TMI Blog2022 (12) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment to provisions of section 115 BBE of the Act came into effect after survey was conducted on the assessee, and consequently, in the light of judicial precedents highlighted above, this is not a fit case for invoking the provisions of section 263 of the Act. Appeal of the assessee is allowed. - ITA No. 71/Rjt/2022 - - - Dated:- 20-12-2022 - Shri Waseem Ahmed, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member For the Assessee : Shri Gaurang Khakhar, A.R. For the Revenue : Shri Shramdeep Sinha, Sr. D.R. ORDER PER : SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER:- This assessee s appeal for A.Y. 2017-18, arises from order of the Principal Commissioner of Income Tax, PCIT, Rajkot-1 dated 16-02-2022, in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the purview of section 69C, the AO should have computed tax liability under section 115BBE of the Act @60% enhanced by applicable surcharge of 25% of such tax. However, the AO has not applied the correct provisions of law while finalising the assessment under section 143(3) of the Act. The principal CIT held that once additions have been made under the head of income from other sources by invoking the provisions of section 69A or 69C, the provisions of section 115BBE of the Act comes into play. Accordingly, Principal CIT set aside the assessment order on the ground that the same is erroneous and prejudicial to the interest of the Revenue. 4. The assessee is in appeal before us against the aforesaid order passed under section 263 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e survey was carried out on 27th September 2016, whereas applicability of section 115BBE of the Act was amended w.e.f. 15-12-2016 and the same will not apply to search/survey conducted prior to 15-12-2016. In support of his contention, the counsel for the assessee placed reliance on several judicial dealing with this issue. 5. In response, DR relied upon the observations made by Principal CIT in the 263 order. 6. We have heard the rival contentions and perused the material on record. In our considered view, in the instant set of facts, it cannot be held that the order passed by the AO is erroneous and prejudicial to the interests of the Revenue. From the records, it is evident that the AO issued a specific show cause notice seeking ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective, as on the date of survey, the amended provisions were not there in the statute. In our considered opinion, this is a highly debatable issue, which cannot be subject matter of exemption of jurisdiction under section 263 of the act. Moreover, a perusal of the assessment order clearly shows that the assessing Officer has nowhere invoked the provisions of section 68/69 of the act to impute the tax rate of section hundred and 15 BBE of the act. .. 13. There is, therefore nothing stated in the pre-amended or postamended provisions of section 115 BBE of the Act that where the assessee surrenders undisclosed income during search action for the relevant year, the tax rate has to be charged as per the provisions of section 115 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed under section 69, 69B or 69D is like an open ended hypothesis which is not supported by any specific finding that the matter shall fall under which of the specific sections and how the conditions stated therein are satisfied before the said provisions are invoked. It is like laying a general rule, which is beyond the mandate of law, that wherever there is a survey and some income is detected or surrendered by the assessee, the deeming provisions are attracted by default and by virtue of the same, provisions of section 115BBE are attracted. The PCIT has to record his specific findings as to the applicability of the relevant provisions and how the explanation called for and offered by the assessee is not acceptable in the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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