2011 (7) TMI 966 - AT - Income Tax

Block assessment - Search and seizure - served several notices to the assessee(s) u/s 158BD - Held that - As it is seen that the returns filed by the assessee disclosed the amount of additions, which were made by the AO in the present assessment order passed under section 158BD - since the transactions made in the assessment year under appeal are found to have been disclosed in the return of income of the assessee already filed in the regular course, the addition made in this assessment order is not sustainable and accordingly, the CIT (A) has rightly deleted the addition made by the AO in the assessment order - Decided in favor of the assessee Addition on protective basis - Held that - CIT(Appeals) erred in deleting the addition made on protective basis by holding that the Assessing Officer made the substantive addition in the case of Shri Sunil Kumar Shah husband of the assessee in whose case the addition was deleted and as such the Assessing Officer should not have made the addition again on protective basis in the case of the assessee. By holding such opinion, the CIT(Appeals) overlooked the basic issue as to whom should the sources of deposits in the bank account be traced to. Since both protective and substantive, additions have been deleted the interests of the Revenue has been jeopardised. The Commissioner of Income-tax (Appeals) has failed to look into the sources of the funds made towards investment of auction money by the assessee thus giving a clean chit to the assessee. Her further observation that the Assessing Officer has made post-search enquiry from the Excise Department. In contraction of section is also incorrect since the Assessing Officer based his enquiry on seized documents. Since the seized documents did not name any other person it was for the assessee to explain the sources of deposit of auction money. The learned Commissioner of Income-tax (Appeals) has failed to appreciate this fact.

Summary

Issues Involved:
1. Validity of proceedings under Section 158BD.
2. Non-communication of reasons for initiating proceedings.
3. Protective vs. substantive assessments.
4. Compliance with notices and questionnaires.
5. Verification of regular returns and balance sheets.
6. Evidentiary value of seized documents and statements.
7. Rule 46A of the Income-tax Rules.

Detailed Analysis:

1. Validity of Proceedings under Section 158BD:
The Tribunal examined the provisions of Section 158BD, which necessitate the Assessing Officer's satisfaction that any undisclosed income belongs to persons other than the one searched. The Tribunal noted that the Assessing Officer's satisfaction must be derived from seized documents and verified against regular returns. The Tribunal found that the satisfaction was not properly recorded or communicated, rendering the proceedings under Section 158BD unjustified.

2. Non-communication of Reasons for Initiating Proceedings:
The assessees contended that reasons for initiating proceedings under Section 158BD were never communicated. The Tribunal agreed, emphasizing that due communication of satisfaction is a fundamental right of the assessee. The Tribunal concluded that the lack of communication invalidated the Assessing Officer's actions under Section 158BD.

3. Protective vs. Substantive Assessments:
The Tribunal addressed the issue of protective assessments, wherein the Assessing Officer made additions on a protective basis in the assessees' cases and on a substantive basis in the case of Pramod Prasad. The Tribunal found that the Assessing Officer's predetermined approach and lack of proper examination of regular returns invalidated these assessments.

4. Compliance with Notices and Questionnaires:
The Department argued that the assessees did not comply with notices and questionnaires. The Tribunal observed that the assessees had responded to communications and that the Assessing Officer failed to provide reasons for initiating proceedings. The Tribunal found that the Assessing Officer's actions were not justified due to non-communication of reasons.

5. Verification of Regular Returns and Balance Sheets:
The Tribunal noted that the learned Commissioner of Income-tax (Appeals) verified the assessees' regular returns and balance sheets, finding that the transactions were disclosed. The Tribunal upheld the Commissioner's findings, stating that the Assessing Officer did not examine these documents properly, thus making the additions unsustainable.

6. Evidentiary Value of Seized Documents and Statements:
The Tribunal discussed the evidentiary value of seized documents and statements under Section 131 and 132(4). The Tribunal emphasized that the Assessing Officer must derive satisfaction from seized documents and communicate it to the assessees. The Tribunal found that the Assessing Officer's failure to do so invalidated the assessments.

7. Rule 46A of the Income-tax Rules:
The Department contended that the Commissioner of Income-tax (Appeals) violated Rule 46A by considering new evidence without providing the Assessing Officer an opportunity to examine it. The Tribunal found that the Commissioner had allowed the Assessing Officer an opportunity, which he did not utilize. Thus, the Tribunal upheld the Commissioner's actions.

Conclusion:
The Tribunal dismissed all appeals filed by the Revenue and allowed the cross-objections filed by the assessees. The Tribunal concluded that the Assessing Officer's actions under Section 158BD were not justified due to non-communication of satisfaction and improper examination of regular returns and balance sheets. The Tribunal upheld the findings of the Commissioner of Income-tax (Appeals), stating that the additions made by the Assessing Officer were unsustainable.