Backbone Enterprise Ltd.,, RAJKOT-GUJARAT v. The Dy. Commr. Income Tax, Cen. Circle-II,, RAJKOT-GUJARAT

ITA 124/RJT/2015 | 2005-2006
Pronouncement Date: 27-11-2019 | Result: Partly Allowed

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Appeal Details

RSA Number 12424914 RSA 2015
Assessee PAN AABCB9255E
Bench Rajkot
Appeal Number ITA 124/RJT/2015
Duration Of Justice 4 year(s) 7 month(s) 20 day(s)
Appellant Backbone Enterprise Ltd.,, RAJKOT-GUJARAT
Respondent The Dy. Commr. Income Tax, Cen. Circle-II,, RAJKOT-GUJARAT
Appeal Type Income Tax Appeal
Pronouncement Date 27-11-2019
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted DB
Tribunal Order Date 27-11-2019
Assessment Year 2005-2006
Appeal Filed On 07-04-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT (CONDUCTED THROUGH E - COURT AT AHMEDABAD) BEFORE SHRI WASEEM AHMED ACCOUNTANT MEMBER AND MS . MADHUMITA ROY JUDICIAL MEMBER ASSESSEE BY : SHRI D.M. RINDANI A.R REVENUE BY : SHRI RANJEET SINGH CIT .D R / DATE OF HEARING : 06 / 09 / 201 9 / DATE OF PRONOUNCEMENT: 27 / 11 /201 9 / O R D E R PER BENCH : THESE FOUR APPEALS HAVE BEEN FILED AT THE INSTANCE OF THE ASSESSEE AND REVENUE AGAINST THE APPELLATE ORDERS OF THE LEARNED COMMISSI ONER OF INCOME - TAX (APPEALS) - 11 RAJKOT [ LD. CIT(A) IN SHORT] DATED 16/01/2013 AND 16/01/2015 RELEVANT TO ASSESSMENT YEAR S 2005 - 0 6 AND 2006 - 07 . SL. NO(S) ITA NO(S) ASSET. YEAR(S) APPEAL(S) BY APPELLANT VS. RESPONDENT APPELLANT RESPONDENT 1. 124/RJT/2015 2005 - 06 M/S. BACKBONE ENTERPRISES LTD. M - 43 GUJARAT HOUSING BOARD KALAWAD ROAD RAJKOT PAN NO. AABCB9255E D.C.I.T CENTRAL CIRCLE - 2 RAJKOT. 2. 145/RJT/2015 2005 - 06 A.C.I.T CIRCLE - 2 RAJKOT. M/S. BACKBONE ENTERPRISES LTD 3. 125/RJT/2015 2006 - 07 M/S. BACKBONE ENTERPRISES LTD. D.C.I.T CIRCLE - 2 RAJKOT. 4. 146/AHD/2015 2006 - 07 A.C.I.T CENTRAL CIRCLE - 2 RAJKOT . M/S. BACKBONE ENTERPRISES LTD. ITA NOS.124/RJT/2015 AND 3 OTHERS ASSTT. YEARS 2005 - 06 AND 2006 - 07 2 SINCE COMMON ISSUES ARE ARISING IN ALL THE APPEALS AND FACTS BEING IDENTICAL WE DISPOSE OF ALL THESE APPEAL BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY . 2. IN ITA NO. 124/RJT/2015 FOR A.Y. 2005 - 06 THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS FOLLOWS: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 11 AHMEDABAD ERRED IN UPHOLDING THE VALIDITY OF ORDER PASSED U/S.153A R.W.S 143(3) OF THE ACT PARTICULARLY IN RESPECT OF DEDUCTION CLAIMED ORIGINALLY AND ALL OWED IN ORIGINAL ORDER U/S.143(3) OF THE ACT AND NOT RELATED TO ANY INCRIMINATING MATERIAL FOUND DURING ACTION U/S.132 OF THE ACT. 2. THE LEARNED COMMISIONER OF INCOME TAX(APPEALS) - 11 AHMEDABAD ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN D ISALLOWING THE CLAIM OF DEDUCTION OF RS.1 82 60 739/ - U/S.80IA(4) IN REPSECT OF FOLLOWING INFRASTRUCTURE PROJECTS UNDERTAKEN BY THE APPELLA N T. SR.NO. OF PROJECT REFERRED BY CIT (APPEALS) NAME OF PROJECT AMT. OF DEDUCTION CLAIMED U/S.80IA (IN RS.) 1 ADB/RR R/P - 9/AMR/L - 1 AMRELI DIST. 854 168 2 ADB/RRR/P - 4/RJT/L - 2B GONDAL 218 489 3 ADB/RRR/ P - 4/RJT/L - 3A RAJKOT 920 035 4 ADB/RRR/P - 4/RJT/L - 4A MORBI 648 030 5 ADB/RRR/P - 4/RJT/L - 4B WAKANKER 709 256 6 ADB/RRR/P - 5/SNR/L - 2B S NAGAR 925 830 7 ADB/RRR/P - 5/SNR/L - 3A S NAGAR 904 708 8 ADB/RRR/P - 7/BVN/L - 1B VALBHIPUR 512 921 9 ADB/RRR/P - 7/BVN/L - 1C GADHADA 577 748 10 ADB/RRR/P - 7/BVN/L - 2B SHIHOR 798 828 11 AJI - III GWSSB/JAMNAGR 50 040 12 CHARKHADI - VEKARI - GUNDALA ROAD KM 0/0 TO 13 355 565 13 DESALPUR NALIYA ROAD GEERP/RMC/28 2 059 609 15 GADHADA - ADTALA - LAKHANKA - DADVA ROAD KM 0/0 TO 30/0 81 241 20 JASDAN - ATKOT - GONDAL ROAD KM 213/0 TO 225/0 51 171 21 KUTCH IRRIGATION CONT. DIVI G8 GAJANSAR 294 089 23 KUTCH IRRIGATION CONT. DIVI KH - 49 KHODASARA - HALAR 46 171 ITA NOS.124/RJT/2015 AND 3 OTHERS ASSTT. YEARS 2005 - 06 AND 2006 - 07 3 24 KUTCH IRRIGATION CINT. DIVI KS - 2 SADHARA - KUNARIYA 169 542 25 KUTCH IRRIGATION CONT. DIVI US - 38 USTIYA - CHAKUDAG 103 047 26 KUTCH IRRIGATION CONT. DIVI UD - 29 UMARAPAR - DEVSAR 74 851 27 KUTCH IRRIGATION CONT. DIVI UD - 29 UMARAPAR - DEVSAR 409 112 28 KUTCH IRRIGATION CONT. RATANPAR - JANAN RJ - 47 40 348 29 KUTCH IRRIGATION CONT./SALINITY CONTROL DIV/GERKD - 58 51 923 30 LAKHDHIRPUR - KALIKANAGAR ROAD 42 860 31 LATIPUR - TANKARA GEERP/RMC/20 3 228 506 32 MORBI HALWAD ROAD KM 53/06 TO 72/0 499 111 34 RAJKOT - MORBI ROAD KM 8/340 TO 11/640 NH - 8A 48 782 35 RMC GONDAL RD IN SHIVNAGAR ROAD 8 381 36 RMC GONDAL OIL - NEW RAJKOT 109 513 37 SR TO DAHISAGR VAVANIYA (MORBI) 29 130 38 TAMILNADU FYMC P.NO.MC - 14 1 529 395 39 TAMILNADU RAOD WORK P.NO.MC - 13 1 255 745 40 VALLABHIPUR BRANCH CANAL O TO 16.419 KM 652 612 TOTAL 1 82 60 739/ - 3. THE LEARNED COMMISIONER 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 GROUND NO.2 ABOVE. THE APPELLANT CRAVES LEAVE TO ADD AMEND ALTER AND WITHDRAW ANY GROUND OF APPEAL ANYTIME UP TO THE HEARING OF THIS APPEAL. 3. IN ITA NO. 145 / RJT/ 201 5 FOR A.Y. 2005 - 0 6 THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS F OLLOWS: 1. ON THE FACT AND CIRCUMSTANCES OF THE CASE THE LD.CIT(A) HAS ERRED IN ALLOWING DEDUCTION U/S.80IA(4) OF THE ACT IN RESPECT OF PROJECT NO.14 16 TO 19 22 AND 33 BY TREATING THE ASSESSEE AS A DEVELOPER OF INFRASTRUCTURE PROJECTS INSTEAD OF WORK CONTRACTOR AS TREATED BY THE A.O. ITA NOS.124/RJT/2015 AND 3 OTHERS ASSTT. YEARS 2005 - 06 AND 2006 - 07 4 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. TO THE ABOVE EXTENT. 3. IT IS THEREFORE PRAYED THAT THE ORDER OF THE CIT(A) BE SET ASIDE AND THAT OF THE A.O BE RESTORED TO THE ABOVE EXTENT. 4. IN ITA NO. 125 / RJT/ 201 5 FOR A.Y. 200 6 - 0 7 THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS FOLLOWS: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 11 AHMEDABAD ERRED IN UPHOLDING THE VALIDITY OF ORDE R PASSED U/S.153A R.W.S 143(3) OF THE ACT PARTICULARLY IN RESPECT OF DEDUCTION CLAIMED ORIGINALLY AND ALLOWED IN ORIGINAL ORDER U/S.143(3) OF THE ACT AND NOT RELATED TO ANY INCRIMINATING MATERIAL FOUND DURING ACTION U/S.132 OF THE ACT. 2. THE LEARNED COMMISIONER OF INCOME TAX(APPEALS) - 11 AHMEDABAD ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN DISALLOWING THE CLAIM OF DED UCTION OF RS.3 45 20 284 / - U/S.80IA(4) IN REPSECT OF FOLLOWING INFRASTRUCTURE PROJECTS UNDERTAKEN BY THE APPELLANT. SR.N O. OF PROJECT REFERRED BY CIT (APPEALS) NAME OF PROJECT AMT. OF DEDUCTION CLAIMED U/S.80IA (IN RS.) 1 ADB/RRR/P - 4/RJT/L - 2B GONDAL 103 315 2 ADB/RRR/P - 4/RJT/L - 3A RAJKOT 349 870 3 ADB/RRR/P - 4/RJT/L - 4A MORBI 183 069 4 ADB/RRR/P - 4/RJT/L - 4B WAKANKER 33 256 5 ADB/RRR/P - 5/SNR/L - 2B S NAGAR 463 901 6 ADB/RRR/P - 5/SNR/L - 3A S NAGAR 412 270 7 ADB/RRR/P - 7/BVN/L - 1B VALBHIPUR 1 062 392 8 ADB/RRR/P - 7/BVN/L - 1C GADHADA 671 180 9 ADB/RRR/P - 7/BVN/L - 2B SHIHOR 822 950 10 AJI - III GWSSB/JAMNAGR 40 653 12 CHARKHADI - VEKARI - GUNDALA ROAD KM 0/0 TO 13 222 845 13 DESALPUR NALIYA ROAD GEERP/RMC/28 4 748 487 14 DHASA - AMARGADH ROAD RMC - 33 4 908 572 15 GADHADA - ADTALA - LAKHANKA - DADYA ROAD 29 975 17 JETPUR - MORBI ANIYARI - GHATILA ROAD 437 270 18 KUTCH IRRIGATION CONT. DIVI G8 GAJANSAR 313 017 20 KUTCH IRRIGATION CONT. DIVI KH - 49 KHODASARA - HALAR 47 884 22 KUTCH IRRIGATION CONT. DIVI US - 38 50 801 ITA NOS.124/RJT/2015 AND 3 OTHERS ASSTT. YEARS 2005 - 06 AND 2006 - 07 5 USTIYA - CHAKUDAG 23 KUTCH IRRIGATION CONT. DIVI UD - 29 UMARAPAR - DEVSAR 37 584 24 KUTCH IRRIGATION CONT. DIVI VMJ 13 VAMKA - MEVASA 396 018 25 KUTCH IRRIGATION CONT. RATANPAR - JANAN RJ - 47 777 335 26 KUTCH IRRIGATION CONT./SALINITY CONTROL DIV/GERKD - 58 1 069 056 27 LATIPUR - TANKARA GEERP/RMC/20 1 875 534 30 RAJKOT - ALKOT ROAD - 32 5 542 174 31 RAJPAR - NASIPAR ROAD AT TANKAR KM 0/0 TO 8/0 241 594 32 SULGAM JALOYA NADABET ROAD WORK PALANPUR 1 953 335 33 TAMILNADU FYMC ROAD WORK P.NO.MC - 14 3 471 871 34 TAMILNADU ROAD WORK P.NO MC - 13 2 306 518 35 VALLABHIPUR BRANCH CANAK 0 TO 16.419 KM 1 634 557 TOTAL 3 45 20 284/ - 3. THE LEARNED COMMISIONER 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 GROUND NO.2 ABOVE. THE APPELLANT CRAVES LEAVE TO ADD AMEND AL TER AND WITHDRAW ANY GROUND OF APPEAL ANYTIME UP TO THE HEARING OF THIS APPEAL. 5. IN ITA NO. 1 46/ RJT /201 5 FOR A.Y. 200 6 - 0 7 THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS FOLLOWS: 1. ON THE FACT AND CIRCUMSTANCE OF THE CASE THE LD. CIT(A) HAS ERRED IN ALLOWING DEDUCTION U/S 80IA(4) OF THE ACT IN RESPECT OF PROJECT NO. 11 16 19 21 28 AND 29 BY TREATING THE ASSESSEE AS A 'DEVELOPER' OF INFRASTRUCTURE PROJECTS INSTEAD OF 'WORK CONTRACTOR' AS TREATED BY THE A.O. & THE LD. CIT(A) HAS NOT PROPER LY APPRECIATED THE TERMS AND CONDITIONS LAID DOWN IN THE CLAUSES OF AGREEMENTS IN RESPECT OF THE VARIOUS PROJECTS/CONTRACTS WHICH CLEARLY POINT OUT THAT THE CONTRACT IS IN THE NATURE OF 'WORK CONTRACT'. 2. ON FACT &. CIRCUMSTANCES OF THE CASE AND LAW THE LD. CIT(A) HAS ERRED IN ALLOWING THE EMPLOYEES CONTRIBUTION TO PROVIDENT FUND BY THE ASSESSEE BEYOND THE DUE DATES SPECIFIED AS PER PROVIDENT FUND ACT. THE LD. CIT(A) HAS NOT APPRECIATED ITA NOS.124/RJT/2015 AND 3 OTHERS ASSTT. YEARS 2005 - 06 AND 2006 - 07 6 THAT THAT DISALLOWANCE IS MADE U/S 36(L)(VA) R.W.S. 2(24)(X) OF THE ACT & PROVISIONS U/S 43B SHALL NOT BE APPLICABLE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O.TO THE ABOVE EXTENT. 4. IT IS THEREFORE PRAYED THAT THE ORDER O F THE CIT(A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 6. 6. THE PRELIMINARY ISSUE TO BE DECIDED IN ALL THESE APPEALS IS AS TO WHETHER IN RESPECT OF UNABATED ASSESSMENTS (NO PENDING PROCEEDINGS) AS ON THE DATE OF SEARCH THE AO COULD FRAME THE SEARCH ASSESSMENT U/S 153A OF THE ACT BY MAKING CERTAIN ADDITIONS WITHOUT ANY INCRIMINATING MATERIALS FOUND DURING THE COURSE OF SEARCH. 7. THE BRIEF FACTS APPEARING IN TH E S E CASE S ARE THAT THERE WAS A SEARCH AND SEIZURE OPERATION CONDUCTE D U/S 132(1) OF THE ACT AT THE PREMISES OF THE ASSESSEE DATED 24 - 0 6 - 201 0. THE ASSESSEE I S A CONTRACTOR AND MAINLY DEALING IN GOVERNMENT CONTRACTS. THE ASSESSEE HAD ORIGINALLY FILED I T S RETURNS OF INCOME FOR THE ASSESSMENT YEARS 200 5 - 0 6 AND 2006 - 07 ON 27 . 1 0.200 5 & 2 6 . 12 .200 6 RESPECTIVELY WHICH WERE ASSESSED U/S 143(3) OF THE ACT VIDE ORDER DATED 0 8 - 02 - 200 7 AND 26 - 12 - 2008 RESPECTIVELY. THUS AS ON THE DATE OF SEARCH I.E. 2 4 .0 6 .201 0 BOTH THE ASSESSMENT YEARS BECAM E UNABATED. 8. THE LD. AR BEFORE US HAS CH ALLENGED THE ASSESSMENT PROCEEDINGS FRAMED UNDER SECTION 153A OF THE ACT IN GROUND NO. 1 ON THE REASONING THAT THE ADDITIONS MADE BY THE AO IN THE ASSESSMENT YEARS 200 5 - 0 6 & 200 6 - 0 7 REPRESENTS THE ITEMS OF THE REGULAR ASSESSMENTS BEING DEDUCTION UNDER SEC TION 80 - IA(4) OF THE ACT AND NON - DEDUCTION OF TDS WHICH WERE DISC LOSED IN THE ITA NOS.124/RJT/2015 AND 3 OTHERS ASSTT. YEARS 2005 - 06 AND 2006 - 07 7 INCOME TAX RETURNS. AS SUCH THE DEDUCTION UNDER SECTION 80 - IA(4) OF THE ACT WAS SUBJECT TO THE REGULAR ASSESSMENT UNDER SECTION 143(3) OF THE ACT. 9. AS PER THE LD. AR THERE WA S NO INCRIMINATING MATERIAL FOUND IN RESPECT OF THE UNABATED PROCEEDINGS. THEREFORE NO ADDITIONS CAN BE MADE. THE ASSESSMENTS WERE FRAMED U/S 153A/143(3) OF THE ACT AFTER MAKING CERTAIN ADDITION ON ACCOUNT OF DISALLOWANCE OF THE DEDUCTION UNDER SECTION 80I A (4) OF THE ACT AND NON - DEDUCTION OF TDS. BUT THE LD. CIT - A PARTLY REDUCED THE DISALLOWANCE UNDER SECTION 80 - IA OF THE ACT. 9.1 THE LD. AR ACCORDINGLY ARGUED IN RESPECT OF ASSESSMENT YEARS 2005 - 06 AND 2006 - 07 BEING UNABATED ASSESSMENTS THE LD. AO HAS MADE THE ADDITION FOR WHICH ABSOLUTELY NO INCRIMINATING MATERIALS WERE FOUND DURING THE COURSE OF THE SEARCH. HENCE HE PRAYED FOR DELETION OF DISALLOWANCE MADE FOR ASSESSMENT YEARS 2005 - 06 AND 2006 - 07 . HE PLACED RELIANCE ON THE DECISIONS OF THE HON BLE GUJARAT HIGH COURT IN THE CASE OF PC IT VS. SAUMYA CON STRCUTION R EPORTED IN 3 87 ITR 5 29 . 10. THE LD. DR ON THE OTHER HAND ARGUED VEHEMENTLY ON THE VALIDITY OF THE ASSESSMENT COMPLETED U/S 153A/143(3) OF THE ACT BY PLACING RELIANCE ON THE ORDERS OF THE SUBORDINATE AUTHORITIES. 11 . WE HAVE PERUSED THE CASE RECORD ANALYZED THE FACTS AND CIRCUMSTANCES OF THE CASE AND HEARD THE RIVAL CONTENTIONS. WE FIND THAT IT WOULD BE NECESSARY TO ADDRESS THE PRELIMINARY ISSUE WHETHER ASSESSMENT COULD BE FRAMED U/S 153A OF THE ACT IN RESPECT OF CONCLUDED PROCEEDING WITHOUT THE EXISTENCE OF ANY INCRIMINATING MATERIALS FOUND DURING THE COURSE OF THE SEARCH. THE SCHEME OF THE ACT PROVIDES FOR ABATEMENT OF PENDING PROCEEDINGS AS ON DATE ITA NOS.124/RJT/2015 AND 3 OTHERS ASSTT. YEARS 2005 - 06 AND 2006 - 07 8 OF SEARCH. IT IS NOT IN DISPUTE THAT THE ASSESSMENT FOR THE ASSESSMENT YEAR 200 5 - 0 6 AND 2006 - 07 FALLS UNDER THE AMBIT OF UNABATED ASSESSMENT AS ON THE DATE OF SEARCH. THERE IS NO DIFFERENTIATION AS FOUND IN THE INTENT OF THE LEGISLATURE TO DISCRIMINAT E WHETHER THE ASSESSMENTS WERE ORIGINALLY FRAMED U/S 143(1) OR 143(3) OR 147 OF THE ACT. THEREFORE IF ANY INCRIMINATING MATERIAL IS NOT FOUND DURING THE COURSE OF SEARCH RELATED TO THOSE CONCLUDED YEARS THE ACT DOES NOT CONFER ANY POWER T O THE LD. AO TO DISTURB THE FINDING GIVEN THEREON AND INCOME DETERMINED THEREON AS FINALITY HAS ALREADY BEEN REACHED AND NO PROCEEDING WAS PENDING ON THE DATE OF SEARCH. 11 .1 WE FIND THAT THE JUDGMENT OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. CONTINENTAL WA REHOUSING CORPORATION (NHAVA SHIVA) LTD. AND ALL CARGO GLOBAL LOGISTICS LTD. R EPORTED IN 374 ITR 645 HAS DECIDED THE IMPUGNED ISSUE IN FAVOR OF THE ASSESSEE. THE RELEVANT EXTRACT IS REPRODUCED BELOW: ONCE IT IS HELD THAT THE ASSESSMENT HAS ATTAINED FINALI TY THEN THE ASSESSING OFFICER WHILE PASSING THE INDEPENDENT ASSESSMENT ORDER UNDER SECTION 153A READ WITH SECTION 143 (3) COULD NOT HAVE DISTURBED THE ASSESSMENT/REASSESSMENT ORDER WHICH HAS ATTAINED FINALITY UNLESS THE MATERIALS GATHERED IN THE COURSE O F THE PROCEEDINGS UNDER SECTION 153A ESTABLISH THAT THE RELIEFS GRANTED UNDER THE FINALISED ASSESSMENT/REASSESSMENT WERE CONTRARY TO THE FACTS UNEARTHED DURING THE COURSE OF 153A PROCEEDINGS. IF THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY MATERIAL WAS U NEARTHED DURING THE SEARCH OR DURING THE 153A PROCEEDINGS THE ASSESSING OFFICER WHILE PASSING ORDER UNDER SECTION 153A READ WITH SECTION 143(3) CANNOT DISTURB THE ASSESSMENT ORDER 11 .2 WE DRAW SUPPORT AND GUIDANCE FROM THE JUDGMENT OF HON BLE BOMBAY HIG H COURT IN THE CASE OF CIT VS. GURINDER SINGH BAWA R EPORTED IN 79 TAXMANN.COM 398 WHEREIN IT WAS HELD AS UNDER: 7. IN VIEW OF THE ABOVE ON ISSUE OF JURISDICTION ITSELF THE ISSUE STANDS CONCLUDED AGAINST THE REVENUE BY THE DECISION OF THIS COURT IN CONTI NENTAL WAREHOUSING CORPN. (NHAVA SHEVA) LTD. ( SUPRA ). IN THE APPEAL BEFORE US THE REVENUE HAS MADE ITA NOS.124/RJT/2015 AND 3 OTHERS ASSTT. YEARS 2005 - 06 AND 2006 - 07 9 NO GRIEVANCE WITH REGARD TO THE IMPUGNED ORDER OF THE TRIBUNAL HOLDING THAT IN LAW THE PROCEEDINGS UNDER SECTION 153A OF THE ACT ARE WITHOUT JURISDICTION. THIS IN VIEW OF THE FACT THAT NO ASSESSMENT WERE PENDING SO AS TO ABATE NOR ANY INCRIMINATING EVIDENCE WAS FOUND. THE GRIEVANCE OF THE REVENUE IS ONLY WITH REGARD TO FINDING IN THE IMPUGNED ORDER ON THE MERITS OF THE INDIVIDUAL CLAIM REGARDING GIFTS AND D EEMED DIVIDEND. HOWEVER ONCE IT IS NOT DISPUTED BY THE REVENUE THAT THE DECISION OF THIS COURT IN CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. ( SUPRA ) WOULD APPLY TO THE PRESENT FACTS AND ALSO THAT THERE ARE NO ASSESSMENTS PENDING ON THE TIME OF THE INITIATION OF PROCEEDINGS UNDER SECTION 153A OF THE ACT. THE OCCASION TO CONSIDER THE ISSUES RAISED ON MERITS IN THE PROPOSED QUESTIONS BECOMES ACADEMIC. 11 .3 WE ALSO RELY IN THE CASE OF SAUMYA CONSTRUCTION (SUPRA) WHERE THE HON BLE GUJARAT HIGH COUR T HAS HELD AS UNDER: THE ASSESSING OFFICER IS OBLIGED TO ISSUE NOTICE TO SUCH PERSON TO FURNISH RETURNS OF INCOME FOR THE SIX YEARS PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH IS CONDUCTED OR REQUISITION IS MADE ANY A DDITION OR DISALLOWANCE CAN BE MADE ONLY ON THE BASIS OF MATERIAL COLLECTED DURING THE SEARCH OR REQUISITION. IN CASE NO INCRIMINATING MATERIAL IS FOUND THE EARLIER ASSESSMENT WOULD HAVE TO BE REITERATED. 11 .4 ONCE THE PROCEEDING U/S 153A OF THE ACT IS INITIATED WHICH ARE SPECIAL PROCEEDINGS THE LEGISLATURE PROVIDES DIFFERENT TREATMENTS FOR ABATED AND UNABATED ASSESSMENTS. HOWEVER IN RESPECT OF UNABATED ASSESSMENTS THE LEGISLATURE HAS CONFERRED POWERS ON THE L D. AO TO JUST FOLLOW THE ASSESSMENTS ALREADY CONCLUDED UNLESS INCRIMINATING MATERIALS ARE FOUND IN THE COURSE OF SEARCH. 11 .5 THAT FOR THE REASONS STATED ABOVE AND ON BASIS OF VARIOUS JUDICIAL PRONOUNCEMENTS WE HOLD THAT THE VARIOUS DISALLOWANCES MADE FOR THE ASSESSMENT YEARS I.E. 2005 - 05 AND 2006 - 07 WHICH WERE UNABATED/CONCLUDED ASSESSMENTS AS ON DATE OF SEARCH CANNOT BE MADE I N THE SEARCH ASSESSMENTS IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH AND ACCORDINGLY ALL THOSE ADDITIONS ARE DIRECTED TO BE DELETED. SINCE THE LEGAL ISSUES ARE ADDRESSED WE REFRAIN TO GIVE OUR FINDINGS ON MERITS OF ADDITIONS ITA NOS.124/RJT/2015 AND 3 OTHERS ASSTT. YEARS 2005 - 06 AND 2006 - 07 10 UNDER THE PROVISIONS OF THE ACT. ACCORDINGLY THE GROUNDS RAISED BY THE ASSESSEE FOR ASSESSMENT YEARS 2005 - 06 AND 2006 - 07 ARE ALLOWED AND BY THE REVENUE FOR ASSESSMENT YEARS 2005 - 06 AND 2006 - 07 ARE DISMISSED. 12 . IN THE RESULT ALL THE APPEALS OF THE AS SESSEE ARE PARTLY ALLOWED AND THE APPEALS OF THE REVENUE ARE DISMISSED. O RDER PRONOUNCED IN THE COURT ON 27 /11/ 2019 AT AHMEDABAD. - SD - - SD - (MS MADHUMITA ROY ) (WASEEM AHMED ) JUDICIAL MEMBER ACCOUNTANT MEMBER (TRUE COPY) A HMEDABAD; DATED 27 / 11 /2019 MANISH / COPY OF THE ORDER FORWARDED TO : / BY ORDER / ( DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. / DR ITAT 6. / GUARD FILE .