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TMI Blog2023 (4) TMI 1405X X X X Extracts X X X X X X X X Extracts X X X X ..... isfaction of the Assessing Officer, but the assessee has not filed any detail, what to talk about the satisfaction of the AO. In our considered view and under the given facts and circumstances of the case, the alleged income of Rs. 85 lakhs i.e. Rs. 50 lakhs in the hands of Shri. Sumermal Kanthilal Jain and Rs. 35 lakhs in the hands of Shri. Goutham Chand Jain, shown under the head income from other source has rightly being treated by both lower authorities as unexplained money u/s. 69A. Since, we have held that the alleged income is an income u/s. 69A of the Act, then automatically provisions of section 115BBE of the Act will be invoked and therefore, grounds raised on this issue are decided against the assessee. Cash belongs to the income tax assessee family members living in the same residence as a joint family - As we fail to find any merit in this ground. The situation of the assessee is like sailing on two boats which is always very risky and thus, never advisable. Though, during the course of survey, assessee has stated both the reasons but then the assessee(s) should have stick to one reason. If they had taken the route that the cash belongs to all the family members, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not provided any opportunity and has merely made the addition without issuing a show-cause notice or a 2° hearing, (iv) The Learned CIT(A) has also failed to adjudicate grounds raised in the Appeal. Cash already Recorded in Books - Addition_uls 69A Bad In Law: (v) Without Prejudice to the above, the Learned AO/CIT(A) should have noted that the Appellant has fully recorded the commission receipts earned in the books of accounts and has also offered the same to tax. (vi) The Learned AO/CIT(A) failed to note that addition u/s 69A can only be made when Cash/Assets are not recorded in the books of accounts. (vii) The Order of Learned AO/CIT(A) is opposed to the very basis of Section 69A, which is meant only for Unexplained Assets not recorded in the Books of Accounts. Cash Of Family Members Living In The Same Residence Not Considered - Only Excess Cash to be Added (viii) Without prejudice to the above, the Learned AO/CIT(A) has failed to consider that the Appellant lives in a joint-family and all residents have kept their cash in safekeeping in the same house. (ix) The Learned AO/CIT(A) ignored the submission of the Appellant presented during the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed as income u/s. 69A of the Act. An alternate argument was also taken that the assessee lives in a joint family, where there are 17 income tax assessees and the cash seized during the search belongs to all the family members. The reference was also made to the names of 17 family members and cash recorded in their books of accounts. However, submission made by the assessee did not satisfy the ld. CIT(A) and he observed that the assessee has miserably failed to furnish the details of the commission income, if any earned during the year and the activity undertaken by him to earn such income and in absence of such details, the ld. AO has rightly held it to be unaccounted cash u/s. 69A of the Act. In so far as, alternate plea of the assessee that the cash belongs to various family members, ld. CIT(A) did not touch upon this issue, since the assessee(s) sumoto has offered the income in the return filed in compliance to notice u/s. 153A of the Act. 5. On the other hand ld. Departmental Representative vehemently argued supporting the findings of both the lower authorities. 6. We have heard the rival contentions and perused the records placed before us. We observe that in the course o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as sufficient opportunity was given by both the lower authorities. 9. So far as, second fold of contention is concerned that ld. AO erred in treating the income from other source as unexplained income u/s. 69A of the Act and proceeding ahead to tax the alleged income u/s. 115BBE of the Act, we will first go through the provisions of section 69A and section 115BBE of the Act for the sake of examining the instant case. Section 69A of the Act: Where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and such money, bullion, jewellery or valuable article is not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of acquisition of the money, bullion, jewellery or other valuable article, or the explanation offered by him is not, in the opinion of the 4 Assessing] Officer, satisfactory, the money and the value of the bullion, jewellery or other valuable article may be deemed to be the income of the assessee for such financial year.] Section 115BE of the Act: (1) Where the total income of an assessee,- (a) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has not shown it as business income, but as income from other source. Now, even if this is shown as income from other source, ld. AO is within his jurisdiction to call for the source of said income, because, the assessee in order to avoid from falling under provisions of section 69A of the Act is bound to explain the source of such income which was admitted to be not recorded in the books and was expressly conveyed as undisclosed income. Even at that stage, assessee had all fair chances to explain the source of said commission income. Assessee(s) were required to furnish documentary evidence in support of its claim that it had earned commission income and also to show that what was the activity carried out by them by which they earned commission income. Though, they may not have filed contracts or agreement for earning such income, but basic details are must that commission income was received from which parties and what was the basis of calculating the commission income and also what was the activity undertaken by the assessee. 11. It is not in dispute that at any stage i.e., before the Assessing Officer, before the ld. CIT(A) nor even before us, there is no iota of evi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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