TMI Blog2015 (9) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue to the file of AO to restrict the addition on the basis of peak credit. - Decided in favour of assessee for statistical purposes. Addition of jewellery - Held that:- We find that Ld CIT(A) after considering the entire facts and the CBDT circular (supra) and by a well reasoned order had granted substantial relief to the assessee. Before us, ld. A.R. has not controverted the findings of ld. CIT(A) nor pointed any fallacy in the findings of ld. CIT(A) and therefore we find no reason to interfere with the order of ld. CIT(A) and thus dismiss the ground of Assessee. - Decided against assessee Unexplained cash found at the time of search - Held that:- Cannot accept the contention of the. appellant particularly when the mother of the appellant expired in 2006 and the search took place in the case of the appellant in October, 2008, Further, what was the source of the, cash in the hands of his mother has not been explained by the appellant. Similarly, the appellant has not given the details of withdrawals from his salary. Rather the appellant has tried to improve the cash deposits in his bank account out of the cash withdrawals. Therefore, no hesitation in holding that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sited cash in his bank account maintained with SBI and Oriental Bank of Commerce Branch and the aggregate deposits was to the tune of ₹ 6,06,500/-. Assessee was asked to explain the source of deposits to which Assessee interalia submitted the source of deposits to be the amount received from his late mother and father, from sale proceeds of house etc. The submission of the assessee was not found acceptable to the AO because according to AO no evidence of the source was furnished by the Assessee. He accordingly treated the cash deposits as unexplained and made addition of ₹ 6,06,500/-. Aggrieved by the order of AO, the matter was carried before CIT(A) who decided the issue by holding as under:- 4.1 I have considered the submissions of the appellant. It may be mentioned that at the time of assessment proceedings the appellant has submitted before the AO that the cash deposited in the bank is out of the cash available with the appellant ₹ 3.50 lakhs to ₹ 4 lakhs plus cash received from father s HUF on the sale of household items of ₹ 3.50 lakhs at Rohtak plus cash balance received from mother on her death ₹ 3.40 lakhs and also the cash withdrawa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived ₹ 3.40 lakhs after the death of his mother is again not acceptable in the absence of any supporting evidence. The appellant has not given the source of cash of ₹ 3.40 lakhs with his mother. Rather the appellant has accepted that his mother was not keeping, well. Therefore, he must have incurred certain expenses for her treatment which is not shown as withdrawals by the appellant in his submission. Further the contention of the appellant that he and his family had received .customary gifts of ₹ 20,000/- to ₹ 22,000/- per year is also not supported by any fact. On the other hand, the appellant has nowhere mentioned that out of the withdrawals from the bank he has spent certain expenses towards household items. In the absence of any evidence in support of the contention of the appellant, I hold that only the amount of ₹ 2.45,000/- is explained and all other cash deposits are unexplained. The AR has taken a plea that during the assessment year 2006-07 cash of ₹ 3,50,000/- has been withdrawn from the bank and the source of the deposit of ₹ 3,37,000/- in A.Y. 2007-08 is out of these cash withdrawals. The appellant has not given the details o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peak credit of the cash deposited in his bank accounts. We also find that while deciding the appeal of the assessee for AY 2006-07, Ld CIT(A) has in principle partially accepted the addition based on the peak theory as he has directed the AO to accept the amounts which are re-deposited within 15 days of withdrawal. We also find that the decision of the CIT(A) for AY 2006-07 has been accepted by the Department and has not preferred appeal before the Tribunal though the facts of that year are similar to that of other years. Before us, Revenue has not controverted the working of peak credit furnished by the ld. A.R. In such a situation, we are of the view that in the present case the entire cash deposits cannot be added as income but the addition be made only to the extent of peak credit. We therefore restore the issue to the file of AO to restrict the addition on the basis of peak credit. The assessee is directed to promptly furnish the details called for by the AO. In the result the ground is allowed for statistical purposes. Further, since the grounds for AY 2004-05 to AY 2009-10 are also similar to AY 2003-04 and therefore for similar reasons given while deciding issue for A.Y. 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wife of the appellant and 100 gms. each in respect of appellant and his son gets explained. This view has been upheld by the Hon ble Gujarat High Court in the case of Ratanlal Vyaparilal Jain, 235 CTR 568. According to the Hon ble High Court, the Instruction No. 1916 is applicable not only in respect of the seizure of the jewellery but also in assessment proceedings. Therefore, the AO is directed to treat the 700 gms. of gold jewellery as explained in view of the above mentioned decision. 7. According to the AR, 775.500 gms. jewellery valuing at ₹ 8,06,215/- found from locker No. 117 with Union Bank of India, Bodakdev Branch represent 500 gms. given to the wife of the appellant by her mother in law and father in law and the remaining 250 gms. jewellery was received by her from her parents at the time of marriage. This fact was also stated by Smt. Charuben L Gupta at the time of operation of locker on 4/11/2008 in which she stated that the locker No.117 with Union Bank of India was originally in joint names of herself and her mother in law. After the death of her mother in law the said locker was transferred in her name. According to her, 500 gms. of the gold jewellery wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not controverted the findings of ld. CIT(A) nor pointed any fallacy in the findings of ld. CIT(A) and therefore we find no reason to interfere with the order of ld. CIT(A) and thus dismiss the ground of Assessee. 3rd ground is with respect to unexplained cash found at the time of search. 12. During the course of search, cash of ₹ 1,17,000/- was found of which cash of ₹ 7000 was treated as explained and the balance cash of ₹ 1,11,000/- was considered as unexplained and added to the income. Aggrieved by the order of AO, Assessee carried the matter before ld. CIT(A) who upheld the order of AO by holding as under:- 9. I have considered the submissions of the appellant. The explanation of the appellant is that the source of cash found from the residence represents ₹ 70,000/-which was received from his mother and the balance represents saving from his salary. Before me also, the same explanation has been submitted by the appellant. I cannot accept the contention of the. appellant particularly when the mother of the appellant expired in 2006 and the search took place in the case of the appellant in October, 2008, Further, what was the source of the, cash in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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