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TMI Blog2022 (10) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... projects undertaken by the appellant: Sr. No. of project referred by CIT (Appeals) Name of the project 5 Nabard Package Gondal 6 Dwarka Okha Km. 234 to 239 7 Pravasipath Dwarka Okha 242 to 247 8 Sardargadh Zinzarda Road 12 SR to Vavera Bagthana Babariyadhar 13 12th Finance commission Botad 14 Kishanpath Yojna Botad Gadhda 15 Kishanpath Yojna Rajkot 16 Kishanpath Yojna Jetur 17 12th finance Morbi Maliya 18 12th Finance RJT /2 19 12th Finance Dwarka Kalyanpur 20 Kishanpath Yojna Jamnagar 21 SRP Dhrol Latipur Km. 9/6 to 15 22 SRP Khambhaliya Dwarka Km. 176 to 187 23 Magharvada Devran 30 Ankleshwar Filter Plant 31 Modheshwar Filter Plant 37 Sodavadar Canal Work 38 Gondal Nagarpalika K - 7 39 Gondal Nagarpalika K - 9 3. The learned Commissioner 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 grounds No. 2 above. The appellant craves to add, amend, alter and withdraw any ground of appeal anytime up to the hearing of this appeal." 3. The Revenue has taken the following grounds of appeal:- "1. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erived from such contracts executed. In view of the provisions of section 80IA(4) of the Act the deduction is allowable to any enterprise carrying on the business of (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facilities. On perusal of the provision of section 80IA(4) of the Act, viewed in the light of the explanation, inserted after sub section (13) of section 80IA, which clarifies the provision of section 80IA(4), theassessee is apparently not eligible for deduction claimed under section80IA(4) as the explanation says that "for the removal of doubts, it is hereby declared that nothing contained in this section shall apply in relation to a business referred to in sub section (4) which is in the nature of a works contract awarded by any person (including the Central or State Government) and executed by the undertaking or enterprise referred to in sub section (1)." 3. On the basis of details collected during the course of search and subsequent assessment proceedings it is seen that the receipts of the assessee on which deduction u/s. 80IA(4) of the Act is claimed, is from works contract with the Central or Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied by the appellant were carefully gone through and it was observed contents of the decisions were reproduced by the appellant in a distorted manner just to make believe his submission, by grossly ignoring the true spirit of the decisions as well as the provisions of the Act. As a matter of fact, the correct spirit of the findings in these decisions could be understood only after perusal of each of the decisions as a whole and not in piece meals. The extracts reproduced by the appellant were just to make them suitable for his own purpose. The Hon'ble Tribunals and the courts in the cases of Anil Kumar Bhatia 211 Taxman 453 (Delhi), Filatex Ltd. (2014) 49 Taxmann.com 465 (Delhi), Sunny Jacob Jewellers& Wedding Centre 362 ITR 664(Kerala) and Hotel Mariya (2011)332 ITR 537 (Kerala) are in agreement that according to the provisions of Section 153A, the A.O. is obliged to issue notice u/s 153A in respect of 6 Assessment Years preceding the year in which search has been initiated. Thereafter, he has to assess or reassess the total income of these six years as provided u/s 153A (1)(b). It was furtherclarified that only the assessments or assessments pending on the date of initiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the counsel for the assessee. However, despite several opportunities, the Department has not been able to produce any material/evidence to prove that the assessment under Section 153A r.w.s. 143(3) of the Act was framed on the basis of any incriminating material found during the course of search. 11. We have heard the rival contentions and perused the material on record. In the case of PCIT v. Meeta Gutgutia [2018] 96 taxmann.com 468 (SC), Supreme Court held that invocation of Section 153A to re-open concluded assessments of assessment years earlier to year of search was not justified in absence of incriminating material found during search qua each such earlier assessment year. In the case of Pr. CIT v. Saumya Constructions 81 Taxman.com 292 (Gujarat), the Gujarat High Court held that under Section 153A, an assessment has to be made in relation to search or acquisition, namely, in relation to material disclosed during search requisitioned. If no incriminating material was found during search, no addition can be made on basis of material collected after the search. The Delhi High Court in the case of Kabul Chabla (2015) 380 ITR 573 (Delhi High Court) has held that complete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y AO based on any incriminating material found during search against assessee and assessment was not pending on date of search, impugned addition was unjustified and same was to be deleted. The Department has not been able to produce any material to suggest / substantiate that the assessment order was passed on the basis of any incriminating material found during the course of search. 12. In the instant case, we observe that from the facts placed on record, there was no incriminating material found during the course of search on the basis of which deduction claimed under Section 80IA(4) was disallowed by the Ld. Assessing Officer and also confirmed by Ld. CIT(Appeals). 13. Therefore, in view of well settled proposition of law that completed assessment can be interfered by the Assessing Officer while making assessment under Section 153A only on the basis of some incriminating material unearthed during the course of search documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made in the course of original assessment, we are of the considered view that in the instant facts, the Ld. CIT(A) has erred in fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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