Case Law Details
Pr. CIT Vs Arvind Joshi and Co. (Gujarat High Court)
it is an admitted position that scrutiny assessment under section 143(3) of the Act had been carried out in respect of each of the assessment years under consideration. The Assessing Officer while framing assessment under section 153A(1)(b) of the Act, has not relied upon any incriminating material found during the course of search. Since the main plank of the submissions advanced during the course of hearing are that the assessment had been made under section 153A of the Act on the basis of the Special Auditors report made under section 142(2) of the Act, wherein he had considered the incriminating documents seized/impounded during the course of search proceedings, the learned senior standing counsel was called upon to produce the Special Auditors’ report. A perusal of such report indicates that when the Special Auditors had called upon the assessee to furnish explanation of seized/impounded papers/documents to the Assessing Officer in assessment proceedings, the assessee stated that such material was submitted to the Auditors due to oversight and requested the Auditors not to take cognizance of the said explanation or comment upon the same for the reason that the same was meant for consideration by the Assessing Officer in exercise of his powers of assessment and would fall outside the ambit of the task of audit. The assessee had stated that commenting upon the explanation would amount to not only overstepping the audit assignment, but would also be taken as an unwarranted attempt to influence the quasi-judicial authority, and hence, would be unlawful. In view of the above, the Special Auditors have not placed reliance upon the material found during the course of search in the report submitted by them. Thus, in actual fact the Special Auditors in the report under section 142(2A) of the Act have not considered the incriminating documents seized/impounded during the course of the search proceedings and hence, the submission made on behalf of the revenue that the Special Auditors have considered the documents seized/impounded during the course of search proceedings, lacks any factual basis.
In the opinion of this court considering the fact that it is settled legal position that in case of unabated assessment under section 153A(1)(b) of the Act, unless such assessment is based upon incriminating documents seized/impounded during the course of search, no addition can be made, no infirmity can be found in the impugned order passed by the Tribunal in upholding the order passed by the Commissioner (Appeals).
FULL TEXT OF THE HIGH COURT ORDER / JUDGEMENT
1. The appellant-revenue has challenged the above referred All these appeals under section 260-A of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) arise out of a common order dated 11.7.2018 passed by the Income Tax Appellate Tribunal, Ahmedabad Bench “D”, Ahmedabad (hereinafter referred to as “the Tribunal”) in IT (SS) A No.122, 123 and 124/Ahd/2016, and the issue involved in all the appeals is also common, and hence, the same were taken up for hearing together and are decided by this common judgment.
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