K. P. Abdul Majeed. v. ACIT (2019) 267 taxman 151 (Ker.)(HC)

S. 68 : Cash credits-Peak credit theory–Hawala transactions-Money laundering can be for oneself-Refusal to divulge details of persons from whom money was distributed–Entire amount to be added as income on basis of peak credit theory-Estimation of commission again at 2% as alleged commission shall be only on the amounts deposited, other than the incremental peak credit adopted for each year-Appeal is dismissed. [S. 69, 69A]

Assessee had been carrying on a lodge it opened various bank accounts in the name of partnership firms constituted of the relatives and employees of the assessee. Substantial amounts came into such Bank accounts in all the subject assessment years and there were withdrawals made immediately on the deposits having come to the account.  The AO added the peak credit in the accounts recovered were assessed under S. 68, 69 and 69A as unexplained cash credits and investments. Considering the fact that the entire transactions were hawala transactions, commission at the rate 2 per cent was also assessed as income of the assessee.  The assessee contended that very allegation of hawala transaction would indicate that money which came into the accounts did not belong to assessee; but to those persons to whom it was distributed and, thus, there could not have been any addition made on the basis of peak credit. Tribunal up held the addition. On appeal High Court held that money laundering can also be for oneself and there can be no presumption that it is for others, especially when the assessee refuses to divulge the details of the persons to whom money was distributed. When the assessee contested the proceedings with a stout denial and nothing more; various accounts being found to have been opened and operated on behalf of the assessee, the entire deposits therein had to be treated as assessee’s income. The AO himself adopted the peak credit in each year, which again was modified to incremental peak credit. Court held that the  assessee cannot dissociate himself from the various accounts in view of the overwhelming evidence unearthed by the department connecting him to the various accounts maintained in the Bank and the depositions of the various witnesses summoned. Despite the fact that the Enforcement Directorate had found the assessee to be a hawala operator or money launderer, the assessment under S.  68, 69 and 69A of the incremental peak credit of the respective years, in the subject assessment years, taken from all the accounts to be perfectly in order. There can be a reasonable assumption that the incremental credit would be the income of the assessee, the remittances being found in favour of the assessee and the disbursal not having been proved or even admitted. As regards commission when incremental peak credits are taken as the income of the assessee for a particular year the said quantum shall not be treated for the purpose of 2 per cent commission and no addition shall be made on that count. Hence the commission shall be only on the amounts deposited, other than the incremental peak credit adopted for each year.  (AY. 2002-03 to 2005-06)