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TMI Blog2009 (12) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee s grievances are reframed as under: (i) the AO had not assumed jurisdiction u/s 147 of the Act validly by issuing a Notice u/s 148, the assessment made by issuance of notice u/s 142(1) of the Act was illegal and, thus, the assessment made was void-ab-initio which requires to be annulled; (ii) addition of ₹ 54.05 lakhs based on deposits made in the bank accounts was arbitrary; (iii) the assessee denies himself liable to be charged interest u/s 234A and 234B of the Act; (iv) to award costs in prosecuting the appeal and order for refund of institution fee. 3. The facts of the issue, in brief, are that the assessee had not furnished his return of income for the assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the temple and expense vouchers/bills produced to prove the genuineness of the expenditure. No details and addresses of donors and receipts are available for verification. No books of accounts maintained. The appellant in his submissions stated that out of the donations collected from public, a chit is being run by devotees of the temple. This chit money is deposited in the bank account of the appellant every month. The money was withdrawn from the bank for making payments to persons who had bid the chit. In the process, a small commission is earned for the upkeep of the temple. The statements and the submissions are contradictory. In the first place, the appellant used the money for the construction of the temple. Later on, the appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly by issuing a notice u/s 148 of the Act and, thus, the assessment made by issuance of notice u/s 142(1) of the Act when the previous year expired was illegal and void-ab-iniio which requires to be annulled; (ii) in the assessment, the AO added the entire deposits in the said bank account of ₹ 54.05 lakhs as unexplained investments liable to tax which was in addition to the income of ₹ 15058/- offered by the assessee in the return. Even this income had not been telescoped while completing the assessment; (iii) in the bank account, the opening and the closing balances as on 1.4.04 and 31.3.2005 were ₹ 517270/- and ₹ 9420/- respectively. There were deposits and withdrawals and the peak balance was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Smt.Venkatamma (Decd) v. CIT, K-I reported in 119 ITR 298; (b) Hon ble Tribunal s finding in ITA No.1220(Bang)/2008 dated: 19.6.2009 in the case of Jagannatha s Shetty v. ITO. 7. On the other hand, the Ld. D R was very firm in her resolves that the assessee had failed to prove either before the AO or before the first appellate authority with any documentary evidence the origin of the huge deposits made in the bank. It was, therefore, pleaded that the stand of the authorities below be sustained. 8. We have carefully considered the rival submissions and also perused the relevant records. 8.1. With regard to the contention of the Ld.A R that the assessment order was bad in law as the AO pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was no question of working out any peak credit and accordingly, the entire cash credits was brought on the tax net under the head income from other sources and added to the income returned. 8.2.1. Considering the submission of the assessee, the Ld.CIT(A) was of the view that [at the cost of repetition] (i) no proof to justify the claim of the assessee that he was the secretary of the temple committee; (ii) no details of temple construction, vouchers/bills for such expenses to prove the genuineness of the expenses; (iii) no names and addresses of the alleged donors were made available; (iv) the claim was that out of the donations collected from the public, a chit was being run by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in ITA NO.1220/B/2008 Jagannatha Shetty v. ITO. In the interest of natural justice and to avoid further litigation process and following the ratio of the case laws cited supra, we remit back the issue on the file of the AO with a specific direction to work out the taxable income in pursuance of peak credit method and to conclude the assessment, after affording a reasonable opportunity to the assessee of being heard. It is ordered accordingly. 9.1. As regards the ground raised by the assessee on charging of interest u/s 234A and 234B of the Act, we hold it to be consequential and, therefore, we dismiss this ground. 9.2. On examining the ground raised by the assessee for award of cost in prosecuting the appeal and to re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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