2020 (3) TMI 948 - AT - Income Tax

Assessment u/s 153A - absence of incriminating material/documents - HELD THAT - In the present case, there is no dispute that the assessment was completed as on the date of search and we find the CIT(A) in his impugned order categorically held that no incriminating documents / papers relevant to the issue on hand were not seized during the course search and seizure operation. Further, the additions made by the AO in the assessment completed u/s 153A/143(3) are not based on any incriminating material documents / papers. Further the CIT(A) placed reliance in the case of Veerprabhu Marketing Ltd. 2016 (8) TMI 813 - CALCUTTA HIGH COURT . While deciding the issue in the case of Veerprabhu Marketing Ltd. (supra), the Hon ble High Court of Calcutta agreed with the view expressed by the Hon ble High Court of Karnataka 2016 (5) TMI 372 - KARNATAKA HIGH COURT wherein it was held that incriminating material is a pre-requisite / power could have been exercised u/s 153C r.w.s. 153A of the Act. We note that as rightly argued by the Ld.AR the Hon ble High Court of Calcutta have been consistently held that the additions in the case of search assessment have to be made on the basis of incriminating material, supporting the same, the citation of which have been reproduced in the afore-mentioned paragraph. Therefore, considering the facts and circumstances of the case and submissions of ld. DR and AR along with the decisions relied on, we find no infirmity in the order of CIT(A) and it is justified. Thug ground nos. 1 to 6 raised by the revenue are dismissed.

Issues Involved:

1. Validity of assessment under section 153A/143(3) without incriminating material.
2. Requirement of incriminating material for additions in completed assessments.
3. Jurisdiction and scope of Assessing Officer under section 153A.
4. Differentiation between completed and pending assessments in the context of section 153A.
5. Interpretation of judicial precedents related to section 153A assessments.

Issue-wise Detailed Analysis:

1. Validity of Assessment under Section 153A/143(3) Without Incriminating Material:
The primary issue raised by the revenue was the validity of the assessment made under section 153A/143(3) of the Income Tax Act without any incriminating material. The assessee contended that the scope of assessment under section 153A is limited to undisclosed income based on incriminating material found during the search. The CIT(A) agreed with the assessee, holding that no incriminating documents were seized during the search, and thus, the assessment made under section 153A/143(3) was invalid. The Tribunal upheld this view, noting that the CIT(A) relied on the decision of the Hon’ble High Court of Calcutta in Veerprabhu Marketing Ltd., where it was held that in the absence of incriminating material, the assessment under section 153A/143(3) is invalid.

2. Requirement of Incriminating Material for Additions in Completed Assessments:
The Tribunal examined whether additions can be made in completed assessments without incriminating material. The revenue argued that the jurisdiction under section 153A is automatic upon initiation of a search, and there is no requirement for incriminating material to issue notice under section 153A. However, the Tribunal noted that the Hon’ble High Court of Calcutta and other High Courts have consistently held that additions in completed assessments under section 153A must be based on incriminating material found during the search. The Tribunal cited various judicial precedents, including the Delhi High Court’s decision in Kabul Chawla, which supports the view that additions in completed assessments require incriminating material.

3. Jurisdiction and Scope of Assessing Officer under Section 153A:
The revenue contended that the Assessing Officer’s jurisdiction under section 153A is not restricted to incriminating material found during the search and can include examination of all aspects of income. The Tribunal, however, found that the CIT(A) and judicial precedents have held that the scope of section 153A is limited to undisclosed income based on incriminating material. The Tribunal emphasized that the CIT(A) had categorically held that no incriminating documents were seized during the search, and thus, the additions made by the AO were not justified.

4. Differentiation Between Completed and Pending Assessments in the Context of Section 153A:
The Tribunal discussed the differentiation between completed and pending assessments under section 153A. It was noted that completed assessments refer to those where no proceedings were pending as on the date of search, and any additions in such assessments must be based on incriminating material. In contrast, pending or abated assessments merge with block assessment proceedings under section 153A and can be assessed normally. The Tribunal found that the present case involved a completed assessment, and thus, any additions required incriminating material, which was not found.

5. Interpretation of Judicial Precedents Related to Section 153A Assessments:
The Tribunal extensively reviewed judicial precedents related to section 153A assessments. The revenue cited various cases to argue that incriminating material is not required for additions under section 153A. However, the Tribunal distinguished these cases based on their facts and found that the prevailing judicial view, including decisions from the Hon’ble High Court of Calcutta and other High Courts, supports the requirement of incriminating material for additions in completed assessments. The Tribunal upheld the CIT(A)’s order, which was based on this consistent judicial interpretation.

Conclusion:
The Tribunal dismissed the revenue’s appeals and upheld the CIT(A)’s order, emphasizing that the additions made under section 153A/143(3) were invalid in the absence of incriminating material. The cross-objections by the assessee were allowed, supporting the CIT(A)’s order and rendering the grounds raised by the revenue infructuous. The Tribunal’s decision was pronounced in open court on 18.03.2020.

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