2017 (6) TMI 523 - HC - Income Tax

Undisclosed income u/s 69 - activity of giving emeralds to the petitioner on approval basis - money lending activity or not - Whether peak credit theory can be applied - validity of order of Settlement Commission - Held that - If emeralds were given on Jakad basis, it cannot be for a long period because if emeralds are not approved, it would be returned - the seized documents were showing transaction for long duration - the books of account of the parties do not show a single entry of purchase of emeralds - petitioner had decoded the figure on the documents with help of Chartered Accountant and submitted that total amount involved in the money lending is ₹ 9,71,400/- with peak amount of ₹ 4,61,000/- - This itself proves that it is a case of money lending Emeralds cannot be given on approval by recording on currency notes but can be on a plain paper - on analysis of the seized materials it was noticed that no date of repayment was available for many advances - The calculation of peak credit theory is applied for those entries for which dates of advance and repayment are available - hence advances for which no dates are available are held to be not paid back till date of search - currency notes were recovered having writing and is not a case of unaccounted debit and credit simplicitor, thus peak credit theory was not applied - matter is remanded back to the Settlement Commission to decide the issue of decoding afresh, involvement of the petitioner in money lending and other issues - matter remanded back

Issues Involved:
1. Whether the transactions between the petitioner and Mr. Rajkumar Sharma were for money lending or emeralds given on approval basis.
2. The correctness of the code used for decoding the figures, specifically whether 1 should be taken as 1000 or 1,00,000.
3. The applicability of the "peak credit theory" in calculating the undisclosed income.

Detailed Analysis:

1. Transactions: Money Lending vs. Emeralds on Approval Basis
The petitioner contended that the transactions with Mr. Rajkumar Sharma were for emeralds given on approval basis (referred to as "Jakad") and not for money lending. The Settlement Commission, however, found that the seized materials, including loose papers, note books, and currency notes, indicated money lending activities. The materials showed calculations of interest on a bi-monthly basis, which is typical in money lending. The petitioner’s regular books of account did not record any transactions of purchasing emeralds, which contradicted the claim of transactions being on approval basis. The Commission concluded that the evidence satisfied the burden under Sections 132(4A) and 69 of the Income Tax Act, 1961, proving the money lending activities. This finding was supported by the Supreme Court’s judgment in Union of India & Ors. Vs. IND. Swift Laboratories Ltd., which restricts interference in factual findings by the Settlement Commission.

2. Decoding the Figures
The petitioner argued that the code used in the seized documents should be interpreted as 1=1000, whereas the Revenue and the Settlement Commission decoded it as 1=1,00,000. The Commission inferred this based on the nature of the transactions and the amounts involved, suggesting that the parties would not engage in petty loans of ?1000 or less. However, this inference was based on presumption rather than concrete evidence. The court found that the decoding should not be based on hypothetical assumptions and remanded the matter back to the Settlement Commission for a fresh decision on this specific issue, while maintaining the finding of money lending.

3. Applicability of "Peak Credit Theory"
The petitioner argued for the application of the "peak credit theory," which considers the highest amount of credit at any point in time to avoid overlapping amounts. The Settlement Commission, however, rejected this application, reasoning that the theory is applicable in cases of unaccounted credits and debits, not where currency notes with specific writings were recovered. The Commission provided detailed reasons for its decision, which the court found to be well-reasoned and thus did not interfere with this finding.

Maintainability of the Writ Petition
The respondents raised a preliminary objection regarding the maintainability of the writ petition against the Settlement Commission’s order, citing Section 245-I of the Income Tax Act, 1961. The court dismissed this objection, stating that while appeals or reviews are barred, the remedy under Article 226 of the Constitution of India is still available. The court noted that the respondents themselves had previously challenged the Settlement Commission’s order through a writ petition.

Conclusion
The court remanded the matter back to the Settlement Commission to decide the issue of decoding the figures afresh. The findings regarding the petitioner’s involvement in money lending and other issues were maintained. The Settlement Commission was directed to expedite the decision, ideally within three months. The impugned order would remain subject to the final outcome of the fresh order on the limited issue of decoding. The writ petition was disposed of accordingly.

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