2022 (5) TMI 269 - AT - Income Tax

Assessment u/s 153A - Disallowance u/s 14A - HELD THAT - We observe that the Assessing Officer made the disallowance u/s 14A, which was already made in the original assessment, these additions were general additions which is not based on the material found during the search. It is fact on record that there is no incriminating material found during the search and Assessing Officer is allowed to make additions only on the material found during the search in the case of unabated assessments. This issue is already addressed by Ld CIT(A) and we do not find any reason to interfere with the findings of Ld CIT(A). Accordingly, the ground raised by the revenue is dismissed. Treating the expense on software renewal license as revenue expenditure instead of capital expenditure - HELD THAT - We observe that this addition was also made by the Assessing Officer without there being any material found during the search, he made the similar additions made in the original assessment. Therefore, this ground raised by the revenue also dismissed. Addition u/s 69A - CIT(A) has granted relief on the ground that no payment was made to assessee - HELD THAT - Addition made by the AO is based on the survey conducted in the case of M/s Windsor Realty Pvt. Ltd and not based on any material found during the search conducted in the premises of the assessee. The addition made in the case of Windsor Realty Pvt Ltd was deleted subsequently on further appeal by the assessee and revenue respectfully by the Ld CIT(A) and ITAT with the finding that there was no such payments were ever made in order to invoke the provisions of section 69A. Therefore, the basis of addition made itself was deleted by the appellate authorities in the case of Windsor Realty Pvt Ltd, the same addition cannot be made in the case of the assessee without their being any corroborative evidence and also addition is not made based on the incriminating material found during search. Therefore, this addition made in the assessment passed u/s 153A also deserves to be deleted. Accordingly, grounds raised by the revenue are dismissed. Set off of brought forward long term capital loss on sale of listed equity shares against long term capital gain of current year - HELD THAT - We observe that this issue also not coming out of the search proceedings but Assessing Officer made the similar additions made in the original assessment. This issue under consideration is under challenge by the department in the original proceedings before ITAT, which the respective bench will take the appropriate decision. The issue under consideration is whether the Assessing Officer made the addition in the unabated year based on the incriminating material which was found during search, can he merely repeat the additions made in the original assessment. This issue is also addressed by the CIT(A) in his order and we are inclined to accept the findings of Ld CIT(A) in this regard that Assessing Officer has no jurisdiction. Therefore, we dismiss the grounds raised by the revenue.

Issues Involved:

1. Disallowance under Section 14A of the Income Tax Act.
2. Treatment of software renewal license expenses as revenue or capital expenditure.
3. Addition under Section 69A for unexplained cash credits.
4. Set-off of Long Term Capital Gains against Long Term Capital Losses.

Detailed Analysis:

1. Disallowance under Section 14A:

The Revenue challenged the restriction of disallowance under Section 14A to exempt income earned. The Assessing Officer (AO) had disallowed ?40,05,040/- under Section 14A, which was partially relieved by the CIT(A), reducing it to ?24,39,765/- by excluding foreign investments since the dividend from these investments is taxable. The Tribunal upheld the CIT(A)'s decision, noting that the disallowance was not based on any incriminating material found during the search, and thus, the AO's additions were not justified.

2. Treatment of Software Renewal License Expenses:

The AO treated the software renewal license expenses of ?5,00,000/- as capital expenditure, which was also made in the original assessment. The CIT(A) deleted this disallowance, treating it as revenue expenditure. The Tribunal agreed with the CIT(A), noting that the expenses were for the renewal and upgradation of existing software, which did not result in the acquisition of a new capital asset. The Tribunal also noted that no new evidence was found during the search to warrant a different treatment.

3. Addition under Section 69A for Unexplained Cash Credits:

The AO made an addition of ?9,50,00,000/- under Section 69A based on documents found during a survey of Windsor Realty Pvt. Ltd. The CIT(A) deleted this addition, noting that the alleged payments were not made, as confirmed by statements from Windsor Realty's directors. The Tribunal upheld the CIT(A)'s decision, emphasizing that the addition was not based on any incriminating material found during the search of the assessee's premises and that the primary addition in Windsor Realty's case had already been deleted by appellate authorities.

4. Set-off of Long Term Capital Gains against Long Term Capital Losses:

The AO disallowed the set-off of brought forward long-term capital loss on the sale of listed equity shares against the long-term capital gain of the current year, taxing ?2,80,48,696/- as long-term capital gain. The CIT(A) allowed the set-off, following precedents set by the Tribunal in similar cases. The Tribunal upheld the CIT(A)'s decision, noting that the issue was not based on any incriminating material found during the search and that the AO had merely repeated the additions made in the original assessment.

Conclusion:

The Tribunal dismissed the appeal filed by the Revenue, upholding the CIT(A)'s decisions on all grounds. The Tribunal emphasized that additions made by the AO were not based on any incriminating material found during the search and were merely repetitions of the original assessment. The order was pronounced in the open court on 07.04.2022.

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