2018 (12) TMI 1064

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....return of income declaring salary income, interest, income from other sources and long-term capital gain. The assessee in her bank account has deposited cash amounting to Rs, 27,71,000/- maintained with the Dena bank bearing account No. 1796. The details of the cash deposit in her bank account stands as under: Date Amount (Rs) 05/08/2010 31000 04/09/2010 500000 08/09/2010 750000 13/10/2010 990000 23/10/2010  500000 Total 2771000 3.1 The assessee explained the source of such cash deposit out of the cash withdrawn from the bank. However, the AO disagreed with the submission of the assessee by observing that there was no documentary evidence furnished by the assessee in support of her contention. Therefore, the AO treated the same as undisclosed income of the assessee. 4. Aggrieved assessee preferred an appeal before the Ld. CIT (A). The assessee before the Ld. CIT (A) submitted that she had deposited a sum of Rs. 31,000/- out of the cash withdrawal from the bank. 4.1 A sum of Rs. 5,00,000/- was taken from Shri Vajubhai Patel and sum of Rs. 7,50,000/- was taken from Shri Bhailal Patel. The assessee in support of her contention about the loan taken from the ....

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....es which are available in the paper book. 6.2 The Ld. AR also placed his reliance on the judgment of Hon'ble High Court of Rajasthan in the case of Aravali Trading Co. (220 CTR 622). 6.3 The Ld. AR for the assessee also claimed that the provisions of section 68 of the Act could not be applied to the instant case on the ground that the money received from the loan parties was not credited in the books of accounts. As per the Ld. AR, the bank account of the assessee, is not part of the books of accounts. The Ld. AR in support of his claim relied on the order of this tribunal in the case of RameshbhaiSomabhai Patel Vs. ITO in ITA No. 1864/AHD/2014 pertaining to the assessment year 2008-09 vide order dated 19th April 2018. The relevant extract of the order is reproduced as under: ''5. When this appeal was called out for hearing, Shri Patel, learned counsel for the assessee invited my attention to Hon'ble Bombay High Court's judgement in the case of CIT vs. Bhaichand H. Gandhi (1983) 53 CompCas 400 Bom. In particular, my attention was invited to the following observations made by their lordships:- "2. In the course of the assessment proceedings for the assessment year 196....

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....68of the said Act, it is only when any amount is found credited in the books of the amount so credited may be charged to tax as the income of that previous year, if the assessee offers no explanation or the explanation offered by him is not satisfactory. 5. As the Tribunal has pointed out, it is fairly well settled that when moneys are/ 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....

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....income-tax.-(1) Where any Central Act enacts that income-tax shall be charged for any assessment year at any rate or rates, income-tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions (including provisions for the levy of additional income-tax) of, this Act in respect of the total income of the previous year of every person." 8.3 The aforesaid charging section thus provides that where any Central Act enacts that income-tax shall be charged for any assessment year at any rate or rates, income-tax at that rate or those rates shall be charged for that year in accordance with and subject to the provisions of the Act in respect of the total income of the previous year of any person. Section 4(1) thus means that while the total income of a person is to be determined in accordance with the provisions of the Act the rate or rates at which such income-tax will be paid on such incomes for any assessment year will be stipulated in the Central Act. In accordance with the provisions of section 4 of the Act, the Finance Act (Central Act) has been stipulating rate or rates at which income-tax is to be charged the particular assessment y....