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TMI Blog2011 (11) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. 4. The Ld. CIT(A) has failed to appreciated that Onus was on assessee to substantiate that cash deposit was utilized in the purchase/sale of the business. No evidence in this regard was furnished before the A. O. neither it is clear from the order of the CIT(A) as what was the end result of alleged trading for want of supporting evidence for each and every debit/credit entry the deposits/withdrawals remain unexplained. 5. The Ld. CIT(A) erred in law and on facts by accepting the additional evidences without providing an opportunities to the AO to verify the same as envisaged under Rule 46A (2) of the I. T. Rules 1962. 6. On the facts and in the circumstances of the case, and in Law, the Ld. CIT(A), Surat ought to have upheld the order of the Assessing Officer. 7. It is, therefore, prayed that the order of the Ld. CIT(A)-IV, Surat may be set-aside and that of the Assessing Officer restored. 2. We have heard the learned representatives of both the parties and perused the findings of the authorities below. 3. Briefly, the facts of the case are that the assessee challenged the findings of the AO before the learned CIT(A) holding the deposit of ₹ 15,60,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned CIT(A) accordingly deleted the addition of ₹ 2,02,500/-. 4. On consideration of the findings of the learned CIT(A), we do not find any merit in ground No.1 of the appeal of the revenue. The balance sheets of earlier years are part of the record of revenue department. Even if copies of the same were filed before the learned CIT(A) would not show that these were fresh evidence in nature. Since the balance sheets of the earlier years are available on record of the AO and it shows that the same amount of cash credit appearing in earlier years which is continuing in the assessment year under appeal, would prove that no fresh cash credits have been received in the assessment year under appeal. The learned CIT(A) was, therefore, justified in deleting the additions. Nothing is produced before us to rebut the findings of the learned CIT(A) in this regard. We, therefore, do not find any merit in ground No.1 of the appeal of the revenue. The same is accordingly dismissed. 5. As regards the remaining grounds No.2 to 7 of the departmental appeal with regard to addition of ₹ 15,60,067/-, it was explained before the learned CIT(A) that the bank account with IDBI Bank was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee relied on the following orders:- (1) Smt. Urmila Ratilal Vs CIT (1982) 136 ITR 797 (Guj.) (2) ITO Vs Maheshkumar Jayantilal Vora (2004) 3 SOT 96 (Rajkot) (3) Asstt. CIT Vs Tritan Happy Home (P.) Ltd. (2005) 94 TTJ (Ctk.) 628 (4) Sanjay Kumar Jain Vs CIT (2001) 118 Taxman 821 (Cal.) (5) Jagadamba Construction Co. Vs ITO (2004) 3 SOT 670 (Jodh.) (6) Arun Kala Vs Asstt. CIT (2005) 98 TTJ (Jp.) 1046 7. We have considered the rival submissions and gone through the findings of the authorities below. The AO on going through the A. I. R. information found that the assessee has a bank account with IDBI Bank. But the assessee claimed before the AO that he has only one bank account with Surat People Co-operative Bank Ltd. Thus, the assessee denied any bank account maintained with IDBI Bank. The AO called for the bank statement of the bank account of the assessee with IDBI Bank and found that the assessee had made cash deposits of ₹ 11,31,000/- and cheques deposit with interest of ₹ 4,29,067/-. The said bank account with IDBI Bank was not reflected in the balance sheet of the assessee. The AO gave specific show cause notice to the assessee to explain the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, it is not in dispute that the assessee made cash deposits in his account with IDIB Bank. Such bank account was not reflected in the balance sheet of the assessee. The assessee denied maintenance of any such bank account with IDBI Bank before the AO. The assessee did not explain the source of the deposits in the bank account with IDBI Bank despite opportunities provided by the AO. Thus, the AO was justified in holding that the assessee made unexplained investment from the undisclosed sources. No evidence of withdrawal from the same bank account or for re-deposit was filed. Thus, the assessee never owned up unexplained investment in the bank account at the assessment stage. Before, the learned CIT(A), the assessee accepted the undisclosed bank account with IDBI Bank for the first time. The theory of withdrawal from ATM and bank counter and re-deposit within short period was not established through any evidence or material on record. The assessee has not laid out any foundation of peak credit before the AO. The Hon ble Allahabad High Court in the case of Bhaiyalal Shyam Behari Vs CIT, 276 ITR 38 held as under: In order to adjudicate upon the plea of peak credit the factual fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in the bank account with IDBI Bank. The Hon ble Supreme Court in the cases of Durga Prasad More, 82 ITR 540 and Sumati Dayal, 214 ITR 801 held that the Courts and Tribunal have to judge the evidences before them by applying the test of human probabilities after considering the surrounding circumstances. The decisions cited by the learned Counsel for the assessee are not applicable to the facts of the case. In the present case, the assessee has taken contrary stand before the AO and the learned CIT(A) because before the AO the assessee denied to have maintained any bank account with IDBI Bank because it was claimed that the assessee maintained only one bank account with Surat People Cooperative Bank Ltd. and when explanation was called for by the AO, the assessee choose not to reply to the show cause notice, however, before the learned CIT(A) the assessee accepted the undisclosed account when he was already confronted by the AO of the materials collected against him. The learned CIT(A) in violation of Rule 46A of the IT Rules admitted the peak theory of the assessee, therefore, he was not justified in accepting the theory of peak credit on the matter in issue. No reliance could ..... X X X X Extracts X X X X X X X X Extracts X X X X
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