2017 (6) TMI 1078 - AT - Income Tax

Addition as peak credit - Held that - Neither the AO nor the Ld. CIT(A) made any attempt to find out the veracity of the statement given by the assessee that he was only a name lender doing accommodation entry for the beneficiaries. It was the bounden duty casted upon the AO/CIT(A) in case they do not believe the statement to have made enquiry and found out as to whether the modus operandi as suggested by the assessee is false or incorrect. If the claim of assessee is correct it was the duty of the AO to bring out the truth and find out the beneficiary and bring to tax the real income undisclosed in the hands of the beneficiary. The assessee s ground of appeal against the peak addition made on the basis of peak credit is allowed for all the assessment years.

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Legal validity of proceedings initiated under Section 153C.
3. Addition based on peak credit in bank accounts.
4. Deletion of commission income by CIT(A).

Detailed Analysis:

1. Condonation of Delay:
The assessee's appeal for AY 2008-09 was time-barred by 47 days. The assessee filed a condonation petition explaining the reasons for the delay. The Ld. DR did not object to this prayer. Consequently, the delay was condoned, and the appeal was admitted for hearing.

2. Legal Validity of Proceedings under Section 153C:
The assessee raised grounds against the legal validity of proceedings initiated under Section 153C of the Act. However, these grounds were not pressed before the Tribunal and were therefore dismissed as not pressed.

3. Addition Based on Peak Credit:
The primary issue revolved around the addition of ?38,64,870/- as peak credit for AY 2008-09. The Revenue’s appeal for AYs 2009-10 and 2010-11 contested the telescoping of peak credit confirmed for AY 2008-09 while computing peak credit for subsequent years. The CIT(A) had confirmed the peak credit addition for AY 2008-09 but allowed partial relief by giving the benefit of telescoping for AYs 2009-10 and 2010-11.

During the search operation, documents revealed that the assessee was operating multiple bank accounts through which accommodation entries were provided. The assessee admitted to earning commission income from these activities. The AO treated the peak credit deposits in these bank accounts as undisclosed income. The CIT(A) confirmed this addition but allowed partial relief by telescoping the peak credit for subsequent years.

The Tribunal noted that the principle of peak credit theory requires ownership of the funds by the assessee. The AO acknowledged that the assessee was merely a name lender and the money deposited belonged to third parties. Therefore, the application of peak credit theory was deemed incorrect. The Tribunal held that the AO’s insistence on computing peak credit deposits and treating them as undisclosed income was unsustainable without evidence of ownership by the assessee. Consequently, the addition based on peak credit was deleted for all assessment years.

4. Deletion of Commission Income by CIT(A):
The AO estimated the commission income at 0.25% of the deposits in the bank accounts and made corresponding additions for AYs 2008-09, 2009-10, and 2010-11. The CIT(A) deleted these additions, reasoning that since the peak credit was confirmed, the commission income addition was redundant.

The Tribunal upheld the AO’s addition of commission income, noting that the assessee was indeed engaged in providing accommodation entries and earning commission. The deletion of commission income by the CIT(A) was reversed, and the AO’s order regarding commission income was upheld.

Conclusion:
The appeals of the Revenue were partly allowed for AYs 2009-10 and 2010-11. The assessee’s appeal for AY 2008-09 was allowed, and the Cross Objections for AYs 2009-10 and 2010-11 were partly allowed. The Tribunal directed the deletion of peak credit additions for all assessment years while upholding the addition of commission income.

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