BIPINKUMAR AMRITLAL JAIN, MUMBAI V. ITO 14(1)(4), MUMBAI

ITA 6514/MUM/2012

• Counselvise Citation: 651419914 RSA 2012
• Duration Of Justice: 2 year(s) 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 29-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 29-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: YOGESH KAMAT SR
• Assessee Lawyers: MATHURIA
• Keywords: Unexplained investment; Deemed to accrue or arise in india; Question of law
• Section: 69C; 68; 69

Judgement Text

1 , INCOME TAX APPELLATE TRIBUNAL,MUMBAI - B, BENCH , , BEFORE S/SH. JOGINDER S INGH ,JUDICIAL MEMBER & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO. 6514 /MUM/20 1 2 , / ASSESSMENT YEAR - 20 0 9 - 10 SHRI BIPIN KUMAR AMRITLAL JAIN 215, MOGHA NIWAS, 4TH FLOOR, ROOM NO.11 , THAKURDWAR ROAD MUMBAI - 400 002. PAN: ADPPJ 6525 R VS INCOME TAX OFFICER 14(1)(4) NARIMAN POINT M UMBAI. ( / A PPELLANT ) ( / RESPONDENT ) /ASSESSEE BY :SHRI M.S. MATHURIA / REVENUE BY :S HRI YOGESH KAMAT - SR.AR / DATE OF HEARING : 29 - 0 6 - 2015 / DATE OF PRONOUNCEMENT : 03 - 0 7 - 2015 , 1961 254 ( 1 ) ORDER U/S.254(1)OF THE INCOME - TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER DT. 12.09.2012 OF T HE CIT(A) - 25, MUMBAI, THE ASSESSEE HAS RAISED FOLLOWING GROUND OF APPEAL : 1.ADDITION OF RS.20,18,500/ - OF CASH DEPOSITS IN THE COSMOS CO - OPERATIVE BANK LTD. (SAVING BANK A/C.) TO THE TOTAL INCOME: 1.1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) - 25 ERRED IN CONFIRMING THE ADDITION OF RS.20,18,50 0/ - OF CASH DEPOSITS IN THE COSMOS CO - OPERATIVE BANK LTD. (SAVING BANK A/C.) TO THE TOTAL INCOME OF THE APPELLANT. THE APPELLANT CRAVE LEAVE TO ADD, AMEND ALTER ANY/OR VARY ANY OF THE GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING. ASSESSEE,AN INDIVID UAL,DERIVING INCOME FROM BUSINESS AND OTHER SOURCES,FILED HIS RETURN OF INCOME ON 21.11.2009,DECLARING TOTAL INCOME OF RS.1,46,600/ - . ASSESSING OFFICER (AO) FINALISED THE ASSESSMENT U/S.143(3) OF THE ACT,ON 31.11.2011,DETERMINING THE TOTAL INCOME AT RS.21,6 5, 100/ - . 2. EFFECTIVE GROUND OF APPEAL PERTAINS TO ADDITION OF RS.20.18 LAKHS TO THE INCOME OF THE ASSESSEE . AS PER THE AIR INFORMATION THE ASSESSEE HAD DEPOSITED RS.20,18,500/ - IN THE COSMOS CO - OPERATIVE BANK LTD. (COSMOS).VIDE HIS LETTER DATED 28.06.20 11 HE ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE DIRECTING HIM TO FILE THE SOURCES FOR DEPOSIT OF THE ABOVE AMOUNT ALONG WITH DOCUMENTARY EVIDENCES.HE ASKED THE ASSESSEE TO SHOW THE REASONS FOR NOT DISCLOSING THE DETAILS OF THE BANK ACCOUNT OF COSMOS TO TH E DEPARTMENT.HE ALSO ASKED THE ASSESSEE AS TO WHY THE CASH DEPOSIT OF RS.20.18 LAKHS SHOULD NOT BE TREATED AS HIS INCOME FOR THE YEAR UNDER CONSIDERATION, U/S.69 OF THE ACT. 6514/M/12 BIPINKUMAR(09 - 10) 2 AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE ,THE AO HELD THAT HE HAD NOT DIS CLOSED THE EXISTENCE OF THE BANK ACCOUNT TO THE DEPARTMENT,THAT THE SUBMISSION OF THE ASSESSEE WAS AN AFTER THOUGHT,THAT EXPLANATION OF THE ASSESSEE PERTAINING TO TWO PARTS OF THE BUSINESS AND CASH DEPOSITS WAS A DAMAGE CONTROL EXERCISE,THAT THE RETURN FIL ED BY THE ASSESSEE CLEARLY CONTRADICTED THE SUBMISSIONS MADE BY THE ASSESSEE ,THAT THE CLAIM MADE BY THE ASSESSEE LACKS CREDENCE AND TRUTHFULNESS,THAT THE BANK ACCOUNT NOT SHOWN IN THE BOOKS OF ACCOUNT AND RETURN OF INCOME WAS A SAVINGS ACCOUNT,THAT AFTER T HE DETECTION OF THE SAID BANK ACCOUNT THE ASSESSEE HAD MADE A CLAIM ABOUT CARRYING OUT OF UNACCOUNTED RETAIL BUSINESS TO ESCAPE FROM THE CONSEQUENCES OF SECTION 69 OF THE ACT.THE AO TREATED THE CASH DEPOSITS OF RS. 20.18 LAKHS AS ASSESSEE S UNEXPLAINED INC OME UNDER SECTION 69. 3. AGGRIEVED BY THE ORDER OF THE AO THE ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE A UTHORITY (F A A ). BEFORE HIM, IT WAS CONTENDED THAT ASSESSEE HAD FILED REVISED COMPUTATION OF INCOME DURING THE COURSE OF ASSESSMENT P ROCEED INGS, THAT THE ASSESSEE HAD WORKED OUT THE PROFIT FROM RETAIL TRADING CARRIED OUT FROM THE C OSMOS B ANK A CCOUNT, THAT HE HAD OFFERED INCOME AT THE RATE OF 5% FOR TAXATION U/S. 44 AF OF THE ACT. ALTERNATIVELY IT WAS SUBMITTED THAT ONLY PEAK AM OUNT WAS LIABLE TO BE TAXED. THE F A A ASKED THE ASSESSEE AS TO WHETHER HE WAS ABLE TO FURNISH PURCHASE AND SALE BILLS OF UNDISCLOSED TRADE CARRIED OUT FROM THE SAID UNDISCLOSED BANK ACCOUNT, IT WAS STATED THAT NO SUCH BILLS WERE EXISTING AT THAT MOMENT. THE F A A HELD THAT THE ASSESSEE WAS NOT ABLE TO ESTABLISH CORRELATION BETWEEN DEBIT AND CREDIT ENTRIES IN THE SAID ACCOUNT WITH NECESSARY EVIDENCES. THE F A A FURTHER OBSERVED THAT CASH DEPOSITS WERE MADE IN SAVING BANK ACCOUNT THAT WAS NEVER DISCLOSED BY THE ASSESSEE IN THE R ETURN OF INCOME THAT IN THE RETURN THE ASSESSEE HAD DISCLOSED BUSINESS IN RETAIL TRADING IN TEXTILE IN THE NAME OF DARSHAN S ILK MILLS DISCLOSING SALES OF RS.37.58 LACS, THAT THE ASSESSEE HAD DECLARED PROFIT @2.56%, THAT IN ALL THE PRECEDING YEARS HE HAD SH OWN NET PROFIT @ 2.5% APPROX., THAT IN THE CAPITAL ACCOUNT AND IN THE BALANCE SHEET HE HAD DISCLOSED ONLY ONE BANK ACCOUNT, THAT THE AIR INFORMATION REVEALED THAT HE HAD A SAVING BANK ACCOUNT WHEREIN CASH DEPOSIT OF 20.18 LACS WAS MADE DURING THE YEAR, THA T ONLY AFTER CONFRONTATION OF THE UNDISCLOSED BANK ACCOUNT THE ASSESSEE CAME FORWARD WITH AN EXPLANATION STATING THAT THE BANK ACCOUNT REPRESENTED UNDISCLOSED TRADING ACTIVITY, THAT EXPLANATION OF THE ASSESSEE WAS NOT PLAUSIBLE THAT HE HAD ADOPTED DOUBLE F ACED STANCE, THAT HE HAD NOT DISCLOSED THE BANK ACCOUNT IN THE RETURN, THAT NONE OF THE TRANSACTIONS WERE REFLECTED IN THE BOOKS OF ACCOUNT. HE FURTHER OBSERVED THAT LD. AUTHORISED REPRESENTATIVE ( AR ) WAS ASKED TO ESTABLISH THE CLAIM OF THE ASSESSEE WITH NECESSARY EVIDENCE IN THE FORM OF PURCHAS AND SALE BILL WHICH HE COULD NOT PROVIDE, THE ASSESSEE WAS UNABLE TO ESTABLISH NECESSARY EVIDENCE AS TO GENUINENESS OF DEBIT AND CREDIT ENTRIES OF THE BANK ACCOUNT, THAT THE ASSESSEE HAD SHOWN NET PROFIT OF THE RAT E OF 5% FROM THE UNDISCLOSED INCOME AS AGAINST 2 - 2.5% NET PROFIT IN THE EARLIER YEARS, THAT THE RATE OF NP SHOWED THE UNRELIABLE BOOK RESULTS OF THE PRECEDING YEARS AS WELL AS THE YEAR UNDER APPEAL, THAT THE ASSESSEE WAS HAVING A CURRENT BANK ACCOUNT THAT WAS ALSO NOT DISCLOSED, THAT CASH DEPOSIT AND SAVING BANK ACCOUNT ONLY WERE COVERED UNDER THE AIR, THAT THE EXPLANATION OF THE ASSESSEE WAS NOT ACCEPTABLE WITH REGARD TO THE CASH DEPOSIT OF SAVING ACCOUNT OF C OSMOS, THAT IT WAS AN ATTEMPT TO ESCAPE FROM T HE CONSEQUENCES OF S.69.CONFIRMING THE ORDER OF THE AO HE UPHELD THE ADDITION OF RS. 20.18 LACS. 4. DURING THE COURSE OF HEARING B EFORE US, AR SUBMITTED THAT THE ASSESSEE HAD SUBMITTED REVISED 6514/M/12 BIPINKUMAR(09 - 10) 3 COMPUTATION OF INCOME, IN THE REVISED COMPUTATION THE UNDISCLOSE D BANK ACCOUNT WAS DISCLOSED, THE ASSESSEE HAD OFFERED THE NET PROFIT @ 5%, THAT THE ASSESSEE HAD CALCULATED THE PROFIT AS PER PROVISIONS OF S.44AF OF THE ACT. DEPARTMENTAL REPRESENTATIVE ( DR ) SUPPORTED THE ORDER OF THE AO AND THE F A A .HE ARGUED THAT THE AS SESSEE HAD DISCLOSED THE C OSMOS BANK A CCOUNT ONLY AFTER THE AIR INFORMATION WAS DISCLOSED BY THE AO TO THE ASSESSEE , THAT THE ASSESSEE HAD NOT PRODUCED ANY EVIDENCE ABOUT TRADING ACTIVITIES. 5 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BE FORE US. BEFORE PROCEEDING FURTHER WE WOULD LIKE TO REFER TO TWO CASES DIRECTLY DEALING WITH THE ISSUE AND DELIVERED BY THE HONBLE P&H HIGH COURT AND HIGH COURT OF DELHI. IN THE MATTER OF HIMMATRAM L AXMINARAIN (161ITR 7 ),D URING THE ASSESSMENT PROCEE DINGS,THE AO DISCOVERED THAT THE ASSESSEE HAD BEEN DOING BUSINESS OUTSIDE THE BOOKS OF ACCOUNT AND IN THAT SECRET BUSINESS, IT HAD IN VESTED AN AMOUNT OF RS. 73,075. THE EXPLANATION FURNISHED BY THE ASSESSEE WAS NOT ACCEPTED AND THE PROVISIONS OF SECTION 69 OF THE ACT WERE INVOKED.T HE SUM WAS ADDED AS I NCOME FROM UNDISCLOSED SOURCES. THE TRIBUNAL CONSIDERED THE MATERIAL ON RECORD AND UPHELD THE ORDER OF THE AO. ON A REFERENCE ,THE HONBLE P & H HIGH COURT HELD THAT IN VIEW OF THE FINDING THAT SALES WERE CONDUCTED SECRETLY AND WERE NOT ENTERED IN THE BOOKS OF ACCOUNT AND THE ASSESSEE HAD INVESTED RS . 73,075 IN THE SECRET BUSINESS PROVISIONS OF S ECTION 69 WAS CLEARLY ATTRACTED AND THAT T HE SUM IN QUESTION WAS ASSESSABLE U/S. 69 OF THE ACT. IN THE MATTER OF SITARAM VIJAYK UMA R (216 ITR 526)IT WAS FOUND THAT I N THE BANK ACCOUNTS OF THE ASSESSEE - FIRM WITH TWO BANKS, CREDITS AGGREGA TING TO RS. 7 LAKHS WERE FOUND. THE ASSESSEE TRIED TO EXPLAIN THAT THE CREDITS REPRESENTED CASH SALES MADE BY THE ASSESSEE. THE AFORESAID EXPLANATION OF THE ASSESSEE WAS REJECTED BY THE AO AND AN AMOUNT OF RS. 7 LAKHS WAS ADDED. THE TRIBUNAL DELETED THE ADDITION. IT ALSO REJECTED THE DEPARTMENT'S REFERENCE APPLICATION ON THE GROUND THAT ADDITIONS HAD BEEN MADE UNDER SECTION 69 AND NOT SECTION 68 OF THE ACT AND THEREFORE, THE ADDITIONS COULD NOT BE MADE IN THE ASSESSME NT YEAR UNDER CONSIDERATION THAT AS SUCH, NO REFERABLE QUESTION OF LAW AROSE.ON AN APPLICATION TO THE HONBLE DELHI HIGH COURT TO DIRECT REFERENCE,IT WAS H ELD BY THE COURT THAT THE PROVISIONS OF SECTIONS 68 AND 69 OF THE ACT HAD TO BE CONSIDERED IN THE INSTANT CASE. 5 .A. THE PHRASEOLOGY OF SECTION 69 OF THE ACT CREATES A LEGAL FICTION. IN OTHER WORDS IT IS A DEEMING PROVISION WHICH CONFERS A DISCRETION ON THE AO IN THE MATTER OF TREATING THE SOURC E OF INVESTMENT. COURTS HAVE HELD THAT THE INTRODUCTION OF SECTION WAS DEFINITELY A MEASURE TO PREVENT EVASION OF TAX . SOME OF THE GENERAL PRINCIPLES GOVERNING THE SECTION CAN BE SUMMARISED AS UNDER: I. THE S ECTION OPENS WITH THE WORDS WHERE IN THE FINAN CIAL YEAR IMMEDIATELY PRECEDING THE ASSESSMENT YEAR, THE ASSESSEE HAS MADE INVESTMENT . . .. THEREFORE, IN THE FIRST INSTANCE IT IS INCUMBENT UPON THE ASSESSING AUTHORITY TO ESTABLISH THAT THERE WERE INV ESTMENTS MADE BY THE ASSESSEE; THAT SUCH INVESTMENTS WERE NOT RECORDED IN THE BO OKS OF ACCOUNT MAINTAINED BY HIM ; AND THAT, SUCH INVESTMENTS HAD BEEN MADE IN THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE ASSESSMENT YEAR IN QUESTION. IN SHORT,U NDER SECTION 69 OF THE ACT, ADDITIONS ON ACCOUNT OF UNEXPLAINED INVES TMENTS CAN BE MADE AS DEEMED INCOME OF THE ASSESSEE, IF THE ASSESSEE HAS MADE INVESTMENTS WHICH ARE NOT RECORDED IN THE BOOKS MAINTAINED BY THE ASSESSEE AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF INVESTMENTS OR THE EXPLANATION OF FERED BY THE ASSESSEE IS, IN THE OPINION OF THE A O, NOT SATISFACTORY. 6514/M/12 BIPINKUMAR(09 - 10) 4 II. THE S ECTION CLEARLY LAYS DOWN THE PRIMARY RULE THAT THE INITIAL BURDEN OF PROVING THE NATURE OF SOURCE OF INVESTMENTS, NOT R ECORDED IN THE BOOKS OF ACCOUNT,IS ON THE ASSESSEE. IF THE AS SESSEE FAILS TO EXPLAIN AND PROVE THE NATURE AND SOURCE OF INVESTMENTS, THE UNEXPLAINED INVESTMENTS ARE ASSESSABLE U /S. 69 AND THERE IS NO BURDEN ON THE DEPARTMENT TO PROVE THAT SUCH INVESTMENTS ARE THE INCOME OF THE ASSESSEE. III. T HE MOMENT A SATISFACTOR Y EXPLANATION IS GIVEN ABOUT SUCH NATURE AND SOURCE BY THE ASSESSEE, THEN THE SOURCE WOULD STAND DISCLOSED AND WILL, THEREFORE, BE KNOWN AND THE INCOME WOULD BE TREATED UNDER THE APPROPRIATE HEAD OF INCOME FOR ASSESSMENT AS PER THE PROVISIONS OF THE ACT. W HEN THE INCOME CANNOT BE SO CLASSIFIED UNDER ANY ONE OF THE HEA DS OF INCOME UNDER SECTION 14 , IT FOLLOWS THAT THE QUESTION OF GIVING ANY DEDUCTIONS UNDER THE PROVISIONS WHICH CORRESPOND TO SUCH HEADS OF INCOME WILL NOT ARISE. IV. FOR THE PURPOSE OF SECTION S 69 OF THE ACT , IT IS NOT NECESSARY THAT THE BOOKS OF ACCOUNT HAVE TO BE REJECTED EXPRESSLY OR THAT IT IS TO BE, IN EXPRESS TERMS, RECORDED THAT THE BOOKS OF ACCOUNT ARE NOT RELIABLE OR THE EXPLANATION IS NOT SATISFACTORY. IT HAS TO BE GATHERED FROM THE O RDER ITSELF WHETHER IN EFFECT THE AO WAS SATISFIED WITH THE EXPLANATION OR HAD FOUND THAT THE BOOKS OF ACCOUNT WERE NOT RELIABLE. IT IS NOT THE TECHNICAL TERMS, WHICH MUST APPEAR IN THE ORDER. IT IS THE SUBSTANCE OF THE ORDER THAT THE AO WAS NOT SATISFIED WITH THE EXPLANATION WHICH IS RELEVANT. V. THE AO IS EMPOWERED TO ADD THE UNEXPLAINED INVESTMENT INCOME OF THE ASSESSEE IF THE FACTS WARRANT THE SAME .BUT,IT WOULD DEPEND UPON THE FACTS OF EACH CASE AND THE EVIDENCE AND THE PROBABLE COURSE OF EVENTS THAT WO ULD DETERMINE WHETHER THE INVESTMENT MADE IN THE NAME OF THE ASSESSEES RELATIVE COULD BE TREATED AS THE UNEXPLAINED INCOME OF THE ASSESSEE , PARTICULARLY IN THE CASE OF SEARCH. IN A CASE WHERE IT IS FOUND THAT THE ASSESSEES RELATIVES HAVE NO SOURCE OF INCO ME AND IT I S ALSO PROVED THAT THE ASSESSEE ALONE COULD HAVE UTILISED HIS UNEXPLAINED MONEY FOR THE PURCHASE OF THE PROPERTY STANDING IN THE NAME OF HIS CLOSE RELATIVE, THE FINDING RENDERED BY THE APPELLATE AUTHORITIES TO TREAT THE AMOUNT OF INVESTMENT AS TH E UNDISCLOSED INCOME OF THE ASSESSEE WOULD BE A FINDING OF FACT. VI. A CLOSE READING OF TWO SECTIONS I.E.SECTION 68 AND 69 MAKES IT CLEAR THAT IN SECTION 68, THERE HAS TO BE A CREDIT ENTRY IN THE BOOKS OF ACCOUNT, WHEREAS IN SECTION 69, THERE MAY NOT BE AN ENTRY IN THE BOOKS OF ACCOUNT. VII. SECTIONS 68,69,69A, 69B AND 69C ARE ALL PART OF THE SAME SCHEME WHERE CERTAIN AMOUNTS THOUGH NOT PROVED TO BE INCOME OF THE ASSESSEE OF THE PREVIOUS YEAR CONCERNED ARE FOR THE PURPOSE OF CHARGING TO TAX, DEEMED TO BE SO B Y CREATING A LEGAL FICTION ABSOLVING THE DEPARTMENT FROM ITS INITIAL DUTY TO PROVE THAT ANY SUCH INCOME IS OF THE ASSESSEE. THE FICTION CREATED UNDER SECTIONS 68, 69,69A, 69B AND 69C BY ITSELF CANNOT BE EXTENDED TO PENALTY PROCEEDINGS TO RAISE A PRESUMPTION ABOUT CONCEALMENT OF SUCH INCOME. 5 .B. WE FIND THAT THAT WHILE FILING RETURN OF INCOME ASSESSEE HAD NOT DISCLOSED THE COSMOS BANK ACCOUNT,THAT HE HAD DEPOSITED CASH AMOUNTING TO RS.20.18 LACS IN THE SAID BANK ACCOUNT, THAT IN THE REVISED COMPUTATION OF INC OME HE INCLUDED THE BANK ACCOUNT ALONGWITH OTHER BANK ACCOUNT MAINTAINED WITH RAJKOT COOPERATIVE BANK, THAT HE HAD OFFERED NP @5% FROM THE ALLEGED BUSINESS CARRIED OUT BY HIM,THAT THE A O HAD RECEIVED DEFINITE INFORMATION IN FORM OF AIR ABOUT THE CASH 6514/M/12 BIPINKUMAR(09 - 10) 5 DEPOS ITS MADE BY THE ASSESSEE IN THE COSMOS BANK,THAT THE ASSESSEE WAS DULY CONFRONTED WITH THE INFORMATION CONTAINED IN THE AIR ABOUT THE CASH DEPOSITS,THAT THE ASSESSEE HAD NOT OFFERED ANY EXPLANATION ABOUT THE DEPOSITS, THAT NO DOCUMENTARY EVIDENCE WERE PROD UCED BEFORE THE AO OR THE FAA THAT COULD PROVE THE CARRYING ON OF THE ALLEGED BUSINESS.BEFORE US ALSO THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE.THE ASSESSEE WAS AWARE THAT THE FAA HAD GIVEN A FINDING ABOUT NOT PRODUCING OF DOCUMENTS.EVEN THEN HE CHOSE TO NOT TO STRENGTHEN HIS CASE BY BRINGING SOME KIND OF POSITIVE EVIDENCE THAT COULD LEAD TO PROVE THAT THE SO CALLED BUSINESS EXISTED.NOT A SINGLE PURCHASE BILL PROVING THE BUSINESS HAS BEEN PRODUCED.THEREFORE,WE ARE OF THE OPINION THAT,O N THE BASIS OF THE C ONDUCT OF THE ASSESSEE AND THE MATERIAL ON RECORD,THE FINDINGS RECORDED BY THE FAA WERE JUSTIFIED. THE SETTLED PRINCIPLES OF TAXATION JURISPRUDENCE STIPULATE THAT I F A PERSON MAKES AN INVESTMENT IN A PARTICULAR FINANCIAL YEAR, THEN, THE AMOUNT SO INVESTED CAN REASONABLY BE ACCEPTED, THEN THE ONLY CONCLUSION CAN BE A PRESUMPTION THAT HE HAS EARNED MUST REPRESENT EITHER HIS CURRENT INCOME OR HIS SAVINGS FROM PAST INCOME OR RECEIPT BY LOAN OR OTHERWISE FROM SOME OTHER PERSON. IF SUCH PERSON FAILS TO EXPLAIN TH E SOURCE OF THE INVESTMENT WHICH THE SAID AMOUNT DURING THE FINANCIAL YEAR IN QUESTION. THIS IS WHAT HAS BEEN DONE BY THE LEGISLATURE BY CREATING A FICTION UNDER SECTION 69 OF THE ACT.IF THE SAID FICTION IS APPLIED TO THE FACTS OF THE CASE,THEN IT CAN SAFE LY BE STATED THAT THE ORDER OF THE FAA DOES NOT SUFFER FROM ANY LEGAL INFIRMITY.CONFIRMING HIS ORDER WE DECIDE THE EFFECTIVE GROUND OF APPEAL AGAINST THE ASSESSEE. HOWEVER,WE WOULD LIKE TO MENTION THAT THE FAA HAD NOT DEALT WITH THE ARGUMENTS OF ADDING PEAK AMOUNT ONLY.IN OUR OPINION,IN THE INTEREST OF JUSTICE,THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE AO FOR QUANTIFICATION OF THE PEAK AMOUNT.WE ARE CONFIRMING THE ORDER OF THE FAA,AS STATED EARLIER.THE AO WOULD DECIDE THE PEAK AMOUNT THAT COULD BE ADDED TO THE TOTAL INCOME OF THE ASSESSEE.WITH THESE OBSERVATIONS,WE DECIDE THE EFFECTIVE GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE,IN PART. AS A RESULT,APPEAL FILED BY THE ASSESSEE STANDS PARTLY ALLOWED. . ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD JU LY ,2015. 3, , 2015 SD/ - SD/ - ( / JOGINDERSINGH ) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / MUMBAI, /DATE: 03 .0 7 .2015 . . . JV . SR.PS . 6514/M/12 BIPINKUMAR(09 - 10) 6 / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , / ITAT, MUMBAI.