TaxTMI 
TaxTMI 
2023 (4) TMI 1405
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....CIT(A) is erroneous, is contrary to law and opposed to the facts and circumstances of the case and principles of natural justice. No Opportunity to Explain Commission Receipts: (ii) The Learned AO/CIT(A) ought to have examined the details pertaining to the commission receipts before disallowing the same. (iii) The Learned AO/CIT(A) has not provided any opportunity and has merely made the addition without issuing a show-cause notice or a 2° hearing, (iv) The Learned CIT(A) has also failed to adjudicate grounds raised in the Appeal. Cash already Recorded in Books - Addition_uls 69A Bad In Law: (v) Without Prejudice to the above, the Learned AO/CIT(A) should have noted that the Appellant has fully recorded the commission receipts earned in the books of accounts and has also offered the same to tax. (vi) The Learned AO/CIT(A) failed to note that addition u/s 69A can only be made when Cash/Assets are not recorded in the books of accounts. (vii) The Order of Learned AO/CIT(A) is opposed to the very basis of Section 69A, which is meant only for Unexplained Assets not recorded in the Books of Accounts. Cash Of Family Members Living In The Same Residence Not C....
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....which were subjected to tax as per provisions of section 115BBE of the Act. 4. Aggrieved, assessee(s) preferred appeal before the CIT(A), challenging the action of the ld. AO stating that the search was carried out on the last day of financial year. The excess cash accepted to be a commission income and therefore, it should not have been assessed as income u/s. 69A of the Act. An alternate argument was also taken that the assessee lives in a joint family, where there are 17 income tax assessees and the cash seized during the search belongs to all the family members. The reference was also made to the names of 17 family members and cash recorded in their books of accounts. However, submission made by the assessee did not satisfy the ld. CIT(A) and he observed that the assessee has miserably failed to furnish the details of the commission income, if any earned during the year and the activity undertaken by him to earn such income and in absence of such details, the ld. AO has rightly held it to be unaccounted cash u/s. 69A of the Act. In so far as, alternate plea of the assessee that the cash belongs to various family members, ld. CIT(A) did not touch upon this issue, since the asse....
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.... only to Shri. Goutham Chand Jain and Shri. Sumermal Kanthilal Jain. He also submitted that ld. CIT(A) has not adjudicated the issue even though complete details were filed including cash in hand available with some family members. 8. So far as, first fold of contention that no opportunity was granted by ld. CIT(A), we fail to find any merit as sufficient opportunity was given by both the lower authorities. 9. So far as, second fold of contention is concerned that ld. AO erred in treating the income from other source as unexplained income u/s. 69A of the Act and proceeding ahead to tax the alleged income u/s. 115BBE of the Act, we will first go through the provisions of section 69A and section 115BBE of the Act for the sake of examining the instant case. Section 69A of the Act: 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, jewellery or other valuabl....
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.... income. Now, a step further we notice that the assessee in compliance of notice u/s. 153A of the Act has filed return of income and included the said income i.e. Rs. 50 lakhs in the hands of Shri. Sumermal Kanthilal Jain and Rs. 35 lakhs in the hands of Shri. Goutham Chand Jain, showing it under the head income from other source. Admittedly, assessee has not shown it as business income, but as income from other source. Now, even if this is shown as income from other source, ld. AO is within his jurisdiction to call for the source of said income, because, the assessee in order to avoid from falling under provisions of section 69A of the Act is bound to explain the source of such income which was admitted to be not recorded in the books and was expressly conveyed as undisclosed income. Even at that stage, assessee had all fair chances to explain the source of said commission income. Assessee(s) were required to furnish documentary evidence in support of its claim that it had earned commission income and also to show that what was the activity carried out by them by which they earned commission income. Though, they may not have filed contracts or agreement for earning such income, bu....