2023 (7) TMI 176 - HC - Income Tax

Assessment u/s 153A - whether addition can be made in respect of completed/ unabated assessment in absence of any incriminating material? - HELD THAT - The decision of Saumya Construction 2016 (7) TMI 911 - GUJARAT HIGH COURT to held that the case of completed assessment/unabated assessment in absence of any incriminating material will not permit making of addition by the AO and that the AO has no jurisdiction to reopen the completed assessment. Finally, the supreme court confirmed the view taken in Kabul Chawla 2015 (9) TMI 80 - DELHI HIGH COURT and of this Court in Saumya Construction 2016 (7) TMI 911 - GUJARAT HIGH COURT laying down the law that no addition can be made in respect of completed assessment in absence of any incriminating material. The supreme court in laying down the proposition considered the object and purpose of insertion of section 153A of the Act. In view of the above decision of the supreme court in Abhisar Buildwell P. Ltd. 2023 (4) TMI 1056 - SUPREME COURT there is no gainsaying that the issue sought to be raised and the substantial questions of law ought to be put forth in that context, are answered. No case is made out in this appeal. No substantial question of law could be said to be arising in view of law laid down by the supreme court in Abhisar Buildwell P. Ltd. 2023 (4) TMI 1056 - SUPREME COURT .

Summary

Issues involved:
The issues involved in this case pertain to the deletion of additions made under section 68 and section 69C of the Income Tax Act, 1961, and the jurisdiction of the Assessing Officer in making assessments under section 153A of the Act.

Deletion of Additions under Section 68 and Section 69C:
The case revolves around an assessment order determining total income and making additions under section 68 and section 69C of the Act on account of alleged bogus long term capital gain. The Commissioner of Income Tax (Appeals) allowed the appeal of the assessee by deleting the additions, citing the absence of incriminating material found during search. The Income Tax Appellate Tribunal upheld this decision, leading to the present Tax Appeal.

Jurisdiction of Assessing Officer under Section 153A:
The appellant contended that the Assessing Officer has the authority to consider all material available on record, including that found during a search, for making assessments of 'total income'. However, the supreme court in the case of Principal Commissioner of Income Tax, Central-3 vs. Abhisar Buildwell P. Ltd. clarified that in the absence of incriminating material, no additions can be made in respect of completed or unabated assessments. The court cited previous decisions by the Gujarat High Court and the Delhi High Court to support this view, emphasizing the importance of seized material in making assessments under section 153A.

Conclusion:
In light of the supreme court's decision in Abhisar Buildwell P. Ltd., which established that no additions can be made in the absence of incriminating material for completed assessments, the appeal was dismissed. The court found that no question of law, let alone a substantial one, arose in this case, as per the legal principles laid down by the supreme court.