TMI Blog2017 (12) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... see has raised the following grounds of appeal: 1. That having regard to the facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in confirming the action of Ld. AO in framing the impugned reassessment order u/s 144/147 and that too without assuming jurisdiction as per law and without complying with the mandatory conditions u/s 147 to 151 as envisaged under the Income Tax Act, 1961. 2. That in any case and in any view of the matter, action of Ld. CIT(A) in confirming the action of Ld. AO in framing the impugned reassessment order u/s 144/147, is bad in law and against the facts and circumstances of the case. 3. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in making addition of ₹ 22,01,000/- allegedly on the ground that assessee has deposited cash in his SB Account and that too by recording incorrect facts and findings and without observing the principles of natural justice. 4. That in any case and in any view of the matter, action of Ld. CIT(A) in confirming the action of Ld. AO in making addition of ₹ 22,01,000/-, is bad in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA No. 3247/DEL/2015 for assessment year 2011-12 vide order dated 21.6.2017. The relevant operative portion of the order from pages 1 to 5 is reproduced hereinbelow for ready reference: Learned counsel for the assessee argued the legal grounds no. 1 and 2 which are reproduced hereinbelow: 1. That having regard to the facts and circumstances of the case, Ld C1T(A) has erred in law and on facts in confirming the action of Ld. AO in making addition ₹ 39 75,0001- on account of cash deposits in hank account by treating it as alleged unexplained cash credit u s 68 of the I. T. Act, that too by recording incorrect facts and findings and without giving adequate opportunity of hearing and in violation of principles of natural justice and by ignoring the theory of peak credit. 2. That in any case and in any vie w of the matter, action of Ld. CTT(A) in confirming the action of Ld. AO in making addition ₹ 39,75,0001- on account of cash deposits u s. 68 is bad in law and against the facts and circumstances of the case. 2. It was argued by the learned counsel for the assessee, Dr. Rakesh Gupta, Advocate that the addition u/s.68 cannot be made on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of S. 68 of the Act and as such the sum so credited is not chargeable to tax as income of the assessee of that previous year. ii) The Hon'ble Delhi HighCourt in thecase of CITvs. Ms.Mayawati reported in 338ITR 563 (Del) held as follows:- As the IT AT has come to the conclusion that Section 68 has no applicability to the facts of the present case as the assessee isnot maintaining any books of accounts.If that be so Section 68does not apply in this case for the simple reason cheque received from Mr. Pankaj Jain has been deposited in her bank account in this regard. The ITAT was of the opinion that balance sheet/statement of the affairs cannot be equated to books of account because a pass book of the bank cannot be treated as a book of account of the assessee because this is proved by the banker, which is given to its customer and is only a copy of the customer s account in the books maintained by the bank. The bank does not act as an agent of the customer nor can it be said that the banker maintains the pass book under instructions of the customer (assessee) the relationship between the banker and customer is one of the debtor and creditor only. Therefore, a cash c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied 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 119691 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 ITA No.5592/Del/2015 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. App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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