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TMI Blog2016 (1) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Income Tax and reject the grounds of appeal raised by the assessee. - Decided against assessee - I.T.A.No.1170/Mds/2014 - - - Dated:- 6-11-2015 - SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER For The Appellant : Mr. S.Sridhar, Advocate For The Respondent : Mr. M.N.Maurya, CIT ORDER Per Challa Nagendra Prasad, JM: This appeal is filed by the assessee against the order of the Commissioner of Income Tax, Puducherry dated 26.03.2014 passed under section 263 of the Act for the assessment year 2009-10. 2. Though the assessee has raised several grounds in the appeal, the crux of the issue is that Commissioner of Income Tax erred in assuming jurisdiction under section 263 of the Act and consequently erred in passing revision order in setting aside the original assessment framed by the Assessing Officer under section 143(3) of the Act on 29.12.2011. The Commissioner of Income Tax failed to appreciate that source for cash deposits were properly explained with material evidence and ought to have appreciated that assumption of facts based on surmise would nullify his action in setting aside the assessment frame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocumentary records have been created for these transactions. The petitioner had not only kept up his words but also proved in action by prompt payment of demand. The assessee had pleaded that he is not in possession of any documentary evidence in support of his claim and moreover his business ethics in addition to the unwritten understanding between the petitioner and the parties with whom the petitioner had transacted barred him from furnishing any further details regarding cash transactions. Therefore, it was contended that neither any income had factually accrued to the petitioner from the transactions nor any asset / investment had been created/taken place in respect of the above transactions. It was contended that for want of corroborative evidence in support of his claim, the assessee had pleaded to give benefit of taxing him on the peak credit and not the total sum of the cash transactions. Therefore it was submitted that Assessing Officer taxed on peak credit of ₹ 50,76,005/- and peak credit working has been done scientifically. It was further contended that every loss of revenue as a consequence of assessment order cannot be treated as prejudicial to the interests of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the details called for as per the provisions of the Income Tax Act, 1961 during any proceedings and he cannot be selective in furnishing the details and information. The assessee's versions that he is accepting the parking of funds by lot persons with him and out of which no benefit is derived by him and that unwritten understanding between him and the parties with whom he had transacted barred him from furnishing any further details regarding the cash transactions clearly go to show that the Assessing Officer has completed the proceedings without proper enquiry and investigation on various aspects. It is also found that the judicial case laws cited by him are not relevant and cannot be applied taking into account the facts and the circumstances the present case. 6. Counsel for the assessee reiterated the submissions made before the Commissioner of Income Tax, Puducherry stating that Assessing Officer has applied peak credit on examining the details and therefore the order passed by the Assessing Officer is neither erroneous nor prejudicial to the interests of the Revenue. He further contends that if two views are possible and one of the views is adopted by the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which are not supported by any evidence. The Commissioner of Income Tax (Appeals) was of the view that assessee s version that he is accepting parking of funds by lot of persons with him and out of which no benefit is derived by him and the unwritten understanding between the assessee and the parties with whom he had transacted barred the assessee from furnishing any further details regarding the cash details clearly go to show that Assessing Officer has completed the assessment proceedings without proper enquiry and investigation on various aspects. We agree with the above view of the Commissioner of Income Tax since no enquiries were made by the Assessing Officer. The assessee has not furnished any details in respect of cash deposits and in such circumstances it cannot be held that Assessing Officer has taken one of the permissible views especially when no enquiries were made by the Assessing Officer in respect of these deposits. The case laws relied on by the counsel for the assessee are distinguishable on facts and have no relevance to the facts of the case on hand. 10. In the case of M/s. Malabar Industrial Co.Ltd. vs. CIT (243 ITR 83), the Hon ble Supreme Court held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment by following the procedure expected of him. It was not necessary for the Commissioner to examine each item in detail and record a clear finding that the order passed by the Income-tax Officer was erroneous. The Hon ble High court further observed as under:- The decision of this court in the case of K.A.Ramaswamy Chettiar vs. CIT [(1996) 220 ITR 657], makes it clear that the Income-tax Officer is expected to make an enquiry before taxing the particular item of income or before granting deduction of a particular item of expenditure and if he does not make such an enquiry as expected, that would be a ground for the Commissioner of Income Tax to interfere under section 263 of the Act. 13. In the instant case, the Assessing Officer neither examined any details with regard to the request of the assessee to adopt peak credit nor made any enquiry before allowing such claim of the assessee while completing the assessment. Therefore, in view of the above discussion, we are of the view that the order passed by the Assessing Officer under section 143(3) allowing the claim of the assessee in considering peak credit on the cash deposits is without application of m ..... 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