Sri Binod Kumar Jha, Kolkata V. I.T.O Wd - 25(2),kolkata, Kolkata

ITA 577/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100066 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 18-03-2013
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Unexplained cash credit; Unexplained investment; Peak credit; Accommodation entries
• Section: 143(3); 133(6); 131; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI WASEEM AHMED , AM] I.T.A NO. 577/KOL/2013 ASSESSMENT YEAR: 2009-10 SHRI BINOD KUMAR JHA VS. INCOME-TAX OFFICER, WD- 25(2), KOLKATA (PAN: AEOPJ7219L) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 03.11.2015 DATE OF PRONOUNCEMENT: 20.11.2015 FOR THE APPELLANT: SHRI MIRAJ D. SHAH, FCA FOR THE RESPONDENT: MD. GHAYAS UDDIN, JCIT, SR. D R ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XIV, KOLKATA IN APPEAL NO.746/CIT(A)-XIV/KOL/11-12 DATED 12.02.2013. ASSES SMENT WAS FRAMED BY ITO, WARD-25(2), KOLKATA U/S. 143(3) OF THE INCOME-TAX A CT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR AY 2009-10 VIDE ITS ORDER DATED 28.1 2.2011. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING THE ADDITION MADE BY AO BEING CASH DEPOSITS IN UNDI SCLOSED BANK BALANCE AT RS.83,48,16,130/-. FOR THIS, ASSESSEE HAS RAISED F OLLOWING GROUND NOS. 2 AND 3: 2. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION A SUM OF RS.83,48,16,130/- SUCH ADDITI ON IS UNCALLED FOR UNJUSTIFIED AND HENCE BE DELETED. 3. WITHOUT PREJUDICE TO THE ABOVE IT BE DIRECTED TO RESTRICT THE ADDITION TO THE PEAK CREDIT OF ALL THE UNDISCLOSED BANK BALANCES TAKEN TOGETHER OR ANY OTHER SUCH SUMS WHICH THE LD. TRIBUNAL MAY CONSIDER APPROPRIATE. 3. BRIEFLY STATED FACTS ARE THAT AS PER AIR INFORMA TION RECEIVED FROM REVENUE/DEPARTMENT THAT THE ASSESSEE HAS DEPOSITED TOTAL CASH OF RS.83,48,16,130/- IN THE SIX AXIS BANK ACCOUNTS MAINTAINED WITH 2/1A, LANSDO WN TOWER, SARAT BOSE ROAD, KOLKATA-20 DURING THE FY 2008-09 RELEVANT TO THIS A Y 2009-10.THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS REQUIRED THE ASSESSEE TO PROVE THE SOURCE OF SUCH HUGE CASH DEPOSITS AND IN RESPONSE, ASSESSEE FILED A VOLUNTAR Y DISCLOSURE PETITION DATED 01.11.2011 2 ITA NO.577/K/2013 BINOD KUMAR JHA, AY 2009-10 WHEREIN HE WORKED OUT THE PEAK OF RS.1,01,40,000/- ON THE BASIS OF HIS DEPOSITS IN THE FOLLOWING SIX BANK ACCOUNTS: (I) 411010100011307, (II) 411010100011316, (III) 411010100011325, (IV) 411010100014535, (V) 411010100015792 AND (VI) 411010100015899 THE AO MADE ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDIT/UNEXPLAINED INVESTMENT IN BANK DEPOSITS AT RS.83,48,16,130/- BY OBSERVING IN PARA 6 AND 7 AS UNDER: 6. AS PER THE BANK STATEMENTS OF THE ELEVEN SAVIN GS BANK ACCOUNTS WHEREIN THE ASSESSEE IS A JOINT ACCOUNT HOLDER IN THE AXIS BANK, SARAT BOSE ROAD BRANCH IT IS SEEN THAT DURING THE PERIOD SEP, 2008 TO 31/0312009 CASH DEPOSITS TOTALI NG TO RS.83,48,16,130/- HAVE BEEN MADE IN THE SAID ACCOUNTS. DURING THE ENTIRE PERIOD SEP, 2008 TO 31/03/2009, NOT A SINGLE RUPEE HAS BEEN WITHDRAWN BY THE ASSESSEE/ACCOUNT HO LDERS FROM THESE ELEVEN ACCOUNTS. HENCE, THE ASSESSEE'S CONTENTION OF WORKING A PEAK OF CASH CREDITS CANNOT BE ACCEPTED AS THERE ARE NO WITHDRAWALS AT ALL. THE DEPOSITS BEING A ONE-WAY AFFAIR CAN ONLY BE TOTALLED TO ASCERTAIN THE SUM TOTAL OF CASH DEPOSITS MADE BY TH E ASSESSEE. THE ENTIRE AMOUNT OF RS,B3,48,16,130/- FROM THESE ELEVEN ACCOUNTS HAS BE EN TRANSFERRED TO THE ACCOUNT OF A COMPANY CALLED MAPLE ADVISORY SERVICES PVT. LTD. (M ASPL) HAVING A ACCOUNT IN THE SAME BANK BRANCH. THEREAFTER, MASPL HAS TRANSFERRED THE ENTIRE AMOUNT TO SIX PRIVATE LIMITED COMPANIES CALLED GOKUL DISTRIBUTORS, INDIGO COMMOTR ADE, JUPITER TRADELINK, NEW ERA COMMOTRADE, SWIFT DISTRIBUTORS AND ZENITH MANAGEMEN T ALL HAVING THEIR ACCOUNTS IN THE SAME BANK BRANCH. AS PER THE DETAILS COLLECTED FROM THE REGISTRAR OF COMPANIES (ROC), THE ASSESSEE IS THE MAIN DIRECTOR CONTROLLING THE SIX P VT. LTD. COMPANIES. THE ASSESSEE HAS BEEN HIGHLY SECRETIVE IN NOT REVEALING THE DETAILS OF TH E INVESTMENTS MADE BY HIM FROM THE SAID CASH DEPOSITS. THE MONEY HAS BEEN ALL ALONG IN HIS CONTROL RIGHT FROM THE STAGE OF DEPOSITS IN THE ELEVEN SAVINGS BANK ACCOUNTS TO THE STAGE OF RECEIVING THE SAME AS A DIRECTOR OF THE SIX PVT. LTD. COMPANIES. AS PER THE DETAILS OBTAINE D FROM THE ROC, THE SAID SIX PVT. LTD. COMPANIES HAVE NOT DISCLOSED THEIR ACCOUNT WITH THE AXIS BANK AND ITS UTILIZATION IN THEIR AUDITED FINAL ACCOUNTS. 7. IN VIEW OF THE ABOVE DISCUSSION, IT IS CLEAR THA T THE ASSESSEE HAS FAILED TO PROVE THE SOURCES OF THE CASH DEPOSITS MADE BY HIM AND THE IN VESTMENTS GENERATED FROM THE SAME. HE HAS ALSO FAILED TO MAKE OUT A CASE FOR TAXING HIM O N THE BASIS OF PEAK CASH CREDIT. ACCORDINGLY, THE ASSESSEE'S INCOME IS COMPUTED AS U NDER: INCOME AS PER RETURN OF INCOME (HAWALA RS. 1,48, 108/- INCOME FROM BOGUS BILL ISSUED TO ABHYUDAY HOUSING & CONSTRUCTION PVT. LTD.) ADD: SALARY FROM P.S. TEXTILES RS. 49,800/ - ADD: UNEXPLAINED CASH CREDIT/ RS.83,48,16,130/- UNEXPLAINED INVESTMENTS IN BANK DEPOSITS AS DISCUSSED ABOVE. TOTAL INCOME RS.83,50,14,038/- 4. AGGRIEVED, ASSESSEE PRESCRIBED APPEAL BEFORE CIT (A), WHO ALSO CONFIRMED THE ACTION OF AO BY OBSERVING IN PARA 5 AS UNDER: 5. THE GROUND NO.2 & 3 OF THE APPEAL ARE RAISED A GAINST THE ADDITION OF RS.83,48,16,130/-MADE BY THE ASSESSING OFFICER ON A CCOUNT OF UNEXPLAINED DEPOSITS. I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDER AND THE S UBMISSION OF THE APPELLANT. ON THE BASIS OF AIR INFORMATION RECEIVED BY THE ASSESSING OFFICER, IT WAS FOUND THAT THE APPELLANT WAS OPERATING SIX BANK ACCOUNTS IN THE ASIX BANK, 2 /1A, LANSDOWN TOWER, SARAT BOSE 3 ITA NO.577/K/2013 BINOD KUMAR JHA, AY 2009-10 ROAD, KOLKATA-20 DURING THE FINANCIAL YEAR 2008-09. THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF CASH DEPOSITS IN THE SIX BANK ACCOUNTS. HOWEVER, THE ASSESSEE DID NOT FURNISH ANY EXPLANATION AS TO THE SOURCE OF THE CASH DEPOSITS. THEREAFTER, THE ASSESSING OFFICER CONDUCTED ENQUIRY U/S 133(6) OF THE ACT AND IT WAS DETECTED BY THE ASSESSING OFFICER THAT THE APPELLANT WAS OPERATING ELEVEN SAVINGS BANK ACCOUNTS WITH THE AXIS BANK. IN RESPECT OF SIX BANK ACCOUNTS THE TOTA L DEPOSITS WAS FOUND TO BE RS. 53 CRORES. HOWEVER, TOTAL DEPOSITS IN THE ENTIRE ELEVEN BANK A CCOUNTS WAS FOUND TO BE RS. 83,48,16,130/-. THE ASSESSING OFFICER AGAIN ASKED T HE ASSESSEE TO EXPLAIN THE SOURCE OF THESE CASH DEPOSITS IN THESE BANK ACCOUNTS. HOWEVER , THE ASSESSEE MAINTAINED SECRECY AND DID NOT EXPLAIN THE SOURCE OF CASH DEPOSITS. INSTEA D, HE OFFERED BEFORE THE ASSESSING OFFICER THAT THE PEAK OF DEPOSITS IN HIS BANK ACCOUNTS BEAR ING NUMBERS 411010100011307, 411010100011316, 411010100011325, 411010100014535, 411010100015792, 411010100015899 WITH THE AXIS BANK, SARAT BOSE ROAD BRANCH BE TREATED AS HIS INCOME. THE ASSESSEE CONTENDED THAT PEAK OF DEPOSITS IN THE SE SIX BANK ACCOUNTS WAS RS. 1,01,40,000/- ACCORDING TO THE ASSESSEE. HOWEVER, T HE ASSESSEE REMAINED SILENT ON THE REMAINING FIVE BANK ACCOUNTS. DURING THE APPELLATE PROCEEDINGS ALSO SAME SUBMISSION HAS BEEN MADE AS MADE BEFORE THE ASSESSING OFFICER. HAV ING CONSIDERED THE SUBMISSION OF THE APPELLANT I FIND THAT THE APPELLANT HAS BEEN VERY S ECRETIVE AND HE HAS NOT DISCLOSED THE TRUE AND CORRECT FACTS. HE HAS NOT EXPLAINED THE SOURCE OF CASH DEPOSITS IN THE ELEVEN BANK ACCOUNTS OPERATED BY HIM. IT IS SEEN FROM THE ASSES SMENT ORDER THAT THE ASSESSEE WAS EXAMINED U/S 131 BY THE ASSESSING OFFICER. HOWEVER, HE DID NOT EXPLAIN THE SOURCE OF CASH DEPOSITS. SINCE THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF DEPOSITS IN THE BANK ACCOUNTS STANDING IN HIS NAME WITH THE AXIS BANK, S ARAT BOSE ROAD BRANCH, I AM OF THE CONSIDERED VIEW THAT THE ASSESSING OFFICER WAS RIGH T IN LAW AND FACTS IN MAKING ADDITION ON ACCOUNT OF UNEXPLAINED DEPOSITS. AS TO THE ASSESSEE 'S SUBMISSION THAT ONLY PEAK DEPOSITS APPEARING IN THE BANK ACCOUNT SHOULD BE ADDED, I AM OF THE CONSIDERED VIEW THAT THE ASSESSING OFFICER HAS GIVEN COGENT REASONS AS TO WH Y THE ASSESSEE'S SUBMISSION IS NOT ACCEPTABLE. FINALLY, THE CIT(A) ALSO REJECTED THE PEAK CREDIT T HEORY OF THE ASSESSEE AND CONFIRMED THE ADDITION AS MADE BY AO OF RS.83,48,16,130/-. AGGRIE VED, NOW ASSESSEE IS IN SECOND APPEAL BEFORE US. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND FROM THE FACTS OF THE CASE THAT THE ASSESSEE HAS DEPOSITED CASH AMOUNTING TO RS.83,48,16,130/- IN SIX UNDISCLOSED BANK ACCOUNT M AINTAINED WITH AXIS BANK LTD. THE ASSESSEE BEFORE AO FILED WORKING OF PEAK CREDIT IN RELATION TO CASH DEPOSITS MADE IN THESE SIX BANK ACCOUNTS AND REQUESTED THE AO TO ASSESS TH E PEAK CREDIT AMOUNTING TO RS.1,01,40,000/-. THE ASSESSEE CLAIMED TO HAVE COM PUTED THE PEAK CREDIT OF THESE SIX BANK ACCOUNTS TAKING ALL THE DEPOSITS AND WITHDRAWA LS. THE AO WHILE FRAMING ASSESSMENT TREATED THE UNEXPLAINED CASH CREDIT/UNEXPLAINED INV ESTMENT IN BANK I.E. CASH DEPOSITS MADE IN THESE SIX BANK ACCOUNTS AND ADDED TO THE RE TURNED INCOME OF THE ASSESSEE IN TOTAL. THE ASSESSEE NOW BEFORE US CLAIMED THAT HE IS ENGAG ED IN THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES AND FOR THIS HE PLACED RELIAN CE ON THE STATEMENT RECORDED BY THE AO U/S. 131 OF THE ACT ON 13.12.2011 WHEREIN HE EXP LAINED THE MODUS OPERANDI OF HIS BUSINESS. THE RELEVANT STATEMENT READS AS UNDER: 4 ITA NO.577/K/2013 BINOD KUMAR JHA, AY 2009-10 5 ITA NO.577/K/2013 BINOD KUMAR JHA, AY 2009-10 6 ITA NO.577/K/2013 BINOD KUMAR JHA, AY 2009-10 7 ITA NO.577/K/2013 BINOD KUMAR JHA, AY 2009-10 IN VIEW OF THE ABOVE STATEMENT THE ASSESSEE CLAIMED THAT HE IS ENGAGED IN THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES TO VARIOUS PARTIES ON COMMISSION BASIS AND THIS COMMISSION HAS ALL ALONG BEEN DISCLOSED BY HIM AS B USINESS INCOME IN THE RETURNS OF INCOME PARTICULARLY FOR AYS 2008-09, 2009-10 AND 20 10-11. NOW BEFORE US ASSESSEES COUNSEL ARGUED THAT EVEN PEAK CREDIT CANNOT BE ADDE D IN THE HANDS OF THE ASSESSEE ONLY FINANCE COMMISSION EARNED BY HIM @ 0.25% TO 0.50% A T THE BEST CAN BE ASSESSED. LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO PAPE R BOOK FILED BY ASSESSEE AND PARTICULARLY PAGES 1 TO 41, WHEREIN EXTRACT FROM BA NK STATEMENT OF SIX UNDISCLOSED BANK ACCOUNTS OF AXIS BANK AND CALCULATION SHOWING PEAK CREDIT AFTER CONSOLIDATION IS ENCLOSED. THERE IS NO DISPUTE ABOUT THE CASH DEPOS ITED IN THESE SIX BANK ACCOUNTS MAINTAINED WITH AXIS BANK LTD. WE FIND FROM THE AB OVE STATEMENT RECORDED BY THE AO OF THE ASSESSEE PARTICULARLY QUESTION NOS. 14 AND 1 5 THAT ASSESSEE IS ONLY A CONDUIT IN A BIG SYNDICATE OF ACCOMMODATION ENTRY PROVIDERS AND HE H AS EARNED ONLY COMMISSION INCOME FOR PROVIDING ACCOMMODATION ENTRY. THE ASSESSEE US ED TO RECEIVE CASH AND DEPOSIT THE SAME IN ONE OF THESE SIX BANK ACCOUNTS AND ISSUED C HEQUE OF THE SAME AMOUNT AS CAN BE SEEN FROM THE EXTRACTS OF BANK STATEMENTS OF THESE SIX BANK ACCOUNTS FILED BY ASSESSEE IN ITS PAPER BOOK. ON THE VERY DATE OF CASH DEPOSIT, CHEQUE IS ISSUED OF THE SIMILAR AMOUNT. THIS CLEARLY REVEALS THAT THE ASSESSEE IS BEING USE D FOR PROVIDING ACCOMMODATION ENTRY ONLY. ALL THE DEPOSITS MADE IN THESE SIX BANK ACCO UNTS HAVE BEEN TRANSFERRED TO MAPLE ADVISORY SERVICES PVT. LTD. AND IN TURN MAPLE ADVIS ORY SERVICES PVT. LTD. HAS FURTHER TRANSFERRED THIS AMOUNT TO SIX PRIVATE LIMITED COMP ANIES NAMELY, GOKUL DISTRIBUTORS, INDIGO COMMOTRADE, JUPITER TRADELINK, NEW ERA COMMO TRADE, SWIFT DISTRIBUTORS AND ZENITH MANAGEMENT AND ALL THESE PRIVATE LIMITED COM PANIES ARE HAVING THEIR BANK 8 ITA NO.577/K/2013 BINOD KUMAR JHA, AY 2009-10 ACCOUNTS IN THE SAME BANK BRANCH. THIS MODUS OPERA NDI CLEARLY REVEALS THAT THE ASSESSEE IS MERELY AN ACCOMMODATION ENTRY PROVIDER AND NOTHI NG ELSE. 6. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, TH E LD. COUNSEL FOR THE ASSESSEE RELIED ON THE DECISION OF COORDINATE BENCH IN THE C ASE OF ITO VS. SHRI PIYUSH PODDAR IN ITA NO. 1050/KOL/2011 FOR AY 2006-07 DATED 07.09.20 15, WHEREIN EXACTLY ON SIMILAR CIRCUMSTANCES, THE TRIBUNAL HAS DIRECTED THE AO TO ASSESS THE PEAK CREDIT AND BY OBSERVING HELD AS UNDER: 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS SEEN THAT THE ASSESSEE APART FROM HIS REGULAR INCOME HAD A BANK ACCOUNT WITH CENTRAL BANK OF INDIA WHICH WAS USED BY HIM ONLY FO R THE LIMITED PURPOSE OF PROVIDING ACCOMMODATION ENTRIES TO VARIOUS PARTIES. INITIALLY THE ASSESSEE TOOK A STAND THAT HE WAS DERIVING FINANCE COMMISSION @.25% OF ALL THE TRANSA CTIONS IN THE ACCOMMODATION ENTRY BUSINESS AND OFFERED THE SAME TO TAX., HOWEVER, HE SHIFTED HIS STAND BY ACCEPTING THE PEAK CREDIT THEORY BEFORE THE LD. CIT(A). THIS IS EVIDEN T FROM THE FACT THAT HE HAD NOT PREFERRED FURTHER APPEAL BEFORE THE TRIBUNAL AGAINST THE LD. CIT(A)S ORDER. IN ACCORDANCE WITH THE DIRECTIONS OF THE HONBLE CALCUTTA HIGH COURT, WE H AD EXAMINED THE VERACITY OF THE CLAIM OF PEAK CREDIT THEORY MADE BY THE ASSESSEE IN RESPE CT OF ALL THE TRANSACTIONS IN CENTRAL BANK OF INDIA. IT IS OBSERVED THAT THE ASSESSEE HAD ROTATED HIS OWN FUNDS IN CENTRAL BANK OF INDIA FOR PROVIDING ACCOMMODATION ENTRIES TO VARIOU S PARTIES. IT IS NOT DISPUTED THAT THE GENUINENESS OF THE TRANSACTION COULD NOT BE PROVED BY THE ASSESSEE BY MENTIONING THE NAMES, ADDRESSES, PAN, CONFIRMATION OF THE PARTIES TO WHOM THE PAYMENTS WERE MADE AND FROM PAYMENTS WERE RECEIVED BY THE ASSESSEE. HENCE IT IS PROVED THAT TRANSACTIONS CONTAINED IN THE BANK ACCOUNT ARE NOT GENUINE. ONCE THE TRANSACTIONS IN THE BANK ACCOUNT ARE PROVED INGENUINE THEN IT IS AN ACCEPTED PRACTIC E OF ADOPTING THE PEAK CREDIT THEORY FOR THE PURPOSE OF DETERMINATION OF UNDISCLOSED INCOME OF THE ASSESSEE. HENCE, RELIANCE PLACED BY THE LD. DR IN THE DECISION OF THE HONBLE ALLAHA BAD HIGH COURT REPORTED IN 276 ITR 38 WHICH REJECTED THE CONCEPT OF PEAK CREDIT THEORY IS NOT APPLICABLE TO THE FACTS OF THE INSTANT CASE. IN THE CASE BEFORE THE HONBLE ALLAHABAD HIGH COURT, THE ASSESSEE CLAIMED THAT THE CREDITS IN THE BANK ACCOUNT REPRESENTED GENUINE LOA NS BORROWED AND THE CHARACTER OF THE LOAN TRANSACTIONS WERE NOT DISPUTED AND HENCE THEIR LORDSHIPS OF ALLAHABAD HIGH COURT HELD THAT THE PEAK CREDIT THEORY WOULD NOT BE APPLI CABLE IN THAT CASE. BUT IN THE FACTS OF THE INSTANT CASE, THE ASSESSEE HAD CLEARLY OWNED UP THE TRANSACTIONS AND THAT HE IS ENGAGING HIMSELF IN ACCOMMODATION ENTRY BUSINESS WITH HIS OW N FUNDS AS WELL AS FUNDS RECEIVED FROM PARTIES TO WHOM THE ACCOMMODATION ENTRIES ARE PROVI DED BY THE ASSESSEE AND THE NAMES AND ADDRESSES OF SUCH PARTIES COULD NOT BE PROVIDED BY HIM FOR WANT OF MAINTENANCE OF BOOKS AND DETAILS. THIS GOES TO PROVE THAT THE GENU INENESS OF THE TRANSACTIONS CONTAINED IN THE ACCOMMODATION ENTRY BUSINESS AS REFLECTED IN TH E SAID BANK ACCOUNT COULD NOT BE PROVED BY THE ASSESSEE. THIS IS A DISTINCT AND CRUC IAL FACTOR WHICH DISTINGUISHES THE DECISION RENDERED BY THE HONBLE ALLAHABAD HIGH COU RT IN 276 ITR 38 WHICH WAS HEAVILY RELIED UPON BY THE REVENUE. 11. ON PERUSAL OF THE BANK ACCOUNT WITH CENT RAL BANK OF INDIA, WE ARE SATISFIED THAT THE DEPOSITS AND WITHDRAWALS ARE CLOSELY LINKED WIT H AND RELATED TO EACH OTHER ON DAY-TO- DAY BASIS. IT IS ALSO OBSERVED THAT THE LD. AO HAD NOT BROUGHT ANY MATERIAL OR EVIDENCE ON RECORD TO PROVE THAT THE WITHDRAWALS MADE BY THE AS SESSEE FROM THE SAID BANK ACCOUNT HAVING UTILIZED FOR MAKING ANY OTHER INVESTMENTS OU TSIDE THE BOOKS OR MEANT FOR ANY OTHER PURPOSE OTHER THAN FOR ACCOMMODATION ENTRY BUSINESS . IT IS PERTINENT TO LOOK INTO THE DECISION RENDERED BY THE KOLKATA TRIBUNAL IN THE CA SE OF MAHESH KUMAR GUPTA IN IT(SS)A. NO.11/KOL/2014 DATED 0.2.2005 WHEREIN ITAT OBSERVED THAT THE CLAIM OF THE ASSESSEE WAS THAT THE CHEQUE WITHDRAWALS WERE FOR GIVING LOAN FO R THE SHORT PERIOD. HELD AS FOLLOWS :- 9 ITA NO.577/K/2013 BINOD KUMAR JHA, AY 2009-10 THE AO CANNOT REFUSE TO GRANT SET OFF FOR THE WITH DRAWAL MADE BY CHEQUE WITHOUT BRINGING ON RECORD ANY MATERIALS SO THAT THE AMOUNT WITHDRAWN BY CHEQUE CANNOT HAVE BEEN RECEIVED BACK BY THE ASSESSEE AND UTILIZED BY HIM IN MAKING SUBSEQUENT DEPOSITS BY CHEQUE. TAKING ALL THIS INTO CONSIDERATION, WE ARE OF THE CONSIDERED OPINION THAT AO SHOULD ADOPT PEAK CREDIT METHOD TO ARRIVE AT THE UN DISCLOSED INCOME OF THE ASSESSEE IN THE UNDISCLOSED BANK ACCOUNT NO.SB 6664 WITH THE SYNDIC ATE BANK. REFERENCE MAY ALSO BE DRAWN TO THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF CIT VS SMT. P.K.NOORJEHAN REPORTED IN 237 ITR 570(SC) W HEREIN THEIR LORDSHIPS HAVE HELD THAT MERE UNSATISFACTORINESS OF THE EXPLANATION OFFERED BY THE ASSESSEE, DOES NOT, AND NEED NOT, AUTOMATICALLY RESULT IN DEEMING THE VALUE OF INVEST MENT TO BE THE INCOME OF THE ASSESSEE. THAT IS STILL A MATTER WITHIN THE DISCRETION OF THE OFFICER AND, THEREFORE, OF THE TRIBUNAL. IN OTHER WORDS, THE DISCRETION HAS BEEN CONFERRED ON T HE INCOME TAX OFFICER U/S 69 OF THE ACT TO TREAT THE SOURCE OF INVESTMENT AS THE INCOME OF THE ASSESSEE IF THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT FOUND SATISFACTORY AND THE SAID DISCRETION HAS TO BE EXERCISED KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR CASE. THE INCOME TAX OFFICER IS NOT OBLIGED TO TREAT THE VALUE OF INVESTMENT AS INCOME IN EVERY CASE WHERE THE EXPLANATION OFFERED BY THE ASSESSEE IS FOUND TO BE UNSATISFACTO RY. 12. HENCE IT WOULD BE UNREASONABLE TO TAX ALL THE DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE. TO THIS EXTENT, WE DO NOT APPRECIATE THE ACTION OF THE LD. AO IN TAXING THE ENTIRE CREDITS OF RS.6,30,89,413/- AS UNDISCLOSED INCOME O F THE ASSESSEE FOR A.Y.2006-07. TO PUT THIS ONGOING DISPUTE TO REST, IN THE INTEREST OF JU STICE AND FAIR PLAY, WE DIRECT THE LD. AO TO ASSESS THE PEAK CREDIT IN THIS CASE IN RESPECT OF B OTH CASH AS WELL AS CHEQUE TRANSACTION CONTAINED IN THE SAID BANK ACCOUNT BY VERIFYING THE VERACITY OF THE FIGURES WORKED OUT BY THE ASSESSE AND BRING TO TAX THE SAME. WE DRAW SUPP ORT FROM THE DECISION RENDERED BY C BENCH OF KOLKATA ITAT IN ITA NO.2069/KOL/2010 FOR A .Y.2007-08 DATED 23.03.2012 IN THE CASE OF ITO VS SHRI GANGA PRASAD VYAS WHEREIN IT WA S HELD THAT WE FIND THAT THE ASSESSEE HAS FILED STATEMENT OF P EAK CREDIT I.E. DEPOSIT AND WITHDRAWALS FROM THE BANK ACCOUNT OF SBBJ WHEREIN THE PEAK CRED IT AS ON 24.01.2007 WAS AT RS.1,80,247/-. WE FURTHER FIND THAT THE MONEY DEPOS ITED IN THE BANK ACCOUNT WAS WITHDRAWN EITHER ON THE SAME DAY OR ON SUBSEQUENT DATES. IT I S SEEN THAT THE TOTAL ADDITION OF THE AGGREGATE DEPOSITS IN THE BANK ACCOUNT AFTER GIVING BENEFIT OF WITHDRAWALS IS THE PEAK AMOUNT AND IN THAT CASE PEAK AMOUNT IS TO BE ADDED. WE FIND THAT THE ASSESSEE HAS MAINTAINED A BANK ACCOUNT WHICH IS ADMITTEDLY NOT D ISCLOSED TO THE REVENUE AND THERE IS NO DOUBT THAT THE DEPOSITS IN THIS BANK ACCOUNT REPRES ENTS UNDISCLOSED INCOME OF THE ASSESSEE TO BE ASSESSED AS UNDISCLOSED INCOME BUT QUA ONLY T HE PEAK AMOUNT. THE ASSESSEE HAS FILED COMPLETE STATEMENT OF PEAK DEPOSIT AND WITHDRAWALS WHICH IS AT RS.1,87,247/- AND BEFORE CIT(A). WE ARE OF THE VIEW THAT THE CIT(A) HAS RIGH TLY DIRECTED THE AO TO RESTRICT THE ADDITION TO THE EXTENT OF PEAK AMOUNT AND WE CONFIR M THE SAME. THIS ISSUE OF REVENUES APPEAL IS DISMISSED. 13. HOWEVER, WE WOULD LIKE TO MAKE IT CLEAR TH AT THIS DIRECTION TO THE LD. AO TO ASSESS THE PEAK CREDIT IN THIS CASE SHOULD NOT BE CONSTRUE D AS A CONCLUSIVE PROOF IN THE HANDS OF THE BENEFICIARY IN THE SAID BANK ACCOUNT FOR EXPLAI NING THEIR AMOUNTS. ACCORDINGLY, THIS ISSUE IS SET ASIDE TO THE FILE OF THE LD. AO TO COM PLETE THE ASSESSMENT IN ACCORDANCE WITH THE DIRECTIONS MENTIONED HEREINABOVE. 7. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE DIRECT THE AO TO ASSESS THE PEAK CREDIT BEING A SUM OF RS.1,01,40,000/- AS COMPUTED BY ASSESSEE ON THE BASIS OF DEPOSITS MADE IN THESE SIX BANK ACCOUNTS WITH AXIS BANK LTD. IN LIEU OF CASH DEPOSITS ADDED BY THE AO AT RS.83,48,16,130/-. ACCORDINGLY, THE AO WILL V ERIFY THE PEAK AND WILL MAKE 10 ITA NO.577/K/2013 BINOD KUMAR JHA, AY 2009-10 ADDITION OF THE PEAK AMOUNT ONLY. ACCORDINGLY, THI S ISSUE OF ASSESSEES APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 9. ORDER IS PRONOUNCED IN THE OPEN COURT ON 20.11.2 015 SD/- SD/- (WASEEM AHMED) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 20TH NOVEMBER, 2015 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT SHRI BINOD KUMAR JHA, C/O D. J. SHAH & CO., KALYAN BHAWAN, 2, ELGIN ROAD, KOLKATA-20 2 RESPONDENT ITO, WARD-25(2), KOLKATA. 3 . THE CIT(A), KOLKATA 4. 5. CIT KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .