2010 (1) TMI 653 - AT - Income Tax

Search - Survey - once the A.O, has taken a view in the matter, then such letter filed by the assessee has got no legal consequence, especially when the assessee had filed separate return, though subsequently, which has been acted upon by the Assessing Officer - Before deciding the core issue involved in this ground, the Revenue Authorities have been given ample powers to compel the assessee to file the returns and in case the assessee does not comply with the notices issued by the Assessing Officer, in this regard, then penal provision exists, which can be invoked to penalize the assessee - It is also noteworthy that prior to such new procedure of assessment in search cases, the undisclosed income found as a consequence of search had to be assessed in accordance with the provisions of sections 158BC/158BD under Chapter XIVB of the Act It is further noted that the A.O. has not given total effect to the seized documents by adding only 25 % of the quantum of undisclosed sales consideration arrived by him and no basis for adoption of such rate is evident in the assessment order - Accordingly decided in the favour of the assessee

Summary

Issues Involved:
1. Validity of assessment proceedings and assessment order.
2. Suppressed undisclosed sale consideration.

Detailed Analysis:

1. Validity of Assessment Proceedings and Assessment Order:

The core issue in the cross objections was whether the assessment proceedings were validly initiated and whether the assessment order was illegal and invalid. The facts reveal that a search under section 132(1) and survey operation under section 133A were carried out on 16.9.2005, leading to the issuance of a notice under section 153C read with section 153A on 22.3.2006. The assessee did not file a return within the stipulated 30 days but later claimed that earlier returns filed under section 139 should be considered as filed in compliance with the notice. The Assessing Officer (A.O.) rejected this plea and required a separate return, issuing notices under sections 142(1) and 143(2) before the return was filed on 15.10.2007. The A.O. completed the assessment on 31.12.2007, making additions for undisclosed sale consideration.

The assessee contended that the notice under section 143(2) issued on 31.8.2007 was invalid since it was issued before the return was filed, rendering the assessment order void ab initio. The CIT(A) acknowledged irregularity but did not declare the assessment void, citing no prejudice to the assessee. The Tribunal found that the issuance of notice under section 143(2) before the filing of the return was non est in law and mandatory for a valid assessment under section 143(3) or section 153A. The Tribunal quashed the assessment proceedings for all years as null and void, emphasizing that the provisions of section 143(2) are not merely procedural but jurisdictional, and section 292BB, being prospective, does not apply.

2. Suppressed Undisclosed Sale Consideration:

The A.O. made additions based on seized documents indicating undisclosed sale consideration. The Tribunal noted that the A.O. inferred the existence of "on money" from notations in the documents without corroborative evidence or inquiries from other builders or buyers. The A.O. added only 25% of the alleged undisclosed sales without a clear basis. The CIT(A) found that the seized documents did not conclusively prove unrecorded sales, as the notations could relate to other activities, and the A.O. did not substantiate the claim with specific cases of unrecorded sales. The Tribunal upheld the CIT(A)'s decision to delete the additions, agreeing that the A.O.'s conclusions were speculative and unsupported by concrete evidence.

Conclusion:

The Tribunal allowed all cross objections filed by the assessee, quashing the assessment proceedings as null and void due to the invalid issuance of notice under section 143(2) before the return filing. The Tribunal also dismissed all Revenue appeals, finding no basis for the additions made for undisclosed sale consideration. The decision underscores the importance of following procedural requirements and substantiating claims with solid evidence in tax assessments.