KOLHAPUR TIMBER AND FURNITURE MART,KOLHAPUR vs. ACIT, CENTRAL CIRCLE, KOLHAPUR

6. Appellant prays to cancel the levy of interest charged u/s 234.

7. Appellant prays to add, alter, amend, modify and/or withdraw the ground.”

On the same day Tentative Trading Account was drawn estimating Gross Profit @13% arriving at stock value at Rs.6,75,033/- and difference is arrived at Rs.50,05,145/- 3) In Question 20 and reply thereto, Assessee agreed to offer the same as his regular Business Income, said Question and reply is reproduced for ready reference. "Q.No.20: On going through the tentative Trading Account in respect of Kolhapur Timber and Furniture Mart, it is seen the stock as on 12/02/2019 is at Rs.6,75,033/- whereas the stock as per the Inventories recorded by the survey party totals to Rs 56,80,178/-. Thus, there is a difference of Rs.50,05,145/-. Please explain the difference. Ans: The excess Stock found of Rs.50,05,145/- at the business and godown premises during the survey is not separately and clearly identifiable but is a mixed part of lots of stock found at the business and godown premises which includes other regular stock also. The resultant difference in stock may be on account of various reasons. However, to cover up the irregularities, the resultant so- called difference in stock worked out on the basis of tentative Trading Account is offered to tax as our regular Business Income over and above current year's (l.e.A.Y.2019-20] Normal Income." Assessing Officer has reproduced the same in Para 3 of the Order. IT WILL BE SEEN AND NOTED THAT SURVEY PARTY OFFICER ACCEPTED IT AS BUSINESS INCOME, SURVEY PARTY DID NOT EVEN QUESTION SAYING WHY IT SHOULD NOT BE ASSESSED U/S69, 69A, APPLYING 115BBE. 4) Admittedly, Assessee has not maintained Stock record nor it is practicable to maintain considering very small and number of items and every year Profit is arrived at on estimated Gross Profit and taking balancing figure as stock. 5) Assessing Officer and Survey party has accepted valuation from identified purchase Bill. The nature of Business is such that after full sheet of Timber, Rubber: Ply or other material is taken as cost for Deciding/Quoting Sale price, But actually pieces and parts remains which are used, that Leaves/remains and same wherever possible is used, avoiding cutting New Sheet and Because of estimated Gross Profit method is followed, consequently there is suppression of Profit in Return filed. As such excess stock is formed as a result of suppression of Profit; Therefore, slightly declared as Business Income. There was no other incriminating document, evidence was found or Assessing Officer has not brought anything on record, nor so alleged, on to any other source of Income of the Firm, or any proof of unaccounted purchases. Assessee has rightly offered the said amount of Rs.50,05,145/- as Business Income, in the return filed and as agreed to in statement recorded. 6) Submissions were made Assessing Officer and CIT(A) that said alleged excess Stock is nothing but accumulated suppressed Business Profit because of estimated Gross Profit method having adopted for earlier years and accepted by Department. 7) However, Assessing Officer applied provisions of Sec.68 - Page 3 of the order and Computation applying Tax rate u/s115BBE. Section 68 has no application as it's not a case of Cash Credit and alleged excess Stock Source is explained. Before CIT(A), Assessee made Submission that It's a Business Income and Provisions of Sec. 115BBE is not applicable, also placed reliance on Jurisdictional Pune ITAT decision, However CIT(A) confirmed addition u/s68 r.w.s.115BBE. Pune ITAT following Rajasthan, High Court decision in the case of Bajargan Traders, 86 Taxmann 295 (Raj) is consistently followed. 8) Appellant is placing reliance on Pune ITAT latest decision in the case of DCIT Vs Vaishali Agrosoya Products - dated 11/09/2024, where in such excess Stock found in Survey is assessed of Rs. 7 Crore is held as Business Income and Sec.115BBE is not applicable. 9) ALSO, ASHOK KRIPLANI VS. ACIT Central, ITA No.252/253/PUN/2023, For A.Y.2018-19, Dated 03/07/2023. 10) Also decision in the case of Rajiv Shiram Gundale, Vs ACIT -ITA No.81/PUN/2023 for AY 2019-20 dated 03/08/2023. 11) Appellant also relies on the decision of Indore Bench in the Case of M/s Suresh Aluminium Vs ACIT - ITA No. 62/IND/2024 Α.Υ.2019-20 dated 09/08/2024 (Copy enclosed at Page 63 to 70 of Page Book) Facts of Appellant's case and Facts of the Indore Bench Case are quite identical. (Para 6.6) 12) Govind Gidomal Lulla Vs. CIT(A) Mumbai. ITA No.2285/MUM/2022 Dated 11/04/2023. 13) ACIT-Central Vs. Shri Anoop Neema, Indore ITA No.05/IND/2020 A.Y.2017-18 Dated 06/01/2022.”

7. On the other hand, Ld. DR vehemently argued supporting the orders of both the lower authorities and stated that the alleged excess stock is to be treated as ‘unaccounted investments’ in excess stock and has been rightly treated as ‘income from other sources’ by the Assessing Officer.

10. We are thus of the considered view that the excess stock found during the course of survey is from regular business income of assessee firm having no other source of income and has been rightly disclosed at business income in the audited financial statements as well as computation of income as business income and both the learned lower authorities erred in treating it as income from other sources and further erred in invoking section 68 r.w.s. 115BBE of the Act. Under similar set of facts and circumstances, this Tribunal in plethora of decisions have consistently held that if the unexplained income is from business sources then section 115BBE cannot be invoked. We would like to reproduce below to finding of Co-ordinate Bench of Indore Tribunal in the case of M/s. Suresh Aluminium vs. ACIT vide dated 09.08.2024 and the same reads as under :- “6. I have heard rival contentions and perused the record placed before me and have carefully gone through the decisions referred and relied by both the sides. The only issue for my consideration is that whether Ld. CIT(A) erred in confirming the action of the Ld. A.O applying the provisions of Section 115BBE of the Act for taxing the surrendered income in the form of excess stock at Rs.52,25,297/- found during the course of survey u/s 133A of the Act. I observe that the assessee has accepted the excess stock and have offered it to tax and paid due taxes as per the normal provisions of Income Tax Act. Ld. A.O invoked provisions of Section 115BBE of the Act treating the surrendered income as unexplained investment and thus calculated the tax on higher rate as provided u/s 115BBE of the Act. 6.1 The question before me is whether the surrendered income is to be treated as ‘business income or as Income from other source u/s 69 of the Act’. For this the nature of surrendered income needs to be examined. Undisputedly except the physical stock taken and calculation of excess stock, no other incriminating material was found during the course of survey nor any other reference to any evidence has been made in the assessment order which could indicate that the assessee carries out any other activity or has income from any other source. Now coming to the surrender of excess stock, I note that on the day of survey physical stock was taken and as per the inventory of stock sheet placed at page 37 of paper book 6 items are mentioned and after taking the quantity and applying the rate, value of physical stock calculated at Rs.79,84,723/-. Now for calculating the excess stock, survey team has to take note of the value of stock shown in the books of accounts. Now the assessee admittedly is not maintaining the stock records. This fact is proved firstly, at the time of survey no stock record was found and secondly even in the tax audit report, auditor has not mentioned about any stock records being maintained by the assessee nor any quantitative details is appearing in Form 3CD annexed to Form 3CB. The assessee admits to be calculated the closing stock on an estimated basis applied the method cost or market value, whichever is less and taking gross profit rate into consideration. In other words the closing stock is estimated by the assessee. Now on the date of survey when the survey team noticed that assessee is not maintaining any stock records then they based on the records of opening and closing stock as well as gross turnover calculated the stock in hand as per books as on 27.02.2019 at Rs.27,59,426/- and same is referred in Question-18 in the statement recorded during the survey proceedings (copy placed at page-35 of the paper book). I find that there is no calculation by the survey team as to how they arrived at the book stock of Rs.27,59,426/-. It itself proves that survey team has estimated the stock in hand and then calculated the excess stock after reducing the value of physical stock calculated by them. Now the Ld. A.O has invoked the provisions of Section 69 of the Act which provides that “where in the financial year immediately preceding the assessment year, the assessee has made investment which are not recorded in the books of accounts, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of investment or explanation offered by him, is not in the information of the A.O, satisfactory the value of the investments may be deemed to be the income of the assessee of such financial year’. So far as the contentions of the Ld. Counsel for the assessee, it has been claimed through out the proceedings and further supported by the affidavit placed before Ld. CIT(A) that there is no unexplained investment but it is purely business income which accumulated from past period and now offered to tax. Now provisions of Section 69 of the Act comes into play when there are certain investment which are not recorded in the books of accounts but in the case of the assessee since the stock records are not maintained and they are merely estimated there is no concrete evidence of any unaccounted investment in stock. Had there been the stock records available at the time of survey and the quantitative details of the same was available in the stock records and then during the course of survey if the excess stock in quantitative form had been found then the case of the revenue could have been more stronger. 6.2 But in the instant case I observe that the assessee estimated the stock at the year end and even the revenue authority have estimated the stock in hand on survey date at Rs.27,59,426/-. But the method applied by survey team for calculating such stock and whether it was actually the stock as per books is nowhere discernable from the records. Further it is also noted that no other incriminating material was found during the survey proceedings. So in all it is purely an exercise based on estimation and there is no concrete evidence put-forth by the revenue authorities which could support their action of treating the alleged surrender as Income from other sources and not business Income for invoking Section 115BBE of the Act. 6.3 Under these given facts and circumstances I find that the alleged sum surrendered by the assessee was only to buy peace of mind and it was admittedly business income which has been offered to tax and by no canon can be treated as unexplained investment u/s 69 of the Act. Ld. CIT(A) thus erred in confirming the addition of Ld. A.O of taxing the excess income as per the provisions of Section 115BBE of the Act. Though plethora of decisions have been referred by Ld. Counsel for the assessee which supports the view taken by me, however I would like to first refer and rely to the finding of this Tribunal in the case of Italian Edibles Pvt. Ltd (supra) wherein the Tribunal referring to plethora of decisions held as under: “11. Therefore, once the facts emerging from record shows that the excess stock found during survey was a part of entire lot of stock of assessee, part of which is recorded in books of account and part of the same was not found recorded and therefore, treated as excess stock at the time of survey and consequently surrendered by the assessee and also offered to tax in the return of income then the excess stock cannot be treated as deemed income u/s 69 or 69B of the act in view of the judgment of Hon'ble Rajasthan High Court and Coordinate Bench of this Tribunal cited above. Accordingly, this issue is decided in favour of the assessee and against the revenue. The orders of the authorities below qua this issue is set aside. The assessee succeeds to this extent. Accordingly in the facts and circumstances of the case and by following the decision of this tribunal in M/s Brij Mohandas Devi Prasad (supra), we do not find any error or illegality in the impugned order of the CIT(A) same is upheld.” 6.4 Further reliance is placed on the following finding given in the decision of this Tribunal in the case of DCIT V/s Krishna Kumar Verma (supra) as under:

“7. After considering the above factual matrix of the case now we proceed to consider the proposition relied by learned representative of both the sides. The Ld. Senior DR has relied on the judgment of Punjab & Haryana High Court in the case of Kim Pharma (P.) Ltd. vs. CIT(supra) to submit that where the amount surrendered during survey was not reflected in the books of accounts and no source from where it was derived was declared by the assessee, then it is assessable as deemed income of assessee u/s. 69A of the Act and not as business income. In this case the Assessing Officer made addition of surrendered amount u/s. 69 of the Act as the assessee could not explain the source from where it was derived by the assessee. In the present case undisputedly the Assessing Officer has not made any addition u/s. 69 or any provision of the Act and has accepted return income of the assessee. In the present case we are in agreement with the contention of the learned AR that the orders of the authorities below clearly reveal that the amount of excess stock & excess cash found during the course of survey business income of the assessee as the assessee is in the business of trading in jewellery, metal of bullion and the excess stock found during the search & survey was accumulated from transaction of metal of bullion carried out in the forward community trading and mediation and the same was surrendered as excess stock and offered to taxation as business of the assessee. The Ld. CIT(DR) could not dislodge the contention and observations of the Ld. CIT(A) that the surrendered amount was pertaining to excess stock & excess cash which was business income of the assessee and such additional income offered by the assessee for taxation was nothing but business income of the assessee. Therefore it was offered for taxation under the head income from business and profession. In the present case since the assessee in his statement recorded during the course of search & survey explained that the source of excess stock was the income earned during the relevant financial period from the trading of bullion, jewellery etc. and income from Adat/dalali and regarding excess cash found in his business premises the assessee also explained that though it was not recorded in the books of accounts but it was accrued to him on account of sale of jewellery in cash and the same pertains to his business activity of trading in business of jewellery. Therefore in the present case the assessee has successfully explained the source of excess stock and excess cash found during the course of search & survey operation and surrendered during the said operation. The Ld. CIT(DR) has not disputed or controverted very factual position that the assessee filed return of income including the surrendered amount and which was acceptedby the Assessing Officer without any dispute and without making any further addition in the hands of assessee u/s. 69A or any other section of the Act. In view of above as the assessee has successfully explained and established the source of excess stock and excess cash as his business activity and of trading in jewellery and gems and activity of Adat/dalali thus the benefit of proposition rendered by Hon'ble Punjab & Haryana High Court in the case Kim Pharma (P.) Ltd. vs. Commissioner of Income Tax (supra) is not available for the department in the present case.

8. In view of forgoing discussion we reach to a logical conclusion that the Assessing Officer without making any addition u/s. 69A or any other provision of the Act has accepted returned income of the assessee wherein the assessee has included surrendered amount on account of excess stock and excess cash as business income and has successfully explained the source from where the said surrendered excess stock and excess cash was earned, which was business activity of assessee of trading in jewellery & gems and Adat/dalali in the same field. The coordinate bench of the Tribunal in the various orders including order in the case of Shri Lovish Singhal v/s. ITO (supra) by following the judgment of Hon'ble Rajasthan High Court in the case of Bajrang Traders (supra) observed that the excess stock found during the course of survey and surrendered made thereof was found to be taxable as business income under the head "Income from business & profession". Identical facts and circumstances as noted above have been found to be existing in the present case then the Ld. CIT(A) was correct and justified in dismissing the contention of the AO and holding that the AO was not right in observing that the assessee is liable to be taxed as per provision of section 115BBE. Therefore, we too have no hesitation in concluding that the facts of present case do nothing the impugned income in the clutches of section 69/69A/69B and therefore do not warrant application of section 115BBE at all. We conclude so and dismiss the ground raised

by revenue being devoid of merit.” 6.5 Reliance is further placed on the decision of this Tribunal in the case of ACIT V/s Anoop Neema (supra) wherein this Tribunal observed as under:

8. We on perusal of the above finding and the various judgments and decisions referred hereinabove by Ld. CIT(A) find that the alleged excess stock was not kept separately at any other place and was part of the total business tock found at the assessee's business premises are sufficient enough to indicate that the alleged investment in excess stock is part of the business income we also find that alleged excess stock was duly accepted by assessee as part of unaccounted business and source thereof stated during the course of search itself and no other incriminating material was found during search proceedings and therefore is not an undisclosed income as held by the L.d. AO. We, therefore, find no infirmity in the finding of Ld. CIT(A) rightly holding that the provision of Section 115BBE of the Act are not applicable on the surrendered income on account of excess stock valuing at Rs. 1,41,75,568/-found during the course of search. Thus, grounds no. 1 to 3 raised by the revenue are dismissed”. 6.6 On examining the facts of the instant case and in the light of the above decisions I find that the ratio laid down in these decision is applicable on the facts placed before me and therefore respectfully following the same and also considering the fact that the alleged excess stock was found at the business premises and related to the same business which is carried out by the assessee and more importantly there is no case of difference in quantity of excess stock being found at the business premises and lastly the excess stock has been calculated by the survey team on estimated basis only, I reverse the finding of Ld. CIT(A) and Ld. A.O is directed to calculate the tax on the surrendered stock under normal provisions of I.T. Act and not to apply the provisions of Section 115BBE of the Act. In the result Ground No.1 & 2 raised by the assessee are allowed. Ground No.3 being general in nature which needs no adjudication.

8. The Hon’ble High Court of Rajasthan in the case of Bajargan Traders reported in (2017) 86 taxmann.com 295 (Rajasthan) was pleased to observe that the amount surrendered under unrecorded stock has to be brought to tax under the head “business income” as the excess stock which has been found during the course of survey is the investment in procurement of such stock is clearly identifiable and related to the regular business stock of the assessee. The Hon’ble High Court clearly held the investment in excess stock has to be brought to tax under the head “business income” but not under the head “income from other sources”. The Mumbai Benches of the Tribunal in the case of Govind Godomal Lulla (supra) held undisclosed investment in the case of excess stock found during carrying on business and the same is generated out of business income, no provisions of section 69B of the Act would attract. Further, the Jodhpur Benches of the Tribunal in the case of Shri Lovish Singhal (supra) held the excess stock/cash found during the course of survey is taxable under the business and no provision u/s. 115BBE of the Act is attracted. In the present case as discussed above without any dispute the assessee offered additional income under excess stock during the course of survey and same was entered in the books of account as on the last day of financial year ending on 31-03-2019 and offered the said amounts to tax under the business income. Therefore, in our opinion, the ratio laid down by the Hon’ble High Court of Rajasthan in the case of Bajargan Traders (supra) which was followed by the Jodhpur Benches of Tribunal is similar and identical to the issue in the present case. Therefore, the CIT(A) is not justified in confirming the order of AO in excluding the alleged additional income offered during the course of survey and attracting the provisions u/s. 69B of the Act, consequently, the charging u/s. 115BBE of the Act. Thus, the order of CIT(A) is set aside and the grounds raised

by the assessee are allowed.

9. The ld. AR submits that the assessee is not interested to prosecute additional grounds. Hence, the same are dismissed as not pressed.

10. In the result, the appeal of assessee is allowed.”

12. Respectfully following the decisions of Co-ordinate Benches and taking the consistent view, we are inclined to hold in favour of