2017 (3) TMI 317 - AT - Income Tax

Additions made u/s 153A - Held that - AO has completed the assessment and made the addition in dispute without any incriminating material found during the search and seizure operation and the addition in this case was purely based on the material already available on record. Hence, the addition in the case is deleted. See Commissioner of Income Tax (Central) -III Versus Kabul Chawla 2015 (9) TMI 80 - DELHI HIGH COURT - Decided in favour of assessee

Summary

Issues:
1. Validity of order passed by the AO u/s. 153A
2. Partial allowance of appeal by CIT(A)
3. Disallowance u/s. 40A(3) for cash payments
4. Treatment of land as work in progress or investment
5. Additional ground raised during the appeal

Issue 1: Validity of order passed by the AO u/s. 153A
The appeal challenged the validity of the order passed by the AO u/s. 153A on 3.7.2012. The Tribunal found that no incriminating material was found during the search operation on 23.3.2011, and the AO had no justification to disturb the concluded assessment without any such material. Referring to the decision of the Hon'ble Delhi High Court in Commissioner of Income Tax vs. Kabul Chawla, the Tribunal held that additions made without incriminating material are not sustainable under the law. The Tribunal emphasized that assessments under 153A must be based on seized material and not arbitrary assumptions.

Issue 2: Partial allowance of appeal by CIT(A)
The CIT(A) had partly allowed the appeal of the assessee against the assessment order. However, the Tribunal, following the legal position established by the Hon'ble Jurisdictional High Court, noted that the AO's actions were based on conjectures and surmises as no incriminating material was found during the search. Therefore, the Tribunal allowed the appeal of the assessee, highlighting that the additions made without any incriminating material are not sustainable in the eyes of the law.

Issue 3: Disallowance u/s. 40A(3) for cash payments
The AO had made an addition of &8377; 7,58,360/- u/s. 40A(3) of the I.T. Act, which the CIT(A) partly upheld. However, the Tribunal, in line with previous decisions and legal principles, found that the addition was not based on any incriminating material found during the search operation. Therefore, the Tribunal held that the addition was not sustainable in law and deleted it, allowing the appeal of the assessee.

Issue 4: Treatment of land as work in progress or investment
The CIT(A) had made observations regarding the treatment of land as work in progress or investment, which the Tribunal considered in conjunction with the overall assessment. The Tribunal emphasized that the AO's actions were not supported by any incriminating material and were purely based on existing records. Consequently, the Tribunal allowed the appeal of the assessee, deleting the addition made by the AO.

Issue 5: Additional ground raised during the appeal
The appellant requested to raise any additional ground during the appeal. The Tribunal, after considering all relevant records and legal precedents, allowed the appeal of the assessee, emphasizing that the additions made by the AO were not sustainable as they lacked incriminating material and were based on conjectures. The Tribunal's decision was in line with the legal position established by the Hon'ble Delhi High Court and previous judgments, leading to the allowance of the appeal.