2017 (8) TMI 1544 - AT - Income Tax

Assessment u/s 153A - no incriminating material being available against assessee in search u/s 132 on basis of which notice was issued u/s 153(A)(1)(a) - HELD THAT - We find the assessee in the instant case has filed his original return of income on 30th March, 2012 declaring total income of ₹ 3,92,11,220/-. In response to notice u/s. 153A of the IT Act, the assessee filed return in response to notice u/s 153A on 5th January, 2015 declaring the same income. The assessee in his return of income had claimed exemption of long term capital gain of ₹ 5,62,61,726/-. The assessment order was passed u/s 143(3) read with section 153A by making addition of the long term capital gain as bogus. From the order of the assessing officer, we find nowhere it is mentioned that any incriminating material was found during the course of search. The entire addition made by the AO is based on post search inquiries. There is also no ground by the revenue that any such incriminating material was found other than the statement of Shri Sundeep Gupta at the time of search. Under these circumstances, we have to adjudicate as to whether the CIT(A) has erred in deleting the addition made by the AO in absence of any incriminating material. Hon ble Delhi High Court in the case of Pr. CIT vs. Meeta Gutgutia 2017 (5) TMI 1224 - DELHI HIGH COURT has held that addition cannot be made in absence of any incriminating material and the decision in the case of Smt. Dayawanti Gupta has been duly considered Since the Hon ble Jurisdictional High Court has clearly held that addition in order passed u/s 143(3)/ 153A cannot be made in absence of any incriminating material and since in the instant case, there is no evidence whatsoever on record that any incriminating material was found during the course of search and since the addition was made on the basis of certain inquiries conducted subsequent to the search on the basis of return already filed, therefore, on this issue itself addition has to be deleted. We, therefore, uphold the order of the CIT(A) and dismiss the ground raised by the revenue.

Summary

Issues Involved:
1. Legality of reassessment under Section 153A in the absence of incriminating material.
2. Validity of additions based on statements of third parties and post-search inquiries.
3. Genuineness of long-term capital gains (LTCG) claimed by the assessee.

Detailed Analysis:

1. Legality of Reassessment under Section 153A:
The primary issue was whether reassessment under Section 153A could be made in the absence of any incriminating material found during the search. The assessee argued that no incriminating material was found during the search, as evidenced by the Punchnama and the assessment order itself, and relied on the decision of the Hon’ble Delhi High Court in CIT vs. Kabul Chawla. The CIT(A) agreed, stating that the reassessments for both years were "completed" and not abated, and thus reassessment under Section 153A could not be made without incriminating material. The CIT(A) quashed the reassessment order, citing various judgments, including CIT vs. Kabul Chawla, which held that completed assessments could only be interfered with based on incriminating material found during the search.

2. Validity of Additions Based on Statements of Third Parties and Post-Search Inquiries:
The AO had made additions based on statements from third parties like Shri Vipin Jain and Shri R.K. Kedia, and findings from SEBI regarding manipulative trading in shares of M/s First Financial Services Ltd. The CIT(A) held that these statements were not confronted to the assessee, nor was any opportunity provided for cross-examination, violating the principles of natural justice. The CIT(A) referenced several legal precedents, including Andaman Timber Industries v. Commissioner of Central Excise Kolkata-II, which emphasize the necessity of providing an opportunity to cross-examine third parties whose statements are used against the assessee. Consequently, the CIT(A) found the reassessment order unsustainable on this ground as well.

3. Genuineness of Long-Term Capital Gains (LTCG):
The AO had treated the LTCG claimed by the assessee as bogus, alleging that the transactions were accommodation entries facilitated by entry operators. The assessee provided detailed documentation, including transaction ledgers, contract notes, and NSDL statements, to substantiate the genuineness of the share transactions. The CIT(A) observed that the AO had made additions based on presumptions and surmises without any material evidence. It was noted that the AO did not bring any evidence on record to suggest that the transactions were not genuine or that the assessee had paid cash for accommodation entries. The CIT(A) concluded that the additions were not sustainable on merits, as they were based on assumptions without corroborative evidence.

Conclusion:
The Tribunal upheld the CIT(A)'s order, dismissing the revenue's appeal. It was held that in the absence of any incriminating material found during the search, no addition could be made under Section 153A. The Tribunal also noted that the revenue had not challenged the CIT(A)'s finding on the absence of incriminating material, which was a vital legal ground for deleting the addition. The Tribunal found no infirmity in the CIT(A)'s order and dismissed the grounds raised by the revenue, affirming that the additions were unsustainable both legally and on merits.