evidence which are from contemporaneous record of the bank be admitted cannot be accepted. The appeal for peak credit of these two accounts cannot also be allowed as I find that the same amounts of Rs. 3 lacs have been withdrawn from the account nos 44 and 67 respectively before the end of the financial year. This is the only transaction for the FY 200607 as these accounts were both opened on 29.1.2007 and as on 31.3.2007, the closing balance was Rs. 500/- each which is the requisite fee for opening the b....
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....ble on record. The relevant findings of the CIT (Appeals) at page 8 para 7.1, which reads as under : "7.1 I have gone through the impugned assessment order and the assessee's submission. It is a fact that three retail invoices of M/s Tanishq dated 21.10,2006, 23.06.2006 and 22.06.2006 were found from the resident of the assessee during the search operation. The assessee's attempt to disown these documents has no strong ground. No evidence had been furnished by the assessee either, that these do not belong to him and that these belonged to some other person. It is however seen that the value of the invoiced jewellery is less than the declaration on account of jewellery. Hence, though I am confirming the addition of Rs. 3,53,645/- by the Ld. AO, however, on taking a telescopic view, no further and separate addition is made on this account. The assessee succeeds in this ground of appeal." 29. We do not find any infirmity in the order of the CIT (Appeals) as there is no dispute to the fact that three retail invoices of M/s Tanishq were found during the course of search from the residence of the assessee. The presumption of the documents found during the course of search is a....
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....thdrawn amount was used for redeposit in the Bank Accounts?" 33. The facts of the case are that there were certain cash deposits in the bank account bearing Nos.10820, 44, 67 and 20422 in the name of the assessee. The Assessing Officer made addition of the cash deposits in the hands of the assessee. 34. Before the CIT (Appeals), apart from the fact that the assessee tried to defend the case on merits, an alternative plea as regards to addition to be sustained only to the extent of peak credit was also raised. The CIT (Appeals) after considering the submissions of the assessee and the Remand Report filed by the assessee, sustained the addition to the extent of peak credit and allowed partial relief to the assessee. 35. Aggrieved by this, the Department has come up in appeal before us. The learned D.R. relied on the order of the Assessing Officer and stated that the total cash deposits being unexplained, the addition made by the Assessing Officer should be sustained. 36. The learned counsel for the assessee relied on the order of the CIT (Appeals) and stated that the addition only to the extent of peak credit can be sustained. 37. We have heard the learned representatives of bot....
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....nt of alleged expenses incurred on construction only on the ground that since the same was surrendered and not declared while filing of return without appreciating the explanations rendered which is arbitrary and unjustified." 41. Briefly, the facts of the case are that during the course of search & seizure operation conducted at the premises of the assessee, the assessee made surrender of an amount of Rs. 2,58,41,912/- on account of following : i) On account of purchase of 36.5 acre land in Distt. Hoshiarpur Rs.70,27,312/- ii) On account of undisclosed bank accounts Maintained in the name of his wife Smt. Jyoty Dhir Rs.54,32,808/- iii) On account of undisclosed bank accounts Maintained in the name of his son Sikander Rs.15,00,292/- IV) In respect of investment made in construction Of Building at Parwanoo Rs.60,44,000/- V) On account of unaccounted expenditure made in cash Rs.58,37,500/- Total Rs.2,58,41,912/- 42. Out of this amount of Rs. 2,58,41,912/-, the assessee has declared an amount of Rs. 1,39,60,412/- in assessment year 2007-08 and Rs. 62,84,846/- in assessment year 2008-09 out of the total disclosure of Rs. 1,18,81,500/- which was duly admitted by the a....
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....Rs. 58,37,500/- towards unaccounted expenditure made in cash in the current year. It was argued that the surrenders so made pertained to the same expenditure incurred in the building construction at Parwanoo. Similar stand was taken by the assessee during the assessment proceedings when statement was recorded u/s 131. In this entire episode, what cannot be discounted is that the assessee tried to destroy this piece of document as iterated in the remand report. Moreover, it is the assessee's burden to proof that the two surrenders were on the same asset, by linking up the entries as the claim during the appeal proceedings is that the expenditure is debited in the books during the same period. Hence it is apparent that the claim of the assessee remains unsubstantiated. It was merely a bald assertion. Therefore, on the facts and circumstances of the case, the addition on this ground is confirmed. Assessee fails in this appeal." 47. On perusal of the same, we do not find any infirmity as the assessee himself during the course of search has disclosed both the amounts of Rs. 60,44,000/- as well as Rs. 58,37,500/-. The stand was changed at the time of assessment proceedings. Furtherm....
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....rse of search. 52. Before the CIT (Appeals), similar submissions were raised. In the Remand Report filed by the Assessing Officer, the Assessing Officer stated that no details of source of acquisition of jewellery has been submitted by the assessee. After considering the submissions of the assessee as well as Remand Report, the CIT (Appeals) gave relief to the assessee on account of jewellery to the extent of Rs. 5 lacs. 53. Aggrieved by this, the assessee has come up in appeal before us. The learned counsel for the assessee reiterated the submissions made before the lower authorities, while the learned D.R. relied on the order of the CIT (Appeals). 54. We have heard the learned representatives of both the parties, perused the findings of the authorities below and considered the material available on record. The relevant findings of the CIT (Appeals) are at pages 7 and 8, para 9.1, which read as under : "9.1 I have gone through the rival contentions. The jewellery found in he course of search was Rs. 15,06,080/- of which Rs. 5,14,783/- worth was seized. The source of investment is stated to be from assessee's unaccounted business transactions. In the rejoinder, the assessee fu....
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.... the explanation of the assessee before the Assessing Officer as well the CIT (Appeals) was that he income generated by the assessee as stated by him in his statement recorded at the time of search has emanated such cash. The CIT (Appeals) confirmed the addition made by the Assessing Officer. 58. Aggrieved by this, the assessee has come up in appeal before us and again reiterated the submissions which were raised before the Assessing Officer and CIT (Appeals). 59. The learned D.R. relied on the order of the CIT (Appeals). 60. We have heard the learned representatives of both the parties, perused the findings of the authorities below and considered the material available on record. The findings of the CIT (Appeals) are at page 8 at the end of para 9.1, which read as under : "As regards the cash found, I am inclined to uphold the reasoning of the Ld AO. The assessee had initially taken the stand that the cash was from available cash in hand of the proprietary concerns and now the explanation offered is that they emanated from the bank account 57176. The cash account filed cannot be accepted as this is a case where assessee is making bald assertions. Consequently, the addition of....