2025 (5) TMI 357 - AT - Income Tax

Correct head of income - whether the income from the two house properties should be treated as income from house property or income from business? - Disallowance of deduction under section 24(a) from rental income receipt - HELD THAT - Unlike properties which are rented out on long term basis individual rooms or tenements rented out for a day cannot be rented out as bare tenements because the daily occupiers would not be persons who would be visiting with their entire complement of furniture and beddings etc. In the circumstances whether it is stated or not it is fairly evident that the assessee was not only renting out the property on a day-to-day basis but that the only way that he could do it was also by providing certain facilities to those who would be taking the premises on rent or arranging for such facilities to be provided to them by third parties. Therefore it clearly seems to be an organized activity of a composite nature and the Courts have held that when the assessee runs an organized activity of a composite nature towards the earning of income it is to be treated as income from business. We also note that the decision of the Ld CIT(A) to accept the income from House property in the case of the wife of the assessee does not in any way affect the treatment of income of this nature as income from business in the hands the assessee firstly because of our findings on the nature of services that were necessarily to be offered and secondly because in that case the Ld CIT(A) did not consider this aspect of the matter. Therefore we uphold the decision of AO to treat the income from the renting of properties at Katra and Hewett Road as income from business and to disallow the deductions under section 24(a). However since the assessee is entitled to deduction on business assets we accept the alternative argument of the ld. AR that the assessee must be allowed the depreciation on WDV on these buildings annually in accordance with explanation 5 of section 32 of the Act. Ground No.7 is decided accordingly. Levy of tax u/s 115BBE with respect to the unrecorded investment in the purchase of the immovable property - Since the investment was not recorded in the books of accounts it was not recorded in the audit report and it was not disclosed in the return of income at the time of computation of income it can only be taken as a partly undisclosed investment under section 69B. We must also address the contentions of the Learned AR that because the assessee had offered an explanation the provisions of section 69 would not apply and if the explanation was not satisfactory a further opportunity was to have been given to the assessee to explain the nature and the source otherwise the actions of the AO were vitiated. In the first place we are in agreement with the Ld DR that explaining the source does not mean explaining just the head of income but must also state how the undisclosed investment was earned and when it was earned. Merely stating the head of income from which the unexplained investment was generated without stating the actual source and when it was earned would not amount to an explanation within the meaning of section 69. Therefore the assessee cannot escape the rigours of section 69 on this account. Hon ble Supreme Court in the case of MAK Data Pvt. Ltd. 2013 (11) TMI 14 - SUPREME COURT has held that the only valid disclosures are those which are made in accordance with the scheme laid down in the Act and that subsequent disclosures would not absolve the assessee from penal consequences if the conduct of the assessee shows an intention to conceal and in the present case we note that the conduct of the assessee over nearly two years shows the intention to conceal. AO was right in bringing that portion which had not been disclosed to tax under the special provisions of section 69 and would be bound to thereafter levy the tax under the provisions of section 115BBE. It could be argued that section 69B ought to be applied and not section 69 but since the actions of the AO are quite clearly in accordance with the intent and purpose of the Act we hold that section 292B will apply and the addition would not be hit on that count We therefore find no infirmity in the order of the ld. AO on this account and we confirm his actions. Charging of a sum to tax under the provisions of section 68 - We observe that the assessee has submitted before the ld. CIT(A) that he has since repaid the amount. Accordingly we restore this matter back to the file of the ld. AO with a direction to the assessee to provide evidence of such payment of the amounts to the sundry creditors whereupon the ld. AO give the assessee necessary relief in this regard. Appeal of the assessee is partly allowed.

Summary

The core legal questions considered in this appeal include:

1. Whether the invocation of section 69 of the Income Tax Act, 1961, to treat an unexplained investment of Rs. 1.85 crores in the purchase of immovable property as income, was legally justified given the facts and explanations offered by the assessee.

2. Whether the assessee's payment of tax on the Rs. 1.85 crores prior to the issuance of a specific assessment notice precluded the application of section 69 and the consequent levy of tax under the penal provisions of section 115BBE.

3. Whether the income from two house properties, let out on a daily basis with managerial arrangements, should be treated as income from house property or as business income, and the consequent allowance or disallowance of deductions under section 24(a).

4. Whether the addition of Rs. 3,96,606 as unexplained cash credits under section 68 was justified, considering the evidences and subsequent repayment claimed by the assessee.

5. Whether the principles of natural justice were violated by the assessing authority in making additions and levying tax without affording adequate opportunity to the assessee to explain the nature and source of the alleged unexplained investment.

Issue 1 & 2: Invocation of Section 69 and Application of Section 115BBE on Unexplained Investment of Rs. 1.85 Crores

The legal framework governing unexplained investments is primarily contained in section 69 of the Income Tax Act, which deems any investment not recorded in the books of account and for which the assessee fails to provide a satisfactory explanation regarding the nature and source, as income of the assessee for the relevant financial year. Section 115BBE prescribes a special penal rate of tax for such income. The burden lies on the assessee to satisfactorily explain the source and nature of the investment to avoid its characterization as unexplained.

Precedents such as the Supreme Court's ruling in MAK Data Pvt. Ltd. vs. CIT emphasize that voluntary disclosure must be made in accordance with the Act's scheme, and mere belated disclosure or payment of tax after detection does not absolve the assessee from penal consequences if the conduct evidences concealment.

In this case, the Court noted that during a survey under section 133A, the assessee admitted an undisclosed investment of Rs. 1.85 crores in the purchase of a property, which was not recorded in books or return. Although the assessee paid tax on this amount before the issuance of a specific notice under section 142(1), the payment was nearly one year and ten months after the survey and after filing the original return. The assessee contended that this was a bona fide inadvertent omission and that the tax payment demonstrated good faith, thus precluding invocation of section 69 and 115BBE.

The Court rejected this contention, holding that mere payment of tax after detection but without proper disclosure of the source and timing of the income does not satisfy the requirements of section 69. The assessee failed to explain how and when the income was generated, and did not revise the return or adjust accounts to reflect the previously undisclosed income. The Court emphasized that an explanation limited to stating the head of income (e.g., undisclosed business or rental income) without detailing the source and timing is insufficient.

Further, the Court observed that the assessee was aware of the incriminating material and had received copies of impounded documents well before filing the return but did not incorporate the amount in books or return. The delay in tax payment and failure to disclose the investment in the audited accounts or return indicated an intention to conceal, thus justifying the invocation of section 69 and levy under section 115BBE. The Court also noted that the assessee was not prevented from paying tax or filing a revised return prior to assessment completion, and the failure to do so weakened the claim of bona fide disclosure.

The Court also addressed the argument that the assessee was not given an opportunity to explain the nature and source of the investment before additions were made. It held that since no explanation was offered initially, the question of whether the explanation was satisfactory did not arise. The Court found no violation of natural justice in this context.

Accordingly, the Court upheld the addition under section 69 and tax levy under section 115BBE on the Rs. 1.85 crores.

Issue 3: Treatment of Rental Income from Two House Properties as Business Income or Income from House Property

The relevant legal provisions include the Income Tax Act's heads of income classification and section 24(a) which allows a flat 30% deduction on income from house property towards repairs and maintenance. The nature of rental income depends on whether the property is let out as a bare tenement or as part of an organized business activity providing additional facilities.

The Court examined the facts that the assessee let out two properties on a daily basis to pilgrims and travelers, employed managers to oversee the properties, and incurred expenses including salaries of managers. The daily letting arrangement implied that the properties were not let out as bare tenements but involved additional services and organized activity.

The Court held that such organized composite activity of letting on a day-to-day basis with managerial arrangements constitutes a business activity and the income should be treated as business income. Consequently, deductions under section 24(a), which apply only to income from house property, were rightly disallowed.

The Court rejected the assessee's argument that the properties were held as investments and that the income should be treated as income from house property. It also distinguished a different treatment given to the assessee's spouse in a separate case, noting that the facts and services involved were materially different.

However, the Court accepted the assessee's alternative argument that if the income was treated as business income, the assessee was entitled to claim depreciation on the buildings under section 32(1) read with explanation 5. The Court directed that depreciation be allowed accordingly.

Issue 4: Addition under Section 68 on Unsecured Loans and Sundry Creditors

Section 68 deals with unexplained cash credits, which can be added to income if the assessee fails to satisfactorily explain the nature and source of such credits. The assessee submitted ledger accounts, bills, and bank statements and claimed to have repaid the amounts in question.

The Court noted that the lower authorities had found contradictions in the confirmation evidence and therefore upheld the addition. However, recognizing the repayment claim, the Court restored the matter to the assessing officer with directions to verify evidence of repayment and grant relief if justified.

Issue 5: Principles of Natural Justice and Opportunity to be Heard

The assessee contended that the assessing officer violated principles of natural justice by making additions under section 69 and levying tax under section 115BBE without giving an opportunity to explain the nature and source of the investment.

The Court observed that the assessee had not initially offered any explanation of the nature and source of the investment, and that the question of whether the explanation was satisfactory arises only if an explanation is offered. Since no such explanation was furnished prior to the addition, no violation of natural justice occurred.

Furthermore, the Court noted that the assessee had ample opportunity during assessment proceedings to explain and produce evidence but failed to provide a satisfactory explanation.

Additional Observations and Findings

The Court carefully analyzed the timeline of events, including the survey, statements recorded, filing of return, issuance of notices, and payment of tax. It concluded that the assessee's conduct indicated an intention to conceal income rather than a bona fide inadvertent omission.

The Court emphasized that voluntary disclosure must be complete, timely, and accompanied by appropriate tax payments and adjustments in accounts to avoid penal consequences under sections 69 and 115BBE.

The Court also clarified that the mere classification of income under a particular head does not absolve the assessee from the requirement of explaining the source and nature of undisclosed investments.

Significant Holdings:

"Merely stating the head of income from which the unexplained investment was generated without stating the actual source and when it was earned would not amount to an explanation within the meaning of section 69."

"Where the assessee has made investment which was not recorded in the books of accounts, the value of such investments would be deemed to be the income of the assessee for such financial year."

"The only circumstance in which the investment may not be treated under section 69 and 115BBE is if the assessee indicates exactly how the money for the unexplained investment was generated and when it was generated and thereafter makes the necessary adjustments in his accounts to account for that escaped income."

"An organized activity of a composite nature towards the earning of income from letting out properties on a day-to-day basis with managerial arrangements is to be treated as business income."

"No violation of natural justice occurs where the assessee has not offered any explanation of the nature and source of the investment prior to the addition."

Final Determinations:

1. The addition of Rs. 1.85 crores as unexplained investment under section 69 and taxation under section 115BBE was upheld, as the assessee failed to provide a satisfactory explanation of the nature and source of the investment and did not make timely disclosure or tax payment.

2. The income from the two house properties let out on a daily basis was correctly treated as business income, and the disallowance of deductions under section 24(a) was justified. However, depreciation under section 32(1) was allowed as an alternative relief.

3. The addition under section 68 of Rs. 3,96,606 was set aside and remanded for verification of repayment evidence, with directions to grant relief if substantiated.

4. There was no breach of natural justice in making additions without prior opportunity to explain, as no explanation was initially offered by the assessee.

5. The appeal was partly allowed in respect of the section 68 addition and depreciation claim, and dismissed in all other respects.