2024 (9) TMI 851 - AT - Income Tax

Addition u/s 69 r.w.s. 115BBE - excess stock found during survey in the business premises of assessee - Income so surrendered on account of excess stock during the course of survey - business income or unexplained income - AO s accepted the return figure without variation but has applied the tax rate u/s 115BBE of the Act, on the ground that no day to day stock register has been maintained by the assessee - HELD THAT - Respectfully following the observation in the case of Bajargan Traders 2017 (11) TMI 388 - RAJASTHAN HIGH COURT and the decision M/s A.P. Knit Fab 2024 (5) TMI 637 - ITAT CHANDIGARH we are of the opinion, that the income so surrendered on account of excess stock during the course of survey cannot be brought to tax under the deeming provisions of section 69 of the Act 1961, and the same has to be assessed to tax under the head business income and the application of section 115BBE does not arise in this case. It shall be charged to tax at normal rates. As such the appeal of the assessee is allowed.

Issues Involved:
1. Applicability of Section 69 for taxing excess stock found during survey.
2. Applicability of Section 115BBE for taxing excess stock as unexplained income.
3. Whether excess stock found during survey should be taxed as business income or unexplained income.

Issue-wise Detailed Analysis:

1. Applicability of Section 69 for taxing excess stock found during survey:

The primary issue revolves around the excess stock worth Rs. 55 lakhs found during a survey at the assessee's business premises. The assessee declared this excess stock for taxation and included it in the trading account as of 31/03/2019, treating it as business income. The revenue, however, applied the deeming provisions of Section 69, treating the excess stock as unexplained investment and taxed it under Section 115BBE.

During the survey, the assessee's partner admitted the existence of the excess stock, which was of the same nature as the regular business stock. The assessee argued that the excess stock was a rollover of business profits accumulated over the years and should be treated as business income.

The CIT(A) upheld the AO's decision, noting that the assessee failed to maintain a stock register, making it difficult to identify the items forming part of the disclosed business activities. The CIT(A) also pointed out discrepancies in the stock inventory, including items like various types of oil, which were not part of the regular cosmetic business.

2. Applicability of Section 115BBE for taxing excess stock as unexplained income:

The AO applied Section 115BBE, which prescribes a higher tax rate for unexplained income, on the grounds that the assessee did not maintain a day-to-day stock register. The CIT(A) supported this view, stating that the assessee could not prove that the excess stock belonged to the same business, thus justifying the application of Section 69 and the higher tax rate under Section 115BBE.

3. Whether excess stock found during survey should be taxed as business income or unexplained income:

The assessee argued that the excess stock was part of the regular business inventory and should be taxed as business income. The assessee cited judgments from the Coordinate Bench on similar issues, emphasizing that the excess stock was a part of the regular business and should not be treated as unexplained income.

The tribunal noted that the stock found during the survey was of the same nature as the regular business stock and had no separate identity. The revenue did not provide evidence to suggest that the excess stock was related to any other business activities. The tribunal also observed that hair oils, found in the inventory, could be considered allied products of the cosmetic business.

The tribunal relied on judgments from the Coordinate Bench and the Rajasthan High Court, which held that excess stock found during a survey should be treated as business income if it has no independent identity and is part of the regular business inventory. The tribunal concluded that the excess stock in this case was part of the regular business and should be taxed as business income at normal rates, not under the deeming provisions of Section 69 or the higher tax rate of Section 115BBE.

Conclusion:

The tribunal allowed the appeal, ruling that the excess stock found during the survey should be treated as business income and taxed at normal rates. The application of Section 69 and Section 115BBE was deemed inappropriate in this case, as the excess stock was part of the regular business inventory and had no independent identity. The appeal of the assessee was allowed, and the income was directed to be assessed under the head "Income from Business/Profession" at normal tax rates.

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