2020 (12) TMI 606 - AT - Income Tax

Assessment u/s 153A - Whether any incriminating material found or seized during the course of search? - HELD THAT - As relying on KABUL CHAWLA 2015 (9) TMI 80 - DELHI HIGH COURT assessment u/s. 153A of the Act involving unabated proceedings has to be based on incriminating material found or seized during the course of the search in question. Both the lower authorities have erred in law and on facts in framing the impugned assessments in assessee s case not involving any seized material. The same stands quashed therefore. Unexplained cash credits u/s 68 - The assessee has already filed all the necessary evidence. We thus hold that the lower authorities have not correctly appreciated the fact. Hon ble Gujarat high court in PCIT vs. Gyscoal Alloys Ltd 2018 (10) TMI 1725 - GUJARAT HIGH COURT held that such an instance of the share capital having group entities from thereby jurisdiction does not qualify for section 68 unexplained cash credits additions. - Decided in favour of assessee.

Summary

Issues:
1. Jurisdiction of assessment order u/s. 153A/143(3) without incriminating material.
2. Addition of unaccounted money as bogus share premium u/s. 68.
3. Disallowance of cost of improvement while computing long term capital gain.
4. Violation of principles of natural justice in the assessment order.

Analysis:
1. The main issue in this appeal was the jurisdiction of the assessment order u/s. 153A/143(3) without any incriminating material found or seized during the search. The appellant contended that the assessment was beyond jurisdiction and bad in law due to the absence of incriminating material. The Tribunal noted that the assessment year in question was 2011-12, and the search conducted did not reveal any pending assessment. Relying on relevant case laws, the Tribunal held that assessments under section 153A must be based on incriminating material found during the search. As no seized material was involved in this case, the assessment was deemed invalid and quashed.

2. Another issue raised was the addition of unaccounted money as bogus share premium under section 68 of the Income Tax Act. The Assessing Officer had added a substantial amount as unexplained cash credits based on share application money received from shell companies with dummy directors. The Revenue supported this addition, citing various case laws. However, the Tribunal found that the share application money was received from group entities with common directors, and the necessary evidence had been provided. Referring to a Gujarat High Court case, the Tribunal concluded that the addition under section 68 was unwarranted, as the appellant had proven the creditworthiness and genuineness of the transactions. Consequently, the impugned additions under section 68 were deleted.

3. The third issue related to the disallowance of the cost of improvement while computing long term capital gain on the sale of land. The appellant argued that the disallowance was unjustified, and the assessing officer had erred in not allowing the claimed amount. However, the Tribunal did not provide a detailed analysis or ruling on this specific issue in the judgment.

4. Lastly, the appellant raised a concern about the violation of principles of natural justice in the assessment order. The Tribunal did not delve into this issue in detail in the judgment, but it was mentioned as one of the grounds raised by the appellant. The Tribunal ultimately allowed the appeal in favor of the assessee, quashing the assessment order due to lack of incriminating material and deleting the additions made under section 68 on merits.