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2018 (5) TMI 1646 - AT - Income TaxSurrender of income during survey - to be treated as Business income or taxable u/s 69 - AO made the additions u/s 69 while calculating the tax rate as per provisions of Section 115BBE - Held that - As per decision in the case of Bajrang Traders 2017 (11) TMI 388 - RAJASTHAN HIGH COURT as observed that the Hon ble High Court in respect of excess stock found during the course of survey and surrender made thereof was found to be taxable under the head business and profession . Similarly in respect of excess cash found out of sale of goods in which the assessee was dealing was also found to be taxable as business income. Applying the proposition of law laid down in the judicial pronouncements as discussed above, I hold that the lower authorities were not justified in taxing the surrender made on account of excess stock and excess cash found U/s 69. Thus, there is no justification for taxing such income U/s 115BBE of the Act. So far as the surrender of income is on account of incriminating documents, it is not clear as to whether it was out of the business transaction, the assessee was carrying on in the regular course of business. However, authorities had not given any finding on the nature of such incriminating documents nor with regard to income surrender with respect to these documents. Restore the issue with regard to surrender of income arising out of incriminating documents to the file of the Assessing Officer to find out the nature of such income if arising out of the business transaction carried on by the assessee and to decide the issue afresh as per law..
Issues Involved:
1. Applicability of Section 69 of the Income-tax Act, 1961. 2. Calculation of tax rate under Section 115BBE of the Income-tax Act, 1961. Detailed Analysis: 1. Applicability of Section 69 of the Income-tax Act, 1961: The primary issue in these appeals concerns the applicability of Section 69 while calculating the tax rate under Section 115BBE. A survey conducted under Section 133A at the assessee's business premises revealed discrepancies in stock, incriminating documents, and excess cash, leading to a surrender of ?10,90,000 for taxation. The assessee included this amount as business income in their return but calculated tax at the normal rate instead of 30% as per Section 115BBE. The Assessing Officer (AO) issued a show-cause notice, contending that the tax should be calculated at 30% under Section 115BBE. The assessee argued that the surrendered income was business income and not covered by deeming provisions such as Sections 68, 69, 69A, 69B, 69C, or 69D. However, the AO did not accept this argument and levied taxes at 30%. The CIT(A) upheld the AO's decision, leading to the current appeals. The assessee's representative cited the Rajasthan High Court's decision in CIT v/s Bajrang Traders, where it was held that investment in unrecorded stock of rice should be taxed as business income, not income from other sources. The Tribunal agreed with this interpretation, noting that the excess stock and cash found were related to business activities and should be treated as business income. 2. Calculation of Tax Rate under Section 115BBE of the Income-tax Act, 1961: The Tribunal examined various judicial precedents, including decisions from the ITAT Jaipur Bench and Mumbai Bench, which supported the view that excess stock found during a survey should be assessed as business income. The Tribunal noted that the AO had not provided evidence to suggest that the assessee was involved in activities outside their business. Therefore, the income disclosed as business income by the assessee was in accordance with the law. The Tribunal also considered the amendment to Section 115BBE, which clarified that no set-off of any loss against deemed income under Sections 68, 69, 69A to 69D would be allowable, effective from April 1, 2017. Since the assessment year in question was 2014-15, this amendment was not applicable. Conclusion: The Tribunal concluded that the lower authorities were not justified in taxing the surrendered income under Section 69 and applying Section 115BBE. The surrendered income related to excess stock and cash should be taxed as business income. However, the issue of income arising from incriminating documents was not clear and was remanded to the AO for further examination to determine if it was related to business transactions. Order: The appeals were allowed in part, with the Tribunal directing the AO to reassess the nature of income from incriminating documents and to tax the surrendered income from excess stock and cash as business income, not under Section 69. The order was pronounced on May 25, 2018.
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