TaxTMI 
TaxTMI 
2022 (7) TMI 1501
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....d. 3. In this appeal, the assessee has raised the following two effective grounds :- 1. Ld. CIT(A) erred in confirming addition of Rs.4,65,000/- out of the addition of Rs.4,65,000/- out of the addition of Rs.13,37,100/- made by AO u/s.68 on account of cash deposits n bank account of appellant. The addition made by AO and confirmed by Ld. CIT(SA) is arbitrary, baseless & contrary to evidences on record and is not justified. 2. Ld. CIT(A) erred in not adjudicating ground no.2 raised by the appellant regarding non applicability of provisions of sec. 68. In the facts of the case, addition made by the AO and confirmed by CIT(A) is illegal and not justified. 4. Brief facts of the case are that originally the assessee had not filed his retur....
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....r directly in the bank account of the assessee. Relevant entry in bank account bears this fact. 5. Fact of the amount having been given supported by affidavit of the mother, PN 15 of PB. 6. Gifts also reflected in the capital account of the assesseee's mother, at PN 17 of PB. Rs.1,50,000/- includes Rs. 80,000/- and Rs. 70,000/-. 7. Source of Rs. 3,15,000/- i) Gifted by assessee's mother. Deposited directly by her at Nagpur in the bank account of assessee. Relevant entry in bank account bears this fact. ii) Reference of the gift in para 7 of the affidavit which is at PN 15 of PB. iii) Amount of Rs. 3,15,000/- also reflected in her capital account, PN 17 of PB. 8. Reason for making gift by mother i) Assessee, since the age ....
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.... iii) Claris Lifesciences Ltd. vs ACIT (2008) 298 ITR (AT) 403 (Ahd.) iv) CIT vs Metachem Industries (2000) 245 ITR 160 (MP) Ground no. 2 Before Id. CIT(A), ground no. 2 taken in the appeal memo to the effect that addition made is not covered by sec. 68. Ld. CIT(A), did not adjudicate this ground. The assessee was not required to maintain books and has also not maintained it. Addition made on account of cash deposit in bank account, invoking sec. 68. Addition is illegal and not sustainable. Reliance on: - i) Dheeraj Devi Kothari in ITA no. 15/RPR/2016 dt. 21.02.2022 at PN 23 to 32 of PB, relevant finding on PN 29 (para no. 6) and 31 of PB. ii) CIT vs Bhaichand H. Gandhi (1983) 141 ITR 67, 69 (Bom.), PN 20 to 22 o....
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....ued as a credit in the 'books' of the assessee, for the very reason that the bank account cannot be held to be the 'books' of the assessee. Though, it remains as a matter of fact that the 'bank account' of an assessee is the account of the assessee with the bank, or in other words the account of the assessee in the books of the bank, but the same in no way can be held to be the 'books' of the assessee. We have given a thoughtful consideration to the scope and gamut of the aforesaid statutory provision of Section 68, and are of the considered view that an addition made in respect of a cash deposit in the bank account of an assessee, in the absence of the same found credited in the 'books' of the assessee maintained for the previous year, can....
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.... "I have carefully considered the rival submissions. In the present case the addition has been 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 of the assessee for any previous year that the deeming provisions of section 68 of the Act would apply in the circumstances mentioned therein. Notably, section 68 of the Act would come into play only in a situatio....
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....s in the bank accounts of the assessee, and not in any 'books' of the assessee for the year under consideration. We thus are of the considered view that in the backdrop of the aforesaid settled position of law, the addition made by the A.O in respect of the cash deposits of Rs.7,13,000/- in the bank accounts of the assessee by invoking Section 68 has to fail, for the very reason that as per the judgment of the Hon'ble Bombay High Court in the case of CIT Vs. Bhaichand N. Gandhi (1983) 141 ITR 67 (Bombay), a bank pass book or bank statement cannot be considered to be a 'book' maintained by the assessee for any previous year for the purpose of Section 68 of the Act. Therefore, on this count itself the impugned addition mad....