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TMI Blog2018 (3) TMI 1669X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the case properly. 4. The Learned Income Tax Off icer has to go through the facts while adding the addition cash credit of Rs. 6,84,000/-(and C.I.T.(Appeal) erred in conforming the same. 5. That the Appellant prays that order of the C.I.T (Appeal) VII Mumbai confirming the additions and the order of I.T.O. 17(1)(1) Mumbai to be cancelled in TOTO on the above grounds. 6. The Income Tax Officer Ward No.17(1) 1 and the Ld. C.I.T(Appeal)-17 Mumbai erred in not going through the facts and circumstances and conf irming the addition of Rs. 6,86,010/-being unexplained cash credit under Sec.68 of Rs. 6,84,000/- and interest of Rs. 2,010/-. 7. The Ld. Income Tax Officer Ward No.17(1)(1) and the Ld. C.I.T(Appeal) 17 and not taken into consideration of Agriculture and the Deaf and Dumb physical disability as a result of Appellant dependent upon the family and relatives for a livelihood. 8. The Ld. Income Tax Officer and the Ld. C.I.T (Appeal) 17 has erred in not accepting that the credit entry was in the earlier year and therefore the same should be deleted in TOTO. 9. Reliance is placed on various Tribunals, High Courts and Supreme Court decision wherein it has been decide d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds the purchase of the aforesaid property submitted that he had initially out of his agriculture income made a cash payment of Rs. 4,00,000/-. The assessee in order to substantiate his aforesaid claim also placed on record the copies of the extract of the register in Form 7 and 12 as a proof of ownership of agricultural land by him. As regards the source of the balance investment, it was submitted by the assessee that one of the joint co-owner, viz. Mr. Aasif Supariwala who was a nonresident indian had paid an amount of Rs. 4 lac on his behalf to the builder, viz. Sarkar Builders. The assessee in order to fortify his aforesaid claim furnished with the A.O a copy of letter dated 30.12.2009 from Mr. Aasif Supariwala, Dubai, UAE wherein the latter had stated that he had paid an amount of Rs. 4,00,000/- on behalf of the assessee to the builder, viz. M/s Sarkar Builders. The assessee in order to remove any scope of doubt as regards his aforesaid claim, furnished with the A.O vide his letter dated 30.12.2009 documentary evidence substantiating the remittance made by Mr. Aasif Supariwala from Dubai. The A.O while framing the assessment observed that in the bank account of the assessee hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lders and Rs. 4 lac was invested from his own sources. The A.O observed that during the course of the assessment proceedings the assessee could not furnish a plausible explanation as regards the source of cash deposits of Rs. 6,84,000/- in his bank account with State Bank of India. The A.O observed that during the course of the appellate proceedings the assessee in his attempt to explain the source of Rs. 6,84,000/- deposited in his bank account, had placed on record additional evidence as per which it was claimed that the same comprised of a loans received from Mr. Aasif Supariwala and Mrs. Khatija Usman Patel of Rs. 4,00,000/- and Rs. 2,85,000/-, respectively. The A.O rebutting the aforesaid claim of the assessee submitted in his remand report that as the amount of Rs. 4,00,000/- was earlier claimed by the assessee during the course of the assessment proceedings to have been directly paid by Mr. Aasif Supariwala on his behalf to the builders, viz. Sarkar builders towards his share of investment made in Flat No. 202 on the second floor of Sarkar Tower-III, Mazagaon, Mumbai, therefore, the claim to the contrary raised by the assessee during the course of the appellate proceedings t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h deposit of Rs. 6,84,000/- in his bank account during the year under consideration comprised of the loan of Rs. 4,00,000/- received from Asif Supariwala clearly militated against his earlier claim and thus could not be accepted. The CIT(A) further observed that the claim of the assessee that he had received an amount of Rs. 2,85,000/-from his mother Mrs. Khatija Usman Patel also could not be accepted, for the reason that as she was an 82 years old lady, therefore, she would not be in a position to earn income from which the aforesaid amounts could have been advanced to the assessee. The CIT(A) on the basis of his aforesaid deliberations not finding favour with the explanation tendered by the assessee, dismissed the appeal. 6. The assessee being aggrieved with the order of the CIT(A) had carried the matter in appeal before us. The ld. Authorized Representative (for short „A.R‟) for the assessee at the very outset submitted that the addition of Rs. 6,84,000/- made by the A.O under Sec. 68 in respect of cash deposits in the bank account of the assessee could not be sustained in the eyes of law. The ld. A.R sought to canvass that as a „bank account‟ could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound credited in the books of an assessee maintained for any previous year, and the assessee either offers no explanation about the nature and source as regards the same or the explanation offered by him in the opinion of the assessing officer is not found to be satisfactory. We find that even in the course of the appellate proceedings the CIT(A) after recording his observations at length in respect of the scope and gamut of Sec. 68 had thereafter sustained the addition made by the A.O under the aforesaid statutory provision, as such. The ld. D.R could not point out any perversity as regards the contention advanced by the ld. A.R before us that the addition made under Sec. 68 being beyond the purview of the said statutory provision could not be sustained in the eyes of law. That before adverting further, we herein reproduce the relevant extract of the aforesaid statutory provision, viz. Section 68, which reads as under: - "Cash Credits. Where any sum is found credited in the books of an assessee maintained for any 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 [Assessing] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposited in a bank, 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 pass book 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 pass book is 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. In view of this, the Tribunal was, with respect, justified in holding that the pass book supplied by the bank to the assessee in the present case could not be regarded as a book of the assessee, that is, a book maintained by the assessee or under his instructions. In our view, the Tribunal was justified in the conclusions at which it arrived." We further find that the reliance placed by the ld. A.R before us on the order of a coordinate bench of the Tribunal, viz. ITAT, Mumbai bench „B‟ in the case of Mehul V. Vyas Vs. I.T.O 23(2)(3), Mumbai (2017) 164 ITD 296 (Mum) and the order of a "SMC" bench of the ITAT, Mumbai in the case of Smt. Mansi Mahindra Pitka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumentary evidence which could have proved to the contrary. We further find that though the CIT(A) had declined to accept the claim of the assessee that he had received an amount of Rs. 2,85,000/- from his mother Mrs. Khatija Usman Patel, for the reason that keeping in view the fact that she was an old lady of 82 years of age, therefore, she could not be expected to have earned income from which the aforesaid amount could have been given to the assessee, but however, without dislodging or disproving the claim of the assessee that he being a deaf and dumb person who was totally dependent for his livelihood on his family and relatives and had no other source of income except for agriculture income, had however hushed through the matter and without dislodging the explanation of the assessee as regards the source of the cash deposit of Rs. 6,84,000/- in his bank account, had assessed the same as his undisclosed income. We though are not oblivious of the fact that onus is cast upon an assessee to explain the nature and source of an investment made by him to the satisfaction of the A.O, but however, as observed by the Hon'ble Supreme Court in the case of CIT Vs. P.K. Noorjahan (1999) 237 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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