TMI Blog2013 (11) TMI 1281X X X X Extracts X X X X X X X X Extracts X X X X ..... ot allowed the principles of natural justice stand violated and the order of the assessment is not valid - This is an admitted fact that in this case the AO could not produce Mohd. Shamim for the cross examination of the assessee - The basis of the addition is the statement of Mohd. Shamim whose statement has been recorded at the back of the assessee - Once the AO could not produce Mohd. Shamim for cross examination in view of the decision of this Tribunal dated 3rd July, 2006 no doubt the AO was bound to re-determine this issue on the basis of the other relevant material available on record – Additions made by the AO was rejected – Appeal Partly Allowed. - ITA No.1315/Del/2011 - - - Dated:- 8-2-2013 - S V Mehrotra, J. For the Appellant : Shri Pratiyush Jain, CA For the Respondent : Shri Satpal Singh, Sr. DR ORDER:- This appeal filed by the assessee is directed against the order of ld. CIT(A) dated 25/08/2010 for A.Y. 1995-96. 2. The assessee had filed return of income declaring total income at Rs. 35,450/- from rent, interest and agricultural income of Rs. 21,070/-. The return was processed on 16/08/1996 at returned income. Later on notice u/s 148 was issued on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the A.Y. 1995-96. 4. That all the documents relating to the above mentioned appeal case were in the possession of my Authorized Representative C.A. Vijayant Singh. 5. That C.A. Vijayant Singh had gone Abroad somewhere in July, 2010 and has not returned since then. 6. That I could get all the papers relating to my above mentioned appeal only about 10 days back. I, Vijender Kumar Jain, son of Late Kulwant Rai Jain, do solemnly and on oath declare that my name, parentage and address and the contents of para 1 to 6 herein above are true and correct to the best of my knowledge and belief. Nothing has been cancelled or misstated therefrom. So help me God. Deponent: Vijender Kumar Jain The assessee has also filed various medical prescriptions. 3. Considering the averments made in the affidavit and the medical prescriptions I am of the opinion that the assessee was prevented by reasonable cause from filing the appeal within time and, therefore, condone the delay in filing the appeal and proceed to decide the appeal on merits. 4. In consequence to the aforementioned directions of ITAT, the AO has passed the impugned assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 13 lakhs. He further noticed that cash deposit in various saving bank account were approximately Rs. 14 lakhs. He further observed that during the period when these deposits were made, donor had no apparent source of income to even remotely justify the sources of the same. After considering these facts the AO concluded that there was no nexus between the foreign remittances and gift observing as under: - If assessee s claim that gift was made out of NRE a/c which contained the remittance from Saudi Arab, is to be considered then it cannot be considered isolated from other 8 gifts which have also been given out of the same remittance. As state earlier, simple equation is that the donor remitted Rs. 12 lac out of which he deposited cash of Rs. 14 lac in various a/cs and made gift of Rs. 13 lac to 9 persons belonging to just two families one of which is that of assessee itself. Gifts of Rs. 13 lac cannot be given out of Rs. 12 lac. Therefore, its gift cannot be considered in isolation i.e. Rs. 2 lac versus Rs. 12 lac but is should have to be considered in totality of facts i.e. Rs. 12 lac versus Rs. 13 lacs. From the above it is crystal clear that immediate source of gift wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to both the donees. The facts in both the cases are identical and, therefore, there is force in the submission of ld. Counsel that the decision of Tribunal in the case of Avinash Chand Sons should be applied. No distinguishing fact has been brought on record by Department. I find that in the case of Avinash Chand Sons (HUF) vs. ITO vide ITA No. 1463/D/2009 the Division Bench of Tribunal vide its order dated 23/10/2009 has observed as under: - 6. We have carefully considered the rival submission perused the material on record along with the order of the tax authorities below. We have also gone through the various case laws as relied before us. This is an admitted fact that the assessee was not maintaining any books of account. Section 68 of the Income Tax Act lays down as under: - 68. 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 AO, satisfactory, the sum so credited may be charged to income tax as the income of the assessee of that previous year. From the reading of afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e because this is provided 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 the instructions of the customer (the assessee). The relationship between the banker and customer is one of debtor and creditor only. Therefore, a cash credit appearing in assessee s pass book relevant to a particular previous year, in a case where the assessee does not maintain books of account, does not attract the provisions of sec. 68. 7. Similar view has been taken by Hon ble Gauhati High Court in the case of Anand Ram Rai Tani vs. CIT in which it was held that: - 223 ITR 544 Anand Ram Raitani vs. CIT(Gau.): We have gone through sec. 68 of the Act. The AO before invoking the power u/s 68 of the Act must be satisfied that there are books of account maintained by the assessee and the cash credit is recorded in the said books of account and if the assessee fails to satisfy the AO, the said sum so credited has to be charged to income tax as the income of the assessee of that previous year. The existe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not produce Mohd. Shamim for the cross examination of the assessee. The basis of the addition is the statement of Mohd. Shamim whose statement has been recorded at the back of the assessee. Once the AO could not produce Mohd. Shamim for cross examination in view of the decision of this Tribunal dated 3rd July, 2006 no doubt the AO was bound to re-determine this issue on the basis of the other relevant material available on record. 10. We have gone through the original assessment order in which the additions were made in respect of the said gift, we noted no other material was brought on record except the material on the basis of which the addition were earlier made and the points were duly considered by this Tribunal. 11. We have gone through the decision of Delhi High Court in the case of Sajan Das Sons vs. CIT in this case the facts involved were entirely different to notary affirm that on the date on which notary notarized the document, the deponent was present before him but the Passport of the deponent shown that he was not in India on that date. The signature of the donor on the gift deed and that on Passport did not tally. Therefore, the identity was in do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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