TaxTMI 
TaxTMI 
2019 (1) TMI 651
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....staining the action of AO in making addition of Rs. 22,13,779/- without appreciating that section 68 is not applicable to sale of shares as mentioned in the impugned assessment order." 2. I will first take up the appeal in the case of Nitin Agarwal (HUF) vs. ITO being ITA No. 7309/Del/2018 (AY 2014-15) and my finding given therein will apply mutatis mutandis in other appeals, since similar facts and findings are permeating in other appeals also. 3. The brief facts of the case are that assessee filed e-return of income on 30.7.2014 declaring an income of Rs. 5,72,720/-. Subsequently, the case of the assessee was selected for the scrutiny under CASS. Accordingly, notice u/s. 143(2) of the I.T. Act, 1961 dated 18.9.2015 was issued. Subsequently, questionnaire u/s. 142(1) of the Act dated 6.6.2016 was also issued to the assessee. In response to the notice issued, the AR of the assessee attended the proceedings from time to time and furnished the requisite details. AO observed that assessee by filing the return has shown income from business, capital gain and other sources and vide Schedule EI has not disclosed any long term capital gain. However, during the course of assessment proc....
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....of Inder Singh vs. ITO, Ward 43(3), New Delhi. He further stated that Section 68 is not applicable to the sale of shares as mentioned in the impugned order. He draw my attention towards para no. 6 of the order wherein it was stated that AO has invoked the section 68 of the Act, on cash deposit found in bank accounts and admittedly assessee is not maintaining any books of account and therefore, any addition u/s. 68 is untenable in law as section is applicable only where credits are found in books of account maintained by assessee. Therefore, the Assessee is neither required by law nor is maintaining books of accounts and therefore, addition u/s. 68 of the Act is bad in law; and without prejudice the deposit in bank account cannot be added u/s. 68 of the Act. Therefore, he submitted that the issue in dispute is squarely covered by the ITAT, Delhi 'B' Bench order dated 05.12.2018 in ITA No. 1931/Del/2016 (AY 2010-11) in the case of Inder Singh vs. ITO, Ward 43(3), New Delhi. Further, in support of his contention he also filed the copy of various case laws in the shape of Paper Book in which he has attached copy of decision of the ITAT, SMC Bench decision dated 5.11.2018 in ITA No. 457....
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....,720/- and made the additions. In appeal, Ld.CIT(A) has dismissed the appeal of the assessee. We find that in this case also AO has invoked the Section 68 of the Act on cash deposits found in the bank accounts. It is correct that since no books of account are maintained in the ordinary course of business of the assessee, no such addition u/s 68 of the Act is tenable. Therefore, in my considered opinion the ground in dispute is squarely covered by the decision of the ITAT, Delhi 'B' Bench order dated 05.12.2018 in ITA No. 1931/Del/2016 (AY 2010-11) in the case of Inder Singh vs. ITO, Ward 43(3), New Delhi wherein, the Tribunal has adjudicated the similar and identical issue to the issue in dispute by holding as under:- "5. We have heard both the parties and perused the records and the case laws cited by the Ld. counsel for the assessee. We find that in this case return of income was filed on 31.3.2011 declaring an income of Rs. 6,5,454/- inclusive of agricultural income of Rs. 2,60,800/- after availing deduction under Chapter VIA amounting to Rs. 1,00,000/-. The AO completed the assessment at Rs. 1,01,35,450/- against the returned income of Rs. 6,55,454/- and made the various addi....
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....2/2016)Para 7 9. On contrary, Ld. Sr. DR referring to definition of "books, books of account" as defined under section 2(12A) of the Act, submitted that, it is not an inclusive definition in order to restrict meaning of what is referred to therein. Ld. Sr. DR submitted that bank accounts do fall under term 'account books' and 'other books', which are to be construed generally. Ld. Sr. DR further submitted that assessee has not been able to explain source of cash deposited in bank account and, therefore, Ld. AO was right in invoking provisions of section 68 of the Act. 10. We have heard both sides in light of records placed before us. 11. Admittedly, assessee has not maintained any books of accounts, and it is also an undisputed fact that cash has been deposited in saving bank account of assessee, which he explains to be sale proceeds received on sale of agricultural plot. Ld. AO applied provisions of section 68 of the Act to cash found deposited in bank account, since assessee could not explain source to satisfaction of Ld. AO, and by holding that, assessee has not discharged identity, credibility and most importantly genuineness of transaction. 12. It has been vehement....