TMI Blog2023 (2) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Ragavs Diagnostic Research Centre Pvt. Ltd. [ 2022 (9) TMI 584 - ITAT BANGALORE] . Accordingly, the application of 69B on the assessee is not warranted. So, the tax levied by the revenue on the assessee u/s. 115BBE is liable to be rejected. - Decided in favour of assessee. - ITA No. 1012/Bang/2022 - - - Dated:- 6-2-2023 - SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER For the Appellant : Shri Raghavendra Chakravarthy , A. R. For the Respondent : Shri Ganesh R. Ghale , Standing Counsel for Revenue ORDER PER CHANDRA POOJARI , ACCOUNTANT MEMBER : This appeal by the assessee is directed against order of CIT(A) dated 16.8.2022 for the assessment year 2018-19. The assessee has raised following grounds of appeal:- 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.3,02,400/- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 01/03/2021 filed this appeal for the redressal of the grievances voiced in the grounds of appeal. The precise and relevant facts for appreciation of the grievances of the assessee are mentioned hereunder:- 3.1 The assessee is an individual assessee and is engaged in the business of retail sale of jewellary and silver articles under the name and style Vasudev Jewellars and Bros. The assessee for the impugned assessment year 2018-19 filed her return of income declaring a total income of Rs. 3,79,170/- on 23/07/2018. The return of income filed was processed u/s. 143[1] of the Act. 3.2 The case of the assessee was selected for scrutiny manually by ITO Ward I Koppal and later it was assigned to DCIT central circle Bellary by Pr. CIT Hubli vide his order dated 01/02/2021 and statutory notices were issued. The learned assessing officer called for various details and information which were filed by the assessee from time to time to the satisfaction of the learned assessing officer. 3.3 The learned assessing officer concluded the assessment vide assessment order under Section 143[3] of the Act dated 01/03/2021 determining the total income at Rs. 3,79,170/-. The breakup of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of acquisition of the money, bullion, jewellery or other valuable article, or the explanation offered by him is not, in the opinion of the [Assessing] Officer, satisfactory, the money and the value of the bullion, jewellery or other valuable article may be deemed to be the income of the assessee for such financial year.' [3] From the reading of the section it is clear that section 69A requires the following two conditions to be fulfilled: [a]There should be money, bullion, jewellery or other valuable article which are not recorded in the Books of Account, if any, maintained by the assessee for any source of income; and [b]The Assessee offers no or satisfactory explanation about the nature and source of acquisition of the said money, bullion, jewellery or other valuable article. [4] The assessee further submitted that she has satisfactorily explained about the nature and source of the acquisition of the said stock. It is also relevant to note that the provision contains the language 'may' be deemed to be the income of the assessee and not the word 'shall'. Thus, the invoking of section 69A of the Act is not applicable. [5] The assessee relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o explanation or the explanation offered is not satisfactory in the opinion of the AO, then the amount of such expenditure is to 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 which is stated to be the source for unexplained expenditure. That being the case the AO has not brought any contrary material on record to state that the source for the expenditure was other than from business income and has formed the opinion based on conjectures and surmises. While exercising the quasi-judicial funct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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