TaxTMI 
TaxTMI 
2013 (11) TMI 1281
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....ount of unexplained expenditure and Rs. 5,500/- on account of interest of KVP's. The appeal by assesee before ld. CIT(A) was dismissed. The assessee preferred appeal before ITAT, New Delhi. The ITAT had set aside the case for fresh assessment with following directions: - "We also found that the Tribunal in its order dt. 03.07.2006 in ITA No. 4932/Del/98, had categorically observed that in case the revenue authorities are not able to produce Sh. Mohd. Shamim Khan for crossexamination of the assessee, then the said assessment of Sh. Mohd. Shamim Khan recorded at the back of assessee should be discarded and Assessing Officer would redetermine the issue based on the other relevant material available on record. Respectfully following the observations of the co-ordinate bench in the case having exactly same facts and circumstances, as well as same donor and in view of the facts discussed herein above, we are inclined to set aside the orders of both the lower authorities and the matter is restored back to the file of the Assessing Officer for deciding the issue afresh after giving reasonable opportunity to the assessee in terms of directions given herein above." As per ....
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....the Income Tax Act to Mohd. Shamim Khan requiring him to attend the office on 10/12/2008 to provide opportunity for cross examination to assessee, as directed by the ITAT. However, since he was in Dubai, he could not be produced for cross examination. Accordingly, the statement of Shamim Khan had to be ignored. Therefore, the AO examined the facts and material available on record and noted that Mohd. Shamim had issued gift cheques to 9 persons as under: - (i) M/s Vijender Kr. Jain & Sons Rs. 2,00,000/- (ii) Smt. Sushma Jain W/o Rajesh Jain Rs. 2,00,000/- (iii) Sh. Sanjay Kr. Jain S/o Sukhmal Chand Jain Rs. 50,000/- (iv) Rakesh Kr. Jain Rs. 50,000/- (v) Smt. Reena Jain W/o Sanjay Jain Rs. 2,00,000/- (vi) M/s Avinash Chand & Sons Rs. 1,00,000/- (vii) M/s Jagdish Chand & Sons Rs. 2,00,000/- (viii) M/s Gurbachan Lal & Sons Rs. 1,00,000/- (ix) Smt. Usha Chawla Rs. 2,00,000/- Total Rs. 13,00,000/- 5. The AO observed that all the above 9 donees were family members of two groups and it was quite unbelievable that Sh. Mohd. Shamim Khan would go on giving huge gifts to various family....
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....regards the assessee's submission that the gift was given by the donor to him and his family on the occasion of his daughter's birthday, the AO observed that the date of her birthday was not mentioned. In view of these facts, the AO made an addition of Rs. 2,20,000/- being the cash deposits in the bank account and telescoped the sum of Rs. 2 lakh found credited in the books of account against these deposits. 7. Ld. CIT(A) confirmed the addition. 8. Ld. Counsel for the assessee submitted that under identical circumstances, in the case of Avinash Chand and Sons, Tribunal has deleted the addition. Ld. Counsel referred to page 4 of assessment order and pointed out that AO has wrongly observed that the gifts were given to related persons as assessee was not part of any of the two groups. He further pointed out that in the case of Avinash Chand and Sons there was no occasion of gift but in the present case the gift has been given on the occasion of birthday of daughter of Karta co parcener. 9. He submitted that as per PAN Card the date of birth is 28/07/1975 and the gift was given on 26/07/1994 through cheque. Ld. Counsel further submitted that in pursuance to the direction of T....
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....said amount or in the opinion of the AO the explanation offered by the assessee is not satisfactory the same so credited may be charged to the Income Tax as the income of the assessee. In this case we noted that the assessee has received the gift of Rs. 1 lakh from Mohd. Shamim Khan, NRI through banking channel. The assessee is not maintaining any books of account. Therefore, the question of credited in the amount in the books of the assessee does not arise. This Tribunal in the case of Ms. Mayawati vs. DCIT, 113 TTJ 178 (Del.) has held as under: "Ms. Mayawati vs. DCIT, Income Tax Act, 1961 - 113 TTJ 178 (Del.): Income from undisclosed sources - Addition u/s 68 Applicability of sec. 68 - section 68 would has no application where the assessee was not maintaining any books of account. A pass book of bank cannot be treated as books of account of the assessee because a pass book is provided by the banker, and is only a copy of the customer's account in the books maintained by the bank. The bank does not act as an agent of the customer nor can it be said that the banker maintains the pass book under the instructions of the customer. The relationsh....
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....of proof does not arise. The AO made the assessment by making addition of the amount for which disallowance was claimed. Mr. Bhuyan 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. Similar view has been taken in the case of CIT vs. Bhai Chand Gandhi by Hon'ble Mumbai High Court in which there held that Pass Book supplied by the bank to the assessee cannot be regarded as the book of the assessee. Therefore, cash credit for the previous year shown in the assessee's bank Pass Book but not shown in the cash book maintained by the assessee for that year does not fall within their ambit of section 68 of the Income Tax Act, 1961. No contrary decision was brought to our knowledge by the ld. DR on this aspect. Therefore, in our opinion no addition can be made u/s 68 only on this basis that the amount credited in the Pass Book is not the book maintained by the assessee. We, therefore, on this basis itself the addition made should have been deleted. 9. Coming to the other ingredient no doubt the onus is on the....