2015 (10) TMI 1266 - AT - Income Tax

Validity of proceedings u/s. 153C - roving enquiries or routine disallowances - AO invoked the provisions of Section 144 and made various additions - Held that - No merit in Revenue s grounds in AYs. 2004-05, 2005-06 and 2008-09. There is no incriminating material as far as assessee is concerned. Nothing was brought on record either in the assessment order or before the CIT(A) or during the proceedings before us that there is any incriminating material identified as belonging to assessee. Therefore, the proceedings per se u/s. 153C should not arise. Even if for the sake of argument consider that proceedings u/s. 153C are appropriate, the AO cannot make any routine disallowance in the search assessments in the absence of any incriminating material. AO would be entitled to make additions u/s. 153A. As the jurisdiction for completion of assessment u/s. 153C is limited, AO cannot make roving enquiries or routine disallowances which are not warranted otherwise - Decided against revenue. Coming to AY. 2009-10, as already stated above, the proceedings are not u/s. 153C. Since AO has neither followed the procedure u/s. 144 nor CIT(A) has considered assessee s request for examining the Books of Accounts, we are of the opinion that the deletion by CIT(A) of the disallowance of the personal expenditure and also confirmation of the amount as unexplained cash credit is without any basis. Even though Ld. CIT(A) noted that assessee failed to produce the genuineness of these transactions before the AO and before CIT(A), there seems to be no enquiry made by any of the authorities to come to the said conclusion. In view of this, we are not in a position to uphold the order of CIT(A) in AY. 2009-10 and therefore the Revenue s grounds on disallowance of personal expenditure are to be considered as allowed for statistical purposes.

Summary

Issues:
- Validity of proceedings under section 153C of the Income Tax Act
- Deletion of unexplained cash credits and disallowance of personal expenditure by the Assessing Officer
- Legality of ex-parte assessment
- Treatment of seized material in assessment
- Consideration of Books of Accounts in assessment

Analysis:

1. Validity of Proceedings under Section 153C:
The case involved appeals by both the Revenue and the assessee for various assessment years. The Revenue contested the deletion of unexplained cash credits and disallowance of personal expenditure by the CIT(A), while the assessee challenged the initiation of proceedings under section 153C of the Income Tax Act. The Tribunal examined the search and seizure operations conducted in the case of the assessee's father and upheld the proceedings under section 153C, considering the relationship between the parties and the need to verify inter-related transactions.

2. Deletion of Unexplained Cash Credits and Disallowance of Personal Expenditure:
The Tribunal reviewed the additions made by the Assessing Officer, noting that in the absence of any seized material or incriminating evidence related to the assessee, the additions were not valid. The CIT(A) deleted the additions in most assessment years except for one, where unexplained cash credit was upheld. The Tribunal upheld the CIT(A)'s decision on deleting the additions in the absence of incriminating material.

3. Legality of Ex-Parte Assessment:
The assessee raised concerns regarding the ex-parte assessment conducted by the AO, stating that proper representation was not provided during the assessment process. The Tribunal observed that the AO did not follow due procedure and did not issue a show cause notice before making additions. Consequently, the Tribunal upheld the CIT(A)'s decision to delete the additions in the absence of proper procedure.

4. Treatment of Seized Material in Assessment:
The Tribunal emphasized the importance of seized material in making additions during assessments. It noted that assessments based solely on seized material should be supported by incriminating evidence related to the assessee. In the absence of such evidence, routine disallowances or additions are not warranted.

5. Consideration of Books of Accounts in Assessment:
The Tribunal highlighted the significance of examining the assessee's Books of Accounts during assessments. It noted that the AO failed to consider the Books of Accounts in one assessment year, leading to the deletion of disallowances without proper verification. The Tribunal directed the AO to examine the transactions afresh based on the Books of Accounts.

In conclusion, the Tribunal dismissed the Revenue's appeals for certain assessment years, allowed the appeals for statistical purposes in others, and upheld the Cross Objections of the assessee regarding the validity of proceedings under section 153C. The Tribunal emphasized the importance of incriminating material, proper procedure, and examination of Books of Accounts in conducting fair and valid assessments.