2016 (7) TMI 1589 - HC - Income Tax

Assessment u/s 153A - Depreciation on the opening WDV - Whether no incriminating material available with the Assessing Officer? - HELD THAT - Under section 153A an assessment has to be made in relation to the search or requisition namely in relation to material disclosed during the search or requisition. If in relation to any assessment year no incriminating material is found no addition or disallowance can be made in relation to that assessment year in exercise of powers u/s 153A and the earlier assessment shall have to be reiterated. As rightly pointed out by controversy involved in the present case stands concluded by the decision of this court in the case of CIT-1 v. Jayaben Ratilal Sorathia 2013 (7) TMI 850 - GUJARAT HIGH COURT wherein it has been held that while it cannot be disputed that considering section 153A AO can reopen and/or assess the return with respect to six preceding years; however there must be some incriminating material available with the AO with respect to the sale transactions in the particular assessment year. - Decided in favour of the assessee

Summary

Issues:
Challenge to judgment of Income Tax Appellate Tribunal regarding depreciation and abatement of assessment proceedings under section 153A of the Income Tax Act, 1961.

Analysis:
1. The Appellant, the Department, challenged the judgment of the Income Tax Appellate Tribunal regarding the allowance of depreciation on the opening WDV as claimed by the assessee and the abatement of assessment proceedings under section 153A of the Income Tax Act, 1961. The substantial questions of law framed by the Court for consideration were whether the Tribunal was correct in upholding the order of CIT(A) to allow depreciation on the opening WDV and whether the assessment proceedings would abate under section 153A.

2. The respondent-assessee argued that the issues raised were governed by a previous decision of the Court in the case of Pr. Commissioner of Income Tax-4 vs. Saumya Construction Pvt. Ltd. The Court had emphasized the importance of incriminating material found during a search or requisition for making additions or disallowances under section 153A. It was noted that if no incriminating material was found during the search, additions or disallowances could not be made for that assessment year, and the earlier assessment had to be reiterated. The Court also referred to a previous decision regarding the necessity of incriminating material for reopening assessments.

3. The Revenue's counsel failed to identify any distinguishing feature in the judgment that would justify a different view. The Court, considering the precedent set by the previous decision and the facts of the case, concluded that the issues raised in the Appeals were indeed governed by the earlier judgment. Consequently, the Court ruled in favor of the assessee and against the Department, disposing of the Appeals accordingly.

In summary, the Court upheld the importance of incriminating material found during a search or requisition for making additions or disallowances under section 153A of the Income Tax Act, 1961. The judgment emphasized that if no such material was found, no additions or disallowances could be made for that assessment year, and the earlier assessment had to be reiterated. The decision was based on established legal principles and previous judgments of the Court, leading to a ruling in favor of the assessee and against the Department.