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TMI Blog2018 (2) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.12.2013 and after that he handed over the same to his authorized Adovcate Shri Goutam Narayan Chowdhury. Said Advocate then filed the filing fees of the ITAT amounting to Rs. 10,000/- on 27.12.2013 at the State Bank of India, Habra Bench for the purpose of filing appeal. During the preparation of the second appeal before the ITAT, your appellant fallen into serious physical problem. Then he went to the local medical practitioner Dr. P.K.Das, M.B.B.S.F.C.C.P on 30.12. 2013 due to liver problem. Therefore, said Dr. advised your appellant to take absolutely bed rest till recovery. 2. That during continuation of his illness said Dr. once again advice him to take absolutely bed rest on 02.06.2014 till recovery. It is also submitted that your Appellant has been suffering from serious Hepatitis Jaundice and finally it had been detected after fully medical check-up on 10.04.2015. Accordingly, appellant take absolutely bed rest and unable to move any where even at this business places. 3. That finally, your appellant check-up before the said Dr. on 07.02.2016 and then said Dr. advice him to join his duties normally and a fit certificate issued by said Dr. in this respect on 08.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levy the cost over the assessee for Rs. 1000/- on account of his negligent behavior in pursuing the matter before the AO. Accordingly, the assessee is directed to deposit a total sum of Rs. 2,000/- (Rupees two thousand) only in the Prime Minister Relief Fund. In view of the above we condone the delay/ negligent approach of the assessee and proceed to hear the appeal of the assessee on merit. 4. First we take up I.T.A .No. 473/Kol/2016 The assessee has raised the following grounds of appeal: 1. For that the Assessing Officer erred in law as well as in merit. He failed to enquire the return properly. The AO passed his purported order only on the basis of a bank statement collected u/s 133(6). Your appellant already explained his return of income, but the AO asked him to clarify the matter further. The AO passed his purported order u/s 144 without apply his judicial mind properly. 2. For that the CIT(Appeal) also passed his order on the basis of the order of the AO. Actually the AO is the fact finding authority and he should find the actual fact from the various sources. Income Tax Laws provide adequate power to the assessing officer to gathered information from the respective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of simple trader making erroneous banking decision as made out by the assessee. An examination of the Bank a/c no. 238010100002561 for the f.y 2007-08 indicates a very curious pattern. The total cash deposit in this account was Rs. 38,63,000/- and this cash is withdrawn through A.T.M's at far off places like Moradabad & Allahabad etc. Then there are payments recorded in the names of M/s Metlife Insurance, Lalji Sankar, Zubair, Kali Kumar Jha, Santosh Popatrao Kale etc. There is no evidence that the depositors and the ultimate recipient of the cash is the assessee only. It appears more likely that the bank account and the debit card/credit card were used to transfer money. Since the assessee has no explanation for the above, it goes without saying that the assessee's ground of appeal that the cash was deposited in the bank account as per the advice of the Banking Authorities has no relevance. It is reiterated that the assessee does not even claim that these are his business transactions. In respect of the second Bank A/c no. 238010100131445, the transactions are less as the account was opened only on 17.09.2007 but here also the identity of the depositors & withdrawer is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... individual grounds of appeal, it is held as under: (1) Ground of Appeal No. 1.: The grounds of appeal is dismissed for the reasons cited earlier and it is held that the assessee has not established that the deposits were made on the advice of Banking Authorities. The deposits made in cash are held to be undisclosed income taxable u/s 68/69/69A as held in the cases of :- (i) CIT vs. Jauharimal Goel (2006) 201 CTR 54 (ALL). (ii) Smt. Renu Agarwal vs. ITO (2012) 136 ITD 343 (Agra) (TM) The Third Member decision in the case of Smt. Renu Agarwal is at par with the any Special Bench decision of the ITAT as held by the Delhi High Court in the case of P.C.Puri vs. CIT(1985) 151 ITR 584 (Delhi) and also by the ITAT Mumbai in the case of DCIT vs. Oman International Bank (2006) 100 ITD 285(Mum) (SB) in para 40-44. In view of the above, the addition is confirmed as above and to this extent the decision of the AO is modified." Being aggrieved by the order of Ld. CIT(A) the assessee is in second appeal before us. 8. The Ld. AR before us submitted that there were regular cash deposits and cash withdrawals and therefore peak credit theory should be adopted for determining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al is allowed for statistical purpose. 13. Now coming to I.T.A. No. 640/Kol/2016 The assessee has raised the following grounds: 1. For that the Assessing Officer erred in law as well as in merit. He failed to enquire the return properly. The AO passed his purported order only on the basis of a bank statement collected u/s 133(6). Your appellant already explained his return of income, but the AO asked him to clarify the matter further. The AO passed his purported order u/s 144 without applying his judicial mind properly. Finally, the AO failed to provide reasonable and positive opportunity of being heard. 2. For that the CIT(Appeal) also passed his purported order without apply his judicial mind properly. He admitted that the assessee submitted an explanation regarding frequent money deposit in two bank a/cs but without considering and without tried to find out real fact of the case he enhanced the total income of the assessee. 3. And your appellant craves leaves to amend, alter, change, modify etc. the ground/grounds of appeal on or before hearing. 14. At the outset it was observed that the issue raised in the instant appeal is exactly identical of the issue raised in I ..... 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