Loading judgment…
No AI summary yet for this case.
Before: Shri M. Balaganesh, & Shri S.S. Viswanethra Ravi
This appeal of the revenue arises out of the order of the Learned CITA in Appeal No.99/CIT(A)-IV/09-10 dated 25-02-2010 for the Asst Year 2007-08 passed against the order of assessment framed by the Learned AO u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’).
Shri.Amitabh Bhattacharjee, JCIT, the Learned DR argued on behalf of the revenue and Shri. A.K.Tulsian, FCA, the Learned AR argued on behalf of the assessee.
The issue to be decided in this appeal is whether in the facts and circumstances of the case the Learned CITA is justified in granting relief of Rs. 45,57,218/- out of the total credits in the undisclosed bank account of the assessee.
The brief facts of this issue is that the assessee had an undisclosed bank account with ABN Amro Bank , Brabourne Road Branch, Kolkata vide Savings Bank Account No. 1185161. The bank statements were collected by the Learned AO directly from the bank account for the period 1.1.2005 to 31.3.2008. The said bank account was opened on 7.3.2006. In the said bank account, lot of cash and cheque deposits were made. Similarly lot of withdrawals were also made. The assessee when confronted with the said bank account by the Learned AO , explained that the said bank account was opened in the name of the assessee by M/s Hindusthan Cargo Carriers, a partnership firm, wherein his wife, father and brother were partners. The assessee also adduced reasons for the said firm opening the bank account in his name by explaining that there was a fraud committed in one of the branch office by the staff of ABN Amro Bank , wherein certain fraudulent withdrawals were made from Hindusthan Cargo Carriers and accordingly to safeguard the interests of the firm, the said firm had opened the bank account in the name of the assessee to take care of business transactions at Chennai branch belonging to the firm. From the said bank account, major withdrawals represent freight charges payment to M/s Container Corporation of India Ltd, a Government of India Undertaking for the purpose of business of M/s Hindusthan Cargo Carriers. The assesee also explained that the contents of the ABN Amro Bank account represent business transactions of the said partnership firm carried out by the firm in his name for safety purposes as explained supra. The Learned AO proceeded to bring to tax the entire credits appearing in the said bank account to the tune of Rs. 48,32,616/- as unexplained cash credit on the ground that the said firm M/s Hindusthan Cargo Carriers had not considered the said bank account in their returns of income. On first appeal, the Learned CITA accepted the entire contentions of the assessee and the detailed paper book filed by the assessee containing the entire details of M/s Hindusthan Cargo Carriers, return acknowledgements and audited financials of the said firm wherein the contents of the ABN Amro Bank account were duly considered by the said firm and affidavit from the said firm that the contents in the bank account belongs to them. The entire contents of the undisclosed bank account represented the business transactions of M/s Hindusthan Cargo Carriers, but however, the Learned CITA proceeded to adopt the peak credit addition and gave direction to the Learned AO to add the peak credit in the said bank account to the tune of Rs. 2,75,398/- and granted relief of Rs. 45,57,218/-. Aggrieved, the revenue is in appeal before us on the following ground:- “The ld. CIT(A) has erred in law as well as in fact in allowing relief to Rs.45,57,218/- out of total addition of Rs.48,32,616/- made on account of deposit made into undisclosed bank account. “
The Learned DR argued that the assessee is neither a partner nor an employee of the said partnership firm M/s Hindusthan Cargo Carriers. He argued that the contents of the said bank account were not reflected in the books of the firm. He further argued that the assessee was not able to prove that the withdrawals in the said bank account were meant to represent expenses incurred on behalf of Hindusthan Cargo Carriers. In response to this, the Learned AR vehemently supported the orders of the Learned CITA and vehemently opposed to the factually incorrect arguments of the Learned DR with regard to the fact that the contents of ABN Amro Bank account were not reflected in the accounts of the firm M/s Hindusthan Cargo Carriers. He argued that the detailed paper book containing pages 1 to 159 were duly filed by the assessee before the Learned CITA containing the entire details of M/s Hindusthan Cargo Carriers in the form of their bank statements, return acknowledgements, audited financials, affidavit from them confirming and owning the transactions of ABN Amro Bank. He also took us to the relevant para of the Learned CITA order wherein the affidavit of Hindusthan Cargo Carriers which were placed before the Learned AO during assessment proceedings were conveniently ignored by the Learned AO while framing the assessment. He further stated that the case law relied upon by the Learned CITA on the decision of this jurisdictional tribunal for adopting peak credit is well placed even though without prejudice to the main contention, no addition could be made towards the bank account of Hindusthan Cargo Carriers in the hands of the assessee.
We have heard the rival submissions and perused the materials available on record. We find that the contentions of the Learned DR are factually incorrect from the facts recorded in the Learned CITA order and the paper book filed before us. We also find that the Learned CITA had adopted the peak credit theory for putting this dispute to rest only as an alternative argument of the assessee during the first appellate proceedings . Since the assessee is not in appeal before us on the adoption of peak credit theory, we are not inclined to give any findings in that regard. Hence it can safely be concluded that the assessee had in principle accepted as an alternative argument for adoption of peak credit addition to put all the disputes with regard to undisclosed bank account to rest. Now the short point that arises for consideration that whether the adoption of peak credit theory is right in the facts and circumstances of the case. The credits and debits in the bank account represents business transactions of M/s Hindusthan Cargo Carriers on which point there is no dispute. However we find that the assessee had accepted for adoption of peak credit theory in the instant case. The theory of peak credit has been given due credence in the following cases:-Page 4, 9.1 to Page 6:-
“9.1 The principle of peak credit have been given due weightage in the following decisions:- The Hon’ble Madras High Court in the case of CIT vs. Pioneer Engineering Syndicate 188 ITR 287 (Madras) order dated 2.12.1981 has held as under:- “The Department’s contention before us is based on the question of law which we have earlier set out. The contention is that the assessee’s offer for assessment must itself be regarded as sufficient justification for the levy of penalty. We do not agree with this submission. There may be cases where a finding of concealment may be supported by the assessee’s own admission of guilt. This, however, is not such a case. It is true that the assessee did not produce evidence to support the case of the hundi loans being genuine. It is also true that the assessee was willing to get the assessment settled on the basis that the peak credit in that account represented its taxable income. This offer of assessment, by itself, cannot, however, amount to an admission that income had been concealed. On the contrary, even the petition by the assessee under section 271(4A) to the Commissioner made it quite clear that the hundi loans were genuine and the assessee’s willingness to get assessed on the basis of the peak credit was only because it had become difficult for the assessee to prove the genuineness of the credits in view of the conditions created by the denial by the hundi bankers of their advances. Having regard to the terms of the assessee’s settlement petition to the Commissioner which furnished the one and only basis for the penalty levied by the Commissioner which furnished the one and only basis for the penalty levied by the Inspecting Assistant Commissioner, we are satisfied that the Tribunal was right in holding that the petition, by itself, would furnish no evidence whatever of concealment of income. Our answer to the question of law propounded by the Department is, therefore, in the affirmative and in favour of the assessee.”
The Hon’ble Madras High Court in the case of CIT vs. K.M.N Naidu 221 ITR 451 (Madras) has held as under:- “Section 68, read with Section 145 of the Income tax Act, 1961 – Cash Credit- Assessment year 1973-74- whether where ITO rejected account books as defective while determining business income of assessee, on basis of same account books it was not reasonable for him to work out peak of same account books it was not responsible for him to work out peak credit for making addition in respect of unexplained cash credits-Held, yes”
The decision of ITAT Kolkata in the case of ITO vs Uday Shankar Mahawar vide order dated 16.07.2010 is reproduced as under:- 4.7 I have carefully considered the various legal pronouncements relied upon by the appellant. They also support the contention of the appellant that only the combined peak credit of the undisclosed bank accounts should be considered as undisclosed income.
The decision of ITAT, Ahmadabad in the case of Nitesh R. Dalwadi vide for A.Yrs 2009-2010 order dated 11.02.2014 at para 6 is reproduced as under:- “6. After hearing Ld. DR, we find that there is no dispute about the fact that in the immediate proceeding year AO has made the addition by applying peak credit theory in respect to the cash deposit in the same bank account and there was no change of circumstances during the year under appeal, therefore, we feel that Ld. CIT(A) was justified in directing the AO to follow the same theory of peak credit while quantifying the undisclosed income of the assessee. Therefore, we are not inclined to interfere with order passed by ld. CIT(A) and the same is hereby upheld. “
The Hon’ble Madras High Court in the case of CIT vs. P.M.P Soundara Pandiyan Brothers 13 Taxman 471 (Madras) has held as under:- “Although as many as three questions have been framed, the real issue for decision is whether the Tribunal’s finding that the assessee had not concealed its income in respect of cash credits can be regarded as a reasonable view on the facts on record. This issue, in our judgment, is fairly presented in the third question of law before us. We have earlier referred to the factual background to the case as well as the content of the proceedings before various authorities. We have also referred to the reasoning of the Tribunal. It would have been seen that the Tribunal had not wholly ruled out the department’s case about assessee’s efforts at concealment. All they found was that in so far as the amounts representing cash credits were concerned, there really was no material for the department on the basis of which it could confidently be said that they represented the assessee’s income which had not suffered tax and which was concealed in the garb of cash credit entries in accounts. It is true that the assessee itself had offered the peak credit for the purpose of assessment. But it is not suggested anywhere in the proceedings either of the ITO or of the IAC that while offering the peak credit for the assessment purposes, the assessee had confessed that the cash credits in question really represented concealed income. The record does not show what it was which impelled the assessee to short circuit the assessment process by offering the peak credit for assessment. Whatever might be the compelling motive there is not a shred of evidence even in the penalty proceedings to show that any of the credits were not genuine or that they are really camouflaged or concealed income of the assessee. None of the persons in whose names the cash credits appear in the assessee’s books were shown to have been examined by the ITO or even by the IAC for the purpose of making out a case against the assessee to the effect that they are not genuine loan transactions. In these circumstances, we must accept the ultimate finding of the Tribunal as one based on a reasonable view of the facts and circumstances of the case. Our answer to question no.3 is against the revenue. It follows that similar answer must be returned for the two other questions as well. “ In view of the aforesaid facts and Judicial Precedents, the ld.AO is hereby directed to assess the peak credit to be worked out and put this issue to rest. 6.1 We find that this issue is covered by the decision of this tribunal in the case of ACIT vs Lokenath Pd.Gupta in IT(SS) A No. 190 / Kol / 2003 & IT(SS) A No. 185/Kol/2003 wherein this tribunal on the theory of peak credit held:-
“Making the additions of aggregate deposits in the bank account without giving the benefit of withdrawals made by the assessee from time to time is not justified. The Ld.CITA has rightly treated the peak balance of Rs. 7,50,975/- as an unexplained investment made by the assessee in the nature of credits in the said bank account and , therefore, the addition of Rs. 7,50,975/- is only called for. The order of the Learned CITA is, therefore, upheld.”
6.2 In view of the aforesaid facts and circumstances and judicial precedents relied upon, we are not inclined to interfere with the decision of the Learned CITA in this regard. Accordingly, the grounds raised by the revenue are dismissed.
In the result, the appeal of the revenue is dismissed.
THIS ORDER IS PRONOUNCED IN OPEN COURT ON 15 / 10/2015