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TMI Blog2024 (5) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... e disallowance - Decided in favour of assessee. - SHRI RAVISH SOOD, JUDICIAL MEMBER For the Appellant : S/shri Sakshi Gopal Agrawal Siddharth Parakh, CAs For the Respondent : Shri Satya Prakash Sharma, Sr. DR ORDER PER RAVISH SOOD, JM: The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center (NFAC), Delhi, dated 15.05.2023, which in turn arises from the order passed by the A.O under Sec. 147 r.w.s.144 r.w.s. 144B of the Income-tax Act, 1961 (in short the Act ) dated 20.09.2021 for the assessment year 2013-14. The assessee has assailed the impugned order on the following grounds of appeal: 1) On facts and in the circumstances of the case and in law, assessment order passed by Assessment Unit, NFAC u/s. 147 r.w.s. 144 on 20.09.2021 is invalid because all notices during the course of assessment proceedings were issued in mail id not belonged to the assessee, thus no notices were served to the assessee as per demand of law. In absence or service of notices and no opportunity of being heard given to the assessee, the consequential assessment order passed would be invalid and is liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity the relevant observations of the CIT (Appeals) are culled out as under: 4. Decision on grounds of Appeal: The Facts of the case, Grounds of Appeal, Written Submission, Assessment Order Remand Report are noted. Ground 1: On perusal of pare 2 of Assessment Order, it is noted ample opportunities were provided by AO to assessee to represent her case. Hence, natural justice is provided by AO before completing the Assessment Proceedings. Further, during the appeal proceedings, assessee did not produce any documentary evidence in support of this Ground. Moreover, On going through the Assessment Order, it is noted that Assessment Order is completed as per procedure under Income Tax Act. Hence, the Ground is noted as dismissed. Ground 2: With regard to this ground, the assessee had submitted certain new evidence for which remand report was submitted by AO. Extract of remand report is reproduced below: 3. On perusal of the additional evidences furnished before the Ld. CIT(A), it is found that no ITR was filed by the assessee for AY 2013-14 even though her income was above taxable limit. The assessee s income as per 26AS does not match with Form16 furnished by her which has not been recon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said amount was called for in the hands of the assessee. Elaborating on his aforesaid contention, the Ld. AR took me through the assessment order. It was submitted by the Ld.AR that as it was a case of simplicitor cash deposits in the bank account that was jointly held by the assessee and her husband Shri Naresh Bhatia, therefore, no addition was called for in her hands u/s. 68 of the Act. Carrying his contention further, it was submitted by the Ld. AR that as the bank account could not be held as the assessee s books of account, therefore, the very foundation for making the impugned addition u/s. 68 of the Act falls to ground. The Ld. AR in order to buttress his aforesaid claim had drawn support from the judgment of the Hon ble High Court of Bombay in the case of CIT Vs. Bhaichand H. Gandhi (1983) 141 ITR 67 (Mum.); order of the ITAT, Amritsar in the case of Satish Kumar Vs. ITO (2019) 198 TTJ 114 (Asr.); order of the ITAT, Mumbai in the case of Mehul V. Vyas Vs. ITO (2017) 764 ITD 296 ( Mum.) and that of the ITAT, Raipur in the case of Shri Harjindar Singh Bal Vs. ITO, Ward-2(1), ITA No.57/RPR/2020 dated 26.12.2022. Apart from that, it was submitted by the Ld. AR that no addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that: Where any sum is found credited in the books of on 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 officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year Provided that where the assessee is a company (not being a company In which tho public are substantially interested), and the sum so credited consists of share application money, share capital. share premium or any such amount by whatever name called, any explanation offered by such assessee-company shall be deemed to be not satisfactory, unless- (a) the person, being a resident in whose name such credit is recorded in the books of such company also offers an explanation about the nature and source of such sum so credited, and (b) such explanation in the opinion of the Assessing Officer aforesaid has been found to be satisfactory: Provided further that nothing contained in the first proviso shall apply if the person, in whose name the sum referred to therein is recorded, is a venture capital fund or a venture capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee 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. 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] officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year........... That a bare perusal of the aforesaid deeming section therein reveals that an addition under the said statutory provision can only be made where any sum is found credited in the books of an assessee maintained for any previous year. Thus, the very sine qua non for making of an addition under Section 68 presupposes a credit of the aforesaid amount in the 'books of an assessee' maintained for the previous ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 find that the aforesaid view of the Hon'ble jurisdictional High Court had thereafter been followed by a 'SMC' of the ITAT Mumbai bench in the case of Smt. Manshi Mahendra Pitkar Vs. ITO 1(2), Thane (2016) 73 taxmann.com 68 (Mumbai Trib.) wherein it was held as under: - I have carefully considered the rival submissions. In the present case the addition has been I made by the income tax authorities by treating the cash deposits in the bank account as an unexplained cash credit within the meaning of section 68 of the Act. The legal point raised by the assessee is to the effect that the bank Pass book is not an account book maintained by the assessee so as to fall Within the ambit of section 68 of the Act. Under section 68 of the Act, it is only when an amount is found credited in the account books of the assessee for any previous year that the deeming provisions of section 68 of the Act..... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iciter deposit in the bank account. We thus respectfully following the judgment of the Hon'ble High Court of Bombay in the case of CIT Vs. Bhaichand H. Gandhi (1983) 143 ITR 67 (Bom.) and being in agreement with the view taken by the coordinate bench of the Tribunal i.e. ITAT, Mumbai in case of Mehul V. Vyas Vs. ITO (2017) 764 ITD 296 (Mum), thus are of the considered view that the addition of Rs, 11,47,660/- made by the A.O under Sec.68 cannot be sustained, and as such is liable to be vacated. We thus set aside the order of the CIT(A) and delete the addition of Rs, 11,47,660/- made by the A.O under Sec.68 of the Act. On the basis of my aforesaid observations, I am of the considered view that as the bank accounts of the assessee could not have been held to be the books of account of the assessee maintained for any business or profession, therefore, no addition u/s. 68 of the Act could have been made in respect of the simplictor cash deposits made in the said bank accounts. I, thus, respectfully following the judgment of the Hon ble High Court of Bombay in the case of CIT Vs. Bhaichand H. Gandhi (1983) 141 ITR 67 (Bom), as well as being in agreement with the order of the divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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