2012 (7) TMI 11 - AT - Income Tax

Whether the grounds of assumption of jurisdiction u/s 158-BD which was not taken in the appeal by the assessee in the first round of appellate proceedings, can be taken in the second round of assessment proceedings Held that - assessing officer had not provided the copy of satisfaction note recorded by the assessing officer while initiating proceedings under section 158BD of the Act. The satisfaction note was provided on interference of the ld. CIT (Appeals) in the second round of appellate proceedings - only the assessee came to know the reasons as to why proceedings against it were initiated under section 158-BD of the Act as no search under section 132 of the Act was conducted in the case of the assessee - assessee is justified in taking the ground agitating the jurisdiction under section 158BD in the second round of assessment proceedings Whether the assessing officer could have initiated proceedings under section 158BD of the Act when no assessment proceedings under section 158BD have been completed in the case of searched assessees Held that - Initiation of 158BD proceedings is independent of the action taken in the case of searched person - completion of assessment under section 158BC in the case of searched person is not condition precedent for recording of the satisfaction under section 158BD of the Act Decided against assessee Whether typing errors should be ignored - satisfaction note has not been recorded before issue of notice u/s 158BD of the Act - satisfaction note is dated 16/09/2004 whereas on top of notice u/s 158BD, the typed date is 16/11/2003 - notice under section 158BD was served on the assessee on 20/09/2004 Held that - date of issue of notice on 16/11/2003, appears to be typing mistake - date mentioned on the notice under section 158BC 16/11/2003 is a typographic mistake - contention of the assessee is rejected Whether combined satisfaction note recorded in respect of three different searched persons is bad in law Held that - assessing officer is same for all the searched persons, because of this reason, a combined satisfaction note has been prepared. When the assessing officer is the same for all the searched persons, making a satisfaction note based on material found from the premises of different persons, which was conveyed by the authorized officer to the assessing officer, preparation of combined satisfaction note will not be detrimental to the interest of the Revenue - What is to be seen is whether before issue of notice u/d 158BD satisfaction should be recorded by the assessing officer which has been done in the case of the assessee - CIT (Appeals) was justified in rejecting the claim of the assessee that proceedings initiated under section 158BD read with section 158BC were bad in law Addition was made by the AO on the ground that payments were illegal - commission and commission expenses - Proviso to section 69C has come into operation only since 1/04/1999 Held that - assessee had incurred expenditure during the course of business. There is no material on record to prove that the said expenditure was incurred after 1/04/1999 when proviso to section 69-C of the Act was inserted in the statute. In the absence of any such evidence to prove that the commission was in the nature of illegal and the year to which the same relate, addition under section 69-C cannot be made in favor of assessee. Addition during second round of litigation - held that - it is a settled law that the assessee cannot be put to a more adverse situation than what he was. The assessee approached the Tribunal being dissatisfied with the estimation of income at the rate of 8 per cent on disclosed turnover u/s 44AD - ITAT set aside the matter remanded back the issue with direction - the addition cannot be made under section 158BB of the Act merely on presumption that assessee had earned undisclosed income and had incurred expenses outside the books of account. Interest under section 220(2) of the Act - assessee submitted that interest under section 220(2) is chargeable in relation to post assessment period only - interest had been charged under section 220(2) vide demand notice which formed part and parcel of block assessment Held that - charging of interest was patently erroneous - Since addition is deleted, interest under section 220(2) will not be leviable - assessee s grounds are allowed on merits

Issues Involved:
1. Initiation of proceedings under Section 158BD of the Income Tax Act, 1961.
2. Addition on account of undisclosed expenditure.
3. Addition on account of suppression of receipts and inflation of expenses.
4. Charge of interest under Section 220(2) of the Income Tax Act, 1961.
5. Legality of illegal payments as commission.

Issue-wise Detailed Analysis:

1. Initiation of proceedings under Section 158BD of the Income Tax Act, 1961:
The assessee contested the initiation of proceedings under Section 158BD, arguing that the notice was issued without proper satisfaction being recorded. The Tribunal found that the satisfaction note was indeed recorded before the issuance of the notice, dismissing the claim of the assessee that the notice was issued without a valid satisfaction note. The Tribunal also clarified that the initiation of proceedings under Section 158BD is independent of the completion of assessment under Section 158BC in the case of the searched person. The Tribunal held that the satisfaction note recorded by the assessing officer was valid, and the proceedings initiated under Section 158BD were legally justified.

2. Addition on account of undisclosed expenditure:
The assessing officer added Rs. 3,82,66,276/- as undisclosed expenditure based on seized documents. The Tribunal found that the assessing officer had not properly co-related the seized documents with the regular books of accounts. The Tribunal noted that the total expenses determined from the seized documents were less than the expenses shown in the audited profit and loss account. The Tribunal concluded that there was no evidence to suggest that the assessee had incurred expenses outside the books of accounts. Therefore, the addition of Rs. 3,82,66,276/- was deleted.

3. Addition on account of suppression of receipts and inflation of expenses:
The assessing officer added Rs. 1,00,00,000/- on account of suppression of receipts and inflation of expenses. The Tribunal found that the assessing officer had made this addition based on presumptions without any corroborative evidence. The Tribunal noted that the assessing officer had not determined the undisclosed income year-wise and had not provided any evidence to suggest that the assessee had earned undisclosed income. Therefore, the addition of Rs. 1,00,00,000/- was deleted.

4. Charge of interest under Section 220(2) of the Income Tax Act, 1961:
The assessee contested the charge of interest under Section 220(2), arguing that it is chargeable only in relation to the post-assessment period. The Tribunal noted that since the additions were deleted, interest under Section 220(2) would not be leviable. However, interest would be leviable in respect of additions sustained by the ITAT in the first round of appellate proceedings.

5. Legality of illegal payments as commission:
The assessing officer added Rs. 6,38,500/- as illegal payments of commission. The Tribunal found that there was no material to support the assessing officer's finding that the payments were illegal. The Tribunal noted that the assessing officer had not provided any evidence to prove that the commission was in the nature of illegal payments. Therefore, the addition of Rs. 6,38,500/- was deleted.

Conclusion:
The Tribunal concluded that the initiation of proceedings under Section 158BD was legally justified. However, the additions made on account of undisclosed expenditure, suppression of receipts, and illegal payments were deleted due to lack of corroborative evidence. The charge of interest under Section 220(2) was also dismissed due to the deletion of the additions. The appeal filed by the assessee was partly allowed, and the appeal filed by the Revenue was dismissed.

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