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2022 (2) TMI 1356
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....d u/s 153A without appreciating the fact that the provisions of section 153A could not operate to the advantage of the assessee, who chose not to make a claim in the manner lawfully open to it u/s 139(1) of the Act. (ii) Whether on the facts and circumstances of the case, and in law, the ld ClT(A) erred in not appreciating that the provisions of section 153A to 153C cannot be interpreted to be further innings for Assessing Officer and/or assessee beyond provisions of sections 139, 147, and 263, as such no fresh claim or deduction could be claimed by the assessee or allowed by AO. (iii) Whether on the facts and circumstances of the case, in law, the ld. ClT(A) erred in not following the principle laid down by the Hon'ble Supreme Court in the case of CIT v. Sun Engineering Works (P) Ltd. (1922) 198 ITR 297 (SC) wherein the Hon'ble Supreme Court has held that in reassessment proceedings the assessee cannot claim deduction which was neither claimed nor allowed in original assessment and it is not open to the assessee to seek a review of concluded items. Since the proceedings under section 153A of the Act are analogous to proceedings under section 147 of the Ac....
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....lastiblends India Ltd., (2017) 86 taxmann.com 137 (SC) that Chapter-VI in the Act which ought to be strictly construed as per Dilip Kumar & Co. (2018) [95 taxmann.com 327] 4. The assessee has drawn a strong support from the CIT(A)'s detailed discussion holding it eligible for Section 80-IA deductions as under: 5. We have given our thoughtful consideration to the foregoing rival pleadings and find no merit in the Revenue's stand in principle. We make it clear that the assessee had not claimed the impugned Section 80-IA deduction relief in its original returns filed u/s.139(1) of the Act. There is further no dispute that the department had carried out the search in issue on 25-09-2012 in assessee's case wherein the time limit for filing Section 139(1) return for including Section 80-IA deduction had very well elapsed except in AY.2012-13. The Assessing Officer thereafter initiated Section 153A proceedings thereby asking for returns vide notices dt.06-06-2013 giving thirty days to the assessee for return(s) which were ultimately filed on 09-07-2013. 5.1. Mr.Sai at this stage raised an additional plea beyond the Revenue's grounds that the assessees four returns herein deserve ....
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....ceedings, all other consequences flowing therefrom in case of an assessee having not claimed Section 80-IA deduction in section 139(1) return are deemed to have been rendered non-operative. Coupled with this, hon'ble jurisdictional high court in Gopal Lal Bhadruka Vs. DCIT (2012) (346 ITR 106) (AP HC) has also made it clear that an Assessing Officer framing Section 153A assessment can very well take note of all other material apart from the incriminating and seized one during the course of search for the purpose of framing assessment u/s.153A as he supposed to total income. This tribunal's co-ordinate bench's order in M/s.KNR Constructions Ltd. Vs. DCIT in ITA No.946 to 948/H/2015, dt.16-10-2015 has also settled the issue now that the Hon'ble Rajasthan high court's decision in Jai Steel (India) Vs. ACIT (2013) [259 CTR 281] (Rajasthan) (supra) nowhere dealt with instance of a deduction claim under Chapter-VI as the assessee therein had raised a general fresh claim of expenditure of sale tax only. The very factual position continues in EBR Enterprises Vs. Union of India (2019) [107 taxmann.com 220 (Bombay)] (supra) as well wherein the hon'ble high court had come acros....
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.... 2009-10 to 2012-13 were filed on 09/07/2013. The particulars of income originally returned, income returned in response to notices u/s.153A and income assessed, are tabulated below: Original return of income Sl. Asst. No. Year Date of filing Income Returned (Rs.) filing Return filed u/s 153A Date of Income Returned(Rs.) Income assessed(Rs.) 2009-10 1. 29/09/2009 39,74,93,480 09/07/2013 37,17,74,460 44,91,50,227 2010-11 2. 29/09/2010 70,43,88,610 09/07/2013 88,48,30,870 97,09,33,830 29/09/2011 79,97,47,440 3. 2011-12 (revised on 23/03/2013 09/07/2013 87,35,46,730 88,00,27,016 claiming 801A(4) dedn.) 29/09/2012 4. 2012-13 (revised on 23/03/2013 79,38,86,870 09/07/2013 58,98,58,750 83,98,42,297 claiming 801A(4) dedn.) 3. Aggrieved by the income assessed for the respective years as above, the appellant filed appeals in all the years, raising identical grounds on common issue(s) disputed across the assessment years, which are tabulated as under: Document 2 DISPUTED ISSUE(S) in M/s. GKC PROJECTS LTD - A.Ys. 2009-10 to 2012-13 ....
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....For Asst. Years 2011-12 & 2012-13: "3.2 The fact remains that the assessee had not claimed the deduction u/s 80IA(4) in its original return. The contention of the assessee is if a return of income is filed u/s.139(5) there is no provision to treat it as invalid. The provisions of Sec. 153 A does nowhere state that no return of income should be filed after date of search is not acceptable since as per the proviso to Sec. 153A(1), proceedings pending on the date of initiation of search shall abate in case of search assessments. Hence, the assessee's contention that it is in position to claim the deduction even in its return of income filed in response to the notices u/s 153A of the I.T. Act is not tenable and the assessee cannot claim any new deductions in its return of income filed as a revised return after the date of search or in response to the notice u/s 153A of the I.T. Act. 3.3 In view of the above, the deducton claimed u/s 80IA(4) of the I.T. Act in ther revised return filed after the date of search and thereafter in the return filed in response to the notice u/s 153A is rejected. Since the deduction u/s 80IA(4) of the IT Act is not ....
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....ision of the Act would equally apply." Document 4 In the case of Nandini Delux v. ACIT [2015] 54 taxmann.com 162 (Bangalore - Trib.)/ [2015] 37 ITR(T) 52 (Bangalore - Trib.)/[2015] 68 SOT 5 (Bangalore - Trib.)(URO)/[2015] 167 TTJ 746 (Bangalore - Trib.), the Hon'ble tribunal held that - "8.5.2 A perusal of the provisions of section 153A(1)(a) of the Act clearly mandates that the Assessing Officer is to issue notice on the searched person requiring him to furnish, within such period as may be specified in the notice, the returns of income in respect of each assessment year falling within six assessment years etc. and the provisions of this Act shall, so far as may be, apply accordingly as if such return of income were a return to be furnished under section 139 of the Act. From the above, it is clear that a return of income filed in response to a notice under section 153A of the Act is to be treated on par with a return filed under section 139(1) of the Act. Thus, by virtue of the provisions of section 153A of the Act, where a notice has been issued thereunder to the assessee, the return of income so filed, ....
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....uations viz., the first in which the Document 5 assessee files return in response to notice under s. 153A disclosing lower income than the one originally assessed under s. 143(3) and the second situation in which the income is disclosed at the increased level, that is, after considering the additions so made in the original assessment and then agitates during the assessment proceedings about the deductibility of the amount (s) which was/were not allowed earlier. Probably the second course is adopted so as to preempt any move on the part of the Revenue to impose concealment penalty, if the addition is sustained in the assessment under s. 153A. In our considered opinion when the AO has to compute the total income of the assessee on the basis of return filed after considering the submissions made during the course of hearing before him, there cannot be any scope for arguing that the assessee has been rendered powerless to even lodge a claim in respect of which deduction was not allowed earlier. Here it is important to note that the total income is not reduced simply on the basis of making a claim. The AO is fully empowered to consider the ....
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....cision of Mumbai Bench in the case of DCIT vs. Eversmile Construction Co. P. Ltd., (supra) to hold that the assessee is entitled to claim deduction under section 801A in the returns filed in response to the notices issued under section 153A for the relevant six years i.e., A.Ys. 2006-07 to 2011-12 including A.Ys. 2009-10 to 2011-12 where the assessments had been originally completed under section 143(3) prior to the date of search. We accordingly, reverse the decision of the Ld. CIT(A) rendered on this issue for A.Ys. 2006-07 to 2008-09 and uphold the same for A.Ys. 2009-10 to 2011-12. The appeals of the assessee for A.Ys. 2006-07 to 2008-09 involving solitary issue thus are allowed whereas, the relevant ground of the Revenue's appeal on this issue for A.Ys. 2009-10 to 2011-12 are dismissed." . 6. The submissions of the Ld. A.R. are carefully considered. On the facts of the present case, the assessee-company's claim was being made for the first time in assessment proceedings seeking to quantify income pursuant to a Search u/s.132 6.1 On this aspect, it has to be fairly conceded that the cited decision of the ITAT in the case ....