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TMI Blog2018 (10) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... 525/- as his business income. Hence the difference between the business income estimated at 5% of aggregate amount of deposits and the business income declared by the assessee shall be added by the AO. Appeal filed by the assessee is partly allowed. - I.T.A. No. 3786/Mum/2016 - - - Dated:- 6-7-2018 - Shri B.R. Baskaran (AM) Shri Pawan Singh (JM) For the Assessee : Shri Akash Kumar For the Department : Ms. Pooja Swarup ORDER PER B.R. BASKARAN (AM) :- The appeal filed by the assessee is directed against the order dated 29.3.2016 passed by the learned CIT(A)-32, Mumbai and it relates to A.Y. 2011-12. The assessee is aggrieved by the decision of the learned CIT(A) in confirming the addition of ₹ 212.24 lakhs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his business proceeds only. The assessee, in the alternative, submitted that the Assessing Officer should have added peak cash credit instead of assessing entire deposits, since there was continuous transaction of deposits as well as withdrawals. The learned CIT(A) was also not convinced with the contentions of the assessee. Accordingly he confirmed the assessment made by the Assessing Officer. Aggrieved, the assessee has filed this appeal before us. 4. The Learned AR submitted that the assessee has acted as commission agent for mobile accessories and leather goods and was getting 2% of sales amount as his commission income. He submitted that the deposits have been made from many cities away from Mumbai and this fact substantiates the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 4.8.2017). Accordingly, she submitted that the order passed by the learned CIT(A) does not call for any interference. 6. We have heard the rival contentions and perused the record. It is the contention of the assessee that the deposits made into his bank account represent sale proceeds of mobile accessories, leather goods etc., in which he was dealing as commission agent and was getting commission of 2% only on such sales. It was further submitted that the cash so deposited was withdrawn immediately and given to the concerned suppliers. It is the fact that the assessee could not substantiate the above said explanations by bringing on record any supporting documents. In this regard, explanation given by the assessee is that all reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is able to explain the sources of deposits and corresponding payments. We notice that the Hon ble Delhi High Court has rendered its decision by following the decisions rendered in the case of CIT vs. Vijay Agricultural Industries (2007)(294 ITR 610) and Bhaiyalal Shyam Bihari vs. CIT (2005)(276 ITR 38). On the contrary, the Ld A.R placed reliance on the decision rendered by Hon ble Andhra Pradesh High Court in the case of Purushottam Jhawar (supra) and also another decision of Hon ble Allahabad High Court in the case of Fertilizer Traders (supra) to support his claim for applying peak credit theory. Be that as it may, we have come to the conclusion that the deposits made by the assessee may represent his business receipts and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pts are coming from faraway places also show that the assessee should be incurring expenses in his business. Under these set of facts, we are of the view that this issue may be put to rest, if the net income , i.e., net of all expenses is estimated at 5% of the aggregate amount of deposits. Accordingly we direct the AO to estimate the business income of the assessee @ 5% of aggregate amount of deposits. The assessee has already declared a sum of ₹ 2,04,525/- as his business income. Hence the difference between the business income estimated at 5% of aggregate amount of deposits and the business income declared by the assessee shall be added by the AO. We order accordingly. The order passed by Ld CIT(A) would be modified accordingly. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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