JUDGMENT
1. Heard learned Counsel for the appellant.
2. This appeal is directed against the order of the Tribunal, Jodhpur Bench, Jodhpur, dt. 20th Jan., 2005. The appellant urges that two substantial questions of law arise in this case for consideration; one relating to deleting the additions made under Section 68 by the AO in the income of the assessee as unexplained cash credit and second relating to the applicability of invoking Section 44AF of the Act of 1961 for making the assessment at the fixed percentage of its turnover.
3. So far as the first question is concerned, the Tribunal found the fact that peak credit of the bank account cannot be treated as unexplained income of the assessee. However, while deleting the additions made as unexplained cash credit, the Tribunal restored the issue for all the four years to the file of the AO with the direction to give a fresh finding in the light of Tribunal’s observations. The peak credit of the bank account cannot be held to be undisclosed income of the assessee. Obviously, the banking transaction in regular course of business cannot be considered as cash credit so as to invoke Section 68 of the Act and so far as whether the finding that bank transaction represents undisclosed income of the assessee, it is open to be inquired as has rightly been done by the Tribunal, therefore, this does not give rise to any substantial question of law.
4. So far as the second issue is concerned, Section 44AF in terms is clear that it applies only to wholesale (sic-retail) trader who is (sic-not) involved in wholesale trade. The Tribunal has come to the conclusion that Revenue has failed to prove that assessee was rightly assessed when he has produced document before the assessing authority that he holds the licence for wholesale trade and, therefore, the presumption has not been rebutted by the Revenue. If it wanted to invoke Section 44AF, burden was on the Revenue to prove that notwithstanding holding license for wholesale trade only, the assessee was in fact doing retail business. Then essentially it remains a finding of fact whether assessee was a retail trader or wholesale trader, and does not give rise to question of law.
In view thereof, no substantial question of law does arise for consideration in this appeal.
The appeal fails and is hereby dismissed.