2016 (1) TMI 987

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.... years 2007-08 and 2008-09 respectively. 2. From the identical grounds raised by the revenue for the various assessment years, we reframe the grounds of appeal as below for the sake of adjudication of all these appeals by a common order for the sake of convenience :- a) Whether the Learned AO is justified in rejecting the claim of deduction u/s 80IB of the Act in the assessments framed u/s 153A of the Act in respect of Asst Years 2003-04 and 2004-05 (concluded assessments) without any incriminating materials found during the course of search pertaining to the relevant concluded assessment years. b) Whether the Learned AO is justified in rejecting the claim of deduction u/s 80IB of the Act for the Asst Years 2007-08 nd 2008-09 when the eligibility conditions u/s 80IB of the Act are to be seen only in the initial assessment year and thereafter it is automatic and only academic in nature. c) Whether the Learned AO is justified in making disallowance u/s 14A of the Act in the assessments framed u/s 153A of the Act in respect of Asst Year 2004-05 without any incriminating material found during the course of search pertaining to the relevant concluded assess....

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...."C" Bench, ITAT, Kolkata that Shri Rajat Kumar Kureel, JCIT, Sr.(DR), will not be able to represent the above mentioned cases since he is going on a visit to Burdwan for official work on 23rd November 2015. Accordingly, I am directed to request that the case may kindly be adjourned for a later date as per the convenience of the Hon'ble Bench. Signed by CIT, ITAT-5, Kolkata" We find that the revenue had sought adjournment in 20 cases out of total 23 cases listed before the Bench for hearing and in view of this behavior of the Learned Senior DR, we deemed it fit to reject the adjournment request of the revenue and we proceed to dispose the appeal by hearing the Learned AR alone. 5. The Learned AR argued that the claim of deduction u/s 80IB of the Act was duly granted by the Learned AO u/s 143(3) of the Act in the original assessment proceedings for the Asst Year 2003-04 being the initial assessment year after duly satisfying that all the conditions stipulated in section 80IB of the Act were complied with by the assessee. He argued that once this deduction is granted in the initial assessment year, thereafter in later years, the grant of deduction is automa....

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.... CIT(A) to make any observation on merits. At the maximum the same could only be considered as an Obiter which is not binding on the authorities. It is well settled that only the Obiter of a Supreme Court is binding on the subordinate courts and authorities. Hence we hold that the aforesaid finding given by the Learned CITA is unwarranted and is hereby dismissed. 6.1. We also find that as of now the Learned CIT(A) had already granted relief in respect of granting deduction u/s 80IB of the Act for the assessee in the initial Assessment Year 2003-04 vide his appellate order dated 31.3.2010 in Appeal No. 99A/CC-XXVII/CIT(A)-C-II/KOL./09-10 and accordingly, the deduction u/s 80IB of the Act would be applicable for subsequent years also. It is well settled that the eligibility conditions for granting deduction u/s 80IB of the Act needs to be looked into only in the initial assessment year and thereafter it is automatic and hence becomes academic in nature. 6.2. We find that the Learned AR had filed a letter dated 23.11.2015 withdrawing all the Cross Objections filed by the assessee. In view of the same, the Cross Objections of the assessee are dismissed as withdrawn. 6.3. It wi....

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....her legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to sub-section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the [Principal Commissioner or]Commissioner: Provided that such revival shall cease to have effect, if such order of annulment is set aside.] Explanation.-For the removal of doubts, it is hereby declared that,- (i) save as otherwise provided in this section, section 153B and section 153C, all other provisions of this Act shall apply to the assessment made under this section; (ii) in an assessment or reassessment made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year". 6.4. In our opinion, the scheme of assessment proceedings should be understood in the following manner pursuant to the search conducted u/s 132 of the Act :- a) Notice u/s 153A of the Act would be issued on the person on whom the warrant of authorization u/s 132 of the Act w....

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.... of Search - 28.3.2007   Assessment Years 2003-04 2004-05 2007-08 2008-09 Date of filing the original Return of Income 1.12.2003 1.11.2004 30.10.2007 24.12.2008 Date of filling the revised return of income, if any N.A N.A 5.3.2008 N.A Date of 143(1) Intimation N.A N.A N.A 27.8.2009 Time limit for issuance of Notice u/s.143(2) 31.12.2004 30.11.2005 30.9.2008 30.9.2009 Date of completion of original assessment u/s. 143(3) 21.3.2006 22.12.2006 3.8.2009* 21.10.2010+ Whether any notice u/s. 148 is issued No No No No 'N.A' denotes not applicable * represents the date of completion of assessment u/s 143(3) of the Act after the search on 28.3.2007 + represents the date of completion of assessment u/s 143(3) of the Act succeeding the year of search 6.5.1. Hence from the above table, the following conclusions could be reached as on the date of search :- Concluded assessment years - Asst Years 2003-04 and 2004-05 ( i.e the first two assessment years under appeal before us) Asst. Year 2007-08- Year of Search is Asst Year 2007-0....

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....d the search or the requisition under section 132A, as the case may be. The provision deals with those cases where assessment or reassessment, if any, relating to the assessment years falling within the period of six assessment years referred to in sub-section (1) of section 153A were pending. If they were pending on the date of the initiation of the search under section 132 or making of requisition under section 132A, as the case may be, they abate. It is only pending proceedings that would abate and not where there are orders made of assessment or reassessment and which are in force on the date of initiation of the search or making of the requisition. The assessee was engaged in the operation of a container freight station. It claimed deduction under section BO-IA(4) producing a certificate dated July 13, 2006, from the Jawaharlal Nehru Port Trust Nhava Sheva declaring that the assessee was considered an extended arm of port-related services. The education was disallowed on the ground that the certificate was withdrawn on October 5, 2007. The Commissioner (Appeals) confirmed the view of the Assessing Officer. The Tribunal held in favour of the assessee. A search....