2020 (2) TMI 86 - AT - Income Tax

Validity of assessment u/s 153A - lack of jurisdiction invoked by the AO under section 153A - HELD THAT - AO for Assessment Years 1998- 99, 1999-2000 2001-02 had issued notice dated 7.3.2006 under section 153A read with section 153C of the Act. The initiation of the proceedings thus are under section 153C of the Act i.e. in respect of person other than the person searched, which is not the case. The assessee is the person searched and requirement of law is to issue the notice u/s 153A. The copy of the aforesaid notice have been filed on record and have been perused by us. Though in the assessment order, the AO mentions that the notice had been issued under section 153A of the Act on 7.3.2006, but infact the notice which is issued on 7.3.2006 was the notice under section 153A read with section 153C of the Act. The said notices were invalid and the consequent assessment framed under section 153A of the Act suffers from infirmity, because of lack of jurisdiction invoked by the AO under section 153A of the Act. Consequently, the assessment orders framed in the case are bad in law and we hold so. We thus cancel the assessment orders passed in the case against the assessee being bad and invalid in law. The ground of appeal no. 1 stands thus allowed in favour of the assessee. Addition u/s 68 - unexplained cash credit - HELD THAT - Once the transaction had been completed in assessment year 2002-03, it is not discernible how the cash component if any, was to be taxed in the hands of the assessee in assessment year 2004- 05. Without going into the merits of the notings of the seized documents, we find no merit in the aforesaid addition made in the hands of the assessee with regard to the cash component of a sale transaction which was completed in assessment year 2002-03, where cash component was added to the income of the assessee in assessment year 2004-05. No merit in the protective addition made in the hands of the assessee on account of cash components relating to the resident and non-resident brothers/sisters of assessee under section 160 and 163 of the Act. In any case, the AO had failed to give separate notice under section 163(2) of the Act and in the absence on same, no addition could be made in the hands of the assessee.Where the assessee was not maintaining any books of accounts, no addition was maintainable under section 68 of the Act. Accordingly, we direct the AO to delete the addition made on account of cash component and on account of cash component relating to the brothers / sisters. In any case, second addition of made on protective basis in the hands of assessee and corresponding substantive addition has not been made for the instant assessment years in the hands of any person. On this ground also there is no merit in the aforesaid addition. The grounds of appeal raised by the assessee are thus allowed.

Summary

Issues:
1. Jurisdictional issue regarding notice under section 153A of the Act.
2. Addition of unexplained cash credit under section 68 of the Act.
3. Protective basis addition under section 160 and 163 of the Act.

Jurisdictional Issue Regarding Notice under Section 153A of the Act:
The appeals were against orders of the CIT(A) for assessment years 1998-99, 1999-2000, 2001-02, and 2004-05 under section 153A of the Act. The main issue was the validity of the notice issued under section 153A. The AO initiated proceedings under section 153A read with section 153C, instead of solely under section 153A, which was incorrect as the assessee was the person searched. The notice issued was not in accordance with the law, leading to the assessment orders being deemed invalid. The Tribunal held that the assessment orders were bad in law and canceled them, allowing the appeal in favor of the assessee.

Addition of Unexplained Cash Credit under Section 68 of the Act:
In the appeal for the assessment year 2004-05, the AO made additions under section 68 for unexplained cash credits. The entries were found on a seized document related to the sale of a property. The Tribunal noted that the property was sold in assessment year 2002-03, and the cash component should have been taxed in that year. As no cash was found during the search, and with no books of accounts maintained, the addition under section 68 was deemed unwarranted. The Tribunal directed the AO to delete the addition of cash components, as there was no merit in the additions made.

Protective Basis Addition under Section 160 and 163 of the Act:
The protective basis addition was made in the hands of the assessee on account of cash components belonging to brothers/sisters under sections 160 and 163. However, no substantive addition was made in the hands of those individuals for the relevant assessment years. The Tribunal held that without a separate notice under section 163(2) and in the absence of books of accounts, no addition could be justified. Therefore, the Tribunal directed the AO to delete the protective basis addition, as there was no merit in making such additions. All the appeals of the assessee were allowed by the Tribunal.

This summary provides a detailed analysis of the legal judgment, covering the jurisdictional issue, addition of unexplained cash credit, and protective basis addition comprehensively.