TMI Blog2022 (2) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed by the Assessing Officer u/s.144/147 of the Income Tax Act, 1961 (for short Act ) dated 29.11.2016 for Assessment Year 2009-10. 2. The assessee has assailed the impugned order on the following grounds of appeal before us. 1. That the order of the Ld. Income Tax Officer is wrong, illegal and against facts. Likewise CIT(A) is not justified while confirming the same. 2. That the assessee was person not residing in India, the Ld. AO grossly erred in assessing the saving bank account deposits amounting to ₹ 12,13,7002- with ICICI Bank, Tam Taran as his income whereas the said deposits were made by assessee in his own account out of the agricultural activities held in India being the owner of agricultural land. 3. That no service of notice u/s 148 and 142(1) was ever effected on the appellant and such proceedings initiated and assessment completed u/s 144 is illegal and without justification. 4. That no reasonable opportunity was allowed while completing the assessment. 5. That no proper satisfaction has been recorded by the AO while initiating proceedings u/s 147 of the Income Tax Act. These are based on borrowed information. 6. That a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , no addition qua the cash deposits made in the bank account of the assessee could validly be made u/s. 68 of the Act. In support of his aforesaid contention the ld.AR had relied upon the judgment of the Hon ble High Court of Bombay in the case of CIT vs. Bhaichand N. Gandhi (1982) 11 Taxman 59 (Bom) . 8. Per contra, the Ld. Departmental Representative (for short DR ) relied upon the orders of the lower authorities. It was submitted by the Ld. DR that as the assessee has failed to explain the nature and source of the cash deposits in his bank account, therefore, the AO had rightly made an addition of the same to his returned income. 9. We have heard the Ld. Authorized Representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by the ld. AR in order to support his aforesaid claim. We have given a thoughtful consideration to the issue before us and are persuaded to subscribe to the claim of the ld. A.R that as the bank account or bank passbook of an assessee cannot be held as his 'books of account', hence, no addition in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral 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 'bank account' of an assessee is the account of the assessee with the bank, or in other words the account of the assessee in the books of the bank, but the same in no way can be held to be the 'books' of the assessee. We have given a thoughtful consideration to the scope and gamut of the aforesaid statutory provision, viz. Sec. 68, and are of the considered view that an addition made in respect of a cash deposit in the 'bank account' of an assessee, in the absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be a book maintained by the assessee for any previous year as understood for the purposes of section 68 of the Act. Therefore, on this account itself the impugned addition deserves to be deleted. I hold so. We further find that a similar view had also been arrived at in a 'third member' decision of the Tribunal in the case of Smt. Madhu Raitani Vs. ACIT (2011) 10 taxmann.com 206 (Gauhati) (TM), as well as by a coordinate bench of the Tribunal in the case of ITO, Barabanki Vs. Kamal Kumar Mishra (2013) 33 taxa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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