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2020 (1) TMI 1111 - AT - Income TaxUnexplained cash credit u/s 68 - income of the assessee is accepted u/s. 44AD - Scope of the term Books of account of the assessee vis-a-vis Bank Statement - HELD THAT - The provisions of section 68 cannot be applied. Asking the assessee to prove to the satisfaction of the Assessing Officer, the expenditure to the extent of 92% of gross receipts, would also defeat the purpose of presumptive taxation as provided under section 44AD of the Act or other such provision. Since the scheme of presumptive taxation has been formed in order to avoid the long drawn process of assessment in cases of small traders or in cases of those businesses where the incomes are almost of static quantum of all the businesses. Applying the propositions of law laid down in NAND LAL POPLI VERSUS THE D.C.I.T., CHANDIGARH 2016 (6) TMI 883 - ITAT CHANDIGARH to the facts of the case on hand, delete the addition in question. Even otherwise, in the present case, the Assessing Officer found certain deposits as unexplained in the bank account of the assessee with ICICI Bank, Dharwad branch at ₹ 9.16 lakh. In my opinion, when moneys are deposited in the bank account, the relationship that is constituted between the banker and the customer is one of the debtor and creditor and not of trustee and beneficiary. Applying this principle, the bank statements supplied by the bank to its constituent is only a copy of the constituent s account in the books maintained by the bank. It is not as if the bank statements are maintained by the bank as the agent of the constituent, nor can it be said that the pass book is maintained by the bank under the instructions of the constituent. Therefore, the bank statements supplied by the bank to the assessee in the present case could not be regarded as a book of the assessee, nor a book maintained by the assessee or under his instructions. As such, addition u/s 68 of the Act of the amount entered only in the bank statements was not justified -See BHAICHAND H. GANDHI 1982 (2) TMI 28 - BOMBAY HIGH COURT Thus the amount found credited in the bank account of the assessee cannot be made an addition u/s 68 of the Act - Decided in favour of assessee.
Issues Involved:
1. Legality of the order passed under section 143(3) read with section 147 of the Income Tax Act. 2. Addition of unexplained cash deposits under section 68 of the Income Tax Act. 3. Applicability of Section 44AD for presumptive taxation and its implications on maintaining books of accounts. Issue-wise Detailed Analysis: 1. Legality of the Order Passed Under Section 143(3) Read with Section 147: The assessee contended that the order passed by the Assessing Officer (AO) under section 143(3) read with section 147 was "bad in law and was liable to be struck down." However, this ground was dismissed as it did not emanate from the order of the CIT(A). 2. Addition of Unexplained Cash Deposits Under Section 68: The AO made additions of ?5,96,470 and ?36,26,000 as unexplained cash deposits in the assessee's bank accounts for the assessment years 2014-2015 and 2013-2014, respectively. The CIT(A) upheld these additions but allowed deductions for the opening balances in the bank accounts. The assessee argued that the deposits were from contract work and thus should not be considered unexplained. The AO, however, did not find any details of contract receipts in Form No.26AS and concluded that the deposits were made to cover shortfalls for share trading payments. The Tribunal held that since the assessee opted for presumptive taxation under section 44AD, which exempts the maintenance of books of accounts, the AO's additions under section 68 could not be sustained. The Tribunal emphasized that the AO's conclusions were based on "suspicion" and "surmises and conjectures," which cannot replace proof. The Tribunal cited case law to support its view that once income is accepted under section 44AD, further additions for discrepancies in books of accounts are not permissible. 3. Applicability of Section 44AD for Presumptive Taxation: The assessee's income was offered under section 44AD, which allows small contractors and traders to declare income at 8% of gross receipts without maintaining detailed books of accounts. The Tribunal noted that section 44AD was introduced to simplify tax compliance for small traders. The Tribunal referenced the Haryana High Court's ruling in CIT vs. Surinder Pal Anand, which held that under section 44AD, the assessee is not obligated to explain individual cash deposits unless they have no nexus with gross receipts. The Chandigarh Bench's decision in Nand Lal Popli vs. DCIT further supported this view, stating that section 44AD deems 8% of gross receipts as income, and the remaining 92% as deemed expenditure, thus eliminating the need for detailed accounts. The Tribunal concluded that the AO could not make additions under section 68 for cash deposits in the bank statements, as these statements are not considered books of accounts maintained by the assessee. This view was fortified by judgments from the Bombay High Court and the Allahabad High Court, which held that bank statements cannot be used for additions under section 68. Conclusion: The Tribunal allowed the appeals partly, deleting the additions made under section 68 for unexplained cash deposits. It emphasized that the AO must bring concrete evidence to disprove the assessee's claim of being engaged in contract work and that mere suspicion is insufficient for making additions. The Tribunal upheld the applicability of section 44AD, reinforcing that it simplifies tax compliance for small traders and exempts them from maintaining detailed books of accounts.
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