Sri Santanu Chatterjee, Burdwan V. ITO, Ward-1(2), Burdwan, Burdwan

ITA 1920/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1839 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 24-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 03-10-2016
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Keywords: Income from undisclosed sources; Peak credit; Deemed to accrue or arise in india; Additional evidence
• Section: 143(3); 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JM & DR. A.L.SAI NI, AM ./ ITA NO.1920/KOL/2016 ( / ASSESSMENT YEAR:2008-2009) SRI SANTANU CHATTERJEE, C/O BENU RADIO PRODUCT, BAIDYAPUR MORE, OPP.UTI BANK PO-KALNA, DIST-BURDWAN- 713101 VS. ITO WARD-1(2), BURDWAN AAYAKAR BHAWAN, COURT COMPOUND, BURDWAN ./ ./PAN/GIR NO.: AHHPC 8020 E ( /APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI SUVO CHAKRABORTY, ADVOCATE REVENUE BY : MD. GHAYAS UDDIN, JCIT / DATE OF HEARING : 24/04/2017 /DATE OF PRONOUNCEMENT 28/04/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAIN ING TO ASSESSMENT YEAR 2008-2009, IS DIRECTED AGAINST THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS), BURDWAN, IN A PPEAL NO.365/CIT(A)/ASL/WD-1(2)/BWN/2010-11, DATED 26.07. 2016, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFF ICER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 ( HEREINAFTER RE FERRED TO AS THE ACT), DATED 19.10.2010. 2. BRIEF FACTS OF THE CASE, QUA THE ASSESSEE ARE TH AT THE ASSESSEE FILED ITS RETURN OF INCOME ON 17.06.2008 DECLARING TOTAL INCOME AT RS.1,04,640/- . ASSESSEES CASE WAS SELECTED FOR SCRUTINY U/S.143 (2) OF THE ACT AND THE AO COMPLETED THE ASSESSMENT BY MAKING THE ADDITION ON ACCOUNT OF UNDISCLOSED INCOME U/S.69 AT RS.11,04,790/-. DURING THE ASSESSMENT PROCEEDINGS, IT HAD COME TO THE NOTICE OF THE AO TH AT THE ASSESSEE HAD ITA NO.1920/2016 SRI SANTANU CHATTERJEE 2 MADE CASH DEPOSIT OF RS.11,04,790/- IN AXIS BANK KA LANA BEARING ACCOUNT NO.323010100021757 BURDWAN. ACCORDINGLY, THE AO ISS UED A LETTER TO THE BANK U/S.133(6) OF THE I.T.ACT AND IN RESPONSE TO T HE NOTICE THE CONCERNED BANK HAD FORWARDED THE BANK STATEMENT OF THE SAID A CCOUNT FOR THE PERIOD 1 ST APRIL, 2007 TO 31.03.2008. THE SAID BANK ACCOUNT W AS NOT DISCLOSED BY THE ASSESSEE IN HIS ASSESSMENT. THE AO FOUND THAT T OTAL CASH DEPOSIT IN THE SAID BANK ACCOUNT WAS AT RS.11,04,790/- AND TO THAT EXTENT THE ASSESSEE DID NOT DISCLOSE THE INCOME, THEREFORE, TH E AO ADDED RS.11,04,790/- TREATING IT UNDISCLOSED INCOME U/S.6 9 OF THE I.T.ACT. 3. AGGRIEVED FROM THE ORDER OF THE AO THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A), WHO HAS CONFIRMED THE ADDITION M ADE BY THE AO. THE ASSESSEE SUBMITTED BEFORE LD. CIT(A) THAT HE USED T O WITHDRAW THE AMOUNT FROM THE CURRENT ACCOUNT OF PARTNERSHIP FIRM AND USED TO DEPOSIT THE SAID AMOUNT IN HIS PERSONAL BANK ACCOUNT BUT TH E LD. CIT(A) REJECTED THE CONTENTION OF ASSESSEE STATING THAT THERE SHOUL D HAVE BEEN A CORRELATION BETWEEN WITHDRAWALS FROM CURRENT ACCOUN T AND AXIS BANK DEPOSIT ON THE ONE HAND AND THE WITHDRAWALS FROM TH E AXIS BANK AND PURCHASES ON THE OTHER HAND. THESE WERE NOT ESTABLI SHED BY THE ASSESSEE BECAUSE THE ASSESSEE DID NOT HAVE ANY PURC HASE VOUCHERS OR BILLS AND EVEN THE PURCHASE REGISTER PRODUCED BY TH E ASSESSEE BEFORE THE LD. CIT(A) DID NOT SHOW ANY CORRELATION WHATSOEVER. HOWEVER, THE ASSESSEE HAS ADMITTED BEFORE THE LD. CIT(A) THAT TH E SAID BANK ACCOUNT IS AN UNDISCLOSED BANK ACCOUNT AND UNACCOUNTED MONEY , BUT THE ASSESSEE REQUESTED THE LD CIT(A) THAT HE SHOULD BE ALLOWED E ITHER BENEFIT OF PEAK ITA NO.1920/2016 SRI SANTANU CHATTERJEE 3 CREDIT OR MAY BE ALLOWED THE BENEFIT OF SECTION 44 AF, WHICH IS AVAILABLE TO RETAIL BUSINESSMEN. THE LD. CIT(A) HAS REFUSED T HE ASSESSEE TO PROVIDE ANY BENEFIT AND CONFIRMED THE ADDITION MADE BY THE AO. 4. BEING DISSATISFIED WITH THE ORDER PASSED BY THE LD. CIT(A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE US AND HAS TAK EN THE FOLLOWING GROUNDS OF APPEAL :- GROUNDS OF APPEAL BEFORE ITAT 1. FOR THAT NON CONSIDERATION OF PEAK CREDIT GROUND IS UNJUST AND CRYPTIC. 2. FOR THAT REJECTION OF PEAK CREDIT PLEA OF APPLIC ANT BY LD. CIT (A) IS CONTRARY TO SETTLED JUDICIAL PROPOSITION BY APEX CO URT IN SURENDRA M. KHANDAR CASE WHEREBY IF THERE IS ROTATION OF CASH D EPOSITS BY CONSECUTIVE DEPOSITS AND WITHDRAWALS AND NON APPLIC ATION OF SAID WITHDRAWALS FOR ANY EXTERNAL PURPOSE EXCEPT FOR DEP OSITS IN SAME ACCOUNT THEN PEAK CREDIT FACILITY IS AVAILABLE TO A PPLICANT. APPLICANT'S HAD FULL ROTATION OF THE SAID DEPOSIT. 3. FOR THAT THE APPELLATE AUTHORITY SHOULD HAVE CON SIDERED THE FACT THAT THE A.O. CANNOT ADD ENTIRE AMOUNT WITHOUT GIVI NG BENEFIT OF EXPENSES.THEREFORE, APPLICATION OF PEAK CREDIT IS B EST ATTENTIVE AND AS AFFIRMED IN C.I.T. VS U.S. NELLIAPAN, 66 ITR 722 (SC), SARWPCHAND KOJWAN VS C.I.T. 235 ITR 732 (KT), ACIT AHMADABAD VS IQBAL SHAFI MOHAMMAD CHIPPA, ITAT (AHM). 4. FOR THAT THE CASE DEPOSITS IN BANK ACCOUNT DURIN G THE YEAR UNDER CONSIDERATION INCLUDED THE PEAK CREDIT AND NONE OF THOSE DEPOSITS YIELDED DEEMED INCOME OF THE APPLICANT. 5. THE APPELLANT CRAVES LEAVE TO PRESS NEW, ADDITIO NAL GROUNDS OF APPEAL OR MODIFY, WITHDRAW ANY OF THE ABOVE GROUNDS AT THE TIME OF HEARING OF THE APPEAL. 5. ALTHOUGH IN THIS APPEAL, THE ASSESSEE HAS RAISED FIVE GROUNDS OF APPEAL BUT AT THE TIME OF HEARING THE MAIN GRIEVANC E OF THE ASSESSEE HAS BEEN CONFINED TO THE ISSUE THAT LD. CIT(A) ERRE D IN NOT ALLOWING THE APPEAL OF THE ASSESSEE EITHER BASED ON THE PEAK CREDIT THEORY OR BASED ON THE PROVISIONS OF SECTION 44AF OF THE ACT, I.E. LD. CIT(A) ITA NO.1920/2016 SRI SANTANU CHATTERJEE 4 REJECTED THE PEAK CREDIT PLEA OF THE ASSESSEE AND, THEREFORE, THE ASSESSEE IS IN APPEAL BEFORE US. 6. LD. AR FOR THE ASSESSEE HAS SUBMITTED BEFORE US THAT THE ASSESSEE HAS REQUESTED BEFORE THE LD. CIT(A) TO ALLOW THE AP PEAL BASED ON PEAK CREDIT OR BASED ON THE PROVISIONS OF SECTION 44AF O F THE ACT. THE ASSESSEE HAD ALREADY ADMITTED THAT THIS IS UNDISCLO SED BANK ACCOUNT AND AMOUNT DEPOSITED IN THE SAID BANK ACCOUNT WERE UNDI SCLOSED. HOWEVER, THE ASSESSEE HAS AGREED TO OFFER THE TAXATION ON UN DISCLOSED AMOUNT OF RS.11,04,790/- BASED ON THE PEAK CREDIT THEORY OR B ASED ON THE PROVISIONS OF SECTION 44AF OF THE ACT. LD. AR SUB MITTED THAT IF THERE IS ROTATION OF CASH DEPOSITS BY CONSECUTIVE DEPOSITS A ND WITHDRAWALS AND NON-APPLICATION OF SAID WITHDRAWALS FOR ANY EXTERNA L PURCHASE EXCEPT DEPOSITS IN SAME ACCOUNT THEN IN THAT CASE PEAK CRE DIT FACILITY IS AVAILABLE TO THE ASSESSEE. THE ASSESSEE UNDER CONSIDERATION H AD FILED ROTATION OF THE SAID DEPOSITS. BESIDES, THE AO CANNOT ADD ENTIR E AMOUNT WITHOUT GIVING BENEFITS OF EXPENSES, THEREFORE, APPLICATION OF PEAK CREDIT IS BEST ATTENTIVE AND AS AFFIRMED IN CIT VS. U.S.NELLIAPAN, 66 ITR 722 (SC). IN ADDITION TO THIS, LD. AR FOR THE ASSESSEE HAD RELIE D ON THE FOLLOWING JUDGMENTS :- I) IN THE CASE OF SHRI MADHO PRASHAD GUPTA, ITA NO.6695/DEL/2015 , ORDER DATED 02.09.2016; WHEREIN THE DELHI TRIBUNAL HELD THAT LD. CIT(A) IN THE INTEREST OF NA TURAL JUSTICE TAKEN THE PEAK CREDIT WHICH AS PER THE DETAILS FILE D BY THE LD. AR FOR THE ASSESSEE WHICH WORKS OUT TO RS.2,00,000/ - AND RIGHTLY TREATED AS INCOME FROM UNDISCLOSED SOURCES. ITA NO.1920/2016 SRI SANTANU CHATTERJEE 5 II) IN THE CASE OF SRI KAMLESH DUTTA, ITA NO.408/KO L/2015, ORDER DATED 21.09.2015, WHEREIN IT HAS BEEN HELD THAT IN THE INTEREST OF JUSTICE AND FAIRPLAY, TO SET ASIDE THIS ISSUE TO THE FILE OF THE LD. AO TO BRING TO TAX THE PEAK CREDIT IN TH E BANK ACCOUNT AND FRAME THE SET ASIDE ASSESSMENT AFTER DUE VERIFI CATION OF THE VERACITY OF THE WORKINGS OF PEAK CREDIT FURNISH ED BY THE ASSESSEE. THEREFORE, THE LD AR FOR THE ASSESSEE HAS SUBMITTED BEFORE US THAT THERE IS CLEAR EVIDENCE TO SHOW THE NATURE AND SOURCE OF THE MONIES DEPOSITED INTO THE BANK ACCOUNT WHICH BELONGS TO THE ASSESSEE , THE PEAK CREDIT WOULD ARISE ONLY IN THE CASE OF RECYCLING OF FUNDS, AND ASSESSEE IN FACT DOES THE RECYCLING OF FUNDS, WHICH WOULD THEREFORE, BE APPLICABLE IN THE CASE OF THE REGULAR AND SYSTEMATIC ACTIVITY AND THE REFORE THE ASSESSSEE IS ELIGIBLE TO CLAIM BENEFIT OF PEAK CREDIT THEORY. 7. ON THE OTHER HAND, LD. DR FOR THE REVENUE HAS ST ATED THAT THE ASSESSEE IS A PARTNER IN THE PARTNERSHIP FIRM AND T HE UNDISCLOSED BANK ACCOUNT WHICH WAS FOUND BY THE AO, DOES NOT RELATE TO BUSINESS OF THE ASSESSEE, IT IS THE UNDISCLOSED MONEY OF THE ASSESS EE. THE ARGUMENT OF THE ASSESSEE THAT HE USED TO WITHDRAW THE AMOUNT FR OM THE CURRENT ACCOUNT OF THE PARTNERSHIP FIRM AND USED TO DEPOSIT THE SAID AMOUNT IN HIS S/B BANK ACCOUNT, THE ASSESSEE HAS FAILED TO ESTABL ISH THE CORRELATION BETWEEN THE WITHDRAWAL AND CURRENT ACCOUNT AND DEPO SIT IN THE AXIS BANK (UNDISCLOSED BANK ACCOUNT). THE LD. DR ALSO SUBMITT ED THAT THIS UNDISCLOSED BANK ACCOUNT DOES NOT PERTAIN TO THE AS SESSEES BUSINESS, THEREFORE, THE ORDER PASSED BY THE AO SHOULD BE TRE ATED AS A FINAL ORDER. ITA NO.1920/2016 SRI SANTANU CHATTERJEE 6 APART FROM THIS, LD. DR FOR THE REVENUE HAS ALSO RE LIED ON THE FOLLOWING JUDGMENTS :- I) M.H.RANEY, [2013] 34 TAXMANN.COM 5 (MUMBAI-TRIB) :- 6. THE ISSUE WITH REGARD TO THE SATISFACTION OR OTH ERWISE OF THE ASSESSING OFFICER (AO) WITH THE ASSESSEE'S EXPLANAT ION AS TO THE NATURE AND SOURCE OF INVESTMENT FOUND TO HAVE BEEN MADE DURING THE RELEVANT YEAR, AS BY WAY OF DEPOSIT OF CASH IN HIS BANK ACCOUNT IN THE INSTANT CASE, IS ESSENTIALLY A MATTER OF FAC T, TO BE DECIDED CONSIDERING THE ENTIRETY OF THE FACTS AND CIRCUMSTA NCES OF THE CASE. IT IS THE REASONABLENESS OF THE SAID NON-SATISFACTI ON, SINCE CONFIRMED BY THE FIRST APPELLATE AUTHORITY, THAT WE ARE CALLED UPON TO EXAMINE IN THE APPELLATE PROCEEDINGS. THE ASSESSEE'S EXPLANATION IS VAGUE AND UNSUBSTANTI ATED; RATHER, BEING LIMITED TO THE WORKING OF THE QUANTUM OF THE UNEXPLAINED FUNDS INVOLVED, CONTENDING RECYCLING, SO AS TO IMPA CT THE ADDITION TO INCOME EXIGIBLE ON ACCOUNT OF THE UNEXPLAINED NATUR E AND SOURCE OF THE INVESTMENT. THE PEAK CREDIT THEORY IS BASED ON RECYCLING OF FUNDS, IMPLYING SYSTEMATIC ACTIVITY, WHILE NEITHER THE NATURE OF THE DEPOSITS NOR THEIR UTILIZATION, STANDS EXPLAINED, S O THAT THE PLEA IS NOT MAINTAINABLE AT THE THRESHOLD. SCRUTINY (OF THE BANK ACCOUNT STATEMENT) REVEALS IT TO BE INCONSISTENT WITH NOT O NLY THE EXPLANATION OF THE AMOUNTS BEING POSSIBLY USED FOR CHARITABLE P URPOSES, BUT ALSO WITH THE FACT OF THE SAME BEING, APART FROM WI THDRAWN IN CASH, ALSO BY CHEQUES FOR OSTENSIBLY PERSONAL PURPOSES, O N A REGULAR BASIS AND IN NO INSIGNIFICANT SUMS. FURTHER, THE PA TTERN OF WITHDRAWAL REVEALS THE ACCOUNT TO BE EMPLOYED FOR T RANSFER OF FUNDS IN THE MAIN, I.E., DEPOSIT OF CASH AT ONE PLACE AND ITS WITHDRAWAL AT OTHER; THE FUNDS BEING WITHDRAWAL ALMOST IN TOTO, A ND SOON AFTER THEIR DEPOSIT. THE ASSESSEE HAS BEEN WHOLLY UNABLE TO DIS CHARGE THE ONUS OF A SATISFACTORY EXPLANATION QUA CASH DEPOSIT S, INCLUDING THE QUANTUM OF FUNDS INVOLVED AND, ACCORDINGLY, ITS APP EAL FAILS. THE DECISION BY THE APEX COURT, IT MUST BE BORNE IN MIND, IS RENDERED IN THE CONTEXT OF A PENALTY PROVISION, WHI CH IS FIRST TO BE STRICTLY APPLIED AND, BESIDES, ITS TRITE THAT A PLA USIBLE EXPLANATION SAVES PENALTY. THIS WOULD EXPLAIN THE USE OF THE WO RDS 'REASONABLY ATTRIBUTABLE' OR 'REASONABLY EXPLAINED' BY IT. IT I S ALSO TO BE NOTED, AND CANNOT BE OVERLOOKED, THAT THIS IS NOT A CASE O F TELESCOPING IN ITS TRUE SENSE, BUT ONE OF APPLICATION OF PEAK CRED IT, TO DETERMINE THE QUANTUM OF THE SAME, SINGLE INCOME, WHILE THE TELES COPING IS NORMALLY OF THE USE OF FUNDS ATTRIBUTABLE TO ONE IN COME, AGAINST 'INCOME' WHEREIN IT FINDS REFLECTION IN SOME OTHER FORM. FOR EXAMPLE, AS WHERE THERE IS A SUPPRESSION OF THE SALES AND, C ORRESPONDINGLY, CERTAIN UNRECORDED TRADE DEBTORS ARE ALSO FOUND, AN D SO ON. FURTHER, WHILE THERE MAY BE NO DIRECT EVIDENCE WITH REGARD TO CONCEALED INCOME, SO THAT A REASONABLE VIEW - UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE WHICH, IN ANY CASE HAVE T O BE KEPT FOCUS ITA NO.1920/2016 SRI SANTANU CHATTERJEE 7 - HAS TO BE ADOPTED, THE PEAK CREDIT WOULD ARISE ON LY IN THE CASE OF RECYCLING OF FUNDS, WHICH WOULD, THEREFORE, BE APPL ICABLE ONLY IN THE CASE OF THE REGULAR AND SYSTEMATIC ACTIVITY. THE SA ID DECISION OR THE PEAK CREDIT HAS NO APPLICATION IN THE FACTS OF THE INSTANT CASE. THE OTHER CITED DECISIONS ARE RENDERED ON THEIR FACTS, AND IN FACT IN RATIO ENDORSE THE REVENUE'S CASE. 7. IN THE RESULT, THE ASSESSEE'S APPEAL IS DISMISSE D. II) MANOJ AGGARWAL, [2008] 113 ITD 377 (DELHI)(SB) :- 26. THE ARGUMENT ADVANCED ON BEHALF OF THE ASSESSE E BEFORE US WAS THAT THE ASSESSEE WAS NOT MAINTAINING ANY BOOKS OF ACCOUNT AND THE DEPOSITS WERE FOUND ONLY IN THE ASSESSEE'S BANK STATEMENT WHICH CANNOT BE CONSIDERED AS THE BOOKS OF ACCOUNT OF THE ASSESSEE AND, THEREFORE, SECTION 68 WAS NOT APPLICA BLE. OUR ATTENTION WAS DRAWN TO THE CONFIRMATION LETTERS PLA CED AT PAGES 159 AND 160 OF THE PAPER BOOK. WE ARE HOWEVER UNABLE TO ACCEPT THE ARGUMENT. THOUGH SECTION 68 OF THE ACT MAY NOT BE S TRICTLY APPLICABLE SINCE THE ASSESSEE WAS NOT MAINTAINING A NY BOOKS OF ACCOUNT AND THE BANK STATEMENT CANNOT BE CONSIDERED AS THE ASSESSEE'S BOOKS OF ACCOUNT, ON THE BASIS OF THE JU DGMENT OF THE SUPREME COURT IN THE CASE OF A. GOVINDARAIULU MUDAL IAR V. CIT 1958 34 ITR 807, IT IS THE ONUS OF THE ASSESSEE TO EXPLAIN THE CASH RECEIVED BY HIM AND IF THERE IS NO EXPLANATION OR A CCEPTABLE EVIDENCE TO PROVE THE NATURE AND SOURCE OF THE RECE IPT, THE AMOUNT MAY BE ADDED AS THE ASSESSEE'S INCOME ON GENERAL PR INCIPLES AND IT IS NOT NECESSARY TO INVOKE SECTION 68, NOR IS IT NECESSARY FOR THE INCOME-TAX AUTHORITIES TO POINT OUT THE SOURCE OF T HE MONIES RECEIVED. EVEN IF SECTION 68 IS NOT APPLICABLE, THE CASH DEPOSIT IN THE BANK CAN BE ASKED TO BE EXPLAINED BY THE ASSESS EE UNDER SECTION 69 OR SECTION 69B OF THE ACT. NO DOUBT THE ASSESSEE HAD TRIED TO FILE ADDITIONAL EVIDENCE BEFORE THE CIT (A PPEALS) IN THE FORM OF CONFIRMATION LETTERS AND INCOME-TAX RETURNS BUT THESE WERE NOT ADMITTED BY THE CIT (APPEALS) AND NO REASONS HAVE B EEN SHOWN BEFORE US AS TO WHY THEY SHOULD HAVE BEEN ADMITTED. I THE ABSENCE OF ANY CLINCHING EVIDENCE TO SHOW THE NATURE AND SO URCE OF THE MONIES DEPOSITED INTO THE BANK ACCOUNT WHICH BELONG S TO THE ASSESSEE, THE ASSESSING OFFICER WAS JUSTIFIED IN AD DING THE AMOUNT OF RS. 15 LAKHS AS THE ASSESSEE'S UNEXPLAINED INCOM E. WE CONFIRM THE ADDITION AND DISMISS THE GROUND. 6. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT IN THE SUBMI SSIONS OF LD. AR FOR THE ASSESSEE, AS LD AR FOR THE ASSESSEE EXPLAINED US THAT THERE IS C LEAR EVIDENCE TO SHOW THE NATURE AND SOURCE OF THE MONIES DEPOSIT ED INTO THE BANK ACCOUNT ITA NO.1920/2016 SRI SANTANU CHATTERJEE 8 WHICH BELONGS TO THE ASSESSEE, THE PEAK CREDIT WOUL D ARISE ONLY IN THE CASE OF RECYCLING OF FUNDS, AND ASSESSEE IN FACT DOES THE R ECYCLING OF FUNDS, WHICH WOULD THEREFORE, BE APPLICABLE IN THE CASE OF THE REGULAR AND SYSTEMATIC ACTIVITY AND THEREFORE THE ASSESSSEE IS ELIGIBLE TO CLAIM BE NEFIT OF PEAK CREDIT THEORY. THE JUDGMENTS CITED BY THE LD DR FOR THE REVENUE DO NOT APPLY TO THE ISSUE UNDER CONSIDERATION BECAUSE THE ASSESSEE DOES THE RECYCLING OF FUNDS. WE NOTICED THAT THE ASSESSEE HAS SUO MOTO ADMITTE D THAT BANK ACCOUNT NO.323010100021757, AXIZ BANK LTD. WAS UNDI SCLOSED BANK ACCOUNT AND THE DEPOSITS AND THE WITHDRAWALS FOR TH E SAID ACCOUNT ARE UNEXPLAINED. IN ORDER TO BUY THE PEACE THE ASSESSEE HAS SUO MOTO ADMITTED THAT HIS UNDISCLOSED BANK ACCOUNT SHOULD B E ASSESSED EITHER, AS PER THE PEAK CREDIT THEORY OR AS PER THE PROVISIONS OF SECTION 44AF OF THE ACT. WE ALSO NOTICED THAT IN THE BANK ACCOUNT THERE IS DEPOSITS AND WITHDRAWALS IN THE SAME ACCOUNT. CONSIDERING THE FA CTUAL POSITION WE DIRECT THE AO TO REASSESS THE DEPOSITS IN THE BANK ACCOUNT AS PER THE PEAK CREDIT THEORY. ACCORDINGLY, WE ALLOW THIS ISSU E FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS, ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28/ 04/2017. S D/ - (S.S.VISWANETHRA RAVI) SD/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; ! DATED 28/04/2017 ' $%& /PRAKASH MISHRA , 0 . / PS ITA NO.1920/2016 SRI SANTANU CHATTERJEE 9 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) % & , / ITAT, 1. / THE APPELLANT-SRI SANTANU CHATTERJEE 2. / THE RESPONDENT.- ITO, WARD-1(2) BURDWAN 3. 1 ( ) / THE CIT(A), KOLKATA. 4. 1 / CIT 5. 23 4 0056 , 56 , / DR, ITAT, KOLKATA 6. 4 78 / GUARD FILE. 2 0 //TRUE COPY//