Smt. Shobha Sharma, Ludhiana V. ITO, Ludhiana

ITA 22/CHANDI/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68426 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 05-08-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 07-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Peak credit; Accommodation entries
• Section: 143(3); 133A; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A, CHANDIGARH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NOS. 21 & 22/CHD/2013 (A.Y : 2006-07 & 2009-10) SMT. SHOBHA SHARMA, VS THE INCOME TAX OFFICE R, PROP. M/S B.K.COMMODITIES, WARD VI (3), 70, NEW LAJPAT NAGAR, LUDHIANA. LUDHIANA. PAN: ACSPS-8828E (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHGAL RESPONDENT BY : SHRI MANJIT SINGH DATE OF HEARING : 05.08.2013 DATE OF PRONOUNCEMENT : 23.08.2013 O R D E R PER SUSHMA CHOWLA, J.M. : THESE TWO APPEALS BY SAME ASSESSEE ARE FILED AGAINS T THE CONSOLIDATED ORDER OF COMMISSIONER OF INCOME-TAX-I LUDHIANA, DATED 19.10.2012 AGAINST THE ORDER PASSED UNDER SECTION 1 43(3) OF THE INCOME- TAX ACT, 1961. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN ITA NO.21/CHD/2013 READ AS UNDER: 1. THAT THE LEARNED CIT(A) HAS ERRED IN NOT GIVING HI S FINDINGS REGARDING REOPENING THE CASE BY THE ASSESSING OFFIC ER AND ISSUING NOTICE U/S 148 OF THE INCOME TAX ACT, 1961. 2. THAT NOTWITHSTANDING THE ABOVE SAID GROUND OF APPEA L, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER IN ASSESSING INCOME AT RS.3,49,78,090/- AGA INST THE RETURNED INCOME OF RS.1,51,885/- ALREADY ASSESSED. 2 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 RET URN SHOWING INCOME FROM ABOVE SAID SOURCES HAS BEEN FILED AND ASSESSED 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 CONSIDERIN G THAT ONCE THE LEARNED ASSESSING OFFICER HAS ACCEPTED AND ASSE SSED THE APPELLANT'S SOURCE OF INCOME AS SUB-BROKER/DEALER IN COMMODITIE S, HE IS NOT JUSTIFIED TO ASSESS THE CASH DEPOSITS IN BANKS AS APPELLANT'S INCOME TWICE. 5. THAT NOTWITHSTANDING THE ABOVE SAID GROUND OF APPEA L, THE LEARNED CIT(A) HAS ERRED TO CONSIDER THAT THE ASSES SING OFFICER HAS FAILED TO TAKE THE NOTICE OF THE STATEMENT OF THE SUDHIR KUMA R SHARMA (KARTA) AS RECORDED DURING THE COURSE OF SURVEY CONDUCTED AT T HE BUSINESS PREMISES OF THE ASSESSEE ON 31.10.2007, WHEREIN HE HAD CATEG ORICALLY STATED THAT WE ARE ENGAGED ONLY IN GIVING THE ACCOMMODATION ENT RIES TO VARIOUS PERSONS AND AT BEST ONLY COMMISSION TO THE TUNE OF 0.05% SHOULD HAVE BEEN ASSESSED AGAINST THE ADDITION OF ALL THE DEPOS ITS IN THE BANK ACCOUNT OF THE ASSESSEE. 6. THAT THE LEARNED CIT(A) HAS ERRED TO CONSIDER THAT THE ASSESSING OFFICER HAS FAILED TO TAKE THE NOTICE OF THE FACT T HAT THE ASSESSEE DOES NOT HAVE ANY IMMOVABLE/MOVABLE PROPERTY AND NO WORTHWHILE SO URCES TO ENABLE HIM TO DEPOSIT THE HUGE CASH IN HIS BANK ACCOUNT. 7. THAT THE LEARNED CIT(A) HAS ERRED TO CONSIDER THAT THE ASSESSING OFFICER HAS FAILED TO TAKE THE NOTICE OF THE JUDGME NT OF JURISDICTIONAL BENCH OF THE INCOME TAX APPELLATE TRIBUNAL I.E. CHANDIGAR H BENCH IN THE CASE OF SHRI B K JAIN, WHEREIN UNDER THE SIMILAR FACTS AND CIRCUMSTANCES, THE ASSESSMENT HAD BEEN FRAMED IN HIS HANDS AND ONLY CO MMISSION HAS BEEN ASSESSED ON THE TOTAL DEPOSITS MADE IN HIS BANK ACC OUNT, SINCE HE WAS ENGAGED IN PROVIDING THE ACCOMMODATION ENTRIES TO V ARIOUS PERSONS AND THE SAME ARE FACTS IN THE PRESENT CASE. 8 THAT NOTWITHSTANDING THE ABOVE SAID GROUND OF A PPEAL, IT IS SUBMITTED THAT EVEN OTHERWISE, THE LEARNED CIT(A) HAS ERRED T O CONSIDER THAT THE ACTION OF THE ASSESSING OFFICER TO ASSESS ALL THE C ASH DEPOSITS IN BANK ACCOUNTS WITHOUT CONSIDERING THE PEAK FIGURE OF BAN K DEPOSITS IS NOT JUSTIFIED. 9. THAT THE ACTION OF THE LEARNED CIT(A) IN WITHHO LDING THE ADDITION MADE BY THE ASSESSING OFFICER IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 10. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AME ND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOSED OFF. 3. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN ITA NO.22/CHD/2013 READ AS UNDER : 1. THAT NOTWITHSTANDING THE ABOVE SAID GROUND OF A PPEAL, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ORDER OF THE ASSESSING 3 OFFICER IN ASSESSING INCOME AT RS.3,97,78,460/- AGA INST THE RETURNED INCOME OF RS.1,05,810/- ALREADY ASSESSED. 2. 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 JUSTIFICATI ON IN ASSESSING THE SAME UNDER SECTION 68 OF THE ACT. 3. THAT THE LEARNED CIT(A) HAS ERRED IN NOT CONSIDE RING THAT ONCE THE LEARNED ASSESSING OFFICER HAS ACCEPTED AND ASSE SSED THE APPELLANT'S SOURCE OF INCOME AS SUB-BROKER/DEALER IN COMMODITIE S, HE IS NOT JUSTIFIED TO ASSESS THE CASH DEPOSITS IN BANKS AS APPELLANT'S INCOME TWICE. 4. THAT NOTWITHSTANDING THE ABOVE SAID GROUND OF AP PEAL, THE LEARNED CIT(A) HAS ERRED TO CONSIDER THAT THE ASSES SING OFFICER HAS FAILED TO TAKE THE NOTICE OF THE STATEMENT OF THE SUDHIR KUMA R SHARMA (KARTA) AS RECORDED DURING THE COURSE OF SURVEY CONDUCTED AT T HE BUSINESS PREMISES OF THE ASSESSEE ON 31.10.2007, WHEREIN HE HAD CATEG ORICALLY STATED THAT WE ARE ENGAGED ONLY IN GIVING THE ACCOMMODATION ENT RIES TO VARIOUS PERSONS AND AT BEST ONLY COMMISSION TO THE TUNE OF 0.05% SHOULD HAVE BEEN ASSESSED AGAINST THE ADDITION OF ALL THE DEPOS ITS IN THE BANK ACCOUNT OF THE ASSESSEE. 5. THAT THE LEARNED CIT(A) HAS ERRED TO CONSIDER TH AT THE ASSESSING OFFICER HAS FAILED TO TAKE THE NOTICE OF THE FACT T HAT THE ASSESSEE DOES NOT HAVE ANY IMMOVABLE/MOVABLE PROPERTY AND NO WORTHWHILE SO URCES TO ENABLE HIM TO DEPOSIT THE HUGE CASH IN HIS BANK ACCOUNT. 6. THAT THE LEARNED CIT(A) HAS ERRED TO CONSIDER TH AT THE ASSESSING OFFICER HAS FAILED TO TAKE THE NOTICE OF THE JUDGME NT OF JURISDICTIONAL BENCH OF THE INCOME TAX APPELLATE TRIBUNAL I.E. CHANDIGAR H BENCH IN THE CASE OF SHRI B K JAIN, WHEREIN UNDER THE SIMILAR FACTS AND CIRCUMSTANCES, THE ASSESSMENT HAD BEEN FRAMED IN HIS HANDS AND ONLY CO MMISSION HAS BEEN ASSESSED ON THE TOTAL DEPOSITS MADE IN HIS BANK ACC OUNT, SINCE HE WAS ENGAGED IN PROVIDING THE ACCOMMODATION ENTRIES TO V ARIOUS PERSONS AND THE SAME ARE FACTS IN THE PRESENT CASE. 7. THAT NOTWITHSTANDING THE ABOVE SAID GROUND OF AP PEAL, 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 T HE CASH DEPOSITS IN BANK ACCOUNTS WITHOUT CONSIDERING THE PEAK FIGURE OF BAN K DEPOSITS IS NOT JUSTIFIED. 9. THAT THE ACTION OF THE LEARNED CIT(A) IN WITHHOLDIN G THE ADDITION MADE BY THE ASSESSING OFFICER IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 10. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOS ED OFF. 4. BOTH THE APPEALS RELATING TO THE ASSESSEE ON SIM ILAR ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY CONSOLI DATED ORDER FOR THE SAKE OF CONVENIENCE. 4 5. THE LD. AR FOR THE ASSESSEE, AT THE OUTSET POINT ED OUT THAT THOUGH SEVERAL GROUNDS OF APPEAL HAVE BEEN RAISED, BUT ALL THE SAID GROUNDS OF APPEAL RELATE TO ONE ISSUE OF ESTIMATION OF INCOME OF THE ASSESSEE ON THE BASIS OF CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE. THE LD. AR FOR THE ASSESSEE FAIRLY ADMIT TED THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS DECIDED AGAINST THE ASSESSEE BY THE TRIBUNAL IN ASSESSEE'S OWN CASE VIDE ORDER DATED 27 .06.2013. THE LD. DR FOR THE REVENUE PLACED RELIANCE ON THE ORDER OF THE TRIBUNAL IN ASSESSEE'S OWN CASE RELATING TO ASSESSMENT YEAR 200 7-08. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE APPEALS RELATING TO ASSESSMENT YEAR 2006-07 AND 2009-10 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE ACT WHICH WAS CONFIRMED BY THE CIT(APPEALS), HAS BEEN FILED BY THE ASSESSEE. THE ISSUE ARISING IN BOTH THE APPEALS IS IN RELATION TO THE ADDITIONS MADE BY THE ASSESSING OFFICER BY INVOKING THE PROVISIONS OF SEC TION 68 OF THE INCOME-TAX ACT. DURING THE YEAR UNDER CONSIDERATIO N, THERE WERE CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE, FOR WHICH THE ASSESSEE WAS UNABLE TO FURNISH COMPLETE INFORMATION AND CONSEQUENTLY, THE SAID DEPOSITS WERE TREATED AS INC OME OF THE ASSESSEE IN VIEW OF THE PROVISIONS OF SECTION 68 OF THE ACT. 7. WE FIND THAT IDENTICAL ISSUE IN RESPECT OF CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE AROSE BEFORE THE TRIBU NAL IN BUNCH OF APPEALS WITH LEAD ORDER IN ITA NO. 713/CHD/2010 REL ATING TO ASSESSMENT YEAR 2007-08 IN THE CASE OF SHRI SUDHIR KUMAR SHARMA AND ALSO IN THE CASE OF THE ASSESSEE RELATING TO AS SESSMENT YEAR 2007- 08 IN ITA NOS. 712/CHD/2010 IN THE APPEAL FILED BY THE ASSESSEE AND IN ITA NO. 962/CHD/2010 IN THE APPEAL FILED BY THE REVENUE AGAINST 5 THE ASSESSEE. THE TRIBUNAL VIDE ORDER DATED 27.06. 2003 AFTER DELIBERATING UPON THE ISSUE VIDE PARAS 16 TO 28 HEL D AS UNDER : 16. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED 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 31.3.2007. THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION HAD FURNISHED RETURN OF INCOME DECLAR ING TOTAL INCOME OF RS.161,680/- FILED ON 01.11.2007. SURVEY U/S 133A OF THE ACT WAS CONDUCTED ON THE PREMISES O F THE ASSESSEE ON 31.10.2007 AND THE STATEMENT OF THE ASS ESSEE WAS RECORDED ON 31.10.2007. THE COPY OF THE STATEM ENT OF THE ASSESSEE RECORDED DURING THE COURSE OF SURVEY I S PLACED ON RECORD. A PERUSAL OF THE SAID STATEMENT REFLECT S THAT THE CLAIM OF THE ASSESSEE DURING SURVEY WAS THAT M/S SU PER FINVEST (P) LTD. WAS SUB-BROKER BY LSE SECURITIES L TD. AND ALSO WORKING AS SHARE BROKER. IN RESPECT OF M/S BI G BULL COMMODITIES P.LTD. AND M/S BEST BUY COMMODITIES P.L TD., THE ASSESSEE STATED THAT THESE WERE ENGAGED IN ACCOMMODATION ENTRIES; M/S SHUBH KRISHNA COMMODITIE S P.LTD. WAS STATED TO BE ENGAGED IN COMMODITY TRADIN G AND AS SUB-BROKER ON COMMISSION BASIS. IT WAS CLAIMED B Y THE ASSESSEE THAT IT WAS ENGAGED IN GIVING ACCOMMODATIO N ENTRIES. 17. THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRU TINY AND STATEMENT OF THE ASSESSEE WAS RECORDED ON 14.12 .2009. IN REPLY TO THE QUERIES RAISED BY THE ASSESSING OFF ICER 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 PROVIDED TO THE ASSESSING OFFICER ON THE NEXT DATE OF HEARING. THE ASSESSING OFFICER REQUISITIONED THE AS SESSEE TO PRODUCE ATLEAST 10 PERSONS WHO HAD DEPOSITED RS. ON E LAC AND ABOVE IN THE BANK ACCOUNT. THE ASSESSEE REPLIE D 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 PERSONS DEPOSITED THE CASH IN YO UR BANK, THE REPLY OF THE ASSESSEE WAS CASH IS RECEI VED FROM CUSTOMERS AND THE SAME IS DEPOSITED IN BANK. IN V IEW OF THE COMMODITIES EXCHANGE, THE ASSESSEE EXPLAINED TH AT THE LUDHIANA COMMODITIES EXCHANGE CHARGE TRANSACTION CHARGES FROM THE ASSESSEE AT THE RATES DEPENDING ON TURNOVER. THE CONCERN M/S SHUBH KRISHNA, WHICH WAS THE PROPRIETOR CONCERN OF THE HUF OF THE ASSESSEE, WAS CLAIMED TO BE REGISTERED WITH LUDHIANA COMMODITIES 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 CONCER NS OWNED BY THE ASSESSEE, IT WAS EXPLAINED THAT IN CAS E OF ONE OR TWO TRANSACTIONS, THE COMMODITY EXCHANGE ENTRY WAS THROUGH THE EXCHANGE AND THE BALANCE ENTRIES WERE C LIENT TO CLIENT, WHICH WERE PERMISSIBLE AS COMMERCIAL TRANSA CTION, 6 AS PER PREVALENT MARKET TRENDS. THE ASSESSEE CLAIM ED THAT SODA CONFIRMATION SLIP VOUCHERS IN RESPECT OF COMMO DITIES TRANSACTION WERE BEING MAINTAINED BY THE ASSESSEE, WHICH WOULD BE PROVIDED ON THE NEXT DATE OF HEARING. THE STATEMENTS WWAS AGAIN CONTINUED ON 21.12.2009 AND T HE PLEA OF THE ASSESSEE WAS THAT IT HAD NOT BROUGHT AN Y RECORD OR ANY PERSONS TO BE PRODUCED ALONGWITH HIMSELF ON THE SAID DATE OF HEARING, AS HE HAD COME FOR RECORDING OF HIS STATEMENT. IN THE STATEMENT SO RECORDED, IN RESPEC T OF VARIOUS CASH CREDITS/DEPOSITS IN THE BANK ACCOUNTS IN THE NAME OF DIFFERENT COMPANIES IN WHICH HE WAS THE DIRECTOR/PROPRIETOR, THE ASSESSEE WAS ASKED TO GIVE THE 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 ASSESSING OFFICER FURTHER NOTED THAT WHILE RECORDIN G THE STATEMENT, THE ASSESSEE WAS ASKED TO PRODUCE 10 PER SONS FOR VERIFICATION AND THE ASSESSEE FAILED TO PRODUCE ANY PERSON FOR VERIFICATION NOR ANY CONFIRMATION WAS FILED BY THE ASSESSEE. THE ASSESSEE HAD FAILED TO DISCHARGE THE INITIAL BURDEN CAST UPON HIM TO PROVE GENUINENESS OF THE AM OUNTS CREDITED IN HIS BOOKS OF ACCOUNT I.E. BY PROVING TH E IDENTITY OF THE PERSONS, WHO HANDED OVER THE CASH TO THE ASS ESSEE OR PRODUCTION OF THE RELEVANT BOOKS OF ACCOUNT WHERE N AME, ADDRESS AND TRANSACTIONS ENTERED BY THEM WERE REFLE CTED NOR FURNISHING ANY DETAILS OF SUCH PERSONS WHO HAD GIVE N HIM THE CASH AND EVEN CREDIT WORTHINESS OF THE PERSONS GIVING CASH COULD NOT BE PROVED. THE ASSESSEE HAD FAILED T O FILE THE REQUISITE DETAILS DURING THE ASSESSMENT PROCEEDINGS . THE ASSESSING OFFICER, THUS HELD THAT IN VIEW THEREOF, WHETHER THE CASH DEPOSITS BELONG GENUINELY TO THE CUSTOMERS OR IT BELONGED TO THE ASSESSEE, COULD NOT BE ASCERTAINED, RESULTING IN THE GENUINENESS OF THE TRANSACTIONS BE ING NOT PROVED. IT WAS ALSO A FINDING OF THE ASSESSING OFF ICER, THAT ONLY CASH DEPOSITS WERE MADE IN THE BANK ACCOUNT AN D THERE WERE NO CASH WITHDRAWALS FROM THE SAID BANK. THE OUTGOINGS WERE ONLY CHEQUES WHICH WERE UNVERIFIABLE . THE ASSESSEE HAD FAILED TO CORROBORATE THE CASH DEPOSIT WITH ANY EVIDENCE OF THE IDENTITY OF THE DEPOSITOR OR ANY OT HER EVIDENCE. THE ASSESSING OFFICER, THUS MADE ADDITIO N OF RS.126,66,000/-. 19. THE PLEA BEFORE THE CIT(APPEALS) RAISED BY THE ASSESSEE WAS TWO-FOLD I.E. THE PROVISIONS OF SECTIO N 68 WERE NOT TO BE APPLIED AND IT BEST THE ADDITION COULD BE RESTRICTED TO THE PEAK CREDITS. THE CIT(APPEALS) UPHELD THE P EAK CREDIT THEORY TO BE APPLIED TO THE FACTS OF THE CAS E AND RESTRICTED THE ADDITION TO RS.10,55,260/-. THE CIT( APPEALS) HOWEVER, IN PRINCIPLE HELD THAT THE ASSESSING OFFIC ER WAS 7 CORRECT IN HOLDING THAT THE ABOVESAID ADDITIONS WER E MAINTAINABLE IN VIEW OF THE PROVISIONS OF SECTION 6 8 OF THE ACT. 20. THE ASSESSEE IS IN APPEAL BEFORE US IN RESPECT OF BOTH THE INVOKING OF PROVISIONS OF SECTION 68 IN TH E PRESENT CASE AND ALSO AGAINST THE ADDITION OF RS.10,55,260/ -. THE REVENUE IS AGGRIEVED BY THE APPLICATION OF PEAK CRE DIT THEORY IN THE HANDS OF THE ASSESSEE AND SECOND, REL IEF 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 FACTS OF THE PRESENT CASE. DURING THE COURSE OF SU RVEY CONDUCTED U/S 133A OF THE ACT ON 31.10.2007, IN THE STATEMENT RECORDED, THE ASSESSEE ADMITTED TO BE ENG AGED IN THE BUSINESS OF GIVING ACCOMMODATION ENTRIES. THE MODUS- OPERANDI EXPLAINED DURING THE COURSE OF SURVEY WAS THAT THE ASSESSEE WAS RECEIVING THE AMOUNT IN CASH AND THE S AME WERE BEING RETURNED VIDE CHEQUES THROUGH BANK ACCOU NTS. HOWEVER, DURING THE COURSE OF ASSESSMENT PROCEEDING S, THE STATEMENT OF THE ASSESSEE WAS AGAIN RECORDED WHEREI N WHEN CONFRONTED WITH THE BANK STATEMENT OF M/S BIG BULL COMMODITIES PVT. LTD. WITH CENTURIAN BANK, PAKHOWAL ROAD, LUDHIANA IN WHICH HUGE CASH WAS DEPOSITED BY VARIOUS ENTRIES, THE ASSESSEE IN REPLY STATED THAT THE CASH WAS DEPOSITED AS PER BOOKS OF ACCOUNT ON BEHALF OF THE CLIENTS. VIDE QUERY NO.8, THE ASSESSEE WAS ASKED T O PROVIDE THE NAMES AND ADDRESSES OF THE CUSTOMERS/CLIENTS WH O HAD DEPOSITED THESE AMOUNTS. THE REPLY OF THE ASSESSEE IN THIS REGARD WAS, IF DETAILS ARE THERE, I WILL CHECK FRO M BOOKS OF ACCOUNT AND PROVIDE THE SAME. THE ASSESSEE, THERE AFTER WAS DIRECTED TO PRODUCE ATLEAST 10 PERSONS WHO HAD DEPOSITED RS.1 LAC AND ABOVE IN THE BANK ACCOUNT. THE ASSESSEE EXPLAINED THAT HE WILL VERIFY FROM RECORD AND LET THE ASSESSING OFFICER KNOW ABOUT IT. IN REPLY TO Q UERY NO.10, THE ASSESSEE CLAIMED THAT CASH IS RECEIVED F ROM CUSTOMERS AND SAME IS DEPOSITED IN BANK. THE PLEA OF THE ASSESSEE BEFORE THE ASSESSING OFFICER WAS THAT HE W AS 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/TRAD ERS 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 8 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. 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 COMMODITIES EXCHANGE AND REST ALL THE CONCERNS WERE THE BRANCHES OR TRADERS OF M/S SHUBH KRISHNA COMMODITIE S. IN RESPECT OF THE CASH DEPOSIT IN THE BANK ACCOUNT OF ONE OF THE CONCERN, THE ASSESSEE STATED THAT IT HAD RECEIV ED CASH FROM VARIOUS PARTIES AND THE SAME WAS AS PER THE BO OKS OF ACCOUNT. THE CASE OF THE ASSESSEE WAS THAT IT WAS RECEIVING CASH FROM ITS CLIENTS. BUT BEFORE THE ASS ESSING OFFICER IT WAS NOT THE CASE OF THE ASSESSEE THAT IT WAS ENGAGED IN PROVIDING ACCOMMODATION ENTRIES. IN RES PECT OF THE ENTRIES NOT BEING THROUGH THE EXCHANGE, THE ASSESSEE CLAIMED THAT CLIENT TO CLIENT TRANSACTIONS WERE PER MISSIBLE AS COMMERCIAL TRANSACTIONS. THE STATEMENT WAS CONT INUED ON 21.12.2009 AND AS PER QUERY NO.24, THERE WAS A SPECIFIC QUERY RAISED TO EXPLAIN VARIOUS CASH CREDITS/DEPOSITS IN THE BANK ACCOUNTS OF DIFFERENT 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 T HE 9 STATEMENT, THE ASSESSEE STATED THAT HE WOULD FURTHE R EXPLAIN RELATING TO THE CASH, DURING THE COURSE OF ASSESSMENT PROCEEDINGS. HOWEVER, THE ASSESSEE FAIL ED TO PRODUCE THE BOOKS OF ACCOUNT NOR GIVE ANY EXPLANATI ON VIS- -VIS THE SOURCE OF CASH DEPOSITS IN THE BANK ACCOU NT. IN THE ABSENCE OF ANY EXPLANATION OR ANY EVIDENCE BEIN G PRODUCED BY THE ASSESSEE. THE ONUS CAST UPON THE AS SESSEE NOT BEING DISCHARGED, THE SAID CASH CREDITS 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 EXPLANAT ION OFFERED BY HIM IS NOT, IN THE OPINION OF THE ASSESSING OFFICER, SATIS FACTORY, 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 EXPLANATIO N OFFERED BY SUCH ASSESSEE-COMPANY SHALL BE DEEMED TO BE NOT SATISFAC TORY, UNLESS ( A ) THE PERSON, BEING A RESIDENT IN WHOSE NAME SUCH C REDIT IS RECORDED IN THE BOOKS OF SUCH COMPANY ALSO OFFERS AN EXPLANATION AB OUT 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 A PPLY IF THE PERSON, IN WHOSE NAME THE SUM REFERRED TO THERE IN IS RECORDED, IS A VENTURE CAPITAL FUND OR A VENTURE CAPITAL COMPANY A S 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 W AS UPON THE ASSESSEE TO EXPLAIN NATURE AND ALSO THE SOURCE OF THE 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 10 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 ENTRIES, ONLY COMMISSION SHOULD BE INCLUDED AS INCO ME 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 THE CIT(APPEALS) DOES NOT REFLECT ANY FINDINGS O N THIS 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 APPLIED I N THE HANDS OF THE ASSESSEE. THE ASSESSEE IN THIS GROUND OF AP PEAL RAISED BEFORE THE TRIBUNAL HAS NOT RAISED ANY SUCH ISSUE O F THE COMMISSION INCOME BEING INCLUDED IN HIS HANDS. ONL Y TWO ISSUES HAVE BEEN RAISED; I.E. INVOKING OF PROVISION S OF SECTION 68 OF THE ACT AND CONFIRMATION OF ADDITION OF RS.10 55,260/-. 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 BELOW I. E. DURING THE COURSE OF ASSESSMENT PROCEEDINGS OR EVEN BEFORE THE CIT(APPEALS), THE SAID ISSUE HAS NOT BEEN ADJUDICAT ED. THE PLEA OF THE ASSESSEE OF ADMISSION OF SUCH NEW FACTU AL ISSUE IS NOT ADMISSIBLE 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(APPE ALS) IN HOLDING THAT THE PROVISIONS OF SECTION 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. 27. THE RELIANCE PLACED UPON BY THE ASSESSEE ON VAR IOUS CASE LAWS HAS BEEN REFERRED TO AND COMMENTED UPON B Y THE 11 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 PERSONS WE RE ADDED IN THE INCOME OF THE APPLICANT BY INVOKING THE PROVISION O F SECTION 68 OF THE ACT. BEFORE THE TRIBUNAL THE ALTERNATIVE PLEA WAS T AKEN BY THE APPLICANT THAT IN THE EVENT DEPOSIT/CASH CREDITS AR E TREATED TO BE UNEXPLAINED THEN ONLY PEAK CREDIT IS TO BE ADDED. T HE SUBMISSION HAS BEEN NEGATIVED BY THE TRIBUNAL IN THE FOLLOWING WOR DS : '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 A CCOUNT OF 'B' THERE WAS A DEPOSIT OF RS. 10,000 ON DECEMBER 1, 1978. TH E ASSESSEE HAS NOT ESTABLISHED THE GENUINENESS OF THESE TWO DEPOSI TS. NOW ACCORDING TO THE ASSESSEE IN CASE THERE WAS A WITHDRAWAL OF R S. 10,000 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'. ACCORDIN G TO THE ASSESSEE, IT SHOULD BE PRESUMED THAT THE DEPOSIT IN THE ACCOUNT OF 'B' WAS MADE OUT OF THE FUNDS WHICH WERE AVAILABLE TO THE ASSESSEE A FTER THE WITHDRAWAL OF THE AMOUNT FROM THE ACCOUNT OF 'A'. WE CANNOT SU BSCRIBE TO THIS POINT OF VIEW. ACCORDING TO US, IF THE ASSESSEE 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, WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE AND THE ASSESSEE OFFERS NO EXPLANATION ABO UT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT SATISFACTORY, THE SUM SO CREDITED IS TO BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE. HENCE, IT IS FOR THE ASSESSEE TO ESTABLIS H THE SOURCE OF THE DEPOSIT IN THE ACCOUNT OF 'B'. IF THE ASSESSEE ADMI TS THAT THE ALLEGED DEPOSIT IN THE ACCOUNT OF 'A' WAS NOT GENUINE AND, IN FACT, IT WAS THE ASSESSEE'S OWN MONEY WHICH HAD BEEN INTRODUCED IN T HE 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 DEPOSI T IN THE ACCOUNT OF 'B' THEN IT MAY BE POSSIBLE TO ACCEPT THE CONTENTIO N OF THE ASSESSEE. BUT IN CASE THE ASSESSEE ALL ALONG MAINTAINS THAT THE V ARIOUS LOANS ARE GENUINE THEN WE FAIL TO UNDERSTAND AS TO HOW THE AS SESSEE CAN PUT 12 FORWARD THE CLAIM THAT SEPARATE ADDITIONS FOR THE U NEXPLAINED CASH CREDIT IN DIFFERENT ACCOUNTS SHOULD NOT BE MADE. WH EN THE ASSESSEE HIMSELF DOES NOT CONTEND THAT THE DEPOSIT MADE IN T HE ACCOUNT OF 'B' IS OUT OF PRIOR WITHDRAWAL MADE IN THE ACCOUNT OF 'A', HOW DOES THE ASSESSEE EXPECT THE DEPARTMENT TO SUBSCRIBE TO THIS POINT OF VIEW. WE HENCE REJECT THIS CONTENTION OF THE ASSESSEE.' HEARD SRI KRISHNA AGRAWAL, LEARNED COUNSEL FOR THE APPLICANT AND SRI SHAMBHU CHOPRA LEARNED STANDING COUNSEL FOR THE REV ENUE. THE APPLICANT SUBMITTED THAT AS THE AMOUNT OF CASH CREDIT HAS BEEN TREATED TO TAX BY INVOKING THE PROVISIONS OF SECTIO N 68 OF THE ACT AND THE SAID AMOUNT HAVE BEEN TREATED AS INCOME FROM TH E UNEXPLAINED SOURCE, THE APPLICANT WAS ENTITLED TO TAKE UP A PLE A OF ADDITION OF THE AFORESAID PEAK CREDIT AS THE ENTIRE DEPOSITS HAVE B EEN TREATED TO BE INCOME OF THE APPLICANT. THE CONTENTION IS WHOLLY M ISCONCEIVED. FOR ADJUDICATING UPON THE PLEA OF PEAK CREDIT THE FACTU AL FOUNDATION HAS TO BE LAID BY THE ASSESSEE. HE HAS TO OWN ALL CASH CRE DIT ENTRIES IN THE BOOKS OF ACCOUNT AND ONLY THEREAFTER THE QUESTION O F PEAK CREDIT CAN BE RAISED. AS IN THE PRESENT CASE THE AMOUNT OF CAS H CREDITS WERE STANDING IN THE NAMES OF DIFFERENT PERSONS WHICH AL L ALONG THE APPLICANT HAD BEEN CLAIMING TO BE GENUINE DEPOSIT, WITHDRAWAL/PAYMENT OF THE AMOUNT TO DIFFERENT SET O F PERSONS DURING THE PREVIOUS YEARS WOULD NOT AT ALL ENTITLE THE APP LICANT 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 AFORESAID QUES TIONS REFERRED TO US IN THE NEGATIVE, I.E. IN FAVOUR OF THE REVENUE A ND AGAINST THE ASSESSEE. THERE WILL BE HOWEVER, NO ORDER AS TO COS TS. OTHER INFORMATION IN FAVOUR OF REVENUE 8. THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THE FACTS BEFORE THE TRIBUNAL IN THE EARLIER CASE AND FOLLOWING THE SAME PARITY OF REASONING AND AS ADMITTED BY BOTH THE AUTHORIZED RE PRESENTATIVES, WE CONFIRM THE ORDER OF CIT(APPEALS) IN HOLDING THAT T HE PROVISIONS OF SECTION 68 OF THE ACT ARE APPLICABLE TO THE FACTS A ND CIRCUMSTANCES OF THE CASE IN TURN UPHOLDING ADDITION OF RS.3.49 CROR ES IN ASSESSMENT YEAR 2006-07 AND RS. 3.97 CRORES IN ASSESSMENT YEAR 2009-10. IN VIEW THEREOF, THE GROUNDS OF APPEAL RAISED BY THE A SSESSEE IN BOTH THE APPEALS ARE, THUS DISMISSED. 9. THE ASSESSEE IN ITA NO. 21/CHD/2013 VIDE GROUND NO. 1 HAS RAISED THE ISSUE AGAINST RE-OPENING OF ASSESSMENT A ND ISSUE OF NOTICE 13 UNDER SECTION 148 OF THE INCOME-TAX ACT. HOWEVER, THE LD. AR FOR THE ASSESSEE FAILED TO ADDRESS THE SAID ISSUE BEFOR E US AND AS SUCH THE SAME IS ALSO DISMISSED AS NOT PRESSED. 10. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF AUG., 2013. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 23 RD AUG.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