2012 (8) TMI 402 - HC - Income Tax

Search and seizure suppression of sale and variation in G.P. rate - Tribunal upheld deletion made by CIT(A) on ground that no incriminating material was found during the search on the assessee so as to suggest under-invoicing of sales - documents upon which the AO placed reliance were seized from a different person and not from the assessee - Held that - Factual findings recorded by CIT(A) and Tribunal have not been sought to be disturbed or impeached by reference to any material or evidence to the contrary. AO has not referred to any material to show that the quality of the hing sold by the assessee was the same as that sold by the members of the group from whom the sale bills were seized during the search carried out simultaneously. In such circumstances, we are unable to hold that the Tribunal was not right in deleting the additions made to the gross profit declared by the assessee Decided in favour of the assessee. Addition made in respect of alleged Hawala transactions opinion formed on the basis of some papers found in the course of the search in one of the family members premises Tribunal while upholding deletion also noted that such a course adopted by the CIT(Appeals) in another case, namely, ACIT vs. Om Prakash Bhatia has been upheld by the Tribunal - Held that - CIT(Appeals) in the impugned proceedings has no doubt deleted the addition made in respect of Hawala business, but that is only because the Appellate Tribunal for Foreign Exchange had set aside the order passed by the Adjudicating Officer, Enforcement Directorate. These directions of the CIT(Appeals) have been confirmed by the Tribunal in the impugned order and in our opinion rightly so Decided in favor of assessee.

Issues Involved:
1. Validity of assessment proceedings initiated under Section 153A of the Income Tax Act, 1961.
2. Deletion of additions made by the Assessing Officer on account of low Gross Profit (GP) rate.
3. Deletion of addition made on account of alleged Hawala transactions.

Detailed Analysis:

1. Validity of Assessment Proceedings Initiated Under Section 153A:

The Revenue questioned whether the Income Tax Appellate Tribunal (ITAT) was correct in holding that the assessment proceedings could not have been validly initiated under Section 153A of the Income Tax Act, 1961. The CIT (Appeals) had held that the necessary approvals for the assessment were obtained from the concerned range head and that the absence of a note in the assessment order about such approval did not invalidate the proceedings. The Tribunal's order did not explicitly address the validity of the proceedings under Section 153A. Consequently, the High Court observed that no specific reference to the validity of proceedings under Section 153A was made in the Tribunal's order, rendering the question raised in ITA Nos. 1731 & 1733/2010 infructuous.

2. Deletion of Additions Made by the Assessing Officer on Account of Low GP Rate:

The common issue across the assessment years 2004-05, 2003-04, and 2000-01 was the addition towards gross profits. The Assessing Officer (AO) had made additions based on low GP rates declared by the assessee, alleging manipulation of accounts and suppression of sales. The AO relied on seized documents from another group member's premises, which purportedly indicated under-invoicing of sales. The CIT (Appeals) and the Tribunal found that the seized documents were not related to the assessee and pertained to a different period. They concluded that there was no incriminating material found during the search on the assessee to suggest suppression of sales or incorrect profits. Both authorities held that the additions were made without any relevant material for the assessment years and were based on pure guesswork. Consequently, the High Court affirmed the Tribunal's decision to delete the additions, answering the relevant questions in favor of the assessee and against the Revenue.

3. Deletion of Addition Made on Account of Alleged Hawala Transactions:

For the assessment year 2000-01, the AO had made an addition of Rs.1,94,64,000/- based on alleged Hawala transactions, relying on an order from the Adjudicating Officer of the Enforcement Directorate under the Foreign Exchange Regulation Act (FERA). This order was set aside by the Appellate Tribunal for Foreign Exchange, directing the Adjudicating Officer to reframe the order after supplying relevant documents to the involved persons. The CIT (Appeals) deleted the addition, directing the AO to pass necessary consequential orders after obtaining the revised order from the Adjudicating Officer. The Tribunal upheld this direction, noting that the AO had not processed any material independent of the FERA order. The High Court found no reason to interfere with the Tribunal's decision, confirming that the AO could follow the fresh order of the Adjudicating Officer after confronting the assessee with it. The question was answered in the affirmative, in favor of the assessee and against the Revenue.

Conclusion:

The High Court dismissed all the three appeals filed by the Revenue, with no order as to costs. The Tribunal's decisions to delete the additions made on account of low GP rate and alleged Hawala transactions were upheld, and the question regarding the validity of proceedings under Section 153A was deemed infructuous.

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