2015 (2) TMI 1109 - AT - Income Tax

Validity of assessment u/s 153A - addition to income - Held that - As all the appeals relate to the assessment years, which were not abated by the provisions of Section 153A of the Act. It has been held by the Mumbai Special Bench in the case of All Cargo Global Logistics Ltd. v. DCIT (2012 (7) TMI 222 - ITAT MUMBAI(SB)) that the additions can be made in the case of completed assessments (assessment years which were not abated) only on the basis of incriminating material found during the course of search. Admittedly, in these cases, the Department did not unearth any incriminating material warranting addition. Under these circumstances, we hold that all the additions made by the Assessing Officer were not in accordance with law. - Decided in favour of assessee

Summary

Issues Involved:
Appeals against orders passed by Ld. Commissioner of Income Tax (Appeals) for assessment years under Section 153A of the Income-tax Act, 1961. Legal issue of completed assessments and additions based on incriminating material. Disallowance of revenue expenditure as capital expenditure based on a revision order passed by Ld. CIT(Appeals) under Section 263 of the Act.

Analysis:

Issue 1: Completed Assessments and Additions Based on Incriminating Material
The appeals were filed against the orders passed by Ld. Commissioner of Income Tax (Appeals) for assessment years under Section 153A of the Income-tax Act, 1961. The legal issue raised was whether the additions made by the Assessing Officer were valid in law since they were not based on any incriminating material found during the search. The assessees argued that completed assessments could only be disturbed based on incriminating material discovered during the search, citing the Mumbai Special Bench's decision in the case of All Cargo Global Logistics Ltd. v. DCIT. The Tribunal agreed with this argument, emphasizing that additions in completed assessments could only be made on the basis of incriminating material found during the search. As no such material was unearthed in this case, the additions made by the Assessing Officer were deemed not in accordance with the law. The Tribunal also referenced similar views expressed by the Hon'ble Rajasthan High Court and the Hon'ble Bombay High Court, supporting the decision of the Mumbai Special Bench.

Issue 2: Disallowance of Revenue Expenditure as Capital Expenditure
In the case of M/s Viswams and M/s AREMKAY, the Assessing Officer had disallowed revenue expenditure by treating it as capital expenditure, based on a revision order passed by Ld. CIT(Appeals) under Section 263 of the Act. However, the assessees had appealed against these revision orders, and the Tribunal had quashed them. The Ld. CIT(Appeals) followed the Tribunal's decision and allowed the appeals of the assessees. The Revenue, however, filed appeals challenging these decisions. The Ld. counsel argued that the Assessing Officer was not justified in following a revision order that had been set aside by the Tribunal. The Ld. D.R. supported the orders passed by the Ld. CIT(Appeals) and the Assessing Officer. The Tribunal, having set aside all the additions made by the Assessing Officer, found it unnecessary to address the issue relating to the disallowance of revenue expenditure based on the revision order.

In conclusion, the appeals filed by the assessees were allowed, and the appeals filed by the Revenue were dismissed, with all additions made by the Assessing Officer in the assessment years under consideration being set aside.