BANARSI DAS SHYAM SUNDER,BAZAZA BAZAR vs. PCIT, INCOME TAX DEPARTMENT

2. That the appellant prays to add or alter any ground of appeal at or before the time of hearing.”

3.1 After filling of return of income and as per the prevalent guidelines of CBDT on selection of Survey cases for compulsory scrutiny, the case of the Act was issued on 26-09-2019 through computer systems and served electronically on the registered email-id of the assessee firm.

Subsequently, notice u/s 142(1) dated 18/03/2021 along with questionnaire was issued to the assessee. In response to the same, the assessee furnished its reply which was placed on record by the ld. AO. As is evident from the records that the assessee engaged in the business of retail trading of clothes. While survey and post survey proceedings, statements of Shri Ankit Khandelwal, one of the two partners of the assessee firm, were recorded on two occasions 19.02.2018 and 22.02.2018. While replying to question number twenty of his statement recorded on 19.02.2018, he admitted that the firm had an undisclosed income of Rs. 15,02,652/- and the same was other than the regular business income. However, during assessment proceedings, it was noticed that the assessee has shown the amount of Rs. 15,00,000/- as its undisclosed sales in the P&L account and offered only the income part embedded in it. A query was raised on this issue vide notice u/s 142(1) dated 10/08/2021 which reads as follows:

"Please refer to notice u/s 142(1) dated 18/03/2021 and your reply dated 23.04.2021. In the notice vide question no. 2 you were asked to show where the declared income of Rs. 15,02,652/- was shown in your ITR and computation. In response, the assessee made following submission:

Banarsi Das Shyam Sunder vs. PCIT "There are entries of cash sales recorded in Exhibit A-11 and few papers of Exhibit A-19 as well as Bill No. 2160 dt. 19-02-2018 for Rs. 1275 as per page no. 60 of Exhibit A-17, the sales of which were recorded in the cash book for FY 2017-18 (Exhibit A-2). These sales were recorded after survey on 19-02-2018 in the cash book amounting to Rs. 2,52,652/- and Rs 12,47,348 totaling Rs. 15,00,000/-. These sales as per Audited Trading A/c of Rs. 91,08,834/- including this figure of sales of Rs. 15,00,000. The copy of Cash Book dt. 19-02-2018 and Ledger Copy of Sales A/c dt. 19-02-2018 are enclosed herewith (Annexure-1).

As is evident that the assessee included the undisclosed sales of Rs. 15,00,000 in the Books of Account which in turn increased their GP and NP. Ld. AO raised a further query drawing assessee's attention toward the partner's statement recorded under oath on 19.02.2018 during the course of survey proceedings u/s 133A of the Act, wherein he in response to question no. 20 of his statements admitted that he declared the undisclosed income of Rs. 15,02,652/- for the current financial year and offered it for tax which was exclusive of his regular business income for the year under consideration. Attention was also drawn toward Shri Ankit Khandelwal's statement dated 22.02.2018 recorded on oath u/s 131 wherein vide question no. 3 he was asked to explain the status of the income of Rs. 15,02,652/- offered for tax. He in response to the question stated that he will pay due income tax applicable on such undisclosed income after including this income in regular income of the firm. partner, it was quite clear that the amount of Rs. 15,02,652/- was admitted as income of the firm other than the regular business income of the firm.

The amount was admitted as income not as sales. Thus, the income of Rs. 15,02,652/- was a separate income which should be added to the regular business income of the firm. Whereas as per the reply and perusal of ITR, the amount of Rs. 15,00,000/- was included in the sales figure on which G.P. rate was applied. The assessee was required to show cause as to why the undisclosed income of Rs. 15,02,652/- may not be held as their income excluding of whatever amount of sale they declared in books based on the basis of incriminating impounded material since the admission of undisclosed income was on account of cash and stock. In response to the said show cause notice no reply was submitted and therefore, ld. AO noted that the assessee has nothing to say in the matter and thereby he taxed that undisclosed income of Rs. 15,02,652/- in the hands of the assessee and accordingly assessment was completed on 23.08.2021.

4. On culmination of the assessment the ld. PCIT called for the assessment records for examination as per the power vested upon her.

Upon examination of the records the ld. PCIT noted that during the survey proceedings the assessee surrendered Rs.2,52,652/- on account of excess 15,02,652/-. Ld. PCIT thus noted that these facts were clearly mentioned in the assessment order that the same was taxed as undisclosed income of Rs. 15,02,652/- declared at the time of survey in the statement recorded and accordingly was added to the total income of the assessee firm. Thus, ld. PCIT noted that since, the addition of Rs.2,52,652/- was made on account of excess cash found and Rs. 12,50,000 was added as unexplained money u/s 69A of the Act on account of stock. On both the additions, the tax was required to be charged at special rates under the provision of section 115BBE of the Act, whereas a perusal of Computation Sheet revealed that the tax was charged at normal rates. In view of the facts mentioned above, ld. PCIT holds a view that the order passed u/s 143(3) for the AY 2018-19 dated 23.08.2021 was erroneous and prejudicial to the interest of the revenue.

Accordingly, a show cause notice as per provision of section 263 of the Act was issued to the assessee on the issue that remained to be examined / verified while passing assessment order, was issued to the assessee on 07.03.2024 through online portal fixing the case for hearing on 19.03.2024. The assessee filed the reply to the said show cause notice same was not found tenable and accordingly, she passed following order:

“8. As discussed above, the Assessing Officer failed to apply his mind on the material available on record and failed to invoke the applicable provisions of law. This in turn has resulted in passing of an erroneous order by the AO in the case due to non-application of mind to relevant material, an incorrect assumption of facts and an incorrect application of mind to the law which is prejudicial to the interest of the revenue and hence liable for revision under section 263 of the Act. The Hon'ble Supreme Court in the case of Malabar Industrial Limited V/s CIT 243 ITR it has held as under- ".... An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same category fall orders passed without applying the principles of natural justice or without application of mind." Further in the case of Commissioner of Income Tax V/s Paville Projects (P) Ltd, the A.O had allowed the cost of Improvement to the assessee which was not as per law, the Hon'ble Apex Court upheld the action of the Commissioner of Income Tax u/s 263 while observing that "the scheme of the Income Tax Act is to levy and collect tax in accordance with the provisions of the Act, and this task is entrusted to the Revenue. If due to an erroneous order of the Income Tax Officer, the Revenue is losing tax lawfully payable by a person, it will certainly be erroneous and prejudicial to the interests of the Revenue"

Banarsi Das Shyam Sunder vs. PCIT I wish to make it clear that I am not disturbing the assessment that has already been made. I am only passing an order where unexplained money and unexplained investment is to be brought under the correct provisions of the Act. The assessment order is set aside and restored to the file of Assessing officer to verifying the issues as discussed in the order and that to on independent satisfaction of the Assessing Officer.

Now ld. PCIT merely in the proceeding u/s. 263 of the Act cannot change the character of the income already considered by the ld. AO. The assessee has accepted the disclosure made in the survey which was also considered ld. AO and he has not invoked the provision of section 68 of the Act while passing the order. Even the stock and cash cannot be sourced from the other source when the business of the assessee was considered as existing and even the cash and stock is sourced from the same business income only. Therefore, he relied on the order of the assessment order passed and submitted that the order of the assessment was neither erroneous nor prejudicial to the interest of revenue. To support the contention so raised in the written submission reliance was placed on the following evidence / records :

Page No. S.No. Particulars

01 - 09 1. Order u/s 263 dated 21.03.2024 passed by the PCIT (Central) Jaipur

3. 21 - 26 Copy of Statement of Ankit Khandelwal, Partner recorded on the date of survey on 19.02.2018

5. 31 - 33 Copy of audited Trading A/c, Profit & Loss A/c and Balance Sheet for FY 2017-18

6. 34 Copy of Cash Book page 174 dated 18.02.2018 and 19.02.2018

7. Copy of Sale Account Ledger page 59 dated 35 01.02.2018 to 22.02.2018

Thus in the light of the statements given by Shri Ankit Khandelwal, partner, it was quite clear that the amount of Rs. 15,02,652/- was admitted as income of the firm other than the regular business income of the firm. The amount was admitted as income not as sales. Thus, the income of Rs. 15,02,652/- was a separate income which should be added to the regular business income of the firm. Whereas as per the reply and perusal of ITR, the amount of Rs. 15,00,000/- was included in the sales figure on which G.P. rate was applied. The assessee was required to show cause as to why excluding of whatever amount of sale they declared in books based on the basis of incriminating impounded material since the admission of undisclosed income was on account of cash and stock. In response to the said show cause notice no reply was submitted and therefore, ld. AO noted that the assessee has nothing to say in the matter and thereby he taxed that undisclosed income of Rs. 15,02,652/- in the hands of the assessee while doing so he has not invoked the provision of section 68 of the Act and accordingly assessment was completed on 23.08.2021.

From the orders of the lower authorities and the submissions of the assessee, it is found that the pre-requisites to the exercise of jurisdiction by the CIT u/s 263, is that the order of the AO is established to be erroneous in so far as it is prejudicial to the interest of the Revenue. The ld. PCIT has to satisfy the twin conditions, namely the order of the AO sought to be revised is erroneous; and it is prejudicial to the interests of the Revenue. If any one of them is absent i.e. if the assessment order is not erroneous but it is prejudicial to the Revenue, Section 263 cannot be invoked. It is noted that this provision cannot be invoked to correct each and every type of mistake or error committed by the AO; it is only when an order is erroneous as also prejudicial to revenue’s interest, that the provision will be attracted. application of law will satisfy the requirement of the order being erroneous. The phrase ‘prejudicial to the interest of the revenue’ has to be read in conjunction with an erroneous order passed by the AO. Every loss of Revenue as a consequence of the order of the AO cannot be treated as prejudicial to the interest of the Revenue. For example, if the AO has adopted one of the two or more courses permissible in law and it has resulted in loss of revenue, or where two views are possible and AO has taken one view with which the ld. PCIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the Revenue, unless the view taken by the AO is totally unsustainable in law. We draw strength from the order of the Honble Apex Court in the case of Malabar Industrial Co.

Ltd. v/s CIT (2000) 243 ITR 83 (SC). We also refer to the case of CIT v/s Max India Ltd. (2007) 295 ITR 282 (SC) wherein it is held that ;

"The phrase "prejudicial to the interests of the Revenue" in S. 263 of the Income Tax Act, 1961, has to be read in conjunction with the expression "erroneous" order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when the Assessing Officer adopts one of two courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the Assessing Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the Revenue, unless the view taken by the Assessing Officer is unsustainable in law." case in principle and therefore, invoking of sec.263 was not legally justified when the ld. AO considered the income offered as sourced from the business of the assessee. Thus, we note that the AO has taken one of the impossible view by treating the income offered during survey operation as income under the head business and profession. A similar view has been taken by the co-ordinate bench of Delhi ITAT in the case of Hema Raman dated 12.05.2023. The observation of the bench on the issue is reproduce herein below :

“13. On appraisal of facts, we are persuaded by the first limb of the arguments. The determination of true nature and character of income is highly contextual and law has not devised any straight jacket formula in this regard. The classification of income under a particular head of income may significantly vary having regard to the nuanced facts of each case. When seen contextually, the additional income in instant case was conceded by the assessee in the course of survey operations at her business premises. The income surrendered is sort of lumpsum figures offered in the form of excess stock, unaccounted advance to staff, excess cash generated etc. from business operations. Such additional income confessed in survey at business premises gives a facial impression of business attributes. In the light of assertions made in statement in survey and post survey proceedings placed in the paper book, the assessee appears to have made out an arguable case that such income is concomitant of business activities and thus impressed with the character of business income as correctly disclosed in the ROI. The action of AO is not open to attack as erroneous where a view taken is in the realm of a possible view and not found to be wholly incongruous to facts or law. On the face of available facts, one can not say without any reservation that no plurality of opinion can exist on the point and such additional income cannot be treated as business income at all as adjudged by AO. This makes the action of the AO is the league of being plausible. The power of review cannot be exercised to collect more taxes merely owing to the reason that the law now provides for penal and steep rate of taxation by bringing such income within the ambit of S. 68/ 69 etc. 13.1 Significantly, the PCIT, while seeking to set aside the action of AO and remitting the matter back for further enquiries, did not bring any definite material Banarsi Das Shyam Sunder vs. PCIT to show any incorrect assumption of such facts on this score. Besides, no observations are found in the impugned revisional order suggesting a course to be adopted towards manner of determining true character of additional income or the nature of enquiries expected from AO. 13.2 In the similar factual circumstances and in the context of section 263, the Hon’ble Andhra Pradesh High Court in the case of PCIT vs. Deccan Jewellera (P) Ltd. ( 2021) 132 taxmann.com 73(AP) held the action of AO cannot be said be marred by any perversity and the revisional order was set aside. 13.2 Taking into account the entire conspectus of the matter, we thus find merit in this plea. The pre-requisites of S. 263 are clearly not found to be fulfilled.

Order pronounced in the open court on 05/03/2025.

Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 05/03/2025 *Ganesh Kumar, Sr. PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Banarsi Das Shyam Sunder, Alwar 2. izR;FkhZ@ The Respondent- PCIT, Income Tax Department vk;dj vk;qDr@ The ld CIT 3. vk;dj vk;qDr¼vihy½@The ld CIT(A) 4. 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File (ITA No. 722/JP/2024) vkns'kkuqlkj@ By order,

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