9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (7) TMI 1327 - AT - Income TaxAssessment u/s 153A - Proof of incriminating material found during the course of search or not? - HELD THAT - AO has nowhere made reference to any seized material in the assessment order. AO has been examining the matter as if he is passing a regular assessment order u/s 143(3) or 147 - Under the scheme of assessment as propounded in the various judgments an addition can only be made if some incriminating material regarding receipt of bogus share application money was found during the course of search. AO did not make reference to this effect. CIT(A) is on the same line. CIT(A) has discussed the issue on merits but did not address whether the issue can be examined in an assessment framed u/s 153A or not. The judgment of the Hon ble Delhi High Court in the case of Kabul Chawla 2015 (9) TMI 80 - DELHI HIGH COURT is very specific which has been discussed above. The time limit to issue notice u/s 143(2) of the Act has expired long back. Hence, it is an unabated assessment year and this assessment can be tinkered with only if incriminating material pertaining to this year has been found during the course of search. In view of the above discussion and respectfully following the judgments of various Hon ble High Courts and Co-ordinate Benches, we allow the preliminary ground of the appeal and delete the additions made in the assessment order dt. 30/03/2015 passed u/s 153A r.w.s. 143(3) of the Act. Appeal of the assessee is allowed.
Issues Involved:
1. Admissibility of additional ground of appeal. 2. Legality of additions made under Section 153A of the Income Tax Act, 1961, in absence of incriminating materials found during the search. 3. Validity of additions made under Section 68 of the Income Tax Act, 1961, regarding receipt of share capital and share premium. Issue-wise Detailed Analysis: 1. Admissibility of Additional Ground of Appeal: The assessee raised an additional ground of appeal based on the Supreme Court's judgment in NTPC Ltd. vs. CIT, arguing that the additional ground involves a legal proposition affecting the taxability of the assessee. The Tribunal considered the rival contentions and concluded that the additional ground, being a legal issue, could be raised even without a specific pleading. Therefore, the Tribunal admitted the additional ground for adjudication. 2. Legality of Additions Made Under Section 153A: The Tribunal examined whether additions could be made under Section 153A in the absence of incriminating material found during the search. The assessee argued that no such material was found for the assessment year 2007-08, thus additions were not justified. The Tribunal referred to several authoritative judgments, notably from the Hon'ble Delhi High Court in CIT vs. Kabul Chawla, which established that for completed assessments, additions under Section 153A could only be made based on incriminating material found during the search. The Tribunal noted that the Assessing Officer (AO) did not reference any seized material in the assessment order and treated the matter as a regular assessment under Sections 143(3) or 147, which was inappropriate under the circumstances. Consequently, the Tribunal concluded that the AO could not make additions for an unabated assessment year without incriminating material found during the search. 3. Validity of Additions Made Under Section 68: The AO made an addition of Rs. 2,85,00,000 under Section 68, citing unexplained share capital and share premium. The AO issued notices under Section 133(6) and summons under Section 131 to verify the genuineness of the transactions but did not receive satisfactory responses from the directors of the shareholder companies. The Tribunal scrutinized the AO's findings and observed that the AO did not link the additions to any incriminating material found during the search. The Tribunal reiterated that under Section 153A, additions must be based on seized material, and in the absence of such material, the AO's action was not justified. The Tribunal, therefore, deleted the additions made under Section 68. Conclusion: The Tribunal allowed the appeal of the assessee, emphasizing that for an unabated assessment year, additions under Section 153A must be based on incriminating material found during the search. The Tribunal deleted the additions made by the AO under Sections 68 and 153A, as they were not supported by any such material. The judgment underscores the necessity for the AO to adhere strictly to the legal requirements of Section 153A when making additions for completed assessments.
|
