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2019 (6) TMI 294 - AT - Income TaxApplication under Rule 27 of the ITAT Rules, 1963 - additional grounds - HELD THAT - As regards Rule 27 application filed by the assessee, Rule 27 clearly set out that the respondent may support the order appealed against on any of the grounds decided against him . The order appealed against can be challenged by the assessee only qua the aspects of the issue decided against him in deciding such overall issue against the assessee, which was contested in the appeal. Thus, Application filed under Rule 27 is admitted. Assessment u/s 153A - addition u/s 68 - HELD THAT - Assessing Officer has passed the order without giving any nexus or relevance with the so called incriminating material. On the contrary there is no incriminating material available at all. The case laws submitted by the Ld. DR will also not hold ground in department s case as the very basis of the Assessment Order that of incriminating material and the nexus/ relevance is absent in the Assessment Order. - Decided in favour of assessee.
Issues Involved:
1. Deletion of addition under Section 41(1)/68 of the Income Tax Act. 2. Restoration of the issue of addition under Section 68 to the Assessing Officer. 3. Validity of proceedings under Section 153A in the absence of incriminating material. Issue-wise Detailed Analysis: 1. Deletion of Addition under Section 41(1)/68: The Revenue challenged the deletion of additions made by the Assessing Officer (AO) under Sections 41(1) and 68 of the Income Tax Act for Assessment Years (AY) 2008-09 and 2009-10. The AO had made additions of ?1,03,73,611/- for AY 2008-09 and ?1,12,27,860/- for AY 2009-10, claiming that the liabilities of M/s Dashmesh Impex and M/s Abchal Impex were paid by M/s Silver Rock Trading LLC, and the assessee could not produce documentary evidence to support this claim. The CIT(A) deleted these additions, stating that the liabilities were taken over by the assessee through journal entries and no benefit was derived from such liabilities, nor did they cease to exist. The CIT(A) also noted that the provisions of Section 2(22)(e) do not apply as M/s Silver Rock Trading LLC is a Dubai-based company. The Tribunal upheld the CIT(A)'s decision, stating that the liabilities were neither the assessee's trading liability as an individual nor were the business concerns taken over by the assessee. Thus, the conditions laid down in Section 41 were not fulfilled, and the amount could not be taxed under Section 68 either. 2. Restoration of the Issue of Addition under Section 68: The CIT(A) had restored the issue of addition of ?7,72,665/- under Section 68 to the file of the AO. The Tribunal noted that no order had been passed by the AO on this issue till now. The Tribunal upheld the CIT(A)'s decision to restore the matter back to the AO, considering the facts and judicial precedents. 3. Validity of Proceedings under Section 153A: The assessee filed an application under Rule 27, challenging the validity of proceedings under Section 153A, arguing that no incriminating material was found during the search. The Tribunal admitted the application and noted that the assessments for AY 2008-09 and 2009-10 were already completed. The Tribunal relied on the judgment of the Hon’ble Delhi High Court in the case of CIT v. Kabul Chawla [2016] 380 ITR 573, which held that in the absence of any incriminating material, completed assessments could not be interfered with by the AO while making an assessment under Section 153A. The Tribunal observed that the AO had made additions based on observations during the assessment proceedings and not on the basis of any incriminating material found during the search. Therefore, the Tribunal allowed the additional grounds of the assessee's application under Rule 27 and quashed the orders passed by the AO for AY 2008-09 and 2009-10. Conclusion: The Tribunal dismissed the appeals of the Revenue, upholding the CIT(A)'s decision to delete the additions made by the AO under Sections 41(1) and 68. The Tribunal also upheld the validity of the proceedings under Section 153A, stating that no incriminating material was found during the search, and the additions made by the AO were not based on any such material. The Tribunal's decision was pronounced in the Open Court on 3rd June 2019.
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