2016 (3) TMI 1064 - AT - Income Tax

Validity of assessment u/s 153A - disallowance under the provisions of Section 40A(3) - Held that - It is undisputed fact that there was no seized incriminating material suggesting any disallowance under the provisions of Section 40A(3) of the Act. A perusal of the assessment orders does not reveal that the impugned additions made in respect of both the assessment years, have neither been based on any incriminating material seized, nor there is any whisper in the assessment orders. The law is well settled that, no assessments can be made under Section 153A in the absence of any seized incriminating material. - Decided in favour of assessee.

Summary

Issues:
1. Validity of order passed by the Assessing Officer u/s 153A
2. Partial allowance of appeal by CIT(A)
3. Disallowance u/s 40A(3) in relation to land shown as work in progress or investment
4. Additional ground raised during the appeal
5. Jurisdiction of Assessing Officer under Section 153A in absence of seized incriminating material

Analysis:

1. Validity of Order u/s 153A:
The appeals challenged the validity of the order passed by the Assessing Officer under Section 153A. The CIT(A) upheld the order, leading to the aggrieved party questioning the jurisdiction of the Assessing Officer due to the absence of seized incriminating material.

2. Partial Allowance of Appeal:
The CIT(A) partly allowed the appeal, which was contested by the assessee who believed that the appeal should have been fully allowed. This discrepancy led to a further analysis of the grounds for appeal and the decision-making process of the CIT(A).

3. Disallowance u/s 40A(3):
The issue of disallowance under Section 40A(3) in cases where land is shown as work in progress or investment was a significant point of contention. The CIT(A) made specific directions regarding the reduction of disallowance from the closing work-in-progress, citing the decision of the Hon'ble Supreme Court in the case of Attar Singh.

4. Additional Ground Raised:
The appellant sought permission to raise additional grounds during the appeal process, indicating a need for flexibility in addressing unforeseen issues that may arise during the course of the proceedings.

5. Jurisdiction under Section 153A:
The core issue revolved around the jurisdiction of the Assessing Officer under Section 153A in the absence of seized incriminating material. The appellant argued that the assessment made without such material was null and void, citing relevant legal precedents and decisions of the Hon'ble Jurisdictional High Court.

In conclusion, the Tribunal held that the assessments made under Section 153A without seized incriminating material were invalid, following the legal position summarized by the Hon'ble Delhi High Court. As a result, the appeals for the assessment years 2007-08 and 2008-09 were allowed, and the orders quashed.