2025 (9) TMI 1247 - AT - Income Tax

Assessment under Section 153A quashed where search yielded no incriminating documents; Abhisar Buildwell ratio applied

Akshaya Vinimay Pvt. Ltd. Versus ACIT Central Circle-31, New Delhi

ITAT, Delhi held that under assessment u/s 153A no incriminating material or documents were found or seized during the search, and applying the ratio of ... Assessment u/s 153A - incriminating material as found/seized during the search or not? - HELD THAT:-By respectfully following the ratio laid down in the case of Abhisar Buildwell [2023 (4) TMI 1056 - SUPREME COURT] considering the fact that no incriminating materials/documents or any other evidence was found or seized during the course of search proceedings which resulted in addition against the Assessee, we find merit in the contention of the Assessee's Representative. Accordingly, we quash the assessment order and the impugned order of the Ld. CIT(A). ISSUES PRESENTED AND CONSIDERED 1. Whether additions made in an assessment framed under the post-search assessment provision, where no incriminating material was found/seized during the search, are sustainable. 2. Whether an assessing officer may rely solely on post-search analysis of books, balance sheet and bank statements (absent seized/incriminating material) to make additions in respect of completed/unabated assessments under the post-search assessment machinery. 3. The extent to which the powers to re-open assessments under the general re-opening provisions remain available when no incriminating material is discovered during a search. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Sustainability of additions made under post-search assessment in absence of incriminating material Legal framework: Search and seizure provisions vest powers to the Department to conduct searches under the relevant statutory search provision. Separate post-search assessment machinery permits framing of assessments for relevant years on the basis of materials seized/found during search and related investigation. Completed or unabated assessments may be reassessed only under the statutory re-opening provisions when conditions for re-opening are satisfied. Precedent Treatment: The Tribunal expressly followed the binding ratio of the controlling authoritative pronouncement of the Supreme Court which holds that, in the absence of incriminating material unearthed during search/requisition proceedings, the Assessing Officer cannot make additions in respect of completed or unabated assessments by relying on other materials discovered only in post-search analysis; re-opening of such assessments is available only under the statutory re-opening provisions subject to their conditions. Interpretation and reasoning: The Tribunal examined the assessment order and noted express admission by the Assessing Officer that the additions related to issues detected during post-search investigation and that no seized/incriminating material formed the basis of the additions. The Tribunal construed the authoritative principle to mean that the post-search/power to assess flowing from a search is contingent on the existence of incriminating material found during the search; absent such material, the AO cannot convert post-search analysis into additions for completed assessments. The Tribunal emphasised that the AO had used analysis of balance sheet and bank statements only, with no reference to any seized documents or incriminating material in the assessment order itself. Ratio vs. Obiter: The holding that additions in post-search framed assessments cannot be sustained where no incriminating material was found during the search is treated as ratio decidendi applied by the Tribunal. Conclusion: Additions made in the assessment were quashed because they were not founded on any seized or incriminating material discovered during search; the post-search analysis alone did not permit such additions in respect of the completed/unabated assessment year before the Tribunal. Issue 2 - Reliance on post-search analysis (books, balance sheet, bank statements) without seized material Legal framework: Post-search investigatory activity may involve scrutiny of books, account analysis and bank records. However, statutory jurisprudence distinguishes the legitimacy of additions founded directly on incriminating material recovered during search/requisition from additions based solely on subsequent desk analysis; the former activates the special post-search assessment power while the latter must satisfy ordinary re-opening thresholds. Precedent Treatment: The Tribunal adhered to the precedent that desk or post-search scrutiny alone cannot be the substitute for incriminating material discovered during the search to validate additions in post-search assessments; the precedent was followed rather than distinguished or overruled. Interpretation and reasoning: The Tribunal assessed the record and found the AO's additions were based exclusively on financial analysis and not on any seized document. It held that such an approach effectively circumvents the higher threshold required for re-opening completed assessments under the re-opening provisions and is therefore impermissible. The Tribunal treated the AO's own acknowledgment (in the assessment order) that the additions arose from post-search investigation as corroboration that no seized incriminating material existed to support the additions. Ratio vs. Obiter: The conclusion that analysis of books/balance sheets/bank statements alone cannot be used to make additions in post-search framed assessments (where no incriminating material was found) is applied as ratio; observations about the impropriety of circumventing re-opening provisions are consequential to the ratio. Conclusion: The Tribunal held such reliance improper and therefore the additions based solely on post-search desk analysis were unsustainable and liable to be set aside. Issue 3 - Interaction between post-search assessment powers and statutory re-opening provisions Legal framework: The law preserves the Assessing Officer's power to re-open assessments under the statutory re-opening provisions (e.g., Sections dealing with reopening), conditional upon fulfillment of specified conditions. The special post-search assessment domain is circumscribed by the need for incriminating material or requisitioned material to justify exercise of special assessment powers in respect of completed/unabated assessments. Precedent Treatment: The Tribunal relied on the authoritative judicial articulation that reserves re-opening powers for situations where incriminating material is not found in search; i.e., where incriminating material is not found, the AO must resort to the ordinary re-opening procedure and satisfy its requirements. This position was followed. Interpretation and reasoning: Applying the precedent to the facts, the Tribunal held that, because no incriminating material was seized or identified during the search, the Assessing Officer's proper recourse - if he wished to make additions based on analysis revealing possible escapement - was to invoke the statutory re-opening machinery and satisfy its conditions. The Tribunal noted that the assessment under the post-search provision cannot be used to bypass the safeguards inherent in the re-opening regime. Ratio vs. Obiter: The pronouncement that re-opening powers remain available and must be used where no incriminating material is found is treated as ratio supporting the quashing of the impugned additions; ancillary comments on procedural safeguards are explanatory. Conclusion: The Tribunal concluded that the AO could not lawfully make the impugned additions under the post-search assessment route and that any attempt to do so in the absence of seized incriminating material should be addressed, if appropriate, by initiating re-opening under the statutory provisions subject to their conditions. Disposition Applying the legal framework and controlling precedent to the factual record (specifically the absence of any seized/incriminating material and the AO's admission that additions arose from post-search analysis), the Tribunal quashed the assessment additions and the appellate order confirming them; other grounds were not adjudicated as moot in view of the quashment. The appeal was allowed in part on the stated ground.