2025 (6) TMI 1988 - AT - Income Tax

Rate of tax on Income offered during the course of survey u/s 133A - Additional income offered by the assessee on account of unexplained stock - Whether be taxed under the head business income OR u/s 69 / 69C r.w.s. 115BBE? - HELD THAT - Tribunal in the case of Vijay Shriram Gundale 2023 (8) TMI 1643 - ITAT PUNE following the decision of Bajargan Traders 2017 (11) TMI 388 - RAJASTHAN HIGH COURT reversed the order of the Ld. CIT(A) and directed the AO to consider the excess stock found during the course of survey as normal business income instead of attracting the provisions of section 69B r.w.s. 115BBE of the Act. Considering the fact that the only source of income of the assessee is from retail shoe trading and no other business activity has been found by the Revenue either during survey action or subsequently therefore the additional income so declared during the course of survey action has to be considered as business income to be taxed at normal rate instead of applying the provisions of section 69 / 69A / 69B / 69C r.w.s. 115BBE of the Act. We therefore uphold the order of the Ld. CIT(A) / NFAC and dismiss the grounds raised by the Revenue.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered in this appeal are:

(a) Whether the additional income offered by the assessee on account of unexplained excess stock amounting to Rs. 3,20,25,540/- should be taxed as business income or as unexplained investment under section 69 read with section 115BBE of the Income Tax Act, 1961 (the Act)?

(b) Whether the additional income on account of unexplained expenditure towards furniture and fixtures amounting to Rs. 19,98,263/- should be treated as business income or unexplained expenditure under section 69C read with section 115BBE of the Act?

(c) Whether the Assessing Officer was justified in invoking the provisions of sections 69/69C read with section 115BBE to tax the additional income declared during the survey action under section 133A of the Act, instead of treating it as normal business income?

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a) and (b): Tax treatment of additional income on account of unexplained stock and unexplained expenditure on furniture and fixtures

Relevant legal framework and precedents:

The provisions invoked by the Assessing Officer are sections 69 and 69C of the Act, which deal with unexplained investments and unexplained expenditure respectively. Both sections are read with section 115BBE, which prescribes a special tax rate for income assessed under these provisions. Section 69 applies when an assessee is unable to satisfactorily explain the nature and source of investments, while section 69C applies to unexplained expenditure. Normally, income declared as unexplained investment or expenditure is taxed at a higher rate under section 115BBE.

However, judicial precedents have clarified that when the additional income or excess stock/investment relates to the regular business activity of the assessee, such income should be assessed under the head "business income" and not as unexplained investment or expenditure attracting sections 69/69C and 115BBE. The Hon'ble Rajasthan High Court in Bajargan Traders (2017) 86 taxmann.com 295 held that excess stock found during survey, being investment in regular business stock, should be taxed as business income and not under unexplained investment provisions. Similarly, various Tribunal decisions (including Vijay Shriram Gundale, Yash Construction Co., and Late Harilal Mavjibhai Patel) have followed this principle.

Court's interpretation and reasoning:

The Tribunal noted that the assessee is engaged solely in retail footwear business and there was no material or evidence that the additional income declared during survey related to any other source or activity. The survey under section 133A revealed discrepancies in stock, cash, and expenditure on furniture and fixtures. The assessee's son, during statement under section 131, accepted the discrepancies and voluntarily declared the amounts as additional income.

The Assessing Officer rejected the explanations and invoked sections 69/69C read with 115BBE, treating the amounts as unexplained investments/expenditure. However, the CIT(A) and subsequently the Tribunal found this approach to be incorrect. The Tribunal observed that the additional income arose from the business activity itself, and the excess stock and expenditure were related to the business premises and operations.

The Tribunal relied on the statement recorded during survey, wherein the assessee explained that the excess cash and stock were out of business operations. The Tribunal also emphasized that the assessee had credited the additional income to the capital account by increasing stock and furniture & fixtures in the books, and that the closing stock for the year became the opening stock for the subsequent year, reinforcing the business nature of the income.

Key evidence and findings:

- Statement under section 131 during survey confirming excess stock and cash related to business operations.

- No evidence or material indicating any other source of income or activity.

- Books of account reflecting the additional income as part of business assets.

- Precedents from coordinate benches and High Courts supporting treatment of such additional income as business income.

Application of law to facts:

The Tribunal applied the principle that unexplained stock or expenditure relating to the regular business activity should be taxed as business income. Since the assessee's only source of income was retail shoe business, and the additional income arose from discrepancies in business stock and expenditure, the provisions of sections 69/69C read with 115BBE were not applicable.

Treatment of competing arguments:

The Revenue argued that the CIT(A) had no power to change the nomenclature of income declared by the assessee under "Income from other sources" to "business income" and that the provisions of sections 69/69C read with 115BBE were rightly invoked. The Tribunal rejected this contention, holding that the substance of the income and its source must govern the tax treatment rather than the mere head under which income was declared. The assessee's inadvertent declaration under "Income from other sources" did not alter the nature of income arising from business activity.

Conclusions:

The Tribunal concluded that the additional income declared on account of excess stock and unexplained expenditure on furniture and fixtures is to be treated as business income and taxed under normal provisions. The invocation of sections 69/69C read with 115BBE was held to be erroneous.

3. SIGNIFICANT HOLDINGS

The Tribunal held as follows:

"It is an admitted fact that the assessee is engaged in footwear business on retail basis under the name and style of M/s. Patel Shoes Company. The Revenue has no other information or material that the assessee is engaged in any other activity other than the shoe business on retail basis. Under these circumstances, we have to see as to whether the income so offered during the course of survey u/s 133A has to be taxed as normal business income or unexplained investment / unexplained expenditure u/s 69 / 69C r.w.s. 115BBE of the Act."

"The Hon'ble High Court of Rajasthan in the case of Bajargan Traders reported in (2017) 86 taxmann.com 295 (Rajasthan) was pleased to observe that the amount surrendered under unrecorded stock has to be brought to tax under the head 'business income' as the excess stock which has been found during the course of survey is the investment in procurement of such stock is clearly identifiable and related to the regular business stock of the assessee."

"Therefore, the additional income so declared during the course of survey action has to be considered as business income to be taxed at normal rate instead of applying the provisions of section 69 / 69A / 69B / 69C r.w.s. 115BBE of the Act."

"Hence, the action of the AO in applying the provisions of section 115BBE to the case of the appellant is held to be based on wrong appreciation of facts. Hence, the AO is directed to assess the income under the head business income only and under normal provisions of the tax."

The Tribunal thus established the core principle that additional income arising from excess stock or unexplained expenditure related to the regular business activity of the assessee must be assessed as business income under normal provisions, and not as unexplained investment or expenditure attracting the special provisions of sections 69/69C read with 115BBE.

Accordingly, the Tribunal dismissed the Revenue's appeal and upheld the order of the CIT(A) / NFAC allowing the assessee's appeal on this issue.