2017 (3) TMI 1045 - AT - Income Tax

Assessment orders passed with reference to section 153A - Held that - We agree with the contentions of Ld. AR that the additions made by the assessing officer is based on the details that is available on record that is from documents like balance sheet, profit and loss account, returns filed by the assessee. It is also observed that no material has been ceased from the premises of assessee, or elsewhere, that is belonging to assessee, which could be a basis of making addition in the hands of assessee. There is no mention regarding any such incriminating materials by the assessing officer in the assessment order. Further for assessment year 2004-05 it is observed that intimation under section 143(1) was processed by the assessing officer on the basis of the original returns filed by and time limit for issuance of notice under section 143(2) has passed in case of both assessment years. Under such circumstances assessments had not abated as on the date of search and in the absence of any incriminating material a completed assessment cannot be interfered with, by the assessing officer while completing assessment under section 153A. In a peculiar case like this the additions has to be based on some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search, which was not produced. Accordingly, we hold that assessing officer did not have jurisdiction to frame assessment for the years under consideration. Consequentially, we hold the assessment orders passed with reference to section 153A of the Act are unsustainable in law - Decided in favour of assessee.

Summary

Issues:
- Jurisdiction of assessing officer under section 153A
- Addition of unexplained cash balance
- Gift received from a British citizen
- Assessment based on incriminating material

Jurisdiction of Assessing Officer under Section 153A:
The appellant challenged the legality of the assessment order passed by the Ld. CIT(A) under section 153A of the IT Act, 1961. The appellant argued that the assessment order was illegal as there was no separate search warrant in the name of the appellant, and no incriminating material was found during the search to enable the AO to frame reassessment under section 153A. The appellant contended that for assessment under section 153A, additions could only be made based on incriminating materials unearthed during the search, where the assessment has not abated. The Ld. AR submitted that the additions made by the Assessing Officer were not based on any incriminating material but on documents already on record, such as the balance sheet, profit and loss account, and the return of income filed by the assessee. The Tribunal agreed with the appellant, citing the decision of the Hon'ble Delhi High Court in the case of CIT Vs Kabul Chawla, and held that the assessing officer did not have jurisdiction to frame assessments for the years under consideration under section 153A.

Addition of Unexplained Cash Balance:
For the assessment year 2001-02, the Assessing Officer made an addition on account of unexplained cash balance found in the balance sheet of the assessee. The appellant contended that the cash in hand and bank balances could not be explained to the satisfaction of the AO. However, the Tribunal observed that no material had been seized from the premises of the assessee that could be a basis for making additions. The Tribunal agreed with the appellant's argument that the additions were not based on any incriminating material and were therefore unsustainable in law.

Gift Received from a British Citizen:
In the assessment for the year 2004-05, the Assessing Officer made an addition based on a gift received by the assessee from a British citizen. The AO concluded that the gift was not out of natural love and affection arising out of blood relation. The appellant argued that the assessment made by the AO was without jurisdiction as no incriminating material was found during the search to support the addition. The Tribunal found that the assessment order was based on completed assessments and no incriminating material was unearthed during the search, rendering the additions unsustainable.

Assessment Based on Incriminating Material:
The Tribunal emphasized that for assessments under section 153A, there must be incriminating material unearthed during the search to support any additions made by the Assessing Officer. The Tribunal noted that in the absence of any such material, completed assessments cannot be interfered with. Referring to judicial precedents, the Tribunal followed the decision of the Hon'ble Delhi High Court in favor of the assessee, holding that the assessing officer lacked jurisdiction to frame assessments under section 153A. Consequently, the Tribunal allowed the appeals filed by the assessee for the assessment years 2001-02 and 2004-05, declaring the assessment orders passed under section 153A as unsustainable in law.