2018 (10) TMI 605 - AT - Income Tax

Assessment u/s 153A - absence of incriminating material found during search - special audit u/s 142(2A) - extension of time limit for submission of Audit Report U/s 142(2A) - Period of limitation - Held that - nowhere it is the case of Revenue that the aforesaid addition is based on any incriminating material found in the case of the Assessee either for this year or for any other Assessment Year covered by Section 153A of I.T. Act. - CIT(A) was not justified in confirming the aforesaid addition of ₹ 10,10,476/- made by the Assessing Officer. Since the addition is already deleted by us, the other issues raised by the Assessee in the grounds of appeal are academic in nature and need not be adjudicated - Decided in favor of assessee.

Summary

Issues Involved:
1. Validity of jurisdiction under Section 153A of the Income Tax Act.
2. Extension of time for submission of the audit report under Section 142(2A).
3. Addition of ?10,10,476/- under Section 37(1) for expenditure alleged to be penal in nature.
4. Whether the assessment order is barred by limitation.
5. Applicability of the ratio in the case of Kabul Chawla vs. CIT.

Detailed Analysis:

1. Validity of Jurisdiction under Section 153A of the Income Tax Act:
The Assessee contended that since the original assessment was completed under Section 143(1) and the statutory time limit for issuing notice under Section 143(2) had expired, no assessment was pending at the time of search. The Ld. CIT(A) upheld the assumption of jurisdiction by the Assessing Officer under Section 153A, stating that the seizure of incriminating material is not a condition for invoking Section 153A. The Tribunal, however, found that the case is covered by the order of the Jurisdictional Delhi High Court in Kabul Chawla vs. CIT, which states that completed assessments can be interfered with only based on incriminating material found during the search.

2. Extension of Time for Submission of the Audit Report under Section 142(2A):
The Assessee argued that the extension of time for the audit report was not valid as it was requested by the auditor and not by the Assessee. The Ld. CIT(A) dismissed this contention, stating that the Assessing Officer has the authority to extend the time for submission of the audit report based on the auditor's request if it is reasonable and justified. The Tribunal upheld this view, noting that the Assessing Officer has the inherent authority to extend the time after consultation with the auditor.

3. Addition of ?10,10,476/- under Section 37(1) for Expenditure Alleged to be Penal in Nature:
The Assessee contested the addition of ?10,10,476/- on the grounds that it was not based on any incriminating material found during the search. The Ld. CIT(A) confirmed this disallowance. The Tribunal found that the addition was not based on any incriminating material and relied on the decision in Kabul Chawla vs. CIT, which states that in the absence of incriminating material, no fresh addition can be made in respect of completed assessments. Consequently, the Tribunal deleted the addition of ?10,10,476/-.

4. Whether the Assessment Order is Barred by Limitation:
The Assessee argued that the assessment order was barred by limitation due to the delayed submission of the audit report. The Ld. CIT(A) rejected this argument, stating that the extension of time for the audit report was valid and within the powers of the Assessing Officer. The Tribunal did not specifically address this issue as the main addition was deleted, rendering the argument academic.

5. Applicability of the Ratio in the Case of Kabul Chawla vs. CIT:
The Tribunal extensively discussed the applicability of the ratio in Kabul Chawla vs. CIT, which holds that no addition can be made in respect of completed assessments unless based on incriminating material found during the search. The Tribunal found that the addition of ?10,10,476/- was not based on any incriminating material and thus deleted the addition, following the precedent set by Kabul Chawla.

Conclusion:
The Tribunal concluded that the addition of ?10,10,476/- was not justified as it was not based on any incriminating material found during the search. Consequently, the addition was deleted, and the appeal of the Assessee was partly allowed for statistical purposes. The other issues raised by the Assessee were deemed academic and not adjudicated.