TaxTMI 
TaxTMI 
2019 (11) TMI 1549
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....sed u/s.153A r.w.s 143(3) of the Act particularly in respect of deduction claimed originally and allowed in original order u/s.143(3) of the Act and not related to any incriminating material found during action u/s.132 of the Act. 2. The learned Commisioner of Income Tax(Appeals)-11, Ahmedabad erred in confirming the action of the assessing officer in disallowing the claim of deduction of Rs. 1,82,60,739/- u/s.80IA(4) in repsect of following infrastructure projects undertaken by the appellant. Sr.No. of Project referred by CIT (Appeals) Name of project Amt. of deduction claimed u/s.80IA (in Rs.) 1 ADB/RRR/P-9/AMR/L-1 Amreli dist. 854,168 2 ADB/RRR/P-4/RJT/L-2B GONDAL 218,489 3 ADB/RRR/P-4/RJT/L-3A RAJKOT 920,035 4 ADB/RRR/P-4/RJT/L-4A MORBI 648,030 5 ADB/RRR/P-4/RJT/L-4B WAKANKER 709,256 6 ADB/RRR/P-5/SNR/L-2B S'NAGAR 925,830 7 ADB/RRR/P-5/SNR/L-3A S'NAGAR 904,708 8 ADB/RRR/P-7/BVN/L-1B VALBHIPUR 512,921 9 ADB/RRR/P-7/BVN/L-1C GADHADA 577,748 10 ADB/RRR/P-7/BVN/L-2B SHIHOR 798,828 11 AJI-III GWSSB/JAMNAGR 50,040 12 CHARKHADI-VEKARI-GUNDALA ROAD KM 0/0 TO 13 ....
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....nds of appeal raised by the assessee are as follows: 1. The learned Commissioner of Income Tax (Appeals)-11, Ahmedabad erred in upholding the validity of order passed u/s.153A r.w.s 143(3) of the Act particularly in respect of deduction claimed originally and allowed in original order u/s.143(3) of the Act and not related to any incriminating material found during action u/s.132 of the Act. 2. The learned Commisioner of Income Tax(Appeals)-11, Ahmedabad erred in confirming the action of the assessing officer in disallowing the claim of deduction of Rs. 3,45,20,284/- u/s.80IA(4) in repsect of following infrastructure projects undertaken by the appellant. Sr.No. of Project referred by CIT (Appeals) Name of project Amt. of deduction claimed u/s.80IA (in Rs.) 1 ADB/RRR/P-4/RJT/L-2B GONDAL 103,315 2 ADB/RRR/P-4/RJT/L-3A RAJKOT 349,870 3 ADB/RRR/P-4/RJT/L-4A MORBI 183,069 4 ADB/RRR/P-4/RJT/L-4B WAKANKER 33,256 5 ADB/RRR/P-5/SNR/L-2B S'NAGAR 463,901 6 ADB/RRR/P-5/SNR/L-3A S'NAGAR 412,270 7 ADB/RRR/P-7/BVN/L-1B VALBHIPUR 1,062,392 8 ADB/RRR/P-7/BVN/L-1C GADHADA 671,180 9 ADB/RRR/P-7/BVN....
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....nd the due dates specified as per Provident Fund Act. The Ld. CIT(A) has not appreciated that that disallowance is made u/s 36(l)(va) r.w.s. 2(24)(x) of the Act & provisions u/s 43B shall not be applicable. 3. On the facts and in the circumstances of the case and in law, the CIT(A) ought to have upheld the order of the A.O.to the above extent. 4. It is, therefore, prayed that the order of the CIT(A) be set aside and that of the A.O. be restored to the above extent.6. 6. The preliminary issue to be decided in all these appeals is as to whether in respect of unabated assessments (no pending proceedings) as on the date of search, the AO could frame the search assessment u/s 153A of the Act by making certain additions without any incriminating materials found during the course of search. 7. The brief facts appearing in these cases are that there was a search and seizure operation conducted u/s 132(1) of the Act at the premises of the assessee dated 24-06-2010. The assessee is a contractor and mainly dealing in Government Contracts. The assessee had originally filed its returns of income for the Assessment Years 2005-06 and 2006-07 on 27.10.2005 & 26.12.2006 resp....
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....of search. There is no differentiation as found in the intent of the legislature to discriminate whether the assessments were originally framed u/s 143(1) or 143(3) or 147 of the Act. Therefore, if any incriminating material is not found during the course of search related to those concluded years, the Act does not confer any power to the Ld. AO to disturb the finding given thereon and income determined thereon as finality has already been reached and no proceeding was pending on the date of search. 11.1 We find that the judgment of the Hon'ble Bombay High Court in the case of CIT vs. Continental warehousing corporation (Nhava Shiva) Ltd. and All Cargo Global Logistics ltd. reported in 374 ITR 645 has decided the impugned issue in favor of the assessee. The relevant extract is reproduced below: "Once it is held that the assessment has attained finality, then the Assessing Officer while passing the independent assessment order under section 153A read with section 143 (3) could not have disturbed the assessment/reassessment order which has attained finality, unless the materials gathered in the course of the proceedings under section 153A establish that the reliefs grante....