I.T.O Wd - 46(2),kolkata, Kolkata V. Mojammal Hossain Mollah, Howrah

ITA 1695/KOL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4564 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 02-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 31-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NICHALAL MURMU
• Assessee Lawyers: SK GOLAM KUDDUS; K JASMINE S HEIKH
• Keywords: Unexplained cash credit; Unexplained investment; Peak credit
• Section: 143(3); 133(6)

Judgement Text

ITA NO.1695 & C.O.NO.105/KOL/2013 ASSESSMENT YEAR 2009-10 MOJAMMAL HOSSAIN MOLLAH 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C, KOLKATA (BEFORE SHRI N.V.VASUDEVAN, J.M. & DR.A.L.SAINI, A. M.) ITA NO. 1695/KOL/2013 : ASSTT. YEAR : 20 09-2010 I.T.O., WARD-46(2), 3, GOVERNMENT PLACE (WEST), 2 ND FLOOR, KOLKATA 700 001 VS MOJAMMAL HOSSAIN MOLLAH, CHARA PANCHLA, P.O. PANCHLA MOLLAPARA, HOWRAH 711 322 PAN: AFGPM 6780A (APPELLANT) (RESPONDENT) C.O. NO.105/KOL/2013 : ASSTT. YEAR : 2009-10 (ARISING OUT OF ITA NO.1695/KOL/2013 ) MOJAMMAL HOSSAIN MOLLAH, CHARA PANCHLA, P.O. PANCHLA MOLLAPARA, HOWRAH 711 322 VS I.T.O., WARD-46(2), 3, GOVERNMENT PLACE (WEST), 2 ND FLOOR, KOLKATA 700 001 (APPELLANT) (RESPONDENT) DEPARTMENT BY: SHRI NICHALAL MURMU, ADDL. CIT, SR.DR ASSESSEE BY : SK. GOLAM KUDDUS & K. JASMINE S HEIKH, ADVOCATE DATE OF HEARING : 02.08.2016 DATE OF PRONOUNCEMENT : 19-08-2016 ORDER PER DR. A.L.SAINI, A.M .: THE CAPTIONED APPEAL FILED BY THE REVENUE AND THE C ROSS OBJECTION FILED BY THE ASSESSEE PERTAINING TO ASSESSMENT YEAR 2006-07, ARE DIRECTED AGAINST THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME-TAX (APPEA LS)-XXX, KOLKATA IN APPEAL NO.376/CIT(A)-XXX/WD-46(2)/2011-12 DATED 30.01.2013 , WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER S ECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT, `THE ACT`) DATED 30 TH DECEMBER, 2011. ITA NO.1695 & C.O.NO.105/KOL/2013 ASSESSMENT YEAR 2009-10 MOJAMMAL HOSSAIN MOLLAH 2 2. SINCE THE APPEAL FILED BY THE REVENUE AND THE CR OSS OBJECTION FILED BY THE ASSESSEE RELATE TO THE SAME ASSESSEE AND SAME ASSES SMENT YEAR AND INVOLVE COMMON ISSUES, THEREFORE, THESE HAVE BEEN CLUBBED AND HEAR D TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE A ND BREVITY. 3. THE FACTS OF THE CASE ARE STATED IN BRIEF. THE ASSESSEE IS CARRYING ON THE BUSINESS OF COURIER SERVICE UNDER THE TRADE NAME OF MANISH COURIER AND SIDE BY SIDE, THE ASSESSEE IS ALSO ENGAGED IN HIS TRADITIONAL AND FAMILY BUSINESS OF ZARI WORK UNDER THE NAME OF MANISH TRADING. THE RETURN OF INCOME WA S FILED BY THE ASSESSEE ON 21.01.2010 DISCLOSING THE TOTAL INCOME OF RS.2,15,4 99/-. THE AO COMPLETED THE ASSESSMENT UNDER SECTION 143(3) BY MAKING THE DISAL LOWANCE ON ACCOUNT OF UNEXPLAINED CASH CREDIT AT RS.1,96,38,780/-. AGGRIE VED FROM THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE FILED AN APPEAL BEF ORE THE COMMISSIONER OF INCOME TAX (APPEALS)-XXX, KOLKATA, WHO HAS PARTLY DELETED THE ADDITION MADE BY ASSESSING OFFICER. NOW THE REVENUE IS IN APPEAL BEFORE US AGA INST THE PARTLY AMOUNT DELETED/PARTLY RELIEF GIVEN BY THE CIT(A). 4. ALTHOUGH IN THIS APPEAL, THE REVENUE HAS RAISED FOUR GROUNDS OF APPEAL BUT AT THE TIME OF HEARING, THE GRIEVANCE OF THE REVENUE H AS BEEN CONFINED TO GROUND NO.2. GROUND NO.2 IS SOLITARY GRIEVANCE OF THE REVENUE. O THER GROUNDS OF APPEALS REITERATE THE GRIEVANCE WHICH WE HAVE NOTED IN GROUND NO.2 TH EREFORE, OTHER GROUNDS OF APPEAL HAVE NOT BEEN PRESSED. GROUND NO.2 TAKEN BY THE REVENUE READS AS UNDER: 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW THE LD. CIT(A)-XXX/KOL ERRED IN DELETING THE ADDITI ON OF THE CASH DEPOSIT OF RS.1,83,30,472/- OUT OF CASH DEPOSITS RS .1,96,38,780/- IN THE UNDISCLOSED SAVINGS BANK ACCOUNTS OF THE ASSESSEE W HEN THAT POSITIVE MATERIAL IN RECORD. ITA NO.1695 & C.O.NO.105/KOL/2013 ASSESSMENT YEAR 2009-10 MOJAMMAL HOSSAIN MOLLAH 3 5. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION WHIC H RELATES TO GROUND NO.2 TAKEN BY THE REVENUE, THEREFORE, WE ADJUDICATE BOTH TOGETHER. CROSS OBJECTIONS TAKEN BY THE ASSESSEE READS AS UNDER: 1. FOR THAT WITHOUT PREJUDICE TO WHAT IS SUBMITTED HEREIN BEFORE IN RESPECT OF DISALLOWED AMOUNTING TO RS.1,96,38,780/- MADE BY THE LD. ASSESSING OFFICER IN THE IMPUGNED ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2009-10, THERE IS NO POSITIVE MATERIAL IN THE RECORD THAT THE AMOUNT OF CASH DEPOSITED OF RS. 1,96,38,780/- AS CO NCEAL INCOME AND THEREFORE ADDED TO THE TOTAL INCOME AS UNEXPLAINED INVESTMENT. 2. FOR THAT THE LD. CIT(A)-XXX/KOL HAS CONSIDERED A PPEAL AND GRANTED RELIEF OF RS.1,83,30,472/-WHERE THE ADDITIO N MADE BY THE AO WAS RS. 1,96,38,780/- IN THE SAVING BANK A/C OF THE ASSESSEE. 3. I STRONGLY RELIED ON THE ORDER OF THE LD. CIT (A )-XXX/KOL.. 6. FACTS OF THIS ISSUE ARE STATED IN BRIEF. THE ASS ESSEE HAS DEPOSITED RS.1,96,38,780/- IN CASH IN HIS SAVINGS BANK ACCOUNT MAINTAINED AT S TANDARD CHARTERED BANK, CHOWRINGHEE ROAD BRANCH, KOLKATA. DURING THE ASSESS MENT PROCEEDINGS, ON BEING ASKED BY THE AO ABOUT THE MATTER THEN THE A.R. FOR THE ASSESSEE APPEARED BEFORE AO ON 20.10.2011 WITH A WRITTEN SUBMISSION. THE A.R. E XPLAINED THE ASSESSING OFFICER THAT THE ASSESSEE IS CARRYING OUT THE BUSINESS OF C OURIER SERVICES UNDER THE NAME OF MANISHA COURIER IN MUMBAI AND PANCHLA VILLAGE IN WE ST BENGAL. THE NATURE OF THE COURIER SERVICE IS TO COLLECT MONEY AT BRANCH OFFIC E OF THE ASSESSEE IN MUMBAI FROM SEVERAL PERSONS WHO ARE IN MUMBAI FOR THEIR OCCUPAT ION AND WANT TO SEND MONEY TO THEIR FAMILY IN WEST BENGAL WITHOUT ANY BANKING ACC ESS. THE ASSESSEE COLLECTS A SERVICE CHARGE FOR THIS FACILITY, UNDER PROPER RECE IPT TO THE REMITTER. THE BRANCH OFFICE OF THE ASSESSEE DEPOSITS THE DAILY COLLECTIO N FROM DIFFERENT PERSONS IN THE ACCOUNT OF THE ASSESSEE WITH STANDARD CHARTERED BAN K IN ACCOUNT NO.322-0-535778-8 AND 225-0-565611-2, BOTH THE ACCOUNTS ARE BEING PRO DUCED. THE ASSESSEE IN TURN WITHDRAWS THE MONEY FROM STANDARD CHARTERED BANK, P ARK STREET BRANCH AND THEN ITA NO.1695 & C.O.NO.105/KOL/2013 ASSESSMENT YEAR 2009-10 MOJAMMAL HOSSAIN MOLLAH 4 SENDS THE MONEY TO THE RELATIVE OF THE REMITTER UND ER COUNTER SIGNATURE OF THE RECIPIENT. THIS WAS THE MODUS OPERANDI OF ASSESSEES COURIER SERVICE. ON 06.09.2011, A NOTICE WAS ISSUED BY AO UNDER SECT ION 133(6) OF THE I.T. ACT, 1961 TO STANDARD CHARTERED BANK STATING FULL F ACTS WITH THE REQUEST TO SEND THE COPIES OF ALL BANK STATEMENTS OF THE ASSESSEE EITHE R IN HIS PERSONAL NAME OR IN THE NAME OF THE BUSINESS OR JOINTLY. ON 20/09/2011, THE STANDARD CHARTERED BANK DELIVERED TWO COPIES OF BANK STATEMENT NAMELY, (1) MOJAMMAL MOLLA HUSSAIN , A/C. NO. 22505656112 AND (2) MR. MOJAMMAL HOSSAIN MOLLAH , A/C. NO.32205357788. BUT ON EXAMINATION OF THESE TWO ACCOUNTS, IT IS NOT ICED THAT THESE STATEMENTS ARE ALL RELATED TO CURRENT ACCOUNTS MAINTAINED BY THE ASSES SEE. THUS, THERE HAPPENS TO BE ABSOLUTE DISORDER AND CONFUSION IN RESPECT OF THE A IR INFORMATION WHICH RELATES TO SAVINGS BANK ACCOUNT ONLY AND THE BANK STATEMENTS F ORWARDED BY STANDARD CHARTERED BANK RELATES TO CURRENT ACCOUNTS. IN THE FACE OF SU CH A SITUATION ANOTHER LETTER DATED 22.12.2011 WAS ISSUED TO THE SAID BANK SEEKING CLAR IFICATION IN THIS REGARD AND TO SEND THE COPY OF BANK STATEMENTS (ESPECIALLY SAVING S BANK ACCOUNT), IF ANY, MAINTAINED BY THE ASSESSEE. SURPRISINGLY, ON 28.12. 2011, THE STANDARD CHARTERED BANK DISPATCHED THE STATEMENT OF ANOTHER BANK ACCOU NT (SAVINGS ACCOUNT) BEARING NO.32410322761 OF MOJAMMAL HOSSAIN MOLLA WITH A FOR WARDING LETTER STATING THE ACCOUNT NO.32410322761 PREVIOUSLY AS WE DO NOT HAVE THE RELEVANT INFORMATION WITH US. ON RECEIVING CLARIFICATION FROM YOU VIDE LETTER DATED 22.12.2011, WE CONFIRM THE ACCOUNT NUMBER. MEANWHILE, THE ASSESSEE BY AN AFFID AVIT SWORN BY OATH DATED 21.12.2011, FILED IN THIS OFFICE ON 23.12.2011 AFFI RMED THAT I HAVE MAINTAINED BANKING ACCOUNTS NAMELY A/C. NO.322-0-533778-8 AND 225-0-565611-2 WITH STANDARD CHARTERED BANK AT THEIR PARK STREET BRANCH IN MY SOLE NAME OR IN THE NAME OF MY PROPRIETARY CONCERN. THE LD. AO MADE THE ADDITION OF RS.1,96,38,780/- BY OBSERVING THE FOLLOWING: ITA NO.1695 & C.O.NO.105/KOL/2013 ASSESSMENT YEAR 2009-10 MOJAMMAL HOSSAIN MOLLAH 5 HERE THE ASSESSEE, OR HIS A/R OFFERS AN EXPLANATIO N IN RELATION TO CASH DEPOSIT IN STANDARD CHARTERED BANK WHICH IS FOUND T O BE ABSOLUTELY FALSE. ON BEING REQUESTED REPEATEDLY, THE ASSESSEE DID NOT DIVULGE THE EXISTENCE OF A SAVINGS ACCOUNT IN STANDARD CHARTERE D BANK, WHEREIN THE SAID CASH DEPOSITS WERE MADE, BUT TRIED TO MISL EAD THE DEPARTMENT EMPHASIZING BY PRODUCING ONLY THE STATEMENT OF CURR ENT ACCOUNTS. THIS ATTEMPT ON THE PART OF THE ASSESSEE TO KEEP THE SAV INGS BANK ACCOUNT SECRET IS A DELIBERATE ONE. THERE IS POSITIVE MATER IAL IN THE RECORD THAT THE AMOUNT OF CASH DEPOSIT OF RS.1,96,38,780/- REPR ESENTS HIS CONCEALED INCOME AND THEREFORE ADDED TO THE TOTAL INCOME OF T HE ASSESSEE AS UNEXPLAINED CASH CREDIT. 7. AGGRIEVED FROM THE ORDER OF THE LD. AO, THE ASSE SSEE FILED AN APPEAL BEFORE THE LD. CIT(A)-XXX, KOLKATA, WHO HAS GIVEN PART REL IEF TO THE ASSESSEE OBSERVING THE FOLLOWING: 4.1 COMING TO THE ISSUE OF TAXATION OF DEPOSITS I N THIS ACCOUNT DURING THE FINANCIAL YEAR 2008-09, IT IS SEEN THAT THERE WERE REGULAR CASH DEPOSITS AND WITHDRAWALS FROM THIS ACCOUNT DURING THE FINANCIAL YEAR. IN SUCH A SITUATION CONSIDERING THE DECISIONS OF THE HON'BLE TRIBUNAL A ND HIGH COURT REGARDING TAXATION OF UNDISCLOSED CASH CREDIT, IS TO BE CONSI DERED FOR ADDITION U/S.68 AND NOT THE ENTIRE DEPOSITS. THIS VIEW HAS BEEN HELD BY THE JURISDICTIONAL BENCH OF ITAT IN ITO WARD-50(3), KOLKATA V. MADHU KEDIA AS A LSO IN THE CASE OF GANGAPROSAD VYAS V. DEPARTMENT OF INCOME TAX IN ITA NO.2069/KOL/2010 DATED 23.03.12. IT IS THEREFORE HELD THAT THE APPEL LANT'S CASE IS COVERED BY THE DECISIONS IN THE ABOVE CITED CASES AND THE PEAK CRE DIT OF THE DEPOSITS I.E. THE HIGHEST DEPOSIT IN A PARTICULAR DAY IS TO BE CONSID ERED FOR ADDITION. THE TOTAL DEPOSITS IN THIS ACCOUNT ARE SUMMARIZED AS UNDER- 'BANK STATEMENT FOR THE PERIOD OF 10.04.2008 TO 31. 03.2009 OPENING BALANCE AS ON 01.04.2008 RS. 22,366-00 TOTAL DEPOSIT RS. 1,98,77,470-69 RS. 1, 98, 99,836-01 LESS: WITHDRAWAL (-) RS. 1, 98, 98,661-67 CLOSING BALANCE AS ON 31.03.2009 (-) RS.1,175-24' THEREFORE IN THIS BANK ACCOUNT I.E. STANDARD CHARTE RED S.B A/C. NO.32410322761, THE OPENING BALANCE AS ON 01.04.200 8 IN THIS ACCOUNT ITA NO.1695 & C.O.NO.105/KOL/2013 ASSESSMENT YEAR 2009-10 MOJAMMAL HOSSAIN MOLLAH 6 WAS RS.22,366/- AND THE CLOSING BALANCE RS.L,175/-. THE PEAK DEPOSIT WAS OF RS.3,36,800/- (29.09.2008), THEREFORE THE AD DITION MADE BY THE A.O. IN RESPECT OF CASH DEPOSITS IN THE RELEVANT BA NK ACCOUNT IS RESTRICTED TO THE PEAK AMOUNT OF RS.3,14,434/- (3,3 6,800 - 22,366). 4.2 IT IS FURTHER SEEN THAT THE COMMISSION EARNED ON THIS BUSINESS IN RESPECT OF THE TRANSACTION OF THIS BANK ACCOUNT HAD ALSO NOT BEEN OFFERED TO TAX BY THE APPELLANT SINCE THIS ACCOUNT WAS NOT DISCLOSED IN THE INCOME TAX RETURN. IT IS SEEN THAT THE APPELIAN T HAD SHOWN COMMISSION OF RS.7,48,128/- IN THE PROFIT & LOSS AC COUNT SHOWN SERVICE CHARGES RECEIVED AT RS.7,48,128/- AGAINST T HE TURNOVER IN THE TWO DISCLOSED CURRENT ACCOUNTS OF RS.27,77,508 + RS .1,23,78,118/- I.E. RS.1,51,55,688/- I.E. 5%. ACCORDINGLY, APPLYING THE RATE OF 5%, ON THE TURNOVER I.E. DEPOSITS IN THIS UNDISCLOSED SAVINGS BANK ACCOUNT OF RS. 1,98,77,470/-, THE NET PROFIT ON THE SAME COMES TO RS.9,93,874/- WHICH IS CONSIDERED AS PROFIT EARNED BY THE APPELLANT ON THE DEPOSITS IN THIS UNDISCLOSED BANK ACCOUNT. THEREFORE IN VIEW OF THE ABOVE DISCUSSION, THE ADDITION IS CONFIRMED TO THE ABOVE EXTENT I.E. OF RS.3,14,434/- + RS.9,93,874/- ONLY. (RELIEF RS.1,83,30,472/-). THE REVENUE DID NOT AGREE WITH THE ORDER OF LD CIT (A) AND CONTESTED THAT THE RELIEF GIVEN TO THE ASSESSEE IS NOT CORRECT. T HEREFORE, NOT BEING SATISFIED FROM THE ORDER OF THE LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 7.1. THE LD. DR FOR THE REVENUE SUBMITTED THAT THE ADDITION DELETED BY THE LD. CIT(A) IS WITHOUT ANY BASE AND COGENT DOCUMENTS. TH E LD. DR FURTHER SUBMITTED THAT THE ASSESSEE DID NOT DISCLOSE THE SAID ACCOUNT AT ALL, BUT LATER ON HE CONFRONTED WHEN THE AO SUMMONED THE BANK AUTHORITY UNDER SECTI ON 133(6). THEN BANK HAS DISCLOSED A NEW SAVINGS BANK ACCOUNT WHICH WAS NEVE R ACCOUNTED BY THE ASSESSEE AND NEVER DISCLOSED BY THE ASSESSEE. LD. DR FURTHER EXPLAINED THAT THE ASSESSEE SUBMITTED BEFORE THE LD. CIT(A) THAT HE HAS RECEIVE D THE COMMISSION ON ACCOUNT OF COURIER SERVICES AND THEREFORE, HE HAS DISCLOSED TH E ACCOUNT. THE COMMISSION RECEIVED BY THE ASSESSEE AGAINST THE COURIER SERVIC ES HAD BEEN DULY GETTING REFLECTED ITA NO.1695 & C.O.NO.105/KOL/2013 ASSESSMENT YEAR 2009-10 MOJAMMAL HOSSAIN MOLLAH 7 IN THE PROFIT & LOSS A/C. AND THE SAID COMMISSION R ELATES TO ONLY THE SAVINGS BANK ACCOUNT UNDER DISPUTE, IS KIND OF AN AFTER-THOUGHT PROCESS AND SHOULD NOT BE ACCEPTABLE. THE LD. DR HAS STRONGLY DEFENDED THE O RDER MADE BY THE LD. AO AND STATED THAT THE SAID BANK ACCOUNT WHICH WAS NEVER D ISCLOSED BY THE ASSESSEE, MUST BE TREATED AS AN UNDISCLOSED INCOME. THE LD. DR FUR THER STATED THAT THE ENTIRE DEPOSITS IN THE SAID UNDISCLOSED ACCOUNT SHOULD NOT BE ASSESSED BY APPLYING THE PEAK CREDIT DEPOSITED BECAUSE ALL THE MONEYS CREDITED TH EREIN BELONGED TO THE ASSESSEE. 7.2 THE LD. AR FOR THE ASSESSEE HAS STATED THAT TH E ASSESSEE IS IN CROSS OBJECTION ON THE SAME ISSUE. LD AR HAS SUBMITTED THAT THE ASS ESSEES TURNOVER IN RESPECT OF UNDISCLOSED BANK ACCOUNT HAS BEEN INCLUDED IN RESPE CT OF COMMISSION EARNED AND DISCLOSED IN HIS PROFIT & LOSS A/C. HE ALSO SUBMITT ED THAT EVEN IF SUCH DEPOSITS ARE TO BE CONSIDERED AS UNEXPLAINED IN THE SAID ACCOUNT, T HEN IT IS THE PEAK CREDIT WHICH SHOULD BE TAKEN AS ASSESSEE`S INCOME, AS THE WITHDR AWALS WERE ALSO BEING MADE AGAINST THE DEPOSITS AND BENEFITS OF WHICH SHOULD B E ALLOWED TO THE ASSESSEE. THE LD. CIT(A), HAS WORKED OUT THE PEAK CREDIT OF THE CASH DEPOSITS WHICH IS RESTRICTED TO THE PEAK AMOUNT OF RS.3,14,434/-, AS INCOME, IN ADDITIO N TO THE 5% PROFITS COMPUTED BY THE LD. CIT(A) ON DEPOSITS, THEREFORE, THE LD AR ST RONGLY RELIED ON THE ORDER OF THE LD.CIT(A). THE LD. A.R. BEFORE US, ALSO SUBMITTED A COPY OF TH E JUDGMENT OF HONBLE ITAT, KOLKATA A BENCH IN THE CASE OF ITO-VS- MADH U KEDIA IN ITA NO.1767/KOL/2011 DATED 26.04.2012, WHEREIN THE SAME ISSUE HAS BEEN DISCUSSED,VIDE PARA 4 OF THE ORDER AS FOLLOWS: 4. THE CIT(A) AFTER TAKING THE DETAILS OF DEPOSIT S AND WITHDRAWALS RESTRICTED THE PEAK ADDITION AT RS.1,95,597/-. REVE NUE BEFORE US COULD NOT ADDUCE ANYTHING THAT THE PEAK CREDIT ASSESSED B Y THE CIT(A) IS WRONG. WE FIND THAT THE ASSESSEE HAS FILED PEAK CRE DIT COMPUTATION ON THE BASIS OF TRANSACTION RECORDED IN THE BANK ACCOU NT BEFORE CIT(A) BUT ITA NO.1695 & C.O.NO.105/KOL/2013 ASSESSMENT YEAR 2009-10 MOJAMMAL HOSSAIN MOLLAH 8 REVENUE COULD NOT POINT OUT ANY DEFECT IN TRANSACTI ON RECORDED IN THE BANK ACCOUNT BEFORE CIT(A) BUT REVENUE COULD NOT PO INT OUT ANY DEFECT IN THE SAME. IN VIEW OF THE ABOVE FACTS AND CIRCUMS TANCES, WE ARE OF THE VIEW THAT THE CIT(A) HAS SIMPLY ACCEPTED THE PEAK C REDIT AFTER AOS REMAND REPORT. WE FIND NO INFIRMITY IN THE ORDER OF CIT(A) IN SUSTAINING THE PART ADDITION ON THE BASIS OF THE THEORY OF ITA NO.1767/K/2011 SMT. MADHU KEDIA A.Y. 07-08. 7.3. WE HAVE HEARD BOTH THE PARTIES, GONE THROUGH T HE FACTS AND CIRCUMSTANCES OF THE CASE AND PERUSED THE MATERIALS AVAILABLE ON REC ORD. WE NOTICED THAT THERE IS MERIT IN THE SUBMISSIONS OF THE ASSESSEE, AS THE PROPOSIT IONS CANVASSED BY THE LD. AR FOR THE ASSESSEE ARE SUPPORTED BY THE FACTS NARRATED AB OVE AND THE CASE LAWS CITED ABOVE. THE LD. CIT(A), AFTER TAKING INTO CONSIDERATION THE DEPOSITS AND WITHDRAWALS RESTRICTED THE PEAK ADDITION AT RS.3,14,434/-. THE LD. DR BEFORE US COULD NOT ADDUCE ANYTHING WHETHER WITH RESPECT TO THE PEAK CREDIT AS SESSED BY THE LD. CIT(A) IS WRONG. WE FIND THAT THE ASSESSEE HAS OFFERED PEAK C REDIT COMPOSITION ON THE BASIS OF TRANSACTION RECORDED IN THE BANK ACCOUNT AND THAT T HE CIT(A) AND THE REVENUE COULD NOT POINT OUT ANY DEFECT IN THE SAME. IN VIEW OF TH E ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THE CIT(A) HAS A CCEPTED THE PEAK CREDIT AFTER AOS REMAND REPORT AND WITH CAREFUL CALCULATION. WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) IN STATING WITH THE PART ADDITION ON THE BAS IS OF THE PEAK CREDIT AND PART ADDITION BASED ON THE NET PROFIT OF THE ASSESSEE. A CCORDINGLY, WE CONFIRM THE ORDER OF THE LD. CIT(A). 7.4. IN THE RESULT, THE CROSS OBJECTION FILED BY TH E ASSESSEE IS ALLOWED AND THAT OF THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19-08-2016 SD/- SD/- (N.V.VASUDEVAN) (DR. A.L.SAIN I) JUDICIALMEMBER ACCOUNTANT MEMBER DATED: 19/8/2016 TALUKDAR ITA NO.1695 & C.O.NO.105/KOL/2013 ASSESSMENT YEAR 2009-10 MOJAMMAL HOSSAIN MOLLAH 9 COPY OF THE ORDER FORWARDED TO: 1. REVENUE 2 ASSESSEE 3. THE CIT-I, 4. THE CIT (A)-I, 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES