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2019 (5) TMI 420

AO originally in the assessment completed u/s 153A r.w.s. 143(3) - HELD THAT:- Since the said assessment dated 31.12.2007 had become final before the second date of search conducted on 28.10.2010, the deduction allowed u/s 80IA in the said assessment could have been restricted by the AO only on the basis of any incriminating material found during the course of second search conducted on 28th & 29th October, 2010. As submitted by assessee, there was, however, no such incriminating material found during the course of search on the basis of which the claim of the assessee for deduction u/s 80IA as originally allowed was restricted by the AO and this position clearly evident from the assessment order passed by the AO is not disputed even by the ld. D.R. We, therefore, find no infirmity in the impugned order of the CIT(Appeals) deleting the disallowance made by the Assessing Officer on account of assessee’s claim for additional deduction u/s 80IA - Decided against revenue Disallowance u/s 40(a)(ia) - proceedings initiated u/s 153A pursuant to the second search and seizure action - payment of the corresponding TDS is found to have been made to the credit of Central Governmen .....

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l for A.Y. 2005-06 being IT(SS)A. No. 65/KOL/2016. The common issue involved in Grounds No. 1 & 2 of this appeal relates to the deletion by the ld. CIT(Appeals) of the disallowance of ₹ 2,07,18,556/- made by the Assessing Officer on account of assessee s claim for deduction under section 80IA. 3. The assessee in the present case is a Company, which is engaged in the business of civil construction. The first search and seizure action in the case of the assessee was conducted on 19.10.2005. Thereafter the return of income for the year under consideration was filed by the assessee declaring total income at NIL after claiming deduction of ₹ 6,74,70,537/- under section 80IA of the Income Tax Act, 1961. In the assessment originally completed under section 153A read with section 143(3) vide an order dated 31.12.2007, the deduction as claimed by the assessee under section 80IA was fully allowed by the Assessing Officer. He, however, made two additions to the total income of the assessee in the said assessment amounting to ₹ 6,99,35,632/- and ₹ 5,69,72,772/- on account of disallowance under section 40(a)(ia) and undisclosed income respectively. On appeal, the ld. .....

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nged by the assessee in the appeal filed before the ld. CIT(Appeals), who allowed the said claim of the assessee. The ld. CIT(Appeals) held by relying on the decision of the Hon ble Allahabad High Court in the case of CIT -vs.- Dhampur Sugar Limited (90 ITR 236) that there was a distinction between revised return and a correction of return. He held that the revised computation seeking correction in the claim of deduction under section 80IA did not change the character of the original return filed by the assessee and the Assessing Officer should have accepted the same. The ld. CIT(Appeals) further held that the assessee was entitled for deduction under section 80IA as claimed in the revised computation of income even on merit as the similar claim for deduction made under section 80IA by the assessee was consistently allowed by the Department in the earlier years even in the scrutiny assessments made under section 143(3) and there was no material change in the relevant facts of the case. He held that the claim of the assessee thus was allowable even on merit keeping in view the principle of consistency. 5. We have heard the arguments of both the sides and also perused the relevant ma .....

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orresponding TDS is found to have been made by the assessee before the due date of filing of the return of income for the year under consideration. 8. We have heard the arguments of both the sides on this issue and also perused the relevant material available on record. As already noted by us, the disallowance made by the Assessing Officer under section 40(a)(ia) in the assessment originally completed under section 153A read with section 143(3) vide an order dated 31.12.2007 was sustained by the ld. CIT(Appeals) to the extent of ₹ 5,86,52,638/-. Since the said assessment had become final before the second search and seizure action conducted in the case of the assessee on 28.10.2010, there was no reason or occasion to raise the issue relating to the disallowance under section 40(a)(ia) in the proceedings initiated under section 153A pursuant to the second search and seizure action, especially when there was no incriminating material found during the course of search relating to this issue. As a matter of fact, the assessee-company in the return of income filed in response to the notice under section 153A issued in pursuance of the second search and seizure action had declared .....

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ome claiming deduction under section 80IA at ₹ 8,83,21,15/- as claimed in the return of income originally filed on 28.07.2008. In the assessment completed under section 153A read with section 143(3) vide an order dated 22.03.2013, the Assessing Officer allowed the claim of the assessee for deduction under section 80IA only to the extent of ₹ 3,36,24,913/- and the additional deduction of ₹ 5,46,96,237/- claimed by the assessee in the revised computation of total income was disallowed by him for the same reasons as given for A.Y. 2005-06. On appeal, the ld. CIT(Appeals) allowed the claim of the assessee for additional deduction under section 80IA as made in the revised computation of total income on the same grounds as given in A.Y. 2005-06. Aggrieved by the order of the ld. CIT(Appeals), the Revenue has preferred this appeal before the Tribunal. 11. We have heard the arguments of both the sides on this issue and also perused the relevant material available on record. It is observed that the claim of the assessee for deduction under section 80IA to the extent of ₹ 5,46,96,237/- was disallowed in the original assessment proceedings and since the said assessment .....

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in the case of the assessee on 28.10.2010 and in the return of income filed in response to the notice issued under section 153A in pursuant to the said action, deduction to the extent of ₹ 1,27,30,160/- was claimed by the assessee. During the course of assessment proceedings under section 153A read with section 143(3), the assessee, however, filed a revised computation of total income claiming deduction under section 80IA of ₹ 5,77,16,153/- as claimed in the return of income originally filed on 30.09.2008. In the assessment completed under section 153A read with section 143(3) vide an order dated 22.03.2013, the Assessing Officer allowed the claim of the assesese for deduction under section 80IA only to the extent of ₹ 1,27,30,160/- and the additional deduction of ₹ 4,49,85,993/- claimed by the assessee in the revised computation of total income was disallowed by him for the same reasons as given for A.Y. 2005-06. On appeal, the ld. CIT(Appeals) allowed the claim of the assessee for additional deduction under section 80IA as made in the revised computation of total income on the same grounds as given in A.Y. 2005-06. 14. We have heard the arguments of both .....

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and in the absence of any incriminating material found during the course of search, the disallowance made by the Assessing Officer in the assessment completed under section 153A read with section 143(3) on account of assessee s claim for exemption under section 86 to the extent of ₹ 42,74,485/- was not sustainable as rightly contended by the ld. Counsel for the assessee. Even the ld. D.R. has not disputed this position. We, therefore, uphold the impugned order of the ld. CIT(Appeals) deleting the disallowance made by the Assessing Officer on account of assessee s claim for exemption under section 86 to the extent of ₹ 42,74,485/- and dismiss Ground No. 3 of the revenue s appeal. 16. Now we shall take the revenue s appeal for A.Y. 2009-10 being IT(SS)A No. 76/KOL/2016. The common issue involved in Grounds No. 1 & 2 of the revenue s appeal for A.Y. 2009-10 relates to the deletion by the ld. CIT(Appeals) of the disallowance of ₹ 10,20,73,983/- made by the Assessing Officer on account of the assessee s claim for deduction under section 80IA. 17. In the return of income originally filed under section 139(1) for the year under consideration, i.e. A.Y. 2009-10 on 30 .....

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by way of revised computation of total income filed during the course of assessment proceedings under section 153A read with section 143(3). The Assessing Officer denied to entertain the said claim while the ld. CIT(Appeals) not only entertained the said claim but also allowed the same on merit. Keeping in view all the facts of the case as discussed above including especially the fact that original assessment proceedings not allowing any deduction under section 80IA had become final, we are of the view that the ld. CIT(Appeals) was not justified in entertaining and allowing the new claim made by the assessee for deduction under section 80IA for the first time during the course of proceedings under section 153A read with section 143(3) and even the ld. Counsel for the assessee has not disputed this position. We, therefore, reverse the impugned order of the ld. CIT(Appeals) allowing the claim of the assessee for deduction under section 80IA amounting to ₹ 10,20,73,983/- and allow Grounds No. 1 & 2 of the revenue s appeal. 19. As regards Ground No. 3 of the revenue s appeal for A.Y. 2009-10, it is observed that the issue involved therein relating to the deletion by the ld. C .....

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