2025 (3) TMI 1265 - AT - Income Tax

Assessment u/s 153A - AO made the addition treating the long term capital gain as undisclosed income merely on the basis of information received from Investigation Wing Kolkata - HELD THAT - The impugned order passed by the ld. CIT (A) is bad in law as no addition can be made in the absence of incriminating material so far as the assessment under section 153A in respect of the assessment years already completed before the date of search and not abated by virtue of search. We therefore set aside the order of ld. CIT (A). The ground no. 1 is allowed.

Summary

ISSUES PRESENTED and CONSIDERED

The core legal questions considered in this judgment are:

• Whether the assessment order under Section 153A read with Section 143(3) of the Income Tax Act, 1961, was validly passed in the absence of incriminating material found during the search.
• Whether the addition of Rs. 48,49,782/- as undisclosed income by treating the long-term capital gain (LTCG) exempted under Section 10(38) as bogus was justified.
• Whether the CIT(A) erred in confirming the Assessing Officer's (AO) order without appreciating the documentary evidence provided by the assessee.

ISSUE-WISE DETAILED ANALYSIS

1. Validity of Assessment under Section 153A

• Relevant Legal Framework and Precedents: Section 153A of the Income Tax Act mandates that post-search assessments can only consider incriminating material found during the search. The Supreme Court in PCIT vs. Abhisar Buildwell (P) Ltd and various High Courts have consistently held that additions in completed assessments can only be made based on incriminating material found during the search.
• Court's Interpretation and Reasoning: The Tribunal emphasized that for completed or unabated assessments, additions cannot be made without incriminating evidence found during the search. The court relied on precedents like Kabul Chawla and Continental Warehousing to assert that the AO cannot disturb completed assessments in the absence of new evidence.
• Key Evidence and Findings: The Tribunal found no incriminating material was unearthed during the search that could justify the additions made by the AO.
• Application of Law to Facts: The Tribunal applied the principle that completed assessments can only be reopened with new, incriminating evidence, which was absent in this case.
• Treatment of Competing Arguments: The Tribunal rejected the revenue's argument that the addition was justified based on information from the Investigation Wing, as it was not substantiated by incriminating material from the search.
• Conclusions: The Tribunal concluded that the assessment order was invalid as it was not based on any new incriminating material found during the search.

2. Addition of Rs. 48,49,782/- as Undisclosed Income

• Relevant Legal Framework and Precedents: Section 10(38) of the Income Tax Act exempts LTCG from tax, provided certain conditions are met. The burden of proof lies on the revenue to establish that the LTCG is bogus.
• Court's Interpretation and Reasoning: The Tribunal noted that the AO's addition was based on hypothetical assumptions without concrete evidence. The Tribunal highlighted that the AO failed to provide any cogent material or evidence to substantiate the claim of bogus LTCG.
• Key Evidence and Findings: The Tribunal found that the AO's addition was not supported by any incriminating documents or evidence found during the search.
• Application of Law to Facts: The Tribunal applied the principle that the revenue must prove the existence of undisclosed income with evidence, which was not done in this case.
• Treatment of Competing Arguments: The Tribunal dismissed the revenue's reliance on the investigation report as it lacked substantiation from the search evidence.
• Conclusions: The Tribunal held that the addition of Rs. 48,49,782/- as undisclosed income was unjustified and should be deleted.

SIGNIFICANT HOLDINGS

• Preserve Verbatim Quotes of Crucial Legal Reasoning: "In case no incriminating material is unearthed during the search, the AO cannot assess or reassess taking into consideration the other material in respect of completed assessments/unabated assessments."
• Core Principles Established: The Tribunal reaffirmed that for completed assessments, additions can only be made based on incriminating material found during a search. Hypothetical assumptions or information from other sources without supporting evidence from the search cannot justify additions.
• Final Determinations on Each Issue: The Tribunal declared the assessment order under Section 153A as invalid due to the absence of incriminating material and directed the deletion of the addition of Rs. 48,49,782/- as it was not supported by evidence found during the search.