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2014 (9) TMI 130 - AT - Income TaxAssessment u/s 153A - Preliminary expenses disallowed Interest u/s 36(1)(iii) disallowed - No incrementing material found - Held that - No incrementing document was found during the search operation with regard to preliminary expenses - such addition/disallowances could not have been made in the assessments finalized as a result of search u/s 143(3)/153A of the Act - there is nothing clear either from the assessment order of the AO or from the order of the CIT(A) with regard to the nature of the preliminarily expenses - It is also not clear whether such expenses were allowable at all True nature of transaction regarding interest u/s 36(1)(iii) was not ascertained by authorities below - The true nature of transaction and legal contentions has not been considered by the authorities below - thus, the matter is to be remitted back to the AO for fresh adjudication. Gain on FCCb due to repayment Held that - Held that - The issue was raised first time by the CIT(A) - the time period before the CIT(A) was too short to thrash out the new issue in detail - several factual and legal issues have not been dealt in detail by the CIT(A) - there was inadequate opportunity to the assessee at the level of the CIT(A) for making the enhancements of income thus, the matter is to be remitted back to the AO for fresh adjudication. Addition of bogus purchases disallowed - Held that - CIT(A) has made certain observations while confirming the disallowance which were not confronted with the assessee - CIT(A) has not made anything clear with regard to the names of the suppliers whose premises were covered in search operation - What evidences were gathered with regard to the accommodation entries is also not clear - The issue regarding the non-substantiating the purchases by the sister concerns was never confronted to the assessee thus, the matter is to be remitted back to the AO for fresh adjudication. Deduction u/s 80IB - profit derived from Jammu Unit Opportunity of being heard not provided - Held that - The issue was decided without providing adequate opportunity of being heard to the assessee - adverse observations were also not confronted with the assessee thus, the matter is to be remitted back to the AO for fresh adjudication. Deduction u/s 80IA suppression of profit on purchase and sale - Held that - Although the disallowance was made by the AO for claim of deduction u/s 80IA - the CIT(A) has sought compressive details/information from the assessee - the time period of hearing before the CIT(A) was just over three months which was not adequate having regard to the complex nature of the business of the assessee and geographical scattered branches of the assessee from where the assessee was required the details to be submitted before the CIT(A) - in such a short period the required/asked details could not have been collected by the assessee to comply the query raised by CIT(A) - Certain requirements of confronting the assessee were not specifically met by the CIT(A) by giving specific opportunity on these issues - for making a huge addition for not allowing deduction u/s 80IA of the Act, which was allowed in some of the assessment years while framing the assessment u/s 143(3) of the Act a detailed and adequate opportunity needs to be provided to the assessee the matter is required to be remitted back to the AO for fresh adjudication. Suppression of profit by making transactions of purchases and sales Held that - Assessee contended that no incrementing material found during the course of search hence no disallowance is to be made while framing the assessment u/s 143 (3)/153A of the Act - no adequate opportunity was given by the AO thus, the matter is remitted back to the AO for fresh adjudication Decided in favour of Assessee.
Issues Involved:
1. Disallowance of deduction under sections 80IA and 80IB. 2. Disallowance of preliminary expenses. 3. Disallowance of interest under section 36(1)(iii). 4. Gain on buyback of Foreign Currency Convertible Bonds (FCCB). 5. Addition on account of bogus purchases. 6. Addition on account of unaccounted cash. 7. Suppression of profit by rotating purchase and sales within group companies. 8. Disallowance under section 10A. 9. Cross objections regarding transactions with M/s XL Telecom & Energy Ltd. Detailed Analysis: 1. Disallowance of Deduction under Sections 80IA and 80IB: The assessee's appeals contested the disallowance of deductions claimed under sections 80IA and 80IB. The CIT(A) disallowed these deductions, citing discrepancies in the computation and unverifiable books of accounts. The Tribunal noted that the CIT(A) made several adverse observations without confronting the assessee or providing adequate opportunity to respond. The Tribunal restored these issues to the AO for fresh adjudication, emphasizing the need for a detailed and fair examination of the claims, including verifying the nature of the business activities and the legitimacy of the deductions claimed. 2. Disallowance of Preliminary Expenses: The disallowance of preliminary expenses was contested on the grounds that no incriminating documents were found during the search. The Tribunal noted the lack of clarity regarding the nature of these expenses and restored the issue to the AO for a fresh decision, ensuring that the true nature of the expenses is ascertained and the assessee is given an adequate opportunity to present their case. 3. Disallowance of Interest under Section 36(1)(iii): The disallowance of interest expenses was challenged, with the assessee arguing that no incriminating documents were found during the search and that the transactions were not loans but debits resulting from sales in the ordinary course of business. The Tribunal found that the true nature of the transactions was not adequately considered by the authorities and restored the issue to the AO for a fresh examination. 4. Gain on Buyback of FCCB: The CIT(A) enhanced the income by treating the gain on the premature repayment of FCCB at a discount as taxable income. The Tribunal noted that this issue was raised for the first time by the CIT(A) and that the assessee did not have adequate opportunity to respond. The Tribunal restored the issue to the AO for fresh adjudication, emphasizing the need for a detailed examination of the legal and factual aspects of the transactions. 5. Addition on Account of Bogus Purchases: The addition for bogus purchases was based on the statement of the Managing Director, who admitted to bogus purchases in sister concerns. The Tribunal found that the CIT(A) made observations without confronting the assessee and that the evidence regarding accommodation entries was unclear. The issue was restored to the AO for a fresh decision, ensuring that the assessee is given an adequate opportunity to present their case. 6. Addition on Account of Unaccounted Cash: The CIT(A) made additions for unaccounted cash based on seized documents. The assessee argued that the cash deposits were from bogus purchases admitted by sister concerns and that the addition was a double addition. The Tribunal restored the issue to the AO for fresh adjudication, emphasizing the need for a holistic examination of the transactions and ensuring that the assessee is given an adequate opportunity to present their case. 7. Suppression of Profit by Rotating Purchase and Sales within Group Companies: The CIT(A) deleted the additions made by the AO for suppression of profit through rotating purchase and sales within group companies. The Tribunal restored the issue to the AO for fresh adjudication, ensuring that the transactions are thoroughly examined and the assessee is given an adequate opportunity to present their case. 8. Disallowance under Section 10A: The disallowance under section 10A was deleted by the CIT(A) without detailed discussion. The Tribunal restored the issue to the AO for fresh adjudication, ensuring that the assessee is given an adequate opportunity to present their case. 9. Cross Objections Regarding Transactions with M/s XL Telecom & Energy Ltd.: The cross objections involved additions for transactions with M/s XL Telecom & Energy Ltd. The Tribunal noted that no incriminating material was found during the search and that the assessee was not given adequate opportunity to respond. The issue was restored to the AO for fresh adjudication, ensuring that the assessee is given an adequate opportunity to present their case. Conclusion: The Tribunal restored all major issues to the AO for fresh adjudication, emphasizing the need for a detailed and fair examination of the claims and ensuring that the assessee is given an adequate opportunity to present their case. The appeals by the assessee and the revenue, as well as the cross objections, were allowed for statistical purposes.
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