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TMI Blog2022 (10) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... on of law as proposed by the Revenue arises in this appeal. - Income Tax Appeal No. 80 of 2022 - - - Dated:- 13-10-2022 - Hon'ble Shri Justice Sheel Nagu And Hon'ble Shri Justice Dwarka Dhish Bansal For the Petitioner : Shri Sanjay Lal-Advocate ORDER The present appeal has been preferred by the Revenue under Section 260(A) of the Income Tax Act, 1961 assailing the order dtd. 04.10.2021 passed by the Income Tax Appellate Tribunal, Indore in IT(SS)A No.61/IND/2019. 2. In short the facts are that the respondent/assessee firm is engaged in the business of real estate. Upon search and seizure operation conducted u/s 132 of the IT Act, 1961, the assessment order was passed on 28.12.2017 under section 153C r/w section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 147, section 148, section 149, section 151 and section 153, where the Assessing Officer is satisfied that,- (a) any money, bullion, jewellery or other valuable article or thing, seized or requisitioned, belongs to; or (b) any books of account or documents, seized or requisitioned, pertains or pertain to, or any information contained therein, relates to, a person other than the person referred to in section 153A, then, the books of account or documents or assets, seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed against each such other person and issue notice and assess or reassess the income of the other person in accordanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment or reassessment has abated. (2) Where books of account or documents or assets seized or requisitioned as referred to in sub-section (1) has or have been received by the Assessing Officer having jurisdiction over such other person after the due date for furnishing the return of income for the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A and in respect of such assessment year- (a) no return of income has been furnished by such other person and no notice under sub-section (1) of section 142 has been issued to him, or (b) a return of income has been furnished by such other person but no notice under sub-section (2) of section 143 has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of survey under the head income from other sources as against taxability of such income by invoking of the provisions of section 69B of the Act. We find that the Ld. CIT(A) observed as follows: I have considered the facts of the case plea raised by the appellant and assessment order. It is an undisputed facts the appellant has made disclosure of additional income of Rs. 2,95,00,000/- on account of construction material and the same was also shown while filing return of income for AY 2016-17. The AO has made reclassification of income of the assessee simply relying to the provisions of section 69B. I find it necessary to quote the provisions of section 69B which states as under:- 69B. Where in any financial year the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , jewellery or valuable articles; (ii) Based on the material facts, the AO finds that the amount expended on such investment actually exceeds the amount recorded in the books of account (iii) The assessee either offers no explanation about the nature and source of investment or the explanation offered is not satisfaction in the opinion of the AO; (iv) The satisfaction of the AO can not be arbitrary and subjection but has to be based on the relevant material. The investment made by the assessee have been duly shown in the books of account and the findings of the AO are arbitrary and not subjective and are also not based on relevant material. The AO ought to have stressed upon some independent and arbitrary material which could es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return of income. Therefore, appeal on this ground is Allowed. 47. The above detailed finding of Ld. CIT(A) has not been controverted by the Ld. DR by bringing any contrary material on record. The facts discussed above squarely reveal that the assessee made voluntary disclosure of undisclosed investment in construction to the tune of Rs.2,95,00,000/- in AY 2016-17 which was also offered for tax while filing return of income for AY 2016-17. The assessee contended that provisions of section 69B of the Act would not be applicable since it was not found in possession of any bullion, jewellery or other valuable article as stated u/s 69B of the Act. The Ld. Assessing Officer also did not specifically comment whether the additional income de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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