TaxTMI 
TaxTMI 
2024 (6) TMI 457
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....018-19 and 2019-20 and all the deductions u/s. 80-IA for the AY 2017-18 onwards were claimed only after the search. 2. Ld. CIT(A) has erred by deleting the addition of Rs. 48,49,69,851/- i.e. the deduction claimed by the assessee for the AY 2020-21) u/s. 80-IA of the Act by not considering the fact that by virtue of second proviso to clause (i) of sub-section (4) of section 80IA, the claim of deductions u/s. 80-IA for the assessment years succeeding the assessment year 2017-18 can only be admissible if the deduction u/s. 80IA related to the same project(s) has been allowed in the assessment year 2017-18. 3. Ld. CIT(A) has erred by deleting the addition of Rs. 48,49,69,851/- i.e. The deduction claimed by the assessee for the AY 2020-21 u/s. 80IA of the Act by not considering the fact that for the purpose of section 80IA, the assessee was a "works Contractor" and NOT a "Developer of Infrastructure." 3. The present appeal filed by the revenue is delayed by 417 days for which an application for condonation of delay is placed on record vide letter dated 17.11.2023. The reason given in the said application for condonation of delay states that order of Ld CIT(A) was p....
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....operation u/s 132(1) of the Act was conducted at the registered office of the assessee at Knowledge Hub, DN 23, 2nd floor, Sector V, Salt Lake, Kolkata - 700 091, at its Corporate Office at Club Road, Silchar - 788 001 as well as at various branch offices of the assessee at Guwahati, Delhi Aizawl etc. on 20.09.2019. The search and seizure operation was finally concluded on 18.11.2019. Statedly, during the course of the search, no unaccounted cash, jewellery or any unaccounted/undisclosed asset was found or seized by the Search Team from the assessee. Prior to the search, the assessee was regularly assessed to income-tax at Kolkata. Consequent to the search and seizure operation, the assessee's case was centralized with ACIT/DCIT, Central-Circle-1, Guwahati vide order dated 23.12.2000 of the Ld. PCIT u/s 127 of the Act and accordingly, the jurisdiction over the case of the assessee was transferred from Kolkata to Guwahati. 7. The year under consideration before the Tribunal is AY 2020-21 which is the year of search by taking into account the date of conduct of search on 20.09.2019. It being the year of search the assessment has been completed u/s. 143(3) of the Act for the return....
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.... finding in para 4.13 as under: "4.13. The facts discussed in the foregoing paras make it amply clear that the claim of deduction made by the assessee under section 80-IA of the Income Tax Act, 1961 is not admissible. Thus, the claim of deduction u/s. 80-IA made by the assessee in the return of income e-filed for the assessment year 2017-18 in response to notice u/s. 153A of the Income Tax Act, 1961 but not made in the original return of income is thus being disallowed." 7.3. Ld. AO thus finally concluded in para 4.25 and 4.26 that relevant facts for AYs 2018-19 and 2019-20 are similar to AY 2017-18 and therefore, claim of deduction for these years are also not admissible. Basing his decision on the outcome of these three preceding assessment years, Ld. AO concluded that claim of deduction u/s. 80-IA for AY 2020- 21 is also not admissible. 7.4. For the purpose of understanding, the outcome of appeal for the three preceding assessment years, we perused the order of Co-ordinate Bench in the assessee's own case (supra), wherein this issue which formed the basis of disallowing the claim by the Ld. AO as narrated above. We take recourse to the said order wherein identical....
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.... whether fresh claim of deduction u/s 80IA(4) of the Act can be made in returns filed pursuant to section 153A of the Act when the same has not been claimed in original returns u/s 139 of the Act and (ii) whether, in terms of section 80IA(7) of the Act, the Audit Reports in Form 10CCB furnished within the time limit allowed in the Notices u/s 153A of the Act can be treated as filed within the time specified u/s 80IA(7) of the Act, given that the same were not filed with the original returns u/s 139 of the Act. 63. Barring the above, the Department has impliedly accepted the assessee's compliance with all the other conditions specified u/s 80IA(4) of the Act vis-à- vis the assessee's claim for deduction u/s 80IA(4) of the Act in respect of the impugned infrastructural facilities for the impugned AYs 2017-18, 2018-19 and 2019-20. The assessee has not filed any appeal before us to the extent the impugned additions/disallowancesof Rs. 12,78,15,656/- in respect of deduction claimed u/s 80IA of the Act vis-à-vis two infrastructural projects for AY 2019- 20 that have been sustained by the ld. CIT(A) in view of the applicability of second proviso appended to se....
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....s 80IA of the Act which were originally not made due to ignorance of correct legal position, were claimed for the impugned abated AYs 2017-18, 2018-19 & 2019-20 in view of the second proviso to Section 153A of the Act which provides that all pending assessments (wherein no such deductions had been claimed) and reassessments pending on the date of search shall abate. 68. The reasoning advanced by the ld. AO (insofar as relevant to the aforesaid grounds of appeal)in the assessment orders u/s 153A of the Act for the impugned years for disallowing the assessee's claim of deduction u/s 80IA of the Act in Returns of Income filed in response to notices issued u/s 153A of the Act for AYs 2017-18, 2018-19 & 2019-20 may be summarized as under: "(i) That, returns e-filed u/s 153A of the Act were in consequence of action taken u/s 132 of the Act and thus, couldn't be advantageous to the Assessee since the object of the legislation was to assess undisclosed income. If new claims of deduction or exemption were allowed to searched persons, then the same would be discriminatory to the other regular assessees who had lost a right as such to claim the deduction by efflux of time. ....
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....the Assessee to claim in return u/s 153A a deduction which was not claimed in the original return of income." 69. The aforesaid assessment order(s) u/s 153A/143(3) of the Act for the impugned assessment years were challenged in appeal before ld. CIT(A). Apropos the impugned grounds challenging the disallowance of fresh claims of deduction u/s 80IA of the Act in returns filed u/s 153A of the Act, ld. CIT(A), after considering the submissions filed by both the sides, the various provisions of the Income-tax Act, 1961 and the relevant case-laws on the impugned subject vide his order u/s 250 of the Act dated 27.07.2022finally held that even though the impugned claim of deduction u/s 80IA of the Act had not been made in the Original Income Tax Return filed u/s 139(1) of the Act or by way of a Revised Return, the assessee was still entitled to claim the deduction u/s 80IA(4)(i) of the Act in the Returns filed by the assessee u/s 153A of the Act in respect of the impugned assessment years. 70. Before dealing with the findings of ld. CIT(A) in respect of the above grounds, it is expedient to quote the relevant provisions of section 153A(1) of the Act (as applicable for th....
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....ovided also that no notice for assessment or reassessment shall be issued by the Assessing Officer for the relevant assessment year or years unless- (a) the Assessing Officer has in his possession books of account or other documents or evidence which reveal that the income, represented in the form of asset, which has escaped assessment amounts to or is likely to amount to fifty lakh rupees or more in the relevant assessment year or in aggregate in the relevant assessment years; (b) the income referred to in clause (a) or part thereof has escaped assessment for such year or years; and (c) the search under section 132 is initiated or requisition under section 132A is made on or after the 1st day of April, 2017. Explanation 1.- For the purposes of this sub-section, the expression "relevant assessment year" shall mean an assessment year preceding the assessment year relevant to the previous year in which search is conducted or requisition is made which falls beyond six assessment years but not later than ten assessment years from the end of the assessment year relevant to the previous year in which search is conducted or requisition is made. ....
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....nnot be used for the purpose of making the assessment or reassessment u/s 153A. (iv) That, the Return filed u/s 153A is the only Return which is filed by the Assessee u/s 153A and which contains the details of the heads of income of the Assessee (including the additional income disclosed) by the Assessee after the search. (v) That, the assessment or reassessment for each of the prescribed A.Ys is to be compulsorily made afresh by the A.O. u/s 153A of the Act only on the basis of the Return filed u/s 153A and not on the basis of Return filed u/s 139(1) or any other section. (vi) That, the Return filed u/s 153A is not an addendum or an Annexure of the earlier Return filed u/s 139(1) and the proceedings u/s 153A are not an extension of the earlier proceedings which has either abated or remains unabated. (vii) That, for one assessment, for the purpose of making an assessment, there can only be one return. After the search or requisition, for the purpose of making assessment or reassessment u/s 153A, details filed in both Returns [i.e., u/s 153A and u/s 139(1)] cannot be used by the A.O at his whims and fancies i.e., he cannot choose Return filed u/s ....
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.... furnished by the Assessee as well as the undisclosed income, if any, unearthed during the search or requisition and declared by the assessee in Returns of Income filed u/s 153A of the Act. (xii) That, since the "abatement" of proceedings means termination of the proceedings, the proceedings will have to be re-started. Section 153A talks about three things, viz. (a) First, about abatement of pending proceedings which were initiated on the basis of the Return filed u/s 139 (b) Second, about filing of fresh Return of income u/s 153A of the Act, and (c) Third, about assessment to be made on the basis of such fresh Return of Income u/s 153A. (xiii) That, no other section in the Act talks about abatement of the proceedings. Thus, once section 153A is invoked, then all other proceedings and the basis of those proceedings are extinguished. The entire process of the Return of Income and Assessment is initiated de-novo and completed afresh after section 153A is invoked for the purpose of assessment or re-assessment. (xiv) That, however, in case where the assessment or reassessment proceedings have already been completed and assessment or....
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....of AY 2014-15 to AY 2016-17 had already expired and the assessments for these years could be said to have been completed (unabated) in the case of the Appellant in respect of these assessment years (i.e. AY 2014-15 to AY 2016-17). Further, in the case of the Appellant, as on the date of the Search (i.e. on 20.09.2019), the assessment proceedings for AY 2017-18 (initiated vide Notice dated 24/09/2018, issued to the Appellant under Section 143(2) of the Income Tax Act, 1961) were pending. Yet Further, in the case of the Appellant, as on the date of the Search (i.e. on 20.09.2019), the assessment proceedings for A Y2018-19 & AY2019-20 were pending since either the time limit for issuance to a Notice under Section 143(2) of the Income Tax Act, 1961 had not expired OR the time limit to furnish a Return of Income was still available. Lastly, since on the date of Search (i.e. on 20.09.2019), the Appellant could not have furnished any Income Tax Act, 1961 in respect of the Assessment Year 2020-21 (relevant to the financial year 2019-20 during which the Search was conducted) since the relevant Financial Year had not expired and therefore the assessment proceedings....
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.... 071; ITA No. 1934 of 2017, judgment dated 05/02/2020] - Bombay High Court (iii) ACIT vs. Shantinath Detergents Pvt. Ltd. [2020 (3) TMI 964 - IT(SS) A No.27 to 32/Kol/2019, order dated 20/03/2020] - ITAT Kolkata (iv) Universal Medicare Pvt. Ltd vs. DCIT [2018 (12) TMI 406 - ITA Nos. 2967 to 2971/Mum/2016, order dated 05/12/2018]- ITAT Mumbai (v) Narendra Vegetable Products Pvt. Ltd. vs. ACIT [2015 (7) TMI 1298 - ITA 118/Nag/2013, 119/Nag/2013, 120/Nag/2013, 121/Nag/2013, 122/Nag/2013, 123/Nag/2013, 124/Nag/2013, order dated 30/07/2015]- ITAT Nagpur (vi) Bhanuben Kantibhai Savalia vs. DCIT [2019 (12) TMI 250 - IT (SS) Appeal Nos. 76 To 84 & 887 To 889 (Ahd.) Of 2015, order dated 17/09/2019] - ITAT Ahmedabad (vii) Shree Yamuna Pulses vs. ACIT [2013 (2) TMI 344 - IT(SS)A No.233, 234, 235, 236, 237, 238 and 239/Ahd/2010, order dated 07/08/2012]- ITAT Ahmedabad (viii) ACIT vs. Splendor Landbase Limited [2018 (6) TMI 444 - I.T.A. No.2461/DEL/2016 And C.O. NO. 215/DEL/2016, order dated 06/06/2018] - ITAT DELHI (ix) A. Srinivas Rama Raju vs. DCIT [2016 (10) TMI 174 - TA.No.975/Hyd/2015, order dated 19/08/2016] - ITAT Hyderabad"....
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....come Tax Return filed in compliance with the Notice issued under Section 153A of the Act, vis-à-vis those Assessment Years for which at the time of initiation of Search, assessments were completed (i.e., unabated Assessment Years) 3. That, in respect of the Assessment Years whose assessments were pending / had abated, upon filing Returns of Income in compliance with the Notices issued under Section 153A of the Act, the aforesaid Returns filed in compliance with the Notices issued under Section 153A of the Act NOT ONLY substitute the Original/Earlier Income Tax Returns (filed prior to Search or even afterwards) under Section 139(1) of the Income Tax Act, 1961, BUT, the Original Returns (filed, as aforesaid) become non-est (i.e. a nullity). 4. That, in respect of the Assessment Years whose assessment were pending / had abated, since the Returns of Income filed in compliance with the Notices issued under Section 153A of the Act substitute the Original/Earlier Income Tax Returns (filed prior to Search or even afterwards) under Section 139(1) of the Income Tax Act, 1961, an assessee was entitled to make Fresh/ New/ Revised Claim in the aforesaid Returns (i.e. un....
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....High Court (at page 926 of CIT(A) Order) (ix) S.R. Koshti vs. CIT [276 ITR 165] - Gujarat High Court (at page 928 of the CIT(A) Order) (x) CIT (Central) vs. Devi Films Private Limited [1981 (11) TMI 10 - [1983] 143 ITR 386 - Madras High Court (at page 928 of the CIT(A) Order) (xi) Mayank Poddar (HUF) vs. WTO [262 ITR 633] - Calcutta High Court (at page 929 of the CIT(A) Order)" 81. Ld. CIT(A) has further referred to (at page 921 of his order) the well settled proposition that ld. CIT(A) and the Hon'ble ITAT have power to allow deduction/exemption to an assessee to which he was entitled even though claim was not made by such an assessee in his Original Income Tax Return. In other words, the assessee, if entitled to a particular claim, which he missed in his Income Tax Return, may make the said claim during the Appellate Proceedings. He has placed reliance on the following judgments in this regard: "(i) Himachal Gramin Bank vs. DCIT [(2009) 176 Taxman 433(HP)] - Himachal Pradesh High Court (ii) V. Lakshmi Reddy vs. ITO [(2011) 196 Taxman 78 (Mad)] - Madras High Court (iii) CIT vs. Jai Parbolic Springs Ltd. [(2008) 306 ITR....
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....rns filed u/s 139 of the Act. With these observations, the impugned ground has been allowed by the ld. CIT(A) in favour of the assessee. 84. In the course of hearing before us, ld. Counsel for the assessee supported the order of the ld. CIT(A) vis-à-vis the deletion of disallowance of fresh claim of deduction u/s 80IA of the Act made in returns filed u/s 153A of the Act. He also filed a detailed written submission to support his assertions. Since the arguments made by ld. Counsel for the assessee apropos the impugned grounds are similar to and in alignment with those advanced by ld. CIT(A) while allowing the claim of the assessee and the same have already been elaborately discussed by us (supra), the same are not reiterated here to avoid repetition. 85. Per contra, ld. D/R vehemently challenged the order of ld. CIT(A) in deleting the disallowance of fresh claim of deductions u/s 80IA(4) of the Act made by the assessee in its Returns filed in response to Notices issued u/s 153A of the Act. He also filed a written submission dated 25.01.2023 reiterating the reasons advanced by ld. AO while making the impugned disallowance in the impugned assessment orders u/s....
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....th the sides. Reiterating the relevant facts in brief, in the instant case a search and seizure operation u/s 132(1) of the Act was conducted in the case of the assessee company on 20.09.2019. Pursuant to the said search, Notices u/s 153A of the Act were issued inter alia for the impugned AYs 2017-18, 2018-19 & 2019-20 on 04.02.2021[authenticated (i.e., digitally signed) by ld. AO on 05.02.2021], requiring the assessee to furnish its Returns of Income for the said years within 10 days of service of such notices i.e., on or before 15.02.2021. In response to the Notices issued u/s 153A of the Act, the assessee furnished its Returns of Income on 13.02.2021 i.e., well within the time permitted under the Notices u/s 153A of the Act. Vide the said Returns of Income filed in response to Notices u/s 153A of the Act, the assessee claimed deductions u/s 80IA(4)(i) of the Act as per the details compiled in Tables supra. The original Returns of Income u/s 139(1) of the Act for the impugned assessment years were earlier filed by the assessee without claiming any deduction u/s 80IA of the Act. While making fresh claims for deduction u/s 80IA(4) of the Act in the Returns of Income filed in compli....
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....nal Income-tax Return had not been filed as on the date of search as the 'due date' referred to u/s 139(1) of the Act had not expired. Thus, the proceedings for AY 2019-20 were also pending (i.e., were abated assessments). The above position has thus not been disputed by the Department. 89. Pursuant to the search and seizure operation in the case of the assessee, by virtue of operation of the second proviso to section 153A(1) of the Act, the pending assessments before ld. AO consequent to the original returns filed u/s 139(1) of the Act in respect of the impugned AYs 2017-18, 2018-19 & 2019-20 had abated. As per the provisions of Section 153A(1)(a) of the Act,the assessee was required to furnish fresh Returns of income for each of the impugned yearsin regard to which the Notices u/s 153A of the Act had been issued. As a result of abatement of pending assessment proceedings, only one fresh Assessment Order could be passed for each of the impugned assessment years on the basis of fresh Return of Income filed u/s 153A of the Act [and not on the basis of the original Returns filed earlier u/s 139(1) of the Act] by virtue of the provisions of section 153A(1)(b) of the Act and t....
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....53A reads as under: "Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this section pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate." 12. A plain reading of Section 153A would show that where notice under this Section is issued as result of any search under Section 132, assessment or reassessment if any relating to any assessment year falling within the period of six assessment years referred to under Section 153, pending on the date of initiation of search under Section 132 or requisition under Section 132A shall abate. The words, pending on the date of initiation of search under Section 132, or making of requisition under Section 132A, as the case may be, has to be assigned simple and plain meaning. Where the assessment or re- assessment is finalised, there are no pending proceedings to be abated, and restored to the file of the assessing officer. To abate means to diminish or to take away. The word 'abatement' has been defined in the Concise Law Dictionary ....
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....ncillary or collateral to it. The word is commonly used in the legislations, which provide for abatement of action/ suit; abatement of legacies; abatement of nuisance; and all actions for such nature, which have the pendency or continuance. The proceedings, which have already terminated are not liable for abatement unless statute expressly provides for such consequence thereof. 14. The word 'pending' occurring in the second proviso to Section 153A of the Act, is also significant. It is qualified by the words 'on the date of initiation of the search', and makes it abundantly clear that only such assessment or reassessment proceedings are liable to abate .................." 91. Viewed in the aforesaid light, the expression "abatement" of proceedings means termination of proceedings. Thus, with the abatement of the pending assessment proceedings for the impugned AYs 2017-18, 2018-19 & 2019-20 pursuant to the search action, the assessment proceedings were re-started/ re- initiated de-novo on the basis of fresh Returns of Income filed u/s 153A of the Act. In other words, the Returns of Income filed u/s 153A for the impugned assessment years wer....
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....The Hon'ble Gujarat High Courtheld as under: "13. Considering the facts and circumstances of the case and also considering the decisions relied upon by learned senior advocate for the appellant, we are of the considered opinion that the view taken by the Tribunal is erroneous. The CIT(A) rightly held that it is not relevant whether any return of income was filed by the assessee prior to the date of search and whether any income was undisclosed in that return of income. In view of specific provision of Section 153A of the I.T. Act, the return of income filed in response to notice under Section 153(a) of the I.T. Act is to be considered as return filed under Section 139 of the Act, as the Assessing Officer has made assessment on the said return and therefore, the return is to be considered for the purpose of penalty under Section 271(1)(c) of the I.T. Act and the penalty is to be levied on the income assessed over and above the income returned under Section 153A, if any." (ii) Shrikant Mohta vs. CIT [ITAT No.19 & 20 of 2015, GA No.246 & 247 of 2015, judgment dated 25/06/2018] - The Hon'ble Calcutta High Courtheld as under: "The non obstante clause at the be....
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....Section 139 (1) of the Act for the benefit under Section 139(3) of the Act to be availed of by the assessee." 94. This brings us to the conclusion that the provisions of the Act which would otherwise be applicable in case of a return filed in the regular course u/s 139(1) of the Act (including deductions under Chapter VI-A) would continue to apply in case of return filed u/s 153A of the Act even though the same may not have been claimed by the assessee in its original return of income u/s 139(1) of the Act. 95. Ld. CIT(A) has referred to a catena of judgments in support of the proposition that the assessee is entitled to make a fresh claim of deduction, exemption, claim of expenses etc. in its Return of Income filed in response to notice u/s 153A of the Act which were not made in the Return of Income originally filed u/s 139 of the Act. The same have been enlisted by us earlier in this order. Upon going through the case laws on the subject cited by ld. CIT(A), we find that these sufficiently address the issue at hand and unanimously uphold the above proposition of law. We would like to quote few judgments rendered in support of the aforesaid proposition including ....
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....upreme Court of India [SLP (Civil) Diary No. 10863 of 2018, order Dated 13/04/2018] (ii) DCIT vs. MBL Infrastructure Limited [2020 (1) TMI 457 - ITAT KOLKATA; IT(SS) No.77/Kol/2016 & C.O No.22/Kol/2019 & IT(SS) No.78/Kol/2016 & IT(SS) No.46/Kol/2016, order dated 23/12/2019]-The Kolkata ITAThas held as under: "17. We notice from a perusal of the case file in former assessment year 2010- 11 that assessee had filed its original return u/s 139(1) of the Act on 13.10.10. The department carried out a search in question in its office and other business premises on 28-29/10/2010. The Assessing Officer issued section 153A notice dated 20.07.2011 for assessment years 2005-06 to 2010- 11 asking for return of income within 15 days of service thereof. This notice stood served on the very day itself. 18. The assessee filed its post-search return on 30.09.11 reiterating the earlier income (supra). It had admittedly not claimed the impugned section 80IA deduction in either of these two returns. The assessee rather chose to file revised return/computation dated 15.03.2013 claiming section 80IA deduction for the first time inter alia pleading therein that the very claim st....
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....ul consideration to the above rival contentions. We reiterate that the assessee's regular return u/s 139(1) of the Act came on 13.10.10 followed by department's search action dated 28/29.10.10 and issuance of section 153A notice dated 20.07.11 seeking return within 15 days which stood served on the very day. The assessee furnished his section 153A return on 30.09.11. We find no substance in either of the Revenue's technical as well as legal arguments. It emerges first of all that the impugned section 80IA deduction claim on merits, is already covered by the tribunal common order (supra) in assessment years 2005-06 to 2009-10 dated 01.05.2019 that it is a developer having undertaken business risk in similar infrastructural projects. Revenue's pleadings in the instant appeal nowhere pinpointed any distinction in law and on facts in all these assessment years. It is further noted that the assessee has been deployed its fixed assets and also paid retention money to the payers concerned. All this sufficiently indicates that the assessee's payers nowhere undertook any risk in the corresponding projects. 28. Coming to technical aspect involved in the instant lis regarding the fil....
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....a. The assessee filed original return of income on 30.09.2008 for Assessment Year 2008-09 declaring loss at Rs. 104,17,70,752/- under the provisions of Section 139(1) of the said Act. The assessee's case was selected for scrutiny under Section 143(2) of the said Act on 03.09.2009. 3. During pendency of the assessment proceedings, a search was conducted under Section 132 of the said Act on the ISPAT Group of companies on 30.11.2010. 3.1. Following the search, notice under Section 153A of the Act was issued. In response, assessee filed return of income declaring total loss at Rs. 419,48,90,102/- on 29.03.2012. In this return of income assessee made a new claim for treating gain on pre-payment of deferred VAT/sales tax on Net Present Value (NPV) basis for an amount of Rs. 318,10,93,993/- as "capital receipt". 4. This new/fresh claim of assessee was disallowed by the Assessing Officer (hereinafter referred to as "AO) while finalising assessment under Section 143(3) read with Section 153A of the said Act vide the order dated 25.03.2013 by considering the same as "revenue receipt" instead of "capital receipt". The reasoning given by the AO was that the assessee....
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....roceedings under Section 153A of the Act which were referred to by the Tribunal in the impugned order. This stand of Mr. Malhotra is appreciated. ..... 8. At the outset, we may advert to Section 153-A of the Act. It deals with assessment in case of search or requisition. Sub-section (1) is relevant. It says that notwithstanding anything contained in Sections 139, 147, 148, 149, 151 and 153, in the case of a person where a search is initiated under Section 132 or books of account, etc. are requisitioned under Section 132-A, after 31.05.2003, the assessing officer shall - (a) issue notice to such person for furnishing return of income in respect of each assessment year falling within six assessment years, within such time as may be specified and upon such return of income being filed, the provisions of the Act shall apply as if such return were a return required to be furnished under Section 139; and (b) assess or re-assess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made. 8.1. In other words, Section 153-A(1) provides that where a person....
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....r reassessing the total income for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made. 8.3. The second proviso says that any assessment or re-assessment proceedings falling within the said period of six assessment years pending on the date of initiation of search under Section 132 or making of requisition under Section 132-A shall abate. The third proviso mentions that the Central Government may frame rules to specify such class or classes of cases in which the assessing officer shall not be required to issue notice for assessing or re-assessing the total income for the said six assessment years. 8.4. Reverting back to the second proviso what is to be noticed is that as per this proviso, any assessment or re-assessment in respect of any assessment year falling within the said period of six assessment years is pending on the date of initiation of search or making of requisition, those assessment or re- assessment proceedings shall abate. In other words, pending assessment or re-assessment proceedings on the date of initiation of search or making of requisition shall abate.....
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....ending, the same shall stand abated and the Assessing Authority cannot proceed with such pending assessment after initiation of search under section 132 of the said Act. 13. In the present case, search was conducted on the assessee on 30.11.2010. At that point of time assessment in the case of assessee for the assessment year 2008-09 was pending scrutiny since notice under Section 143(2) of the Act was issued and assessment was not completed. Therefore, in view of the second proviso to Section 153A of the said Act, once assessment got abated, it meant that it was open for both the parties, i.e. the assessee as well as revenue to make claims for allowance or to make disallowance, as the case may be, etc. That apart, assessee could lodge a new claim for deduction etc. which remained to be claimed in his earlier/ regular return of income. This is so because assessment was never made in the case of the assessee in such a situation. It is fortified that once the assessment gets abated, the original return which had been filed looses its originality and the subsequent return filed under Section 153A of the said Act (which is in consequence to the search action under Section 132)....
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....assessments framed u/s 153A of the Act on the basis of such Returns filed u/s 153A of the Act.In the instant case, since the Returns of Income filed u/s 153A(1) of the Act for the impugned assessment years substituted the original Returns filed u/s 139(1) of the Act, the said Returns u/s 153A(1) of the Act would be construed as the one filed u/s 139(1) of the Act and as specifically laid down u/s 153A(1)(a) of the Act, all the provisions of the Act [including Chapter VI-A and the impugned deduction u/s 80IA(4) of the Act] would apply to such Returns u/s 153A of the Act and the assessments u/s 153A of the Act framed pursuant thereto. We are, thus, of the considered view that the assessee in the instant case wasentitled to all legitimate claims of deduction, including its claim u/s 80IA(4) of the Act, in its Returns filed pursuant to Notices issued u/s 153A for the impugned A.Ys although the same were not claimed in its original Returns u/s 139 of the Act. 97. Reverting to the various counter-arguments/assertions made by ld. D/R vide his written submissions dated 25.01.2023, it is stated that insofar as the reliance placed by ld. D/R on the judgment rendered by the Hon'ble S....
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.... Act had been claimed were not filed within the time allowed u/s 139(1) of the Act, the right course of action would be to file condonation of delay u/s 119(2)(b) and (c) of the Act - also to our mind does not hold much substance.It is a fact on record that the Returns u/s 153A of the Act were duly filed within the time permitted in the Notices issued u/s 153A of the Act and since the said Returns u/s 153A of the Act substituted the original Returns filed u/s 139(1) of the Act, the same would be deemed to have been filed within the time permitted u/s 139(1) of the Act. We derive support to our aforesaid line of reasoning from the judgment rendered by the Hon'ble Kolkata High Court in the case of Shrikant Mohta vs. CIT [ITAT No.19 & 20 of 2015, GA No.246 & 247 of 2015, judgment dated 25/06/2018] wherein the Hon'ble High Court held as under: "The second question is answered thus: When search operations are conducted under Section 132 of the Act, the obligation of the assessee to file any return remains suspended till such time that a notice is issued for such purpose under Section 153A(1)(a) of the Act. If the return is filed by the assessee within the reasonable ti....
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....edings, it may be noted that a contrary view was taken by the Hon'ble Hyderabad ITAT in the case of DCIT vs. Megha Engineering & Infrastructure Ltd. [607/Hyd/ 2016 (AY 2010-11), 608/Hyd/ 2016 (AY 2011-12), 609/Hyd/ 2016 (AY 2012-13), 610/Hyd/ 2016 (AY 2013-14), 1375/Hyd/ 2016 (AY 2014-15) & 1540/Hyd/ 2016 (AY 2015-16), wherein even in context of completed/unabated assessments, the Hon'ble Tribunal opined that the assessee was entitled to claim deductions u/s 80-IA(4) of the Act on eligible projects afresh in Return filed u/s 153A of the Act although the same had not been claimed in the original Return filed u/s 139 of the Act and the original assessments had been completed on the said basis. In the face of contradictory views taken by the co-ordinate benches of the Tribunal in the above two cases, we are inclined to follow the view which favours the Assessee in consonance with the judgment rendered by the Hon'ble Apex Court in the case of CIT vs. Vegetable Products Ltd. (88 ITR 192),wherein the Hon'ble Court held that when two interpretations are possible, one in favour of the assessee must be adopted. 101. Further, the reliance placed by ld. D/R on the judgment rendered b....
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....f the expenditure and while declaring additional income, in response to the notice issued under section 153A of the Act, though he stuck to the income declared, set off was claimed as per law which should not be denied, overlooking the fact that the return of income filed under section 153A of the Act should be deemed to be the return filed under section 139 of the Act; irrespective of the question as to whether it is for the benefit of the assessee or department, the assessee is entitled to claim deduction of interest expenditure, particularly when the facts are already on record. The same opinion was echoed by all the Benches of the ITAT and thus the ratio of the decision of the Hon'ble Supreme Court, which was in this context of Section 147 of the Act, should not be imported into the proceedings under section 153A of the Act, more particularly when the claim of the assessee is not a fresh claim un-connected to the income declared but the claim was linked with the income declared. Having regard to the circumstances of the case, we are of the view that the Assessing Officer as well as the Ld. CIT(A) were not justified in disallowing the claim of deduction of Rs. 24,57,965. We dire....
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.... High Court andaresought to be undone by filing of Returns u/s 153A of the Act. As stated earlier, in the case of pending assessment proceedings, the original assessment initiated (and not concluded) on the basis of the original return filed u/s 139 of the Act terminates/abates and the entire assessment is re-initiated/re-started afresh on a de-novo basis on the basis of Return filed u/s 153A of the Act wherein all legally tenable deductions are allowable. As held by the Hon'ble Bombay High Court in Pr. CIT vs. JSW Steel Limited [422 ITR 071; ITA No. 1934 of 2017, judgment dated 05/02/2020] - "in view of the second proviso to Section 153A(1) of the said Act, once assessment gets abated, it is open for the assessee to lodge a new claim in a proceeding under Section 153A(1) of the Act which was not claimed in his regular return of income, because assessment was never made/finalised in the case of the assessee in such a situation." [at para 16 of the order] 104. In light of the aforesaid discussions, we have no hesitation in holding that the Assessee in the instant case was very well within its rights to claim deductions u/s 80IA(4) of the Act in its Returns filed in complian....
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....STRY OF FINANCE DEPARTMENT OF REVENUE कारà¥à¤¯à¤¾à¤²à¤¯ उप आयकर आयà¥à¤•à¥à¤¤, केनà¥à¤¦à¥à¤°à¥€à¤¯ सरà¥à¤•à¤²-1, गà¥à¤·à¤¾à¤¹à¤¾à¤Ÿà¥€ Office of the Deputy commissioner of Income Tax, Lentral Circle-1. Guwahati पथम तल, कमरा स 507, आयकर à¤à¤µà¤¨, किधियन बसà¥à¤¤à¥€, जी. à¤à¤¸. रोड, गà¥à¤µà¤¾à¤¹à¤¾à¤Ÿà¥€-781005 5th Floor, Reem No-507, Aayakar Bhawan, G.S. Read, Guwahati-781 005 F.No. A 1/Appeal ITAT/Central Circle 1/GHV/2023-24 142 11/TO, The Assistant Registrar, Income Tax Appellate Tribunal, Gauhati Bench, Guwahati. महोदय / Sir. Dated: 17-11-2023 Sub. - Reusons for Condonation of delay in filing the Departmental Appeal before the Hon'ble ITAT arising out of the Ld. CIT (Appeal), Central, NER, Guwahati's Order in Appeal No. CIT(A), Central NER, Guw....