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Facts
A search and seizure operation was conducted on the assessee under Section 132 of the Income-tax Act, 1961, leading to assessment proceedings under Section 153A where an addition of Rs. 8,16,50,000/- for unsecured loans was made by the AO and sustained by the CIT(A). The assessee appealed, challenging the addition based on the absence of incriminating material found during the search and arguing that they had fulfilled the burden under Section 68.
Held
The Tribunal, noting that the assessment year was unabated, held that an addition could not be sustained under Section 153A without any incriminating material found during the search. Citing the Supreme Court decision in PCIT vs. Abhisar Buildwell (P.) Ltd., the Tribunal set aside the orders of the lower authorities, deciding the issue on jurisdictional grounds in favour of the assessee.
Key Issues
Whether an addition for unsecured loans made under Section 153A in an unabated assessment year can be sustained in the absence of any incriminating material found during a search and seizure operation.
Sections Cited
Section 153A, Section 68, Section 132
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Income Tax Appellate Tribunal, DELHI BENCH ‘A’ : NEW DELHI
Order
: 09.07.2024 ORDER
PER SHAMIM YAHYA, ACCOUNTANT MEMBER :
This appeal by the assessee is directed against the order of the ld. CIT (Appeals)-IV, Kanpur dated 19.11.2018 for the assessment year 2013-14.
Grounds of appeal
taken by the assessee read as under :- “1. On the facts and circumstances of the case, the order passed by the learned CIT (A) is bade both in the eye of law and on the facts.
2. On the facts and circumstances of the case, the learned CIT (A) has erred both on facts and in law in confirming addition despite assessee fulfilling the burden cast on him u/s 68 of Income Tax Act.
3. On the facts and circumstances of the case, the learned CIT (A) has erred both on facts and in law in confirming addition by ignoring the submission and evidences submitted during appellate proceedings.” 3. Assessee has also filed an additional ground which reads as under :- “The learned CIT-A has erred both in law and in facts in confirming addition on account of unsecured loan of Rs.8,16,50,000/- despite the fact that no incriminating material or no undisclosed income or any evidence has been found during the search at the premises of the Appellant and therefore the addition under Section 153A is not sustainable.”
4. On the touchstone of Hon’ble Apex Court decision in the case of NTPC Limited NTPC Ltd. vs. CIT, (1998) 229 ITR 0383 (SC), the above additional ground being purely legal is admitted and has been adjudicated as under. 5. Brief facts of the case are that search and seizure operation under section 132 of the Income-tax Act, 1961 (for short ‘the Act’) was conducted on 30.09.2015 in the premises of assessee comprising Airwil Group of cases. Consequent to notice under section 153A of the Act, AO initiated proceedings against the assessee and computed the income being unsecured loan amounting to Rs.8,16,50,000/-. 6. Upon assessee’s appeal, ld. CIT (A) sustained the addition. 7. Against this order, assessee is in appeal before us. 8. In this case, after going through the submissions of the assessee and the ld. DR for the Revenue and perusing the records, it transpires that addition has been made without reference to any incriminating material. In Hon’ble Apex Court in the case of PCIT vs. Abhisar Buildwell (P.) Ltd. reported in (2023) 149 taxmann.com 399 (SC) squarely applies in the facts of the case. This is an unabated assessment and there was no reference to incriminating material to make the addition. Ld. DR for the Revenue could not dispute the above proposition and also could not dispute that there is no incriminating material on which addition is made. In these circumstances, in the background of the aforesaid discussion and precedent, we set aside the orders of the authorities below and decide the issue in favour of the assessee. 9. Since we have decided the issue on jurisdictional ground in favour of the assessee, adjudication on merits of the issue raised is only of academic interest. 10. In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court on this 9th day of July, 2024.