TMI Blog2020 (6) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... ent/variation either in the quantum, nature or classification of income so offered by the assessee - HELD THAT:- Though the Assessing officer has issued a show-cause as to why penalty proceedings u/s 271(1)(c) may not be initiated in respect of such investment, however, he has not issued any show-cause for invoking provisions of section 69 of the Act or has called for any explanation of the assessee regarding the nature and source of such investment. In fact, the assessment order so passed by the Assessing officer is silent about invoking the provisions of section 69 of the Act. Where the provisions of section 69 have not been invoked by the Assessing officer while passing the assessment order u/s 143(3), going by the plain language of sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n undisclosed investment of ₹ 21,00,000/- surrendered during the course of survey proceedings. 2. Briefly stated, the facts of the case are that a survey u/s 133A was conducted on 29.08.2013 at the business premises of the assessee. During the course of survey proceedings, stock was physically verified and valued at ₹ 46,07,640/- and the assessee surrendered an amount of ₹ 21,00,000/- as undisclosed investment in stock from undisclosed income. The surrendered income of ₹ 21,00,000/- was thereafter offered and reflected in return of income filed by the assessee for the year under consideration. Subsequently, the matter was taken up for scrutiny and the returned income of ₹ 22,80,070/- filed by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have independent identity but is integral and inseparable part of declared asset, falling under a particular head, then the difference should be treated as undeclared business income explaining the investment. Further, reliance was placed on the Co-ordinate Bench decision in case of DCIT vs. Ram Narayan Birla (482/JP/2015 dated 30.09.2016). 4. The submission so filed by the assessee was considered but not found acceptable to the Assessing Officer. As per the Assessing officer, during the course of survey proceedings, the assessee has surrendered an amount of ₹ 21,00,000/- as undisclosed investment in stock from undisclosed income and the issue has been elaborately discussed in the assessment order passed u/s 143(3) of the Act. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BBE are clearly attracted and there cannot be two views about it. 7. Per contra, the ld. AR relied on the findings of the ld. CIT(A) and submitted that the amount surrendered during the course of survey has been duly offered by the assessee as business income while filing his return of income and the said return of income has been accepted by the Assessing Officer. It was submitted that there is no finding recorded by the Assessing officer while passing the assessment order that the provisions of section 69 are attracted in the instant case and in absence thereof, the provisions of section 115BBE cannot be applied. Further, reliance was placed on the Coordinate Bench decision in case of DCIT vs. Ram Narayan Birla (supra). 8. We have h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h which the assessee would have been chargeable had his total income been reduced by the amount of income referred to in clause (a). 10. The provisions of section 115BBE thus provides that where the income of the assessee includes any income referred to in section 69, the income tax payable shall be at the rate of 30% on income so referred in section 69 and on the remaining income, the amount of income-tax with which the assessee would have been chargeable had his total income been reduced by the amount of income referred in section 69. In other words, it provides for a special rate of taxation at the rate of 30% as against the normal rate of taxation which may be applicable to the assessee. The question is whether assessee s income in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee regarding the nature and source of such investment. In fact, the assessment order so passed by the Assessing officer is silent about invoking the provisions of section 69 of the Act. Where the provisions of section 69 have not been invoked by the Assessing officer while passing the assessment order u/s 143(3), going by the plain language of section 115BBE, the latter cannot be invoked in the instant case. 12. It is therefore not a case where provisions of section 69 have been invoked by the Assessing officer while passing the assessment order u/s 143(3) and at the same time, he has failed to apply the rate of tax as per section 115BBE of the Act. Had that been the case, it would clearly be a case of rectification and powers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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