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TMI Blog2017 (4) TMI 1482X X X X Extracts X X X X X X X X Extracts X X X X ..... d. - Decided in favour of assessee - I.T.A. No.374/Bang/2017 - - - Dated:- 28-4-2017 - SHRI VIJAY PAL RAO, J. Appellant By : Shri P. Dinesh, Advocate. Respondent By : Shri AR. V. Sreenivasan, JCIT (D.R) ORDER Shri Vijay Pal Rao, J. This appeal by the assessee is directed against the order dt.15.12.2016 of Commissioner of Income Tax (Appeals) for the Assessment Year 2011-12. 2. The assessee has raised the following grounds : 1. The order of the learned CIT (A) insofar as it is prejudicial to the interest of the appellant, is bad and unsustainable in the eye of law. 2. CIT(A) ought to have appreciated that for the purposes of S.68 of the it is the amount/ sum credited in the books of accounts and not pass book as held by various courts; and hence the addition was bad in law. 3. Without prejudice, the CIT(A) ought to have appreciated that the appellant had discharged the burden of offering explanation about the deposit in bank (joint)account, had r and the transaction and hence the addition as made by the AO was unsustainable in the eye of law. 4. Without prejudice, the CIT(A) ought to have appreciated that the appellant had explaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sband of the assessee to the extent of ₹ 3 lakhs. The Assessing Officer had also accepted the explanation furnished by the assessee to the extent of ₹ 5 lakhs. Accordingly, the Assessing Officer has accepted the source of deposit of cash to the extent of ₹ 11,31,000 and made the addition of the balance of₹ 27,23,100. The assessee challenged the action of the A.O. before the CIT(Appeals) and contended that the assessee was having opening cash balance of ₹ 6,23,364 as on 1.4.2010 and subsequent cash withdrawal made by her from her bank account. The CIT (Appeals) did not accept the explanation of the assessee on the ground that the assessee has changed her stand from sale of land to opening cash balance and withdrawal from bank account. Hence the CIT (Appeals) has confirmed the addition made by the Assessing Officer. 4. Before us, the learned Authorised Representative has submitted that when the assessee has explained the source of deposit as sale consideration of land amounting to ₹ 46,99,500 and further the assessee also explained that there was opening balance of cash of ₹ 6,23,364 as on 1.4.2010 apart from cash withdrawal from her bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 68 of the Act. The assessee explained the source of deposit as sale consideration of the agriculture land for ₹ 46,99,500. The Assessing Officer did not accept the said explanation due to the reason that the agriculture land was sold in the year 2008 and there is no explanation why this cash was not deposited in the bank account prior to this year. Before the CIT (Appeals) it was submitted that apart from the sale consideration there was a cash balance of ₹ 6,23,364 as on 1.4.2010 and there was cash withdrawals made by the assessee from her bank account. The CIT (Appeals) has not accepted this explanation because of the change of stand by the assessee. It is pertinent to note that the Assessing Officer has not disputed the sale of agriculture land on 23.6.2008 for a consideration of ₹ 46,99,500. Therefore when this amount of sale consideration was not utilized by the assessee for any other purpose then merely because the assessee has not deposited this amount in the bank prior to this year cannot be a reason for denial of explanation. Accordingly, when the assessee was having sufficient cash with her as a sale consideration of agriculture land then the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that passbook supplied by the bank to the assessee could not be regarded as book of the assessee, that is, a book maintained by the assessee or under his instruction. The relevant observations of the Hon'ble Bombay High Court are extracted hereunder:- In Baladin Ram v. CIT [1969] 71 ITR 427, it has been held by the Supreme Court that it is now well settled that the only possible way in which income from an undisclosed source can be assessed or reassessed is to make the assessment on the basis that the previous year for such an income would be the ordinary financial year. Even under the provisions embodied in s.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. Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of the assessee and on merit also the ld. CIT(A) did not find any justification in the additions made by the Assessing Officer. Though we are of the view that provisions of section 68 of the Act cannot be invoked on the deposits made in the bank account of the assessee, yet we have examined the veracity of the additions made by the Assessing Officer on certain deposits by invoking the provisions of section 68 of the Act and we find that before the ld. CIT(A) the assessee has furnished reasonable and plausible explanations along with confirmation with regard to the different deposits. Since the ld. CIT(A) 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. In the result, appeal of the Revenue and Cross Objection of the assessee are dismissed. 12. Respectfully following the decision of the Tribunal in the case of Kamal Kumar mishraa (supra), we allow the appeal of the assessee. 9. A similar view has been taken by the Delhi Bench of Tribunal in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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