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2024 (4) TMI 1108 - AT - Income TaxRevision u/s 263 - Additions u/s 69 r.w.s. 115BBE - excess stock found during the course of survey as admitted to be the undisclosed business income of the assessee, by the main partner in the assessee firm - AO considering the undisclosed excess stock treated as the business income of the assessee - HELD THAT - It is not the case of the Department that certain cash / jewellery / other income etc. was found which could be attributed as the business income of the assessee. As per the report by the survey team, the excess stock was a mixed stock and was not separately and clearly identifiable. Therefore, in our considered view, the said undisclosed excess stock should normally presumed to be the business income of the assessee only. In the case of Veer Enterprises 2024 (1) TMI 1271 - ITAT CHANDIGARH ITAT held that where during course of survey, assessee surrendered excess stock, cash and receivables and offered same to tax as business income, however, AO treated said surrendered amount as unexplained investment under Sections 69A and 69B, since it emerged that source of income of assessee was from its business operations, income surrendered by assessee during survey could not be brought to tax under deeming provisions of Sections 69A and 69B of the Act. In the case of Baljinder Kumar. 2023 (8) TMI 289 - ITAT CHANDIGARH ITAT held that where there are unrecorded sales made by assessee during current financial year and receivables arising out of such unrecorded sales had been offered to tax as additional business income by assessee, such amount could not be brought to tax under Section 69 of the Act. In the case of Parmod Singla 2023 (8) TMI 525 - ITAT CHANDIGARH ITAT held that mere fact that survey/search proceedings have been initiated at business premises of assessee does not mandate Assessing officer to automatically invoke deeming provisions of Sections 69 and 69A; said provisions can be invoked only where explanation offered by assessee is not found satisfactory; where from explanation offered by assessee it clearly emerged that source of income offered during survey was from his business operations, such income could not be taxed under Sections 69 and 69A of the Act. Accordingly, as per facts of the assessee s case, wherein clearly it has been found that excess business stock was found from the premises of the assessee, in our considered view, the order passed by the Assessing Officer considering the undisclosed excess stock as the business income of the assessee, is not erroneous and prejudicial to the interest of the Revenue. Appeal of the assessee is allowed.
Issues Involved:
1. Invocation of revision powers u/s 263 by the Ld. Principal Commissioner of Income Tax (PCIT). 2. Delay in filing the appeal. 3. Taxability of excess stock found during survey under the head "business income" vs. "deemed income" u/s 69 r.w.s. 115BBE. 4. Consideration of precedents and similar cases. Summary: 1. Invocation of revision powers u/s 263 by the Ld. Principal Commissioner of Income Tax (PCIT): The Ld. PCIT invoked revision powers u/s 263, arguing that the Assessing Officer's (AO) decision was erroneous and prejudicial to the interest of the revenue. The PCIT contended that the excess stock of Rs. 71,50,000/- found during the survey should have been taxed as deemed income u/s 69 r.w.s. 115BBE at a higher rate of 60%, rather than as business income at the normal rate of 30%. The PCIT also noted that the AO did not ask the assessee to prove the source of the excess stock, rendering the assessment order erroneous. 2. Delay in filing the appeal: The assessee filed the appeal with a delay of 31 days, attributing the delay to the late receipt of the demand notice from the Department. The Tribunal condoned the delay, considering the circumstances and in the interest of justice. 3. Taxability of excess stock found during survey under the head "business income" vs. "deemed income" u/s 69 r.w.s. 115BBE: The Tribunal noted that during the survey, the main partner of the assessee firm admitted that the excess stock was unaccounted business income. The Counsel for the assessee argued that the excess stock was part of a mixed lot and not separately identifiable, and thus should be considered business income. The Tribunal agreed, citing precedents where excess stock found during surveys was treated as business income if it was not separately identifiable. 4. Consideration of precedents and similar cases: The Tribunal referred to several precedents, including the case of PCIT vs. Deccan Jewellers Pvt. Ltd., where it was held that excess stock found during a search, if not separately identifiable, should be treated as business income. The Tribunal also considered similar cases from the Ahmedabad ITAT and Chandigarh Tribunal, which supported the assessee's position. Conclusion: The Tribunal concluded that the order passed by the AO, which considered the undisclosed excess stock as business income, was not erroneous and prejudicial to the interest of the Revenue. The appeal of the assessee was allowed. Order Pronounced: This Order was pronounced in Open Court on 24/04/2024.
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