TaxTMI 
TaxTMI 
2023 (12) TMI 1510
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....tting total income of Rs.28,68,02,280/-. The assessment was completed u/s 143(3) on 29.01.2015 and the income was assessed at Rs. 29,59,62,962/-. 4. A search & seizure operation was conducted in the case of the assessee u/s 132 of the Act on 25.10.2018. Subsequently, the case was centralized to the Central Circle 1(1) vide order dated 30.11.2018. Notice u/s 153A dated 23.8.2019 was issued and served on the assessee to which the assessee filed return of income on 21.09.2019 admitting total income at "Nil" after claiming deduction u/s 80IA of the Act at Rs. 100,07,65,302/-. The assessee admitted income of Rs.10,69,31,507 as per the provisions of section 115JB. The Assessing Officer issued statutory notices u/s 143(2) and 142(1) on 3.10.2019 to which the AR of the assessee appeared before the Assessing Officer and furnished the requisite information as called for. 5. During the course of search and seizure operation it was found that the company is following certain specified Standard operating procedure (SOP) with respect to purchase of material. As per SOP the purchase process starts from receipt of requisition from various project sites by procurement department. The procurem....
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....sponse to notice/s 153A that the assessee has claimed deduction u/s 80IA(4) for an amount of Rs.100,07,65,302/- for the first time by admitting gross total income at Nil, the details of which are as under: Gross Total Income - Rs.30,60,57,963 Less: Deductions u/s Chapter VI A: a) Infrastructure facility u/s 80IA(4):Rs. 1,00,07,65,302 - Rs.30,60,57,963 Total Income Rs. Nil 6.1 Since the assessee has not claimed any deduction u/s 80IA(4) in the original return but has made such claim for the first time in the return filed in response to notice u/s 153A, the Assessing Officer asked the assessee to substantiate such claim by providing the copies of agreement with Central/State Govt. or local authority or any statutory body. Rejecting the various explanation given by the assessee and distinguishing the various decisions cited before him, the Assessing Officer held that the assessee company is not entitled to make a fresh claim u/s 80IA(4) in the return filed in response to notice u/s 153A. He further held that the assessee is also not entitled for the deduction as the assessee company has not entered into agreements with the Govt. authorities directly, the Assessing....
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....int Venture and the Appellant has not satisfied the conditions laid in section 80IA of the Act, for granting deduction, under the facts and circumstances of the case. 8. Whether the learned Authorities below are correct in not appreciating the fact that, the Appellant has executed the works and was responsible for designing, drawing, risk of project, execution of project, maintenance and defect liability, under the facts and circumstances of the case. 9. Whether the learned Authorities below have erred in not appreciating the fact that, the Appellant is involved in design, development, operation and maintenance, and is eligible for claim of deduction under section 80IA of the Act, of an amount being Rs. 30,60,57,963/-, under the facts and circumstances of the case. 10. The learned Authorities below ought to have considered the tax relief claimed by the Appellant, an amount being Rs. 12,22,825/-, under section 90/90A of the Act, under the fact and circumstances of the case. 11. The Appellant denies himself liable to be charged to interest under section 234D of the Income-Tax Act, 1961, under the facts and circumstances of the case. 12. Th....
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.... [v]. Pursuance to the notice issued under section 153A of the Act, the Appellant filed the return of income for the impugned assessment years 2013-14 to 2015-16 declaring the following respective Incomes: A.Y. Date of filing of the return u/s. 153A of the Act Amount declared in the return u/s. 153A of the Act. 2013-14 21/09/2019 NIL 2014-15 21/09/2019 36,30,37,160/- 2015-16 21/09/2019 72,43,15,293/- 21/09/2019 [vi]. The learned assessing officer issued statutory notices and called for certain details and explanations. NIL [vii]. The learned Assessing Officer concluded the assessment by passing an order of assessment under section 143 [3] r.w.s. 153 A of the Act for the impugned Assessment Years determining the total income of the appellant, by making disallowance of deduction claimed by the Appellant under section 80IA [4] of the Act, for the Assessment Years 2013-14 to 2015-16, by holding that the Appellant is not entitled for fresh claim of deduction under section 80IA[4] of the Act, which was not claimed in the return of incom....
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....ssing officer. Note: Copy of the CIT[A] order dated 31/03/2022 for the A.Y. 2013-14 are at Pages 7 to 164, for the A.Y. 2014-15 are at pages 7 to 172, and for A. Y. 2015-16 are at pages 7 to 164, of the Memorandum of Appeal. 31/03/2022 [x]. The Appellant being aggrieved by the orders passed by the learned Commissioner of Income-tax [Appeals] for the impugned A. Y's 2013-14 to 2015-16, preferred appeal before the Honorable Income-tax Appellate Tribunal, Hyderabad which is numbered as ITA No's. 239 to 241/Hyd/2022. Note: Copy of the grounds of appeal filed by the appellant for the A.Y. 2013-14 are at Pages 4 to 6; for the A.Y. 2014-15 are at pages 4 to 6 and for the A.Y. 2015-16 are at pages 4 to 6 of the Memorandum of Appeal. 12/04/2022 [xi]. That being aggrieved by the order of the learned Commissioner of Income-tax [Appeals] 11, Hyderabad, the appellant has preferred the present appeal before this Hon'ble Tribunal as per the provisions of section 253 of the Act in pursuit of justice, by raising various ground which are enclosed along with the Memorandum of Appeal. SYNOPSIS 2. The appellant crave l....
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....147, 148, 149, 151 and 153 of the Act. In case of a person who has been searched under section 132(1) of the Act, or in whose case books of account, other documents or any assets" are requisitioned under section 132A of the Act, after 31.5.2003, the Assessing Officer has to issue a notice to him for filing the return in respect of each assessment year falling within six assessment years immediately preceding the assessment year relevant to the previous year in which the search or the requisition is made. [iv]. The learned Assessing Officer issued notice under section 153A of the Act, dated 23/08/2019, the Appellant in response to notice under section 153A of the Act, filed the return of income on 21/09/2019, which is valid return and sustainable in law. It is because of the provision of law stated in section 153A[1][a] of the Act, that a statutory presumption is made that a return filed under section 153A of the Act, is a return required to be filed under section 139[1] of the Act. [v]. The liability to file a return of income in response to a notice issued under section 153A of the Act, is as much good as the liability to file a return under section 139[1] of the....
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....eted 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 this solitary issue thus are allowed whereas, the relevant ground of the Revenue's appeal on this issue for A.Y. 2009-10 to 2011-12 are dismissed. " (Emphasis Supplied) [x]. The appellant places reliance on the following decisions for the above proposition canvassed that the return filed in response to notice under section 153A of the Act, has to be considered as return filed under section 139[1] of the Act. ⮚ Kirti Dahyabhai Patel Vs. ACIT [2015] 280 CTR 216 [Guj]; ⮚ ACIT Vs. Splendor Landbase Limited 2018 TaxPub(DT) 3602 [Del]; ⮚ Nandini Delux Vs. ACIT [2015] 37 ITR(Trib) 52 [Bang]; ⮚ ACIT Vs. V.N. Devadoss [2013] 093 DTR 0073 [Chennai]; ⮚ DCIT Vs. Eversmile Construction Co. (P) Ltd., [2012] 143 TTJ 322 [Mum]; ⮚ Faisal Abbas Vs. DCIT in ITA No. 4385 & 387/Mum/2010, dated 25/10/2011, [Mumba....
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....f M/s. Transtroy India Limited was not accepted by the Revenue and further appeal has been filed before the Honorable High Court against the order of the Honorable ITAT. [ii]. The Honorable CIT(A)'s has dismissed the ground raised by the Appellant by stating that the Appellant is prima facie ineligible for filing a claim and therefore the process of verification of the claim becomes infructuous. In short the Honorable CIT(A)'s has not adjudicated this ground raised by the Appellant. [iii]. Without prejudice, the learned authorities ought to have appreciated that the JV / Consortium is only a pass through entity and the constituents do the actual execution of the work procured by the JV. The JV has never offered the income for taxation in its return nor claimed any deduction under section 80IA[4] of the Act, in the return of income. [iv]. It is the Appellant who had executed the work and consequently derived the income and therefore eligible for deduction. As per the provisions of section 80IA[4] of the Act, the benefit of deduction under this section is to be given only to the enterprise who carried on the project. The Appellant has rightly claime....
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...., Mrs. Mamata Choudhary appeared along with the CIT (DR) Mrs. TH Vijaya Lakshmi and submitted that the issue is decided in favour of the Revenue by the recent decision of the Tribunal in the case of Dy. CIT vs. HES Infra (P) Ltd in ITA Nos.184 & 185/Hyd/2018. The ld Standing Counsel drew the attention of the Bench to Pages 106-107 of the order of the ld CIT(A) which reads as under: 6. The Decision: A search u/s. 132 of the Income Tax Act, 1961 was conducted on 25.10.2018 in the case of the appellant company. The notices u/s. 153A were issued to the appellant company for AY 2013-14 to 2019-20. In the returns filed in response to notices u/s 153A, the appellant company had filed a fresh claim u/s. 80IA for AY 2013-14 to 2015-16, which was not claimed earlier in the original returns of income filed u/s 139(1) and the said returns filed u/s 139(1) were processed and completed either u/s 143(3) or 143(1). In the proceedings u/s 153A, the assessments were completed by rejecting the claim of deduction u/s 80IA. The common issue is of disallowance of fresh claim of deduction u/s 80IA, not originally made in the regular return and concluded proceedings, is adjudic....
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....e search proceedings are for the benefit of the Revenue and not for the benefit of the assessee. It was further submitted that once the assessment order was passed in favour of the assessee had attained finality and no appeal has been filed by the assessee, within the limitation period than the order u/s 143(3) qua assessee is final. However, so far as the Revenue is concerned, the order can be revisited within the four corners of section 147/148, 153A & 263 of the Act. In any case, it is not permissible for the assessee to raise a fresh claim while filing the return of income in response to notice u/s 153A claiming for a fresh deduction. It was submitted that for the purpose of claiming deduction u/s 80IA(4) it is essential to file the return of income as contemplated in law and it should be filed within the stipulated period as provided u/s 139 and the rules framed for that purpose for claiming deduction u/s 80IA after fulfilling all the conditions. In the present case, the assessee has not claimed any such deduction while filing the original return of income and it was also not supported by any audit report. Subsequently, the assessee, with a view to take advantage of search wit....
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....shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139;" 15. It is essential for the assessee to file the return of income in the manner provided under section 139 and further, it is essential for the assessee to furnish such other particulars as may be required to be filed in accordance with law. The statute has used the word "such other particulars" in clause (a) of section 153A of Income Tax Act 1961. The word "such other particulars" should not be given a restrictive meaning as the assessee was duty-bound not only to disclose the income, expenditure but also the deduction and exemption in accordance with provisions of the Income Tax Act, which cast duty on the assessee to mention and provide all the details. In case, the assessee failed to provide the necessary information, which are beneficial to the Revenue and detrimental to the assessee, the Assessing Officer is empowered to make the additions as and when such information comes to the notice of the Assessing Officer. 16. However, if the assessee claims a deduction or exemption in response to notice u/s 153A, which is not claimed at the time of ....
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....e, as may be specified5 by the Board in this behalf; or (ii) is the owner or the lessee of a motor vehicle other than a two-wheeled motor vehicle, whether having any detachable side car having extra wheel attached to such two-wheeled motor vehicle or not; or (iii) 6[ *** ] (iv) has incurred expenditure for himself or any other person on travel to any foreign country; or (v) is the holder of a credit card7, not being an "add-on" card, issued by any bank or institution; or (vi) is a member of a club where entrance fee charged is twenty-five thousand rupees or more, shall furnish a return, of his income 8[during any previous year ending before the 1st day of April, 2005], on or before the due date in the prescribed form9 and verified in the prescribed manner and setting forth such other particulars as may be prescribed : Provided further that the Central Government may, by notification10 in the Official Gazette, specify the class or classes of persons to whom the provisions of the first proviso shall not apply: Provided also that every company 11[or a firm] shall furnish on or before the due date the return in respect....
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....y of the provisions of the Act:] 72[Provided that where an assessee is required to furnish a report of audit specified under sub-clause (iv), (v), (vi) or (via) of clause (23C) of section 10, section 10A 73[, section 10AA], clause (b) of sub-section (1) of section 12A, section 44AB 73[, section 44DA, section 50B], section 80-IA, section 80-IB, section 80-IC, section 80-ID, section 80JJAA, section 80LA, section 92E, 74[section 115JB 75[, section 115JC] or section 115VW] 76[or to give a notice under clause (a) of sub-section (2) of section 11] of the Act, he shall furnish the same electronically.] 20. The Rule 18BBB provides as under : [Form of audit report for claiming deduction under section 80-I or 80-IA or 74[80-IB or section 80-IC]. 18BBB. (1) The report of the audit of the accounts of an assessee, which is required to be furnished under sub-section (7) of section 80-IA or sub-section (7) of section 80-I, except in the cases of multiplex theatres as defined in sub-section (7A) of section 80-IB or convention centers as defined in sub-section (7B) of section 80-IB 75[or hospitals in rural areas as defined in sub-section (11B) of section 80-IB], ....
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.... 22. In the present case, as per the assessment order, the assessee has not claimed any deduction in the original return of income filed on 30.09.2009. The assessee has not claimed such deduction under section 80IA during the assessment proceedings for the said assessment year, though order was passed under section 143(3) of the Act. 23. The assessee has claimed deduction for the first time in the return of income filed in response to notice under section 153A of the Act. The paper return was filed by the assessee on 09.10.2013, whereas the assessee was required to file electronic return. The assessee had filed the electronic return on 28.03.2014, claiming the deduction under section 80IA for an amount of Rs.2,50,55,348/. 24. For the purpose of claiming the deduction, it was essential to claim the deduction before or on the date of filing the return under section 139(1) of the Act. Admittedly, the assessee has neither claimed the deduction in the original return of income filed on 30.09.2009 nor had claimed the deduction during the original assessment proceedings for A.Y. 2009-10 passed u/s 143(3) of the Act. The Assessing Officer had passed the assessment or....
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....plant on transfer which was previously used for any purpose √ (d) If yes, please specify value of machinery or plant received on transfer (e) Total value of machinery or plant used in business Rs.27,71,93,962/- 27 Total Sales of the undertaking Rs.406,09,16,733/- 30 Deduction under section 80-1/80-IA/80-IB/80-IC (strike out whichever is not applicable) Rs.2,49,05,348/- 27.1. Similarly, at page 53 for the A.Y. 2010-11 at Sl.Nos.26, 27 and 30, it was mentioned as under: 26 For claim of deduction under section 80-IA(4)(ii) and (iv)/80-IB(3), (4), (5), (7) and (11)/80-IC please indicate : Yes No (a) Whether the undertaking or enterprise has been formed by the splitting up or the reconstruction of a business already in existence √ (b) If yes, whether the circumstances and the period specified in section 33B is applicable (please give details) (c) Has the undertaking or enterprise received any machinery or plant on transfer which was previously used for any purpose √ (d) If yes, please specify value of machine....
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.... out whichever is not applicable) Rs.17,16,76,560/- 28. On the basis of the above, it is clear that the assessee has not claimed deduction under section 80IA of the Act in the original proceedings and also have not filed the audit report however, at the time of filing of return of income under section 153A of the Act, the assessee had filed the audit reports and claimed deduction under section 80IA of the Act. 29. A perusal of the assessment order passed under section 143(3) r.w. section 153A dated 31.03.2014, shows that the Assessing Officer has accepted the income determined as per the assessment order under section 143(3) dt.22.12.2011 for Rs.30,60,90,932/-. Thus, no addition was made by the 29 M/s. HES Infra Pvt. Ltd. Assessing Officer during the assessment proceedings under section 143(3) r.w. section 153A of the Act. In our view, the Assessing Officer was right in denying the claim of deduction u/s 80IA to the assessee as no addition was made in the hands of the assessee during the assessment proceedings on account of any incriminating material. Further, the issues which have attained finality, in an unabated assessment are required to be restricted havin....
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....h Court), (2) Jai Steels (India) Jodhpur Vs. ACIT reported in 36 taxmann.com 523 (Bombay High Court) and (3) Rachana Infrastructure (P) Ltd., (2022) 138 taxmann.com 416 (Gujarat High Court). For the above said purposes, we are reproducing the finding portion of the Hon'ble Gujarat High Court in the case of Rachana Infrastructure which in turn had relied upon other decisions and which is as under: "7. So far as the first relief which is sought for by the writ applicant as regards the challenge to the impugned order dated 19-6-2020 passed by the Principal Commissioner of Income Tax-3, Ahmedabad is concerned, in our view, the same is squarely covered by the decision of the Bombay High Court in the case of EBR Enterprises v. Union of India [2019] 107 taxmann.com 220/266 Taxman 15 (Mag.)/415 ITR 139. The question for consideration which arose before the Bombay High Court in the aforesaid case was that whether the Commissioner was justified in exercise of powers conferred under section 264 of the Act in rejecting the revision application more particularly, when the assessee had failed to raise the claim of deduction under section 80-IB(10) and subsequently being raised befor....
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...., the CIT may, either of his own motion or on an application by the assessee, call for the record of any proceeding under the Act and pass such order thereon not being an order prejudicial to the assessee, as the thinks fit. 32 M/s. HES Infra Pvt. Ltd. Sub - ss. (2) and (3) of section 264 provide for limitation of one year for the exercise of this revisional power, whether suo motu, or at the instance of the assessee. Power is also conferred on the CIT to condone delay in case he is satisfied that the assessee was prevented by sufficient cause from making the application within the prescribed period. Sub-s. (4) provides that the CIT has no power to revise any order under s. 264(1) : (i) while an appeal against the order is pending before the AAC, and (ii) when the order has been subject to an appeal to the Tribunal. Subject to the above limitation, the revisional powers conferred on the CIT under s. 264 are very wide. He has the discretion to grant or refuse relief and the power to pass such order in revision as he may think fit. The discretion which the CIT has to exercise is undoubtedly to be exercised judicially and not arbitrarily according to his fancy. Therefore, subject to t....
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....also in case of Danny Denzongpa v. CIT [2010] 7 taxmann.com 81/194 Taxman 415 [2012] 344 ITR 166, has taken a similar view. 8. However, the Petitioners are faced with the statutory provision contained in sub- section (5) of section 80A of the Act. The Petitioners' claim cannot therefore be accepted de hors the said statutory provision and ordinary principle of the wide powers of the CIT exercising revisional jurisdiction under section 264 of the Act cannot be imported. What subsection (5) of section 80A of the Act mandates is that, if the assessee fails to make a claim in his return of income for any deduction under the provisions specified therein, the same would not be granted to the assessee. This condition or restriction is not relatable to the Assessing Officer or the Income-tax Authority. This condition attaches to the claim of the assessee and has to be implemented by the Assessing Officer, CIT or the Appellate Tribunal as the case may be. There is no indication in sub-section (5) of section 80A of the Act as to why the restriction contained therein amounts to limiting the power of Assessing Officer but not that of Commissioner. 9. This issue can be loo....
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....to file the audit report along with the original return of income for claiming the deduction under Chapter VI of the Act. 33.1. So far as the decisions relied upon by the learned counsel for the assessee in the case of PCIT - 2 Vs. M/s. JSW Steel Ltd., (ITA No.1934 of 2017 of Mumbai High Court), PCIT Vs. Shri Neeraj Jindal (supra), DCIT Vs. Megha Engineering and Infrastructure Ltd., Hyderabad (supra), ACIT Vs. M/s. Splendor Landbase Limited (supra), M/s. KNR Constructions Vs. DCIT (supra), PCIT Vs. Vijay Infrastructure (supra), Gopal Lal Bhadruka Vs. DCIT (supra) and PCIT Vs. Abhisar Buildwell (P) Ltd. (supra) are concerned, the same in our opinion are not applicable to the facts of the case and are clearly distinguishable. 34. The decision relied upon by the assessee in the case of Vijay Infrastructure(supra) is not applicable and is clearly distinguishable. Firstly, the said decision was not applicable as it has mentioned that "the time for filing the revised return has not expired." In the present case, the original return of income was filed on 30.09.2009 and the return u/s 153A of the Act was filed on 28.03.2014. Thus, the return by the assessee on 28.03.2014....
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....t only with respect to the material or additions which are relatable to the incriminating material. Hence, the judgment of Hon'ble Delhi High Court in our opinion is also not applicable. 36. The reliance of the assessee on the decision of Hon'ble Supreme Court in the case of Abhisar Buildwell Pvt. Ltd. (supra), is of no help to the assessee as the Hon'ble Supreme Court in the said case has held that on what basis, the Assessing Officer can make the additions in the reassessment proceedings under 37 M/s. HES Infra Pvt. Ltd. section 153A of the Act. The Hon'ble Supreme Court has held as under : "14(iii) in case any incriminating material is found/unearthed, even, in case of unabated/completed assessments, the AO would assume the jurisdiction to assess or reassess the 'total income' taking into consideration the incriminating material unearthed during the search and the other material available with the AO including the income declared in the returns;". 37. In our opinion, the Hon'ble Supreme Court had only interpreted the scope and ambit of the power of the Assessing Officer to determine the total income, based on incriminating m....
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....g) CIT vs. Sun Engg. Works (P) Ltd (1992) 198 ITR 297 (S.C) h) M/s. KNR Constructions Ltd vs. DCIT (Ita No.946 to 948/Hyd/2015) i) DCIT vs. M/s. KNR Constructions Ltd (ITA 190 & 191/Hyd/2018) j) PNR Construction Co. Ltd vs. DCIT (2013) 37 Taxmann.com 361 (Agra Trib) k) M/s Transstory India Ltd vs. Income Tax Officer (ITA No.540/Vizag/2009. 15. The above cited judgments except Shrikant Mohta vs. CIT (Supra) were considered by the Tribunal and thereafter only the decision in the case of Dy. CIT vs. HES Infra (P) Ltd was Mohta (Supra) is concerned, suffice to say the said judgment was on its own facts and the Hon'ble High Court has no occasion to examine the issue in the perspective of section 80IA and 80AC. In this case, search was carried out in assessee's premises on 2.9.2004 and no return was filed for the A.Y 2004-05, as it was required to be filed on 31.10.2004 (i.e. after the date of search) and in response to notice u/s 153A, received by the assessee on 27.03.2006, the assessee reported to have filed the return of income on 26.04.2006 and claimed a loss that the assessee intended to carry forward in the subsequent year. However, i....
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....e records relied upon by the parties nor is there any reference to the date of such notice in any of the orders appended to the papers. Indeed, the time permitted by the relevant notice under Section 153A(1)(a) of the Act for the assessee to file the return is also not available. As recorded above, it is the submission of the assessee that such notice was received by the assessee on March 27, 2006 and it afforded a month's time to the assessee to file the assessee's return and the assessee's return for the assessment year 2004-05 was filed on April 26, 2006. The date when the return was filed, however, is verifiable from the orders available. In the light of the substantial questions of law being answered herein, a definitive final order cannot be passed without being sure of the date of issuance of the notice under Section 153A(1)(a) of the Act and the time afforded by such notice for the assessee to file the return. For such purpose, the orders impugned passed by the Appellate Tribunal require to be set aside and the matters remitted back to the Tribunal for the Tribunal to ascertain the details as to the date of the notice and the time afforded to file the r....
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....and has claimed deduction u/s 80IA(4) for the first time. In this regard, though the issue has been considered by us elaborately while passing the decision in the case of Dy.CIT vs. HES Infra (P) Ltd, however, the important aspect is that the assessee was required to file the audit report along with the agreement with the said govt.deptt. etc., in the requisite format and claim the deduction. Now after a lapse of considerable period (original return of income was filed on 30.11.2013 and search took place on 25.10.2018), and the assessee has filed the return of income on 21.9.2019 claiming the deduction u/s 80IA(4) for the first time. Admittedly, the period for revising the return of income or filing the revised return was already over and the order of the assessment u/s 143(3) passed on 29.1.2015 had attained finality. No appeal has been preferred against the original order passed by the Assessing Officer. Even time for filing the rectification application has also lapsed. In the return filed on 21.9.2019 the assessee for the first time has claimed the deduction and sought a refund. As held by us in the case of Dy. CIT vs. HES Infra (P) Ltd (Supra), the assessee is not permitted to....