TaxTMI 
TaxTMI 
2022 (10) TMI 1232
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....llowing rule 24 of the ITAT-Rules, which empowers the Tribunal to decide the appeal ex-parte on merits where the appellant does not appear in person or through an authorised representative and the same is done placing on record a no-objection from the respondent revenue. It is needless to mention that, the proviso to the said rule carves out an exception empowering the Tribunal to recall the ex-parte order, if the appellant appears afterwards and satisfies placing evidential material before the Tribunal to the effect that, there was sufficient cause for its non-appearance when the appeal was called for hearing, however in the event of failure of the part of appellant to substantiate the non-appearance in the evince of material, the recall exercise turns futile. 3. Before advancing the matter on facts for adjudication, it is necessary to reproduce grounds challenged by the appellant assessee as under; 1) The reopening of the assessment and the assessment so completed are illegal and deserves to be quashed as per law. 2) On the facts and circumstances of the case, the assessment so framed is against the principles of natural justice making the assessment and the ....
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....ration with five substantive grounds as; a. Reopening as bad in law b. Violation of principle of natural justice c. Inapplicability of provisions of section 68 and d. Prayer restricting addition to "Peak Credit" e. Levy of mandatory interest 5. In the course of physical hearing the learned departmental representative [for short "DR"] taken us through the relevant pages of paper book submitted by the appellant and the orders of Ld. TAB and argued that, the appellant did not co-operative to bring the full facts of the case, eventually it constrained the Ld. AO to complete the assessment to the best of his judgement u/s 144 of the Act on the basis of bank statement obtained from investigation wing of IT Department. It is further submitted that, the Ld. FAA according sufficient opportunity to the appellant and after considering the written submission has adjudicated the matter on legal as well on merits, for the reasons prayed for dismissal of appeal. 6. We have heard the rival contentions of both the parties; and subject to the provisions of rule 18 of Income Tax Appellate Tribunal Rules, 1963 [for short "ITAT, Rules"] perused the mat....
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....page 1 & 2) it emanates that, the assessee was well informed the grievance for rebuttal through notices u/s 148, 142(1) and 144 of the Act and in response thereto the director Ms Disha Deven Malviya preferred a written submission, considering the same in the light of evidential material and keeping in mind that the assessee has failed to ITR till that date, the assessment proceedings were concluded. Whereas from the records it also apparent that, the Ld. FAA in an appellate proceedings before him granted a reasonable opportunity to the assessee company to support of its legal as well meritare grounds raised and considering the representation of Ld. AR put forth before him through written submission, the addition made u/s 68 of the Act was confirmed, thus ex-facie contention of the appellant fails, resultantly the ground number 2. 7.3 Inapplicability of provisions of section 68 Without duplicating the text of section 68 of the Act, it shall be sufficient to state that, the provisions relating to tax treatment of cash credit are given in section 68 of the Act and in terms thereof, any sum found credited in the books of a taxpayer, for which it offers no explanation about the na....
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....l material to support the claim of the appellant to restrict the addition to peak credit finds no merits. We are heedful to note that, the appellant was accorded reasonable and sufficient opportunity at both the stages before Ld. TAB; however same were neglected and remained unexploited by the assessee company. 7.7 The principle of peak credit theory stems on the fundamental premise that the money deposited and/or withdrawn from the assessee's bank account belongs to the appellant/assessee or in respect of which ownership vest in the appellant/assessee. So, in other words, ownership of the funds is the sine qua non for invoking the principle of peak credit and this particular principle of peak credit theory has been reiterated by the Hon'ble Allahabad High Court in the case of "Bhaiyalal Shyam Behari Vs CIT" reported at 276 ITR 38 and "CIT Vs Vijay Agricultural Industries" reported in 294 ITR 610 wherein it was reiterated that for adjudicating upon the peak credit the factual foundation has to be led that the assessee has to own all cash credit entries in the books of account and only thereafter the question of peak credit can be raised. 7.8 The legal position in seek....