TMI Blog2017 (6) TMI 1167X X X X Extracts X X X X X X X X Extracts X X X X ..... same are set aside. In respect of other years i.e. assessment years 2008-09 to 2010-11, we have already decided the issue in the paras hereinabove. For the sake of clarification, we point out that as regards the claim of depreciation on the right to collect toll being intangible asset, we have decided the issue in favour of the assessee and the same is to be allowed in the hands of assessee as deduction under section 32(1)(ii) of the Act in all the years for which, the assessee is in appeal before us. In respect of second addition made on account of estimation of toll receipts, where no evidence was found for particular year/s, we hold that no addition on this account is to be made in the hands of assessee in assessment years 2008-09 and 2009-10. However, in assessment year 2010-11, evidence was found and the said receipts were to be extrapolated for determining the toll receipts in the hands of assessee and in this regard, we uphold the order of Assessing Officer in estimating the same @ 5% of accounted toll receipts. Similarly, in the year of search i.e. assessment year 2010-11, evidence has been found for part of the month and the addition is to be restricted to the said evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 9/2014 dt. 23.04.2014, instead of allowing depreciation on toll collection rights/licence to collect toll, as an intangible asset, as allowed by the ITAT, Pune Bench B in appellant's own case for A.Y. 2007-08 and also in the host of other cases by the various benches of ITAT. He ought to have appreciated that the CBDT circular was not binding on him and ought not to have ignored the decisions of the Supreme Court in 183 ITR 1 228 ITR 463, brought to his notice. iv. The learned CIT(A) erred in not considering the appellant's alternate plea before the A.O. that, it be allowed to recoup first the entire construction cost against the toll collected and then only the income determination exercise be done, relying on the ratio of decision of the Supreme Court in the case of Hoshiarpur Electric Supply Co. v/s CIT (41 ITR 608) and considering the provisions of sec. 43(1) defining the term 'actual cost', vis-a-vis the concept of public private partnership. Therefore, it is prayed either to allow depreciation, as claimed by appellant or to allow first the recoupment of entire construction cost against the toll collected and thereafter to determine income earne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsidiary of M/s. Ashoka Buildcon Ltd. The assessee was incorporated with the object of executing an infrastructure project of Flour Laning and Strengthening of Pune-Ahmednagar Road, SH 60 KM 10/600 to 64/000 with private finance on toll rights under Build Operate and Transfer (BOT) basis. The assessee had completed the project during the year under consideration and had started operations on 06.07.2005 i.e. from the date from which the assessee operated its toll stations. The total toll collections for the year were ₹ 17,16,79,571/- and after deducting various expenses and depreciation, there was loss of ₹ 3,02,28,758/-. During the course of search, certain evidence was found with Ms. Dipti Lokam, Junior Finance Officer of the assessee group posted at the office of M/s. Ashoka Buildcon Ltd., the flagship company of the assessee s groups office at Pune, under which the assessee was found to be suppressing part of total receipts. The assessee was show caused the proposal to estimate suppressed toll collection at 5% of the total toll collection during the year. The assessee objected to the show cause notice issued by the Assessing Officer on the following contentions:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d accepted that as per instructions from Shri Sunil B. Raisoni, toll collection was recorded. Thus, it was established that the assessee was suppressing its receipt of toll collection in its books of account. Thereafter, statement on oath of Ms. Dipti Lokam was also recorded on 20.04.2010. In reply to question No.4, she stated that in Pune Region, there were six Toll Nakas, out of which she received cash of three Toll Nakas only i.e. (i) Ranjangaon Toll Naka of M/s. Ashoka Infrastructure Ltd., (ii) Koregaon Toll Naka of M/s. Ashoka Infrastructure Ltd. and (iii) Pandharpur Toll Naka of M/s. Ashoka Bridgeways. She further explained that on counting of cash, the same was deposited in the bank account. The assessee had three more Toll Nakas i.e. (i) Nagar Toll Naka (8 km) of M/s. Ashoka Buildon Ltd. (Nagar-Karmala), (ii) Nagar Toll Naka (55 km) of M/s. Ashoka Buildcon Ltd. (Nagar-Karmala) and (iii) Sheri Toll Naka of M/s. Ashoka Buildcon Ltd. (Sangli). She further stated that the employees of three other Toll Nakas directly deposited the cash in the bank accounts. The entry in respect of cash of various Toll Nakas was entered into computer at MIS Department. She further explained that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e second issue which was considered by the Assessing Officer was the depreciation claimed on Licence to collect toll. The assessee in the return of income had claimed depreciation to the tune of ₹ 36,31,63,056/- on an intangible asset being Licence to Collect Toll . The assessee had included the amount of licence in the gross block of assets at ₹ 153,02,06,225/- being the first year s opening value. The span of the said right as per the notification was 05.07.2005 to 30.6.2013 i.e. for the period of 8 years. The assessee claimed depreciation @ 25% on the reducing balance method for income tax purposes. The assessee s claim in the original assessment order was disallowed, but the CIT(A) reversed the same. The plea of assessee before the Assessing Officer during the course of proceedings under section 143(3) r.w.s. 153A of the Act was that the said decision of CIT(A) has become binding. He further submitted that the project on completion having been transferred to the Right to Toll collection, which is an asset and since the same was put to use, the assessee was entitled to claim the depreciation. The contention of assessee was rejected as further appeals have been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of assessee s group, he had followed the order of Tribunal in assessee s own case for assessment year 2007-08. However, at that particular time, there was no scheme from CBDT giving clarification on treatment of expenditure incurred for development of Rights/Highways in Built - Operate - Transfer (BOT) Agreement under the Income Tax Act. The circular No.9/2014, dated 23.04.2014 clarifies on claim of depreciation on Right to Collect Toll under section 32(1)(ii) of the Act and in case where the expenditure was incurred on development and construction of infrastructure facilities like roads, highways on BOT basis with right to collect toll, then the Board had clarified that since the assessee does not hold rights in the project except recovery of toll fees to recoup the expenditure incurred, it cannot therefore, be treated as owner of the property as either wholly or partly for the purpose of allowability of depreciation under section 32(1)(ii) of the Act. Since there was no actual transfer of ownership and the assessee had only a right to develop and maintain such assets and hence, the assessee was not entitled to claim depreciation. It was further observed by the CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate order. The CIT(A) noted from the perusal of the said pages that total receipts in case of Ranjangaon and Koregaon Toll Nakas shown by the assessee in its regular books of account were different from that of figures reflected in the receipts side of the said rough cash book. The CIT(A) also took note of the assessee s submissions dated 07.04.2014, under which the assessee itself had accepted the fact of under-suppression of toll receipts in relation to the above two referred Toll Nakas i.e. Ranjangaon and Koregaon. Further, during the course of search, statement of Ms. Dipti Lokam was also recorded under section 132(4) of the Act on 20.04.2010. Ms. Dipti Lokam in her statement confirmed that she had been working with the group since 2001 and was handling all works related to cash which included counting of cash received on account of toll collection, deposit of the same in bank and making the cash vouchers and entering the transactions in cash book. Ms. Dipti Lokam was handling the cash receipts from Ranjangaon Toll Naka and Koregaon Toll Naka of Ashoka Infrastructure Ltd. and Pandharpur Toll Naka of M/s. Ashoka Bridgeways. Reference was made to the statement recorded of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 onwards. He further observed that after taking into consideration the seized material, it was reasonable to conclude that the assessee was adopting the practice of under-reporting of toll collection since beginning, hence this ground of assessee was dismissed. He also upheld the order of Assessing Officer in estimating 5% of the total collection as unrecorded for assessment years 2006-07 to 2011-12. The next issue before the CIT(A) was the addition of undisclosed income on account of collection as income from other sources. In view of the findings of Assessing Officer that unrecorded cash was on account of toll collection and also where the assessee had no other business activity, but collection of toll during the year under appeals and the seized material also reflects unaccounted cash on account of collection of toll, the CIT(A) held that the Assessing Officer was not justified in treating the same as income from other sources. Accordingly, the Assessing Officer was directed to treat the addition made on account of suppression of toll collection under the head business income and was also directed to give set off of current/unabsorbed losses/unabsorbed depreciation as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal against the order of CIT(A). 13. The first issue raised in assessment year 2006-07 is that in the absence of any incriminating material found relating to assessment year 2006-07, no addition could be made under section 143(3) r.w.s. 153A of the Act. The second issue raised by the assessee was against the order of CIT(A) in not allowing depreciation on License/Right to collect toll as an intangible asset. The next issue was against the addition on the ground of suppression of toll collection @ 5% of recorded collections. 14. The learned Authorized Representative for the assessee pointed out that search on Ashoka Group was carried out on 20.04.2010. During the course of search, one diary was found, on which toll collections were noted for the period 25.12.2009 to 19.04.2010. The learned Authorized Representative for the assessee pointed out that the assessee had constructed road between Pune to Shirur, on which there were two Toll Nakas i.e. one at Ranjangaon and second at Koregaon, which later got amalgamated into one Toll Naka. The assessee had claimed depreciation on the said toll road being intangible asset. He pointed out that in assessment year 2006-07 in the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 015) 57 taxmann.com 384 (Mumbai -Trib.), which in turn, had applied the ratio laid down by the Pune Bench of Tribunal in ACIT Vs. Ashoka Infraways (P.) Ltd. (2013) 58 SOT 147 (Pune -Trib.). He further referred to the circular on which the CIT(A) had placed reliance and pointed out that the said circular was not binding on the assessee. He placed reliance on the ratio laid down by the Hon'ble Supreme Court in CIT Vs. Hero Cycles Pvt. Ltd. and others (1997) 228 ITR 463 (SC) and Keshavji Ravji and Co. Vs. CIT (1990) 183 ITR 1 (SC). The learned Authorized Representative for the assessee pointed out that the right from the day one, the assessee was claiming the Right to collect toll as intangible asset, hence, depreciation could not be denied in the proceeding carried out under section 153A of the Act. 15. The second aspect raised by the learned Authorized Representative for the assessee was that since the assessment was already completed in assessment years 2006-07 and 2007-08 vide order passed under section 143(3) of the Act and as no incriminating material relating to the said assessment years were found, the assessment could not be disturbed in the hands of assessee. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the order of CIT(A) pointed out that depreciation was disallowed in view of CBDT circular No.9/2014 issued on 23.04.2014 and instead, amortization of the cost was allowed over the period of operations. He referred to the contents of the said circular and pointed out that in view thereof, no depreciation is to be allowed in the hands of assessee. In respect of estimation of toll receipts, the learned Departmental Representative for the Revenue referred to the entries in the diary seized and also the admission of Ms. Dipti Lokam that she had made the entries in the said diary. Further, reliance was placed on the orders of Assessing Officer and CIT(A). The learned Departmental Representative for the Revenue also placed reliance on the ratio laid down by the Hon ble High Court of Delhi in CIT Vs. Chetan Das Lachman Das (2012) 25 taxmann.com 277 (Delhi) for the proposition that the seized material could be relied upon to hold that there were similar transactions throughout the year. Our attention was drawn to the statement of Ms. Dipti Lokam, which is placed at page 5 of the assessment order in this regard. He pointed out that the notings were from December to March, 2009 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llect toll was not a license. The CIT(A) on the other hand, relied on the circular issued by the CBDT giving clarification on treatment of expenditure incurred for development of roads/highways in Built-OperateTransfer agreement. The CBDT vide circular No.9/2014, dated 23.04.2014 gave clarification on claim of depreciation under section 32(1)(ii) of the Act and clarified that since the assessee does not hold any rights in the project except recovery of toll fees to recoup the expenditure incurred, it thus, cannot be treated as owner of property either wholly or partly for the purpose of allowability of depreciation under section 32(1)(ii) of the Act. The CBDT denied the claim of depreciation but held the persons to be eligible for deduction on account of amortized cost incurred in creation of infrastructure facility of roads/highways over the period of concessional agreement (AIR) after excluding the time taken for creation of such facilities. In view of the said clarification of the CBDT, the assessee s claim for depreciation on right/license to collect toll under section 32(1)(ii) of the Act, treating the same as intangible asset, was rejected and the order of Assessing Officer i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owned by the concessionaire . (emphasis supplied by us) 18. The Hon ble Bombay High Court, however, after discussing the provisions of National Highway Act, 1956 and National Highway Authorities of India Act, 1988 and various case laws including that are strongly relied upon by the Ld. A.R. e.g. Mysore Minerals Ltd. vs. CIT reported in (1999) 239 ITR 775 SC, CIT vs Podar Cement Pvt. Ltd. others reported in (1997) 226 ITR 625 SC and CIT vs. Noida Toll Bridge Company Ltd. (Allahabad HC) (supra), has held that the national highways vest in the Union of India and if the government for the purpose of development and maintenance of the whole or any part of the national highways enters into an agreement with private parties or that merely because the national highway is built, maintained, managed and operated by private entities, in no way affects the vesting of the national highway in the Union and that does not dilute or take away the ownership of the highway or its vesting in the Union. After discussing the various decisions of the Hon ble Supreme Court and of the Hon ble High Courts, the contention of the assessee in that case that it was the owner of the toll r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, in para 47 of the said order, has observed that the assessee can definitely claim depreciation on the investments. He has definitely invested in the projects of construction development and maintenance of the National Highways and such of the assets in the form of building, plant machinery etc. The claim for depreciation can be validly raised and granted. That the Hon ble High Court in the said case was only concerned with the claim on the land or a road itself. Further, in concluding para 52 of the order, the Hon ble Bombay High Court has categorically clarified that the assessee s claim for depreciation in respect of the building, plant machinery and falling within the purview of sub section (1) of section 32 of the Income Tax Act, 1961, if considered and granted, shall not be affected by the decision of the Hon ble Bombay High Court. 20. A careful reading of the entire decision of the Hon ble Bombay High Court and in the light of the various observations made in judgment as discussed above, it is very clear that the Hon ble Bombay High Court was concerned about the issue as to whether the assessee can claim itself as the owner of the toll road and the Hon ble Bomba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may have in the matter. An assessee is entitled to raise not merely additional legal submissions before the appellate authorities but is also entitled to raise additional claims before them. The appellate authorities have the discretion whether or not to permit such additional claims to be raised. It cannot, however, be said that they have no jurisdiction to consider the same. The appellate authorities have jurisdiction to deal not merely with additional grounds which became available on account of change of circumstances or law, but with additional grounds which were available when the return was filed but could not have been raised at that stage. The words could not have been raised must be construed liberally and not strictly. It is open to the assessee to claim a deduction before the appellate authority which could not have been claimed before the AO. The Hon ble Bombay High Court has further observed that the decision of Hon ble Supreme Court in the case of Goetze (India) Limited v. CIT (2006) 157 Taxman 1, regarding the restriction of making the claim through a revised return was limited to the powers of the Assessing Authority and the said judgment does not impinge on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction is to be allowed to the assessee. The Hon ble Jurisdiction High Court of Bombay in the case of Balmukund Acharya vs. DCIT reported in (2009) 221 CTR 440 (Bom.) has held that the Hon ble Apex Court and the various High Courts have ruled that the authorities under the Act are under obligation to act in accordance with law. Tax can be collected only as provided under the Act. If the assessee, under a mistake, misconception or on not being properly instructed is over assessed, the authorities under the Act are required to assist him and ensure that only legitimate taxes dues are collected. While holding so, the Hon ble Bombay High Court has relied upon the various decisions e.g. Koshti vs. CIT (2005) 193 CTR (Guj) 518 : (2005) 276 ITR 165 (Guj), C.P.A. Yoosuf vs. ITO (1970) 77 ITR 237 (Ker.), CIT vs. Bharat General Reinsurance Co. Ltd. (1971) 81 ITR 303 (Del), CIT vs. Archana R. Dhanwatey (1981) 24 CTR (Bom) 142 : (1982) 136 ITR 355 (Bom). In view of the above discussed factual and legal position, we have no hesitation to hold that the assessee is entitled to put his alternate claim that the deduction allowable to him may be considered as allowable as depreciation treati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital expenditure and it is entitled to deductions over the investments made as depreciation. A perusal of the above reproduced para 4 of the circular reveals that it is not disputed even by the Revenue Authorities that in lieu of the investments made in the project, the assessee has been given right/license to collect the toll. It has also been specifically mentioned that it brings an enduring benefit in the form of right to the assessee. Having admitted the above position by the Revenue, now the question to be considered is whether any depreciation is allowable on such a right? 21. The Tribunal allowed the claim of assessee under section 32(1)(ii) of the Act i.e. depreciation on intangible assets holding as under:- 26. As per section 32(1)(ii) depreciation is allowable on intangible assets like licenses, franchises or any other business or similar commercial rights of similar nature. The relevant part of the section for the sake of convenience is reproduced as under: Depreciation. 32. (1) [In respect of depreciation of - (i) buildings, machinery, plant or furniture, being tangible assets; (ii) knowhow, patents, copyrights, trade marks , licences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of various decisions of different Benches of the Tribunal mentioned therein, the claim of the assessee for treating the 'License to collect Toll' as an intangible asset eligible for the claim of depreciation @ 25% as per Section 32(1)(ii) of the Act was justified. The following discussion in the order of the Tribunal dated 29.04.2013 (supra) is relevant:- 7. Before us, it was a common point between the parties that the impugned issue has been adjudicated in favour of the assessee in the following decisions of the Tribunal:- i) Ashoka Buildcon Ltd. in ITA.No.1302/PN/09 dated 20.03.2012. ii) M/s. Kalyan Toll Infrastructure Ltd. in ITA.Nos.201 247/Ind/2008 dated 14.12.2010. iii) Dimension Construction Pvt. Ltd. in 1TA.No.222, 223, 233 857/PN/2009 dated 18.03.2011. iv) Ashoka Info (P) Ltd. (supra) v) Reliance Ports and Terminals Ltd. (supra). 8. The Ld. CIT(DR) appearing for the Revenue, has submitted that the 'intangible assets' eligible for depreciation in section 32(1)(ii) of the Act, are only those which are owned by the assessee and have been acquired after spending money. In the case of the assessee, by way of an ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature of 'intangible asset' falling within the purview of section 32(1)(i/) of the Act and has been found eligible for claim of depreciation. No decision to the contrary has been cited by the Ld. DR before us and, therefore, we find no reasons to depart from the accepted position based on the aforesaid decisions. 11. So however, the plea of the Ld. DR before us is to the effect that the impugned right is not of the nature referred to in section 32(1)(ii) of the Act for the reason that the agreement with the Government of Madhya Pradesh only allowed the assessee to recover the costs incurred for constructing the road facility whereas section 32(1)(i1) of the Act required that the assets mentioned therein should be acquired by the assessee after spending money. The said argument in our view is factually and legally misplaced. Factually speaking, it is wrong to say that impugned right acquired by the assessee was without incurrence of any cost. In fact, it is quite evident that assessee got the right to collect toll for the specified period only after incurring expenditure through its own resources on development, construction and maintenance of the infrastructure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment made by the assessee be treated as revenue expenditure and be amortized for the period of agreement, was rejected holding that the investment made under the circumstances could not be said to be revenue in nature but was capital in nature, on which the assessee was entitled to claim the depreciation. Para 31 of the order reads as under:- 31. So far as the contention of the Revenue that the investment made by the assessee be treated as a revenue expenditure and be amortized for the period of the agreement, is concerned, we do not find any force in the same on the ground that not only the AO but also the CBDT in the circular (supra) as discussed above has admitted that the license of right to collect toll free has been given to the assessee in lieu of the investments made and that such a right brings to the assessee an enduring benefit. The investments made under such circumstances cannot be said to be of revenue in nature but, as discussed above, are of capital in nature. The assessee, thus, is entitled to claim depreciation on such type of capital asset. 23. In the totality of the above said facts and circumstances before us, where the claim of assessee was deprecia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(1)(ii) of the Act. Accordingly, we hold s. The assessee is thus, entitled to its claim. Thus, the second part of the order of Assessing Officer in amortizing the expenditure over the period of facility and allowing the same stands reversed. The Assessing Officer is directed to allow the claim of assessee of depreciation on such intangible asset under section 32(1)(ii) of the Act. 24. Now, coming to the second issue raised in the present appeal i.e. estimation of toll receipts in the hands of assessee. During the course of search proceedings carried out in the Ashoka Group of cases, a diary was found from the possession of assessee, wherein admittedly, unaccounted receipts were noted for the period 25.12.2009 to 19.04.2010. In this regard, statement of one employee Ms. Dipti Lokam was recorded, who was maintaining the said diary in the office premises. She admitted that the said diary was being written by her and was rough cash book for period 25.12.2009 to 19.04.2010. She also confirmed that the cash entries were not fully recorded in regular books of account of group. She further reiterated that the cash reflected in the said rough cash book was not part of official cash book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on activities, thereby, excess unrecorded toll collection was 1.40%. The claim of assessee was rejected in the absence of any documentary evidence to establish the incurring of unrecorded cash for any expenditure. The CIT(A) further took note of expenditure variations in the seized documents which were incurred on illegal payments and he held that the same were in any case not allowable under the Income Tax Act. 25. Another related contention of assessee before the authorities below was that the seized documents related to limited period pertaining to assessment years 2010-11 and 2011-12 and hence, no addition was required to be made on this account for earlier years. The said contention of assessee was rejected since the assessee was collecting the toll from 06.07.2005 onwards and it was held that the assessee was adopting this practice of under-reporting of toll collection since the beginning. The Assessing Officer and the CIT(A) had estimated the income @ 5% of total collection as unrecorded for assessment years 2006-07 to 2011-12. The Assessing Officer has included the said additional income as income from other sources. However, the CIT(A) allowed the claim of assessee that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has been held that seized material was found to show that the assessee had been indulging in off records transactions. In the facts of the case before the Hon ble High Court certain documents were found and the partners of assessee firm had admitted to the practice of suppressing the profits. The seized papers also reflected different rates when compared with the sale bills issued and these findings were not denied by the assessee. The Hon ble High Court observed that where on comparison of sale bills with the seized papers, corroborated the suppression of income and it was held that the inference could be drawn that similar transactions were throughout the period of six years covered by section 153A of the Act. 28. In the facts of the present case also, admittedly, the Director of the assessee company has admitted to the unaccounted toll receipts recorded in the diary seized from the premises of assessee. The case of assessee before us is that the addition, if any, is to be limited to the period for which the diary is found. The learned Authorized Representative for the assessee was confronted with the extrapolation application for financial year 2009-10, wherein it was adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... totally contrary to the evidence on record. Accordingly, the above ratio is not applicable to the facts of the present case. Regarding the learned Departmental Representative s reliance on the ratio in the case of CIT v. Hotel Meriya [(2011) 332 ITR 537 (Ker)], we find that the assessee was running a restaurant. There was a search conducted on the assessee firm and in the course of search, statement of one of the partners was recorded. In the statement recorded, the partner of the assessee firm accepted that certain sales were suppressed and such suppression of sales was carried out from inception. Considering the said statement, Hon'ble High Court held that as the assessee had agreed of suppression of turnover, the estimation of income made by the Assessing Officer was justified. In the said case, there was a clear admission of the partner of the assessee that the sales were suppressed and considering the said admission, the extrapolation of sales for all the years was accepted by the Hon ble High Court. In the case before us, there is no acceptance that the on-money is collected by the assessee firm for all the years and accordingly, the decision in the case of Hotel Meriya i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he unaccounted income for the other years in this case. In the case of Khopade Kisanrao Manikrao (supra), the issue that whether evidence of one year could be used for making an addition in the other year was not raised simply because certain evidence was found for each of the years. Hence, the ratio of Khopade Kisanrao Manikrao (supra) is not applicable to the facts of the present case. 4.7 We further find in the case of Dr. Gurvinder Singh Randhawa v. CIT [(2013) 352 ITR 616 (P H)] relied by the Revenue, the assessee was a medical practitioner. In the course of search, evidence was found that the assessee had suppressed his professional receipts. The Assessing Officer applied the rate of ₹ 10,147/- for each surgery as against ₹ 6,000/- offered by the assessee. The dispute in that case was regarding the rate to be adopted for each surgery and the issue that whether evidence of one year can be used for estimating income of another year was not involved before Hon'ble High Court. Accordingly, the ratio of Dr. Gurvinder Singh Randhawa is not applicable to the facts of the present case and the reliance placed by the learned DR is misplaced. We find in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down by the Pune Bench of Tribunal in ITO Vs. Vikrant Happy Homes Pvt. (supra) and other decisions, we hold that the evidence found during the course of search toll receipts which were not recorded in the books of account for certain period could be utilized for extrapolation of income for the relevant financial year/s. However, the said material cannot be made the basis for working out the income in the hands of assessee for other years for which, no incriminating documents or entries in any cash book or note books were found during the course of search. We hold so. 31. Now, coming to another aspect raised by the assessee that in case of completing proceedings under section 153A of the Act, where the assessment proceedings have been completed and no incriminating documents have been found for the said completed assessment years, then no proceedings can be initiated under section 153A of the Act and consequently, the assessment order passed under section 143(3) r.w.s. 153A of the Act is to be annulled. The learned Authorized Representative for the assessee before us has referred to the assessment completed in assessment years 2006-07 and 2007-08 in this regard. He further ..... X X X X Extracts X X X X X X X X Extracts X X X X
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