TMI Blog2021 (5) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, find merit in the contention of the assessee that in the absence of any adverse findings by the AO on the source of earning of the assessee, the authorities below have wrongly treated the amount in question as undisclosed income u/s 68 of the Act and computed the Tax liability under the provisions of section 115 BBE of the Act. We are of the considered view, the sole ground raised by the assessee is covered in favour of the assessee by the decision of the coordinate Bench in the case of Shri Bhuwan Goyal [ 2020 (10) TMI 27 - ITAT CHANDIGARH] . CIT(A) has erred in upholding the action of the AO in treating the amount in question as undisclosed income u/s 68 of the Act. Hence, respectfully following the decision of the coordinate Bench in the case discussed above, we allow the appeal of the assessee and set aside the impugned order passed by the Ld. CIT(A). Accordingly, we direct the AO to compute the Tax on the said amount treating the same as business income of the assessee. Appeal of the assessee is allowed. - ITA No.327/Chd/2020 - - - Dated:- 11-5-2021 - Shri N.K. Saini, Vice President And Shri R.L. Negi, Judicial Member For the Assessee : Shri Ashwani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- as income to be taxed u/ s 115BBE of the Income Tax Act, 1961 whereas i t was in fact business income of the appellant. 5. Before us, the Ld. Counsel for the assessee submitted that the impugned order passed by the Ld.CIT(A) suffers from legal infirmity as the AO had wrongly treated the amount of ₹ 10 lacs declared by the assessee during the survey proceedings as undisclosed income under section 68 of the Act. The Ld. Counsel further submitted that this issue is covered in favour of the assessee by the decision of the ITAT Chandigarh Bench in the case of Shri Bhuwan Goyal Vs. DCIT in ITA No. 1385/Chd/2019 and since the findings of the Ld. CIT(A) are not in accordance with the decision of the Jurisdictional Tribunal, the same is liable to be set aside. The Ld. Counsel further pointed out that as per the decision of the Delhi Bench of the ITAT, in the case of M/ s. Agson Global Private Ltd. ITA No. 3741- 3746/Del/2019, income which is the part of the profit and loss account cannot be treated as unexplained cash credit u/s 68 of the Act. 6. On the other hand, the Learned Departmental Representative (DR) supporting the order passed by the Ld. CIT(A) submitted that sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid facts had been mentioned by the A.O. at page no. 4 of the assessment order dt. 30/12/2018 wherein copy of the show cause notice dt. 26/12/2018 has been reproduced. However, the A.O. considered only an income of ₹ 2.64 Crore earned from the Real Estate Business but did not accept ₹ 1 Crore and added the same separately under section 69 of the Act. The A.O. charged the tax @ 60% under section 115BBE of the Act. The provisions contained in the said section i.e; 115BBE of the Act read as under: 115BBE. (1) Where the total income of an assessee, - (a) Includes any income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D and reflected in the return of income furnished under section 139; or (b) Determined by the Assessing Officer includes any income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D, if such income is not covered under clause(a), the income-tax payable shall be the aggregate of- (i) the amount of income-tax calculated on the income referred to in clause(a) and clause(b), at the rate of sixty per cent; and (ii) the amount of income-tax with whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion given by the assessee to the Ld. CIT(A) has not been rebutted, therefore the provisions of Section 69 of the Act were not applicable as the business transactions were recorded in the books of account and the assessee either earned commission or profit on all those Real Estate transactions. The income earned from the Real Estate transactions was claimed to be utilized for making the investment in the property. In the present case it is not brought on record to substantiate that the said income was utilized by the assessee elsewhere and not in the investment of the property. Therefore, we are of the view that the A.O. was not justified in taxing the aforesaid income of ₹ 1 Crore separately particularly when nothing is brought on record to substantiate that the assessee had made separate investment different from the income earned on real estate transactions recorded in the pocket diary found seized during the course of search. Accordingly, the impugned order passed by the Ld. CIT(A) on this issue is set aside and the A.O. is directed to tax the entire surrendered income of ₹ 3.64 at the normal rate of tax. 9. Further, section 68 of the Act, applies where any sum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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