Shri Nareshbhai Gordhanbhai Nakrani, Surat V. The Income Tax Officer, Ward-7(4), Surat

ITA 2966/AHD/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6032 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 03-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 13-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIV SEVA K
• Assessee Lawyers: M K PATEL
• Keywords: Principle of natural justice; Peak credit; Onus to prove; Bogus loan
• Section: 68; 143(3); 142(1)

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JM, AND SHRI MANISH BORAD, AM ./ITA.NO.2966/AHD/2013 ( / ASSTT YEAR :2008-09) NARESHBHAI GORDHANBHAI NAKRANI, B-52-53, RUPALI SOCIETY, FULPADA, ASHWANIKUMAR ROAD, SURAT-395006 PAN: ADNPN5930E VS. THE INCOME TAX OFFICER, WARD-7(4), SURAT. (APPELLANT) (RESPONDENT) / APPELLANT BY: SHRI M.K. PATEL, A.R / RESPONDENT BY: SHRI SHIV SEVAK, SR. D.R / DATE OF HEARING 03-05-2017 /DATE OF PRONOUNCEMENT 05-05-2017 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-V, SURAT DATED 25.10.2013 ARISING OUT OF THE ORDER U/S. 143(3) OF THE INCOME TAX ACT 1961 (HEREINAFTER REFER AS THE ACT) FRAMED ON 27.12.2010 BY ITO WARD-7(4), S URAT. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEALS) HAS ERRED IN ENHA NCING THE ADDITION OF ITA.NO.2966/AHD/2013 ASSESSMENT YEAR 2008-09 - 2 RS,8,11,821/- TO RS.16,53,600/- ON ACCOUNT OF ALLEGED UNEXPLAINED CASH DEPOSITS IN BANK ACCOUNT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS.8,11,821/- ON ACCOUNT OF ALLEG ED PEAK CREDIT OF BANK STATEMENT. 3. IT IS THEREFORE PRAYED THAT THE ABOVE ADDITION MAY PLEASE BE DELE TED AS LEARNED MEMBERS OF THE TRIBUNAL MAY DEEM IT PROPER. 4. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUND(S) EITHER BEFORE OR IN THE COURSE OF THE HEARING OF THE APPEAL. 2. BRIEFLY STATED FACTS HAS CULLED OUT FROM THE REC ORDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL EARNING INCOME FROM BROKERAGE AND COMMISSION. RETURN INCOME FILED ON 21.08.2008 DECLARING INCOME AT RS. 1,39,055/- . CASE WAS PICKED UP FOR SCRUTINY ASSESSMENT UNDER CASS. NOTIC E U/S. 143(2) FOLLOWED U/S. 142(1) OF THE ACT ISSUED AND DULY SERVED UPON THE ASSESSEE CALLING VARIOUS INFORMATIONS. DETAILS WERE DULY FURNISHED B Y ASSESSEE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS REVEALED TH AT ASSESSEE HAS DEPOSITED CASH SUM OF RS. 16,53,600/- INTO THE VARACHHA CO-OP . BANK LTD. ASSESSEE WAS ASKED ABOUT THE SOURCE OF THE CASH DEPOSITED. A SSESSEE REPLY WAS VAGUE AND FOUND NOT TENABLE BY LEARNED ASSESSING OFFICER AND HE OBSERVED FROM THE IMPUGNED BANK STATEMENT, THAT THE TOTAL OF THE CRED IT SIDE IS RS. 35,26,372/-. LEARNED ASSESSING OFFICER ACCORDINGLY CALCULATED TH E PEAK CREDIT BALANCE OF RS. 8,11,821/- AND ADDED TO THE INCOME OF THE ASSES SEE AS UNEXPLAINED MONEY U/S. 69A OF THE ACT. INCOME ASSESSED AT RS. 9,50,88 0/- 3. AGGRIEVED ASSESSEE FILED APPEAL BEFORE THE LEARN ED COMMISSIONER OF INCOME TAX (APPEALS). HOWEVER LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ON OBSERVING THAT NO EVIDENCES INCLUDING BOOKS OF ACCOUNTS WERE PRODUCED DURING THE ASSESSMENT PROCEEDINGS AND APPE LLATE PROCEEDINGS, ITA.NO.2966/AHD/2013 ASSESSMENT YEAR 2008-09 - 3 WHICH COULD HAVE HELPED TO WORK OUT THE PEAK CREDIT . ACCORDINGLY LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ENHANCED THE A DDITION TO RS. 16,53,600/- BEING THE ENTIRE CASH DEPOSITED IN THE IMPUGNED BANK ACCOUNT BY OBSERVING AS FOLLOWS:- 5. DURING THE APPELLATE PROCEEDINGS, A NOTICE FOR ENHANCEMENT OF ASSESSED INCOME U/S 251(1) R.W.S. 251(2) OF THE ACT WAS ISSUED ON 14.10.2013. THE NOTICE WAS ISSUED ON THE ADDRESS PROVIDED IN THE FORM 35 (APPEAL MEMO) BUT NO COMPLIANCE WAS MADE. SINCE THE APPELLANT HAD NOT FILED ANY APPLICATION FOR ADJOURNMENT OR HAS FILED ANY DETAILS, ON THE BASIS OF THE ABOVE FACTS, IT IS EVIDENT AND CLEAR THAT THE APPELLANT IS NOT INTERESTED IN FILING ANY DETAILS DURI NG THE APPELLATE PROCEEDINGS AND AVAIL THE OPPORTUNITY UNDER THE PRINCIPLES OF NATURAL JUSTICE. HENCE THIS APPEAL IS BEING DECIDED ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. 6.1.1 I HAVE CONSIDERED THE ASSESSMENT ORDER AS WELL AS THE SUBMISSIONS OF THE APPELLANT. THE GROUNDS OF APPEAL- GROUND NO. 1 PERTAINS TO MAKING ADDITION OF RS. 8,11,821/- ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN BANK. AS MENTIONED ABOVE THAT DURING THE COURSE OF THE APPELLATE PROCEEDINGS, A NOTICE OF ENHANCEMENT U/S 251(1) R.W.S. 251(2) OF THE IT ACT WAS ISSUED TO THE APPELLANT ON 14.10.2013 SEEKING THE EXPLANATION OF THE APPELLANT THAT WHY THE WHOLE AMOUNT OF CASH DEPOSIT OF RS. 16,53,600/- IS NOT TREATED AS INCOME FROM UNDISCLOSED SOURCE S. THE ISSUE IN THE GROUNDS OF APPEAL OF THE APPELLANT IS MERGED WITH THE ISSU E RAISED IN THE NOTICE OF ENHANCEMENT U/S 251(1) OF THE ACT AND IS BEING DECIDED ACCORDINGLY. 6.1.2 IN THE ENHANCEMENT NOTICE DATED 14.10.2013, THE APPELLANT WAS GIVEN THE TIME FOR COMPLIANCE ON 24.10.2013. BUT, NO COMPLIANCE WAS MADE ON 24.10.2013. NEITHER ANY SUBMISSIONS NOR ANY APPLICATION FOR ADJOURNMENT WAS RECEI VED IN COMPLIANCE TO THE ENHANCEMENT NOTICE U/S 251(1) R.W.S 251(2) OF THE ACT. THE APPELLANT HAS FAILED TO FURNISH ANY SUPPORTING DOCUMENTS OR EVIDENCES REGARDS TO THE SOURCE OF THE CASH DEPOSITS. THE APPELLANT FAILED TO FURNISH ANY EVIDENCE REGARDING THE SOURCE OF CASH DEPOSITED.. THE BANK A/C VARACHA COOPERATIVE BANK LTD. SURAT, WAS NEVER DISCLOSED IN THE TAX RETURNS OF THE APPELLANT NOR IN ANY OF THE SUBMISSIONS. THIS BANK A/C WOULD NOT HAVE COME TO THE KNOWLEDGE OF THE TAX DEPARTMENT SAVE THE USE OF TECHNOLOGY AND COLLECTION OF INFORMATION BY THE INCOM E TAX DEPARTMENT REGARDING HIGH VALUE TRANSACTIONS THROUGH BANKING AND FINANCIAL INSTITUTIONS. IT WAS ONLY WHEN THE BANK ACCOUNT WAS DETECTED AND CONFRONTED TO THE APPELLANT, HE CAME UP WITH FANCIFUL EXPLANATIONS AND MAKE BELIEVE STORIES BEFOR E THE AO. THE PRIMARY ONUS IS ON THE APPELLANT TO PROVE THE SOURCE OF CASH DEPOSITS ITA.NO.2966/AHD/2013 ASSESSMENT YEAR 2008-09 - 4 SUPPORTED WITH EVIDENCES. THE APPELLANT, IN SPITE OF OPPORTUNITIES PROVIDED DURING APPELLATE PROCEEDINGS DID NOT PRODUCE HIS BOOKS OF ACCOUNTS. THE APPELLANT HAS NOT PROVIDED ANY SUPPORTING DOCUMENT TO DEMONSTRATE THE SOURCE OF CASH DEPOSITS. 6.1.3 THE AO HAS ADDED THE PEAK BALANCE OF RS. 8,11,821/- IN AN ERRONEOUS MANNER BY TAKING THE PEAK BALANCE AS ON 25.01.2008. AN ANALYSIS OF THE PEAK CREDIT CONCEPT WILL CLARIFY THAT THE AO WORKING OF THE PEAK CREDIT IS WITHOUT ANY BASIS AND ERRONEOUS. HE HAS TAKEN THE AMOUNT ON THE BASIS OF THE PEAK BALANCE RATHER THAN PEAK CREDIT. THE CONCEPT OF PEAK CREDIT HOLDS THAT SOMETIMES, AN ASSESSEE MAY CONDUCT HIS UNACCOUNTED TRANSACTIONS THROUGH ONE OR MORE BANK ACCOUNTS OR MAY RECORD SUCH TRANSACTIONS IN A VAGUE MANNER IN ONE OR MORE BOOKS. THE DEPOSITS IN SUCH BANK ACCOUNTS MAY REFLECT. UNACCOUNTED SALES. UNACCOUNTED CASH INTRODUCED. UNACCOUNTED LOAN RECEIVED FROM OTHER. UNACCOUNTED LOANS RETURNED BY OTHERS. UNACCOUNTED SAFE PROCEEDS OF INVESTMENTS SUCH AS SHARES, PROPERTIES, DETAILS MAY NOT BE AVAILABLE TO SEGREGATE THE DEPOSITS INTO THE ABOVE HEADS AND QUANTITY THE TOTAL AMOUNT UNDER EACH OF THE ABOVE HEADS. ESTIMATING THE PROFIT AS A PERCENTAGE OF THE TOTAL OF THE DEPOSITS WOULD BE INCORRECT. IN SUCH CASES, WORKING OUT THE PEAK CREDITS (RECEIPTS) OR THE DEBITS (PAYMENT) MAY GIVE AN INDICATION OF THE TOTAL UNACCOUNTED MONEY IN THE POSSESSION OF THE ASSESSEE WHICH MAY BE ASSESSED AS HIS INCOME. 6.1.4 BUT THE PEAK CREDIT STATEMENTS CAN BE PREPARED ONLY IF RECORDS F OR THE RECEIPT AND PAYMENT OF MONEY FOR THE ENTIRE ACCOUNTING PERIOD ARE KEPT. THE RECORD NEED NOT BE REGULAR BOOKS OF ACCOUNT MAINTAINED UNDER DOUBLE ENTRY SYSTEM. EVEN A ROUGH ACCOUNT WHERE DATES OF RECEIPT AND PAYMENT OF MONEY AR E RECORDED WOULD SUFFICE. FOR EXAMPLE: WHERE AN ASSESSEE MAINTAINED UNDISCLOSED BANK ACCOUNTS, FROM THE BANK ACCOUNT STATEMENTS, PEAK CREDIT OR THE PEAK OF THE AMOUNTS DEPOSITED CAN BE WORKED OUT. BUT IF THE RECORDS ARE INCOMPLETE OR IF THE RECORDS AVAILABLE ONLY SHOW TOTAL AMOUNT RECEIVED ON A PARTICULAR DAT E/ A PEAK CREDIT STATEMENT CANNOT BE PREPARED. 6.1.5 IN THE INSTANT CASE, THE APPELLANT DOES NOT MAINTAIN ANY BOOKS OF ACCOUNTS - REGULAR OR ROUGH ON THE BASIS OF WHICH THE PEAK CREDIT CAN BE WORKED OUT. NO EVIDENCE OR BOOKS OF ACCOUNTS WERE PRODUCED DURING THE ASSESSMENT PROCEE DINGS OR APPELLATE PROCEEDINGS. HENCE THE CONTENTION OF THE APPELLANT FALLS FLAT ON M ERITS AND FACTS AS HE IS UNABLE TO DEMONSTRATE THE SOURCE AND UTILIZATION OF THE CASH DEPOSITS AND WITHDRAWALS IN THE BANK ACCOUNTS AS DISCUSSED ABOVE. ITA.NO.2966/AHD/2013 ASSESSMENT YEAR 2008-09 - 5 6.1.6 THE APPELLANT'S SUBMISSION THAT THE DEPOSITS IN THE BANK A/CS WERE R ELATED TO THE SALES PERTAINING TO THE DIAMOND BROKERAGE BUSINESS IS NOT SUPPORTED BY ANY PROOF OR DOCUMENTARY EVIDENCE. THE BURDEN OF PROOF LIES ON THE APPELLANT TO SUPPORT HIS CONTENTION THAT THE EXPLANATION REGARDING SOURCE OF DEPOSITS. THE PRIMARY ONUS IS ON THE APPELLANT TO PROVE THE SOURCE OF CASH DEPOSITS SUPPORTED WITH EVIDENCES. THE EXPRESSION 'BURDEN OF PROOF REALLY MEANS TWO DIFFERENT THINGS. IT MEANS SOMETIMES THAT A PARTY IS REQUIRED TO PROVE AN ALLEGATION BEFORE JUDGMENT CAN BE GIVEN IN HIS FAVOUR. IT ALSO MEANS THAT ON A CONTESTED ISSUE, ONE OF THE TWO CONTENDING PARTIES HAS TO INTRODUCE EVIDENCE. IN THE FIRST SENSE, IF THE BURDEN IS NOT DISCHARGED, THE PARTY MUST EVENTUALLY FAIL. IN THE SECOND CASE, WHERE THE PARTIES HAVE JOINED ISSUE AND HAVE LED EVIDENCE AND THE CONFLICTING EVIDENCE CAN BE WEIGHED TO DETERMINE WHICH WAY TO ISSUE CAN BE DECIDED, THE QUESTION OF BURDEN OF PROOF BECOMES AN ABSTRACT QUESTION AND IS THEREFORE ACADEMIC. THE SECTIO N 101 TO 114 OF INDIAN EVIDENCE ACT, 1872 DEALS WITH BURDEN OF PROOF. THE SECTION 102 OF THE EVIDENCE ACT PROVIDES THAT THE BURDEN OF PROOF LIES ON THAT PARTY W HO WOULD FAIL IF NO EVIDENCE AT ALL WERE GIVEN ON EITHER SIDE. THUS, IF AN ASSES SEE CLAIMS THAT MONEY OR BULLION FOUND IN HIS POSSESSION AT THE TIME OF THE SEARCH OR SURVEY DOES NOT BELONG TO HIM BUT SOMEONE ELSE, THE ONUS IS ON HIM TO ESTABLISH IT BECAUS E THE ORDINARY PRESUMPTION IS THAT HE IS THE OWNER AS THE MONEY ETC. WAS FOUND IN HI S POSSESSION. SIMILARLY, IN ALL CASES WHERE A PARTICULAR RECEIPT IS SOUGHT TO BE TAXED AS INCOME, THE INITIAL ONUS IS ON THE ASSESSING OFFICER TO PROVE THAT IT IS TAXABLE. WHERE, HOWEVER, THE ASSESSEE CLAIMS EXEMPTION, THE BURDEN IS ON THE AS SESSEE TO PROVE IT TO BE EXEMPT. SAME IS THE POSITION IN CASE OF ALLOWANCES, DEDUCTI ONS, OR CLAIMS OF LOSS, ETC. SIMILARLY, WHERE THERE IS A STATUTORY REBUTTABL E PRESUMPTION AGAINST THE ASSESSEE, AS IN CASE OF CASH CREDITS ETC., U/S 68 OR UNEXPLAINE D INVESTMENT U/S 69, THE INITIAL BURDEN OF PROOF IS ON THE ASSESSEE TO SHOW THAT THE CASH CREDIT IS GENUINE OR THE INVESTMENT IS NOT UNEXPLAINED. THE AO SHOULD, THEREFORE, ALWAYS EXAMINE AS TO WHO HAS TO DISCHARGE THE BURDEN OF PROOF. IT MAY ALSO BE NOTED THAT IN THE COURSE OF ASSESSMENT, THE BURDEN OF PROOF MAY SHIF T FROM ONE TO THE OTHER. FOR INSTANCE, IF THE ASSESSEE DISCHARGES HIS INITIAL B URDEN OF PROOF, THE ONUS SHIFTS TO THE ASSESSING OFFICER WHO MUST BRING OUT FACT S TO REFUTE ASSESSEE'S VERSION. 6.2 THE PROCEEDINGS UNDER THE INCOME TAX ACT ARE CIVIL PROCEEDINGS. THE DEGREE OF PROOF REQUIRED IN ASSESSMENT PROCEEDINGS IS BASE ON THE PRINCIPLES OF PREPONDERANCE OF PROBABILITY, UNLIKE IN CRIMINAL PROCEEDINGS WHERE PROOF BEYOND REASONABLE DOUBT IS INSISTED UPON. IT IS OPEN TO THE ASSESSING OFFICER TO PROBABILISE HIS STAND AND SHOW ITS PREPONDERANCE WHERE CONCLUSIVE PROOF IS NOT FORTHCOMING. THE OBSERVATIONS OF THE SUPREME COURT IN STATE OF WEST BENGAL V. MIR MOHAMMAD OMAR AND OTHERS JT 2000(9) SC 467 MADE IN THE CONTEXT OF A CRIMINAL CASE ARE RELEVANT FOR OUR PURPOSE. ITA.NO.2966/AHD/2013 ASSESSMENT YEAR 2008-09 - 6 'THE PRISTINE RULE THAT THE BURDEN OF PROOF IN ON THE PROSECUTION TO PROVE THE GUILT OF THE ACCUSED SHOULD NOT BE TAKEN AS A FOSSILIZED DOCTRINE AS THOUGH IT ADMIT S OF NO PROCESS OF INTELLIGENT REASONING. THE DOCTRINE OF PRESUMPTION IS NOT ALIEN TO THE ABOVE RULE, NOR WOULD IT IMPAIR THE TEMPER OF THE RULE. ON THE OTHER HAND, IF THE TRADITIONAL RULE RELATING TO BURDEN OF PROOF OF THE PROSECUTION IS ALLOWED TO BE WRAPPED IN PEDANTIC COVERAGE THE OFFENDERS OF SERIOUS OFFENCES WOULD BE THE MAJOR BENEFICIARIES AND THE SOCIETY WOULD BE THE CASUALTY..,' 6.2.1 THIS RAISES THE QUESTION WHETHER THE APPARENT CAN BE CONSIDERED AS REAL. AS LAID DOWN BY APEX COURT IN THE CASE CZTV. DURGA PRASAD MORE [1971] 82 ITR 540, APPARENT MUST BE CONSIDERED REAL UNTIL IT IS SHOWN THAT THERE ARE REASONS T O BELIEVE THAT THE APPARENT IS NOT THE REAL AND THAT THE TAXING AUTHORITIES ARE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY AND THE MAT TER HAS TO BE CONSIDERED BY APPLYING THE TEST OF HUMAN PROBABILITIES 6.2.2 THE HON SUPREME COURT HELD THAT '7T IS TRUE THAT AN APPARENT MUST BE CONSIDERED REAL UNTIL IT IS SHOWN THAT THERE ARE REASONS TO BELIEVE THAT THE APPARENT IS NOT THE REAL PARTY WHO RELIES ON A RECITAL IN A DEED HAS TO ESTABLI SH THE TRUTH OF THOSE RECITALS, OTHERWISE IT WILL BE VERY EASY TO MAKE SELF-SERV ING STATEMENTS IN DOCUMENTS EITHER EXECUTED OR TAKEN BY A PARTY AND RELY ON THOSE RECITALS. IF ALL THAT AN ASSESSEE WHO WANTS TO EVADE TAX IS TO HAVE SOME RECITALS MADE IN A DOCUMENT EIT HER EXECUTED BY HIM OR EXECUTED IN HIS FAVOUR THEN THE DOOR WILL BE LEFT WIDE OP EN TO EVADE TAX. A LITTLE PROBING WAS SUFFICIENT IN THE PRESENT CASE TO SHOW THAT THE APPARE NT WAS NOT THE REAL. THE TAXING AUTHORITIES WERE NOT REQUIRED TO PUT ON BLINKERS WHILE LOOKING AT THE DOCUMENTS PRODUCED BEFORE THEM. THEY WERE ENTITLED TO LOOK INTO THE S URROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY OF THE RECITALS MADE IN THOSE DOCUMENTS.' CIT V. DURGA PRASAD MORE[1971] 82 ITR 540, AT PP. 545, 547 (SC). 6.2.3 IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, THE APPELLANT HAS NOT BEEN ABLE TO PROVE :TIE SOURCE OF THE CASH DEPOSIT IN THE BANK ACCOUNT. THE SUBMI SSIONS NOT SUPPORTED BY ANY EVIDENCES ARE 'MAKE BELIEVE' ARRANGEMENT. HENCE, THE ENTIRE CASH DEPOSIT OF RS. 16,53,600/- IS BEING TREATED AS UNDISCLOSED AND ADDED TO THE INCOME OF THE APPELLANT. THE ADDITION MADE BY THE AO IN THE ASSESSMENT ORDER OF RS 8,11,821/- ON ACCOUNT OF PEAK BALANCE IS BEING ENHANCED TO RS. 16,53,600/- UNDER THE PROVISIONS OF SECTION 251(1) R.W.S. 251(2) OF THE ACT. THE AO IS BEING DIRECTED TO ISSUE THE DEMAND NOTICE ACCORDINGLY. AS THIS ORDER OF THE ENHANCE MENT MERGES WITH THE ASSESSMENT ORDER, NO SEPARATE PENALTY PROCEEDINGS U/S 27L(L )(C) OF THE ACT, IS BEING INITIATED DURING THE APPELLATE PROCEEDINGS AS THE AO HAS AL READY INITIATED THE PENALTY PROCEEDINGS U/S 271(L)(C) R.W.S. 274 OF THE ACT IN TH E ASSESSMENT ORDER ON THIS ISSUE OF CASH DEPOSITS. ITA.NO.2966/AHD/2013 ASSESSMENT YEAR 2008-09 - 7 7. IN THE RESULT, THIS APPEAL IS DISMISSED AND THE ADDITION IS ENH ANCED TO RS. 16,53,600/- U/S 251(10) RWS 251(2)OF THE IT ACT, 1961 ON ACCOUNT OF PEAK CASH DEPOSITS. 4. AGGRIEVED ASSESSEE IS NOW IN APPEAL BEFORE THE TRIBUNAL. 5. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LEARNED ASSESSING OFFICER HAS RIGHTLY CALCULATED THE PEAK CREDIT OF R S. 8,11,821/- AND LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GROSSLY EARNED IN ENHANCING THE ADDITION U/S. 69A OF THE ACT TREATING ENTIRE CASH D EPOSIT OF RS. 16,53,600/- AS UNEXPLAINED MONEY. U/S. 69A. LEARNED COUNSEL HAD N O OBJECTION IN CASE THE ISSUES RAISED IN THIS APPEAL ARE SET ASIDE TO THE F ILE OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OR LEARNED ASSESSING OFFICE R FOR PROPER WORKING OF THE PEAK BALANCE. 6. ON THE OTHER HAND LEARNED DEPARTMENTAL REPRESENT ATIVE SUBMITTED THAT LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GAVE S UFFICIENT OPPORTUNITY TO THE ASSESSEE FOR PLACING BEFORE HIM REQUIRED DOC UMENTS AND DETAILS FOR CALCULATING THE PEAK BALANCE. BUT THE ASSESSEE WAS NEGLIGENT IN NOT FURNISHING THE REQUIRED DETAILS AND THEREFORE LEARNED COMMISSI ONER OF INCOME TAX (APPEALS) HAS RIGHTLY ENHANCED THE ADDITION. HOWEVE R LEARNED DEPARTMENTAL REPRESENTATIVE RAISED NO OBJECTION IF THE ISSUES AR E RESTORED BACK TO THE FILE OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FOR RE -ADJUDICATION. 7. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED TH E RECORD PLACED BEFORE US. THE ASSESSEE SOLE OF SUBSTANTIVE GROUND IS AGA INST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ENHANCING THE ADDITION OF PEAK BALANCE FOR UNACCOUNTED CASH DEPOSIT TO RS. 16,53,6 00/- AS AGAINST RS. 8,11,821/- MADE BY THE LEARNED ASSESSING OFFICER. ITA.NO.2966/AHD/2013 ASSESSMENT YEAR 2008-09 - 8 8. WE FIND THAT ASSESSEE DEPOSITED CASH OF RS. 16,5 3,600/- IN THE VARACHHA CO-OPERATIVE BANK LTD. SAVING ACCOUNT. DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS LEARNED COUNSEL FOR THE ASSE SSEE SUBMITTED THAT AS THE ASSESSEE HAS TO ISSUE CHEQUES BY DEPOSITING CASH RE CEIVED FROM HIS PURCHASING PARTIES, CASH WAS DEPOSITED IN THE BANK , IN ORDER TO EARN COMMISSION/BROKERAGE INCOME. 9. WE FURTHER OBSERVE THAT LEARNED ASSESSING OFFIC ER HAS NOT GIVEN ANY PROPER WORKING OF CALCULATING THE PEAK CREDIT OF R S. 8,11,821/- AND HE HAS JUST SUMMED UP THE ASSESSMENT PROCEEDINGS BY OBSERV ING TOTAL OF THE CREDIT SIDE AT RS. 35,26,372/- AND THEN HAS MENTIONED PEAK CREDIT BALANCE OF RS. 8,11,821/- AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. 10. WHEN THE MATTER REACHED BEFORE THE LEARNED COMM ISSIONER OF INCOME TAX (APPEALS), IT WAS NECESSARY ON THE PART OF ASSE SSEE TO FURNISH EVIDENCE AND DETAILS NECESSARY TO SATISFY LEARNED COMMISSION ER OF INCOME TAX (APPEALS). WE NOTICE THAT ASSESSEE MISERABLY FAILED TO EXHIBIT THE CALCULATION OF PEAK BALANCE WITH PROPER SUPPORTING DOCUMENTS. W E THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE AND IN ORDER TO MEET ENDS OF JUSTICE GIVE ONE MORE OPPORTUNITY TO ASSESSEE TO GO BEFORE LEARN ED COMMISSIONER OF INCOME TAX (APPEALS) AND FURNISH ALL NECESSARY DETA ILS, EVIDENCE, BANK ACCOUNT AND WORKING OF PEAK BALANCE. WE ACCORDINGLY RESTORE ALL THE ISSUES IN THIS APPEAL TO THE FILE OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FOR FRAMING DE NOVO ORDER AFTER ENTERTAINING THE DETAILS TO BE SUBMITT ED BY THE ASSESSEE. NEEDLESS TO MENTION THAT A OPPORTUNITY O F BEING HEARD IS TO BE PROVIDED TO THE ASSESSEE. AND WE ALSO DIRECT THE AS SESSEE TO BE COMPLIANT TO THE NOTICE OF LEARNED COMMISSIONER OF INCOME TAX (A PPEALS). ITA.NO.2966/AHD/2013 ASSESSMENT YEAR 2008-09 - 9 11. IN THE RESULT THIS APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 5 TH MAY, 2017 AT AHMEDABAD. SD/- SD/- (SHRI RAJPAL YADAV) JUDICIAL MEMBER (SHRI MANISH BOARD) ACCOUNTANT MEMBER