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TMI Blog2024 (5) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the ld. CIT(A) and same is confirmed. Decided against revenue. - Shri Amit Shukla, Judicial Member And Smt Renu Jauhri, Accountant Member For the Assessee : None For the Revenue : Ms. Madhu Malati Ghosh ORDER PER AMIT SHUKLA (J.M): The aforesaid appeal has been filed by the Revenue against order dated 25/09/2023 passed by CIT(A)-54, Mumbai for the quantum of assessment passed u/s. 147 for the A.Y. 2015-16. 2. The Revenue has raised following grounds:- 1 On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the disallowance made u/s. 80IA of the Income Tax Act, 1961 even though the assessee has not claimed deduction u/s. 80IA in response to the return filed u/s. 153A of the IT Act, 1961 2 On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the disallowance made u/s. 80IA of the Income Tax Act, 1961 without appreciating the fact that the assessee is not eligible for deduction u/s. 80IA of the Act, since the assessee is merely a work contractor and not a developer, thereby failing to appreciate the fact that the assessee does not satisfy the condition stipulated in section 80IA(4) of the IT Act, 1961. 3. None appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition on merits and also the validity of reopening u/s. 148, however, held that in the earlier years the ld. CIT(A) had allowed he deduction on enhanced the income / additions u/s. 80IA including the decision of the Tribunal in assessee s own case which was in line with the CBDT Circular No.37 of 2016 dated 02/11/2016. The relevant observation of Ld. CIT(A) reads as under:- 10.2 The appellant on the other hand has argued that in the assessment order dated 20.12.2018 passed in its case for AY 2015-16 u/s 143(3) rws 153A of the Act, while the AO had denied the deduction u/s 80IA, the Ld CIT(A) vide order dated 10.06.2021 had allowed the deduction u/s 80IA of the Act to the assessee not only on the declared business income but also in respect of the additions made on proportionate basis. This was in line with the CBDT circular No 37/2016 dated 02.11.2016 and also in accordance with the order dated 19.12.2012 of the Hon'ble ITAT in its own case for AYs 2000-01 to 2005-06 (in ITA No 2197 to 2202/Mum/2008) and order dated 22.01.2014 for AYs 2006-07 to 2008-09 (in ITA No. 6749 to 6751/Mum/2012). The Hon'ble ITAT allowed the deduction u/s 80IA to the assessee on the enhanced incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is similar to that of GVPR Engineers Ltd in the order of the Hyderabad Bench in the case of GVPR, the Tribunal has considered the Explanation inserted in 2009 to Sec. 80IA(4), the jurisdictional Tribunal has subscribed to the view and later laid down by the Hyderabad Tribunal in GVPR Engineers Ltd Apparently no fresh facts had come in for consideration for the present AO to disturb the findings of the CIT(A) arising from the first round of proceedings as later upheld by the Hon'ble ITAT The AO has merely repeated the disallowance as already made by the predecessor AO in the first round of proceedings and that too on legal grounds without there being any new or fresh facts. In the absence of any fresh facts, the AO could not have disturbed the findings of the ITAT, that the appellant is eligible for the claim under s. 80IA, in the proceedings initiated by issue of notice under s. 153A. As held by the Hon'ble Jurisdictional High Court in the case of CIT vs. Murli Agro Products (2014) 49 taxman.com 172, the AO could not have disturbed a matter that has attained finality unless the materials gathered in the course of proceedings under s. 153A establish that the relief grante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 Ground no. 5 taken by the assessee stands allowed. 10.6 Coming to the ground No. 6 which deals with allowing deduction u/s 801A on the amounts so disclosed and further additions made during the course of search. For the year under consideration, the Ld. CIT(A) also had an occasion to deal with this issue which was decided as under 10.7 Thus, as can be seen from the above, for the same year my predecessor has already decided that assessee company shall not only be eligible to claim deduction u/s 80IA for income disclosed during the search proceedings but also be eligible for deduction under 80-IA on additions made to business income during the search proceedings on account of bogus purchases/sub contracts in the second round of assessment, appellant company had disclosed an amount of Rs. 142683 in the return filed under 153A, and to that extent business Income was enhanced and following the precedent of Hon. Jurisdictional High Court in case M/s. Shelfi Developers in 25 taxmann com 173, that of Gujarat High Court in case of M/s Radhe Developers 329 ITR 1 and the decision of CIT(A) for the same year on the same issue, it is held that the assessee company is eligible for claiming de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and advance tax and self assessment tax, appellant prays that credit of TDS and Advance tax and Self assessment tax is to be allowed. 6. On the given facts, circumstances and judicial pronouncements, Id. Assessing Officer erred in levying the interest under section 234A, 234B and 234C and such levy of interest is bad in law and liable to be reduced 7. The appellant prays to add, amend and alter or delete all or any of the above mentioned grounds of appeal. 25. Ground no. 1 is similar to ground no 1 taken by the appellant in AY 2011-12 and is decided against the assessee of para no. 6 earl in light of the decision in AY 2011-12, the ground in decided against the appellant. Ground no. 2 is similar to ground no. 3 taken by the appellant in AY 2011-12 and is decided against the assessor of pare no 9 earlier In light of the decision in AY 2011-12, the ground is decided against the appellant Ground no 3 4 are similar to ground no. 5 6 taken by the appellant in AY 2011-12 and these grounds are decided in favour of the assessee at para no. 10 earlier. In light of reasons given at para 10, the grounds are decided favour of the assessee. Ground no 5 is similar to ground no. 7 token by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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