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TMI Blog2017 (4) TMI 1482X X X X Extracts X X X X X X X X Extracts X X X X ..... judice, the CIT(A) ought to have appreciated that the appellant had explained the whole transaction as appearing in the pass book & the AO having not found any evidence contrary but for merely alleging as "after thought", hence the addition which is without basis is liable to be deleted. 5. Without prejudice, the CIT(A) ought to have appreciated that even the ratio decidendi of the Apex court in the case of CIT . Vs. P.K. Noorjahan was also applicable and ought to have deleted the addition. 6. For these and such other grounds that may be urged at the time of hearing, the Appellant prays that the appeal may be allowed. 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. During the assessment proceedings, the Assessing Officer found from the AIR information that cash deposit aggregating to Rs. 35,13,300 was made in the S.B. A/c. of the assessee which was jointly operated by her husband Mr. S. Babu Rao and her son M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount are more than sufficient to explain the source of the deposit in the bank. The learned Authorised Representative has further contended that the transaction of sale of agriculture land has not been disputed by the Assessing Officer however because of the time gap the availability of cash with the assessee has denied. 5. The second leg of argument of the learned Authorised Representative is the provision of Section 68 cannot be applied in the case of deposit in bank account as it was not a credit in the books of accounts. The learned Authorised Representative has then relied upon the decision of the co-ordinate bench of this Tribunal dt.8.9.2016 in the case of Mrs. Farha Kausar Vs. ITO in ITA No.1059/Bang/2016 and submitted that the Tribunal has held that Section 68 can be invoked only in the case of cash credit in the books of accounts. The bank passbook cannot be treated as books of accounts and therefore no addition can be made under Section 68 of the Act when there is no credit in the books of accounts. He has also relied upon the decision of Delhi Bench of Tribunal dt8.2.2013 in the case of Vijendra Kumar Jain & Sons (HUF) Vs. ITO in ITA No.1315/Del/2011. Thus the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posit in the bank. 8. Further there is no dispute that this is a transaction of deposit in the bank therefore the issue of applicability of Section 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 141 ITR 67. The coordinate bench of this Tribunal vide order dt.8.9.2016 in the case of Mrs. Farah Kausar Vs. ITO (supra) after considering a series of decisions on this point has held in paras 10 to 12 as under : "10. We have heard both parties. 10.1 In the present case the Assessing Officer/CIT (Appeals) has acted merely on suspicion and assumption, there was no material on record to suggest that the explanation furnished by the assessee was not satisfactory. 11. In the case of Kamal Kumar Mishra in ITA No.398/LKW/2012, it is held as under : The aforesaid provisions of section 68 of the Act can only be invoked where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Income-tax Officer, satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank to its constituent is only a copy of the constituent's account in the books maintained by the bank. It is not as if the pass book is maintained by the bank as the agent of the constituent, nor can it be said that the pass book is maintained by the bank under the instructions of the constituent. In view of this, the Tribunal was, with respect, justified in holding that the pass book supplied by the bank to the assessee in the present case could not be regarded as a book of the assessee, that is, a book maintained by the assessee or under his instructions. In our view, the Tribunal was justified in the conclusions at which it arrived." In the case of Anand Ram Ratiani vs. CIT (supra), the Hon'ble Gauhati High Court has also held that perusal of section 68 of the Act shows that in relation to expression "books", the emphasis is on the word "assessee" meaning thereby that such books have to be the books of the assessee himself and not of any other assessee. In that case, the books of account of the partnership firm were not treated as those of the individual partner and accordingly the additions made in the hands of the individual partners on the basis of the books of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Similar view has been taken by Hon'ble Gauhati High Court in the case of Anand Ram Rai Tani vs. CIT in which it was held that: - "223 ITR 544 Anand Ram Raitani vs. CIT(Gau,); We have gone through sec. 68 of the Act. The AO before invoking the power u/s 68 of the Act must be scarified that there are books of account maintained by the assessee and the cash credit is recorded in the said books of account and if the assessee fails to satisfy the AO, the said sum so credited has to be charged to income tax as the income of the assessee of that previous year. The existence of books of account is a condition precedent for invoking of the power. Discharging of burden is a subsequent condition. If the first point is not fulfilled the question of burden of proof does not arise. The AO made the assessment by making addition of the amount for which disallowance was claimed. Mr. Baruyan very candidly admits that addition was made in exercise of the power u/s 68 of the Act, therefore, the first condition necessary for invocation of the power is the existence of the books of account." 8. Smilar view has been taken in the case of CIT vs. Bhai Chand Gandhi by Hon'ble Mumbai High Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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