TaxTMI 
TaxTMI 
2020 (10) TMI 559
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....ntaining cash of Rs. 22,19,590/-. During the course of survey proceedings, statement u/s 131 was recorded of Sh. Atul Kumar Gupta and he explained to the survey team that the cash found in his possession belongs to Sh. Hari Narain Gattani. Thereafter, the statement of Sh. Hari Narain Gattani was also recorded by the survey team u/s 131 of the I.T. Act, 1961 wherein he accepted that the cash found in possession of Sh. Atul Kumar Gupta was his current year's income i.e. F.Y. 2016-17 (A.Y. 2017-18) and thereafter, a search warrant u/s 132 was issued in the name of assessee and the bag in his possession was searched at 421, 4th Floor, Saraogi Mansion, M.I.Road, Jaipur. A survey u/s 133A (1) of the I.T. Act was also conducted at business premises of the assessee. No incriminating documents, cash or valuable items were found during the course of survey proceedings. Finally, the cash of Rs. 22,19,590/- which was found from the bag of Shri Atul Kumar Sharma was seized in course of search action. 3. It was further submitted that the assessee thereafter filed his return of income for above assessment year u/s 139(1) on 28-07-2017 disclosing total income of Rs. 41,78,390/- which include....
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....CIT(A) who has sustained the order of the AO and against, the said findings, the assessee is now in appeal before us. 7. In the aforesaid factual background, it was submitted by the ld AR that for invoking section 154(1) of the Act, the mistake must be apparent from record and in the present case, the mistake pointed out by A.O in his notice u/s 154 was not apparent from record or obvious and patent mistake. The AO states that assessee has surrendered Rs. 22,19,560/- during the search action as an undisclosed income for the year on which tax rate is to be charged as per provisions of section 115BBE as amended by Taxation Laws (Second Amendment Act), 2016. It was submitted that in this case, the assessee in his return of income furnished u/s 139 declared the said income of Rs. 22,19,560/- as "current year's business income offered to tax" and in return, it was shown as business income which is not an income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D as is evident from copy of return, Profit and loss account and balance-sheet of the assessee. It was accordingly submitted that the assessee did not apply provisions of section 115BBE w....
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....oceedings initiated u/s 154 of the Act. In support, the reliance was placed on Hon'ble Supreme Court decision in case of Karimtharuvi Tea Estate Ltd. vs. State of Kerala [1966] 60 ITR 262 (SC). 9. Per contra, the ld DR submitted that the assessee filed the return of income declaring income of Rs. 41,78,390 which includes as income of Rs. 22,19,590 surrendered in respect of cash found from Shri Atul Kumar Gupta and which has been owned up by the assessee. In order passed under section 143(3), the AO specifically mentioned that the income declared by the assessee included income of Rs. 22,19,590 surrendered on account of cash. Once, this fact is mentioned in the assessment order, the correct rate of tax is as per section 115BBE, though, the section is not mentioned by the AO. Therefore, it is clearly a mistake apparent from record as the wrong rate has been charged and which is sought to be rectified by the AO. It was further submitted that from perusal of ground no. 2 of the assessee's appeal, it is clear that the assessee has not challenged the applicability of section 115BBE of the Act and has only challenged the amendment brought in by the Taxation (Second Amendment) Act, 2016....
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....on as an undisclosed income for the year under consideration, on which tax rate was to be charged as per provision of section 115BBE of the I.T. Act. Secondly, he has stated that during the assessment proceedings, the tax rate on surrendered income u/s 115BBE of the Act has been charged @ 30%. And thirdly, as per amended provisions of section 115BBE of the Act as applicable in the instant case, the tax rate should have been charged @ 60% on the above surrendered amount. 12. If we look at the provisions of section 115BBE, it provides that where the total income of the assessee includes any income referred to in section 68 , section 69, section 69A , section 69B , section 69C or section 69D, the income tax payable shall be at the rate of 30% on income so referred in said sections. Further, in terms of amended provisions of section 115BBE by the Taxation Laws (Second Amendment Act), 2016, it provides that where the total income of the assessee includes any income referred to in section 68 , section 69, section 69A , section 69B , section 69C or section 69D and reflected in the return of income furnished under section 139 or the total income of the assessee determined by the A....