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TMI Blog2016 (1) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... jee, JCIT, the Learned DR argued on behalf of the revenue and Shri. A.K.Tulsian, FCA, the Learned AR argued on behalf of the assessee. 3. The issue to be decided in this appeal is whether in the facts and circumstances of the case the Learned CITA is justified in granting relief of Rs. 45,57,218/- out of the total credits in the undisclosed bank account of the assessee. 4. The brief facts of this issue is that the assessee had an undisclosed bank account with ABN Amro Bank , Brabourne Road Branch, Kolkata vide Savings Bank Account No. 1185161. The bank statements were collected by the Learned AO directly from the bank account for the period 1.1.2005 to 31.3.2008. The said bank account was opened on 7.3.2006. In the said bank account, lot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k account in their returns of income. On first appeal, the Learned CITA accepted the entire contentions of the assessee and the detailed paper book filed by the assessee containing the entire details of M/s Hindusthan Cargo Carriers, return acknowledgements and audited financials of the said firm wherein the contents of the ABN Amro Bank account were duly considered by the said firm and affidavit from the said firm that the contents in the bank account belongs to them. The entire contents of the undisclosed bank account represented the business transactions of M/s Hindusthan Cargo Carriers, but however, the Learned CITA proceeded to adopt the peak credit addition and gave direction to the Learned AO to add the peak credit in the said bank a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e affidavit of Hindusthan Cargo Carriers which were placed before the Learned AO during assessment proceedings were conveniently ignored by the Learned AO while framing the assessment. He further stated that the case law relied upon by the Learned CITA on the decision of this jurisdictional tribunal for adopting peak credit is well placed even though without prejudice to the main contention, no addition could be made towards the bank account of Hindusthan Cargo Carriers in the hands of the assessee. 6. We have heard the rival submissions and perused the materials available on record. We find that the contentions of the Learned DR are factually incorrect from the facts recorded in the Learned CITA order and the paper book filed before us. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication for the levy of penalty. We do not agree with this submission. There may be cases where a finding of concealment may be supported by the assessee's own admission of guilt. This, however, is not such a case. It is true that the assessee did not produce evidence to support the case of the hundi loans being genuine. It is also true that the assessee was willing to get the assessment settled on the basis that the peak credit in that account represented its taxable income. This offer of assessment, by itself, cannot, however, amount to an admission that income had been concealed. On the contrary, even the petition by the assessee under section 271(4A) to the Commissioner made it quite clear that the hundi loans were genuine and the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carefully considered the various legal pronouncements relied upon by the appellant. They also support the contention of the appellant that only the combined peak credit of the undisclosed bank accounts should be considered as undisclosed income. The decision of ITAT, Ahmadabad in the case of Nitesh R. Dalwadi vide ITA No.53/Ahd/2013 for A.Yrs 2009-2010 order dated 11.02.2014 at para 6 is reproduced as under:- "6. After hearing Ld. DR, we find that there is no dispute about the fact that in the immediate proceeding year AO has made the addition by applying peak credit theory in respect to the cash deposit in the same bank account and there was no change of circumstances during the year under appeal, therefore, we feel that Ld. CIT(A) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the proceedings either of the ITO or of the IAC that while offering the peak credit for the assessment purposes, the assessee had confessed that the cash credits in question really represented concealed income. The record does not show what it was which impelled the assessee to short circuit the assessment process by offering the peak credit for assessment. Whatever might be the compelling motive there is not a shred of evidence even in the penalty proceedings to show that any of the credits were not genuine or that they are really camouflaged or concealed income of the assessee. None of the persons in whose names the cash credits appear in the assessee's books were shown to have been examined by the ITO or even by the IAC for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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