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TMI Blog2017 (3) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... o mistake, the AO has made the addition u/s. 68 with the clear mind and after satisfaction. - Decided in favour of assessee - ITA No. 2987/Del/2015 - - - Dated:- 28-2-2017 - SHRI H.S. SIDHU, JUDICIAL MEMBER ASSESSEE BY : SH. SALIL AGGARWAL, ADV. SH. S.K. MONGA, ADV DEPARTMENT BY : SH. RAKESH KUMAR, SR. DR. ORDER The Assessee has filed the Appeal against the impugned Order dated 27.3.2015 of Ld. CIT(A), Dehradun pertaining to assessment year 2004-05. The assessee has raised as many as 06 grounds, but the Ld. Counsel of the assessee has only pressed the following 02 grounds which read as under:- That the provisions of Sec. 68 under which the amount has been added by the AO are not applicable. Moreover, the ld. CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hradun on 26.6.2003which were transferred to his Bank Ale No. 2405 with Oriental Bank of Commerce, Jwalapur, Haridwar. Subsequent enquiries revealed that the TPOs were issued in favour of the assessee by making application and issuing cheque of ₹ 58,25,000/- dated 25.6.2003 in favour of OBC, Clock Tower, Dehradun by Urban Cooperative Bank Ltd., 10 Gandhi Road, Dehradun. The Branch Manager, Urban Cooperative Bank was asked to explain the source of receiving the sum and crediting to the Bank and then transferring the sum to the credit of the assessee's account no. 2405. In compliance, the Branch Manger submitted that the transaction had taken place on the request of the account holder from the account of Shri Pyare Lal and Shri Prad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him through cheque. In view of these facts, the AO had concluded that the version of the assessee that his bank account no. 2405 was credited by the purchasers was totally baseless and untenable. He also held that the assessee had admitted withdrawing before the District Session Judge, Haridwar. The AO obtained a certified copy of the same. In his statement on oath Sh. Khanna had stated that both the TPOs were carried by Shri Shamsher Singh Gill himself for deposit and ₹ 30 lakhs were withdrawn by him through cheque. In view of these facts, the A.O. had concluded that the version of the assessee that his Bank A/c No. 2405 was credited by the purchasers was totally baseless and untenable. He also held that the assessee had admitted w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal or cause of action. While pressing ground no. 4, it was submitted by the Ld. Counsel of the assessee that the provisions of Section 292B of the I.T. Act, 1961 are also not applicable because there is no mistake, the AO has made the addition u/s. 68 with the clear mind and after satisfaction. In view of the above, he requested that the addition in dispute may be deleted. 5. On the contrary, Ld. Sr. DR relied upon the orders of the authorities below. 6. I have heard both the parties and perused the records, especially the impugned order passed by the Ld.CIT(A) and the decision referred by the Ld. Counsel of the assessee of the ITAT, SMC Bench, Mumbai dated 12.8.2016 passed in ITA Nos. 4223 4224 (Mum) of 2015 (Ayrs. 2011- 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... speaking, in the present case, assessee is not maintaining any books - of account and section 68 of the Act has been invoked by the Assessing Officer only on the basis of the bank Pass Book. The invoking of section 68 of the Act has to fail because as per the judgment of the Hon'ble Bombay High Court in the case of Shri Bhaichand N Gandhi (supra), the bank Pass Book or bank statement cannot be construed to be a book maintained by-the assessee for any previous year as understood for the purposes of section 68 of the Act. Therefore, on this account itself, the impugned addition deserves to be deleted. I hold so. 9.1 Even otherwise, I find that the explanation rendered by the assessee has been merely disbelieved without establishing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the ITAT, Mumbai SMC Bench, passed in ITA no. 4223 4224/Mum/2015 (AY 2011-12) in the case of Smt. Manasi Mahendra Pitkar vs. ITO, Thane, the addition in dispute is deleted and accordingly, the ground no. 3 appeal of the assessee is allowed. Even otherwise, the Ld. CIT(A) vide para no. 14 at page no. 10 of the impugned order has stated that the assessee is right when he says that the provisions of section 68 cannot be applied to amount credited in the bank account. I further note from the same para that Ld. CIT(A) was wrong in observing that the provisions of section 69 would quite clearly apply to amounts deposited into the assessee s bank account, which was not under the grounds of appeal or cause of action. I further find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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