2019 (2) TMI 1530 - AT - Income Tax

Tax Appeals Remanded for Reevaluation

The appeals were allowed, and the matter was remanded back to the file of the Commissioner of Income Tax (Appeals) for further examination concerning ... Assessment u/s 153A - absence of incriminating material found - HELD THAT:- We consider it expedient to remit the matter back to the file of the CIT(A) for examination of the legal objection so raised on behalf of the assessee on sustainability of additions/disallowances in proceedings under s.153A/153C of the Act in the alleged absence of incriminating material in the light of legal proposition set out by the Jurisdictional High Court in SAUMYA CONSTRUCTION PVT. LTD. [2016 (7) TMI 911 - GUJARAT HIGH COURT]where no assessment is stated to be pending. In the absence of assessment records and material found in the course of search, we are not in a position to opine on the issue either way. The legal issue is thus restored to the file of the CIT(A) for determination thereof in accordance with law - Appeals of the assessee are allowed for statistical purposes. Issues involved:Appeals against order of CIT(A) concerning assessment years 2009-10 & 2010-11 under s. 153A r.w.s. 143(3) of the Income Tax Act, 1961. Legal objection raised regarding additions/disallowances in absence of incriminating material found during search. Request for remitting the matter back to the file of the CIT(A) for adjudication of legal issue.Analysis:The appeals were filed by the assessee against the order of the Commissioner of Income Tax (Appeals) concerning assessment years 2009-10 & 2010-11 under s. 153A r.w.s. 143(3) of the Income Tax Act, 1961. The issues in both appeals were inter-connected and were heard together for adjudication purposes. The learned AR for the assessee raised a legal objection regarding the entire search assessment under s.153A/153C of the Act being liable to be struck down in the absence of incriminating material found during the search. Reference was made to relevant legal precedents, including decisions of the Hon'ble Gujarat High Court, to support the contention that no additions could be made in Section 153A proceedings where no incriminating evidence was found against the assessee during the search.Upon hearing the submissions, the bench found that the additional ground raised by the assessee was legal in nature and fundamental to the jurisdictional aspect of the searched assessment. Both the learned AR for the assessee and the learned DR accepted the legal assertions made and requested for the matter to be remitted back to the file of the CIT(A) for examination of the legal objection. The Tribunal considered it appropriate to remit the matter back to the CIT(A) for determining the sustainability of additions/disallowances in proceedings under s.153A/153C of the Act in the alleged absence of incriminating material, as per the legal proposition set out by the Jurisdictional High Court. The legal issue was restored to the file of the CIT(A) for further examination in accordance with the law, allowing the assessee to establish its case afresh with reference to the legal issue raised.Consequently, both appeals of the assessee were allowed for statistical purposes, and the matter was remanded back to the file of the CIT(A) for further determination. The Order was pronounced in Open Court on 31/12/2018.