2025 (7) TMI 518 - AT - Income Tax

Income as offered during survey - evidence of suppression of sale price of scrap was found - HELD THAT - Facts are not disputed that the assessee is engaged in the manufacturing of scaffolding and there was a survey on 08.10.2018. During survey the evidence of suppression of sale price of scrap was found which have been mentioned in the surrender letter in the assessment order and since the source of the amount surrendered during survey to the tune of Rs. 1.60 crores were out of the business income and also during survey no such other activity has been noticed other than normal business activity in which the assessee is engaged in manufacturing of scaffolding. Even during survey the statement of one partner namely Sh. Vaneet Garg was recorded in which he has offered such difference in the sale price of scrap as additional business income. In respect of wages and salary the partner also stated that the same is being considered for the purposes of surrender. Thus under such circumstances we are of the considered view that the finding of CIT(A) needs no interference. We also find that the judgment of Khushi Ram Sons 2016 (7) TMI 1100 - PUNJAB HARYANA HIGH COURT have been considered by the Chandigarh Bench of the ITAT in the case of Famina Knitfab 2019 (5) TMI 8 - ITAT CHANDIGARH and thus the income as offered during survey at Rs. 1.60 crores is to be taxed as normal business income. Addition of Rs. 25, 55, 946/- on account of one seized document - Assessee adequately explained by way of detailed chart which have been analyzed and discussed by the CIT(A) in the order. The Assessing Officer could not rebut anything during remand proceedings. Thus we find that the CIT(A) has rightly deleted the addition of Rs. 25, 55, 946/-. Further the addition of Rs. 8, 95, 342/- as per seized document reproduced at page 8 and 56 of the order of CIT(A) there is clear mention in the seized document itself that the payment has been made through banking channels. Thus the CIT(A) has rightly deleted the addition. Addition on account of unsecured loan from Sh. Ashutosh Gupta the source of source has been provided by the assessee and interest have been paid after deducting TDS. Confirmation from Ashutosh Gupta alongwith ITR and Bank statement has been filed. Thus the identity genuineness of transaction and capacity of creditors stands proved. So under such circumstances the CIT(A) has rightly deleted the addition on this ground. Unexplained expenditure - CIT(A) has confirmed the extrapolation of the wages/salary for complete year though the evidence of the same was found only upto 08.10.2018. The contention of the assessee is based on the documentary evidence of the invoices of the parties from whom the material has been purchased on the date of survey i.e. 08/09 October 2018. Similarly labourers of transporters for the outgoing material which belongs to the transporter and the evidence of the same was also furnished during the period of survey. We are in agreement to hold that the extrapolation could not be made for 12 months. It is to be restricted to the evidence found during the course of search / survey i.e. upto 08.10.2018. CIT(A) has also given the benefit of persons employed of other parties on the Zinc Plant. Thus after considering the arguments of both the sides and by relying upon the judgment of Jurisdictional High Court and Chandigarh Bench it is held that the payment of Salary and wages outside the books of accounts have to be considered only upto 08.10.2018 i.e. till the time of survey. There is availability of funds on account of surrendered amount of Rs. 1.60 crores accordingly addition as confirmed by the CIT(A) to the tune of Rs. 1, 02, 10, 256/- is deleted. Thus Assessee s appeal on this ground / issue is allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal are:

(a) Whether the addition of Rs. 25,89,500/- on account of payment of salary and wages outside the books of accounts, confirmed by the CIT(A), was justified and whether such amount could be taxed as unexplained expenditure under section 69C and further under section 115BBE of the Income Tax Act, 1961.

(b) Whether the addition of Rs. 1,02,10,256/- (comprising Rs. 76,20,756/- plus Rs. 25,89,500/-) on account of unexplained wages/salaries could be sustained and taxed under section 115BBE, including the correctness of extrapolating such wages for the entire year beyond the date of survey (08.10.2018).

(c) Whether the relief claimed by the assessee for labourers of transporters engaged in loading/unloading of heavy material during survey was rightly denied, despite documentary evidence.

(d) Whether the surrendered income of Rs. 1.60 crore, offered during survey on account of difference in sale price of scrap and wages, represents normal business income or unexplained income liable to be taxed under section 115BBE or section 69.

(e) Whether the CIT(A) was justified in deleting certain additions made by the Assessing Officer (AO), including Rs. 25,55,946/- on account of seized documents, Rs. 8,95,342/- on account of salary payments through banking channels, Rs. 4,65,765/- on account of commission expenses disallowance under section 40(a)(ia), and Rs. 15,00,000/- on account of unsecured loan treated as unexplained cash credit under section 68.

(f) Whether the extrapolation of wages/salary payments beyond the date of survey was permissible in the absence of evidence.

2. ISSUE-WISE DETAILED ANALYSIS

(a) Addition of Rs. 25,89,500/- for payment of salary and wages outside books and its taxation under sections 69C and 115BBE

The legal framework involves section 69C which deals with unexplained expenditure and section 115BBE which prescribes a special tax rate on unexplained income. The AO treated the amount as unexplained expenditure and taxed it accordingly.

The assessee contended that the amount was part of business income and not unexplained, supported by documentary evidence including bank statements and payment details. The CIT(A) confirmed the addition but the Tribunal scrutinized the evidence including the seized documents and bank payment proofs.

The Tribunal found that payments for labourers engaged by third parties (such as transporters) were made through banking channels with TDS deducted, and the assessee had furnished detailed evidence. The CIT(A) had granted relief to the extent of Rs. 29,89,964/- for labourers of other parties. The Tribunal agreed that the payments were genuine and related to business activity, and thus the addition could not be sustained as unexplained expenditure beyond the date of survey.

The Tribunal held that extrapolation of such wages for the entire year was not justified without evidence, relying on the jurisdictional High Court judgment in V.M. Spinning Mills, which restricts extrapolation to the period evidenced by the survey.

(b) Addition of Rs. 1,02,10,256/- and taxation under section 115BBE

The AO made an addition of Rs. 1,02,10,256/- by extrapolating wages outside books for the whole year. The CIT(A) confirmed this addition and applied section 115BBE.

The assessee argued that the addition should be restricted to the period up to the survey date (08.10.2018) based on documentary evidence of invoices and bills for that period and that the extrapolation for the entire year lacked evidence.

The Tribunal accepted this argument, holding that extrapolation without evidence is impermissible. It relied on the V.M. Spinning Mills case and the coordinate bench decision in Gurdip Cycle Industries, both restricting extrapolation to the period covered by evidence. The Tribunal deleted the extrapolated portion beyond the survey date and allowed the appeal on this ground.

(c) Relief for labourers of transporters accompanying vehicles during survey

The assessee submitted documentary evidence including bills, photographs, and vehicle lists showing that labourers accompanying trucks for loading/unloading belonged to transporters and not the assessee. The AO included their wages in the addition, but the CIT(A) granted relief partly.

The Tribunal found that the documentary evidence was credible and that the AO had not conducted any enquiry from the labourers during survey. The inclusion of such labourers' wages in the assessee's income was held to be against the facts and circumstances. The Tribunal upheld the relief granted by the CIT(A) and disallowed the addition in respect of these labourers.

(d) Nature of surrendered income of Rs. 1.60 crore - business income or unexplained income

The AO treated the surrendered amount as unexplained income liable to tax under section 115BBE. The assessee contended it was business income arising from suppression of sale price of scrap and wages differences, supported by statements and documentary evidence.

The CIT(A) held that the surrendered amount was business income and not unexplained income under section 69 or 115BBE. The Tribunal concurred, noting that the assessee was engaged in manufacturing scaffolding, no other activity was found during survey, and the surrender was made as additional business income with corresponding entries in books and partners' capital accounts.

The Tribunal distinguished the decision in Khushi Ram & Sons relied upon by the department, referring to the coordinate bench decision in Famina Knitfab, which held that surrendered amounts from business activity are taxable as normal business income.

(e) Deletion of additions relating to seized documents, salary payments, commission expenses, and unsecured loans

The CIT(A) deleted additions of Rs. 25,55,946/- (seized documents), Rs. 8,95,342/- (salary payments through banking channels), Rs. 4,65,765/- (commission expenses disallowance under section 40(a)(ia)), and Rs. 15,00,000/- (unsecured loan under section 68).

The Tribunal upheld these deletions, noting that the assessee had furnished detailed reconciliations, confirmations from parties, bank statements, TDS certificates, and agreements (including foreign agent commission agreement and VAT certificate). The AO failed to rebut these evidences during remand proceedings. The genuineness, identity, and creditworthiness of creditors were established, and payments were routed through banking channels with proper documentation.

(f) Extrapolation of wages/salary payments beyond survey date

The AO extrapolated payments for the entire financial year despite evidence only up to 08.10.2018. The assessee challenged this extrapolation as unsupported by evidence.

The Tribunal relied on the jurisdictional High Court ruling in V.M. Spinning Mills and the coordinate bench decision in Gurdip Cycle Industries, which restrict extrapolation to the period for which evidence exists. It held that extrapolation beyond the survey date was impermissible and deleted the addition for the extrapolated period, allowing the appeal on this ground.

3. SIGNIFICANT HOLDINGS

The Tribunal made the following key findings and legal conclusions:

"The surrendered amount of Rs. 1.60 crore cannot be taxed as per the provisions of section 115BBE. Since the fact is that the said amount has been generated out of the same business and no other activity was found during survey, it is to be taxed as normal business income."

"The addition on account of payment of salary and wages outside the books of accounts is to be restricted only up to the date of survey i.e. 08.10.2018. Extrapolation beyond this period without evidence is not permissible."

"The labourers accompanying transporters' vehicles for loading and unloading heavy material are not employees of the assessee. Inclusion of their wages in the assessee's income is against documentary evidence and facts."

"Additions made on the basis of seized documents, unexplained cash credits, and commission expenses disallowance were rightly deleted by the CIT(A) as the assessee furnished credible evidence of identity, genuineness, and transactions through banking channels."

"The judgment in V.M. Spinning Mills and Gurdip Cycle Industries are authoritative for restricting extrapolation of unrecorded transactions to the period evidenced during survey or search."

In conclusion, the Tribunal dismissed the department's appeal and allowed the assessee's appeal by deleting the extrapolated additions beyond the survey date and confirming the treatment of surrendered income as business income, while upholding the deletion of various additions based on credible evidence.