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Desai Construction P. Ltd., Valsad Versus ACIT, Central Circle-2, Surat

Validity of assessment u/s. 143(3) r.w.s. 153A - assessee’s claim has been disallowed u/s. 80IA - Held that:- Search was conducted at the premises of assessee on 24.09.2008, wherein assessee admitted undisclosed income in respect of its other activities for the years 2008-09 and 09-10, which is evident from the impugned assessment orders. There is nothing on record to suggest that any other evidence including any incriminating material was found during course of search for the relevant assessmen .....

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ate of search are to be framed u/s. 153A, but in respect of unabated assessments which have become final and no incriminating material is found during the course of search for those years, no addition could be made in respect of such unabated assessments.See case of Continental Warehousing Corporation [2015 (5) TMI 656 - BOMBAY HIGH COURT]

Thus Revenue authorities were not justified in making disallowance claimed u/s. 80IA in respect of unabated assessments because there was no incri .....

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dated 24.11.2011 for both assessment years on similar issue. So, they are being disposed of by way of this common order for the sake of convenience. 2. In IT(SS)A No. 12/Ahd/2012, assessee has filed the appeal on the following grounds: 1) That the learned Commissioner of Income-Tax (Appeals) erred in law and in the facts of the case in confirming the order of the assessing officer in framing assessment U/s.143(3) r.w.s. 153A of the Act particularly when no material is found showing undisclosed .....

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in the facts of the case in confirming the order of the assessing officer in not allowing deduction U/s.80IA(4) amounting to ₹ 61,82,292 for A.Y. 2004-05. 4) That the learned Commissioner of Income-Tax (Appeals) erred in law and in the facts of the case in confirming the order of the assessing officer in charging interest U/s. 234B of the Act. 3. Assessing Officer has disallowed the claim of ₹ 61,82,292/- and ₹ 47,31,665/- for A.Y. 04-05 & 05-06 respectively. Matter was car .....

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d in law and in facts of the case in confirming the order of Assessing Officer in framing assessment u/s. 143(3) r.w.s. 153A of the Act. Even though assessment for the year under consideration was not pending on the date of initiation of search u/s. 132 and hence, the original assessment has not abated. In view of this, CIT(A) erred in law and facts of the case in confirming the order of Assessing Officer in not allowing claim of assessee. As prayed, same should be allowed. For this, assessee pl .....

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ontained in this Section i.e. Section 80IA shall apply in relation to a business referred to in subsection (4) which is in nature of works contract awarded by any person (including the Central or State Government) and executed by the undertaking or enterprise referred to in subsection (1). Assessee having merely executed two contracts for infrastructure development as awarded to him. In view of above, authorities below have rightly declined deduction u/s. 80IA to assessee. Same should be upheld. .....

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leted u/s. 143(3) wherein after due consideration of the submission of assessee, along with evidence placed on record, assessee was granted deduction u/s. 80IA in respect of development of an infrastructure project awarded to assessee by NHAI. The original order has been placed by assessee on record at age no. 165-170 of the paper book. Subsequently, search was conducted at the premises of assessee on 24.09.2008, wherein assessee admitted undisclosed income in respect of its other activities for .....

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d assessments for the years under appeal have become final and are not abated since they are not pending as on the date of search. Therefore, even though pursuant to issue of notice u/s. 153A, assessments for 6 years immediately prior to the date of search are to be framed u/s. 153A, but in respect of unabated assessments which have become final and no incriminating material is found during the course of search for those years, no addition could be made in respect of such unabated assessments. I .....

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ower under section 153A is permissible still the provision cannot be read in the manner suggested by Mr. Pinto. Not only the finalised assessment cannot be touched by resorting to those provisions, but even while exercising the power can be exercised where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after 31st March, 2003. There is a mandate to issue notices under section 153(1) (a) and assess or reassess the tot .....

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on Bench in Murli Agro Products Ltd. (supra) with which we respectfully agree. These are the conclusions which can be reached and upon reading of the legal provisions in question. We do not see as to how while allowing the appeal of the assessee and setting aside the order of the Commissioner under section 263 could the judgment be said to be laying down a proposition and as canvassed by Mr. Pinto* True it is that the assessment which has to be made in pursuance of the notice is in relation to t .....

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