TMI Blog2016 (1) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax Act, 1961 (hereinafter referred to as the Act ). 2. Shri.Amitabh Bhattacharjee, 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 ₹ 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 of cash and cheque deposits were made. Similarly lot of withdrawals were also made. The assessee when confronted with the said bank account by the Learned AO , explained that the said bank account was opened in the name of the assessee by M/s Hindusthan Cargo Carriers, a partnership firm, wherein his wife, father and brother were partners. The assessee al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iers. He argued that the contents of the said bank account were not reflected in the books of the firm. He further argued that the assessee was not able to prove that the withdrawals in the said bank account were meant to represent expenses incurred on behalf of Hindusthan Cargo Carriers. In response to this, the Learned AR vehemently supported the orders of the Learned CITA and vehemently opposed to the factually incorrect arguments of the Learned DR with regard to the fact that the contents of ABN Amro Bank account were not reflected in the accounts of the firm M/s Hindusthan Cargo Carriers. He argued that the detailed paper book containing pages 1 to 159 were duly filed by the assessee before the Learned CITA containing the entire details of M/s Hindusthan Cargo Carriers in the form of their bank statements, return acknowledgements, audited financials, affidavit from them confirming and owning the transactions of ABN Amro Bank. He also took us to the relevant para of the Learned CITA order wherein the 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 assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assessee s willingness to get assessed on the basis of the peak credit was only because it had become difficult for the assessee to prove the genuineness of the credits in view of the conditions created by the denial by the hundi bankers of their advances. Having regard to the terms of the assessee s settlement petition to the Commissioner which furnished the one and only basis for the penalty levied by the Commissioner which furnished the one and only basis for the penalty levied by the Inspecting Assistant Commissioner, we are satisfied that the Tribunal was right in holding that the petition, by itself, would furnish no evidence whatever of concealment of income. Our answer to the question of law propounded by the Department is, therefore, in the affirmative and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal. It would have been seen that the Tribunal had not wholly ruled out the department s case about assessee s efforts at concealment. All they found was that in so far as the amounts representing cash credits were concerned, there really was no material for the department on the basis of which it could confidently be said that they represented the assessee s income which had not suffered tax and which was concealed in the garb of cash credit entries in accounts. It is true that the assessee itself had offered the peak credit for the purpose of assessment. But it is not suggested anywhere in 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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