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Shri Sanjeev Kumar S/o Shri Sushil Kumar Versus Income Tax Officer

2016 (6) TMI 693 - ITAT AMRITSAR

Addition u/s 68 - Held that:- Section 68 talks of any sum found credited in the books of an assessee maintained for any previous year. As per this section, if the assessee offers no explanation, the section would apply. But this explanation has to be with regard to any sum found credited in the books. It remains undisputed that the. assessee has not maintained any books during the year. Thus, the provisions of section 68 of the Act are not at all attracted and they have been wrongly applied by t .....

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en filed by assessee. 2. The appeals in ITA Nos.440 & 442(Asr)/2015 has been filed by Revenue against the separate orders of CIT(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 .....

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nd that Assessing Officer had made addition u/s 68 of the Act whereas the fact remains that assessee was not maintaining any books of accounts and therefore, the provisions of section 68 were not applicable and in view of various decisions of various Tribunals the Assessing officer was not justified in making addition u/s 68 of the Act. The learned AR submitted that since issue raised by assessee is a legal issue and therefore, it can be raised at this stage also and reliance in this respect was .....

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did not raise any objection in admitting the additional ground of appeal and moreover we find that the ground raised by assessee is a legal ground and he is entitled to raise at this stage. Therefore, we admitted the additional ground and learned AR was directed to proceed on the arguments on the additional ground. 8. The learned AR submitted that it is an undisputed fact that assessee was not maintaining the books of accounts as no books of accounts were produced before Assessing Officer and l .....

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espect 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 taken to learned CIT(A)'s order at page 10 and for 2010-11 we were taken to page 9. In view of the above facts, the learned AR submitted that it is an undisputed fact that assessee was not maintaining any books of accounts and therefore, the addition u/s 68 could not have been made. To substantiate that Assessing Officer had made addition u/s 68 of the Act, the learned .....

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se laws. (i) Sh. Amrjeet Singh Vs. ITO, Ward-2(1), Bathinda in ITA No.114(Asr)/2015. (ii) Sh. Yadwinder Singh Vs. ITO, Ward-2(1), Bathinda in ITA No.508(Asr)/2014. 9. The learned DR, on the other hand, relied upon the order of authorities below in respect of assessee's appeals and relied upon the order of Assessing officer in respect of Revenue's appeals. 10. We have heard the rival parties and have gone through the material placed on record. We find that it is an undisputed fact that as .....

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rein 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 copy of AIT/CIB information has not been provided to him whereas the information relating to this cash deposits of ₹ 14 .....

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lly admitted the acknowledgement of the said notice. Had the return filed voluntarily on 27- 07-2012 as claimed by the assessee may be treated as a return filed within time is not correct as the same has been filed belated return that has been provided in the section 139(4) of the I.T.Act,1961. Keeping in view the above mentioned facts it is crystal clear that the assessee could not establish the source of cash deposits by producing corroborative evidences of sales & purchase, So, I hereby m .....

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f 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, the .....

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d any books of account. Now, as correctly observed by the CIT(A), the passbook/bank statement supplied by the bank to the assessee does not amount to a book of account of the assessee. It being only a copy of customers' account in the books maintained by the bank, a bank does not act as an agent of its customer. It also cannot be said that banker maintains a passbook under the instructions of the account holder. The provisions of section 68 of the Act are, therefore, not attracted where the .....

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action u/s 68 of the Act, no such addition is tenable." We further find that in the case of Sh. Yadwinder Singh vs. ITO, Ward- 2,(1), Bathinda in ITA 508/Asr/2015 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: "Wh .....

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tion, if the assessee offers no explanation, the section would apply. But this explanation has to be with regard to any sum found credited in the books. This is amply clear from the use of the expression 'about the nature and. source thereof ' ('thereof' being the operative word). Then, in case the explanation offered by the assessee is not found by the AO to be satisfactory, the section can be invoked. This explanation, obviously, harks back to any sum found credited in the book .....

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