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TMI Blog2016 (5) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Further, the assessee had also offered an amount of Rs. 28 lakhs on account of unaccounted transactions. The assessee similarly had surrendered an amount of Rs. 18,11,873/- during the course of search on account of sundry debtors. However, in the return filed in response to notice u/s.153A the assessee has not offered the amount of Rs. 28 lakhs which was declared during the search as peak investment in the unaccounted business. The assessee however had included an amount of Rs. 18,11,873/- in the taxable income on account of sundry debtors. 2.1 The AO completed the assessment determining the total income at Rs. 1,14,66,740/- wherein an amount of Rs. 45,05,779/- on account of undisclosed income on account of cash found, Rs. 1,44,663/- on account of difference in stock, Rs. 28 lakhs on account of unrecorded sales and Rs. 7,35,497/- on account of difference in sundry debtors was added by the AO apart from various other additions. 3. In appeal the Ld.CIT(A) sustained the addition of Rs. 28 lakhs on account of peak credit/investment. On further appeal by the assessee, the Tribunal restricted such disallowance to Rs. 17,23,824/- by observing as under : "15. We have considered the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search amounting to Rs. 45,05,779/-. The assessee by making a statement during the course of search and by not retracting the same immediately thereafter has prevented the department from making further enquiries. Therefore, the argument of the Ld. Counsel for the assessee that an amount of Rs. 28 lakhs is already included in the cash found during the course of search at Rs. 45,05,779/- and the unaccounted debtors at Rs. 19,76,176/- cannot be accepted. However, we find some force in the submission of the Ld. Counsel for the assessee that the entire amount of Rs. 28 lakhs cannot be added to the total income of the assessee. We find the assessee during the course of search has admitted unrecorded credit sales made by Shri Satnarayanan and Shri Raja Koli amounting to Rs. 10,08,141/- and Rs. 8,03,732/- respectively both totaling to Rs. 18,11,873/-. The above amount of Rs. 18,11,873/- relates to the unrecorded credit sales made by the two salesman of the assessee, i.e. Shri Satnarayanan and Shri Raja Koli. We find the AO at Para 4.8 of the order has analysed and has mentioned that the above amount includes debtors to the extent of Rs. 10,76,176/- relating to the unaccounted business. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged to be penny stock companies where fraudulent transactions have taken place in connivance with some brokers. However, here the issue is addition of peak investment in unaccounted transactions which is based on the admission by the assessee during the course of search. We accordingly hold that the case decision relied on by the Ld. Counsel for the assessee is not applicable to the facts of the present case. In view of our above discussion, the assessee gets relief of Rs. 10,76,176/- only and balance amount of Rs. 17,23,824/- is sustained. The ground raised by the assessee is accordingly partly allowed." 4. Now the assessee has filed the Miscellaneous Application, the contents of which read as under : "The applicant Mr. Mukund Bankatlal. Bhattad hereby begs to state as under: - 1. That the order of the Hon'ble Tribunal in ITA No.589/PN/2015 for AY 2007-08 dated 26.08.2015 is received 0n 15.09.2015. 2. On going through the said order the applicant believes that there is a mistake occurred in appreciating the facts relating to Ground No.1 raised in the appeal. In order to explain the mistake the relevant facts are briefly narrated herebelow: - i. The Assessing Officer m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh found would have been Rs. 62,24,308/- which admittedly is not the fact. ix. On the premises of these undisputed facts on record kindly refer to Para 15 and 16 of the order of the Hon'ble Tribunal. The Hon'ble Tribunal however has only relied on the understanding that appellant ,has retracted the declaration and sustained the partial amount of Rs. 17,23,824/- by allowing the reduction of Rs. 10,76,176/- for debtors emerging out of unaccounted sales and purchases already included in Rs. 28 Lakhs. Thus as stated above and with utmost due respect, the Hon'ble Tribunal has erred in holding that applicant has retracted the declaration made of Rs. 28 Lakhs while the fact of the matter and evidently found on record is there is no such retraction and the amount of Rs. 28 Lakhs as agreed is offered and stands included in Debtors of Rs. 10,76,176/- and cash of Rs. 17,23,824/- included in excess Cash of Rs. 45,00,484/- offered. Out of this cash of Rs. 45,00,484/- the amount of Rs. 28 Lakhs was utilised in effecting unaccounted sales and purchases for which declaration was made. In Para 16 of the order the observation of the Hon'ble tribunal to the effect that "it is an ..... 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