The Tax Publishers2019 TaxPub(DT) 0819 (Del-Trib) : (2019) 070 ITR (Trib) 0417

INCOME TAX ACT, 1961

Section 153A Section 132

Assessment for completed assessment without any incriminating material was without jurisdiction hence, was to be set aside.

Search and seizure - Assessment under section 153A - No incriminating material found during the course of search and seizure operation -

Search and seizure operation was conducted on M/s. F Group of cases on 23-2-2006. For assessment year 2003-04, assessment was completed under section 143(3). Return for assessment year 2004-05 was filed on 31-10-2004 and time to issue notice under section 143(2) expired on 30-9-2005. These facts show that on the date of search, the assessment years 2003-04 and 2004-05 were completed assessment and, therefore, any addition made in the assessment framed under section 153A had to be based upon incriminating material found at the time of search.Held: A perusal of the seized document shows that what was seized in the search proceedings were only books of account of the assessee. AO had made addition on the basis of Volker Committee Report which was constituted by the United Nations to examine the Oil for Food Programme. No incriminating material was found at the time of search and the additions have been made on account of kickbacks solely on the presumption that the assessee must have paid some money to Iraq for participating in the Oil for Food Programme. Additions have been made only on the basis of presumption without there being any direct concrete evidence found at the time of search proceedings. Following the direct judgments of the rurisdictional High Court of Delhi and the Supreme Court, there was no hesitation to hold that assessments framed under section 153A were without jurisdiction and the order deserves to be quashed.

Followed:Kabul Chawla (2016) 380 ITR 573 (Del) : 2015 TaxPub(DT) 3486 (Del-HC), Meeta Gutgutia (2017) 395 ITR 297 CTR 441 (SC) : 2017 TaxPub(DT) 3941 (SC) and Singhad Educational Society (2017) 297 CTR 441 (SC) : 2017 TaxPub(DT) 3941 (SC).

REFERRED :

FAVOUR : In assessee's favour.

A.Y. : 2003-04 to 2005-06


INCOME TAX ACT, 1961

Section 69c

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