TMI Blog2014 (6) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... 991 at Rs.22,06,210 - the availability of opening capital balance cannot be discounted altogether - it may not be proper to altogether reject the claim of savings from past income also – thus, the amount saved out of opening capital balance and past income is estimated at Rs.6,00,000 – Decided partly in favour of Assessee. - ITA No.1529/Mum/2013 - - - Dated:- 28-5-2014 - Shri B. R. Baskaran, AM And Dr. S. T. M. Pavalan, JM,JJ. For the Petitioner : Mr. Dinesh R. Shah For the Respondent : Mr. R.K.Sahu ORDER Per B. R. Baskaran (A.M.) : The appeal filed by the assessee is directed against the order dated 20.12.2012 passed by Ld CIT(A)-24, Mumbai and it relates to the assessment year 2009-10. 2. The assessee is ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is observed from the copy of the bank account that assessee has deposited cash in bank account and utilized it for making payment for purchasing demand drafts, making payments to insurance companies and transferring funds to another bank account and loan account. Assessee also had another savings account with B.M.C. Bank Ltd. and a fixed deposit account also and there is transfer credit entry of Rs.10,30,293/- in the account. Assessee has also submitted that he had been earning income for the last 10 years, has accumulated funds over a period of last 20 years. It further appears form the perusal of the personal capital account, personal Balance Sheet and P L Account and Balance Sheet of the business that assessee s net savings after defr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cash deposits of Rs.26,27,000/- in the bank account with DCB Ltd. and has prepared personal capital account and balance sheet for the last ten years as an afterthought and tried to explain cash deposits of Rs.26,27,000/- in the bank account. Thus assessee s explanation for deleting the addition of cash credit of Rs.26,27,000/- is rejected and its appeal on this ground is rejected. We notice that the first appellate authority has taken the view that the assessee could not have saved more than Rs.2.00 lakhs from the past income. He also noted the fact that the assessee has availed a loan of Rs.1,08,629/- from a bank on 1.4.2008 and accordingly expressed the view that there was no necessity to borrow money from bank, if the assessee was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has declared lower income only in the past and considering his savings, he could not have saved much. 7. With regard to the contention of the assessee that the bank pass book cannot be considered for making addition u/s 68 of the Act, we may refer to the decision of the five members Special Bench of Delhi Tribunal in the case of Manoj Aggarwal Vs. Dy. CIT (113 ITD 377)(Delhi) (SB), wherein it is observed as under:- 26. The argument advanced on behalf of the assessee before us was that the assessee was not maintaining any books of account and the deposits were found only the assessee s bank statement which cannot be considered as the books of account of the assessee and, therefore, section 68 was not applicable. We are however un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd it shows that the assessee might have taken sincere efforts to show the correct capital balance. We have already noticed that the Ld CIT(A) has expressed the view that the assessee might have saved Rs.2.00 lakhs over the years. However, the Ld CIT(A) has failed to give relief at least to the extent of Rs.2.00 lakhs, as estimated by him. Another important point to be noted here is that the Ld CIT(A) did not take into account the Opening Capital balance that was available with the assessee, i.e., the Ld CIT(A) has considered the income declared by the assessee and not the opening capital balance. In the working sheet placed at page 144 of the paper book, the assessee has shown opening capital balance as on 1.4.1991 at Rs.22,06,210/- . Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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