DCIT, CENTRAL CIRCLE, GHAZIABAD vs. AMRIT BANASPATI COMPANY LTD., NOIDA

PDF · subscribers
ITA 4922/DEL/2018Status: DisposedITAT Delhi13 September 2023AY 2009-10Bench: SH. N. K. BILLAIYA, ACCOUNTANT MEMBER AND SH. ANUBHAV SHARMA (Judicial Member)4 pages

In favour of the Revenue: the Revenue's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that since no notice under Section 143(2) was served, the assessment was unabated. In an unabated assessment under Section 153A, additions can only be made based on incriminating material found during the search. As no such material was referenced for the additions, the assessment order was quashed.

What were the facts?

A search and seizure operation was conducted on the assessee's premises. The assessee had filed its original return of income before the search. The assessment order was framed under Section 153A of the Income Tax Act.

What were the issues?

The primary issue was the validity of the assessment order framed under Section 153A when the assessment was unabated and no incriminating material was found during the search to support the additions.

Which sections of the Income-tax Act were involved?

Section 132,Section 139(1),Section 143(2),Section 143(3),Section 153A

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(3)Show list

Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.

Income Tax Appellate Tribunal, DELHI BENCH ‘A’, NEW DELHI

Before: SH. N. K. BILLAIYA & SH. ANUBHAV SHARMA

For Appellant: Ms. Soumya Jain, CA
For Respondent: Ms. Sugam Thomas Josh, CIT DR
Hearing: 05/09/2023Pronounced: 11/09/2023

Appellant by Sh. Rohit Jain, Advocate Ms. Soumya Jain, CA Respondent by Ms. Sugam Thomas Josh, CIT DR Date of hearing: 05/09/2023 Date of Pronouncement: 11/09/2023 ORDER PER N. K. BILLAIYA, AM: and 4922/Del/2018 are appeals by the assessee and the revenue preferred against the order of the CIT(A), Meerut dated 06.04.2018 pertaining to A.Y.2009-10.

2.

Both these appeals were heard together and are disposed of by this common order for the sake of convenience and brevity.

3.

The first ground of the assessee challenges the validity of the assessment order framed u/s. 143(3) r.w.s. 153A of the Act. Since this challenge goes to the root of the matter we decided to adjudicate it first.

4.

A search and seizure operation u/s. 132 of the Act was conducted on 04.05.2011 on the premises of the assessee comprising Amrit Group of cases.

5.

The assessee filed its original return of income u/s. 139 (1) of the Act on 26.09.2009 which means that the notice u/s. 143 (2) of the Act should have been served on or before 30.09.2010. Since no notice was issued / served u/s. 143 (2) of the Act it can be safely concluded that the return was accepted as such making thereby the assessment as unabated assessment.

6.

A perusal of the assessment order shows that additions/ disallowances have been made on account of :- A. Depreciation on edible oil brands B. Royalty paid on brand “Gagan” C. Addition on account under valuation of closing stock D. Addition on account of low gross profit E. Addition on account of capital subsidy

7.

All the aforementioned disallowances/ additions are devoid of any reference to any incriminating material found at the time of search. It is a settled proposition of law that in case of unabated assessment u/s.153A it can be framed only in respect of items found from the incriminating material found and seized at the time of search. This proposition is well settled by the decision of Hon’ble Supreme Court in the case of Singhad Technical Education Society 397 ITR 344, Hon’ble High Court of Delhi in the case of Kabul Chawla 380 ITR 573, Hon’ble Supreme Court in the case of Abhisar Buildwell 454 ITR 212.

8.

In the light of above judicial decisions mentioned here in above the assessment order dated 30.03.2014 framed u/s. 153A r.w.s. 143 (3) of the Act is bad in law and deserve to be quashed.

9.

Since we have quashed the assessment order we do not it necessary to dwell into the merits of the case.

10.

In the result, the appeal of the assessee is allowed and that of the revenue is dismissed.

Order pronounced in the open court on 11.09.2023.

More judgments on Section 132

All 14,598 judgments and leading authorities on Section 132 →

Recent GST High Court judgments

Search GST case law →