2015 (5) TMI 153 - AT - Income Tax

Validity of notice u/s 153C - Held that - The satisfaction note available reveals exfacie that the same has been recorded by the AO in the capacity of the AO of the person other than the person searched, thus, the satisfaction note has been recorded by the AO of the assessee of the present cases but no satisfaction note has been recorded in the case of persons searched. This fact is also apparent from the RTI reply of DCIT, New Delhi dated 10.6.2013 also see that the basis of initiation of present proceedings u/s 153C of the Act is only satisfaction note which was recorded in the file of the person other than the person searched i.e. the assessee. In view of above factum of the present case the legal cross objections of the assessee also find support from the judgment of Hon ble Jurisdictional High Court of Delhi in the case of SSP Aviation Ltd. Vs. DCIT,(2012 (4) TMI 335 - DELHI HIGH COURT), as relied by the assessee, that satisfaction note is required to be made in the case of the person searched by the AO having jurisdiction over searched person which has not been recorded in the present case by the AO of person searched i.e. Shri B.K. Dhingra & Others and as per RTI reply dated 8.12.2014 (PB page 4-5) the only satisfaction has not been recorded in the file of other person viz. the assessee. In view of above, it can safely be held that no valid and required satisfaction note was recorded by the AO of the persons searched so as to fulfill the requirements of valid assumption of jurisdiction u/s 153C of the Act which is a sinequanon for validly assumed jurisdiction u/s 153C r.w.s. 153A of the Act. - Decided in favour of assessee. Additions u/s 69C - unexplained purchases - disallowance of expenditure - Held that - AO proceeded to make additions with a predetermine mind without pointing out any defects in the audited books and book results of the assessee. We reach to a logical and fortified conclusion that the AO was not justified in making impugned disallowances and additions pertains to unexplained purchases u/s 69C of the Act and disallowance of expenses in all six assessment years and addition u/s 68 of the Act in regard to share capital for A.Y. 2003-04 without any justified basis and that is too without any incriminating material and thus, we are inclined to hold that the CIT(A) was correct in deleting the same. Thus inclined to hold that the AO made additions without any justify basis and incriminating material which was deleted by the CIT(A). We further hold that the CIT(A) made a vague and unsustainable directions to the AO for making additions to work out peak amount from the entries in the cash book of the assessee for the relevant assessment year and make a singular addition which is also not sustainable. The additions made by the AO in all six assessment years pertaining to unexplained purchase and in pursuant to disallowance of entire amount of expenses were not found to be sustainable by the CIT(A) and we have no reason to interfere with the plausible and correct conclusion of the CIT(A) in this regard and thus, we upheld the same. - Decided in favour of assessee.

Issues Involved:
1. Legality and jurisdiction of notice and assessment order under Section 153C of the Income Tax Act.
2. Validity of additions made under Section 69C for unexplained purchases.
3. Validity of disallowance of expenses.
4. Validity of addition under Section 68 for share capital.
5. Directions by the CIT(A) to work out the peak from the entries in the cash book.

Issue-wise Detailed Analysis:

1. Legality and Jurisdiction of Notice and Assessment Order under Section 153C:
The assessee challenged the legality of the notice issued under Section 153C and the assessment order passed under Section 153C/143(3) as illegal, bad in law, time-barred, without jurisdiction, and against the principles of natural justice. The Tribunal noted that the documents found during the search did not belong to the assessee but were part of the working papers of the Chartered Accountant of the assessee's company. The Tribunal relied on the decisions in the cases of M/s Aqua Guard Marketing Pvt. Ltd. and Tanveer Collections Pvt. Ltd., which held that the initiation of proceedings under Section 153C was void ab initio if the AO of the person searched did not record any satisfaction that the documents belonged to the assessee. The Tribunal concluded that the absence of such satisfaction failed to confer any valid and lawful jurisdiction on the AO of the assessee to proceed with the assessment under Section 153C.

2. Validity of Additions Made under Section 69C for Unexplained Purchases:
The AO made additions under Section 69C for unexplained purchases, claiming that the purchases were unverifiable and bogus. The Tribunal noted that the assessee had submitted all details of purchases, sales, and expenses, and no deficiency or defect was pointed out by the AO. The Tribunal observed that the AO's conclusion was not sustainable as the purchases were confirmed by the parties through notices issued under Section 133(6). The Tribunal upheld the CIT(A)'s decision to delete the additions made by the AO.

3. Validity of Disallowance of Expenses:
The AO disallowed the expenses claimed by the assessee, stating that they were not verifiable. The Tribunal noted that the assessee had submitted all details of expenses and no defects were pointed out by the AO. The Tribunal upheld the CIT(A)'s decision to delete the disallowance of expenses, as the AO had not provided any justified basis for the disallowance.

4. Validity of Addition under Section 68 for Share Capital:
The AO made an addition of Rs. 99,600 under Section 68 for share capital, claiming that the assessee did not provide confirmation and PAN details of the shareholders. The Tribunal noted that the assessee had allotted bonus shares out of profits and reserves to existing shareholders, and there was no cash transaction involved. The Tribunal agreed with the CIT(A)'s decision to delete the addition, as the AO's addition was based on a failure to submit details during the assessment proceedings, which were later clarified.

5. Directions by the CIT(A) to Work Out the Peak from the Entries in the Cash Book:
The CIT(A) directed the AO to work out the peak from the entries in the cash book of the assessee for the relevant year and make a singular addition. The Tribunal found this direction to be vague and unsustainable, as the CIT(A) did not provide a specific basis for the addition. The Tribunal held that the CIT(A)'s direction was not justified and demolished the same.

Conclusion:
The Tribunal dismissed the appeals of the Revenue and allowed the cross objections of the assessee. The Tribunal upheld the CIT(A)'s decision to delete the additions made by the AO but found the CIT(A)'s direction to work out the peak amount for making an addition to be vague and unsustainable. The Tribunal concluded that the additions made by the AO were without any justified basis and incriminating material, and thus, not sustainable.

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