YASH CONSTRUCTION CO.,LATUR vs. ACIT, CIRCLE 1, AURANGABAD, AURANGABAD

PER SATBEER SINGH GODARA, JM : These assessee’s twin appeals & 677/PUN/2024 for assessment years 2017-18 and 2018-19, arise against the Commissioner of Income Tax (Appeal)-12, Pune [in short the “CIT(A)”]’s common DIN & Order No. ITBA/APL/S/250/2023-24/1061040447(1), dated 16.02.2024, involving proceedings u/s. 250 of the Income Tax Act, 1961 (in short “the Act”).

Heard both the parties at length. Case files perused.

3] The learned CIT(A), erred in holding that the assessee firm had not substantiated that the cash expenditure of Rs.1,00,05,000/- was incurred out of the business income and hence, the addition was rightly made u/s 69C r.w.s. 115BBE of the Act. 4] The learned CIT(A) failed to appreciate that the expenses noted on the diaries impounded during the course of survey were incurred out of the business income of the assessee firm and hence, there was no reason to made the addition u/s. 69C r.w.s. 115BBE of the Act. 5] The learned CIT(A) overlooked the fundamental procedural aspect that no specific inquiry was raised during the survey proceedings regarding the source of the expenses noted in the impounded diaries and hence, consequently, the assessee firm was unjustly deprived of the opportunity to present its case. Therefore, the addition of Rs.1,00,05,000/- under section 69C read with section 115BBE of the Income Tax Act is bereft of legal merit and the same may kindly be deleted. 6] The learned CIT(A) erred in not appreciating that the assessee firm was engaged in only contracting business and there was no other source of income to the assessee firm and hence, the expenditure noted in the diaries impounded during the course of survey proceedings was incurred out of the unaccounted income generated from the contracting business and accordingly, there was no reason to make the addition u/s. 69C r.w.s. 115BBE of the Act. 7] The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal.”

3. Both the parties next submit that the assessee latter appeal also raises identical substantive grounds since the only difference therein is that the addition amount i.e. Rs.4,00,87,000/-. That being the case, we proceed to decide the assessee’s former for A.Y. 2017-18 as the “lead” one for the sake of convenience and brevity.

4. Both the learned Representatives at this stage invited our attention to the lower appellate discussion affirming the impugned section 69C r.w.s. 115BBE addition of Rs.1,00,05,000/- as follows :

“4.2 I have gone through the assessment order and the submission filed by the appellant. In this case, the appellant has filed a detailed written submission. Vide the said submission the appellant has submitted that the appellant had filed its return of income for the AY 2017-18 showing total income of Rs.4,22,75,070/- which includes the additional income of Rs.1,00,05,000/-. As per appellant, the said amount of Rs.1,00,05,000/- had been offered for tax inadvertently under the head income from other sources. The appellant has further submitted that section 69C of the Act requires an assessee to explain the source of expenditure and not its reasonableness. In the present case, the assessee has submitted that ash amounts mentioned are pertains to labour payments, material purchases and other site expenses and on account of business expenses and the appellant is not engaged in any other activity, therefore, it is reasonable to presume that the said expenditure must have been incurred out of the income earned from such business. The appellant has accordingly contended that since the expenditure has been incurred out of identified income, therefore, provisions of section 69C cannot be applied. Accordingly, the appellant has requested to allow the ground of appeal raised by him. 4.3 I have considered the facts of the case and the submissions made by the appellant. The issue involved in this appeal is that when there is a surveyor search action wherein certain undisclosed income is found, under which head it can -be brought to tax and at what rate, the tax should be charged. This issue has been discussed by various High Courts and Tribunals from time to time and depending on the facts of the case, it was decided as to whether such income was taxable as 'business income' or 'deemed income assessable u/s 68, 69 or 69A to 69D of the Act. Some of these decisions are discussed as under: Decisions where it was held that the surrendered income is taxable under the provisions of section 68, 68, 69, 69A to 69D of the Act. 4.4 The Hon'ble Gujarat High Court in case of Fakir Mohmed Haji Hasan vs. CIT 120 TAXMAN 11 (Gujarat) had to decide question whether value of gold found during search is to be included in income where no explanation about source of investment made is provided. The Hon‟ble High Court was also concerned with the question whether any deduction in relation to confiscated gold is to be give. The relevant assessment year was AY 1984-85 (i.e. prior to introduction of section 115BBE in the Act). The fact disclosed in customs proceedings, which were relied on in the income-tax proceedings were that specific information was received by the Customs Department indicating that specific information was received by the Customs Department indicating that the taxpayer would bring imported gold in his car and would make delivery thereof. The car was seized and at that time during search gold bars of foreign markings were recovered. A bag containing currency notes was also recovered. The statements which were recorded under section 108 of the Customs Act were considered in the adjudication proceedings. The Hon'ble High Court upheld the decision of Tribunal that the value of gold was liable to be included in the income of the assessee as the source of investment in the gold or of its acquisition was not explained and that the assessee was not entitled to claim that the value of the gold should be allowed as a deduction from his income. The relevant portion of the judgment is as under:

6. Under section 4 of the Act, income-tax is to be charged in accordance with the provisions of the Act in respect of the total income of the previous year of every person. As provided by section 5 of the Act, total income of any previous year of a person would, inter alia, include all income from whatever source derived which is received or is deemed to be received by such person, subject to the provisions of the Act. It will be seen from section 69A that where the bullion, jewellery or other valuable article is not recorded in the books of account and there is no explanation about the nature and source of its acquisition, or the explanation is not satisfactory, the value thereof may be deemed to be the income of the assessee of the financial year immediately preceding the assessment year in which the assessee is found to be the owner of such bullion, etc. 6.1 The scheme of sections 69, 69A, 698 and 69C of the Act would show that in cases where the nature and source of investments made by the assessee or the nature and source of acquisition of money, bullion, etc., owned by the assessee or the source of expenditure incurred by the assessee are not explained at all, or not satisfactorily explained, then the value of such investments and money, or value of articles not recorded in the books of account or the unexplained expenditure may be deemed to be the income of such assessee. It follows that the moment a satisfactory explanation is given about such nature and source by the assessee, then the source would stand disclosed and will, therefore, be known and the income would be treated under the appropriate head of income for assessment as per the provisions of the Act. However, when these provisions apply because no source is disclosed at all on the basis of which the income can be classified under one of the heads of income under section 14 of the Act, it would not be possible to classify such deemed income under any of these heads including "Income from other sources" which have to be sources known or explained. When the income cannot be so classified under anyone of the heads of income under section 14, it follows that the question of giving any deductions under the provisions which correspond to such heads of income will not arise. If it is possible to peg the income under anyone of those heads by virtue of a satisfactory explanation being given, then these provisions of sections 69, 69A, 698 and 69C will not apply, in which event the provisions regarding deductions, etc., applicable to the relevant head of income under which such income falls will automatically be attracted. 6.2 The opening words of section 14 'Save as otherwise provided by this Act' clearly leave scope for 'deemed income' of the nature covered under the scheme of sections 69, 69A, 69B and 69C being treated separately, because such deemed income is not income from salary, house property, profits and gains of business or profession, or capital gains, nor is it income from 'other sources' because the provisions of sections 69, 69A, 69B, and 69C treat unexplained investments, unexplained money, bullion, etc., and unexplained expenditure as deemed income where the nature and source of investment, acquisition or expenditure, as the case may be, have not been explained or satisfactorily explained. Therefore, in these cases, the source not being known, such deemed income will not fall even under the head, 'Income from other sources'. Therefore, the corresponding deductions, which are applicable to the incomes under any of these various heads, will not be attracted in case of deemed incomes which are covered under the provisions of sections 69, 69A, 69B and 69C in view of the scheme of those provisions.

7. It is, therefore, clear that, when the investment in or acquisition of gold, which was recovered from the assessee was not recorded in the books of account and the assessee offered no explanation about the nature and source of such investment or acquisition and the value of such gold was not recorded in the books of account, nor the nature and source of its acquisition explained, there could arise no question of treating the value of such gold, which was deemed to be the income of the assessee, as a deductible trading loss on its confiscation, because such deemed income did not fall under the head of income „Profits and gains of business or profession‟. 8, In our opinion, therefore, the Tribunal was perfectly right in holding that the value of the gold was liable to be included in the income of the assessee as the source of investment in the gold or of its acquisition was not explained and that the assessee was not entitled to claim that the value of the gold should be allowed as a deduction from his income.

4.5 The Hon'ble Punjab and Haryana High Court in case of Kim Pharma Pvt Ltd VS. CIT [2013J 216 Taxman 153 (P&H) , has held that where amount surrendered during survey was not reflected in books of account and no source of income from where it was derived declared by the taxpayer then it was assessable as deemed income of the assessee u/s 69A of the Act and not as business income. 4.6 The Hon'ble Madras HC in case of MIs. SVS Oils Mills vs. ACIT [2020J 113 taxmann.com 388 (Madras), has held, that where there was a clear admission by assessee firm that excess stock found during survey was added in its stock register but no corresponding entry was passed in books of account, it could be considered that investment in such stock was made out of undisclosed source. Thus, addition was to be made under section 69B in respect of such excess stock. Decisions where it was held that sections 68, 69, 69A to 690 are not applicable: 4.7. On the other hand, in following decisions, it was held that source of surrendered/undisclosed income are explained, deemed income provisions under sections 68, 69, 69A to 69D are not applicable and consequently, tax rate u/s 115BBE is also not applicable. 4.8 The Hon‟be Rajasthan High Court in case of CIT vs Bajargan Traders [2017] 86 taxmann.com 295 (Rajasthan) has held that when the assessee is dealing in sale of food grains, rice and oil seeds and the excess stock which is found during survey is stock of rice then, it can be said that investment in procurement of such stock of rice is clearly identifiable and related to the regular business stock of the assessee. Therefore, the investment in the excess stock is to be brought to tax under head "business income" and not under the head income from other sources. 4.9 In case of Shri Lovish Singhal vs ITO (ITA No 142 to 1461Jodh/2018 for AY 2014-15 dated 25 May 2018), the Jodhpur Tribunal applying the proposition of law laid down by the Hon'ble Rajasthan High Court in the 8ajargan Traders (supra), held that the lower authorities were not justified in taxing the surrender made on account of excess stock and excess cash found U/s 69 of the Act and accordingly held that there is no justification for taxing such income U/s 115BBE of the Act. 4.10 In case of Oberoi Motors vs ACIT [ITA No. 35121Del12018 AY 2012-13 dated 16 July 2021], the taxpayer had declared surrendered income after set-off of business loss. The lower authorities did not accept the above treatment and held that the surrendered amount is deemed income and does not fall under any of the head of income and therefore no set off of business losses could be allowed. The Hon'ble Tribunal held that as the assessee had already introduced the transactions in books of accounts, it would not be reasonable to say that such income does not fall under any of the head of income or that such deemed income does not allow any set off of business losses. Accordingly, the Tribunal accepted that the surrendered income amounts to business income. 4.11 In case of DCIT vs Ram Narayan Birla (ITA No. 482/JPR/2015 for AY 2011-12 dated 30 September 2019), also on the surrendered stock during search or survey action, it was held that the Revenue had not pointed out that the excess stock had any nexus with any other receipts found. Hence, the surrendered excess stock considered at par with the other business stock. 4.12 4.12 It can be seen front the above judicial precedents that whether the undisclosed income found during the search or survey action is taxable under any of the five heads of income as specified in section 14 of the Act or it is to be taxed as 'deemed income taxable under section 68 to 69D of the Act is essentially a question of fact and it entirely depends on whether the assessee has been able to satisfactorily explain the source of such undisclosed income or not. If, a satisfactory explanation is provided about the nature and the source in that case the source would stand explained and therefore, the income would be computed under the appropriate head of income as per the provisions of the Act. However, when no source is explained based on which the income can be classified under any of the heads of income specified under section 14, then it would be classified as deemed income and shall be taxed as per the rates provided under section 115BBE of the Act. 4.13 It is also important to mention here that the Hon‟ble Supreme Court in case of Kale Khan Mohammad Hanif vs CIT [1963J 50 ITR 1 (SC) held that onus of proving the source of a sum of money found to have been received by the assessee is on him. However, if the taxpayer disputes the levy of tax on the same then it is up to him to show either the receipt is not income, or it is exempt from taxation under the provisions of the Act. In the absence of proof, the tax officer is entitled to treat the same as taxable income. Thus, the onus of explaining the source of undisclosed income found during search or survey is on the assessee and not the other way. In other way, the onus of proving that the income detected is not taxable under sections 68,69, 69A to 69D read with section 115BBE is on the assessee. 4.14 To sum up, before assessing the surrendered income under sections 68, 69, 69A to 69D and levy of higher rate of tax u/s 115BBE, following factors are required to be considered – Whether nature or income is clearly explained during the survey or during assessment proceedings. Whether income can be classified under a particular head of income based on nature so as to demonstrate that it is flowing form one of the specific sources of the income of the assessee. Whether supporting evidences for the above are available because the onus to satisfactorily explain the nature and source is on the assessee. 4.15. In the present case the appellant is carrying on the business of civil construction. During the survey operation the survey team impounded a 'Speed Sales Graph' notebook in which the cash expenditure entries were found written by one of the partners of Yash Construction viz. Shri Pradeep M. Thombare. When asked about the proof of payment with the help of bank statement, the assessee had submitted that the entries of cash payments pertain to the firm and expended by the firm at various contract sites. Accordingly, the amount of Rs.1,00,05,000/- was declared as additional income for AY 2017-18. The relevant portion of the statement recorded during the survey operation is as under. Q.No.13: Today, during the course of the survey proceedings uls 133A at your premises, a 'Speed Sales Graph' notebook has been found and impounded which has been inventoried at Sr. No.1. Various entries of cash amounts pertaining to the F. Y. 2016-17 are found in the notebook. Please explain the same. Ans: The entries of cash amounts pertain to the firm- M/s Yash Constructions Firm, Ambajogai for the F. Y 2016-17. The entries are in my handwriting. These are the cash amounts expended by the firm in respect of various contract sites. The cash amounts are out of the books of the firm. The cash amount pertaining to the F.Y.2016-17 is Rs.1,00,05,000/- in total.

Q 14 With reference to the answers given by you to Question No. 12 and Question No. 13, please state to what expenses have been incurred by the firm? A.14 These expenses pertain to labour payments, material purchase and other site expenses against the various work orders. These site expenses will reflect in WIP/receivables against the work orders. As I Have myself stated in the answers given to the question No. 12 and question No. 13 that the cash amonts mentioned in the notebook are out of the books of account of the Firm – M/S Yash Constructions Company, I, in the capacity of the partner of the firm voluntarily declare the amount of Rs. 1,00,05,0001- for the F. Y. 2016-17relevant to the A. Y. 2017-18 as the additional income, over and above the regular income. Similarly, I in the capacity of the partner of the firm voluntarily declare the amount of Rs. 4,00,87,0001- for the FY 2017-18 relevant to the year 2018-19 ast the additional income, over and above the regular income15 Yes, I once again state the in the capacity of the partner of the firm MIS Yash Constructions Company. I voluntarily declare the following amounts as the additional income, over and above the regular income. Q 15 Do you want to say anything on your own? A. 15 Yes, I once again state the in the capacity of the partner of the firm M/S Yas Constructions Company. I voluntarily declare the following amounts as the additional income, over and above the regular income. AY 2017-18 Rs.1,00,05,000/- AY 2018-19 Rs.4,00,87,000/- Total Rs.5,00,92,000/- Thus, I declare total amount of Rs.5,00,92,000/- for the A. Y. 2017-18 and A.Y. 2018-19. I also promise to pay all the due taxes on the above declaration made. 4.16 The above discussion clearly indicates that nowhere the appellant has substantiated that the said cash expenditure was out of the business income. Moreover, the appellant has not pointed out towards any other evidence found during the survey operation which 60uld indicate that such cash expenditure was out of the business income. As discussed earlier in this order, the onus of explaining the specific source from which such unexplained income is flowing, is on the assessee and not on the department. In the present case, the appellant has miserably failed to discharge the said onus. The contention of the appellant is that the unexplained business expenditure made in cash, discovered during the survey operation should be taxed as business income even without proving any nexus between such income and cash expenditure. Acceptance of such contention may lead to a situation where a tax payer having undisclosed income from a source other than from business or profession, can incur such cash expenditure and can subsequently claim that the same is taxable at normal rate, only because the expenses were for his business. This situation is clearly against the intentions of legislature wherein the legislature has mandated that such undisclosed income should be taxed at special rates provided u/s 115BBE of the Act. 4.17 In the present case, since, the nature of income is not clearly explained during the survey nor during assessment proceedings and the appellant has not demonstrated that the said income is flowing from business, with the help of supporting evidences, therefore, the action of the assessing officer of treating the income corresponding to cash expenses, as deemed income u/s 69C of the Act is upheld. The grounds no. 2 to 4 raised by the appellant are, therefore, Dismissed.”

“7. We heard the rival submissions and perused the material on record. The issue in the present appeal relates to the applicability of provisions of section 115BBE of the Act in respect of income declared during the course of survey proceedings and offered to tax in the return of income. There is no dispute about the amount of addition to be made nor was there any dispute regarding the head of income under which the same was assessed to tax. The dispute is only with regard to the applicability of provisions of section 115BBE of the Act. Admittedly, the income offered during the course of survey proceedings was credited to Profit & Loss Account and the additional income offered on account of deficit in the physical stock was credited to Trading Account. The income offered on account of alleged expenditure incurred on construction of the commercial building was offered to tax by crediting the same amount to the Profit & Loss Account. Thus, the income was offered to tax under the head “Income from business”, the Assessing Officer also assessed the same under the head “Income from business”. Therefore, the presumption is to be drawn that the additional income was derived from the business. Thus, it cannot be said that the source for the additional income remain unexplained and, therefore, the provisions of section 115BBE have no application to the present case. The ratio of the decision of the Hon‟ble Rajasthan High Court in the case of Bajargan Traders (supra) is squarely applicable to the facts of the present case. The reliance placed by the ld. CIT(A) on the decision of the Hon‟ble Madras High Court in the case of M/s. SVS Oils Mills (supra) have no application to the facts of the present case, inasmuch as, in the said case, no explanation as to the source of excess stock was offered, whereas, in the present case, it is undisputed fact that the additional income was derived from business. Therefore, the orders of the Assessing Officer as well as the ld. CIT(A) are reversed and direct the Assessing Officer not to tax the additional income under the provisions of section 115BBE of the Act. The Assessing Officer shall tax the additional income under the normal rate of income tax. Accordingly, the grounds of appeal filed by the assessee stand allowed.

8. In the result, the appeal filed by the assessee stands allowed.”

Order pronounced in the open court on 31st July, 2024.