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TMI Blog2016 (5) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... considered by the AO. Since the above deduction was legitimately claimed by the assessee much before initiation of the search and seizure operation, the claim should be allowed as deduction in 153A assessment also. Accordingly, AO is directed to allow this deduction. With regard to other deduction u/s 80G(5), the assessee has not claimed before the AO even though it is the assessee’s claim that there was some hitch in claiming the above deduction while filing the return of income and also assessee has valid documents to prove that the deduction is legitimate. Since, assessee failed to claim this deduction before completion of the regular assessment, assessee cannot claim the same in assessment proceedings u/s 153A - Decided partly in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer opined that the proceedings initiated u/s l53A were consequent to the search u/s 132 and as-a natural corollary entailed filing of returns having a bearing on the findings of search and the section was not a tool to reduce income which otherwise had not been detected as a result of search. 3. On an appeal before the CIT(A), during the course of appellate proceedings, the appellant has submitted that from AY 2007-08 onwards, the return filing was mandated to be filled in an electronic form only. It was submitted that the return preparation required separate software and the content of the return and e-mode of filling of Income Tax return was technical and certainly not a very easy task even for a professional. In its case also, it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nished in response to the notice u/s 153A of the IT Act. The appellant cannot use the search assessment as a tool/opportunity for getting the benefit which was otherwise not available to it under the provisions of IT Act. 4.1 The CIT(A) observed that the purpose of issuing notice u/s 153A of the IT Act and making assessment under that section is to bring to tax additional income, if any, coming to notice as a result of a search u/s 132 of the IT Act. Thus, the provision is for the benefit of the Revenue, not for that of the assessee. If the assessee, having got the intimation u/s143(1) felt that there was a mistake therein, he had the opportunity to take recourse to remedial action and claim that deduction. Having failed to avail of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... probabilities of the case. 2.The learned Commissioner of Income Tax(Appeals) [C.I.T (A)] erred in dismissing the appeal filed by the assessee and in confirming the assessment made by the Assessing Officer u/s.153A r.w.s 143(3) of the Income Tax Act. 3. The learned C.I.T (A) erred in holding that the deduction which had not been allowed while processing the return cannot be allowed in the return furnished in response to notice u/s.153A of the I.T Act, without considering the factual and legal position that not only an application dated 4-9-2009 filed under Sec.154 of the Act was pending before the A.O even before the date of search but also that the A.O had the inherent power coupled with the duty to rectify the errors that cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... response to the notice u/s 153A of the Act. He submitted that the assessee filed an application dated 04/09/2009 u/s 154, which was pending before the AO even before the date of search (refer page 28 of the paper book. However, without considering the said application and without looking into the technical issues that occurred while filling e-return, the AO disallowed the claim and levied the tax, which is not proper as per law. The AR relied on the following decisions in support of assessee s case: 1. Malpani Estates V. ACIT, [2014] 44 Taxmann.com 242 (Pune) 2. DCIT Vs. Eversmile Constructions Co. (P) Ltd., [2013] 33 Taxmann.com 657 (Mum.) 9. The ld. DR, on the other hand, relied upon the orders of revenue authorities. 10. We h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd also filed rectification petition before the AO much before initiation of search and seizure operation. In our considered view, the assessee is eligible to claim the above deduction even in 153A assessment even though the same was not considered by the AO. Since the above deduction was legitimately claimed by the assessee much before initiation of the search and seizure operation, the claim of ₹ 3,00,000/- should be allowed as deduction in 153A assessment also. Accordingly, AO is directed to allow this deduction. With regard to other deduction of ₹ 2,50,000/- u/s 80G(5), the assessee has not claimed before the AO even though it is the assessee s claim that there was some hitch in claiming the above deduction while filing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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