2021 (10) TMI 28 - AT - Income Tax

Tribunal partially allows appeal under Income Tax Act, quashes assessment order

Ms. Anshu Gupta Versus ACIT, Circle-3, Noida.

The Tribunal partly allowed the appeal, quashing the assessment order under section 153A/143(3) of the Income Tax Act, 1961, as it did not meet legal ... Validity of assessment u/s 153A - as stated assessment for Assessment Year 2011-12 was completed u/s 153A which is beyond the purview of section 153A/153C of the Act as the date of search was 15.09.2009 - curable defect u/s 292B - HELD THAT:- From the assessment order, it is clear that same has been framed u/s 153A r.w.s 143(3) of the Act. It is also evident from the assessment order that it speaks of search and seizure operation was carried out on 15.09.2009. It further states that the assessment order was passed in the prior approval of Ld. Addl. CIT, Central Range, Meerut within the meaning of section 153D of the Act vide F.No. Addl.CIT/CR/MRT/S&S/153D2011-12/681 dated 29.12.2011. These facts are not disputed by the Revenue. AO has consciously made assessment u/s 153A of the Act and on the basis of alleged statement recorded during the search. Therefore, it cannot be construed that recordings of such facts is by mistake. Therefore, the impugned assessment order do not satisfy the test of law, the same deserves to be quashed. We, therefore, hereby quash the impugned assessment order. Thus, Ground No.1 raised by the assessee is allowed. Issues:1. Legality of assessment order under section 153A/143(3) of the Income Tax Act, 1961.2. Confirmation of trading addition on account of difference of stock based on statement of third person under section 132(4) without evidentiary value.3. Consideration of submission that there was no difference in stock due to incomplete books at the time of search.4. Request for adding, amending, or altering grounds of appeal.Issue 1: Legality of Assessment Order under Section 153A/143(3) of the Income Tax Act, 1961:The appeal challenged the assessment order under section 153A/143(3) of the Income Tax Act, 1961, arguing it was void ab-initio and should be quashed. The Assessing Officer made an addition to the income based on a statement made by a third person during a search operation. The CIT(A) dismissed the appeal, stating no objection was raised regarding the assessment being framed under section 153A of the Act during the assessment stage. The Tribunal found that the assessment order was framed under section 153A, not 143(3), and quashed the order, as it did not satisfy the legal test.Issue 2: Confirmation of Trading Addition Based on Statement of Third Person:The Assessing Officer added an amount to the income based on a statement made by a third person during a search operation, alleging a difference in stock. The CIT(A) upheld this addition without considering the assessee's submission that there was no actual difference in stock, attributing it to incomplete books at the time of search. However, since the assessment order was quashed, this issue became of academic interest and was not adjudicated upon by the Tribunal.Issue 3: Consideration of Submission Regarding Incomplete Books at the Time of Search:The assessee contended that the alleged difference in stock was due to incomplete books at the time of the search, and there was no actual discrepancy. The CIT(A) did not consider this submission while upholding the trading addition. However, as the assessment order was quashed by the Tribunal, this issue was not further addressed.Issue 4: Request for Adding, Amending, or Altering Grounds of Appeal:The appeal included a general request for the indulgence to add, amend, or alter any grounds of appeal before or at the time of the hearing. The Tribunal noted this request but did not provide a separate adjudication, as it was considered a general nature issue.In conclusion, the Tribunal partly allowed the appeal, quashing the assessment order under section 153A/143(3) of the Income Tax Act, 1961, based on the finding that it did not meet the legal requirements. The issues related to the trading addition and the consideration of submissions regarding stock differences were not further addressed due to the quashing of the assessment order.