2025 (6) TMI 319 - AT - Income Tax

Addition u/s 68 - assessee filed returns u/s 44AD and did not maintain books of account - HELD THAT - The assessee has admittedly filed return under Section 44AD and as a natural corollary books of account ought to be maintained. It has been held in various judicial pronouncement that the bank pass book is not regarded as books of account. Therefore the very initiation of Section 68 fails because there are no books. The addition made is under non-existent provision. Accordingly we direct to delete the addition and the Ld. CIT(A) s order is overturned in this aspect. As a result appeal of the assessee is allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal in the appeal are:

• Whether the initiation, continuation, and conclusion of reassessment proceedings under Section 143(3) of the Income Tax Act, 1961, were valid and in accordance with law and facts.
• Whether the order under Section 250 was validly passed, given the alleged delay beyond 90 days from the last hearing date.
• Whether the addition of Rs. 80,91,412/- under Section 68 for unexplained cash and cheque deposits was justified, considering the assessee's explanation of these amounts as business receipts from consignment sales.
• Whether the addition of Rs. 3,00,000/- under Section 68, claimed to be received from the assessee's father for marriage expenses, was justified.
• Whether the addition of Rs. 5,00,000/- under Section 68, claimed as a gift from the assessee's in-laws to support business, was justified.
• Whether the total addition of Rs. 88,91,412/- under Section 68, treating bank deposits as unexplained income, was sustainable in light of the assessee's submissions regarding the source of funds.
• Whether the invocation of Section 68 was legally maintainable given that the assessee filed returns under Section 44AD and did not maintain books of account as required for Section 68 applicability.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1 & 2: Validity of Reassessment Proceedings under Section 143(3) and Order under Section 250

The appellant challenged the reassessment proceedings initiated under Section 143(3) and the subsequent order under Section 250, contending procedural irregularities including delay in passing the order beyond 90 days from the last hearing date. However, the Tribunal's order does not elaborate extensively on these procedural objections, focusing primarily on the substantive additions under Section 68. The absence of detailed findings on this point suggests that the Tribunal either found the procedural objections non-meritorious or subordinate to the substantive issue of addition under Section 68.

Issue 3, 4, 5 & 6: Addition under Section 68 for Cash and Cheque Deposits

Relevant Legal Framework and Precedents: Section 68 of the Income Tax Act provides that where any sum is credited in the books of an assessee and the assessee fails to satisfactorily explain the nature and source of such sum, the amount may be treated as income and taxed accordingly. The provision aims to tax unexplained cash credits to curb tax evasion through unaccounted income.

Judicial precedents have consistently held that the assessee must satisfactorily explain the source of cash credits, and mere denial or vague explanations are insufficient. However, the explanation must be considered in light of the facts and evidence presented.

Court's Interpretation and Reasoning: The Assessing Officer made an addition of Rs. 88,91,412/- under Section 68, treating cash and cheque deposits in two bank accounts as unexplained income. The assessee explained that these deposits arose from business transactions as a commission agent in the sale of plastic scrap and plastic dana. The assessee contended that payments were received from factory owners (principal buyers) who paid cash or cheques into the assessee's account, and the assessee then paid the small vendors (suppliers) accordingly.

Additionally, specific amounts of Rs. 3,00,000/- and Rs. 5,00,000/- were claimed to be received from the father and in-laws respectively, supported by documentary evidence such as income tax returns and Form 16 of the donors.

The CIT(A) upheld the addition, observing that although the identity and creditworthiness of the donors (in-laws) were established, there was no confirmation or direct evidence of the gift transaction itself, such as a gift deed or acknowledgment by the donors. The absence of the date or occasion of the gift further weakened the assessee's claim. Similarly, the amount from the father was also not satisfactorily explained.

Key Evidence and Findings: The assessee's business transactions involved receipt of sale proceeds in cash and cheque, which were deposited in bank accounts. The assessee's explanation was that these were legitimate business receipts and payments were made to vendors accordingly. Documentary evidence was produced to substantiate the source of the Rs. 5,00,000/- and Rs. 3,00,000/- amounts, but no direct confirmation from the donors was furnished.

Application of Law to Facts: The Tribunal noted that the assessee filed returns under Section 44AD, which applies to presumptive taxation for small businesses and does not mandate maintenance of detailed books of account. Importantly, the Tribunal held that bank passbooks or bank statements do not qualify as "books of account" for the purposes of Section 68. Since Section 68 applies only when sums are credited in the books of account, the absence of such books meant that the very foundation for invoking Section 68 was lacking.

Treatment of Competing Arguments: While the Revenue emphasized the unexplained nature of the deposits and the lack of direct evidence of gifts, the assessee argued that the deposits were business-related and gifts were genuine, supported by credible documents. The Tribunal gave weight to the assessee's explanation and the legal requirement of having "books of account" to invoke Section 68, which was not fulfilled.

Conclusions: The Tribunal concluded that since the assessee filed under Section 44AD and did not maintain books of account, the invocation of Section 68 was legally untenable. Consequently, the addition of Rs. 88,91,412/- was ordered to be deleted.

3. SIGNIFICANT HOLDINGS

The Tribunal's crucial legal reasoning is encapsulated in the following observation:

"I have carefully considered the submissions made by the appellant and additional evidences furnished by the appellant and view of AO in making assessment and his remand report on additional evidences. It is observed that appellant has undisputedly accepted that there is total sum credited Rs. 88,91,412/- through cheque and cash mode in two accounts of the appellant... The perusal of the same shows that both Shri Pradeep Kumar, father-in law is a govt. employee and Smt. Manorma, mother-in law is a bank employee and are bound by conduct rules which lays certain conditions to fulfil before making gift in cash to his would be son-in law. However, no confirmation from Shri Pradeep Kumar or Smt. Manorma has been brought to record which may establish that such a gift has been made by them... Therefore, the appellant's claim that he had received gift of Rs. 5,00,000/- from his in-laws is not found satisfactory although the evidence produced are sufficient to prove the identity and creditworthiness of the in-laws."

Further, the Tribunal held:

"The assessee has admittedly filed return under Section 44AD and as a natural corollary books of account ought to be maintained. It has been held in various judicial pronouncement that the bank pass book is not regarded as books of account. Therefore, the very initiation of Section 68 fails because there are no books. The addition made is under non-existent provision. Accordingly, we direct to delete the addition and the Ld. CIT(A)'s order is overturned in this aspect."

Core principles established include:

• Section 68 applies only where sums are credited in the books of account maintained by the assessee.
• Bank passbooks or bank statements do not qualify as books of account for this purpose.
• Filing of return under Section 44AD, which does not require maintenance of books of account, precludes the applicability of Section 68.
• Explanation of cash credits must be supported by credible and direct evidence, especially in case of gifts, including confirmation or acknowledgment by donors.
• Absence of such evidence weakens the Revenue's case for addition under Section 68.

Final determination was that the addition of Rs. 88,91,412/- under Section 68 was unsustainable and was deleted, allowing the appeal.