2018 (4) TMI 1559 - AT - Income Tax

Assessment u/s 153A - Unexplained cash credit under Section 68 - Held that - Respectfully following the decisions of the Hon ble Karnataka High Court in the case of IBC Knowledge Park (P.) Ltd. (2016 (5) TMI 372 - KARNATAKA HIGH COURT) we hold that for Assessment Year 2005-06 no assessment had abated and therefore the assessment under Section 143(3) r.w.s. 153A of the Act could have been made based only on incriminating documents / material found and seized in the course of search. That clearly not being the factual matrix in the case on hand since no incriminating material was found / seized the order of assessment for Assessment Year 2005-06 passed under Section 143(3) r.w.s. 153A of the Act vide order dt.14-3-2013 is cancelled Validity of notice proceedings and Asst. Order against non-existent entity - Held that - The order of assessment for Assessment Year 2007-08 dt.28-3-2013 is invalid and accordingly cancelled as the same was passed after the appointed date of 1-4-2007 on a non-existent entity. See CIT v. Intel Technology India (P.) Ltd. 2015 (5) TMI 614 - KARNATAKA HIGH COURT Unaccounted cash payments - Held that - AO is not sure as to who the assessee and what is the nature of transaction and why it requires to be added. Under such circumstances the addition lacks substance and not supported by any evidence requires to be deleted. Addition u/s 68 - Held that - Addition made by the AO in respect of share application money on protective basis as unexplained cash credits u/s 68 of the Act and deleted by the ld CIT(A) in the impugned order cannot be treated as unexplained cash credits in the hands of the assessee.

Summary

Issues Involved:
1. Validity of search and subsequent proceedings.
2. Addition of unexplained cash credits under Section 68.
3. Addition of unaccounted income and production.
4. Approval under Section 153D.
5. Levy of interest under Sections 234A, 234B, 234C, and 234D.
6. Set-off of brought forward business losses.

Detailed Analysis:

1. Validity of Search and Subsequent Proceedings:
The assessee challenged the validity of the search and subsequent proceedings under Sections 132 and 153A of the Income Tax Act, 1961. The Tribunal referred to the amendment in the Finance Act, 2017, which precludes the Tribunal from examining the validity of the search action. Consequently, the Tribunal dismissed the grounds challenging the validity of the search.

2. Addition of Unexplained Cash Credits under Section 68:
The Tribunal examined the addition of Rs. 1,83,50,000 as unexplained cash credits under Section 68 for the assessment year 2005-06. It was found that the addition was not based on any incriminating material seized during the search. The Tribunal relied on the jurisdictional High Court's decision in CIT Vs. Lancy Constructions, which held that no reassessment can be made unless there is incriminating material. Consequently, the Tribunal canceled the assessment order for 2005-06 and restored the original assessment.

For the assessment year 2011-12, the Tribunal upheld the CIT (Appeals)'s deletion of the protective addition of Rs. 56.40 crores as unexplained cash credits. It relied on the Supreme Court's decision in Lovely Exports (P.) Ltd., which held that if the share application money is received from alleged bogus shareholders, the Department should proceed against the shareholders individually.

3. Addition of Unaccounted Income and Production:
For the assessment year 2007-08, the Tribunal found that the assessment was made against a non-existent entity (HKT Mining Pvt. Ltd., which had merged with BMM Ispat Ltd.). The Tribunal held the assessment invalid and canceled it.

For the assessment years 2008-09 to 2010-11, the Tribunal found that the additions were not based on any incriminating material seized during the search. It relied on the jurisdictional High Court's decision in IBC Knowledge Park (P.) Ltd., which held that assessments under Section 153A can only be made based on incriminating material found during the search. Consequently, the Tribunal canceled the assessments for these years and restored the original assessments.

4. Approval under Section 153D:
The assessee contended that the approval granted under Section 153D was without application of mind and in a mechanical manner. The Tribunal did not find merit in this contention and upheld the approval granted under Section 153D.

5. Levy of Interest under Sections 234A, 234B, 234C, and 234D:
The Tribunal held that the charging of interest under Sections 234A, 234B, 234C, and 234D is consequential and mandatory. The Assessing Officer was directed to recompute the interest chargeable while giving effect to the Tribunal's order.

6. Set-off of Brought Forward Business Losses:
For the assessment year 2011-12, the Tribunal found that the authorities below had denied the assessee's claim for set-off of brought forward business losses without proper examination. The Tribunal set aside the findings on this issue and restored the matter to the Assessing Officer for fresh examination and consideration.

Conclusion:
The Tribunal allowed the assessee's appeals for the assessment years 2005-06, 2007-08 to 2010-11, and partly allowed the assessee's appeal for the assessment year 2011-12. The Tribunal dismissed the Revenue's appeal for the assessment year 2011-12. The Tribunal's decision was based on the lack of incriminating material found during the search, the invalidity of assessments against non-existent entities, and the mandatory nature of interest levies under Sections 234A, 234B, 234C, and 234D.