2017 (7) TMI 37 - AT - Income Tax

Assessment u/s 153A - Held that - In the event of non-filing the return of income within the time provided in notice issued u/s. 153A, the assessee is liable for interest, penalty and prosecution accordingly. In view of this, it is quite clear that the assessee was allowed to file return of income, even beyond the time provided in the notice and such return is valid return of income for all the purposes under the Income Tax Act, including completion of the assessment, but with consequences of payment of interest, penalty and facing prosecution proceedings. In view of this, the assessee s contention that the returns of income filed by him beyond the time limit provided u/s. 153A is invalid, is not correct as per law. For AY. 2008-09, which is not forming the part of block period, is the regular return filed u/s. 139 and therefore a revised return can be filed within one year from the end of the assessment year which ended on 31-07-2009. Since the return filed by assessee is a valid return, the revised computation filed after that date cannot be accepted. Since AO has not based the assessment directly on the seized material but on Receipts and Payments Statements and assessee also has furnished different statements at different points of time, in the interest of justice, we are of the opinion that the assessments pertaining to these three impugned assessment years are to be set aside, with a direction to AO to compute the incomes on basis of the incriminating material found and the returns if any filed earlier in any assessment year. AO is also directed to quantify the incomes either on the basis of the seized material or if entire seized material is considered in the Receipts and Payments Statement furnished by assessee, on the basis of such statements. Assessee is also directed to furnish the correct computation of incomes for the impugned assessment years before the AO. Needless to say that assessee should be given due opportunity. AO is also directed to examine the issues afresh and need not base his computation either on the returns of income filed in August, 2009 or on the basis of the revised computations filed subsequently. With the observations made above, we hereby set aside the orders of the AO and CIT(A) for the impugned three assessment years and restore the same to the file of the AO to examine the facts and determine afresh considering the law on the issues.

Issues Involved:
1. Validity of opening circulating capital as income for AY 2002-03.
2. Unexplained investments and cash deposits for AY 2004-05.
3. Non-payment of taxes on returned incomes for AYs 2006-07, 2007-08, and 2008-09.
4. Validity of revised computations filed by the assessee.
5. Additions based on statements recorded under Section 132(4) and subsequent retraction.
6. Consideration of incriminating material found during search and seizure.
7. Admissibility of appeals under Section 249(4) of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Validity of Opening Circulating Capital as Income for AY 2002-03:
The AO added ?75,94,804 as unexplained income, citing a lack of details on the opening circulating capital. The CIT(A) deleted this addition, stating that the opening balance cannot be considered income for the year unless there is material found during the search indicating manipulation. The Tribunal upheld this view, noting that the opening cash balance cannot be income of the year and confirming the CIT(A)'s order.

2. Unexplained Investments and Cash Deposits for AY 2004-05:
The AO added ?61,24,300 as unexplained investments and ?1,17,000 as unexplained cash deposits. The CIT(A) deleted these additions, considering them double or triple additions and noting that the investments were part of the cash flow statement. The Tribunal agreed, stating that the amounts cannot be considered unexplained unless there is incriminating material, and confirmed the CIT(A)'s order.

3. Non-payment of Taxes on Returned Incomes for AYs 2006-07, 2007-08, and 2008-09:
The AO noted that the assessee did not pay taxes on the returned incomes for these years. The CIT(A) did not adjudicate on the applicability of Section 249(4) but deleted the additions made by the AO. The Tribunal found that the CIT(A) failed to consider the revised computations and the issue of non-payment of taxes. The Tribunal set aside the assessments and directed the AO to re-examine the facts and determine the incomes afresh, considering the law on the issues.

4. Validity of Revised Computations Filed by the Assessee:
The AO did not consider the revised computations filed by the assessee. The CIT(A) also did not give a clear direction on this issue. The Tribunal noted the lack of analysis by the AO and CIT(A) on the revised computations and directed the AO to examine the correct computation of incomes for the impugned assessment years.

5. Additions Based on Statements Recorded Under Section 132(4) and Subsequent Retraction:
The AO made additions based on the statements recorded under Section 132(4), which the assessee later retracted. The CIT(A) deleted the additions, stating there was no incriminating material. The Tribunal noted that the retraction was self-serving and without documentary evidence. The Tribunal directed the AO to re-examine the facts and determine the incomes based on the incriminating material and the returns filed.

6. Consideration of Incriminating Material Found During Search and Seizure:
The CIT(A) deleted the additions, stating there was no incriminating material. The Tribunal disagreed, stating that the AO can consider material found during the search for making an assessment of undisclosed income. The Tribunal directed the AO to quantify the incomes based on the incriminating material found and the returns filed by the assessee.

7. Admissibility of Appeals Under Section 249(4) of the Income Tax Act:
The CIT(A) admitted the appeals without giving a clear finding on the applicability of Section 249(4). The Tribunal noted that the issue of non-payment of taxes on admitted income is connected with the validity of the returns filed and the revised computations. The Tribunal directed the AO to re-examine the facts and determine the incomes afresh, considering the law on the issues.

Conclusion:
The Tribunal dismissed the Revenue appeals for AYs 2002-03 and 2004-05 and allowed the appeals of both the assessee and Revenue for AYs 2006-07, 2007-08, and 2008-09 for statistical purposes. The assessments were set aside, and the AO was directed to re-examine the facts and determine the incomes afresh, considering the law on the issues.

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