BHUPENDRA C. SHAH, MUMBAI V. ITO 25(3)(1), MUMBAI

ITA 5096/MUM/2009

• Counselvise Citation: 509619914 RSA 2009
• Duration Of Justice: 1 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 12-01-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 07-09-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: HARIGOVIND SINGH
• Assessee Lawyers: RAKESH JOSHI
• Keywords: Unexplained cash credit; Salary income; Opportunity of being heard; Peak credit; Additional evidence; Onus to prove
• Section: 68; 144; 142(1); 133(6); 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B MUMBAI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI R.S. SYAL R.S. SYAL R.S. SYAL R.S. SYAL (AM) AND SMT. ASHA VIJAYARAGHAVAN (JM) (AM) AND SMT. ASHA VIJAYARAGHAVAN (JM) (AM) AND SMT. ASHA VIJAYARAGHAVAN (JM) (AM) AND SMT. ASHA VIJAYARAGHAVAN (JM) ITA NO.5096/MUM/2009 ASSESSMENT YEAR-2005-06 SHRI BHUPENDRA C. SHAH, 1, MAHAVIR DARSHAN, SHANKAR LANE, DANDIVALI(W), MUMBAI-400 067 PAN-AAGPS 7372D VS. THE ITO, WARD 25(3)(1), C-11, PRATYAKSH KAR BHAWAN, BANDRA(E), MUMBAI-400 051 (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI RAKESH JOSHI RESPONDENT BY: SHRI HARI GOVIND SINGH O R D E R O R D E R O R D E R O R D E R PER ASHA VIJAYARAGHAVAN (JM) PER ASHA VIJAYARAGHAVAN (JM) PER ASHA VIJAYARAGHAVAN (JM) PER ASHA VIJAYARAGHAVAN (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 30.6.2009 PASSED BY THE LD. CIT(A)-XXVI F OR THE ASSESSMENT YEAR 2005-06. 2. THE ASSESSEE HAS FILED RETURN OF INCOME FOR AY 2005-0 6 ON 18.10.2005 DECLARING TOTAL INCOME AT RS.1,34,530/-. THE RETURNED INCOME SHOWN INCLUDES SALARY INCOME FROM M/S JAI HIND R OADWAYS PVT. LTD. WHERE HE WAS WORKING AS GENERAL ADMINISTRATION M ANAGER SINCE MANY YEARS. THE CASE WAS SELECTED FOR SCRUTINY AND A NOT ICE U/S 143(2) WAS SERVED ON 03.08.2006. SUBSEQUENT TO THIS, NOTICE U/ S 142(1) WAS ALSO ISSUED ON 08.05.2007. IN THE MEANTIME, THE AO HAS RECEIVED AN INFORMATION FROM UTI BANK UNDER AIR ABOUT CASH DEPOSI TS TO THE TUNE OF RS.16,44,881/- WITH THE NORTH GOA BRANCH OF THE BANK MAINTAINED IN THE NAME OF SHRI BHUPENDRA C SHAH (PAN AAGPS7372D), THE ASSESSEE. IN VIEW OF THE INFORMATION RECEIVED, THE AO ISSUED NO TICE TO THE ITA NO. 5096/M/09 2 ASSESSEE, WHO INITIALLY DENIED HAVING ANY BANK ACCOUNT WITH THE UTI BANK LTD. SUBSEQUENT TO THIS, THE AO ISSUED A NOTICE U/ S 133(6) OF THE I.T. ACT ON 20.06.2007 TO THE MANAGER, UTI BANK LTD . FROM WHERE AIR WAS FILED. IN RESPONSE TO THE NOTICE, UTI BANK CONFIRM ED VIDE LETTER DATED 22.09.2007 ABOUT THE ACCOUNT NO. 072010100077 419 OPENED & OPERATED IN THE NAME OF SHRI BHUPENDRA C SHAH WITH AXIS BANK (FORMERLY KNOWN AS UTI BANK), VASHI BRANCH. IT WAS AL SO CONFIRMED BY THE BANK THAT TOTAL CREDITS IN THE ACCOUNT ARE OF RS. 17,60,381/- WHICH INCLUDES DEPOSITS IN CASH OF RS.16,50,381/- DURING THE F Y 2004-05. IT IS ALSO INTIMATED BY THE BANK MANAGER THAT THE ACCOUNT WAS OPENED BY ISSUING A CHEQUE NO.731467 DATED 20.03.2004 FROM ANOT HER BANK ACCOUNT OF ICICI BANK WITH FORT BRANCH, MUMBAI, BEA RING A/C NO.623501158109 IN THE NAME OF SHRI BHUPENDRA C SHA H, COPY OF WHICH WAS ALSO PROCURED BY THE AO DURING ASSESSMENT PROCE EDINGS. IN NUTSHELL, THE MANAGER, UTI BANK HAS INFORMED THAT THE ASSESSEE WAS MAINTAINING BANK ACCOUNT WITH AXIS BANK, VASHI BRANCH AS ALSO WITH ICICI BANK, FORT BRANCH, MUMBAI DURING THE FY 2004- 05. AFTER COLLECTING ALL THESE INFORMATION FROM THE BANK, THE AO AGAIN ISSU ED A SHOW-CAUSE NOTICE TO THE ASSESSEE, WHO DENIED HAVING ANY BANK ACC OUNT WITH AXIS BANK AS ALSO WITH ICICI BANK. THE ASSESSEE HAS NOT FILED ANY DETAILS AND NOT ATTENDED ANY HEARING SUBSEQUENTLY BEFORE THE AO. THEREFORE, THE AO, AFTER ACCORDING A FINAL OPPORTUNITY VIDE LE TTER DATED 21.11.2007 AND AGAIN ON 30.11.2007, COMPLETED THE ASSESSMENT ON 30 .11.2007 BY MAKING ADDITION OF RS.29,31,191/- WHICH INCLUDES INTE REST ACCRUED IN THESE TWO BANK ACCOUNTS OF RS.799/- AND RS.261/- RESPECT IVELY. THE ISSUE IS DISCUSSED BY THE AO IN THE ORDER IN PARAGRAPHS 3. 1 TO 4.2. 3. THE AO HAS DISCUSSED FURTHER IN THE ASSESSMENT ORDER AB OUT ACCORDING VARIOUS OPPORTUNITIES DURING THE COURSE OF A SSESSMENT PROCEEDINGS TO THE ASSESSEE, BUT NO COMPLIANCE OF DETAIL S WERE MADE EXCEPT A LETTER DATED 17.11.2007 FROM ONE M/S R.B.PA RMAR & ITA NO. 5096/M/09 3 ASSOCIATES, CAS, CLAIMING THE CASH DEPOSIT IN THE BANK AC COUNT PERTAINING TO M/S JAI HIND ROADWAYS PVT. LTD. REGARD ING ASSESSEES CLAIM THAT THE CASH DEPOSITS AND WITHDRAWALS IN THE BAN K ACCOUNT ARE REFLECTED IN THE CASH BOOK OF M/S JAI HIND ROADWAYS PV T. LTD., THE ASSESSEE HAS NEITHER PRODUCED ANY BOOKS OF ACCOUNTS OF M/S. JAI HIND ROADWAYS PVT. LTD. NOR SHOWN ANY EVIDENCE WHICH SUBST ANTIATE THE CLAIM MADE IN LETTER DATED 17.11.2007. RELEVANT PAR AGRAPH IN THE ASSESSMENT ORDER NO.4.3.2 IS REPRODUCED AS UNDER: 4.3.2 IT CAN BE SEEN FROM LETTER DATED 17.11.2007 OF THE ASSESSEE THAT THE ASSESSEE HAS ONLY PRODUCED A LETTER FROM M /S R B PARMAR WHOSE WORDINGS START WITH ON THE BASIS OF LETT ER RECEIVED FROM DAYALAL M VAIYDA DIRECTOR OF JAI HIND ROADWAYS PRIVATE LIMITED SUBJECT TO VERIFICATION ...... BUT THE ASSESSEE HAS NOT FURNISHED ANY LETTER FROM MR.DAYALAL M.VAIDYA, WHICH TOO IS TO BE ACCEPTED ONLY SUBJECT TO VERIFICATION. IT MEAN S THAT THE CONTENTS OF THIS LETTER HAVE BEEN VERIFIED NEITHER BY THE ASSESSEE NOR BY THE PERSON GIVING CERTIFICATE. THIS LETTER ALSO DOES NOT STATE WHETHER THIS ACCOUNT WAS DISCLOSED IN THE I T RET URN OF M/S. JAI HIND ROADWAYS PRIVATE LIMITED. IT ONLY STATES THAT THIS DEPOSIT AND WITHDRAWAL ARE ACCOUNTED IN CASH BOOK FOR THE 0 1.04.2004. BUT THE ASSESSEE HAS NOT FURNISHED ANY BANK BOOK OR THE C ASH BOOK OF M/S.JAI HIND ROADS PRIVATE LIMITED. IN FACT N O PAN OR COPY OF THE I T RETURN HAS BEEN FURNISHED ALONG WITH THIS LETTER. MOREOVER, THIS CERTIFICATE IS FROM A THIRD PARTY WHOSE ANTECEDENTS ARE NOT KNOWN I.E. THE IDENTITY OF THIS PERSON IS NOT ESTABLISHED. 4. SINCE THE ASSESSEE HAS NOT PRODUCED BOOKS OF ACCOUNTS A ND OTHER DETAILS AND EVIDENCE TO THE SATISFACTION OF THE AO, ADDITION OF ENTIRE CREDITS IN BOTH THE ACCOUNTS I.E. AXIS BANK AND ICICI BANK, IN THE NAME OF SHRI BHUPENDRA C SHAH, WAS ADDED BY THE AO U/S.68 OF THE I.T.ACT. IT MAY ALSO BE MENTIONED HERE THAT EVEN IN THE LETTER DATED 17.11.2007 REFERRED ABOVE WHILE A PASSING EXPLANATION IS OFFERED IN RESPECT OF CREDITS IN BANK ACCOUNT IN THE AXIS BANK, N O SUCH EXPLANATION HAS BEEN OFFERED ABOUT ICICI BANK ACCOU NT. THUS, NEITHER ANY EXPLANATION NOR ANY DETAILS ABOUT THE SOURCES OF T HE CASH DEPOSITS ITA NO. 5096/M/09 4 / CREDITS IN THE BANK ACCOUNT MAINTAINED WITH ICICI BANK LTD. WERE FURNISHED TO THE A.O. 5. DURING THE APPEAL PROCEEDINGS, THE ASSESSEE HAS FILED DETAILED SUBMISSION VIDE LETTER DATED 16.10.2008, WHEREIN IT W AS CONTENDED THAT THE CASH DEPOSIT IN BOTH THE ACCOUNTS WITH AXIS BA NK AND ICICI BANK DOES NOT BELONG TO THE ASSESSEE BUT WAS RECEIVED AND DEPOSITED BY THE ASSESSEE ON BEHALF OF HIS EMPLOYER AFTER COLLECTI NG FROM CUSTOMERS FROM VARIOUS CITIES AND DEPOSITED IN S.B. A/CS TO AVOID RISK TO CARRY CASH AND FOR SMOOTH FUNCTIONING OF THE BUSINESS OF M/S. JAI HIND ROADWAYS PVT. LTD. IN SUPPORT OF THE CONTENTION, THE ASSESSEE HAS FILED A CONFIRMATION FROM M/S. JAI HIND ROADWAYS PVT. LTD. ALONG WITH A LETTER FROM R.B.PARMAR & ASSOCIATES, CAS (ALSO PRODUCED TO THE AO DURING ASSESSMENT PROCEEDINGS). SINCE THE SUBMISSION AND DOCUMENTS INCLUDING CONFIRMATION PRODUCED DURING THE APPEAL P ROCEEDINGS WERE NOT PRODUCED BEFORE THE AO AND BEING FRESH AND NEW E VIDENCE, THE SAME ALONG WITH FURTHER SUBMISSION OF THE ASSESSEE VIDE LET TER DATED 26.11.2008 WERE SENT TO THE AO FOR VERIFICATION AND TO SUBMIT A REMAND REPORT IN THIS REGARD. THE AO HAS FILED ITS REM AND REPORT AFTER ALLOWING OPPORTUNITIES TO THE ASSESSEE VIDE LETTER DATED 23.02.2008 WHEREIN IT IS MENTIONED THAT THE ASSESSEE HAS NOT ATTEND ED BEFORE HIM AND FILED NO DETAILS FOR VERIFICATION OF THE DOCUMEN TS SUBMITTED DURING APPEAL PROCEEDINGS ON WHICH REMAND REPORT WAS CALLED FOR. IT WAS ALSO INTIMATED BY THE AO THAT NEITHER M/S.JAI HIND ROADWA YS PVT. LTD. HAS ATTENDED THE REMAND PROCEEDINGS NOR THE BOOKS OF ACCO UNTS SHOWING ENTRIES OF CASH DEPOSIT IN THE AXIS BANK LTD. AND ICICI BANK LTD. WERE FILED. THE CONTENTS OF THE REMAND REPORT OF THE AO ARE REPRODUCED UNDER. 6. AFTER RECEIPT OF THE REMAND REPORT FROM THE AO, AS ABOVE, THE ASSESSEE WAS AGAIN GIVEN AN OPPORTUNITY OF BEING HEARD. A COPY OF THE ITA NO. 5096/M/09 5 REMAND REPORT WAS ALSO SUPPLIED TO THE ASSESSEE. THE ASSESSEE SOUGHT 2-3 ADJOURNMENTS WHICH WERE ALLOWED AND FINALLY ON 26.06.2009, A REPLY WAS FILED WHEREIN IT IS AGAIN CONTENDED THAT TH E CASH DEPOSIT IN BOTH THE BANK ACCOUNTS BELONG TO M/S. JAI HIND ROADWA YS PVT. LTD. HOWEVER, NO EVIDENCE TO THIS EFFECT WAS PRODUCED BY THE ASSESSEE IN THIS OFFICE ALSO. THE REPLY OF THE ASSESSEE DATED 26.06.2 009 IS REPRODUCED HEREUNDER: UNDER THE INSTRUCTION AND FOR AND ON BEHALF OF OU R CLIENT ABOVE NAMED, AND WITH REFERENCE TO THE CAPTIONED APPEAL, WE HAVE TO PUT OUR SUBMISSIONS, IN BRIEF, AS UNDER: IN THE REMAND REPORT THE LD AO HAS ALLEGED THAT NE ITHER THE ASSESSEE NOR M/S.JAIHIND ROADWAYS P. LTD. APPEARED BEFORE HIM FOR VERIFICATION OF THE ADDITIONAL EVIDENCE FILED B EFORE YOUR HONOUR. IN THIS REGARD WE HAVE TO SUBMIT THAT THE ASSE SSEE HAS APPEARED BEFORE THE AO ON THE DATE GIVEN UNDER SUMMO N AND SUBMITTED THE SAME DETAILS BEFORE HIM ALSO. BUT LD AO HAS INSISTED TO SUBMIT BOOKS OF ACCOUNTS OF M/S.JAIHIND ROAD WAYS PVT. LTD. YOUR HONOUR IT IS BEYOND THE CONTROL OF THE ASSESSEE TO PRODUCE BOOKS OF ACCOUNTS OF THE COMPANY AS THE COMPANY HAS ALR EADY WRITTEN TO THE OFFICER CONCERNED THAT THE BOOKS OF A CCOUNTS OF THE COMPANY WASHED AWAY IN THE FLOOD AND REPORT OF THE TAHASILDAR ALSO SUBMITTED BEFORE YOUR GOODSELF. SO THE CONCLUSION OF THE LD AO THAT THIS IS NOTHING BUT AN AFTER THOUGHT OF THE A SSESSEE IS TOTALLY BASELESS AND NEEDS TO BE REJECTED. FURTHER THE APPELLANT HAS SUBMITTED DETAILS BEYOND DOUBT AND PROVED THE SAME AND THE COMPANY M/S.JAIHIND ROADWAYS PVT. LTD. HAS ALSO GIV EN STATEMENT THAT THE ENTIRE CASH DEPOSITED IN THE BANK A CCOUNTS BELONG TO THEM. FURTHER THE CONTENTION OF THE LD AO THAT DURING TH E COURSE OF ASSESSMENT NO SUCH STAND WAS TAKEN IS ALSO WRONG AS IN THE ASSESSMENT ORDER ITSELF IT IS WRITTEN IN PARA 4.3.1 TO 4. 3.2. BUT THAT TIME ALSO AO WAS INSISTING FOR THE ASH BOOKS OF THE COMPANY, WHICH IS BEYOND THE CONTROL OF THE APPELLANT TO PROV IDE. 7. THE LD. CIT(A) HELD AS FOLLOWS: ITA NO. 5096/M/09 6 I HAVE CONSIDERED THE SUBMISSION MADE BY THE ASSESSEE DURING APPEAL PROCEEDINGS AS DISCUSSED ABOVE. I HAVE ALS O GONE THROUGH THE ASSESSMENT ORDER AND PERUSED THE CONTENTS OF REMAND REPORT FILED BY THE AO ON THE ADDITION UNDER DISPUTE IN THE ASSESSMENT ORDER. THE PLAIN FACTS CULLED OUT FROM TH E RECORD ARE THAT A SAVINGS BANK ACCOUNT WITH AXIS BANK (FORM ERLY UTI BANK), VASHI BRANCH WAS OPENED AND OPERATED BY SHRI BHUPENDRA C SHAH AND CASH WAS DEPOSITED ON VARIOUS DA YS STARTING FROM 07.04.2004 TO 31.03.2005. THIS BANK ACC OUNT CAME TO THE NOTICE OF THE AO ON THE BASIS OF INFORMATION F ILED BY UTI BANK UNDER AIR. ON FURTHER INVESTIGATION, ANOTHER BA NK ACCOUNT WITH ICICI BANK IN THE NAME OF THE ASSESSEE WAS ALSO SURFA CED WHEREIN SUBSTANTIAL CASH DEPOSITS WERE ALSO NOTICED. THE PECULIAR FEATURE OF THE DEPOSITS IN THESE BANK ACCOUNTS REVEALS THAT NONE OF THE DEPOSITS, THOUGH ON SEVERAL TIMES IN A DAY, WERE ABOVE RS.50,000/- IN A SINGLE TRANSACTION. IT IS ALSO NOTICED THAT ON SEVERAL OCCASIONS IN A DAY, CASH BELOW RS.50,00/- WAS DEP OSITED IN THE ACCOUNT AND WAS WITHDRAWN SUBSEQUENTLY IN CASH AS ALSO SOMETHING THROUGH BEARER CHEQUES. IT IS ALSO NOTICED FR OM THE ICICI BANK A/C THAT ON 23.04.2004 AND 24.04.2004 CA SH APPROXIMATELY RS.4 LAKH WAS DEPOSITED ON NINE TIMES IN THESE TWO DAYS IN THE QUANTUM BELOW RS.50,000/-. SIMILAR IS THE CASE OF TRANSACTION IN THE ACCOUNT WITH AXIS BANK. THE ASSESSEE H AS NOT GIVEN ANY EXPLANATION ABOUT THE SOURCES OF CASH DEPOSIT S IN THESE TWO ACCOUNTS ON DIFFERENT DATES TO THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS ALSO ON FURTHER ENQUIR IES DURING THE REMAND PROCEEDINGS. DURING THE APPEAL PROCEEDINGS, THE ASSESSEE HAS CLAIMED THAT THE CASH DEPOSITS IN THESE ACCOUNTS WERE THE RECEI PTS FROM CUSTOMERS ON BEHALF OF M/S. JAI HIND ROADWAYS PVT. LTD. WHERE HE WAS WORKING AS MANAGER. A LETTER OF CONFIRMATION AND DETAILS WERE FILED DURING THE APPEAL PROCEEDINGS AND THE SAME WERE SENT TO THE AO FOR VERIFICATION, WHO HAS EXAMINED AND FILED A REPORT. THE ASSESSEE, HOWEVER, FAILED TO ATTEND AND TO PRODUCE ANY EVIDENCE BEFORE THE AO IN REMAND PROCEEDINGS WHI CH PROVE BEYOND DOUBT THAT CREDITS IN THESE BANK ACCOUNTS ARE F ROM UNDISCLOSED SOURCES. IN FACT, NEITHER THE ASSESSEE NOR M/S. JAI HIND ROADWAYS PVT. LTD. HAVE ATTENDED THE REMAND PRO CEEDINGS BEFORE THE AO AND ACCORDINGLY FAILED TO PRODUCE ANY EVIDENCE ALONG WITH BOOKS OF ACCOUNTS IN SUPPORT OF THE CLAIM SO MADE IN APPEAL PROCEEDINGS. THE ONUS TO PROVE THE CLAIM WAS EN TIRELY ON ASSESSEE AND HE FAILED MISERABLY BEFORE THE AO AS ALSO BEF ORE ME. THE ASSESSEE HAS ALSO FILED A COPY OF ASSESSMENT ORDER OF ITA NO. 5096/M/09 7 M/S. JAI HIND ROADWAYS PVT. LTD. FOR AY 2005-06 COMPL ETED ON 20.12.2007 U/S. 144 OF THE I.T.ACT BY THE ACIT 6(1) WHICH IS ALSO GONE THROUGH BUT THERE IS NO DISCUSSION ABOUT THE BANK ACCOUNTS MAINTAINED BY THE COMPANY IN THE NAME OF EMPLOYEE O R ABOUT THE FLOOD IN JULY 2005 AS BEING CLAIMED NOW. IT IS AL SO SEEN THAT THE COMPANY HAS NOT FILED ANY DETAILS TO THEIR AO DUR ING THE ASSESSMENT PROCEEDINGS AND, THEREFORE, THE ORDER WAS PASSE D EX-PARTE U/S.144 OF THE I.T.ACT. THESE FACTS ALSO ESTAB LISH THAT THE ASSESSEE AS WELL AS M/S. JAI HIND ROADWAYS PVT. LTD. HAS NO EVIDENCE TO PRODUCE TO THE AO IN SUPPORT OF CLAIMS MA DE IN APPEAL PROCEEDINGS. THE OTHER CLAIM OF THE ASSESSEE THAT THE BOOKS OF ACCOUN TS OF M/S. JAI HIND ROADWAYS PVT. LTD. COULD NOT BE PROD UCED TO THE AO AS THE SAME WERE WASHED AWAY IN THE FLOOD IN THE MO NTH OF JULY 2005 IS NOT ACCEPTABLE AS NO SUCH PLEA WAS TAKEN B Y THE ASSESSEE BEFORE AO. MOREOVER, THE AO HAS DENIED CATEGORI CALLY IN THE REMAND REPORT ABOUT FILING OF LETTER DATED 2 5.11.2008 TO HIM ANY TIME DURING THE PROCEEDINGS. IT IS ALSO A FACT THAT THE ALLEGED LETTER DOES NOT BEAR ANY ACKNOWLEDGEMENT REC EIPT FROM THE OFFICE OF THE AO. FURTHER, THE APPLICATION (IT IS NOT A REPORT OF TAHASILDAR AS CLAIMED IN LETTER DATED 26.06.2009 REPR ODUCED ABOVE) FILED TO TAHASILDAR, BHIWANDI IS DATED 13.03.2 007, WHEREAS THE ALLEGED FLOOD CLAIMED TO HAVE DESTROYED T HE BOOKS OF ACCOUNTS OF COMPANY WAS CLAIMED TO BE ON DATE 26.0 7.2005. ALL THESE EVIDENCES ON WHICH THE ASSESSEE HAS RELIED HEAV ILY DURING APPEAL ARE NOT CREDIBLE AS THE SAME WERE NEITH ER BEFORE THE AO AT THE TIME OF ASSESSMENT NOR SUPPORTED BY ANY SHR ED OF INDEPENDENT PROOF. ACCORDINGLY, I AGREE WITH THE FI NDING OF THE AO THAT THESE NEW EVIDENCES PRODUCED DURING APPEAL PROCEEDINGS ARE NOTHING BUT SELF-SERVING EVIDENCE AND AFTERTHOUGHT OF THE ASSESSEE. FURTHER, THE OTHER EVIDEN CES FILED BY THE ASSESSEE IN SUPPORT OF THE CLAIM WERE EXAMINED IN DETAIL BY THE AO IN THE REMAND PROCEEDINGS BUT NOT FOUND V ERIFIABLE IN THE ABSENCE OF DETAILS & SUBMISSIONS FROM ASSESSEE. M/S. JAI HIND ROADWAYS PVT. LTD., WHO WAS WITNESS TO THE ASSESSEE, WAS CAL LED BY THE AO BUT PREFERRED NOT TO ATTEND AND ACCORDING LY FAILED TO PRODUCE ANY EVIDENCE ALONG WITH BOOKS OF ACCOUNTS INC LUDING CASH BOOKS AND BANK BOOK ETC. IN THE ABSENCE OF ANY OF THE DETAILS, THE CONTENTION OF THE ASSESSEE IN THE REJOINDER TO THE REMAND REPORT FILED ON 26.06.2009 CANNOT BE ACCEPTE D. IN THE RESULT, I AGREE WITH THE CONTENTION OF THE AO THAT C ASH CREDITS IN AXIS BANK ACCOUNT TO THE EXTENT OF RS.17,60,381/- (IN CLUDING CASH DEPOSIT OF RS.16,50,381/-) AND INTEREST ACCRUED THEREO N RS.799/-, TOTALLING TO RS.17,61,180/- ARE UNEXPLAINED CASH CRED ITS. SIMILARLY, CREDITS IN THE ICICI BANK ACCOUNT TO THE EXTENT OF ITA NO. 5096/M/09 8 RS.11,69,750/- (INCLUDING CASH DEPOSIT OF RS.10,69,750/ -) AND INTEREST ACCRUED IN THE ACCOUNT OF RS.261/-, TOTALLIN G TO RS.11,70,011/- ARE ALSO UNEXPLAINED CASH CREDITS. SINCE THE ASSESSEE HAS NOT DISCHARGED THE BURDEN TO PROVE THE SOURCE S OF CASH AND CREDIT ENTRIES IN THESE TWO BANK ACCOUNTS, THE SAME WAS CORRECTLY ADDED BY THE AO U/S.68 OF THE I.T.ACT, 1961. THE ADDITION MADE BY THE A.O. IS CONFIRMED. THE GROUND O F APPEAL IS REJECTED. 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AN D PERUSED THE RELEVANT MATERIAL ON RECORD. DURING THE HEARIN G BEFORE US THE LD. COUNSEL FOR THE ASSESSEE SHRI RAKESH JOSHI SUBMITTED THAT THE ENDS OF JUSTICE WOULD BE MET IF THE PEAK CREDIT AT `. 18,17 ,419/- IS TO BE TAKEN WHILE CONFIRMING THE ADDITION U/S. 68 OF THE I.T. A CT. THE ASSESSEE HAS ACCEPTED THE ADDITION OF THE CREDITS TO THESE BANK AC COUNTS, SUBJECT TO THE COMPUTATION OF PEAK CREDIT, WHICH THE ASSESSEE HAS C OMPUTED AS RS. 18,17,419/-. WE ACCEPT THIS CONTENTION OF THE ASSESSE E THAT PEAK CREDIT ON THE BASIS OF THE BANK ACCOUNTS SHALL BE ADDE D U/S 68. WE DIRECT THE AO TO ADD THIS AMOUNT OF RS. 18,17,419/- U/S 68 OF THE ACT, UNLESS HE FINDS THAT THE ACTUAL AMOUNT OF PEAK CREDIT AS PER THE BANK ACCOUNTS, I.E CREDITS WHICH CANNOT BE EXPLAINED BY EA RLIER WITHDRAWALS, IS MORE THAT THIS AMOUNT- IN WHICH CASE THE ACTUAL PEA K CREDIT WILL BE ADDED U/S 68. SUBJECT TO THE ABOVE DIRECTION, THE ASSE SSEES APPEAL IS DISMISSED 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED ON THIS 29 TH DAY OF APRIL, 2011 SD/- SD/- ( R.S. SYAL) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 29 TH APRIL, 2011 RJ ITA NO. 5096/M/09 9 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR B BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI ITA NO. 5096/M/09 10 DATE INITIALS 1 DRAFT DICTATED ON: 26.4. 2011 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 27 .0 4 .2011 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK: DATE ON WHICH FILE GOES TO AR _________ ______ 10. DATE OF DISPATCH OF ORDER: _________ ______