9911796707
TMI Blog2024 (5) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be quashed. 2) On facts and in the circumstances of the case and in law, order passed by CIT(A) is not as per law because it was passed on 15.05.2023 though time up to 19.05.2023 was given by him to the assessee to file submission in notice of hearing issued on 12.05.2023, thus, no proper opportunity of being heard was given to the assessee. 3) On facts and in the circumstances of the ease and in law, CIT(A) has erred in confirming addition of the simplicitor cash deposits of Rs, 13,00,000/- made in the assessee's bank accounts u/s. 68 of the Act by the AO as the bank account statement/bank passbook cannot be treated as books of account of the assessee, hence, no addition in respect of the cash deposits made therein could be validly made u/s. 68 of the Act. 4) Without prejudice to ground nos. 1 to 3, on the facts and in the circumstances of the case, CIT(A) has erred in confirming addition of Rs, 13,00,000/- made by the Assessing Officer u/s. 68 by treating cash deposited in joint saving bath account with State Bank of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 reconciled also. The bank statement found attached does not bear the Name and Account number of the account holder and it reflects cash deposit as below:- 4, On examination of bank statement for FY 2012-13, it is found that 3 credit entries on 16/11/2012 relates to STDR closure amount of Rs, 2,52,509/-, 1,74,168/-, and 1,59,763/- respectively and a withdrawal of Rs, 9,00,000 paid to self through cheque no. 366432 is seen. However, no narration or explanation regarding source of cash deposit has been provided by the assessee. 5. Besides that, no proof of source of cash deposit from the firm of the spouse, M/s Bhatia Traders in the form of cash book, copy of ITR (declaring that income), computation sheet etc. are enclosed/furnished. This clearly indicates that the assessee has been deliberately evading taxes by not divulging her and her spouse's two income." On going through the remand report and bank statement by assessee, I agree with the AO's contention that assessee's explanation is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96 ( 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 of any part of the cash deposits was called for in the hands of the assessee. The Ld. AR in support of his aforesaid contention took me through the bank account which revealed that prior to the cash deposit of Rs, 10 lacs on 21.11.2012 there were cash withdrawals by the assessee of Rs, 9 lacs on 17.11.2012. Elaborating on the source of the cash deposits of Rs, 9 lacs, the Ld. AR had further drawn my attention to certain credits in the bank account on 16.11.2012 which were stated to be the maturity proceeds of STDRs held by the assessee. As regards the balance cash deposits of Rs, 1 lacs each made in three tranches, it was submitted by the Ld. AR that the same were sourced out of the accumulated savings/funds available with the assessee. 7. As the assessee has assailed the validity of the addition made by the A.O under section 68 of the Act, therefore, I shall first deal with the same. Admittedly, it is a matter of fact borne from record that the A.O while framing the assessment had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 capital company as referred to in clause (23FB) of section 10. As already discussed above, assessee has failed to explain the cash credit of Rs, 13,00,000/- and I am satisfied that Rs, 13,00,000f- should be accordingly taxed u/s 68 of the Act. Penalty proceedings u/s. 271(1)(c) of the Act is being initiated separately." 8. As stated by the Ld. AR, and rightly so, the issue in hand is squarely covered by the order 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, wherein, after drawing 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.) and also the order of the ITAT, Amritsar in the case of Satish Kumar Vs. ITO (2019) 198 TTJ 114 (Asr.) and ITAT, Mumbai in the case of Mehul V. Vyas Vs. ITO (2017) 764 ITD 296 (Mum.) the Tribunal had observed as under: "13. Having given a thoughtful consideration to the issue in hand i.e., sust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks 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 year. We not being oblivious of the settled position of law that a statutory provision has to be strictly construed and interpreted as per its plain literal interpretation, and no word howsoever meaningful it may so appear can be allowed to be read into a statutory provision in the garb of giving effect to the underlying intent of the legislature, thus confining ourselves within the realm of our jurisdiction, therein construe the scope and gamut of the aforesaid statutory provision by according a plain meaning to the language used in Sec. 68. We are of the considered view that a credit in the 'bank account' of an assessee cannot be construed as a credit in the 'books of the assessee', for the very reason that the bank account cannot be held to be the 'books' of the assessee. Though it remains as a matter of fact that the 'bank account' of an assessee is the account of the assessee with the bank, or in other words the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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......... circumstances mentioned therein. Notably, section 68 of the Act in a situation "Where any sum is found credited in the books of an assessee............The Hon'ble Bombay High Court in the case of Shri Bhaichand Gandhi (supra) has approved the proposition that a bank Pass Book maintained by the bank cannot be regarded as a book of the assessee for the purposes of section 68 of the Act. Factually speaking, in the present case, assessee is not maintaining any books of account and section 68 of the Act has been invoked by the Assessing Officer only on the basis of the bank Pass Book. The invoking of section 68 of the Act has to fail P a g e |6 ITA No.105/Asr./2017 A.Y. 2008-09 Shri Satish Kumar Vs. Income Tax Officer because as per the judgment of the Hon'ble Bombay High Court in the case of Shri Bhaichand N. Gandhi (supra), the bank Pass Book or bank statement cannot be construed to be a book maintained by the assessee for any prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 division bench of the Tribunal in the case of Mehul V. Vyas Vs. ITO (2017) 764 ITD 296 (Mum) and that of order of the ITAT, Amritsar in the case of Satish Kumar Vs. ITO (2019) 198 TTJ 114 (Asr), is of the view that the addition of Rs, 15.58 lac (supra) made by the A.O u/s. 68 of the Act cannot not be sustained. Resultantly, the order of the CIT(Appeals) who had upheld the addition made by the A.O u/s. 68 of the Act is set-aside and addition of Rs, 15.58 lacs (supra) made by the A.O u/s. 68 of the Act is vacated." 9. As in the present case, the cash deposits of Rs, 13,00,000/- are not in the nature of cash deposits appearing in the "books of account" of the assessee, therefore, I find substance in the claim of the Ld. AR that the addition of the said amount could not have been made u/s. 68 of the Act. As the very basis for making the impugned addition by the A.O suffers from a jurisdictional defect as had been looked into by the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X
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