TMI Blog2019 (5) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the CIT(A) was not justified in confirming the action of the AO for making the rectification u/s 154. Accordingly, the impugned order is set aside and it is held that the provisions of section 154 of the Act were not applicable in the present case and the AO was not justified in making the rectifications u/s 154. - Appeals of the assessee are allowed. - ITA No. 371/Jodh/2018, ITA No. 372/Jodh/2018, ITA No. 373/Jodh/2018, ITA No. 374/Jodh/2018, ITA No. 375/Jodh/2018 - - - Dated:- 10-5-2019 - Shri N.K. Saini, Vice President For the Assessee : Shr Rajendra Jain, Advocate For the Revenue : Sh. P.K. Singi, DR ORDER These five appeals by different as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. The assessee surrendered a sum of ₹ 7 lacs as additional income in the year under consideration. Thereafter, the Assessing Officer issued notice dated 18.11.2016 u/s 154 of the Act stating that the income which was surrendered during the course of survey attracted provisions of section 69 of the Act and as per the section 115BBE of the Act, the tax should have been calculated @ 30%. The Assessing Officer sought the explanation of the assessee. In response, the assessee submitted that since the provisions of section 69 were not applicable in this case, therefore, section 115BBE should not have been applied and furnished written submissions which is incorporated by the Assessing Officer in order dated 26.12.2016, pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee and held that the surrendered amount was subject to tax @ 30% u/s 115BBE of the Act. 7. Being aggrieved, the assessee carried the matter to the Ld. CIT(A) and submitted as under;- In this regard it is stated that there was a survey at the business premises of the assessee and during the course of survey unrecorded stock of guwar of ₹ 7,00,000/- was found. This was not found recorded in the books of accounts as the books of the assessee were not complete at that time. Anyhow without going into controversy the assessee has agreed to disclose this as income in the income tax return and also agreed to pay the tax on the same. Accordingly the assessee has filed the return of income and disclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pression 'mistake apparent from record. Accordingly, the action of the Assessing Officer was confirmed. 10. Now the assessee is in appeal. 11. The Ld. counsel for the assessee submitted that the issue was highly debatable, so, the provisions of section 115BBE were not applicable. Reliance was placed on the decision of the ITAT Jodhpur Bench (SMC) Jodhpur in ITA No. 143/Jodh/2018 and others in the case of Shri Lovish Singhal, Sriganganagar Ors. Vs. ITO, Ward-2, Srigangagnagar for the assessment year 2014-15 order dated 25.5.2018 wherein it was held that a surrender of excess stock was not subjected to the tax u/s 115 BBE of the Act. A reference was made to para 13 of the said order, which reads as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act. 12. On the basis of above, it was submitted that this issue was a debatable issue, therefore, provisions of section 154 of the Act were not applicable. 13. In his rival submissions, the Ld. Sr. DR supported the orders of the authorities below. 14. I have considered the submissions of both the parties and perused the material available on the record. In the present case, it is an admitted fact that the Assessing Officer invoked the provisions of section 154 of the Act and held that the surrendered amount of the assessee was subjected to tax @ 30% as per the provisions of section 115BBE of the Act. However, on the said issue the ITAT Jodhpur (SMC) Bench vide its aforesaid referre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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