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Facts
The Revenue filed appeals against orders of the CIT(A) for AY 2019-20, 2020-21, and 2022-23. The appeals concerned the treatment of certain amounts as unexplained investment under Section 69 r.w.s. 115BBE, which the CIT(A) directed to be treated as business income.
Held
The Tribunal held that the CIT(A) rightly applied previous decisions of the Tribunal in the assessee's own case. The Tribunal agreed that the additions made by the Assessing Officer were not sustainable and should be treated as business income, and that separate additions for interest/commission income and miscellaneous receipts were not maintainable.
Key Issues
Whether the amounts identified through peak credit working should be treated as unexplained investment or business income, and whether interest/commission income and miscellaneous receipts should be taxed separately or be part of the business income.
Sections Cited
69, 115BBE, 148, 143(2), 142(1), 139(1)
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Before: Shri S.S. Viswanethra Ravi & Shri Jagadish
O R D E R
PER S.S. VISWANETHRA RAVI, JUDICIAL MEMBER:
These three appeals filed by the Revenue are directed against separate orders all dated 21.08.2024 passed by the ld. Commissioner of Income Tax (Appeals) -19, Chennai for the assessment year 2019-20, 2020-21 and 2022-23.
Since issues raised in these appeals are similar based on the same identical facts, with the consent of both the parties, we proceed to hear the appeals together and pass consolidated order for the sake of convenience.
First, we shall take up appeal in for AY 2019-20 for adjudication.
Ground No. 1 raised by the Appellant-Revenue is general in nature and requires no adjudication.
Ground No. 2, 2.1, 2.2 & 2.3 raised by the Appellant-Revenue in challenging the action of the ld. CIT(A) in directing the Assessing Officer to treat ₹.1,01,04,800/-, ₹.37,74,839/- and ₹.99,43,032/- as business income as against the additions as unexplained investment under section 69 r.w.s. 115BBE of the Income Tax Act, 1961 [“Act” in short] for the AYs 2019-20, 2020-21 and 2022-23 respectively.
At the outset, we note that the assessee company filed its return of income admitting total income of 80,04,120/-. After recording reasons for reopening, the Assessing Officer issued notice under section 148 of the Act on 17.03.2023. In response to the said notice, the assessee filed return of income admitting total income of ₹.1,81,08,920/-. Subsequently, notice under section 143(2) of the Act was issued on 14.06.2023, further notice under section 142(1) of the Act was also issued on 11.08.2023 calling for various details. According to the Assessing Officer, during the course of search proceedings, some note books were found and seized and on an examination of such seized materials, the Assessing Officer found that the finance syndicate in which the assessee, i.e., Shri N.C. Jain, Shri Bharat Kumar Dugar & Shri Arun Kumar Jain were a part of, have advanced loans to the tune of ₹.55,40,65,000/- during the financial years 2018-19 to 2021-22 out of which ₹.5,64,97,000/- was during the financial year 2019-20 [we find FY is 2018-19, but not 2019-20, see chart in para 3 of the assessment order]. On being confronted with the assessee, the assessee filed his reply and the same is reproduced at pages 2 & 3 of the assessment order. From the reply of the assessee, the Assessing Officer noted that the assessee could not identify the details of the investors from whom the funds were received. The assessee explained that the loans advanced of ₹.55,40,65,000/- were out of the interest and repayment of loans received during the financial years under consideration. The assessee had submitted that since the entries are maintained in the same notebook, the inflows and outflows recorded can be related and requested that the peak credit theory should be applied for arriving at the loans advanced out of the unexplained income during the financial years under consideration. In support of the same, the working for the peak credit considering all payments and receipts being the interest receipts, miscellaneous receipts, repayments made by the borrowers, loans advanced, repayments made to the investors, excess payments made to the investors and the miscellaneous withdrawals furnished is tabulated as under: F.Y. Peak credit Amount of unaccounted income 2018-19 1,01,04,800 1,01,04,800 2019-20 1,38,79,639 37,74,839 2020-21 3,39,69,639 2,00,90,000 2021-22 4,39,12,671 99,43,032 7. The Assessing Officer show-caused the assessee vide notice dated 24.08.2023 as to why a sum of ₹.1,01,04,800/- should not be treated as unexplained investment for AY 2019-20 by application of peak credit theory which was used to bring to tax unexplained investment for the AY 2021-22. After considering the submissions of the assessee and in view of the provisions of section 69 of the Act and since the assessee could not explain the source for the maximum outstanding loan of ₹.1,01,04,800/-, the Assessing Officer treated the same as unexplained investment under section 69 r.w.s. 115BBE of the Act for the AY 2019-20.
The assessee carried the matter in appeal before the ld. CIT(A). After considering the submissions of the assessee and by following the decision of the Tribunal in assessee’s own case in dated 08.08.2024 for AY 2021-22, the ld. CIT(A) held that the income is the business income of the assessee and to be taxed under normal provisions and deleted the addition made by the Assessing Officer by observing as under: 6.3.12 The Appellant has worked out his undisclosed business income based upon the Peak Credit and admitted the same in the return of income filed, the search team was also not able to find any other incriminating material indicating that the Appellant is in receipt of any other income. The AO also has not made any findings upon this issue. 6.3.13 At this juncture, it is appropriate to bring on record that the undersigned while disposing the appeal in the case of the appellant vide Appellate order u/s 250(6) of the Act dated 08.09.2023 for the AY 2021-22 has categorically held that the income is the business income of the appellant and to be taxed under normal provisions and allowed the grounds of appeal. Further, the jurisdictional tribunal while disposing the appeal of the revenue against the above appellate order in its order in dated 08.08.2024 confirmed the stand of the undersigned in treating the undisclosed income as business income and thereby dismissed the revenue appeal, 6.3.14 In view of the above discussions and various judicial decisions relied upon, the undersigned is of the view that the action of the AO to treat the undisclosed income as unexplained u/s 69 of the Act is not sustainable. Accordingly, the grounds raised
by the appellant upon this issue are treated as allowed and the AO is hereby directed to treat the amount of Rs 1,01,04,800/-, Rs. 37 74,839/- & Rs.99,43,032/-for the AY(s) 2019-20, 2020- 21 & 2022-23 as unaccounted business receipts of the Appellant and tax the same as business income of the Appellant.
9. Aggrieved by the impugned order, the Appellant Revenue is in appeal before the Tribunal.
The ld. DR Ms. R. Anita, Addl. CIT strongly supported the order passed by the Assessing Officer in deeming the said unexplained investments to be the income of the assessee under section 69 of the Act and pleaded to uphold the order of the Assessing Officer by filing written submissions. The relevant portions of the written submissions of the ld. DR are reproduced as under: Item 1 Unexplained Investments u/s 69 of the Act 2 The learned AO while accepting the peak credit working of outstanding loan Rs.1,01,04,800/- for which the source could not be explained by the assessee treated the said amount as unexplained investment u/s 69 of the Act as against the said income offered by the assessee as Business Income. Now, it may be pertinent to note that the issue under consideration is with respect to the sources for the amount of loans extended by the assessee during the year and assessee by its own submission has admitted that this amount of Rs. 1,01,04,800/- arrived at based on peak credit working represents income from loan debtors who are not known. Section 69 of the Income Tax Act is reproduced below: Where in the financial year immediately preceding the assessment year the assessee has made investments which are 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 the investments or the explanation offered by him is not, in the opinion of the [Assessing] Officer, satisfactory, the value of the investments may be deemed to be the income of the assessee of such financial year". As noted above, it is assessee's own submission that the loan investments as found in the seized documents are not recorded in the books of accounts maintained. It is also assessee's own admission that for the amount arrived as peak credit. assessee could not explain the source from which the said amount has been received acknowledging the said facts by declaring the said income to have been received from unknown loan debtors. Admitting the said amount arrived at by peak credit as the income / interest arising out of finance business would not absolve the responsibility of assessee for explaining the sources for the loans advanced.
The ld. AR Shri R. Venkata Raman, C.A. strongly supported the order passed by the ld. CIT(A). By placing reliance on the decision of the Tribunal in assessee’s own case for the AY 2021-22 in dated 08.08.2023, the ld. DR submits that the ld. CiT(A) followed the above decision of the Tribunal and the same may be sustained.
We have heard both the parties and perused the materials available on record. On perusal of the assessment order, we note that the assessee admitted total income of ₹.1,81,08,920/- against the notice issued under section 148 of the Act as against the returned income of ₹.80,04,120/- as per original return of income filed under section 139(1) of the Act. While offering an amount of ₹.1.01.04,800/- for the year as per peak credit working, assessee submitted that since no regular books of account were maintained for the transactions which were noted by the assessee as per the impounded document found during the search, assessee submits that a cash flow statement of the investments was prepared in order to arrive at the investors peak credit and the resultant additional income has been admitted after considering the omission and commission in not maintaining proper books of accounts for the transactions found recorded in the seized document. The Assessing Officer treated the outstanding loan of ₹.1,01,04,800/- as unexplained investment under section 69 r.w.s. 115BBE of the Act. On perusal of the impugned order we note that the ld. CIT(A), by following the decision of the Tribunal in assessee’s own case for the AY 2021-22 in dated 08.08.2024, directed the Assessing Officer to delete the addition and treat the same as business income of the assessee. We have also perused the case law relied on in the impugned order in assessee’s own case for AY 2021-22, wherein, the Coordinate Benches of the Tribunal has observed and held as under: 5. It is crystal clear that the impugned additions are made on the basis of certain notebooks found during the course of search. These notebooks exclusively contain the receipts and expenditure of finance business as carried on by the assessee. It is quite apparent that the assessee has no other source of income since there is no material to that effect on record. On the basis of notings made in the notebook, the assessee worked out peak credit and computed undisclosed income of Rs.200.90 Lacs. The assessee has already offered additional business income of Rs.200 Lacs in the return of income. By considering the undisputed fact that the only source of income for the assessee is income from finance business, the said peak credit has to be treated as business income only and the same could not be assessed as income from other sources u/s 69. Therefore, we concur with the finding of Ld. CIT(A) that the amount of Rs.200.90 Lacs would be considered as business income only. The impugned order, to that extent, stands confirmed.
The ld. DR could not controvert the above findings of the Tribunal. Thus, we find that the ld. CIT(A) rightly applied the above decision of the Tribunal in assessee’s own case for AY 2021-22 and held that the income is business income and the same is justified. Accordingly, the grounds No. 2, 2.1 & 2.2) raised by the Appellant – Revenue are dismissed.
Ground No. 3 (3.1 to 3.2) raised by the Appellant-Revenue in challenging the action of the ld. CIT(A) in deleting the addition made towards unaccounted interest income and miscellaneous receipts as quantified from the seized note books.
On perusal of the seized materials, the Assessing Officer found that the assessee has received interest and commission from the borrowers at ₹.2,07,84,200/-, besides miscellaneous receipts to the tune of ₹.26,03,900/- during the FY 2018-19 relevant to the AY 2019-20. After considering the submissions of the assessee, the Assessing Officer treated the interest receipts of ₹.2,07,84,200/- as additional interest income from the total loans advanced by the assessee and accordingly added to the total income of the assessee. So far as miscellaneous receipts of ₹.26,03,900/- are concerned, by rejecting the submissions of the assessee, the Assessing Officer observed that though the unexplained investments on account of cash loans received and cash loans given has been quantified by resorting to the peak credit method, but, the miscellaneous income generated during the year is income accruing to the assessee from the loan transactions undertaken by it and is required to be separately brought to tax as income for the year under consideration and accordingly, added the same to the total income of the assessee. On appeal, by following the decision of the Tribunal in assessee’s own case in dated 08.08.2024 for AY 2021-22, the ld. CIT(A) directed the Assessing Officer to delete the additions made towards interest income receipts and miscellaneous receipts by observing as under: 6.4.2 The Appellant while computing Peak Credit has taken into consideration all the payments and receipts in the nature of the interest, miscellaneous receipts, repayments made by the borrowers, loans advanced repayments, made to the investors, excess payments made to the investors and the miscellaneous withdrawals. The Appellant has submitted the details of detailed working of the Peak Credit during the course of Appellate Proceedings. While examining the workings submitted by the Appellant, it has been found that the appellant has taken into account all the receipts and payments transacted by the Appellant. 6.4.3 Since the interest earned and other miscellaneous receipts have been accounted and embedded while computing the Peak Credit which has been accepted by the AO, making additions on the same interest and other miscellaneous receipts would naturally amount to taxing the same income twice which is against the basic principles of taxation. The undersigned on the same facts and circumstances has allowed the grounds of appeal raised by the appellant upon this issue vide Appellate order u/s 250(6) of the Act dated 08.09.2023 for the AY 2021-22 and the jurisdictional tribunal while disposing the appeal of the revenue against the above appellate order vide its order in dated 08.08.2024 concurred the decision of the undersigned in deleting the addition(s) made as unaccounted interest and unaccounted miscellaneous receipts and dismissed the revenue appeal. As the facts and circumstances relating to the addition(s) made remain the same, the various grounds raised
by the Appellant upon these issues are hereby treated as allowed and the AO is hereby directed to delete the additions of Rs. 2,07,84,200/-, Rs.1,41,10,814/- & Rs.1,44,36,982/- as interest income and the amount(s) of Rs.26,03,900/-, Rs.23,36,475/- & Rs.9,69,000/- as miscellaneous receipts for the AY(s) 2019-20, 2020-21 & 2022-23 respectively.
16. Before us, the ld. DR filed written submissions and the contents are reproduced hereinbelow: Item 2: interest Income of Rs. 2,07,54,200/- the Miscellaneous receipts of Rs. 26,03,900/-brought to tax separately by the AO. 4 The assessee while arriving at the peak credit of Rs. 1,01,04,800/- and offering the same as undisclosed interest income earned for the year submitted as follows:
“The entire investor transactions as recorded wiz investor receipts, interest receipts miscellaneous receipts, repayments made by the borrower, bans advanced, repayments made to investors and miscellaneous withdrawals have been considered as business income while arriving at the peak credit of Rs. 1,01,04,800/- for the AY 2019- 20 and the same is considered as business Income. Hence, it is submitted that no income is admitted separately under the heads interest and also towards miscellaneous receipts found recorded in the seized documents."
5 During the course of hearing, in support of above submission, the appellant counsel submitted that as against the total interest/commission/ miscellaneous receipts to an extent of Rs. 2,33,88,100/- (interest income of Rs. 2,07,84,200/- and miscellaneous receipts of Rs. 26,03,900/-) received as income as per the seized documents, the undisclosed income offered of Rs. 1,01,04,800/- is the net income after claiming expenses on the above receipts of Rs. 2,33,88.100/-. Assessee counsel submitted the details of interest expenses and miscellaneous expenses embedded in the peak credit workings. The interest expense therein is to an extent of Rs. 36,71,350/- and miscellaneous expenses stands at Rs 1,27,75,750/- and hence that the income offered is on the higher side in this regard, is submitted that a perusal of the miscellaneous expenses embedded in the peak credit workings reveals that the bulk of the amount appearing therein are in the nature of personal expenses like home, medical expenses, purchases, fees paid for children etc and not incurred for the purposes of business. Hence for want of establishment with evidences, the fact that the said expenditures have been incurred for the purpose of business, the addition made by the AO of interest income and miscellaneous receipts appearing in the seized documents and not accounted by the assessee need to be sustained. It is also to be noted that for the year under consideration, while offering the additional income of Rs. 1,01,04,800/- in the revised return of income submitted consequent search, against the said income offered, assessee has claimed an enhanced interest expense of Rs. 47,77,699/- and hence the resultant income offered consequent to search as per peak credit working is only Rs. 53,27,101/- and not Rs. 1,01,04,800/-.
Asst. Original Return of Income Revised return of income consequent Difference Year to search Commission Interest Miscell- Commission Interest Miscell- Commission Interest Miscell- & interest expenses aneous & interest expenses aneous & interest expenses aneous income expenses income expenses income expenses 2019- 2,41,52,964 1,41,46,235 27,24,923 3,42,57,764 1,89,23,934 25,24,922 1,01,04,800 47,77,699 -(2,00,001) 20
In addition, the assessee counsel also submitted a working where-in the interest Income was excluded from the peak credit working and the figures arrived at are follows:
FY Peak credit without interest income 2018-19 Rs. 80,82,400/- While assessee arrived at a lesser peak credit of Rs.80,82,400/- for the year under consideration for which sources could not be explained by the assessee, the appellant counsel submitted that a higher peak credit has been offered to tax already it is the submission of the revenue that the above said workings defies logic and hence the addition made by the AO is to be upheld.
The ld. AR strongly supported the order passed by the ld. CIT(A).
Having heard both the parties, we note that the issue involved in this appeal is squarely covered by the decision of the Tribunal in assessee’s own case for the assessment year 2021-22, wherein, the Tribunal has observed as under: 6. It is another fact that the peak credit has been worked out by considering all the transactions of receipts and expenditure whatsoever including interest income, commission income and misc. receipts and therefore, separate addition thereof would amount to taxing the same amount twice. The Ld. Sr. DR has asserted that interest income has to be separately assessed and the same would not form part of peak credit working. To controvert the same, the Ld. AR placed on record peak credit working by excluding these receipts and demonstrated that if these items are excluded, there would, in fact, be no peak credit and the additions as sustained in the assessment order would be much more than interest/ commission income and misc. receipts of Rs.169.12 Lacs. The same was confronted to the revenue and Ld. AO, vide letter dated 21-05-2024, has reiterated that interest / commissions income and misc. receipts are to be brought to tax separately. Even if this stand of revenue is to be considered then these items are to be excluded from peak credit working and in such a case, there would be no peak credit and the impugned additions would only be Rs.169.12 Lacs which are much less than the addition of Rs.200.90 Lacs as made in the assessment order. Therefore, we confirm the stand of Ld. CIT(A) in deleting these additions. 7. In nutshell, the income of Rs.200.90 Lacs would be sustained as business income. The separate addition on account of interest /commission income and misc. receipts has rightly been deleted. The adjudication of Ld. CIT(A) does not require any interference on our part.
The ld. DR Ms. R. Anita, Addl. CIT could not controvert the above findings of the Tribunal. But, however, she submits that the interest/ commission and miscellaneous receipts are to be assessed separately and in no way are part of peak credit. We find this stand of Revenue was considered by the Tribunal in assessee’s own case for AY 2020-21, the finding of which reproduced hereinabove, wherein, it is noted that if this stand of revenue is to be considered then interest/ commission income and miscellaneous receipts are to be excluded from the peak credit working and in such situation, there would be no peak credit. Therefore, we find the set of arguments advanced by the ld. DR was already considered by the Tribunal and held the separate addition made on account of interest/commission income and miscellaneous receipts are not maintainable and deleted accordingly. Thus, we find that the ld. CIT(A) rightly applied the above decision of the Tribunal in assessee’s own case for AY 2021-22 and directed the Assessing Officer to delete the additions made towards interest income earned and miscellaneous receipts and the same is justified. Accordingly, the grounds No. 3, 3.1 & 3.2 raised by the Appellant – Revenue are dismissed.
– AY 2020-21 20. Ground No. 1 raised by the Appellant-Revenue is general in nature and requires no adjudication.
Ground No. 2, 2.1, 2.2 & 2.3 raised by the Appellant-Revenue in challenging the action of the ld. CIT(A) in directing the Assessing Officer to assessee ₹.1,01,04,800/-, ₹.37,74,839/- and ₹.99,43,032/- as business income as against the additions made by the Assessing Officer as unexplained investment under section 69 r.w.s. 115BBE of the Income Tax Act, 1961 [“Act” in short] for the AYs 2019-20, 2020-21 and 2022-23 respectively.
We find the issues in AY 2020-21 are similar to the facts and circumstances relevant to AY 2019-20 in wherein, we have sustained the order of the ld. CIT(A) hereinabove at para 13 and dismissed the grounds raised by the Revenue, therefore, we hold our findings would be equally applicable to the assessment year under consideration. Thus, the grounds raised by the Revenue for AY 2020-21 are dismissed.
Ground No. 3, 3.1 & 3.2 raised by the Appellant-Revenue in challenging the action of the ld. CIT(A) in deleting the addition made towards unaccounted interest income and miscellaneous receipts as quantified from the seized note books.
We find the issues in AY 2020-21 are similar to the facts and circumstances relevant to AY 2019-20 in wherein, we have sustained the order of the ld. CIT(A) hereinabove at para 19 and dismissed the grounds raised by the Revenue, therefore, we hold our findings would be equally applicable to the assessment year under consideration. Thus, the grounds raised by the Revenue for AY 2020-21 are dismissed.
AY 2022-23 25. Ground No. 1 raised by the Appellant-Revenue is general in nature and requires no adjudication.
Ground No. 2, 2.1, 2.2 & 2.3 raised by the Appellant-Revenue in challenging the action of the ld. CIT(A) in directing the Assessing Officer to assessee ₹.1,01,04,800/-, ₹.37,74,839/- and ₹.99,43,032/- as business income as against the additions made by the Assessing Officer as unexplained investment under section 69 r.w.s. 115BBE of the Income Tax Act, 1961 [“Act” in short] for the AYs 2019-20, 2020-21 and 2022-23 respectively.
We find the issues in AY 2022-23 are similar to the facts and circumstances relevant to AY 2019-20 in wherein, we have sustained the order of the ld. CIT(A) hereinabove at para 13 and dismissed the grounds raised by the Revenue, therefore, we hold our findings would be equally applicable to the assessment year under consideration. Thus, the grounds raised by the Revenue for AY 2020-21 are dismissed.
Ground No. 3, 3.1 & 3.2 raised by the Appellant-Revenue in challenging the action of the ld. CIT(A) in deleting the addition made towards unaccounted interest income and miscellaneous receipts as quantified from the seized note books.
We find the issues in AY 2022-23 are similar to the facts and circumstances relevant to AY 2019-20 in wherein, we have sustained the order of the ld. CIT(A) hereinabove at para 19 and dismissed the grounds raised by the Revenue, therefore, we hold our findings would be equally applicable to the assessment year under consideration. Thus, the grounds raised by the Revenue for AY 2020-21 are dismissed.
In the result, all the appeals filed by the Revenue for the AY 2019- 20, 2020-21 and 2022-23 are dismissed. Order pronounced on 09th April, 2025 at Chennai.