DCIT, CIR-2(2), KOLKATA, Kolkata V. M/s MBL Infrastructure Ltd., Kolkata

ITSSA 67/KOL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6403 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 09-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Assessee Lawyers: S K TULSIYAN
• Keywords: Search and seizure; Rule of consistency; Revised return; TDS
• Section: 143(3); 153A; 40(a)(ia); 143(1); 80IA

Judgement Text

I .T.(SS)A. NOS. 65, 66, 67 & 76/KOL/2016 ASSESSMENT YEARS: 2005-2006, 2007 -08, 2008-09 & 2009-2010 M/S. MBL INFRASTRUCTURE LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.(S.S.)A. NOS. 65, 66, 67 & 76/KOL/2016 ASSESSMENT YEARS: 2005-2006, 2007-2008, 2008-2009 & 2009-2010 DEPUTY COMMISSIONER OF INCOME TAX,...... .........APPELLANT CENTRAL CIRCLE-2(2), KOLKATA, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, KOLKATA-700 107 -VS.- M/S. MBL INFRASTRUCTURE LIMITED,................... ..............................RESPONDENT 2/3, JUDGES COURT ROAD, KOLKATA-700 027 [PAN: AACCM 0564 C] APPEARANCES BY: SHRI A.K. NAYAK, CIT (D.R.), FOR THE APPELLANT SHRI S.K. TULSIYAN, ADVOCATE, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : MARCH 14, 2019 DATE OF PRONOUNCING THE ORDER : MAY 01, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KOLKATA ZONE) :- THESE FOUR APPEALS ARE PREFERRED BY THE REVENUE AG AINST FOUR SEPARATE ORDERS PASSED BY THE LD. COMMISSIONER OF I NCOME TAX (APPEALS)- 20, KOLKATA, ALL DATED 02.06.2016 FOR A.YS. 2005-06 , 2007-08, 2008-09 AND 2009-10 AND SINCE SOME COMMON ISSUES ARE INVOLV ED THEREIN, THE SAME HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSE D OF BY A SINGLE CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST WE SHALL TAKE UP THE REVENUES APPEAL 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 L D. CIT(APPEALS) OF THE I .T.(SS)A. NOS. 65, 66, 67 & 76/KOL/2016 ASSESSMENT YEARS: 2005-2006, 2007 -08, 2008-09 & 2009-2010 M/S. MBL INFRASTRUCTURE LIMITED 2 DISALLOWANCE OF RS.2,07,18,556/- MADE BY THE ASSESS ING OFFICER ON ACCOUNT OF ASSESSEES CLAIM FOR DEDUCTION UNDER SEC TION 80IA. 3. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION. THE FIRST SEARC H AND SEIZURE ACTION IN THE CASE OF THE ASSESSEE WAS CONDUCTED ON 19.10.200 5. THEREAFTER THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION W AS FILED BY THE ASSESSEE DECLARING TOTAL INCOME AT NIL AFTER CLAI MING DEDUCTION OF RS.6,74,70,537/- UNDER SECTION 80IA OF THE INCOME T AX ACT, 1961. IN THE ASSESSMENT ORIGINALLY COMPLETED UNDER SECTION 153A READ WITH SECTION 143(3) VIDE AN ORDER DATED 31.12.2007, THE DEDUCTIO N AS CLAIMED BY THE ASSESSEE UNDER SECTION 80IA WAS FULLY ALLOWED BY TH E ASSESSING OFFICER. HE, HOWEVER, MADE TWO ADDITIONS TO THE TOTAL INCOME OF THE ASSESSEE IN THE SAID ASSESSMENT AMOUNTING TO RS.6,99,35,632/- A ND RS.5,69,72,772/- ON ACCOUNT OF DISALLOWANCE UNDER SECTION 40(A)(IA) AND UNDISCLOSED INCOME RESPECTIVELY. ON APPEAL, THE LD. CIT(APPEALS ) DELETED THE ENTIRE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT O F UNDISCLOSED INCOME WHILE DISALLOWANCE OF RS.6,99,35,632/- MADE BY THE ASSESSING OFFICER UNDER SECTION 40(A)(IA) WAS RESTRICTED BY HIM TO RS .5,86,52,638/- THEREBY GIVING A RELIEF OF RS.1,12,82,994/- TO THE ASSESSEE ON THIS ISSUE. THEREAFTER SECOND SEARCH AND SEIZURE ACTION WAS CON DUCTED IN THE ASSESSEES CASE ON 28 TH & 29 TH OCTOBER, 2010. PURSUANT TO THE SAID ACTION, A NOTICE UNDER SECTION 153A WAS ISSUED BY THE ASSES SING OFFICER, IN RESPONSE TO WHICH THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY THE ASSESSEE DECLARING A TOTAL INCOME OF RS.7,18,45,130/- ON 30.09.2011. IN THE SAID RETURN, DEDUCTION UNDER SEC TION 80IA WAS CLAIMED BY THE ASSESSEE TO THE EXTENT OF RS.4,67,51,981/- W HILE THE DISALLOWANCE UNDER SECTION 40(A)(IA) WAS CONSIDERED AT RS.5,86,5 2,638/- AS SUSTAINED BY THE LD. CIT(APPEALS) ORIGINALLY. DURING THE COUR SE OF ASSESSMENT PROCEEDINGS, A REVISED COMPUTATION OF TOTAL INCOME WAS FILED BY THE ASSESSEE ON 15.03.2013 CLAIMING THE DEDUCTION UNDER SECTION 80IA AT RS.6,74,70,537/- AS ALLOWED BY THE ASSESSING OFFICE R ORIGINALLY IN THE I .T.(SS)A. NOS. 65, 66, 67 & 76/KOL/2016 ASSESSMENT YEARS: 2005-2006, 2007 -08, 2008-09 & 2009-2010 M/S. MBL INFRASTRUCTURE LIMITED 3 ASSESSMENT MADE ON 31.12.2007 THEREBY DECLARING TOT AL INCOME OF RS.5,22,77,490/-. IN THE FRESH ASSESSMENT COMPLETED UNDER SECTION 153A READ WITH SECTION 143(3) OF THE ACT VIDE AN ORDER D ATED 22.03.2013, THE ADDITIONAL CLAIM OF RS.2,07,18,556/- MADE BY THE AS SESSEE FOR DEDUCTION UNDER SECTION 80IA IN THE REVISED RETURN WAS DISALL OWED BY THE ASSESSING OFFICER ON THE GROUND THAT THE SAID CLAIM WAS MADE BY THE ASSESSEE OTHERWISE THAN BY FILING A REVISED RETURN. TO ARRIV E AT THIS CONCLUSION, THE ASSESSING OFFICER RELIED, INTER ALIA, ON THE DECISI ON OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE INDIA LIMITED VS.- CIT [284 ITR 323]. HE ALSO HELD THE ASSESSEE-COMPANY WAS NOT ENT ITLED FOR THE ADDITIONAL DEDUCTION UNDER SECTION 80IA AS CLAIMED IN THE REVISED COMPUTATION OF INCOME EVEN ON MERIT AS IT WAS NOT A T ALL A DEVELOPER, WHO HAD UNDERTAKEN ENTREPRENEURIAL AND INVESTMENT RISK. HE HELD THAT THE ASSESSEE-COMPANY WAS MERELY INTO THE BUSINESS AS A WORKS CONTRACTOR, WHO HAD UNDERTAKEN ONLY BUSINESS RISK. 4. THE DISALLOWANCE MADE BY THE ASSESSING OFFICER O N ACCOUNT OF ITS CLAIM FOR ADDITIONAL DEDUCTION UNDER SECTION 80IA A S MADE IN THE REVISED COMPUTATION OF INCOME WAS CHALLENGED BY THE ASSESSE E IN THE APPEAL FILED BEFORE THE LD. CIT(APPEALS), WHO ALLOWED THE SAID C LAIM OF THE ASSESSEE. THE LD. CIT(APPEALS) HELD BY RELYING ON THE DECISIO N OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS.- DHAMP UR SUGAR LIMITED (90 ITR 236) THAT THERE WAS A DISTINCTION BETWEEN REVIS ED RETURN AND A CORRECTION OF RETURN. HE HELD THAT THE REVISED COMP UTATION SEEKING CORRECTION IN THE CLAIM OF DEDUCTION UNDER SECTION 80IA DID NOT CHANGE THE CHARACTER OF THE ORIGINAL RETURN FILED BY THE A SSESSEE AND THE ASSESSING OFFICER SHOULD HAVE ACCEPTED THE SAME. TH E LD. CIT(APPEALS) FURTHER HELD THAT THE ASSESSEE WAS ENTITLED FOR DED UCTION UNDER SECTION 80IA AS CLAIMED IN THE REVISED COMPUTATION OF INCOM E EVEN ON MERIT AS THE SIMILAR CLAIM FOR DEDUCTION MADE UNDER SECTION 80IA BY THE ASSESSEE WAS CONSISTENTLY ALLOWED BY THE DEPARTMENT IN THE E ARLIER YEARS EVEN IN THE SCRUTINY ASSESSMENTS MADE UNDER SECTION 143(3) AND THERE WAS NO I .T.(SS)A. NOS. 65, 66, 67 & 76/KOL/2016 ASSESSMENT YEARS: 2005-2006, 2007 -08, 2008-09 & 2009-2010 M/S. MBL INFRASTRUCTURE LIMITED 4 MATERIAL CHANGE IN THE RELEVANT FACTS OF THE CASE. HE HELD THAT THE CLAIM OF THE ASSESSEE THUS WAS ALLOWABLE EVEN ON MERIT KEEPI NG IN VIEW THE PRINCIPLE OF CONSISTENCY. 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT THE DEDUCTION OF RS.6,74,70,537/- WAS CLAIMED BY THE ASSESSEE UNDER SECTION 80IA IN THE RETURN OF INCOME FILED ON 31.03.2007 AND THE SAME W AS FULLY ALLOWED BY THE ASSESSING OFFICER ORIGINALLY IN THE ASSESSMENT COMPLETED UNDER SECTION 153A READ WITH SECTION 143(3) VIDE AN ORDER DATED 31.12.2007. SINCE THE SAID ASSESSMENT DATED 31.12.2007 HAD BECO ME FINAL BEFORE THE SECOND DATE OF SEARCH CONDUCTED ON 28.10.2010, THE DEDUCTION ALLOWED UNDER SECTION 80IA IN THE SAID ASSESSMENT COULD HAV E BEEN RESTRICTED BY THE ASSESSING OFFICER ONLY ON THE BASIS OF ANY INCR IMINATING MATERIAL FOUND DURING THE COURSE OF SECOND SEARCH CONDUCTED ON 28 TH & 29 TH OCTOBER, 2010. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, THERE WAS, HOWEVER, NO SUCH INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH ON THE BASIS OF WHICH THE CLAIM OF THE ASSES SEE FOR DEDUCTION UNDER SECTION 80IA AS ORIGINALLY ALLOWED WAS RESTRICTED B Y THE ASSESSING OFFICER AND THIS POSITION CLEARLY EVIDENT FROM THE ASSESSME NT ORDER PASSED BY THE ASSESSING OFFICER IS NOT DISPUTED EVEN BY THE LD. D .R. WE, THEREFORE, FIND NO INFIRMITY IN THE IMPUGNED ORDER OF THE LD. CIT(A PPEALS) DELETING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER ON ACCOU NT OF ASSESSEES CLAIM FOR ADDITIONAL DEDUCTION OF RS.2,07,18,556/- UNDER SECTION 80IA AND UPHOLDING THE SAME, WE DISMISS GROUNDS NO. 1 & 2 OF THE REVENUES APPEAL. 6. IN GROUND NO. 3, THE REVENUE HAS CHALLENGED THE ACTION OF THE LD. CIT(APPEALS) IN DIRECTING THE ASSESSING OFFICER TO DELETE THE DISALLOWANCE OF RS.5,86,52,683/- MADE UNDER SECTION 40(A)(IA) IF THE PAYMENT OF THE CORRESPONDING TDS IS FOUND TO HAVE BEEN MADE TO THE CREDIT OF CENTRAL GOVERNMENT BEFORE THE DUE DATE OF FILING OF THE RET URN. I .T.(SS)A. NOS. 65, 66, 67 & 76/KOL/2016 ASSESSMENT YEARS: 2005-2006, 2007 -08, 2008-09 & 2009-2010 M/S. MBL INFRASTRUCTURE LIMITED 5 7. IN THE RETURN OF INCOME FILED IN RESPONSE TO THE NOTICE ISSUED UNDER SECTION 153A PURSUANT TO THE SECOND SEARCH AND SEIZ URE ACTION CONDUCTED ON 28.10.2010, THE DISALLOWANCE OF RS.5,86,52,638/- WAS OFFERED BY THE ASSESSEE UNDER SECTION 40(A)(IA) AS SUSTAINED BY TH E LD. CIT(APPEALS) ORIGINALLY. DURING THE COURSE OF APPELLATE PROCEEDI NGS BEFORE THE LD. CIT(APPEALS), THE ASSESSEE HOWEVER DISPUTED THE SAI D DISALLOWANCE AND ENTERTAINING THIS ADDITIONAL CLAIM MADE BY THE ASSE SSEE, THE LD. CIT(APPEALS) DIRECTED THE ASSESSING OFFICER TO DELE TE THE DISALLOWANCE MADE UNDER SECTION 40(A)(IA) IF THE PAYMENT OF CORR ESPONDING 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 CONSIDERATI ON. 8. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES ON THIS ISSUE AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON REC ORD. AS ALREADY NOTED BY US, THE DISALLOWANCE MADE BY THE ASSESSING OFFIC ER UNDER SECTION 40(A)(IA) IN THE ASSESSMENT ORIGINALLY COMPLETED UN DER 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 RS.5,86,52,638/-. SINCE THE SAID ASSESSMENT HAD BECOME FINAL BEFORE THE SECOND SEARC H 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 DISA LLOWANCE UNDER SECTION 40(A)(IA) IN THE PROCEEDINGS INITIATED UNDER SECTIO N 153A PURSUANT TO THE SECOND SEARCH AND SEIZURE ACTION, ESPECIALLY WHEN T HERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH 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 I TS INCOME AFTER CONSIDERING THE DISALLOWANCE UNDER SECTION 40(A)(IA ) TO THE EXTENT OF RS.5,86,52,638/- AS SUSTAINED ORIGINALLY BY THE LD. CIT(APPEALS) AND THIS ISSUE WAS NOT RAISED BY IT EVEN BEFORE THE ASSESSIN G OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THIS NEW CLAIM WA S MADE BY THE I .T.(SS)A. NOS. 65, 66, 67 & 76/KOL/2016 ASSESSMENT YEARS: 2005-2006, 2007 -08, 2008-09 & 2009-2010 M/S. MBL INFRASTRUCTURE LIMITED 6 ASSESSEE ONLY DURING THE COURSE OF APPELLATE PROCEE DINGS BEFORE THE LD. CIT(APPEALS), WHO ENTERTAINED AND ALLOWED THE SAME. KEEPING IN VIEW ALL THE FACTS OF THE CASE, AS DISCUSSED ABOVE INCLUDING ESPECIALLY THE FACT THAT THE ORIGINAL ASSESSMENT PROCEEDINGS RESULTING INTO DISALLOWANCE OF RS.5,86,52,638/- UNDER SECTION 40(A)(IA) 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 ON THIS ISSUE AND EVEN THE LD. COUNSEL FOR THE ASSESSEE HAS NOT DISPUTED THIS POSITION. WE ACCORDINGLY REVERSE THE IMPUGNED ORDER OF THE LD. C IT(APPEALS) ON THIS ISSUE AND ALLOW GROUND NO. 3 OF THE REVENUES APPEA L. 9. NOW WE SHALL TAKE UP THE REVENUES APPEAL FOR A. Y. 2007-08 BEING IT(SS)A NO. 66/KOL/2016 . THE SOLITARY ISSUE INVOLVED IN THIS APPEAL OF THE REVENUE RELATES TO THE DELETION BY THE LD. CIT( APPEALS) OF THE DISALLOWANCE OF RS.5,46,96,237/- MADE BY THE ASSESS ING OFFICER UNDER SECTION 80IA OF THE ACT. 10. IN THE RETURN OF INCOME ORIGINALLY FILED UNDER SECTION 139(1) FOR THE YEAR UNDER CONSIDERATION, I.E. A.Y. 2007-08 ON 28.0 7.2008, DEDUCTION OF RS.8,83,21,150/- WAS CLAIMED BY THE ASSESSEE-COMPAN Y UNDER SECTION 80IA OF THE ACT. IN THE ASSESSMENT ORIGINALLY COMPL ETED UNDER SECTION 143(3) VIDE AN ORDER DATED 31.12.2009, THE DEDUCTIO N CLAIMED BY THE ASSESSEE UNDER SECTION 80IA WAS RESTRICTED BY THE A SSESSING OFFICER TO RS.3,36,24,930/- THEREBY MAKING A DISALLOWANCE OF R S.5,46,96,237/-. ON APPEAL, THE LD. CIT(APPEALS) CONFIRMED THE SAID DIS ALLOWANCE. PURSUANT TO THE SEARCH AND SEIZURE ACTION CONDUCTED ON 28.10.20 10, A NOTICE UNDER SECTION 153A WAS ISSUED BY THE ASSESSING OFFICER, I N RESPONSE TO WHICH THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATI ON WAS FILED BY THE ASSESSEE ON 30.09.2011 CLAIMING DEDUCTION UNDER SEC TION 80IA TO THE EXTENT OF RS.3,36,24,913/- AS ALLOWED IN THE ORIGIN AL ASSESSMENT PROCEEDINGS. DURING THE COURSE OF ASSESSMENT PROCEE DINGS UNDER SECTION 153A READ WITH SECTION 143(3), THE ASSESSEE, HOWEVE R, FILED A REVISED I .T.(SS)A. NOS. 65, 66, 67 & 76/KOL/2016 ASSESSMENT YEARS: 2005-2006, 2007 -08, 2008-09 & 2009-2010 M/S. MBL INFRASTRUCTURE LIMITED 7 COMPUTATION OF TOTAL INCOME CLAIMING DEDUCTION UNDE R SECTION 80IA AT RS.8,83,21,15/- AS CLAIMED IN THE RETURN OF INCOME ORIGINALLY FILED ON 28.07.2008. IN THE ASSESSMENT COMPLETED UNDER SECTI ON 153A READ WITH SECTION 143(3) VIDE AN ORDER DATED 22.03.2013, THE ASSESSING OFFICER ALLOWED THE CLAIM OF THE ASSESSEE FOR DEDUCTION UND ER SECTION 80IA ONLY TO THE EXTENT OF RS.3,36,24,913/- AND THE ADDITIONA L DEDUCTION OF RS.5,46,96,237/- CLAIMED BY THE ASSESSEE IN THE REV ISED COMPUTATION OF TOTAL INCOME WAS DISALLOWED BY HIM FOR THE SAME REA SONS AS GIVEN FOR A.Y. 2005-06. ON APPEAL, THE LD. CIT(APPEALS) ALLOWED TH E CLAIM OF THE ASSESSEE FOR ADDITIONAL DEDUCTION UNDER SECTION 80I A AS MADE IN THE REVISED COMPUTATION OF TOTAL INCOME ON THE SAME GRO UNDS AS GIVEN IN A.Y. 2005-06. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPE ALS), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 11. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES O N THIS ISSUE AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON REC ORD. IT IS OBSERVED THAT THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTI ON 80IA TO THE EXTENT OF RS.5,46,96,237/- WAS DISALLOWED IN THE ORIGINAL ASSESSMENT PROCEEDINGS AND SINCE THE SAID ASSESSMENT HAD BECOM E FINAL BEFORE THE SEARCH AND SEIZURE OPERATION CONDUCTED ON 28.10.201 0, THERE WAS NO REASON OR OCCASION TO RAISE THIS ISSUE IN THE PROCE EDINGS UNDER SECTION 153A READ WITH SECTION 143(3), ESPECIALLY WHEN THER E WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH RELATING TO THIS ISSUE. AS A MATTER OF FACT, IN THE RETURN OF INCOME FILED ON 30.09.2011 IN RESPONSE TO THE NOTICE ISSUED UNDER SECTION 153A PU RSUANT TO THE SEARCH AND SEIZURE ACTION, DEDUCTION UNDER SECTION 80IA WA S CLAIMED BY THE ASSESSEE ONLY TO THE EXTENT OF RS.3,36,24,913/- AS ALLOWED IN THE ORIGINAL ASSESSMENT AND THE ADDITIONAL CLAIM OF RS.5,46,96,2 37/- FOR DEDUCTION UNDER SECTION 80IA WAS MADE BY THE ASSESSEE BY WAY OF REVISED COMPUTATION OF TOTAL INCOME FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS UNDER SECTION 153A READ WITH SECTION 14 3(3). THE ASSESSING OFFICER DECLINED TO ENTERTAIN THE SAID CLAIM WHILE THE LD. CIT(APPEALS) NOT I .T.(SS)A. NOS. 65, 66, 67 & 76/KOL/2016 ASSESSMENT YEARS: 2005-2006, 2007 -08, 2008-09 & 2009-2010 M/S. MBL INFRASTRUCTURE LIMITED 8 ONLY ENTERTAINED THE SAID CLAIM BUT ALSO ALLOWED TH E SAME ON MERIT. KEEPING IN VIEW ALL THE FACTS OF THE CASE AS DISCUS SED ABOVE INCLUDING ESPECIALLY THE FACT THAT THE ORIGINAL ASSESSMENT PR OCEEDINGS RESULTING INTO DISALLOWANCE OF RS.5,46,96,237/- UNDER SECTION 40(A )(IA) 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 ON THIS ISSUE AND EVEN THE LD. COUNSEL FOR THE ASSESSEE HAS NOT DISPUTED THIS POSITION. WE ACCORDINGLY REVERSE THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) ON THIS ISSUE AND ALLOW THE APPEAL OF THE REVENUE. 12. NOW WE SHALL TAKE UP THE REVENUES APPEAL FOR A .Y. 2008-09 BEING IT(SS)A. NO. 67/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 RS.4,49,85,993/- MADE BY THE ASSESS ING OFFICER UNDER SECTION 80IA OF THE ACT. 13. IN THE RETURN OF INCOME ORIGINALLY FILED UNDER SECTION 139(1) ON 30.09.2008 DECLARING TOTAL INCOME OF RS.10,08,54,86 0/- FOR THE YEAR UNDER CONSIDERATION I.E. A.Y. 2008-09, A DEDUCTION OF RS. 5,77,16,153/- WAS CLAIMED BY THE ASSESSEE UNDER SECTION 80IA OF THE A CT. THE SAID RETURN WAS ACCEPTED BY THE ASSESSING OFFICER UNDER SECTION 143(1) AND NO NOTICE UNDER SECTION 143(2) WAS ISSUED BY HIM TILL THE EXP IRY OF STATUTORY TIME LIMIT ON 30.09.2009. THEREAFTER A SEARCH AND SEIZUR E ACTION WAS CONDUCTED 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 EXTEN T OF RS.1,27,30,160/- WAS CLAIMED BY THE ASSESSEE. DURING THE COURSE OF A SSESSMENT PROCEEDINGS UNDER SECTION 153A READ WITH SECTION 14 3(3), THE ASSESSEE, HOWEVER, FILED A REVISED COMPUTATION OF TOTAL INCOM E CLAIMING DEDUCTION UNDER SECTION 80IA OF RS.5,77,16,153/- AS CLAIMED I N THE RETURN OF INCOME ORIGINALLY FILED ON 30.09.2008. IN THE ASSESSMENT C OMPLETED UNDER SECTION 153A READ WITH SECTION 143(3) VIDE AN ORDER DATED 2 2.03.2013, THE I .T.(SS)A. NOS. 65, 66, 67 & 76/KOL/2016 ASSESSMENT YEARS: 2005-2006, 2007 -08, 2008-09 & 2009-2010 M/S. MBL INFRASTRUCTURE LIMITED 9 ASSESSING OFFICER ALLOWED THE CLAIM OF THE ASSESESE FOR DEDUCTION UNDER SECTION 80IA ONLY TO THE EXTENT OF RS.1,27,30,160/- AND THE ADDITIONAL DEDUCTION OF RS.4,49,85,993/- CLAIMED BY THE ASSESS EE IN THE REVISED COMPUTATION OF TOTAL INCOME WAS DISALLOWED BY HIM F OR THE SAME REASONS AS GIVEN FOR A.Y. 2005-06. ON APPEAL, THE LD. CIT(A PPEALS) ALLOWED THE CLAIM OF THE ASSESSEE FOR ADDITIONAL DEDUCTION UNDE R SECTION 80IA AS MADE IN THE REVISED COMPUTATION OF TOTAL INCOME ON THE S AME GROUNDS AS GIVEN IN A.Y. 2005-06. 14. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES O N THIS ISSUE AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON REC ORD. IT IS OBSERVED THAT THE RETURN OF INCOME ORIGINALLY FILED BY THE ASSESS EE ON 30.09.2008 CLAIMING DEDUCTION OF RS.5,77,16,153/- UNDER SECTIO N 80IA WAS ACCEPTED BY THE ASSESSING OFFICER UNDER SECTION 143(1) AND S INCE NO NOTICE UNDER SECTION 143(2) WAS ISSUED BY HIM TILL THE EXPIRY OF THE STATUTORY TIME LIMIT, WHICH ENDED ON 30.09.2009, THE ORIGINAL ASSE SSMENT FOR THE YEAR UNDER CONSIDERATION, I.E. A.Y. 2008-09 HAD BECOME F INAL BEFORE THE SEARCH AND SEIZURE OPERATION CONDUCTED ON 28.10.2010. AS R IGHTLY CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE, THERE WAS THUS NO REASON OR OCCASION TO RAISE THIS ISSUE IN THE PROCEEDINGS UNDER SECTION 1 53A READ WITH SECTION 143(3) AND THE DISALLOWANCE MADE BY THE ASSESSING O FFICER TO THE EXTENT OF RS.4,49,85,993/- ON ACCOUNT OF ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 80IA, WHICH WAS ALLOWED IN THE ORIGINAL ASS ESSMENT AND THAT ASSESSMENT HAD BECOME FINAL, WAS NOT SUSTAINABLE, E SPECIALLY WHEN THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COUR SE OF SEARCH, WHICH COULD FORM THE BASIS OF THE SAID DISALLOWANCE. EVE N THE LD. D.R. HAS NOT DISPUTED THIS POSITION, WHICH IS CLEARLY EVIDENT FR OM THE RECORD INCLUDING THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 153A READ WITH SECTION 143(3). WE, THEREFORE, FIND NO IN FIRMITY IN THE IMPUGNED ORDER OF THE DL. CIT(APPEALS) DELETING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER ON THIS ISSUE AND UPHOLDIN G THE SAME, WE DISMISS GROUNDS NO. 1 & 2 OF THE REVENUES APPEAL. I .T.(SS)A. NOS. 65, 66, 67 & 76/KOL/2016 ASSESSMENT YEARS: 2005-2006, 2007 -08, 2008-09 & 2009-2010 M/S. MBL INFRASTRUCTURE LIMITED 10 15. AS REGARDS THE ISSUE INVOLVED IN GROUND NO. 3 O F THE REVENUES APPEAL FOR A.Y. 2008-09 RELATING TO THE DELETION BY THE LD. CIT(APPEALS) OF THE ADDITION OF RS.42,74,485/- MADE BY THE ASSESSIN G OFFICER ON ACCOUNT OF ASSESSEES CLAIM FOR EXEMPTION UNDER SECTION 86, IT IS OBSERVED THAT THE MATERIAL FACTS RELEVANT TO THIS ISSUE ARE SIMILAR T O THE ISSUE INVOLVED IN GROUNDS NO. 1 & 2 OF THE REVENUES APPEAL FOR A.Y. 2008-09, INASMUCH AS, THE RETURN OF INCOME ORIGINALLY FILED BY THE ASSESS EE ON 30.09.2008 CLAIMING TOTAL EXEMPTION OF RS.99,36,798/- UNDER SE CTION 86 WAS ACCEPTED BY THE ASSESSING OFFICER UNDER SECTION 143(1) AND N O NOTICE UNDER SECTION 143(2) WAS ISSUED BY HIM TILL THE EXPIRY OF STATUTO RY TIME LIMIT OF 30.09.2009. THE ORIGINAL ASSESSMENT FOR A.Y. 2008-0 9 THUS HAD BECOME FINAL AND IN THE ABSENCE OF ANY INCRIMINATING MATER IAL FOUND DURING THE COURSE OF SEARCH, THE DISALLOWANCE MADE BY THE ASSE SSING OFFICER IN THE ASSESSMENT COMPLETED UNDER SECTION 153A READ WITH S ECTION 143(3) ON ACCOUNT OF ASSESSEES CLAIM FOR EXEMPTION UNDER SEC TION 86 TO THE EXTENT OF RS.42,74,485/- WAS NOT SUSTAINABLE AS RIGHTLY CO NTENDED 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 A CCOUNT OF ASSESSEES CLAIM FOR EXEMPTION UNDER SECTION 86 TO THE EXTENT OF RS.42,74,485/- AND DISMISS GROUND NO. 3 OF THE REVENUES APPEAL. 16. NOW WE SHALL TAKE THE REVENUES 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 REVENUES APPEAL FOR A.Y. 2009-10 RELATE S TO THE DELETION BY THE LD. CIT(APPEALS) OF THE DISALLOWANCE OF RS.10,20,73 ,983/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF THE ASSESSEES CLAI M 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 30.0 9.2009 DECLARING TOTAL I .T.(SS)A. NOS. 65, 66, 67 & 76/KOL/2016 ASSESSMENT YEARS: 2005-2006, 2007 -08, 2008-09 & 2009-2010 M/S. MBL INFRASTRUCTURE LIMITED 11 INCOME OF RS.25,50,99,890/-, NO DEDUCTION UNDER SEC TION 80IA WAS CLAIMED BY THE ASSESSEE. THE SAID RETURN WAS ACCEPT ED BY THE ASSESSING OFFICER UNDER SECTION 143(1) AND NO NOTICE UNDER SE CTION 143(2) WAS ISSUED BY HIM TILL THE EXPIRY OF STATUTORY TIME LIM IT, WHICH ENDED ON 30.09.2010. THEREAFTER A SEARCH AND SEIZURE ACTION WAS CONDUCTED IN THE CASE OF THE ASSESSEE ON 28.10.2010 AND IN THE RETUR N OF INCOME FILED IN RESPONSE TO THE NOTICE ISSUED UNDER SECTION 153A IN PURSUANT TO THE SAID ACTION, NO DEDUCTION WAS CLAIMED BY THE ASSESSEE UN DER SECTION 80IA. DURING THE COURSE OF ASSESSMENT PROCEEDINGS UNDER S ECTION 153A READ WITH SECTION 143(3), THE ASSESSEE, HOWEVER, FILED A REVISED COMPUTATION OF TOTAL INCOME CLAIMING DEDUCTION OF RS.10,20,73,983/ - UNDER SECTION 80IA. IN THE ASSESSMENT COMPLETED UNDER SECTION 153A READ WITH SECTION 143(3) VIDE AN ORDER DATED 22.03.2013, THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80IA AS MADE IN THE REVISED COMPUTATION OF TOTAL INCOME WAS DISALLOWED BY THE ASSESSING OFFICER FOR THE SAME REASONS AS GIVEN IN A.Y. 2005-06. ON APPEAL, THE LD. CIT(APPEA LS) ALLOWED THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80IA AS MADE IN THE REVISED COMPUTATION OF TOTAL INCOME ON THE SAME GROUND AS G IVEN IN A.Y. 2005-06. 18. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES O N THIS ISSUE AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON REC ORD. IT IS OBSERVED THAT THE RETURN OF INCOME ORIGINALLY FILED BY THE ASSESS EE WITHOUT CLAIMING ANY DEDUCTION UNDER SECTION 80IA ON 30.09.2009 FOR THE YEAR UNDER CONSIDERATION, I.E. A.Y. 2009-10 WAS ACCEPTED BY TH E ASSESSING OFFICER UNDER SECTION 143(1) AND NO NOTICE UNDER SECTION 14 3(2) WAS ISSUED BY HIM TILL THE EXPIRY OF STATUTORY TIME LIMIT, WHICH ENDED ON 30.09.2010. THE ORIGINAL ASSESSMENT FOR THE YEAR UNDER CONSIDER ATION I.E. A.Y. 2009- 10 THUS HAD BECOME FINAL BEFORE THE SEARCH AND SEIZ URE ACTION CONDUCTED ON 28.10.2010 AND THERE WAS THUS NO REASON OR OCCAS ION TO RAISE THIS ISSUE IN THE PROCEEDINGS UNDER SECTION 153A READ WI TH SECTION 143(3), ESPECIALLY WHEN THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH RELATING TO THIS ISSUE. EVEN THE A SSESSEE IN THE RETURN OF I .T.(SS)A. NOS. 65, 66, 67 & 76/KOL/2016 ASSESSMENT YEARS: 2005-2006, 2007 -08, 2008-09 & 2009-2010 M/S. MBL INFRASTRUCTURE LIMITED 12 INCOME FILED IN RESPONSE TO THE NOTICE UNDER SECTIO N 153A HAD NOT CLAIMED ANY DEDUCTION UNDER SECTION 80IA AND THE CL AIM FOR SUCH DEDUCTION WAS MADE BY THE ASSESSEE ONLY BY WAY OF R EVISED COMPUTATION OF TOTAL INCOME FILED DURING THE COURSE OF ASSESSME NT PROCEEDINGS UNDER SECTION 153A READ WITH SECTION 143(3). THE ASSESSIN G 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 ESPE CIALLY THE FACT THAT ORIGINAL ASSESSMENT PROCEEDINGS NOT ALLOWING ANY DE DUCTION UNDER SECTION 80IA HAD BECOME FINAL, WE ARE OF THE VIEW T HAT THE LD. CIT(APPEALS) WAS NOT JUSTIFIED IN ENTERTAINING AND ALLOWING THE NEW CLAIM MADE BY THE ASSESSEE FOR DEDUCTION UNDER SECTION 80 IA 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 HA S 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 RS.10,20,73,983/- AND ALL OW GROUNDS NO. 1 & 2 OF THE REVENUES APPEAL. 19. AS REGARDS GROUND NO. 3 OF THE REVENUES APPEAL FOR A.Y. 2009-10, IT IS OBSERVED THAT THE ISSUE INVOLVED THEREIN RELATIN G TO THE DELETION BY THE LD. CIT(APPEALS) OF THE DISALLOWANCE OF RS.57,75,27 8/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ASSESSEES CLAIM FO R EXEMPTION UNDER SECTION 86 IS SIMILAR TO THE ONE INVOLVED IN GROUND NO. 3 OF THE REVENUES APPEAL FOR A.Y. 2008-09, WHICH HAS ALREADY BEEN DEC IDED BY US IN THE FOREGOING PORTION OF THIS ORDER. SINCE ALL THE MAT ERIAL FACTS RELEVANT THERETO AS WELL AS THE ARGUMENTS ADVANCED BY THE LD . REPRESENTATIVES OF BOTH THE SIDES FOR A.Y. 2009-10 ARE SIMILAR TO A.Y. 2008-09, WE FOLLOW OUR CONCLUSION DRAWN FOR A.Y. 2008-09 AND UPHOLD THE IM PUGNED ORDER OF THE LD. CIT(APPEALS) GIVING RELIEF TO THE ASSESSEE ON T HIS ISSUE. GROUND NO. 3 OF THE REVENUES APPEAL FOR A.Y. 2009-10 IS ACCORDI NGLY DISMISSED. I .T.(SS)A. NOS. 65, 66, 67 & 76/KOL/2016 ASSESSMENT YEARS: 2005-2006, 2007 -08, 2008-09 & 2009-2010 M/S. MBL INFRASTRUCTURE LIMITED 13 20. IN THE RESULT, THE REVENUES APPEALS FOR A.Y. 2 005-06 & 2009-10 BEING IT(SS)A NOS. 65 & 76/KOL/2016 ARE PARTLY ALLO WED, FOR A.Y. 2007-08 BEING IT(SS)A NO. 66/KOL/2016 IS ALLOWED WH ILE FOR A.Y. 2008-09 BEING IT(SS)A NO. 67/KOL/2016 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON MAY 01, 2019. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT (KZ) KOLKATA, THE 1 ST DAY OF MAY, 2019 COPIES TO : (1) DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(2), KOLKATA, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, KOLKATA-700 107 (2) M/S. MBL INFRASTRUCTURE LIMITED, 2/3, JUDGES COURT ROAD, KOLKATA-700 027 (3) COMMISSIONER OF INCOME TAX (APPEALS)-20, KOLKA TA, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.