2019 (12) TMI 1227 - AT - Income Tax

Assessment u/s 153A - addition on account of liquor sales - Estimation of undisclosed Restaurant Sales and Consequent Profits - HELD THAT - In the present case, there was no seized material found during the course of search to estimate the liquor sales, restaurant sales or income from M/s. Kwality Restaurant to sustain the addition. Even while conducting enquiry after search also, the Assessing Officer has not come across any material which relates to the assessee so as to make addition in these assessment years. We could have confirmed the addition , had there been any post search evidence/material found by the Assessing Officer. Neither seized material was found during the course of search nor any material found during the post search enquiry. There is also no allegation that the original assessment was found to be wrong in view of wrong claim made by the assessee. In other words, since the assessment was framed u/s. 153A r.w.s. 143(3) of the I.T. Act, the Assessing Officer could make addition, which he could make u/s. 143(3), even without seized material. There was hardly any evidence to estimate turnover and income of Kwality Restaurant and club the same with the appellant for A.Ys 2001-02 to 2006-07 and also for the period up to 31st December, 2006 for AY 2007-08. Thus, the Assessing Officer was not justified in clubbing the income of Kwality Restaurant in the hands of the assessee for the above period. In view of the above, we hold that estimation of undisclosed turnover from Kwality Restaurant and computing the undisclosed income on the same by the Assessing officer was not backed by any evidence and was purely a guess work and therefore, the addition worked out by the Assessing officer in the A.Y. 2001-2002 is to be deleted. Being so, business income from Kwality Restaurant cannot be assessed in the hands of the assesse and we do not find any infirmity in the orders of CIT(A) on this issue. Thus, this ground of appeal of the assessee is allowed and that of the Revenue is dismissed. The appeal of the assessee is allowed and the appeal of the Revenue is dismissed.

Summary

Issues Involved
1. Confirmation of addition on account of liquor sales in the absence of any incriminating material indicating undisclosed income.
2. Consideration of income of Kwality Restaurant in the hands of the assessee.
3. Deletion of additions made on account of estimation of undisclosed turnover from restaurant business and undisclosed liquor sales.
4. Validity of assessments under Section 153A/153C of the Income Tax Act in the absence of incriminating material.

Detailed Analysis

Issue 1: Confirmation of Addition on Account of Liquor Sales
The Tribunal observed that the Assessing Officer (AO) made additions based on the estimation of suppressed liquor sales. The AO used the suppression rates from the assessment years 2003-04 and 2007-08 to estimate the suppressed sales for other years. However, the Tribunal noted that there was no incriminating material found during the search for the assessment years 2001-02, 2002-03, 2004-05, 2005-06, and 2006-07. The Tribunal held that in the absence of incriminating material, the AO could not make any additions to the already assessed income. Therefore, the additions made by the AO for these years were deleted.

Issue 2: Consideration of Income of Kwality Restaurant
The AO included the income of Kwality Restaurant in the hands of the assessee, estimating the undisclosed sales and profits. The CIT(A) found that Kwality Restaurant was a separate entity and its income should not be included in the assessee's income. The Tribunal upheld the CIT(A)'s decision, noting that the documents relevant to AY 2007-08 did not indicate that the restaurant was run by the assessee prior to 1.1.2007. The Tribunal found that there was no evidence to estimate the turnover and income of Kwality Restaurant and club it with the assessee for the relevant assessment years.

Issue 3: Deletion of Additions Made on Account of Estimation of Undisclosed Turnover
The AO made additions based on the estimation of suppressed sales from the bakery business for the assessment years 2001-02 to 2006-07. The Tribunal noted that there was no seized material found during the course of the search to estimate the suppressed sales for these years. The Tribunal held that in the absence of incriminating material, the AO could not make any additions to the already assessed income. Therefore, the additions made by the AO for these years were deleted.

Issue 4: Validity of Assessments under Section 153A/153C
The Tribunal observed that the assessments under Section 153A/153C were made without any incriminating material found during the search. The Tribunal held that in the absence of incriminating material, the AO could not make any additions to the already assessed income. The Tribunal relied on various judicial pronouncements, including the Supreme Court's decision in Sinhgad Technical Education Society vs. CIT, to support its conclusion. Therefore, the assessments made under Section 153A/153C for the relevant years were held to be invalid in the absence of incriminating material.

Conclusion
The Tribunal allowed the appeals of the assessee for the assessment years 2001-02, 2002-03, 2004-05, 2005-06, and 2006-07, and partly allowed the appeals for the assessment years 2003-04 and 2007-08. The Tribunal dismissed the appeals of the Revenue for all the assessment years. The Tribunal held that in the absence of incriminating material, the AO could not make any additions to the already assessed income, and the income of Kwality Restaurant should not be included in the assessee's income.