2021 (5) TMI 256 - AT - Income Tax

Assessment u/s 153A - whether an addition can be made an assessment order passed u/s 153A read with section 143(3) of the Act, in the case of unabated assessment, when no incriminating material was found or seized during the course of search? - HELD THAT - It is well settled that the Assessing Officer has to confront the assessee with the material collected behind the back of the assessee, if he chooses to use the material against the assessee and that he should provide the assessee an opportunity of crossexamination. Not having done so makes the evidence in question bad in law. In this case, the assessee has furnished all the bills evidencing the purchase of shares, copies of contract notes of the brokers, copies of the bank accounts disclosing the transaction etc. The transactions that they have taken place through banking channels. Demat statements demonstrate that the transactions had taken place on the platform of NSE. STT has been paid on these transactions. This proves the genuineness of its transactions. The Assessing Officer has no evidence or adverse material to disprove these transactions. Additions cannot be made based on inferences. - Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of the assessment order under Section 153A read with Section 143(3) of the Income Tax Act, 1961.
2. Legitimacy of the addition of ?4,17,56,650/- on account of Long Term Capital Gain (LTCG) under Section 68 of the Income Tax Act, 1961.
3. Whether the addition can be made without incriminating documents found during the search and seizure operation.
4. Treatment of LTCG arising from the sale of shares as bogus.
5. Non-receipt of notice issued under Section 143(2) of the Income Tax Act, 1961.

Detailed Analysis:

1. Validity of the Assessment Order:
The assessee challenged the assessment order passed by the Assessing Officer (AO) under Section 153A read with Section 143(3) of the Income Tax Act, 1961, arguing that it was bad in law. The Tribunal examined whether the assessment order was validly passed under the said sections. The Tribunal noted that no statutory notice under Section 143(2) was issued to the assessee, thus the assessment for the year 2012-13 had not abated.

2. Legitimacy of the Addition of ?4,17,56,650/-:
The AO had made an addition of ?4,17,56,650/- under Section 68 of the Income Tax Act, 1961, treating the LTCG from the sale of shares as bogus. The Tribunal scrutinized the evidences provided by the assessee, including purchase bills, contract notes, bank statements, and Demat statements, all of which supported the genuineness of the transactions. The Tribunal found that the AO had not conducted any independent inquiries or investigations and had relied on borrowed investigation reports without confronting the assessee with the same.

3. Addition Without Incriminating Documents:
The Tribunal examined whether the addition could be made in the absence of incriminating material found during the search and seizure operation. The Tribunal referred to various High Court judgments, including CIT vs. Kabul Chawla and Principal CIT vs. Meeta Gutgutia, which held that no addition can be made in an unabated assessment under Section 153A of the Act when no incriminating material is found. The Tribunal noted that the documents relied upon by the AO were already disclosed and formed part of the official records, thus not qualifying as incriminating material.

4. Treatment of LTCG as Bogus:
The AO had treated the LTCG arising from the sale of shares as bogus, alleging that the assessee had resorted to booking bogus gains to convert black money into white. The Tribunal found that the AO's conclusions were based on statements recorded post-search, which were not confronted to the assessee, and no opportunity for cross-examination was provided. The Tribunal held that the AO had erred in treating the LTCG as bogus without any substantial evidence.

5. Non-receipt of Notice under Section 143(2):
The assessee had raised an additional ground challenging the validity of the assessment proceedings due to non-receipt of notice under Section 143(2) of the Act. The Tribunal accepted this additional ground, emphasizing that the non-issuance of the statutory notice affected the validity of the assessment proceedings.

Conclusion:
The Tribunal allowed the appeal of the assessee, holding that the addition made by the AO was bad in law. The Tribunal emphasized that the AO had failed to provide incriminating material, did not conduct independent inquiries, and did not allow the assessee to cross-examine the witnesses whose statements were used against her. The Tribunal also highlighted the necessity of following the binding judgments of the Jurisdictional High Court, which were not adhered to by the AO and the CIT(A).