2013 (11) TMI 960 - AT - Income Tax

Cash found during search rejection of books of accounts - Held that - The assessee has not produced books of accounts before AO and CIT(A) Following CIT v. Devi Prasad Vishwanath Prasad 1968 (8) TMI 5 - SUPREME Court - An assessment by estimating income would not preclude an addition on account of unexplained credit u/s.68 of the Act - There is no question of estimating income upon rejection of books of account as the same were never produced before the A.O. - The income being assessed without reference to, and in disregard of, the assessee s book results The issue was restored for fresh decision.

Summary

Issues:
- Maintainability of deletion of addition under section 68 of the Income Tax Act by the Commissioner of Income Tax (Appeals).

Analysis:
- The case involves an appeal by the Revenue against the Order by the Commissioner of Income Tax (Appeals) regarding the deletion of an addition under section 68 of the Income Tax Act by the ld. CIT(A).
- The assessee, a company, filed its return of income for the year at a loss and was uncooperative during the assessment proceedings.
- The Assessing Officer (A.O.) rejected the books of account due to non-compliance and discrepancies found, disallowing the claimed loss.
- Cash deposits were found in the bank account during the relevant year, and an addition was made in the absence of any explanation by the assessee.
- In appeal, the assessee claimed the cash deposits were sourced from the cash in hand available in its books of accounts.
- The ld. CIT(A) deleted the addition under section 68, stating that bank deposits do not form part of the assessee's books of account.
- The Tribunal noted that there was no factual examination of the assessee's case regarding the cash deposits before the first appellate authority.
- The Tribunal emphasized the importance of considering the assessee's books of accounts for explaining the nature and source of the cash deposits.
- It was clarified that bank deposits could be brought to tax under different sections, and the addition made by the A.O. should be regarded under those sections, not section 68.
- The Tribunal disagreed with the reliance on certain decisions and clarified that assessment by estimating income does not preclude an addition under section 68 for unexplained credits.
- The Tribunal decided to restore the matter back to the A.O. for factual examination and verification of the assessee's case, providing an opportunity for hearing.
- The Revenue's appeal was allowed for statistical purposes.

This detailed analysis of the judgment highlights the key issues, arguments presented, and the Tribunal's decision regarding the maintainability of the deletion of the addition under section 68 of the Income Tax Act.