2020 (3) TMI 962 - AT - Income Tax

Tax Tribunal Rules in Favor of Assessee, Dismissing Revenue's Appeal

M/s. B & M Buildcon Versus DCIT-Central Circle-1 (1), Mumbai And ACIT-Central Circle-1 (1), Mumbai Versus M/s. B & M Buildcon

M/s. B & M Buildcon Versus DCIT-Central Circle-1 (1), Mumbai And ACIT-Central Circle-1 (1), Mumbai Versus M/s. B & M Buildcon - TMI Issues Involved:1. Applicability of Section 153A for AY 2013-14.2. Incriminating material found during the search.3. Opportunity for cross-examination.4. Addition under Section 68 of the Income Tax Act.5. Disallowance of interest under Section 69C.6. Scope of assessment under Section 153A.7. Levy of interest under Section 234B.Detailed Analysis:1. Applicability of Section 153A for AY 2013-14:The assessee contended that the provisions of Section 153A were not applicable for AY 2013-14 as no incriminating material was found during the search, and the assessment for AY 2013-14 was completed with no pending proceedings as of the search date. The Tribunal noted that no incriminating material was found during the search, and the assessment had not abated. Therefore, in terms of the decision of the Hon’ble Bombay High Court in All Cargo Global Logistics Ltd. 364 ITR 645, no addition could be made under Section 153A.2. Incriminating Material Found During the Search:The assessee argued that no material was found or seized during the search that could be linked to the loans taken. The Tribunal observed that the statement of Shri Navneet Singhania was treated as incriminating material by the CIT(A). However, the Tribunal concluded that the third-party statement of Shri Navneet Singhania, recorded post-search proceedings and never confronted to the assessee, could not be considered as incriminating material.3. Opportunity for Cross-Examination:The assessee claimed that no opportunity for cross-examination was given regarding the statement of Shri Navneet Singhania. The Tribunal noted that the absence of cross-examination opportunity was a significant lapse and disregarded the statement as incriminating material.4. Addition Under Section 68 of the Income Tax Act:The assessee challenged the addition of Rs. 687 Lacs under Section 68, arguing that they had provided sufficient evidence to prove the genuineness of the loans, including confirmations from lenders, Income Tax Returns, audited financial statements, and bank statements. The Tribunal found that the assessee had demonstrated the fulfillment of primary ingredients of Section 68 and concluded that the additions were not justified.5. Disallowance of Interest Under Section 69C:The assessee contested the disallowance of interest of Rs. 67.61 Lacs under Section 69C, arguing that the interest payments were made through account payee cheques after deducting tax at source. The Tribunal, considering the deletion of the principal amount under Section 68, also deleted the consequential disallowance of interest.6. Scope of Assessment Under Section 153A:The revenue argued that the CIT(A) was incorrect in narrowing down the scope of assessment under Section 153A to only search-related income. The Tribunal, relying on the decision of the Hon’ble Bombay High Court in CIT Vs. Continental Warehousing Corporation [2015 374 ITR 645], held that the scope of Section 153A is limited to assessing only search-related income for completed assessments.7. Levy of Interest Under Section 234B:The assessee disputed the levy of interest under Section 234B amounting to Rs. 1,12,38,734/-. The Tribunal, considering the deletion of the principal addition under Section 68, directed that the interest under Section 234B be recalculated based on the revised tax liability.Conclusion:The Tribunal allowed the assessee's appeals for both AY 2013-14 and AY 2014-15, deleting the additions under Section 68 and the consequential disallowance of interest under Section 69C. The revenue's appeal for AY 2013-14 was dismissed, affirming that no addition could be made under Section 153A in the absence of incriminating material. The Tribunal emphasized the binding nature of the decision of the Hon’ble Bombay High Court in CIT Vs. Continental Warehousing Corporation [2015 374 ITR 645].