2017 (5) TMI 1047 - AT - Income Tax

Deemed dividend addition u/s. 2(22)(e) - assessment u/s 153A - Held that - The additions made by the AO are beyond the scope of section 153A of the Income Tax Act, 1961, because no incriminating material or evidence had been found during the course of search so as to doubt the transactions. It was noticed that as on the date of search i.e. 09.9.2010, no assessment proceedings were pending for the year under consideration and the AO was not justified in disturbing the concluded assessment without there being any incriminating material being found in search. AO has not referred to any seized material or other material for the year under consideration having being found during the course of search in the case of assessee, leave alone the question of any incriminating material for the year under appeal. Therefore, in our considered opinion, the action of the AO is based upon conjectures and surmises and hence, the additions made is not sustainable in the eyes of law. See CIT vs. Kabul Chawla (2015 (9) TMI 80 - DELHI HIGH COURT ) - Decided in favour of assessee.

Summary

Issues:
1. Validity of notice u/s 153A and assessment order
2. Addition of deemed dividend u/s 2(22)(e) and benefit/perquisite u/s 2(24)(iv)
3. Legal issues raised in Assessee's Cross Objection

Issue 1: Validity of notice u/s 153A and assessment order

The case involved an appeal by the Revenue and a Cross Objection by the Assessee against the Order of the Ld. CIT(A) relevant to the assessment year 2008-09. The Assessee contended that the notice u/s 153A was illegal and without jurisdiction, leading to an unsustainable assessment order. The Assessee argued that the additions made by the AO were not based on incriminating material found during the search operation, rendering them beyond the scope of jurisdiction u/s 153A. The Hon'ble Delhi High Court's decision in Commissioner of Income Tax vs. Kabul Chawla was cited, emphasizing that additions without incriminating material are not sustainable. The Tribunal found that the AO's actions were based on conjectures and surmises, lacking a legal basis, and quashed the assessment order in favor of the Assessee.

Issue 2: Addition of deemed dividend u/s 2(22)(e) and benefit/perquisite u/s 2(24)(iv)

The Revenue's Appeal challenged the deletion of additions made by the AO on account of deemed dividend u/s 2(22)(e) and benefit/perquisite u/s 2(24)(iv). The Assessee's Cross Objection argued that these additions were erroneous and beyond the scope of section 153A. The Tribunal, after considering the arguments and legal precedents, found that the additions were not supported by incriminating material and were therefore unsustainable. Consequently, the Tribunal allowed the Assessee's Cross Objection and dismissed the Revenue's Appeal.

Issue 3: Legal issues raised in Assessee's Cross Objection

The Assessee's Cross Objection raised various legal issues, including the legality of the notice u/s 153A, the application of provisions of section 2(22)(e) and 2(24)(iv) of the Income Tax Act, and the scope of section 153A. The Assessee argued that the additions made by the AO were not based on relevant material found during the search, rendering them legally untenable. Citing the decision of the Hon'ble Delhi High Court, the Tribunal ruled in favor of the Assessee, quashing the assessment order and allowing the Cross Objection. The Tribunal emphasized the importance of incriminating material in making additions under section 153A, ensuring assessments are legally sound.

In conclusion, the Tribunal's judgment in this case focused on the legality of the notice u/s 153A, the validity of the assessment order, and the correctness of additions made by the AO. The Tribunal, following legal precedents and considering the absence of incriminating material, ruled in favor of the Assessee, quashing the assessment order and dismissing the Revenue's Appeal.