TMI Blog2023 (2) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... closed stock which was not from business income. In the recorded statement, the assessee had declared that the undisclosed stock was generated from the business income. After that the revenue had not made any queries to prove that the said investment is in nature other than business. Only on the basis of the legal view, the identity of the items cannot be changed. In referred case, DR is trying to prove that the investment in jewellery was out of income from other sources. But the assessee is the trader of jewellery and nature of investment was out of income generated from business. No contrary judgment was placed by the ld. DR against the submission of assessee. We fully rely on the orders of Ragavs Diagnostic Research Centre Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee has taken the following grounds: 1. The order of the NFAC in so far it is against the appellant is opposed to law, weight of evidence, facts and circumstances of the Appellant's case. 2. The NFAC has grossly erred in upholding the addition made u/s 69B of the Act amounting to Rs.50,39,395/- under the facts and circumstances of the case. 3. The NFAC has gross erred in upholding the addition without appreciating the fact that the excess gold and silver jewellery stock found at the business premises belongs to the personal effects of the appellant under the facts and circumstances of the case. 4. The NFAC has grossly erred in upholding the addition without giving credit to the personal belongings of the jewel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delete the addition and grant relief for advancement of substantial cause of justice. 10. The appellant prays to admit the appeal and craves to urge such other grounds as may be deemed necessary during the time of appellate proceedings. 5. During the appeal hearing, before the ITAT, the Ld.AR had filed a synopsis which is kept in the record. The assessee is a dealer of gold and silver articles, running business under the name and style of M/s. V.K. Vernekar Sons at Koppal, Karnataka. A survey was conducted by the revenue department. The assessee has declared the difference of stock in books and stock founded during the time of survey the difference of value amounting to Rs.50,39,395/-. The assessee had declared this differenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come of Rs.50,39,395/- admitted during the course of Survey u/s 133A other than Unexplained Investments u/s 69/69B of the Act, does not arise and is against the provision of Act. 8. The Ld. Counsel further invited our attention in the assessee s statement recorded by the Ld. AO on the date 20.07.2017. The relevant part of the recorded statement is reproduced as below:- Q.13. Do you have anything to say? Ans. No. However, I submit that I accept to declare excess stock under business income as I do not have any other source of income except income deriving from the business. I accept to pay advance tax on the income declared for the Asst. Year 2018-19 will be paid at the earliest. Since I have co-operated with the Departmenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taxed as income u/s. 69C of the Act. The satisfaction to be recorded by the AO should not be objective satisfaction exercised at his discretion, but a subjective satisfaction based on the facts of the case. It would then mean that justification for exercise of the power has to be found by the authority by making a subjective satisfaction on the basis of objective material and such satisfaction must be reflected in the reasons recorded in writing while exercising the power. (Vide: Dee Vee Projects Ltd. v/s. Union of India Ors., Writ Petition No.2 693/2021, dated 11.02.2022 (Bombay High Court)). In the present case, the assessee is in the business of running a diagnostic centre and the only source of income is the receipts from patients ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. In our considered view that the assessee has confirmed the identity of investment in the difference of stock which was generated from business income. During the assessment and in appeal, both the revenue authorities had not been able to bring any such contrary findings against the assessee that the source of investment on undisclosed stock which was not from business income. 13. In the recorded statement, the assessee had declared that the undisclosed stock was generated from the business income. After that the revenue had not made any queries to prove that the said investment is in nature other than business. Only on the basis of the legal view, the identity of the items cannot be changed. In referred case, the ld. DR is tryi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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