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2020 (7) TMI 170 - AT - Income TaxDeduction u/s 80IA(4) on miscellaneous receipts - HELD THAT:- Miscellaneous receipts can be sub-grouped into three lots i.e. (i) the receipts covered by the earlier Tribunal’s order; (ii) the receipts, assessee never claimed deduction; and, (iii) the business connected receipts or otherwise. So far as sub-group one is concerned, we find the receipts is covered by the order of the Tribunal in the assessee’s own case for the assessment year 2008-09 [2012 (6) TMI 316 - ITAT, PUNE]. Assessing Officer is directed to follow the said order of the Tribunal scrupulously. When it comes to the balance of receipts, we find in respect of few receipts, the assessee never claimed the deduction. The Assessing Officer is directed to consider the same. Finally, regarding the rest of the receipts, if any, Assessing Officer shall examine each of them carefully qua the business nature, nexus to the business activity of the assessee etc and allow the deduction if they are of business nature. The Assessing Officer, after giving reasonable opportunity to the assessee, shall decide the issue in accordance with the law. Accordingly, the ground no.1 is partly allowed for statistical purposes. Deduction us. 80IA(4) - income offered by the assessee during the search and seizure action u/s 132 - HELD THAT:- We find the issue of granting of deduction u/s 80IA(4) of the Act in respect of the undisclosed business income of the assessee, is a covered issue by a series of judgements. A special reference is made here to the Co-ordinate Bench decision in the case of (i) M/s. Gajraj Constructions [2015 (10) TMI 1858 - ITAT PUNE] and (ii) Naresh T. Wadhwani [2014 (11) TMI 689 - ITAT PUNE]. In these cases, the Tribunal granted deduction u/s 80IA of the Act in respect of the undisclosed business income of the assessee. In our view, the issue is now covered one in favour of the assessee. Non-appropriation of seized cash toward the advance tax liabilities and consequent levy of interest u/s 234 - HELD THAT:- We find the seized cash is available for adjustment towards “advance tax liability” which constitutes “any existing liability” as defined in effect prior to the amendment by the Finance Act, 2013. This interpretation is supported by the Co-ordinate Bench of the Tribunal in the case of Happy Home Developers [2017 (9) TMI 1884 - ITAT PUNE]. - Decided in favour of assessee. Cash seized in search - Protective versus substantive addition - cash was added in the hands of Shri Shah is protective or substantive? - HELD THAT:- Referring to facts that seized cash from the residence of Sri Shah, the evidences gathered during the search action, statements recorded by the search team, offer of the explanation of the assessee why the said cash is discovered at his residence, and the fact of offering the same as an additional income of company etc. Shri Shah does not have any other source leave alone the business income sources to earn such huge cash. Assessee company offered the said income as income of the company and the same is approved by the CIT(A) and also confirmed the same by us in the Tribunal. Therefore, met the consistency, we are of the considered opinion, the Assessing Officer’s attempt to make this as protective addition appears logical and reasonable. Alternative addition made by the Assessing Officer on substantive basis is unsustainable for the reason that the addition becomes substantial if the assessee company makes any deduction u/s 80IA(4) of the Act. This is not the reasoning for making any assessment of any assessee’s income. The total income of an assessee has to be determined first based on the parameters laid down in the Income Tax Act. If the deductions are allowable as is a case in the case of LCESPL as held by us, the same should be allowed in accordance with the provisions of the Act. Therefore, seized cash belongs to the company will not become income of the assessee merely for the reason the said company claimed the deduction u/s 80IA(4) of the Act. This reasoning given by the Assessing Officer is dismissed.
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