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TMI Blog2016 (6) TMI 1478X X X X Extracts X X X X X X X X Extracts X X X X ..... had requisitioned these accounts under section 133(6) of the Act from the bank itself. At the time of assessment proceedings, the assessee did not come out with the explanation which he offered before the CIT (Appeals) and even the evidence in the form of bank account No.6678 being filed before the CIT (Appeals) for the first time was not available readily. In the said circumstances, we do not find any infirmity in the order of the CIT (Appeals) Investment made by the assessee in jewellery - CIT (Appeals) dismissed the ground of the assessee stating that investments were found at the residence of the assessee and the presumption was against him, which he had not been able to rebut - HELD THAT:- No infirmity in the order of the CIT (Appeals) as there is no dispute to the fact that three retail invoices of M/s Tanishq were found during the course of search from the residence of the assessee. The presumption of the documents found during the course of search is against the assessee. It is presumed that the document belong to the assessee though the presumption is a rebuttable one but we observe that nowhere during the proceedings before the Assessing Officer as well as the CIT (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to interfere with the order of the CIT (Appeals). The ground of appeal raised by the assessee is dismissed. Addition on the basis of seized documents on account of purchase of jewellery from the residence of assessee - HELD THAT:- We do not find any infirmity since the assessee has not been able to substantiate the source of acquisition of jewellery and in view of the presumption under section 292C of the Act being against the assessee as the documents were found during the course of search from the premises of the assessee, the addition is to be sustained. We are not inclined to interfere with the order of the CIT (Appeals). The ground of appeal raised by the assessee is dismissed. - SHRI H.L. KARWA, VICE PRESIDENT AND MS. RANO JAIN, ACCOUNTANT MEMBER For the Assessee : Shri Tej Mohan Singh For the Department : Shri Manoj Mishra, CIT DR ORDER PER RANO JAIN, A.M.: These cross appeals are directed against the separate orders of learned Commissioner of Income Tax (Central), Gurgaon dated 30.8.2012, relating to assessment years 2007-08 and 2008-09 respectively. ITA No. 1070/Chd/2012 (Revenue s Appeal) : 2. The ground No. 1 raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the assessee. In this view, we do not intend to interfere with the order of the CIT (Appeals). 7. The ground raised by the Revenue is dismissed. 8. Ground Nos. 2 and 3 raised by the Revenue read as under : (ii) Whether the CIT(A) is justified in law an on facts in deleting addition of Rs. 27,00,000/- on account of deposits in bank account No. 20057176 maintained in Bank of Baroda Parwanoo? (iii) Whether the CIT(A) is justified in law an on facts in deleting addition of Rs. 11,00,300/- on account of cash deposits in bank account maintained with Bank of Baroda Parwanoo? 9. With respect to the facts to the extent relevant for adjudicating these two grounds were that there were certain deposits in the bank account, which as per the Assessing Officer were un-disclosed and additions were made. 10. Before the CIT (Appeals), the contention of the assessee was that in such circumstances, only addition to the extent of peak credit in such bank account should be sustained. The Assessing Officer in Remand Report though assailed the submissions of the assessee, the CIT (Appeals) allowed these grounds partly in favour of the assessee directing the Assessing Officer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e read as under : 1. That the Ld. Commissioner of Income Tax (Appeals) has erred in law as well as on facts in sustaining the addition of Rs. 27,00,000,- and Rs. 11,00,300/- on account of deposits in bank account maintained with Bank of Baroda, Parwanoo without appreciating the explanations rendered though at the same time benefit for peak credit has been given which is arbitrary and unjustified. 2. That the additions ought to have been deleted in totality as there were sufficient funds available for deposits in the accounts and as such the additions sustained are arbitrary and unjustified. 15. The issue in these grounds is same, which we have adjudicated in Departmental appeal in ITA No.1070/Chd/2012 in ground Nos.2 and 3, whereby we had declined to interfere with the order of the CIT (Appeals). In view of that, ground Nos.1 and 2 raised by the assessee are dismissed. 16. The ground Nos.3, 4 and 5 read as under : 3. That the Ld. Commissioner of Income Tax (Appeals) has further erred in law as well as on facts in upholding the addition of Rs. 3,00,000/- on account of deposits in bank account maintained with Bank of Baroda, Parwanoo without appreciating the explana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m to furnish details of all bank accounts standing in his name and in the names of his family members. In this way, addition was sustained by the CIT (Appeals). 19. Aggrieved by this, the assessee has come up in appeal before us. The learned counsel for the assessee reiterated the submissions that the cash deposits were made from the cash withdrawals made by the assessee from another account. 20. The learned D.R. relied on the order of the CIT (Appeals). 21. We have heard the learned representatives of both the parties, perused the findings of the authorities below and considered the material available on record. The relevant findings of the CIT (Appeals) are at para 6.1, which read as under : 6.1 1 have examined the submissions of the assessee and the impugned assessment order From the above facts it emerges that the cash withdrawals is made from an undisclosed bank account of the assessee bearing account no. 6678 on 18.01.06 and 3.08.05,. which is claimed to be the source of cash deposits in account no. 44 and 67 on the same date 23.02.07. This explanation defies logic. It is not only a matter of linking up the withdrawals and deposits but there has to be-some eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T (Appeals) for the first time was not available readily. In the said circumstances, we do not find any infirmity in the order of the CIT (Appeals). The grounds raised by the assessee are dismissed. 23. The ground No.6 raised by the assessee reads as under : 6. That the Ld. Commissioner of Income Tax (Appeals) has erred in law as well as on facts in making upholding the addition of Rs. 3,53,645/- on account of jewellery on the basis of some invoices found at the time of search brushing aside the explanations rendered though giving the benefit of telescoping which is arbitrary and unjustified. 24. The Assessing Officer made addition of an amount of Rs. 3,53,645/- on account of investment made by the assessee in jewellery. 25. Before the CIT (Appeals), the assessee submitted that invoices found at the time of search do not pertain to him nor any of his family members. It was further contended that even if the addition was to be made, the same should be telescoped in the addition of Rs. 28,97,650/- made in respect of cash and jewellery found at the time of search. The CIT (Appeals) dismissed the ground of the assessee stating that investments were found at the residence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds of appeal raised by the Revenue read as under : (i) Whether the CIT(A) is justified in law an on facts in deleting addition of Rs. 60,48,511/- by giving benefit of peak credit for cash deposits in bank accounts Nos. 10820, 44 67 with Bank of Baroda at Parwanoo against claim of much earlier cash withdrawals in absence of cash flow statement and books of accounts being produced before the assessing officer? (ii) Whether the CIT(A) is justified in law an on facts in deleting addition of Rs. 57,86,964/- on account of benefit of peak credit being given for cash deposits in bank account No. 20442 with Bank of Baroda at Parwanoo, statement and books of accounting being produce before the assessing officer. (iii) Whether CIT(A) has erred in allowing benefit of cash withdrawal/peak credit without insisting for consolidate 'Cash flow statement' in case where the assessee admittedly was maintaining multiple (Six in this case) undisclosed Bank accounts with cash deposit entries regularly? (iv) Whether CIT(A) has erred in allowing benefit of cash withdrawal for setting off against addition made to the taxable income of account of unexplained deposits in bank accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have provided evidence to enable the Ld. AO to examine for determining the peak credit. However it is a settled principal of law to give the benefit of peak credit in such circumstances where the bank accounts reflect withdrawals as well as cash deposits during the year and where the complete statement for the year is available. It cannot also be ruled out that the withdrawals were re-deposited despite the time-gap in the absence of any contrary finding by the Ld. OA that the withdrawals were invested/expended for some other purpose. Therefore in this backdrop, there is no requirement of going into the manner and circumstances of deposits. Hence the Ld. AO, while giving appeal effect, is directed to determine the peak credit for the above mentioned undisclosed bank accounts of the assessee. However, if the source of deposit is stated to be from the bank account no: 6678, BOB, Parwanoo, the same cannot be considered for reasons given in the appellate order for AY 200708. Consequently, the assessee partly succeeds on this ground of appeal. 38. On perusal of the same, we do not find any infirmity in the order of the CIT (Appeals). When we observe that the bank account is having f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same things. It was further stated that in the return of income, the expenses on account of construction have been correctly incorporated. As per the Assessing Officer, the assessee has backed out from his statement, which was given on oath during the course of search and in this way, an addition of Rs. 58,37,500/- was made. 43. Before the CIT (Appeals), submissions made before the Assessing Officer were reiterated, which were sent to the Assessing Officer in remand by the CIT (Appeals). In the Remand Report, the Assessing Officer contended that this is not a case of double addition as the amount was disclosed on the basis of document. Page 16 of an Annexure A-6, this document is a constructed page as when the search party entered, the assessee tried to tear the page and eat it. This page represents the torn fragments recovered by the team members. Therefore, this page apparently reflects the income earned by the assessee. The CIT (Appeals) after considering the submissions of the assessee and Remand Report confirmed the addition. 44. Aggrieved by this, the assessee has come up in appeal before us and reiterated the submissions made before the lower authorities. 45. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the assessee. 48. The ground Nos.2, 3 and 4 raised by the assessee read as under : 2. That the Ld. Commissioner of Income Tax(Appeals) has erred in law as well as on facts in sustaining addition of Rs. 60,48,511/- on account of deposits in bank accounts bearing Nos. 10820, 44 and 67 without appreciating the explanations rendered though at the same time benefit for peak credit has been given which is arbitrary and unjustified. 3. That the Ld. Commissioner of Income Tax(Appeals) has erred in law as well as on facts in sustaining an addition of Rs. 54,86,964/- on account of deposits in bank account maintained with Bank of Baroda, Parwanoo without appreciating the explanations rendered though at the same time benefit for peak credit. has been given which is arbitrary and unjustified. 4. That the additions ought to have been deleted in totality as there were sufficient funds available for deposits in the accounts and as such the additions sustained are arbitrary and unjustified. 49. Since these grounds have been adjudicated by us in the appeal of the Revenue in ITA No.1070/Chd/2012 and we have sustained the addition to the extent of peak credit, the grounds raised by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. It is also an admitted fact that the assessee has indulged in unaccounted business transactions and earnings thereof have been invested in various forms of assets. However, one cannot also overlook the practice that in the Indian society, gifts in the form of monetary as well as jewellery are given at the time of marriages and other occasions. Hence, one needs to fairly consider the gamut of the facts of the case viz. the family earnings, the status of the family, the customs of Hindu society and the marital period to examine the sources of acquisition of jewellery if justifiable. On one hand it will not be correct to tax the entire value of jewellery found, but on the other, it is apparent that the assessee has earned income which he has not been offering to tax over the years. Therefore considering the facts and circumstances, 1 would think that the assessee deserves a relief of Rs. 5 lakhs. Accordingly the addition on account of jewellery is to be restricted. 55. On perusal of the same, we do not find any infirmity as the CIT (Appeals) was fair enough to give the assessee relief of Rs. 5 lacs considering the fact that he has been married for a long time and his parents ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt recorded at the time of search, while the fact is that the assessee has not been able to substantiate the source of cash before the Assessing Officer or even before the CIT (Appeals). Therefore, we are not inclined to interfere with the order of the CIT (Appeals). The ground of appeal raised by the assessee is dismissed. 62. The ground No.7 raised by the assessee reads as under : 7. That the Ld. Commissioner of Income Tax(Appeals) has erred in law as well as on facts in upholding addition of Rs. 1,90,486/- on account of jewellery on the basis of some invoices found at the time of search brushing aside the explanations rendered though giving the benefit of telescoping which is arbitrary and unjustified. 63. The facts, in brief, are that the addition of Rs. 1,90,486/- was made on the basis of seized documents on account of purchase of jewellery from the residence of assessee. The stand of the assessee before the Assessing Officer as well as the CIT (Appeals) was that the documents found during the search did not belong to him. Rejecting the contention raised by the assessee the CIT (Appeals) upheld the addition. 64. Aggrieved by this, the assessee has come up in appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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