TMI Blog2018 (6) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... 5432/DEL/2011 - - - Dated:- 8-6-2018 - Shri N. K. Billaiya Accountant Member And Shri N. K. Choudhry, Judicial Member Assessee by : Shri Vijay Wadhwa, CA Revenue by : Shri Ravi Kant Gupta, Sr. DR ORDER Per N. K. Billaiya, Accountant Member These three appeals by the assessee are preferred against three separate orders of the CIT(A) 15. Delhi dated 10.02.2017 pertaining to A.Ys 2010-11 to 2012-13. Identical issues are involved in the captioned appeals, therefore, they were heard together and are being disposed of by this common order for the sake of convenience and brevity, though the quantum may differ. 2. The common grievance of the assessee in the impugned appeals relates to the additions made u/s 68 of the Income-tax Act, 1961 [hereinafter referred to as 'the Act' for short] in respect of the amounts of cash found to be deposited in the band accounts of the assessee. 3. Vide a letter dated 12.03.2018, the assessee raised an additional ground of appeal which reads as under: The Assessing Officer has erred in law in making addition being cash deposits in the bank accounts u/s 68 of the Act despite the fact that the appellant admittedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te authority. The ld. DR further stated that it is immaterial under which section the addition is made as long as the assessee is unable to explain the sources of cash deposits in the bank accounts. It is the say of the ld. DR that the assessee never filed return of income voluntarily and it was only after detection of the cash found to be deposited in the bank accounts, the assessee filed return of income for the respective assessment years. The ld. DR continued by stating that though the assessee has claimed to have filed return of income under presumptive taxation, but nowhere in the return of income the assessee has shown that the income has been filed under presumptive taxation. The ld. DR pointed out that even the returned income is not as per the presumptive rate of tax as mentioned u/s 44AF of the Act. It is the say of the ld. DR that the turnover and the profit shown by the assessee does not entitle the assessee to claim immunity under presumptive taxation. 12. Opposing the judicial decisions relied upon by the ld. counsel for the assessee and in support of his claim, the ld. DR relied upon the decision of the Tribunal [Special Bench] Delhi in the case of Manoj Aggarwal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the assessee does not maintain books of account. The CIT(A), in this regard, has rightly placed reliance on 'CIT vs. Bhaichand H. Gandhi', 141 I.T.R. 67(Bom.), 'Sampat Automobile vs. ITO', 96 TTJ(D)368, 'Ms. Mayawati vs. DCIT', 113 TTJ 178(Del.) and 'Sheraton Apparels vs. ACIT', 256 I.T.R. 20(Bom.). It is correct that since no books of account are maintained in the ordinary course of the business of the assessee, in the absence of any corroborative evidence to support action u/s 68 of the Act, no such addition is tenable. 17. In the case of Baladin Ram Vs. CIT [1969] 7 ITR 427, the Hon'ble Supreme Court has held as under: 4. In Baladin Ram v. CIT [1969] 71 ITR 427, it has been held by the Supreme Court that it is now well settled that the only possible way in which income from an undisclosed source can be assessed or reassessed is to make the assessment on the basis that the previous year for such an income would be the ordinary financial year. Even under the provisions embodied in s. 68 of the said Act, it is only when any amount is found credited in the books of the amount so credited may be charged to tax as the income of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reveal that an addition u/s 68 of the Act can only be made where any sum is credited in the books of the assessee maintained for any previous year. Thus, the very sine qua non for making of an addition u/s 68 of the Act presupposes a credit of the amount in the books of the assessee. We are not being oblivious of the settled position of law that the statutory provision has to be strictly construed and interpreted as per its plain literal interpretation and no word howsoever meaningful it may so appear can be allowed to be read into a statutory provision in the garb of giving effect to the underlying intent of the legislature. The scope and gamut of the aforesaid statutory provision is to be construed by according a plain meaning to the language used in section 68. We are of the considered view that a credit in the bank account of an assessee cannot be construed as a credit in the books of the assessee for the very reason that the bank account of an assessee cannot be held to be books of the assessee. The account of the assessee in the books of the bank is different from the books of the assessee. 20. Our view is fortified by the judgment of the Hon'ble High Court of Bomb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made it very clear in the returns of income that she is not maintaining books of account and yet the Assessing Officer proceeded to make assessment by invoking provisions of section 68 of the Act. 24. The ld. DR has also relied upon the decision of the coordinate bench in the case of Renu Aggarwal [supra] which has been affirmed by the Hon'ble High Court of Allahabad. But we find that the facts of this case are clearly distinguishable from the facts of the case in hand in as much as in that case the assessee was maintained books of account of her proprietorship concern and claimed to have received the gifts in her individual bank account and the bench was of the view that the deposits so made was utilized in the regular business of the assessee for which the assessee has maintained regular books of account. 25. As discussed hereinabove, there are decisions in favour of the assessee and there are decisions in favour of the Revenue. But, as mentioned elsewhere, the Hon'ble jurisdictional High Court of Delhi in the case of Ms. Mayawati [supra] has decided similar issue in favour of the assessee and we are governed by the Hon'ble jurisdictional High Court of Delhi. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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