2023 (3) TMI 506 - AT - Income Tax

Assessment u/s 153C - incriminating material found during the search or not? - HELD THAT - The findings of the learned CIT(A) that no incriminating material relating to the assessee was requisitioned in the present case, we find, is the admitted case of the Assessing Officer - it is not disputed that the assessment for the impugned year was unabated. The proposition of law laid down by the Hon ble jurisdictional High Court in Saumya Construction ( 2016 (7) TMI 911 - GUJARAT HIGH COURT that in unabated assessments, in the absence of any incriminating material, no addition under Section 153A/C could be made is also not dislodged before us. Therefore, without prejudice to the grounds raised by the Revenue, we find that the Ld. CIT(A) has rightly held in the facts and circumstances of the case, the assessment order having been passed invalidly and without jurisdiction. Therefore, the order of the Ld.CIT(A) setting aside the impugned assessment is upheld and the grounds of appeal Nos. 1 to 4 raised by the Revenue are dismissed.

Summary

Issues Involved:
1. Validity of assessment framed under Section 153C in the absence of incriminating material.
2. Deletion of additions made on merits including disallowance under Section 80IC, unexplained cash deposits, and unsecured loans.

Issue-Wise Detailed Analysis:

1. Validity of Assessment under Section 153C:
The primary issue in this appeal was whether the assessment framed under Section 153C of the Income-tax Act, 1961, was valid in the absence of incriminating material. The Revenue challenged the CIT(A)'s decision, which relied on the jurisdictional High Court's ruling in Saumya Construction Pvt. Ltd. that no addition under Section 153C can be made without incriminating material. The Tribunal upheld the CIT(A)'s decision, noting that the Revenue failed to present any contrary decision from higher judicial authorities. The Tribunal confirmed that the assessment for the impugned year was unabated and no incriminating material was found, thus rendering the assessment invalid.

2. Deletion of Additions on Merits:
Since the Tribunal upheld the invalidity of the assessment, the grounds raised on merits became academic. However, the Tribunal reviewed the findings of the CIT(A) on the merits of the additions:

- Surplus Profit Over Sales: The CIT(A) found no basis for the addition as the Assessing Officer's remand report did not dispute the assessee's explanations.

- Customer Advance and Bogus Sundry Creditors: The CIT(A) deleted the addition as the Assessing Officer did not provide any adverse comments on the assessee's submissions during the remand proceedings.

- Unexplained Cash/Cheque Deposit: The CIT(A) noted that the Assessing Officer admitted to making the addition based on a wrong slip and that the correct slip showed the amount was reflected in the assessee's books.

- Cash in Hand: The CIT(A) found that the cash book requisitioned was not incriminating, as confirmed by the Assessing Officer's remand report.

- Unexplained Loan in Purchase of Land: The CIT(A) deleted the addition of Rs.2.40 crores, noting that it was unrelated to the documents requisitioned during the search and was instead based on the assessee's submissions, which were not disputed by the Assessing Officer.

Conclusion:
The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s order that the assessment under Section 153C was invalid due to the absence of incriminating material. Consequently, the deletions of the additions made on merits were also upheld, rendering the grounds raised on merits academic. The Tribunal pronounced the order in the open court on 20/01/2023 at Ahmedabad.