2015 (7) TMI 986

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....) That the learned Commissioner of Income-Tax (Appeals) erred in law and in the facts of the case in confirming the order of the assessing officer in framing assessment U/s.143(3) r.w.s. 153A of the Act particularly when no material is found showing undisclosed income for the year under consideration. 2) That the learned Commissioner of Income-Tax (Appeals) erred in law and in the facts of the case in confirming the order of the assessing officer in framing assessment U/s.143(3) r.w.s. 153A of the Act even though the assessment for the year under consideration is not pending on the date of initiation of search U/s. 132 of the Act and hence the original assessment has not abated. 3) That the learned Commissioner of Income-Tax (Appeals) e....

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....see placed reliance on various judicial pronouncements which has been discussed in following para. On other hand, learned Departmental Representative supported the orders of authorities below and submitted that in light of retrospective insertion of explanation below: Section 80IA(13) assessee was not eligible for deduction u/s. 80IA(4). This Section introduced by Finance Act, 2009 with retrospective effect from 01.04.2000, provides that: "for the removal of doubts, it is hereby declared that nothing contained in this Section i.e. Section 80IA shall apply in relation to a business referred to in subsection (4) which is in nature of works contract awarded by any person (including the Central or State Government) and executed by the undertaki....

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....ent years in respect of claim u/s. 80IA of the Act. In this background, in absence of any incriminating material found during search, no addition can be made in respect of unabated assessments and which have become final as on the date of search. The completed assessments for the years under appeal have become final and are not abated since they are not pending as on the date of search. Therefore, even though pursuant to issue of notice u/s. 153A, assessments for 6 years immediately prior to the date of search are to be framed u/s. 153A, but in respect of unabated assessments which have become final and no incriminating material is found during the course of search for those years, no addition could be made in respect of such unabated asses....

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....li Agro Products Ltd. (supra) with which we respectfully agree. These are the conclusions which can be reached and upon reading of the legal provisions in question. We do not see as to how while allowing the appeal of the assessee and setting aside the order of the Commissioner under section 263 could the judgment be said to be laying down a proposition and as canvassed by Mr. Pinto* True it is that the assessment which has to be made in pursuance of the notice is in relation to the six years. An order will have to be made in that regard. While making the order the income or the return of income filed for all these assessment years is to be taken into account. A reference will have to be made to the income disclosed therein. However, the ....