Sudhir Kumar Sharma HUF, Ludhiana V. ITO, Ludhiana

ITA 19/CHANDI/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68492 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 07-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Unexplained cash credit; Peak credit; Accommodation entries
• Section: 143(3); 133A; 147; 68; 148; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND MS SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO. 17 & 18/CHD/2013 A.Y:2006-07 & 2009-10 SHRI SUDHIR KUMAR SHARMA,HUF VS THE INCOME TAX OF FICER, PROP. M/S SUBH KRISHNA COMMODITIES, WARD VI(3), 70, NEW LAJPAT NAGAR, LUDHIANA. LUDHIANA. PAN NO. AAKHS-0128R & ITA NO. 19 & 20/CHD/2013 A.Y:2006-07 & 2009-10 SHRI SUDHIR KUMAR SHARMA, VS THE INCOME T AX OFFICER, PROP. M/S S.K.& CO.COMMODITIES, WARD VI(3), 70, NEW LAJPAT NAGAR, LUDHIANA. LUDHIANA. PAN : ADBPS-0503N (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SUDHIR SEHGAL RESPONDENT BY : SHRI MANJIT SINGH DATE OF HEARING : 03.09.2013 DATE OF PRONOUNCEMENT : 20.09.2013 O R D E R PER SUSHMA CHOWLA, J.M. THIS BUNCH OF APPEALS ARE FILED BY TWO DIFFERENT AS SESSEES AGAINST SEPARATE ORDERS OF CIT(APPEALS) AS DETAILED UNDER : S.NO. CASE NO. NAME A.Y. DATE OF ORDER ORDER PASSED OF CIT(APPEALS) UNDER SECT ION ----- ---------- ---------------- ---------- ------------------ ---------- ---- 1. ITA/17/CHD/2013 SUDHIR KUMAR SHARMA, 2006-07 19.10.2012 143(3) READ HUF WITH SECTION 147 OF THE ACT. 2. ITA/18/CHD/2013 SUDHIR KUMAR SHARMA, 2009-10 19.10.2012 143(3) OF HUF THE ACT. 2 3. ITA/19/CHD/2013 SUDHIR KUMAR SHARMA 2006-07 19.10.2012 143(3) READ WITH SECTION 147 OF THE ACT. 4. ITA/20/CHD/2013 SUDHIR KUMAR SHARMA 2009-10 19.10.2012 143(3) OF THE ACT 2. ALL THE FOUR APPEALS RELATING TO SHRI SUDHIR KUM AR SHARMA, HUF AND SHRI SUDHIR KUMAR SHARMA IN INDIVIDUAL CAPA CITY, INVOLVING SIMILAR ISSUE, WERE HEARD TOGETHER AND ARE BEING DI SPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. THE LD. AR FOR THE ASSESSEE, AT THE OUTSET POINT ED OUT THAT THE ISSUES IN THE PRESENT APPEALS ARE IDENTICAL AND ARE SQUARELY COVERED BY THE ORDER OF THE TRIBUNAL IN ASSESSEE'S OWN CAS E VIDE ORDER DATED 05.06.2013. 4. THE LD. DR FOR THE REVENUE PLACED RELIANCE ON TH E ORDERS OF THE AUTHORITIES BELOW AND ALSO THE ORDER OF THE TRIBUNA L IN ASSESSEE'S OWN CASE FOR DIFFERENT ASSESSMENT YEARS. 5. IN ITA NO. 17/CHD/2013, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL : 1. THAT THE LEARNED CIT(A) HAS ERRED IN NOT GIVING HIS FINDINGS REGARDING REOPENING THE CASE BY THE ASSESSING OFFICER AND ISS UING NOTICE U/S 148 OF THE INCOME TAX ACT, 1961. 2. THAT NOTWITHSTANDING THE ABOVE SAID GROUND OF AP PEAL, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ORDER OF THE ASS ESSING OFFICER IN ASSESSING INCOME AT RS.26,56,60,530/- AGAINST THE R ETURNED INCOME OF RS.1,52,340/- ALREADY ASSESSED. 3. THAT THE LEARNED CIT(A) FAILED TO CONSIDER THAT THE ASSESSING OFFICER HAS ERRED IN NOT CONSIDERING THE FACT THAT APPELLAN T IS SUB-BROKER AND TRADING IN COMMODITIES ON BEHALF OF HIS/HER CLIENTS AND RETURN SHOWING INCOME FROM ABOVE SAID SOURCES HAS BEEN FILED AND A SSESSED BY THE ASSESSING OFFICER AND THUS, THERE IS NO JUSTIFICATION IN ASSE SSING THE SAME UNDER SECTION 68 OF THE ACT. 4. THAT THE LEARNED CIT(A) HAS ERRED IN NOT CONSIDE RING THAT ONCE THE LEARNED ASSESSING OFFICER HAS ACCEPTED AND ASSESSED THE APPELLANT'S SOURCE OF INCOME AS SUB-BROKER/DEALER I N COMMODITIES, HE IS NOT JUSTIFIED TO ASSESS THE CASH DEPOSITS IN BANKS AS APPELLANT'S INCOME TWICE. 3 5. THAT NOTWITHSTANDING THE ABOVE SAID GROUND OF AP PEAL, THE LEARNED CIT(A) HAS ERRED TO CONSIDER THAT THE ASSESSING OFF ICER HAS FAILED TO TAKE THE NOTICE OF THE STATEMENT OF THE SUDHIR KUMAR SHARMA (KARTA) AS RECORDED DURING THE COURSE OF SURVEY CONDUCTED AT THE BUSINE SS PREMISES OF THE ASSESSEE ON 31.10.2007, WHEREIN HE HAD CATEGORICALLY STATED THAT WE ARE ENGAGED ONLY IN GIVING THE ACCOMMODATION ENTRIES TO VARIOUS PERS ONS AND AT BEST ONLY COMMISSION TO THE TUNE OF 0.05% SHOULD HAVE BEEN AS SESSED AGAINST THE ADDITION OF ALL THE DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE. 6. THAT THE LEARNED CIT(A) HAS ERRED TO CONSIDER TH AT THE ASSESSING OFFICER HAS FAILED TO TAKE THE NOTICE OF THE FACT THAT THE ASSESSEE DOES NOT HAVE ANY IMMOVABLE/MOVABLE PROPERTY AND NO WORTHWHILE SOURCE S TO ENABLE HIM TO DEPOSIT THE HUGE CASH IN HIS BANK ACC OUNT. 7. THAT THE LEARNED CIT(A) HAS ERRED TO CONSIDER TH AT THE ASSESSING OFFICER HAS FAILED TO TAKE THE NOTICE OF THE JUDGMENT OF JU RISDICTIONAL BENCH OF THE INCOME TAX APPELLATE TRIBUNAL I.E. CHANDIGARH BENCH IN THE CASE OF SHRI B K JAIN, WHEREIN UNDER THE SIMILAR FACTS AND CIRCUMSTA NCES, THE ASSESSMENT HAD BEEN FRAMED IN HIS HANDS AND ONLY COMMISSION HAS BE EN ASSESSED ON THE TOTAL DEPOSITS MADE IN HIS BANK ACCOUNT, SINCE HE WAS ENG AGED IN PROVIDING THE ACCOMMODATION ENTRIES TO VARIOUS PERSONS AND THE SA ME ARE FACTS IN THE PRESENT CASE. 8. THAT NOTWITHSTANDING THE ABOVE SAID GROUND OF APPEA L, IT IS SUBMITTED THAT EVEN OTHERWISE, THE LEARNED CIT(A) H AS ERRED TO CONSIDER THAT THE ACTION OF THE ASSESSING OFFICER TO ASSESS ALL THE CASH DEPOSITS IN BANK ACCOUNTS WITHOUT CONSIDERING THE PEAK FIGURE O F BANK DEPOSITS IS NOT JUSTIFIED. 9. THAT THE ACTION OF THE LEARNED CIT(A) IN WITHHOL DING THE ADDITION MADE BY THE ASSESSING OFFICER IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. THE GROUND NO. 1 RAISED BY THE ASSESSEE AGAINST RE-OPENING OF ASSESSMENT UNDER SECTION 148 OF THE INCOME TAX ACT IS NOT PRESSED AND HENCE, THE SAME IS DISMISSED AS NOT PRESSED. 7. THE ISSUE IN GROUND NOS. 2 TO 9 ARE AGAINST THE ADDITION OF RS. 7,02,85,510/- UNDER SECTION 68 OF THE INCOME TA X ACT. 8. THE BRIEF FACTS OF THE CASE ARE THAT ORIGINALLY THE RETURN OF INCOME FILED BY THE ASSESSEE AT RS. 152,520/- WAS P ROCESSED UNDER SECTION 143(1) OF THE ACT. HOWEVER, IT CAME TO THE KNOWLEDGE OF THE DEPARTMENT THAT THE ASSESSEE HAD DEPOSITED UNEXPLAI NED CASH IN THE BANK ACCOUNT AND NOTICE UNDER SECTION 148 OF THE AC T WAS ISSUED TO THE ASSESSEE AFTER RECORDING REASONS FOR RE-OPENING THE ASSESSMENT. 4 THE ASSESSEE, IN RESPONSE TO THE NOTICE ISSUED UNDE R SECTION 148 OF THE ACT FILED THE RETURN OF INCOME DECLARING THE SA ME INCOME AS SHOWN IN THE ORIGINAL RETURN. THE ASSESSING OFFICE R VIDE PARA 3 NOTES THAT THE ASSESSEE WAS ASKED TO PRODUCE COMPLETE BOO KS OF ACCOUNT I.E. JOURNAL, CASH BOOK, LEDGER, CLIENT REGISTER, VOUCHE RS AND ALSO TO FURNISH EVIDENCE REGARDING CASH DEPOSITS IN THE BAN K ACCOUNT, HOWEVER, DESPITE MANY OPPORTUNITIES THE ASSESSEE FA ILED TO PRODUCE THE BOOKS OF ACCOUNT. DURING THE COURSE OF ASSESSM ENT PROCEEDINGS ON 09.12.2011, STATEMENT OF SHRI SUDHIR KUMAR SHARM A WAS RECORDED WHICH IS INCORPORATED UNDER PARA 3 AT PAGES 2 TO 5 OF THE ASSESSMENT ORDER. THE ASSESSEE CLAIMED THAT THE SOURCE OF CAS H DEPOSIT IN THE BANK ACCOUNT WAS CASH RECEIVED FROM VARIOUS CLIENTS AND WHILE RECORDING THE STATEMENT, THE ASSESSEE WAS ASKED TO PRODUCE ATLEAST 15 PERSONS FOR VERIFICATION. BUT ASSESSEE FAILED TO PR ODUCE ANY PERSON FOR VERIFICATION NOR ANY CONFIRMATION WAS FILED DUR ING THE ASSESSMENT PROCEEDINGS. THE ASSESSEE TOWARDS THE END OF THE A SSESSMENT PROCEEDINGS, PRODUCED COMPUTERIZED CASH BOOK AND LE DGER BUT FAILED TO PRODUCE THE CLIENT REGISTER, SAUDA BOOK AND VOUC HERS. FURTHER, ON EXAMINATION OF THE CASH BOOK AND LEDGER, IT WAS NOT ED THAT THE LEDGER ACCOUNTS WERE OPENED IN SHORT NAMES AND COMPLETE AD DRESSES OF THE PERSONS IN WHOSE NAMES LEDGER ACCOUNTS WERE OPENED WERE NOT GIVEN. THE STATEMENT OF THE ACCOUNTANT WAS ALSO RECORDED A ND THE SAME IS INCORPORATED UNDER PARA 5 OF THE ASSESSMENT ORDER. IN THE ABSENCE OF ANY EVIDENCE BEING FILED BY THE ASSESSEE, THE ASSES SING OFFICER SHOW CAUSED THE ASSESSEE AS TO WHY TOTAL CASH DEPOSITS I N THE BANK ACCOUNT MAY NOT BE ADDED TO THE TAXABLE INCOME BEING INCOME FROM UNEXPLAINED SOURCES. IN THE ABSENCE OF ANY EXPLANA TION, THE ASSESSING OFFICER MADE AN ADDITION OF RS. 7,02,85,5 10/- IS INCOME FROM UNEXPLAINED SOURCES. 5 9. THE CIT(APPEALS) HELD THAT IF THE ASSESSEE WAS E NGAGED IN THE BUSINESS OF COMMODITY TRADING ON BEHALF OF THE ITS CLIENT, THEN IT WAS INCUMBENT UPON HIM TO MAINTAIN ITS ACCOUNTS IN SUCH A MANNER SO AS TO SHOW THAT ANY AMOUNT DUE FROM CLIENTS COULD BE R ECOVERED AS AND WHEN REQUIRED. THE CIT(APPEALS) HELD THAT THE ASSE SSEE HAD FAILED TO MAINTAIN SUCH DETAILS AND AS SUCH HAD FAILED IN THE ONUS CAST UPON HIM UNDER SECTION 68 OF THE ACT, AS NO DETAILS OF T HE CLIENTS FROM WHOM THE IMPUGNED CASH HAD BEEN CLAIMED TO HAVE BEE N RECEIVED HAD BEEN FILED. THE OFFER OF THE ASSESSEE OF BEING ASS ESSED @ 0.05% BEING COMMISSION INCOME EARNED WAS REJECTED AND THE ADDITION OF RS. 7,02,85,510/- WAS UPHELD. 10. THE ASSESSEE IS IN APPEAL AGAINST THE SAID ADDI TION MADE IN HIS HANDS. THE TOTAL ADDITION MADE IN THE HANDS OF THE ASSESSEE IS RS. 7,02,85,510/-. HOWEVER, THE GROUNDS OF APPEAL TALK OF ASSESSMENT OF INCOME AT RS. 26,56,60,530/-, THOUGH IN-FACT THE A SSESSMENT IN THE CASE WAS COMPLETED AT RS. 7,04,38,030/-. 11. WE FIND THAT SIMILAR ISSUE OF ADDITION UNDER SE CTION 68 OF THE ACT ON ACCOUNT OF CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE AROSE BEFORE THE TRIBUNAL IN BUNCH OF APPEALS FILED BY BOTH THE ASSESSEES WHO ARE BEFORE US, ALONGWITH APPEALS FILE D BY SMT. SHOBHA SHARMA. THE TRIBUNAL IN BUNCH OF APPEALS WITH LEAD ORDER IN ITA NO. 713/CHD/2010 IN THE CASE OF SHRI SUDHIR KUMAR SHARM A VS ITO RELATING TO ASSESSMENT YEAR 2007-08 ALONGWITH ITA N OS. 963/CHD/2010, ITA 714/CHD/2010, ITA 964/CHD/2010 AN D ITA 712/CHD/2010 & ITA 962/CHD/2010 (A.Y. 2007-08) VID E ORDER DATED 27.06.2013 HELD AS UNDER : 16. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE RECORD. IN THE FACTS OF THE PRESENT CASE THE ASS ESSEE UNDER APPEAL IS FOR ASSESSMENT YEAR 2007-08 FOR THE PERIO D ENDING 6 31.3.2007. THE ASSESSEE DURING THE YEAR UNDER CONS IDERATION HAD FURNISHED RETURN OF INCOME DECLARING TOTAL INCO ME OF RS.161,680/- FILED ON 01.11.2007. SURVEY U/S 133A OF THE ACT WAS CONDUCTED ON THE PREMISES OF THE ASSESSEE ON 31 .10.2007 AND THE STATEMENT OF THE ASSESSEE WAS RECORDED ON 31.10.2007. THE COPY OF THE STATEMENT OF THE ASSES SEE RECORDED DURING THE COURSE OF SURVEY IS PLACED ON R ECORD. A PERUSAL OF THE SAID STATEMENT REFLECTS THAT THE CLA IM OF THE ASSESSEE DURING SURVEY WAS THAT M/S SUPER FINVEST ( P) LTD. WAS SUB-BROKER BY LSE SECURITIES LTD. AND ALSO WORK ING AS SHARE BROKER. IN RESPECT OF M/S BIG BULL COMMODITI ES P.LTD. AND M/S BEST BUY COMMODITIES P.LTD., THE ASSESSEE S TATED THAT THESE WERE ENGAGED IN ACCOMMODATION ENTRIES; M /S SHUBH KRISHNA COMMODITIES P.LTD. WAS STATED TO BE ENGAGED IN COMMODITY TRADING AND AS SUB-BROKER ON COMMISSION B ASIS. IT WAS CLAIMED BY THE ASSESSEE THAT IT WAS ENGAGED IN GIVING ACCOMMODATION ENTRIES. 17. THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRU TINY AND STATEMENT OF THE ASSESSEE WAS RECORDED ON 14.12.200 9. IN REPLY TO THE QUERIES RAISED BY THE ASSESSING OFFICE R WHILE RECORDING THE SAID STATEMENT, THE PLEA OF THE ASSES SEE WAS THAT IT HAD RECEIVED CASH FROM ITS CLIENTS AND THE DETAILS WERE AVAILABLE IN BOOKS OF ACCOUNT WHICH WOULD BE PROVID ED TO THE ASSESSING OFFICER ON THE NEXT DATE OF HEARING. THE ASSESSING OFFICER REQUISITIONED THE ASSESSEE TO PRODUCE ATLEA ST 10 PERSONS WHO HAD DEPOSITED RS. ONE LAC AND ABOVE IN THE BANK ACCOUNT. THE ASSESSEE REPLIED THAT HE WOULD VERIFY THE RECORD AND INFORM THE STATUS. IN ANOTHER QUERY RAISED BY THE ASSESSING OFFICER THAT LET ME KNOW HOW THE ABOVE P ERSONS DEPOSITED THE CASH IN YOUR BANK, THE REPLY OF THE ASSESSEE WAS CASH IS RECEIVED FROM CUSTOMERS AND THE SAME I S DEPOSITED IN BANK. IN VIEW OF THE COMMODITIES EXC HANGE, THE ASSESSEE EXPLAINED THAT THE LUDHIANA COMMODITIES EX CHANGE CHARGE TRANSACTION CHARGES FROM THE ASSESSEE AT THE RATES DEPENDING ON TURNOVER. THE CONCERN M/S SHUBH KRISH NA, WHICH WAS THE PROPRIETOR CONCERN OF THE HUF OF THE ASSESSEE, WAS CLAIMED TO BE REGISTERED WITH LUDHIANA COMMODIT IES EXCHANGE AND OTHER COMPANIES AND FIRMS OF WHICH HE WAS THE DIRECTOR/PROPRIETOR WERE CLAIMED TO BE BRANCHES/TRA DERS OF M/S SHUBH KRISHNA COMMODITIES. IN VIEW OF THE ENTR IES OF TRADING BEING CARRIED OUT ON BEHALF OF THE M/S SHUB H KRISHNA BY THE VARIOUS COMPANIES/PROPRIETORY CONCERNS OWNED BY THE ASSESSEE, IT WAS EXPLAINED THAT IN CASE OF ONE OR T WO TRANSACTIONS, THE COMMODITY EXCHANGE ENTRY WAS THR OUGH THE EXCHANGE AND THE BALANCE ENTRIES WERE CLIENT TO CLI ENT, WHICH WERE PERMISSIBLE AS COMMERCIAL TRANSACTION, AS PER PREVALENT MARKET TRENDS. THE ASSESSEE CLAIMED THAT SODA CONF IRMATION SLIP VOUCHERS IN RESPECT OF COMMODITIES TRANSACTION WERE BEING MAINTAINED BY THE ASSESSEE, WHICH WOULD BE PR OVIDED ON THE NEXT DATE OF HEARING. THE STATEMENTS WWAS AGAI N CONTINUED ON 21.12.2009 AND THE PLEA OF THE ASSESSE E WAS THAT IT HAD NOT BROUGHT ANY RECORD OR ANY PERSONS TO BE PRODUCED ALONGWITH HIMSELF ON THE SAID DATE OF HEARING, AS H E HAD COME FOR RECORDING OF HIS STATEMENT. IN THE STATEMENT S O RECORDED, IN RESPECT OF VARIOUS CASH CREDITS/DEPOSITS IN THE BANK ACCOUNTS IN THE NAME OF DIFFERENT COMPANIES IN WHIC H HE WAS THE DIRECTOR/PROPRIETOR, THE ASSESSEE WAS ASKED TO GIVE THE 7 SOURCE OF THE SAID CASH DEPOSITS IN VARIOUS BANKS A ND IT WAS STATED BY THE ASSESSEE THAT REPLY IS SAME AS STATE D ON 15.12.2009. HE FURTHER SUBMITTED THAT HE WOULD ST ATE FURTHER RELATING TO CASH DURING THE COURSE OF ASSES SMENT PROCEEDINGS. 18. THE ASSESSING OFFICER FROM THE PERUSAL OF THE B ANK ACCOUNTS OF THE ASSESSEE WORKED OUT THE CASH CREDIT S IN THE SAID BANK ACCOUNTS TOTALING TO RS.126,66,000/- AS P ER DETAILS IN ANNEXURE-B TO THE ASSESSMENT ORDER. THE ASSESSI NG OFFICER FURTHER NOTED THAT WHILE RECORDING THE STATEMENT, T HE ASSESSEE WAS ASKED TO PRODUCE 10 PERSONS FOR VERIFICATION AN D THE ASSESSEE FAILED TO PRODUCE ANY PERSON FOR VERIFICAT ION NOR ANY CONFIRMATION WAS FILED BY THE ASSESSEE. THE ASSESS EE HAD FAILED TO DISCHARGE THE INITIAL BURDEN CAST UPON HI M TO PROVE GENUINENESS OF THE AMOUNTS CREDITED IN HIS BOOKS OF ACCOUNT I.E. BY PROVING THE IDENTITY OF THE PERSONS, WHO HA NDED OVER THE CASH TO THE ASSESSEE OR PRODUCTION OF THE RELEV ANT BOOKS OF ACCOUNT WHERE NAME, ADDRESS AND TRANSACTIONS ENT ERED BY THEM WERE REFLECTED NOR FURNISHING ANY DETAILS OF S UCH PERSONS WHO HAD GIVEN HIM THE CASH AND EVEN CREDIT WORTHINESS OF THE PERSONS GIVING CASH COULD NOT BE PROVED. THE ASSESSEE HAD FAILED TO FILE THE REQUISITE DETAI LS DURING THE ASSESSMENT PROCEEDINGS. THE ASSESSING OFFICER, THU S HELD THAT IN VIEW THEREOF, WHETHER THE CASH DEPOSITS BEL ONG GENUINELY TO THE CUSTOMERS OR IT BELONGED TO THE AS SESSEE, COULD NOT BE ASCERTAINED, RESULTING IN THE GENUINEN ESS OF THE TRANSACTIONS BEING NOT PROVED. IT WAS ALSO A FINDI NG OF THE ASSESSING OFFICER, THAT ONLY CASH DEPOSITS WERE MAD E IN THE BANK ACCOUNT AND THERE WERE NO CASH WITHDRAWALS FRO M THE SAID BANK. THE OUTGOINGS WERE ONLY CHEQUES WHICH W ERE UNVERIFIABLE. THE ASSESSEE HAD FAILED TO CORROBORA TE THE CASH DEPOSIT WITH ANY EVIDENCE OF THE IDENTITY OF THE DE POSITOR OR ANY OTHER EVIDENCE. THE ASSESSING OFFICER, THUS MA DE ADDITION OF RS.126,66,000/-. 19. THE PLEA BEFORE THE CIT(APPEALS) RAISED BY THE ASSESSEE WAS TWO-FOLD I.E. THE PROVISIONS OF SECTION 68 WERE NOT TO BE APPLIED AND IT BEST THE ADDITION COULD BE RESTRICTE D TO THE PEAK CREDITS. THE CIT(APPEALS) UPHELD THE PEAK CRE DIT THEORY TO BE APPLIED TO THE FACTS OF THE CASE AND RESTRICT ED THE ADDITION TO RS.10,55,260/-. THE CIT(APPEALS) HOWEVE R, IN PRINCIPLE HELD THAT THE ASSESSING OFFICER WAS CORRE CT IN HOLDING THAT THE ABOVESAID ADDITIONS WERE MAINTAINA BLE IN VIEW OF THE PROVISIONS OF SECTION 68 OF THE ACT. 20. THE ASSESSEE IS IN APPEAL BEFORE US IN RESPECT OF BOTH THE INVOKING OF PROVISIONS OF SECTION 68 IN THE PRE SENT CASE AND ALSO AGAINST THE ADDITION OF RS.10,55,260/-. T HE REVENUE IS AGGRIEVED BY THE APPLICATION OF PEAK CREDIT THEO RY IN THE HANDS OF THE ASSESSEE AND SECOND, RELIEF ALLOWED TO THE ASSESSEE. 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 8 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 CONFRO NTED 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, THE ASS ESSEE IN REPLY STATED THAT THE CASH WAS DEPOSITED AS PER BOO KS OF ACCOUNT ON BEHALF OF THE CLIENTS. VIDE QUERY NO.8, THE ASSESSEE WAS ASKED TO PROVIDE THE NAMES AND ADDRESS ES OF THE CUSTOMERS/CLIENTS WHO HAD DEPOSITED THESE AMOUNTS. THE REPLY OF THE ASSESSEE IN THIS REGARD WAS, IF DETAI LS ARE THERE, I WILL CHECK FROM BOOKS OF ACCOUNT AND PROVIDE THE SAME. THE ASSESSEE, THEREAFTER WAS DIRECTED TO PRODUCE AT LEAST 10 PERSONS WHO HAD DEPOSITED RS.1 LAC AND ABOVE IN THE BANK ACCOUNT. THE ASSESSEE EXPLAINED THAT HE WILL VERIF Y FROM RECORD AND LET THE ASSESSING OFFICER KNOW ABOUT IT. IN REPLY TO QUERY NO.10, THE ASSESSEE CLAIMED THAT CASH IS R ECEIVED FROM CUSTOMERS AND SAME IS DEPOSITED IN BANK. THE PLEA OF THE ASSESSEE BEFORE THE ASSESSING OFFICER WAS THAT HE WAS ENGAGED IN THE BUSINESS OF COMMODITIES AND QUERY NO .12, 13 WERE RAISED IN RESPECT OF THE COMMISSION RECEIVED F ROM LUDHIANA COMMODITIES EXCHANGE. THE REPLY OF THE AS SESSEE TO QUERY NO.13 I.E. ARE YOU REGISTERED WITH LUDHIA NA COMMODITY EXCHANGE WAS THAT ONLY M/S SHUBH KRISHN A OF WHICH HUF IS THE PROPRIETOR AND I AM KARTA OF HUF I S REGISTERED WITH LCE AND OTHER COMPANIES AND FIRMS I N 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 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. 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 TRANSACTI ONS. 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. 9 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 THE C LAIM OF THE ASSESSEE TO HAVE CHANGED. THE ASSESSEE ADMITS THAT ONLY M/S SHUBH KRISHNA WAS REGISTERED WITH LUDHIANA COMMODIT IES EXCHANGE AND REST ALL THE CONCERNS WERE THE BRANCHE S OR TRADERS OF M/S SHUBH KRISHNA COMMODITIES. IN RESPEC T OF THE CASH DEPOSIT IN THE BANK ACCOUNT OF ONE OF THE CONC ERN, THE ASSESSEE STATED THAT IT HAD RECEIVED CASH FROM VARI OUS PARTIES 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 NOT THE CAS E OF THE ASSESSEE THAT IT WAS ENGAGED IN PROVIDING ACCOMMOD ATION ENTRIES. IN RESPECT OF THE ENTRIES NOT BEING THROU GH THE EXCHANGE, THE ASSESSEE CLAIMED THAT CLIENT TO CLIEN T TRANSACTIONS WERE PERMISSIBLE AS COMMERCIAL TRANSAC TIONS. THE STATEMENT WAS CONTINUED ON 21.12.2009 AND AS PE R QUERY NO.24, THERE WAS A SPECIFIC QUERY RAISED TO EXPLAIN VARIOUS 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 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 THE STATEMENT, THE ASSESSEE STATED THAT HE WOULD FURTHER EXPLAIN R ELATING TO THE CASH, DURING THE COURSE OF ASSESSMENT PROCEEDIN GS. HOWEVER, THE ASSESSEE FAILED TO PRODUCE THE BOOKS O F ACCOUNT NOR GIVE ANY EXPLANATION VIS--VIS THE SOURCE OF CA SH DEPOSITS IN THE BANK ACCOUNT. IN THE ABSENCE OF ANY EXPLANAT ION OR ANY EVIDENCE BEING PRODUCED BY THE ASSESSEE. THE ONUS C AST UPON THE ASSESSEE NOT BEING DISCHARGED, THE SAID CASH CR EDITS 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 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 INTER ESTED), AND THE SUM SO CREDITED CONSISTS OF SHARE APPLICATION MONEY , SHARE CAPITAL, SHARE PREMIUM OR ANY SUCH AMOUNT BY WHATEVER NAME C ALLED, ANY EXPLANATION OFFERED BY SUCH ASSESSEE-COMPANY SHALL BE DEEMED TO BE NOT SATISFACTORY, UNLESS 10 ( 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 EXPLANAT ION ABOUT THE NATURE AND SOURCE OF THE CREDITS IN THE BOOKS O F ACCOUNT, ALL THE AMOUNTS SO CREDITED OR WHERE THE EXPLANATIO N OFFERED BY THE ASSESSEE IS NOT SATISFACTORY IN RELATION TO THE SAME, THEN SUCH CREDITS MAY BE CHARGED TO TAX AS INCOME O F THE ASSESSEE FOR THAT PARTICULAR PREVIOUS YEAR. ADMITT EDLY, IN THE CASE OF THE ASSESSEE, VARIOUS AMOUNTS IN CASH ARE D EPOSITED IN THE BANK ACCOUNTS OF THE ASSESSEE AND THE ONUS WAS UPON THE ASSESSEE TO EXPLAIN NATURE AND ALSO THE SOURCE OF T HE SAID CASH DEPOSITS. THE ASSERTION OF THE ASSESSEE IN TH IS REGARD WAS THAT IT WAS THE AMOUNT RECEIVED FROM CLIENTS. HOWEVER, THE ASSESSEE FAILED TO GIVE THE LIST OF SUCH PERSON S WHO HAD ADVANCED THE SAID CASH TO THE ASSESSEE. THE ASSESS EE EVEN FAILED TO BRING ON RECORD ANY EVIDENCE TO PROVE ITS STAND THAT IT WAS THE AMOUNT RECEIVED FROM SUCH PERSONS WHO WE RE HIS CLIENTS. THE ASSESSEE FAILED TO FILE ANY CONFIRMAT ION IN RESPECT OF THE SAID CASH CREDITS NOR ANY OF THE PER SONS WERE PRODUCED FOR EXAMINATION BEFORE THE ASSESSING OFFIC ER, THOUGH SPECIFIC DIRECTION IN THIS REGARD WAS GIVEN BY THE ASSESSING OFFICER WITHIN THE COURSE OF RECORDING OF STATEMENT OF THE ASSESSEE, DURING ASSESSMENT PROCEEDINGS. TH E ASSESSEE EVEN FAILED TO PRODUCE THE BOOKS OF ACCOUNT. IN TH E ABSENCE OF THE ASSESSEE HAVING DISCHARGED HIS ONUS OF PROVI NG THE IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF THE CASH TRANSACTION OF THE CASH CREDITS IN THE BANK ACCOUNT , WE FIND NO MERIT IN THE PLEA OF 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 EN TRIES, ONLY COMMISSION SHOULD BE INCLUDED AS INCOME OF THE ASSESSEE. ADMITTEDLY, WHILE RECORDING THE STATEMEN T DURING THE COURSE OF SURVEY, THE ASSESSEE HAD STATED THAT IT WAS ENGAGED IN THE BUSINESS OF GIVING ACCOMMODATION EN TRIES. HOWEVER, DURING THE COURSE OF ASSESSMENT PROCEEDING S, 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 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 ASSESSING OFFICER. HOWEVER, BEFORE CIT(APPEALS), A PLEA WAS RAISED THA T ONLY COMMISSION IS TO BE ADDED IN THE HANDS OF THE ASSES SEE IN VIEW OF VARIOUS JUDICIAL PRECEDENTS. A PERUSAL OF THE ORDER OF 11 THE CIT(APPEALS) DOES NOT REFLECT ANY FINDINGS ON T HIS ISSUE AND ISSUES ADDRESSED BY THE CIT(APPEALS) WERE WHETH ER PROVISIONS OF SECTION 68 ARE APPLICABLE AND IN THE ALTERNATIVE, WHETHER PEAK-CREDIT IS TO BE APPLIED IN THE HANDS O F THE ASSESSEE. THE ASSESSEE IN THIS GROUND OF APPEAL RA ISED BEFORE THE TRIBUNAL HAS NOT RAISED ANY SUCH ISSUE OF THE C OMMISSION INCOME BEING INCLUDED IN HIS HANDS. ONLY TWO ISSUE S HAVE BEEN RAISED; I.E. INVOKING OF PROVISIONS OF SECTION 68 OF THE ACT AND CONFIRMATION OF ADDITION OF RS.1055,260/-. THE ISSUE OF WHETHER THE ASSESSEE IS ENGAGED IN GIVING ACCOMM ODATION ENTRIES OR NOT IS A PURELY FACTUAL ISSUE WHICH HAS NOT BEEN RAISED BEFORE THE AUTHORITIES BELOW I.E. DURING THE COURSE OF ASSESSMENT PROCEEDINGS OR EVEN BEFORE THE CIT(APPEA LS), THE SAID ISSUE HAS NOT BEEN ADJUDICATED. THE PLEA OF T HE ASSESSEE OF ADMISSION OF SUCH NEW FACTUAL ISSUE IS NOT ADMIS SIBLE AT THIS STAGE OF ADJUDICATING OF THE APPEAL IN THE CAP TIONED YEARS. WE FIND NO MERIT IN THE SAID PLEA OF THE AS SESSEE AND THE SAME IS REJECTED. 26. WE ARE IN CONFORMITY WITH THE ORDER OF CIT(APPE ALS) IN HOLDING THAT THE PROVISIONS OF SECTION 68 OF THE AC T IN THE PRESENT SET OF FACTS AND CIRCUMSTANCES OF THE CASE ARE APPLICABLE AND WE UPHOLD THE ORDER OF CIT(APPEALS) IN THIS REGARD. 27. THE RELIANCE PLACED UPON BY THE ASSESSEE ON VAR IOUS CASE LAWS HAS BEEN REFERRED TO AND COMMENTED UPON B Y THE CIT(APPEALS) AND WE ARE IN CONFORMITY WITH THE FIND INGS OF CIT(APPEALS) IN THIS REGARD. 28. THE NEXT ISSUE RAISED IN THE PRESENT APPEALS IS IN RELATION TO THE APPLICABILITY OF PEAK CREDIT THEORY . IN THE FACTS OF THE PRESENT CASE, THE SAID PEAK CREDIT THE ORY IS NOT APPLICABLE AS THE ASSESSEE HAD DEPOSITED CASH IN TH E BANK ACCOUNT AND THEREAFTER, CHEQUES WERE ISSUED TO DIFF ERENT PARTIES. IT IS NOT A CASE WHERE CASH WAS DEPOSITED ON DIFFERENT DATES AND IN BETWEEN, THERE WERE CASH WIT HDRAWALS FROM THE BANK ACCOUNT. IT IS A CASE WHERE THERE AR E DEPOSITS IN CASH BUT AS AGAINST THE SAID CASH DEPOSITED, VAR IOUS CHEQUES WERE ISSUED AND THE ASSESSEE WAS UNABLE TO EXPLAIN THE SOURCE OF CASH DEPOSITED IN HIS BANK ACCOUNT. REJECTING THE THEORY OF PEAK CREDITS APPLIED BY THE ASSESSING OFFICER, WE REVERSE THE FINDINGS OF CIT(APPEALS) IN THIS REG ARD AND RESTORE THE ADDITION MADE BY THE ASSESSING OFFICER AT RS. 1,26,66,000/-. WE FIND SUPPORT FROM THE RATIO LAID DOWN BY THE HON'BLE ALLAHABAD HIGH COURT IN BHAIYA LAL SHYA M BEHARI V COMMISSIONER OF INCOME-TAX (SUPRA) WHEREIN THE COURT HELD AS UNDER : DURING THE ASSESSMENT YEAR IN QUESTION CERTAIN AMO UNT OF CASH CREDITS STANDING IN THE NAMES OF VARIOUS PERSO NS WERE ADDED IN THE INCOME OF THE APPLICANT BY INVOKING TH E PROVISION OF SECTION 68 OF THE ACT. BEFORE THE TRIB UNAL THE ALTERNATIVE PLEA WAS TAKEN BY THE APPLICANT THAT IN THE EVENT DEPOSIT/CASH CREDITS ARE TREATED TO BE UNEXPLAINED THEN ONLY PEAK CREDIT IS TO BE ADDED. THE SUBMISSION HAS BEEN NEGATIVED BY THE TRIBUNAL IN THE FOLLOWING WORDS : 12 '13. LET US SUPPOSE THAT IN THE ACCOUNT OF 'A', THE RE WAS SHOWN A DEPOSIT OF RS. 10,000 ON APRIL 1,1978, AND IN THE ACCOUNT OF 'B' THERE WAS A DEPOSIT OF RS. 10,000 ON DECEMBER 1, 1978. THE ASSESSEE HAS NOT ESTABLISHED THE GENUINENESS OF THESE TWO DEPOSITS. NOW ACCORDING TO THE ASSESSEE IN CASE THERE WAS A WITHDRAWAL OF RS. 10,0 00 IN THE ACCOUNT OF 'A' PRIOR TO THE DEPOSIT OF RS. 10,000 I N THE ACCOUNT OF 'B' THEN NO SEPARATE ADDITION SHOULD BE RESORTED TO ON ACCOUNT OF UNEXPLAINED DEPOSIT IN THE ACCOUNT OF 'B'. ACCORDING TO THE ASSESSEE, IT SHOULD BE PRESUMED TH AT THE DEPOSIT IN THE ACCOUNT OF 'B' WAS MADE OUT OF THE F UNDS WHICH WERE AVAILABLE TO THE ASSESSEE AFTER THE WITH DRAWAL OF THE AMOUNT FROM THE ACCOUNT OF 'A'. WE CANNOT SUBSC RIBE TO THIS POINT OF VIEW. ACCORDING TO US, IF THE ASSESSE E IS NOT ABLE TO PROVE THE GENUINENESS OF THE DEPOSIT IN THE ACCOUNT OF 'B', A SEPARATE ADDITION IN RESPECT OF THAT WILL BE REQUIRED TO BE MADE. AS PER THE PROVISIONS OF SECTION 68, WH ERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE A ND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT SA TISFACTORY, THE SUM SO CREDITED IS TO BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE. HENCE, IT IS FOR THE ASSESS EE TO ESTABLISH THE SOURCE OF THE DEPOSIT IN THE ACCOUNT OF 'B'. IF THE ASSESSEE ADMITS THAT THE ALLEGED DEPOSIT IN THE ACCOUNT OF 'A' WAS NOT GENUINE AND, IN FACT, IT WAS THE ASS ESSEE'S OWN MONEY WHICH HAD BEEN INTRODUCED IN THE BOOKS IN THE GARB OF A LOAN FROM 'A' AND HENCE WHEN THIS AMOUNT WAS AVAILABLE TO THE ASSESSEE FOR BEING INTRODUCED AS A FRESH DEPOSIT IN THE ACCOUNT OF 'B' THEN IT MAY BE POSSIB LE TO ACCEPT THE CONTENTION OF THE ASSESSEE. BUT IN CASE THE ASSESSEE ALL ALONG MAINTAINS THAT THE VARIOUS LOANS ARE GENUINE THEN WE FAIL TO UNDERSTAND AS TO HOW THE AS SESSEE CAN PUT FORWARD THE CLAIM THAT SEPARATE ADDITIONS F OR THE UNEXPLAINED CASH CREDIT IN DIFFERENT ACCOUNTS SHOUL D NOT BE MADE. WHEN THE ASSESSEE HIMSELF DOES NOT CONTEND TH AT THE DEPOSIT MADE IN THE ACCOUNT OF 'B' IS OUT OF PRIOR WITHDRAWAL MADE IN THE ACCOUNT OF 'A', HOW DOES THE ASSESSEE E XPECT THE DEPARTMENT TO SUBSCRIBE TO THIS POINT OF VIEW. WE H ENCE REJECT THIS CONTENTION OF THE ASSESSEE.' HEARD SRI KRISHNA AGRAWAL, LEARNED COUNSEL FOR THE APPLICANT AND SRI SHAMBHU CHOPRA LEARNED STANDING COUNSEL FOR THE REVENUE. THE APPLICANT SUBMITTED THAT AS THE AMOUNT OF CASH CREDIT HAS BEEN TREATED TO TAX BY INVOKING THE PROVISIONS OF SECTION 68 OF THE ACT AND THE SAID AMOUNT HAVE BEEN TREATED AS INCOME FROM THE UNEXPLAINED SOURCE, THE APPLICANT W AS ENTITLED TO TAKE UP A PLEA OF ADDITION OF THE AFORE SAID PEAK CREDIT AS THE ENTIRE DEPOSITS HAVE BEEN TREATED TO BE INCOME OF THE APPLICANT. THE CONTENTION IS WHOLLY MISCONCE IVED. FOR ADJUDICATING UPON THE PLEA OF PEAK CREDIT THE FACTU AL FOUNDATION HAS TO BE LAID BY THE ASSESSEE. HE HAS T O OWN ALL CASH CREDIT ENTRIES IN THE BOOKS OF ACCOUNT AND ONL Y THEREAFTER THE QUESTION OF PEAK CREDIT CAN BE RAISE D. AS IN THE PRESENT CASE THE AMOUNT OF CASH CREDITS WERE ST ANDING IN THE NAMES OF DIFFERENT PERSONS WHICH ALL ALONG THE APPLICANT HAD BEEN CLAIMING TO BE GENUINE DEPOSIT, WITHDRAWAL/PAYMENT OF THE AMOUNT TO DIFFERENT SET O F 13 PERSONS DURING THE PREVIOUS YEARS WOULD NOT AT ALL ENTITLE THE APPLICANT TO CLAIM BENEFIT OF PEAK CREDIT. IN THIS VIEW OF THE MATTER WE DO NOT FIND ANY LEGAL INFIRMITY IN THE ORDER OF THE TRIBUNAL. WE ANSWER THE AFORESA ID QUESTIONS REFERRED TO US IN THE NEGATIVE, I.E. IN F AVOUR OF THE REVENUE AND AGAINST THE ASSESSEE. THERE WILL BE HOW EVER, NO ORDER AS TO COSTS. OTHER INFORMATION IN FAVOUR OF REVENUE 29. THE GROUNDS OF APPEAL NO. 1(A) TO 1(C) RAISED B Y THE ASSESSEE ARE, THUS DISMISSED AND THE GROUNDS OF APPEAL RAISE D BY THE REVENUE ARE ALLOWED. 12. THE ISSUE RAISED IN THE PRESENT APPEAL IS IDENT ICAL TO THE ISSUE RAISED BEFORE THE TRIBUNAL (SUPRA) IN THE BUNCH OF APPEALS AND FOLLOWING THE SAME PARITY OF REASONING, WE DISMISS THE GROUND NOS. 2 TO 9 RAISED BY THE ASSESSEE. 13. THE ASSESSEE IN ITA NO. 18/CHD/2013 HAS RAISED GROUND NOS. 1 TO 8, WHICH ARE IDENTICAL TO GROUND NOS. 2 TO 9 RAI SED BY THE ASSESSEE IN ITA NO. 17/CHD/2013. AS THE ISSUE RAISED IN ITA NO. 18/CHD/2013 IS IDENTICAL TO THE ISSUE RAISED IN ITA NO. 17/CHD/ 2013, OUR DECISION IN ITA NO. 17/CHD/2013 SHALL APPLY MUTATIS-MUTANDIS TO THE APPEAL IN ITA NO. 18/CHD/2013. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE, THUS DISMISSED. 14. IN ITA NO. 19/CHD/2013, GROUND NO. 1 RAISED BY THE ASSESSEE IS AGAINST RE-OPENING OF ASSESSMENT UNDER SECTION 148 OF THE ACT AND THE SAME WAS NOT PRESSED BY THE ASSESSEE. HENCE, THE S AME IS DISMISSED AS NOT PRESSED. 15. THE ISSUE IN GROUND NOS. 2 TO 9 RAISED BY THE A SSESSEE IS IDENTICAL TO THE ISSUE RAISED IN ITA NO. 17/CHD/201 3 VIDE GROUND NOS. 2 TO 9. HENCE, OUR DECISION IN ITA NO. 17/CHD /2013 SHALL APPLY MUTATIS-MUTANDIS TO THE APPEAL IN ITA NO. 18/CHD/20 13. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE, THUS DISMISSE D. 14 16. IN ITA NO. 20/CHD/2013, THE ISSUE IN GROUND NOS . 1 TO 8 RAISED BY THE ASSESSEE IS IDENTICAL TO THE ISSUE RAISED IN ITA NO. 17/CHD/2013 VIDE GROUND NOS. 2 TO 9. HENCE, OUR DE CISION IN ITA NO. 17/CHD/2013 SHALL APPLY MUTATIS-MUTANDIS TO THE APPEAL IN ITA NO. 20/CHD/2013. THE GROUNDS OF APPEAL RAISED BY T HE ASSESSEE ARE, THUS DISMISSED. 17. IN THE RESULT, ALL THE APPEALS FILED BY THE ASS ESSEE I.E. ITA NOS. 17, 18, 19 & 20/CHD/2013 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 20 TH DAY OF SEPTEMBER, 2013. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 20 TH SEPTEMBER,2013 POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR BY ORDER ASSISTANT REGISTRAR, ITAT, CHANDIGARH