MANI Square Ltd. v. ACIT (2020) 83 ITR 241 (Kol.)(Trib.)

S. 153A : Assessment-Search-Third person-Loose sheets pertaining to earlier years were found in third party premises-No inference could be drawn against assessee qua relevant assessment year-Theory of extrapolation-Not applicable on mere theoretical or hypothetical basis-Natural justice-Failure to provide an opportunity of cross examination the witness which the Department relied on-Addition cannot be made-Amalgamation-Assessing Officer framing assessment separately in name of Amalgamated Company, in spite of furnishing information-Order bad in law. [S. 68, 69C, 132]

Tribunal held that  the document was a third party document found in the course of search conducted on a different person and not the assessee and therefore this document did not constitute incriminating material found in the course of search at the premises of the assessee, based on which any addition could be validly made in assessment under section 153A. Therefore the additions and disallowances made by the Assessing Officer on account of on-monies and cash received on sale of flats and car parks in the project was clearly beyond the scope of authority vested under section 153A owing to the absence of any incriminating material or evidence deduced as a result of search conducted at the premises of the assessee in so far as the unabated assessment for the assessment year 2013-14 was concerned.  That the third party statements relied upon by the Assessing Officer without even recording their statement and allowing the assessee to cross-examine the parties could not justify the additions under sections 68 and 69C. The statements could not be said to be incriminating material or documents found or collected in the course of search conducted against the assessee and so could not be used against the assessee. Therefore, the third party statements referred to by the Assessing Officer to justify additions without being tested by cross-examination could not be the basis for making addition under sections 68 and 69C both in the case of IQ and the assessee. The seized documents referred to by the Assessing Officer for justifying the various additions in the name of the assessee and IQ which had since merged with the assessee did not constitute incriminating material and therefore no additions were legally permissible for the assessment year 2013-14 for which the assessments did not abate when the search was conducted.  That the theory of extrapolation could not be applied on mere theoretical or hypothetical basis in the absence of any incriminating and corroborative evidence or material brought on record by the Assessing Officer to warrant it.  That the Assessing Officer’s failure to personally examine the witnesses and his denial to allow the assessee an opportunity to cross-examine the third parties and the Departmental witnesses on whose statements he was relying on was a serious and fundamental error which resulted in the additions as well as the action of the Assessing Officer to point out any material and irrelevant to justify the addition made under sections 68 and 69C in the assessment order untenable and so it could not be sustained. (AY. 2013-14 to 2017-18)