DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -1(4), KOLKATA, KOLKATA vs. PRIMARC PROJECTS PVT LTD, KOLKATA
In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.
What did the Tribunal hold?
The Tribunal held that additions cannot be made by the Assessing Officer in an assessment carried out under Section 153A of the Income-tax Act, 1961, in the absence of any incriminating material found during the search action, particularly in cases of completed or non-abated assessments. This finding was based on the Hon'ble Supreme Court's decision in "Pr. CIT Vs. Abhiser Buildwell (P) Ltd." [2023] 149 taxmann.com 399 (SC). The Tribunal noted that the Revenue's representative conceded that the issue was covered by this Supreme Court judgment. Therefore, the appeals filed by the Revenue were dismissed. The operative direction was the dismissal of the revenue's appeals.
What were the facts?
The appeals were filed by the Revenue against orders of the CIT(A) for Assessment Years (AYs) 2015-16 and 2016-17. The appeals were filed 47 days late, and the delay was condoned. The original assessment orders for both years were passed on 31.12.2017 under Section 153C read with Section 143(3) of the Income-tax Act, 1961. A search action under Section 132 was conducted on the assessee, Primarc Projects Pvt. Ltd., on 05.01.2021. No incriminating material was found during this search. Despite this, the Assessing Officer (AO) made additions on account of bogus loans in assessments carried out under Section 153A of the Act, vide orders dated 31.03.2022.
What were the issues?
1. Whether additions can be made by the Assessing Officer in an assessment carried out under Section 153A of the Income-tax Act, 1961, on reappreciation of facts already on file, in the absence of any incriminating material found during a search action, when the original assessment was completed and had not abated? Assessee's Contention: The assessee argued that no additions can be made under Section 153A if no incriminating material is found during the search, especially when the original assessment is complete. The CIT(A) deleted the additions relying on the Supreme Court's decision in "Pr. CIT Vs. Abhiser Buildwell (P) Ltd." [2023] 149 taxmann.com 399 (SC). Revenue's Contention: The Revenue, through the CIT, DR, admitted that the issue is squarely covered by the Hon'ble Supreme Court's decision in "Abhiser Buildwell (P) Ltd." (supra).
Which sections of the Income-tax Act were involved?
Section 153A,Section 153C,Section 143(3),Section 132,Section 250
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “B” BENCH KOLKATA
Before: Shri Sanjay Garg & Shri Sanjay Awasthi
Per Sanjay Garg, Judicial Member : Both the captioned appeals have been preferred by the revenue against the separate orders, evenly dated 28.12.2023, of the Ld. Commissioner of Income Tax, (Appeal), Kolkata-20 [hereinafter referred to as the “Ld. CIT(A)”] passed u/s. 250 of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) for AYs 2015-16 and 2016-17. 2. Both the appeals are time barred by 47 days and separate applications for condonation of delay have been filed for both the years. Considering the averments made in the applications, the short delay in filing both the appeals is hereby condoned and the appeals are taken up for adjudication.
2 IT(SS)A Nos. 39 & 40/Kol/2024 Primarc Projects Pvt. Ltd., AYs 2015-16 & 2016-17 3. Since grounds are common and facts are identical, except variance in amount, we dispose of both the appeals by this consolidated order for the sake of convenience. 4. The sole issue involved in both the appeals is as to whether the additions can be made by the Assessing Officer (in short “the AO”) in an assessment carried out u/s.153A of the Act on reappreciation of the facts already available on file in the absence of any incriminating material found during the course of search action. 5. The admitted facts of the case are that the original assessment orders in both the appeals were passed u/s. 153C read with section 143(3) of the Act on 31.12.2017. Thereafter, a search action was carried out u/s. 132 of the Act in the case of the assessee on 05.01.2021. Admittedly, no incriminating material was found during the course of search action. The AO, however, made the impugned addition on account of bogus loan in the assessment carried out u/s. 153A of the Act vide order dated 31.03.2022. 6. The Ld. CIT(A), however, deleted the impugned addition made by the AO by relying upon the decision of Hon’ble Supreme Court in the case of “Pr. CIT Vs. Abhiser Buildwell (P) Ltd.” [2023] 149 taxmann.com 399 (SC), wherein the Hon’ble Supreme Court has held that in the case of non-abated/completed assessments, no addition can be made by the Assessing Officer in an assessment carried out u/s.153A of the Act in the absence of any incriminating material found during the search action. 7. The Ld. DR has been fair enough to admit that the issue involved in both the appeals is squarely covered by the aforesaid decision of the Hon’ble Supreme Court in the case Abhiser Buildwell (P) Ltd. (supra), wherein the Hon’ble Supreme Court has held that in
3 IT(SS)A Nos. 39 & 40/Kol/2024 Primarc Projects Pvt. Ltd., AYs 2015-16 & 2016-17 case of completed/non-abated assessment, no addition can be made by the Assessing Officer in an assessment carried out u/s.153A of the Act in the absence of any incriminating material found during the search action. Therefore, there is no merit involved in the appeals of the revenue and the same are accordingly, dismissed. 8. In the result, both the appeals of the revenue stand dismissed.
Order is pronounced in the open court on 26.11.2024. Sd/- Sd/- [Sanjay Garg] [Sanjay Awasthi] लेखा सद�/Accountant Member �ाियक सद�/Judicial Member Dated: 26.11.2024.
JD Sr. P.S Copy of the order forwarded to: Appellant – DCIT, Central Circle-1(4), Kolkata 1. 2. Respondent – Primarc Projects Pvt. Ltd. 3. CIT(A), Kolkata-20. 4. Pr. CIT, 5. CIT(DR), True Copy By Order Assistant Registrar, ITAT, Kolkata
Date of Dictation 25.11.2024 2. Date on which the typed draft order is placed before the dictating Member and Other Member 25.11.2024 3. Date on which the approved order comes to the Sr. P.S /11/2024 4. Date on which the file goes to the Bench Clerk /11/2024 5. Date on which the file goes to the OS 6. Date of dispatch of the order
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