2021 (10) TMI 111 - AT - Income Tax

Revision u/s 263 by CIT - Assessment u/s 153A - whether AO had rightly not made any addition in the assessment year under consideration AY 2014-15 which is an unabated assessment year? - HELD THAT - Revision u/s. 263 of the Act has to be made within the well defined limits subject to satisfaction of preconditions - when an assessment is completed before the search (unabated assessment) then addition/disallowance can be made only to the extent of undisclosed income which is found during the course of search with reference to valuable, article or things found or documents seized during the search which are not disclosed in the original assessment. In unabated assessment years, items of regular assessment cannot be added back in the proceedings u/s. 153A of the Act when no incriminating materials were found in respect of the fault/issue pointed out by the Ld. Pr. CIT. Except that of abated assessment years, a search assessment u/s. 153A of the Act should be evidence based of undisclosed income, therefore, we are of the view that assessment order passed by the AO u/s. 153A/143(3) dated 29.03.2016 is neither erroneous nor prejudicial to the interest of the revenue and therefore, Ld. Pr. CIT erred in exercising his revisional jurisdiction u/s. 263 and therefore, we are of the view that he invoked revisional jurisdiction without satisfying the essential pre-condition as stipulated in sec. 263 - Decided in favour of assessee.

Summary

Issues Involved:
1. Whether the Principal Commissioner of Income Tax (PCIT) had validly invoked revisional jurisdiction under Section 263 of the Income Tax Act, 1961.
2. Whether the order of the Assessing Officer (AO) was erroneous and prejudicial to the interest of the revenue in the context of Section 153A of the Act.
3. The applicability of the requirement of incriminating material for making additions under Section 153A in an unabated assessment year.

Issue-Wise Detailed Analysis:

1. Validity of PCIT's Revisional Jurisdiction under Section 263:
The Assessee challenged the invocation of Section 263 by the PCIT, arguing that the conditions precedent for invoking this jurisdiction were not satisfied. Specifically, the Assessee contended that the AO's order was neither erroneous nor prejudicial to the interest of the revenue. The Tribunal referred to the Supreme Court’s decision in Malabar Industries Ltd. vs. CIT, which established that for Section 263 to be invoked, the order must be erroneous and prejudicial to the revenue. The Tribunal concluded that since the AO had followed the settled legal position that no additions could be made in an unabated assessment year without incriminating material, the PCIT's invocation of Section 263 was without jurisdiction and thus invalid.

2. Erroneous and Prejudicial to the Interest of Revenue:
The Tribunal examined whether the AO's order was erroneous and prejudicial to the interest of the revenue. The AO had completed the original assessment under Section 143(3) and later reiterated the same in the assessment under Section 153A, as no incriminating material was found during the search. The Tribunal emphasized that an order is erroneous if it is based on incorrect facts, incorrect application of law, or if it violates principles of natural justice. However, in this case, the AO had adhered to the legal requirement that no additions could be made in an unabated assessment year without incriminating material. Therefore, the AO's order could not be considered erroneous or prejudicial to the revenue.

3. Requirement of Incriminating Material under Section 153A:
The Tribunal highlighted that for an unabated assessment year, additions under Section 153A can only be made based on incriminating material found during the search. This principle was supported by several judicial precedents, including the Delhi High Court in CIT vs. Kabul Chawla and the Calcutta High Court in CIT vs. Veerprabhu Marketing Ltd. The Tribunal noted that the AO had correctly followed this principle by not making any additions in the absence of incriminating material. The PCIT's argument that the statute does not impose such a condition was rejected, as the legal position requiring incriminating material for additions in unabated assessments was well-settled.

Conclusion:
The Tribunal concluded that the PCIT's invocation of Section 263 was invalid as the AO's order was neither erroneous nor prejudicial to the interest of the revenue. The AO had correctly followed the legal requirement that no additions could be made in an unabated assessment year without incriminating material. Therefore, the appeal of the Assessee was allowed, and the order of the PCIT was quashed.