2013 (12) TMI 1566 - AT - Income Tax

Proceedings under s.153C - Held that - Assessing officer having issued a notice u/s 153A of the Act could not have completed proceedings which are supposed to be done u/s 153C of the Act if there is any incriminating material and accordingly the proceedings itself become bad in law. Computation of income - Held that - Estimation of income at 9.5% by the CIT(A) is on higher side. Considering the past record of the assessee we are of the opinion that it is reasonable to estimate 5% income net of depreciation on sub-contract payments and 8% net of depreciation on the balance of the contract receipts out of the total turnover shown by the assessee. This should meet the end of justice on the facts of the case. However other incomes offered by the assessee with reference to undisclosed income being added in A.Y. 2009-10 and other incomes not connected with the contract receipts should be accepted as such. This estimation of 8% on assessee s contract works and 5% on sub-contract works is only limited to the contract receipts. With these directions the assessing officer is directed to modify the computation of income accordingly. Assessee s grounds are considered allowed accordingly.

Issues Involved:
1. Jurisdiction of the assessing officer to issue notice under section 153A of the Act.
2. Validity of assessments and re-assessments under section 153A without incriminating material.
3. Estimation of income and allowance of depreciation for M/s. Sree Lalitha Constructions and M/s. SLC Projects Ltd.

Detailed Analysis:

1. Jurisdiction of the Assessing Officer to Issue Notice under Section 153A:
The first contention raised by the appellant was that the notice issued under section 153A of the Act was invalid as no search was conducted on M/s. Sree Lalitha Constructions, an erstwhile partnership firm. The search was conducted on M/s. SLC Projects Ltd., a separate entity. The appellant argued that the assessing officer lacked jurisdiction to issue the notice under section 153A because the firm had already been assessed under section 143(3) for the relevant assessment years, and no proceedings were pending at the time of the search. The Tribunal agreed with the appellant, noting that the firm was a separate entity with a distinct PAN and had completed assessments under section 143(3) before the search. Consequently, the issuance of notice under section 153A was deemed incorrect and bad in law.

2. Validity of Assessments and Re-assessments under Section 153A Without Incriminating Material:
The appellant contended that the assessing officer could not reassess the firm's completed assessments without any incriminating material found during the search. The Tribunal referenced the case of All Cargo Global Logistics Ltd. Vs. DCIT, which held that assessments under section 153A should be based on incriminating material found during the search. Since no such material was found pertaining to the assessment years 2004-05, 2005-06, and 2006-07, the Tribunal concluded that the reassessments were invalid. Additionally, the Tribunal cited the case of ASP Software Solutions Pvt. Ltd., which emphasized that a notice under section 153A cannot be issued to a non-searched party, further invalidating the proceedings.

3. Estimation of Income and Allowance of Depreciation for M/s. Sree Lalitha Constructions and M/s. SLC Projects Ltd.:
The Tribunal examined the estimation of income for M/s. SLC Projects Ltd., where the assessing officer had rejected the books of accounts and estimated income at 12% of gross receipts, which the CIT(A) reduced to 9.5%. The appellant argued for the allowance of depreciation and cited various decisions supporting the claim. The Tribunal, considering past records and judicial precedents, determined that a reasonable estimation would be 5% net of depreciation on sub-contract payments and 8% net of depreciation on other contract receipts. The Tribunal directed the assessing officer to modify the computation of income accordingly.

Conclusion:
The Tribunal allowed the appeals related to M/s. Sree Lalitha Constructions, setting aside the orders of the authorities due to jurisdictional issues and lack of incriminating material. For M/s. SLC Projects Ltd., the Tribunal partly allowed the appeals, directing a revised estimation of income with allowance for depreciation. The judgments emphasized the importance of jurisdictional correctness and the necessity of incriminating material for reassessments under section 153A.

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