2023 (6) TMI 163 - AT - Income Tax

Addition u/s 69 - unexplained investment - share transactions - Year of assessment - addition invoking the provisions of section 115BBE - an Ikrarnama relating to transfer of shares in Paradizo Resort was retrieved from the mobile phone of Sh. Ashok Jain brother of assessee - HELD THAT - As in the year under consideration the shares were not transferred as contended by the ld. AO and the unexplained investment as contended by the assessing officer in fact inkling based on the unsigned ikrarnama found. Addition was made based on the suspicion and the consideration fixed vide ikrarnama in fact not flowed and in fact there is no support found from the seized record to substantiate the view taken by the revenue. The asset is not transferred and it is the ld. AO reported the shares were reflected in the subsequent return and the capital gain is also offered. Thus, in the absence of any tangible material found from the search proceeding except the unsigned ikrarnama we do not see any force in the argument advanced by the ld. DR. DR did not controvert the detailed finding on facts given by the ld. CIT(A) holding that alleged shares were transferred in the subsequent years which were not only disclosed by the assessee in his return of income but due taxes were paid thereon and the same is reiterated before us by the ld. AO in his status report. Thus, we concur the detailed finding of the ld. CIT(A) holding that the transaction for legal transfer of shares actually took place in the subsequent assessment year but not in the year under consideration. Thus addition cannot be sustained merely on assumption and presumption where the evidence clearly supports the contention of the assessee.. There is no tangible material evidence except the unsigned ikrarnama where in itself the details of the cheque payments mentioned are duly recorded. The subsequent transfer of shares duly recorded in the year of transfer and offered for tax, support the finding of the ld. CIT(A). - Decided against revenue.

Summary

Issues Involved:
1. Legality of the addition of Rs. 6,21,00,000/- under Section 69 read with Section 115BBE of the Income Tax Act, 1961.
2. Validity of the approval given by the Additional Commissioner of Income Tax under Section 153D.
3. Legitimacy of charging interest under Section 234B.
4. Appropriateness of initiating penalty proceedings under Section 271AAB.

Issue-Wise Detailed Analysis:

1. Legality of the Addition of Rs. 6,21,00,000/- under Section 69 read with Section 115BBE:
The primary issue was whether the addition of Rs. 6,21,00,000/- made under Section 69 read with Section 115BBE was justified. The Revenue's contention was based on an unsigned Ikrarnama found during a search, which indicated a transfer of shares in Paradizo Resort for Rs. 16 crore. The Revenue argued that the assessee had received an advance payment of Rs. 3.58 crore, and the balance amount of Rs. 12.42 crore was unexplained income. The assessee contended that the Ikrarnama was unsigned and the payments were recorded as unsecured loans in their books. The CIT(A) found that the agreement was unsigned, the payments were recorded in the books, and the shares were transferred in subsequent years with due taxes paid. The Tribunal concurred with the CIT(A), noting that the addition was based on assumptions and lacked tangible evidence. The Tribunal dismissed the Revenue's appeal, affirming that the transaction for the legal transfer of shares occurred in subsequent years and not in the year under consideration.

2. Validity of the Approval Given by the Additional Commissioner of Income Tax under Section 153D:
The assessee challenged the approval given by the Additional Commissioner of Income Tax under Section 153D, claiming it was mechanical and without application of mind. However, since the Tribunal upheld the CIT(A)'s decision on the merits, this ground became technical and infructuous, requiring no further adjudication.

3. Legitimacy of Charging Interest under Section 234B:
The issue of charging interest under Section 234B was deemed consequential. The Tribunal directed the Assessing Officer to give necessary effect as per law, making this ground a matter of procedural compliance.

4. Appropriateness of Initiating Penalty Proceedings under Section 271AAB:
The assessee also contested the initiation of penalty proceedings under Section 271AAB. However, since the levy of penalty was not the subject matter of the current challenge, the Tribunal considered this ground premature and did not adjudicate on it.

Conclusion:
The Tribunal dismissed the Revenue's appeals, affirming the CIT(A)'s findings that the addition of Rs. 6,21,00,000/- was not justified. The cross-objections filed by the assessee were allowed for statistical purposes, with directions for procedural compliance on charging interest under Section 234B. The Tribunal's decision was based on the lack of tangible evidence supporting the Revenue's claims and the proper recording of transactions in subsequent years.