ACIT, Central Circle, Panaji V. Shri Ajit Mittal, Panaji

ITA 69/PAN/2022

AI Insights

The case involves two appeals by the Revenue against Ajit Mittal concerning the assessment years 2015-16 and 2016-17. The core issue was the addition of Rs.1,35,42,906 to the assessee's income based on a disclosure made during a search and seizure operation under section 132 of the Income Tax Act. The CIT(A) deleted this addition, agreeing with the assessee's argument that in the absence of incriminating material during the search, no addition could be made for an unabated assessment year. The Tribunal dismissed the Revenue's appeals, citing the Supreme Court's ruling that no addition can be made in such circumstances under section 153A of the Act.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 136951 (ITAT-PANAJI)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 16-08-2022
• Other Referred Cases: Pr.CIT Vs. Abhisar Buildwell (P) Ltd. (2023) 454 ITR 212 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P.S. SHIVSHANKAR
• Assessee Lawyers: SHAILENDRA SINGH; SUSHEEL KHANDELWAL
• Section: 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI (AT e-Court, PUNE) BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER आयकर अपील सं. / ITA Nos.69 & 70/PAN/2022 नधा रण वष / Assessment Years : 2015-16 & 2016-17 ACIT, Central Circle, Goa Vs. Ajit Mittal, 801-802, Block-D, Adwalpalkar Shelter, Caranzalem, Panaji PAN : ACQPM5890A Appellant Respondent आदेश / ORDER PER R.S.SYAL, VP : These two appeals by the Revenue relate to the assessment years 2015-16 and 2016-17. Since a common issue is raised in these appeals, we are, therefore, proceeding to dispose them off by this consolidated order for the sake of convenience. 2. Briefly stated, the facts for the A.Y. 2015-16 are that the assessee filed his original return u/s.139(4) on 31-03-2016 declaring total income at Rs.38,29,660/-. Thereafter, a search and seizure action was taken u/s.132 upon the assessee on 24-10-2017. The Assessee by Shri Shailendra Singh & Shri Susheel Khandelwal Revenue by Shri P.S. Shivshankar Date of hearing 12-09-2023 Date of pronouncement 13-09-2023 ITA Nos.69 & 70/PAN/2022 Ajit Mittal 2 Assessing Officer (AO) completed the assessment by making an addition of Rs.1,35,42,906/- on account of disclosure made by the assessee in statement u/s.132(4) of the Act. The assessee argued before the ld. CIT(A) that it was a case of unabated assessment and in the absence of any incriminating material found during the course of search, no addition could have been made. The ld. CIT(A) called for the remand report from the AO. Vide the remand report dated 15-02-2022, as reproduced in the impugned order, the AO admitted that though the addition was made on the basis of statement of the assessee u/s.132(4), but no incriminating material was found. He, however, harped on the fact that assessment u/s.153A can be made without there being any incriminating evidence against the assessee. The ld. CIT(A) concurred with the submissions advanced on behalf of the assessee and ordered to delete the addition. Aggrieved thereby, the Revenue has come up in appeal before the Tribunal. 3. Having heard the rival submissions and gone through the relevant material on record, it is seen as an admitted position that the assessment year under consideration is 2015-16. Return for this assessment year was filed belatedly u/s.139(4) on 31-03-2016. Notice u/s.143(2) could have been issued within six months from the end of the financial year in which the return was filed, namely, by 30-09-2016. The assessee was subjected to search on ITA Nos.69 & 70/PAN/2022 Ajit Mittal 3 24-10-2017 and by that time no assessment for the year under consideration was taken up nor could have been taken up by virtue of the limitation u/s 143(2) of the Act. Once the position is so and admittedly no incriminating material was found during the course of search, the addition in respect of such an unabated assessment year could not have been made. Our view is fortified by the recent judgment of the Hon’ble Supreme Court in Pr.CIT Vs. Abhisar Buildwell (P) Ltd. (2023) 454 ITR 212 (SC) holding that if the assessment is not pending and no incriminating material is found during the course of search, no addition can be made in the assessment u/s.153A of the Act. It has further been observed that the completed assessment can be reopened by the AO in exercise of powers u/s.147 subject to the fulfilment of requisite conditions and those powers are saved. We are instantly concerned with the assessment u/s.153A of an unabated assessment year for which no incriminating material was found during the course of search. As such, the decision of the ld. CIT(A), deleting the addition on this score, is unexceptionable. However, the AO is at liberty to take recourse to the appropriate legal provisions in the light of the decision in of Abhisar Buildwell (supra), if permissible under the law. ITA Nos.69 & 70/PAN/2022 Ajit Mittal 4 4. Both the sides are in agreement that the facts and circumstances of the addition made for the A.Y. 2016-17 and deleted in the first appeal are mutatis mutandis similar to the preceding year. Following the view taken hereinabove, we approve the impugned order on this count. 5. In the result, both the appeals are dismissed. Order pronounced in the Open Court on 13 th September, 2023. Sd/- Sd/- (S.S.VISWANETHRA RAVI) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; िदनांक Dated : 13 th September, 2023 सतीश आदेश की ितिलिप अ ेिषत/Copy of the Order is forwarded to: 1. अपीलाथ / The Appellant; 2. थ / The respondent 3. The CIT concerned 4. DR, ITAT, Panaji Bench, Panaji 5. गाड फाईल / Guard file. आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune ITA Nos.69 & 70/PAN/2022 Ajit Mittal 5 Date 1. Draft dictated on 12-09-2023 Sr.PS 2. Draft placed before author 13-09-2023 Sr.PS 3. Draft proposed & placed before the second member JM 4. Draft discussed/approved by Second Member. JM 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *