9911796707
TMI Blog2016 (6) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... A) both dated 20.05.2015 and Revenue is aggrieved with the relief given by learned CIT(A). 3. The appeals in ITA Nos.445 to 449 has been filed by assessee against the separate orders of learned CIT(A) all dated 20.05.2015 and assessee is aggrieved by part sustaince of addition which the Assessing officer had made u/s 68 of the Act. The assessee has also challenged the reopening of the case u/s 147/148 of the Act. 4. The brief facts of the cases are that Assessing Officer had made additions in these years on the basis of deposits by assessee in his Bank Accounts for which the learned CIT(A) has allowed part relief. 5. At the time of hearing, the learned AR invited our attention to the additional ground of appeal raised by assessee in ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat assessee was not maintaining the books of accounts as no books of accounts were produced before Assessing Officer and learned CIT(A) and the learned CIT(A at page 9 of his order has noted down vide written submissions of the assessee wherein the assessee had argued that he was no account case and following the provisions of section 44AF, the net profit was declared which was more than 5% of sales declared by assessee. In this respect, learned AR invited our attention to page 9 of learned CIT(A)'s order in Asst. year 2006-07 and further submitted that position in all these years remains the same and in this respect our attention was invited to learned CIT(A) order in Asst. Year 2007-08 at page 10 and for Asst. Year 2008-09 we were ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by learned CIT(A) in his orders at various pages as brought to our notice by the learned AR. Further we find that Assessing Officer has made the addition u/s 68 of the Act and in this respect the findings of the Assessing Officer are important. The learned Assessing Officer at page 4 & 5 of his order for Asst. Year 2006-07 has reproduced the notice issued to assessee wherein he has mentioned that he proposed to make addition u/s 68 of the Act. In the final findings also the Assessing Officer has made addition u/s 68 of the Act. For the sake of convenience the findings of Assessing Officer as contained in Asst. Year 2006-07 are reproduced below. " 05. In response to the aforesaid show cause notice the assessee has taken a plea that a cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explained cash deposit. I am thus satisfied that the assessee has concealed his true particulars of his income, penalty proceedings under section 271(1) (c) of the Income-tax Act 1961 are hereby initiated separately for concealing his true particulars of his income by issuing penalty notice under the aforesaid section read with section 274 of the Income-tax Act 1961." Similarly, findings has been recorded by Assessing Officer in all the years. Since the fact that assessee was not maintaining books of accounts and that Assessing Officer had made additions u/s 68 has been established, therefore, we have to decided as to whether under these circumstances the addition could have been made or not. The Hon'ble ITAT, Delhi Bench, in ITA No.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 015 passed by Hon'ble ITAT Amritsar Bench, vide its order dated 24.02.2016 is also similar. The similar facts and circumstances of the case vide para no.6 to 10 has held as under: "6. I have heard the parties and have perused the material available on record. Section 68 of the I.T. Act, reads as follows: Section 68: "Where any sum is found credited in the book 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 [Assessing] Officer, satisfactory, the sum so credited may be charged to income- tax as the income of the assessee of that previous year." 7. So section 68 talks of any sum found credited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld to be not applicable and mis- applied, nothing further remains to be adjudicated." 11. Accordingly, the order under appeal is reversed. The addition is cancelled." Following the above judicial precedents we allow the additional grounds of appeals raised by assessee in his favour and hold that addition u/s 68 were not warranted and therefore, appeals filed by assessee in ITA No.445,446,447 &449 are allowed whereas ITA No.448 is dismissed as not pressed. 11. As regards the appeals filed by Revenue in ITA Nos.440 &442(Asr)/2015 the same are also dismissed as infractuous as we have held that in all these years addition made by Assessing Officer itself was bad and against law. 12. In view of the above, the appeals filed by the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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