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2017 (3) TMI 1462 - AT - Income TaxAddition u/s 68 - un-explained cash deposits by the assessee in Mahila Vikas Co-operative Bank - assessment u/s 153A - Held that - On perusal of the assessment orders, we find that additions have not been made with the help of any seized material, therefore this judgment of Hon ble High Court in the case of Saumya Constructions Pvt. Ltd 2016 (7) TMI 911 - GUJARAT HIGH COURT is squarely applicable on the facts of the present appeals. The additions in the absence of any seized material are not sustainable. Accordingly we allow the appeals of the assessee and delete additions, in all these assessment years. As far as A.Y. 2004-05 is concern, one of the grievance of assessee is that Ld. CIT(A) has relegated the matter to the assessing officer for verifying the cash book in order to ascertain the source of cash deposit of ₹ 25,15,816. The Ld.CIA(A) has no such power. The Ld. Counsel, for the assessee has pointed that while giving effect to order of Ld.CIT(A) Assessing Officer did not make any additions and therefore otherwise the issue would become an academic one. Considering this development, we do not deem it necessary to upset the order of CIT(A) in A.Y. 2004-05. On this issue, otherwise also additions are not based on seized material and they are not sustainable. - Decided in favour of assessee.
Issues Involved:
1. Legitimacy of additions made under Section 68 of the Income Tax Act, 1961. 2. Applicability of CBDT Instructions on the appeal filed by the Revenue. 3. Validity of additions made in absence of incriminating material found during the search. 4. Jurisdiction of CIT(A) in remanding matters for verification by the Assessing Officer. Detailed Analysis: 1. Legitimacy of Additions Made Under Section 68 of the Income Tax Act, 1961: The primary issue in these appeals was the legitimacy of additions made by the Assessing Officer (AO) under Section 68 of the Income Tax Act, 1961, concerning unexplained cash deposits and credits in the assessee's capital account. The AO made additions based on the assessee's failure to justify the genuineness of gifts and deposits during various assessment years (1999-2000, 2000-01, 2002-03 to 2004-05). The assessee contended that these additions were not sustainable as no incriminating material was found during the search that could authorize such additions. 2. Applicability of CBDT Instructions on the Appeal Filed by the Revenue: The Revenue's appeal for the assessment year 2004-05 was dismissed based on CBDT Instructions No. 21/2015, which prohibited filing appeals to the Tribunal where the tax effect was less than ?10 lakhs. The Tribunal noted that the tax effect in this case was less than ?10 lakhs, and the case did not fall within the exceptions provided in the instructions. Therefore, the appeal was dismissed as being filed in violation of CBDT Instructions. 3. Validity of Additions Made in Absence of Incriminating Material Found During the Search: The Tribunal emphasized that additions under Section 153A of the Income Tax Act should be based on incriminating material found during the search. Referring to the Gujarat High Court's decision in the case of Principal Commissioner of Income Tax v/s Saumya Construction Pvt. Ltd., the Tribunal noted that in the absence of any incriminating material, the additions made by the AO were not sustainable. The Tribunal observed that the AO had made additions by re-appreciating the profit and loss accounts, balance sheet, and capital accounts, without any reference to seized material. Consequently, the additions were deleted for all assessment years under appeal. 4. Jurisdiction of CIT(A) in Remanding Matters for Verification by the Assessing Officer: For the assessment year 2004-05, the CIT(A) had directed the AO to verify the issue regarding the addition of ?25,15,816/- on account of unexplained cash deposits. The Tribunal held that the CIT(A) did not have the power to remand the matter for verification. However, it was noted that the AO did not make any additions while giving effect to the CIT(A)'s order, rendering the issue academic. Therefore, the Tribunal did not find it necessary to disturb the CIT(A)'s order on this point. Conclusion: The appeals filed by the assessee were allowed, and the additions made by the AO were deleted for all assessment years under consideration due to the absence of incriminating material found during the search. The Revenue's appeal for the assessment year 2004-05 was dismissed as not maintainable due to the low tax effect, in line with CBDT Instructions. The Tribunal's decision was pronounced on 15th February 2017 at Ahmedabad.
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