TaxTMI 
TaxTMI 
2019 (1) TMI 1610
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....on made by teh Ld. Assessing Officer. 3. That assessee request to add or amend any ground of appeal before the appeal is finally heard and disposed off." 2. Apart therefrom, the assessee has raised before us the following additional ground of appeal: "That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. A.O in making addition u/s 68 of the Act without considering the submissions of the assessee and without complying with the mandatory conditions u/s 68 as envisaged under the Income Tax Act, 1961." 3. That as the aforementioned additional ground of appeal involves purely a question of law based on the facts available on record, therefore keeping in view the judgment of the Hon'ble Supreme Court in the case of National Thermal Power Company Ltd. Vs. CIT (1998) 229 ITR 383 (SC) the same is admitted. 4. We find that the present appeal before us involves a delay of 80 days. The assessee had filed an application along with an 'affidavit' therein explaining the reasons leading to the aforementioned delay. It is stated by the assessee that the order passed by the CIT(A), Jalandhar, was ser....
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....IT(A) not being persuaded to subscribe to the contentions advanced by the assessee, upheld the addition of Rs. 11,47,660/- made by the A.O and dismissed the appeal. 8. The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. The ld. Authorized Representative (for short 'A.R') for the assessee at the very outset of the hearing of the appeal assailed the validity of the addition made by the A.O under Sec.68 in the hands of the assessee. It was averred by the ld. A.R. that the A.O had wrongly assumed jurisdiction and assessed the cash deposits made in the bank account under Sec. 68 of I.T. Act. It was the claim of the ld. A.R that as bank account or bank passbook cannot be construed as the 'books of account' of the assessee, hence no addition could have validly been made in the hands of the assessee under Sec. 68 of the I.T Act. In support of his aforesaid contention the ld. A.R relied on the judgment of the Hon'ble High Court of Bombay in the case of CIT Vs. Bhaichand H. Gandhi (1983) 143 ITR 67 (Bom.). Apart therefrom, support was drawn from the order of the ITAT, Mumbai in the case of Mehul V. Vyas Vs. ITO (2017) 764....
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....68 can only be made where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee either offers no explanation about the nature and source as regards the same, or the explanation offered by him in the opinion of the assessing officer is not found to be satisfactory. That before adverting further, we herein reproduce the relevant extract of the aforesaid statutory provision, viz. Section 68, which reads as under: "Cash Credits. Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the [Assessing] officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year..........." That a bare perusal of the aforesaid deeming section therein reveals that an addition under the said statutory provision can only be made where any sum is found credited in the books of an assessee maintained for any previous year. Thus, the very sine qua non for making of an addition under Section 68 presupposes a credit of the af....
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....ons 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." We find that the aforesaid view of the Hon'ble jurisdictional High Court had thereafter been followed by a 'SMC' of the ITAT Mumbai bench in the case of Smt. Manshi Mahendra Pitkar Vs. ITO 1(2), Thane (2016) 73 taxmann.com 68 (Mumbai Trib.) wherein it was held as under: - 'I have carefully considered the rival submissions. In the present case the addition has been I made by the income tax authorities by treating the cash deposits in the bank account as an unexplained cash credit within the meaning of section 68 of the Act. The legal point raised by the assessee is to the effect that the bank Pass book is not an account book maintained by the assessee so as to fall Within the ambit of section 68 of the Act. Under section 68 of the Act, it is only when an amount is found credited in the account books ....