TMI Blog2020 (8) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... not permitted to make the addition u/s 68 of the Act in respect of the deposits made in the bank account. Accordingly, we set aside the order of the Ld.CIT(A) and delete the addition made by the AO. - Decided in favour of assessee. - I.T.A.No.452/Viz/2019 - - - Dated:- 29-7-2020 - Shri V. Durga Rao, Judicial Member And Shri D.S. Sunder Singh, Accountant Member For the Appellant : Shri G.V.N.Hari, AR For the Respondent : Smt.Suman Malik, DR ORDER PER SHRI D.S.SUNDER SINGH, ACCOUNTANT MEMBER : This appeal is filed by the assessee against the order of the Commissioner of Income Tax (Appeals) [CIT(A)], Rajamahendravaram in ITA Nos.10090 10094/2017-18 dated 29.03.2019 for the Assessment Year (A.Y.)2011-12. 2. The assessee filed the return of income declaring total income of ₹ 1,48,500/- on 28.12.2012. The return was processed u/s 143(1)of the Income Tax Act, 1961 (in short Act ) and subsequently on receipt of information from Investigation Wing with regard to deposits made in the bank account of the assessee in ICICI Bank, Palakol on 03.04.2010, the Assessing Officer (AO) has reopened the assessment and issued notice u/s 148 on 24.10.2016. In re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. As per the provisions of section 68, the amount found credited in the books of accounts for which the assessee failed to offer explanation to the satisfaction of the AO required to be brought to tax u/s 68, whereas in the instant case, the said sum was not credited in the books of accounts, but the amount was found credited in the bank account of the assessee. The correct course of action for taxing the sums paid into the bank account is to tax u/s 69 of the Act. Neither the AO nor the Ld.CIT(A) has made addition u/s 69. On identical facts in the case of Smt.Asha Sanghavi in I.T.A. No.33/Viz/2019, this Tribunal held that the cash deposits or deposits made in bank account required to be brought to tax u/s 69 and not u/s 68 of the Act. For the sake of clarity and convenience, we extract para No.10 to 10.1 which reads as under : 10. We have heard both the parties and perused the material placed on record. In the instant case, the AO made the addition of ₹ 1,22,29,000/- representing cash deposits made in the bank account u/s 68 of the Act. Section 68 allows the AO to make addition for the sums credited in the books of accounts maintained by the assessee for which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at an addition under the said statutory provision can only be made where any sum is found credited in the books of an assessee maintained for any previous year. Thus, the very sine qua non for making of an addition under Section 68 presupposes a credit of the aforesaid amount in the 'books of an assessee' maintained for the previous year. We not being oblivious of the settled position of law that a 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, thus confining ourselves within the realm of our jurisdiction, therein construe the scope and gamut of the aforesaid statutory provision by according a plain meaning to the language used in Sec. 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 cannot be held to be the 'books' of the assessee. Though it remains as a matter of fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see is to the effect that the bank Pass book is not an account book maintained by the assessee so as tofail 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 the proposition that a bank Pass Book maintained by the bank cannot be regarded as a book of the assessee for the purposes of section 68 of the Act. Factually speaking, in the present case, assessee is not maintaining any books of account and section 68 of the Act has been invoked by the Assessing Officer only on the basis of the bank Pass Book. The invoking of section 68 of the Act has to fail because as per the judgment of the Hon'ble Bombay High Court in the case of Shri Bhaichand N. Gandhi (supra), the bank Pass Book or bank statement cannot be construed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was not related to the addition u/s 68. The case law relied upon by the Ld.DR is distinguishable and does not help the Revenue s case. Since the facts are identical to the decision of Mehul V.Vyas (supra), respectfully following the view taken by the coordinate bench of ITAT, Mumbai, we hold that the addition made by the AO u/s 68 in respect of cash deposits made in the bank account is unsustainable, accordingly, we set aside the order of the Ld.CIT(A) and delete the addition made by the AO. Accordingly, the appeal of the assessee is allowed. Since the facts are identical, we hold that the AO is not permitted to make the addition u/s 68 of the Act in respect of the deposits made in the bank account. Accordingly, we set aside the order of the Ld.CIT(A) and delete the addition made by the AO. 9. Since we have decided the issue on additional ground raised by the assessee and deleted the addition, we consider it is not necessary to adjudicate the other grounds raised by the assessee in this appeal. Accordingly, the appeal of the assessee is allowed. 10. In the result, appeal of the assessee is allowed. Order pronounced in the open court on 29th July, 2020. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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