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TMI Blog2023 (5) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961 (for short "the Act"), invoking the provisions under section 115BBE of the Act, is challenged in this appeal by the assessee. 3. Brief facts are that assessee is an individual, earning income from salary and other sources. There was a survey in the business premises of the assessee on 19/02/2015. At that time, a statement of Shri Kasturi Skanda Kumar was recorded under section 131 of the Act. In such statement, Shri Skanda Kumar offered an additional income of Rs. 20 lakhs in the hands of the assessee. Subsequently, assessee filed return of income on 30/12/2015 admitting an income of Rs. 23,62,650/- incorporating Rs. 20 lakhs additional income that was offered during the survey. Having issued notice under section 143(2) of the Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take apparent from record and accordingly, dismissed the appeal. 6. Assessee is, therefore, aggrieved and filed this appeal. Learned AR contends before me that the learned CIT(A) was not correct in confirming the order under section 154 of the Act since the issue involved is a debatable issue and no amenable for rectification under section 154 of the Act. He placed reliance on the decisions of Hari Narain Gattani vs. DCIT, [2021] 123 taxmann.com 8 (Jaipur - Trib.), ACIT vs. Shri Sudesh Kumar Gupta in ITA No. 976/JP/2019 (AY.2014-15), dated 09/06/2020 and M/s. Kothari and Brothers vs. ITO in ITA No. 2637/Bang/2017 (AY. 2012-13), dated 14/11/2018. 7. Learned AR further submitted that in the matters where a similar survey was conducted on 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... survey in the business premises of the assessee on 19/02/2015. In the statement recorded under section 131 of the Act, one Shri Kasturi Skanda Kumar offered an additional income of Rs. 20 lakhs in the hands of the assessee for the assessment year 2015-16. Subsequently, when the assessee filed the return of income for the assessment year 2015-16 on 30/12/2015, such declared additional income was incorporated therein. Learned Assessing Officer by order dated 07/09/2017 considered this fact in the light of the impounded material, books impounded in relation to survey and other documents produced, during the scrutiny, accepted the return of income. Learned Assessing Officer did not invoke the provisions of section 115BBE of the Act nor did he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quivocal and unanimous that if the learned Assessing Officer accepted the return of income and levied the tax on the undisclosed income as per the slab rates taxation, and without determining such income as the income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D of the Act in the order passed under section 143(3) of the Act, then subsequent exercise of powers under section 154 of the Act to invoke section 115BBE of the Act for rectification of the so-called mistake is bad under law. It is further held that the provisions of section 115BBE of the Act are contingent on the decision of the learned Assessing Officer as to the requirement of sections mentioned in section 115BBE of the Act and, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sought any explanation from the assessee and the assessee did not offer any explanation or that the explanation if any, offered by the assessee is not to his satisfaction. In the absence of such a satisfaction, if an order under section 143(3) of the Act is passed accepting the return of income, then it is difficult to presume that such an order was passed in respect of any income determined under section 68, section 69, section 69A, section 69B, section 69C or section 69D of the Act or that the tax has to be levied under section 115BBE of the Act. Unless and until such a compliance is there in the assessment order, it cannot be said that there was any mistake apparent from record or that the proceedings are amenable to the jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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