2021 (9) TMI 424 - HC - Income Tax

Revision u/s 263 - Unaccounted and excess stock found during the course of search - whether be assessed as business income at the rate of 30% - show-cause notices calling for explanations from the assessees whether excess stock be not treated as undisclosed investment under Section 69 - whether Tribunal is correct in law in endorsing the erroneous order of the A.O as an order after taking one of the possible views? - HELD THAT - In response to the notices, elaborate explanations were offered by the assessees, which were fortifiable by consistent views by various Benches of the Tribunal as well as the High Courts - Assessing Officer, upon consideration, accepted the explanation and taxed the additional income as business income @ 30% instead of 60% as per Section 115BBE of the Act. No contrary view either of any High Court or the Apex Court has been placed before us to demonstrate that the explanations offered by the assessees in the course of assessment were either perverse or contrary to law - we are constrained to hold no case of perversity or lack of enquiry on the part of the Assessing Officer is made out so as to render his decision erroneous under Explanation 2 of Section 263 of the Act. The revisional powers under the said provision were illegally invoked by the Principal Commissioner and his order was rightly set aside by the Tribunal. Appeal dismissed.

Summary

Issues:
Admission of appeals based on substantial questions of law regarding endorsement of erroneous order by Tribunal and assessment of unaccounted excess stock as business income.

Analysis:
The judgment involves appeals concerning the endorsement of an erroneous order by the Tribunal and the assessment of unaccounted excess stock as business income. The issues were whether the Tribunal correctly endorsed the AO's order and whether the excess stock found during a search should be assessed as business income at a 30% rate. The Assessee, engaged in Gold, Diamond, and Silver business, declared excess stock during a search operation under the Income Tax Act. The AO accepted the explanation that the excess stock was part of overall stock and not separately identifiable, hence taxed it as business income at 30%.

In subsequent cases, similar excess stock declarations were made during searches, and the Assessees explained that the stock was part of their business operations and not undisclosed investments. The AO accepted these explanations and taxed the additional income as business income at 30%. The Principal Commissioner invoked revisional powers under Section 263, but the Tribunal set aside these orders, stating the AO's decision was a possible view and not erroneous. The Senior Standing Counsel argued for admission based on substantial questions of law.

The Court held that when two possible views exist and the AO accepts one after due explanation, it cannot be considered erroneous. The Assessees' explanations were accepted by the AO, supported by various judicial authorities, and approved by the Joint Commissioner. The excess stock was not separately identifiable and did not meet the conditions of undisclosed investment under Section 69 of the Act. The Court cited relevant provisions and case laws to support this stance.

The Court further explained that the AO's decision was not erroneous under Section 263, as the Assessees' explanations were accepted after due inquiry, and no contrary views were presented. The revisional powers were improperly invoked, and the Tribunal's decision to set aside the Principal Commissioner's orders was upheld. Consequently, no substantial question of law was found, and the appeals were dismissed. No costs were awarded, and pending petitions were closed as per the judgment.