TMI Blog2019 (10) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... furnish the details of the party to whom he issued the cheques. Thus in the absence of sufficient documentary evidence about the details of the parties, it is not possible to ascertain the nature of the transactions. Accordingly, we are not impressed with the argument of the assessee. The peak credit is applied where the assessee can correlate the deposits viz a viz withdrawal from the bank. As the assessee failed to establish the correlation between the deposit of cheques as well as cheques withdrawn from the bank. Therefore we are reluctant to apply the peak credit theory in the given facts and circumstances. No reason to interfere in the finding of the learned CIT-A. Hence the ground of appeal of the assessee is dismissed. - ITA Nos.481-485/Ahd/2017 - - - Dated:- 8-4-2019 - Shri Rajpal Yadav, Judicial Member And Shri Waseem Ahmed, Accountant Member For the Assessee : Shri K.P. Singh, A.R For the Revenue : Shri Lalit P. Jain, Sr. DR ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeals have been filed at the instance of the Assessee against the separate orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the other hand, the learner DR vehemently supported the order of authorities below. 8. We have heard the rival contentions and perused the materials available on record. At the time of hearing a query was posed to the learned counsel for the assessee whether the notice under section 143(2) under the Act was issued before the death of the assessee. The learned counsel for the assessee conceded the fact that the statutory notice under section 143(2) was issued before the death of the assessee. It is the settled law that the proceedings under section 143(3) of the Act cannot become fatal if the notice was issued under section 143(2) of the Act on the live person at that relevant time but died subsequently. Regarding this, we find support and guidance from the order of Hon ble ITAT in the case of Shri Ishwar Bhai-Magan Bhai Desai Vs. ITO in ITA 90/AHD/2017 vide order dated 23-4-2018 wherein it was held as under: 7. Let me consider judgment relied upon by the ld.DR in the case of Sky Light Hospitality LLP (supra). It filed return for the assessment year 2010-11. It was converted into limited liability partnership on 13.5.2016 under Limited Liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Light Hospitality Pvt. Ltd., a company which had been dissolved, was an error and technical lapse on the part of the respondent. No prejudice was caused. 18. Petitioner relies on Spice Infotainment Ltd. vs. Commissioner of Service Tax, (2012) 247 CTR 500. Spice Corp. Ltd., the company that had filed the return, had amalgamated with another company. After notice under Section 147/148 of the Act was issued and received in the name of Spice Corp. Ltd., the Assessing Officer was informed about amalgamation but the Assessment Order was passed in the name of the amalgamated company and not in the name of amalgamating company. In the said situation, the amalgamating company had filed an appeal and issue of validity of Assessment Order was raised and examined. It was held that the assessment order was invalid. This was not a case wherein notice under Section 147/148 of the Act was declared to be void and invalid but a case in which assessment order was passed in the name of and against a juristic person which had ceased to exist and stood dissolved as per provisions of the Companies Act. Order was in the name of non-existing person and hence void and illegal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incorrect. Nevertheless, human errors and mistakes cannot and should not nullify proceedings which are otherwise valid and no prejudice had been caused. This is the effect and mandate of Section 292B of the Act. 8. A perusal of paragraph-17, 18, 19 of the above judgment would indicate that they are in favour of the assessee in the case before me. The assessee is not harping upon any irregularity in the notice, rather he is challenging the very jurisdiction over the assessee, on account of issuance of notice in the name of a deceased person, and further, even after coming to know about status of the assessee as a deceased, passing of an assessment order in the name of deceased person would not be sustainable. Therefore, I allow this ground of appeal and quash the assessment order. Consequently, I do not deem it necessary to adjudicate other issues on merit. 9. In the result, appeal of the assessee is allowed. In view of the above, we hold that the proceedings under section 143(3) of the Act cannot become invalid in the given facts and circumstances. Therefore we do not find any reason to disturb the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly, the assessee claimed that the cash was deposited for ₹ 25,100/- in saving bank account from the sale of agriculture produce and the same has been treated as agriculture income. 14.1 The assessee also submitted that the Peak Credit and Telescoping Theory was not considered by the AO while passing the assessment order even though these are recognized under the Income Tax Laws. Accordingly, the assessee requested to apply the peak credit theory. 15. The Ld. CIT (A) after considering the submission of the assessee made certain observations as detailed under: 15.1 The document produced/submitted could also be produced/submitted very well at the time of the assessment proceedings. Hence the assessee did not establish that he was prevented by sufficient cause to produce any evidence before the AO. 15.2 The AO did not consider the debit entries of cash while making the assessment. As such in several judgments, it was decided that only peak credit should be taken. Accordingly, it was noted that assessee has peak credit of ₹ 1,100/- only in his accounts. Hence the addition of ₹ 1,100/- on account ..... X X X X Extracts X X X X X X X X Extracts X X X X
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