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2017 (1) TMI 1104 - HC - Income TaxAdmission of the appeal as per the provisions of Section 249(4) - the assessee had not paid the admitted tax - Held that:- The said question is squarely covered against the Revenue in view of the decision of the Hon’ble Supreme Court in the case of Commissioner of InocmeTax vs. Pawan Kumar Laddha (2010 (4) TMI 14 - SUPREME COURT ). The aforesaid is not disputed by the learned Counsel appearing on behalf of the Revenue. Under the circumstances, question No.(A) is answered in favour of the assessee and against the Revenue. Undisclosed income - whether the addition has wrongly been made, as peak of bank account has been considered as undisclosed income covered by the period of Settlement Commission Order - Held that:- It is not in dispute that the order passed by the Settlement Commission has attained the finality. Therefore, considering Section 245F of the IT Act, when the order passed by the Settlement Commission has attained finality, the Assessing Officer was not justified in making the addition which has rightly been set aside by the learned Tribunal. After considering the observations made by the Settlement Commission which has been reproduced by the learned Tribunal in para 16, we are in complete agreement with the view taken by the learned Tribunal. No error has been committed by the learned Tribunal in holding so and in deleting the addition treating it as undisclosed income. Under the circumstances, the aforesaid question No.B is answered against the Revenue and in favour of the assessee Unaccounted cash payment made by the assessee in respect of booking of the plot in Radhe Acre Scheme - Held that:- Department is not in a position to point out from the order passed by the Assessing Officer that the addition was made by the Assessing Officer on the allegation of any onmoney received from the assessee. Therefore, the learned Tribunal has rightly deleted the addition of ₹ 1 Crore and ₹ 38,98,600/for AY 199596 and AY 199697 respectively by passing a reasoned order. Considering the reasons assigned by the learned Tribunal while making the above addition, we are in complete agreement with the view taken by the learned Tribunal. When the Assessing Officer made the addition solely on the basis of statements of Shri Ashish Patel dated 25.04.1996 and 01.05.1996, which were subsequently retracted and there being no other material whatsoever on the basis of which the aforesaid addition could have been made in respect of unaccounted cash payment alleged to have been made by the assessee, we confirm the order passed by the learned Tribunal deleting the same. - Decided in favour of the assessee Unaccounted investment in unexplained bank account peak balance - Held that:- Tribunal considered 60 days’ rotation period. While considering period of 60 days for rotation of funds, for working the peak, the learned Tribunal considered the observations made by the Settlement Commission. It is required to be noted that as such according to the assessee the period of 45 days for rotation of the funds was required to be considered for working the peak, however the learned Tribunal has not accepted the same and has considered the period of 60 days for rotation of funds for working the peak. While holding so the learned Tribunal has considered 32 undisclosed bank accounts also. When by cogent reasons the learned Tribunal has considered the period of 60 days for rotation of funds, the same is not required to be interfered with by this Court. We are in complete agreement with the view taken by the learned Tribunal.- Decided in favour of the assessee Unaccounted cash receipt on premium of transfer of booking of Plot No.181 in Radhe AcreII - whether the learned Tribunal is right in law and on facts in deleting the same by giving benefit of telescoping - Held that:- The deletion of addition of ₹ 4,51,500/for AY 199697 in respect of unaccounted cash receipt of premium on transfer of booking of Plot No.181 in Radhe AcreII and the deletion of addition of ₹ 10 lakh and ₹ 14,36,000/for AY 199495 and 199596 respectively are hereby quashed and set aside and both the aforesaid issues / questions are remitted back to the learned Tribunal to consider the same afresh. Telescoping in respect made in respect of unexplained cash payment to Shri Girish Ruparel in lieu of entry from Reliable Finstock Services Ltd - Held that:- The amount deposited in 32 unaccounted bank accounts earlier came to be considered by making the addition on undisclosed income by taking the peak. It has come on record that the amount of ₹ 61,54,735/paid by cash to Shri Girish Ruparel were in lieu of the cheques issued by the Reliable Finstock Services Ltd. which were deposited in 32 unaccounted bank accounts. Once that is so and once a peak is considered, there cannot be any double taxation as rightly held by the learned Tribunal. We are in complete agreement with the view taken by the learned Tribunal. Under the circumstances, question No.G is also answered against the Revenue and in favour of the assessee.
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