TMI Blog2013 (12) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... t after arranging all the credits in the chronological order - Decided against Revenue. - Income Tax Appeal No. - 179 of 2004, Income Tax Appeal No. - 18 of 2012, Income Tax Appeal No. - 8 of 2012, Income Tax Appeal No. - 22 of 2012 - - - Dated:- 13-12-2013 - Hon'ble Dr. Satish Chandra And Hon'ble B. Amit Sthalekar,JJ. For the Appellant : S. C. C.,A.N. Mahajan, B. J. Agrawal For the Respondent : S. K. Garg ORDER All the appeals have been filed by the Department under Section 260A of the Income Tax Act, 1961, against the consolidated judgment and order dated 13.02.2004, passed by the Income Tax Appellate Tribunal, Allahabad in I.T.A. Nos. 762(Alld.)/1999; 763(Alld.)/1999; 304/(Alld)2002; and 305(Alld)/2002, for the block p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the CIT (Appeals), Varanasi and the Grounds No.3 and 4 of the Cross objection filed by the assessee requesting for accepting the peak investments shown by them in returned income and deletion of addition over and above the same. 5. Whether Hon'ble ITAT has erred in law in issuing direction "even if as a result of exercise of re-computation of undisclosed income as has been directed by us above, the computation goes below the returned income, the same has to be taken as it is while giving effect to this order", which is in violation of the provisions of Section 158 BC debarring the assessees from revising the return. 6. Whether the Hon'ble ITAT has erred in law in exceeding the power given u/s 254 (1) of the I.T. Act, 1961 by issuing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee appeals in ITA No.304(Alld)/2000 and ITA No. 305(Alld)/2000. 3. The order of the Hon'ble ITAT being erroneous in law and on facts deserves to be vacated and that order of the Assessing Officer to be restored." Both the assessees are the partners, so, the Tribunal has passed a consolidated order. Hence, we are also deciding all the appeals by this common order for the sake of convenience. The brief facts of the case are that on 12.02.1997, a search and seizure operation was conducted under Section 132 of the Act at the business and residential premises of both the assessees. M/s. Fertilizer Traders was assessed in the status of firm, where it has two partners, namely, Sri Vinod Saraf and Sri Atul Saraf. M/s. Saraf Trading Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entries. He has drawn the attention to Paras-74 75 of the impugned order, where the directions were issued to the AO. On reproduction, the observations and directions read as under:- "74. We are also aware of the fact that though the assessee has filed explanation before the AO to consider full accounts of the ledger for the purpose of working out of the peak, but the AO and the CIT(A) did not consider the same and have not given any finding. When later on the assessee prepared summary of the peak on the basis of the principle mentioned above, the AO and the CIT(A) while disposing of the matter under Section 154 of the Income-tax Act, 1961 did not consider the same. Similarly, the CIT(Central), Kanpur did not consider this matter whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid manner shall be allocated between the two firms in the same ratio as had been done earlier at the time of the block assessment vide order dated 24.2.1999." Learned counsel submits that the said directions are not required. Lastly, he made a request that the impugned order may kindly be set aside. On the other hand, learned counsel for the assessee had justified the impugned order passed by the Tribunal. He submits that in the instant case, the peak was worked out by the AO on the basis of pick and choose. So, the Tribunal has rightly directed to work out the peak on the basis of the entries. The correct entries were brought to the notice by the an affidavit filed by the partner, namely, Sri Vinod Saraf. So, the Tribunal ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut only the "peak" of the credit should be treated as own explained. To give a simple example, suppose there are credits in the assessee's book in the account. A or Rs.5,000 each on 1st October, 1990 and again on 5th November, 1990 but there is a debit by way of repayment shown on 27th October, 1990, the explanation will be that the credit appearing on 5th November, 1981 has or could have come out of the withdrawal/repayment on 27th October, 1981. This plea is generally accepted as it is logical and acceptable (whether the creditor is a genuine party or not), provided there is nothing in the material on record to show that a particular withdrawal/repayment could not have been available on the date of the subsequent credit. A refinement or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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