9911796707
TMI Blog2022 (12) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... and whereas, the Assessing Officer had taken a conscious decision to apply the normal rate of tax and, as such, the observation of PCIT is against the factual facts and circumstances of the case. 3. That the Ld. PCIT has failed to appreciate that the order of AO having merged with the order of the CIT(A), the assumption of jurisdiction by the Ld. PCIT is bad in law. 4. That the submissions filed before the PCIT (Central), vide order, dated 11.02.2022 have not been considered properly. 5. That the appellant craves leave to add or amend the grounds of appeal before the appeal is finally heard or disposed-off." 2. Briefly the facts of the case are that search and seizure operations were carried out in case of M/s Roop Square Group at its various business and residential premises including that of the assessee on 01.11.2017 and thereafter, in pursuance to notice u/s 153A on 14.02.2019, the assessee firm filed its return of income on 12/06/2019 declaring total income of Rs. 7,80,640/- thereafter the assessment was completed under section 153A on 28/12/2019 at an assessed income of Rs. 1,98,50,680/- by making an addition of Rs. 1,36,18,520/- as normal business income and Rs. 42,04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Ld. CIT. 2.5 It was further held by the Ld. PCIT(C) that while framing the assessment, the AO has made addition under section 69C of the Act amounting to Rs. 42,04,640/- and referred to the findings of the AO in para 3.11 of the assessment order, and under section 69 of the Act amounting to Rs. 12,46,878/- and referred to AO's findings at para 5 of the assessment order, however, the AO has failed to apply the rate of tax as per section 115BBE of the Act. The ld PCIT accordingly directed the AO to apply rate of tax as per section 115BBE on the quantum of addition sustained by the Ld. CIT(A) and to that extent, the assessment order passed by the AO was set aside. Against the said findings and direction of the Ld. PCIT, the assessee is in appeal before us. 3. During the course of hearing, the Ld. AR submitted that against the order of the Ld. CIT(A), both the assessee as well as the Department went in appeal before the Tribunal and Tribunal vide order dt. 19/05/2022 has reduced the quantum of additions of Rs. 28,37,506/- to Rs. 10,71,106/- and as far as the addition of Rs. 12,46,878/- which was deleted by the Ld. CIT(A), the same is confirmed by the Tribunal. It was accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 115BBE is concerned is not correct and our reference was drawn to para 6 of the impugned order where specific finding has been recorded by the ld PCIT. Further, our drawn our reference to the detailed findings of the AO wherein the addition have been made under section 69C as well as under section 69 of the Act and it was submitted that where the AO has invoked the provision of Section 69C and 69 of the Act and there is a complete failure on the part of the assessee to furnish any explanation, provision of Section 115BBE are clearly attracted. It was accordingly submitted that there is no infirmity in the order so passed by the Ld. PCIT and the same should be confirm. In support, reliance was placed on the decision of Hon'ble Punjab & Haryana High Court in case of Pr. CIT Vs. M/s Khushi Ram & Sons Food(P) Ltd. in ITA No. 126 of 2015 (O&M) vide order dated. 21/07/2016 and in case of M/s Kim Pharma (P) Ltd. Vs. CIT 216 Taxman 153 and decision of Hon'ble Gujarat High court in case of Fakir Mohmed Haji Hasan Vs. CIT 120 taxman 11. 5. In his rejoinder, the Ld. AR submitted that the Ld. CIT, DR had argued that once the Assessing Officer having mentioned in the order, while mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of M/s Sham Fashion Mall and then finding has been recorded by the Bench at page 124 to page 129, holding that the provisions of section 115BBE are not applicable. 5.3 It was submitted that the judgment of M/s Khushi Ram & Sons as quoted by the Ld. CIT,(DR) has been taken note off in the judgment of 'M/s Famina Knit Fab' and which has duly been considered in the case of M/s Sham Jewellers in para 10.19, page 126 and after discussing the various judgments and also the judgment of 'Kim Pharma' and referring to section 69, 69A, 69B, 69C and various other cases and the provisions of the Act, a detailed order has been passed. Similarly, the judgment of 'M/s Khushi Ram and Sons' have been discussed by the Chandigarh Bench in the case of 'M/s Khurana Rolling Mills' and 'M/s Khurana Steels' and reference has been made to page 9, 12 and page 17 of that judgment and while giving the judgement, the Bench have relied on the judgment of 'Famina Knit Fab', which have been discussed in the case of M/s Sham Jewellers, at page 126. Thus, all the judgments as cited by the Ld. CIT, DR have been considered by the Bench in the case of M/s Sham Je ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntaining name, cash payment during the year besides opening and closing balances and corresponding written page numbers and such Table find mention as part of and at pages 5-7 of the assessment order has determined the figure of Rs. 42,04,640/- pertaining to F.Y. 2016-17 relevant to A.Y. 2017-18. Thereafter, the AO has referred to the show- cause notice issued to the assessee, the reply of the assessee, the statement of Shri Manik Sachdeva recorded during the course of search and statement of Shri Sat Pal Sachdeva recorded during survey and at para 3.10 and 3.11 of the assessment order has recorded his finding stating that inspite of providing several opportunity to the assessee, the assessee has failed to give requisite explanation regarding the document seized from the business and residential premises of the assessee, failed to reconcile the transactions with the regular books of accounts and has thus failed to substantiate his claim and accordingly it is clearly established that the assessee has incurred unexplained expenditure on salary to the tune of Rs. 42,04,640/- and the said findings of the AO read as under: During the post search/ survey enquiry proceedings in this off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as far as applicability of provisions of section 69C is concerned, the same is not disturbed by the Coordinate Benches while disposing off the assessee's appeal. 10. Now coming to the provisions of Section 115BBE of the Act, prior to amendment by the Taxation Laws (Second Amendment), Act, 2016, it provides that: "(1) Where the total income of an assessee includes any income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D, the income-tax payable shall be the aggregate of- (a) the amount of income-tax calculated on income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D, at the rate of thirty per cent; and (b) 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 to in clause(a)." 11. Vide the Taxation Laws (Second Amendment), Act, 2016 w.e.f 1.4.2017, the provisions were substituted and the same now reads as under: "(1)Where the total income of an assessee,- (a) includes any income referred to in section 68, section 68, section 69, section 69A, section 69B, section 69C or section 69D and reflected ..... X X X X Extracts X X X X X X X X Extracts X X X X
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