M/s Big Bull Commodities (P) Ltd., Ludhiana V. ITO, Ludhiana

ITA 14/CHANDI/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80808 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 22-07-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 07-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JYOTI KUMARI
• Assessee Lawyers: B M MONGA; SANJAY BANSAL
• Keywords: Additional evidence; Accommodation entries; Retraction
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B CHANDIGARH BEFORE SHRI T.R.SOOD ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO. 14/CHD/2013 ASSESSMENT YEAR : 2009-10 M/S BIG BULL COMMODITIES (P) LTD., VS THE INCOME TAX OFFICER, 70, NEW LAJPAT NAGAR, WARD VI(1), LUDHIANA. LUDHIANA. PAN : AACCB7845B & ITA NO. 15/CHD/2013 ASSESSMENT YEAR : 2009-10 M/S BEST BUY COMMODITIES (P) LTD., VS THE INCOME TAX OFFICER, 70, NEW LAJPAT NAGAR, WARD VI(1), LUDHIANA. LUDHIANA. PAN : AACCB7846C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SANJAY BANSAL & SHRI B.M. MONGA RESPONDENT BY : SMT. JYOTI KUMARI DATE OF HEARING : 22.07.2014 DATE OF PRONOUNCEMENT : 08.08.2014 O R D E R PER SUSHMA CHOWLA, JM BOTH THE APPEALS FILED BY DIFFERENT ASSESSEES ARE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) CHANDIGARH DATED 15.10.2012 RELATING TO ASSESSMENT YEAR 2009-10, AGAINST THE ORDER PASSED UNDER SECTION 143(3) OF TH E INCOME TAX ACT, 1961 (IN SHORT 'THE ACT'). 2. THE ISSUE IN BOTH THE APPEALS RELATING TO DIFFER ENT ASSESSEES ON IDENTICAL ISSUE WERE HEARD TOGETHER AND IS BEING DI SPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2 3. THE FACTS IN BOTH THE APPEALS ARE IDENTICAL. HO WEVER, REFERENCE IS BEING MADE TO ITA NO. 14/CHD/2013 TO ADJUDICATE THE ISSUE. THE GROUNDS OF APPEAL AS RAISED IN ITA NO. 14/CHD/2013 READ AS UNDER : 1. THAT ORDER PASSED U/S 250(6) OF THE INCOME TAX ACT , 1961 BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-L, LUDHIAN A IS AGAINST LAW AND FACTS ON THE FILE IN AS MUCH HE WAS NOT JUSTIFI ED TO ARBITRARILY UPHOLD AN ADDITION OF RS. 1,12,38,500/- BY INVOKING THE PR OVISIONS OF SECTION 68 OF THE ACT. 2. THAT HE FAILED TO APPRECIATE THAT THE CASH DEPOSIT WAS ONLY ON ACCOUNT OF TRADE TRANSACTIONS AND BY NO STRETCH OF IMAGINAT ION COULD BE CALLED / TERMED AS A CASH CREDIT. 3 THAT THE LD. CIT(A) FAILED TO APPRECIATE THE CO NTENTION OF THE APPELLANT THAT IT WAS ONLY ENGAGED IN THE BUSINESS OF PROV IDING ACCOMMODATION ENTRIES. 4. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD DEPOSITED CASH IN ITS BANK ACCOUNTS MAINTAINED WITH DIFFERENT BANKS. STATEMENT OF THE DIRECTOR OF THE ASSESSEE C OMPANY WAS RECORDED DURING THE ASSESSMENT PROCEEDINGS ON 20.12 .2011 AND IT WAS STATED BY HIM THAT THE SAME REPRESENTED CASH RECEIV ED FROM THE CLIENTS FOR WHOM THE ASSESSEE TRADES IN COMMODITIES. THE A SSESSING OFFICER ASKED THE ASSESSEE ABOUT THE IDENTITY OF THE CLIENT S AND IN REPLY IT WAS SUBMITTED THAT THEY WERE MAINTAINING THE DATA OF TH E CLIENTS. HOWEVER, ON THE PERUSAL OF THE COMPUTERIZED LEDGER ACCOUNTS OF THE ASSESSEE, NO DETAILS OF THE CLIENTS WERE FOUND AS A LL THE ACCOUNTS WERE IN SINGLE NAME. THE DIRECTOR SOUGHT TIME TO PRODUC E THE CLIENT REGISTER BUT ON THE NEXT APPOINTED DATE, COULD NOT PRODUCE THE SAME AND ALSO STATED THAT NO CLIENT WAS READY TO APPEAR IN THE OFFICE OF THE ASSESSING OFFICER FOR VERIFICATION. THE ASSESSEE T HUS, WAS SHOW CAUSED TO EXPLAIN AS TO WHY THE CASH DEPOSITED IN T HE BANK ACCOUNT MAY NOT BE TREATED AS INCOME FROM UNDISCLOSED SOURC ES. THE COPY OF 3 THE SHOW CAUSE NOTICE IS REPRODUCED AT PAGE 3 OF TH E ASSESSMENT ORDER. IN REPLY, THE ASSESSEE PLACED RELIANCE ON ITS EARLI ER REPLY. HOWEVER, AS THE ASSESSEE HAD FAILED TO PRODUCE ANY CLIENTS FOR VERIFICATION, THE ASSESSING OFFICER REJECTED THE CONTENTION OF THE AS SESSEE THAT IT WAS ENGAGED IN TRADING OF COMMODITIES ON BEHALF OF THE CLIENTS FROM WHOM CASH WAS DEPOSITED. EVEN ON THE VERIFICATION OF TH E BOOKS OF ACCOUNT, NO RECEIPTS WERE FOUND TO HAVE BEEN ISSUED TO THE C LIENTS AGAINST THE CASH RECEIPT. THE ASSESSEE FAILED TO PROVE THE IDE NTITY OF THE PERSONS FROM WHOM THE SAID CASH WAS RECEIVED. IN VIEW THER EOF, ASSESSING OFFICER INVOKING THE PROVISIONS OF SECTION 68 OF TH E INCOME TAX ACT MADE AN ADDITION OF RS. 1,12,38,500/-. 5. THE COMMISSIONER OF INCOME TAX (APPEALS) HELD AS UNDER : 4. I HAVE CONSIDERED THE BASIS OF ADDITION MADE BY THE ASSESSING OFFICER AND THE ARGUMENTS OF THE AR ON THE ISSUE. I T IS A MATTER OF FACT THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF COM MODITY TRADING ON BEHALF OF ITS CLIENT AND FOR THIS PURPOSE IT IS INC UMBENT UPON HIM TO MAINTAIN ITS ACCOUNTS IN SUCH A MANNER SO AS TO ENS URE THAT ANY AMOUNTS DUE FROM THE CLIENTS COULD BE RECOVERED AS AND WHEN REQUIRED. THE STIPULATION FOR MAINTAINING SUCH CLIE NT DATA BASE BY THE BROKERS HAS COME INTO OPERATION ONLY WITH THE PURPO SE OF ENSURING THE STABILITY OF THE MARKET AND ALSO WITH THE INTENT OF KNOWING THE EVENTUAL SO THAT EACH AND EVERY TRANSACTION IS ACCOUNTED FOR AND HAS AN TRAIL. EVEN IN THE ABSENCE OF ANY LEGAL/REGULATORY REQUIRE MENT TO MAINTAIN THE CLIENT DATA BASE, IT IS NOT POSSIBLE FOR THE BROKER TO CARRY ON THE BUSINESS OF COMMODITY BROKERAGE WITHOUT KEEPING METICULOUS R ECORD IN RESPECT OF ITS CLIENTS. IT IS IN THIS BACK GROUND THAT THE ASSESSEE'S CLAIM OF NOT MAINTAINING THE CLIENT DATA BASE IS NOTHING BUT ATT EMPT TO MISLEAD THE INVESTIGATION OF ITS BUSINESS WITH THE CLEAR MOTIVE OF PROTECTING ITS CLIENTS. I AM IN AGREEMENT WITH THE ASSESSING OFFIC ER THAT THE AMOUNTS CREDITED IN ASSESSEE'S BANK ACCOUNT HAVE TO BE EXPL AINED U/S 68 IN TERMS OF THE IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF THE SOURCE. THE ASSESSEE HAS MISERABLY FAILED IN THE ONUS CAST UPON IT U/S 68 AS NO DETAILS OF THE CLIENTS FROM WHOM THE IMPUGNED CASH HAS BEEN CLAIMED TO HAVE BEEN RECEIVED HAVE BEEN FILED. THE APPELLAN T'S CLAIM THAT IT HAD ALREADY ADMITTED TO BE IN THE BUSINESS OF PROVI DING ACCOMMODATION ENTRIES AND THEREFORE COULD ONLY BE ASSESSABLE IN R ESPECT OF THE COMMISSION INCOME ON THIS ACCOUNT, IS NOT ACCEPTABL E AS ON ONE HAND IT IS A CLEAR ADMISSION OF MONEY LAUNDERING AND ON THE OTHER HAND NO DETAILS IN RESPECT OF THE PERSONS WHOSE UNACCOUNTED MONEY HAS BEEN WASHED HAS BEEN GIVEN. THIS MEANS THAT THE SPECIFIC KNOWLEDGE IN THE EXCLUSIVE DOMAIN OF THE ACCOMMODATION ENTRY PROVIDE R HAS BEEN WITHHELD IN ORDER TO BENEFIT THE TAX EVADERS. EVEN OTHERWISE ADMISSION ON THE PART OF THE ASSESSEE IS ONLY INTENDED TO HOO DWINK THE REVENUE 4 BY OFFERING COMMISSION INCOME @ 0.05% WHERE THERE I S NO EVIDENCE OF THE SAME AT THIS PARTICULAR LEVEL. I AM OF THE V IEW THAT THE APPELLANT'S ADMISSION OF BEING IN THE BUSINESS OF A CCOMMODATION ENTRY IS VALID ONLY IF COMPLETE DETAILS OF THE PERSONS/CL IENTS IS PROVIDED SO THAT IT FACILITATES THE TASK OF THE REVENUE TO PROC EED AGAINST SUCH PERSONS AND COLLECT THE REVENUE FROM THEM. IT HAS B EEN EXPERIENCED THAT THE ACCOMMODATION ENTRY PROVIDERS INITIALLY GI VE STATEMENT ADMITTING THE CRIME AND LATERON RETRACTION IS MADE IN ORDER TO ACCOMMODATE THE ENTRY TAKERS ONCE AGAIN AT THE TIME OF THEIR ASSESSMENTS. THE REVENUE APART FROM PROCEEDING AGAI NST THE CLIENTS WHO HAD LAUNDERED THEIR UNACCOUNTED MONEY ARE ALSO BOUND TO HOLD THE ENTRY PROVIDER ACCOUNTABLE TILL THE COMPLETE CHAIN IS TAKEN CARE OFF. THE PLEA OF THE APPELLANT THAT THE ASSESSING OFFICER SH OULD NOT EXAMINE THE CREDITS IN HIS BANK ACCOUNT U/S 68 AND ASSESS HIM O NLY ON COMMISSION BASIS IS NOT ACCEPTABLE. IN THE CIRCUMSTANCES THE A CTION OF THE ASSESSING OFFICER IN TREATING THE IMPUGNED AMOUNT OF RS. 1,12 ,38,500/- AS ASSESSEE'S INCOME U/S 68 IS CONFIRMED. 6. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF C OMMISSIONER OF INCOME TAX (APPEALS). 7. THE LD. AR FOR THE ASSESSEE AT THE OUTSET FAIRLY ADMITTED THAT THE ISSUE ARISING IN THE PRESENT APPEAL IS AGAINST THE ASSESSEE BY THE ORDER OF HON'BLE PUNJAB & HARYANA HIGH COURT. 8. THE LD. DR FOR THE REVENUE PLACED RELIANCE ON TH E ORDERS OF THE AUTHORITIES BELOW AND ALSO POINTED OUT THAT SIMILAR ISSUE AROSE BEFORE THE TRIBUNAL IN THE CASE OF THE ASSESSEE ITSELF AND VARIOUS OTHER CONCERNS WHERE THE ISSUE HAD BEEN DECIDED AGAINST T HE ASSESSEE. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING IN THE PRESENT APPEAL IS AGAINST THE ASSESSABILITY OF INCOME UNDER SECTION 68 OF THE ACT. THE ASSESSEE H AD DEPOSITED CASH IN ITS BANK ACCOUNT ON VARIOUS DATES AND EXPLANATIO N WAS SOUGHT FROM THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEE DINGS. THE PLEA OF THE ASSESSEE BEFORE ASSESSING OFFICER WAS THAT IT H AD RECEIVED CASH FROM VARIOUS CLIENTS AND IN-TURN HAD ISSUED CHEQUES TO THEM AS IT WAS ENGAGED IN THE BUSINESS OF COMMODITIES PROFIT. THE ASSESSEE CLAIMED 5 THAT HE WAS MAINTAINING REQUISITE LEDGER ACCOUNT OF THE VARIOUS CLIENTS WHICH HE WOULD PRODUCE ON THE NEXT DATE OF HEARING. THE STATEMENT OF ONE OF THE DIRECTORS OF THE ASSESSEE COMPANY WAS RE CORDED DURING THE ASSESSMENT PROCEEDINGS IN WHICH HE ADMITTED THE SAI D POSITION. HOWEVER, ON THE SUCCESSIVE DATES OF HEARING DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE FAILED TO PRODUCE ANY EVI DENCE OF THE RECEIPT OF CASH FROM THE CLIENTS. NO CLIENT REGISTER WAS PRODUCED NOR ANY CONFIRMATION WAS FILED FROM ANY PERSON. IN THE ABS ENCE OF THE SAME, THE ASSESSEE WAS TREATED TO BE IN DEFAULT OF HAVING NOT FURNISHED THE INFORMATION AND IN VIEW OF THE PROVISIONS OF SECTIO N 68 OF THE ACT, CASH DEPOSITS IN THE BANK ACCOUNT TOTALING RS. 1,12 ,38,500/- WAS TREATED AS INCOME OF THE ASSESSEE. 10. WE FIND THAT SIMILAR ISSUE OF CASH DEPOSIT IN T HE BANK ACCOUNT AND THE NON-FURNISHING OF COMPLETE DETAILS IN RESPE CT OF THE SAID CASH DEPOSIT HAD ARISEN BEFORE THE TRIBUNAL IN CROSS APP EALS IN ITA NO.713/CHD/2010 AND ITA NO. 963/CHD/2010 IN THE CAS E OF SUDHIR KUMAR SHARMA VS ITO RELATING TO ASSESSMENT YEAR 200 7-08 AND OTHERS AND VIDE ORDER DATED 27.06.2013, IT WAS HELD AS UND ER : 21. THE FIRST ISSUE TO BE ADDRESSED BY US IN THE PR ESENT FACTS AND CIRCUMSTANCES OF THE CASE IS WHETHER THE PROVIS IONS OF SECTION 68 OF THE ACT ARE APPLICABLE TO THE FACTS O F THE PRESENT CASE. DURING THE COURSE OF SURVEY CONDUCTED U/S 13 3A OF THE ACT ON 31.10.2007, IN THE STATEMENT RECORDED, THE A SSESSEE ADMITTED TO BE ENGAGED IN THE BUSINESS OF GIVING ACCOMMODATION ENTRIES. THE MODUS-OPERANDI EXPLAINE D DURING THE COURSE OF SURVEY WAS THAT THE ASSESSEE WAS RECE IVING THE AMOUNT IN CASH AND THE SAME WERE BEING RETURNED VID E CHEQUES THROUGH BANK ACCOUNTS. HOWEVER, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE STATEMENT OF THE ASSESS EE WAS AGAIN RECORDED WHEREIN WHEN CONFRONTED WITH THE BAN K STATEMENT OF M/S BIG BULL COMMODITIES PVT. LTD. WIT H CENTURIAN BANK, PAKHOWAL ROAD, LUDHIANA IN WHICH HU GE CASH WAS DEPOSITED BY VARIOUS ENTRIES, THE ASSESSEE IN R EPLY STATED THAT THE CASH WAS DEPOSITED AS PER BOOKS OF ACCOUNT ON BEHALF OF THE CLIENTS. VIDE QUERY NO.8, THE ASSESSEE WAS ASKED TO PROVIDE THE NAMES AND ADDRESSES OF THE CUSTOMERS/CL IENTS WHO HAD DEPOSITED THESE AMOUNTS. THE REPLY OF THE ASSE SSEE IN THIS 6 REGARD WAS, IF DETAILS ARE THERE, I WILL CHECK FRO M BOOKS OF ACCOUNT AND PROVIDE THE SAME. THE ASSESSEE, THERE AFTER WAS DIRECTED TO PRODUCE ATLEAST 10 PERSONS WHO HAD DEPO SITED RS.1 LAC AND ABOVE IN THE BANK ACCOUNT. THE ASSESSEE EX PLAINED THAT HE WILL VERIFY FROM RECORD AND LET THE ASSESSI NG OFFICER KNOW ABOUT IT. IN REPLY TO QUERY NO.10, THE ASSESS EE CLAIMED THAT CASH IS RECEIVED FROM CUSTOMERS AND SAME IS DE POSITED IN BANK. THE PLEA OF THE ASSESSEE BEFORE THE ASSESSIN G OFFICER WAS THAT HE WAS ENGAGED IN THE BUSINESS OF COMMODIT IES AND QUERY NO.12, 13 WERE RAISED IN RESPECT OF THE COMMI SSION RECEIVED FROM LUDHIANA COMMODITIES EXCHANGE. THE R EPLY OF THE ASSESSEE TO QUERY NO.13 I.E. ARE YOU REGISTERE D WITH LUDHIANA COMMODITY EXCHANGE WAS THAT ONLY M/S SHU BH KRISHNA OF WHICH HUF IS THE PROPRIETOR AND I AM KAR TA OF HUF IS REGISTERED WITH LCE AND OTHER COMPANIES AND FIRM S IN WHICH I AM DIRECTOR OR PROPRIETOR ARE BRANCHES/TRADERS OF M/S SHUBH KRISHNA COMMODITIES. THE QUERY NO.14 WAS WHETHER THE SAID COMPANIES/FIRMS WHO WERE THE TRADERS OF M/S SH UBH KRISHNA WERE PAYING ANY CHARGES TO M/S SHUBH KRISHN A THE REPLY OF THE ASSESSEE IN THIS REGARD WAS THAT HE W OULD LET THE ASSESSING OFFICER KNOW AFTER CHECKING THE SAME. QUERY NO. 16 TO 19 AND THEIR ANSWERS WERE AS UNDER : Q:-16 IS THE TRANSACTION, MADE BY ABOVE STATED COMPANIES THROUGH RECOGNIZED COMMODITIES EXCHANGE OR NOT. ANS: T IS THROUGH EXCHANGE IN ONE OR TWO CASE S IS OTHER CASES IT MAY BE CLIENT TO CLIENT. M/S B.K COMMODITIES AND M /S M.K COMMODITIES ARE REGISTERED WITH LUDHIANA, COMMODITI ES EXCHANGE OTHERS ARE NOT. Q:-17 YOU HAVE STATED THAT IN SOME CONCERNS I R OUTED BUSINESS PRIVATELY NOT THROUGH MCX. IT MEANS YOU RUNNING A PARALLEL COMMODITIES EXCHANGE, PLEASE EXPLAIN THE SAME. ANS: T IS NOT CORRECT THAT WE ARE RUNNING PAR ALLEL RUNNING EXCHANGE HOWEVER CLIENT TO CLIENT DEALING AS PER P REVALENT MARKET RATE ARE PERMISSIBLE AS COMMERCIAL TRANSACTIONS. Q-.-18 YOU ARE REQUESTED TO PROVIDE THE SODA BO OK MAINTAINED BY YOU FOR RUNNING THE BUSINESS. ANS: WHAT EVER IS AVAILABLE RELATING TO THESE TRANSACTIONS WILL BE PROVIDED ON THE NEXT DATE. Q:-19 WHICH TYPE DOCUMENTS YOU TAKE FROM THE CL IENT/CUSTOMER & WHEN YOU DO THE TRANSACTION FOR THEM. ANS: IT IS SODA CONFIRMATION SLIP VOUCHER CO MMODITIES BE PROVIDE TOMORROW. STATEMENT WILL BE CONTINUED ON 15 .12.2009. IN CONTINUATION TO THE ABOVE STATEMENT. 21.12.2009. 22. A BARE PERUSAL OF THE STATEMENT RECORDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS REFLECT THAT T HE CLAIM OF THE ASSESSEE TO HAVE CHANGED. THE ASSESSE E ADMITS THAT ONLY M/S SHUBH KRISHNA WAS REGISTERED W ITH LUDHIANA COMMODITIES EXCHANGE AND REST ALL THE CONCERNS WERE THE BRANCHES OR TRADERS OF M/S SHUBH 7 KRISHNA COMMODITIES. IN RESPECT OF THE CASH DEPOSIT IN THE BANK ACCOUNT OF ONE OF THE CONCERN, THE ASSESSE E STATED THAT IT HAD RECEIVED CASH FROM VARIOUS PARTI ES AND THE SAME WAS AS PER THE BOOKS OF ACCOUNT. THE CASE OF THE ASSESSEE WAS THAT IT WAS RECEIVING CASH FROM IT S CLIENTS. BUT BEFORE THE ASSESSING OFFICER IT WAS NO T THE CASE OF THE ASSESSEE THAT IT WAS ENGAGED IN PROVID ING ACCOMMODATION ENTRIES. IN RESPECT OF THE ENTRIES N OT BEING THROUGH THE EXCHANGE, THE ASSESSEE CLAIMED TH AT CLIENT TO CLIENT TRANSACTIONS WERE PERMISSIBLE AS COMMERCIAL TRANSACTIONS. THE STATEMENT WAS CONTINU ED ON 21.12.2009 AND AS PER QUERY NO.24, THERE WAS A SPECIFIC QUERY RAISED TO EXPLAIN VARIOUS CASH CREDITS/DEPOSITS IN THE BANK ACCOUNTS OF DIFFERENT COMPANIES IN WHICH THE ASSESSEE WAS THE DIRECTOR AN D THE ASSESSEE WAS ALSO ASKED TO GIVE SOURCE OF CASH DEPO SITS IN VARIOUS ACCOUNTS. IN REPLY TO THE SAME, A SHORT RE PLY WAS GIVEN BY THE ASSESSEE THAT IT IS THE SAME AS WHAT I S STATED ON 15.12.2009. AT THE CONCLUSION OF RECORDING OF T HE STATEMENT, THE ASSESSEE STATED THAT HE WOULD FURTHE R EXPLAIN RELATING TO THE CASH, DURING THE COURSE OF ASSESSMENT PROCEEDINGS. HOWEVER, THE ASSESSEE FAIL ED TO PRODUCE THE BOOKS OF ACCOUNT NOR GIVE ANY EXPLANATI ON VIS--VIS THE SOURCE OF CASH DEPOSITS IN THE BANK A CCOUNT. IN THE ABSENCE OF ANY EXPLANATION OR ANY EVIDENCE B EING PRODUCED BY THE ASSESSEE. THE ONUS CAST UPON THE ASSESSEE NOT BEING DISCHARGED, THE SAID CASH CREDIT S ARE TO BE INCLUDED AS INCOME OF THE ASSESSEE IN VIEW OF THE PROVISIONS OF SECTION 68 OF THE ACT. 23. SECTION 68 OF THE ACT READS AS UNDER : 68. WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF A N ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANAT ION OFFERED BY HIM IS NOT, IN THE OPINION OF THE ASSESSING OFFICER, SATIS FACTORY, THE SUM SO CREDITED MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR : PROVIDED THAT WHERE THE ASSESSEE IS A COMPANY (NOT BEING A COMPANY IN WHICH THE PUBLIC ARE SUBSTANTIALLY INTERESTED), AND THE SUM SO CREDITED CONSISTS OF SHARE APPLICATION MONEY, SHARE CAPITAL, SHARE PREMIUM OR ANY SUCH AMOUNT BY WHATEVER NAME CALLED, ANY EXPLAN ATION OFFERED BY SUCH ASSESSEE-COMPANY SHALL BE DEEMED TO BE NOT SAT ISFACTORY, UNLESS ( A ) THE PERSON, BEING A RESIDENT IN WHOSE NAME SUCH C REDIT IS RECORDED IN THE BOOKS OF SUCH COMPANY ALSO OFFERS AN EXPLANATIO N ABOUT THE NATURE AND SOURCE OF SUCH SUM SO CREDITED; AND ( B ) SUCH EXPLANATION IN THE OPINION OF THE ASSESSING OFFICER AFORESAID HAS BEEN FOUND TO BE SATISFACTORY: PROVIDED FURTHER THAT NOTHING CONTAINED IN THE FIRST PROVISO SHALL A PPLY IF THE PERSON, IN WHOSE NAME THE SUM REFERRED TO TH EREIN IS RECORDED, IS A VENTURE CAPITAL FUND OR A VENTURE CAPITAL COMPANY A S REFERRED TO IN CLAUSE ( 23FB ) OF SECTION 10 . 8 24. UNDER THE PROVISIONS OF SECTION 68 OF THE ACT, IT IS PROVIDED THAT WHERE THE ASSESSEE OFFERS NO EXPLANAT ION ABOUT THE NATURE AND SOURCE OF THE CREDITS IN THE B OOKS OF ACCOUNT, ALL THE AMOUNTS SO CREDITED OR WHERE THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT SATISFAC TORY IN RELATION TO THE SAME, THEN SUCH CREDITS MAY BE CHAR GED TO TAX AS INCOME OF THE ASSESSEE FOR THAT PARTICULAR P REVIOUS YEAR. ADMITTEDLY, IN THE CASE OF THE ASSESSEE, VAR IOUS AMOUNTS IN CASH ARE DEPOSITED IN THE BANK ACCOUNTS OF THE ASSESSEE AND THE ONUS WAS UPON THE ASSESSEE TO EXPLAIN NATURE AND ALSO THE SOURCE OF THE SAID CASH DEPOSITS. THE ASSERTION OF THE ASSESSEE IN THIS RE GARD WAS THAT IT WAS THE AMOUNT RECEIVED FROM CLIENTS. HOWEVER, THE ASSESSEE FAILED TO GIVE THE LIST OF SU CH PERSONS WHO HAD ADVANCED THE SAID CASH TO THE ASSES SEE. THE ASSESSEE EVEN FAILED TO BRING ON RECORD ANY EVI DENCE TO PROVE ITS STAND THAT IT WAS THE AMOUNT RECEIVED FROM SUCH PERSONS WHO WERE HIS CLIENTS. THE ASSESSEE FA ILED TO FILE ANY CONFIRMATION IN RESPECT OF THE SAID CAS H CREDITS NOR ANY OF THE PERSONS WERE PRODUCED FOR EXAMINATION BEFORE THE ASSESSING OFFICER, THOUGH SP ECIFIC DIRECTION IN THIS REGARD WAS GIVEN BY THE ASSESSING OFFICER WITHIN THE COURSE OF RECORDING OF STATEMENT OF THE ASSESSEE, DURING ASSESSMENT PROCEEDINGS. THE ASSES SEE EVEN FAILED TO PRODUCE THE BOOKS OF ACCOUNT. IN TH E ABSENCE OF THE ASSESSEE HAVING DISCHARGED HIS ONUS OF PROVING THE IDENTITY, CREDIT WORTHINESS AND GENUINE NESS OF THE CASH TRANSACTION OF THE CASH CREDITS IN THE BANK ACCOUNT, WE FIND NO MERIT IN THE PLEA OF THE ASSESS EE IN THIS REGARD AND DISMISS THE SAME. 25. ANOTHER PLEA RAISED BY THE LD. AR BEFORE US WAS THAT AS THE ASSESSEE WAS ENGAGED IN GIVING ACCOMMODATION ENTRIES, ONLY COMMISSION SHOULD BE INCLUDED AS INCOME OF THE ASSESSEE. ADMITTEDLY, WH ILE RECORDING THE STATEMENT DURING THE COURSE OF SURVEY , THE ASSESSEE HAD STATED THAT IT WAS ENGAGED IN THE BUSI NESS OF GIVING ACCOMMODATION ENTRIES. HOWEVER, DURING TH E COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE DID NOT RAISE ANY SUBMISSIONS IN THIS REGARD AND ON THE OTH ER HAND, THE ASSESSEE TIME AND AGAIN, IN THE COURSE OF STATEMENT RECORDED DURING THE ASSESSMENT PROCEEDING S, POINTED OUT THAT THE CASH DEPOSITED IN THE BANK ACC OUNT WAS AS PER ENTRIES IN THE BOOKS OF ACCOUNT AND THE SAME WOULD BE EXPLAINED FROM THE BOOKS OF ACCOUNT. THE PLEA OF ACCOMMODATION ENTRIES WAS NOT PUT TO THE ASSESSI NG OFFICER. HOWEVER, BEFORE CIT(APPEALS), A PLEA WAS RAISED THAT ONLY COMMISSION IS TO BE ADDED IN THE H ANDS OF THE ASSESSEE IN VIEW OF VARIOUS JUDICIAL PRECEDE NTS. A PERUSAL OF THE ORDER OF THE CIT(APPEALS) DOES NOT R EFLECT ANY FINDINGS ON THIS ISSUE AND ISSUES ADDRESSED BY THE CIT(APPEALS) WERE WHETHER PROVISIONS OF SECTION 68 ARE APPLICABLE AND IN THE ALTERNATIVE, WHETHER PEAK-CRE DIT IS TO BE APPLIED IN THE HANDS OF THE ASSESSEE. THE AS SESSEE IN THIS GROUND OF APPEAL RAISED BEFORE THE TRIBUNAL HAS NOT RAISED ANY SUCH ISSUE OF THE COMMISSION INCOME BEING 9 INCLUDED IN HIS HANDS. ONLY TWO ISSUES HAVE BEEN R AISED; I.E. INVOKING OF PROVISIONS OF SECTION 68 OF THE AC T AND CONFIRMATION OF ADDITION OF RS.1055,260/-. THE ISS UE OF WHETHER THE ASSESSEE IS ENGAGED IN GIVING ACCOMMODATION ENTRIES OR NOT IS A PURELY FACTUAL IS SUE WHICH HAS NOT BEEN RAISED BEFORE THE AUTHORITIES BE LOW I.E. DURING THE COURSE OF ASSESSMENT PROCEEDINGS OR EVEN BEFORE THE CIT(APPEALS), THE SAID ISSUE HAS NOT BEE N ADJUDICATED. THE PLEA OF THE ASSESSEE OF ADMISSION OF SUCH NEW FACTUAL ISSUE IS NOT ADMISSIBLE AT THIS ST AGE OF ADJUDICATING OF THE APPEAL IN THE CAPTIONED YEARS. WE FIND NO MERIT IN THE SAID PLEA OF THE ASSESSEE AND THE SAME IS REJECTED. 26. WE ARE IN CONFORMITY WITH THE ORDER OF CIT(APPEALS) IN HOLDING THAT THE PROVISIONS OF SECT ION 68 OF THE ACT IN THE PRESENT SET OF FACTS AND CIRCUMST ANCES OF THE CASE ARE APPLICABLE AND WE UPHOLD THE ORDER OF CIT(APPEALS) IN THIS REGARD. 11. AN APPEAL WAS FILED AGAINST THE SAID ORDER OF T HE TRIBUNAL BEFORE HON'BLE PUNJAB & HARYANA HIGH COURT. THE HON'BLE H IGH COURT IN ITA NO. 122 OF 2014 (O&M) VIDE JUDGEMENT DATED 12.0 5.2014 HELD AS UNDER : 9. A PERUSAL OF THE FINDINGS RECORDED BY THE AUTHOR ITIES BELOW CLEARLY SPELLS OUT THAT ADMITTEDLY, VARIOUS A MOUNTS IN CASH WERE DEPOSITED IN THE BANK ACCOUNT OF THE ASSE SSEE AND THE ONUS WAS UPON THE ASSESSEE TO EXPLAIN THE NATUR E AND SOURCE OF THE SAID CASH DEPOSITS. THE ASSERTION OF THE ASSESSEE IN THIS REGARD WAS THAT IT WAS THE AMOUNT RECEIVED FROM HIS CLIENTS. HOWEVER THE ASSESSEE FAILED TO G IVE LIST OF SUCH PERSONS ALONGWITH CONFIRMATION IN RESPECT OF THE SAID CASH CREDITS NOR ANY OF THE PERSONS WERE PRODUCED F OR EXAMINATION, WHO HAD ADVANCED THE SAID CASH TO HIM, BEFORE THE ASSESSING OFFICER. THE ASSESSEE ALSO FAILED TO BRING ON RECORD ANY EVIDENCE TO PROVE THAT IT WAS THE AMOUNT RECEIVED FROM SUCH PERSONS WHO WERE HIS CLIENTS. TH E ASSESSING OFFICER HAD REPEATEDLY PROVIDED OPPORTUNI TIES TO THE ASSESSEE TO PRODUCE THE PERSONS BUT THEY WERE N OT PRODUCED. THE TRIBUNAL HAD ALSO NOTICED THAT INSPIT E OF OPPORTUNITY HAVING BEEN PROVIDED TO THE ASSESSEE, I N SUCH CIRCUMSTANCES, THERE WAS NO JUSTIFICATION TO ALLOW THE APPELLANT FURTHER OPPORTUNITY TO PRODUCE THE PERSON S. THE PARAMETERS FOR LEADING ADDITIONAL EVIDENCE WERE NOT FULFILLED, THEREFORE, CM NO.5693 CII OF 2014 CANNOT BE ACCEPTED AND IS ACCORDINGLY REJECTED. FURTHER, THE TRIBUNAL HAD RIGHTLY HELD THAT THERE WERE CASH DEPOSITS IN T HE BANK ACCOUNT AND THEREAFTER CHEQUES WERE ISSUED TO DIFFE RENT PARTIES AND IN SUCH CIRCUMSTANCES, THE THEORY OF PE AK CREDIT COULD NOT BE ACCEPTED. MOREOVER, THE APPELLANT HAD NOT BEEN ABLE TO SHOW THAT THERE EXISTED ANY NEXUS WHEREBY T HE 10 AMOUNT DEPOSITED IN CASH HAD BEEN WITHDRAWN IN CASH AND THEREAFTER REDEPOSITED TO TAKE BENEFIT UNDER PEAK C REDIT THEORY. 12. THE ISSUE RAISED IN THE PRESENT APPEAL IS IDENT ICAL TO THE ISSUE BEFORE THE HON'BLE PUNJAB & HARYANA HIGH COURT IN T HE CASE OF SHRI SUDHIR KUMAR SHARMA, HUF VS CIT, LUDHIANA (SUPRA) A ND FOLLOWING THE SAME PARITY OF REASONING, WE UPHOLD THE ADDITIO N OF RS. 1,12,38,500/- UNDER SECTION 68 OF THE INCOME TAX AC T. WE FURTHER FIND THAT THE HON'BLE PUNJAB & HARYANA HIGH COURT I N ASSESSEE'S OWN CASE IN INCOME TAX APPEAL NO. 83 OF 2014, VIDE JUDG EMENT DATED 12.05.2014 HAS UPHELD THE ORDER OF TRIBUNAL. WE, T HUS DISMISS THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE. 13. THE FACTS, CIRCUMSTANCES AND ISSUE IN ITA 15/CH D/2013 ARE IDENTICAL TO THE FACTS, CIRCUMSTANCES AND ISSUE IN ITA 14/CHD/2013 AND OUR DECISION IN ITA 14/CHD/2013 SHALL APPLY MUT ATIS-MUTANDIS TO ITA NO. 15/CHD/2013 ALSO. 14. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE S ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH AUGUST,2014. SD/- SD/- ( T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED: 8 TH AUGUST,2014 POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR ITAT/CHD