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TMI Blog2019 (12) TMI 1257X X X X Extracts X X X X X X X X Extracts X X X X ..... c charge against the assessee. The addition was made under section 68 of the Act. However, same was sustained by the CIT (A) under section 69 of the Act on the ground that investment are not recorded in books of accounts. Since the change of section, amounts to enhancement without giving opportunity of being heard the assessee, hence, no sustainable in law. 3. Since above grounds of appeal related to addition of Rs. 33,71,720 being cash deposits in saving bank account and interest thereon of Rs. 12,528 , hence, same are being considered together. 4. Succinctly, facts as culled out from the orders of lower authorities are that the assessee has filed return of income on 29.03.2012 declaring total income of Rs. 46,57,850. The assessment was reopened u/s.147 and notice under section 148 of the Act was issued and served on 31.03.2015 on the ground that the assessee could not explain the cash deposits in his saving bank account with Axis Bank in reply to notice under section 133(6) issued to him. The said bank account was opened on 03.02.2011 in which cash of Rs. 33,71,720 was deposited during the period from 03.02.2011 to 15.03.2011. The assessee has also earned interest of Rs. 12,528 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee for his individual benefit. There is no business purpose. In view of such advance clearly falls within the purview of provisions of section 2(22)(e) of the Act. In view of these facts, the AO also taxed the same amount as deemed dividend in the hands of the assessee. 5. Being, aggrieved, the assessee filed an appeal before the Ld. CIT (A). The assessee has reiterated the same submissions as made before the AO. It was argued that said account was reopened due to astrological reasons. The addition made under section 68was challenged on the ground that section 68 is not attracted as saving bank account Paper Book is not books of accounts of the assessee but are books of the bank. It was further submitted that and is made on presumption and assumption. It was further submitted that it was not the case of the AO that company was not having cash in hand to justify the deposit made in the saving bank account of the assessee. However, the Ld. CIT(A) has upheld the observation of the AO has the plea of the assessee that the bank account was opened on the basis of astrological advice is highly illogical and cannot be accepted. Further, the said saving bank account of the assessee wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of ITAT Amritsar in the case of Sanjeev Kumar v. ITO Ward 6(3) Pathankot [I.T.A.No. 445 to 449/ASR/2015-dated 17.06.2016, copy placed on record. The learned counsel for the assessee further, relied in the case of PCIT V. Bhaichand H Gandhi [1983] 141 ITR 67 (Bombay) in support of contention that no addition under section 68 can be made when no books of accounts are maintained. The learned counsel for the assessee contended that the AO has observed that when the company was having regular current account then why the assessee has opened saving bank account in his name to make deposit out of cash in hand of company. The learned counsel for the assessee relying on the decision CIT v. Dalmia Cement (Bharat) Ltd. [2002] 254 ITR 377 (Delhi) submitted that the AO cannot guide as to how the business should be conducted by the assessee. The assessee has opened a bank account in which cash deposits were made out of cash in hand with the company. The AO has not pointed out that cash deposits are not out of cash in hand of the company, no discrepancies have been pointed out by the AO.The learned counsel for the assessee placed reliance in the case of Girish Bansal & Anr v. UOI [2016] 384 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount. This view is also supported by the facts that the AO has without prejudice, also observed that the addition should be considered u/s. 2(22)(e) of the Act as the assessee has received cash loan from the company in which he had substantial interest and shareholding.The learned counsel for the assessee placed reliance in the case of Girish Bansal &Anr v. UOI [2016] 384 ITR 161 (Delhi) wherein it was held as under: "Examined in the light of the legal position explained in the above decisions, the Court is of the view that as far as the present case is concerned, the sum of Rs. 20 lakhs received by the Assessee was in the context of the cancellation of the sale certificate and the sale deed executed in their favour in relation to an immovable property and neither the Assessee was dealing in immovable property as part of his business.While it could, if at all be said to be in the nature of capital receipt, what is relevant for the present case is that the Revenue has been unable to make out a case for treating the said receipt as of causal and non-recurring nature that could be brought to tax under Section 10 (3) read with section 56 of the Act. In the light of the clear enun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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