BALASORE ALLOYS LTD,ORRISSA vs. ASST CIT CEN CIR 3(2), MUMBAI

Order u/s.254(1)of the Income-tax Act,1961(Act). लेखा सदस्य,राजेन्द्र के अन सार -Per Rajendra,AM: Challenging the orders dtd.29.12.2014,3012.2014 and 16.12.2014 of the CIT (A)-51,Mumbai the assessee has filed appeals for the above mentioned three Assessment Years(AY.s). Assessee,a listed public compay,is involved in the business of manufacturing of ferro alloys. Details of dates of filing of returns,returned incomes,dates of assessments and assessed incomes can be tabulated as under: AY. ROI filed on Returned inocme Asstt.date Assessed income[u/s.143(3)r.w.s.153A] 07-08 31/10/2007 NIL 31.03.2013 NIL 08-09 29.09.2008 NIL 31.03.2013 27.14 crores 09-10 19.02.2011 1.02 crores 31.03.2013 25.32 crores As the issues in all the appeals are common,so,we are adjudicating them together .

ITA/1167/Mum/2015/AY.2007-08.Brief Facts: 2.A search and seizure action,u/s.132 of the Act was initiated in the case of the assessee on 30.11.2010 in Ispat Group of cases,including the assessee.The AO issued notices to the assessee,as per the provisions of section 153A of the Act directing it to file returns of income for the above mentioned AY.The AO completed the assessment as mentioned in the above table. 3.Sole ground of appeal,raised by the assessee,is about not allowing its claim for the sum paid towards electricity charges to NESCO.During the assessment proceedings,the AO found that the appellant had raised an additional claim of an amount of Rs.3885.98 lakhs on account of electricity charges paid to NESCO.He observed that no such claim had been made in the return which had been filed u/s.139(1) of the Act,that the claim was made for the first time, in the course of proceedings initiated by issue of notice u/s.153A,that

1167 to 1169 of Balasore Alloys Ltd. proceedings u/s.153 -A were for the benefit of revenue,that the principles of law laid down by the Apex court in the case of Sun Engineering Works in the context of section 147 would equally apply to the provisions u/s.153A.Accordingly,he declined to allow the claim of deduction of Rs. 3885.98 lakhs. 3.1.Aggrieved by the order of the AO,the assessee filed an appeal before the First Appellate Authority(FAA)and made elaborate submissions.After considering the available material,he held that claim of payment of Rs.3885.98 lakhs to NESCO had come up for adjudication in the AY.2005-06,that while disposing off the appeal for that AY.it has been held that the claim for deduction was not at all tenable either on the basis of accrual/crystallization of the claim or based on actual payment.Accordingly,he disallowed the claim made by the assessee. 3.2.During the course of hearing before us,the Authorised Representative(AR)fairly agreed that the issue,raised by the assessee,stands decided against it,that the Tribunal,while deciding the appeals for the AY.s.2005-06 and 2006-07(ITA.s/1166 & 621 and 667/Mum/2015/ dtd. 07.04.2017)had held that in absence of incriminating material,found during the search and seizure proceeding,no assessment could be made,if the assessment for that year was already completed by the AO.The DR stated that the AO had passed assessment order,for the year under appeal,before initiation of the action u/s.132 of the Act. Considering the above,we dismiss the effective ground of appeal raised by the assessee. ITA/1168/Mum/2015/-AY.2008-09: 4.Following our order for the earlier year,we dismiss the appeal filed by the assessee,as the facts for both the AY.s.are similar. ITA/1169/Mum/2015/-AY.2009-10: 5.Facts for the year under consideration are slightly different.The AR stated that on the date of search the assessment,for the year under appeal,was not completed,that the assessee could make a fresh claim for the deduction in light of the judgment of the Hon’ble Bombay High delivered in the case of Continental Warehousing Corporation (Nhava Sheva)Ltd.,(374 ITR 645),that the departmental authorities did not have the benefit of the above judgment,that matter should be restored back to the AO to consider the claim made for the year under appeal.The Departmental Representative (DR)left the issue to the discretion of the Bench. 5.1.We have heard the rival submissions and perused the material before us.We find that the assessment for the year was pending on the date of the initiation of the search u/s.132 of the Act.In the matter of Continental Warehousing Corporation (Nhava Sheva)Ltd.(supra)the Hon’ble High Court has held as under: 2