GOOD WILL IMPEX LIMITED , JAIPUR V. PRINCIPAL COMMISSIONER OF INCOME TAX, JAIPUR-2, JAIPUR-2

ITA 209/JPR/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 3444 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2017-2018
• Appeal Filed On: 25-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAJESH GUPTA
• Keywords: Unexplained investment; Business income; Revision of order; Principle of natural justice; Deemed to accrue or arise in india
• Section: 68; 69; 6; 263; 2; 69C; 139; 143(3); 133A; 69B; 69A; 44AB; 13

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, “A” JAIPUR Jh laanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM deys’k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 209/JP/2022 fu/kZkj.k o"kZ@Assessment Year :2017-18 Good Will Impex Limited G-1/95-96 G-1/95-96, Sitapura Industrial Area, Sanganer, Jaipur-302022. cuke Vs. Principal Commissioner of Income Tax, Jaipur-2, LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAACG 5831 A vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Rajesh Gupta (CA) jktLo dh vksj ls@ Revenue by : Sh. Prathviraj Meena (CIT) lquokbZ dh rkjh[k@ Date of Hearing : 28/06/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 25/08/2022 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, A.M. This appeal is filed by the assessee aggrieved from the order of the Pr. Commissioner of Income Tax, Jaipur-2 [ Here in after referred as Ld. PCIT ] for the assessment year 2017-18 dated 29.03.2022 as per provision of section 263 of the Act, which in turn arises from the order passed by the DCIT, Circle-7, Jaipur passed ITA No. 209/JP/2022 Good Will Impex Limited 2 under Section 143(3) of the Income tax Act, 1961 (in short 'the Act') dated 28.12.2019. 2. The assessee has taken following grounds in this appeal; “1. That the learned Principal Commissioner has erred in the law and in facts in passing order u/s 263 of Income Tax Act without taking into consideration that:1. Matters relate of surrender of excess stock in trade addition of which in profit & loss account is very much justifiable. 2. There is no case of section 69 of Income Tax Act as such provisions of section 115BBE are not applicable. 3. Show cause notice on the matter covered is notice u/s 263 of the Income Tax Act was given by the Assessing Officer which was properly replied in details along with evidences and the learned A.O. has not found any reason for application of proviso of Section 69 and 115BBE of Income Tax Act. 4. Reply of appellant was not been studied and considered but rejected with a general ground. 3. That the appellant may take leave to add, amend, delete, substitute, incorporate any of the grounds of appeal before or at the time of hearing of their appeal.” 3. The fact as culled out from the records is that the assessee e-filed its income tax return for the A.Y 2017-18, on 31.10.2017 by declaring total income of Rs. 84,63,790/-. Thereafter, the case was selected under CASS. The assessee company is engaged in the business of manufacturing and trading of textiles, handlooms and power looms. The books of the assessee have duly audited as required u/s 44AB of the I.T. Act. The assessee has furnished necessary details/documents which were called for during the ITA No. 209/JP/2022 Good Will Impex Limited 3 assessment proceedings. In this case, a survey u/s 133A of the Act was conducted on 30.08.2016 at the business premise of the assessee company. During the course of survey, the assessee company surrendered an amount of Rs. 1,90,39,237/- on account of variation in stock. 4. On merits of the case, during the course of hearing, the ld. AR of the assessee submitted as under:- “The survey was conducted on assessee's premises in which alleged excess stock was considered at a sum of Rs.1,90,39,237/-. To avoid intolerable pressure, it was surrendered by the director being discrepancy in Stock in Trade. In the opinion of the director, the Company is an artificial person and in case there stands any evasion, it relates to the person disclosing it. But, the legal opinion taken by him, it was advised that the Company has to disclose the stock in its own record. Since there were interest of different shareholders and different eyes of Govt. Departments on affairs of the Company, the assessee had no option, but to disclose the stock a part of his regular stock and to pay tax thereon. Accordingly, books of accounts were finalized and tax was paid. During the course of assessment proceedings, the assessing officer has issued show cause notice related to the issue to the assessee, asking them to show cause as to why the amount of Rs.1,90,39,237/- should not be charged for tax at special rates as per provisions of Section 115BBE on account of unexplained investment under section 69 of the I.T Act. ITA No. 209/JP/2022 Good Will Impex Limited 4 The assessee filed a very detailed reply on this matter after discussing provisions of Section 115BBE, Section 69 and definition of investment and different matters taken in show cause notice. According to AS-13 issued by ICAI, investment are assets held by an enterprise for earning income by way of dividends, interest and rentals for capital appreciation or for other benefits to the invest enterprise. Assets held as Stock in trade are not investments. Stock in Trade is business assets and its disposal under Income from business. Additionally, a few case laws in support of above contentions were also become a part of such reply. After going through the submissions and checking of all the records the assessing officer has decided the provisions of Section 115BBE are not applicable in this case and therefore, assessment order was passed making different additions, barring the provisions of section 115BBE. On dated 02.02.2022, the ld. PCIT has issued a further notice under Section 263where the reasons for revision given in the notice. It was found that all the matters covered in the notice were already form part of the reply filed by the assessee before the A.O. Since the A.O has passed assessment order after being fully satisfied, there stand's no cause for revision of assessment order except forcing her opinion of the A.O. which in facts is nothing, but a Change in opinion of the department on same matter. The assessee has again filed very detailed reply to the notice along with different attachments, but an order u/s 263 was passed without going into assessee's reply and even not considering any of its consent while passing the order. It was found that the order was very general and even the case laws cited were not connected the facts of the present case, even from remote angle. One matter relates to Agricultural income, another to penalty u/s 271(1) (c) and third one to unrecorded possession of cash. Even the principles laid down in the cases, re mischievously used in the revision order.” ITA No. 209/JP/2022 Good Will Impex Limited 5 5. The ld. AR appearing on behalf of the assessee drawn our attention to the following observations of the ld. Pr. CIT in the proceedings u/s 263:- “1. During the F.Y 2016-17 a survey u/s 133A of the Act was conducted at the business premises of the company on 30.08.2016. During the course of survey, excess stock of Rs. 1,90,39,237/- was surrendered by the assessee. However, while filing the return of income, the assessee company has incorporated the excess stock to the tune of Rs. 1,90,39,237/- in the trading & P&L account claiming it as part of its regular income. In the statement recorded during the course of survey proceedings u/s. 133A, in Q.No. 27, the Director, Sh. Vimal Shah, admitted an excess stack of Rs. 1,90,39,237/- Further, he disclosed this amount as income from undisclosed sources. It was also seen that there is a sharp decline in GP in comparison to successive years. Further, steep fall in GP rate from 10.2% (as on date of survey) to 0.64% (after the date of survey from 31.08.16 to 31.03.17) is observed. It was incumbent on the AO to examine these details and verify the same. The fact that the assessee has disclosed a substantial amount of stock as unaccounted is a pointer that the books of accounts and the details filed are not being properly maintained and should have been examined especially on the issue of steep fall in GP rate as discussed above. 2. On perusal of the assessment order, it is seen that while completing the assessment the Assessing Officer has not taken the undisclosed stock of Rs.1,90,39,237/- as undisclosed income while the assessee has included the same in the Profit and Loss account and after claiming various expenses was netted off though should have been treated as undisclosed income to be taxed u/s 69 of the Act read with section115BBE of the Act. 3. Therefore, it is factually clear that the A.G. has not properly addressed the issue while completing the assessment. In view of this position, it appears that the assessment order passed u/s 143(3) of the I.T. act 1961 for A.Y. 2017-18 on 28.12.2019 is erroneous in so far as it is prejudicial to the interest of the revenue.” ITA No. 209/JP/2022 Good Will Impex Limited 6 6. Considering the above facts, a show cause notice u/s 263 of the Act was issued to the assessee on 30.02.2022 asking them to explain as to why the assessment order passed by the ld. CIT(A) Circle-07, Jaipur on 28.12.2019 may not be revised and treated as erroneous and prejudicial to the interest of Revenue. As the undisclosed income surrendered during the survey proceedings was to be taxed u/s 69 read with section 115BBE of the Act. He further stated that there is a steep folder in gross profit rate from 10.2% (as on the date of survey) to 0.64% (after the date of survey from 31.08.2016 to 31.03.2017) as observed during the year. No Justification for the same has been given during the assessment proceedings. Considering, that the assessment order was passed mechanically without application of mind for the reason mentioned in the notice. 7. In response, the assessee filed reply on 26.02.2022 but the ld. Pr. CIT was of the view that the issue relating to the show cause notice has not been discussed by the assessee while passing the order. He holds a view that while framing the assessment, the Assessing Officer should tax the undisclosed ITA No. 209/JP/2022 Good Will Impex Limited 7 income u/s 69 of the Act read with section 115BBE of the Act. Therefore, he held that the order passed by the Assessing Officer is erroneous within the purview of explanation (2) of section 263(1) of the I.T. Act and then he relied on the following decisions :- “(i) The Hon'ble Supreme Court in the case of Malabar Industrial Limited V/S CIT 2431TR wherein it has held as under "An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same category fall orders passed without applying the principles of natural justice or without application of mind". (ii) In the case of M/s Dhanush general stores vs CIT 339 ITR 651 (Chattisgarh High Court) [2011]. The surrendered income ought to have been treated as deemed income under the provisions of section 69 of the Act, 1961. (iii) In the case of Kim Pharma (P.) Ltd. vs. CIT 258 CTR 454 (Punjab & Haryana)[2011] where amount surrendered during survey was not reflected in books of account and no source from where it was derived was declared by assessee, it was assessable as deemed income of assessee under section 69A and not business income.” 8. Finally, the ld. PCIT hold a view that the Assessing Officer failed to consider/apply his mind to the information available on record with regard to the undisclosed income declared by the ITA No. 209/JP/2022 Good Will Impex Limited 8 assessee but included in his profit & loss account against which various expenses were claimed while the same was considered as income from other sources and to be taxed u/s. 69 read with section 115BBE of the Act. The AO while completing the assessment did not treat this undisclosed income as income to be taxed u/s. 69, as such the assessment completed without application of mind on the given facts on record. Accordingly, by virtue of powers conferred he hold that the order made by the AO is erroneous in so far as it prejudicial to the interest of revenue as the said order has been passed by the AO in routine and perfunctory manner without considering/applying his mind to the information available on record. He further holds that AO while completing the assessment did not treat this undisclosed income as income to be taxed u/s. 69 read with section 115BBE of the Act. The order of the AO therefore, liable to revision under clause (a) & (b) of explanation 2 to section 263 of the Income Tax Act. 9. Aggrieved from the above order of Pr. CIT passed u/s. 263 of the act, the assessee is in appeal before us. In addition to the ITA No. 209/JP/2022 Good Will Impex Limited 9 written submission, ld. AR of the assessee further submitted that during the course of assessment proceedings, ld. AO has issued specific show cause notice. The assessee has filed detailed reply containing so as to why the provisions of section 69 read with section 115BBE is not applicable in the facts of this case. As they have declared business income and not undisclosed income. The Assessing Officer based the written submission taken plausible view and ld. PCIT has no power to change the view / opinion on the issue taken by the AO and that is not permitted as per provision of section 263 of the Act. He relied upon the following judgments as under:- • The Malabar Industrial Co. Ltd. vs. CIT dated 10.02.2000 (SC) • M/s Kim Pharma (P) Ltd. vs. CIT in ITA No. 106 of 2011 dated 27.04.2011. ( Punjab & Haryana HC) • Pr. CIT vs. Bajargan Traders in D.B. Income Tax Appeal No. 258/2017 dated 12.09.2017 ( Rajasthan HC) • ACIT vs. M/s Sanjay Bairathi Gems Ltd. in ITA No. 157/JP/2017 dated 08.08.2017. • Shri Lovish Singhal vs. ITO in ITA No. 143/Jodh/2018 dated 25.05.2018. • ACIT vs. Shri Sudesh Kumar Gupta in ITA No. 976/JP/2019 dated 09.06.2020. 10. Per contra, the ld. DR appearing on behalf of the revenue submitted that the assessee has disclosed excess stock of ITA No. 209/JP/2022 Good Will Impex Limited 10 Rs.1,90,39,237/- and was surrendered during the course of survey of proceedings and since the excess stock comes under the purview of section 69 of the Act and that income is to be taxed in accordance with provisions of section 115BBE which Assessing Officer failed to invoke and therefore, the order of the Assessing Officer is erroneous and prejudicial to the interest of Revenue and the amendment made in explanation 2 to section 263 very well within the purview of view of ld. PCIT and therefore, the order of ld. PCIT should be sustained. 11. In the rejoinder of the submission of ld. DR, ld. AR of the assessee submitted that AO was sufficiently satisfied with the submission made and he has power not to invoke the provision of particular section which the ld. PCIT has no power to change plausible view taken by the Assessing Officer. As regards the matter of gross profit declined and this matter is also looked into by the Assessing Officer and particular submission has been made before the AO in the assessment proceedings. ITA No. 209/JP/2022 Good Will Impex Limited 11 12. We have heard the rival contentions, perused the material available on record and also gone through the decisions relied upon. On perusal of the assessee’s paper book where in the assessing officer vide notice dated 10.12.2019 asked as specific query, the same is extracted here in below for the sake of brevity: “During the course of survey, you have surrendered Rs. 1,90,39,237/- on account of stock variation. While filling of income tax return for the year, you have included the stock in your P & L account and thus, the same has been charged for tax at normal rates. Hence, you are asked to this show cause as to why the amount of Rs. 1,90,39,237/- should not be charge for tax at special rates as per provisions of section 115BBE on account of unexplained investment u/s. 69 of the Act.” 13. We find from the record that the issue was taken up the assessing officer and the assessee has filed a detailed reply conveying their contentions as to why the excess stock cannot be taxed as per provisions of section 69 of the Act. The reply of the assessee in the matter was furnished by the assessee bearing dated 12.12.2019 and thus, it cannot be said there is failure on the part of the assessing officer to examine this issue. The reply filed by the assessee is also extracted here in below for the sake of brevity of the facts: “Query 1: During the course of survey, you have surrendered Rs.1,90,39,237/- on account of stock variation. While filing of income tax return for the year, you have included the stock in your P&L account and thus, the same has been charged for tax at normal rates. Hence, you are asked to this show cause as to why the amount of Rs. 1.90.39,237/- should not be charged for ITA No. 209/JP/2022 Good Will Impex Limited 12 tax at special rates as per provisions of Section 115BBE on account of unexplained investment u/s 69 of the Act. Reply: 1. During the course of survey proceedings, the assessee has surrendered a sum of Rs. 1,90,39,237/- being discrepancy in Stock in Trade. The excess stock is a result of suppression of profit from business over the years and has not be kept identifiable separately, but is the part of overall physical stock found, the investment in excess stock has to be treated as business income. 2. While preparing his final accounts, the assessee has included this amount in his Closing Stock. Thereafter gross profit shoot up to Rs. 5,04,44,093/- which come to 22.67% of Sales. Year wise analysis of Gross Profit rates for last four years is given as under: Year Total Turnover Gross Profit Gross Profit Rate Stock Declared in survey GP on inclusion declared stock Aggregate Rate 2013-14 223513815 35754285 15.99645418 0 35754285 15.99645418 2014-15 170799278 33832953 19.80860423 0 33832953 19.80860423 2015-16 197947648 40727510 20.57488958 0 40727510 20.57488958 2016-17 222471767 31404856 14.11633324 19039237 50444093 22.67437962 While finalizing the Profit & Loss Acum, the se bas chosen o include the stock declared in survey in his normal stocks and thereby he has declared the income at higher rate and paid tax accordingly 3. There was a query that in case the assessee has included the excess stock in its stock in trade declared in its Profit & Loss account, even then why there is not so much addition in taxable income? The gross profit rate was increased from 20.37% to 22.67% only which shows a very less increment over previous year. The matter was analysed by us and the results are reproduced herewith 4. Comparison of GP from previous year Year Total Sales Export Sales Other/Domestic GP rate Amount % age Amount % age 2015-16 197947648 155087465 78.348 42860183 21.65228 20.57489 2016-17 222471766 105973954 47.635 116497812 52.36521 14.0987 5. Reason of lower GP during the year 2016-17 ITA No. 209/JP/2022 Good Will Impex Limited 13 The Assessee Company was a Manufacturer Exporter of ready made garments and was engaged in 100% export business till 2011-12. It was doing domestic sale occasionally. But during 2011-12 looking to the global downfall in garment market it was felt be the directors that there is no phenomenal growth in export market and by doing export business only it could not grow in expected level. So it was decided to enter in domestic market in addition and started doing small turnover to domestic customers also. Initially it received good response from domestic market and the Company received profitable orders During the year 2014-15 and 2015-16 it achieved domestic turnover for Rs 210.37 Lakh and 428.60 Lakh plus export turnover of Rs. 1497.62 Lakh and 1550.87 Lakh respectively and covered downfall in export turnover to some extent. During the year under consideration financial year 2016-17, it could not receive sufficient export order to meet its minimum capacity level. So it had to take big orders from major domestic players in Indian Garment Market such as Arvind Lifestyle, Max Retail Division, Reliance Retail Limited etc. These orden were as low margin basis and even on without margin basis. During the year 2015-16 and 2016-17 position of Domestic Sale was as under:- Sr. No. Name of Domestic Party Amount in Rs. Difference 2015 2016-17 1. Arvind Lifestyle Brand 2935185 21037838 18102653 2. Max Retail Division 14557339 37223569 22666230 3. Reliance Retail Limited 1955835 25683406 23727571 4. Others 3819774 1007569 2812205 5. E-Com Sales 15435506 26813210 11377704 Total 38703639 111765692 73061953 This increase in domestic sale to cover up decreased sale volume in Export was on low margin and even on without margin basis. This was the main reason which converted in reduced GP at level of 14.09% from previous level of GP of 20.57% 6. GP of current year excluding stock declared in Survey is 14.09% whereas it was 20.57% during the last year. Actual stock as on 31.03.2017 stands at Rs. 9,08,55,882/-. On referring this amount of stock, the gross profit stood at Rs. 3,14,04,856/- which comes to 14.12% of sales. This Gross profit is lesser than G.P. rates declared in immediately preceding three years. The assessee has calculated reasons for year wise reduction of Export and export incentives. Year Export Turnover Duty Draw back State Tax Import License Total Export Difference ITA No. 209/JP/2022 Good Will Impex Limited 14 Refund 2013-14 174209990 14415426 308137 3840286 192773839 2014-15 148120480 12270363 257682 1055126 161703651 -31070188 2015-16 153253489 12294265 325878 2649562 168523194 6819543 2016-17 105645823 8324942 206888 2118787 116296440 -52226754 7. ANALYSIS OF GP ON EXPORT SALES AND DOMESTIC SALES YEAR WISE. Year Export Sales GP GP Rate Domestic Sale GP GP Rate Total Sales Total GP Total GP Rate 2011-12 200168141 30025221 15 3784222 996540.9 26.3341 203952363 31021762 15.21029791 2012-13 204968686 32794990 16 31328814 4694242 14.98378 236297500 37489232 15.86526805 2013-14 176407267 28225163 16 47106548 7529122 15.98318 223513815 35754285 15.99645417 2014-15 149761617 30469001 20.345 21037661 3363952 15.99014 170799278 33832953 19.80860425 2015-16 155087465 31552545 20.345 42860183 9174965 21.40673 197947648 40727510 20.57488961 2016-17 105973954 21560401 20.345 116497812 9805218 8.416654 222471766 31365619 14.09869643 During the year 2014-15 Company changed its strategy and started producing high rate export material. So GP rade on Export jumped to 20% approx from its previous GP Rate of 15-16 % During the year 2016-17 it could not get sufficient export order so to meet its minimum capacity level it took more orders from domestic buyers such as Reliance, Max Retail, Arvind Lifestyle etc. on low margin or even on without margin to survive on adverse position of global market. So low margin/nil margin on domestic supply reduced its overall GP rate. 8. Plain text of section 115BBE, is reproduced herewith for your ready reference. (1) Where the total income of an assessee, (a) Includes any income referred to in section 68 or section 69 or section 69A or section 698 or section 69C or section 69D and reflected in the Rehirn of Income furnished under section 139: or (b) Determined by the Assessing Officer included any income referred to in section 68 or section 69 or section 694 or section 6 B or section 690 or section 69D, if such income is not covered under clause (a), the income-tax payable shall be the aggregate of (i) The amount of income-tax calculated on income referred to in clause (a) and clause (b), at the rate of sixty percent; and (ii) The amount of income-tax with which the asse see would have been chargeable had his total income been reduced by the amount of income referred to in clause (a) (2) Notwithstanding any thing contained in this Act, no deduction in respect of any expenditure or allowance or set off of any loss shall be a lowed to the ITA No. 209/JP/2022 Good Will Impex Limited 15 assessee under any provision of this Act in computing his income referred to in clause (a) of sub-section (1)." 9. Now we analyze provisions of section 115BBE as under: - (1) Section 115BBE is applicable in following cases. (i) Return furnished u/s 139 of Income Tax Act consists of (ii) Income determined by assessing officer include any income referred in section 68, 69, 694 69B 69C, 69D of Income Tax Act. (2) Income Tax on these incomes are chargeable at the rate of sixty percent of the income. (3) This section is applicable where assessee's income is recorded in books but has not been offered to tax and the assessee fails to prove the nature and source to the satisfaction of the assessing officer. (4) This section is also applicable to the assessee who is nct required to maintain books of accounts but is found to have made unexplained investment: unexplained expenditure or he is found to be in possess on of money, bullion. jewellery or other valuable articles. (5) Where an assessee voluntarily shows income in his return but he is unable to prove the source of such income to the satisfaction of the ASSESSING OFFICER, such income could be held to be liable under section 115BBE (6) The provisions of section 115BBE can be applied in the following circumstances: - (a) Claiming exempt income from any source which the assessee fails to substantiate to the satisfaction of the assessing officer. (b) Claiming income from agricultural operations which the assessee fails to substantiate to the satisfaction of the assessing officer. 10. Plain text of section 69, is reproduced herewith for your ready reference: - "69. Where in the financial year immediately preceding the assessment year the assessee has made investments which are not recorded in the books of account, if any, maintained by him for any source of income. and the assessee offers no explanation about the nature and source of the investments or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the value of the investiments may be deemed to be the income of the assessee of such financial year." 11. Section 69 can be understood as under: - 1. There should be investments made by the assessee. 2. The investment should be made in the financial year immediately preceding the assessment year. 3. For coverage under this section, such investments are not recorded in the books of account maintained by the assessee. 4. Investment may be made for any source of income. ITA No. 209/JP/2022 Good Will Impex Limited 16 5. The assessee has not offered any explanation about sure and source of investment or in the opinion of assessing officer, assessee’s explanation is not found satisfactory. 6. Only then, value of such investment may be deemed to e income if assess for such financial year. 12. Definition of the term investment: It is submitted that the term "Investment is no where defined under Income Tax Act. Therefore we have referred Accounting Standard no. 13 issued by the Instinite of Chartered Accountants of India. In AS-13, le term investment is defined as under:- "Investments are aves held by an enterprise for earning income by way of dividends, interest and rentals, for capital oppreciation or for sther benefits to the invest enterprise Assets held as stock in trade are not "investment". From this definition, it is clear that (1) the "stock in trade" can not be termed as "Investment" and therefore, it is out of purview of section 69 of Income Tax Act. (ii) to quality oneself to be covered by section 69, such investment should not be recorded in books of account. But, in this case, hole of the stock is a part of books of account of the assessee. 13. Stock in Trade is business asset and income from its disposal is covered under Income from Business: - In the case of CIT v. Bajargan Traders D.B. ITA no. 258/2017 dated 12.09.2017, the learned Income Tax Appellate Tribunal held as under: "2.11. Having said that the next issue that arises for consideration is whether the amount surrendered by way of investment in the unrecorded stock of rice has to be brought to tax under the head business income" o "income from other sources" In the present case, the assessee is dealing in sole of food grains, rice and oil seeds, and the excess stock which has been found during the course of survey is stock of rice. Therefore, the investment in procurement of such stock of rice is clearly identifiable and related to the regular usiness stock of the assessee. The decision of the Co-ordinate Bench in case of Shri Ramnarayan Birla (supra) supports the case of the assessee in this regard. Therefore, the investment in the excess stock has to be brought to tax under the head "business income" and not under the head income fromther sources" ACITY, Sanjay Bairathi Gems Limited, ITAT Jaipur Bench:- “4.1 In this background of the scheme of the Act, the question which arises for the determination is than under which head of income the excess stock/ envestment found in search and offered by the assessee for tax is no he assessed According to the antece such excess stock/investment is a businext stock/ investment which has arisen out of the unrecorded business activity of ITA No. 209/JP/2022 Good Will Impex Limited 17 the assessee and therefore the same needs to be assessed under the head profit & grain of business For this purpose reliance is placed on the decision of ITAT Ahmedabad Bench in case of Chokshi Hiralal Maganlal ve DCIT 141 TT (And) 1 dt. 21/01/2011 wherein the Tribunal held that excess sock found during the survey is not separately and clearly identifiable but is part of mixed lots of stock found at the premises which included declared stock as per books and also the excess stock as computed by the survey officers, the provisions of section 698 cannot be made applicable as primary condition for invocing the provisions of section 694, 698 is that the asset should be separately ide stifiable and it should have independent physical existence of its own Since excess stock is a result of suppression of profit from business over the years and has not been kept identifiable separately but is the part of overall physical stock found, the investment in the excess stock has to be treated as business income as per details reasons given in the case of Fashion World vs ACIT ITA No. 1634/AHD/2006 wherein the Tribunal held that, if excess stock found during the course of survey or search and does not have any independent identity as an asset but as mixed part of overall stock found in the survey search then such excess stock would represent business income only. [Emphasis supplied manually] DCIT vs. Ram Narayan Birla 482/JP/2015 dated 30.09.2016, the ITAT held that: "We have heard rival contentions and perused the material available on record Undisputed facts emerged from the record that at the time of survey excess stock was found. It is also not disputed that the assessee is engaged in the business of jewellery, During the course of survey excess stock valuing Rs.77 66,887/- was found in respect of gold and silver jewellery. The Coordinate Bench in the case of Chokshi Hiralal Maganlal vs. DCIT, 131 TTJ (Ahd) his held that in a cases where sources of investment/ expenditure is clearly identifiable and alleged undisclosed asset has no independent existence of its own or there is no separate physical identity of such investment/expenditure then first what is to be taxed is the undisclosed business receipt invested in unidentifiable unaccounted assets and only on failure it should be considered to be taxed under section 69 on the premises that such exces investment is not recorded in the hooks of account and its nature and source is not identifiable. Once such excess investment in tweed a undeclared business receipt then taxing it further as armed come under section 69 would not be necessary. Therefore, the first attempt of the questing authority should be to final out link of undeclared investment/expenditure with the known head, give opportunity to the assessee to establish nera and if it i satisfactorily established then first such investment should be considered a ITA No. 209/JP/2022 Good Will Impex Limited 18 undeclared receipt under the particular head. It is observed that there is no conflict with the decision of Hon'ble Gujarat High Cour in the case of Fakir Mohd Haji Hasan (supra) where investment in an asset or expenditure is no identifiable and no nexus was established then with any head of income cond thi was not available for sel off against any loss under any other head. Therefore the Hon'ble Coordinate Bench held that where asset in which undeclared investment is sought to be taxed is not clearly identifiable or does not have independent identity but is integral and inseparable (miced) part of declared asset, falling under a particular head, then the difference should be treated as undeclared business income explaining the investment. In the present case the excess stock was part of the stock. The revenue has no pointed out that the excess stock has any nexus with any other receipts. Therefore, we do not find any fault with the decision of the Id CIT(A) directing the AO to treat the surrendered amount as excess stock qua the excess stock found 14. Conclusion: Stock in trade does not form part of the term "Investment" as defired by section 69 of Income Tax Act, but it a business asset. The assessee has declared his income from business and house property only and there seems no other income from which such excess stock can be purchased. Further, the investigation officer has made physical counting of whole of the stock and there is no seperate identification of such undeclared stock. As such the investment in the excess stock has to be treated as business income. Once when the stock in trade is treated as business income, it will reach out of purview of section 69 and section 115BBE of Income Tax Act.” 14. We found from the above discussion that the issue has already been raised in the assessment proceedings. Based on the contentions and judicial precedent cited by the assessee the assessing officer satiated himself and has taken a plausible view and has considered the excess stock as part of business income. He has taken a view which is also one of the views and there is no clear finding of the ld. Pr. CIT as to why and how the view taken by ITA No. 209/JP/2022 Good Will Impex Limited 19 the assessing officer is not legally correct when he has asked the relevant information and taken a view in the matter. In light of aforesaid discussions and in the entirety of facts and circumstances of the case, there is no basis to hold that the order passed by the Assessing officer is erroneous so far as prejudicial to the interest of the Revenue. The order of the ld. Pr. CIT is hereby set-aside and that of the Assessing officer is sustained. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 25/08/2022 Sd/- Sd/- ¼ lanhi xkslkbZ ½ ¼ jkBkSM deys’k t;arHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 25/08/2022 *Ganesh Kumar vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. vihykFkhZ@The Appellant- Good Will Impex Ltd., Jaipur 2. izR;FkhZ@ The Respondent- Pr.CIT, Jaipur-2 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur. 6. xkMZ QkbZy@ Guard File {ITA No. 209/JP/2022} vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar