TaxTMI 
TaxTMI 
2019 (5) TMI 406
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....nt framed u/s 153A even when the assessment proceedings for the year under consideration has not abated and no incriminating material relating to the same was found in search. 2. The assessee craves to amend, alter and modify any of the grounds of appeal. 3. The appropriate cost be awarded to be assessee." 2. The assessee has raised issue of validity of addition made by the AO in the assessment framed U/s 153A of the Act. Since, this issue goes to the route of the matter therefore, we first take up the issue of validity/sustainability of the addition made by the AO in the assessment framed U/s 153A of the Act. There was a search and seizure action carried out at the residential and business premises of the assessee group on 10.10.2014. Subsequently the AO issued noticed U/s 153A of the Act on 22.12.2014. In response to the notice U/s 153A of the Act the assessee filed his return of income on 29.09.2010 declaring income of Rs. 1,23,12,260/- and Rs. 1,60,73,870/- for the assessment years 2010-11 & 2011-12 respectively. During the course of assessment proceedings, the AO observed that the assessee has claimed long term capital gain arising from sale of share of Rs....
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....e assessment u/s 153A are not de novo assessments since the purpose of making the reassessments under section 153A is subject to tax, hitherto undisclosed income unearthed during the course of the search. It is for this reason that the second proviso to section 153A(1) provides only for the abatement of the pending assessments. This is done to ensure that the regular assessment proceedings under the normal provisions and the assessment proceedings under section 153A are not conducted simultaneously since that would result in redundancy. Therefore, already completed assessments do not abate and they shall hold the field. It can be interfered by the AO while making the assessment u/s 153A only if some incriminating material is unearthed during the course of search or requisition of documents or undisclosed income or property is declared in the course of search which were not produced or not already disclosed or made known in the course of original assessment. The issuance of notices under section 153A(1) for all the six assessment years does not entail altogether a fresh exercise of making a fresh assessment. Hence, the completed assessment can be interfered with by the AO while maki....
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....t. It is also not in dispute that in the return of income filed U/s 139(1) of the Act the assessee declared the long term capital gain of Rs. 11,31,564/- and Rs. 8,53,677/- for the assessment years 2010-11 & 2011-12 respectively though the same was claimed as exempt U/s 10(38) of the Act. Thus, the facts emerged from the record clearly manifest that the assessee declared these transactions of purchase and sale of shares and consequential long term capital gain in the original return of income filed U/s 139(1) of the Act for these two assessment years. Since, the assessment years 2010-11 & 2011-12 were not pending as on the date of search on 10.10.2014 therefore a question arises whether the addition can be made by the AO in the proceedings U/s 153A of the Act in the absence of any incriminating material indicated such undisclosed income. At the outset, we note that the Assessing Officer in the assessment order passed U/s 153A of the Act has not made any reference to any incriminating material found or seized during the course of search and seizure action, however the addition is made based on the statement of the assessee recorded U/s 132(4) of the Act. The AO has also not disputed....
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....preme Court. The Coordinate Bench of this Tribunal in case of DCIT vs. M/s A.M. Exports (supra) while considering an identical issue has held in para 8 as under:- "8. We have considered the rival submissions as well as relevant material on record. The first aspect involved in the matter is sustainability of the addition made by the Assessing Officer without any incriminating material found or seized during the course of search and seizure action. There is no dispute that the original return of income filed by the assessee U/s 139(1) of the Act on 11/10/2010 was not pending assessment as on the date of search on 03/4/2013. Therefore, the assessment was completed U/s 143(1) and it was not abated due to the search and seizure action U/s 132 of the Act on 03/4/2013. The order of the Assessing Officer is based on the statement of the assessee recorded U/s 132(4) of the Act and specifically the question No. 77. It is pertinent to note that during the course of search and seizure action, the statement of the assessee was being recorded from 04/4/2013 to 05/4/2013 and as many as 78 questions were put to the assessee. The statement of the assessee recorded U/s 132(4) runs into abou....
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....rs Pvt. Ltd., 101, Balaram Dey Street, Gr Floor, Kolkata (iii) Rameshwar Finvest Pvt. Ltd., 101 Balaram Dey Street, Kolkata (iv) Sri Ram Tie Up Pvt. Ltd., 2, Banarashi Ghosh, 2nd Bye Lane, Kolkata (v) ________________________do _________________________ (vi) Tara Vinimay Pvt. Ltd., 101, Balaram Dey Street, G. Floor, Kolkata (vii) Victor Project Pvt. Ltd., 2 Mullick Street, Ist Floor, Kolkata (viii) Yatan Traders Pvt. Ltd., 62/1, Hriday Krishna Banerjee Lane, Howrah. In reply to the question No. 34, the assessee has clearly stated that the transaction of loan from all the parties were taken on interest in the F.Y. 2009-10 and these were repaid in the F.Y. 2011-12. Thereafter a specific question was put to the assessee regarding the loan taken from M/s Dipnarayan Vyapar Pvt. Ltd. as question No. 39 and in reply to the same, the assessee stated that the loan was taken about three years back on interest but the assessee was not able to remember the person through whom the loan was taken. Therefore, there was no ambiguity in the reply to question No. 39 except that the assessee was not able to tell the name of the person who....
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....77 which was subsequently clarified in question No. 12 of the statement recorded by the investigation Wing in the post search enquiry U/s 131 of the Act. Even otherwise, all these statements are only regarding one transaction of loan that cannot be applied to the entire transactions of loan taken from 12 parties. Therefore, except the statement of the assessee to question No. 77, which was subsequently clarified in question No. 12, there was nothing in the shape of any material or document much less incriminating material with the Assessing Officer to make the addition to the total income of the assessee. If the statement of the assessee is read in toto then there will be no admission regarding any of the loan transactions being an accommodation entry. Therefore, the question arises whether in absence of any incriminating material, the Assessing Officer can make any addition to the total income of the assessee when the assessment was not abated due to the search and seizure action. The Hon'ble Delhi High Court in the case of CIT Vs. Kabul Chawla (supra) has considered and observed in para 37 and 38 as under: 37. On a conspectus of Section 153A(1) of the Act, read with the ....
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....rthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. Conclusion 38. The present appeals concern AYs, 2002-03, 2005-06 and 2006- 07.On the date of the search the said assessments already stood completed. Since no incriminating material was unearthed during the search, no additions could have been made to the income already assessed. Thus, the Hon'ble High Court has ruled that the Assessing Officer while making the assessment U/s 153A of the Act can make the addition only on the basis of some incriminating material unearthed during the course of search or requisition of documents, which were not produced or not already disclosed or made known in the course of original assessment. In the case in hand, all the transactions were duly recorded in the books of account. Even the loans were already paid during the F.Y. 2011-12 and therefore, these transactions were disclosed and known in the course of original assessment/return of income. Hence in absence of any incriminating material....
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....ld that additions can be validly made to income forming the subject matter of completed assessments prior to the search even if no incriminating material whatsoever was unearthed during the search. 32. Recently by its order dated 6th July 2015 in ITA No. 369 of 2015 (Pr. Commissioner of Income Tax v. Kurele Paper Mills P. Ltd.), this Court declined to frame a question of law in a case where, in the absence of any incriminating material being found during the search under Section 132 of the Act, the Revenue sought to justify initiation of proceedings under Section 153A of the Act and make an addition under Section 68 of the Act on bogus share capital gain. The order of the CIT (A), affirmed by the ITAT, deleting the addition, was not interfered with." 59. In Kabul Chawla (supra), the Court referred to the decision of the Rajasthan High Court in Jai Steel (India) v. Asstt. CIT [2013] 36 taxmann.com 523/219 Taxman 223. The said part of the decision in Kabul Chawla (supra) in paras 33 and 34 reads as under: '33. The decision of the Rajasthan High Court in Jai Steel (India), Jodhpur v. ACIT (supra) involved a case where certain books of accounts and other ....
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....equisition and which would also necessarily support the interpretation that for the completed assessments, the same can be tinkered only based on the incriminating material found during the course of search or requisition of documents."' 60. In Kabul Chawla (supra), the Court also took note of the decision of the Bombay High Court in CIT v. Continental Warehousing Corpn (Nhava Sheva) Ltd. [2015] 58 taxmann.com 78/232 Taxman 270/374 ITR 645 (Bom.) which accepted the plea that if no incriminating material was found during the course of search in respect of an issue, then no additions in respect of any issue can be made to the assessment under Section 153A and 153C of the Act. The legal position was thereafter summarized in Kabul Chawla (supra) as under: "37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately prece....
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....(supra) beginning with the Gujarat High Court in Saumya Construction (P.) Ltd. (supra). There, a search and seizure operation was carried out on 7th October, 2009 and an assessment came to be framed under Section 143(3) read with Section 153A(1)(b) in determining the total income of the Assessee of Rs. 14.5 crores against declared income of Rs. 3.44 crores. The ITAT deleted the additions on the ground that it was not based on any incriminating material found during the course of the search in respect of AYs under consideration i.e., AY 2006-07. The Gujarat High Court referred to the decision in Kabul Chawla (supra), of the Rajasthan High Court in Jai Steel (India) (supra) and one earlier decision of the Gujarat High Court itself. It explained in para 15 and 16 as under: '15. On a plain reading of section 153A of the Act, it is evident that the trigger point for exercise of powers thereunder is a search under section 132 or a requisition under section 132A of the Act. Once a search or requisition is made, a mandate is cast upon the Assessing Officer to issue notice under section 153A of the Act to the person, requiring him to furnish the return of income in respect of e....
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.... as a key to the interpretation of the operative portion of the section and if there is no ambiguity in the language or if it is plain and clear, then the heading used in the section strengthens that meaning. From the heading of section 153. the intention of the Legislature is clear, viz., to provide for assessment in case of search and requisition. When the very purpose of the provision is to make assessment In case of search or requisition, it goes without saying that the assessment has to have relation to the search or requisition, in other words, the assessment should connected With something round during the search or requisition viz., incriminating material which reveals undisclosed income. Thus, while in view of the mandate of sub-section (1) of section 153A of the Act, in every case where there is a search or requisition, the Assessing Officer is obliged to issue notice to such person to furnish returns of income for the six years preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made, any addition' or disallowance can be made only on the basis of material collected during the search or requisition, in case no....
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.... this regard, this court is in complete agreement with the view adopted by the Rajasthan High Court in the case of Jai Steel (India) v. Asst. CIT (supra). Besides, as rightly pointed out by the learned counsel for the respondent, the controversy involved in the present case stands concluded by the decision of this court In the case of CIT v. Jayaben Ratilal Sorathia (supra) wherein it has been held that while it cannot be disputed that considering section 153A of the Act, the Assessing Officer can reopen and/or assess the return with respect to six preceding years ; however, there must be some incriminating material available with the Assessing Officer with respect to the sale transactions in the particular assessment year.' 62. Subsequently, in Devangi alias Rupa (supra), another Bench of the Gujarat High Court reiterated the above legal position following its earlier decision in Saumya Construction (P.) Ltd. (supra) and of this Court in Kabul Chawla (supra). As far as Karnataka High Court is concerned, it has in IBC Knowledge Park (P.) Ltd.(supra) followed the decision of this Court in Kabul Chawla (supra) and held that there had to be incriminating material qua each....
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....wn in the regular books of accounts maintained by our firms." 65. Therefore, there was a clear admission by the Assessees in Smt. Dayawanti Gupta (supra) there that they were not maintaining regular books of accounts and the transactions were not recorded therein. 66. Further, in answer to Question No. 11, the Assessee in Smt. Dayawanti Gupta (supra) was confronted with certain documents seized during the search. The answer was categorical and reads thus: "Ans:- I hereby admit that these papers also contend details of various transactions include purchase/sales/manufacturing trading of Gutkha, Supari made in cash outside Books of accounts and these are actually unaccounted transactions made by our two firms namely M/s. Asom Trading and M/s. Balaji Perfumes." 67. By contrast, there is no such statement in the present case which can be said to constitute an admission by the Assessee of a failure to record any transaction in the accounts of the Assessee for the AYs in question. On the contrary, the Assessee herein stated that, he is regularly maintaining the books of accounts. The disclosure made in the sum of Rs. 1.10 crores was only for the year o....
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....r records for long." These factors are absent in the present case. There was no justification at all for the AO to proceed on surmises and estimates without there being any incriminating material qua the AY for which he sought to make additions of franchisee commission. 70. The above distinguishing factors in Smt. Dayawanti Gupta (supra), therefore, do not detract from the settled legal position in Kabul Chawla (supra) which has been followed not only by this Court in its subsequent decisions but also by several other High Courts. 71. For all of the aforementioned reasons, the Court is of the view that the ITAT was justified in holding that the invocation of Section 153A by the Revenue for the AYs 2000-01 to 2003-04 was without any legal basis as there was no incriminating material qua each of those AYs. Conclusion 72. To conclude: (i) Question (i) is answered in the negative i.e., in favour of the Assessee and against the Revenue. It is held that in the facts and circumstances, the Revenue was not justified in invoking Section 153A of the Act against the Assessee in relation to AYs 2000-01 to AYs 2003-04? (ii) Question (ii) is answered ....
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....sments passed earlier may have to be reiterated. 23. The reliance placed by the counsel for the appellant on the case of Anil Kumar Bhatia (supra) also does not help the case of the assessee. The relevant extract of the said judgment reads as under:- "19. Under the provisions of Section 153A, as we have already noticed, the Assessing Officer is bound to issue notice to the assessee to furnish returns for each assessment year falling within the six assessment years immediately preceding the assessment year relevant to the previous year in which the search or requisition was made. Another significant feature of this Section is that the Assessing Officer is empowered to assess or reassess the "total income" of the aforesaid years. This is a significant departure from the earlier block assessment scheme in which the block assessment roped in only the undisclosed income and the regular assessment proceedings were preserved, resulting in multiple assessments. Under Section 153A, however, the Assessing Officer has been given the power to assess or reassess the 'total income' of the six assessment years in question in separate assessment orders. This means that th....
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....'total income' of the assessee in whose case a search or requisition has been initiated. Obviously there cannot be several orders for the same assessment year determining the total income of the assessee. In order to ensure this state of affairs namely, that in respect of the six assessment years preceding the assessment year relevant to the year in which the search took place there is only one determination of the total income, it has been provided in the second proviso of sub-Section (1) of Section 153A that any proceedings for assessment or reassessment of the assessee which are pending on the date of initiation of the search or making requisition "shall abate". Once those proceedings abate, the decks are cleared, for the Assessing Officer to pass assessment orders for each of those six years determining the total income of the assessee which would include both the income declared in the returns, if any, furnished by the assessee as well as the undisclosed income, if any, unearthed during the search or requisition. The position thus emerging is that the search is initiated or requisition is made, they will abate making way for the Assessing Officer to determine the total....
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...., expenditure or deduction de hors the incriminating material, while making assessment under Section 153A of the Act is also not borne out from the scheme of the said provision which as noticed above is essentially in context of search and/or requisition. The provisions of Sections 153A to 153C cannot be interpreted to be a further innings for the AO and/or assessee beyond provisions of Sections 139 (return of income), 139(5) (revised return of income), 147 (income escaping assessment) and 263 (revision of orders) of the Act. 26. The plea raised on behalf of the assessee that as the first proviso provides for assessment or reassessment of the total income in respect of each assessment year falling within the six assessment years, is merely reading the said provision in isolation and not in the context of the entire section. The words 'assess' or 'reassess' have been used at more than one place in the Section and a harmonious construction of the entire provision would lead to an irresistible conclusion that the word 'assess' has been used in the context of an abated proceedings and reassess has been used for completed assessment proceedings, which wo....
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....provision, which is intricately linked with search and requisition under Sections 132 and 132A of the Act, it is apparent that: (a) The assessments or reassessments, which stand abated in terms of II proviso to Section 153A of the Act, the AO acts under his original jurisdiction, for which, assessments have to be made; (b) Regarding other cases, the addition to the income that has already been assessed, the assessment will be made on the basis of incriminating material and just In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or 13 D.B. INCOME TAX APPEAL NO.53/2011 Jai Steel (India), Jodhpur vs. Assistant Commissioner of income Tax, Jodhpur (Along with other 16 similar matters) reassessment can be made." 7.5 Similar view point was expressed by the Hon'ble Delhi High court in the case of Kabul Chawla vs. ACIT 380 ITR 573 (Del HC). The relevant observation of Hon'ble court could be seen in para 37 & 38 of order, same is reproduced below: Para 37. On a conspectus of Section 153A (1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned dec....
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....rty discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. Conclusion 38. The present appeals concern AYs, 2002-03, 2005-06 and 2006-07.0n the date of the search the said assessments already stood completed. Since no incriminating material was unearthed during the search, no additions could have been made to the income already assessed. 7.6 The issue of additions made by the AO while framing the assessment u/s 143(3)/153A, if no incriminating material is found during the course of search was considered by Hon'ble Gujarat High court in the case of Soumya construction PL Vs CIT 387 ITR 529. In its order dated 14/03/2016 Hon'ble court has categorically stated that, in cases of completed assessment, if no incriminating material is found then no additions can be made in the assessment framed u/s 153A of the act. The relevant para no. 18 8s 19 of the court order can be referred to. Similar view of also taken in the following judgments, including by Hon'ble Jaipur ITAT Hon'ble ITAT Jaipur in many cases: a. Continental warehousing Corporation 374 ITR 645 ....
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....O that receipt of Rs. 2 lacs recorded on Pg 183 of Annexure A-24 is the unaccounted receipt of the assessee. 2.1 The Ld. CIT(A) has further erred on facts and in law in applying the n.p. rate of last year, i.e. 13.28% on the alleged unaccounted receipt of Rs. 2 lacs as against n.p. rate of 3.92% declared by the assessee and thereby confirming the addition of Rs. 26,560/-. 3. The Ld. CIT(A) has erred on facts and in law in upholding the finding of AO that amount of Rs. 6,32,171/-, being the difference between the amount of Rs. 1,73,72,171/- noted on Pg 2 to 12 of Annexure A-2 and the amount of Rs. 1,67,00,000/- already surrendered by the assessee in the return is the unaccounted expenditure of the assessee. 3.1 The Ld. CIT(A) has further erred on facts and in law in applying the n.p. rate of last year, i.e. 13.28% on the alleged unaccounted expenditure of Rs. 6,32,171/- as against n.p. rate of 3.92% declared by the assessee and thereby confirming the addition of Rs. 83,952/-. He has further erred in confirming the addition by not accepting the contention of assessee that no separate addition is called for as it is covered by the extra income offered in res....
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.... has recorded each and every transaction mentioned at Pages 29-40 of Annexure A-1 and Pages 15-24 of Annexure A-5 in the regular books of accounts. In fact, the assessee prepared separate imprest account of these annexures in the regular cash book which records all these transactions. Copy of the imprest account is enclosed at PB 39- 43. In assessment proceedings, assessee filed statement explaining each and every entry of cash and bank and the purpose of the same. The AO accepted the bank transaction but ignored the cash transaction simply by stating that the same is not recorded which is factually incorrect. The Ld. CIT(A) taxed the peak for incoming cash Rs. 7,14,920/- by incorrectly holding that assessee could not identify each and every transaction from these seized papers. While holding so, the Ld. CIT(A) has not pointed out any specific transaction which has not been explained by assessee. Hence, when all these transactions are duly recorded in the regular books, separate addition for the same is uncalled for and be deleted. The ld. AR further pointed out that assessee has separately offered a sum of Rs. 1,35,00,000/- on the basis of annexure A-2. The peak of annexure A-2 wa....
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....assessee to cover any irregularity in the claim in the books of accounts. Hence, the disallowance made by the AO which are restricted by the ld. CIT(A) is very well covered by the said amount of Rs. 93,00,000/- when the AO has not pointed out any other irregularity or discrepancy in respect of any other year cover under the search to consume or utilize the said sundry amount of Rs. 93,00,000/- surrendered by the assessee. Accordingly, the addition restricted by the ld. CIT(A) is not sustainable when the assessee has already surrendered extra amount of Rs. 93,00,000/- to cover such irregularity. 12. Ground no. 2 is regarding the addition of Rs. 2,00,000/- on account of receipt recorded at page 183 of Annexure A-24 treating as unaccounted receipt of the assessee which was restricted by the ld. CIT(A) by applying N.P. rate of 13.28% on the said amount which comes to Rs. 26,560/-. 13. Before us, the ld. AR of the assessee has submitted that the assessee may point out that this is the imprest account maintained by employee of the company who kept these details for making day to day payment for various sites. On these dates the assessee is having sufficient funds as per the cash bo....
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....ssessee has separately offered a sum of Rs. 1,35,00,000/- on the basis of annexure A-2. The peak of annexure A-2 was only Rs. 90,35,400/-. However, the assessee offered Rs. 1,35,00,000/- to cover the discrepancies in other annexures. The difference as per various papers of in this regard is only Rs. 6,32,171/- which is covered by the extra income offered in respect of annexure A-2. Hence no separate addition in respect of these papers is called for. It is further submitted that assessee has offered an income of Rs. 2,80,00,000/- as per Annexure A- 2 which includes Rs. 93,00,000/- on account of miscellaneous surrender. Therefore, no separate addition of Rs. 7,14,920/-should be made as the same is covered by the disclosure already made by the assessee. 18. On the other hand, the ld. DR has relied upon the orders of the authorities below. 19. We have considered the rival submissions as well as the relevant material on record. The assessee in the statement recorded U/s 132(4) of the Act has made surrendered of Rs. 1,67,00,000/- on account of unaccounted expenditure of the assessee. During the course of the assessment proceedings, the AO noted that the actual account of expenditur....
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....µà¤°à¥à¤£à¤¿à¤¤ सà¤à¥€ कमà¥à¤ªà¤¨à¤¿à¤¯à¤¾à¤‚ आपके समà¥à¤ªà¤°à¥à¤• में कैसे आयी विवरण दे। उतà¥à¤¤à¤°â€” मेरी फरà¥à¤® दà¥à¤µà¤¾à¤°à¤¾ जयपà¥à¤° à¤à¤µà¤‚ जयपà¥à¤° के बाहर मैं जहां से à¤à¥€ वà¥à¤¯à¤¾à¤ªà¤¾à¤° के लिठमà¥à¤à¥‡ करà¥à¤œà¤¾ पà¥à¤°à¤¾à¤ªà¥à¤¤ हà¥à¤† मैंने लिया तथा लोटाया à¤à¤µà¤‚ गत वरà¥à¤·à¥‹à¤‚ में इनसे मेरा समà¥à¤ªà¤°à¥à¤• कैसे पà¥à¤°. 36 र....
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....¥‡ किस वà¥à¤¯à¤•à¥à¤¤à¤¿ के माधà¥à¤¯à¤® से पैसा उधार लिया था अà¤à¥€ मà¥à¤à¥‡ याद नहीं आ रहा है। इस समà¥à¤¬à¤¨à¥à¤§ में जानकारी पà¥à¤°à¤¾à¤ªà¥à¤¤ कर मैं आपको बता दूंगा। Document 3 पà¥à¤°.77 हमने पà¥à¤°à¤¶à¥à¤¨ सं. 39 में A.M. Exports à¤à¤µà¤‚ Dipnarayan वà¥à¤¯à¤¾à¤ªà¤¾à¤° के तंदेंबजपवदे के बारे में पूछा तो आपने अधूरी जानकारी दी थ....
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....¾ ठà¤à¤® à¤à¤•à¥à¤¸à¤ªà¥‹à¤°à¥à¤Ÿ की लेखा पà¥à¤¸à¥à¤¤à¤•à¥‹à¤‚ में दिनांक 01.04.11 से दिनांक 31.03.12 की अवधि का लेजर है। मैं आपको तलाशी à¤à¤µà¤‚ जबà¥à¤¤à¥€ की कारà¥à¤¯à¤µà¤¾à¤¹à¥€ के दौरान आपके सशपथ दरà¥à¤œ बयान का पà¥à¤°à¤¶à¥à¤¨ संखà¥à¤¯à¤¾ 77 दिखा रहा हूठजिसके उतà¥à¤¤à¤° में आपने कहा था कि ....... "जी हां मेरे को दो दि....
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