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TMI Blog2022 (9) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... sidering the submissions of both counsels, we observe that this issue is well settled and held in the case of B.G. Shirke Construction Technology P Ltd [ 2017 (3) TMI 879 - BOMBAY HIGH COURT] that in the case of abated assessments the return filed u/s 153A replaces the return filed u/s 139. It held that the stand of the revenue is misplaced as the issue is relating to the assessment u/s.147/148 the same cannot be applied for the issue under consideration. Therefore, the submissions made by the DR are substantially answered. Appeals filed by the Revenue are dismissed. - ITA Nos.433 & 434/MUM/2022 - - - Dated:- 29-8-2022 - SHRI AMIT SHUKLA, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER Assessee by: Shri Vijay Mehta Department by: Shri T. Sankar ORDER PER S. RIFAUR RAHMAN (AM) 1. These appeals are filed by the Revenue against different orders of Learned Commissioner of Income Tax (Appeals)-52, Mumbai [hereinafter in short Ld.CIT(A) ] dated 16.12.2021 for the A.Ys. 2015-16 and 2016-17. 2. Brief facts of the case are, assessee is a company incorporated under the Companies Act, 1956 with the main objective of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 30.11.2017 and assessment proceedings under section 143(3) of the Act got abated due to the search action. 6. Pursuant to search action, notice under section 153A of the Act was issued to the assessee on 01.08.2018 calling for the return of income. In response to the notice, the assessee filed its return of income on 30.08.2018 declaring a total loss of Rs (-) 30,68,35,981. The total loss reported in the return of income comprise of loss from Business Profession and Capital Loss. 7. In the return filed under section 153A of the Act, the assessee offered income from let out of premises situated in the above referred SEZs under head Profit and Gain from Business and Profession as against House Property in which income was originally offered to tax. 8. During the assessment proceedings, Assessment orders under section 143(3) r.w.s 153A of the Act were passed for both A.Y. 2015-16 and A.Y. 2016-17 on 30.12.2019, wherein, Assessing Officer considered the submission made by the assessee in respect of change of stand for offering income from let out of premises under head Profit and Gain from Business and Profession instead of under the head income from House Property and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircular are binding on the subordinate authorities and the case of the assessee is covered by the circular no. 16/2017. 11. While adjudicating the ground for both the years in favor of the assessee, the Ld. CIT(A) held that since, the years under consideration represent abated years, the assessing officer was fully capable of making an assessment based on material available on record. It was the duty of Assessing Officer to ensure that correct assessment is done in accordance with the existing law while completing the assessment, rather than maintaining the status quo in the name of consistency. Accordingly, Ld CIT(A) held that the action of Assessing Officer in rejecting the claim of the assessee was not correct and the assessing officer was directed to compute income from lease rentals in line with directions issued by board in Circular No. 16 of 2017. 12. Aggrieved by the above order of Ld.CIT(A), Revenue preferred appeal before us raising following common grounds in its appeals. Grounds raised for the A.Y. 201516 are reproduced below: - 1. The Ld. CIT(A) erred in considering lease rentals income earned by the appellant as income under the Profit or Gains from Busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.07.2017 Date of search 30.11.2017 Notice under section 153A 01.08.2018 01.08.2018 15. Ld AR submitted that from the above table, it can be concluded that during the years under consideration, proceedings under section 143(3) of the Act were initiated but the same were never completed on account of search action under section 132 of the Act. Accordingly, the years under consideration represents abated years. Ld. AR of the assessee submitted that the said fact was also acknowledged by the Assessing Officer in the assessment orders for A.Y.2015-16 and A.Y.2016-17. 16. With respect to the legal position, Ld. AR placed reliance on the judgement of Hon'ble Bombay High Court in the case of Commissioner of Income Tax v. B.G. Shirke Construction Technology P. Ltd [(2017) 395 ITR 371 (Bom)], wherein, it was held that in case of an abated assessment year, once the return is filed under section 153A of the Act, the return filed under section 139 of the Act is replaced by it and the entire assessment proceedings will be conducted by the revenue considering the return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect to the claim of depreciation, Ld AR submitted that once the years under consideration are held as abated years , it becomes open for an assessee to make a fresh claim which needs to be considered on merits. Thus, the Ld.CIT(A) was well within his jurisdiction while allowing the assessee the claim of depreciation. However, he submitted that the said ground is consequential to the adjudication of the other grounds raised by the revenue. 21. Considered the rival submissions and material placed on record. We observe that the assessee is earning income from the let of out of the premises situated in the SEZs and offered to tax in the original return of income filed by the assessee under the head income from House property. However, subsequent to the Search, while filing the return u/s 153A, it changed the head of income to declare the income from let out of premises under the head Income from Business and Profession. This action of the assessee was rejected by the Assessing Officer that the assessee cannot claim new benefit in the revised proceedings u/s 153A of the Act. However, Ld CIT(A) decided the issue in favour of the assessee considering the fact on record that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse under Section 139(1) of the Act would also continue to apply in case of return filed under Section 153A of the Act and the case laws on the provision of the Act would equally apply. 22. We observe that similar view was expressed by Hon ble Bombay High Court while adjudicating similar issues in the case of JSW Steel Ltd (supra) and held as under: - 13. In the present case, search was conducted on the assessee on 30-11-2010. At that point of time assessment in the case of assessee for the assessment year 2008-09 was pending scrutiny since notice under section 143(2) of the Act was issued and assessment was not completed. Therefore, in view of the second proviso to section 153A of the said Act, once assessment got abated, it meant that it was open for both the parties, i.e. the assessee as well as revenue to make claims for allowance or to make disallowance, as the case may be, etc. That apart, assessee could lodge a new claim for deduction etc. which remained to be claimed in his earlier/regular return of income. This is so because assessment was never made in the case of the assessee in such a situation. It is fortified that once the assessment gets abated, the origi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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