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TMI Blog2019 (1) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... unt, which has been found deposited by assessee in his saving bank account. To our mind in present facts of case section 69 should have been initiated by Ld.AO. It is unfortunate that Assessing Officers blindly apply provisions, which can be fatal to the interest of Revenue. However as a Tribunal, we are not competent to make addition u/s 69A of the Act, by virtue of the decision of Smt. Sarika Jain vs. CIT [2017 (7) TMI 870 - ALLAHABAD HIGH COURT] - Decided in favour of assessee. - ITA No. 1931/Del/2016 - - - Dated:- 5-12-2018 - Shri H.S. Sidhu, Judicial Member And Shri O.P. Kant, Accountant Member For the Assessee : Sh. Kapil Goel, Adv. For the Revenue : Sh. B.S. Rajpurohit, Sr. DR. ORDER PER H.S. SIDHU, JUDICIAL M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amounting to ₹ 1,00,000/-. The case was selected for scrutiny through CASS and notice u/s 143(2) of the Income Tax Act, 1961 (in short Act ) was issued on 25.08.2011. None appeared in response to the said notice. Subsequently, notices u/s 143(2)/142(1) dated 29.02.2012, 03.10.2012, 06.12.2012 were also not complied with by assessee. Consequently, assessment was completed by the AO ex-parte u/s 144 of the Act by making additions of ₹ 15,00,000/-, ₹ 10,80,000/- and ₹ 68,00,000/- on account of unexplained cash deposits in the bank accounts of assessee maintained with Punjab and Sindh Bank, Punjab National Bank and HDFC Bank respectively. The deduction of ₹ 1,00,000/-, claimed by assessee under Section 80C was al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has no business; and therefore, the Assessee is neither required by law nor is maintaining books of accounts and therefore, addition u/s. 68 of the Act is bad in law; and without prejudice the deposit in bank account cannot be added u/s. 68 of the Act. Therefore, he submitted that the issue in dispute is squarely covered by the decision of the ITAT, F Bench vide order dated 27.11.2018 in ITA No. 2483/Del/2015 (AY 2011-12) in the case of Vijay Kumar Prop. V.K. Medical Hall vs. ITO9 (Supra). Further, in support of his contention he also filed the copy of various case laws in the shape of Paper Book containing pages 1 to 91 in which he has attached copy of decision of the ITAT, A Bench decision dated 8.6.2018 in ITA No. 5430 - 5432 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case also AO has invoked the Section 68 of the Act on cash deposits found in the bank accounts. It is correct that since no books of account are maintained in the ordinary course of business of the assessee, no such addition u/s 68 of the Act is tenable. Therefore, in our considered opinion the legal ground in dispute is squarely covered by the decision of the ITAT, F Bench vide order dated 27.11.2018 in ITA No. 2483/Del/2015 (AY 2011-12) in the case of Vijay Kumar Prop. V.K. Medical Hall vs. ITO wherein, the Tribunal has adjudicated the similar and identical issue to the issue in dispute by holding as under:- 8. Ld. AR submitted that Assessing Officer has invoked section 68, on cash deposits found in bank accounts. He submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Singh Gill Delhi SMC Bench in ITA 2987/Del/2015 (28/02/2017) Para 4 to 7 5. Danveer Singh Delhi SMC Bench in ITA 4036/Del/2017 (14/12/2017) Para 5 6. Om Prakash Delhi E Bench in ITA 1325/Del/2011 (11/08/2016) Para 5 to 8 7. Kamal Kumar Mishra Lucknow ITAT 143 ITD 686 Para 7 8. Sunil Vaid Delhi ITAT SMC Bench in ITA 2414/Del/2016 (30/12/2016) Para 7 9. On contrary, Ld. Sr. DR referring to definition of books, books of accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , no explanation and/or explanation offered by assessee is not satisfactory, regarding any amount found credited in books of account of assessee. 13. Be that as it may, we have carefully perused provisions of section 68. This section starts with words, where any sum is found credited in the books of an assessee maintained for any previous year,....... . Therefore, section 68 can be applied only where, there are sum found credited in books of account maintained by assessee. No doubt passbook /bank statement, are maintained by a bank for its customers. Thus in our considered opinion, we agree with proposition advanced by Ld.AR of non applicability of section 68 in case of cash credit found in saving bank account. 14. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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