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TMI Blog2016 (1) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... of the cash was withdrawn and re-deposited within very short period. Therefore, in our opinion, the alleged surplus cash accumulated in the cash book out of the withdrawals from the bank is to be considered as source of re-deposit. - Decided in favour of assessee in part. - ITA No.2331/Ahd/2011 - - - Dated:- 3-11-2015 - SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER For The Assessee : Shri Rases Shah For The Revenue : Shri D.N. Mishra ORDER PER RAJPAL YADAV, JUDICIAL MEMBER: The assessee is in appeal before us against the order of ld.CIT(A)- II, Surat dated 19.7.2011 passed for the Asstt.Year 2008-09. 2. Though the assessee has taken five grounds of appeal, but her grievance revolves around one issue whereby she has pleaded that the ld.CIT(A) has erred in confirming the addition of ₹ 53,88,401/- which was added by the AO with the aid of section 68 of the Income Tax Act. 3. Brief facts of the case are that the assessee is an individual. She derives income from house property and commission. She has filed her return of income on 20.10.2008 declaring taxable income at ₹ 3,97,181/-. The case of the assessee was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accounted deposits made in the bank account. 4. Appeal to the CIT(A) did not bring any relief to the assessee. The assessee has filed a paper book running into 66 pages. She has also filed statement of facts along with appeal running into 11 pages wherein she has explained her case. The ld.counsel for the assessee took us through the statement of facts as well as written submissions filed before the Revenue authorities. 5. On the other hand, the ld.DR relied upon the order of the AO. 6. We have duly considered rival contentions and gone through the record carefully. Section 68 of the Income Tax provides that where any sum is found credit in the books of the assessee maintained in previous year, and the assessee offers no explanation about the nature and source thereof, or the explanation offered by him is not, in the opinion of the AO, satisfactory, the sum so credited may be charged to the income-tax, as the income of the assessee of that previous year. In order to discharge the onus put forth by this section i.e. in order to explain the nature and source of deposits, assessee has to prove identity of the depositors, genuineness of the transactions and creditworthiness of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Assessing] Officer under this section, and the partition took place during the previous year,- (a) the total income of the joint family in respect of the period up to the date of partition shall be assessed as if no partition had taken place; and (b) each member or group of members4 shall, in addition to any tax for which he or it may be separately liable and notwithstanding anything contained in clause (2) of section 10, be jointly and severally liable for the tax on the income so assessed. (5) Where a finding of total or partial partition has been recorded by the [Assessing] Officer under this section, and the partition took place after the expiry of the previous year, the total income of the previous year of the joint family shall be assessed as if no partition had taken place; and the provisions of clause (b) of subsection (4) shall, so far as may be, apply to the case. (6) Notwithstanding anything contained in this section, if the [Assessing] Officer finds after completion of the assessment of a Hindu undivided family that the family has already effected a partition, whether total or partial, the [Assessing] Officer shall proceed to recover the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all not be deemed to be a partition; or (ii) where the property does not admit of a physical division, then such division as the property admits of, but a mere severance of status shall not be deemed to be a partition; (b) partial partition means a partition which is partial as regards the persons constituting the Hindu undivided family, or the properties belonging to the Hindu undivided family, or both. 7. A perusal of this section would indicate that a Hindu Family assessed as undivided shall be deemed for this purpose of this Act to continue to be Hindu Undivided Family, except a finding of partition has been given under this section in respect of that HUF. Meaning thereby, during the course of assessment of HUF or along return of HUF, the fact of partition ought to have been provided to the notice of the department, and finding could have been recorded indicating the partition. The assessee failed to provide any such fact before the AO. She failed to produce copies of balance sheet demonstrating the capital balance or any other asset with the HUF which has been devolved upon the members of the HUF on its alleged partition. To our mind it is a faint attempt a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has stated that this amount is received from her son and daughter. She filed details of their bank account and other evidences. A perusal of the bank statement of the assessee would reveal that a sum of ₹ 3,00,000/- deposited on 15.5.2007. It has come from saving bank account no.2982. The assessee has contended that ₹ 3,00,000/- was received from her son Rohan and it has transferred from his account. Similarly, ₹ 6,25,000/- was stated to be received from daughter. In the bank account of the assessee on 23.11.2007, 9.11.2007 and 4.12.2007 three entries by clearance of cheque from an account no.1535 and 1536 are available. All these three accounts, a sum of ₹ 1,00,000/-, ₹ 4,00,000/- and ₹ 1,25,000/- stands credited in the bank account of the assessee. Thus, the assessee has produced prima facie evidence about the source of amount to the extent of ₹ 9,25,000/-. The AO, except disbelieving the version of the assessee, failed to bring any evidence contrary to the one submitted by the assessee. Thus, the addition to this extent would be deleted. The assessee has explained the sources. 11. The next evidence submitted by the assessee is of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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