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TMI Blog2019 (3) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... d the identity and creditworthiness of said two donors. Referring to summary of statements of the two donors suggests that the assessee has furnished explanation and the Assessing Officer examined the veracity of details of the said explanation along with the confirmations of the said donors and accepted the gift given by the mother-in-law to an extent of ₹ 1,32,000. Therefore, in our opinion, as discussed above, in terms of the decisions as relied on by the assessee, the addition made by the Assessing Officer and confirmed by the Commissioner of Income-tax (Appeals) is deleted. - Decided in favour of assessee - I. T. A. No. 103/Patna/2016 - - - Dated:- 24-8-2018 - M. Balaganesh Accountant Member And S. S. Viswanethra Ravi Judicial Member For the Assessee : Samir Kumar , Advocate, authorised representative for the assessee. For the Department : Abhay Kumar , Senior Departmental representative ORDER S. S. VISWANETHRA RAVI (JUDICIAL MEMBER).- 1. This appeal by the assessee is against the order dated June 2, 2016 passed by the Commissioner of Income-tax (Appeals), Bhagalpur for the assessment year 200910. 2. The assessee has raised the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er than evidences/explanation filed before the Assessing Officer. The Commissioner of Income-tax (Appeals) considering the submissions of the assessee held that the assessee failed to controvert the findings of the Assessing Officer pertaining to gift and confirmed the addition made by the Assessing Officer. Relevant portion of the Commissioner of Income-tax (Appeals) order is reproduced herein below : Appellate finding and decision : After considering the Assessing Officer's finding and submission of the appellant, I find that following facts emerged : 1. The appellant received gift of ₹ 5 lakh each from father-in-law Sh. Tarini Prasad and mother-in-law Smt. Pratima Kumari. In the detail discussion and findings given in the assessment order, the Assessing Officer arrived at the conclusion that Sh. Tarini Prasad had no known source of funds to support his claim that the gift of ₹ 5 lakh was given to the appellant. With regard to the gift from Smt. Pratima Kumari, the Assessing Officer allowed the withdrawal of ₹ 1,32,000 from post office three months prior to the gift date but could not find any source of fund for the balance amount of ₹ 3,68,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4AA of the Act. The Assessing Officer did not dispute the same and made no adverse remark on this aspect. In an explanation regarding the source of deposit in the form of NSC and term deposits, the learned authorised representative submits that the salary and retirement benefits of the assessee's parents-in-law invested in Sahara India and parents-in-law received the amounts from Sahara India against their investments and gave cash gifts to assessee on withdrawals of such investments on maturity. All the details were filed before the Assessing Officer. To verify the said donors the Assessing Officer issued notice under section 131 of the Act and statements were recorded on oath. Further, the Assessing Officer for not filing evidence regarding withdrawals from Sahara India disbelieved the source of making gift by the father-in-law of the assessee. The Assessing Officer did not provide the account numbers Tarini Prasad and Pratima Devi in response to the reply under section 133 of the Act. However, the Assessing Officer accepted the gift to an extent of ₹ 1,32,000 given by Smt. Pratima Devi, mother-in-law of assessee and did not accept the gift given by Shri Tarni Prasad in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation about the nature and source thereof or the explanation offered by him is not, in the opinion of the (Assessing) Officer, satisfactory, the sum so credited may be charged to Income-tax as the income of the assessee of that previous year.' So section 68 talks of any sum found credited in the books of an assessee maintained for any previous year. As per this section, if the assessee offers no explanation, the section would apply. But ; this explanation has to be with regard to any sum found credited in the books. This is amply clear from the use of expression 'about the nature and source thereof' (thereof being the operative word). Then, in case the explanation offered by the assessee is not found by the Assessing Officer to be satisfactory ; the section can be invoked. This explanation, obviously ; harks back to any sum found credited in the books. The words 'the sum so credited' again relate to any sum found credited in the books 'so credited', here being the pregnant expression. Thus, a plain reading of the section establishes that it operates only where books are maintained by an assessee and a sum is found credited therein. 9. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be the ordinary financial year. Even under the provisions embodied in section 68 of the said Act it is only when any amount is found credited in the books of the assessee for any previous year that the section will apply and the amount so credited may be charged to tax as the income of that previous year, if the assessee offers no explanation or the explanation offered by him is not satisfactory. As the Tribunal has pointed out ; it is fairly well-settled that when moneys are deposited in a bank, the relationship that is constituted between the banker and the customer is one of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income-tax (Appeals) the assessee has furnished reasonable and plausible explanations along with confirmation with regard to the different deposits. Since the learned Commissioner of Income-tax (Appeals) has adjudicated the issue on merit also in the light of the explanations and confirmations placed before him, in a proper perspective and we find no infirmity therein, we confirm the same. Accordingly, finding no merit in the Revenue's appeal, we dismiss the same. 11. In the result, appeal of the Revenue and cross objection of the assessee are dismissed. 10. It is observed from the record that the assessee offered profit at eight per cent. and the Assessing Officer accepted claim of exemption of non-maintenance of books as provided under section 44AA(2)(iv) of the Act. Therefore, in view of the discussion made hereinabove in respect of two decisions of Amritsar Tribunal and Lucknow Tribunal in the cases of supra, in our opinion the addition made by the Assessing Officer under section 68 of the Act and confirmed by the Commissioner of Income-tax (Appeals) is liable to be deleted. 11. Further, it is noted from the record that all the details regarding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 1,61,592 On 27-4-2004 - 1,68,400 On 4-7-2006 1,46,440 On 4-1-2006 - 1,50,000 On 4-7-2006 - 1,50,000 (in post office) Smt. Pratima Kumari (Mother-in-law) She was employed in Government school having retired in November, 2000. She has stated to have received about ₹ 4,50,000 as retirement benefits which in turn have been deposited in UBI, Munger and later on after withdrawal from bank, it has been redeposited in Sahara India. She has also claimed to have given cash gift of ₹ 5 lakh to her daughter-in-law (Smt. Indrani Devi). Likewise her husband, she has also stated the same version that certificates have been surrendered at the time of receiving payments and xerox copy of which could not be retained. As such, she also expressed her inability to produce any evidence in this regard. Details of her depos its and withdrawal are as under : Deposits in bank (Rs.) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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