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TMI Blog2023 (3) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... e and is against the principles of natural justice. 3. That the CIT(A) has erred in confirming the addition of Rs. 737948/- on account of cash deposited in ICICI Bank Account No 006601529228 u/s 68 without appreciating that bank passbook or statement are not books of accounts and as such no addition can be made u/s 68. 4. That the CIT(A) has erred in confirming the addition of Rs. 737948/- on account of peak cash deposited in ICICI Bank Account No 006601529228 u/s 68 without providing the benefit of opening cash in hand and agriculture income earned during the year under consideration. 5. That the CIT(A) has erred in not appreciating that the cash was deposited in bank out of agriculture income earned by the assessee during the year under consideration. 6. That the Ld. CIT(A) has erred in confirming the addition of Rs. 737948/- made by the Ld. AO by alleging that the assessee made a bald statement in respect of ownership of agriculture land of more than 20acres. That the observation of the Ld. CIT(A) is erroneous since the assessee had duly furnished proof of ownership of agriculture land along the bank account statement. 7. That the Ld. CIT(A) has erred in not appreciati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l installed in the land. It was also submitted that the appellant holds approximately 20 acres of land which includes self-owned land and land in the name of family members. It was also submitted that the peak as calculated by the ld. AO is not correct and has furnished cash flow explaining the source of cash deposits. 5. The ld. Counsel depicted the ground-wise fact in his written the submission before the bench. Accordingly, the groundwise adjudication is as follows: - Assessee's Ground No 5 to 7 Ground No 5 That CIT(A) has erred in not appreciating that the cash was deposited in bank out of agriculture income earned by the assessee during the year under consideration. Ground No 6 That Ld. CIT(A) has erred in confirming the addition of Rs. 737948/- made by the Ld. AO by alleging that the assessee made a bald statement in respect of ownership of agriculture land of more than 20acres. That the observation of the Ld. CIT(A) is erroneous since the assessee had duly furnished proof of ownership of agriculture land along the bank account statement. Ground No 7 That the Ld. CIT(A) has erred in not appreciating that the assessee has filed income tax returns from AY 2012-13 onw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d were sold for Rs. 20.65 lakhs. Ld. CIT(A) estimated the agriculture income at Rs. 11,00,000/- from 27.5 Acres of land @ Rs. 40,000/- per acre and also accepted the income from sale of Popular trees at Rs. 2,00,000/- on estimate basis. However, while accepting the income at Rs. 2,00,000/- no cogent reason has been given on the contrary the assessee furnished the affidavit of Shri Ziledar Ali and Shri Mohan Walia copies of which are placed at page 6 to 8 of the assessee's compilation. In the said affidavits both the persons accepted that they purchased Popular trees from the assessee. Shri Ziledar Ali stated in his affidavit that he purchased the Popular trees for Rs. 10.40 lakhs, similarly Shri Mohan Walia in his affidavit stated that he purchased the Popular trees for a sum of Rs. 10.25 Lakhs. Shri Mohan Walia also accepted in his statement before the A.O. that he purchased Popular trees from the assessee for approximately Rs. 10,00,000/- . The assessee also furnished the copy of Girdawari before the A.O. and mentioned the Khasra number, on which the Popular trees were planted. In the present case, the A.O., while observing that trees were already cut in the earlier years had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat as per section 68 of the Act, any sum found credited in the books of an assessee was maintainedin any previous year. As such the primary requirement for invoking the provisions of section 68 is maintenance of books of accounts. However, in the present case, the assessee has not maintained any books of accounts and as such the provisions of section 68 are not at all applicable. In this regard reliance is being placed on the following case laws: - Sr. No Citation Brief 1. Smt. Ramilaben B. Patel v. Income Tax Officer, Ward-3, Gandhinagar, [2018] 100 taxmann.com 325 (Ahmedabad - Trib.) IT: Bank statement is not considered as books of account and, therefore, any sum found credited in bank passbook cannot be treated as an unexplained cash credit Section 68 of the Income-tax Act, 1961 - Cash credit (Agricultural income) - Assessment year 2011-12 - Certain credit entries were reflecting cash deposit in bank account of assessee - Assessee submitted that said sum was loan taken from some parties - Said parties claimed to have generated agricultural income, but such agricultural income was not declared in their income-tax return - It was treated as undisclosed income of assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account by considering both the bank accounts has much force. On a perusal of the cash credit of the peak submitted by the assessee, the addition cannot be sustained. On this ground also the addition cannot be sustained. Smt. Manasi MahendraPitkar v. Income-tax Officer 1 (2), Thane [2016] 73 taxmann.com 68 (Mumbai - Trib.) Section 68 of the Income-tax Act, 1961 - Cash credit (Bank deposit) - Assessment year 2011-12 - Whether it is only when an amount is found credited in account books of assessee for any previous year that deeming provisions of section 68 would apply in circumstances mentioned therein - Held, yes - Assessing Officer examined bank Pass Book of assessee and treated cash deposits in bank account as unexplained cash credit within meaning of section 68 and added same in income of assessee - Whether since assessee was not maintaining any account books and bank Pass Book or bank statement could not be construed to be a book maintained by assessee for any previous year, impugned addition was unsustainable on account of inapplicability of section 68 - Held, yes. 5 Bombay High Court Commissioner Of Income-Tax, vs Bhaichand H. Gandhi on 12 February, 1982 (1983) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment that the assessee has deposited cash to the tune of Rs 1046000/- in ICICI Bank account no 006601529228. However, the Ld. AO has made the addition to the tune of Rs 737948/- by relying upon the peak. Please refer page no 48 of paper book. That the said peak has been calculated without taking into account the withdrawals made by the assessee between the period 01.04.2007 to 22.10. 2007.The said peak as worked out by the AO cannot be relied upon as the assessing officer has not given any tangible reason in assessment order as to why such benefit of cash withdrawals between the period 01.04.2007 to 22.10.2007 was not allowed. The Ld. AO has failed to provide the evidence that the money so withdrawn was used elsewhere. Therefore, the said action of the AO is based on surmises and conjectures without bringing anything on record. b) That we have recalculated the peak by taking into consideration the cash withdrawal and deposit for the period 01.04.2007 to 31.03.2008. The said working of peak is enclosed at page no 44-45 of paper book. From the said peak, your good self will find that the maximum peak was Rs 78150/- on 01.03.2008. The copy of bank statement highlighting bank withdr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing enclosed - In these circumstances here the genuine cause for non-appearance before the CIT(A). We are in opinion that the assessee has sufficient cause during the depositing of cash in her bank account. The heafty amount was withdrawn 70 days ago for utilising the same for the business of her son. Unused amount was deposited in the same bank account of the assessee. The source of deposit of cash was well explained before the revenue authorities by the assessee. Therefore, AO was indeed in error in adopting a wrong fact in his order. The grievance raised by the ld. Sr. Dr. in this appeal, is, therefore, devoid of any legally sustainable merits. We reject the addition amount of made by the ld. AO. - Decided in favour of assessee. 4. 2017] 88 taxmann.com 400 (Cochin - Trib.)IN THE ITAT COCHIN BENCH Smt.SuryakalaGopakumar v. Income tax Officer, Ward-4, Thiruvalla Section 69 of the Income-tax Act, 1961 - Unexplained investments (Immovable property) - Assessment year 2010-11 - Where cashdeposited in bank account of assessee was explained from sale proceeds of her husband's property and assessee's husband, a NRI, had declared said sale consideration and paid capital gain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of APB. The summary of Landholding details is enclosed separately onpage 43 of APB. That the appellant has filed the returns for subsequent years in which agriculture income has been declared and accepted by the department. The copy of return for A.Y. 2012-13 is enclosed onpage no 63-84 of APB. The nature of income of the assessee is properly depictedwhichis from agriculture. The evidence was submitted before the ld. CIT(A) by the assessee by a letter dated 13/02/2021 which is enclosed at page 1-4 of APB. The Jamabandi/Girdawari represents the nature of income of assessee as agriculturist. Further, the assessee properly raised the ground related addition U/s 68 of the Act without maintaining the books of accounts. The assessee confirmed that as an agriculturist is not maintain books of accounts for the impugned year. We fully relied on the order of Smt. Ramilaben B. Patel v. ITO, Ward-3, Gandhinagarsupra. Mere possession of pass book cannot be treated as books of accounts. We respectfully relied on the order of CIT vs Bhaichand H. Gandhi, supra. The application of Section 68 is uncalled for the assessee. In our considered view the cash deposited by assessee is income from agricult ..... X X X X Extracts X X X X X X X X Extracts X X X X
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