2022 (6) TMI 1413

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....als by way of this common order. ITA No. 245/Ind/2021 - in the case of Shri Shyam Lal Goyal: 2. In this appeal, the assessee has raised following Grounds: "1. That on the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in maintaining the provision of section 69A of the Income Tax Act on the amount of additional income of Rs. 7,57,290/- as offered during the course of survey on account of excess cash found during survey even when the only source of income of the appellant was from his business and liable to tax under section 28 to 44 of the Income Tax Act. Thus, the provision of section 69A of the Income Tax Act as maintained by the ld. CIT(A) on additional income was neither legal nor proper. 2. That on the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in maintaining the chargeability of tax at higher rate by invoking the provision of section 115BBE of the Income Tax Act on additional income of Rs. 7,57,290/- as offered during the course of survey on account of excess cash found. The tax as charged at higher rate on additional income was neither legal nor proper. 3. The appellant reserves his right to add, alter and....

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....ee, it is patently clear that excess-cash found in the cash-box of business is a part and parcel of the business carried on by the assessee and therefore represents business-income of assessee. Ld. AR also relied upon following decisions: (i) Hon'ble ITAT, Chandigarh in Famina Knit Fabs Vs. ACIT, ITA No. 14945/Chd/2017 order dated 08.02.2019 (ii) Hon'ble Rajasthan High Court in CIT Vs. Bajrang Traders, DBIT No. 258/2017 dated 12.09.2017 (iii) Hon'ble ITAT Jodhpur in Lovish Singhal & Others V/s ITO, ITA No. 143/Jodh/2018 order dated 25.5.2018. (iv) Hon'ble ITAT Ahmedabad Bench in Chokshi Hiralal Mangilal Vs DCIT, ITA No. 3281/Ahd/2009 dated 14.10.2009. (v) Hon'ble ITAT, Guwahati in Abdul Hamid Vs. ITO (2020) 117 taxmann.com 986 (vi) Hon'ble ITAT, Chandigarh in Shri Bhuwan Goyal Vs. DCIT, ITA No. 1385/Chd/2019 Lastly the Ld. AR also contended that during first appellate proceeding, the Ld. CIT(A) has himself accepted the unaccounted debtors of Rs. 24,80,000/- as part of business-income taxable at normal rate and the revenue has not challenged this action of Ld. CIT(A), then there is no justification in giving a different treatment to the excess-cash because both unaccoun....

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....d sources, therefore he is unable to give explanation of its source". 9. Now we proceed to check whether this statement of assessee fits in the clutches of section 69A or not. Section 69A "69A. Where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and such money, bullion, jewellery or valuable article is not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of acquisition of the money, bullion, jewelry or other valuable article, or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the money and the value of the bullion, jewelry or other valuable article may be deemed to be the income of the assessee for such financial year." Thus, section 69A is applicable if three conditions are satisfied, viz. (i) the assessee is found to be owner of any money; (ii) such money is not recorded in the books of account maintained for any source of income; and (iii) the assessee offers no explanation about the nature and source of acquisition of money. Reverting back to the stat....

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....eivables, sundry creditors & advances of business, gross profit on unrecorded sales, investment in kothi and loose papers but there was no issue of excess cash. Moreover a closer scrutiny of the decision demonstrates that the Hon'ble Bench has accepted only unaccounted receivables, sundry creditors & advances of business and gross-profit as business-income. But the Hon'ble Bench has clearly held the investment in Kothi and income arising from loose papers was taxable u/s 69 to 69C for the reason that the assessee had not explained the source of those incomes. Next is the decision of Hon'ble Rajasthan High Court in CIT Vs. Bajrang Traders, DBIT No. 258/2017 dated 12.09.2017, wherein the issue involved was of excess stock of business. Next is the decision of Hon'ble ITAT Jodhpur in Lovish Singhal & Others V/s ITO, ITA No. 143/Jodh/2018 order dated 25.5.2018. This decision of Hon'ble Jodhpur Bench is also not applicable since the decision is of the Single Bench and is not binding on double bench of Tribunal. With this very reasoning, the Indore Bench has already dissented from this decision of ITAT Jodhpur, in Rajesh Kumar Bajaj ITA No. 16/Ind/2019, order dated 09.03.2020 (supra).....

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....ess cash is taxable u/s 69A read with section 115BBE. The conclusions taken by lower authorities do not require our interference. 14. In the result, ITA No. 245/Ind/2021 is dismissed. ITA No. 246/Ind/2021 - in the case of Shri Lokesh Mangal: 15. In this appeal, the assessee has raised following Grounds: "1. That on the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in maintaining the provision of section 69A of the Income Tax Act on the amount of additional income of Rs. 2,68,555/- as offered during the course of survey on account of excess cash found during survey even when the only source of income of the appellant was from his business and liable to tax under section 28 to 44 of the Income Tax Act. Thus, the provision of section 69A of the Income Tax Act as maintained by the ld. CIT(A) on additional income was neither legal nor proper. 2. That on the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in maintaining the chargeability of tax at higher rate by invoking the provision of section 115BBE of the Income Tax Act on additional income of Rs. 2,68,555/- as offered during the course of survey on account of excess ca....