2018 (2) TMI 1273 - AT - Income Tax

Validity of Assessment u/s 143(3) - assessment for Assessment year 2009-10 has been framed by an order dated 31.12.2010 u/s 143(3) instead of section 153C - Held that - since the date of satisfaction note is 4.10.2010, the year of search would be Assessment year 2011-12 and as such, based on the said note, six assessment years for framing assessment u/s 153C of the Act would be assessment year 2005-06 to assessment year 2010-11. In the instant case, assessment for Assessment year 2009-10 has been framed by an order dated 31.12.2010 u/s 143(3) of the Act; instead of section 153C of the Act. Accordingly, the Assessing Officer was incorrect in assuming jurisdiction u/s 143(3) of the Act for Assessment year 2009-10. Assessing Officer ought to have framed the assessment for assessment year 2011-12 under section 143(3) of the Act and not for the instant assessment year i.e. assessment year 2009-10. It is thus held that the Assessing Officer was incorrect in assuming jurisdiction u/s 143(3) of the Act for assessment year 2009-10 and, therefore, the present assessment is not valid. The additional ground raised is therefore, allowed in favour of assessee.

Summary

Issues involved:
1. Disallowance of administrative and other expenses.
2. Disallowance of bad debts written off in the P/L account.
3. Non-recovery of advances given for acquiring Land.
4. Jurisdiction of assessment order under section 143(3) of the Income Tax Act.

1. Disallowance of administrative and other expenses:
The appellant contested the disallowance of administrative and other expenses amounting to Rs. 55,03,963 by the CIT(A). The appellant argued that the administrative expenses were essential for the business and should have been allowed even though direct expenses of the Agra Project were capitalized. The CIT(A) held that since there was no revenue recognition in relation to the Agra Project, the administrative expenses were not allowable. The Tribunal found that the CIT(A) erred in not appreciating the distinction between setting up a business and commencing business. The Tribunal allowed the appeal on this ground.

2. Disallowance of bad debts written off in the P/L account:
The appellant challenged the disallowance of Rs. 31 lakh made by the AO under section 36 regarding bad debts written off in the profit and loss account. The CIT(A) disallowed the amount as no income/revenue was shown in the preceding year. The appellant argued that revenue from business operations was declared during the year. The Tribunal found that the CIT(A) erred in confirming the disallowance and allowed the appeal on this ground.

3. Non-recovery of advances given for acquiring Land:
The appellant contended that non-recovery of advances given for acquiring Land should be treated as a business loss under section 37 of the Income Tax Act. The CIT(A) upheld the disallowance, stating that it was not a business loss. The Tribunal noted the unique nature of real estate business where advances are given through brokers and allowed the appeal on this ground.

4. Jurisdiction of assessment order under section 143(3) of the Income Tax Act:
An additional ground was raised challenging the jurisdiction of the assessment order under section 143(3) for the assessment year 2009-10. The appellant argued that the order should have been framed under section 153C of the Act. The Tribunal admitted the additional ground for consideration based on legal principles outlined by the Supreme Court. The Tribunal found that the assessment order for the year in question was without jurisdiction and quashed it, following precedents and judgments from the High Court.

In conclusion, the Tribunal allowed the appeal, quashed the assessment order for being void, and did not adjudicate on the remaining grounds as they became academic. The judgment highlighted the importance of correctly assessing tax liability and adhering to the legal provisions governing assessment procedures.