DEPUTY COMMISSIONER OF INCOME TAX, NUMGAMBAKKAM vs. JSR INFRA DEVELOPERS PRIVATE LIMITED, CHENNAI

3. The Ld.CIT(A) erred in not taking note of the fact that the claim of 3. The Ld.CIT(A) erred in not taking note of the fact that the claim of 3. The Ld.CIT(A) erred in not taking note of the fact that the claim of deduction u/s 801A of the Act was not made by the assesse in the original ITR deduction u/s 801A of the Act was not made by the assesse in the original ITR deduction u/s 801A of the Act was not made by the assesse in the original ITR filed by the assessee u/s 139(1) o filed by the assessee u/s 139(1) on 30.11.2016.

The Ld.CIT(A) erred in allowing the appeal of the assessee ignoring the The Ld.CIT(A) erred in allowing the appeal of the assessee ignoring the The Ld.CIT(A) erred in allowing the appeal of the assessee ignoring the decision of the Hon'ble Supreme Court of India in CIVIL APPEAL NO. 1449 OF decision of the Hon'ble Supreme Court of India in CIVIL APPEAL NO. 1449 OF decision of the Hon'ble Supreme Court of India in CIVIL APPEAL NO. 1449 OF 2022 (Arising out of SLP(Civil) No. 7620/2021) Principal Commissioner of 2022 (Arising out of SLP(Civil) No. 7620/2021) Principal Commissioner of 2022 (Arising out of SLP(Civil) No. 7620/2021) Principal Commissioner of Income Tax-III, Bangal III, Bangalore Vs M/s Wipro Limited wherein the Apex Court has ore Vs M/s Wipro Limited wherein the Apex Court has held that the "Revenue is right in submitting that the revised return filed by held that the "Revenue is right in submitting that the revised return filed by held that the "Revenue is right in submitting that the revised return filed by the assessee under section 139(5) can only substitute its original return under the assessee under section 139(5) can only substitute its original return under the assessee under section 139(5) can only substitute its original return under Section 139(1) and cannot transform it. The a Section 139(1) and cannot transform it. The assessee can file a revised return ssessee can file a revised return in a case where there is an omission or a wrong statement. Filing a revised in a case where there is an omission or a wrong statement. Filing a revised in a case where there is an omission or a wrong statement. Filing a revised return and taking a contrary stand and/or claiming the exemption, which was return and taking a contrary stand and/or claiming the exemption, which was return and taking a contrary stand and/or claiming the exemption, which was specifically not claimed earlier while filing the original return of i specifically not claimed earlier while filing the original return of income is not ncome is not permissible. By filing the revised return of income, the assessee cannot be permissible. By filing the revised return of income, the assessee cannot be permissible. By filing the revised return of income, the assessee cannot be permitted to substitute the original return of income filed under section 139(1) permitted to substitute the original return of income filed under section 139(1) permitted to substitute the original return of income filed under section 139(1) of the IT Act".

4. The Ld.CIT(A) erred in allowing the appeal of the assessee without 4. The Ld.CIT(A) erred in allowing the appeal of the assessee without 4. The Ld.CIT(A) erred in allowing the appeal of the assessee without appreciating the fact that the assessee would not have disclosed the appreciating the fact that the assessee would not have disclosed the appreciating the fact that the assessee would not have disclosed the unaccounted income if the search and seizure action would have not been unaccounted income if the search and seizure action would have not been unaccounted income if the search and seizure action would have not been conducted by the Income Tax Department as enunciated in the decision of the conducted by the Income Tax Department as enunciated in the decision of the conducted by the Income Tax Department as enunciated in the decision of the Hon'ble Rajasthan High Court in the cas Hon'ble Rajasthan High Court in the case of M/s Jal Steels (India) vs A.C.I.T, e of M/s Jal Steels (India) vs A.C.I.T, [2013] 36 taxmann.com 523, wherein the Hon'ble High Court has held that it [2013] 36 taxmann.com 523, wherein the Hon'ble High Court has held that it [2013] 36 taxmann.com 523, wherein the Hon'ble High Court has held that it is not open for the assessee to seek deduction or claim expenditure which has is not open for the assessee to seek deduction or claim expenditure which has is not open for the assessee to seek deduction or claim expenditure which has not been claimed in the original assessment, which assessment a not been claimed in the original assessment, which assessment already stands lready stands completed, only because an assessment under Section 153A of the Act in completed, only because an assessment under Section 153A of the Act in completed, only because an assessment under Section 153A of the Act in pursuance of search or requisition is required to be made. pursuance of search or requisition is required to be made.

5. The Ld.CIT(A) erred in allowing the appeal of the assessee without 5. The Ld.CIT(A) erred in allowing the appeal of the assessee without 5. The Ld.CIT(A) erred in allowing the appeal of the assessee without appreciating the fact that in the statute appreciating the fact that in the statute of Income tax Act, 1961, a section 146 of Income tax Act, 1961, a section 146 was vogue earlier, similar to that of section 147 facilitating an assessee to was vogue earlier, similar to that of section 147 facilitating an assessee to was vogue earlier, similar to that of section 147 facilitating an assessee to reopen his assessment and consider his claim whereby his income could be reopen his assessment and consider his claim whereby his income could be reopen his assessment and consider his claim whereby his income could be reduced. However, the same had been removed w.e.f. 01.10.1984 as i reduced. However, the same had been removed w.e.f. 01.10.1984 as i reduced. However, the same had been removed w.e.f. 01.10.1984 as it was detrimental to the revenue. Therefore, it is very obvious that the very detrimental to the revenue. Therefore, it is very obvious that the very detrimental to the revenue. Therefore, it is very obvious that the very introduction of search assessment was to bring out the unaccounted income introduction of search assessment was to bring out the unaccounted income introduction of search assessment was to bring out the unaccounted income and not to facilitate an assessee in taking recourses to reduction in income. and not to facilitate an assessee in taking recourses to reduction in income. and not to facilitate an assessee in taking recourses to reduction in income.

2016-17, the assessee had filed its return of income on 30.11.2016 17, the assessee had filed its return of income on 30.11.2016 17, the assessee had filed its return of income on 30.11.2016 declaring total income of Rs.46,69,82,790/ declaring total income of Rs.46,69,82,790/-. In the original return of the original return of income, the assessee had not claimed any deduction u/s 80 income, the assessee had not claimed any deduction u/s 80 income, the assessee had not claimed any deduction u/s 80-IA of the Act.

The case of the assessee was selected for scrutiny by issue of notice u/s The case of the assessee was selected for scrutiny by issue of notice u/s The case of the assessee was selected for scrutiny by issue of notice u/s 143(2) of the Act dated 18.07.2017. In the meantime, there was a search 143(2) of the Act dated 18.07.2017. In the meantime, there was a search 143(2) of the Act dated 18.07.2017. In the meantime, there was a search action u/s 132 of the Act conducted in the case of of the Act conducted in the case of M/s M/s SRS Mining on 08.12.2016. In the course of search, certain electronic evidence relating 08.12.2016. In the course of search, certain electronic evidence relating 08.12.2016. In the course of search, certain electronic evidence relating to unaccounted cash payments by the assessee was found from the to unaccounted cash payments by the assessee was found from the to unaccounted cash payments by the assessee was found from the premises of SRS Mining and in relation thereto, one of the dire premises of SRS Mining and in relation thereto, one of the dire premises of SRS Mining and in relation thereto, one of the directors of the assessee in his statement recorded on 11.12.2016 had admitted the same assessee in his statement recorded on 11.12.2016 had admitted the same assessee in his statement recorded on 11.12.2016 had admitted the same as the undisclosed income of the assessee. As a consequence, it was as the undisclosed income of the assessee. As a consequence, it was as the undisclosed income of the assessee. As a consequence, it was brought to our notice that the case of the assessee was centralized with brought to our notice that the case of the assessee was centralized with brought to our notice that the case of the assessee was centralized with the AO on 03.11.2017. The Ld. A the AO on 03.11.2017. The Ld. AR emphasized that on the said date, the R emphasized that on the said date, the assessment proceedings u/s 143(3) of the Act for the relevant AY 2016 assessment proceedings u/s 143(3) of the Act for the relevant AY 2016 assessment proceedings u/s 143(3) of the Act for the relevant AY 2016- 17 was pending. Thereafter, satisfaction note was drawn by the AO in 17 was pending. Thereafter, satisfaction note was drawn by the AO in 17 was pending. Thereafter, satisfaction note was drawn by the AO in terms of Section 153C of the Act on 11.07.2018 and the notice u/s 153C terms of Section 153C of the Act on 11.07.2018 and the notice u/s 153C terms of Section 153C of the Act on 11.07.2018 and the notice u/s 153C of the Act for the relevant AY 2016 Act for the relevant AY 2016-17 was issued on 13.07.2018 (served 17 was issued on 13.07.2018 (served on the assessee on 18.07.2018), requiring the assessee to file its return on the assessee on 18.07.2018), requiring the assessee to file its return on the assessee on 18.07.2018), requiring the assessee to file its return of income within 15 days from the date of service of the said notice. It is of income within 15 days from the date of service of the said notice. It is of income within 15 days from the date of service of the said notice. It is noted that, on the date of satisfaction noted that, on the date of satisfaction note, which is deemed to be the note, which is deemed to be the date of search in terms of proviso to Section 153C of the Act, the income date of search in terms of proviso to Section 153C of the Act, the income date of search in terms of proviso to Section 153C of the Act, the income tax assessment for AY 2016 tax assessment for AY 2016-17 was pending on the said date and as a 17 was pending on the said date and as a /Chny/2024 (AY 2016-17) M/s. JSR Infra Developers Pvt. Ltd. M/s. JSR Infra Developers Pvt. Ltd. consequence of the issue of notice u/s 153C of the Act, the original consequence of the issue of notice u/s 153C of the Act, the original consequence of the issue of notice u/s 153C of the Act, the original assessment proceedings initiated by notice u/s 143(2) of the Act dated roceedings initiated by notice u/s 143(2) of the Act dated roceedings initiated by notice u/s 143(2) of the Act dated 18.07.2017 stood abated. 18.07.2017 stood abated.

of the Act and therefore could not have been made in the return filed u/s of the Act and therefore could not have been made in the return filed u/s of the Act and therefore could not have been made in the return filed u/s 153C of the Act. According to the AO, the provisions of Section 153A and 153C of the Act. According to the AO, the provisions of Section 153A and 153C of the Act. According to the AO, the provisions of Section 153A and 153C are meant for the benefit of the Revenue and not the a 153C are meant for the benefit of the Revenue and not the a 153C are meant for the benefit of the Revenue and not the assessee and therefore acceptance of fresh claim in the return of income filed therefore acceptance of fresh claim in the return of income filed therefore acceptance of fresh claim in the return of income filed /Chny/2024 (AY 2016-17) M/s. JSR Infra Developers Pvt. Ltd. M/s. JSR Infra Developers Pvt. Ltd. consequent to search, would defeat the very purpose of unearthing the consequent to search, would defeat the very purpose of unearthing the consequent to search, would defeat the very purpose of unearthing the unaccounted income.

- Sanjay Nandal Vyas v. ITO [ITA No.771 & 774 / PUN / 2010 dated y Nandal Vyas v. ITO [ITA No.771 & 774 / PUN / 2010 dated y Nandal Vyas v. ITO [ITA No.771 & 774 / PUN / 2010 dated 23.12.2011] - PCIT v. Neeraj Jindal [2017] 393 ITR 1 (Del) aj Jindal [2017] 393 ITR 1 (Del) - Kirit Dahyabhai Patel v. ACIT Kirit Dahyabhai Patel v. ACIT [2017] 80 taxmann.com 162 (Guj) [2017] 80 taxmann.com 162 (Guj) - ACIT v. SpelndorLandbase Ltd [ITA No.2461/DEL/2016 dated ACIT v. SpelndorLandbase Ltd [ITA No.2461/DEL/2016 dated ACIT v. SpelndorLandbase Ltd [ITA No.2461/DEL/2016 dated 06.06.2018] - Shrikanth Mohta v. CIT [2019] 414 ITR 270 (Cal) Mohta v. CIT [2019] 414 ITR 270 (Cal) - Naresh T Wadhwani v. DCIT [2015] 68 SOT 235 (Pune Naresh T Wadhwani v. DCIT [2015] 68 SOT 235 (Pune Naresh T Wadhwani v. DCIT [2015] 68 SOT 235 (Pune-Trib) - Malpani Estates v. ACIT [2014] 64 SOT 105 (Pune Malpani Estates v. ACIT [2014] 64 SOT 105 (Pune-Trib) Trib) - DCIT v. Sheth Developers (P) Ltd [2012] 25 taxmann.com 173 DCIT v. Sheth Developers (P) Ltd [2012] 25 taxmann.com 173 DCIT v. Sheth Developers (P) Ltd [2012] 25 taxmann.com 173 (Bom) - ITO v. Gajraj Constructions [2015] 70 SOT 6 ITO v. Gajraj Constructions [2015] 70 SOT 634 (Pune 34 (Pune-Trib) - ACIT v. Shri V.N.Devadoss [ITA No.1219 & 1221 / MDS / 2012 ACIT v. Shri V.N.Devadoss [ITA No.1219 & 1221 / MDS / 2012 ACIT v. Shri V.N.Devadoss [ITA No.1219 & 1221 / MDS / 2012 dated 04.02.2013] dated 04.02.2013] 6. Being aggrieved by the above order of the Ld. CIT(A) allowing the Being aggrieved by the above order of the Ld. CIT(A) allowing the Being aggrieved by the above order of the Ld. CIT(A) allowing the assessee’s claim for fresh deduction u/s 80 assessee’s claim for fresh deduction u/s 80-IA of the Act, the Revenue is IA of the Act, the Revenue is now in appeal before us. us.

CIT, DR further took us through the legislative history of Section 80 CIT, DR further took us through the legislative history of Section 80 CIT, DR further took us through the legislative history of Section 80-AC as applicable from AY 2016 applicable from AY 2016-17 and argued that if the assesse 17 and argued that if the assessee did not make a claim for deduction under Chapter VIA in the return a claim for deduction under Chapter VIA in the return of income filed u/s of income filed u/s 139(1) of the Act, then the assessee is barred from making fresh claim 139(1) of the Act, then the assessee is barred from making fresh claim 139(1) of the Act, then the assessee is barred from making fresh claim u/s 80-IA subsequently. In support of his arguments, the Ld. CIT, DR has IA subsequently. In support of his arguments, the Ld. CIT, DR has IA subsequently. In support of his arguments, the Ld. CIT, DR has also filed a written note, which has been taken on record. also filed a written note, which has been taken on record.

two categories viz., (a) unabated assessments and (b) abated two categories viz., (a) unabated assessments and (b) abated two categories viz., (a) unabated assessments and (b) abated assessments. He submitted that only in cases of unabated assessments, assessments. He submitted that only in cases of unabated assessments, assessments. He submitted that only in cases of unabated assessments, not only the Revenue is prevented from making any other addition apart not only the Revenue is prevented from making any other addition apart not only the Revenue is prevented from making any other addition apart from addition on the bas from addition on the basis of incriminating material unearthed in the is of incriminating material unearthed in the course of search but likewise the assessee is also prevented from raising course of search but likewise the assessee is also prevented from raising course of search but likewise the assessee is also prevented from raising any new claims in these already completed assessments, now reopened any new claims in these already completed assessments, now reopened any new claims in these already completed assessments, now reopened u/s 153A/153C of the Act. In so far as abated assessments are u/s 153A/153C of the Act. In so far as abated assessments are u/s 153A/153C of the Act. In so far as abated assessments are concerned, the prevailing jurisprudence, according to the Ld. AR, is that ned, the prevailing jurisprudence, according to the Ld. AR, is that ned, the prevailing jurisprudence, according to the Ld. AR, is that the return of income filed u/s 153A/153C of the Act substitutes the return the return of income filed u/s 153A/153C of the Act substitutes the return the return of income filed u/s 153A/153C of the Act substitutes the return of income originally filed u/s 139(1) of the Act and therefore, in this of income originally filed u/s 139(1) of the Act and therefore, in this of income originally filed u/s 139(1) of the Act and therefore, in this abated assessment, both the Revenue is pe abated assessment, both the Revenue is permitted to make any enquiries rmitted to make any enquiries and/or any additions, irrespective whether it is based on material and/or any additions, irrespective whether it is based on material and/or any additions, irrespective whether it is based on material unearthed in the course of search and likewise, the assessee is also unearthed in the course of search and likewise, the assessee is also unearthed in the course of search and likewise, the assessee is also permitted to raise any fresh claims or deductions for the first time in a permitted to raise any fresh claims or deductions for the first time in a permitted to raise any fresh claims or deductions for the first time in a return of income filed in response to notice u/s 153A/153C of the Act. filed in response to notice u/s 153A/153C of the Act. filed in response to notice u/s 153A/153C of the Act.

9. The Ld. AR further explained to us the interplay of Section 80A(5), The Ld. AR further explained to us the interplay of Section 80A(5), The Ld. AR further explained to us the interplay of Section 80A(5), 80AC and 80-IA(7) of the Act and argued that the assessee in the present IA(7) of the Act and argued that the assessee in the present IA(7) of the Act and argued that the assessee in the present case was in compliance of these provisions and therefore case was in compliance of these provisions and therefore the fresh claim for deduction u/s 80-IA made for the first time in the return u/s 153C of IA made for the first time in the return u/s 153C of IA made for the first time in the return u/s 153C of the Act was allowable. He brought to our notice that, Section 80AC the Act was allowable. He brought to our notice that, Section 80AC the Act was allowable. He brought to our notice that, Section 80AC requires that the claim for deduction under Chapter VIA has to be made in requires that the claim for deduction under Chapter VIA has to be made in requires that the claim for deduction under Chapter VIA has to be made in /Chny/2024 (AY 2016-17) M/s. JSR Infra Developers Pvt. Ltd. M/s. JSR Infra Developers Pvt. Ltd. :: 8 ::

the return of income or the return of income or otherwise it cannot be entertained. The Ld. AR otherwise it cannot be entertained. The Ld. AR explained to us that the relevant AY 2016 explained to us that the relevant AY 2016-17 was an abated assessment 17 was an abated assessment and therefore the return of income filed u/s 153C of the Act was to be and therefore the return of income filed u/s 153C of the Act was to be and therefore the return of income filed u/s 153C of the Act was to be construed as return filed u/s 139 of the Act and in that view of the construed as return filed u/s 139 of the Act and in that view of the construed as return filed u/s 139 of the Act and in that view of the matter the conditions laid down in Section 80A(5) and 80AC was met. He further the conditions laid down in Section 80A(5) and 80AC was met. He further the conditions laid down in Section 80A(5) and 80AC was met. He further showed us that the assessee had also obtained certificate in Form 10CCB showed us that the assessee had also obtained certificate in Form 10CCB showed us that the assessee had also obtained certificate in Form 10CCB as mandated in Section 80 as mandated in Section 80-IA(7) of the Act and the same was filed along IA(7) of the Act and the same was filed along with the return of income and th with the return of income and therefore, the requirement laid down in the erefore, the requirement laid down in the said provision was also fulfilled. The Ld. AR further relied on several said provision was also fulfilled. The Ld. AR further relied on several said provision was also fulfilled. The Ld. AR further relied on several judicial precedents in support of the foregoing contention. He accordingly judicial precedents in support of the foregoing contention. He accordingly judicial precedents in support of the foregoing contention. He accordingly urged that there was no reason to interfere with the order of the L urged that there was no reason to interfere with the order of the L urged that there was no reason to interfere with the order of the Ld. CIT(A). The Ld. AR has also furnished a written note of arguments CIT(A). The Ld. AR has also furnished a written note of arguments CIT(A). The Ld. AR has also furnished a written note of arguments rebutting the contentions of the Ld. CIT, DR, which has been taken on rebutting the contentions of the Ld. CIT, DR, which has been taken on rebutting the contentions of the Ld. CIT, DR, which has been taken on record.

Pursuant to the notice u/s 153C of the Act, the assessee had filed the Pursuant to the notice u/s 153C of the Act, the assessee had filed the Pursuant to the notice u/s 153C of the Act, the assessee had filed the return of income within the time allowed under the said notice and in this return of income within the time allowed under the said notice and in this return of income within the time allowed under the said notice and in this return of income filed on 30.07.2018, the assessee for the first time had n of income filed on 30.07.2018, the assessee for the first time had n of income filed on 30.07.2018, the assessee for the first time had claimed deduction u/s 80 claimed deduction u/s 80-IA of the Act of Rs.20,09,41,057/ IA of the Act of Rs.20,09,41,057/-. The return of income filed u/s 153C of the Act was also accompanied with the report of income filed u/s 153C of the Act was also accompanied with the report of income filed u/s 153C of the Act was also accompanied with the report of chartered accountant in Form 10CCB, as of chartered accountant in Form 10CCB, as required u/s 80 required u/s 80-IA(7) of the Act. On these facts, the the narrow issue in dispute before us, is whether the narrow issue in dispute before us, is whether the assessee was legally permitted to raise a claim of deduction under assessee was legally permitted to raise a claim of deduction under assessee was legally permitted to raise a claim of deduction under Chapter VI-A of the Act, for the first time in the return of income filed in A of the Act, for the first time in the return of income filed in A of the Act, for the first time in the return of income filed in response to notice u/s 153C of the Act, in relation to an abated to notice u/s 153C of the Act, in relation to an abated to notice u/s 153C of the Act, in relation to an abated assessment.

11. It is noted that, the It is noted that, the second proviso to Section 153A of the Act second proviso to Section 153A of the Act mandates that the assessments or re mandates that the assessments or re-assessments pending on the date of assessments pending on the date of initiation of search would stand abated. It fur initiation of search would stand abated. It further provides that, the ther provides that, the return of income filed by the searched person, in terms of Section return of income filed by the searched person, in terms of Section return of income filed by the searched person, in terms of Section 153A(1)(a) of the Act, would be construed to be a return of income under 153A(1)(a) of the Act, would be construed to be a return of income under 153A(1)(a) of the Act, would be construed to be a return of income under Section 139 of the Act. Therefore, once the assessment gets abated, the Section 139 of the Act. Therefore, once the assessment gets abated, the Section 139 of the Act. Therefore, once the assessment gets abated, the original return which had been filed loses its originality and the h had been filed loses its originality and the h had been filed loses its originality and the subsequent return filed under Section 153A subsequent return filed under Section 153Ar.w. 153C of the said Act of the said Act /Chny/2024 (AY 2016-17) M/s. JSR Infra Developers Pvt. Ltd. M/s. JSR Infra Developers Pvt. Ltd. :: 10 ::

(which is in consequence to the search action conducted under Section (which is in consequence to the search action conducted under Section (which is in consequence to the search action conducted under Section 132 of the Act) takes the place of the original return. In such a case, 132 of the Act) takes the place of the original return. In such a case, 132 of the Act) takes the place of the original return. In such a case, the return of income filed under Section 153A(1) of the said Act, would be return of income filed under Section 153A(1) of the said Act, would be return of income filed under Section 153A(1) of the said Act, would be construed to be one filed under Section 139(1) of the Act and the construed to be one filed under Section 139(1) of the Act and the construed to be one filed under Section 139(1) of the Act and the provisions of the said Act shall apply to the same accordingly. A provisions of the said Act shall apply to the same accordingly. A provisions of the said Act shall apply to the same accordingly. As a result, the return filed under Section 153A return filed under Section 153Ar.w. 153C takes the place of the takes the place of the original return under Section 139 of the Act, for the purposes of all other original return under Section 139 of the Act, for the purposes of all other original return under Section 139 of the Act, for the purposes of all other provisions of the Act. I provisions of the Act. In this regard, it is noted that, the provisions of is noted that, the provisions of Section 153A of the Act explicitly provides that, all the provisions of th Section 153A of the Act explicitly provides that, all the provisions of th Section 153A of the Act explicitly provides that, all the provisions of the Income-tax Act will apply to the return filed by an assessee under Section tax Act will apply to the return filed by an assessee under Section tax Act will apply to the return filed by an assessee under Section 153A of the Act, as if such return filed by the assessee was a return filed 153A of the Act, as if such return filed by the assessee was a return filed 153A of the Act, as if such return filed by the assessee was a return filed under section 139(1) of the Act. In other words, in view of the second under section 139(1) of the Act. In other words, in view of the second under section 139(1) of the Act. In other words, in view of the second proviso to Section 153A(1) of th proviso to Section 153A(1) of the said Act, once an assessment gets e said Act, once an assessment gets abated, the provisions of the Act which would be otherwise applicable in abated, the provisions of the Act which would be otherwise applicable in abated, the provisions of the Act which would be otherwise applicable in case of return filed under Section 139(1) of the Act, would also continue case of return filed under Section 139(1) of the Act, would also continue case of return filed under Section 139(1) of the Act, would also continue to apply in case of return filed under Section 153A of the Act. Having to apply in case of return filed under Section 153A of the Act. Having to apply in case of return filed under Section 153A of the Act. Having regard to the foregoing provisions, we are of the view that the assessee is gard to the foregoing provisions, we are of the view that the assessee is gard to the foregoing provisions, we are of the view that the assessee is entitled to lodge a new claim in a proceeding under Section 153A entitled to lodge a new claim in a proceeding under Section 153A entitled to lodge a new claim in a proceeding under Section 153A / 153C of the Act, which was not claimed in the regular return of income, of the Act, which was not claimed in the regular return of income, of the Act, which was not claimed in the regular return of income, because the assessment was never made/final because the assessment was never made/finalized in the case of the ized in the case of the assessee in such a situation. We find that this particular issue has been assessee in such a situation. We find that this particular issue has been assessee in such a situation. We find that this particular issue has been decided in favour of the assessee by the Hon'ble Bombay High Court held decided in favour of the assessee by the Hon'ble Bombay High Court held decided in favour of the assessee by the Hon'ble Bombay High Court held /Chny/2024 (AY 2016-17) M/s. JSR Infra Developers Pvt. Ltd. M/s. JSR Infra Developers Pvt. Ltd.

:: 11 :: in the case of B.G. Shirke Construction Technology P Ltd (supra) B.G. Shirke Construction Technology P Ltd (supra) B.G. Shirke Construction Technology P Ltd (supra), wherein it was held as under : as under :-

"8. The grievance of the Revenue before us is that the impugned order is "8. The grievance of the Revenue before us is that the impugned order is "8. The grievance of the Revenue before us is that the impugned order is unsustainable as it is a passed in the face of the Apex Court Order in Goetze unsustainable as it is a passed in the face of the Apex Court Order in Goetze unsustainable as it is a passed in the face of the Apex Court Order in Goetze (India) Ltd. (supra). It is submitted that the impugned order could not have held ). It is submitted that the impugned order could not have held ). It is submitted that the impugned order could not have held that the claim for deduction could be entertained by the Assessing Officer in the aim for deduction could be entertained by the Assessing Officer in the aim for deduction could be entertained by the Assessing Officer in the absence of the same finding a place either in return of income or in the revised absence of the same finding a place either in return of income or in the revised absence of the same finding a place either in return of income or in the revised return of income. It is further submitted that in view of the decision of the Apex return of income. It is further submitted that in view of the decision of the Apex return of income. It is further submitted that in view of the decision of the Apex Court in CIT v. Sun E Court in CIT v. Sun Engineering Works (P.) Ltd. [1992] 198 ITR 297/64 Taxman [1992] 198 ITR 297/64 Taxman 442 a re-assessment consequent to re assessment consequent to re-opening of the assessment cannot lead to opening of the assessment cannot lead to reduction of income which had been originally assessed to tax. In the above reduction of income which had been originally assessed to tax. In the above reduction of income which had been originally assessed to tax. In the above view, it is submitted that the impugned order of the Tribunal is not justified and submitted that the impugned order of the Tribunal is not justified and submitted that the impugned order of the Tribunal is not justified and admission of the appeal is warranted. admission of the appeal is warranted.

10. The reliance on the decision of the Apex Court in Sun Engineering Works (P.) 10. The reliance on the decision of the Apex Court in Sun Engineering Works (P.) 10. The reliance on the decision of the Apex Court in Sun Engineering Works (P.) Ltd. (supra) by the Revenue is misplaced. The ) by the Revenue is misplaced. The above case dealt with re above case dealt with re-opening of an assessment under Section 147 of the Act. It was in that context that the of an assessment under Section 147 of the Act. It was in that context that the of an assessment under Section 147 of the Act. It was in that context that the Apex Court observed that the Order passed under Section 147/148 and the Apex Court observed that the Order passed under Section 147/148 and the Apex Court observed that the Order passed under Section 147/148 and the Assessing Officer is primarily restricted to such income which has escap Assessing Officer is primarily restricted to such income which has escap Assessing Officer is primarily restricted to such income which has escaped assessment and does not permit reconsideration of issue which are concluded in assessment and does not permit reconsideration of issue which are concluded in assessment and does not permit reconsideration of issue which are concluded in the earlier assessment years in favour of the Revenue. the earlier assessment years in favour of the Revenue.

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"8.1 In other words, section 153 "8.1 In other words, section 153-A(1) provides that where a person is subjected person is subjected to a search under section 132 or his books of accounts, etc. are requisitioned to a search under section 132 or his books of accounts, etc. are requisitioned to a search under section 132 or his books of accounts, etc. are requisitioned under section 132- -A after 31-52003, the assessing officer is mandated to issue 52003, the assessing officer is mandated to issue notice to such person to furnish return of income in respect of each assessme notice to such person to furnish return of income in respect of each assessme notice to such person to furnish return of income in respect of each assessment year falling within six assessment years immediately preceding the assessment year falling within six assessment years immediately preceding the assessment year falling within six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is year relevant to the previous year in which search is conducted or requisition is year relevant to the previous year in which search is conducted or requisition is made. Such returns of income shall be treated to be returns of income furnished made. Such returns of income shall be treated to be returns of income furnished made. Such returns of income shall be treated to be returns of income furnished under section 139. Once returns are furnished, income is to be assessed or 139. Once returns are furnished, income is to be assessed or 139. Once returns are furnished, income is to be assessed or reassessed for the six assessment years immediately preceding the assessment reassessed for the six assessment years immediately preceding the assessment reassessed for the six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or year relevant to the previous year in which such search is conducted or year relevant to the previous year in which such search is conducted or requisition is made. Thus, once section 153 requisition is made. Thus, once section 153-A(1) is invoked, assessment for 6 (1) is invoked, assessment for 6 assessment years immediately preceding the assessment year in which search is assessment years immediately preceding the assessment year in which search is assessment years immediately preceding the assessment year in which search is conducted or requisition is made becomes open to assessment or re conducted or requisition is made becomes open to assessment or re conducted or requisition is made becomes open to assessment or re- assessment. Two aspects are crucial here. One is use of the expression assessment. Two aspects are crucial here. One is use of the expression assessment. Two aspects are crucial here. One is use of the expression "notwithstanding" in sub standing" in sub-section (1); and secondly that returns of income filed section (1); and secondly that returns of income filed pursuant to notice under section 153 pursuant to notice under section 153-A (1)(a) would be construed to be returns A (1)(a) would be construed to be returns under section 139. The use of non obstante clause in sub under section 139. The use of non obstante clause in sub-section (1) of section section (1) of section 153-A i.e., use of the ex A i.e., use of the expression "notwithstanding" is indicative of the legislative pression "notwithstanding" is indicative of the legislative intent that provisions of section 153 intent that provisions of section 153-A(1) would have overriding effect over the A(1) would have overriding effect over the provisions contained in sections 139, 147, 148, 149, 151 and 153. provisions contained in sections 139, 147, 148, 149, 151 and 153. provisions contained in sections 139, 147, 148, 149, 151 and 153.

8.2 Having noticed the above, we may also refer t 8.2 Having noticed the above, we may also refer to the second and the third o the second and the third proviso to section 153A(1). For the sake of convenience, the second and third proviso to section 153A(1). For the sake of convenience, the second and third proviso to section 153A(1). For the sake of convenience, the second and third proviso to section 153A(1) of the said Act which is relevant is reproduced below proviso to section 153A(1) of the said Act which is relevant is reproduced below proviso to section 153A(1) of the said Act which is relevant is reproduced below and reads thus:

Provided further that assessment or reassessment, if a Provided further that assessment or reassessment, if any, relating to any ny, relating to any assessment year falling within the period of six assessment years referred to in assessment year falling within the period of six assessment years referred to in assessment year falling within the period of six assessment years referred to in this [sub-section] pending on the date of initiation of the search under section section] pending on the date of initiation of the search under section section] pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall 132 or making of requisition under section 132A, as the case may be, shall 132 or making of requisition under section 132A, as the case may be, shall abate:

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Provided also that the Central Government may by rules made by it and Provided also that the Central Government may by rules made by it and Provided also that the Central Government may by rules made by it and published in the Official Gazette (except in cases where any assessment or published in the Official Gazette (except in cases where any assessment or published in the Official Gazette (except in cases where any assessment or reassessment has abated under the second proviso), specify the class or classes reassessment has abated under the second proviso), specify the class or classes reassessment has abated under the second proviso), specify the class or classes of cases in which the A of cases in which the Assessing Officer shall not be required to issue notice for ssessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately assessing or reassessing the total income for six assessment years immediately assessing or reassessing the total income for six assessment years immediately preceding the assessment year relevant to the previous year in which search is preceding the assessment year relevant to the previous year in which search is preceding the assessment year relevant to the previous year in which search is conducted or requisition is made. conducted or requisition is made.

8.3 The second proviso says that any assessment or re he second proviso says that any assessment or re-assessment proceedings assessment proceedings falling within the said period of six assessment years pending on the date of falling within the said period of six assessment years pending on the date of falling within the said period of six assessment years pending on the date of initiation of search under section 132 or making of requisition under section initiation of search under section 132 or making of requisition under section initiation of search under section 132 or making of requisition under section 132-A shall abate. The third A shall abate. The third proviso mentions that the Central Government may proviso mentions that the Central Government may frame rules to specify such class or classes of cases in which the assessing frame rules to specify such class or classes of cases in which the assessing frame rules to specify such class or classes of cases in which the assessing officer shall not be required to issue notice for assessing or reassessing the total officer shall not be required to issue notice for assessing or reassessing the total officer shall not be required to issue notice for assessing or reassessing the total income for the said six assessment years. income for the said six assessment years.

8.4 Reverting back to the second proviso what is to be noticed is that as per this 4 Reverting back to the second proviso what is to be noticed is that as per this 4 Reverting back to the second proviso what is to be noticed is that as per this proviso, any assessment or re proviso, any assessment or re-assessment in respect of any assessment year assessment in respect of any assessment year falling within the said period of six assessment years is pending on the date of falling within the said period of six assessment years is pending on the date of falling within the said period of six assessment years is pending on the date of initiation of search or making of requisition, those assessment or re h or making of requisition, those assessment or re h or making of requisition, those assessment or re-assessment proceedings shall abate. In other words, pending assessment or reassessment proceedings shall abate. In other words, pending assessment or reassessment proceedings shall abate. In other words, pending assessment or reassessment proceedings on the date of initiation of search or making of requisition shall proceedings on the date of initiation of search or making of requisition shall proceedings on the date of initiation of search or making of requisition shall abate.

8.5 That brings us to the crucia 8.5 That brings us to the crucial expression, which is 'abate'. The ordinary l expression, which is 'abate'. The ordinary dictionary meaning of the word 'abate', as per Concise Oxford English dictionary meaning of the word 'abate', as per Concise Oxford English dictionary meaning of the word 'abate', as per Concise Oxford English Dictionary, Indian Edition, is to reduce or remove (a nuisance). Derivative of Dictionary, Indian Edition, is to reduce or remove (a nuisance). Derivative of Dictionary, Indian Edition, is to reduce or remove (a nuisance). Derivative of abate is abatement. In Black's Law Dictionary, Eighth Edition, abate is abatement. In Black's Law Dictionary, Eighth Edition, 'abatement' has 'abatement' has been defined to mean an act of eliminating or nullifying; the suspension or been defined to mean an act of eliminating or nullifying; the suspension or been defined to mean an act of eliminating or nullifying; the suspension or defeat of a pending action for a reason unrelated to the merits of the claim. In defeat of a pending action for a reason unrelated to the merits of the claim. In defeat of a pending action for a reason unrelated to the merits of the claim. In Supreme Court on Words and Phrases (1950 Supreme Court on Words and Phrases (1950-2008), "abating" has been defined 2008), "abating" has been defined to mean "an extinguishment of the very right of action itself"; to "abate", as "an extinguishment of the very right of action itself"; to "abate", as "an extinguishment of the very right of action itself"; to "abate", as applied to an action, is to cease, terminate, or come to an end prematurely. applied to an action, is to cease, terminate, or come to an end prematurely. applied to an action, is to cease, terminate, or come to an end prematurely.

13. In the present case, search was conducted on the assessee on 30 13. In the present case, search was conducted on the assessee on 30 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 At that point of time assessment in the case of assessee for the assessment year 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 09 was pending scrutiny since notice under section 143(2) of the Act was 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 issued and assessment was not completed. Therefore, in view of the second 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 proviso to section 153A of the said Act, once assessment got abated, it meant proviso to section 153A of the said Act, once assessment got abated, it meant that it was open for both that it was open for both the parties, i.e. the assessee as well as revenue to 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. make claims for allowance or to make disallowance, as the case may be, etc. 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 That apart, assessee could lodge a new claim for deduction etc. which remained That apart, assessee could lodge a new claim for deduction etc. which remained /Chny/2024 (AY 2016-17) M/s. JSR Infra Developers Pvt. Ltd. M/s. JSR Infra Developers Pvt. Ltd.

:: 14 :: to be claimed in his earlier/regular return of to be claimed in his earlier/regular return of income. This is so because income. This is so because assessment was never made in the case of the assessee in such a situation. It is assessment was never made in the case of the assessee in such a situation. It is assessment was never made in the case of the assessee in such a situation. It is fortified that once the assessment gets abated, the original return which had fortified that once the assessment gets abated, the original return which had fortified that once the assessment gets abated, the original return which had been filed looses its originality and the subsequent return filed unde been filed looses its originality and the subsequent return filed unde been filed looses its originality and the subsequent return filed under section 153A of the said Act (which is in consequence to the search action under section 153A of the said Act (which is in consequence to the search action under section 153A of the said Act (which is in consequence to the search action under section 132) takes the place of the original return. In such a case, the return of income 132) takes the place of the original return. In such a case, the return of income 132) takes the place of the original return. In such a case, the return of income filed under section 153A(1) of the said Act, would be construed to be one filed filed under section 153A(1) of the said Act, would be construed to be one filed filed under section 153A(1) of the said Act, would be construed to be one filed under section 139(1) of the Act and the provisions of the said Act shall apply to er section 139(1) of the Act and the provisions of the said Act shall apply to er section 139(1) of the Act and the provisions of the said Act shall apply to the same accordingly. If that be the position, all legitimate claims would be open the same accordingly. If that be the position, all legitimate claims would be open the same accordingly. If that be the position, all legitimate claims would be open to the assessee to raise in the return of income filed under section 153A(1). to the assessee to raise in the return of income filed under section 153A(1). to the assessee to raise in the return of income filed under section 153A(1).

14. We would further like to emphasis on the judgment passed by this Court in ther like to emphasis on the judgment passed by this Court in ther like to emphasis on the judgment passed by this Court in the case of Continental Warehousing Corpn (Nhava Sheva) Ltd. (supra) which the case of Continental Warehousing Corpn (Nhava Sheva) Ltd. (supra) which the case of Continental Warehousing Corpn (Nhava Sheva) Ltd. (supra) which also explains the second proviso to Section 153A(1). The explanation is that also explains the second proviso to Section 153A(1). The explanation is that also explains the second proviso to Section 153A(1). The explanation is that pending assessment or reassessment on the pending assessment or reassessment on the date of initiation of search if date of initiation of search if abated, then the assessment pending on the date of initiation of search shall abated, then the assessment pending on the date of initiation of search shall abated, then the assessment pending on the date of initiation of search shall cease to exist and no further action with respect to that assessment shall be cease to exist and no further action with respect to that assessment shall be cease to exist and no further action with respect to that assessment shall be taken by the AO. In such a situation the assessment is required to b taken by the AO. In such a situation the assessment is required to b taken by the AO. In such a situation the assessment is required to be undertaken by the AO under section 153A(1) of the said Act. undertaken by the AO under section 153A(1) of the said Act.

15. In view of the above, we are in agreement with the findings given by the 15. In view of the above, we are in agreement with the findings given by the 15. In view of the above, we are in agreement with the findings given by the Tribunal in respect of allowing of the assessee's appeal in paragraph Tribunal in respect of allowing of the assessee's appeal in paragraph Tribunal in respect of allowing of the assessee's appeal in paragraph -14 of the order under challenge dated 28 order under challenge dated 28-92016, which reads thus :

"14. From the above discussion and precedence, the scheme of assessment u/s. "14. From the above discussion and precedence, the scheme of assessment u/s. "14. From the above discussion and precedence, the scheme of assessment u/s. 153A of the Act in case of search, the AO shall issue notice to searched person 153A of the Act in case of search, the AO shall issue notice to searched person 153A of the Act in case of search, the AO shall issue notice to searched person requiring him to furnish within such period as may be specified in the notice, requiring him to furnish within such period as may be specified in the notice, requiring him to furnish within such period as may be specified in the notice, the return of income in respect of each assessment year falling within six return of income in respect of each assessment year falling within six return of income in respect of each assessment year falling within six assessment years referred to in clause (b) of sub assessment years referred to in clause (b) of sub-section (1) of section 153A section (1) of section 153A and clause (b) postulates assessment or reassessment of the total income of six and clause (b) postulates assessment or reassessment of the total income of six and clause (b) postulates assessment or reassessment of the total income of six years immediately prec years immediately preceding the assessment year relevant to the previous year eding the assessment year relevant to the previous year in which such search is conducted. The first proviso mandates that the AO shall in which such search is conducted. The first proviso mandates that the AO shall in which such search is conducted. The first proviso mandates that the AO shall assess or reassess the total income in respect of each assessment year falling assess or reassess the total income in respect of each assessment year falling assess or reassess the total income in respect of each assessment year falling within such six assessment years. The sec within such six assessment years. The second proviso postulates that the ond proviso postulates that the assessment or reassessment, if any, relating to any assessment year falling assessment or reassessment, if any, relating to any assessment year falling assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in sub within the period of six assessment years referred to in sub- -section (1) is pending on the date of initiation of the search u/s. 132 of the Act shal pending on the date of initiation of the search u/s. 132 of the Act shal pending on the date of initiation of the search u/s. 132 of the Act shall abate. In the present case before us, however, though the second proviso to sub the present case before us, however, though the second proviso to sub the present case before us, however, though the second proviso to sub-section (1) of section 153A would not apply in the first three years of this case, yet, as (1) of section 153A would not apply in the first three years of this case, yet, as (1) of section 153A would not apply in the first three years of this case, yet, as far as the second three year period is concerned (which are pending before us), far as the second three year period is concerned (which are pending before us), far as the second three year period is concerned (which are pending before us), the assessments were pending The proceedings in relation thereto abate. Now assessments were pending The proceedings in relation thereto abate. Now assessments were pending The proceedings in relation thereto abate. Now the entire assessment in relation to the second phase of three years can be the entire assessment in relation to the second phase of three years can be the entire assessment in relation to the second phase of three years can be made. The pending assessment in that case may be undertaken u/s. 153A of the made. The pending assessment in that case may be undertaken u/s. 153A of the made. The pending assessment in that case may be undertaken u/s. 153A of the Act. The abatement of pending Act. The abatement of pending assessment is for the purpose of avoiding two assessment is for the purpose of avoiding two assessments for the same year i.e. one being regular assessment and the other assessments for the same year i.e. one being regular assessment and the other assessments for the same year i.e. one being regular assessment and the other being search assessment u/s. 153A of the Act. In other words, these two being search assessment u/s. 153A of the Act. In other words, these two being search assessment u/s. 153A of the Act. In other words, these two assessments merge into one assessment. It means that complet assessments merge into one assessment. It means that completed assessments ed assessments stand on different footing from the pending assessments. Hence, in so far as stand on different footing from the pending assessments. Hence, in so far as stand on different footing from the pending assessments. Hence, in so far as pending assessments are concerned, the jurisdiction to make original pending assessments are concerned, the jurisdiction to make original pending assessments are concerned, the jurisdiction to make original assessment and assessment u/s. 153A of the Act merge into one and in that assessment and assessment u/s. 153A of the Act merge into one and in that assessment and assessment u/s. 153A of the Act merge into one and in that /Chny/2024 (AY 2016-17) M/s. JSR Infra Developers Pvt. Ltd. M/s. JSR Infra Developers Pvt. 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:: 15 :: case only one assessm case only one assessment for the remaining set of years, where assessment is ent for the remaining set of years, where assessment is pending, is to be made separately on the basis of search materials and the pending, is to be made separately on the basis of search materials and the pending, is to be made separately on the basis of search materials and the regular material existing or brought on record before the AO/Revenue. It means regular material existing or brought on record before the AO/Revenue. It means regular material existing or brought on record before the AO/Revenue. It means that the assessee can make any new claim in th that the assessee can make any new claim in the return of income filed u/s. e return of income filed u/s. 153A of the Act or even during the course of assessment proceedings 153A of the Act or even during the course of assessment proceedings 153A of the Act or even during the course of assessment proceedings undertaken u/s. 153A of the Act. In our view, and in view of the second proviso undertaken u/s. 153A of the Act. In our view, and in view of the second proviso undertaken u/s. 153A of the Act. In our view, and in view of the second proviso to section 153A (1) of the Act, once assessment get abated it is opened both to section 153A (1) of the Act, once assessment get abated it is opened both to section 153A (1) of the Act, once assessment get abated it is opened both way i.e. for the Revenue to make any additions apart from seized material even ay i.e. for the Revenue to make any additions apart from seized material even ay i.e. for the Revenue to make any additions apart from seized material even regular items declared in the return can be subject matter if there is doubt regular items declared in the return can be subject matter if there is doubt regular items declared in the return can be subject matter if there is doubt about the genuineness of those items and similarly the assessee also can lodge about the genuineness of those items and similarly the assessee also can lodge about the genuineness of those items and similarly the assessee also can lodge new claim, deduction o new claim, deduction or exemption or relief which remained to be claimed in r exemption or relief which remained to be claimed in regular return of income, because assessment was never made in the case of regular return of income, because assessment was never made in the case of regular return of income, because assessment was never made in the case of the assessee in such situation. Hence, we allow this issue of assessee's appeal." the assessee in such situation. Hence, we allow this issue of assessee's appeal." the assessee in such situation. Hence, we allow this issue of assessee's appeal."

16. From the above we conclude that in view o 16. From the above we conclude that in view of the second proviso to section f the second proviso to section 153A(1) of the said Act, once assessment gets abated, it is open for the 153A(1) of the said Act, once assessment gets abated, it is open for the 153A(1) of the said Act, once assessment gets abated, it is open for the assessee to lodge a new claim in a proceeding under section 153A(1) which was assessee to lodge a new claim in a proceeding under section 153A(1) which was assessee to lodge a new claim in a proceeding under section 153A(1) which was not claimed in his regular return of income, because assessment was never not claimed in his regular return of income, because assessment was never not claimed in his regular return of income, because assessment was never made/finalised in the case of the assessee in such a situation.” made/finalised in the case of the assessee in such a situation.”

“33. In this view of the matter and considering the facts and 33. In this view of the matter and considering the facts and 33. In this view of the matter and considering the facts and circumstances of the case, we are of the considered view that the circumstances of the case, we are of the considered view that the circumstances of the case, we are of the considered view that the assessee cannot make a fresh claim of deduction assessee cannot make a fresh claim of deduction under Chapter VI under Chapter VI-A of the Income Tax Act, 1961, for the first time, in the return of income the Income Tax Act, 1961, for the first time, in the return of income the Income Tax Act, 1961, for the first time, in the return of income filed in response to notice issued under Section 153A of the Act, filed in response to notice issued under Section 153A of the Act, filed in response to notice issued under Section 153A of the Act, pursuant to search conducted under Section 132 of the Act, in pursuant to search conducted under Section 132 of the Act, in pursuant to search conducted under Section 132 of the Act, in unabated/completed assessment as on unabated/completed assessment as on the date of search. In case of the date of search. In case of abated assessments, like the AO who can make assessment based on abated assessments, like the AO who can make assessment based on abated assessments, like the AO who can make assessment based on incriminating materials and any other information made available to incriminating materials and any other information made available to incriminating materials and any other information made available to him, including information furnished in return of income, the assessee him, including information furnished in return of income, the assessee him, including information furnished in return of income, the assessee may claim all deducti may claim all deductions towards any income or expenditure, as if it is a ons towards any income or expenditure, as if it is a first return of income and fresh assessment. In view of the above, the first return of income and fresh assessment. In view of the above, the first return of income and fresh assessment. In view of the above, the questions referred are answered as under: referred are answered as under:

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(i) Whether an assessee can make ) Whether an assessee can make Yes a a claim claim for for deduction deduction under under Chapter VIA of Income Tax Chapter VIA of Income Tax Act, 1961, for the first time, in the 1961, for the first time, in the return of income filed in response return of income filed in response to the notice issued u/ s to the notice issued u/ s 153A of the Act, pursuant to a search the Act, pursuant to a search conducted under section 132 of conducted under section 132 of the Act ? (ii) If yes, under which circumstances ) If yes, under which circumstances I. In case of unabated/ completed assessment/s, d assessment/s, ? no fresh claim can be made under chapter VI no fresh claim can be made under chapter VI-A of the Income Tax Act, 1961, for the first time, in of the Income Tax Act, 1961, for the first time, in the return of income filed in response to the the return of income filed in response to the notice issued u/s 153A of the Act, pursuant to a of the Act, pursuant to a search conducted under section 132 of the Act. search conducted under section 132 of the Act. II. in case of abated assessment/s, fresh II. in case of abated assessment/s, fresh claim can be made under chapter VI claim can be made under chapter VI-A of the Income Tax Act, 1961, for the first time, the Income Tax Act, 1961, for the first time, in the return of income filed in response to in the return of income filed in response to the notice issued u/s 153A 153A of the Act, pursuant to a search conducted under pursuant to a search conducted under section 132 of the Act.

(supra),JSW Steel Ltd (supra) JSW Steel Ltd (supra)& Sew Infrastructure Ltd (supra) Sew Infrastructure Ltd (supra), the same analogy would be applicable with equal force in the the same analogy would be applicable with equal force in the the same analogy would be applicable with equal force in the proceeding’su/s 153C of the Act for abated assessments as well. We of the Act for abated assessments as well. We of the Act for abated assessments as well. We accordingly hold that the assessee is entitled to raise additional claim/s in ccordingly hold that the assessee is entitled to raise additional claim/s in ccordingly hold that the assessee is entitled to raise additional claim/s in the abated assessment for AY the abated assessment for AY 2016-17 in the proceedings u/s 153C of the u/s 153C of the Act.

“Where in computing the total income of an assessee of any previous year “Where in computing the total income of an assessee of any previous year “Where in computing the total income of an assessee of any previous year relevant to the assessment year commencing on or after relevant to the assessment year commencing on or after—

(i) the 1st day of April, 2006 but before the 1st day of April, 2018, any the 1st day of April, 2006 but before the 1st day of April, 2018, any the 1st day of April, 2006 but before the 1st day of April, 2018, any deduction is admissible under s deduction is admissible under section 80-IA or section 80-IAB or section 80 IAB or section 80-IB or section 80-IC or section 80 IC or section 80-ID or section 80-IE;

(ii) the 1st day of April, 2018, any deduction is admissible under any provision of the 1st day of April, 2018, any deduction is admissible under any provision of the 1st day of April, 2018, any deduction is admissible under any provision of this Chapter under the heading "C. this Chapter under the heading "C.—Deductions in respect of certain inco Deductions in respect of certain incomes", no such deduction shall be allowed to him unless he furnishes a return of his no such deduction shall be allowed to him unless he furnishes a return of his no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before the due date specified under sub income for such assessment year on or before the due date specified under sub income for such assessment year on or before the due date specified under sub- section (1) of section 139.” section (1) of section 139.”

153A of the Act would be construed as a 153A of the Act would be construed as a return filed under Section 139(1) return filed under Section 139(1) of the Act, and necessary consequences would follow. Accordingly, if the and necessary consequences would follow. Accordingly, if the and necessary consequences would follow. Accordingly, if the return u/s 153C is filed within the prescribed time, it shall be treated as a 53C is filed within the prescribed time, it shall be treated as a 53C is filed within the prescribed time, it shall be treated as a return of income u/s 139(1) of the Act return of income u/s 139(1) of the Act (in the present case, filed within (in the present case, filed within the time allowed in notice u/s 153C) the time allowed in notice u/s 153C) and consequently, if the deduction and consequently, if the deduction under Chapter VI-A (80 (80-IA(4), in the present case) is claimed in the is claimed in the return of income (deduction claimed in (deduction claimed in RoI, in present case) I, in present case), then it would fulfill the criteria laid down in Section 80 would fulfill the criteria laid down in Section 80-AC of the Act. We find this AC of the Act. We find this proposition to be supported by the decision of this Tribunal at Guwahati in proposition to be supported by the decision of this Tribunal at Guwahati in proposition to be supported by the decision of this Tribunal at Guwahati in the case of ABCI Infrastructure (P) Ltd Vs ACIT (154 taxmann.com ABCI Infrastructure (P) Ltd Vs ACIT (154 taxmann.com ABCI Infrastructure (P) Ltd Vs ACIT (154 taxmann.com 397), wherein it was held as under: , wherein it was held as under:-

“112. On appeal, ld. CIT(A) vide his impugned appellate order u/s 250 of the Act “112. On appeal, ld. CIT(A) vide his impugned appellate order u/s 250 of the Act “112. On appeal, ld. CIT(A) vide his impugned appellate order u/s 250 of the Act has held that the Returns of Income filed in compliance with Notices issued u/s has held that the Returns of Income filed in compliance with Notices issued u/s has held that the Returns of Income filed in compliance with Notices issued u/s 153A of the Act substitutes the original Income 153A of the Act substitutes the original Income-tax Returns [filed u/s 139(1) of tax Returns [filed u/s 139(1) of the Act] and further since these Returns of Income (u/s 153A of the Act) are the Act] and further since these Returns of Income (u/s 153A of the Act) are the Act] and further since these Returns of Income (u/s 153A of the Act) are treated as Income treated as Income-tax Returns filed u/s 139(1) of the Act, these Returns of tax Returns filed u/s 139(1) of the Act, these Returns of Income are to be take Income are to be taken/treated as having been furnished within the time limit as n/treated as having been furnished within the time limit as per section 139(1) of the Act and hence the corresponding Form 10CCBs filed by per section 139(1) of the Act and hence the corresponding Form 10CCBs filed by per section 139(1) of the Act and hence the corresponding Form 10CCBs filed by the assessee [for the aforesaid Assessment Years (i.e. AY 2017 the assessee [for the aforesaid Assessment Years (i.e. AY 2017-18, AY 2018 18, AY 2018-19 & AY 2019-20)] are also to be taken as 20)] are also to be taken as furnished within the time limit as per furnished within the time limit as per section 139(1) of the Act. Further, since these Form section 139(1) of the Act. Further, since these Form-10CCBs, as aforesaid, are 10CCBs, as aforesaid, are to be taken/treated as having been furnished within the time limit as per section to be taken/treated as having been furnished within the time limit as per section to be taken/treated as having been furnished within the time limit as per section 139(1) of the Act, the assessee's claim for Deduction un 139(1) of the Act, the assessee's claim for Deduction under section 80IA(4)(i) of der section 80IA(4)(i) of the Act cannot be rejected on the ground that the corresponding Forms (i.e. the Act cannot be rejected on the ground that the corresponding Forms (i.e. the Act cannot be rejected on the ground that the corresponding Forms (i.e. Form 10CCBs) were filed belatedly. Form 10CCBs) were filed belatedly.

Return of Income filed in response to Notice u/s 153A substitutes the original Return of Income filed in response to Notice u/s 153A substitutes the original Return of Income filed in response to Notice u/s 153A substitutes the original Return of Income filed u/s 139 of the Act. Thus, where the Return u/s 153A of Return of Income filed u/s 139 of the Act. Thus, where the Return u/s 153A of Return of Income filed u/s 139 of the Act. Thus, where the Return u/s 153A of the Act is filed within the time permitted u/s 153A of the Act, the s the Act is filed within the time permitted u/s 153A of the Act, the s the Act is filed within the time permitted u/s 153A of the Act, the same is to be taken as filed within the time limit as per section 139(1) of the Act. Thus, where taken as filed within the time limit as per section 139(1) of the Act. Thus, where taken as filed within the time limit as per section 139(1) of the Act. Thus, where the Audit Report in Form 10CCB is furnished on or before the time allowed for the Audit Report in Form 10CCB is furnished on or before the time allowed for the Audit Report in Form 10CCB is furnished on or before the time allowed for filing Return of Income in the Notice issued u/s 153A of the Act, the said Form filing Return of Income in the Notice issued u/s 153A of the Act, the said Form filing Return of Income in the Notice issued u/s 153A of the Act, the said Form 10CCB is to be taken as filed on or before the time permitted u/s 139(1) of the CCB is to be taken as filed on or before the time permitted u/s 139(1) of the CCB is to be taken as filed on or before the time permitted u/s 139(1) of the Act and thus within the time allowed u/s 80IA(7) r.w.s 80AC of the Act. For Act and thus within the time allowed u/s 80IA(7) r.w.s 80AC of the Act. For Act and thus within the time allowed u/s 80IA(7) r.w.s 80AC of the Act. For holding so, we draw support from judgment rendered by the holding so, we draw support from judgment rendered by the Hon'ble Calcutta Hon'ble Calcutta High Court in Shrikant Moht in Shrikant Mohta (supra) wherein the Hon'ble High Court held as a (supra) wherein the Hon'ble High Court held as under:

"The second question is answered thus: "The second question is answered thus:

When search operations are conducted under section 132 of the Act, the When search operations are conducted under section 132 of the Act, the When search operations are conducted under section 132 of the Act, the obligation of the assessee to file any return remains suspended till such time obligation of the assessee to file any return remains suspended till such time obligation of the assessee to file any return remains suspended till such time that a notice is issued for such purpose under section 153A(1)(a) of the Act. If ce is issued for such purpose under section 153A(1)(a) of the Act. If ce is issued for such purpose under section 153A(1)(a) of the Act. If the return is filed by the assessee within the reasonable time permitted by such the return is filed by the assessee within the reasonable time permitted by such the return is filed by the assessee within the reasonable time permitted by such notice under section 153A(1)(a) of the Act, such return would then be deemed notice under section 153A(1)(a) of the Act, such return would then be deemed notice under section 153A(1)(a) of the Act, such return would then be deemed to have been filed within th to have been filed within the time permitted under section 139 (1) of the Act for e time permitted under section 139 (1) of the Act for the benefit under section 139(3) of the Act to be availed of by the assessee." the benefit under section 139(3) of the Act to be availed of by the assessee." the benefit under section 139(3) of the Act to be availed of by the assessee."

/Chny/2024 (AY 2016-17) M/s. JSR Infra Developers Pvt. Ltd. M/s. JSR Infra Developers Pvt. Ltd. :: 20 ::

“The present discussion hereinabove is with reference to the questions referred “The present discussion hereinabove is with reference to the questions referred “The present discussion hereinabove is with reference to the questions referred to on the issue, i.e. whether a fresh claim of deduction under Chapter VI to on the issue, i.e. whether a fresh claim of deduction under Chapter VI to on the issue, i.e. whether a fresh claim of deduction under Chapter VI-A of the Income Tax Act, 196 1 could be maintained for the first the Income Tax Act, 196 1 could be maintained for the first time in the return time in the return filed pursuant to a notice under Section 153A of the Act or not. The learned filed pursuant to a notice under Section 153A of the Act or not. The learned filed pursuant to a notice under Section 153A of the Act or not. The learned counsel for the assessee and the Senior Standing Counsel appearing for the counsel for the assessee and the Senior Standing Counsel appearing for the counsel for the assessee and the Senior Standing Counsel appearing for the Revenue did not argue on the merits as to whether the assessee is eligible for Revenue did not argue on the merits as to whether the assessee is eligible for Revenue did not argue on the merits as to whether the assessee is eligible for such a claim or not. Therefore, the present appeals filed by the Revenue are claim or not. Therefore, the present appeals filed by the Revenue are claim or not. Therefore, the present appeals filed by the Revenue are posted for hearing on the issue of deduction claimed under Section 80IA(4) of posted for hearing on the issue of deduction claimed under Section 80IA(4) of posted for hearing on the issue of deduction claimed under Section 80IA(4) of the Act on merits.”

Order pronounced on the 28th day of February, 2025, in Chennai. Order pronounced on the , in Chennai.