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2013 (5) TMI 282 - ITAT MUMBAIUndisclosed bank account - adoption of peak theory for the purpose of making an addition to the returned income by CIT(A) - Held that:- Assessee has been filing returns of the commission income in various years and has been enclosing various statements of accounts to the returns filed in earlier years. Just because the assessee has claimed benefit of provisions of Sec.44AD in some years as " no Accounts case", it does not mean that the assessee's transactions are outside the purview of statements already filed. Since the assessee's transactions in the same bank were reflected in earlier years, AO's finding that the transactions in Warna Sahakari Bank Ltd. is unaccounted cannot be accepted. The assessee explained some of the cash deposits were recoveries of outstanding amounts and some transactions were from the co-purchaser as well as advance from the sale agreement holder even though the said explanation neither AO nor CIT(A) applied their mind in examining truthfulness of the transactions. As seen from the show cause notices issued by the CIT(A) even the Peak credit working varied from the show cause notice to the final amount determined. How this amount has been arrived at could not be verified. Thus there seems to be an error committed by the CIT(A) in arriving that figure. Enhancement of purchase and sale of land - Held that:- Not in agreement with the enhancement so made by the CIT(A) as the sale did not takes place in this year and the assessee has not acted as a broker, two of the findings given by the CIT(A) thus are erroneous. However it cannot be ignored the transactions which happened during the year for purchase of property and various receipts. There are substantial cash withdrawals/ transfers also from the assessee account and Ms Swetha account, more than the cost of land stated. Since AO started the inquiry process on the basis of credits in the Bank account and CIT(A) also partly confirmed the same, even though arrived at the incorrect amount, in the interest of justice the orders of the CIT(A) and also of the AO set-aside and restore the issue to the file of the AO to examine the credits and debits in the Bank Account along with the nature of amounts transacted in the said account. In favour of assessee for statistical purposes.
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