TMI Blog2019 (11) TMI 1549X X X X Extracts X X X X X X X X Extracts X X X X ..... rb the finding given thereon and income determined thereon as finality has already been reached and no proceeding was pending on the date of search. Once the proceeding u/s 153A of the Act is initiated which are special proceedings, the legislature provides different treatments for abated and unabated assessments. However, in respect of unabated assessments the legislature has conferred powers on the Ld. AO to just follow the assessments already concluded unless incriminating materials are found in the course of search. For the reasons stated above and on basis of various judicial pronouncements, we hold that the various disallowances made for the Assessment years i.e. 2005-05 and 2006-07 which were unabated/concluded assessments as on date of search cannot be made in the search assessments in the absence of any incriminating material found in the course of search and accordingly all those additions are directed to be deleted. - Decided in favour of assessee. - 124/Rjt/2015, 145/Rjt/2015, 125/RJt/2015, 146/Ahd/2015 - - - Dated:- 27-11-2019 - Shri Waseem Ahmed, Accountant Member And Ms. Madhumita Roy, Judicial Member Assessee by: Shri D.M. Rindani, A.R Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50,040 12 CHARKHADI-VEKARI-GUNDALA ROAD KM 0/0 TO 13 355,565 13 DESALPUR NALIYA ROAD GEERP/RMC/28 2,059,609 15 GADHADA-ADTALA-LAKHANKA-DADVA ROAD KM 0/0 TO 30/0 81,241 20 JASDAN-ATKOT-GONDAL ROAD KM 213/0 TO 225/0 51,171 21 KUTCH IRRIGATION CONT. DIVI G8 GAJANSAR 294,089 23 KUTCH IRRIGATION CONT. DIVI KH49 KHODASARA-HALAR 46,171 24 KUTCH IRRIGATION CINT. DIVI KS-2 SADHARA-KUNARIYA 169,542 25 KUTCH IRRIGATION CONT. DIVI US-38 USTIYA-CHAKUDAG 103,047 26 KUTCH IRRIGATION CONT. DIVI UD-29 umarapar-devsar 74,851 27 KUTCH IRRIGATION CONT. DIVI UD29 UMARAPAR-DEVSAR 409,112 28 KUTCH IRRIGATION CONT. RATANPAR-JANAN RJ-47 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidity of order passed u/s.153A r.w.s 143(3) of the Act particularly in respect of deduction claimed originally and allowed in original order u/s.143(3) of the Act and not related to any incriminating material found during action u/s.132 of the Act. 2. The learned Commisioner of Income Tax(Appeals)-11, Ahmedabad erred in confirming the action of the assessing officer in disallowing the claim of deduction of ₹ 3,45,20,284/- u/s.80IA(4) in repsect of following infrastructure projects undertaken by the appellant. Sr.No. of Project referred by CIT (Appeals) Name of project Amt. of deduction claimed u/s.80IA (in Rs.) 1 ADB/RRR/P-4/RJT/L-2B GONDAL 103,315 2 ADB/RRR/P-4/RJT/L-3A RAJKOT 349,870 3 ADB/RRR/P-4/RJT/L-4A MORBI 183,069 4 ADB/RRR/P-4/RJT/L-4B WAKANKER 33,256 5 ADB/RRR/P-5/SNR/L-2B S NAGAR 463,901 6 ADB/RRR/P-5/SNR/L-3A S NA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TOTAL 3,45,20,284/- 3. The learned Commisioner of Income Tax (Appeals)-11, Ahmedabad erred in holding that appellant was not a developer of infrastructure facility in respect of projects specified by him and listed in ground no.2 above. The appellant craves leave to add, amend, alter and withdraw any ground of appeal anytime up to the hearing of this appeal. 5. In ITA No. 146/RJT/2015 for A.Y. 2006-07 the Grounds of appeal raised by the Revenue are as follows: 1. On the fact and circumstance of the case, the Ld. CIT(A) has erred in allowing deduction u/s 80IA(4) of the Act in respect of project No. 11, 16, 19, 21, 28, and 29 by treating the assessee as a Developer of infrastructure projects instead of Work Contractor as treated by the A.O. the Ld. CIT(A) has not properly appreciated the terms and conditions laid down in the clauses of agreements in respect of the various projects/contracts which clearly point out that the contract is in the nature of Work Contract . 2. On fact . circumstances of the case and law, the Ld. CIT(A) has erred in allowing the employees contribution to Provident Fund by the assessee beyond the du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nabated assessments, the Ld. AO has made the addition, for which absolutely no incriminating materials were found during the course of the search. Hence he prayed for deletion of disallowance made for assessment years 2005-06 and 2006-07. He placed reliance on the decisions of the Hon ble Gujarat High Court in the case of PCIT vs. Saumya Constrcution reported in 387 ITR 529. 10. The Ld. DR, on the other hand, argued vehemently on the validity of the assessment completed u/s 153A/143(3) of the Act by placing reliance on the orders of the subordinate authorities. 11. We have perused the case record, analyzed the facts and circumstances of the case and heard the rival contentions. We find that it would be necessary to address the preliminary issue, whether assessment could be framed u/s 153A of the Act in respect of concluded proceeding without the existence of any incriminating materials found during the course of the search. The scheme of the Act provides for abatement of pending proceedings as on date of search. It is not in dispute that the assessment for the assessment year 2005-06 and 2006-07 falls under the ambit of unabated assessment as on the date of search. There is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However once it is not disputed by the revenue that the decision of this Court in Continental Warehousing Corporation (Nhava Sheva) Ltd. (supra) would apply to the present facts and also that there are no assessments pending on the time of the initiation of proceedings under Section 153A of the Act. The occasion to consider the issues raised on merits in the proposed questions becomes academic. 11.3 We also rely in the case of Saumya Construction (supra) where the Hon ble Gujarat High Court has held as under: the Assessing Officer is obliged to issue notice to such person to furnish returns of income for the six years preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made, any addition or disallowance can be made only on the basis of material collected during the search or requisition. In case no incriminating material is found, the earlier assessment would have to be reiterated. 11.4 Once the proceeding u/s 153A of the Act is initiated which are special proceedings, the legislature provides different treatments for abated and unabated assessments. However, in respect of unabated assessments the legislature h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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