2018 (7) TMI 1170 - AT - Income Tax

Validity of assessment u/s 153A - Held that - Impugned assessment year involved 2008-09 for which the return was filed under section 139(1) on 29.09.2008 and the due date for issue of the notice under section 143(2) of the Act was up to 30.09.2009, no such notice was issued to the assessee. On 6.11.2009 search under section 132(1) was carried out at the residence of the assessee. Admittedly during the course of search some cash seizure was made. However, with respect to the disallowance made admittedly no incriminating documents were found Even in case of the assessment or on the issue of addition the interpretation which favours the assessee, in case of ambiguity shall be followed. In view of this, the balance of scale is tilted in favour of the assessee. As following various HC decisions we state that in the present case without any incriminating material, addition cannot be made. Admittedly there are no incriminating materials found with respect to the disallowance of expenditure made by the Assessing Officer. In view of this, ground No. 1 of the appeal of the assessee is allowed.

Issues involved:
1. Assessment under section 153A(1)(b) of The Act, 1961 without incriminating evidence
2. Disallowance of expenses without opportunity to be heard and show cause notice
3. Non-admission of additional evidence under rule 46A by CIT (Appeals)
4. Conclusion of assessment for assessment year 2008-09
5. Interpretation of incriminating evidence requirement for disturbing concluded assessment

Analysis:

1. Assessment under section 153A(1)(b) without incriminating evidence:
The appeal was against the assessment under section 153A(1)(b) of The Act, 1961 without any incriminating evidence found against the appellant. The Assessing Officer completed the assessment without any basis, which was deemed wrong, unjustified, and illegal. The Tribunal held that in the absence of incriminating material related to the disallowance, the addition cannot be made. The decision was supported by various High Court judgments and the Supreme Court's view favoring the assessee in case of ambiguity in taxing provisions.

2. Disallowance of expenses without opportunity to be heard and show cause notice:
The appellant raised concerns regarding the disallowance of expenses totaling &8377; 1,54,988 without being given a reasonable opportunity to be heard or issued a mandatory show cause notice. The Assessing Officer disallowed the expenses as supporting documents were not submitted by the appellant. However, the Tribunal considered the lack of incriminating evidence and ruled in favor of the appellant, allowing ground No. 1 of the appeal.

3. Non-admission of additional evidence under rule 46A by CIT (Appeals):
The appellant sought to admit additional evidence under rule 46A, which was related to expenses incurred but not supported by documents during the assessment proceedings. The CIT (Appeals) dismissed the application of additional evidence and an additional ground raised by the appellant. The Tribunal upheld the decision regarding the additional evidence based on the lack of incriminating material and the concluded assessment for the relevant year.

4. Conclusion of assessment for assessment year 2008-09:
The assessment year in question was 2008-09, for which the appellant had filed the return under section 139(1) on a specific date. The Tribunal noted that no notice under section 143(2) was issued to the appellant before the search conducted under section 132(1). As no incriminating documents were found regarding the disallowed expenses, the Tribunal ruled in favor of the appellant, emphasizing the need for incriminating evidence to disturb a concluded assessment.

5. Interpretation of incriminating evidence requirement for disturbing concluded assessment:
The Tribunal considered various High Court judgments and the Supreme Court's stance on the necessity of incriminating evidence to disturb a concluded assessment. The absence of such material related to the disallowed expenses led the Tribunal to allow the appeal of the assessee. The decision was based on the interpretation favoring the assessee in case of ambiguity in taxing provisions, as highlighted by the Supreme Court in relevant cases.

Overall, the Tribunal allowed the appeal of the assessee based on the lack of incriminating evidence and the need for a valid basis to disturb a concluded assessment, as per established legal principles and precedents cited during the proceedings.

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