2015 (1) TMI 1015 - AT - Income Tax

Tribunal dismisses Department's appeals for 2003-08, upholds CIT(A)'s decision. Assessee's appeal allowed for 2009.

The Tribunal dismissed the Department's appeals for the assessment years 2003-04 to 2008-09, upholding the CIT(A)'s deletion of additions due to the ... Assumption of jurisdiction u/s 153A by AO - addition to income - CIT(A) deleted additions - Held that:- The Department has failed to bring any material on record to show that additions made were on the basis of any incriminating material. On the contrary, it is evident on record, in the search assessment, AO has revisited the issues which were subject matter of original assessments. Even, assuming that AO has proceeded u/s 153C, we need to observe, neither the assessment order nor any other material placed before us could indicate that any valuable article, thing, document etc., belonging to assessee was found as a result of search to enable the AO to initiate proceeding even u/s 153C of the Act. Thus, the conditions of neither section 153A nor section 153C are satisfied. That being the case, proceeding could not have been initiated against the assessee either u/s 153A or u/s 153C of the Act. In the aforesaid view of the matter, we do not find any reason to interfere with the order of ld. CIT(A) in holding that AO could not have made the additions. - Decided in fvaour of assessee. Disallowance of general expenses of ₹ 34,000 - power of CIT(A) to set aside the issue to AOHeld that:- d. CIT(A) in principle, having held that expenditure incurred towards gift items is allowable as business expenditure should have deleted the addition. In the aforesaid facts and circumstances, we consider it appropriate to delete the addition of ₹ 34,000. - Decided in favour of assessee. Issues Involved:1. Validity of additions made by the Assessing Officer (AO) under Section 153A of the Income-tax Act.2. Jurisdiction of the AO to initiate proceedings under Section 153A without a search operation under Section 132.3. The necessity of incriminating material for additions under Section 153A.4. Disallowance of general expenses claimed by the assessee.Detailed Analysis:1. Validity of Additions Made by AO under Section 153A:The primary issue addressed was the validity of additions made by the AO under Section 153A. The AO had initiated proceedings under Section 153A following a search and seizure operation under Section 132 against a related entity, M/s Midwest Granite (P) Ltd. The AO made several additions to the assessee's income for the assessment years 2003-04 to 2008-09. However, the CIT(A) deleted these additions, citing the absence of incriminating materials.2. Jurisdiction of AO to Initiate Proceedings under Section 153A Without a Search Operation under Section 132:The Tribunal noted that the AO could only initiate proceedings under Section 153A if a search operation under Section 132 had been conducted. It was clarified that no such search operation was conducted against the assessee, only a survey under Section 133A. Consequently, the Tribunal held that the AO's assumption of jurisdiction under Section 153A was invalid, rendering the assessment orders ab-initio-void.3. Necessity of Incriminating Material for Additions under Section 153A:The Tribunal upheld the CIT(A)'s decision that for the assessment years in question, the AO could only make additions based on incriminating material found during the search. The Tribunal referenced multiple judicial decisions, including the Special Bench decision in All Cargo Global Logistics, which held that additions under Section 153A should be based on incriminating material. Since no such material was found, the Tribunal dismissed the Department's appeals.4. Disallowance of General Expenses Claimed by the Assessee:For the assessment year 2009-10, the AO disallowed an amount of Rs. 34,000 claimed by the assessee as general expenses towards gifts. The CIT(A) directed the AO to verify the details of the expenses and allow them if they were related to business. The Tribunal, however, held that the CIT(A), having accepted that the expenditure on gifts was a business expense, should have deleted the addition outright. Consequently, the Tribunal deleted the addition of Rs. 34,000.Conclusion:The Tribunal dismissed the Department's appeals for the assessment years 2003-04 to 2008-09, upholding the CIT(A)'s deletion of additions due to the absence of incriminating material and invalid jurisdiction under Section 153A. The Tribunal also allowed the assessee's appeal for the assessment year 2009-10, deleting the disallowance of Rs. 34,000 towards general expenses.