Case Law Details
ACIT Vs Himalaya Darshan Developers (Gujarat) Pvt. Ltd. (ITAT Ahmedabad)
The question that arises for our adjudication whether the document in the form of tally and balance sheet found during the course of search is an incriminating document in nature. In our considered view such document are not an incriminating material, as such those documents are part of the books of account maintained by the ‘SJSL’ wherethe transactions for the purchase and sales of the lands were duly disclosed. Likewise, the corresponding entries in the books of accounts of the assessee and corresponding capital gain was offered to tax in the income tax returns. Thus the impounded documents were belonging to the ‘SJSL’ and not the assessee company where all the material facts were disclosed. Hence the same cannot be termed as incrimination document found against the assessee company. Furthermore, there is no ambiguity to fact that in case of the assessee normal assessment under section 143(3) of the Act was already completed vide order dated 22-02-2012. Thus the year under consideration is unabated assessment year which can be disturbed only based on incriminating document against the assessee found during the course of search as held by the Hon’ble jurisdictional High Court in the case of Pr. CIT vs. Saumya Construction reported in 387 ITR 529. The relevant extract of the judgment is reproduced as under:
Section 153A bears the heading ‘assessment in case of search or requisition. From the heading of section 153, the intention of the Legislature is clear, viz., to provide for assessment in case of search and requisition. When the very purpose ofthe provision is to make assessment in case of search or requisition, it goes without saying that the assessment has to have relation to the search or requisition. Thus, while in view of the mandate of sub-section (1) of section 153A in every case where there is a search or requisition, the Assessing Officer is obliged to issue notice to such person to furnish returns of income forthe sixyears preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made, any addition or disallowance can be made only on the basis of material collected during the search or requisition. In case no incriminating material is found, the earlier assessment would have to be reiterated.
In view of the above and after considering the facts in totality, we are of the view that the proceedings initiated under section 153C of the Act without having any incriminating materials belonging to the assessee which have bearing on its income is not sustainable for the reason as detailed above.
FULL TEXT OF THE ORDER OF ITAT AHMEDABAD
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