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TMI Blog2019 (8) TMI 1314X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank, aggregating to Rs. 8,70,000/-. The Assessing officer was of the opinion that the assessee had failed to prove that the above cash deposit represented his business turnover. An addition of Rs. 7,99,950/- was made under section 69 of the Income Tax Act, 1961 (hereinafter called 'the Act') after allowing credit of the business income of Rs. 70,050/- as shown by the assessee under section 44AD of the Act. 2.1 Aggrieved, the assessee filed appeal before the learned CIT (A). However, being unconvinced, the learned CIT (A) rejected all the contentions of the assessee and dismissed the appeal. Now, the assessee is before this Tribunal (ITAT) and has raised the following grounds of appeal: "1. Because, upon due consideration of facts and in the overall circumstances of the case assessment order dated 14.01.2016 is void-ab-initio having been framed on the basis of illegal Notice under section 143(2) issued by ITO 44(1), Kolkata. The assessment therefore is void ab initio and a nullity. 2.1. Because, the authorities below were highly unjustified in making and sustaining addition of Rs. 8,70,000/- ignoring the facts and circumstances of the case and material evidences suggesting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts, law and principles of natural justice and in any view of the matter deserves to be quashed." 3.0 Shri Anurag Sinha, the learned Authorised Representative (AR) for the assessee submitted that ground No.1 is not being pressed and the same be treated as withdrawn. 3.1 With regard to ground Nos. 2.1 to 3 the Ld. AR submitted that the addition had wrongly been made and wrongly been sustained by the authorities below ignoring the fact that identical similar issue had been raised by the Department in AY 2011-12 and identical addition had been made by the AO but, on appeal, the learned CIT (A) had sustained the addition by applying Net Profit rate of 5%. It was further submitted that the Department went into appeal against the order of the Ld. CIT (A) but the department's appeal was dismissed by the ITAT in ITA No. 271/Agr/2016 vide order dated 01.05.2018. 3.2 The Ld. AR further submitted that without prejudice to the above no addition could be legally made by treating the entire bank deposits as the income of the assessee ignoring the fact of withdrawals made from the bank account/s. He placed reliance to the Judgment of the Hon'ble Gujarat High Court in the case of CIT V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed reliance upon the judgment of Hon'ble Gujarat High Court in the case of Sarwan Kumar Sharma (supra) as was relied upon by the learned CIT (A) in the impugned order. 5.0 We have heard the rival submissions, carefully perused the material on record and have also considered the case laws relied upon by both the parties. It is seen that the learned CIT (A) has held that case of the of the assessee was distinguishable from Assessment Year (AY) 2011-12 for the reasons as noted in his order that in A.Y 2011-12, though the explanation furnished by the assessee regarding the bank deposits to be part of business turnover was found to be untrue, yet the learned CIT (A) in A.Y 2011-12, had chosen to hold cash deposits as sale consideration of glass trading business. These findings of the learned CIT (A) advances the case of the assessee because in the case on hand even if the explanation of business is found to be untrue , following the findings for A.Y 2011-12, net profit rate was to be applied. Thus, the attempt made by the learned CIT (A) to distinguish the order passed by his predecessor in A.Y 2011-12 was a feeble attempt on his part. We have also gone through the order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied. Moreover, no other source of income is demonstration by the Assessing Officer either from the attending facts of the present case or as a result of scrutiny of bank accounts. 7. The stand on behalf of the Department has also been that the action of the Ld. CIT(A) deserves no approval in the light of the enquiry undertaken by the AO by Issuing Notice under section 133(6) to one of ,assessee's customer from whom assessee had claimed to have made purchase, but he denied transaction with the assessee. In this context, we have examined the remand report submitted by the AO and objections of time assessee thereon. The Remand Report dated 01.03.2016 furnished by the AO to the Ld. CIT(A) is reproduced in the appellate order on Page-7, Para-9, which was objected by the assessee that the enquiry conducted was for A.Y 2013-14, whereas case of the assessee pertains A.Y 2012-13; that even the reply by M/s Shiv Charan Lal Ambika Prasad was incorrectly understood, in as much as, the said customer had replied that it has made no sale by the name of the assessee or no credit; .and -that it was further told by him that he has no ledger account in the name of the assessee, This objection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down by the assessee and assessee has to accept that all credits shown as cash credits belongs to the assessee and question of peak credit can be raised thereafter. The Hon'ble High Court further held that in the case before them assessee all along was contending credits standing in the name of different persons were genuine deposits and withdrawals/payments of the amount to different set of persons would not at all entitle assessee to claim benefit of peak credit. Nowhere are these facts involved here in the case at hand. In the instant case, the assessee has raised no plea before us for being assessed on peak basis, rather CIT(A) on page 16 of its order has specifically observed that assessee's case is not a case for being assessed at peak balance and moreover assessee has owned the credits to be its turnover from business transaction. Therefore, the decision relied on by the Id. DR does not render any help to the case of Revenue. 10. On the other hand, the facts attending to the decision of the Hon'ble Gujarat High Court in the case of Pradeep Shanti Lai Patel (supra) relied on by the assessee, are as under: "2.1. The assessee filed his return of income for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the Id. CIT(A) and the Tribunal holding that no substantial question of law arises in the present appeal. The facts of this case, in our opinion, rather stand on parity of those attending to the case at hand. It is seen that in the present case, assessee before LdCIT(A) had furnished affidavit of the assessee, affidavits of few of its customers, confirmation from few customers; that the adverse enquiry elicited from one of its customer under section 133(6) was wrongly inferred by the AO; that the memoranda of business was maintain in the shape of customer diary and assessee has also detailed out its role and place in the process of glass manufacturing business. In the light of overwhelming evidences on records, uncontroverted testimony of the assessee on oath and its customers, the view adopted by the Ld CIT(A), in our opinion, cannot be faulted with. 13. We further find that the ld. CIT(A) has supported his conclusions by various decisions of coordinate Bench of Tribunal as reproduced in the impugned order and the Id. DR has failed to adduce any counter decision so as to support the case of Revenue. In the case of ITO, 6(4), Lucknow Vs Shri VishanLal relied by the ld. ..... 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