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TMI Blog2016 (9) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the husband, i.e. Shri Mahendra Chintaman Pitkar, the amount has been assessed on substantive basis, while in the hands of the wife i.e. Manasi Mahendra Pitkar, the same has been assessed on protective basis. In view of the aforesaid, the appeal in the case of Shri Mahendra Chintaman Pitkar vide ITA No.4224/Mum/2015 is taken as the lead case in order to appreciate the controversy. ITA No.4224/Mum/2015 3. This appeal pertaining to assessment year 2010-11 is directed against an order passed by CIT(A)-1, Thane dated 29/05/2015, which in turn arises out of an order passed by the Assessing Officer under section 143(3) of the Act dated 28/03/2014. In this appeal assessee has raised the following Ground of appeal:- "On the facts and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Hon'ble Bombay High Court in the case of Bhaichand Gandhi (supra) and it involves a pure point of law for which the necessary facts are already on record. Therefore, the Additional Ground of appeal deserves to admitted in the light of the judgment of the Hon'ble Supreme Court in the case of National Thermal Power Company Ltd., vs. CIT, 229 ITR 383(SC). Accordingly, at the time of hearing, it was pointed out that the Additional Ground of appeal is being admitted for adjudication. As a consequence, both the sides have been heard on merits of the Additional Ground of appeal also. 6. Briefly put, the relevant facts are that the appellant is an individual, who was employed with the Municipal Corporation of Greater Mumbai. The Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce was also explained as having been received from friends and relatives. The CIT(A) gave relief of Rs. 2,70,000/- with respect to the withdrawals found in the bank account of assessee's father and accordingly, he confirmed the balance of the addition of Rs. 27,36,500/- as an unexplained cash credit under section 68 of the Act. Against such an addition, the assessee is in further appeal before the Tribunal. 7. Before me, the first and foremost plea of the assessee is that the explanation of the assessee has been unjustly rejected in as much as the said fact-situation is unassailable . In support, an affidavit of the assessee averring the reasons for the impugned cash deposits has also been furnished at the time of hearing, the relevant co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , friends and well wishers who were helping our family by giving small contributions on humanitarian grounds. Since the payment for medicines to Kantilal Chhaganlal Sec. Pvt. Ltd was required to be made by cheque, it became inevitable for me to keep the funds ready in one single account to keep the track of the payments. Hence. the amounts were withdrawn from the bank accounts relatives and the same were deposited in the said joint account to avoid the delay. 8. In the income tax assessment for the said year, the Assessing officer made the addition on the ground that I could not prove the genuineness of the transactions. It is not feasible for me to prove the same with documentary evidence as I had taken small amounts from various relativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk account as an unexplained cash credit within the meaning of section 68 of the Act. The legal point raised by the assessee is to the effect that the bank Pass Book is not an account book maintained by the assessee so as to fall within the ambit of section 68 of the Act. Under section 68 of the Act, it is only when an amount is found credited in the account books of the assessee for any previous year that the deeming provisions of section 68 of the Act would apply in the circumstances mentioned therein. Notably, section 68 of the Act would come into play only in a situation "where any sum is found credited in the books of an assessee .............". The Hon'ble Bombay High Court in the case of Shri Bhaichand Gandhi (supra)has approved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the circumstances of each case. Be that as it may, since I have already held that the addition is unsustainable following the ratio of the judgment in the case of Shri Bhaichand Gandhi (supra), I do not deal with the instant aspect any further. In the result, the order of the CIT(A) is set-aside and the Assessing Officer is directed to delete the addition of Rs. 27,36,500/- made under section. 68 of the Act . 9.2 Resultantly, appeal of the assessee in ITA No.4224/Mum/2015 is allowed. 10. The other appeal by Smt. Manasi Mahendra Pitkar is directed against the order of CIT(A) -1, Mumbai dated 29/05/2015, which in turn arises out of an order passed by the Assessing Officer under section 143(3) of the Act dated 28/03/2014. 10.1 In this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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