Shri Vikas A.Shah, Ahmedabad V. The Dy.CIT.,Cent.Circle-1(2), Ahmedabad

ITSSA 311/AHD/2011

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 2944 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 11 month(s) 24 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 21-03-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 08-03-2017
• Assessment Year: 1999-2000
• Appeal Filed On: 28-03-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIBHA BHALLA
• Assessee Lawyers: GYAN PIPARA
• Keywords: Income from undisclosed sources; Document seized; Peak credit; Documents seized
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT(SS)A NOS . 311 TO 313/AHD/2011 (ASSESSMENT YEARS: 1999-2000 TO 2001-02) VIKASH A. SHAH 210, ANAL FLATS, NR. VIJAY CHAR RASTA, NAVRANGPURA, AHMEDABAD APPELLANT VS. THE DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 1(2), AAYAKAR BHAVAN, ASHRAM ROAD, AHMEDABAD RESPONDENT PAN: APWPS4465G & IT(SS)A NOS. 74 TO 76/AHD/2012 (ASSESSMENT YEARS: 1999-2000 TO 2001-02) ACIT, CENTRAL CIRCLE 1(2), ROOM NO.305, 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM ROAD, AHMEDABAD APPELLANT VS. MANSI BUILDERS LTD., VIKAS CHAMBERS, NR. DADA SAHEB NA PAGLA, NAVRANGPURA, AHMEDABAD - 380009 RESPONDENT PAN: AAALM0004E IT(SS)A NOS. 311-313/AHD/11 & 74-76/AHD/12 (VIKASH A. SHAH & MANSI BUILDERS LTD.) A.Y. 1999-2000 TO 2001-02 - 2 - /BY ASSESSEE : SHRI GYAN PIPARA, A.R. /BY REVENUE : MS. VIBHA BHALLA, CIT. D.R. /DATE OF HEARING : 08.03.2017 /DATE OF PRONOUNCEMENT : 21.03.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS BATCH OF SIX APPEALS PERTAINS TO TWO DIFFERENT ASSESSEES NAMELY SHRI VIKASH A. SHAH AND HIS CLOSELY HELD COMPANY M/ S. MANSI BUILDERS LTD. THE SAID FORMER ASSESSEE HAS FILED HIS THREE APPEAL S IT(SS)A NOS. 311 TO 313/AHD/2011 AGAINST THE CIT(A)-III, AHMEDABADS OR DER DATED 18.01.2011 IN APPEAL NO. CIT(A)III/121/ACIT CC-1(2)/08-09 FO R ASSESSMENT YEARS 1999-2000. HIS LATTER TWO APPEAL IT(SS)A NOS. 312 TO 313/AHD/2011 ARISE AGAINST THE VERY CIT(A)S COMMON ORDER DATED 20.01. 2011 IN APPEALS NOS. CIT(A)III/120,119, 118, 117, 116 & 115/ACIT CC-1(2 )/08-09 FOR ASSESSMENT YEARS2000-01 & 2001-02; RESPECTIVELY. 2. THE REVENUES ABOVESTATED THREE APPEALS IT(SS)A NOS. 74 TO 76/AHD/2012 EMANATE AGAINST THE CIT(A)-I, AHMEDABAD S COMMON ORDER DATED 30.11.2011 IN APPEALS NOS. CIT(A)-I/CC.1(2)/1 93 TO 197/2009-10; RESPECTIVELY FOR ASSESSMENT YEARS 1999-2000 TO 2001 -02. FORMER ASSESSEES THREE APPEALS INVOLVE PROCEEDINGS U/S. 153A(1)(B) R.WS. 144 OF THE OF THE INCOME TAX ACT, 1961, IN SH ORT THE ACT. REVENUES APPEALS ON THE OTHER HAND ARE IN PROCEEDINGS U/S. 1 53C R.W.S. 153A(B) R.W.S. 144 OF THE ACT. IT(SS)A NOS. 311-313/AHD/11 & 74-76/AHD/12 (VIKASH A. SHAH & MANSI BUILDERS LTD.) A.Y. 1999-2000 TO 2001-02 - 3 - 3. WE COME TO RIVAL PLEADINGS FIRST. IT APPEARS FI RST OF ALL THAT THE FORMER ASSESSEES THREE APPEALS ARISE IN SUBSTANTIVE ASSES SMENTS WHEREAS THE REVENUES AS MANY CASES PERTAIN TO PROTECTIVE ASSES SMENT. THE FORMER ASSESSEE SHRI VIAKSH A. SHAH RAISES THREE GROUNDS E ACH IN HIS APPEALS ON IDENTICAL LINES. HE ASSAILS CORRECTNESS OF THE CIT (A)S ACTION UPHOLDING ASSESSING OFFICERS ACTION TO THE EXTENT OF DISALLO WING/ADDING UNDISCLOSED INCOME/RECEIPTS OF RS.2,77,46,780/-, RS.1,99,94,595 /- & RS.49,96,890/-; RESPECTIVELY IN THE THREE IMPUGNED ASSESSMENT YEARS . HIS SECOND SUBSTANTIVE IDENTICAL GROUND CHALLENGES BOTH THE LOWER AUTHORIT IES ACTION ADDING AGRICULTURAL INCOMES AMOUNT OF RS.3,42,200/-, RS.4, 95,000/- AND RS.9.3LACS; RESPECTIVELY CORRESPONDING TO THE THREE ASSESSMENT YEARS IN QUESTION. THIRD SUBSTANTIVE GROUND PLEADS THAT THE LOWER AUTHORITIE S HAVE WRONGLY DISALLOWED EXPENSES OF RS.50,000/- EACH IN FIRST TWO ASSESSMEN T YEARS AND RS.40,000/- IN THE LAST ASSESSMENT YEAR. 4. THE REVENUES ABOVESTATED THREE APPEALS RAISE SI NGLE SUBSTANTIVE GROUND AVERRING THAT THE CIT(A) HAS ERRED IN DELETI NG PROTECTIVE ADDITIONS OF UNDISCLOSED INCOME/RECEIPTS OF RS.2.77CRORES, RS.1. 99CRORES AND RS.49.96LACS HEREINABOVE; AS MADE BY THE ASSESSING OFFICER. 5. SHRI GYAN PIPARA, C.A. APPEARS AS ASSESSEES AU THORIZED REPRESENTATIVE. HE FIRST OF ALL SUBMITS THAT THE A SSESSEES SECOND SUBSTANTIVE GROUND OF AGRICULTURAL INCOME AMOUNTS HEREINABOVE A LREADY FORM PART OF HIS CASH DEPOSITS/UNDISCLOSED INCOME ADDITION FORMING S UBJECT MATTER OF FIRST SUBSTANTIVE GROUND. HE THEREAFTER INFORMS US THAT THE ASSESSEE/APPELLANT DOES NOT WISH TO PRESS FOR HIS THIRD SUBSTANTIVE GROUND OF AD HOC DISALLOWANCE OF RS.50,000/- EACH IN FIRST TWO ASSESSMENT YEARS AND RS.40,000/- IN THE LAST ASSESSMENT YEARS PERTAINING TO EXPENDITURE CLAIMS I N VIEW OF THE FACT THAT THE IT(SS)A NOS. 311-313/AHD/11 & 74-76/AHD/12 (VIKASH A. SHAH & MANSI BUILDERS LTD.) A.Y. 1999-2000 TO 2001-02 - 4 - SAME INVOLVES MEAGER AMOUNTS THEREIN. WE THEREFORE OBSERVE THAT ASSESSEES SECOND SUBSTANTIVE GROUND SHALL BE DEALT WITH IN HI S FIRST SUBSTANTIVE GROUND AND THIRD SUBSTANTIVE GROUND IS DISMISSED AS NOT PR ESSED. 6. IT EMANATES FROM THE CIT(A)S ORDER IN ASSESSMEN T YEARS 2000-01 IN FORMER ASSESSEES CASE THAT HE HAS FINALIZED A COMM ON ADJUDICATION IN ASSESSMENT YEARS 2000-01 TO 2005-06 ON 20.01.2011. WE SOUGHT TO KNOW ABOUT STATUS OF THE SAID REMAINING ASSESSMENT YEARS APPEALS. LEARNED REPRESENTATIVES STATE THAT A CO-ORDINATE BENCHS DE CISION IN SHRI VIKASH A. SHAHS APPEAL IT(SS)A NOS. 314 TO 317/AHD/2011 ALON GWITH REVENUES APPEAL IT(SS)A NOS. 77 & 78/AHD/2012 FOR ASSESSMENT YEARS 2002-03 TO 2005-06 IN SAID ASSESSEES CASES AND REVENUES CROS S APPEALS IN ASSESSMENT YEARS 2003-04 TO 2004-05; RESPECTIVELY HAS RESTORED THE APPEALS BACK TO THE CIT(A) AS HE HAD NO SPECIFICALLY ADJUDICATED VARIO US SPECIFIC GROUNDS PLEADED THEREIN. LEARNED REPRESENTATIVES ARE FURT HER UNANIMOUS THAT ALL THESE SIX APPEALS RAISE AN IDENTICAL ISSUE OF CORRECTNESS OF UNDISCLOSED INCOME/RECEIPTS ADDITION. WE THUS TREAT FORMER ASS ESSEES FIRST APPEAL IT(SS)A NO.311/AHD/2011 FOR ASSESSMENT YEAR 1999-20 00 AS THE LEAD CASE. 7. THIS ASSESSEE IS AN INDIVIDUAL TRADING IN LAND, DEVELOPMENT AND CONSTRUCTION ACTIVITIES. THE LATTER ASSESSEE M/S. MANSI BUILDERS IS HIS CLOSELY HELD COMPANY. THE DEPARTMENT CARRIED OUT A SEARCH ACTION ON 09.02.2005. THE ASSESSEE APPEARS TO HAVE GOT RECORDED HIS STATE MENT. THE SAID SEARCH ACTION FURTHER LED TO SEIZURE OF VARIOUS DOCUMENTS/ BOOKS/VALUABLE ARTICLE AND OTHER ALLEGED INCRIMINATING EVIDENCE FROM ASSESSEE S TOYOTA CAR VEHICLE. THE DEPARTMENT INVENTORIZED THE SAME AS NUMBER A-1 TO A-271. THE ASSESSING OFFICER THEREAFTER INITIATED SECTION 153A PROCEEDINGS BY ISSUING NOTICE DATED 14.07.2005. THE ASSESSEE SEEMS TO HAV E FILED HIS RETURN ON IT(SS)A NOS. 311-313/AHD/11 & 74-76/AHD/12 (VIKASH A. SHAH & MANSI BUILDERS LTD.) A.Y. 1999-2000 TO 2001-02 - 5 - 27.12.2006 ONLY STATING INCOME OF RS.75,030/- AFTER VARIOUS NOTICES AS WELL AS INITIATION OF NECESSARY PENALTY PROCEEDINGS. THE A SSESSING OFFICER TERMED ASSESSEES RETURN TO BE A DELAYING TACTIC. HE THEN ADVERTED TO CASH REPORT PREPARED ON THE BASIS OF SEIZED MATERIAL FOUND DURI NG SEARCH AS CONFIRMED IN TRIAL BALANCE TRANSACTIONS IN VIEW OF ASSESSEES SE ARCH STATEMENTS ANSWERS AT NO.152 AND 153 TO OBSERVE THAT HE HAD RECEIVED AN A MOUNT OF RS.2,89,71,780/- AND PAID A SUM OF RS.2,28,13,845/- DURING THE RELEVANT PREVIOUS YEAR. THE ASSESSING AUTHORITY ISSUED A SH OW CAUSE NOTICE SEEKING TO ADD THE ABOVE RECEIPTS / PAYMENTS AS TAXABLE INCOME . IT FURTHER NOTICED THAT THE ABOVE RECEIPTS SUM INCLUDED ASLALI GODOWN RENT OF RS.12.25LACS AS WELL. THE ASSESSING OFFICER THEN PROCEEDED TO HEAVILY REL IED UPON ASSESSEES SEARCH STATEMENT AND TRIAL BALANCE PREPARED ON THE BASIS OF SEIZED MATERIAL TO ADD THE SUM IN QUESTION OF RS.2,77,46,780/- I.E. RS .2,89,71,780/- - RS.12,25,000/- AS WELL AS THE ABOVE PAYMENTS OF RS. 2,28,13,845/- AS INCOME DERIVED FROM THE ABOVE BUSINESSES AND UNEXPLAINED I NVESTMENTS; RESPECTIVELY. 8. THE ASSESSEE PREFERRED APPEAL. THE CIT(A)S ORD ER UNDER CHALLENGE INDICATES THAT HE GRANTED AS MANY AS 22 HEARINGS BE TWEEN 28.02.2007 TO 29.12.2010 (BOTH DATES INCLUSIVE). THE ASSESSEE TH EREIN SOUGHT TIME TO PREPARE TRIAL BALANCE AS BASED ON THE ABOVE SEIZED DOCUMENTS TO WORK OUT THE PEAK AMOUNTS IN RESPECT OF ADVANCES GIVEN/TAKEN, FI LE BANK STATEMENTS/ PASS BOOKS, ORIGINAL RETURN BEFORE SEARCH ETC. HE HOWEVE R FILED WRITTEN SUBMISSIONS SEEKING TO ADD ONLY PEAK OF THE AMOUNTS AS UNACCOUNTED INCOME AS PER SEIZED CASH BOOK. THE ASSESSEE FURTHER PLAC ED ON RECORD PEAK BALANCE WORKING IN THE COURSE OF LOWER APPELLATE PROCEEDING S. THE SAME INTER ALIA WAS IN THE NATURE OF YEARWISE TOTAL OF CREDIT AND D EBIT ENTRIES IN CASH REPORTS PERTAINING TO THE ASSESSEE AS WELL AS HIS CLOSELY H ELD COMPANY (SUPRA); ACTUAL IT(SS)A NOS. 311-313/AHD/11 & 74-76/AHD/12 (VIKASH A. SHAH & MANSI BUILDERS LTD.) A.Y. 1999-2000 TO 2001-02 - 6 - VIS--VIS THOSE TAKEN IN ASSESSMENT ORDER, DATEWISE MAXIMUM CREDIT BALANCE IN CASH REPORTS FROM 02.04.1998 TO 31.03.1999; RESP ECTIVELY. THE SAID LAST HEAD REVEALED MAXIMUM CREDIT BALANCE ON 31.03.1999, MINIMUM CREDIT BALANCE AS ON 02.04.1998 AND MAXIMUM DEBIT BALANCE ON 27.08.1999 OF RS.84,00,350/-, RS.850/- & RS.20,16,267/-; RESPECTI VELY. 9. IT IS EVIDENT THAT THE CIT(A) WAS OF THE OPINION THAT THE ABOVE PEAK PRINCIPLE WOULD APPLY ONLY IN AN INSTANCE OF ROTATI ON OF FUNDS INSTEAD OF THE FACTS IN THE INSTANT CASE WHEREIN THE ASSESSEE HAD INCLUDED ALL TRANSACTIONS OF AMOUNTS RECEIVED IN BANK ACCOUNT AS WELL AS THOSE I NVESTED FROM THE SAID ACCOUNTS. HIS VIEW WAS THAT THE ASSESSEE HAD NOT G IVEN THE MONEY DEPOSITED ON INTEREST SO AS TO PROVE RE-DEPOSIT OF THE VERY M ONEY AS PRINCIPAL IN HIS BANK ACCOUNTS. THE CIT(A) THEREAFTER ONCE AGAIN DI RECTED THE ASSESSEE TO SEGREGATE ALL CREDIT AND DEBIT TRANSACTIONS IN HIS BANK ACCOUNT, SEPARATE EXPENSES AND INCOME AND TO WORK OUT THE PEAK IN RES PECT OF ADVANCES GIVEN OR TAKEN. THE ASSESSEE DID NOT COMPLY THE SAID DIR ECTIONS. THIS MADE THE CIT(A) TO ONCE AGAIN REJECT APPLICATION OF PEAK PRI NCIPLE IN ASSESSEES CASE THEREBY PARTLY UPHOLDING ASSESSING OFFICERS ACTION AS FOLLOWS: 12. THE ABOVE MENTIONED EXPENSES OF RS. 11, 73, 46 5 CANNOT BE STATED TO HAVE BEEN AVAILABLE WITH THE APPELLANT FOR GIVING L OANS TO SOME PERSONS. THEREFORE, THE THEORY OF PEAK CANNOT BE APPLIED IN RESPECT OF SUCH EXPENSES. FURTHER, FOR THE SAKE OF DISCUSSION, IF IT IS PRESU MED THAT THE APPELLANT IS IN THE BUSINESS OF MONEY LENDING THEN ALSO THE PEAK CA NNOT BE TAKEN ON DAY-TO- DAY BASIS. IN THAT EVENT, IT IS TO BE ESTIMATED THA T THE APPELLANT HAS ADVANCED LOAN TO A PERSON ON THE AVERAGE FOR 2 MONTHS. IN OT HER WORDS, THE MONEY GIVEN BY THE APPELLANT ON DAY NUMBER 1 TO A PARTICU LAR PERSON CAN AT BEST BE EXPECTED TO HAVE BEEN RETURNED TO HIM ON 61 SI DAY. IN THAT EVENT, INSTEAD OF WORKING OUT THE PEAK ON DAILY BASIS, IT HAS TO BE W ORKED OUT ON THE BASIS OF 60 DAYS. THEREFORE, THE WORKING OF PEAK GIVEN BY TH E APPELLANT CANNOT BE ACCEPTED BY ME AS CORRECT. 13. AS STATED ABOVE A QUERY WAS RAISED BY ME ON 23 /12/2010 TO THE AR THAT THE STATEMENT FOR PEAK WORKING DOES NOT SHOW A NY INTEREST INCOME IN THE IT(SS)A NOS. 311-313/AHD/11 & 74-76/AHD/12 (VIKASH A. SHAH & MANSI BUILDERS LTD.) A.Y. 1999-2000 TO 2001-02 - 7 - SEIZED DOCUMENTS, WHEREAS THERE IS AN INDICATION OF INTEREST PAYMENT IN THE SEIZED DOCUMENTS. IT WAS SPECIFICALLY ASKED TO COMM ENT AS TO WHY IT SHOULD NOT BE CONSIDERED THAT THE APPELLANT IS NOT IN THE BUSINESS OF FINANCE. IN THAT EVENT, WHY THE PEAK THEORY SHOULD BE ADOPTED IN THI S CASE. TO THIS QUERY NO SUBMISSION HAS BEEN MADE BY THE APPELLANT SO FAR. A S MENTIONED BY THE AO AND AS CAN BE SEEN FROM THE ABOVE DETAILS, THE APPE LLANT HAS NOT BEEN COMPLYING WITH THE NOTICES OR QUARRIES EITHER RAISE D BY THE AO OR BY ME. I THEREFORE, HAVE NO HESITATION IN HOLDING THAT THE T HEORY OF PEAK CANNOT BE APPLIED IN THIS CASE BECAUSE OF THE ABOVE MENTIONED REASONS. MY VIEW IS SUPPORTED BY THE DECISION OF HONOURABLE HIGH COURT OF ALLAHABAD IN THE CASE OF VIJAY AGRICULTURAL INDUSTRIES 294 ITR 610, THEREFORE, THE TOTAL OF ALL THE RECEIPTS OR INVESTMENTS (WHICHEVER IS HIGHER) H AS TO BE ADOPTED AS THE INCOME OF THE APPELLANT ON THE BASIS OF THE SEIZED DOCUMENTS. 14. THE AO IS DIRECTED TO VERIFY THE CORRECT TOTALL ING ON THE BASIS OF THE WORKING SUBMITTED BY THE APPELLANT AS ABOVE AND SUB STITUTE THE CORRECT FIGURE FOR THE TOTAL. IN PRINCIPLE, THE TOTAL OF THE DEBITS OR THE CREDITS WHICHEVER IS HIGHER, WOULD REPRESENT THE UN ACCOUNTED INCOME OF THE APPELLANT. 15. IT MAY BE MENTIONED THAT THE APPELLANT IN HIS W RITTEN SUBMISSIONS HAS TALKED ABOUT THE 7 BANK ACCOUNTS MAINTAINED BY THE APPELLANT. IN ORDER TO KNOW WHETHER THE DEBIT AND CREDITS IN THESE BANK AC COUNTS ARE DULY ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS, THE AR WAS ASKED TO FURNISH BANK STATEMENTS ALONG WITH BANK BOOK. HOWEVER, NO SUCH B ANK STATEMENTS OR BANK DETAILS WERE FURNISHED BEFORE ME. IN ORDER TO KNOW WHETHER THE BANK ACCOUNTS ARE DULY DISCLOSED TO THE DEPARTMENT OR NO T, THE AR WAS ASKED TO FURNISH ALL THE ORIGINAL RETURN OF INCOME FILED BEF ORE THE DATE OF SEARCH ALONG WITH ITS ANNEXURES, PROFIT AND LOSS A/C. IF ANY. B UT NO SUCH COPIES OF ORIGINAL RETURNS WERE FILED. IN ORDER TO KNOW WHETHER THE AP PELLANT HAS GENUINE AGRICULTURE INCOME OR NOT, THE AR WAS ASKED TO FURN ISH THE DETAILS OF LAND HOLDINGS SUCH AS 7/12 STATEMENTS, THE DETAILS OF TH E CROPS GROWN AND SOLD, ETC. HOWEVER, THE SAME HAS NOT BEEN FURNISHED BY TH E AR TILL DATE. NOR ANY VALID REASONS FOR NOT SUBMITTING THE DETAILS HAVE B EEN FILED BY THE APPELLANT. IN THE ABSENCE OF ALL THESE DETAILS, I HAVE NO OPTI ON BUT TO CONFIRM THE ADDITIONS MADE BY THE AO IN THE ASSESSMENT ORDER. 10. A PERUSAL OF THE INSTANT CASE FILE REVEALS THA T A CO-ORDINATE BENCHS ORDER DATED 20.10.2016 DIRECTED THE ASSESSEE TO FIL E COMPLETE DETAILS OF WORKING (A) TRANSACTIONS ON REVENUE ACCOUNT (B) COM PUTATION OF PEAK AMOUNT ON THE BASIS OF BANK DEPOSITS AND WITHDRAWALS, (C) DETAILS OF OTHER (FINANCE ETC.) TRANSACTIONS AND ITS LINKAGE WITH (B). THE S AID BENCH FURTHER RECORDED IT(SS)A NOS. 311-313/AHD/11 & 74-76/AHD/12 (VIKASH A. SHAH & MANSI BUILDERS LTD.) A.Y. 1999-2000 TO 2001-02 - 8 - LEARNED DEPARTMENTAL REPRESENTATIVES AGREEMENT THA T A REMAND REPORT IN RESPECT OF THE ABOVE , IS REQUIRED TO BE CALLED FRO M THE ASSESSING OFFICER AND ONLY THEN, THE INSTANT HEREIN COULD BE FINALIZED. 11. THE ASSESSEE HAS FILED THE ABOVE DIRECTED DETAI LS INTER ALIA CONTAINING TRANSACTIONS IN REVENUE ACCOUNT COMPRISING OF CONST RUCTION TRANSACTIONS (ANNEXURE A/1 IN PAGES 1 TO 10), ASLALI GODOWNS RE NT (ANNEXURE A/2 PAGE 11) ALONGWITH COMPUTATION OF PEAK AMOUNT (ANNEXURE B/1 PAGE 12 TO 16 ON THE BASIS OF BANK DEPOSITS AND WITHDRAWALS) AND CAS H RECEIPTS AND PAYMENTS (FINANCE TRANSACTIONS) IN ANNEXURE B/2 PAGES 17 TO 24 AS FOLLOWED BY DETAILS OF OTHER TRANSACTIONS; FINANCE ETC. AS WELL AS ITS LINKAGE WITH BANK DEPOSITS AND WITHDRAWALS (ANNEXURE C PAGES 25 TO 33); RESPEC TIVELY. HE HAS FURTHER PREPARED A BRIEF SUMMARY THEREOF AT PAGE 34 QUA ALL THE ABOVESTATED HEADS. THE SAME INDICATES CONSTRUCTION RELATED TRANSACTION S RECEIPTS OF RS.51,23,775/- AND PAYMENTS OF RS.15,48,056/-. HE THEN DECLARES ASLALI GODOWN RENTS RECEIPTS OF RS.11.35LACS. THE LAST H EAD OF CASH AND FINANCE TRANSACTIONS SHOWS RECEIPTS OF RS.2,58,06,449/- AND PAYMENTS OF RS.2,21,16,818/- INDICATING PEAK BALANCE OF RS.36,8 1,631/-. THE ASSESSEE THUS PLEADS THAT THE RECEIPTS TOTAL IN THE ABOVE CA SE COMES TO RS.3,20,65,224/- AND PAYMENTS GROSS AMOUNT IS OF RS.2,36,64,874/-. HE THEREAFTER RAISES THREE CONTENTIONS I.E. ONLY GP OF 8% COULD BE ADDED ON B USINESS RECEIPTS IN CONSTRUCTION ACCOUNT SINCE THE ASSESSING OFFICER HA S HIMSELF CONCLUDED THAT THE SAID SUMS ARE HIS BUSINESS TRANSACTIONS (SUPRA) . HIS SECOND PLEA IS THAT THE ENTIRE RENT RECEIPT OF RS.11.35LACS REQUIRES TO BE TREATED AS INCOME SINCE ITS GENUINENESS IS NOWHERE IN DOUBT. THE ASSESSEE S THIRD SUBMISSION IS THAT ONLY A PEAK BALANCE OF RS.36,89,631/- HEREINABOVE R EDUCED BY A HOUSING LOAN OF RS.24.50LACS COMING TO RS.12,39,631/- OF NET PEA K IS TO BE ADDED SINCE THE IT(SS)A NOS. 311-313/AHD/11 & 74-76/AHD/12 (VIKASH A. SHAH & MANSI BUILDERS LTD.) A.Y. 1999-2000 TO 2001-02 - 9 - ACCOMPANYING ANNEXURE HIGHLIGHTS IN DETAILS ALL THE CASH DEPOSITS AND PAYMENTS. 12. MS. VIBHA BHALLA FILES BEFORE US A PETITION THA T SHE HAD NOT MADE ANY AGREEMENT / CONCESSION BEFORE THE LD. CO-ORDINATE B ENCH ON 20.10.2016 (SUPRA). SHE PLEADS THAT THE HIGHLIGHTED PORTION C ONTAINED TO THIS EFFECT IN SAID ORDER HAS BEEN MISTAKENLY ATTRIBUTED TO HER. S HE STRONGLY DENIES TO HAVE DILUTED REVENUES STAND SUPPORTING THE CIT(A)S OPI NION THAT FACTS OF THE INSTANT CASE DO NOT ATTRACT PEAK BALANCE THEORY. 13. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO R IVAL SUBMISSIONS. THE FIRST QUESTION BEFORE US IS AS TO WHETHER PEAK BALA NCE PRINCIPLE DESERVES TO BE APPLIED IN FACTS OF THE INSTANT CASE OR NOT. IF WE ACCEPT THIS PRINCIPLE IN ASSESSEES FAVOUR, IT WOULD IN ANY WAY RENDER THE R EVENUES ABOVESTATED PETITION RAISING A TECHNICAL OBJECTION AS INFRUCTUO US. WE NOW REFER TO HONBLE JURISDICTIONAL HIGH COURTS DECISION IN [2015] 55 T AXMANN.COM 308 (GUJ) CIT VS. TIRUPATI CONSTRUCTION CO. INVOLVING A CASE OF S IMILAR UNACCOUNTED TRANSACTIONS REPORTED IN SEIZED MATERIAL. THEIR LOR DSHIPS OBSERVE IN FACTS OF THE SAID CASE THAT ONLY THE AMOUNT OF HIGHEST PEAK FIGURE COULD BE ADDED. WE WISH TO REPEAT HERE THAT THE SAID ASSESSEE WAS ALSO ENGAGED IN THE VERY BUSINESS. THIS TRIBUNALS CO-ORDINATE DECISION IN [2004] 3 SOT 96 ITO VS. MAHESH KUMAR ALSO ECHOES THE VERY PRINCIPLE. HONB LE JURISDICTIONAL HIGH COURTS YET ANOTHER DECISION IN [2014] 50 TAXMANN.C OM 419 (GUJ) CIT VS. MANOJ INDRAVADAN CHOKSHI HOLDS THAT IN CASE WHERE S OURCE OF DEPOSITS IS EXPLAINED, SUBSEQUENT WITHDRAWAL THEREFROM IS NOT R EQUIRED TO BE JUSTIFIED. WE TAKE NOTE OF THE SAID SETTLED LEGAL PROPOSITION TO OBSERVE THAT IT IS NOWHERE NECESSARY THAT THE ABOVE PEAK PRINCIPLE IS APPLICAB LE ONLY IN MONEY LANDING BUSINESS. THE NET CONCLUSION THEREFORE THAT FLOWS FROM THE ABOVE LEGAL IT(SS)A NOS. 311-313/AHD/11 & 74-76/AHD/12 (VIKASH A. SHAH & MANSI BUILDERS LTD.) A.Y. 1999-2000 TO 2001-02 - 10 - BACKDROP IS THAT THE CIT(A)S ACTION IN NOT APPLYIN G PEAK BALANCE PRINCIPLE IN FACTS OF THE INSTANT CASE IS NOT SUSTAINABLE. WE T HUS PROCEED TO EXAMINE ASSESSEES ABVOESTATED ANNEXURES IN COMPLIANCE TO L EARNED CO-ORDINATE BENCHS DIRECTIONS. THE REVENUES PETITION HEREINA BOVE DISPUTING TO HAVE MADE ANY CONCESSION ON 20.10.2016 IS THUS RENDERED INFRUCTUOUS. 14. WE NOW COME TO ASSESSEES STATEMENTS (A), (B) & (C) AS FOLLOWED BY SUMMARY THEREOF. THERE CAN BE NO DISPUTE THAT THIS ASSESSEE IS ENGAGED IN DEVELOPMENT AND CONSTRUCTION BUSINESS. HIS STATEME NT TO THIS EFFECT IN ANNEXURE A/1 COMPILING DETAILS OF ALL TRANSACTIONS FROM 02.04.1998 TO 26.03.1999 HAVE NOWHERE DISPUTED IN THE COURSE OF H EARING. WE DEEM IT APPROPRIATE TO OBSERVE HERE THAT BOTH THE LEARNED R EPRESENTATIVES ARE IN POSSESSION OF THE CASE RECORDS. THE REVENUE DOES N OT OBJECT TO CORRECTNESS OF ANY OF THE ASSESSEES ABOVESTATED TABULATION IN ANNEXURES A/1 TO C. THE VERY FACTUAL POSITION RATHER CONTINUES IN ALL THE T HREE ASSESSMENT YEARS. WE REVERT BACK TO THE FIRST ISSUE OF CONSTRUCTION RELA TED TRANSACTIONS ALREADY TREATED UNDER THE BUSINESS HEAD IN THE COURSE OF AS SESSMENT. WE THUS OBSERVE THAT LARGER INTEREST OF JUSTICE WOULD BE MET IF ONL Y THE PROFIT ELEMENT EMBEDDED THEREIN INSTEAD OF THE ENTIRE SUM IS DIREC TED TO BE ADDED SINCE THE SAME ALSO INVOLVES PAYMENTS UNDER THE VERY ACCOUNT. WE THEREFORE DIRECT HE ASSESSING AUTHORITY TO ACCESS GP @8% ON THIS FIRST HEAD OF CONSTRUCTION AND FRAME A CONSEQUENTIAL ASSESSMENT. HE SHALL FURTHER ASSESS THE ENTIRE RENT AMOUNT OF RS.11.35LAKHS AS INCOME SINCE ALL DETAILS OF THIS HEAD ARE AT PAGE 11 OF THE INSTANT COMPILATION. WE NOW PROCEED TO D EAL WITH ASSESSEES CASH AND FINANCE TRANSACTION WHOSE NET PEAK COMES TO RS. 12,39,631/- WHICH IS TREATED AS HIS INCOME IN ABSENCE OF ANY COGENT EXPL ANATION. THE ASSESSING OFFICER SHALL ACCORDINGLY FRAME CONSEQUEN TIAL ASSESSMENT AS PER IT(SS)A NOS. 311-313/AHD/11 & 74-76/AHD/12 (VIKASH A. SHAH & MANSI BUILDERS LTD.) A.Y. 1999-2000 TO 2001-02 - 11 - LAW. THE ASSESSEES APPEAL IT(SS)A NOS. 311/AHD/20 11 RAISING THIS SOLE REMAINING GROUND IS PARTLY ACCEPTED. 15. WE NOW PROCEED TO DEAL WITH ASSESSEES LATTER T WO APPEAL IT(SS)A NOS. 312 & 313/AHD/2011 FOR ASSESSMENT YEARS 2000-0 1 & 2001-02. BOTH THE LEARNED REPRESENTATIVES HAVE ALREADY INDICATED THAT THERE IS NO DISTINCTION ON FACTS OR ISSUE INVOLVE HEREIN VIS--VIS IN ASSES SMENT YEAR 1999-2000 ADJUDICATED HEREINABOVE. WE NOTICE FIRST OF ALL TH AT THE ASSESSEE HAS FILED HIS NECESSARY STATEMENT IN FURTHERANCE TO ABOVE DIRECTI ONS DATED 20.10.2016. IT IS EVIDENT IN ASSESSMENT YEAR 2000-01 THAT HIS CONS TRUCTION RELATED TRANSACTIONS DISCLOSE RECEIPTS OF RS.5,70,050/- AND PAYMENTS OF RS.11,86,844/-. THIS IS FOLLOWED BY CASH AND FINAN CE TRANSACTIONS SHOWING RECEIPTS OF RS.2,03,58,795/- AND PAYMENTS OF RS.199 ,24,463/- RESULTING IN PEAK AMOUNT OF RS.48,27,068/- AS ON 27.02.2000 INVO LVING OPENING BALANCE OF RS.36,89,631/- AS ON 01.04.1999 WHICH IN ANY CAS E STANDS ASSESSED IN PRECEDING ASSESSMENT YEAR LEAVING BEHIND NET PEAK O F RS.11,37,437/-. 16. WE NOW ADVERT TO ASSESSEES COMPUTATION IN LAST ASSESSMENT YEAR 2001- 02. THE SAME INDICATES CONSTRUCTION RELATED TRANSA CTIONS RECEIPTS OF RS.15,700/- AND PAYMENTS OF RS.4,91,936/- FOLLOWED BY ASLALI GODOWN RENT RECEIPT OF RS.1.4LACS AND CASH AND FINANCE TRANSACT IONS RECEIPTS OF RS.49,00,290/- WITH PAYMENTS OF RS.40,84,950/- STAT ING PEAK BALANCE OF RS.49,39,303/- AS ON 19.01.2001 INCLUDING OPENING B ALANCE OF RS.41,23,963/- AS ON 01.04.2000 WHICH IN ANY CASE IS NOT TO BE ADD ED RESULTED IN NET PEAK OF RS.8,15,340/-. WE REPEAT OUR OBSERVATIONS IN ASSES SMENT YEAR 1999-2000 (SUPRA) THAT VERACITY OF ALL THESE STATEMENTS HAS N OWHERE BEEN REBUTTED IN THE COURSE OF HEARING DESPITE THE FACT THAT ALL THE SEA RCH RECORD IS PRESENT IN COURT. WE ACCORDINGLY DIRECT THE ASSESSING OFFICER TO ASSE SS GP @8% ON ASSESSEES IT(SS)A NOS. 311-313/AHD/11 & 74-76/AHD/12 (VIKASH A. SHAH & MANSI BUILDERS LTD.) A.Y. 1999-2000 TO 2001-02 - 12 - CONSTRUCTION RELATED TRANSACTIONS, TREAT ENTIRE REN T RECEIPTS AS INCOME AND TREAT THE NET PEAK AMOUNTS HEREINABOVE AS INCOME IN CONSE QUENTIAL ASSESSMENTS TO BE FRAMED AS PER LAW. THESE TWO LATTER APPEALS IT( SS)A NOS. 312 & 313/AHD/2012 ARE PARTLY ACCEPTED. 17. WE REFER TO OUR ABOVE FINDINGS AND CONCLUDE THA T SINCE WE HAVE ALREADY ACCEPTED ASSESSEES APPEALS CHALLENGING SUB STANTIVE ADDITIONS IN PART , REVENUES CROSS APPEALS IT(SS)A NOS. 74 TO 76/AHD/2 012 SEEKING TO REVIVE PROTECTIVE ADDITIONS DESERVE TO BE DECLINED. ORDER ED ACCORDINGLY. 18. ASSESSEES THREE APPEALS ARE PARTLY ALLOWED WHE REAS REVENUES THREE APPEALS ARE DISMISSED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 21 ST DAY OF MARCH, 2017.] SD/- SD/- ( MANISH BORAD ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 21/03/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 / GUARD FILE. BY ORDER / . // . /0