Iapl/137/2018 Of Manoj Kumar Gupta v. Principal Commissioner Of Income Tax, Agra And Another

-Court No. 7 Case :- INCOME TAX APPEAL No. - 137 of 2018 Appellant :- Manoj Kumar GuptaRespondent :- Principal Commissioner Of Income Tax, Agra And Another Counsel for Appellant :- Suyash AgarwalCounsel for Respondent :-Manu Ghildyal Hon'ble Biswanath Somadder,J.Hon'ble Ajay Bhanot,J. This appeal was admitted on the substantial question of law asframed in the memorandum of appeal, which reads as follows:- (i) "Whether the Appellate Tribunal was legally justified inupholding estimation of peak credit made by A.O. withoutrejecting books of accounts?" In the facts of the instant case, we notice that an assessment orderwas passed on 21th December, 2009, relevant portion whereof isreproduced hereinbelow along with its english translation :- “bl laca/k esa fu/kkZfjrh dks fnukad 25&11&2009 ,oa30&11&2009 dks dkj.k crkvks uksfVl tkjh fd;s x;sA buesa mDrjkf’k ds L=ksr crkus ds lkFk & lkFk fu/kkZfjrh ls ;g Hkh vis{kk dhx;h fd og ;g Hkh Li"V djs fd dj fu/kkZj.k dk;Zokgh ds nkSjkumlus vius tks cSysal 'khV nkf[ky dh gS mlesa vkyksP; o"kZdh ,UVªht ds vkykok dksVd egsUnzk cSad dk tks cSysal fn[kk;k x;kgS og cSysal fnukad 13&02&2009 dk cSysal gS fd fnukad31&03&2007 dkA bl laca/k esa fu/kkZfjrh us viuk tcko fnukad 08&12&2009 esacrk;k gS fd dEI;wVj esa ok;jl vkus ls dj fu/kkZj.k o"kZ 2007&08esa dksVd egsUnzk cSad ds [kkrs dh ,oa dqN vU; izfof"V;ka xyr gksx;h FkhA fu/kkZfjrh dk ;g dFku Lohdkj djus ;ksX; ugha gS fd ok;jlds dkj.k dksVd egsUnzk cSad okys [kkrs dh ,UVªh vkyksP; o"kZ esa ds[kkrksa esa vk x;haA tcfd okLrfodrk ;g gS fd pwafd fu/kkZfjrh igysdksbZ [kkrs j[krk gh ugha Fkk fdUrq dj fu/kkZj.k dk;Zokgh ds nkSjkuekaxs tkus ij mlus lHkh [kkrs tYnh&tYnh esa rS;kj fd;s gSa vkSj xyrh dj x;kA lHkh [kkrs mlus QSczhdsV fd;s gq, gSaA mlus tksdz; fodz; bu [kkrksa esa fn[kk;s gSa mudks og lR;kfir ugha djk ikjgk gSA mijksDr ls Li"V gS fd fu/kkZfjrh :i;ksa dks xSj dkuwuh :i lscSafdax pSuy dk nq:i;ksx djrs gq, VªkalQj djrk gSA vkSj ogckj&ckj volj fn;s tkus ij Hkh vius cSad [kkrksa esa tek jkf’k;ksa dsihd dzsfMV dks Li"V djus esa vleFkZ jgk gSA blfy, mlds }kjkbl dj fu/kkZj.k vkns’k esa Åij of.kZr cSad [kkrksa esa tek ihddzsfMV :i;s 11]43]443@& dks fu/kkZfjrh }kjk vius v?kksf"kr L=ksrksals tek fd;k x;k ekuk tkrk gS vkSj mldh vkyksP; o"kZ dh vk;ekuk tkrk gSA pwafd fu/kkZfjrh us bl dj fu/kkZj.k o"kZ esa :i;s2]17]635@& dh ldy vk; viuh vk;dj fooj.kh esa fn[kk;h gqbZgS blfy, 'ks"k jkf’k :i;s 9]25]808@& dks fu/kkZfjrh dh vk; esatksM+k tkrk gSA ,Mh’ku :i;s 9]25]808@& mijksDrkuqlkj fu/kkZfjrh dk dj fu/kkZj.k :i;s 11]43]443@&vk; ij fd;k tkrk gSA ekax i= ,oa pkyku tkjh djsa rFkk /kkjk234A, 234B,oa 234C ds rgr fu;ekuqlkj C;kt vyx ls pktZdjsaA lkFk gh vk;dj vf/kfu;e dh /kkjk 271 (1) (c)ds v/khuisukYVh uksfVl Hkh tkjh djsa D;ksafd fu/kkZfjrh us viuh vk; dksNqik;k gS vkSj mlds laca/k esa xyr fooj.k@lk{;ksa dks nkf[kyfd;k gSA fnukad% 21-12-2009 “In this regard, show cause notices were issued to assesseeon 25-11-2009 and 30-11-2009. It is expected from the assesseein these notices that, in addition to the disclosure of the sourceof aforesaid amount, he clarifies in his balance sheet filed duringtax assessment proceedings as to whether the balance shown inKotak Mahendra Bank apart from entries of the year in questionis balance on 13-2-2009 or on 31-03-2007. In this regard, assessee has disclosed in his reply dated 08-12-2009 that entry of the account in Kotak Mahindra Bank and some other entries were rendered wrong in tax assessment year2007-08 due to computer virus. This statement of the assessee is not admissible thatbecause of virus, the entry of the account of Kotak MahindraBank could not be posted in the accounts of the year in question.Whereas the reality is that since the assessee, earlier, did nothave any account at all but on having been demanded during thetax assessment proceedings, he prepared all the accounts just inhurry and committed mistake. He has fabricated all the accounts.He is not able to verify the sale-purchase which he has shown inthese accounts. In this regard, assessee has disclosed in his reply dated 08-12-2009 that entry of the account in Kotak Mahindra Bank and some other entries were rendered wrong in tax assessment year2007-08 due to computer virus. This statement of the assessee is not admissible thatbecause of virus, the entry of the account of Kotak MahindraBank could not be posted in the accounts of the year in question.Whereas the reality is that since the assessee, earlier, did nothave any account at all but on having been demanded during thetax assessment proceedings, he prepared all the accounts just inhurry and committed mistake. He has fabricated all the accounts.He is not able to verify the sale-purchase which he has shown inthese accounts. It is evident from the aforesaid that the assessee transfersthe rupees by misusing the banking channel, and even havingbeen given opportunity again and again, he has been unable tomake clear the peak credit of the amount deposited in his bank-account. Therefore, in this tax assessment order, the peak creditof Rupees 11,43,443/- deposited in the aforesaid bank accountsis considered as deposited by the assessee through hisundeclared sources and is considered as his income of the year inquestion. Since in this tax assessment year the assessee hasshown gross income of Rs- 2,17,635/- in his income-tax details,therefore the rest amount Rs.- 9,25,808/- is added to the incomeof the assessee. Addition Rupees- 9,25,808/- As per the aforesaid, the tax of the assessee is assessed onthe income of Rs.- 11,43,443/-. Demand letter and challan beissued and interest be separately charged as per the rule undersections 234A, 234B, 234C. As well, penalty notice also beissued under section 271(1) (c) of the Income Tax Act, because the assessee has concealed his income and submitted falsedetails/evidence in this regard. Date: 21.12.2009 Sd/- Illegible J.P. TewariIncome Tax Officer 4 (2)Agra” (English Translation by Court) Against this order of assessement, the assessee (being theappellant before us), preferred an appeal before the Commissioner ofIncome Tax Appeal - II raising certain grounds which have beenquoted in the order of the learned Appellate Tribunal dated 2nd May,2016. The learned Appellate Tribunal, while disposing of the appeal,has made the following observation in paragraph 6, which is relevantfor the purpose of answering the question of law sought to be raisedbefore us:- 6. "We may state that the assessee could not establish withany evidence that he merely received commission income andthe cash was received from the parties to whom or on whosebehalf cheques were purportedly issued. No worthwhileevidence has been led in this regard. It is settled law that anysum found credited has to be explained as to its nature andsource by the assessee which in our considered view, assesseehas failed to explain in the present case. Both the authoritieshave been fair enough to tax the peak credits. Ld. Counsel triedto rework the amount of peak credits but we are not impressedwith that working and the said working is self serving. We do notfind any infirmity in the orders passed below. Therefore, theaction of the lower authorities is confirmed and additionsustained by Ld. CIT(A) is also upheld by us". A plain reading of the above clearly reveals that in the factsituation of the case, the learned counsel had tried to rework theamount of peak credits, but the learned Appellate Tribunal was notimpressed with that working since it was self serving. As such, in thefacts and circumstances of the instant case, the learned AppellateTribunal cannot be held to have not been legally justified in upholdingestimation of peak credit made by the Assessing Officer withoutrejecting the books of accounts. As such, the order of the learned Appellate Tribunal does notwarrant any interference on the basis of the substantial question of lawas raised before us and the appeal stands disposed of accordingly.Order Date :- 13.1.2020 Pravin / Neeraj (Biswanath Somadder,J.) (Ajay Bhanot,J.)