2022 (10) TMI 374 - AT - Income Tax

Additions of commission income u/s 44AD or 68 - assessee failed to establish commission agency business and treated the same to be unaccounted money u/s 69A read with section 115BBE - assessee has himself volunteered to offer the amount for taxation to be written back as an income - HELD THAT - In this case, the Assessing Officer on the one hand has taken advantage of the ignorance of the assessee in offering the income on presumptive basis and taxed the receipts where the assessee was not supposed to pay the taxes, however, picked the other income whereupon the Assessing Officer found that the same was exigible to higher taxes. This, cannot be held justified at all. It has been held time and again that the Assessing Officer should help the assessee in computing and assessing the true and correct taxable income of the assessee and further that the income tax authorities should charge legitimate taxes from the assessees and they should not punish the assessees for their bona fide and ignorant mistakes. In this case, the AO has adopted pick and choose manner to fasten high tax liability upon the assessee which cannot be allowed at all. The impugned order of the CIT(A) is set aside and the matter is restored to the file of the Assessing Officer with a direction that the AO will assess the income of the assessee under different heads as per the provisions of the Act, after considering the submissions of the assessee in this respect and after giving adequate and proper opportunity to the assessee to present his case and necessary details and evidences. It is made clear that the Assessing Officer will not be influenced by the fact that the assessee himself has offered/returned any of the receipts/income under wrong head or has himself offered higher taxes in respect of certain income. The Assessing Officer will determine the true and correct income of the assessee under different heads as per the provisions of the Act. The appeal of the assessee is treated as allowed for statistical purposes.

Summary

Issues Involved:
1. Misinterpretation of Section 44AD
2. Addition of Rs. 6,91,748/- as commission income
3. Addition of Rs. 6,20,100/- as unexplained money under Section 69A
4. Double addition of income already offered for taxation
5. Allowing modifications in grounds of appeal

Detailed Analysis:

1. Misinterpretation of Section 44AD:
The assessee challenged the CIT(A)'s interpretation of Section 44AD, arguing that the exclusionary clause does not restrict business transactions such as commission from real estate business and trading in equities and derivatives. The assessee contended that fiscal statutes must be construed strictly and a wider meaning should be given unless specifically excluded.

2. Addition of Rs. 6,91,748/- as Commission Income:
The Assessing Officer (AO) added Rs. 6,91,748/- to the income, observing that commission income was outside the purview of Section 44AD. The AO also noted that the assessee failed to establish a commission agency business, treating the income as unaccounted money under Section 69A read with Section 115BBE. The CIT(A) upheld this view, stating that commission income and business from trading in Futures and Options (F&O) were not covered under Section 44AD due to the need for books to determine profit/loss from derivative transactions.

3. Addition of Rs. 6,20,100/- as Unexplained Money under Section 69A:
The AO rejected the assessee's plea regarding the surrender of unclaimed loans amounting to Rs. 6,20,100/- (unsecured loans taken in FY 2008-09) and added it as unaccounted money under Section 69A read with Section 115BBE. The assessee argued that these were capital receipts not liable to tax and, if taxable, should be taxed in the year of receipt (FY 2008-09).

4. Double Addition of Income Already Offered for Taxation:
The assessee contended that the income already offered for taxation was not given credit, resulting in double addition. The AO had ignored receipts from trading in F&O and sale of property, which should have been taxed under different heads, not under Section 44AD.

5. Allowing Modifications in Grounds of Appeal:
The assessee sought permission to allow any addition, modification, deletion, or amendment in the grounds of appeal before the disposal of the appeal in the interest of substantial justice.

Tribunal's Findings:

1. Misinterpretation of Section 44AD:
The Tribunal noted that the AO had adopted a pick-and-choose manner, excluding income where tax liability increased but not assessing other receipts under relevant heads. The AO should help the assessee compute and assess the true taxable income, not punish for bona fide mistakes.

2. Addition of Rs. 6,91,748/- as Commission Income:
The Tribunal found that the AO had selectively excluded commission income and unsecured loans while ignoring other receipts. The AO should assess income under different heads as per the Act's provisions, considering the assessee's submissions and providing adequate opportunity.

3. Addition of Rs. 6,20,100/- as Unexplained Money under Section 69A:
The Tribunal directed the AO to assess the income under different heads, considering the assessee's submissions and evidences. The AO should not be influenced by the assessee's mistakes in offering higher taxes or wrong heads.

4. Double Addition of Income Already Offered for Taxation:
The Tribunal highlighted that the AO should assess the true income under different heads, ensuring no double addition. The AO should consider losses from F&O trading and receipts from property sales under appropriate heads.

5. Allowing Modifications in Grounds of Appeal:
The Tribunal allowed the assessee's appeal for statistical purposes, directing the AO to reassess the income under different heads as per the Act's provisions.

Conclusion:
The Tribunal set aside the CIT(A)'s order and restored the matter to the AO for de novo assessment, directing the AO to assess the income under different heads as per the Act's provisions, considering the assessee's submissions and evidences. The AO should ensure no double addition and assess the true taxable income.