2018 (7) TMI 57 - AT - Income Tax

Tribunal dismisses Revenue's appeal due to improper initiation of proceedings and lack of evidence.

The Asst. Commissioner of Income Tax Versus M/s. Victory Accommodations Pvt. Ltd.

The Tribunal upheld the CIT(A)'s decision, dismissing the Revenue's appeal. The initiation of proceedings under section 153C was deemed improper due to ... Initiation of proceedings u/s 153C - search was conducted against the assessee-company under section 132 - documents seized belonged to the person other than the person searched - Held that:- A.O. made the addition based on books of account that the share application money have not been explained by assessee-company. Such material found in survey is not relatable to the material found during the course of search in the case of the person searched because the balance-sheet does not belong to assessment year under appeal. There is no incriminating material found during the course of search against the assessee-company so as to record any satisfaction note against the assessee-company. There is no reason to believe that A.O. of the searched person would have recorded any satisfaction note that any money, bullion, jewellery, or other valuable article or thing or books of account seized or requisitioned belongs or belonged to a person other than the person searched under section 153A. Therefore, conditions of Section 153C of the I.T. Act are not satisfied in this case. No infirmity in the order of the Ld. CIT(A) in holding that initiation of proceedings under section 153C of the I.T. Act are improper and bad in law. No interference is called for. Ground Nos. 1 and 2 of the appeal of the Revenue are accordingly dismissed. Issues Involved:1. Validity of initiation of proceedings under section 153C of the Income Tax Act.2. Requirement of recording satisfaction note by the Assessing Officer (AO) of the searched person.3. Opportunity of hearing under section 143(2) of the Income Tax Act.4. Deletion of addition of Rs. 48,00,000/- under section 68 of the Income Tax Act.Detailed Analysis:1. Validity of initiation of proceedings under section 153C:The Commissioner of Income Tax (Appeals) [CIT(A)] upheld the assessee's contention that the initiation of proceedings under section 153C was improper and bad in law. The CIT(A) noted that action under section 153C can be taken only if the AO of the searched person records satisfaction that any seized documents belong to a person other than the searched person. The AO must then hand over the documents to the AO of such other person. In this case, no such satisfaction note was recorded in the file of the searched person (Shri Pramod Goel). The satisfaction note was recorded directly in the assessee’s file, which is not valid as per the legal requirements. The CIT(A) relied on the Supreme Court's decision in Manish Maheshwari vs. ACIT and the similarity in language between sections 158BD and 153C.2. Requirement of recording satisfaction note:The CIT(A) emphasized that the recording of satisfaction by the AO of the searched person is a sine qua non for initiating action under section 153C. The satisfaction note must be recorded during the assessment proceedings of the searched person and then placed in the file of the other person. In this case, the CIT(A) found that no satisfaction note was recorded in the file of the searched person (Shri Pramod Goel), thus invalidating the section 153C proceedings against the assessee. This interpretation aligns with the Supreme Court's ruling in Manish Maheshwari and the CBDT's Circular No. 24/2015.3. Opportunity of hearing under section 143(2):The CIT(A) found merit in the assessee's grievance that no proper opportunity was provided to the assessee-company. The AO did not give sufficient time for the assessee to present its case, thereby violating the principles of natural justice.4. Deletion of addition of Rs. 48,00,000/- under section 68:On the merits of the addition, the CIT(A) noted that the AO made an addition of Rs. 48,00,000/- on account of unexplained share application money without conducting any inquiry. The assessee had submitted several documents to prove the genuineness of the share application money, including share application forms, ITR copies, PAN, board resolutions, bank statements, and more. The AO did not issue any notice under section 133(6) nor conducted any further inquiry. The CIT(A) concluded that the AO's reliance on a report from the DDIT, Kolkata, which was unrelated to the assessee, was misplaced. Therefore, the addition on merit was deleted.Conclusion:The Tribunal upheld the CIT(A)’s order, dismissing the Revenue’s appeal. The initiation of proceedings under section 153C was deemed improper and bad in law due to the lack of a valid satisfaction note in the file of the searched person. Additionally, the deletion of the addition on merit was found justified as the AO failed to conduct any independent inquiry into the documents submitted by the assessee. The Tribunal also noted that the balance sheet found during the search did not pertain to the assessment year under appeal and was not incriminating in nature. Consequently, the appeal of the Department was dismissed.