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TMI Blog2024 (1) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessee based on the seized documents impound during the survey operation admitted having received on-money in its real estate project. Accordingly, the assessee agreed to surrender unexplained income amounting to Rs. 1, 77,66,000/- which was duly offered in the income tax return under the head business and profession and the same was accepted by the AO in the assessment framed u/s 143(3) of the Act, vide order dated 19/12/2019. 4. Subsequently, the Ld. PCIT on verification of the assessment records found that the income offered by the assessee is representing on-money received which should have been taxed under the provisions of section 69 of the Act, and accordingly the same should have been brought to tax at the special rate specified u/s 115BBE of the Act and that too without allowing any deduction against such income. However, the assessee against such income has claimed deduction on account of remuneration and interest paid to the partners amounting to Rs. 1,16,58,398/- and 16,27,064/- respectively. Thus, the Ld. PCIT held that the assessment has been framed u/s 143(3) of the Act without verification with respect to undisclosed income offered by the assessee for Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. Thus, assessment order was bad in law in permitting expense from deemed income in the hands of the assessee. (ii) Thus, it was humbly submitted that based on above submission, the decision in ITA No. 92/RJT/2020 para 5.2 is "a mistake of law" because Ld. ITAT has not considered the impact of section 115BBE(2) read along with section 69. To such extent the main reliance by the appellant on ITA No. 92/RJT/2020 during the hearing of the case is misplaced. It is simultaneously submitted that the doctrines of 'per-incurium' and 'sub-silentio are explanations to the rule of 'stare decisis', If a decision has been given in ignorance of law or any statute or any binding authority, the doctrine of 'per-incurium' is attracted (State of UP Vs Synthetics and Chemicals Ltd. (1991) 4SCC 139) rule of 'sub-silentio' is applicable where a particular point of law is not perceived by the Court or was not present to its mind or is not consciously determined by the Court [Arnith Das Vs State of Bihar, AIR 2000 SC 2264, para 21] (iii) Simultaneously, the deemed income is taxed at special rates under 115BBE(1). Non-subjecting the undisclosed business- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of law. (iii) An amount of Rs. 1,30,15,424/- should also have been shown as net profit excluding disclosures made during the Survey (please see para 3 to 11 of order u/s 263). (iv) After examining the submissions of the assessee during 263 proceedings, Ld. PCIT has concluded that the AO has not made any conscious attempt to examine the issue on the basis of the material on record. Also, that the AO did not conduct any such inquiries or verification as outlined above (para 3 to 10 of order u/s 263) and simply accepted the assessee's submission. Based on the above, Ld. PCIT has considered that the assessment order is erroneous as well as prejudicial to the interest of the Revenue. He has directed to make fresh assessment keeping in view the observations of PCIT, after conducting necessary verifications and Inquiries and after providing proper opportunity of being heard. 6. During the course of hearing, the undersigned also explained that the amount of Undisclosed Investment, accepted as income in the form of additional money received from sale of residential houses, which the assessee has termed 'own money', 'amount over and above the registered valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. 6.1 The above queries were duly answered by the assessee vide letter dated 14/11/2019, which is placed on pages 36 to 37 of the paper book. The relevant extract of the same is reproduced as under: Specific Information: Point No.6 Sir, we are engaged in the business of constructing as well as excecuting work on construction site of client as well as of our own and thus, we are not dealing with the traded goods and there is no concept of Gross Profit. However, the net business profit offered as compared to tunnover is tabulated herein below: Particulars F.Y 2016-17 F.Y 2015-16 F.Y 2014-15 Sales (in Rs.) 2,98,82,300 66,00,700 1,77,01,100 Net Profit (in Rs.) 76,22,265 6,34,292 17,78,159 Point no.7 Sir, the details of other income are duly evident from the schedule P5 of audited accounts already placed on records. The summary of the same is tabulated herein below: Sr.No. Particulars Amount (in Rs.) Remarks, if any 1. Income disclosed during survey in October, 2017 1,77,99,000 Ledger account enclosed at pg 1 2. Interest Income 77,340 Ledger account enclosed at page 2 * Copy of statement recorded during the course of survey procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplanation 2 to section 263 of the Act, and therefore we hold that the Ld. PCIT erred in holding assessment order as erroneous and prejudicial to the interest of Revenue after referring to the explanation 2 of section 263 of the Act. 6.6 We further note that the ITAT Chandigarh in the case of Shri Parmod Singla v. ACIT reported in 154 taxmann.com 347 of the Act has observed as under: 15. In the instant case, for the deeming provisions of section 69 to be attracted, there has to be a finding that the assessee has made investments during the financial year in the stock and by way of advances, such investments are not recorded in the books of account so maintained by the assessee, and the assessee offers no explanation about the nature and source of the investments or the explanation so offered is not found satisfactory in the opinion of the AO. Similarly, for the deeming provisions of section 69A to be attracted, there has to be a finding that the assessee was found to be owner of cash so found at the time survey, such cash has not been recorded in the books of account so maintained by the assessee, and the assessee offers no explanation about the nature and source of the cash or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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