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2023 (2) TMI 639 - AT - Income TaxAddition u/s 69A - amount surrendered during survey - application of section 115BBE - excess stock found during the course of survey and surrendered made - HELD THAT:- As in the present case the assessee has successfully explained the source of excess stock and excess cash found during the course of search & survey operation and surrendered during the said operation. CIT(DR) has not disputed or controverted very factual position that the assessee filed return of income including the surrendered amount and which was accepted by the AO without any dispute and without making any further addition in the hands of assessee u/s. 69A or any other section of the Act. As the assessee has successfully explained and established the source of excess stock and excess cash as his business activity and of trading in jewellery and gems and activity of Adat/dalali thus the benefit of proposition rendered in the case Kim Pharma (P.) Ltd. [2013 (1) TMI 495 - PUNJAB AND HARYANA HIGH COURT] is not available for the department in the present case. AO without making any addition u/s. 69A or any other provision of the Act has accepted returned income of the assessee wherein the assessee has included surrendered amount on account of excess stock and excess cash as business income and has successfully explained the source from where the said surrendered excess stock and excess cash was earned, which was business activity of assessee of trading in jewellery & gems and Adat/dalali in the same field. The coordinate bench of the Tribunal in the various orders including order in the case of Shri Lovish Singhal [2018 (5) TMI 1646 - ITAT JODHPUR] by following the judgment of Bajrang Traders (2017 (3) TMI 1828 - ITAT JAIPUR] observed that the excess stock found during the course of survey and surrendered made thereof was found to be taxable as business income under the head “Income from business & profession”. Identical facts and circumstances as noted above have been found to be existing in the present case then the Ld. CIT(A) was correct and justified in dismissing the contention of the AO and holding that the AO was not right in observing that the assessee is liable to be taxed as per provision of section 115BBE. Therefore, we too have no hesitation in concluding that the facts of present case do not bring the impugned income in the clutches of section 69/69A/69B and therefore do not warrant application of section 115BBE at all. - Decided against revenue.
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