TMI Blog2017 (4) TMI 1421X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 68 arises in view of the various decisions of this Tribunal as well as the decision of Hon'ble Bombay High Court in the case of CIT Vs. Bhaichand N Gandhi [1982 (2) TMI 28 - BOMBAY HIGH COURT]. - Decided in favour of assessee. - I.T.A. No.343/Bang/2017 - - - Dated:- 28-4-2017 - Shri Vijay Pal Rao, J. Appellant By : Shri P. Dinesh, Advocate. Respondent By : Shri AR.V.Sreenivasan, JCIT (D.R) ORDER Shri Vijay Pal Rao, This appeal by the assessee is directed against the order dt.28.10.2016 of Commissioner of Income Tax (Appeals) for the Assessment Year 2012-13. 2. The assessee has raised the following grounds : 3. The only issue raises in this appeal by the assessee is whether in the facts and circumstances of the case the CIT (Appeals) is erred in confirming the addition made by the Assessing Officer under Section 68 of the Income Tax Act, 1961 (in short 'the Act') on account of cash deposited in the bank account. The Assessing Officer noticed that the bank account of the assessee with SBI show a cash deposit of ₹ 12 lakhs which has not been declared by the assessee. The assessee explained before the Assessing Officer th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer as well as CIT (Appeals) has duly considered the explanation as well as evidence filed by the assessee and found hat the explanation as well as proof produced by the assessee are not sufficient to show that the father-in-law as assessee has advanced this amount to the husband of the assessee and in turn was deposited in the bank account of the assessee. He has relied upon the decision of Hon'ble High Court of Allahabad in the case of Smt. Renu Aggarwal Vs. ITO 358 ITR 483. In rejoinder the learned Authorised Representative has submitted that the decision of Hon'ble Allahabad High Court has decided the issue of jurisdiction of the Tribunal under Section 254(2) of the Act and not on the applicability of the provisions of Section 68. 5. Having considered the rival submissions as well as the relevant material on record, it is noted that the assessee has produced the balance sheet of Mr.Govindappa, father-in-law of the assessee as on 31.3.2008 to show the availability of cash and advance of ₹ 12,47,807. The Assessing Officer in the remand report has not disputed the cash available with Mr. Govindappa as per the balance sheet, advanced to 3 persons on 31.3.2008. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be charged to incometax as the income of the assessee of that previous year. Meaning thereby maintenance of books of the assessee, in which credit entry so found, is a condition precedent for invoking the provisions of section 68 of the Act. Now the question arises whether the passbook issued by the bank with regard to the accounts of the assessee can be termed to be the books of the assessee for the purpose of section 68 of the Act. This issue was examined by the Hon'ble Bombay High Court in the case of CIT vs. Bhaichand N. Gandhi (supra) and while answering the question i.e. whether on the facts and circumstances of the case, the Tribunal was justified in holding that cash credit for the previous year shown in the assessee's bank passbook issued to him by the bank, but not shown in the cash book maintained by him for that year does not fall within the ambit of section 68 of the Act and as such the sum so credited is not chargeable to income tax as the income of the assessee of that previous year, their Lordships of the Hon'ble Bombay High Court categorically held that passbook supplied by the bank to the assessee could not be regarded as book of the assessee, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is an undisputed fact that the assessee has not maintained any books of account and whatever credit entries are found by the Assessing Officer, it was from the bank accounts of the assessee in which deposits were made at different point of time. Even the passbook issued by the bank cannot be termed to be the book of the assessee as per the judgment of the Hon'ble Bombay High Court CIT vs. Bhaichand N. Gandhi (supra). Therefore, provisions of section 68 of the Act cannot be invoked on various deposits/credits found recorded in the bank account of the assessee in the absence of books of the assessee maintained for that previous year. The ld. CIT(A) has adjudicated the issue in the light of the aforesaid judgment and has held that provisions of section 68 of the Act cannot be invoked. Besides, he has also examined the additions made by the Assessing Officer through grounds No.1 to 6 on merit also and has noted that in each and every case the assessee has furnished plausible and reasonable explanations with respect to the deposits found recorded in the bank passbook of the assessee and on merit also the ld. CIT(A) did not find any justification in the additions made by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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