2021 (12) TMI 1178 - AT - Income Tax

Assessment u/s 153A - Addition u/s 68 - Unsecured cash credits - Assessment against concluded assessments - HELD THAT - As concluded assessments cannot be interfered with unless there is incriminating material discovered from the seized documents as a result of search and further, no additions can be made where the assessments are framed u/s.153A for unabated year i.e. where no assessment is pending. The seized documents must at least clearly point out that there is some undisclosed income, which here in this case is completely absent, as is discussed above, and thus, are not in the nature of incriminating material so as to warrant any addition. Submissions made by ld. CIT-DR, regarding seized documents having bearing on total income becoming incriminating documents automatically, we are not impressed with the arguments of Ld CIT DR, as the same goes contrary to the judgments of jurisdictional high court as cited above. And further, with reference to the order of assessment or even going by the order of learned CIT (A), the learned CIT DR was not able to point out any single document which was not disclosed by assessee prior to search proceedings and neither the judgments so relied by counsel of assessee were rebutted or contradicted by learned CIT DR. We have no hesitation to hold that firstly, none of the documents mentioned in the order of assessment more specifically the copy of flowchart, email and share certificates are incriminating in nature out of which any adverse inference can be drawn as to any undisclosed income, relating to assessee-company have been unearthed during the course of search and; since, the impugned assessment year from 2008-09 to 2011-12 were not pending, as the assessment stood completed prior to the date of search, therefore, we hold that without any incriminating material, concluded assessments cannot be tinkered with and no addition can be made without there being any incriminating material for the impugned assessment year. Accordingly, we hold that the additions made by the Assessing Officer are beyond the scope of Section 153A. - Decided in favour of assessee. Addition u/s 68 - HELD THAT - AO in the order of assessment has relied on report and observations of the Investigation wing, which otherwise does not implicate any of the assessees, whereas, no concrete enquiry or investigation had been carried out by the assessing officer in the order of assessment to dislodge the explanation or rebut the documentary evidence placed and recorded by AO - Thus, when no appropriate investigation has been carried out by the AO and as such the burden which lay upon the learned A.O. has not been discharged, the addition so made is unsustainable and deserves to be deleted. We have also noticed that that the Revenue has failed to controvert the findings so recorded by learned CIT (A) which is based on documentary evidences as have been discussed above, wherein, substantial relief on merits was provided to assessee by CIT (A). Thus, documentary evidences on record have not been rebutted by the A.O. through any evidence or material on record. No independent enquiry has been made against these documentary evidences except issuing notices under section 133(6), which were also replied by the subscribing companies. Therefore, such documentary evidences clearly support the explanation of assessee that investments made in the assessee companies are genuine. The assessee apart from submitting the various documents related to receipt of share capital and share premium as listed hereinabove, also furnished the workings for share valuations using discounted cash flow method and furnished explanation for issuing shares at a premium taking into account the future growth in the business of the assessee and also considering the future prospects of the assessee business coupled with the fact entire group had a turnover of over ₹ 2500 crores in financial year 2014-15. - Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of additions made under Section 153A of the Income Tax Act.
2. Whether the additions were based on incriminating material found during the search.
3. Merits of the additions made under Section 68 of the Income Tax Act on account of share capital and share premium.

Issue-wise Detailed Analysis:

1. Validity of Additions Made Under Section 153A:
The core legal issue discussed was whether the additions made in the assessments under Section 153A were based on incriminating documents. The Tribunal noted that the assessments for the years in question were not pending on the date of the search, and hence, any additions could only be made based on incriminating material found during the search. The Tribunal found that the documents seized (share certificates, a document from M/s Jay Ushin Ltd., and an email) were not incriminating in nature. The Tribunal relied on several judgments, including CIT vs. Kabul Chawla, which established that completed assessments can only be disturbed based on incriminating material found during the search. Consequently, the Tribunal held that the additions made by the Assessing Officer (AO) were beyond the scope of Section 153A and quashed the assessments.

2. Whether the Additions Were Based on Incriminating Material:
The Tribunal examined the documents seized during the search to determine if they were incriminating. It found that:
- The share certificates merely recorded details of shares issued and were part of the statutory records, not incriminating.
- The document from M/s Jay Ushin Ltd. related to an unsecured loan and did not mention share capital, thus not incriminating.
- The email discussed future restructuring plans and did not contain any financial transactions or references to accommodation entries, thus not incriminating.
The Tribunal concluded that none of the seized documents were incriminating and, therefore, could not justify the additions made by the AO.

3. Merits of the Additions Made Under Section 68:
On the merits, the Tribunal considered whether the share capital and share premium received by the assessee were genuine. The AO had made additions under Section 68, alleging that the share subscribers were non-existent and the transactions were accommodation entries. However, the Tribunal found that:
- The assessee had provided comprehensive documentary evidence, including PAN, bank statements, audited accounts, and confirmations from the subscriber companies.
- The net worth of the subscriber companies was sufficient to justify the investments made.
- The AO did not conduct any independent inquiry or issue summons under Section 131 to verify the genuineness of the transactions.
- The statement of Rajesh Agarwal, an alleged entry operator, was not subjected to cross-examination, violating the principles of natural justice.
- The Tribunal relied on various judgments, including Andaman Timber Industries vs. CCE, which emphasized the need for cross-examination when statements are used as evidence.
The Tribunal concluded that the AO had failed to dislodge the evidence provided by the assessee and that the additions under Section 68 were not justified.

Conclusion:
The Tribunal allowed the applications under Rule 27 filed by the assessee, quashed the assessments made under Section 153A for lack of jurisdiction, and dismissed the Revenue's appeals on merits. The Tribunal emphasized that the additions were not based on incriminating material and that the AO had not conducted adequate inquiries to justify the additions under Section 68.