AI Drafter 
TaxTMI 
TaxTMI 
2023 (2) TMI 960
X X X X Extracts X X X X
X X X X Extracts X X X X
.... illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the order issued by the ld. A.O. u/s 154. 2. In the facts and circumstances of the case and in law, Id. CIT(A) has erred in not considering the submission that not invoking section 68/69 and 115BBE in the original assessment, is not an apparent mistake but it is a change of opinion, therefore order u/s 154 cannot be issued. The action of the Id. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the order issued by the ld. A.O. u/s 154. 3. In the facts and circumstances of the case and in law, Id. CIT(A) has erred in not considering the submission that the Ld. A.O. had not issued any show-cause notice for invoking provisions of section 69 of the Act. The action of the Id. CIT(A) is illegal. unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the order issued by the ld. A.O. u/s 154. 4. The Appellant craves his rights to add, amend or alter any of the grounds on or before the hearing." 3. The facts as culled out from the records is th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sed. It is observed that the addition made is on account of unexplained income. There is no dispute that the amount of Rs. 2,00,000/- have been added by considering the same as undisclosed income. In the case of the undisclosed income section 68 has to be applied and once the income is assessed u/s 68 then automatically the provisions of section 115BBE are applicable. Since in the present case the Assessing Officer has by mistake not applied the said applicable Income-Tax provision, therefore the same has been sought to be rectified by applying section 154. This is something which is quite apparent from record. It is provided in law that once an addition is made under a particular section then the tax rate applicable shall be as per another particular section that in the present case happens to be 115BBE. The Assessing Officer has followed the due procedure, he has given the opportunity of being heard to the appellant and thereafter has accordingly applied the section 115BBE provisions. The case law supra relied upon by the appellant is not applicable in the present case because that case is a case of unexplained stock and that too in a situation where survey was carried out. Where....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of undisclosed income, section 68 has to be applied. The question is whether assessee's income involves income referred to in section 68, It would be appropriate to read provisions thereof as under: "68. Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year: [Provided that] where the assessee is a company (not being a company in which the public are substantially interested), and the sum so credited consists of share application money, share capital, share premium or any such amount by whatever name called, any explanation offered by such assessee-company shall be deemed to be not satisfactory, unless- (a) the person, being a resident in whose name such credit is recorded in the books of such company also offers an explanation about the nature and source of such sum No credited; and (b) such explanation in the opinion of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tional ITAT has mentioned in para 12 as given above that: "the Assessing officer has not invoked the provisions of section 69 at first place while passing the assessment order u/s 143(3), therefore, the provisions of section 115BBE which are contingent on satisfaction of requirements of section 69 cannot be independently applied by invoking the provisions of section 154 of the Act." Facts of the present case are similar to the extent of non-invoking of section 68/69 in the first assessment order and later on, the Ld. A.O. invoked the same through section 154. 2. In the facts and circumstances of the case and in law, Id. CIT(A) has erred in not considering the submission that not invoking section 68/69 and 115BBE in the original assessment, is not an apparent mistake but it is a change of opinion, therefore order u/s 154 cannot be issued. The action of the Id. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the order issued by the Id. A.O. u/s 154. The Id A.O. has not invoked section 68/69 in first assessment order. Later on, the Id A.O. changed his opinion by invoking section 6....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... has deposited a sum of Rs. 15,40,000/- as against the allegation of the revenue for Rs. 27,90,000/-. The revenue has disputed the fact the assessee is engaged in the labour work and interest income. His source of income on a one particular day out of Rs. 4,00,000 deposited only part amount was not considered by the ld. AO as income arising out of the small business activity done by the assessee. The ld. AO did not give specific finding that whether for this amount he has initiated the provision of section 68, 69,69A or 69B. Even the assessee was no confronted by the assessee while making the addition and looking to the smallness of the amount added as regular income of the assessee. Now, in proceeding u/s. 154 the ld. AO cannot review his own order and levy the tax rate as provided in those sections for which specific tax rate u/s. 115BBE is enacted. To drive home to this contention the ld. AR of the assessee has relied upon this co ordinate bench decision in the case of ACIT vs. Shri Sudesh Kumar Gupta in ITA No. 976/JP/2019 dated 09.06.2020. 7. Per contra ld. Sr. DR appearing on behalf of the assessee reiterated the finding of the lower authorities and submitted the fact of t....