9911796707
TMI Blog2017 (4) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... pies of 7/12 of agricultural land before the assessing officer and failed to furnish any concrete evidences of earning agricultural income and also failed to prove that cash was deposited by them in the above mentioned bank account of the assessee. We have also perused the copies of statement recorded u/s 131 of these two persons in which they have revealed their ignorance about nature of business of the AOP and purpose for which the cash was given by them to the assessee. As perused the copy of deed of the AOP the agreement of AOP was made on the hundred rupees non- judicial stamp paper and nowhere date of stamp paper was indicated, the signing parties also had nowhere mentioned the date of signatures on this deed. We have further noticed that in the copy of the AOP deed it was mentioned that it was cratered on 31st of March 2008 and at serial number 3 of this deed it was stated that bank account number 058015739 in the ICICI bank will be used for its business purposes. In this connection we have gone through the copy of bank statement filed in the paper book submitted by the assessee and noticed that bank account number 058015739 with the ICICI bank was opened on 12th of May 2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. 4. Brief facts of the case are that during the course of assessing proceedings, the assessing officer noticed as per AIR information that assessee had deposited cash of ₹ 17,42,300/- in the saving bank account maintained with ICICI bank. During the course of assessing proceedings at the initial stage the assessee had denied to have bank account with ICICI bank. The assessee stated he was having two bank accounts with Saraswat Co-operative Bank. On further questioning about any other bank account, he revealed that he was having account No. 624401086077 with ICICI Bank which was maintained till 31st March, 2008. He again explained that from the period 01-04-2008 transactions in the said bank a/c was made for the purpose of AYUSHI investment (AOP) in which he was one of the member. On being specifically questioning about the cash deposit of ₹ 17,42,300/- in the ICICI bank a/c and after persuasion by the assessing officer, he ultimately provided copy of statement of saving bank a/c. no. 058401500739 maintained in his name with ICICI bank. He further explained that this bank a/c. pertained to AYUSHI investments (AOP) where he was also one of the member and it opened in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 19,37,590/- in the ICICI bank a/c which was added to the total income of the assessee as unexplained cash credit. 6. Aggrieved against the impugned order of the assessing officer the assessee preferred appeal before Ld. CIT(A).The Ld. CIT(A) had sustained the addition by observing as under:- "6.1 I have considered the assessment order as well as the submissions of the appellant. The Grounds of appeal- Ground No. 1 pertains to the addition of ₹ 46,010/- being the amount of unexplained deposit in Bank account. In the reply filed on 10/12/2012, the appellant submitted on page 2 of his Paper Book that he is not able to give proper evidence regarding the deposits of ₹ 46,010/- even during the appellate proceedings. Since the appellant himself has admitted that he is not having evidence to prove the source of the deposits of ₹ 46,010/-, the addition made by the AO is upheld and the grounds of appeal is dismissed.(Confirmed-Rs.46,010/-) 6.2 The Grounds of appeal- Ground No. 2 pertains to the addition of ₹ 19, 37,590/- being the amount of unexplained cash credit. The cash of Rs.i,95,290/ was deposited in Account lMo.624401086077 and ₹ 17,42,300 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the said bank account in ICICI Bank was opened on 12.05.2008 i.e 44 days after the signing of the AOB Deed which shows that AOP deed was ante-dated/back dated to show the source of cash deposits in the bank accounts. 6.2.2 The affidavits have been filed by the appellant in support of the cash deposits. But mere filing of affidavits does not prove that the submissions made by the person swearing the affidavit is true and correct. It is a settled law that affidavit need not always be accepted as correct. It is neither a rule of prudence nor rule of law that the statements made in an affidavit which remains uncontroverted must invariably be accepted as true and reliable. Ordinarily in absence of denial, the statements may be accepted as true but if there are circumstances which suggests that statements on affidavit should not be accepted as true, the absence of denial by the other side, would not by itself be sufficient to clothe the statements on affidavit with truthfulness and reliability. 6.2.3 In the case of Silk Museum v/s CIT 257 ITR 22 (Guj) that affidavit is a piece of evidence which along with other material on record has to be taken into consideration before arriving a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the deposits would be incorrect. In such cases, working out the peak credits (receipts) or the debits (Payment) may give an indication of the total unaccounted money in the possession of the assessee which may be assessed as his income. 6.2.8 But the peak credit statements can be prepared only if records for the receipt and payment of money for the entire accounting period are kept. The record need not be regular books of account maintained under double entry system. Even a rough account where dates of receipt and payment of money are recorded would suffice. For example: where an assessee maintained undisclosed bank accounts, from the bank account statements, peak credit or the peak of the amounts deposited can worked out. But if the records are incomplete or if the records available only show total amount received on a particular date, a peak credit statement cannot be prepared. 6.2.9 In the instant case, the appellant does not maintain any books of accounts regular or rough on the basis of which the peak credit can be worked out. Hence this contention of the appellant falls flat on merits and facts as he is unable to demonstrate the source and utilization of the cash de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where there is a statutory rebuttable presumption against the assessee, as in case of cash credits etc., u/s 68 or unexplained investment u/s 69, the initial burden of proof is on the assessee to show that the cash credit is genuine or the investment is not unexplained. The AO should, therefore always examine as to who has to discharge the burden of proof. It may also be noted that in the course of assessment, the burden of proof may shift from one to the other. For instance, if the assessee discharges his initial burden of proof, the onus shifts to the Assessing Officer who must bring out facts to refute assessee's version. 6.2.12. The proceedings under the Income Tax Act are civil proceedings. The degree of proof required in assessment proceedings is base on the Principles of Preponderance of Probability, unlike in criminal proceedings where proof beyond reasonable doubt is insisted upon. It is open to the Assessing Officer to probabilise his stand and show its preponderance where conclusive proof is not forthcoming. The observations of the Supreme Court in State of West Bengal v. Mir Mohammad Omar and Others JT 2000(9) SC 467 made in the context of a criminal case are rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. "CIT v. Durga Prasad More [1971] 82 ITR 540, at pp. 545, 547 (SC). 6.4 On the basis of the facts and circumstances, it is evident that the appellant has failed to discharge the burden of proof regarding the cash deposits in the Bank account. In absence of any evidence and failure to produce any evidence to substantiate his claim, the addition of ₹ 19,37,590/- u/s 69 of the IT, Act is confirmed and the ground of appeal is dismissed. (Addition Confirmed Rs ₹ 19,37,590/-)" 7. During the course of appellate proceedings before us, the learned counsel contended that ld. CIT(A) had erred in sustaining the addition which was duly explained by the assessee. He also furnished paper book containing details like written statement, copy of submission made before assessing officer, copy of AOP deed, copy of statement recorded of Sandeep H. Dobariya, Shri Virjibhai C. Gajera, copy of bank statement etc. He also contended that benefit of peak balance should also be given and stated that peak balance was ₹ 12,64000/. On other hand, ld. D.R. vehemently contended that the assessee failed to explain the genuineness of the cash deposit detected in the unaccounted bank a/c o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is deed. We have further noticed that in the copy of the AOP deed it was mentioned that it was cratered on 31st of March 2008 and at serial number 3 of this deed it was stated that bank account number 058015739 in the ICICI bank will be used for its business purposes. In this connection we have gone through the copy of bank statement filed in the paper book submitted by the assessee and noticed that bank account number 058015739 with the ICICI bank was opened on 12th of May 2008 whereas the date of creation of the trust deed was stated to be 31.03.2008.These facts indicate that the creation of the trust deed as AOP was the afterthought steps taken by the assessee. We further find that the assessee failed to establish the genuineness of his claim about depositing of cash in the bank account through the above stated two persons. We have also considered the contention of the Ld. Counsel that benefit of peak balance to be provided to the assessee. In this connection we observed that the peak credit theory is based on recycling of funds implying systematic activity. In the case of the assessee, neither of the deposits nor their utilisation stands explained, therefore, we considered that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
