TMI Blog2023 (3) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 - ITAT AHMEDABAD] Mere possession of pass book cannot be treated as books of accounts. We respectfully relied on the order of CIT vs Bhaichand H. Gandhi,[ 1982 (2) TMI 28 - BOMBAY HIGH COURT] - The application of Section 68 is uncalled for the assessee. In our considered view the cash deposited by assessee is income from agriculture which is not come under purview of the taxable income. The opening balance of cash was also not considered during determination of peak by the ld. AO. We set aside the order of revenue authorities. So, the entire addition is quashed. - I.T.A. No.258/Asr/2022 - - - Dated:- 2-3-2023 - Dr. M. L. Meena, Accountant Member And Sh. Anikesh Banerjee, Judicial Member For the Appellant : Sh. Rohit Kapoor, CA For the Respondent : Sh. Ravinder Mittal, Sr. DR ORDER PER:ANIKESH BANERJEE, JM: The instant appeal of the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals), NFAC, Delhi,[in brevity the CIT (A) ] order passed u/s 250of the Income Tax Act 1961, [in brevity the Act] order dated 05.08.2021 for A.Y. 2008-09.The impugned order was emanated from the order of the ld. Income Tax Officer, War ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culturist and has been declaring agriculture income consistently in the returns of income filed on year-to-year basis. The assessee owns more than 20 acres of land individually and jointly with his family at village Bhangala. The appellant had not filed return of income u/s 139(1) for the year under consideration since the total income of the assessee was below the statutory limit as prescribed by the Income Tax Act, 1961. The case of the assessee was re-opened u/s 148 on the basis of the AIR information that the assessee had deposited cash to the tune of Rs. 10,46,000/- in his ICICI Bank Account. The assessment was completed under section 147 r.w.s 144 of the Act, with an addition of Rs. 7,37,948/- by taking into consideration peak amount date 24.12.2017 on account of cash deposited in ICICI bank. Aggrieved assessee filed an appeal before the ld. CIT(A). The ld. CIT(A) uphold the order of assessment. Being dissatisfied the assessee filed an appeal before us. 4. The ld. Counsel for assessee filed the Written submission which are kept in record and vehemently argued. The ld. Counsel submitted that the appellant has filed the returns for subsequent years in which agriculture incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ble Allahabad High Court in the case of Avdesh Kumar Jain vs. CIT reported in 178 ITR 443 . The ld. CIT Appeals has failed to appreciate that the fact of the said case is not applicable to the assessee particularly in the circumstance where in the present case the assessee has duly submitted the Jamabandi mentioning the fact that the land used for the agriculture operations. 6. In order to further substantiate the claim the ld. Counsel placed that the assessee was earning agriculture income and the copies of Girdawari/Jamabandis are enclosed at page no 7-40 of APB. The ld. Counsel argued that as such, when the assessee has established on record that he was doing agriculture activities, in this circumstance no adverse view can be drawn. As regards the documentary evidence in respect of agriculture income, it is most respectfully submitted that the there is a lag of more than 10 years and as such the copies of J-form could not be produced. That non-availability of J-form cannot be a ground from making an addition where the appellant has submitted Girdawari which clearly that agriculture activities were done on such land. In this regard respectfully relied upon the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) at Rs. 11,00,000/- was sufficient to make the deposit of Rs. 26,68,850/- in the bank account of the assessee. In that view of the matter the addition sustained by the Ld. CIT(A) is deleted. 2 Sanjeev Kumar Malik vs ITO Ward 2(3) ITANo. 7732/Del/2018. AY 2010-11 13. In my view, when the assessee has established on record that it had receipts from sale of agricultural produce, only because some invoices relating to sale are not available, assessee s claim cannot be rejected. More so, considering the reasonable quantum of sale proceeds. 14. Before me, the assessee furnished the details of agricultural land holdings, which clearly supports assessee s claim of receipts from sale of agricultural produce. Thus, assessee s claim that he received Rs.24,00,000 from sale of potato, can be accepted. 15. In such a scenario, the source of investment in purchase of land stands explained. That being the factual position emerging on record, the addition cannot be sustained. 16. Accordingly, I delete the addition sustained by learned Commissioner (Appeals). 17. In view of my decision on merits, legal ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered as books of account and, therefore, any sum found credited in bank pass book cannot be treated as an unexplained cash credit - Held, yes - Whether in interest of justice and fair play, matter was to be restored to file of Assessing Officer for fresh adjudication in accordance with provisions of law - Held, yes. 2. Income-tax Officer, Barabanki v. Kamal Kumar Mishra [2013] 33 taxmann.com 610 (Lucknow - Trib.) Section 68 of the Income-tax Act, 1961 - Cash credits [Bank deposits] Assessment year 2009-10 - Assessee was advocate by profession and had not maintained any books of account for previous year - Whatever credit entries were found by Assessing Officer, were from bankaccounts of assessee in which deposits is made at different points of time - Whether maintenance of books of assessee was condition precedent and, therefore, provisions of section 68 could not be invoked on basis of deposits made in bankaccount of assessee - Held, yes 3. Mehul V. Vyas v. Income-tax Officer, 23(2)(3), Mumbai [2017] 80 taxmann.com 311 (Mumbai - Trib.) Section 68 of the Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x, vs Bhaichand H. Gandhi on 12 February, 1982 (1983) 141 ITR 67 (Bombay). It is fairly well settled that when money is deposited in a bank, the relationship that is constituted between the banker and the customer is one of debtor and creditor and not of trustee and beneficiary. Applying this principle, the pass book supplied by the bank 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, not 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. 6 Smt. Bhagwati Devi v. Income-tax Officer [ 1993] 47 ITD 58 (CAL.) Section 68 of the Income-tax Act, 1961 - Cash credits - Assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 withdrawals is also enclosed at page no 41-42 of the paper book.It is a settled law that the assessing officer is required to give the benefit of cash withdrawal and the maximum income which can be taxed is the peak amount. That the said peak has been calculated without taking into consideration the agriculture income earned by the assesse. Therefore, if the agriculture income is taken into consideration then there is no peak of cash. In this regard, the reliance is being placed on the following case laws in which it has been held that the benefit of cash withdrawals can t be denied to the assessee. The headnotes of the case laws relied upon are as under: S no. Citation Decision 1. ShivcharanDass vs. CIT 126 ITR 263 [1980] (Punj. Har.) Income from undisclosed sources Unexplained investment Amount disclosed by HUF under Voluntary Disclosure Scheme Therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 tax, Assessing Officer erred in treating said deposit as unexplained investment of assessee [In favour of assessee] 6. 2015] 61 taxmann.com 425 (Chandigarh - Trib.) IN THE ITAT CHANDIGARH BENCH 'A' Gurpreet Singh v. Income-tax Officer* Section 68 of the Income-tax Act, 1961 - Cash credit (Bank deposits) - Assessment year 2008-09 - Assessee made deposits of certain sum in bank account - He made various withdrawals from bank account - Assessing Officer in assessment order had given a list of cash deposits in bank account and asked assessee to explain source of cash deposits - Assessing Officer found certain deposits as explained; [1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee 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, Gandhinagar supra. 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 agriculture which is not come under purview of the taxable income. The opening balance of cash was also not considered during determination of peak by the ld. AO. We set aside the order of revenue authorities. So, the entire addition amount to Rs. 737,948/- is quashed. Considering the ground, no-4 of assessee the ld. Counsel filed a calculation related to peak but the issue is remained only for academic purpose. 12. Considering the above discussion, the Assessee s ground no. 1 2 are not pressed. Ground no. 3,5,6 7 are allowed. Ground No. 4 is for academic purposes. Ground no.8 is general in nature ..... X X X X Extracts X X X X X X X X Extracts X X X X
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