Assistant Commissioner of Income-tax,, v. M/s. Viva Highways Pvt. Ltd.,, Nashik

ITA 206/PUN/2016 | 2005-2006
Pronouncement Date: 24-11-2017 | Result: Dismissed

Appeal Details

RSA Number 20624514 RSA 2016
Assessee PAN AABCV3827E
Bench Pune
Appeal Number ITA 206/PUN/2016
Duration Of Justice 1 year(s) 9 month(s) 14 day(s)
Appellant Assistant Commissioner of Income-tax,,
Respondent M/s. Viva Highways Pvt. Ltd.,, Nashik
Appeal Type Income Tax Appeal
Pronouncement Date 24-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 24-11-2017
Date Of Final Hearing 23-11-2017
Next Hearing Date 23-11-2017
Last Hearing Date 15-11-2017
First Hearing Date 15-11-2017
Assessment Year 2005-2006
Appeal Filed On 10-02-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH PUNE BEFORE SHRI ANIL CHATURVEDI AM AND SHRI VIKAS AWASTHY JM . / I TA NO S . 206 TO 212 /PUN/20 16 / ASSESSMENT YEAR S : 2005 - 06 TO 2011 - 12 THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE - 1 NASHIK. ....... / APPELLANT / V/S. M/S. VIVA HIGHWAYS PVT. LTD. S. NO. 861 ASHOKA HOUSE ASHOKA MARG WADALA NASHIK - 422 011 PAN : AABCV3827E / RESPONDENT REVENUE BY : SMT. NIRUPAMA KOTRU A SSESSEE BY : SHRI PRAMOD SHINGTE / DATE OF HEARING : 23.11.2017 / DATE OF PRONOUNCEMENT : 24 .11.2017 / ORDER PER VIKAS AWASTHY JM THESE BUNCH OF SEVEN APPEALS BY THE DEPARTMENT ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 12 PUNE DATED 01.11.2015 COMMON FOR ASSESSMENT YEARS 2005 - 06 TO 2011 - 12. SINCE THE ISSUES RAISED IN THESE APPEALS ARE ARISING FROM SAME SET OF FACTS AND IDENTICAL 2 ITA NO S . 206 TO 212/ PUN/2016 A.YS. 2005 - 06 TO 2011 - 12 ISSUES ARE INVOLVED IN ALL THE APPEALS THESE APPEALS ARE TAKEN UP TOGETHER FOR ADJUDICATION AND ARE DISPOSED OF VIDE THIS COMMON ORDER. 2. THE BRIEF FACTS O F THE CASE AS EMANATING FROM RECORDS ARE: THE ASSESSEE COMPANY IS ENGAGED IN CONSTRUCTION OPERATION AND MAINTENANCE OF INFRASTRUCTURE FACILITIES AND INVESTMENT ON BUILD OPERATE & TRANSFER (BOT) BASIS. A SEARCH AND SEIZURE ACTION U/S. 132 OF THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS CARRIED OUT IN THE CASE OF ASHOKA GROUP ON 20.04.2010. THE ASSESSEE COMPANY BEING PART OF ASHOKA GROUP WAS INCLUDED IN SEARCH. NOTICE U/S. 153C WAS ISSUED AND SERVED ON THE ASSESSEE. IN RESPONSE TO NOTICE U/S. 153C THE ASSESSEE FILED ITS RETURN OF INCOME FOR RESPECTIVE ASS ESSMENT YEARS DECLARING TOTAL INCOME AFTER CLAIMING DEDUCTION U/S. 80IA(4) OF THE ACT AS UNDER : ASSESSMENT YEAR INCOME DECLARED IN RETURN THE ASSESSING OFFICER COMPLETED THE ASSESSMENT S U/S. 143(3) R.W.S. 153C /153B OF THE ACT BY MAKING FOLLOWING ADDITIONS: - ASSESSMENT YEAR INCOME DECLARED IN RETURN FILLED U/S. 153C OF THE ACT. 2005 - 06 NIL 2006 - 07 NIL 2007 - 08 NIL 2008 - 09 RS.34 17 990/ - 2009 - 10 RS.37 34 200/ - (INCLUDING ADDITIONAL INCOME OF FERED RS. 10 LACS) 2010 - 11 RS.4 70 43 450/ - (INCLUDING ADDITIONAL INCOME OFFERED RS. 150 LACS. ) RETURN OF INCOME FILED U/S. 139 OF THE ACT. 2011 - 12 RS. 5 05 71 030/ - 3 ITA NO S . 206 TO 212/ PUN/2016 A.YS. 2005 - 06 TO 2011 - 12 3. AGGRIEVED BY THE ASSESSMENT ORDERS FOR THE ASSESSMENT YEARS UNDER APPEAL THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE COMMISSIONER OF INCOME TAX (APPEALS). IN FIRST APPEAL THE ASSESSEE APART FROM CHALLENGING ADDITIONS/DISALLOWANCES ON MERIT S ALSO I M PUGNED VALIDITY OF NOTICE U/S. 153C ASSESSMENT YEARS A DDITION MADE ON ACCOUNT OF DISALLOWANCE OF DEPRECIATION ON LICENSE TO COLLECT TOLL. A DDITION MADE ON SUPPRESSION OF T OLL RECEIPTS. 2005 - 06 15 27 36 712 1 33 86 088 2006 - 07 10 15 96 805 1 54 95 734 2007 - 08 6 12 00 877 1 87 59 926 2008 - 09 2 96 78 103 1 82 78 318 2009 - 10 9 0790 761 2 37 89 736 2010 - 11 - 51 14 869 2 69 46 745 2011 - 12 - 2 49 86 500 16 86 628 OF THE ACT. THE COMMISSIONER OF INCOME TAX(APPEALS) UPHELD THE VALIDITY OF PROCEEDINGS U/S. 153C OF THE ACT HOWEVER ADDITIONS/DISALLOWANCES MADE BY ASSESSING OFFICER WERE DELETED ON MERITS. AGAINST THE FINDINGS OF COMMI SSIONER OF INCOME TAX (APPEALS) THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL FOR ALL SEVEN ASSESSMENT YEARS STARTING FROM ASSESSMENT YEAR 2005 - 06 TO 2011 - 12. 4. THE REVENUE HAS ASSAILED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN ASSESSMENT Y EAR 2005 - 06 BY RAISING FOLLOWING GROUNDS OF APPEAL: 1) ON THE FACTS & CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN ALLOWING THE DEPRECIATION @25% ON LICENSE TO COLLECT TOLL. 2) ON THE FACTS & CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS JUSTIFIED IN HOLDING THAT ASSESSEE WAS ELIGIBLE TO CLAIM DEPRECIATION ON LICENSE TO COLLECT TOLL CONSIDERING IT AS AN INTANGIBLE ASSET IN TERMS OF SECTION U/S. 32(1) (II) OF THE ACT. 4 ITA NO S . 206 TO 212/ PUN/2016 A.YS. 2005 - 06 TO 2011 - 12 3) ON THE FACTS & CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE DEPARTMENT HAS NOT ACCEPTED THE DECISION OF ITAT PUNE AND AN APPEAL HAS BEEN FILED U/S. 260A OF THE ACT BEFORE THE HON'BLE BOMBAY HIGH COURT. 4) ON THE FACTS & CIRCUMSTANCES OF THE CASE WHETHER THE LD . CIT(A) WAS JUSTIFIED IN ALLOWING 5% SUPPRESSION OF TOLL RECEIPTS IGNORING THE FACT THAT AT THE TOLL PLAZA OF ANOTHER CONCERN OF THE GROUP CASH OF RS.1.71 LACS WAS FOUND AND SEIZED DOCUMENT PROVED THAT THE ASSESSEE HAS SUPPRESSED TOLL RECEIPTS IN THAT CONCERN OF THIS GROUP HAVING THE SAME NATURE OF BUSINESS WHICH GET SUPPORT FROM THE FACT THAT THE ASSESSEE HAD VOLUNTARILY DISCLOSED ADDITIONAL INCOME OF RS.10 LACS FOR A.Y.2009 - 10 AND RS. 1.50 CR. FOR A.Y.2010 - 11 & INCOME ADMISSION OF CONCEALMENT IN TOLL PLAZA ONLY. 5) THE APPELLANT CRAVES TO ADD AMEND OR DELETE ANY OF THE ABOVE GROUNDS. IDENTICAL GROUNDS HAVE BEEN RAISED BY THE REVENUE IN GROUNDS OF APPEAL FOR ALL THE IMPUGNED ASSESSMENT YEARS ASSAILING THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS). 5. SHRI PRAMOD SHINGTE APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED AT THE OUTSET THAT THE ISSUE S RAISED BY REVENUE IN APPEAL HAVE BEEN DEALT WITH IN DETAIL BY CO - ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES GROUP CONCERN ASHOKA INFRASTRUCTURE LTD. VS. ACIT IN ITA NO. 1452 TO 1457/PUN/2014 FOR ASSESSMENT YEARS 2006 - 07 TO 2011 - 12 DECIDED ON 30.06.2017. THE LD. AR POINTED THAT GROUNDS OF APPEAL NO. 1 TO 3 RAISED IN APPEAL ARE WITH RESPECT TO DISALLOWANCE ON DEPRECIATION CLAIMED BY ASSESSEE @ 25% ON INTANGIBLE ASSET - LICENSE TO COLLECT T OLL. THE ISSUE BEFORE THE TRIBUNAL IN THE CASE OF ASHOKA INFRASTRUCTURE LIMITED WAS IDENTICAL RELATING TO DISALLOWANCE OF DEPRECIATION ON LICENSE/RIGHTS TO COLLECT TOLL. THE CO - ORDINATE BENCH OF THE TRIBUNAL IN T HE CASE OF ASHOKA INFRASTRUCTURE LI MITED (SUPRA.) HELD THAT THE ASSESSEE WAS ELIGIBLE TO CLAIM DEPRECIATION ON SUCH INTANGIBLE ASSETS. THE ASSESSEE IS ENGAGED IN SIMILAR BUSINESS ACTIVITY. THEREFORE THE ISSUE RAISED BY REVENUE IN GROUND NO. 1 TO 3 ASSAILI NG THE ORDER OF COMMISSIONER OF INCOME TAX 5 ITA NO S . 206 TO 212/ PUN/2016 A.YS. 2005 - 06 TO 2011 - 12 (APPEALS) IN ALLOWING DEPRECIATION ON INTANGIBLE ASSETS BEING LICENSE TO COLLECT TOLL ARE LIABLE TO BE DISMISSED. 6. IN RESPECT OF GROUND NO. 4 RAISED IN APPEAL THE LD. AR SUBMITTED THAT ASSESSING OFFICER MA DE AD - HOC ADDITION ON SUPPRESSION OF TOLL RECEIPTS AT THE FLAT RATE OF 5% IN ALL ASSESSMENT YEARS. THE LD. AR SUBMITTED THAT DURING THE COURSE OF SEARCH NO INCRIMINATING MATERIAL WAS FOUND. THEREFORE THE QUESTION OF MAKING ANY ADDITION FOR SUCH SUPPRESSI ON DOES NOT ARISE. THE LD. AR FURTHER CONTENDED THAT THE ASSESSING OFFICER HAS FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE WOULD NOT HAVE GOT ANY BENEFIT BY SUPPRESSING THE RECEIPTS AS ASSESSEE WAS ELIGIBLE TO CLAIM DEDUCTION U /S. 80 IA (4) OF THE ACT ON COLLECTION OF TOLL RECEIPTS. THE LD. AR POINTED THAT IDENTICAL ADDITION WAS MADE IN THE CASE OF ASHOKA INFRASTRUCTURE LIMITED (SUPRA.). THE TRIBUNAL IN THE CASE OF ASHOKA INFRASTRUCTURE LIMITED (SUPRA) DELETED THE ADDITION. THE LD. AR PLACED ON RECORD A COPY OF ORDER OF THE TRIBUNAL IN ASHOKA LD. AR PLACED ON RECORD A COPY OF ORDER OF THE TRIBUNAL IN ASHOKA INFRASTRUCTURE LTD. VS. ACIT (SUPRA) DATED 30.06.2017. 7. SMT. NIRUPAMA KOTRU REPRESENTING THE DEPARTMENT VEHEMENTLY SUPPORTED THE ADDITIONS/DISALLOWANCES MADE BY ASSESSING OFFICER. THE LD. DR REITERATED THE SUBMI SSION GIVEN IN STATEMENT OF FACTS FURNISHED ALONG WITH THE GROUND OF APPEAL. THE LD. DR SUBMITTED THAT THE ASSESSEE HAD MADE VOLUNTARILY DECLARATION OF ADDITIONAL INCOME RS. 10 LACS IN AS SESSMENT YEAR 2009 - 10 AND RS. 1 50 LACS IN ASSESSMENT YEAR 2010 - 11 U/S. 132(4) OF THE ACT TO COVER UP ANY DEFICIENCY. THE LD. DR HOWEVER FAIRLY ADMITTED THAT THE ISSUES RAISED BY REVENUE IN THE PRESENT SET OF APPEALS ARE SIMILAR TO THE ONE ADJUDICATED BY THE TRIBUNAL IN THE CASE OF ASHOKA INFRA STRUCTURE LIMITED (SUPRA) A GROUP CONCERN OF THE ASSESSEE IN ITA NO. 1452 TO 1457/PUN/2014 6 ITA NO S . 206 TO 212/ PUN/2016 A.YS. 2005 - 06 TO 2011 - 12 FOR ASSESSMENT YEARS 2006 - 07 TO 2011 - 12. THE LD. DR FURTHER ADMITTED THAT THE ASSESSEE AND ASHOKA GROUP WERE SUBJECT TO SEARCH ON SAME DATE. 8. THE LD. AR FOR THE ASSESSEE CLARIFYING THE FACT REGARDING DECLARATION OF ADDITIONAL INCOME STATED AT THE BAR THAT THE ADDITIONS/DISALLOWANCES MADE BY ASSESSING OFFICER DURING ASSESSMENTS U/S. 143(3) R.W.S. 153C/153B OF THE ACT ARE OVER AND ABOVE ADDITIONAL INCOME OFFERED B Y ASSESSEE DURING SEARCH. 9. WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. WE HAVE ALSO CONSIDERED THE DECISION OF CO - ORDINATE BENCH IN THE CASE OF ASHOKA INFRASTRUCTURE LTD. VS. AC IT (SUPRA). BOTH THE SIDES ARE UNANIMOUS IN STATING THAT THE ISSUE REGARDING DISALLOWANCE OF DEPRECIATION @ 25% ON INTANGIBLE ASSET I.E. LICENSE TO COLLECT T OLL IS IDENTICAL TO THE ONE ADJUDICATED BY THE CO - ORDINATE BENCH IN TO COLLECT T OLL IS IDENTICAL TO THE ONE ADJUDICATED BY THE CO - ORDINATE BENCH IN BUNCH OF APPEAL S BY ASHOKA IN FRASTRUCTURE LIMITED A GROUP CONCERN OF THE ASSESSEE. A PERUSAL OF THE IMPUGNED ORDER FURTHER REVEAL THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS GRANTED RELIEF TO THE ASSESSEE BY PLACING RELIANCE ON TRIBUNALS ORDER IN ASSESSEES OWN CASE IN ITA NO . 187/PN/2012 FOR ASSESSMENT YEAR 2006 - 07 DECIDED ON 29.04.2013. THE CO - ORDINATE BENCH IN THE CASE OF ASHOKA INFRASTRUCTURE LIMITED (SUPRA) HAS DEALT WITH THE ISSUE IN DETAIL. A FTER DISCUSSION THE FACTS OF THE CASE AND CONSIDERING VARIOUS DECISIONS THE TR IBUNAL CONCLUDED AS UNDER : 23. IN THE TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES BEFORE US WHERE THE CLAIM OF ASSESSEE WAS DEPRECIATION ON THE RIGHT TO COLLECT TOLL BEING INFRASTRUCTURE AND NOT ON THE TOLL ROAD WHERE THE COST INCURRED FOR DEVEL OPMENT AND CONSTRUCTION OF INFRASTRUCTURE FACILITY WAS A RIGHT IN THE NATURE OF INTANGIBLE ASSET FALLING WITHIN PUR VIEW OF SECTION 32(1 )(II) OF THE ACT THE ASSESSEE WAS ENTITLED TO DEPRECIATION ON SUCH INTANGIBLE ASSET. THE ASSESSEE UNDOUBTEDLY HAD EXPEN DED ON DEVELOPMENT CONSTRUCTION AND MAINTENANCE OF INFRASTRUCTURE FACILITY FOR A SPECIFIED PERIOD OUT OF ITS OWN FUNDS AND AFTER THE END OF SPECIFIED PERIOD THE ASSESSEE WAS TO TRANSFER THE SAID INFRASTRUCTURE FACILITY TO THE 7 ITA NO S . 206 TO 212/ PUN/2016 A.YS. 2005 - 06 TO 2011 - 12 GOVERNMENT OF MAHARASHTRA FR EE OF CHARGE. IN CONSIDERATION OF DEVELOPING CONSTRUCTING AND MAINTAINING THE FACILITY FOR SPECIFIED PERIOD AND THEREAFTER TRANSFERRING IT TO THE STATE GOVERNMENT THE ASSESSEE WAS GRANTED THE RIGHT TO COLLECT TOLL FROM MOTORISTS WHOEVER USES THE SAID IN FRASTRUCTURE FACILITY DURING THE SPECIFIED PERIOD. THE SAID RIGHT TO IN FRASTRUCTURE FACILITY DURING THE SPECIFIED PERIOD. THE SAID RIGHT TO COLLECT TOLL WAS ON ACCOUNT OF ASSESSEE INCURRING THE COST TOWARDS DEVELOPMENT CONSTRUCTION AND MAINTENANCE OF INFRASTRUCTURE FACILITY WHICH WAS TREATED BY THE ASSESSEE AS ITS INTANGIBL E ASSET AND ON WHICH IT CLAIMED THE DEPRECIATION UNDER SECTION 32(1)(II) OF THE ACT. F OLLOWING THE PRECEDENT REFERRED TO ABOVE THE ASSESSEE IS ENTITLED TO CLAIM THE SAID DEDUCTION ON INTANGIBLE ASSET IN VIEW OF SECTION 32(1 )( II) OF THE ACT. THE REASON FOR WHICH THE SAID DEPRECIATION WHICH WAS EARLIER ALLOWED BY THE TRIBUNAL IN THE CASE OF ASSESSEE ITSELF FOR ASSESSMENT YEAR 2007 - 08 AND WAS ALLOWED BY THE ASSESSING OFFICER IN THE ORDER PASSED UNDER SECTION 143(3) OF THE ACT REL ATING TO ASSESSMENT YEAR 2006 - 07 WAS DENIED BY THE ASSESSING OFFICER AS THE APPEALS WERE PENDING AGAINST THE ORDER OF TRIBUNAL IS NOT CORRECT A PPROACH . FURTHER THE CIT(A) HAS RELIED ON THE CBDT CIRCULAR DATED 23 . 04 . 2014 WHEREIN THE CIT(A) HAS RELIED ON THE CBDT CIRCULAR DATED 23 . 04 . 2014 WHEREIN THE CBDT HAS LAID DOWN TH AT INSTEAD OF DEPREC I ATION ON THE COST INCURRED BY THE ASSESSEE THE SAID COST SHOULD BE AMORTIZED OVER A SPECIFIED PERIOD AND ALLOWED IN THE HANDS OF ASSESSEE . HOWEVER THE EXPENDITURE INCURRED BY THE ASSESSEE IS NOT REVENUE IN NATURE AND THE SAME CANNOT BE AMORTIZED OVER THE PERIOD FOR WHICH THE ASSESSEE CAN COLLECT THE TOLL ; THE RIGHT TO COLLECT TOLL IS CAPITAL EXPENDITURE INCURRED BY THE ASSESSEE AND CONSEQUENTLY THE ASSESSEE IS ENTITLED TO CLAIM DEPRECIATION ON SUCH I NTANGIBLE ASSETS AS PROVIDED UNDER SECTION 32(1 )(II) OF THE ACT . ACCORDINGLY WE HOLD S O . THE ASSESSEE IS THUS ENTITLED TO ITS CLAIM . THUS THE SECOND PART OF THE ORDER OF ASSESSING OFFICER IN AMORTIZING THE EXPENDITURE OVER THE PERIOD OF FACILITY AND ALLOWING THE SAME STANDS REVERSED . TH E ASSESSING OFF I CER IS DIRECTED TO ALLOW THE CLAIM OF ASSESSEE OF DEPRECIAT I ON ON SUCH INTANGIBLE ASSET ALLOW THE CLAIM OF ASSESSEE OF DEPRECIAT I ON ON SUCH INTANGIBLE ASSET UNDER SECTION 32(1)(II) OF THE ACT . 10. IT IS AN UNDISPUTED FACT THAT NATURE OF BUSINESS OF THE ASSESSEE IS IDENTICAL TO THE ONE CARRIED ON BY ASHOKA INFRASTRUCTURE LIMITED. THEREFORE IN LIGHT OF DECISION OF CO - ORDINATE BENCH WE HOLD THAT ASSESSEE IS E LIGIBLE TO CLAIM DEPRECIATION @ 25% ON INTANGIBLE ASSET - LICENSE TO COLLECT T OLL. ACCORDINGLY GROUND NO. 1 TO 3 RAISED IN ALL APPEALS BY THE DEP ARTMENT ARE ACCORDINGLY GROUND NO. 1 TO 3 RAISED IN ALL APPEALS BY THE DEP ARTMENT ARE DISMISSED. 11. IN GROUND NO. 4 OF THE APPEAL THE REVENUE HAS ASSAILED THE ORDER OF COMMISSIONER OF INCO ME TAX (APPEALS) IN DELETING ADDITION MADE ON ACCOUNT OF SUPPRESSION OF TOLL RECEIPTS. A PERUSAL OF ASSESSMENT ORDERS REVEAL THAT THE ASS ESSING OFFICER MADE ADDITION @ 5% OF THE TOTAL TOLL RECEIPTS ON ESTIMATION ASS ESSING OFFICER MADE ADDITION @ 5% OF THE TOTAL TOLL RECEIPTS ON ESTIMATION ALONE . THE ASSESSING OFFICER MADE ADD ITION ON THE BASIS OF STATEMENT OF ONE 8 ITA NO S . 206 TO 212/ PUN/2016 A.YS. 2005 - 06 TO 2011 - 12 OF THE EMPLOYEE OF ASHOKA INFRASTRUCTURE LIMITED WHEREIN HE ADMITTED THAT THERE IS UNDER REPORTING OF TOL L C OLLECTION AT THE BEHEST OF THE D IRECTORS OF THE COMPANY. THE STATEMENT OF AN EMPLOYEE OF ASHOKA INFRASTRUCTURE LIMITED COMPANY. THE STATEMENT OF AN EMPLOYEE OF ASHOKA INFRASTRUCTURE LIMITED WAS RECORDED WHEN AN UNACCOUNTED CASH TO THE TUNE OF RS. 1.71 LACS WAS FOUND ON 20.04.2010 AT ONE OF TOLL PLAZA AT SIROR NAKA MANAGED BY M/S. ASHOKA INFRASTRUCTURE LIMITED. HOWEVER IN THE CASE OF PRESENT ASSESSEE NO SUCH CASH WAS RECOVERED. IT IS AN UNDISPUTED FACT THAT DURING SEARCH IN THE CASE OF ASSESSEE NO INCRIMINATING MATERIAL WAS EITHER FOUND OR SEIZED . MERELY ON THE BASIS OF STATEMENT OF AN EMPLOYEE OF ASHOKA INFRASTRUCTURE MERELY ON THE BASIS OF STATEMENT OF AN EMPLOYEE OF ASHOKA INFRASTRUCTURE LIMITED ADDITION CANNOT BE MADE IN THE HANDS OF ASSESSEE WITHOUT THE RE BEING CORROBORATIVE MATERIAL . HERE IT WOULD NOT BE OUT OF PLACE TO MENTION THAT ASHOKA INFRASTRUCTURE LIMITED AND ASSESSEE ARE TWO SEPARATE ENTITIES AND ARE ASSESSED TO TAX INDEPENDENTLY AND SEPARATELY. UNLESS ANY INCRIMINATING MATERIAL IS FOUND AND SEIZED IN THE CASE OF ASSESSEE NO ADDITION IS CALLED FOR. THE CO - ORDINATE BENCH OF THE TRIB UNAL IN THE CASE OF ADDITION IS CALLED FOR. THE CO - ORDINATE BENCH OF THE TRIB UNAL IN THE CASE OF ASHOKA INFRAS TRUCTURE LTD. (SUPRA) ITSELF DELETED ADDITION IN THE ASSESSMENT YEARS WHERE NO EVIDENCE WAS FOUND EXCEPT IN THE ASSESSMENT YEAR WHERE THE CASH WAS FOUND AND SEIZED. THE RELEVANT EXTRACT OF THE FINDINGS OF THE TRIBUNAL ON T HIS ISSUE IN THE CASE OF ASHOKA INFRASTRUCTURE LTD. (SUPRA) ARE AS UNDER : 32. IN RESPECT OF SECOND ADDITION MADE ON ACCOUNT OF ESTIMATION OF TOLL RECEIPTS WHERE NO EVIDENCE WAS FOUND FOR PARTICULAR YEAR/S WE HOLD THAT NO ADDITION ON THIS ACCOUNT IS TO BE MADE IN THE HANDS OF ASSESSEE IN ASSESSMENT YEARS 2008 - 09 AND 2009 - 10. HOWEVER IN ASSESSMENT YEAR 2010 - 11 EVIDENCE WAS FOUND AND THE SAID RECEIPTS WERE TO BE EXTRAPOLATED FOR DETERMINING THE TOLL RECEIPTS IN THE HANDS OF ASSESSEE AND IN THIS REGARD WE UPHOLD THE ORDER OF ASSESSING OFFICER IN ESTIMATING THE SAME @ 5% OF ACCOUNTED TOLL RECEIPTS. SIMILARLY IN THE YEAR OF SEARCH I.E. ASSESSMENT YEAR 2010 - 11 EVIDENCE HAS BEEN FOUND FOR PART OF THE MONTH AND THE ADDITION IS TO BE RESTRICTED TO THE SAID E VIDENCE FOUND. THE EVIDENCE CANNOT BE USED FOR EXTRAPOLATING THE RECEIPTS FOR BALANCE PERIOD WHICH IS AFTER THE DATE OF SEARCH; SINCE NO EVIDENCE HAS BEEN BROUGHT ON RECORD TO ESTABLISH THAT THE SAME PRACTICE EVIDENCE HAS BEEN BROUGHT ON RECORD TO ESTABLISH THAT THE SAME PRACTICE HAS BEEN FOLLOWED BY THE ASSESSEE IN THE PERI OD PURSUANT TO THE DATE OF 9 ITA NO S . 206 TO 212/ PUN/2016 A.YS. 2005 - 06 TO 2011 - 12 SEARCH. ACCORDINGLY THE ASSESSING OFFICER IS DIRECTED TO COMPUTE THE INCOME IN THE RESPECTIVE YEARS IN THE HANDS OF ASSESSEE . 12. THUS IN VIEW OF THE FACT THAT NO INCRIMINATING MATERIAL WAS FOUND IN 12. THUS IN VIEW OF THE FACT THAT NO INCRIMINATING MATERIAL WAS FOUND IN THE CASE OF ASSESSEE AD DITION CANNOT BE MADE ON THE BASIS OF STATEMENT AND CASH FOUND IN THE CASE OF ASHOKA INFRASTRUCTURE LIMITED A GROUP CONCERN. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN DELETING THE ADDITION ON THIS COUNT AS WELL . ACCORDINGLY GROUND NO. 4 RAISED IN APPEAL BY THE DEPARTMENT IS DISMISSED. 13. IN THE RESULT THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) ARE CONFIRMED AND APPEAL S BY THE DEPARTMENT FOR ALL SEVEN ASSESSMENT YEARS I.E. 2005 - 06 TO 2011 - 12 ARE D ISMISSED. ORDER PRO NOUNCED ON FRIDAY THE 24TH DAY OF NOVEMBER 201 7 . SD/ - SD/ - ( / ANIL CHATURVEDI ) ( /VIKAS AWASTHY) ( / ANIL CHATURVEDI ) ( /VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 24 TH NOVEMBER 2017 . SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS) - 12 PUNE. 4. THE PR. CIT CENTRAL NAGPUR. 5 . 5 . / DR ITAT B BENCH PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER / PRIVATE SECRETARY / ITAT PUNE .