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TMI Blog2020 (6) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that a search and seizure operation was conducted at the premises of the assessee on 24.11.2015 and during the course of search proceedings, based on certain bank accounts in the name of Shri Uma charan Panda maintained with ICICI Bank found from the premises of the assessee and the Assessing Officer made addition based on such bank account. Ld A.R. submitted that from the bank account, it is ample clear that from September, 2014 to January, 2015, number of transaction of cash including cash withdrawals and deposits have been made, wherein, total amount of deposit was Rs. 1,79,06,477/- and equivalent amount of cash was also withdrawn. Ld A.R. submitted that in a case where there are continuous deposits and withdrawals in the same bank ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f cash deposit as well as cash withdrawn was revealed, therefore, the entire on the basis of only bank statement may kindly be deleted. 5. Alternatively, he submitted that since cash deposits and cash withdrawals have been regularly done by the assessee in the same bank account, therefore, considering these facts and circumstances of the case, the total addition may kindly be restricted to peak amount. 6. Ld A.R. also placed reliance on the decision of Hon'ble A.P.High Court in the case of CIT vs Purushottam Jhawar (2013) 220 Taxman 74 (mag) (AP). Ld A.R. also submitted that if the assessee's claim of income by applying peak theory is accepted and same is submitted before the AO then while passing the assessment order, the AO has to give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d treating the same as undisclosed income or undisclosed profit of the assessee. 7. Replying to above, ld CIT DR drew our attention towards findings recorded by the ld CIT(A) and submitted that the appellant has not explained the huge amount of cash taken by Shri Uma charan Panda and no such deposition was filed either during the course of search or during the course of assessment proceedings. If he could carry the huge amount of cash for making purchases from Kawadi walas located at the different places, then he could easily bring back the unutilised cash, which will be much smaller than the cash carried by him for purchases from Kabadiwalas. Ld CIT DR also submitted that the assessee has not shown any detailed purchases, where they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument is concerned, we decline to accept that the explanation submitted by the assessee is regarding purchase of scrap from the Kawadi walas located at different places of the State. Then, it is safely presumed that the assessee has owned said bank account maintained with ICICI in the name of Uma charan Panda. Therefore, seized document i.e. bank statement cannot be treated as dumb documents. 8. So far as the contention of ld CIT(A) nothing in the impugned order is concerned, the revenue authorities cannot step into the shoes of the assessee for describing any method of business or financial operation and it is prerogative of the assessee how to conduct his business and financial activities, therefore, the question of deposit and withdraw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd circumstances of this case are distinguishable on facts from the facts of the present case as in that case, Their Lordships in para 11 categorically held that where a source of deposit is not explained and the corresponding outgo is also unexplained, the question of giving the assessee the benefit of peak credit would not arise. Further, Their Lordships in para 19 finally held as under: " 19. The legal position in respect of an accommodation entry provider seeking the benefit of 'peak credit' appears to have been totally overlooked by the ITAT in the present case. Indeed, if the Assessee as a self-confessed accommodation entry provider wanted to avail the benefit of the 'peak credit', he had to make a clean breast of al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition made by the AO. 12. At the same time, we hold that when admittedly and undisputedly, the account was not disclosed to the department then, the amount of cash deposit cannot be ignored by the revenue authorities. In the totality of facts and circumstances of the case, we may point out that the assessee has already disclosed amount of Rs. 15 crores during search and seizure operation, wherein, the impugned bank account was found by the revenue authorities. Since, we are satisfied that the amount of cash deposit and cash withdrawals have been made by the employee Shri U.C.Panda, on behalf of the assessee and there were regular cash withdrawals and deposits have been made in the same bank, therefore, the entire amount of deposits can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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