1. Introduction

During the course of assessment of income, the AO may discover cash receipts in the books, or cash deposits in the bank account of the assessee, which are apparently not satisfactorily explained and he may be tempted to tax u/s. 68, total of such receipts in the accounting year, whereas the assessee may try to explain that such deposits, or part of the deposits, are out of withdrawals made from the same cash book or bank account and then request the AO to adjust deposits against withdrawals. If this request is accepted, then highest of unexplained deposits is treated as an undisclosed income u/s. 68. This is called determination of peak. Similarly, unexplained cash credits may be sought to be explained through other undisclosed income/profit separately taxed, then set off of unexplained cash credits against undisclosed income/profit is claimed by the assessee. Such adjustment is called telescoping. The underlying concept is that assessee should not be taxed both for inflow and outflow of undisclosed money, if they can be related to each other. The concept of peak theory and telescoping and their application in computation of income is explained hereunder in brief with the help of case laws.

1. Concept of peak theory

The principle of peak credit proceeds on the fundamental premise that the money deposited and/or withdrawn from the assessee’s bank account belongs to the assessee, or in respect of which ownership vests in the assessee.In other words, ownership of the funds is the sine qua non for invoking the principle of peak credit. [refer- Bhagdev Roy v. Asstt. CIT (IT Appeal No. 832 (Kol.) of 2013, dated 31-3-2017)].

To avoid duplicate additions – Apply principle of sources of income vs. application in assets

In the case of search, there are numerous documents/ evidences found by the Department. Some of the documents/ papers may suggest undisclosed income earned by the assessee which may be taxed under section 28 or under section 68 or some other provision of the Act. At the same time, there may be certain evidences/ documents which may suggest investment in unexplained assets or expenses which may be added by the assessing officer in the hands of the assessee under sections 69, 69A, 69C or some other provision of the Act. For example: there may be documents found suggesting sales transaction not recorded in the books resulting in undisclosed income and there may be unaccounted cash found from the possession of the person searched. Assessing officer may be tempted to make addition of both the transactions separately for want of proper explanation co-relating both the kind of evidences from the assessee.

An exercise should be made by the assessee to segregate documents/ evidences suggesting undisclosed income and the documents/evi-dences suggesting unexplained expenditure or investment in assets. By making a proper fund flow chart, evidences of both the nature viz income and investment/ expenditure, may be explained by single source of undisclosed income. In the above example, assessee can explain that cash found from his possession is the cash which has been earned and accumulated out of unrecorded sales transactions. Similarly, investment made in jewellery, stock, immovable properties etc. or expenses incurred on functions, foreign travelling, household expenses etc. may be correlated with the documents found during search suggesting generation of undisclosed income. In this manner,

One can make out a case so as to avoid duplicate additions:

• Whether undisclosed income declared in the block return can be used for explaining other proposed addition or undisclosed investment:

Undisclosed income declared by the assessee in the return of block period on the basis of seized material is available to block pe for the purpose of explaining other additions/investments and addition on account of undisclosed purchses being less than the said amount no separate addition is to be made.

Eagle Seeds & Biotech Lid. v. Assi. CIT (2006) 100 IT 301 (Indore – Trib.)

• No separate addition on account of CP after surrender in stock

Where the assessee surrendered an amount of 7 3,70,000 being difference in valuation of stock, no separate addition of 7 49,105 was called for on account of low G.P. because the lighter amount merged with the amount surrendered. Ram Lubhaya v. Asstt. CIT [1995] 52 TTJ (Delhi) 21

• Assessing Officer not justified in adding cash credit as well as the assets acquired out of the money borrowed by the assessee and surrendered as income.

In this case the Tribunal found that during the course of search some pieces of paper were found containing the names and amounts. Apprehending that the creditors may not come forward to confirm the loans, the amounts were surrendered. The revenue accepted the surrender and also added the cost of assets acquired out of investment of such amounts.

Tribunal made interesting observations and said that the revenue should not act like Sherlock Holmes. It further observed that the concept of ‘Head I win and tail you lose’ is alien to the principles of justice. Kantilal & Bros. v. Asstt. CIT [1995] 52 ITD 412 (Pune – Trib.).

It has been held in the case of Vivek Kumar Kathotia v. Dy. CIT [2013]32 taxmann.com 331/142 ITD 394 (Kol. – Trib.) in the context of section 153A that since total undisclosed income arising from the seized documents have been already offered for taxation by assessee and cash found in the course of search stood explained from entries recorded in the seized documents, no separate addition can be made in respect of cash found.

2.1 Salient features of theory of peak credit :-

3. Cumulative peak theory

Where amount of funds is intermingled, unsecured loans are claimed to be received from several parties and all these loans are treated as non-genuine and credits appearing in different accounts are held to be assessee’s own money, then benefit of peak would be available by arranging all the credits and debits in the chronological order. [refer- Saral Plastics (P.) Ltd. v. ITO [IT Appeal Nos. 3118 & 3068 (Ahd.) of 2013, dated 25-5-2017]; S.R. Enterprise v. ITO [2002] 77 TTJ 69 (Ahd.)] in this regard, the observations of ITAT Kolkata in the case of ITO v. Uday Shankar Mahawar [IT Appeal No.1903 (Kol.) of 2009, dated 16-7-2010] are relevant-

“4.7 I have carefully considered the various legal pronouncements relied upon by the appellant. They also support the contention of the appellant that only the combined peak credit of the undisclosed bank accounts should be considered as undisclosed income.”

4. Determination of peak
5. All the cash deposits and withdrawals, owned up by the assessee as undisclosed, are placed in chronological order.
6. The balances are drawn against each deposit and withdrawal.
7. The deposit in the first entry becomes closing balance against that first entry.
8. This closing balance of first entry becomes opening balance for second entry.
9. Deposit or withdrawal of the second entry is adjusted to the opening balance.
10. Then closing balance against the second entry is drawn.
11. This closing balance of second entry becomes opening balance of the third entry and so on.
12. Highest closing balance against any entry in the accounting period, arising after such adjustment of deposit/withdrawal becomes the peak in the accounting period.

4.1. Principle of peak balance

There may be evidences found during search suggesting in flow and out flow of funds on different occasions. In such a situation, exercise should be done to workout peak balance by preparing date wise cash flow chart. Assessee can make out his case that it is the same amount which is rolling over and only the addition of the peak balance can be sustained. In some of the following cases, the principle of peak balance has been accepted and approved by the Courts:-

Tribunal deleting addition by way of undisclosed income on the ground that loans advanced by assessee were more than covered by withdrawals in the accounts of the depositors, was justified. No referable question of law arose. Addl. CIT vs. Chetan Dass [1975] 99 ITR 46 (Delhi).

Cash credit found in ten different names in assessee’s books.
Tribunal found that these cash credits really represented income from undisclosed sources taxed in earlier years and did not represent income earned in relevant accounting year.
Addition, therefore, deleted. Addl. CIT v. Dharamdas Agarwal [1983] 15 Taxman 485 (MP).

It is well settled that where there is an unexplained credit, it is open to the ITO to hold that it is the income of the assessee and no further burden lies on the ITO to show that income is from any particular source. It is for the assessee to prove that, even if the cash credit represents income, it is the income from a source which has already been taxed. Addl. CIT v. Mohan Engineering Co. [1984] 17 Taxman 6 (Pat.)

Assessee having no other sources of income Tribunal was justified in holding that the additions in respect of extra profit in each of the years under appeal would be nil in the years in which the addition on the basis of the difference in the peak unaccounted money used from year to year exceeds the extra profit and that where the extra profit addition is more than the addition on account of the difference in peak credits, the bigger of the two would remain as the addition. CIT v. Neemar Ram Badlu Ram [1980] 122 ITR 68 (AIl.)

In the case of Sunil Guptav. Dy. CIT[2015]174TTJ 1 (Chd.-Trib.) (UO), it has been held that Revenue authorities having found no evidence or material during the course of search indicating that the assessee has made any undisclosed investment outside his known sources in any forward trading business and the Revenue having not challenged the findings of the CIT(A) that the assessee was not at all indulging in forward trading as claimed by him, the theory of peak credit is not applicable to the facts of the case and, therefore, the impugned additions made by the AO on account of peak undisclosed investment are wholly unjustified.

Working of Peak Principles regarding

So far as the working of the peak is concerned, it is again for the assessee to prove that the withdrawals were not utilized for other expenses or investments and were available for making subsequent deposits in the said bank accounts. The benefit of peak can be given only when the recycling of funds is proved, as contended by the Departmental Representative. There is merit in the contention of the counsel for the assessee that the peak of the earlier year should be reduced from the peak of the subsequent year. Surendra M. Khandhar v. Assti. CIT [2001]76 ITD 121 (Mum. – Trib.)

Adjustment of Peak Cash Deficit

The assessee’s contention that the amount of Rs. 4 Lakhs and odd already considered in earlier assessments should be set off against the deficit in cash balance as on 31-3-1992 was rejected on the ground that whereas the deficit was worked out as on 1-8-1991, the excess was on 31-3-1992 and that the same could not be available for set-off. Essem Intra – Port Services (P) Ltd v. Asstt. CIT [2000] 72 ITD 228 (Hyd. – Trib.)

5. Concept of telescoping

Where there is an addition on account of suppression of profit and there is also a bogus cash credit in the books then assessee can seek adjustment of suppression of profit against cash credit on the ground that suppressed profit during the year has been brought in as cash credit. Such adjustment is called telescoping. [refer- CIT v. K. S. M. Guruswamy Nadar & Sons [1984] 149 ITR 127/19 Taxman 533 (Mad.)]. In other words, the concept of two additions reduced to one, where it is justified, is known as telescoping. Similarly, where it is claimed that sale outside the books has been ploughed back as cash credit, then only one addition is to be made by telescoping sales outside the books against cash credit. [refer- CIT v. Singhal Industrial Corpn. [2008] 303 ITR 225/[2006] 150 Taxman 466 (All.)].Wherever assessee is successful in getting the benefit of telescoping, his income may be reduced but case of the Revenue for levying penalty is strengthened. Penalty in such cases is levied by the AO by invoking Explanation 2 to section 271(1)(c). Following are salient features of telescoping-

6. Adjustments to the peak credit

After determination of peak credit, the AO is required to provide following adjustments (refer- Chetan Gupta v. Asstt. CIT [2013] 34 taxmann.com 306/144 ITD 344 (Delhi – Trib.);

6.1 Opening balances –

Where in a bank account assessee has opening balance on the first day of accounting period (as brought forward from last day of previous accounting period), such opening balance has to be reduced from the peak credit for computing undisclosed income of the current year.

6.2 Past capital –

Whose source is proved (in respect of past undisclosed capital action u/s. 148 is attracted, provided limitation for such action is available).

6.3 Past savings –

Provided there is satisfactory evidence/explanation of such past savings.

6.4 Recoveries from debtors–

Provided assessee has evidence of lending money in the past and interest income is shown or offered for taxation.

6.5 Gifts –

Adjustment of gifts will depend upon evidence such as gift deed, confirmation, affidavits, or personal deposition, proving that the donor had adequate money for giving gift and further that such gift is from relatives as defined in the Explanation to Section 56(2).

6.6 Other transfers –

It is possible that assessee might have received cash as transfers from the known persons who are prepared to admit to have given cash to the assessee with a purpose which is acceptable, such transfers are needed to be reduced from the peak credit.

6.7 Contra-Entries :

The effect of contra-entries must be given for calculating peak credit.

6.8 Arithmetical mistakes –

If the assessee points out arithmetical mistakes in calculating peak credit, the AO should consider it and give it effect.

6.9 Correct nature of entries –

Only those entries of deposits or withdrawals should be considered for calculating peak which are owned up by the assessee and are not apparently relatable to/owned by other parties or are relatable to admitted business dealings. The tax treatment of such other entries will be different and will not be part of calculation of peak.

6.10 Capital receipts –

In deposits there could be entries which are of the nature of capital receipts as received by the assessee on sale/disposal of a capital asset. The AO has to undertake a different tax treatment of such receipts like calculation of capital gains or adjustment in written down value in a block, but they will not be part of calculation of peak.

6.11 Rolling profits –

Where part of the purchases have been made by the assessee from its rolling profits from unaccounted sales, then some credit of utilization of that profit should be given, provided such profits from unaccounted sales is taxed separately.

6.12 Cash available in the books –

If cash book shows sufficient cash balance which assessee may use in making deposits in bank account whose other deposits and withdrawals are undisclosed then to the extent explanation of the assessee appears reasonable and satisfactory the credit should be given in the peak undisclosed credit. [refer- Hytaisun Magnetics Ltd. v. Jt. CIT [2018] 95 taxmann.com 248/258 Taxman 264 (Guj.)].

7. Circumstances where peak credit theory would be applicable

8. Circumstances where peak theory will not be applicable

9. Common features between telescoping and peak

Some authors opine that peak is a kind of telescoping. It is because at the root of both concepts, the principle of adjustment of inflow against outflow, or explanation of outflow from inflow is involved. In telescoping, generation of income, whether in the current year or in the earlier year, is considered as inflow and investment in assets, or cash credits in the books are considered as outflows.

In peak, money from earlier withdrawal is considered as inflow and cash credit is considered as outflow and, hence, both are sought to be adjusted or outflow is sought to be explained from the inflow.

10. Use of Affidavits & Confirmations

Assessee should make extensive use of placing affidavits/ confirmations of self & from third parties in appropriate situations so as to make assertion regarding his point. In the absence of direct evidence available, such evidence becomes strong evidence in favour of the assessee. Affidavit is a significant evidence to prove or disprove a fact which cannot be proved or disproved by documentary evidence.

Courts give lot of weightage to an affidavit filed unless the same is found incorrect by the assessing officer in cross examination. Following decisions in this regard are worth noting:

• The Tribunal had not indicated upon what material it held that Rs. 30,000 should be treated as secret profit or profits from undisclosed sources and the order passed by it was bad. The appellants had furnished a reasonable explanation for the possession of the high denomination notes of the face value of Rs. 61,000 and affidavits before AAC to the effect that a sum of Rs. 43,000 were paid in 1000 rupee notes during the relevant period, there was no justification for having accepted it in pat and discarded it in relation to a sum of 730,000. Mehta Park & Co. v. CIT [1956] 30 ITR 181 (SC).

• Mere filing of confirmatory letters or particulars does n discharge the onus that lies on thers or par under section 68;

Tribunal was justified in remitting the matter for fresh enquiry as the assessee merely filed an affidavit of the alleged creditor confirming that she had deposited the amount with the assessee and the same was repaid to her and giving other details, but assessee failed to produce her before the assessing authority. Rajshree Synthetics (P.) Ltd. v. CIT [2003] 131 Taxman 391 (Raj.).

11. Conclusion

There is a distinction between telescoping and peak. Telescoping is adjustment of one income against other, so that same income is not taxed twice. In peak, the withdrawal of cash, if not utilized elsewhere, is considered as available for making deposits. The highest unexplained cash deposit is considered as peak. The determination of peak reduces the taxable income. However, where withdrawals are through cheques and it is not proved that such withdrawals have come back to the pocket of the assessee, then benefit of those withdrawals will not be available to explain the deposits. The crux in applying peak credit theory is a reasonable certainty that withdrawals have not gone elsewhere, either as investment in some assets, or meeting some expenditure, or to the pocket of other person. Even in cases where deposits and withdrawals are in several accounts (in the name of different persons), and assessee owns all these accounts as his own and transactions therein as non-genuine and there is no evidence that outflow has gone to any other person or any other purpose, then cumulative account of all the accounts put together can be drawn and peak thereunder be determined.