TMI Blog2020 (11) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... l rates. AO completed the assessment after considering the explanation offered by the assessee. In the explanation, the assessee has explained as to why the same should be treated as business income and the provisions of section 69 and section 115BBE are not applicable. The assessee also relied on various case laws supporting his argument as to why the excess stock/cash should be treated as business income. Therefore, it is apparently clear from the records that though the AO did not mention specifically with regard to verification of the issues, the AO examined the issues in detail, considering the facts and the case laws relied upon by the assessee, taken a conscious decision to assess the excess stock/cash as business income instead of unexplained investment u/s 69 of the Act. Therefore revisiting the same issue which was already considered by the AO constitutes difference of opinion and on difference of opinion revision u/s 263 is not permissible. See SPECTRA SHARES SCRIPS PVT. LTD. [ 2013 (6) TMI 173 - ANDHRA PRADESH HIGH COURT] and G.V.R. ASSOCIATES [ 2017 (4) TMI 393 - ITAT VISAKHAPATNAM] - Decided in favour of assessee. - I.T.A.No.141/Viz/2020 - - - Dated:- 23-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the AO has taken a conscious decision to assess the same as business income and not u/s 69 of the Act. Therefore, there is no case for revision u/s 263, hence requested to set aside the order of the Pr.CIT and allow the appeal of the assessee. 4. On the other hand, the Ld.DR supported the orders of the Ld.Pr.CIT. 5. We have heard both the parties and perused the material placed on record. On going through the assessment order, we find that though the AO made the addition of ₹ 20,32,581/- as undisclosed income, no addition was made u/s 69 of the Act. The AO did not invoke section 68/69 separately in the assessment order. The income required to be taxed @60% in case the undisclosed income representing section 68 to section 69C of the Act. In this case, the AO has not invoked any such section. The assessee placed paper book and as per paper book page No.58, it is seen that the AO called for the information regarding excess stock of ₹ 7,74,270/- and excess cash of ₹ 9,37,170/- and also called for explanation of the assessee as to why both the items should not be taxed u/s 69 applying the tax rate @60%. The assessee furnished explanation which is place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that we are engaged in the business of jewellery. In view of our submissions acceptance of excess stocks as undeclared income is to be treated at only business income and provisions of section 69 and 115BBE are not applicable in our case. 3. It is further stated that during the course of search operations on physical verification of cash of ₹ 9,37,170 was found as compared book balance maintained by us. In the deposition given by one of our director Sri Fazalul Rahaman Khan has explained that the excess cash accumulated is due to unaccounted sales over a period. However, as he could not explain details for such variation in cash, accepted ₹ 9,37,170 as undisclosed business income. However, it is stated in the notice under section 142(1) that such unaccounted income is assessable under section 69 and liable for tax under section 115BBE and no set off of losses permitted and asked our objections if any. In this regard, we submit that the excess cash found during the search operation is not separately and clearly identifiable but is part of unaccounted sales fund on the date of search as per books. Since excess cash is a result of suppression of sales from busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 63 of the Act. This view is supported by the decision of Hon ble A.P. High Court in the case of Spectra Shares and Scrips (P) Limited Vs. Commissioner of Income Tax III, Hyderabad reported in (2013) 36 taxmann.com 348 (Andhra Pradesh). Hon ble jurisdictional High Curt in the case laws cited supra held that merely because of difference of opinion, Pr.CIT cannot invoke his powers u/s 263 of the Act. For the sake of clarity and convenience, we extract relevant part of the order of the Hon ble Andhra Pradesh High Court in para No.59 which reads as under : 59 . The contention of the Revenue that the Assessing Officer had not applied his mind to the material on record cannot be accepted because the respondent in his order dated 31.03.2011 specifically records a finding at Para 5.1 that there is application of mind by the Assessing Officer. The Revenue cannot raise a plea which is not contained in the order of the respondent and is contrary to it and to the record. The contention of the Revenue that there are no reasons given by the Assessing Officer about the nature of activity of the assessee cannot be accepted because a query was raised by him in the course of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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