2017 (12) TMI 127 - AT - Income Tax

Protective additions / assessment - profits of all the overseas companies as mentioned in the assessment order are to be taxed in India on the ground that these overseas company were treating as Resident in India - Held that - It is not out of place to mention that when addition was already made in the hands of the overseas companies on substantive basis treating them as residents in India, there is no justification for the Assessing Officer to make such an addition in the hands of a share holder on protective basis, when no benefit was derived by her from these companies to protect the interest of revenue. It is noted that without assessing the income of the assessee for the year under consideration, the Assessing Officer simply transferred the addition made in case of the overseas companies to the assessment order of Sh. Ajay Kalsi on the ground that he exercised control and management of the affairs of the overseas companies as laid down in section 6(3) of the I.T. Act 1961 without brining on record a concrete and substantial evidence to prove his role. Based on the assessment of Sh. Ajay Kalsi, by virtue of being a 50% share holder in Multi Asset Holdings Ltd., the Assessing Officer made an addition of similar amount in case of the assessee meaning thereby that the Assessing Officer did not assess the income of the assessee based on the details filed in her return u/s 153A, but assessed the income of the overseas companies in her hands without any basis - Decided against revenue

Summary

Issues involved:
Appeal against assessment orders for multiple years, deletion of protective additions made by Assessing Officer, jurisdiction of assessment proceedings, taxability of overseas companies, substantial evidence in seized material, application of section 9(1) of the Income Tax Act, 1961.

Analysis:

1. Appeal against assessment orders for multiple years:
The Revenue filed appeals and the Assessee filed cross objections against orders by the Ld. Commissioner of Income Tax (Appeals) for various assessment years. The Appeals and Cross Objections were heard together due to common issues. The primary issue in the Appeals was the deletion of protective additions made by the Assessing Officer.

2. Deletion of protective additions made by Assessing Officer:
The Assessing Officer made protective additions to the income of the Assessee based on the profits of overseas companies treated as residents in India under section 6(3) of the Income Tax Act, 1961. However, the Ld. CIT(A) deleted these additions, leading to the Revenue's appeal. The Tribunal noted that the Assessing Officer failed to consider details filed by the Assessee and made assessments based on orders of overseas companies and her husband. The Tribunal found the additions unwarranted as they were already made in the hands of overseas companies and the Assessee derived no benefit from them.

3. Jurisdiction of assessment proceedings:
The Assessee raised objections regarding the jurisdiction of assessment proceedings and the service of notices. The Tribunal considered these objections and found that the assessment order passed by the Assessing Officer lacked jurisdiction in certain aspects, leading to the deletion of additions made beyond the scope of provisions.

4. Taxability of overseas companies and application of section 9(1):
The Revenue contended that the overseas companies, in which the Assessee was a shareholder, should be considered residents in India based on seized documents and statements. However, the Tribunal observed that the Assessee did not derive any benefit from these companies during the relevant assessment year, making taxability under Indian laws irrelevant. Additionally, the Tribunal highlighted that the Assessing Officer failed to provide concrete evidence to justify the additions in the Assessee's hands.

5. Substantial evidence in seized material:
The Revenue argued that substantial evidence, including seized material, emails, and shareholding patterns, indicated control and management of Indian and overseas companies by certain individuals. However, the Tribunal found that such evidence did not establish taxability in India for the Assessee, as she was merely a shareholder without deriving any benefit.

In conclusion, the Tribunal upheld the Ld. CIT(A)'s decision to delete the protective additions, dismissing the Revenue's appeal and the Assessee's cross objections. The consistent view taken across multiple assessment years led to the rejection of all appeals and cross objections, ensuring the protection of the Assessee's interests in the matter.