2024 (2) TMI 401 - HC - Income Tax

Assessment under Section 153A cannot be reopened without incriminating material found during search operation

Shyam Sunder Jindal Versus Assistant Commissioner of Income Tax

Delhi HC held that assessment under Section 153A cannot be reopened without incriminating material found during search. Revenue attempted to reopen ... Assessment u/s 153A - completed assessment to be reopened only if incriminating material is found during the course of search - addition made based on the AO’s view that the appellant/assessee has undisclosed deposits with a foreign bank i.e., HSBC Bank, Geneva - HELD THAT:- What emerges is that the respondent/revenue did not secure any incriminating material qua the appellant/assessee in the course of search that was carried out on 14.11.2011. The material that it had in its possession pertained to the period before the date of search. As regards the stand of the respondent/revenue, that the appellant/assessee had refused to sign the consent form, Appellant submits that the consent form was framed in such a manner that if the appellant/assessee were to sign the form, he would end up incriminating himself even when position taken by him was that he did not maintain a bank account with the Geneva branch of HSBC Bank. In support of this plea, our attention has been drawn to the consent form which the appellant/assessee was called upon to execute. Inter alia, the consent form required the appellant /assessee to furnish the account number(s), master particulars, name(s) of account holders, name(s) of the beneficial owner(s)/settlor(s)/beneficiaries, and if the account was held through an entity, whether he had the necessary legal authority to grant access qua the subject account. Given that the appellant/assessee has denied the ownership of the subject account and the respondent/revenue has not been able to place before the court reliable material which would have us believe that the appellant’s/assessee’s stand was not correct, we are of the view that the question of law framed in the matter would have to be answered in favour of the appellant/assessee and against the respondent/revenue. The absence of incriminating material has persuaded us to take this view. As indicated hereinabove, no incriminating material, even according to the respondent/revenue, was found during the search. The material on which the respondent/revenue relied on was not of a quality that would persuade us to hold that the stand taken by the appellant/assessee, which is, that he did not maintain an account with the Geneva branch of HSBC Bank, was incorrect. Given the conclusion that we have arrived at and the position of law enunciated in the judgments referred to hereinabove, i.e., Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] and Abhishar Buildwell P. Ltd [2023 (4) TMI 1056 - SUPREME COURT] that a completed assessment can be reopened only if incriminating material is found during the course of search under Section 132 of the Income-tax Act, 1961, the question of law is answered in favour of the appellant/assessee and against the respondent/ revenue. Issues Involved:1. Whether the ITAT erred in setting aside sums brought to tax by the AO under Section 153A.2. Whether the Tribunal was correct in holding that penalty could not be levied under Section 271(l)(b) of the Income Tax Act.Issue 1: Error in Setting Aside Sums Under Section 153AOn 13.11.2017, the court framed the question of law regarding whether the ITAT erred in setting aside sums brought to tax by the AO under Section 153A. The central issue raised was whether any incriminating material was found during the search on 14.11.2011. The appellant/assessee argued that no incriminating material was found, relying on the judgments in CIT v. Kabul Chawla and PCIT v. Abhishar Buildwell P. Ltd. The respondent/revenue initially claimed incriminating material was found but failed to file the required affidavit to support this claim. The court noted that the information used for the addition was available before the search and no physical incriminating material was found during the search. The court concluded that the absence of incriminating material meant the ITAT did not err in setting aside the sums brought to tax under Section 153A.Issue 2: Penalty Under Section 271(l)(b)The court framed the question of law regarding whether the Tribunal was correct in holding that penalty could not be levied under Section 271(l)(b). The court did not provide detailed reasoning on this issue but implicitly resolved it in favor of the appellant/assessee by setting aside the impugned order and deleting the addition.ConclusionThe court answered the questions of law in favor of the appellant/assessee and against the respondent/revenue. The impugned order dated 10.04.2017 passed by the Tribunal was set aside, and the impugned addition was deleted. The Registry was directed to scan and upload the affidavit dated 13.12.2023 for record purposes.