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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 ..... ee has already disclosed amount of ₹ 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 cannot be treated as undisclosed income or undisclosed profit of the assessee. In these peculiar facts of the case, the assessee is entitled to benefit of peak credit theory of ₹ 13,06,500/- being closing balance as on 26.11.2014 - addition made by the AO is restricted to the peak credit amount of ₹ 13,06,500/- - Decided in favour of assessee partly. - IT(ss)A No.01/CTK/2019 - - - Dated:- 8-6-2020 - Shri Chandra Mohan Garg, Judicial Member And Laxmi Prasad Sahu, Accountant Member For the Assessee : Shri Kamal Agarwalla, CA For the Revenue : Shri M.K.Gautam, CIT DR ORDER PER C.M. GARG, JM This is an appeal filed by the assessee against the order of the CIT(A),2, Bhubaneswar dated 28.11.2018 for the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gle incriminating material other than bank statement from which the factum of cash deposit as well as cash withdrawn was revealed, therefore, the entire on the basis of only bank statement may kindly be deleted. 5.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 valid reasons on refusal without applying the principles of presumptions and more particularly in the case of search assessment. Ld A.R. vehemently contended that the AO has to establish his contention by making further inquiries and when this is not done, the seized document is dumb document and no addition can be made merely on presumption surmise. Ld A.R. further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has own this bank account belonging to him. It is not in dispute that during the period from September, 2014 to January, 2015, number of transactions including cash withdrawals and deposits have been made therein and total amount of deposit is ₹ 1,79,06,477/-. We also note that Ld CIT DR candidly accepted that the peak credit in the said bank account was ₹ 13,06,500/- as on 26.11.2014. We have also gone through the case laws relied by ld AR relied viz; judgment of Hon ble Delhi High Court in the case of D.G.Gupta (supra), judgment of Hon ble Allahabad High Court in the case of Bhaiyalal Shyam Behari (supra). Further, in the case of Purushottam Jhawar (supra), the Hon ble A.P. High Court has held that the quantification of undisclosed income is possible by applying the theory of peak credit where there are regular cash deposits and cash withdrawals by the assessee from the same bank account. So far as the contention of the assessee that bank statement is dump document 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordships 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 all the facts within his knowledge concerning the credit entries in the accounts. He has to explain with sufficient detail the source of all the deposits in his accounts as well as the corresponding destination of all payments from the accounts. The Assessee should be able to show that money has been transferred through banking channels from the bank account of creditors to the bank account of the Assessee, the identity of the creditors and that the money paid from the accounts of the Assessee has returned to the bank accounts of the creditors. The Assessee has to discharge the primary onus of disclosure in this regard. 10. In view of above, we have no hesitation to hold that the present case is not pertaining to an assessee doing business accommodation entry profit that cash deposits a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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