TMI Blog2012 (6) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... that led to that particular decision. I am observing this because it was not the case of the assessee either before the AO or before the CIT(A) and the record that is produced by the assessee before the authorities and before the Tribunal is sufficient to indicate the fact relating to the maintenance of the books of account by the assessee, as discussecd by the learned Accountant Member. Therefore, in my view, deleting the addition only on the legal grounds without appreciating the facts on record does not bring proper result. - Decided against the assessee by three member bench. - IT APPEAL NO. 55 (AGRa) OF 2007 - - - Dated:- 30-8-2011 - G.E. VEERABHADRAPPA, HARI OM MARATHA AND H.S. SIDHU, SANJAY ARORA AND B.C. MEENA, JJ. Ashwani Taneja for the Appellant. Homi Rajvansh for the Respondent. ORDER Hari Om Maratha, Judicial Member This appeal of the assessee for A.Y. 2003-04 is directed against the order of ld. CIT(A) dated 28.11.2006. 2. The appellant has raised the following grounds : "1. That the Commissioner of Income-tax (Appeals) was wrong in holding that the assessment on Appellant was correctly made by Income Tax Officer at total income of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in which he has accepted the factum of gift and has also explained the other details related thereto. A copy of gift deed was also filed but the AO found that the cash was deposited only three days before giving this gift through cheque in donor's bank account. The ld. AO ignored the statement of the donor, in which he explained that he has received back petty loans given by him earlier. Before the ld. CIT(A), the affidavit of the donor was filed to support this fact that he had received back his petty loan amounts given to various persons. Regarding Mr. Gajanand Goyal, the evidences filed by the assessee included donor's affidavit disclosing his PAN, copy of assessments of income-tax and wealth-tax, copy of balance sheet, copy of statement of wealth etc. to prove the donor's identity and capacity and genuineness of the gift. This donor was not produced before the AO. For non-production of this donor, the reason given was that he had been the victim of bomb blast in Delhi (the date of bomb blast was produced from the newspaper cutting on the query of the Bench as 29.10.2005). This donor was income-tax assessee, but the ld. AO rejected this gift also on the reasoning that the dono ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passbook in individual capacity and does not maintain books of account in her individual capacity, no addition can be made u/s 68 of the Act. Following judicial pronouncements are relevant for this proposition of law :- ( i ) CIT v. Bhaihand H. Gandhi [1983] 141 ITR 67, 69/[1982] 11 Taxman 59 (Bom.). ( ii ) Sundar Lal Jain v. CIT [1979] 117 ITR 316, 318 (All.) ( iii ) Ms. Mayawati v. Dy. CIT [2008] 113 TTJ 178/19 SOT 460 (Delhi) ( iv ) Anand Ram Raitani v. CIT [1997] 223 ITR 544, 549 (Gau.) ( v ) Smt. Shanta Devi v. CIT [1988] 171 ITR 532/37 Taxman 104 (Punj. Har.) ( vi ) Jawahar Lal Oswal v. Asstt. CIT [1999] 71 ITD 324 (Chd.) 8. In view of our finding, the assessee succeeds on this legal aspect of her ground. Therefore, there is no need to decide on the merits of these gifts. Consequently, the assessee succeeds on this ground and the impugned additions are directed to be deleted. 9. In the result, the appeal is partly allowed. Sanjay Arora, Accountant Member - I have carefully perused the order proposed by my ld. Brother, and also discussed the same with him. However, being unable to bring myself in agreement therewith, in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y well be that the bank account under reference forms part of the assessee's business accounts; the issue being not seriously pressed, as would also be evident from the absence of any ground in its respect, both before us as well as the authorities below. As such, by all counts, the assessee is rather maintaining books of account. 3.2 Proceeding further, no doubt, maintenance of its account in its books by its bank, as by any other debtor or creditor (say) would not amount to the assessee maintaining books of account, and which forms the basis and the rationale of the decision in the case of, among others, Bhai Chand N. Gandhi ( supra ). So however, where the assessee does indeed do so, maintaining the accounts of the several parties with which it has financial transactions or dealings, including the bank, it cannot be said that the assessee is not maintaining books of account. Secondly, it is also not necessary that the accounts are maintained by a person in respect of his business or profession only, and may well be for other than business/profession also, and which would not make them any less books of accounts. In fact, the Act itself recognizes this, providing, per secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whole to discern its scheme. For our purpose, rather, what is required is a whole-some study of the relevant provisions, i.e, of the said Chapter (VI) of the Act, which requires a satisfactory explanation from the assessee. for it to be not deemed as its income for the relevant previous year, qua any credit in its books, or any other asset or money or valuable, of which it is found to be owner, and which stands not disclosed (per its books of account). As such, where the said ownership is not disputed, as in the instant case, with the assessee itself claiming the said sums to be gifts to it, and thus its property, the onus to explain the same is on the assessee. Further, this onus, the relevant provisions of Chapter VI of the Act ( viz. ss. 68, 69, 69A, 69B and 69C) being para materia , employing the same language, is the same for all the said provisions. This aspect of the matter, i.e., of the extent and the nature of the burden of proof cast per the different deeming provisions of the said Chapter, where applicable, being the same, stands, apart from being borne out by the express language of the Act, endorsed by the Tribunal (Agra Bench) per its decision in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difference under section 255(4) of the Income-tax Act, 1961. 2. The agreed point of difference of the Members of the Division Bench related to the following ground taken by the assessee:- "That the Commissioner of Income-tax (Appeals) was wrong in confirming/in disallowing the gifts received by the assessee Rs. 4,00,000/- from followings:- ( a ) Shri Jay Singh Yadav Rs. 2,00,000/- ( b ) Shri Gajanand Goyal Rs. 2,00,000/- as cash credit and to assess as income u/s 68 of Income-tax Act by the ld. Income-tax Officer." 3. The assessee is an individual carrying on wholesale cloth business under the name 'Shri Ganesh Traders'. The audited statements were filed in support of the return of income under section 44AB of the Income-tax Act, 1961 in respect of the transactions of business. The Assessing Officer found that the assessee has received two gifts of Rs. 2 lakhs each from Shri Jay Singh Yadav and Shri Gajanand Goyal. The AO treated the same as unexplained cash credit under section 68 of the Act. The assessee took the following grounds before the learned CIT(A):- "3. That the Income-tax Officer was wrong in disallowing the gifts received by the assessee Rs. 4,00, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, the assessee has to succeed on the legal aspect of her ground and there is no need to decide the merits of these gifts. He thus proposed to the impugned additions with that reasoning. 7. When the proposed order of the learned Judicial Member was placed before the learned Accountant Member, he did not agree with the views and discussions made by the learned JM in his proposed order. His findings in this regard are that there is nothing on record to exhibit and it was not shown by the learned counsel for the assessee during the course of hearing that the credits under reference stood deposited in the bank account in respect of which the assessee did not maintain any books of account, i.e. , it does not stand co-opted in its regular books of account. The learned AM appreciated the fact that the assessee is a wholesale cloth merchant doing the said business under the name 'Shri Ganesh Traders', maintaining accounts, which stand duly audited under section 44AB of the Act in respect of the said business, as also personal accounts, compiling final accounts in the form of a combined profit loss account, capital account, the personal balance sheet, which, thus, reflects, inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has come to me for resolution. I confine my jurisdiction only to dispose of the difference in the manner in which it stands addressed to me. Therefore, I refrain from going into the correctness of the decision of the learned Judicial Member or of the learned Accountant Member in getting into areas which were not even the subject-matter of dispute or deliberations before the learned CIT(A). 9. In the light of this, I examine certain papers filed by the assessee. The assessee Smt. Renu Agrawal has filed Form 3CD signed by the Chartered Accountant who certified the financial statements of the assessee. Column No.9 of this form clearly states that the assessee has maintained cash book, ledger and journal. Nowhere, even in the statutory audit report in Form 3CD, it is stated that the assessee has not maintained any books of account for any part of her transactions. In fact, on the contrary, it is stated that proper books of account have been kept by the assessee so as to enable the drawing of the profit loss account and the balance sheet. In fact, the financial statements for individual transactions as well as the transactions of Shri Ganesh Traders were subject to audit report o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 69 should not make a difference having regard to the subsisting obligation of the assessee to explain all the credits and sources of the investments found by the Revenue. In my view, the learned Judicial Member was unnecessarily in haste to get into the case laws without properly appreciating the facts of the case. It always happens whenever a judgment is appreciated without appreciating the facts that led to that particular decision. I am observing this because it was not the case of the assessee either before the AO or before the CIT(A) and the record that is produced by the assessee before the authorities and before the Tribunal is sufficient to indicate the fact relating to the maintenance of the books of account by the assessee, as discussecd by the learned Accountant Member. Therefore, in my view, deleting the addition only on the legal grounds without appreciating the facts on record does not bring proper result. To this extent, I do not approve the view of the learned Judicial Member. I entirely agree with the discussions of the learned Accountant Member in this regard. 12. In the light of the discussions which are primarily based on the facts of the case as pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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