TMI Blog2012 (1) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 69 of the I.T. Act, 1961 to ₹ 31,16,600/- by directing the A.O. to apply peak credit theory to work out unexplained cash deposits in the Bank Account. 2. Facts of the case are as under: Assessee born on 26.01.1977 went to Khazakhstan in the Year 1966 for pursuing his course in MBBS. He completed his education in the Year 2003. After completing his education, he again went to Khazakhstan on 14.01.2004 and since then he is engaged in the business of supply of marbles on commission basis. He was a non resident from A.Y. 2005-06 to A.Y. 2007-08. In A.Y. 08-09, he stayed in Khazakhstan only for 126 days came back to India, thereby becoming resident of India for the year under consideration. His period of stay in Khazakhstan is from A.Y. 05-06 to A.Y. 08-09. In the year under consideration, assessee opened two bank accounts with Axis Bank, one NRO account on 03.07.2007 and another NRE account on 10.08.2007. AO found that assessee has deposited a sum of ₹ 45,32,100/- on different dates as mentioned on Page 2 of the assessment order in the NRO bank account maintained with Axis Bank. Assessee vide letter dated 16-11-2010 explained that the source of cash depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time to time to meet certain expenditures how could it have been available three to four months later for deposits to be made by the son in his NRO account. I don t find the submission of the AR that the assessee had the benefit of availability of cash balance of ₹ 32.88 lacs acceptable. The assessee, nor his father had maintained any capital account. I also don t agree with the submission of the AR that the AO was required to bring material and support for his presumption. Once the cash deposits had been found, the onus was on the assessee to explain the sources of the same and to corroborate his explanation with adequate evidence. The assessee has failed to discharge this onus. Inspite of repeated opportunities the assessee has also not furnished any evidence by way of details of investments made by the assessee and his family members to prove the veracity of his submission regarding the cash available with the assessee. It is not clear how the AO was to proceed in his investigation in the absence of any evidence on record filed by the assessee. The submission of the AR during the course of hearing before me that the amount was withdrawn and deposited by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pened on 10.08.2007. Out of same, ₹ 9 lacs were withdrawn in cash on 24.08.2007 deposited by assessee in his NRO account. These withdrawals covers the deposit in the NRO bank account of the assessee thus the source of deposit in the NRO bank account of assessee is fully verifiable. The NRO account with Axis bank was opened on 03-07-2007 . In this account, amounts were deposited in cash from time to time and also withdrawn in cash from time to time. The net deposit in the NRO account is ₹ 18,70,350/- and the peak deposit is ₹ 31,16,600/- on 28-01-2008. This amount was deposited out of cash of ₹ 32.88 lacs withdrawn from the account of the father and withdrawals of ₹ 9 lacs from his NRE account out of the remittance send by the assessee from Khazakhstan as explained above. The statement of the availability of the cash is show that amount deposited in the NRO account is fully verifiable. CIT(A) has not given the benefit of amount withdrawn from the bank account of assessee s father for the reason that there is time gap between the withdrawal deposit in assessee s bank account. He also in Para 6.3 6.4 tried to distinguish the cases relied bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de addition of ₹ 20,000/- by holding that there was no evidence that the amount withdrawn on earlier dates was available with the assessee for making investment in NSCs. The same position was found with reference to investment in PPF. On appeal, the Ld. CIT(A) upheld the addition on the ground that there was a time gap between the withdrawals and for making investment in the NSCs which the assessee could not explain satisfactorily. Hon ble ITAT held that assessee had placed cash flow statement before the authorities below. It is also not in dispute that the assessee had withdrawn an amount of ₹ 45,000/- on 09.07.1990 and 10.07.1990. It is not the case of the revenue that amounts so withdrawn were utilized elsewhere. Mere fact that the assessee could not explain the time gap between the amount withdrawn and the investment in NSCs or where the amount was kept would not itself justify the addition. The claim of the assessee could have been rejected only if the source of balance in the bank account was not established or it could have been demonstrated that the amount so withdrawn was utilized elsewhere. This is not the case here. Therefore, there is no justification for su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not made any addition. 6. We are reproducing the cash flow statement of one bank A/C as under: 01.04.07 ₹ 15,20,000/- Withdrawn on different dates from 16.4.2007 to 1.6.2007 ₹ 17,68,000/- ₹ 32,88,000/- Deposit on 3.7.2007 ₹ 6,00,000/- ₹ 26,88,000/- Withdrawal from 9.7.2007 to 20.10.2007 ₹ 14,08,500/- ₹ 40,96,500/- Deposit on 30.10.07 ₹ 12,00,000/- ₹ 28,96,500/- Deposit on 2.11.2007 ₹ 5,37,500/- ₹ 23,59,000/- Deposit from 6.11.2007 to 16.12.2007 ₹ 3,35,000/- ₹ 26,94,000/- Deposit on 28.12.07 ₹ 12,00,000/- ₹ 60,000/- ₹ 15,54,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,37,000/- 16.11.2007 ₹ 7,000/- ₹ 24,44,000/- 19.11.2007 ₹ 5,000/- ₹ 24,49,000/- 21.11.2007 ₹ 11,000/- ₹ 24,60,000/- 27.11.2007 ₹ 5,000/- ₹ 24,65,000/- 28.11.2007 ₹ 13,000/- ₹ 24,78,000/- 04.12.2007 ₹ 30,000/- ₹ 26,33,000/- 10.12.2007 ₹ 11,000/- ₹ 26,44,000/- 11.12.2007 ₹ 25,000/- ₹ 26,69,000/- 15.12.2007 ₹ 5,000/- ₹ 26,74,000/- 16.12.2007 ₹ 20,000/- ₹ 26,94,000/- 10.01.2008 ₹ 2,000/- ₹ 16,16,000/- 06.02.2008 ₹ 50,000/- & ..... X X X X Extracts X X X X X X X X Extracts X X X X
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