Vivek S. Dhoble, Pune V. Deputy Commissioner of Income-tax,

ITA 1948/PUN/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1627 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 02-02-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 03-11-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUDHANSHU SHEKHAR
• Keywords: Opportunity of being heard; Peak credit
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE . . , BEFORE SHRI R.K. PANDA, AM . / ITA NO.1948/PN/2014 / ASSESSMENT YEAR : 2008-09 SHRI VIVEK S. DHOBLE, 9/10, 3 RD FLOOR, HINDUSTAN VIHAR, SALUNKE VIHAR ROAD, KONDHWA, PUNE 411 040 PAN NO. ALEPD 1366R . / APPELLANT V/S DCIT, CIRCLE - 2(3), PUNE . / RESPONDENT / APPELLANT BY : SHRI NIKHIL PATHAK / RESPONDENT BY : SHRI SUDHANSHU SHEKHAR / ORDER PER R.K.PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 23-09-2014 OF THE CIT(A) CENTRAL, PUNE RELATING TO ASSESSMENT YEAR 2008-09. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL ENGAGED IN THE ACTIVITY OF TRADING IN SHARES. A SEARCH U/ S.132 OF THE I.T. ACT WAS CONDUCTED AT HIS RESIDENTIAL PREMISES ON 26- 03-2008. THE ASSESSEE FILED HIS RETURN OF INCOME ON 09-07-2009 DEC LARING TOTAL INCOME OF RS.1,37,290/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO OBSERVED FROM THE BANK STATEMENTS OF THE ASSESSEE THAT HUGE CASH DEPOSITS WERE MADE IN THE YEA R UNDER CONSIDERATION. HE, THEREFORE, ASKED THE ASSESSEE TO EXPLA IN THE SOURCE OF THESE CASH DEPOSITS. THE AO OBSERVED THAT DURING TH E COURSE OF / DATE OF HEARING :14.06.2016 / DATE OF PRONOUNCEMENT:30.06.2016 2 ITA NO.1948/PN/2014 SEARCH, THE ASSESSEE, IN HIS STATEMENT RECORDED ON OATH U/S.132(4) ON 26-03-2008, HAD STATED THAT HE HAD NOT MAINTAINED ANY CASH BOOK FOR WHICH HE HAS DISCLOSED AN AMOUNT OF RS.5 LAKHS. HOWEVER, T HE ASSESSEE IN HIS RETURN FILED HAS NOT HONOURED THE SAID DIS CLOSURE. HE, THEREFORE, ASKED THE ASSESSEE TO EXPLAIN AS TO WHY THE AMOUNT OF RS.5 LAKHS SHOULD NOT BE ADDED. IT WAS SUBMITTED BY THE ASS ESSEE THAT ALTHOUGH HE HAS SURRENDERED AN AMOUNT OF RS.5 LAKHS IN H IS STATEMENT RECORDED U/S.132(4), HOWEVER, THE ANSWER WAS GIVEN UNDER TREMENDOUS MENTAL PRESSURE AND WITHOUT REALIZING THE FACT THAT THE SAID CASH WAS AVAILABLE WITH HIM WHICH WAS WITHDRAWN FROM HIS BANK ACCOUNT IN BANK OF MAHARASHTRA. THE ASSESSEE ENCLOSED THE STATEMENT SHOWING THE DEPOSITS AND WITHDRAWALS FROM THE BANK WITH BANK OF MAHARASHTRA AND IN THE CASE OF MRS. MEENA DHOB ALE. IT WAS EXPLAINED THAT THE ASSESSEE WAS HAVING SUFFICIENT CASH IN H AND AS ON THE DATE OF SEARCH. THEREFORE, THERE IS NO NECESSITY TO CONSIDER THIS AS AN INCOME ONLY ON THE BASIS OF HIS STATEMENT RECORDED DURING THE COURSE OF SEARCH. IT WAS FURTHER EXPLAINED THAT THE DEC LARATION PER SE SHOULD NOT BE CONSIDERED AS CONCLUSIVE UNLESS THE AO POS SESSED ANY OTHER DOCUMENTARY EVIDENCE AND SUCH DECLARATION ALONE SHOULD NOT BE THE BASIS FOR MAKING AN ADDITION PARTICULARLY WHEN THE AS SESSEE PROVES THE SOURCE OF DEPOSIT MADE IN THE BANK. THE DEC ISION OF HONBLE SUPREME COURT IN THE CASE OF VINOD SOLANKI VS. U NION OF INDIA WAS CITED BEFORE THE AO. 3. THE ASSESSEE ALSO SUBMITTED HIS CASH BOOK EXPLAINING T HE CASH DEPOSITS IN THE 2 BANK ACCOUNTS, VIZ. AXIS BANK LTD. AND B ANK OF MAHARASHTRA. IT WAS FURTHER SUBMITTED THAT THE TOTAL DEP OSITS IN THE 2 BANK ACCOUNTS AMOUNT TO RS.8,89,000/-. 3 ITA NO.1948/PN/2014 4. HOWEVER, THE AO WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE. HE OBSERVED THAT THE ASSESSEE DURING T HE ASSESSMENT PROCEEDINGS HAS INDICATED THE AMOUNT OF SOURCE OF THE DE POSITS IN THE BANK ACCOUNT AS HIS OPENING CASH BALANCE AVAILABLE WITH HIM , WITHDRAWALS FROM BANK AND LOAN FROM HIS MOTHER MRS. MEENA DHOBALE. AS REGARDS THE CLAIM THAT OPENING CASH WAS AVA ILABLE WITH THE ASSESSEE THE AO NOTED THAT THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE. HE WAS A SALARIED EMPLOYEE BEFORE HE SHIFTED TO PUNE. THEREFORE, THE CHANCE OF ANY SUBSTANTIAL CASH BALANCE W ITH HIM IS UNLIKELY. FURTHER, HE HAD BANK ACCOUNTS AT MUMBAI. THER EFORE, THE POSSIBILITY OF HIS MAINTAINING SUBSTANTIAL CASH IN HAND IS ALSO UNLIKELY. AS REGARDS THE EXPLANATION THAT CASH WITHDRAWA L FROM BANK WAS AVAILABLE WITH HIM FOR DEPOSITING IN THE BANK ACCOUNT IS CONCERNED, THE AO REJECTED THE SAME ON THE GROUND TH AT THE ASSESSEE IN HIS STATEMENT RECORDED ON 26-03-2008 HAD STATED TH AT THE CASH WITH HIM WAS ALSO USED FOR PURCHASE OF SHARES AND MUTUAL FUNDS AND ALSO FOR INCURRING HOUSEHOLD EXPENDITURE BESIDES DEPOSITING IN HIS AND HIS WIFES BANK ACCOUNTS. HE FURTHER OBSERVED THAT IN ASSESSEES CASH BOOK THE REGULAR HOUSEHOLD EXPENDITURE IS NOT REFLEC TED AT ALL DURING F.Y. 2007-08. 5. AS REGARDS THE CONTENTION OF THE ASSESSEE THAT HE HAS OBTAINED CASH LOAN FROM HIS MOTHER MRS. MEENA DHABOLE IS CONCERNED , THE AO NOTED THAT SOME CHEQUES WERE ALSO RECEIVED FROM MRS. ME ENA DHABOLE. THEREFORE, IT IS STRANGE AS TO WHY MRS. MEENA DH ABOLE HAS WITHDRAWN CASH FROM HER BANK ACCOUNT AND HAS GIVEN CAS H LOAN TO THE ASSESSEE, WHO INTURN HAS AGAIN DEPOSITED THE CASH IN HIS BANK ACCOUNT. ACCORDING TO THE AO MRS. MEENA DHABOLE COULD H AVE GIVEN LOAN THROUGH CHEQUES WHICH COULD HAVE BEEN DIRECTLY DEP OSITED IN 4 ITA NO.1948/PN/2014 ASSESSEES BANK ACCOUNT. HE FURTHER OBSERVED THAT TH E ASSESSEE WAS SPECIFICALLY ASKED AT THE TIME OF SEARCH AS TO WHETHER HE HAS ACCEPTED ANY LOAN FROM ANYONE AND THE ASSESSEE IN HIS REPLY HAS STATED THAT HE HAS NOT TAKEN ANY LOAN FROM ANYONE. THEREFORE, THE AO H ELD THAT THE EXPLANATION OF THE ASSESSEE THAT HE HAS OBTAINED CASH LO AN FROM HIS MOTHER IS AN AFTERTHOUGHT AND CANNOT BE ACCEPTED. AS REGARDS THE EXPLANATION OF THE ASSESSEE THAT HE WAS UNDER TREMENDO US PRESSURE DURING THE RECORDING OF STATEMENT AND DID NOT REALIZE THA T THE SAID CASH WAS WITH HIM FROM BANK WITHDRAWALS IS CONCERNED, THE AO NOTED THAT THE SEARCH WAS CONDUCTED AND STATEMENT WAS REC ORDED ON 26-03- 2008. THE ASSESSEE FILED HIS RETURN OF INCOME ON 09-07-2 009. THUS, THE ASSESSEE DID NOT EXPLAIN THE SOURCE EVEN AFTER LAPS E OF SO MANY MONTHS. IT WAS THE RESPONSIBILITY OF THE ASSESSEE TO BRING IT TO THE NOTICE OF THE DEPARTMENT AS SOON AS HE RECONCILED THE C ASH BUT THE ASSESSEE HAS FAILED TO DO SO. DISTINGUISHING THE DECISION O F HONBLE SUPREME COURT IN THE CASE OF VINOD SOLANKI AND REJECTING THE EXPLANATION GIVEN BY THE ASSESSEE THE AO MADE ADDITION O F RS.5 LAKHS TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED CASH. 6. THE ASSESSEE CHALLENGED THE ADDITION MADE BY THE AO BEFORE CIT(A) AND REITERATED THE SAME SUBMISSIONS AS MADE BEFOR E THE AO. RELYING ON VARIOUS DECISIONS IT WAS ARGUED THAT THE ADDIT ION MADE BY THE AO IS UNJUSTIFIED AND SHOULD BE DELETED. 7. HOWEVER, THE CIT(A) ALSO WAS NOT SATISFIED WITH THE EXPLA NATION GIVEN BY THE ASSESSEE AND UPHELD THE ACTION OF THE AO B Y OBSERVING AS UNDER : 6 . 3 I HAVE GIVEN CAREFUL CONSIDERATION TO THE FACTS BE FORE ME FIND THAT THE APPELLANT HIMSELF HAD ADMITTED HIS INABILITY TO E XPLAIN THE AMOUNT IN HIS STATEMENT RECORDED AT THE TIME OF SEARCH . AS REGARDS THE EVIDENTIARY VALUE OF STATEMENTS RECORDED UNDER SECTION 132 (4) , IN HOTEL KIRAN V . ACIT 5 ITA NO.1948/PN/2014 THE JURISDICTIONAL BENCH OF THE HON . ITAT HAS HELD THAT EVEN IN GENERAL LAW IT IS A SETTLED POSITION THAT ADMISSION BY A PERSON IS A GOOD PIECE OF EVIDENCE BECAUSE A PERSON MAKING A STATEMENT STOPS THE O PPOSITE PARTY FROM MAKING FURTHER INVESTIGATION . IT WAS FURTHER NOTED THAT A STATEMENT RECORDED UNDER SECT I ON 132(4) OF THE INCOME TAX ACT STANDS ON AN EVEN STRONGER FOOTING SINCE LEGISLATURE IN ITS WISDOM HAS PROV IDED THAT SUCH A STATEMENT MAY BE USED IN EVIDENCE IN ANY PROCEEDINGS U NDER T HE ACT . THEREFORE , THE ITAT HAD NOTED , GREAT EVIDENTIARY VALUE HAS BEEN ATTACHED TO SUCH A STATEMENT . THE LEGISLATURE WAS WE LL AWARE THAT UNDER THE GENERAL LAW MERE ADMISSION MAY NOT BE CONCLUSIVE ONE. THE INCOME-TAX ACT IS A SPECIFIC ACT AND ASSESSMENT HAS TO BE MADE ON THE BASIS OF MATERIAL GATHERED BY THE ASSESSING OFFICER. FOR THIS PUR POSE, VAST POWERS HAVE BEEN CONFERRED ON THE INCOME-TAX AUTHORITIES FO R MAKING INVESTIGATION INCLUDING THE POWERS OF SEARCH. IF IN TH E COURSE OF SUCH SEARCH , THE ASSESSEE MAKES SOME ADMISSION , HE DEBARS THE AUTHORISED O F FICER FROM MAKING FURTHER INVESTIGATION . IN VIEW OF THIS, LEGISLATURE IN ITS WISDOM HAS PROVIDED THAT SUCH STATEMENT CAN BE USED IN E VIDENCE AND THE ASSESSMENT CAN BE MADE ON THE BASIS OF SUCH STATEMENT . SIMILARLY, IN KANTILAL C. SHAH V. ACIT THE AHMEDABAD BENCH HELD T HAT A STATEMENT UNDER SECTION 132(4) IS EVIDENCE IN ITSELF AND A RETRA CTION CONTRARY TO THAT SHOULD BE SUPPORTED BY STRONG EVIDENCE TO DEMONSTRATE THAT THE EVIDENCE RECORDED WAS UNDER COERCION . IT WAS ALSO HELD THAT ' THE QUESTION OF EVIDENTIARY VALUE OF A STATEMENT RECORDED UNDER SECTI ON 132(4) IS NO MORE RES INTEGRA. WHEN AN ASSESSEE HAD MADE A S T ATEMENT OF FACTS , HE CAN HAVE NO GRIEVANCE IF HE IS TAXED IN ACCORDANCE WITH THA T STATEMENT . ' . IN SUDARSHAN P . AMIN V . ACIT THE HON . GUJARAT HIGH COURT UPHELD THAT THE ASSESSEE HAD ESTOPPED THE INVESTIGAT I NG AUTHORITY FROM PROBING FURTHER INTO THE INVESTMENT MADE BY THE ASSESSEE ON ACCOUNT OF H IS ADMISSION IN HIS STATEMENT UNDER SECTION 132(4), AND UPHELD THE ORD ER OF THE CIT(A) CONFIRMING THE ASSESSMENT ORDER. THE MUMBAI BENCH ALSO H AS UPHELD THE SANCTITY OF STATEMENT UNDER SECTION 132(4) IN ARVIND M . KARIYA V . CIT. THE HON . TRIBUNAL HELD THAT RETRACT I ON FROM A STATEMENT MADE UNDER SECTION 132(4) WAS CLEARLY AGA I NST THE RULE OF ESTOPPEL AS PROVIDED UNDER THE EVIDENCE ACT BECAUSE BELIEVING ON THE TRUTH OF T HE STATEMENT MADE BY THE ASSESSEE , THE DEPARTMENT CHANGED ITS P OSITION TO ITS DETRIMENT, AND, THEREFORE THE ASSESSEE IS ESTOPPED FROM DENYING FROM THE TRUTH OF HIS STATEMENT EARLIER MADE . 6 . 4 I ALSO NOTE THAT THE EXPLANATION ADVANCED BY THE A PPELLANT WAS FAR FROM SATISFACTORY SINCE THE SOURCE OF THE CASH STATED TO HAVE BEEN WITHDRAWN IT ITSELF NOT CLEAR AND THERE IS NOTHING TO INDICATE THAT IT REPRESENTED INCOME ON WHICH TAX HAD BEEN PAID. 6.5 CONSIDERING THE ABOVE FACTUAL AND LEGAL POSITION AS WELL AS THE VARIOUS OTHER FACTS POINTED OUT BY THE LD. AO IN HIS O RDER, I DO NOT FIND ANY MERIT IN THE APPELLANTS CONTENTION UNDER THESE T HREE GROUNDS OF APPEAL AND ACCORDINGLY DISMISS THE SAME. 8. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6 ITA NO.1948/PN/2014 9. THE LD. COUNSEL FOR THE ASSESSEE STRONGLY OBJECTED T O THE ORDER OF THE CIT(A). HE SUBMITTED THAT NO DOUBT THE ASSESSEE IN HIS STATEMENT RECORDED U/S.132(4) HAD ADMITTED AN AMOUNT O F RS.5 LAKHS AS UNDISCLOSED INCOME BEING THE VARIOUS CASH DEPOSITS MAD E IN THE BANK ACCOUNT. HOWEVER, HE RETRACTED FROM THE ABOVE ST ATEMENT BY NOT DISCLOSING THE SAME IN THE RETURN OF INCOME ON THE GROUND THAT HE HAD SUFFICIENT SOURCE TO EXPLAIN THE CASH DEPOSITS. HE SUB MITTED THAT THE CASH DEPOSITS MADE INTO THE BANK ACCOUNT ARE OUT OF CERTAIN WITHDRAWALS FROM THE SAID BANK ACCOUNT, LOAN FROM VARIOUS P ERSONS AND THE OPENING CASH AVAILABLE WITH HIM. REFERRING TO PAGES 20 TO 25 OF THE PAPER BOOK HE SUBMITTED THAT THE CASH BOOK PRE PARED BY THE ASSESSEE FROM 01-02-2007 TO 31-03-2008 SHOWS THE ENT IRE TRANSACTIONS AND THE MAXIMUM PEAK IS ONLY RS.2,04,428/-. THEREFORE, AT THE BEST ONLY AN AMOUNT OF RS.2,04,428/- CA N BE ADDED TO THE TOTAL INCOME OF THE ASSESSEE AND NOT RS.5 LAKHS A S MADE BY THE AO AND UPHELD BY THE CIT(A). HE ACCORDINGLY SUBMITTED T HAT THE ADDITION SUSTAINED BY THE CIT(A) AMOUNTING TO RS.5 LAKHS BE REDUCED TO RS.2,04,428/-. 10. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER H AND WHILE SUPPORTING THE ORDER OF THE CIT(A) SUBMITTED THAT THE ISS UE OF PEAK CREDIT WAS NOT RAISED BEFORE THE LOWER AUTHORITIES. THE AS SESSEE IS MAKING A NEW PLEA, THEREFORE, THE SAME SHOULD NOT BE ACCE PTED AND THE ADDITION SUSTAINED BY THE CIT(A) SHOULD BE UPHELD. 11. THE LD. COUNSEL FOR THE ASSESSEE IN HIS REJOINDER SUB MITTED THAT THE ADDITION WAS MADE MERELY ON THE BASIS OF THE STATEM ENT RECORDED U/S.132(4). HE SUBMITTED THAT THIS FACT WAS ALSO CLARIFIED BEFO RE THE AO. REFERRING TO THE DECISION OF THE PUNE BENCH OF THE TR IBUNAL IN THE CASE OF JYOTICHAND BHAICHAND SARAF AND SONS PVT. LTD. VS . DCIT 7 ITA NO.1948/PN/2014 REPORTED IN 139 ITD 10 HE SUBMITTED THAT THE TRIBUNAL IN THE SAID DECISION HAS HELD THAT ALTHOUGH ADMISSION MADE U/S.132(4) IS AN IMPORTANT PIECE OF EVIDENCE, THE SAME IS NOT CONCLUSIVE AND THE ASSESSEE CAN RETRACT FROM IT BY SHOWING THAT IT WAS MA DE UNDER MISTAKEN BELIEF OF FACT OR LAW. 12. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PA PER BOOK FILED ON BEHALF OF THE ASSESSEE. I HAVE ALSO CONSIDERED THE D ECISIONS CITED BEFORE ME. I FIND DURING THE COURSE OF SEARCH THE ASSESS EE IN HIS STATEMENT RECORDED U/S.132(4) HAD ADMITTED UNDISCLOSED I NCOME OF RS.5 LAKHS ON ACCOUNT OF VARIOUS CASH DEPOSITS MADE IN TH E BANK ACCOUNTS. SINCE THE ASSESSEE DID NOT OFFER THE SAID AMOU NT IN THE RETURN FILED THE AO, REJECTING THE VARIOUS EXPLANATIONS GIV EN BY THE ASSESSEE, MADE ADDITION OF RS.5 LAKHS BEING UNEXPLAINED CAS H DEPOSITS. IN APPEAL THE LD.CIT(A) HAS UPHELD THE ADDITION. 13. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESS EE THAT THE AO MADE ADDITION MERELY ON THE BASIS OF STATEMENT RECOR DED U/S.132(4) WITHOUT HAVING ANY CORROBORATIVE EVIDENCE. IT IS ALSO THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT SUFFICIEN T CASH WAS AVAILABLE WITH HIM TO EXPLAIN THE SOURCE OF CASH DEPOSIT S. IN ANY CASE, THE PEAK CREDIT IS ONLY RS.2,04,428/- WHICH CAN BE A DDED TO THE TOTAL INCOME OF THE ASSESSEE AND NOT RS.5 LAKHS AS MADE BY THE AO AND UPHELD BY THE CIT(A). 14. I FIND SOME FORCE IN THE ABOVE SUBMISSION OF THE LD. C OUNSEL FOR THE ASSESSEE. I FIND THAT AN AMOUNT OF RS.5 LAKHS WAS AD DED BY THE AO ON THE GROUND THAT THE ASSESSEE WAS UNABLE TO EXP LAIN THE SOURCE OF CASH DEPOSITS IN THE BANK ACCOUNT AND THAT HE HAS A DMITTED IN HIS 8 ITA NO.1948/PN/2014 STATEMENT RECORDED U/S.132(4) DURING THE COURSE OF SEARC H OF UNDISCLOSED INCOME OF RS.5 LAKHS. I FIND THE PUNE BENCH OF T HE TRIBUNAL IN THE CASE OF JYOTICHAND BHAICHAND SARAF AND SON S PVT. LTD. (SUPRA) HAS HELD THAT ALTHOUGH ADMISSION MADE U/S.13 2(4) IS AN IMPORTANT PIECE OF EVIDENCE, HOWEVER, THE SAME IS NOT CONC LUSIVE AND THE ASSESSEE CAN RETRACT FROM IT BY SHOWING THAT IT WAS MADE UNDER MISTAKEN BELIEF OF FACT OR LAW. IT IS THE SUBMISSION OF THE LD . COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAS SUFFICIENT CASH B ALANCE AVAILABLE WITH HIM FOR THE DEPOSITS WHICH IS OUT OF THE WITH DRAWALS FROM THE BANK ACCOUNTS ON PREVIOUS OCCASIONS, LOAN OBTAI NED FROM MOTHER AND THE CASH BALANCE. IN ANY CASE THE PEAK CR EDIT IS ONLY RS.2,04,428/- AND NOT RS.5 LAKHS AS MADE BY THE AO AND U PHELD BY THE CIT(A). IN OUR OPINION, IF THE ASSESSEE CAN EXPLAIN THAT THE DEFICIT IS ONLY RS.2,04,428/- AND FOR THE BALANCE AMOUNT SOURCE IS AVAILABLE, THEN ADDITION CAN BE CONFINED TO THE DEFICIT PORTION ONLY. HOWEVER, THIS NEEDS TO BE VERIFIED AT THE LEVEL OF THE AO BECAUSE THE ASSESSEE FO R THE FIRST TIME IS RAISING THIS PLEA AND HAS FILED THE WORKING OF SUCH PEAK DEPOSITS. 15. THE ARGUMENT OF THE LD. DEPARTMENTAL REPRESENTATIVE THAT THIS NEW PLEA OF THE ASSESSEE SHOULD NOT BE ACCEPTED IN OUR OPINION IS NOT CORRECT. IN MY OPINION, AN ASSESSEE IS LIABLE TO PAY TAX ONLY TO THE EXTENT ON WHICH HE IS UNABLE TO EXPLAIN THE SOURCE AND H E IS NOT LIABLE TO PAY TAX TO THE EXTENT TO WHICH THE ASSESSEE IS IN A POSITION TO EXPLAIN THE SOURCE. IN VIEW OF THE ABOVE AND CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE, I DEEM IT PROPER TO RESTORE T HIS ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO VERIFY THE CLAIM OF THE ASSES SEE THAT THE PEAK DEFICIT IS ONLY RS.2,04,428/-, AND IF SO, RESTRICT THE DISA LLOWANCE TO THE ABOVE AMOUNT. THE AO SHALL DECIDE THE ISSUE AS P ER FACT AND 9 ITA NO.1948/PN/2014 LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASS ESSEE. I HOLD AND DIRECT ACCORDINGLY. THE GROUND RAISED BY THE ASSES SEE IS ACCORDINGLY PARTLY ALLOWED FOR STATISTICAL PURPOSES. 16. AS REGARDS THE GROUND RELATING TO INTEREST U/S.234B AND 234C IS CONCERNED, THE SAME IS MANDATORY AND CONSEQUENTIAL AND THEREFORE THIS GROUND BY THE ASSESSEE IS DISMISSED. 17. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PART LY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30-06-2016. SD/- ( R.K. PANDA ) ACCOUNTANT MEMBER PUNE ; DATED : 30 TH JUNE, 2016. '# $# / COPY OF THE ORDER FORWARDED TO : / BY ORDER , // TRUE COPY // // $ % //TRUE &' % * / SR. PRIVATE SECRETARY *, / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT (A) CENTRAL, PUNE 4. 5. 6. THE CIT CENTRAL, PUNE $ %%*, *, SMC BENCH / DR, ITAT, SMC BENCH PUNE; 2 / GUARD FILE.