Manoj Vishwanath Patil, Jalgaon V. Deputy Commissioner of Income-Tax, Circle -1, Nashik

ITA 938/PUN/2022

AI Insights

The case involves Manoj Vishwanath Patil, the proprietor of Vishwanath R. Patil Jewellers, who appealed against the order of the CIT(A) affirming the assessment made by the AO under sections 69 and 69B of the Income-tax Act, 1961, and their taxation under section 115BBE at 60%. The dispute centered on the taxability of Rs.34,36,621, which included excess stock and unexplained investment in construction found during a survey under section 133A. The Tribunal examined whether the excess stock should be treated as undisclosed business income or unexplained investment and whether the unexplained investment in construction was correctly classified and taxed.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 124184 (ITAT-PUNE)
• Duration Of Justice: 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 04-07-2023
• Assessment Year: 2019-2020
• Appeal Filed On: 21-12-2022
• Other Referred Cases: Ashok K. Kriplani (ITA No.252/PUN/2023 dt. 03-07-2023), CIT Vs. Bajargan Traders (2017) 86 taxmann.com 295 (Rajasthan)
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT आयकर अपील सं. /ITA No.938/PUN/2022 नधा रण वष / Assessment Year : 2019-20 Manoj Vishwanath Patil, Prop. of Vishwanath R. Patil Jewellers, Shop No.16, D.H. Plaza Market, Saraf Bazar, Jalgaon – 425001 Maharashtra PAN : AKEPP6782E Vs. DCIT, Central Circle-1, Nashik Appellant Respondent आदेश / ORDER PER R.S. SYAL, VP: This appeal by the assessee arises out of the order dated 30-11-2022 passed by the CIT(A) in National Faceless Appeal Centre, Delhi u/s.250 of the Income-tax Act, 1961 (hereinafter also called ‘the Act’) in relation to the assessment year 2019-20. 2. The only issue raised herein is against the taxability of Rs.34,36,621/- u/s.115BBE as against regular income reported by the assessee. 3. Briefly stated, the facts of the case are that the assessee was subjected to survey u/s.133A on 25-10-2018. Excess stock of Rs.31,84,121/- was found. Expenditure on building to the tune of Assessee by None (written submissions filed) Revenue by Shri Arvind Desai Date of hearing 05-07-2023 Date of pronouncement 06-07-2023 ITA No.938/PUN/2022 Manoj Vishwanath Patil 2 Rs.2,52,500/- was also found to have been incurred by the assessee which was not recorded. The assessee surrendered both the amounts totalling to Rs.34,36,621/- and offered them in the return of income filed. The AO reduced these two amounts from the total income offered and treated them as undisclosed money (stock) u/s 69 and unexplained money (cash investment) u/s.69B and taxed them u/s.115BBE at 60%. The ld. CIT(A) affirmed the view taken by the AO, against which the assessee has come up in appeal before the Tribunal. 4. I have heard the ld. DR and gone through the relevant material on record. There is no appearance from the side of the assessee. However, written submissions have been filed, which have been considered. 5. The first amount is excess stock found during the course of survey, which was duly offered for taxation and also included in the return of income. This amount representing excess stock is undisclosed business income and not unexplained investment. As such, the question of its taxability u/s.115BBE does not arise. Similar view has been taken by the Pune benches of the tribunal in Ashok K. Kriplani (ITA No.252/PUN/2023 dt. 03-07-2023) in which it has been held that excess stock found during the course of survey cannot ITA No.938/PUN/2022 Manoj Vishwanath Patil 3 be considered as unexplained investment u/s.69 of the Act. In reaching this conclusion, the Tribunal, in turn, relied on the judgment of the Hon’ble Rajasthan High Court in CIT Vs. Bajargan Traders (2017) 86 taxmann.com 295 (Rajasthan). This ground is thus allowed. 6. The second amount is Rs.2,52,500/- which has been taxed u/s.69B. The assessee was found to have suppressed cost of construction by a sum of Rs.2,52,500/- which was admitted during the course of survey. This is clearly in the nature of unexplained investment falls u/s.69B of the Act and hence has to be subjected to tax u/s.115BBE of the Act. Unlike undisclosed business income on account of excess stock, this amount represents unexplained investment. I, therefore, approve the view taken by the ld. CIT(A) to this extent. 7. In the result, the appeal is partly allowed. Order pronounced in the Open Court on 06 th July, 2023. Sd/- (R.S.SYAL) VICE PRESIDENT पुणे Pune; िदनांक Dated : 06 th July, 2023 सतीश ITA No.938/PUN/2022 Manoj Vishwanath Patil 4 आदेश की ितिलिप अ ेिषत/Copy of the Order is forwarded to: 1. अपीलाथ / The Appellant; 2. थ / The Respondent 3. 4. 5. The Pr.CIT concerned DR, ITAT, ‘SMC’ Bench, Pune गाड फाईल / Guard file. आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune Date 1. Draft dictated on 05-07-2023 Sr.PS 2. Draft placed before author 05-07-2023 Sr.PS 3. Draft proposed & placed before the second member JM 4. Draft discussed/approved by Second Member. JM 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *