2020 (2) TMI 1029 - AT - Income Tax

Assessment u/s 153C - assessee has not paid the taxes at the time of filing Return of Income and has not cured the defects identified u/s 139(9) - HELD THAT - AO has no alternative except to treat the Return of Income as invalid to commence the assessment proceedings u/s 153C and completed assessment u/s 153C r.w.s. 144. AO has acted on the invalid Return of Income for framing assessment u/s 153(C) we are of the opinion that the Right to appeal, cannot be curtailed on the ground of non-payment of admitted tax. We found the assessee in the appellate proceedings has accepted the fact of nonpayment of taxes and prayed for some time to pay taxes which shows that the assessee is acting under bona fide obligation to pay taxes on admitted income. We are of the substantive opinion that CIT(Appeals) erred in dismissing the assessee's appeal in limine in spite of assessee prayed for some time in appellate proceedings for the payment of taxes due. Accordingly we set aside the order of CIT(Appeals) and restore the entire disputed issue to the file of the CIT(Appeals) to adjudicate afresh and grant time for payment of taxes due on the returned income and subject to payment of taxes the appeal is admitted and adjudicated on the merits. Assessee should be provided adequate opportunity of hearing and shall co-operate in submitting the information for early disposal of the appeal and the grounds of appeal of the assessee are allowed for statistical purposes.

Summary

Issues Involved:
1. Validity of the search under Section 132 of the Income Tax Act.
2. Jurisdiction of assessment under Section 153C versus Section 153A.
3. Validity of assessment proceedings based on materials not found during the search.
4. Legality of additions to returned income based on regular books of account.
5. Justification of various disallowances and additions made by the Assessing Officer.
6. Dismissal of appeal due to non-payment of tax on returned income.

Detailed Analysis:

1. Validity of the Search under Section 132:
The appellant challenged the validity of the search conducted under Section 132 of the Act, arguing that the search was not valid as the appellant was not related to the party in respect of whom the search warrant was issued. The Commissioner of Income Tax (Appeals) did not adjudicate this ground.

2. Jurisdiction of Assessment under Section 153C vs. Section 153A:
The appellant contended that the entire assessment proceedings under Section 153C were without jurisdiction and should have been conducted under Section 153A since the search was conducted at the appellant's residence. The Commissioner of Income Tax (Appeals) did not adjudicate this ground either.

3. Validity of Assessment Proceedings Based on Materials Not Found During the Search:
The appellant argued that the assessment under Section 153C was vitiated as it was based on materials impounded during a survey under Section 133A at the appellant's office, not during the search at the residence. This ground was also not adjudicated by the Commissioner of Income Tax (Appeals).

4. Legality of Additions to Returned Income Based on Regular Books of Account:
The appellant claimed that the additions to the returned income were based on a re-examination of the regular books of account and not on any incriminating material found during the search. This ground was not adjudicated by the Commissioner of Income Tax (Appeals).

5. Justification of Various Disallowances and Additions:
The appellant contested various disallowances and additions, including fieldwork expenses, salary expenses, registration expenses, and travel expenses, among others. The Commissioner of Income Tax (Appeals) did not adjudicate these grounds.

6. Dismissal of Appeal Due to Non-payment of Tax on Returned Income:
The primary issue was the dismissal of the appeal by the Commissioner of Income Tax (Appeals) on the grounds that the appellant had not paid the tax on the returned income, as required under Section 249(4)(a) of the Act. The appellant argued that paying taxes on an invalid return does not arise and relied on judicial decisions to support this claim. The Tribunal noted that the appellant had filed the return but had not cured the defects identified under Section 139(9) and had not paid the self-assessment tax. The Tribunal found that the Commissioner of Income Tax (Appeals) erred in dismissing the appeal in limine and held that the right to appeal cannot be curtailed on the ground of non-payment of admitted tax.

Conclusion:
The Tribunal set aside the order of the Commissioner of Income Tax (Appeals) and restored the matter for fresh adjudication, granting the appellant time to pay the taxes due on the returned income. The Tribunal directed that the appeal be admitted and adjudicated on merits, subject to the payment of taxes. The appellant was to be provided with an adequate opportunity of hearing and was expected to cooperate in submitting the necessary information for the early disposal of the appeal. The appeals for the subsequent assessment years were also restored to the file of the Commissioner of Income Tax (Appeals) with similar directions. The appeals were allowed for statistical purposes.