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TMI Blog2013 (12) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... /1999; 763(Alld.)/1999; 304/(Alld)2002; and 305(Alld)/2002, for the block period from 01.04.1986 to 13.02.1997. On 10.07.2009, a Coordinate Bench of this Court had admitted the Appeals No. 179 of 2004 and 18 of 2012, on the following substantial questions of law:- "1. Whether the Hon'ble ITAT has erred in law in disposing the departmental appeals in ITA No.726(Alld)/1999 and ITA No.763(Alld)/1999 and assessee appeals in ITA No.304 (Alld)/2000 and ITA No.305(Alld)/2000 by common order holding that the revenue and the assessees had taken common grounds of appeal in the respective appeals and cross objections. 2. Whether Hon'ble ITAT has erred in law in holding that the compilation Annexure 1 in the affidavit of Sri Vinod Saraf cannot be te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding the power given u/s 254 (1) of the I.T. Act, 1961 by issuing the directions "even if as a result of exercise of re-computation of undisclosed income as has been directed by us above, the computation goes below the returned income, the same has to be taken as it is while giving effect to this order", which is in violation of the provisions of Section 158 BC debarring the assessees from revising the return. 7. Whether Hon'ble ITAT has erred in law in issuing directions for re-computation of undisclosed income on the basis of affidavit filed by Sri Vinod Saraf during the course of hearing before the Hon'ble ITAT, which may have effect on the revising the returned income in contravention of the provisions of Section 158 BC. 8. The order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Vinod Saraf and Sri Atul Saraf. M/s. Saraf Trading Company was having partners, namely, Smt. Usha Devi Saraf; Smt. Prakashi Devi Saraf, Smt. Makhani Devi Saraf and Sri Arun Kumar Saraogi. The assessees are also involved in the agriculture activities. During the course of search, various incriminating documents were found and seized. It was also found that the assessees were maintaining two sets books of account and made the investment outside the books. So, the AO made the additions, which was partly deleted by the first appellate authority. The Tribunal has restored the matter to the file of the AO for re-computation. Being aggrieved, the Department has filed the present appeals. With this background, heard Sri R.K. Upadhayay, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(Central), Kanpur did not consider this matter while taking action under Section 263 of the Act. Therefore, considering the above facts and in order to give opportunity to the AO to consider this aspect of the matter, it would be appropriate and reasonable to set aside the findings of the AO and the CIT(A) on the issue and restore the matter to the AO. In view of our above findings, we restore the issue relating to the computation part only of the undisclosed income to the file of the AO with the following directions: (i) Each credit/debit entry appearing in the computer print outs for financial year 1994-95 and 1995-96 and computer print outs for financial year 1996-97 (As segregated by the AO himself at the original stage of computat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, namely, Sri Vinod Saraf. So, the Tribunal has directed for re-computation. In support of his argument, learned counsel for the assessee relied on the ratio laid down in the following cases :- (i) Commissioner of Income-tax vs. Milton Laminates Ltd.; (2013) 37 Taxmann 249; (ii) Gujarat Gas Co. Ltd. vs. Jt. CIT; (2000) 245 ITR 84; and (iii) CIT vs. Bekelitle Hylam Ltd., (1999) 237 ITR 392. After after both the parties and on perusal of the record, it appears that the basic dispute is regarding the re-computation of the peak pertaining to the credits/debits for the purpose of undisclosed income. The Tribunal in its impugned order has observed that :- "... We fail to understand as to how the AO has worked out the peak on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subsequent credit. A refinement or extension of the plea occurs where the credits appear not in the same account but in the accounts of different persons. Even then, if the genuineness of all the person is disbelieved and all the credits appearing in the different account are held to be the assessee's own moneys, the assessee will be entitled to set off and a determination of the peak credit after arranging all the credits in the chronological order. Such proposition was also considered by this Hon'ble Court in the matter of CIT vs. Neemar Ram Badlu Ram, 122 ITR 68 (All) in which the relevant paragraphs are reproduced as under:- "The Tribunal also did not agree with the departmental authorities that merely because the assets in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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