Dilraj Sharma, Ludhiana V. ITO, Ludhiana

ITA 173/CHANDI/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80858 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 06-08-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 19-02-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Assessee Lawyers: ARUN GUPTA
• Keywords: Unexplained investment; Peak credit; Additional evidence; Accommodation entries
• Section: 143(3); 133A; 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. 173/CHD/2014 ASSESSMENT YEAR : 2007-08 SHRI DILRAJ SHARMA, VS THE INCOME TAX OFFI CER, 530-C, URBAN ESTATE, RANGE 1(1), JAMALPUR, LUDHIANA. PHASE-1, LUDHIANA. PAN : AMGPS4052C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ARUN GUPTA RESPONDENT BY : SHRI J.S.NAGAR DATE OF HEARING : 06.08.2014 DATE OF PRONOUNCEMENT : 10.09.2014 O R D E R PER SUSHMA CHOWLA, JM THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-II, LUD HIANA DATED 16.12.2013 RELATING TO ASSESSMENT YEAR 2007-08 AGAI NST THE ORDER PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT'). 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APPEAL : 1 . THAT THE LEARNED CIT (A) HAS ERRED IN EYES OF LAW AND FACTS OF THE CASE BY CONFIRMING THE ADDITION OF RS . 16,78,961 M ADE BY THE ASSESSING OFFICER AS UNEXPLAINED INVESTMENT AGAINST DEPOSITS MADE IN THE SAVING ACCOUNTS . 2. THAT THE ID CIT (A) WRONGLY IGNORED THE SUBMISSIONS OF THE ASSESSEE THAT SHE IS A PETTY BROKER OF FEED INGREDI ENTS WHO RECEIVED CASH FROM POULTRY/DAIRY FARMERS FOR PURCHASE OF THE FEED INGREDIENTS FROM VARIOUS SUPPLIERS. THAT THE CHEQUES ISSUED FRO M THE BANK ACCOUNT TO VARIOUS SUPPLIERS FOR THE MATERIAL SUPPLIED AND BILLED IN NAME OF FARMERS, AGAINST THE CASH DEPO SITED AFTER 2 RECEIVING THE SAME FROM THE FARMERS, HAVE ALSO BEEN WRONGLY IGNORED. 3. THAT THE ID CIT (A) WAS NOT JUSTIFIED IN IGNORING T HE FACT THAT NO PROPER OPPORTUNITY WAS GIVEN TO THE ASSESSEE BY THE ASSESSING OFFICER TO GIVE DETAILS OF THE SUPPLIERS AND FARMERS AS IT WAS NOT POSSIBLE FOR SUCH A SMALL AND PETTY BROKER TO MAINTAIN COMPLETE DETAILS FOR PREVIOUS YEARS AND IT REQUIRED SOME TIME TO COLLECT THE DOCUMENTS REQUIRED BY VISITING THE SUPPLIERS AND FARMERS. 4. THAT ID CIT (A) ERRED IN IGNORING THE FACT THAT , I T IS NOT DISPUTED THAT, AGAINST THE CASH DEPOSITS MADE BY THE ASSESSE E, THE CHEQUES HAVE BEEN ISSUED TO THE SUPPLIERS OF FEED INGREDIEN TS MATERIALS IN NORMAL COURSE OF BUSINESS AND IT IS NOT A CASE THAT INVESTMENTS OR LOANS HAVE BEEN MADE AFTER DEPOSITING THE CASH BY T HE ASSESSEE, HENCE, WITHOUT PREJUDICE TO THE GROUNDS RAISED ABOV E, WHOLE OF THE CASH- DEPOSITED COULD NOT BE ADDED AS ASSESSE' S IN COME. 5. THAT THE EVIDENCE AND RELEVANT MATERIAL ON RECORD A ND BANK DOCUMENTS HAVE NOT BEEN APPRAISED PROPERLY WHICH HA S RESULTED IN ERRONEOUS ORDER AND TENABLE CONCLUSION. 6. THAT THE ID CIT (A) HAS WRONGLY CONFIRMED ADDITION OF RS. 118140. 00 AGAINST THE CHEQUE RECEIVED FROM THE LIC OF INDIA. 7. THAT THE ASSESSEE CRAVES TO LEAVE, AMEND, ALTER OR TAKE ADDITIONAL GROUNDS OF APPEAL BEFORE OR AT TIME OF HEARING. 3. THE ASSESSEE HAS RAISED VARIOUS GROUNDS OF APPEA L BUT THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST THE A DDITION OF RS. 16,78,961/- MADE BY THE ASSESSING OFFICER AGAINST T HE DEPOSITS IN THE BANK ACCOUNT. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAD MADE SEVERAL CASH DEPOSITS IN THE BANK ACCOUNT AND HAD WITHDRAWN MONEY BY WAY OF CHEQUES AND DDS ISSUED TO DIFFERENT PARTIES. THE D ETAILS OF THE CASH DEPOSITS AND CHEQUE/DDS ISSUED FROM THE SAVING ACCO UNT WITH KOTAK MAHINDRA BANK LTD. ARE TABULATED UNDER PARA 2.1 AT PAGES 1 AND 2 OF THE ASSESSMENT ORDER. SIMILARLY, THE ASSESSEE IN H IS SAVING BANK ACCOUNT WITH ORIENTAL BANK OF COMMERCE HAD MADE CAS H DEPOSITS AGAINST WHICH VARIOUS WITHDRAWALS WERE MADE WHICH A RE INCORPORATED UNDER PARA 2.2 AT PAGE 4 OF THE ASSESSMENT ORDER. T HE ASSESSEE HAD MADE TOTAL DEPOSITS AT RS. 15,78,961/- IN KOTAK MAH INDRA BANK LTD. 3 AND RS. 1 LAC IN ORIENTAL BANK OF COMMERCE. THE AS SESSEE WAS SHOW CAUSED TO EXPLAIN THE SOURCE OF ENTRIES IN THE SAID BANK ACCOUNTS. IN REPLY, THE ASSESSEE SUBMITTED THAT IT WAS ACTING AS A BROKER FOR FEED INGREDIENTS AND THE AMOUNT WAS RECEIVED FROM POULTR Y/DAIRY FARMERS. IT WAS DEPOSITED IN HIS BANK ACCOUNT AND WAS PAID T HROUGH CHEQUE TO THE SUPPLIERS OF FEED INGREDIENTS AGAINST THE MATER IAL BILLED TO THE SAID FARMERS. THE ASSESSING OFFICER NOTED THAT THE ASSE SSEE IN ITS RETURN OF INCOME HAD DECLARED INCOME UNDER HEAD BUSINESS AT RS. 1,16,365/- ON ACCOUNT OF INCOME FROM COMMODITY EXCHANGE OF RS. 60,250/- AND ESTIMATED INCOME FRO RESALE OF LADIES SUITS AT RS. 56,115/- IN ADDITION TO THE INCOME DECLARED UNDER HOUSE PROPERTY AND O THER SOURCES. THE ASSESSEE HAD NOT DECLARED ANY INCOME FROM THE SAID BUSINESS OF COMMISSION CLAIMED TO HAVE BEEN CARRIED OUT. THE A SSESSEE FAILED TO PRODUCE THE NAMES AND ADDRESSES OF THE PARTIES FROM WHOM THE PAYMENTS HAD BEEN RECEIVED AND PARTIES TO WHOM CHEQ UES WERE ISSUED. SINCE THE DEPOSITS IN THE BANK WERE MADE IN CASH WH EREAS WITHDRAWALS WERE MADE THROUGH ISSUE OF CHEQUES, THE PLEA OF THE ASSESSEE OF CIRCULATION OF MONEY WAS NOT ACCEPTED AND ADDITION OF RS. 16,78,961/- WAS MADE IN THE HANDS OF THE ASSESSEE. 5. THE COMMISSIONER OF INCOME TAX (APPEALS) UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER IN VIEW OF THE VARIOU S CASE LAWS REFERRED TO IN APPELLATE ORDER. THE ASSESSEE IS IN APPEAL AGAINST THE SAID ORDER OF COMMISSIONER OF INCOME TAX (APPEALS). 6. THE LD. AR FOR THE ASSESSEE STRESSED THAT AN ALT ERNATE PLEA WAS BEING RAISED TO APPLY PEAK OF THE CREDITS IN THE HA NDS OF THE ASSESSEE. THE LD. AR FOR THE ASSESSEE FAIRLY ADMITTED THAT AG AINST CASH DEPOSITED IN THE SAVING BANK ACCOUNT, CHEQUES WERE ISSUED AND THE ASSESSEE WAS NOT MAINTAINING ANY BOOKS OF ACCOUNT. 4 7. THE LD. DR FOR THE REVENUE POINTED OUT THAT THE ISSUE IS SQUARELY COVERED AGAINST THE ASSESSEE BY THE RATIO LAID DOWN BY THE TRIBUNAL IN THE CASE OF SHRI SUDHIR KUMAR SHARMA VS ITO IN ITA NO. 713/CHD/2010 AND ITA NO. 963/CHD/2010 RELATING TO A SSESSMENT YEAR 2007-08 WHEREIN VIDE ORDER DATED 27.06.2013, THE TR IBUNAL HAD UPHELD THE ADDITION IN THE HANDS OF THE SAID PERSON. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING IN THE PRESENT APPEAL IS IN RELATION TO THE CASH DEPOSITED IN THE BANK ACCOUNTS OF THE ASSESSEE. THE ASSESSEE HAD ADMITTEDLY NOT DECLARED ANY INCOME ON ACCOUNT OF THE SAID CIRCULAT ION OF MONEY IN HIS BANK ACCOUNT WITH KOTAK MAHINDRA BANK LTD. AND ORIE NTAL BANK OF COMMERCE. THE ASSESSEE HAD PERIODICALLY DEPOSITED CASH IN THE SAID BANK ACCOUNT AGAINST WHICH IT HAD ISSUED CHEQUES TO VARIOUS PARTIES. THE PLEA OF THE ASSESSEE BEFORE THE ASSESSING OFFIC ER WAS THAT THE SAID AMOUNT WAS BEING DEPOSITED ON BEHALF OF THE POULTRY /DIARY FARMERS BUT HAD FAILED TO PRODUCE ANY EVIDENCE IN THIS REGARD N OR ANY LIST OF PERSONS FROM WHOM THE CASH WAS RECEIVED WAS FILED. SIMILARLY, THE ASSESSEE FAILED TO FURNISH ANY EVIDENCE AS TO WHOM THE SAID CHEQUES WERE ISSUED FROM THE SAID BANK ACCOUNT. IN THE ABS ENCE OF THE SAME, THE ASSESSING OFFICER MADE ADDITION ON ACCOUNT OF T OTAL CASH DEPOSITED IN THE BANK ACCOUNT. HOWEVER, DESPITE SEVERAL OPPO RTUNITIES, THE ASSESSEE HAD FAILED TO PRODUCE ANY EVIDENCE TO ESTA BLISH HIS CLAIM AND NOW BEFORE US, HAS RAISED THE PLEA THAT IN THE ALTE RNATIVE, ADDITION IF ANY BE MADE ON ACCOUNT OF PEAK CREDIT IN THE SAID B ANK ACCOUNTS. IT MAY BE BROUGHT ON RECORD THAT THE ASSESSEE, ON ONE HAND HAD DEPOSITED CASH IN THE SAID BANK ACCOUNTS AND THEREAFTER, WITH DRAWN THE MONEY BY WAY OF CHEQUES/DDS. 9. WE FIND THAT SIMILAR ISSUE OF CASH DEPOSIT IN TH E BANK ACCOUNT AND THE NON-FURNISHING OF COMPLETE DETAILS IN RESPE CT OF THE SAID 5 CASH DEPOSIT AND THEREAFTER ISSUANCE OF CHEQUES FRO M THE SAID ACCOUNT 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 UNDER : 21. THE FIRST ISSUE TO BE ADDRESSED BY US IN THE PR ESENT FACTS AND CIRCUMSTANCES OF THE CASE IS WHETHER THE PROVISIONS OF SECTION 68 OF THE ACT ARE APPLICABLE TO THE FACT S OF THE PRESENT CASE. DURING THE COURSE OF SURVEY CONDUCTE D U/S 133A OF THE ACT ON 31.10.2007, IN THE STATEMENT REC ORDED, THE ASSESSEE 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 W AS RECEIVING THE AMOUNT IN CASH AND THE SAME WERE BEIN G RETURNED VIDE CHEQUES THROUGH BANK ACCOUNTS. HOWEV ER, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ST ATEMENT OF THE ASSESSEE WAS AGAIN RECORDED WHEREIN WHEN CON FRONTED WITH THE BANK STATEMENT OF M/S BIG BULL COMMODITIES PVT. LTD. WITH CENTURIAN BANK, PAKHOWAL ROAD, LUDHIANA I N WHICH HUGE CASH WAS DEPOSITED BY VARIOUS ENTRIES, T HE ASSESSEE IN REPLY STATED THAT THE CASH WAS DEPOSITE D AS PER BOOKS OF ACCOUNT ON BEHALF OF THE CLIENTS. VIDE QU ERY NO.8, THE ASSESSEE WAS ASKED TO PROVIDE THE NAMES AND ADD RESSES OF THE CUSTOMERS/CLIENTS WHO HAD DEPOSITED THESE AM OUNTS. THE REPLY OF THE ASSESSEE IN THIS REGARD WAS, IF D ETAILS ARE THERE, I WILL CHECK FROM BOOKS OF ACCOUNT AND PROVI DE THE SAME. THE ASSESSEE, THEREAFTER WAS DIRECTED TO PR ODUCE ATLEAST 10 PERSONS WHO HAD DEPOSITED RS.1 LAC AND A BOVE IN THE BANK ACCOUNT. THE ASSESSEE EXPLAINED THAT HE W ILL VERIFY FROM RECORD AND LET THE ASSESSING OFFICER KNOW ABOU T IT. IN REPLY TO QUERY NO.10, THE ASSESSEE CLAIMED THAT CAS H IS RECEIVED FROM CUSTOMERS AND SAME IS DEPOSITED IN BA NK. THE PLEA OF THE ASSESSEE BEFORE THE ASSESSING OFFICER W AS THAT HE WAS ENGAGED IN THE BUSINESS OF COMMODITIES AND QUER Y NO.12, 13 WERE RAISED IN RESPECT OF THE COMMISSION RECEIVED FROM LUDHIANA COMMODITIES EXCHANGE. THE REPLY OF T HE ASSESSEE TO QUERY NO.13 I.E. ARE YOU REGISTERED WI TH 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 FIRMS IN WHICH I AM DIRECTOR OR PROPRIETOR ARE BRANCHES/T RADERS OF M/S SHUBH KRISHNA COMMODITIES. THE QUERY NO.14 WAS WHETHER THE SAID COMPANIES/FIRMS WHO WERE THE TRAD ERS OF M/S SHUBH KRISHNA WERE PAYING ANY CHARGES TO M/S SH UBH KRISHNA THE REPLY OF THE ASSESSEE IN THIS REGARD WAS THAT HE WOULD LET THE ASSESSING OFFICER KNOW AFTER CHEC KING 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. 6 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 AN D 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 WITH LUDHIANA COMMODITIES EXCHANGE AND REST ALL THE CONCERNS WERE THE BRANCHES OR TRADERS OF M/S SHUBH 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 ITS CLIENTS. BUT BEFORE THE ASSESSING OFFICER IT WAS NOT THE CASE OF THE ASSESSEE THAT IT WAS ENGAGED I N PROVIDING ACCOMMODATION ENTRIES. IN RESPECT OF THE ENTRIES NOT BEING THROUGH THE EXCHANGE, THE ASSESSE E CLAIMED THAT CLIENT TO CLIENT TRANSACTIONS WERE PERMISSIBLE AS COMMERCIAL TRANSACTIONS. THE STATEM ENT WAS CONTINUED ON 21.12.2009 AND AS PER QUERY NO.24, THERE WAS A SPECIFIC QUERY RAISED TO EXPLAIN VARIOU S CASH CREDITS/DEPOSITS IN THE BANK ACCOUNTS OF DIFFE RENT COMPANIES IN WHICH THE ASSESSEE WAS THE DIRECTOR AN D THE ASSESSEE WAS ALSO ASKED TO GIVE SOURCE OF CASH DEPOSITS IN VARIOUS ACCOUNTS. IN REPLY TO THE SAME , A SHORT REPLY WAS GIVEN BY THE ASSESSEE THAT IT IS TH E SAME AS WHAT IS STATED ON 15.12.2009. AT THE CONCLUSION OF RECORDING OF THE STATEMENT, THE ASSES SEE STATED THAT HE WOULD FURTHER EXPLAIN RELATING TO TH E CASH, DURING THE COURSE OF ASSESSMENT PROCEEDINGS. HOWEVER, THE ASSESSEE FAILED TO PRODUCE THE BOOKS O F ACCOUNT NOR GIVE ANY EXPLANATION VIS--VIS THE SOUR CE OF CASH DEPOSITS IN THE BANK ACCOUNT. IN THE ABSENC E OF ANY EXPLANATION OR ANY EVIDENCE BEING PRODUCED BY T HE 7 ASSESSEE. THE ONUS CAST UPON THE ASSESSEE NOT BEING DISCHARGED, THE SAID CASH CREDITS ARE TO BE INCLUDE D 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 EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE ASSESS ING OFFICER, SATISFACTORY, 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 EXPLANATION OFFERED BY SUCH ASSESSEE-COMPANY SHALL BE DEEMED TO BE NOT SATISFACTORY, UNLESS ( A ) THE PERSON, BEING A RESIDENT IN WHOSE NAME SUCH C REDIT IS RECORDED IN THE BOOKS OF SUCH COMPANY ALSO OFFERS A N EXPLANATION 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 APPLY IF THE PERSON, IN WHOSE NAME THE SUM REFERRED TO THEREIN IS RECORDED, IS A VENTURE CAPITAL FUND OR A VENTURE CA PITAL COMPANY AS REFERRED TO IN CLAUSE ( 23FB ) OF SECTION 10 . 24. UNDER THE PROVISIONS OF SECTION 68 OF THE ACT, IT IS PROVIDED THAT WHERE THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF THE CRED ITS IN THE BOOKS OF ACCOUNT, ALL THE AMOUNTS SO CREDITE D OR WHERE THE EXPLANATION OFFERED BY THE ASSESSEE IS NO T SATISFACTORY IN RELATION TO THE SAME, THEN SUCH CRE DITS MAY BE CHARGED TO TAX AS INCOME OF THE ASSESSEE FOR THAT PARTICULAR PREVIOUS YEAR. ADMITTEDLY, IN THE CASE OF THE ASSESSEE, VARIOUS AMOUNTS IN CASH ARE DEPOSI TED IN THE BANK ACCOUNTS OF THE ASSESSEE AND THE ONUS W AS UPON THE ASSESSEE TO EXPLAIN NATURE AND ALSO THE SOURCE OF THE SAID CASH DEPOSITS. THE ASSERTION OF THE ASSESSEE IN THIS REGARD WAS THAT IT WAS THE AMOUNT RECEIVED FROM CLIENTS. HOWEVER, THE ASSESSEE FAILE D TO GIVE THE LIST OF SUCH PERSONS WHO HAD ADVANCED THE SAID CASH TO THE ASSESSEE. THE ASSESSEE EVEN FAILE D TO BRING ON RECORD ANY EVIDENCE TO PROVE ITS STAND THA T IT WAS THE AMOUNT RECEIVED FROM SUCH PERSONS WHO WERE HIS CLIENTS. THE ASSESSEE FAILED TO FILE ANY CONFIRMATION IN RESPECT OF THE SAID CASH CREDITS NO R ANY OF THE PERSONS WERE PRODUCED FOR EXAMINATION BEFORE THE ASSESSING OFFICER, THOUGH SPECIFIC DIREC TION IN THIS REGARD WAS GIVEN BY THE ASSESSING OFFICER 8 WITHIN THE COURSE OF RECORDING OF STATEMENT OF THE ASSESSEE, DURING ASSESSMENT PROCEEDINGS. THE ASSESSEE EVEN FAILED TO PRODUCE THE BOOKS OF ACCOUN T. IN THE ABSENCE OF THE ASSESSEE HAVING DISCHARGED HI S ONUS OF PROVING THE IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF THE CASH TRANSACTION OF THE CASH CRE DITS IN THE BANK ACCOUNT, WE FIND NO MERIT IN THE PLEA O F THE ASSESSEE 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 BUSINESS OF GIVING ACCOMMODATION ENTRIES. HOWEVER, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE DID NOT RAISE ANY SUBMISSIONS IN THIS REGA RD AND ON THE OTHER HAND, THE ASSESSEE TIME AND AGAIN, IN THE COURSE OF STATEMENT RECORDED DURING THE ASSESSM ENT PROCEEDINGS, POINTED OUT THAT THE CASH DEPOSITED IN THE BANK ACCOUNT WAS AS PER ENTRIES IN THE BOOKS OF ACCOUNT AND THE SAME WOULD BE EXPLAINED FROM THE BOOKS OF ACCOUNT. THE PLEA OF ACCOMMODATION ENTRIE S WAS NOT PUT TO THE ASSESSING OFFICER. HOWEVER, BEF ORE CIT(APPEALS), A PLEA WAS RAISED THAT ONLY COMMISSIO N IS TO BE ADDED IN THE HANDS OF THE ASSESSEE IN VIEW OF VARIOUS JUDICIAL PRECEDENTS. A PERUSAL OF THE ORDE R OF THE CIT(APPEALS) DOES NOT REFLECT ANY FINDINGS ON T HIS ISSUE AND ISSUES ADDRESSED BY THE CIT(APPEALS) WERE WHETHER PROVISIONS OF SECTION 68 ARE APPLICABLE AND IN THE ALTERNATIVE, WHETHER PEAK-CREDIT IS TO BE APPLI ED IN THE HANDS OF THE ASSESSEE. THE ASSESSEE IN THIS GR OUND OF APPEAL RAISED BEFORE THE TRIBUNAL HAS NOT RAISED ANY SUCH ISSUE OF THE COMMISSION INCOME BEING INCLUDED IN HIS HANDS. ONLY TWO ISSUES HAVE BEEN RAISED; I.E. INVOKING OF PROVISIONS OF SECTION 68 O F THE ACT AND CONFIRMATION OF ADDITION OF RS.1055,260/-. THE ISSUE OF WHETHER THE ASSESSEE IS ENGAGED IN GIV ING 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 NO T BEEN ADJUDICATED. THE PLEA OF THE ASSESSEE OF ADMISSION OF SUCH NEW FACTUAL ISSUE IS NOT ADMISSIB LE AT THIS STAGE 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 CIRCUMSTANCES OF THE CASE ARE APPLICABLE AND WE UPHOLD THE ORDER OF CIT(APPEALS) IN THIS REGARD. 9 10. AN APPEAL WAS FILED AGAINST THE SAID ORDER OF T HE TRIBUNAL BEFORE HON'BLE PUNJAB & HARYANA HIGH COURT. THE HO N'BLE HIGH COURT IN ITA NO. 122 OF 2014 (O&M) VIDE JUDGEMENT D ATED 12.05.2014 HELD AS UNDER : 9. A PERUSAL OF THE FINDINGS RECORDED BY THE AUTHORITIES BELOW CLEARLY SPELLS OUT THAT ADMITTEDL Y, VARIOUS AMOUNTS IN CASH WERE DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE AND THE ONUS WAS UPON THE ASSESSEE TO EXPLAIN THE NATURE AND SOURCE OF THE SA ID CASH DEPOSITS. THE ASSERTION OF THE ASSESSEE IN THIS REG ARD WAS THAT IT WAS THE AMOUNT RECEIVED FROM HIS CLIENTS. HOWEVER THE ASSESSEE FAILED TO GIVE LIST OF SUCH PERSONS ALONGWITH CONFIRMATION IN RESPECT OF THE SAID CASH CREDITS NOR ANY OF THE PERSONS WERE PRODUCED FOR EXAMINATIO N, WHO HAD ADVANCED THE SAID CASH TO HIM, BEFORE THE ASSESSING OFFICER. THE ASSESSEE ALSO FAILED TO BRIN G 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 WER E NOT 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 DEPO SITS IN THE BANK ACCOUNT AND THEREAFTER CHEQUES WERE ISSUED TO DIFFERENT PARTIES AND IN SUCH CIRCUMSTANCES, THE TH EORY OF PEAK CREDIT COULD NOT BE ACCEPTED. MOREOVER, THE APPELLANT HAD NOT BEEN ABLE TO SHOW THAT THERE EXIS TED ANY NEXUS WHEREBY THE AMOUNT DEPOSITED IN CASH HAD BEEN WITHDRAWN IN CASH AND THEREAFTER REDEPOSITED TO TAK E BENEFIT UNDER PEAK CREDIT THEORY. 11. . WE FURTHER FIND THAT THE HON'BLE PUNJAB & HA RYANA HIGH COURT IN CASE OF BEST BUY COMMODITIES PVT. LTD. VS ITO IN ITA NO. 122 OF 2014 (O&M) VIDE JUDGEMENT DATED 12.05.2014 HAS UPHELD THE ORDER OF TRIBUNAL. 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 10 THE SAME PARITY OF REASONING, WE UPHOLD THE ADDITIO N OF RS. 16,78,961/- UNDER SECTION 68 OF THE INCOME TAX ACT. 13. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AR E THUS, DISMISSED. 14. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH SEPTEMBER,2014. SD/- SD/- ( T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10 TH SEPTEMBER,2014 POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR/ITAT/CHD