Shri Narendra Choudhary v. Income Tax Officer, Wardkishangarh, District Ajmer

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANBENCH AT JAIPUR. D.B. Income Tax Appeal No.190/2016 Shri Narendra Choudhary vs. Income Tax Officer, WardKishangarh, District Ajmer DATE OF ORDER ::: 2[nd] November, 2016HON'BLE MR. JUSTICE K.S. JHAVERIHON'BLE MR. JUSTICE MAHENDRA MAHESHWARI Mr. Siddharth Ranka, for the appellant. BY THE COURT:- (Per Hon'ble Jhaveri, J.) 1.By way of this appeal, the assessee has challenged thejudgment and order of the Tribunal whereby the Tribunal hasconfirmed the order of the CIT(A) which has partly allowedthe appeal of the assessee and has dismissed the appeal ofthe department. 2.Counsel for the appellant Mr. Ranka has contended thattwo questions which were put for our consideration are asunder:- “1. Whether on the facts and material availableon record and in law whether any benefit can begranted to the assessee appellant out of peakcash credit worked out at Rs.10,49,760/- u/s 69of the Act? 2. Whether on the facts and material available onrecord and in law the ld. ITAT was correct in lawin not granting the benefit towards opening cash-in-hand, collection from old outstanding debtorsand amount received on account of cancellationof agreement to purchase plot of land towardsthe addition sustained by it on account of peakcash credit worked out at Rs.10,49,760/- u/s 69of the Act?” 3.He contended that the CIT(A) while considering theissue involved has observed as under:- “As per above statement the peak of cashdeposited in the above two bank accounts isRs.10,49,760 as on record 10.10.2008. Further, as regarding the source of abovedeposits narrated in the chart above, assessee'sclaim that assessee has received back theamount of Rs.6,00,000/- on 01.05.2008 whichwas earlier given to Shri Gyan Singh for thepurchase of land for Rs.50,00,000/- at Malaksaras per oral agreement, it may be mentioned thatthe AO in his remand report dated 18.09.2013has mentioned that statements of Shri GyanSingh and assessee was recorded. However, noevidence in the form of any agreement for thesaid purchase of land, payment of advance,receipt for returning the money or anycorrespondence with the government authoritiesregarding the encroachment on the land andvacation thereof as claimed, cancellation on thedeal etc. have been submitted. In view of abovefacts, the claim made in the statement by theassessee is not supported by any evidence to thiseffect. As regarding the opening liquid balance on30.3.2008 as per final accounts produced ofRs.1,08,161, receipt from sundry debtors ofRs.3,00,000/-, it may be mentioned thatassessee had filed the return as 'No AccountsCase' even in A.Y. 2007-08 and 2008-09 also. Ithas not been shown that in such return therewere any such balances available for bankdeposits made during the current year. As regarding the assessee's claim for currentyears income being deposited in the above bankaccounts, no correlation has been establishedbetween the deposits in above two accounts andearning of the assessee over the year. The sameis treated to have been utilized for household andpersonal expenses etc. In view of the abovecircumstances, above contention of the appellantis without substance. In view of above discussion, the peak credit ofthe cash deposits in the above two saving bankaccounts in Indian Overseas Bank amounting toRs.10,49,760/- is confirmed and balance amountadded u/s 69A is deleted.” 3 4.He further contended that the major question whichhas been put by the assessee is regarding the genuinenessof Gyan Singh statement recorded during cross-examinationhas not been appreciated by the tribunal and CIT(A) inparagraph no.2.2 observed as under:- In view of above discussion, the peak credit ofthe cash deposits in the above two saving bankaccounts in Indian Overseas Bank amounting toRs.10,49,760/- is confirmed and balance amountadded u/s 69A is deleted.” 3 4.He further contended that the major question whichhas been put by the assessee is regarding the genuinenessof Gyan Singh statement recorded during cross-examinationhas not been appreciated by the tribunal and CIT(A) inparagraph no.2.2 observed as under:- “We have heard the rival contentions and pursuedthe material on record. Firstly, addition regardingdeposit of cheque of Rs.7,00,000/- has rightlybeen deleted by the ld CIT(A). Secondly, theexplanation of the assessee regarding the sourcesof deposits has been duly considered though notaccepted by the ld CIT(A) and the peak theory hasrightly been invoked by the ld CIT(A) in the factsof the present case. We do not see any infirmity inthe order of the ld CIT(A) and we hereby affirmthe above findings of the ld CIT(A) confirming theaddition of Rs.10,49,760 in the hands of theappellant.” 5.He contended that no independent reasons areadopted by the tribunal and it has simply accepted andconfirmed the finding of the CIT(A). He also contended thatregarding cross-examination of the witnesses orgenuineness of the affidavit, there is no finding that theaffidavit or statement recorded of the persons are notacceptable. In that view of the matter, he contended thatcash transaction of Rs.6,00,000/- and statement recorded inpage no.46 where it has been held that in respect ofRs.6,00,000/- (out of total additions linked to cash depositsin S.B. A/cs of Rs.2815190/-) returned by Sh. Gyan Singh.The submissions on 12/08/2013, alongwith affidavits of Sh.Gyan Singh Puniya and Sh. Pawan Kumar Puniya, the statements of appellant and Sh. Gyan Singh recorded u/s131 have not been duly correlated and considered by ld.A.O. Rs.6,00,000/- advance to Sh. Gyan Singh and Sh.Pawan Kumar (26/02/2008) were not considered by thetribunal. 6.We have heard the counsel for the appellant. 7.Taking into the consideration the cash transaction ofRs. 6,00,000/- was not reflected in the balance sheet as onrecord of relevant year. 8.Further finding of the CIT(A) as referred above in pageno. 74 which has been confirmed by the tribunal. In view ofthe concurrent finding, we are in complete agreement withthe view taken by the tribunal. 9.Thus, no substantial question of law arises and appealis devoid of merits and is hereby dismissed. (Mahendra Maheshwari), J. (K.S. Jhaveri), J. Brijesh