TMI Blog2023 (3) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... ited in the bank account of the assessee was withdrawn locally or such withdrawal was really made in Bihar or Eastern UP, as claimed by the appellant. Such facts of withdrawal could be cross verified from the banker of assessee. Hence, additional evidence filed before ld CIT(A), was neither considered nor the application of the assessee under Rule-46A was rejected, therefore,admit the additional evidence filed by the assessee and restore the grounds of appeal to the file of assessing officer to decide the issue afresh - grounds of appeal raised by the assessee are allowed for statistical purpose. Validity of penalty levied u/s 271(1)(c) - Since we have restored the quantum appeal of the assessee to the file of Assessing Officer for deciding the issue afresh, therefore, order Of penalty under section 271(1)(c) will not survive. - ITA No. 139/Srt/2023, ITA No. 140/Srt/2023 - - - Dated:- 15-3-2023 - Shri Pawan Singh, Judicial Member For the Assessee : Shri Hiren Vepari, CA For the Department : Shri Vinod Kumar, Sr. DR ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER: PAWAN SINGH, JUDICIAL MEMBER: 1. These two appeals by the legal heir of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 133(6) of the Act. On perusal of such information, the Assessing Officer noted that the assessee was having a bank account in Axis bank Ltd. wherein there are cash deposit of Rs. 29,91,500/-. The assessee was asked to furnish the source of cash deposit. The Assessing Officer noted that the assessee furnished part details and could not furnish complete details called by him. In absence of complete details, the Assessing Officer issued final show cause notice, contents of which is recorded in para 6 of assessment order. The Assessing Officer noted that despite repeated show cause notice, the assessee failed to furnish reply and substantiate the source of cash deposit. The Assessing Officer in absence of any explanation, made addition of aggregate amount deposited in cash of Rs. 29,91,500/- under Section 68 and initiated penalty under Section 271(1)(c) of the Act. 3. Aggrieved by the addition in the assessment order, the assessee filed appeal before the ld. CIT(A). Before the ld. CIT(A), the assessee filed detailed written submissions. Some of the contents of written submission of assessee is recorded in para 6 of order of ld. CIT(A). The assessee in his submission, submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost of such persons were from labour class either uneducated or very less educated and were not having their own bank account. Such labourers were unable to send the money earned by them for their family members who were staying at Bihar. The assessee assisted them by taking their money and depositing in his bank account with Axis Bank in Surat. Such money were withdrawn on the same day or very next day by his brother Shaukat Ali by using assessee s ATM card and then delivered to their family members in their native placed/villages. In all such arrangements, the assessee used to get Rs. 200/- as commission for transfer of such amount by using his bank account and ATM card which was with his brother. The assessee during the financial year made such total deposit of Rs. 29,91,500/- in his bank account. All the money were immediately or next working day was withdrawn. Before the Assessing Officer, the assessee could not furnish complete evidence i.e. details of deposit in bank account and their withdrawal, confirmation by such labourers and their identity. However, all such evidences were gathered during the first appellate stage. The assessee furnished copy of bank statement with Axi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mations of all the persons are drafted in a similar fashion. Such confirmations are self-serving certificates. On the submission for making addition on the basis of peak credit, the ld. Sr. DR submits that theory of peak credit can be applied only in the situation where the same amount is deposited, withdrawn on a repeated occasion. However, in the present case, the case of assessee is that the amount was deposited in Surat and was withdrawn in Bihar so on each and every time, additional amount was deposited, therefore, such principle of peak credit is not applicable. 9. I have heard the submissions of both the parties and have gone through the orders of lower authorities carefully. I find that the Assessing Officer reopened the case on the basis of information from ITD system that the assessee has made cash deposits of Rs. 29,91,500/- in his savings bank account with Axis Bank. The Assessing Officer after recording reasons of reopening, issued notice under Section 148 on 26/03/2015. The assessee filed return of income on 29/01/2016 declaring income of Rs. 1,75,830/- . The assessee was asked to substantiate the source and nature of cash deposits of Rs. 29,91,500/- in his bank ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rification of such facts or evidence produced by assessee. The primary contention of assessee is that the amount deposited in Surat was immediately or next day withdrawn in Bihar. No such verification of fact if the amount deposited in the bank account of the assessee was withdrawn locally or such withdrawal was really made in Bihar or Eastern UP, as claimed by the appellant. Such facts of withdrawal could be cross verified from the banker of assessee. Hence, considering the fact that before assessing officer the assessee has not filed any documentary evidences. The additional evidence filed before ld CIT(A), was neither considered nor the application of the assessee under Rule-46A was rejected, therefore, I admit the additional evidence filed by the assessee and restore the grounds of appeal to the file of assessing officer to decide the issue afresh after considering all the evidences filed by the assessee and pass the order afresh in accordance with law. In the result, the grounds of appeal raised by the assessee are allowed for statistical purpose. 11. In the result, the appeal of the assessee in ITA No. 139/Srt/2023 is allowed for statistical purpose. ITA No.140/Srt/202 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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