Dy. CIT v. Southwinds Project LLP (2025) 124 ITR 292 (Kol.)(Trib.)

S. 153A: Assessment-Search-Unabated assessment-No incriminating material found during search-Addition based on third-party statements recorded outside search-Not sustainable-Conditions for reopening under fourth proviso to section 153A not fulfilled-No seized material representing escaped income in the form of assets-Addition deleted.[S. 68, 69C 131, 132, 142(1)]

The assessment for the relevant year had attained finality prior to the search and had not abated. The Assessing Officer made additions under sections 68 and 69C on the basis of statements of third parties recorded under section 131, without any incriminating material having been found during the search and without confronting those statements to the assessee. The Tribunal held that, in the case of an unabated assessment, additions under section 153A can be made only on the basis of incriminating material seized during the search. As no such material existed, the additions were without jurisdiction and were rightly deleted by the Commissioner (Appeals).  The Tribunal held that the Assessing Officer neither referred to any seized books of account nor to any seized documents revealing income represented in the form of assets as required under the fourth proviso to section 153A. The additions were based only on third-party statements recorded under section 131 outside the course of search, which were never confronted to the assessee. The statutory conditions for invoking section 153A were therefore not fulfilled and the assessment could not be sustained.  (AY. 2013-14).

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