2018 (1) TMI 1551 - AT - Income Tax

Validity of assessment order u/s 153C - fulfillment of requirement of Section 153C before issuance of notice - assessee contended that satisfaction note is not in accordance with the satisfaction as contemplate u/s 153C - Held that - The A.O has not mentioned that the agreement reflects that there was any unaccounted transaction or unaccounted payments/receipts the business activities of the assessee in-fact was confirmed by the said agreement and all the documents were before the Assessing Officer during the regular assessment proceedings. Thus there was no incriminating material or document found in respect of Section 153C proceedings. The Ld. DR s contentions that it is an established practice of the Income Tax Department that not everything found at the time of search and cease. Only such material is seized which is prima facie incriminating in nature. The Revenue cannot simply rely on their departmental Endeavour practice they have to strictly follow the statute while conducting the search adhering to Section 153C. If the practice is supported by law/statute then it can be allowed but if the material which is relevant to the assessee s escapement of income has not been seized then merely on the surmises or conjectures that cannot be called as incriminating material which was properly demonstrated by the assessee during his regular assessment. Order of CIT(A) holding the order as void ab-initio is correct - Decided against the revenue.

Summary

Issues Involved:
1. Validity of proceedings initiated under Section 153C.
2. Whether the agreement to sell found during the search constitutes incriminating material.
3. Legality of additions made by the Assessing Officer (AO) under Section 68 based on unexplained cash credits.
4. Adequacy of the satisfaction note recorded by the AO.

Detailed Analysis:

1. Validity of Proceedings Initiated Under Section 153C:
The crux of the issue was whether the proceedings under Section 153C were validly initiated. The CIT(A) found that the document in question, an agreement to sell, belonged to Mr. Dinesh Kaushal and not the assessee. The CIT(A) noted that Mr. Kaushal did not disclaim ownership of the agreement, and thus, it could not be assumed to belong to the assessee. The AO's satisfaction note was deemed inadequate as it did not establish that the document belonged to the assessee. The Tribunal upheld the CIT(A)'s finding that the proceedings under Section 153C were void ab initio due to incorrect assumption of jurisdiction.

2. Whether the Agreement to Sell Constitutes Incriminating Material:
The agreement to sell found during the search was scrutinized to determine if it constituted incriminating material. The CIT(A) observed that the agreement merely documented a transaction between the seller (assessee) and the buyer (Mr. Kaushal) and did not indicate any unaccounted transactions or payments. The Tribunal agreed with the CIT(A) that the agreement did not constitute incriminating material as it was already reflected in the books of account and did not reveal any undisclosed income.

3. Legality of Additions Made by the AO Under Section 68:
The AO made additions amounting to Rs. 1,40,75,000/- under Section 68 for unexplained cash credits. The CIT(A) found that these additions were based on normal assessment proceedings and not on any incriminating material found during the search. The advances received by the assessee were accounted for in the books and were part of the regular business activities. The Tribunal upheld the CIT(A)'s decision, emphasizing that the additions were not justified as they were not based on any incriminating material found during the search.

4. Adequacy of the Satisfaction Note Recorded by the AO:
The satisfaction note recorded by the AO was a critical point of contention. The CIT(A) and the Tribunal found that the satisfaction note did not meet the requirements of Section 153C. The note stated that the document "also belongs to" the assessee, which was insufficient to initiate proceedings under Section 153C. The Tribunal highlighted that for proceedings under Section 153C to be valid, the AO must be satisfied that the document belongs to the other person (assessee) and not merely "also" belongs to them. The Tribunal concluded that the satisfaction note was inadequate and did not justify the initiation of proceedings under Section 153C.

Conclusion:
The Tribunal upheld the CIT(A)'s order, dismissing the Revenue's appeals for all assessment years. The Tribunal agreed that the proceedings under Section 153C were incorrectly initiated, the agreement to sell did not constitute incriminating material, the additions under Section 68 were not justified, and the satisfaction note was inadequate. The detailed findings of the CIT(A) were deemed comprehensive and correct, leading to the dismissal of the Revenue's appeals.