2025 (11) TMI 633 - AT - Income Tax

Assessing officer can't treat unrecorded survey expense as unexplained under s.69C; income held business, s.115BBE inapplicable

ITAT, Jaipur held that the assessing officer failed to produce material showing the surrendered amount was unrelated to the assessee's real estate ... Addition u/s 115BBE on the income surrendered during survey - Consideration of income as unexplained u/s 69C and invoking of S.115BBE HELD THAT:- AO has not brought on record any material to suggest that the surrendered amount was unrelated to the assessee’s business or was sourced from unexplained means. AO failed to identify any other source than real estate business, to which such income could be related. In fact, the AO merely concluded that since the expense was not recorded as on the date of survey, it qualified as unexplained expenditure. Such a conclusion, in our considered view, is devoid of legal and factual basis. The bench noted that the identical issue was considered in case of Pr. CIT vs. Bajargan Traders [2017 (11) TMI 388 - RAJASTHAN HIGH COURT] wherein observed that the investment made in the excess stock of rice found during the course of survey should be considered as business income, from business of trading in food grain and rice instead of income from other sources not liable to be taxed u/s 69, affirming the decision of the ld. ITAT. Therefore, we hold that the income is to be treated as business income and not as unexplained expenditure u/s 69C. The consequent application of section 115BBE is thus unsustainable and liable to be set aside. Decided in favour of assessee. ISSUES PRESENTED AND CONSIDERED 1. Whether an amount voluntarily surrendered during a survey and subsequently recorded in the books and return as part of business transactions can be treated as unexplained expenditure under section 69C and thereby made liable to tax at special rates under section 115BBE. 2. Whether section 115BBE can be invoked (and whether a separate show-cause is required) when an addition is made under the charging/deeming provisions of the section 69 family. 3. Whether, on the facts, the surrendered sum is properly classifiable as business income (assessed under the head 'business income') or as income from other sources/deemed income under the section 69 family. 4. Consequential question as to charge/withdrawal of interest under sections 234A/234B/234C/234D/244A arising from the primary question of applicability of section 115BBE. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Applicability of section 69C to surrendered expenditure found in survey Legal framework: Section 69C deems unexplained expenditure to be the income of the assessee where the assessee offers no explanation about the source of such expenditure or the AO finds the explanation unsatisfactory. Precedent treatment: Authorities recognize that section 69C applies where expenditure (or investment) lacks a satisfactory explanation or identifiable source; however, authorities have also held that when surrendered amounts are clearly connected to regular business operations and accounted for before finalisation of accounts, they may be treated as business receipts rather than unexplained income. Interpretation and reasoning: The Tribunal examined the survey evidence (impounded notepad), the partner's statement admitting the expenditure related to purchase of construction material, the fact that the amount was subsequently recorded in the books before year-end, declared in the return as business income and taxes paid thereon, and that AO did not reject the books. The Tribunal held that mere non-recording at the date of survey does not automatically convert a business-related transaction into unexplained expenditure where the assessee thereafter accounted for it and identified its source as business operations. The AO's conclusion rested on the fact of non-recording at the survey date without any independent material showing the sum was unconnected with business or from an unexplained source; that finding was held to be factually and legally insufficient to invoke section 69C. Ratio vs. Obiter: Ratio - where surrendered amounts are shown to be connected to business activity and are recorded in books before finalisation, section 69C cannot be invoked merely because entries were pending at the date of survey. Obiter - general observations about onus of proof and exclusive knowledge of source where unexplained expenditure is claimed. Conclusion: The Tribunal concluded that section 69C was not applicable on the facts because the surrendered amount was linked to business activity, was entered in the books before year-end, and assessed as business income; therefore the addition under section 69C was unsustainable. Issue 2 - Invocation of section 115BBE consequent to additions under the section 69 family and requirement of separate notice Legal framework: Section 115BBE provides for taxation at special rates of incomes referred to in sections 68/69/69A/69B/69C/69D and precludes deductions/allowances against such income. Charging sections create liability; machinery sections quantify and collect tax. Precedent treatment: Courts have held that charging provisions are to be construed strictly while machinery provisions are to be interpreted to effectuate legislative intent. Where an addition is validly made under the section 69 family, section 115BBE applies by operation of law to such added income. Conversely, if the foundational addition under section 69 family is unsustainable, section 115BBE cannot properly apply. Interpretation and reasoning: The Tribunal accepted the principle that section 115BBE operates in consequence of a valid addition under the section 69 family; it is not an independent charging provision capable of being invoked where the foundational deeming/charging provisions do not apply. The question whether a separate show-cause is required was considered: the Tribunal observed that section 115BBE is subordinate to sections 68/69 family and, where an addition under those sections is valid, the charging of tax under section 115BBE follows automatically and no separate show-cause is necessary. However, that automatic application presumes the correctness of the underlying addition. Ratio vs. Obiter: Ratio - section 115BBE applies automatically to income legitimately brought within sections 68/69 family; no separate show-cause is required for charging section 115BBE on a valid addition. Obiter - emphasis that machinery provisions must be interpreted to effectuate the statute and not defeat it. Conclusion: While section 115BBE applies automatically to bona fide additions under the section 69 family, it cannot be applied where the addition itself is not sustainable; on the facts, because section 69C did not apply, section 115BBE could not be invoked to tax the surrendered amount at special rates. Issue 3 - Classification of surrendered amount as business income versus income under section 69 family Legal framework: Heads of income under section 14 require categorisation of receipts; if a receipt falls under business income it should not be reclassified under the residuary/deeming provisions unless the receipt is unidentifiable or unrelated to business. Precedent treatment: Decisions of tribunals and High Courts have held that where the additional/surrendered income is connected to and arises from the regular business and is accounted for as such, it should be taxed as business income and not deemed income under section 69 family. Authorities also recognise that heads are mutually exclusive and classification is determined by practical commercial understanding and facts. Interpretation and reasoning: The Tribunal relied on contemporaneous evidence: the partner's admissions during survey that the notepad entries related to construction material purchases, the subsequent accounting entries (credit to P&L and debit to purchase), valuation of closing stock incorporating the amount, and the fact that the return and assessment treated the amount under business income without rejection of books. Absent any contrary material that the sum derived from a different/unexplained source, recharacterisation as section 69C deemed income was legally unsupportable. Ratio vs. Obiter: Ratio - where surrendered amounts are demonstrably connected to business activities and reflected in books and returns as business receipts, they are to be taxed as business income and not reclassified under the section 69 family. Obiter - references to illustrative authorities and co-ordinate bench decisions endorsing this approach. Conclusion: The Tribunal held the surrendered sum to be business income; reclassification under section 69C (and consequent taxation under section 115BBE) was unsustainable and set aside. Issue 4 - Consequential interest under various sections Legal framework: Interest under sections 234A/234B/234C/234D/244A arises as a consequence of tax determination (shortfall/assessment/refund); their application is consequential on the correctness of tax computation. Precedent treatment: Interest and consequential adjustments are ordinarily disposed of after the primary tax issue is decided; they are not independently adjudicated where they flow directly from the primary assessment issue. Interpretation and reasoning: The Tribunal treated interest matters as consequential. Having held that the special rate tax under section 115BBE could not be applied, any consequential interest adjustments predicated on that tax treatment would fall away or require recalculation consistent with the Tribunal's decision. Ratio vs. Obiter: Ratio - interest consequences are to be adjusted in accordance with the primary conclusion on taxability. Obiter - no detailed independent adjudication of each interest head was necessary in view of the main findings. Conclusion: Interest determinations are consequential; reversal of the section 115BBE levy mandates consequential recalculation/withdrawal of interest as appropriate. Overall Disposition (Court's Conclusion) The Tribunal allowed the appeal on the core ground: the amount voluntarily disclosed during survey and subsequently recorded and assessed as business income could not be treated as unexplained expenditure under section 69C; consequently, section 115BBE could not be invoked to tax that amount at special rates. Interest and other consequential aspects are to be dealt with in accordance with that primary conclusion.