TMI Blog2016 (5) TMI 1598X X X X Extracts X X X X X X X X Extracts X X X X ..... ra), as relied on in Gaurish Steels P. Limited ( 2015 (11) TMI 631 - ITAT CHANDIGARH] this income has been considered as the assessee s business income and not as deemed income u/s 69A of the Act. As such, the business losses incurred by the assessee during the year can be set off against the income surrendered. As per the requirement of section 71 of the Act, the AO is directed to act accordingly. Thus, Ground Nos. 1 to 3 are accepted. - ITA No. 488(Asr)/2015 - - - Dated:- 19-5-2016 - SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER For the Appellant : Sh. Sudhir Sehgal, For the Respondent : Sh. Tarsem Lal, DR ORDER PER A.D. JAIN, JM: This is the assessee s appeal for the assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing set off business loss Rs.8,51,000/- duly determined and accepted u/s 70 to 72 of the Income Tax Act which includes unabsorved current year depreciation allowance of Rs.4,85,180/- without appreciating the fact tat income tax is only one tax and chargeable on total income after computing same under various heads of income and adjustment of setting of current year losses, carry forward loss, statutory allowances and deductions etc.etc. 3. That the ld. CIT(A) also erred in law and on facts, by taking support of new inserted section 115BBB by Finance Act, 2012 i.e., w.e.f. 01.04.2013 which cannot be applicable to assessment year 2011-12 as it has no retrospective effect. Moreover, this section only provides tax rate to be charged on s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing the decision of the Hon ble Punjab Haryana High Court in the case of Kim Pharma (P) Ltd., vs. CIT, Panchkula Others , order dated 27.04.2011 in ITA No.106 of 2011 (O M) treated the additional income of Rs.10,00,000/- disclosed by the assessee during the survey operation as deemed income u/s 69 of the Income Tax Act, 1961 and brought to tax without allowing the set off of such income with the business loss of Rs.8,51,000/-. Though this loss was allowed to be carried forward, the ld. CIT(A) dismissed the assessee s appeal. The question as to whether the ld. CIT(A) s action is justified. 5. The ld. CIT(A) has held as follows: 5. The submissions of the appellant have been considered and the judicial precedents cited have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such set off. Drawing from this decision of the Hon ble Chandigarh Tribunal, the appellant made the alternative plea by way of amendment of ground No.3 that the current depreciation be allowed to be set off from the surrendered income. 7. This plea of the appellant is inadmissible as it would mean pigeonholing or overly restricting the judgment of the Hon ble jurisdictional High Court which categorically proscribed inter head adjustment from the deemed incomes which are covered under the provisions of section 69, 69, 69B and 69C of the Act. Besides, in the appellant s case, the impugned issue pertains to the current year s depreciation of Rs.4,85,180/- and not unabsorbed depreciation brought forward from the earlier years and taking the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this action of the A.O. The Tribunal held that the AO did not dispute the business losses incurred by the assessee and did not reject the books of account; that the surrender was on account of cash found during the course of survey, discrepancies in the cost of construction of building, in stock and in advances and receivables; that these incomes apart from cash could not be considered as income under any head other than business income ; that the AO and survey team failed to find any other source of income except the business income; that therefore, apart from cash, all other incomes surrendered could be brought to tax under the head of business income , while the cash was to be taxed under the head deemed income u/s 69A of the Act; that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy in advances and receivable, has to be considered as business income, whereas the cash surrendered was not to be so considered. It has not been shown as to how this action of the Tribunal in Gaurish Steels P. Limited (supra), is at variance with Kim Pharma P. Ltd. (supra). Accordingly, this argument of the ld. DR is rejected. 9. Now coming to the facts of the present case, in the survey conducted, the assessee offered Rs.10 lakhs as additional income. The question as to whether this cash is relatable to the business of the assessee, in accordance with Kim Pharma P. Limited (supra) and if so, whether it is not a business income. The survey in this case was conducted on 24.01.2011. The assessee maintains that its marriage palace wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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