2017 (8) TMI 1583 - AT - Income Tax

Tribunal dismisses Revenue's appeals for lack of incriminating material; emphasizes need for corroborative evidence.

DCIT, Central Circle-3 (4), Kolkata Versus M/s Warren Tea Limited.

The Tribunal dismissed Revenue's appeals for the assessment years 2005-06 to 2009-10 due to the absence of incriminating material found during the search. ... Assessment u/s 153A - HELD THAT:- In the absence of any incriminating materials, the concluded assessment need to be reiterated and in the assessee’s cases before us from a perusal of the above chart, it is clear that on the date of search i.e. on 27.01.2011, assessments pertaining to A.Y. 2005-06, 2006-07, 2008-09 and 2009-10 were not pending before the AO and the last date for issuance of Section 143(2) notice for scrutiny had elapsed. Therefore, it can be safely assumed that these assessments were not pending before the AO and as per the ratio laid by the Hon’ble High Court’s these assessments are concluded assessments, which cannot be tinkered with and fresh additions cannot be made without direct nexus to the incriminating materials seized during search. Therefore, no addition without incriminating materials ought to have been saddled on the assessee for A.Y. 2005-06, 2006-07, 2007-08, 2008-09 and 2009-10 and so we allow the appeal of the assessee on the legal issue raised and direct deletion of the addition/disallowances made in these assessment years. Nature of expenditure - revenue or capital expenditure - Addition on account of Transport expenses - HELD THAT:- We are of the view that addition made by AO was based on guess work and without bringing any cogent material on record. Therefore, we are of the view that the ITO in estimating the expenses on transportation, did not act on any material but acted on pure guess and suspicion and hence, we confirm the order passed by ld CIT(A). Addition on account of purchase of organic manures - HELD THAT:- We are of the view that AO had made addition on account of supplies of goods by Asia Udyog and P.M. Traders based on statement recorded, which was, later on retracted. During the course of hearing, the books of accounts, bills, Vouchers, and other details were submitted and the AO did not find any mistake. Details of other parties who supplied the organic manures to the assessee were also submitted before the AO and the AO accepted them. We are of the view that the said additions are purely on guess and surmise and ld CIT(A) had rightly deleted the addition, therefore, we confirm the order passed by ld CIT(A). Disallowance u/s 14A - HELD THAT:- CIT(A) noted that AO has not computed the disallowance as per the judgment of jurisdictional Tribunal in REI Agro Ltd. Vs. DCIT [2013 (5) TMI 582 - ITAT KOLKATA] wherein it was held that for making disallowance U/s 14A read with Rule 8D in respect of income which is exempted and does not form part of the total income, the only investment which has given rise to the exempted income should be taken into consideration confirmed by HC [2013 (12) TMI 1517 - CALCUTTA HIGH COURT] Hence there is no any infirmity in the order passed by the CIT(A), therefore, we conform the order of CIT(A). Addition on account of capital expenditure - HELD THAT:- We are of the view that during the assessment proceedings the assessee has produced books of accounts, bills, Vouchers, documents and bank statements to prove the genuineness of the transactions. The AO did not find any error and mistake in these books of accounts, bills, vouchers, documents and bank statements. The AO has not rejected the books of accounts also. Additions made by AO based of the statements recorded during the search and survey does not have evidentiary value unless it is supported by corroborative evidences. Therefore, we are of the view that the order passed by the CIT(A) does not contain any infirmity, hence we confirm the order passed by the CIT(A). Bogus purchases - main allegation of the Revenue in this ground is that no store register or store ledger was found at respective gardens which could establish that the goods sent from the head office as per bills or the material required to accomplish the work - HELD THAT:- We are of the view that since the assessee has produced all books of accounts and stock register is part of books of accounts and AO had failed to bring any mistake on the record. Besides, in this order we have treated all the purchases of the assessee, as genuine. Addition on account of labour charges for spray work - HELD THAT:- Since the assessee has produced all books of accounts and stock register is part of books of accounts and AO had failed to bring any mistake on the record. Besides, in this order we have treated all the purchases of the assessee, as genuine. Issues Involved:1. Delay in filing cross objections.2. Legal issue of additions based on incriminating materials found during search.3. Addition on account of transport expenses.4. Addition on account of purchase of organic manures.5. Addition on account of revenue and capital expenditure.6. Disallowance under Section 14A.7. General allegations regarding the absence of store registers.Detailed Analysis:1. Delay in Filing Cross Objections:The assessee reported a delay of 498 days in filing the cross objections due to the accountant's mistake, who thought there was no demand left after the CIT(A)'s order. The Tribunal found this reason sufficient and condoned the delay, admitting the cross objections for hearing.2. Legal Issue of Additions Based on Incriminating Materials:The primary legal issue was whether additions could be made for non-pending/unabated assessments on the date of search only based on incriminating materials found during the search under Section 153A of the Income Tax Act. The Tribunal noted that the assessments for the years 2005-06 to 2009-10 were not pending on the date of the search and, therefore, could not be reopened without incriminating material. The Tribunal relied on various judgments, including the Delhi High Court's decision in CIT vs. Kabul Chawla and the Calcutta High Court's decision in CIT vs. Veerprabhu Marketing Ltd., which held that completed assessments could only be interfered with if incriminating material was found during the search.3. Addition on Account of Transport Expenses:The AO made additions based on statements recorded during the search, which were later retracted. The CIT(A) observed that the statements were not corroborated by any evidence and that the assessee had produced all necessary documents to substantiate the expenses. The Tribunal upheld the CIT(A)'s decision, noting that the AO's addition was based on guesswork and suspicion without any material evidence.4. Addition on Account of Purchase of Organic Manures:The AO disallowed purchases from M/s Asia Udyog and M/s P.M. Traders based on retracted statements. The CIT(A) deleted the additions, noting that the assessee had produced all relevant documents, and the AO did not find any discrepancies. The Tribunal upheld the CIT(A)'s decision, emphasizing that additions based on retracted statements without corroborative evidence were not sustainable.5. Addition on Account of Revenue and Capital Expenditure:The AO disallowed expenses based on statements from suppliers, which were later retracted. The CIT(A) deleted the additions, stating that the AO did not find any discrepancies in the books of accounts, bills, and vouchers produced by the assessee. The Tribunal upheld the CIT(A)'s decision, reiterating that retracted statements without corroborative evidence could not be the basis for additions.6. Disallowance under Section 14A:The AO made a disallowance under Section 14A, which the CIT(A) restricted based on the jurisdictional Tribunal's decision in REI Agro Ltd. vs. DCIT. The Tribunal upheld the CIT(A)'s decision, noting that the disallowance should be computed by considering only those investments that yielded exempt income.7. General Allegations Regarding the Absence of Store Registers:The Revenue alleged that the absence of store registers indicated that the goods were not received. The Tribunal dismissed this ground, noting that the assessee had produced all books of accounts, and the AO did not find any discrepancies.Conclusion:The Tribunal dismissed the Revenue's appeals for the assessment years 2005-06 to 2009-10, as no incriminating material was found during the search. For the assessment years 2010-11 and 2011-12, the Tribunal upheld the CIT(A)'s decision to delete the additions, as the AO's conclusions were based on retracted statements without corroborative evidence. The Tribunal emphasized the importance of corroborative evidence when relying on statements recorded during search and survey operations.