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2022 (6) TMI 147 - AT - Income TaxAssessment u/s 153A - addition u/s 68 - As argued by assessee since no incriminating material had been found during the course of search with respect to sale of property, the impugned addition could not have been made - HELD THAT - We note that the AO has not mentioned any incriminating material relating to this impugned transaction in the assessment order and when the issue was raised by the assessee before the Ld. First Appellate Authority, he dismissed the same in para 5.3 of the order in which he has placed reliance on the judgment of the Hon'ble Kerala High Court in the case of CIT Vs. K.P. Ummer 2019 (3) TMI 225 - KERALA HIGH COURT as well as Raj Kumar Arora 2014 (10) TMI 255 - ALLAHABAD HIGH COURT However, we note that apart from the judgments cited by the Ld. CIT(A) in the impugned order and also relied upon by the Ld. Sr. DR, there are numerous judgments of other Hon'ble High Courts which are in favour of the assessee on the issue as to whether in the case of assessments framed u/s. 153A of the Act, addition could be made in absence of any incriminating material in those years where no assessment proceedings were pending and assessment had been made u/s. 143(1)/143 - See Malabuilders Private Limited In absence of any incriminating material found during the course of search with respect to the impugned transaction, the AO did not have any power to make the impugned addition. We set aside the order of the Ld. CIT(A) and direct the AO to delete the addition. - Decided in favour of assessee.
Issues Involved:
1. Justification of addition of Rs. 70,00,000 as capital receipts. 2. Justification of addition under Section 69A of the Income Tax Act. 3. Legitimacy of initiation of proceedings under Section 153A and subsequent addition in the absence of incriminating material. 4. Nature of the document seized and its classification as incriminating evidence. Detailed Analysis: 1. Justification of Addition of Rs. 70,00,000 as Capital Receipts: The assessee received Rs. 70 lacs as an advance for the sale of property from M/s. Namo Resorts Private Limited, which was forfeited due to non-fulfillment of the agreement terms. The AO added this amount under Section 68 of the Act, suspecting the transaction's genuineness and the creditworthiness of M/s. Namo Resorts Private Limited. The assessee argued that the amount was a legitimate advance for a property sale and provided supporting documents, including the agreement to sell, board resolution, and bank statements. The Tribunal noted that the assessee had adequately discharged the onus of proving the transaction's genuineness and the party's identity and creditworthiness. 2. Justification of Addition under Section 69A: The CIT(A) upheld the addition under Section 69A, which deals with unexplained money, but the assessee contested this, arguing that the amount was a capital receipt from a property sale advance. The Tribunal found that the assessee had provided sufficient documentation to explain the receipt and its forfeiture, thus challenging the CIT(A)'s justification for the addition under Section 69A. 3. Legitimacy of Initiation of Proceedings under Section 153A: The assessee contended that no incriminating material was found during the search that could justify the addition under Section 153A. The AO had based the addition on information from the assessment proceedings, not on any material found during the search. The Tribunal referred to several judicial precedents, including the Bombay High Court's ruling in CIT Vs. Murli Agro Products Ltd. and the Delhi High Court's decision in CIT Vs. Anil Kumar Bhatia, which held that additions under Section 153A should be based on incriminating material found during the search. The Tribunal concluded that in the absence of such material, the AO had no jurisdiction to make the addition. 4. Nature of the Document Seized: The CIT(A) had relied on a document seized from Nalagarh, which revealed the assessee's bank account details, classifying it as incriminating. However, the assessee argued that all the bank accounts were duly disclosed, and the document should not be considered incriminating. The Tribunal found that the seized document did not provide any new or undisclosed information that could justify the addition. Conclusion: The Tribunal allowed the assessee's appeal, holding that the AO could not make the addition in the absence of incriminating material found during the search. The Tribunal directed the AO to delete the addition of Rs. 70 lacs. The appeal was allowed, and the Tribunal did not need to adjudicate further on the merits of the addition, as the legal ground was sufficient to resolve the case.
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